Supreme Court New South Wales Medium Neutral Citation: R v FEW (No 2) [2013] NSWSC 1771 Hearing dates: 8-11/10/2013; 14-16/10/2013; 21-25/10/2013; 29/10-1/11/2013 Decision date: 08 November 2013 Before: Fullerton J Decision: Not guilty verdict Catchwords: CRIMINAL LAW - judge alone trial - murder - child victim Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Criminal Procedure Act 1986 Cases Cited: Edwards v R [1993] HCA 63; 178 CLR 193 R v FEW [2013] NSWSC 1486 Shepherd v R [1990] HCA 56 HCA; 170 CLR 573 Texts Cited: - Agrawal S et al, "Prevalence of Retinal Haemorrhages in Critically Ill Children" (2012) 129(6) Pediatrics - Chadwick DL et al, "Annual Risk of Death Resulting From Short Falls Among Young Children: Less Than 1 in 1 Million" (2008) 121(6) Pediatrics 1213-1224 - Ehsani JP et al, "The Role of Epidemiology in Determining If a Simple Short Fall Can Cause fatal Head Injury in an Infant" (2010) 31(3) The American Journal of Forensic Medicine and Pathology 287-298 - Loyd AM, "Studies of the Human Head from Neonate to Adult: An Inertial, Geometrical and Structural Analysis with Comparisons to the ATD Head" (2011) PhD Thesis, Department of Biomedical Engineering, Duke University, North Carolina, USA - Plunkett J, "Fatal Pediatric Head Injuries Caused by Short-Distance Falls" (2001) 22(1) The American Journal of Forensic Medicine and Pathology 1-12 - Reiber G, "Fatal Falls in Childhood: How Far Must Children Fall to Sustain Fatal Head Injury?" (1993) 14(3) The American Journal of Forensic Medicine and Pathology 201-207 - Viano DC and Parenteau CS, "Analysis of Head Impacts Causing Neck Compression Injury (2008) 9 Traffic Injury Prevention 144-152 Category: Principal judgment Parties: The Crown FEW (Accused) Representation: Counsel: J McLennan (Crown) D Yehia SC/C Feiner (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Lawyers (Accused) File Number(s): 2011/247992 Publication restriction: Non-publication order on the names of the victim, the victim's mother and the accused. Judgment 1FULLERTON J: JP died on 1 April 2011 from a head injury she sustained on 30 March 2011 whilst she was in the sole care of the accused at his home in Coffs Harbour. The accused lived alone. The child was aged 2½ at the time of her death. The accused was not related to the child but had an established relationship with her as a de facto grandparent. 2The head injury comprised a linear fracture at the base of the skull with associated bilateral subdural haemorrhages and brain swelling. Bilateral multi-layered retinal hemorrhages were also identified. 3On 1 August 2011, at the culmination of the police investigation into the child's death, the accused was charged with her murder. 4On 8 October 2013 the accused was arraigned before me and entered a plea of not guilty. The trial was conducted without a jury in accordance with s 132 of the Criminal Procedure Act 1986. 5The trial commenced in Coffs Harbour where evidence was called from thirteen witnesses, inclusive of the child's mother (BJP), grandmother (RW) and great grandmother (LP). These witnesses gave evidence of seeing the child in the days, weeks and months preceding her death while she was both in the sole care of her mother and, after her mother had placed the child in the care of the accused, in his sole care. Paul Harmey, the ambulance officer who transported the child from the accused's home to Coffs Harbour Hospital on 30 March, and Dr Robertson, who treated her on admission before she was conveyed to Westmead Hospital that night where she later died, also gave evidence in Coffs Harbour. They both noted bruising to the child's forehead unrelated to what later proved to be the fatal head injury. Additional sites of bruising, both to the forehead and other areas of the child's body, were identified when the child was examined by Dr Norrie at the Children's Hospital at Westmead on 31 March 2011. Save only for the bruising to the child's right ear, all areas of secondary bruising were confirmed on autopsy. The autopsy also identified additional extensive bruising to the scalp, not associated with the skull fracture. (These injuries were referred to at trial collectively as "the secondary injuries".) 6The trial resumed in Sydney on 21 October 2013 where evidence was called by both the Crown and the accused from a number of expert witnesses in forensic medicine, paediatrics and biomechanical engineering. 7The accused did not give evidence. He relied upon two electronically recorded interviews with police in which he claimed that the child's head injury must have been sustained when she fell from her pram while he was in the toilet. He also relied upon a walkthrough interview at his home where he reconstructed the scene of the accident. He denied deliberately inflicting any of the secondary injuries or seeing anyone else injuring the child. The Crown case in summary 8In order to convict the accused of murder I must be satisfied beyond reasonable doubt that it was the deliberate act of the accused which caused the death of the child, and that the act was accompanied by an intention to kill or to inflict grievous bodily harm. In this case, the Crown alleged that the fatal head injury was deliberately inflicted by the accused, and that the location of the skull fracture and the complex of associated head injuries are such that I would be satisfied, beyond reasonable doubt, that at the time of the assault the accused intended to kill the child or to inflict grievous bodily harm. 9The Crown is unable to appoint the precise mechanism which caused the fatal head injury. The results of autopsy do not discriminate between the skull fracture being the result of a direct blow to the back of the head by the accused's fist or by an object wielded by him, or as a result of the child being thrown or deliberately dropped from some height, with the back of her head striking a hard surface and fracturing in the process. In addition, the Crown cannot appoint the location in the accused's home where the child was fatally assaulted. A crime scene search warrant executed on 31 March 2011 did not produce any relevant scientific evidence. 10On the Crown case, the time at which the fatal injury was inflicted is able to be appointed with reasonable certainty. At 10.01am the child was seen in the accused's care in a local chemist sitting upright in her pram and capable of responsive movement and, within a minute or so of 10.21am, she was seen by her mother and her mother's boyfriend in a severely compromised state of orientation and consciousness lying on the couch in the accused's living room after they arrived in response to the accused's telephone call claiming that there had been an accident. The expert medical witnesses all agreed that whatever might have been the explanation for the child being observed by a pharmacy assistant to be sad and perhaps unwell in the chemist at 10.01am, she could not at that time have sustained the skull fracture, or any of the associated intracranial bleeding first revealed on the CT scan performed at Coffs Harbour Hospital following her admission two hours later. 11It was the Crown case that after returning from the chemist at about 10.10am the accused assaulted the child with sufficient force to fracture her skull and render her unconscious or semi-conscious. It was also the Crown case that before he telephoned the child's mother at 10.21am the accused deliberately positioned the pram on its side, near the tiled foyer of his home unit, to give the pretence of the scene of an accident, and that he reconstructed that same scene in the course of a walkthrough with police conducted on 2 April 2011 for the same reason. 12The Crown submitted that the postulated but unwitnessed fall from the pram was false and demonstrably so. The Crown also submitted that the accused gave a deliberately false account to police of his movements on the morning of 30 March 2011 when he was first interviewed on 1 April 2011, an account which he repeated in the walkthrough on 2 April 2011 and in a further recorded interview on 3 April 2011. According to the Crown, the falsity of that account was exemplified by the fact that the accused made no reference to leaving the house on the morning of 30 March to collect a prescription for anti-anxiety medication from the chemist, or that he had telephoned his doctor at 9.46am asking for the medication as a matter of urgency because, as he claimed to his doctor, "Something terrible [had] happened". Instead, the accused consistently asserted in his various interviews with police that the morning of 30 March was a "routine" morning at home with the child until she fell from the pram. The Crown submitted that the accused's lies were motivated by a consciousness of guilt, there being no other reasonable explanation for his failure to give a complete and honest account of his movements on the morning of 30 March in the course of what he knew was a police investigation into the child's death. 13The Crown submitted that the accused's account of an accidental fall from the pram is not only inherently implausible but the time at which he claimed the accident occurred (namely, while the child's preferred television programs were screening - a claim repeatedly detailed and described by him to police) has been shown by the evidence led at trial to be objectively false. The timetable of televised children's programs, variously nominated by the accused as being those the child was watching immediately before the fall, were all screened between 8.15am and 9.23am - before the child left the house with the accused to go to the chemist. 14The Crown also relied upon the multiple sites of secondary bruising to various parts of the child's body in further support of the Crown case that the fatal head injury was not an accidental injury but an inflicted injury. These secondary areas of bruising included 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; bilateral bruising to the ears; bruising to 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 (either incorporated as part of the handprint or a separate site of trauma) which, on dissection revealed bruising passing through the fat to the level of the musculature. 15On the Crown case none of the secondary injuries were consistent with, or might reasonably be viewed as being consistent with, the postulated fall from the pram. Viewed as a constellation of injuries, the Crown submitted that they could not be explained by any other accidental cause. The Crown relied upon the evidence from the child's mother and her boyfriend (LB), and to a lesser extent the child's grandmother and great grandmother, to the effect that in the days preceding 30 March the child was not unwell and they saw no other bruises or signs of injury other than a bruise to her left temple from knocking into a hall table and a small bruise to her thigh. It was the Crown case that the bruising to the child's ears; the extensive bruising to her forehead; the patterned bruising to her buttocks and the deep and diffuse bruising to her thigh were also deliberately inflicted by the accused, some of which may have been inflicted in the course of the fatal assault but all of which were inflicted some time after 5pm on 29 March when she was last seen by her mother and her mother's boyfriend in good health and spirits at the accused's home. The accused's case in summary 16The accused denied deliberately harming the child in any way. So far as the child's head injury was concerned, it was his case at trial, consistent with his account to police, that the child must have climbed, or attempted to climb into or onto her pram and, in the process, fallen backwards, striking the back of her head on the tiled floor in the front foyer of his home. The accused told police that he did not see the fall but he heard a crashing sound while he was in the toilet and, upon rushing out, found the child lying on her back on the tiles. He said he picked her up and carried her to the couch in a semi-conscious state and immediately telephoned her mother. 17It was the accused's case, again consistent with what he told police, that the child had bruised her forehead in the left temple area when she ran into a small hall table some days before 30 March (an event he said was witnessed by the child's mother and which she confirmed in her evidence) and, on another occasion, that she had stumbled over or fallen upon some toys which may have explained the bruise on her thigh. He said that there were areas of redness in her ears from insect bites. He also told police that the child had left his home in the company of her mother and LB for two hours on the afternoon of 29 March and that when she returned she was quiet and seemed unwell. He said he saw an area of redness on her right thigh when he changed her for bed that night. 18In so far as the Crown relied upon the secondary injuries to reinforce the Crown case that the fatal injury was not accidental but inflicted, Ms Yehia, senior counsel for the accused, submitted that the Crown has not excluded the reasonable possibility that at least some of the secondary injuries were capable of being explained by accidental causes and, for that reason, I would discount those sites of injury as having any bearing on the issues at trial. She also submitted that of the secondary injuries that were not readily or reasonably explained as the result of accident, (in particular the bilateral bruising to the ears and the deep patterned bruising to the buttocks) there remained a real and pervasive doubt as to the identity of the person or people who inflicted them. In that connection, she submitted that I would reject as untrue aspects of the evidence of the child's mother and her boyfriend, in particular, their evidence that they did not have the child in their sole care and custody for some hours on the afternoon of 29 March as the accused claimed in his interview with police. She submitted that the evidence of the child's mother generally lacked weight and that I would be left with concerns as to her credit. Ms Yehia submitted that the delay of over an hour before the child's mother called the ambulance when, on any view, it was obvious that her daughter was seriously ill, coupled with a series of unexplained phone calls to her mother within that hour, is consistent with a desire on her part to conceal the child's inflicted injuries from the authorities, perhaps in the hope that the head injury, which she believed to have been the result of the fall, was not serious. 19Ms Yehia relied upon the proven tendency of the child's mother to inflict serious violence on her own invalid mother, as tending to prove her violent disposition when triggered by stressors of various kinds. She also submitted that the personal circumstances of the child's mother in the weeks preceding the child's death (including leaving her in the care of the accused for three weeks in order to cement a relationship with a new boyfriend with a view to moving to Brisbane to live with him) raised a real doubt as to the identity of the person who inflicted the secondary injuries, thereby undermining the Crown case that it was the accused who inflicted the fatal injury. A summary of the competing submissions on the question whether a short distance fall can account for the fatal injury 20The Crown submitted the combined weight of the medical evidence as to the severity of the head injury, including the site of the skull fracture in the occiput, to the effect that it was unlikely to have been occasioned in a short distance fall; the identification of bilateral retinal haemorrhages; the design and dimension of the pram; the height of the child and the location of the pram relative to where the accused claimed to police he found the child on the tiles in the foyer, combine to exclude the reasonable possibility that the child died as the result of an accident. 21Ultimately, the Crown submitted that with the reasonable possibility of accident discounted and, in the absence of any other reasonable hypothesis for the child having suffered the fatal injury consistent with the innocence of the accused, I would return a verdict of guilty. 22Ms Yehia submitted that not only was the postulated fall from the child's pram capable of producing a head injury of the kind revealed at post-mortem from a biomechanical perspective as attested to by Professor Pandy, but that each of the three expert medical witnesses called by the Crown, Drs Norrie, Duflou and Moran, conceded that it was possible that the fatal head injury was sustained in a short distance fall of the postulated kind, albeit that it was unlikely. Ms Yehia acknowledged that a fatal head injury resulting from a child falling a short distance was reported in the literature as a rare occurrence. She also acknowledged that the epidemiological studies referred to extensively in the literature, and drawn upon by each of the medical witnesses as contributing to the opinions they expressed that an accidental fall was a possible but unlikely cause of this child's death, was an approach reasonably open to them as experts in their field. She submitted however, that after reviewing all the evidence (including the accused's account to police and his demonstrated love and affection for the child, as attested to by all members of the child's family), I would be compelled to the conclusion that an accidental fall of the kind postulated is a reasonably possible explanation for this child's death and one that the Crown cannot discount beyond reasonable doubt. For that reason, she submitted I would return a verdict of not guilty. 23Ms Yehia submitted that the accused's account of the incident, given for the first time within minutes of the child being injured, and maintained thereafter in the course of sustained questioning over many days, was coherent and consistent. Save only for failing to account for his visit to the chemist in his account of the morning of 30 March, Ms Yehia submitted that there was nothing in the accused's demeanour in the face of police questioning or the answers he provided which gave any support to the Crown case. In so far as concerned the lies relied upon by the Crown, Ms Yehia submitted that I would not be satisfied that the only explanation for his failing to tell police that he had called his doctor and had left the house to go to the chemist was because he knew he had killed the child and needed to conceal that fact, and that I could not rely upon that lie (or those lies) to infer guilt in those circumstances (see Edwards v R [1993] HCA 63; 178 CLR 193 at 201). 24Ms Yehia submitted that the Crown case, which timed the fatal assault at some time between approximately 10.10am and 10.21am (allowing about ten minutes for the accused to return to his home from the chemist), simply could not, in any rational way, account for the accused being seen at 10.01am in the chemist with the child and the relative normalcy of that encounter. She submitted that it defies commonsense that the accused would have inflicted some non-fatal, but nonetheless serious injuries to the child that morning sufficient to raise his anxiety levels to the extent that he was prompted to call his doctor at 9.46am for an urgent issue of a prescription for anti-anxiety medication (the explanation advanced by the Crown for his call to the doctor), and then to have taken the injured child with him to the chemist to collect the medication, with the obvious risk of her vocally complaining that the accused had hit her and hurt her, or that her injuries would be noticed and the subject of remark or inquiry. She also submitted that attaching the raincover to the pram (the evidence at trial being that the weather that morning was very cloudy with showers) was entirely consistent with the overwhelming weight of the otherwise uncontradicted evidence to the effect that the accused was a responsible and loving carer, and wholly inconsistent with him having assaulted the child before going to the chemist, sufficient to cause the secondary injuries, and then fatally assaulting her within minutes of his return. 25Ms Yehia further submitted that the Crown could point to nothing in what others observed of the accused's treatment of the child whilst she was in his care in the days immediately preceding 30 March, or on other occasions over the three weeks before that day, that might shed any light on what might have caused him to assault the child, inflicting multiple injuries to her head (one fatal), and to her torso and limbs in what the medical evidence suggested must have been at least two episodes of serious and unrestrained violence. 