Supreme Court New South Wales Medium Neutral Citation: R v FEW [2013] NSWSC 1486 Hearing dates: 9/10/2013 Decision date: 10 October 2013 Before: Fullerton J Decision: Evidence particularised in paragraphs 10(b) and 10(c) is admissible; evidence particularised in paragraph 10(a) is inadmissible Catchwords: CRIMINAL LAW - evidence - tendency evidence - evidence proposed to be adduced by accused concerning behaviour of deceased child's mother Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Evidence Act 1995 Category: Interlocutory applications Parties: The Crown FEW (Accused) Representation: Counsel: J McLennan (Crown) D Yehia SC/C Feiner Solicitors: Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Accused) File Number(s): 2011/247992 Judgment 1FULLERTON J: On 8 October 2013 the accused was arraigned on a charge that on 1 April 2011 he murdered Child X to which he entered a plea of not guilty. With the consent of the parties the trial is proceeding before me without a jury. 2It is the Crown case that the deceased child (aged 2½ at the date of her death) died from a head injury comprised of a fracture of the occipital bone at the base of the skull with an associated bilateral subdural haemorrhage and brain swelling. That is not in contest. It is also common ground that the nature of the head injury was such that the child would have experienced a significant alteration of consciousness from the moment she sustained the injury because of the associated traumatic injury to the cerebrum, brain stem and cerebellum revealed on post-mortem and disclosed in a CT scan performed whilst the child was alive. It is for this reason that the evidence leaves no room for doubt that the head injury, whether inflicted deliberately or sustained accidentally, was suffered between 10.01am and 10.21am on 30 March 2011. At 10.01am the child was seen sitting upright in her pram and capable of responsive movement, and within minutes of 10.21am she was in a severely compromised state of orientation and consciousness when the child's mother attended at the accused's home having been notified by telephone that the child had fallen. 3What is in contest is whether the fatal head injury was deliberately inflicted by the accused or accidentally sustained when, on the accused's case, the child fell from a pram. As I understand it, the evidence from a number of expert witnesses intended to be called by the Crown and by the accused later in the trial, is to the effect that it is not possible to determine from the appearance of the head injuries whether they were accidentally sustained or deliberately inflicted, although the probabilities, even the strong probabilities, on my reading of the reports, would seem to favour the latter. For this reason, the circumstances of the injury and, in particular, the postulated but unwitnessed event relied upon by the accused, namely a fall from the pram at a maximum height of 1.5 metres, have been subjected to analysis from a range of perspectives, including biomechanics, neuropathology and radiology. These investigations were undertaken with a view to the Crown excluding the reasonable possibility that the fatal injury was accidental or, to put it another way, to prove beyond reasonable doubt that the injuries were deliberately inflicted by the accused. 4The Crown also relies upon multiple sites of significant bruising on various parts of the child's body, identified on post-mortem, in further support of the Crown case that the fatal head injury was not accidental. As I understand the Crown case, the nature and extent of this bruising, and the number of separate areas of the child's body over which the bruising extended, excludes any reasonable possibility that any of them were sustained accidentally. For present purposes, the secondary areas of bruising include extensive bruising to the scalp (revealed when the scalp was reflected at autopsy), with maximal involvement of large areas of the forehead anteriorly and the posterior aspect on the left side of the head with only minimal areas of bruising laterally; bilateral bruising to the ears; bruising of both buttocks (predominantly involving the left buttock with the grouping of the bruises resembling a handprint) and an area of bruising on the left thigh posteriorly, which, on dissection, revealed bruising passing to the level of the musculature. 5It is also the Crown case that the weight of the evidence adduced, and to be adduced in the trial, removes any reasonable possibility that these areas of secondary bruising were deliberately inflicted by anyone other than the accused. 6While the Crown accepts that the bruising cannot be aged, the evidence of the child's mother is to the effect that, at the very least, the injuries to the child's buttocks must have been sustained at some time after 27 March 2011. She gave evidence that when she bathed the child at the accused's home that day, after which she returned the child to the accused's care and control where the child remained up to and including the time she suffered the head injury on the morning of 30 March 2011, she did not see any on the child's buttocks or her trunk. She said the only injury she noticed was a bruise on the child's thigh (between the buttock and the knee) in the shape of a 10 or 20 cent piece which she regarded as unexceptional since her daughter was an active and energetic toddler. Although the child's mother was unable to say with any certainty whether the bruise was on the left or the right thigh, it would appear to be common ground that the cutaneous presentation of that bruise could not account for the deep subcutaneous bruising to the left thigh revealed on autopsy. I note that the evidence is silent as to whether she washed the child's hair or attended with any particularity to the child's forehead or ears when she bathed her. 7The child's mother also gave evidence that in the week preceding 30 March 2011 she visited the child at the accused's home on a daily, or twice daily basis and, aside from seeing a mark of the child's forehead where she had run into a hall table in the accused's home, she saw no other signs of injury and her daughter did not complain of injury. She said that she changed the child's nappy six or seven times in that week, and aside from nappy rash which she treated topically, she did not observe anything out of the ordinary on the child's buttocks or trunk. 8It is the accused's case that he did not deliberately inflict any of the secondary injuries and, to extent that the medical evidence establishes that any of them were deliberately inflicted, they must have been inflicted by the child's mother, or her boyfriend, since they were the only adults who had access to the child in the week preceding her death, when he was not also in their company when they visited the child at his home. The child's mother gave evidence that she took the child to the playground and to various food outlets with her boyfriend on her return from Brisbane on 23 March 2011 on multiple occasions the following week after which she returned the child to the accused's care and control. 