26Ms Yehia submitted that the accused's demonstrated love and concern for the child was confirmed by the candid and recorded interactions with the child on his mobile phone which were exhibited at the trial. This, she submitted, in itself raises a doubt as to whether the Crown has proved its case of murder. She submitted that the Crown's description of the accused in final submissions as a man under financial, physical and emotional pressure, such as to render him capable of explosive and episodic violence on 30 March, was without any evidentiary foundation and was nothing more than a strained attempt by the Crown to explain the inexplicable and I would not be persuaded of the Crown's submission for that reason. She submitted that when the accused's proven demeanour and behaviour is coupled with an accidental fall being a possible explanation for the fatal injury, the Crown has failed to discharge the onus of proving the accused's guilt beyond reasonable doubt and he should be acquitted. The issues raised by the evidence 27The evidence led at trial over thirteen hearing days was detailed and in parts both complex and perturbing. That said, a number of issues ultimately crystallised as critical to the question whether the Crown had proved the guilt of the accused beyond reasonable doubt. They included the following: (i) Whether the Crown had discounted the reasonable possibility that the injuries which caused the death of the child were sustained accidentally? (ii) Whether, in considering that question, I am entitled to take into account any or all of the secondary areas of bruising revealed on pre-mortem and post-mortem examination and, if so, whether I must be satisfied beyond reasonable doubt that those injuries were deliberately inflicted, and deliberately inflicted by the accused, before they could support a finding that the fatal injury was inflicted? In considering that question, what weight should I give to the tendency evidence led by the accused concerning the child's mother and, in addition, what is the impact, if any, of concerns more generally about the credibility of the child's mother and the child's grandmother? (iii) Further, in addition to, or as an alternative to the question whether I am satisfied that the accused was responsible for the infliction of the secondary injuries, whether I am entitled to take the accused's lies to police as evidence of a consciousness of his guilt of the crime charged in considering whether the Crown has discounted the reasonable possibility of accident as an explanation for the fatal injury? (iv) If, having regard to the combined weight of all of the evidence legitimately able to be taken into account on the question of guilt, I am satisfied that the Crown has discounted the reasonable possibility of accident (either because the medical evidence renders that explanation so unlikely that it is discounted as a reasonable possibility, or even were the combined weight of the medical evidence such as to allow for an accidental cause as a possible explanation for the fatal head injury, the other evidence in the Crown case, and the inferences legitimately drawn from that evidence, compel the conclusion that the injury was deliberately inflicted), has the Crown discounted any other alternate hypothesis inconsistent with the guilt of the accused? (v) In the event that the Crown has proved beyond reasonable doubt that it was the deliberate act of the accused that caused the death of the child, has the Crown proved beyond reasonable doubt that the act causing death was done with an intention to kill the child or inflict grievous bodily harm? It was no part of the Crown case that the accused's intentional act was done with reckless indifference to human life? Family relationships 28The child's mother, BJP, was aged 17 at the time of the child's birth in September 2008. She was at that time in a relationship with the child's father. At the end of November 2010 she terminated that relationship. The relationship was unstable and had been marred by abuse for some time. There was, however, no evidence that the child was the victim of any physical abuse from either of her parents whilst they were together. 29In 2007 BJP's mother, RW, formed a relationship with the accused. There was a time where she and the accused were engaged. They remained friends after the engagement was broken. RW said that when her granddaughter was born the accused occupied a significant role in the family and was spending a great deal of time with them. 30RW gave evidence that BJP looked upon the accused as a stepfather figure as she had not known her biological father. She said that when BJP ended her relationship with the child's father, it was a difficult time as she was divorced and BJP had no father figure. RW said: ...she turned to [the accused] as a father figure because she needed that supportive protection. 31BJP gave evidence that the accused was always there for her and that she looked up to him. 32BJP stated that whilst her family (including her mother, grandmother and the accused) would help her with her daughter, she was the main caregiver. She was not pressed as to how, and with what support she was able to maintain that level of care given the instability in her housing situation and the fact that by the end of 2010 she was effectively a single mother in her late teens, or how she dealt with the pressures and stresses inherent in being the sole parent of a toddler after surviving an abusive relationship with the child's father. 33In early December 2010, on referral by RW, the child and her mother were accommodated at the Warrina Women and Children's Refuge at Coffs Harbour. Whilst a resident at Warrina Refuge, at least until mid February 2011, the child attended the Caterpillar House Occasional Child Care Centre, also in Coffs Harbour, on eight occasions pursuant to an arrangement with Warrina Refuge. 34BJP gave evidence that the child attended day care approximately three days a week, roughly from 9am until 3pm. The evidence from Rosemary Franks, director of Caterpillar House, was that the child attended on the following three days in 2010: 8 December for 4 hours, 10 December for 7 hours, 15 December for 6.5 hours. She attended on the following five days in 2011: 11 January for 6 hours and 4, 9, 16 and 18 February for 5 hours each day. 35In early 2011 BJP met LB, the brother of her best friend, and commenced a relationship with him. She said that her relationship with him developed quickly, and from the beginning of February 2011 to the end of March 2011 they spent most days together. 36BJP gave evidence that her daughter had a good rapport with her new boyfriend, and that he was willing to take her on as his daughter. In his evidence, LB said that the child "had a smile that could light up your day" and that he fell in love with her the first time he met her. He said that his feelings towards the child were reciprocated. 37According to the child's mother, because LB and her daughter were building a strong relationship and LB lived in Brisbane, she decided they should move to Brisbane. She said because she wanted to see if Brisbane was a suitable environment for her daughter, she decided to go to Brisbane with LB and leave the child in the accused's care. BJP and LB left for Brisbane on 2 March 2011 and did not return to Coffs Harbour until 21 March. 38BJP said that her daughter loved the accused as much as she did, and that the child would call him "Poppy", whilst the accused would call her "Peanut". This was confirmed by RW in her evidence. LB gave similar evidence and said that the accused was like a father to BJP, and that the child called the accused "Poppy". LB also stated that when he observed interaction between the accused and the child he noticed that the child adored the accused, and the accused was very loving towards her. Whilst the accused was considered to be part of the family and spent a substantial amount of time with them, he had not looked after the child overnight until 2 March 2011 when she was left in his sole care. 39BJP gave evidence that because of her mother's disability (she had been suffering from multiple sclerosis for many years and was confined to a wheelchair), and because her mother was scheduled to have surgery in March 2011, the accused was the most suitable person to care for the child whilst she was in Brisbane. RW confirmed that she was admitted to Coffs Harbour Hospital on 17 February 2011 for back pain, and then from 5 March to 15 March she was admitted to the Royal North Shore Hospital for surgery. From 15 March to 23 March she was again admitted to Coffs Harbour Hospital. 40During cross-examination, BJP confirmed that some time before she went to Brisbane she terminated the lease at Warrina Refuge and was living in between RW's residence and LB's father's residence. She further confirmed that LB's father told her she could not stay there any more because the child's crying upset him. She confirmed that after she returned from Brisbane the accused invited her to stay with him, however she decided to leave the child in his care and to stay with LB at her mother's home as "it was easier for all involved". The child's general health prior to being placed in the sole care of the accused on 2 March 2011 41The evidence from a number of medical and lay witnesses in Coffs Harbour was to the combined effect that the child was considered to be developmentally normal and in general good health, without any history to suggest she might bruise or fracture more easily than other children. Dr Bedford 42Dr Bedford is a medical practitioner with approximately 25 years experience. He was one of the child's treating practitioners. From his clinical notes, Dr Bedford confirmed that he saw the child on 27 April 2009, 31 August 2009, 13 October 2009 and 20 December 2010. He gave the following evidence: The child always appeared to me...from my recollection, of just a pretty developing child and I had no reason or I would have reported the child if I'd had concerns if there'd been any signs of injury or anything that had sort of prompted alarm bells. 43So far as is material to the issues at trial, on 20 December 2010 he said the child attended the Medical Centre with BJP presenting with a history suggestive of an upper respiratory chest infection of a viral origin. He gave evidence that, "the child looked well, ... basically was on a great weight for its age ... [and] appeared a happy, pretty little girl". Upon examination he recommended treatment for a viral infection. He said that at the end of the consultation the child's mother told him that the child was "veering off to the left" and would "run into walls". He considered that might be a feature of her chest infection. He recommended that the child have a CT scan if the unsteadiness persisted. He said, however, he was able to discern no neurological findings in the clinical setting to explain or confirm her unsteadiness. 44Other than members of the child's immediate family, the only other witnesses who gave evidence of the child's apparent health and well being prior to mid March 2011 were Ms Young, the manager of Warrina Women and Children's Refuge, and Ms Franks, the manager of Caterpillar House Occasional Child Care Centre. Ms Young 45As at February/March 2011 Charlotte Young was the manager of Warrina Refuge in Coffs Harbour and had worked in that facility for 21 years. She held relevant tertiary qualifications. She gave evidence that Warrina Refuge provided housing and counselling support for women and children in crisis, most frequently as a result of domestic violence. 46As to their dealings with BJP and the child between 6 December 2010 and 28 March 2011, the records maintained by Warrina Refuge reflect the following: (a) BJP was referred to the service by RW on 6 December 2010 in circumstances where she had been the victim of abuse from her previous partner. On admission, she was noted to be suffering from anxiety, stress and poor self-esteem. Arrangements were made with Caterpillar House for the child to be accommodated on a "needs basis" as a respite for BJP when the demands of her young child were causing her stress. (b) Ms Young had the opportunity to observe BJP and the child between 6 December and 14 December 2010 as they were accommodated where the administration of the service was conducted. Ms Young gave evidence that she saw and spoke with BJP over that period, albeit briefly. She described her as an "over-protective mother" who frequently had the child restrained in her pram to enable BJP to attend to her rostered household chores. Ms Young described the child as having good communication skills but that she was "a quiet child" who thrived on adult company. She observed no signs of neglect, injury or anything else to suggest that the child was experiencing any emotional distress. After BJP left the accommodation in Warrina Refuge and moved to supported accommodation in an outreach property, Ms Young saw her infrequently and did not see her with the child or speak with her at this time. An outreach worker, Linda Parkinson, assumed supervision of mother and child at this time. She did not give evidence. Ms Franks 47Rosemary Franks was the director of Caterpillar House, the Child Care Centre to which the child was referred under a funded arrangement with Warrina Refuge. She described the child as engaging at her expected level with others and that her development was appropriate to her age. There was no record of any injuries sustained by the child at Caterpillar House on the eight occasions she attended between 8 December 2010 and 18 February 2011, and no notation of any injuries the child presented with on arrival. Ms Franks gave evidence that it was customary to check a child on arrival in order to identify any injuries sustained during the course of care which would then be reported to a parent when the child was collected at the end of the care period. Mr Hockings 48On 16 March 2011 Lachlan Hockings saw the child whilst he was installing a stereo unit in the accused's premises. He described the child as: ...quiet, long hair ... probably the age of four or five, didn't really say a lot but, she just really sat there. 49Mr Hockings said that the accused told him that he was looking after the child. In cross-examination Mr Hockings confirmed that the accused had said to him, "This little girl means the world to me". The evidence bearing upon the welfare of the child between 2 March - 22 March 2011 whilst in the accused's care 50Prior to leaving for Brisbane on 2 March 2011, BJP said that she left money with the accused sufficient for food for two to three weeks, and that she told him of the child's daily routine, including meal times, nap times, and bathing. She also left a cot, a pram, toys and videos. She described the child's daily routine as waking up between 7 and 8.30am, being changed out of her pyjamas, eating breakfast, and then playing until lunch time. Her lunch normally consisted of a sandwich and juice, and at times Milo. On occasion, BJP said she would then take the child to the park. She said the afternoon was a quiet time, when the child would be bathed and given dinner before watching a movie and being put to bed, which was normally between 7.30 and 8pm. For dinner she would normally eat "whatever the adults were eating", which included vegetables, mashed potato and sausages. 51On 2 March, BJP and LB travelled to Brisbane by bus. During the journey, BJP and RW exchanged the following text messages. BJP sent the following text: Well I'm on my way on my journey to Brisie. A little bit nervous but excited. Hope everything's okay. Love you and miss you more than the sky. Xoxo. RW replied to this text saying: Don't stress, enjoy it angel. It will be the last time you have a holiday on your own so please don't worry. [JP] looked after by the best person other than me so stop worrying please for me and [JP] okay. I love you more than words can say. Love Mumma xoxo. 52On 3 March, BJP sent $70 electronically to the accused. On 10 March 2011, she received a text from the accused stating: [BJP] can you please send me $100 and I will pay you back when you get back. I wouldn't ask if I didn't need it. I get paid tomorrow but its not enough. Love you dad and [JP] xoxo. 53On 5 March, RW's mother (LP) was to meet RW at West High Street Radiology in Coffs Harbour where RW had an appointment. LP arranged to meet the accused and the child there so that the child could give RW a gift before RW was transferred to the Royal North Shore Hospital for surgery. 54On 11 March, LP had the child in her care for approximately two hours. She said that the child was well but that the accused told her that the child had nappy rash. She bought cream and applied it. The next time LP saw the child was 16 March, when she again took the child to visit RW at Coffs Harbour Hospital. She also said that she had changed the child's nappy and that the nappy rash had cleared. She again confirmed that the child was well. 55LP also saw the child on 23 March, when RW was discharged from hospital. She said that the accused and the child were waiting on the verandah of RW's house. She said that the child was excited to see her grandmother and also that she was "really happy to see everyone". She said that the child was "her normal toddler self". She said that the child and the accused stayed at RW's for approximately half an hour. 56LP returned home on 24 March. She did not return to Coffs Harbour until 30 March, when she visited the child in hospital. 57Whilst in Brisbane, BJP said that she found accommodation for herself, LB and her daughter. She described the premises as a large house where two other families were living. She would have lived in the granny flat in the backyard, which included a bathroom, lounge room, bedroom and kitchen. She said she believed it would be a safe environment for her daughter. 58BJP confirmed that whilst in Brisbane the accused called her on a number of occasions and she would then speak to the child who she said sounded happy. When she returned to Coffs Harbour, she said that the child's locution had improved, and her ability to form sentences had also improved. She said that she believed the child was happy, had been well fed, and generally well looked after. 59BJP did not see her daughter the night she arrived in Coffs Harbour. LB did not return to Coffs Harbour with her but caught the next bus on the following day. 60Photos and video recordings of the child taken on the accused's phone were tendered in the trial. They depicted the child as responsive and well. The photos were taken on 7 March 2011, and the video recordings were taken on 7, 10 and 27 March 2011 (the latter at RW's home). The evidence bearing on the welfare of the child between 22 March - 28 March 2011 (following BJP's return from Brisbane) 61Whilst in Brisbane, BJP and LB decided they would move there permanently. BJP said she told the accused about the move to Brisbane when she returned and that she was taking the child with her. She said the accused was upset upon hearing this news, as was her mother. She gave evidence that when they returned to Coffs Harbour she needed to organise her relocation, so she decided to leave the child in the care of the accused until they moved. The move was scheduled for 30 March. She said at this time she was living between RW's house and LB's mother's house having terminated her lease with Warrina Refuge, despite the accused offering to accommodate her and the child. She said she refused that offer because she wanted LB with her. RW resided around the corner from the accused. 62During this period BJP gave evidence that she organised a trailer to collect her belongings from storage. She said this took approximately a day and a half. She said she also needed to get her car registered, and in order to do this it was necessary to replace the windscreen. LB confirmed her evidence. She also said she visited friends in light of her planned move interstate. 63BJP gave evidence that she believed she took the child out to lunch or to the park with LB during the week following her return from Brisbane, however she was unsure on which days. She said she saw the child every day, sometimes twice a day, and that she loved to say "good morning and good night" to the child. She described the child as happy. 64RW said that nobody had been living in her house until she was discharged from hospital on 24 March, however she believed (but was not certain) that BJP was at her house when she was released from hospital and returned home. 65RW confirmed that on 28 and 29 March BJP was staying with her. Observations by various witnesses in the days before and the day she sustained the fatal injury BJP's evidence 66At the conclusion of her evidence in chief BJP said that when she bathed the child and changed her nappies from time to time after returning from Brisbane, she did not notice that the child had any unusual bruising (presumably to her buttocks, thighs or abdomen) although she did notice some nappy rash. She said that she noticed a bruise on the back of the child's thigh (she was unable to remember which leg), the size of a 10 or 20 cent piece. She noticed this bruise after she returned from Brisbane, but was not asked when she saw it. 67On 28 March 2011, BJP's 20th birthday, she said that she visited the child at the accused's home for approximately one hour. On this occasion she said she noticed a bruise on the left side of the child's forehead, above the eyebrow but below the hairline. When she asked the accused about the bruise, she was told the child had hit her head on a table in his house. She said she saw the child hit her head in the same spot on the same table whilst running down the hall. She described that incident as follows: I asked [the accused] where [the bruise on the left of the child's forehead] came from and cause he had a table in the hallway of his house, it was a round table, stood about her head height, just in the hallway, she'd run and grab her jamas from the end room at the end of the hallway as she'd come towards the lounge room she had to pass it and she used to run like she was really good and every time she clipped her head on that table and I saw it myself your Honour. She went on to say that the child was "a good girl but she was hypo". 68When asked what she meant by her description of the child as "hyperactive", BJP said that the child had a great deal of energy, in that she loved to dance and sing and jump off the lounge. She said: ... I had seen her bump her head a couple of times. She's getting to the point where she would jump up on the lounge and if you weren't quick she'd try and be Superman and fly off it but, yeah, gravity takes hold but he does have carpet in his house and everything. She was just very unlucky to hit the tiles at the front door that day. 69She said that the table was not knocked over when the child's head hit it, and that she did not think to move the table to avoid another accident. She said that the child said, "I'm a toughie" and "bumped noggin", but was not distressed and did not cry. She described her daughter as "a wild child". She confirmed during cross-examination that she was worried about the child as she was at the age where she was "testing her limits". She said that the child was "a toughie" who would not be bothered if she fell over or bumped herself. She agreed that the child was a handful, however denied that this was one of the reasons that she left the child in the care of the accused upon her return from Brisbane. BJP said she also noticed a scratch on the child's forehead, "I noticed the one big bruise and the little scratch on the other side". 70On the question of whether the child had been seen to climb onto the pram, Ms Yehia took her to her statement of 31 October 2012 which provides: Detective Howe has asked me whether I have seen [JP] climb onto the pram in any way. I remember at least one time when she did climb onto the pram. I can't remember whether it was at [the accused's] or at [LB's] mum's. I never saw [JP] climb onto the pram and make it start to tip over. Climbing on the pram is not normally something [JP] would do. She would mostly do anything to get out of the pram. I don't remember telling off [JP] for climbing onto the pram at [the accused's] place ever. There was never a time that [the accused] needed to put the pram into [JP's] room because she was climbing onto it. I don't think the pram would fit in there. 71She maintained that she did not remember seeing the child fall off her pram, but said that the pram was normally parked near the front door. 72BJP confirmed that she spoke to police on a number of occasions, and she was often asked by them about the relationship between the accused and the child. 73In her interview on 2 April 2011, when asked about other areas of bruising on the child she said: ...I know it's definitely there cause you guys, why would you lie to me, but I just - I don't understand how or why for the fact that I see them together and they are that happy and, you know, he'd protect her with his life. He'd die for her and he's a mess at the moment. 74She also said to police: I just can't see him doing anything like this to her. Like when I saw them playing it puts a smile on, they were so happy together... 75She was also asked by police about the abrasion on the right side of the child's head. She responded: I'm not exactly sure where the gash on the right side of her head came from but it looked like a corner of a table or it could have been from the park. 76Ms Yehia put to BJP that there was an occasion after her return from Brisbane where she "smacked the child really hard", and that the accused subsequently confronted her about it, which she denied. 77In October 2012, BJP was shown the pre-mortem photographs of the child by Detective Howe, and he asked her to mark the photographs which disclosed the injuries of which she was aware prior to the child sustaining the fatal injury on 30 March. 78She confirmed that she had seen the bruise to the left side of the child's forehead and the scratch on the right (photograph 2648) which she said she saw on 28 March and which she believed occurred when the child hit her head on a table at the accused's residence. However she did not circle the other marks on the child's forehead, which she said she noticed at the hospital. She said that she was not responsible for the bruises and did not know how they occurred. 79She said that she had not seen or done anything to cause the red mark in the child's right eye (photograph 2643), or the red area of discolouration behind the child's ears (photograph 2630). Again she confirmed she did not cause these injuries. 80She said that when she bathed the child she did not notice any injuries other than the bruises on the forehead and the back of the thigh. In respect of photographs 2665 and 2666, which depict the child's thigh and buttocks area (both of which show significant bruising), she said that she had not seen these marks, did not cause them herself and did not know how they were caused. She said the first time she had seen these bruises was in October 2012 when she was shown the photographs. 81Photograph 2679, depicting a small coin-sized bruise on the back of one of the child's thighs, was circled by BJP. She confirmed that she had noticed this bruise before 30 March and said that the accused told her that the child had fallen off the lounge. LB's evidence 82LB gave evidence that he noticed a bruise on the child's forehead when he saw her at the accused's home on 29 March 2011, however he could not recall on which side of her head. He said that the accused told him that the child had hit her head on a "table or bench". He also said that he witnessed the child bump her head inside the accused's premises "a few days before". He said that he did not see any other marks on the child. RW's evidence 83RW gave evidence that on 28 March 2011, when she returned home after being discharged from hospital after surgery, she noticed a bruise on the child's forehead. She said she asked her daughter about it and was told that the child had bumped her head on the table or a piece of furniture. Other than that she said that the child was in good spirits and was otherwise happy and healthy. She said she believed the mark was on the left side of the child's forehead, but she could not be certain. She did not notice any other marks, bruises or injuries on the child. Dr Robertson's evidence 84Dr Robertson is a medical practitioner in New South Wales and is currently employed as a practitioner at the Coffs Harbour Health Campus. He has a Bachelor of Medicine, Bachelor of Surgery and is an emergency medicine specialist. He has been practising as an emergency medicine specialist for 16 years. 85Dr Robertson noticed bruising across the top of the child's forehead near the hairline which was documented in his clinical notes, however he did not say and was not asked on which side of the forehead this bruising appeared. He noticed bruising to other parts of the child's body which he did not document, but which he considered were in various stages of healing. Following a brief external examination of the child's body on her admission he noted injuries that may have occurred at other times that were all of different ages but since he did not record their nature or location he was unable to give evidence about them. Paul Harmey's evidence 86Paul Harmey has been an ambulance paramedic for 26 years. He noticed bruising on the left side of the child's forehead. He was unable to say whether he noticed the bruising in the pre-mortem photographs just above the left eyebrow and the more substantial bruising located higher up on her forehead, or whether there was bruising in just one location. He gave evidence that on the way to hospital he asked the child's mother about the bruising on the child's forehead and she had explained that the child's head was at a bad height with the kitchen bench, and that the child had bumped into that. 29 March 2011 87BJP described her normal daily routine which she said she adhered to on 29 March. She said this included going into town, visiting the accused and the child, seeing her friends, and visiting her mother and anyone else who needed help. She said she received a text message from the accused on 29 March which read: [BJP] you forgot to give me my change from yesterday. It's my food money love. Love you. Girl you're a woman now. 88BJP said that she and LB visited the child at the accused's home, arriving at approximately 4pm and that she believed they both left at approximately 5pm. She said that they were with the child (and the accused) out the front of the accused's home during the visit, which she described as follows: I think that was the day [LB] brought his guitar cause we were going to sing some songs and say hello to [the child] and stuff. I think we sat out the front and had a couple of cigarettes and smelling the roses in the garden and everything and we were just singing songs with the guitar. 89She said that they were together at the accused's home until she and LB returned to her mother's home where they stayed the night. She said that neither she nor LB took the child away from the accused's home at any time that afternoon. 90This was confirmed by LB in his evidence as follows: Q. So can you remember the time of day, this is on 29 March, that you saw [JP]? A. It was in the afternoon that I went over, some time in the afternoon. Q. Who did you go over with? A. [BJP]. Q. Did you take anything with you? A. I think I may have had a guitar or something, I can't remember. Q. Were you playing guitar at that time? A. Yes I was playing guitar at that point and I always used to take it everywhere with me. Q. An acoustic guitar? A. Yeah an acoustic guitar, six string. Q. Did you sometimes play the guitar for [JP]? A. Yeah she thought it was pretty cool. Q. Did you two sing songs together? A. Yeah, well she tried to sing. Q. So you went over there this afternoon with [BJP]. [JP] was with [the accused] and you think you may have had your guitar? A. Maybe. I remember playing with her in the front yard, running around the front yard with her. We were playing catch and it was pretty cool. 91LB gave evidence that the child was somewhat exhausted after playing catch. When asked by the Crown if the child could talk he answered, "A little bit but not overly great", but said that the child did not complain of feeling any pain on that day. He stated that the child was sad when he and BJP left and that she cried "a little bit". 92LB stated that he noticed a bruise on the child's forehead that afternoon, however he could not recall on which side. He said that the accused told him that the child had hit her head on a "table or bench". He also said that he witnessed the child bump her head inside the accused's premises on another occasion. He said that he did not see any other marks on the child. 93He said he did not do anything to cause the bruising revealed on the photographs shown to him by the Crown, and that he did not know how the injuries were caused. 94BJP said she did not bathe the child that afternoon and she believed that the child was not changed into her pyjamas when she was there, but she assumed she would have changed the child's nappy. She said that she did not notice any injuries on the child other than the bruise on her forehead which she had seen previously. She said that the child did not complain of feeling unwell or of being in pain. She said the child did not have any difficulty running around the garden. She said that the child was sad when she and LB left. 95At the conclusion of her evidence in chief, BJP denied ever doing anything to physically harm her daughter and that she would "protect her with [her] life". She also said that she had never seen the child climbing on the pram as the child did not like it. Further, in the period of 27 March to 29 March she said she did not hit, punch or slap the child and during the same period had not left the child alone with LB. 30 March 2011 - The day the child was fatally injured Dr McClure's conversation with the accused at 9.46am 96Dr McClure practices at a medical centre in Coffs Harbour. As at March 2011 he had been the accused's general practitioner for three and a half years. The accused was assessed by him as being overweight and unfit. A diagnosis of emphysema by a colleague was reviewed by Dr McClure but not confirmed. He agreed, however, that it was a "physical challenge" for the accused to attend the medical centre. As at March 2011, the accused was prescribed Antenex (a benzodiazepine, also prescribed as Valium) and Pristiq (an antidepressant) in 50mg doses which, in combination, addressed a diagnosed anxiety disorder. 97Dr McClure gave evidence that there were two alternate procedures for the prescribing of medication to established patients. One involved the patient attending upon a doctor in the consulting rooms, and the alternate procedure, where an established patient simply required a repeat prescription to be issued, involved the patient speaking to the doctor by telephone after which the prescription would be left for collection at reception. The telephone attendance was not always noted in a patient's medical file, but it would be noted as a prescription issued on the computer file maintained at the medical centre. 98Dr McClure gave evidence of receiving a telephone call from the accused on the morning of 30 March 2011. (Other evidence timed this call at 9.46am.) He said the accused requested a repeat prescription for Antenex to be faxed through to a Soul Pattinson chemist in Coffs Harbour. Although Dr McClure's notes do not record the terms of that telephone attendance, he gave evidence that the accused said something to the effect that, "Something terrible has happened". He also gave evidence that despite breathlessness, agitation and some incoherence being features of his previous dealings with the accused when he was exhibiting symptoms of anxiety, on the morning of 30 March they were evident in a more exaggerated and acute form. 99In cross-examination, he agreed that while he was not able to be certain that "Something terrible has happened" were the precise words that the accused used, it was words that were close to those words and that they conveyed to him the same meaning. He agreed that in ordinary circumstances, without a note in his clinical records, he might not have recalled a patient making a comment of that kind, however in circumstances where, in a further telephone attendance with the accused on 4 April and a personal attendance on 15 April, he learnt of the child's death, the accused's earlier comment was fixed in his mind. He also agreed that he had not volunteered to police that he had spoken with the accused on the morning of 30 March 2011 before making a statement to police in December 2012. Whether he should have contacted police earlier and the reasons for his failure to do so were not explored in cross-examination or re-examination. 100Under cross-examination, when it was put to him directly that the accused did not present any differently over the telephone on 30 March than in Dr McClure's other dealings with him as a patient and, in particular, he did not display any symptoms of acute anxiety, Dr McClure disagreed and maintained that in his estimation, the accused was "more anxious that day". He also gave evidence that he had the impression that the accused may have been tearful, but over the telephone he could not be sure if he was crying. 101He gave evidence that he would expect the Antenex (which was administered by the accused on a "needs basis" when anxiety to some degree was experienced) would take effect within 20 or 30 minutes and, after the medication took effect, that those symptoms would lessen, although they would be unlikely to resolve completely. Carmel Maione's dealings with the accused at 10.01am (when the Antenex was dispensed) and for some minutes before that time 102Carmel Maione has worked as a pharmacy assistant at Soul Pattinson chemist in Coffs Harbour for approximately seven years. She said she saw the accused and served him on a regular basis. She described his demeanour as quiet but friendly, and as someone who was willing to start a conversation and engage with her. 103Ms Maione described herself as a friendly person, enjoying making customers feel comfortable and accommodated. She considered herself able to judge people's emotions having had experience dealing with a variety of emotional situations as a mother, grandmother and in the course of her employment. Ms Maione gave evidence that she was often exposed to children in the course of her employment. 104On 30 March 2011, Ms Maione recalled serving the accused which, by reference to the tax invoice tendered in the trial, evidenced a cash transaction at 10.01am. (It was not in issue that it was this transaction in which the accused was issued with the anti-anxiety medication prescribed by Dr McClure following the accused's telephone call at 9.46am.) 105Ms Maione said she first saw the accused sitting in the consultation area of the chemist where he was waiting for his prescription to be filled. She said he was with a little girl who was sitting upright in a pram which was beside him, with a raincover over her legs. She said it was a drizzly and overcast day. She said it was the first time she had seen the accused with a child. She said that she could see the child's face clearly and that the child looked upset, with a slight quiver in her lips. Ms Maione said that she tried to start a conversation with the child without success. Ms Maione also gave evidence that she attempted to have a conversation with the accused about the child, which was also unsuccessful. She said she thought that was unusual as the accused was usually a friendly and conversational person. Ms Maione's words to the accused were, "Oh you've got a little friend with you today", to which he did not respond. As the accused and the child left the chemist, Ms Maione said the child gave her a small wave and a half smile. The accused did not say anything to Ms Maione as they left the chemist. 106In cross-examination by Ms Yehia, Ms Maione confirmed that the accused and the child would have been in the chemist for a minimum period of fifteen minutes before the prescription was filled and paid for. Ms Maione also confirmed that during the time that the accused and the child were in the chemist she was serving other customers, although it was not a particularly busy day due to the weather. She said the child was not distressed or crying, but that she simply looked sad from her facial expression. Ms Maione stated that the child looked at her when she waved. 107I accept both Dr McClure's evidence and Ms Maione's evidence as accurate and reliable. The call at 10.21am 108BJP said she was asleep at her mother's when she was awoken by a call on her mobile phone from the accused informing her that "[JP] has had a stack" and to "come as quick as possible". (It was common to both the Crown case and the defence case that this call was made at 10.21am.) 109RW gave evidence that she was speaking to her father on the phone when she heard her daughter's phone ringing. She said that BJP and LB then "bolted out the door", slamming it on the way out. They did not say anything to her when they left. 110After receiving the phone call from the accused, both BJP and LB gave evidence that they ran around the corner from RW's house to the accused's house. BJP's evidence was: Q. Who got there first of yourself and [LB]? A. [LB] is faster than me plus he can jump over the front fence. LB's evidence was: Q. Do you remember that call? A. Yes. The next morning we got woken up to a phone call and [BJP] said that [JP] was hurt so we ran over to [the accused's] place. ... Q. Just tell us what you remember when you got to the front of [the accused's] place, what happened? A. I jumped over the front fence, went inside and I seen [JP] on the lounge. Q. Were you told anything at that point in time by [the accused]? A. As we've come in, [the accused] told us that she fell off the pram so I've gone over to [JP] and looked to see if there was any marks or anything and then I thought she had a concussion. LP's diary entry for 3 March 2011 but written by her on 8 March, was as follows: ...[RW] said she was on the phone to her father when [BJP] and [LB] flew out the door. [LB] lept over the railing out the front... (There is a gate in the cyclone fence which opens onto a short path to an open verandah to the accused's unit. The question why there was any need to jump over the fence and not open the gate and take the few steps to the front door was not explored in the evidence.) 111When they arrived, BJP said that the accused was standing at the open front door behind the screen door which was closed. 112When she went inside, she noticed the pram was on its side and a speaker was tipped over next to the front door and that her daughter was lying on her back on the lounge. She noticed LB was attending to the child (having entered first) and was attempting to get a response from her by blowing on her face and getting her eyes to follow his fingers. LB said that the child was not responding despite his best attempts, and that her eyes "were rolling and she wasn't in a real good way". LB said he was completely focussed on the child and therefore unaware of what the accused was doing. He did recall that the accused told him that the child fell off the pram. 113BJP described the positioning of the pram and the speaker in her evidence. She said the pram was tipped on its side next to a cupboard by the front door, and the speaker was on the carpet lying in front of the door, pointing towards the pram and positioned very close to it, however she was unable to say if the speaker was face down. BJP confirmed her description of the location of both items in accordance with the line drawing she provided to police on 31 October 2012. LB also described the positioning of the pram and the speaker. He said that the pram was on the carpet near the front door on its side with the back wheels positioned near the cupboard. He also said he remembered there was a speaker on the ground, however he could not recall where it was. (While at one time in the trial the positioning of the two items by BJP and LB relative to where the accused positioned them in the walkthrough appeared to be of some significance, in the result such discrepancies as might be thought to exist in their relative positioning did not assist me in resolving the question whether the Crown had excluded the possibility that the child fell from the pram.) 114BJP said that the accused was pacing around the lounge room. She said that the accused had told her that he was in the toilet and had left the child to watch "Thomas the Tank Engine" when he heard "a thud" and found the child lying on the tiles with the pram on its side. She said she understood that he came to the conclusion that the child had fallen off the front of her pram but that he did not see the fall. She said that the accused repeated this account. 115Both BJP and LB said they believed the child had a concussion and, for that reason, LB tried to keep the child awake. 116BJP said the child was sweating, making strange noises, moving her limbs (feet) and her eyes were rolling in the back of her head. She said that the child would focus on LB's fingers for a short period of time before losing focus again. BJP believed the child to be slipping in and out of consciousness. The delay in calling the ambulance 117The ambulance was called by BJP at 11:31:51 and arrived whilst she was speaking to the 000 operator. The recorded call was in evidence. 118BJP said that she called the ambulance because she noticed the child's hand was "in a claw". She said she was given a direct number for the hospital by the accused which she rang, however she was told to call 000, which she subsequently did. BJP said that the ambulance arrived very shortly after it was called. She said that when the ambulance arrived, the pram and the speaker had to be moved to allow access for the stretcher. 119When asked why it was approximately an hour before the ambulance was called, BJP stated that she and LB were attempting to keep the child awake, and that she was in shock and as such was not thinking clearly. In my assessment, despite the patent seriousness of her daughter's condition, BJP neither sounded anxious, agitated or even particularly worried in the course of speaking to the 000 operator. For reasons I will expand upon later, I found BJP's demeanour as a witness generally unsettling and the contemporaneous record of her reaction to the realities of the situation in the 000 call difficult to interpret or understand (consistent with her evidence or the evidence of her mother). 