9In support of this aspect of the accused's case, Ms Yehia, senior counsel for the accused, served a tendency notice under s 97 of the Evidence Act 1995. The tendency, the subject of the notice, is said to be the tendency of the child's mother to behave in a violent manner with physical violence being directed against herself and others. That tendency was particularised by reference to a number of documents annexed to the notice in the form of reports to the Department of Family and Community Services under s 29 of the Children and Young Persons (Care and Protection) Act 1998. The tendency of the child's mother to act in a violent manner was refined by Ms Yehia in the course of argument to be a tendency to display violent behaviour where the mother is frustrated or otherwise feels out of control. 10The evidence of violent behaviour in the past and sought to be elicited as tendency evidence is as follows: (a) In July and September 2008 the child's mother disclosed that after heated arguments with the child's father she punched walls and a cupboard door; (b) On 30 January 2011 the child's mother lost control and punched her mother to the face causing bruising at a time when her mother was in a wheelchair - the deceased child was reportedly a witness to that incident; (c) In February 2011 the child's mother tightened the straps on the child's pram to restrain the child at which time she stated she did not care how tight the straps were or if they bruised the child. On another occasion, at about the same time, she physically pushed the child back into the pram by holding her face or placing her hand over the child's face and forcefully pushing her backwards into the pram. 11I accept that the identity of the person who inflicted the secondary injuries (or at least those ultimately shown to have been deliberately inflicted in the context of the medical evidence to be led later in the trial) is a fact in issue in the trial given the significance of those injuries to the way the Crown seeks to exclude, as a reasonable possibility, that the fatal injury was sustained accidentally. 12Ms Yehia submitted that the evidence particularised in the tendency notice reveals, in its terms, that the child's mother has a tendency to act violently in given circumstances (whether out of frustration or where she lacks control in a situation) and that she does so irrespective of the vulnerability of those she treats in that way. Her mother was wheelchair-bound when she was punched to the face and her daughter was a 2 year old when she was forcibly restrained in her pram by her mother, indifferent to whether the child was hurt in the process. Ms Yehia submitted that conduct, in a concentrated period of weeks prior to the child's death, bears relevantly upon the fact in issue in the trial (in the sense that it could rationally effect the probability of the existence of a fact in issue) not as providing a link in the process of proving that the child's mother was in fact the person who inflicted the secondary injuries, but because the evidence was capable of undermining (or raising a material doubt) as to that part of the Crown case which seeks to prove that the accused was the person who inflicted the secondary injuries. 13Ms Yehia submitted that other evidence in the trial would establish that the child was in her mother's exclusive care and control (subject only to the presence of her boyfriend) on multiple occasions after her return from Brisbane and before 30 March 2011, and that injuries, even significant injuries of the kind relied upon the Crown, may well have been inflicted at that time when the child, who the mother described as hyperactive and "a wild child", was misbehaving or resisting her mother's attempts at discipline and control. 14Ms Yehia submitted that the evidence also met the requirement of significant probative value in s 97(1)(b) that being the only prerequisite to admissibility under the Evidence Act where the evidence is tendered by an accused. 15In that regard she submitted that it was sufficient that I consider that the evidence could rationally affect the assessment of the probability that someone other than the accused inflicted the secondary injuries to an significant extent (that is, that the evidence is capable of having that impact) and that I caution myself against making any assessment as to whether the evidence will ultimately have this effect when I come to consider whether the evidence establishes the guilt of the accused beyond reasonable doubt. I also caution myself against engaging in any assessment of the reliability or credibility of the evidence, or making any estimate or assessment of its actual probative value, conscious, as I must be sitting as a jury, that the probative value actually assigned to any item of evidence cannot be finally determined until all the evidence to be led at trial is complete. 16The Crown took no issue with the notice requirement in s 97(1)(a). The Crown objected to the evidence particularised in the notice being led as tendency evidence. The Crown submitted that the tendency relied upon in the notice is so broadly expressed, and involved incidents of such a minor measure in the context of the child's mother's dealings with her own mother and her child both separately and together over a period of years, that it failed the primary test of relevance under s 55 of the Evidence Act. 17In so far as the incident involving the child being restrained in the pram, the Crown submitted that, taken at its highest, there was nothing in that incident which suggested that the child's mother was doing anything more than imposing a strict or firm restraint on her child in an attempt to keep the child in the pram. While he accepted this might indicate a disposition in the child's mother to impose firm or stern discipline, it was not capable of proving a violent tendency or a tendency to violence in the way contended for by the accused. The Crown submitted that in these circumstances the evidence lacked the capacity to undermine the evidence in the Crown case that served to identify the accused as the person who inflicted the very significant secondary injuries revealed at post-mortem and, in that way, the evidence did not meet the threshold test of relevance under s 55 of the Evidence Act. The Crown submitted that even if relevant, the evidence lacked the essential and additional degree of significance (or importance or consequence) in establishing or discounting proof of any fact in issue in the trial such as to justify its admission as tendency evidence under s 97(1)(b). 18I am satisfied that the evidence does meet the threshold test under s 55 of the Evidence Act. Taking into account the evidence already adduced in the trial, and what I was invited to anticipate would be the evidence to be led, and making a reasoned evaluation of the likely significance or importance the evidence under consideration would be assigned by me in considering when and at whose hand the secondary injuries were, or might have been sustained, I am also satisfied that the evidence particularised in paragraphs 10(b) and 10(c) above is admissible as tendency evidence. I am not satisfied that the evidence at 10(a) qualifies for admission as tendency evidence under s 97 of the Evidence Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2013