120BJP said she did not remember whether she spoke to her mother whilst at the accused's premises, however RW said that she remembered calling BJP's mobile phone and speaking with her. In cross-examination Ms Yehia took BJP to answers she gave to police when questioned on 2 April, where she said that she did not speak to her mother at all on the morning of 30 March and that they met later at the hospital. Ms Yehia then showed BJP the index of telephone calls made on that morning (Exhibit N2), which BJP could not explain. 121RW was shown Exhibit N2, a record of the five phone calls (items 4 to 8) made from her phone on 30 March to the accused's mobile phone. After the phone call at 10.21am from the accused's phone to BJP's phone, the calls between RW's phone and the accused's phone are tabulated as follows: 4 10:46:08 0 seconds 3 mins later 5 10:49:15 40 seconds 3.5 mins later 6 10:53:24 387 seconds [6½ minutes] within seconds 7 11:00:36 384 seconds [6½ minutes] about 10 mins later 8 11:15:37 0 seconds The 000 call to Emergency Services was placed at 11:31:51. 122RW gave evidence that she only remembered, with certainty, speaking to BJP once before going to Coffs Harbour Hospital. RW said BJP told her in that call that the child was "limp", that her eyes were rolling in the back of her head and her hands were clenched. RW said that she told BJP to "get off the phone now and ring the ambulance ASAP". (There are no telephone records which corroborate RW calling her daughter on her mobile phone. There are however multiple calls to the accused's phone between 10.46am and 11.15am as tabulated above. Although it was not put directly by either counsel, I proceed on the basis that BJP did not take her phone when she ran from the house, but used the accused's phone to speak with her mother. She did use the accused's phone when she called the ambulance.) 123RW said she had another conversation with her daughter, however she could not remember if that was when they were at the hospital, or whether it was on the phone that morning. (She did not give evidence of what was said.) She said she did not remember making the phone calls to the accused's phone recorded on Exhibit N2 (as set out above) nor did she remember speaking to him. She said she remembered speaking to LB briefly over the phone and that he said that the child was on the lounge and was not responding. She also said she asked BJP to hold the phone up to the child's ear to see whether she would respond to her voice. When questioned she seemed to be uncertain as to whether any or all of these conversations were the subject of the two six-minute calls at 10.53am and 11.00am. She could offer no coherent explanation for the calls or their content and no explanation for why there was a delay of over an hour before the ambulance was called given her evidence that she insisted that it be done as a matter of urgency because of her concern about the child. She also confirmed she told police that she said to her daughter, "Ring the ambulance now. Youse haven't got time to muck around". 124LB did not remember the ambulance being called but he thought the period of time from when he arrived at the accused's premises to when the ambulance was called was "only five minutes". When the Crown asked him to explain what was in fact a delay of over an hour, he said that he "didn't understand [the delay]" and that he was focussed on the child and did not realise how much time had passed. At Coffs Harbour Hospital 125Only BJP went in the ambulance with the child. LB, the accused, RW and LP met her at Coffs Harbour Hospital. Only BJP travelled to Sydney with the child by air later that night. LB, RW, LP and the child's father travelled to Sydney by road/rail. The accused did not travel to Sydney. 126RW said she spoke to the accused at the hospital about that morning, where she said he told her: ...he actually placed [JP] on the lounge where she normally has her breakfast every morning with her show and watches at a certain time every morning, it was at a precise time and he goes to the toilet...and he heard a loud bang and a crash and he said he...bolted out and he said that Peanut had hit the tile - her head had hit the tiles and the pram was on top of her. (emphasis added) 127She was then asked by the Crown if the accused offered any explanation for the pram being on top of the child. She said that the accused said: ... that [JP] must have played with it at some time from the day before to that morning and she must have unlocked the locks for some reason while he was on the toilet, she decided to get off while she was eating her breakfast, she put it to one side and she went to get on the pram to get into it and the front of the pram, the part that locks on, came off and she went back and hit her head and the pram ended up on top of her. 128Later that morning, whilst still at the hospital, RW asked the accused to wheel her to see the child and he said, "No I don't want to, I couldn't, I don't want to go down, I don't want to see her". She repeated her request and he obliged. His reaction upon arrival at the hospital, according to RW, was that he cried and said "poor Peanut". 129BJP said that at 20.41 on 30 March 2011 she received a text message from the accused stating: [BJP] if you can try put that money in early so I can do some food shopping. How is my peanut going? Try not to worry to much she is in good hands and Our Lord God is watching over our [JP] so have faith. Love you very much my love Dad xoxo. The accused's accounts to police 130In assessing the weight to be afforded the accused's accounts to police in the ERISPs, I am conscious that each is unsworn and not subject to being tested in cross-examination. I proceed on the basis, however, that the interviews are a possible version of the events of 30 March (and the three weeks preceding it), and that they include an account of his relationship with the child, and the child's mother, which is entitled to some weight in the context of the issues raised at trial and the way the Crown had mounted its case. ERISP 1 131The accused was first spoken to formally by police at Coffs Harbour Police Station at 9pm on Friday 1 April 2011 in connection with what he was told was an inquiry into the child's physical injuries. Apparently the police resolved to withhold from him that the child had died at 6.50pm that evening. 132His account of what happened on 30 March was, in summary, as follows. 133In accordance with their established morning ritual, which he said was adhered to "religiously", the child was given Weet-Bix for breakfast after which she watched cartoons. He then washed out the breakfast bowl before going to the toilet. Later in the interview he referred to going down to the chemist to get medication and also going to the park as part of his morning ritual but said he did not leave the house on 30 March. Other evidence established that the accused was maintained on a methadone regime where he collected a 20 ml dose plus "two takeaways" on Mondays, a 20 ml dose on Thursdays, and a 20 ml dose plus "two takeaways" on Fridays. He did not in this interview (or on any subsequent interview), inform police that he had called Dr McClure at 9.46am for the purposes of having a prescription for anti-anxiety medication available for issue to him as a matter of some urgency at the chemist that morning, or that he left his premises to collect it. 134He then told police as follows: ...I'm on the toilet, I hear a bang, I bolted out, mate. She's on the floor, I pick her up, I move the chair, the pram out the way, 'cause it's tipped over. I picked up [JP], put her on the lounge, and straight away rang BJ. And the ambulance, straight away. So I can't say I saw the accident, cause I was on the toilet, mate, you know. 135Shortly thereafter, in the course of repeating that account, he said when he came out and saw the pram he moved it and then "pressed speaker down". He also confirmed that when he went to the toilet, the child was sitting on the lounge. When asked how long he was in the toilet before he heard the thud, he said he did not know, "...two minutes. Minute, two minutes". He described the sound he heard, "Like a door, door hit or something". He went on to describe the sound he heard as, "Sort of like a steely plastic ... that's all I can say". Upon further description of the thud he said, "...you know, like punching someone in the face", and later as "a sound you don't want to hear, OK. It just sounded like a mad punch in the face, you know". 136He told police that the previous day when the child's mother was present, the child was playing with the pram and that it had tipped and rolled over. He described the child being at the front of the pram playing with a doll trying to strap it up, and that she was swinging from the front bar and the pram lifted, and that BJP reprimanded her by saying, "No, yuckies". He further described the child as, "standing on the top bar and pulling the thing, tipping the pram up". He ventured the view that that was what happened to cause her to fall backwards on 30 March, and that she must have struck her head in the fall. When asked whether he had seen the child climb on the pram on any other occasion, he said he had not but he said that he had noticed her stand on the pram and push it with her feet. He went on to volunteer that when the child's mother was the primary carer, the child got "really tied in" (to the pram) because the mother "made out she'd get into things". 137He was further pressed by police as to the location of the pram when he emerged from the toilet. He repeated it was "tipped on the side", and that it was "right smack in front of [the child]". He again repeated that he "threw [the pram] out the way, pushed [his] speakers down" in the process of picking up the child. He said that when BJP arrived: ...she seemed to be alright. Like, she was breathing, she was doing fine. And I'm saying, it's Poppy, it's Poppy. And we got a smile out of her. And then she just went different. And then [BJP] said she must be chucking a fit... 138In so far as her eyes were concerned, he said they were rolling back in her head which "spun [him] out ... she's two and a half, and when someone's eyes start, that's not good". 139When he was asked what he had reported to the child's mother over the telephone, he told police that he said, "[BJP], can you get your bum over here, Peanut's stacked it", and that he might have said, "She don't look the best". He said by the time he hung up the telephone, BJP was at the front door. 140He said that LB arrived with BJP and that they were attending to the child before the ambulance arrived. He said there was a mix up in calling the ambulance and he believed that the hospital was called first. He said the ambulance arrived 15 or 20 minutes later and that he met the ambulance officers at the front of his house. He said he told the ambulance that he was in the toilet, heard a bash and came out (in effect, the same account he gave to police). 141He went on to tell police that after being at the hospital, and after the child had been airlifted to Sydney, he came home. He was at home when the crime scene officers attended at 11.50pm on 31 March to execute the crime scene warrant. He said since his mother and sister had passed away his home "hadn't been touched'. He then volunteered, "So if anything went wrong, it'll be there... But nothing [did]". 142He was asked how he got on with the child, to which he responded, "Excellent. Every time she saw him she would say, "Poppy ... and give [him] a cuddle". He described her behaviour in the following terms: She was a good kid. Like I said to [BJP], she's a top kid mate. You know, like at school, she'd be the brainiest kid going, dead set. Her mind just wants to learn and learn and learn, you know ... I taught her so much. I taught her ... some manners. Every time, you know, you give her something, you know, you say, thank you, say, you're welcome... I was quite proud of her, what I done. 143At this point in the interview he became visibly upset, saying that he just wanted to go and see the child. He then went on to say that the child did not cry very much. After he recovered his composure, and on his inquiring of police whether it was true that the child was not expected to live, police informed him that the child had died earlier that evening. His outward display of grief gave every appearance of being genuine and that he was shocked at hearing of her death. 144The police afforded the accused a 15-minute break after which the interview resumed with the accused's continued co-operation. When police informed the accused that the child had a fractured skull, and when he was asked whether he knew how that might have occurred, he said: No mate. The only thing I can think of is when she fell over. It's the only thing I can think of. 145In the latter part of the interview, when Detective Howe asked about the child's health, the accused said: ...she wasn't cheeky, she wasn't, you know. I've got to be honest, [BJP] ... gives her a hard time, she stresses her out, you know. I feel like doing this, I feel like doing that. And I think, she's just being a kid, you know. And when she was with me, she was nothing like that... 146He said that when he was with her in the park the child might stumble in play but she was able to get back on her feet without assistance. He again asserted that BJP regarded the child as a "toughie" and did not need mollycoddling, but that he was softer than that. 147In so far as the bruising on the left side of the child's forehead was concerned, he attributed that to the child bumping her head on the table. He said the bruise was the size of a 20 cent piece. As to what the police described as "small haemorrhages" to the ears, he claimed that the child had those before she came into his care and that he believed they were cockroach bites. When police later informed him that the child had bruising to her inner ear, on both sides, and asked whether he had noticed that bruising he said "No, no way", and that when tying her hair back he did not notice any bruises. (The child's hair was tied off her face in a video from the accused's phone dated 10 March 2011, which were exhibited in the trial.) 148When asked about the bruises to the back of the child's thigh and buttocks, he said: She's got a little toy Roary the Racing Car ... she did have a little fall. But there wasn't a bruise then ... it might've come out afterwards ... And I told [BJP] that too... but there was no bruise there then. 149He went on to say that he did not notice any bruises on the back of her thigh or on her buttocks at all. He said that the fall involving the toy racing car was in the context of stumbling over a pile of toys. When asked when that had happened, he said it might have been "Saturday or Friday, something like that" (that is, 25 or 26 March 2011). He said that the child just "plonked down" onto the toy because he heard the recorded voice in the toy say, "Come on Roary, Go Roary", which happens when the helmet of the toy is hit. He again volunteered that the child was "the happiest kid you'd meet" and broke down into tears. ERISP 2 150On Sunday 3 April 2011, after a recorded walkthrough interview at the accused's home the previous day in which he reconstructed the "accident scene", a further interview was convened at the Coffs Harbour Police Station. As with the previous two police interviews, the accused was cautioned. It was also made clear to him in this interview, as with the previous two interviews, that he was not under arrest and was free to leave at any time. 151At the commencement of the interview, the accused provided police with his mobile telephone which contained pictures of the child together with video recordings of her dated 7 March 2011, tendered in the trial. 152Early in the interview, police confirmed that in an unrecorded conversation with the accused that morning, he had informed them that the day before the accident (that is 29 March), the child had left his home with BJP and LB, information which had not been included in the interview on 1 April 2011. 153He gave the following account. They just come out and just said they were going for a walk down the shop. That was it. And then her and [LB] walked down towards Woolworths way...you know as you leave my front gate? The right way, and then the last I saw of them when they got back and then when they got back I said [the child] had brekkie, ah I mean dinner, and then I put her to bed, yeah. 154He was then asked to give an account of his movements on 29 March, which he did by generally recounting the morning routine after the child woke him by calling out, namely, changing her soiled nappy, and putting her on the lounge to watch cartoons. As to her viewing of the cartoons, he said: ...it's a ritual. She loves her cartoons. Her favourite cartoon is Thomas, she likes Thomas the Tank, Playschool, Roary Racing Car and AB, you know that ABC thing. 155He went on to say that after the morning ritual they played out the front of his home with a ball. He said, "She didn't have any falls or nothing there. It was perfect". When asked what happened after that he said, "She probably would have had lunch, and then I think [BJP] came around". When asked to tell police more about that visit he said that BJP and LB said, "Do you want to go for a walk down the shop? ... and then they walked down the street". When asked whether anything was said as to why they were going down the street he said, "Well [LB] reckons he was missing her and all that, wanted to spend some time with her". He said that the child's mother and her boyfriend arrived unannounced. He went onto say "[BJP] used to pop in and out like a fly" and that although she did not visit every day, she came most days. 156Later in the interview he was pressed by police to detail the circumstances in which the child left with her mother and LB on the afternoon of 29 March. He said they left with the child in the pram, and that the child said, "See you later Poppy" and they turned right onto West High Street. He said he went inside to play a video game. He could not provide a precise time as to when they returned but said they were away for a "couple of hours". When asked an open question as to what happened when they returned, he gave a detailed answer in the following terms: [She] seemed all right. Bugalugs was in her pram, you know, like. For some reason, [BJP] don't like her out of the pram, you know. And I don't believe kids should be restrained, you know. When I first got Peanut, when you got her out of, like she's been in a pram that often, her legs were weak, you know, through being in the pram so often. So when I'd take her for a walk, I'd usually take her by the hand, strengthen up her legs a bit. And then she wasn't as, you know, bumble footed. And Sandy'll tell you the exact same thing, you know... 157When asked again by interviewing police how the child was when she returned on 29 March, he said: I gotta be honest, she wasn't her normal self. She's normally more active and stuff, you know, because she likes to sit on my lap too. A lot of times she'll be sittin' on the lounge, and then all of a sudden she'll run over and sit on my lap, you know...And normally she, like I said, she's like happy go lucky kid mate. But she wasn't that happy. And I just put it down to missin' Mum, you know. That's exactly what I put it down to but...she just wasn't herself...She just seemed sad, or you know she just, just, I don't know. Like I said, maybe because Mum went...They went and she just wasn't herself you know. 158He said that after BJP left, he and the child watched "The Simpsons" after which she was put to bed. He said that the child was talking and walking and she looked alright but felt "a bit warm". He said that he noticed her hair was wet on the sides and she appeared to have been "perspiring...she was really hot". He said that she did not complain of feeling unwell. He said that he always asked her whether she was okay and when she said "I'm okay" he accepted that because, "... a kid feeling sick at the age she is, she would tell you, you know. Cos she was two and a half". 159He said that he did not notice anything different or unusual about the child before she was put to bed other than when he changed her nappy, when he noticed "a little mark on her bum". When he was asked to tell the police more about the mark he said: Just looked like somethin' like, I don't know, she fell over, you know. 'Cause I spose if it was a smack, you'd see a hand mark or, I'd imagine, you know. 160At this point in the interview he referred to the vicinity of the top of the child's thigh, on the right side, approximating the size of a packet of cigarettes. In describing its shape and size he said: ...it was sort of like she's been sittin' on somethin'. Like, you know when you get a pressure point...like a sunburn type colour. 161He said when changing the child into her pyjamas that evening he did not notice anything else, apart from her being: ...quietish...like she wasn't herself...and I just put that down as if she, you know, missed mum, you know. 'Cause her dad and mum have split up and she has got a new bloke... 162He said he did not believe that he had bathed the child that day or that night but she might have been bathed the day before by BJP. 163He also went on to say that when BJP and LB returned with the child he asked her whether she wanted to watch "Thomas the Tank Engine" on a DVD, and that she went into her room and got it by herself. He said LB left, and that he and BJP had a smoke either in the dining room or outside. When he was asked by interviewing police what the child was doing whilst they were talking he said: Well she was watchin' telly and she did go to come in the lounge room. And [BJP] said, No, back on the lounge. And she bolted back in the lounge room... 164He said that before BJP even went away to Brisbane, if anyone went near the child she would flinch as if she was going to be hit, and that he had raised this with the child's grandmother. (RW was not questioned about this in her evidence.) 165Towards the end of the interview, police invited the accused to give an account of what happened on 30 March "from the moment he woke up". He again recounted, in summary, his routine without making any reference to ringing his doctor for an urgent prescription for anti-anxiety medication or leaving the house to collect it. He gave an account which suggested that the child was apparently well, in the sense that she was not upset or distressed. He recounted his loving affection for her and her reciprocal affection for him. When referring to the television program the child was watching before he went to the toilet he said: ...I can even tell you what was on telly. it was...Roary...And oh...There's another show on before Roary. It was... she watches the show before Roary, then Roary, and then she watches Playschool... 166When asked what television station she was watching on 30 March he said, "I don't know, we usually watch ABC or 7 as that's where the cartoons are on". When pressed he claimed that he heard the "Roary the Racing Car" cartoon program and then he heard the bang. He said: ...And honestly I thought it was my speaker, to be the truth, you know. But when I come boltin' out, I, spun me out mate. Like my sister's trying to say she, you know, is there a chance she could have had an epileptic fit? I said, I did not even know she was epileptic until [BJP] told me that day. Because if I knew she was epileptic, I wouldn't have took'n that kid on, mate. Because she had no real medicine, no nothin' with her. And if I knew she was epileptic, there's no way I'd, mate, I wouldn't be here now, put it that way. 167He was asked how long after BJP and LB arrived was an ambulance called to which he responded, "I've still got it on my phone". He was asked without looking at his phone whether he could say how long before the ambulance was called to which he said: ...Well I told [BJP], I said, There's my phone, ring the fuckin' ambulance... and then she rang the ambulance...It'd be a couple of minutes mate. But wouldn't be no more than 10. So. But like I said, if it was my baby, the ambulance would've been called straight away, you know. 168When asked why he did not call the ambulance he said: Well like I said, I didn't know what the fuck was goin' on, mate, you know. That's why I got [BJP] there. [BJP's] the mother, she knows everything about the baby. ... Yeah she was in my care. I, well, I freaked out, mate. I picked her up and put her on the lounge. 169Later, when asked again why there was a delay in calling the ambulance (the accused having accepted, apparently from information provided by another police officer, that there was in fact a delay, although I do not understand he was informed of the length of the delay), the accused said: Because [BJP] was the one lookin' at her and saying she was havin' a fit. And I'm sayin', Ring an ambulance. Ring an ambulance...there's my phone ring an ambulance. 170The police then inquired of the accused whether he had discussed this matter with BJP or LB, which I understand to be a question directed not to the timing or delay in calling the ambulance but more generally as to the events of the morning. He said that he had not spoken to the child's mother since the night of 1 April 2011 when, after leaving the police interview, he asked her to confirm that the child had actually died. He said BJP said: ...Yeah, yeah, yeah, it's true. You know, it's not your fault, Dad...And I'm saying, Look, I'm just worried about [the child]...I just couldn't believe it, mate. It was just, the way I was talkin' to her, it was [as] if it was a fuckin' weight off her shoulders... 171When asked the direct question whether the child's mother could have been responsible for what the police described as "the injuries" to the child he said: I can't, look, mate, I can't sit there and say yes, I can't say no, OK. Simple as that. 172When police suggested to him that he had "an option" he said, "From the way I think [BJP] is, I think there could be a chance". Then the following exchange occurred in question and answer form which I set out in full: Q: What makes you say that? A: Well, cause you know, she'd got cuts on her and different things, and she has had a troubled life, and you know. Q: Yeah. But I'm asking you, if you think that the injuries that [the child] had were caused by [BJP]. It's a simple question. A: Yeah, I know what you're saying, mate. And I can't give you a decent answer there. I really can't. Q: Have you spoken to [BJP] ... A: About the thing ... Q: ... about ... A: No, I haven't mate. Q: ... those injuries? A: No mate. Q: After [the child] was taken to the hospital ... A: But from ... Q: Yeah, go on. A: But from what her mum said, and with all the phone calls, and this, that, and the other, you know, it's a possibility, you know. Q: How could it be a possibility if [the child] was in your care? A: 'Cause she's, oh, I don't know. Q: When could it have happened? A: That's what's got me stumped, mate. I don't know. 173The interviewing police officers concluded the interview by saying the following: Let me say on the record, that if you are covering up for [BJP] or [LB] or [AH] or [RW], now is your opportunity to come forward with the truth. Because...if you don't... it won't do you any favours. You need to look after your own interests. 174The accused replied: Yeah mate, this is my life hangin' on the line here, you know. Like, far out. You know... I'm 45. I haven't been in trouble all these years. Why would I start now, you know? 175When he was pressed again by police to accept that the injuries that the child had sustained (which I interpret to be not simply the constellation of injuries to the head but the injuries to other parts of her body) were not consistent with his account of the child falling backwards from a pram and hitting her head on the tiles, he said: Well, like I said to you, I wasn't, I did not see the accident, mate. It's as simple as that. I heard, I didn't see, you know. So fuckin' anything could've happened. 176At the conclusion of the interview, when asked whether he had ever had reason to smack or assault the child, he said: ...No mate, no. In front of Sandy, right, in front of Sandy, I've gone you know, if you're ever gonna... punish a child, I believe you should go like that, and explain what's wrong or right. And Sandy'll tell you that mate 177When asked if he did that to the child he said: No. No, I'm just saying, if I was ever gonna punish a person. There was no reason. She was a top kid. [BJP] made out she was, you know, a real handful...She was the most easiest kid you could get along with...she was pretty top notch. 178When asked whether he had seen anyone else assault the child he said: Yeah I've seen [BJP] hit her...it was just a smack, you know. I didn't see it, I heard it. 179When asked when that was he said, "I reckon a week, two weeks ago, something like that", and that it happened at his house. He said he heard it: ...And I come out and saw [the child] cryin'. And asked [BJP] what had happened. She goes, She got in trouble. And that's all she said. 180He said the child was crying. When pressed about that incident as to whether that was the only incident he had witnessed he said: Yeah. But I think you'd probably get more out of [RW] mate...Because she has, like I said mate...you know, [BJP's] 'skitzing out' and now she's doin' this, she's doin' that, you know. I think a lot of people will tell you that mate. The medical evidence 181Although the accused was not charged with any offence relating to the injuries not directly attributable to the cause of death, the Crown case was that most, if not all, of the secondary injuries were inflicted injuries, and inflicted by the accused within 24 hours of her sustaining the fatal head injury and more likely to be in a much more confined time frame. The Crown relied substantially upon the evidence of BJP (and to a lesser extent LB) to establish that none of the secondary injuries could have been inflicted by anybody other than the accused, given their evidence that the child was left in his sole care at 5pm on 29 March 2011, and that she was, according to their evidence, active and well when they left. 182The Crown also submitted that were I satisfied that the accused inflicted the secondary injuries, this was strongly probative of his guilt on the murder charge because it rendered his claim that the child was accidentally injured not simply improbable, but capable of supporting a finding that he was the person responsible for the infliction of the fatal injury to the criminal standard of proof. 183At the conclusion of final addresses Ms Yehia submitted that were I to use the secondary injuries (or any of them) in the way contended for by the Crown, they constituted an intermediate step in the process of reasoning to a conclusion of guilt beyond reasonable doubt, and in accordance with Shepherd v R [1990] HCA 56 HCA; 170 CLR 573, I would need to be satisfied beyond reasonable doubt that those injuries (or such of them that were not capable of being explained by accidental means) were inflicted by the accused before I could use them in that way. The Crown submitted that rather than being indispensable links in a chain of reasoning to guilt, the question whether the secondary injuries (or some or most of them) were inflicted injuries is simply one of the pieces of circumstantial evidence which, together with the other evidence relied upon by the Crown, compels the conclusion that guilt has been established beyond reasonable doubt. The Crown submitted that the question whether the secondary injuries were links or strands in this sense is tested against what the Crown identified as the other evidence upon which it relied in supporting the inference of guilt, namely: The lies were told by the accused with consciousness of guilt, which necessarily involves rejecting the accused's account of the events of the morning of 30 March; and The related fact that the fatal injury must therefore have been inflicted by him as he was the only person with the opportunity to do so given Ms Maione's evidence that the child was conscious and responsive at 10.01am. 184Reasoned in this way, the Crown submitted that the accused's infliction of the secondary injuries was simply another source of evidence from which his guilt is open to be proved without it being an indispensable link in a chain of reasoning to that conclusion. 185If the secondary injuries are to be properly regarded as an indispensable link in a chain of reasoning to guilt, it follows that if there remains a reasonable doubt that the accused was the person who inflicted them, I must disregard them as evidence from which I would be entitled to infer that the accused inflicted the fatal injury in the way contended for by the Crown. Even if the secondary injuries are to be treated by me simply as part of the complex of evidence from which the accused's guilt should be inferred and not an indispensable link in reasoning to that conclusion, I nonetheless consider it essential that the evidence which identifies the accused as the person who inflicted them, is both cogent and reliable. Unless the other pieces of circumstantial evidence relied upon by the Crown resolve or satisfactorily address any concerns about the cogency and reliability of the evidence to prove that fact, I consider it would be dangerous for me to reason to guilt in reliance upon it. 186The related issues of when the child might have sustained the secondary injuries and, if they were inflicted injuries who inflicted them, gained considerable traction in the evidence of the lay witnesses (the child's mother in particular). I accept that where a child with a fatal injury presents with a range of unexplained secondary injuries a high index of suspicion of a non-accidental cause from a clinical perspective is raised. In order to ensure that in this case that did not overwhelm the question as to whether an accidental fall could be discounted as a reasonable possibility in this case, Dr Duflou and Dr Norrie were invited by me (without objection by counsel) to consider whether the injuries identified as directly associated with the cause of death, might be explained by an accidental fall of the postulated kind. For the purpose of that exercise, they were invited to discount the secondary injuries to the left side of the child's head (potentially incorporating the left ear), the extensive bruising to the forehead revealed on reflection of the scalp, and the deep bruising to the buttocks and thigh. 187Whether the postulated but unwitnessed fall from the pram could reasonably account for the location and severity of the fatal head injury was the subject of close consideration and analysis from each of the medical witnesses. The treatment of the fatal injury pre-mortem and the identification of the injury post-mortem 188On arrival at Coffs Harbour Hospital the child was intubated and a CT scan was performed. At approximately 10pm she was airlifted to the Children's Hospital at Westmead where she was admitted under sedation to the paediatric intensive care unit, where she was ventilated and intubated. 189The child was examined by Dr Norrie on 31 March 2011 after she was referred to the Child Protection Unit for an assessment of the physical harm revealed on her admission. The child died at 6.50pm on 1 April 2011. 190On 31 March an MRI Angiogram and an MRA of the neck were performed. The extent of the head injury revealed by these procedures was later confirmed on post-mortem by Dr Duflou and by Dr Rodriguez. Dr Rodriguez performed a neuropathological examination of the child's brain at Dr Duflou's request. Dr Rodriguez also examined the child's spinal cord and eyes. 191In so far as is relevant to the head injury which was causative of death, the following injuries are of significance: (a) A left occipital linear skull fracture (without comminution) extending from the posterior margin of the foramen magnum (the opening in the occipital bone through which the spinal cord leaves the skull) extending, superiorly, within the occipital bone, crossing to the right of the midline and extending into the right parietal bone with associated swelling over the fracture site. Although minimal extradural bleeding was associated with the fracture site, Dr Rodriguez noted that epidural and intradural haemorrhages underlined the fracture line. The spinal cord showed no abnormalities. (b) Extensive brain changes consistent with excess fluid within the brain associated with the death of brain tissue with hemispheric infarction on the left and watershed type infarction on the right, the distribution of which involved the anterior cerebral artery. Dr Duflou described the brain as markedly swollen. In Dr Rodriguez's view most of the changes in the brain are a consequence of cerebral swelling with hypoxic/ischemic encephalopathy resulting from a space occupying lesion in the form of an acute subdural haemorrhage of significant size. While Dr Rodriguez attributed most of the axonal injury in the cerebrum to be of ischemic origin, he also identified diffuse (traumatic) axonal injury. He could not exclude a fall as a possible explanation for the axonal injury. Petechial haemorrhaging in the brain stem was also identified. (c) Subdural haemorrhages over multiple surfaces of the brain, including both cerebral hemispheres, with relatively more blood on the left. (d) Bilateral, multi-layered retinal haemorrhages (involving the superficial and deep layers of the retina) and extending to the optic nerve with retinal detachment in both eyes. Dr Duflou 192In his preliminary report of 4 April 2011 Dr Duflou came to the following conclusions in so far as the child's head injury was concerned: The fracture of the skull, subdural bleeding and brain swelling are indicative of a significant amount of force applied to the head. Most likely there has been at least one impact to the back of the head which has resulted in fracturing in that region. 193In the same report, Dr Duflou concluded that the multiplicity of bruises to the head was inconsistent with a simple fall from the pram since, in a fall of that kind, he would have expected the injuries to be limited to one area of the head, and not distributed over the front, back and right side of the head and the left ear. He was also of the view that a single blow would not be sufficient to explain the constellation of injuries seen on the child. In his opinion, there were at least three impacts to the head and "potentially many more". In his evidence he accepted that they may have been sustained at different times. He did conclude however that the cause of death was "head injury" with the question whether it was the result of a single or multiple impacts (blows) reserved pending further investigation. 194In Dr Duflou's final report of 4 November 2011, prepared after the detailed neuropathological examination conducted by Dr Rodriguez, and after giving some consideration to Dr Norrie's report of 12 July 2011 (in which she opined to the view that the brain injury might have been sustained in a shaking episode, a view she later abandoned), Dr Duflou confirmed his preliminary conclusions, simply adding, or emphasising, that the distribution, extent and nature of the injuries could not be explained by an accidental fall from an overbalanced pram on 30 March 2011, that being the question inherent in the information provided by police which included the stated fact that, "The deceased's mother saw the deceased on 28 and 29 March, and observed no abnormalities". He also confirmed that the cause of death was a head injury, the extent and severity of which he elaborated upon in his evidence. 195As the issues at trial crystallised, neither Dr Duflou's opinion as to the cause of death, nor his evidence to the effect that a fall from the pram could not explain the constellation of injuries seen on autopsy (an opinion shared by each of the other medical experts who gave evidence), was controversial. As I have noted, what was controversial, and what remained in issue in final addresses, was whether the Crown could discount the reasonable possibility that the fatal injury was the result of the postulated accidental fall from the pram, without recourse to the injuries secondary to the cause of death. Again, in the issues that crystallised at trial, a further matter of controversy was whether it was appropriate and, if so, on what basis I could, or should, leave to one side consideration of the mechanism by which some or all of the secondary injuries were likely to have been inflicted, and when, and by whom, when considering that question. 196In his evidence in chief Dr Duflou was invited by the Crown to focus on the skull fracture independently of the fatal brain injury, and the hypothesis that the fracture was caused when the child fell from a height of between 1 and 1.5 metres, as to which he said as follows: The fracturing is to the back of the head in the occipital region. The occipital bone tends to be one of the stronger bones of the skull and one of the bones most resistant as opposed to fracturing from impact. There is a lot of controversy in terms of short distance falls. My personal view is that short distance falls can cause skull fracture; they can cause significant brain damage; they can, on occasion, kill, but that is a rare outcome relative to the vast majority of short distance falls which have a benign outcome, so without fracture, without brain damage of any significant extent. But I certainly believe that there are circumstances where a short distance fall, especially what is loosely called a complex fall, can result in an impact related skull fracture, especially if the surface that is struck is a hard surface. 197When he was asked to take into account that there was no evidence as to whether the pram was stationary or not when the child is thought to have fallen, or whether her head hit the tiles first in the dynamics of the fall (which were themselves unknown) he said: Yes, and that of course is often the problem that - well, the exact mechanics are almost never filmed and what we need to do is try and infer what might happen on the basis of what we see after an event with an explanation given, and that can be very difficult. In cases I have said previously, not here, if there was a filming of this event and the child did not have a skull fracture and had one after, I would accept that. I wouldn't say, "Well it couldn't have happened that way". It could explain the fracture. Of course, we don't have any film footage but it certainly wouldn't be a matter of, "That is absolutely impossible, I do not accept what I see". I would accept that quite readily, but it is an extremely rare outcome. 198He was then asked whether a brain injury would necessarily result where there is a skull fracture. He said: No, not at all. This case has very extensive brain injury, it has subdural bleeding, it has significant associated brain swelling, it has diffuse external brain injury, and those are significant brain injuries and well in excess of what you would see typically in a child who has sustained a skull fracture from a fall. 199Finally he was asked to consider how the subdural haemorrhages might have been sustained in the hypothesised fall, and gave the following evidence: In general terms subdural haemorrhages are caused by movement of the brain relative to the dural mater and are by far the most common mechanism of that movement is a rotational movement of the head. So in other words if the head is kept fixed and decelerated rapidly, without any movement of the head but a pure deceleration, it's very unlikely that there will be significant subdural haemorrhage type injury. On the other hand, if there's a rotation of some type, and there are many different variations of the rotation, then subdural haemorrhage is much more likely. Now, you don't have one mechanism in isolation of the other one but in this case any sudden rotational movement of the head, I don't know how many times but one or more movements of the head, can cause subdural haemorrhage. Whether that occurred separate from the skull fracture or not, I don't know. It could have occurred at the same time as the skull fracturing, although that is relatively uncommon in a fall situation in a young child to see skull fracture, firstly, skull fracture of the occipital region especially, secondly, and then significant subdural haemorrhage as well with that. But it's on theoretical grounds certainly possible in that on impact with the ground, then there can be a second rapid movement of the head during that impact and such a movement would be more likely in a complicated fall rather than a simple fall. 200Dr Duflou emphasised that a fall, whether complex or not, would not cause a subdural haemorrhage prior to the skull being under impact, irrespective of the rotational forces the body and head might be subject to in the process of the fall. 201The bilateral retinal haemorrhages which were identified by Dr Rodriguez and described by him as reasonably extensive and multi-layered, were regarded by Dr Duflou as "uncommon". While he accepted that they could have resulted from a head injury, whether inflicted or accidental, from his experience, and after his review of the recent work undertaken at the Great Ormond Street Hospital in London entitled "The Prevalence of Retinal Haemorrhages in Critically Ill Children" (2012), he was of the opinion that they are a more common presentation in inflicted injury, although he conceded they were not confined to head injuries sustained in that way. In cross-examination he said: ...my view is that the types of hemorrhages seen and their distribution cannot be attributed to accident versus inflicted absolutely reliably. There's a strong association but there are exceptions. 202He was taken in re-examination to the recent London-based study to which he had referred and confirmed that of the 159 children examined only six presented with severe multi-layered retinal haemorrhages. One of the six was an infant with a traumatic brain injury sustained in a witnessed fall from stairs whilst being carried, and a second was a child involved in a motor vehicle accident. However, as Dr Duflou emphasised, cases of suspected or proven abusive head trauma were excluded from the study. 203In expressing his ultimate view that the degree of force required to produce severe retinal haemorrhages is still an open question amongst experts in the field, Dr Duflou emphasised that where an accidental cause is postulated, their presentation depends, to a significant degree, on the mechanism involved in the accident and, where it involves a fall, the degree of force involved, in particular the rotational movement of the head at the time of impact and the rotational movement of the head (if any) consequent upon impact. In that regard, he gave the following evidence: A. ... I really don't think you'd get anywhere near enough force applied to the force, rotational force applied to the head to cause such injuries. It's once you hit the ground that there's a very rapid deceleration and quite possibly a rotation at the same time. Q. You'd agree that in some instances short-distance falls can cause catastrophic consequences? A. Yes. Q. And by catastrophic outcomes or consequences would that include the type of brain injury that we see in this case? A. There certainly have been rare reports, and I emphasise they are rare, but rare reports of fracture of the skull in any number of locations, subdural haemorrhage and types of retinal haemorrhage, yes, with associated axonal injury as well. Q. So that's reasonably possible? A. It's possible but it is a very rare event. But certainly rare events when they occur 100 percent occur. Dr Norrie 204Dr Norrie considered that fatalities from short distance falls, although possible, occur "very rarely" and in the articles where a large population study of childhood injuries was reviewed, cited in her report, severe head injury from a short distance fall was considered to be "extremely rare". When she was asked in cross-examination to concede that it is "reasonably possible" for an injury to be caused in that way she said: A. ... I can't accept the word "reasonably possible". The Chadwick paper says fatal falls are 1 in a million children from aged 1 to 5, so I'm still struggling with the fatality of the fall and I think "probably" I think rather than "reasonably". I'd have to say it's rare, but possible, but rare, if I can combine those two words, unlikely. Are they the appropriate legal terms to use? Q. Well, you have mentioned three there. You have said "possible", "rare", but then you added something? A. "Unlikely". 205She referred in her report to two cases drawn from the study by G Reiber MD ("Fatal Falls in Childhood: How Far Must Children Fall to Sustain Fatal Head Injury?" (1993) 14(3) The American Journal of Forensic Medicine and Pathology 201-207) of 19 fatalities where the history of a short distance fall was accepted as genuine. In one case, a 21 month old child fell from a top bunk to a carpeted floor suggesting a height of fall of between 1.5 and 1.8 metres. The child sustained an acute subdural haemorrhage accompanied by severe brain swelling but without any associated skull fracture. In the second case, a 17 month old child fell backwards from a rocking chair. That child sustained an acute left subdural haemorrhage, subarachnoid haemorrhage and a left parietal cerebral contusion, also without skull fracture. In that case the fall was from under one metre. In neither case was there any testing to determine whether the child sustained retinal haemorrhages. In re-examination, the Crown took Dr Norrie to the conclusions arrived at by Reiber expressed in the following terms: The height from which children must fall to sustain fatal head trauma is a question that lacks a single, easy answer. One has to consider the possible mechanics of the fall, the age and condition of the child, and the shape and consistency of the contact surface. Correlation of fall mechanics and injury pattern should be considered. The bulk of the studies on head injuries in children, regardless of viewpoint, are based on hospitalized cases. This selects for the most serious cases and is likely to give the impression that fatalities from short falls are more prevalent than they actually are. The conclusion that appears best at this time, with our current state of information, is that, while children on occasion suffer fatal injury from short falls, such events are an extreme rarity. Major injuries nearly always result from major impacts and serious falls. 206In a further study authored by J Plunkett MD ("Fatal Pediatric Head Injuries Caused by Short-Distance Falls" (2001) 22(1) The American Journal of Forensic Medicine and Pathology 1-12) also cited by Dr Norrie, there were six recorded fatalities of infants less than three years of age from falls of up to 1.5 metres, however only two falls were witnessed. In the first case, an infant of 12 months was seated on a porch swing between her parents when the chain broke. All three people fell backwards from about 1.5 to 1.8 metres. The child sustained a right parietal subarachnoid haemorrhage, and a comminuted fracture of the vault of the skull with acute cerebral oedema. In the second case, a 14 month old child was on a backyard seesaw being held in place by his grandmother. He fell backwards, striking the grass-covered ground from a height of 0.6 metres. Although no fracture or subdural haemorrhage was sustained, the child later died. In the third case, a 17 month old child was in a baby carrier swing attached to an overhead tree. The snap on the restraining bar came loose causing the child to fall from an estimated height of 1.5 to 1.8 metres. The child died although no injuries of any particular kind were reported. In the fourth case, a 20 month old child fell from a height of 1.7 metres from the platform of a climbing frame in a public park and struck her head on one of the support posts. She sustained a right occipital skull fracture with subarachnoid and subdural haemorrhage. Extensive bilateral retinal and preretinal haemorrhages were noted. She died two days later. In the fifth case, a 23 month old child was playing on a plastic gym set with her older brother. When straddling a railing 0.7 metres above the ground she lost her balance and fell headfirst onto carpet covering a concrete floor. She sustained a large right-sided subdural haematoma. Again, no bilateral retinal haemorrhages were noted. 207Dr Norrie agreed that the variables bearing on the question whether a short distance fall can result in death include whether the initial velocity is zero, or something other than zero, and the height of the fall. She also agreed that there is an inseparable relationship between the measurement of impact forces engaged in a fall from a biomechanical perspective and the injuries sustained as a consequence, and that it is difficult to attempt to recreate injury sustained in dynamic circumstances. 208She agreed with the conclusions in an article by JP Ehsani et al ("The Role of Epidemiology in Determining If a Simple Short Fall Can Cause fatal Head Injury in an Infant" (2010) 31(3) The American Journal of Forensic Medicine and Pathology 287-298) in the following terms: The question of whether [an injury was sustained in a simple short fall] is a credible claim is inextricably linked to the circumstances of the particular case ... For both medicine and the law, accurate prediction and/or absolute proof of causality applicable to individuals is difficult, if not impossible, in many instances. 209The study to which Dr Norrie made reference in her report and in her evidence extracted at [204] was a study by DL Chadwick et al ("Annual Risk of Death Resulting From Short Falls Among Young Children: Less Than 1 in 1 Million" (2008) 121(6) Pediatrics 1213-1224). Chadwick's findings, where the statistical occurrence of a fatal fall was said to be "one in one million", was a statistic upon which Dr Norrie placed considerable reliance in her ultimate conclusion that the rarity of fatalities from short distance falls rendered it an unlikely explanation for the fatal injuries the child suffered in this case. 210Dr Donald, a forensic paediatrician at the Women's and Children's Hospital in Adelaide, was called in the defence case. Dr Donald cautioned against the bald statistic of "one in a million" being utilised in support of the argument that because short distance falls are rarely fatal, if death does occur, it cannot have occurred in a short distance fall. He said it was important to understand the research undertaken by Chadwick et al and what the research was intended to explore. As he pointed out, on a proper reading of the study, the research was undertaken to support the contention that reported short falls - less than 1.4 vertical metres in height without any additional velocity where a serious injury (including death) is sustained - should be viewed with appropriate suspicion from a clinical perspective. With that objective in mind, Chadwick et al directed their research to enquire into the frequency with which a fatality resulted from a young child falling a short distance is reported. In their population studies, in which, importantly, any suspicious head injuries were excluded, a statistic of one in one million was quoted. Dr Donald expressed the following view in so far as that study was concerned: So the value of population-based studies, in my view, is to make sure that people are aware that they must be suspicious when they see young children with a serious head injury. They must follow a process to make sure that they're not overlooking a child who may have been physically assaulted by someone, but once you move into the realm of assessment of a suspicious head injury, the population of studies no longer have any value. Dr Moran 211Dr Moran, Medical Director of the Child Protection Team at the Sydney Children's Hospital, was also called by the Crown. He gave evidence both as to whether a short distance fall was capable of accounting for the fatal head injury and whether the secondary areas of bruising, or some of them, might have been caused accidentally. 212In Dr Moran's report of 21 August 2013 he observed that the maximum height from which the child could have fallen, were she to have fallen from the footrest of the pram at full stretch, would be approximately 1.45 metres. He observed that the surface onto which the child was alleged to have fallen was tiled. Since the fall was not witnessed, and having no expertise in biomechanics, Dr Moran was not able to offer an opinion as to whether the child could have fallen in the manner described, or if there was any added velocity from the movement of the pram or from the child losing her balance. 213He did however offer the following opinion: An occipital impact onto a non-yielding surface from a height of approximately 1.5 metres, particularly if there was an initial accelerative component, would be associated with high impact and rotational forces. There is experimental evidence which corroborates this view ... Clinical experience in adults with unprotected falls onto the back of the head also supports the view that serious and fatal injury may occur. There is a well described witnessed case ... of a 13 year old with a similar fall from a similar distance who sustained an occipital fracture and who subsequently died... 214He was also of the opinion that the head injuries identified at post-mortem had what he described as, "all the hallmarks of occipital impact" and that the sequence of clinical events, including the observations of Dr Robertson on her admission to Coffs Harbour Hospital, were coincident with a significant injury to the brain stem resulting from a severe primary rotational deceleration injury. This (the traumatic axonal injury) would not, in his view, in itself be fatal. In his view, the rotational injury would also result in the bilateral thin film subdural haemorrhages seen on imaging and at post-mortem, and that the greater degree of brain swelling on the left side was presumably due to primary impact trauma on that side. 215Ultimately, in his report Dr Moran expressed the following opinion: It is not possible to distinguish between primary accidental and inflicted head injuries based on their appearance. One has to examine the circumstances of the injury to see whether there are irreconcilable inconsistencies in some aspect of the presentation which would heighten the suspicion that the story was untrue. As the postulated event was unwitnessed all that one can say is that this degree of injury, while it would be rare, could occur under the most extreme of the circumstances outlined if it could be shown that such a fall were possible. It goes without saying that any other kind of impact, such as a blow, were it delivered with the same amount of energy, could result in a similar outcome. 216In his evidence, he offered the following further contribution to the question whether the constellation of head injuries might be potentially explained by the postulated fall in the following terms: A. I think there are two concepts here, your Honour. There's an epidemiological one, in other words, how frequently do these sorts of injuries occur under the circumstances outlined and then there is the biomechanical one. Is it possible that under the circumstances outlined that it could have the result that we see here. I think the answer to the first, the epidemiological one, is that it is rare, very rare, but that doesn't necessarily mean that it wouldn't happen. And from - I think from a biomechanical standpoint if you look at the worst case scenario here, then I think I would accept that it is possible that these injuries could occur under the circumstances outlined. Q. And when you talk about the biomechanical configurations, you are, I assume, postulating that the pram moved under some acceleration or speed or force and that the child was also for that reason thrown or fell under some force with a rotational movement of the head not so much through the area in the path of the fall but on impact with the tiled surface, is that what you talk about when you talk about the - A. Well, your Honour, I am not sure whether or not there was any movement of the pram, I don't know the answer to that. But I think that even if there weren't - if there were, it would add velocity to the impact. If - even if there weren't, I think that a straight fall on to the back of the head on to tiles, one could reasonably expect that you would have very high impact velocity which would cause a severe rotation of the brain within the skull causing all of the injuries that we see, and of course, the impact causing the fracture as well, and my view would be that the impact would be so severe that one could reasonably expect to see retinal haemorrhages of the degree that we see here. Biomechanical evidence 217Professor Pandy, the Chair of Biomechanical Engineering at the University of Melbourne, was called by the defence. His professional appointments and academic achievements both in Australia and the United States of America are extensive. 218He was retained to provide an opinion as to whether a fall from a pram from a distance of approximately one metre could result in a fracture of the skull. For the purposes of providing that opinion he applied a mathematical analysis to a simulated fall of a person of the height and weight of the child from a pram of the height and dimensions of the pram exhibited in the trial. 219A set of primary equations, in turn referable to a number of key theoretical concepts, were utilised by him to determine the position and velocity of a body, released with an initial velocity from a known point in space, the moment before it impacts the ground. The purpose in applying that calculus to the postulated fall in this case was to determine how the body of the child might have rotated through the air in the course of the fall before her head struck the ground and to allow for an estimate of how fast her head was moving at the point of impact with the tiles and within milliseconds after the point of impact. 220The key concepts utilised by Professor Pandy included the "projectile motion theory" (utilising Newton's second law of motion) which describes the trajectory of a body in the process of, or in the course of a fall. That was applied in this case in order to calculate how the body of the child moved from its assumed initial configuration (standing upright in the pram) to its final configuration (on her back on the tiles) at the instant before the point of impact. A second concept, "the impact force" (or the amount of force the head is subject to on impact), is determined by the relationship between impulse and changes in momentum as a result of the collision. A third concept, "the coefficient of restitution", is a value calculated by reference to the degree of compliance in the surface upon which the body or object falls (in this case the tiles in the foyer of the accused's home) and the degree of stiffness or "give" in the object that is dropped (in this case the child's head or skull). 221The "known point in space" from which the fall was assumed to have been initiated for professor Pandy's purposes was 96 centimetres above the ground, the height of the child as detailed in Dr Duflou's post-mortem report, based on the assumption that the child was standing at full height in the pram before she fell backwards. Professor Pandy also used the child's height to calculate the centre of mass of her body in a standing position. He also assumed that the child's head contacted the ground first. A schematic diagram of the body in the anatomical position was reproduced in Professor Pandy's report together with a further schematic diagram of the initial and final positions of the child's body during a simulated fall. 222Professor Pandy acknowledged that a limitation inherent in the mathematical modelling utilised by him is the assumption that the child's body fell on a fixed plane from the vertical and at an angle to the horizontal with her feet as a pivot, which necessitated ignoring the potential effect of the child's arms, legs and torso breaking her fall. He acknowledged in his report and confirmed in his evidence that it is possible, and perhaps even likely, that the limbs and torso of the child would contact the ground first during a backwards fall in which case the impact and velocity on her head would be lower than the modelled analysis. It was also assumed that at some point in the course of the interplay of the unknown physical factors which initiated the fall, that a horizontal force impulse acted on the pram to produce horizontal displacement. Although the speed at which the pram would have moved to initiate the fall was able to be calculated, the degree of horizontal displacement (or the distance over which the pram moved on the floor and the direction it moved) was incalculable mathematically because the time over which the pram moved before the child's head impacted with the floor was not known. 223In determining, from a mathematical perspective, the degree of force applied to the head of the child during impact (a force measured in newtons - N), Professor Pandy took a number of factors into account, including the velocity of the child's feet at the instant her body left the pram in a backward oriented fall; the distance over which the centre of mass of her body moved during the fall; the centre of mass of the head; the duration of the impact between the head and the ground; the gravitational acceleration constant (9.81 m/s²); and, finally, the coefficient of restitution. 224As Professor Pandy recognised in his report, measurement of the coefficient of restitution and duration of impact, two critical parameters required in the calculation of head impact force for the paediatric human head, are largely unknown. In sourcing this information from the literature, he drew extensively from a recently published study on the effect of impact forces on head injury. The author, AM Loyd, used the heads of nineteen cadavers of varying age from neonate to adult, with one in the age bracket of the deceased child in this trial. The study was published by Loyd as a PhD thesis at Duke University in North Carolina in the United States ("Studies of the Human Head from Neonate to Adult: An Inertial, Geometrical and Structural Analysis with Comparisons to the ATD Head"). 225In Professor Pandy's opinion, the Department of Biomedical Engineering at Duke University is one of the two most reputable institutions undertaking work in the field, the other being the University of Pennsylvania in Philadelphia. Two of the committee members before whom Loyd's thesis was defended were known personally to the Professor, one of whom was Loyd's supervisor. In these circumstances, and after giving critical consideration to the hypotheses, methodology, calculus and results reported by Loyd, Professor Pandy was, in my view, entitled to afford the data produced by Loyd a considerable degree of credence, despite the fact that it had not since been validated by subsequent experiments, and despite what Loyd acknowledged were the necessary limitations in his research, as a result of the fact that specimens of human heads are not readily available for research purposes. It took Loyd fifteen years to collect the specimens used in the experiments. 226In the controlled experiments conducted by Loyd, each specimen (being the head of the cadaver with the skull, brain tissue and head tissue intact, but with the mandible detached) was dropped from a height of 15 centimetres and 30 centimetres successively five times, with the drop directed at five different locations on the skull commencing with the forehead and extending to the occiput, the vertex and the left and right parietal. In each case the head was dropped onto an aluminium plate fitted with a force sensor that was able to measure impact force, location and duration (of impact). Measurements of impact force were also used to record the change in acceleration, and therefore velocity and displacement of the head during the impact. 227Loyd found that between the ages of 5 and 22 months the human head was susceptible to fracture from drops of 15 centimetres. It was also shown that the peak acceleration imparted to the head during impact increased with age, whereas the duration of impact and coefficient of restitution both decreased with age. Loyd ultimately reported that only three of the nineteen skulls revealed a skull fracture, with all three in the paediatric group, and in each case a linear and diastatic fracture was identified with impact forces ranging between 392 and 1074 N. 228A further and acknowledged limitation in Loyd's research resulted from the need for repetitious dropping of the nineteen specimens, a situation which would not be seen in a clinical setting where an individual would usually only suffer a "one hit" impact sufficient to fracture the skull. In Professor Pandy's view, the potential for that limitation to skew the results he obtained from a mathematical perspective was mediated by the fact that Loyd performed a CT scan after each drop to ensure that if the skull fractured it was not used again. Self evidently, as Professor Pandy acknowledged, and Loyd himself acknowledged, it would have been preferable to perform one vertical drop on each specimen however the difficulty in obtaining specimens prevented that approach being adopted. 229After assigning values to all parameters required for the mathematical calculation undertaken by Professor Pandy, nominal average values were assigned to the coefficient of restitution and impact duration - the latter drawn from the Loyd's study and the former from the experimental data reported by Viano and Parenteau in 2008 ("Analysis of Head Impacts Causing Neck Compression Injury"). In applying the mathematical formula devised by Professor Pandy, appropriate allowance was made for the child's body to be inclined at an angle to the ground upon impact so that the head impacted the ground first. Assuming that the child was standing on the seat of the pram prior to the fall (the scenario ultimately relied upon by Ms Yehia in closing submissions) the angular velocity of the body during the fall was estimated to be 4.57 rad/sec (clockwise), and the vertical velocity of the head just before impact 5.44 m/s (downward). The corresponding head impact force was then estimated to be 2003 N - higher than the highest newtonic value in Loyd's research. When Professor Pandy considered a worst case analysis for the modelled conditions (namely the maximum value for the coefficient of restitution and the minimum value of the duration of impact forces) an estimated head impact force onto ceramic tiles predicted a maximum head impact force of 4276 N, again significantly higher than the results of the Loyd experiments. 230In the result, Professor Pandy concluded that while it was not possible to determine precisely the probability of a skull fracture in the event of a fall of the postulated kind, the modelled calculations he adapted and applied indicated that such an outcome was possible. He conceded in cross-examination, that his modelling could not appoint the site of the fracture, the extent of fracture or inform the extent of the injury to the brain or other injury to the head. He also acknowledged that in respect of the three paediatric skulls which were fractured in the Loyd experiments (respectively children aged 5 months, 11 months and 22 months), the fracture occurred on the right parietal of first child, the same for the second child and at the vertex of the child of 22 months. 231When asked in cross-examination to concede that the conclusions are affected by the limitations inherent in Loyd's study, Professor Pandy said as follows: Q. Accepting it is a limitation, do you accept that your conclusions are affected by the limitations inherent in the study that Loyd has done? A. You see, the reason I investigated a range of values in my model was precisely to take into account that there are things, many things that just are just not known very precisely here. The model itself I couched is not a precise model. The only way you can get understanding is to investigate a range of parameters that one feels is reasonable which is what I have done, and the range of parameters for the duration of impact cover the range that Loyd has measured. Yes, there's limitations in the fact he dropped the head repeatedly, but there were also measures taken to minimise those limitations; for example, the fact that they did CT scan the specimen carefully after each drop. Q. Let's discuss the limitations of the study in more detail. Do you accept the premises of my question which is if there are limitations in his study, there must necessarily be limitation to your conclusions? A. Yes. I already said there are limitations to my analysis. Q. These are limitations [additional] to the ones you set out because these are the ones inherent in the study upon which you rely; do you see the difference? A. Yeah. Well, yes. There is a difference in that respect. But again, what is built into my estimates are the fact I didn't use just one value that Loyd measured. I said, okay, well this is the mean of what they measured. I took a mean value from their spread of data and then I changed that value by a significant amount. So the calculations I made are, give you some feel for, well, if you don't know things very accurately and there are things that are going to change, well, give you like a minimum and maximum, an idea of the minimum and maximum value of what to expect. That's all, ultimately, I think all you can do in a model calculation. 232The utility of applying an additional limitation, which in the Crown's submission was significant in applying the research data collected by Loyd for current purposes, is that the data reported upon had no data for the skull of a child between 23 months and 8 years of age and, in addition, in so far as the fact that there was no mandible attached to the head of the cadavers used in the experiments, there was an open question as to what effect that would, or might have on the question of peak acceleration as the head was dropped on to the sensor plate. 233While Professor Pandy acknowledged the limitations Loyd himself acknowledged in his published thesis, he did not accept the proposition put to him in cross-examination that those limitations limited the utility of Loyd's data for his mathematical modelling. As Professor Pandy explained, for his purposes he adopted an average from the range of results reported by Loyd. He sought to emphasise that his modelling was not, and could not, be absolutely precise but it could appoint where, in a range of possibilities to probabilities, a fracture to the skull might be sustained in the scenario he was asked to consider. He went on to say: ...I think when all is said and done, and I have tried to do as thorough a job as possible, you can only really in the end say, well, is it possible? And that's what I have tried to do. The secondary injuries 234It was common ground between all of the medical experts that some of the areas of secondary bruising could not be explained by, or otherwise associated with a short distance fall of the kind relied upon by the accused as explaining the fatal head injury given that, on his case, she must have fallen backwards. They included the extensive bruising to the child's forehead (including the left eyebrow and the left eyelid); the punctate bruising to the right parietal area of the scalp; bruising to both ears; bruising to both buttocks (given the shape and arrangement of those bruises); and the extensive bruise to the left thigh. 235These areas of bruising and their size, dimension and general appearance were described in similar terms by Dr Norrie in the pre-mortem examination and by Dr Duflou in the post-mortem examination. At the trial, that aspect of their evidence was not controversial. 236Save for the bruising to the right ear, all of the areas of bruising and abrasion noted by Dr Norrie on 31 March were noted by Dr Duflou macroscopically. The bruises on the left ear were confirmed by him on microscopic examination. While the sampled tissue taken from the left ear, the right anterior scalp, the left eyelid and left abdomen were not able to be confirmed as bruising microscopically, with the exception of the bruise to the abdomen, all were confirmed to be bruises on immunohistochemical staining. On dissection the bruising to the left thigh and buttocks passed through the fat to the level of the musculature. No other injuries were identified in the process of dissection or radiographically. 237In addition to the areas of bruising noted by Dr Norrie pre-mortem, bruising on the surface of the child's scalp, both in the area of the fracture at the base of the skull and in the right parietal region (an area unrelated to the fracture) site were revealed after the child's head was shaved in the autopsy. (As noted above, this area was sampled and bruising was confirmed after staining.) The extent of bruising to the child's forehead was also only obvious after the scalp had been reflected. 238Although there remained some controversy in the medical evidence, and in final addresses, as to whether the external bruising to the child's forehand in the area of the left temple could have been sustained accidentally in the way said to have been witnessed by BJP and the accused when she bumped into a hall table, even were this a possible explanation it seemed to be the settled position that the extensive bruising to the forehead revealed on reflection of the scalp could not be explained by that mechanism. There was also some controversy as to whether the extensive bruise to the child's left thigh and the punctate bruising on the right side of her scalp might be explained by accidental falls onto a toy (the bruising to the thigh) or onto carpet (the bruise on the scalp). It was, however, common ground that the bilateral bruising to ears was most likely, if not definitely, the result of inflicted injury. Ms Yehia also accepted that the spread and depth of the bruising to the buttocks (even discounting the potential incorporation of the bruise to the thigh) could not readily be explained by an accidental cause. 239All of the medical experts cautioned against drawing any conclusion about the age of any of the cutaneous bruising from the macroscopic colour or appearance of the bruises. Furthermore, in Dr Duflou's view, despite what he regarded as the "current dogma" to the effect that a yellow or brown discolouration in the hue of a bruise was an indication that the trauma which was the source of the bruise must have been sustained or inflicted at least 18 hours earlier, in this case that analysis could not be confidently applied because there was minimal inflammation in the bruises (where inflammation is an indication of a healing process) and because the child had been hospitalised at least 18 hours before she died. He said, using this case as an example, the ageing of bruising is: ...very very difficult, and there's certainly research that has been done that shows, especially in the setting of children with head injuries, that you can have significant delaying of inflammation of bruising... 240Leaving aside the recognised difficulties associated with attempting to appoint a time, or even a time frame within which the trauma that resulted in the areas of secondary bruising in this case occurred from the appearance of the bruises at post-mortem, the Crown also asked for Dr Duflou's views as to when, after the application of force sufficient for there to be a bleeding into the tissue, it might be expected that a bruise would be visible or signs of it apparent. As to that question, he said that while generally bruising tends to appear not long after the injury causing a rupture of small blood vessels within the skin is sustained (probably anything from minutes to usually not more than an hours) there are also very well known circumstances where bruising may appear a day or two later. 241In addition to the difficulty in aging bruises and appointing a time frame within which they might have been sustained with reasonable certainty, it is also significant that the appearance of some of the bruises changed from when the child was examined pre-mortem by Dr Norrie on 31 March 2011 and at post-mortem, in particular the bruising to the right ear. Dr Norrie reported multiple petechial bruises inside the right upper helix of the ear and a two centimetre long area of interrupted diffuse bruising behind the right ear lobe (plainly discernible in the photographs forming part of Exhibit JJJ), whereas at post-mortem that bruising was no longer apparent, to the extent that Dr Duflou discounted it in his report. On the other hand, the bruising to the inner and outer aspects of the left ear (indistinguishable in appearance from the photographs of the right ear taken pre-mortem) was confirmed histologically. In Dr Norrie's view, the extent of the bilateral bruising was most likely the result of a gripping or pinching or pulling of the child's ears, or the result of a slap to the side of the head or a cupped slap delivered to both sides of the head. Although Dr Duflou accepted that a direct blow to the ears could cause the bruising seen pre-mortem, and to the left ear at post-mortem, he did not exclude the possibility that the bruising to the left ear (when viewed in isolation) was referred blood from the back of the scalp towards the ear. However, accepting that the pre-mortem photographs show bruising similar in appearance in both the inner and outer aspects of both ears, he considered gravitational blood flow an unlikely explanation. 242Another discrepancy, or potential discrepancy in the bruises observed pre-mortem and post-mortem, was the bruising to the abdomen. While Dr Norrie noted an area of "faint bruising" to the upper torso of the child medial to her left nipple, five areas of discrete, albeit faint bruising were noted by Dr Duflou to the torso of the child (right and left of the midline generally superior to the umbilicus in varying distances between 20mm and 120mm) and which he described, from a macroscopic perspective, as "looking to all the world like bruises". A tissue sample was taken to confirm the presence of bruising from one only of these "bruises" which produced a negative result. 243Dr Norrie reported bruising to both the left and right of the child's forehead, with bruising to the right side of the forehead associated with a superficial linear abrasion medial and parallel to the bruising on the left side on the left upper eyelid, left eyebrow and the left forehead near the hairline. These bruises were photographed in the pre-mortem photographs and the subject of close questioning at trial as to whether they might have been sustained accidentally and, in particular, whether the bruising to the left of the child's forehead near the hairline might be explained by the child running into the hall table and hitting her head, with the bruises below that (to the eyebrow and eyelid) being either referred bruising, or bruising that developed over time because of the force of the impact to the temple. 244On external examination Dr Duflou described a diffuse and mottled discolouration of the child's forehead with focal discolouration but without any obvious discrete bruises identified. He did however identify a red/blue bruise on the left upper eyelid. 245The bruises generally to the forehead noted by both Dr Norrie and Dr Duflou correlated, to a very limited extent only, with the extensive and what Dr Duflou described as "dramatic amount of bruising" to the forehead and scalp generally revealed on dissection. In Dr Duflou's opinion, the discrepancy between an external and internal examination of a site of bruising was not uncommon. He gave evidence that the likely explanation for the discrepancy in this case is that the depth of the bruising to the child's forehead was not apparent externally to any significant extent at any time whilst the child was alive. 246In Dr Duflou's view, the broad and diffuse area of bleeding over the forehead area on reflection of the scalp was well in excess of what he would have expected, and more diffuse than what he would have expected were the child to have accidentally stumbled into the edge of the hall table photographed in the crime scene photographs, particularly given that in neither the pre-mortem or post-mortem photographs of the left side of the forehead was there any abrasion or laceration to the skin. In his view, the bruising was more likely explained by an impact with a broad surface, such as the ground or the top of a table, or impact with a fist, in each case under considerable force. He was unable to say whether the bruising to the forehead was the result of one injury or multiple injuries or whether there was an overlap of multiple injuries, or a single injury with various bruises appearing on various parts of the head. 247Dr Moran was of the opinion that some of the bruising on what he described as the "anterior forehead" might be explained by bumping into the hall table, however, in his view, the pattern of bruising and abrasion to the right forehead did not appear to be explained by that mechanism, and the very extensive bruising to the scalp on reflection (other than the bruising over the occipital region), and the bruising of the left upper eyelid and the bruising of both ears, remained unexplained. He said bruising of the ears is very unusual in accidental falls and is very likely associated with inflicted injury when it is bilateral and unexplained. 248I have excluded from consideration the suggestion in Dr Donald's evidence that the bruising to the ears might be explained by the management of the child by medical staff in Coffs Harbour, whilst in transit, or at Westmead Children's Hospital. I do accept his evidence that if an accidental mechanism is excluded, force applied directly to the head or the head coming into contact with something under force is a likely mechanism for the bruising to the inner aspect of the pinna of the child's ear, extending as it did beyond the cartilage of the ear and into the vascular tissue at the back of the ears. 249The punctate bruising in the right tempoparietal region of the scalp, also identified only after the scalp was reflected, was, in Dr Duflou's opinion, also likely to be the result of direct impact. It was not suggested that there was any relationship between that area of bruising and the extradural haemorrhage associated with the site of the skull fracture. While it was minor as compared with the extent and depth of bruising to the forehead, and although Dr Duflou was unable to offer an opinion as to the degree of force that might be required to generate the bruising, he agreed it would likely be the result of contact with a surface that was not smooth given the patterned appearance of the bruising. In cross-examination he conceded that he could not exclude the possibility that it was the result of an accidental fall on carpet, but thought it less likely that it was the result of a fall onto gravel in a playground. He was not able to appoint a time at which that injury was sustained relative to the fatal injury. 250In his autopsy report Dr Duflou identified and described a grouping of bruises to both buttocks that were blue/brown in appearance and a predominantly blue bruise on the left upper thigh which struck him at that time (indeed, as he said in evidence, one thing that he recalled distinctly about the case) as giving the distinct impression of being a handprint. Photograph number 59 in Exhibit OOO is a photograph of Dr Duflou's left hand simulating the orientation of an adult (left) hand across the buttocks of the child. (The accused is right handed. There was no evidence as to whether BJP or LB were right or left handed.) Dr Duflou said that the potential handprint did not seem obvious to him in the pre-mortem photographs, but it was sufficiently obvious to him at post-mortem to take the photograph of his gloved hand in position over the bruises, something he said he did not do lightly. Despite the fact that there was more intense discolouration in the bruising on the thigh externally which, on dissection, extended beyond the fat into the muscle, Dr Duflou also identified deep bruising into the buttocks themselves on dissection. He regarded that injury as well in excess of a "standard style disciplinary smack of a child's bottom" but, rather, it was "a rare type of injury to see in a child" implying the application of "more force rather than less force". 251Dr Moran described bruising over the buttocks, in what he described as a "patterned injury", as a very unusual place for an accidental injury. Assuming the bruise to the thigh was incorporated into the "handprint", Dr Moran was also unable to readily see how a deep bruise on the left upper thigh could occur in a fall unless it was from a height sufficient to impact on the tissue causing the depth of bruising revealed on autopsy. When asked to consider whether a fall onto the toy car, a photograph of which was exhibited at the trial, might explain the area of bruising, he said he could not discount it entirely, but emphasised that it would depend upon the height of the impact (which I take to mean the degree to which the fall onto the toy car was under force). He also observed that the bruise could also be caused when the child was struck with an implement, thrown against a surface or kicked. The issue of the child's vitamin C levels 252Dr Norrie noted in her report of 6 June 2011 that upon examination of the child at Westmead, a low vitamin C level of 19 was detected (with the normal range being 40 to 100). It was her evidence that the low vitamin C level was not of any significance in this case because, although the level was "a bit low", it was not low enough to cause bleeding, and did not indicate anything about the rapidity of the resolution of a bruise after trauma as the vitamin C level would have to be low over a sustained period of time for that to occur. Dr Norrie observed that there was nothing in the child's medical history to suggest any longstanding vitamin C deficiency. She also expressed the view that the reading of 19 would likely not be accurate as the child was dying at the time the levels were taken which would not accurately reflect her state of health pre-injury. 253Dr Duflou also accepted that although the vitamin C level was low, there were no pathological or clinical features indicating the child suffered from scurvy (signs of scurvy include bleeding gums, easy bruising and subperiosteal haemorrhages). He said: ...I really don't think that, taken together with the clinical information, that there was any propensity to bleeding and certainly this was not a case of rip-roaring scurvy. 254Dr Moran was also of the view that the low reading was not significant and, further, it was unlikely that it was a true representation of the child's vitamin C level in any event. In his experience it is extraordinarily rare to find a low vitamin C level in children in Australia if they are fed normally. There was nothing in the findings on autopsy to suggest the child was malnourished or undernourished. 255I am satisfied that the medical evidence indicates that the child's vitamin C level of 19 is of no forensic significance. Reasoning to verdict The tendency evidence 256Over objection, and before BJP was called to give evidence, I permitted the accused to elicit evidence to establish that she had a tendency to behave in a violent manner when she was frustrated or when she otherwise felt out of control (R v FEW [2013] NSWSC 1486). 257The evidence admitted as tendency evidence was limited to the following incidents: (1) On 30 January 2011 BJP repeatedly punched her mother to the face causing extensive bruising at a time when her mother was in a wheelchair; (2) In February 2011 BJP tightened the straps on the child's pram to restrain the child at which time she said 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. 258The accused tendered a number of documents, produced under subpoena to the Department of Family and Community Services, where the following matters were recorded as notifications of "risk assessment reports", mandatorily reported under the Children and Young Persons (Care and Protection) Act 1998, as proof of BJP's tendency to lose control and act in a violent manner. 259An "Assessment Record" dated 17 February 2011 records: There was an incident of family violence between the mother and the maternal grandmother on Sunday 30/01/2011. This occurred at the maternal grandmother's house. The mother told caller that she "lost the plot" with the maternal grandmother and punched her to the face. She said that she was "out of control". She did not say what had led up to the violence. The maternal grandmother reportedly has bruises on her face as a result of the assault by the mother. The mother stated that during the violent incident the maternal grandmother had accidentally bumped into [JP] with her wheelchair. [JP] is reported not to have been harmed. The mother did not say how [JP] was when she witnessed the violence. Police were not called. 260A "Contact Record" dated 7 February 2011 records: The caller is adding information to a report that was made on the 03/02/11. The caller stated maternal grandmother RW informed the caller on Friday 05/02/11 she observed the mother placing [JP] into the pram and tightening the straps to ensure [JP] could not move. The mother stated she didn't care how tight it was and if it bruised [JP]. There was no reaction from [JP]. The grandmother also stated about two weeks ago [JP] was sitting in the pram and she had leaned forward when the mother placed her hand over her face and shoved her backwards. Again there was no reaction from [JP]. 261A briefing note from 2011 records: ...Other issues of concern included [BJP] being overly physical with [JP] (eg pushing, making stroller restraints too tight) and ongoing personal violence between family members. Use of the pram to physically harm 262In her evidence in chief, BJP admitted to having the straps on the pram "quite tight" but said she did that in order to stop the child from running onto the road. She said that she did not intend the tightening of the straps to hurt the child, but only to protect her. She denied ever tightening the straps to the extent that it caused bruising. She also rejected the suggestion that she had a disagreement with her mother about the tightness of the pram straps, and she further denied that she said to her mother words to the effect that she did not care whether the straps caused the child "to bruise". She said that the child never complained about the straps being too tight or that they were hurting her. She said that the child would often lean forward in the pram and that when she did so, she would lift the child under the arms and sit her back down. She also denied putting her hand over the child's face and "shoving" the child backwards. 263BJP agreed in cross-examination that she was an overprotective mother, however she rejected the suggestion that this motivated her to restrain the child in the pram whenever she could, or that she did so because the child was difficult to control. She did concede that, on occasions, the child would fall asleep restrained in her pram. She said this was because the child was tired and would watch a movie whilst in the pram and subsequently fall asleep. 264In cross-examination, RW said that she had seen BJP and the child interact on many occasions. She also confirmed that she had often seen BJP put the child into the pram. However when it was put to her that, at times, BJP strapped the child into the pram too tightly, she said: No, there was one occasion where she strapped her in. [The child] was mucking up. [BJP] - this was on the same day that she was really agitated - [BJP] was very upset and I'm really thinking that was when [the child's father] went off... 265She went onto say: [The child] didn't want to get in the pram and [BJP] placed her in the pram because me and [BJP] got into an argument, which I can't remember what it was about - and [the child] was getting upset, and she didn't want to get into the pram, and when she is like that she will try and get out, and [BJP] put her in there and she did place the straps on firm which I would say firm, but they weren't tight, tight, but they were placed so [the child] could not actually get out of the pram. 266RW denied that BJP said to her that she did not care if the child would be bruised as a result of strapping the child into the pram. RW was not asked by the Crown or Ms Yehia whether she ever saw BJP place her hand over the child's face and proceed to "shove" her backwards. 267LB was also asked whether the child had been strapped into her pram as a form of discipline. He said that he had only seen it once, that it was only for a couple of minutes and both he and BJP were right beside her. He said BJP strapped the child into the pram so that she could not run onto the road. The fight between BJP and RW on 30 January 2011 268BJP acknowledged that she was involved in a verbal and physical altercation with her mother at her mother's home. 269BJP did not recall why the argument erupted, however she remembered telling her mother that she was leaving and did not know if she may ever return, which made her mother extremely upset. She said as she attempted to leave by taking the pram (with the child in it), RW ran into the back of her legs with her electric wheelchair, causing BJP to collide with the pram. Shouting ensued, which subsequently led to physical violence. BJP said she was pinned against the front door and that RW took hold of her hair. She retaliated by pulling her mother's hair and punching her in the face one to three times. She said this made her mother let go of her hair, and she and the child then left. As they were leaving via the ramp in the front yard, RW followed them, grabbed BJP's skirt and asked for her house keys to be returned to her. She said that she threw the keys on the verandah. 270Photographs dated 2 February 2011 were tendered which showed extensive bruising and swelling to RW's face, including to her left eye and a vertical abrasion angled from her right eye. 271In cross-examination, BJP denied that she punched her mother in the face because of a loss of control on her part, or even that she was angry with her mother. She said it was because she felt confined and needed to leave the house, as it was a dangerous environment for her daughter. She conceded that the first time she made a statement to police in relation to the altercation was in October 2013. 272While there was a level of consistency between the versions of events given by BJP and her mother in evidence, there were material differences. 273RW said that when BJP attempted to leave via the front door, she asked her to return her house key, and acknowledged that she came up behind BJP in her electric wheelchair and positioned herself directly behind the pram so that BJP could not open the front door. RW said that what followed was "a struggle" where her daughter "pulled" her head down by her hair to the armrest of her wheelchair which had been "chipped away" from an earlier collision with the brick wall. RW said that it was the damaged armrest which bruised the left side of her face, just under her left eye. 274RW denied that BJP intentionally punched her in the face. She said the bruises were caused by another incident which occurred prior to the altercation with BJP, involving her dog. She said there was a bone on the ramp at the front of her premises which tipped her wheelchair over, which subsequently caused her to collide with the ground. RW confirmed that she was in her electric wheelchair during the physical altercation with BJP on 30 January 2011 and that she was hospitalised in February 2011 for back pain, due in part to the fight with her daughter. 275When asked why she wanted her front door key back, RW said that she was an overprotective person with respect to her home, and she did not want her daughter, or any of her friends to be there whilst she was not present, but said that she did not have a chance to talk with her daughter about this, as "[BJP] was agitated about another situation". She said this was either about the child's father (BJP's ex-boyfriend) being alerted to the fact that she had a new boyfriend, or because he had damaged the property of Warrina Refuge, or because she was concerned about the delay in receipt of her Centrelink payments. RW confirmed however that, regardless of the reason, BJP was stressed and anxious on 30 January 2011. 276After the altercation with her mother, BJP said that she went to the accused's residence and confided in him. She said she requested that he check on her mother. BJP also said that she and her mother did not talk for "a little while", however by 2 March they were on speaking terms, as evidenced by the text messages sent that day (as set out at [51]). 277After the argument, BJP said that she had bruises on her chin, arms and legs. BJP disclosed to staff at Warrina Refuge that she and her mother had a fight, and she was told that a report would be made. 278BJP was also asked about the methods she used to discipline her daughter. She said she used to tap the back of the child's hand, remove toys or lollies, or she used the "big voice". She said that when she used this voice she did not yell, however it was a stern and deep voice. BJP disagreed with the suggestion that her voice made the child flinch away from her. She conceded that at times she did "tap the child on the bottom" but that it was done through the child's nappy. She disagreed that she got frustrated with the child because she was "a handful". 279It was put to her in cross-examination that when she felt anxious or stressed, she would lose control with the child, as she did with RW, which she denied. She said that she could always cope with and look after her daughter and that she never reached a point where she could not cope with her. 280LB gave evidence that he personally did not discipline the child, and that he never saw BJP being violent towards the child. He had never seen BJP smack her, however he said that he saw her give the child "a little tap on the hand". He was unable to recall when he saw this. He said that he also saw BJP put the child in her cot or pram for five minutes (the latter he had only seen once). Questions of credit 281In respect of the evidence of a number of lay witnesses, issues of credit were raised in the addresses of both counsel. Independent of counsel's submissions, I had my own concerns about both the honesty and reliability of some witnesses. 282I am conscious of the need to be cautious and considered before drawing too ready a finding (either in favour of a witness or adverse to them) from their demeanour in the witness box. I accept that different people react to a courtroom environment in different ways and that some coping mechanisms might give the appearance of disinterest, on the one hand, or nervousness and agitation on the other, without necessarily reflecting adversely on a witness' credit. I am also conscious that a concern about one aspect of a witness' evidence, whether as to their truthfulness, accuracy or reliability, need not necessarily justify my rejecting the evidence of that witness in its entirety. I am however unable to avoid making some observations as to the demeanour of some witnesses, in particular the child's mother, her boyfriend and her mother from which I do draw adverse inferences as to their credit and which has had the effect of impacting on some of the critical issues to which this trial has given rise, and the resolution of those issues. 283As earlier noted, I confirm that I accept, unreservedly, Dr McClure's evidence as to his dealings with the accused by telephone at 9.46am on 30 March 2011. His evidence was forthright and considered. Despite his statement not being provided to police until well after the investigation into the death of the child which had resulted in the accused being charged with murder (itself some months after the child's death), I accept his evidence that the conversation with the accused was sufficiently fixed in his memory for him to be able to reliably recount it well after the event without any clinical note. 284The question that survives Dr McClure's evidence - a significant question giving the chronology of events on 30 March 2011 between 9.46am and 10.21am - is what I am to take the accused to have meant when he said to Dr McClure that "Something terrible has happened", and why he was in such a state of high anxiety that he required medication so urgently that morning. 285I will return to consider whether I am satisfied that statement was an implied admission to the effect that he had seriously assaulted the child (although not fatally), the finding urged by the Crown. Self evidently, were the accused's unsolicited comment to Dr McClure capable of being interpreted as a reference to an observation or realisation that the child was injured by someone else, a significant feature of the Crown case theory as presented at trial falls away. 286My concern about the credibility of BJP, LB and RW is not simply because those witnesses were the subject of specific challenge by Ms Yehia in respect of some parts of their evidence, in particular the evidence of BJP and LB as to their dealings with and access to the child on the afternoon of 29 March and the opportunity which was afforded either or both of them to inflict the secondary injuries (or the most serious of them). My concerns are also sourced in the attempts by all three witnesses to explain or account for the delay of over an hour before calling 000, in circumstances where, it seems to me, beyond any doubt that they must have appreciated that the child was seriously injured and in need of urgent medical assistance. These concerns left me in doubt as to whether those three witnesses were making a genuine attempt to give completely frank and honest evidence about the critical events with which this trial was concerned. 287Despite the fact that the summary of LB's evidence as detailed in the chronology of events I have earlier set out reads as if his evidence was given in a coherent and structured way, it is important that I record that whilst he was in the witness box he had considerable difficulty giving any detailed evidence of his involvement in the events that were the subject of this trial. His evidence was punctuated with both complete lapses of recall and an inability to order events in time. It was also necessary for me to afford him breaks in giving his evidence as his levels of patent stress and anxiety seemed to me to be at times dangerously elevated. I accept a serious motorbike accident in 2006 has impacted adversely on his long-term memory. I also accept that his ability to recall more contemporary events decreases when he is under stress. Whatever may have triggered his stress levels in giving evidence as a witness in the trial, I could not help but note that there was a marked and telling consistency between the way he described some of the critical events and BJP's evidence concerning those same events (for example, playing the guitar on the afternoon of 29 March and jumping the fence en route to the accused's house the following morning) and a noticeable absence of any detail that may have been the product of an independent memory. In addition, his evidence and that of BJP's that the child was only ever disciplined by a light tap of the hand (both witnesses giving the same demonstration in the witness box) had all the hallmarks of a contrivance. 288RW also gave evidence in circumstances where it appeared to me that she was suffering under a disability related to her physical disability such as to undermine her reliability when recounting past events. Her evidence was often vague and lacking in complete coherence. Despite the fact that she repeatedly denied that the medication she was taking for pain relief resulted in vagueness, she also volunteered that her illness affects her brain function. This may have affected her ability to give any sensible account of the repeated phone calls to which she must have been party on the morning of 30 March or to account for them in any meaningful way given her evidence that she insisted that her daughter call for the ambulance as a matter of extreme urgency when she first spoke with her that morning. However, I am unable to accept that as the only explanation, or indeed the dominant explanation, for the deficiencies in her evidence. It might have been otherwise were her daughter to have given an acceptable explanation for the delay in calling the ambulance or indeed for LB to have been able to do so. In addition, while there might be an understandable explanation for RW to attempt to minimise the injuries she suffered at her daughter's hand on 30 January 2011 given that they have apparently reconciled, I was left with the distinct impression that there were other motivations for what I am satisfied was a deliberately untruthful account of that incident. 289Put simply, I am unable to accept that when confronted with the telephone records showing the degree of contact between them in the hour before the ambulance was called, BJP or her mother have honestly accounted for what was being discussed between them that morning. I consider that there is a distinct possibility that they were worried that the evidence of inflicted injuries to the child's head and her buttocks and thigh would be revealed if the child were transferred into institutional medical care consequent upon the attendance of the ambulance, and that they deliberately delayed making the call for that reason in the hope that the child would recover from what they were told was a fall without the need for medical attention and without the certain risk that the person who inflicted the injuries would be identified. Conclusion 290In this case, the Crown relies upon circumstantial evidence to establish the guilt of the accused. For guilt to be proved by this approach, it must not only be a rational inference drawn from the body of the circumstantial facts (and whatever direct evidence there is that forms part of the Crown case), but it must be the only rational inference that can be drawn from that evidence. 291In a circumstantial evidence case where there are multiple pieces of evidence upon which the Crown relies, either to establish facts in issue, or to support proof of those facts by necessary inference, no fact or facts by itself or themselves is sufficient to establish guilt. Rather, it is the accumulation of evidence and the analysis of that evidence in the way contended for by the Crown that must leave no other conclusion open but that the accused is guilty or the child's murder (or manslaughter). 292I am not obliged in undertaking that exercise to look at each fact separately, but rather to consider whether, in combination, they are of sufficient probative weight to support the ultimate inference of guilt. (I do not regard proof of the identification of the person who inflicted the secondary injuries as an independent link in the chain of reasoning necessitating it to be proved beyond reasonable doubt. On the other hand, I am satisfied the evidence establishing that fact does need to be cogent and reliable.) 293That said, where one of the pieces of circumstantial evidence is what the Crown alleges to be a deliberate and material lie told by the accused as evidencing a consciousness of guilt of the crime charged, if there is another reasonable explanation for the accused's lie (or to put it another way, if there is (or might be) an innocent explanation for the lie that the Crown cannot discount) then the lie must be disregarded. 294In this case, I am satisfied that the accused told police a deliberate lie as to his movements on the morning of 30 March. I am also satisfied it was a material lie. The question is whether there is a competing innocent explanation for it. 295The Crown submitted that the accused deliberately concealed from police his call to the doctor because he knew that inquiries of the doctor by police would expose the fact that he was in a state of high anxiety that morning because "something terrible [had] happened" which, on the Crown case, was his violent abuse of the child prior to his inflicting the fatal injury. The Crown submitted that the lie then allowed the accused to lay the groundwork for constructing an accidental fall in the course of an otherwise routine morning, well knowing that he had again assaulted the child upon his return from the chemist, this time fatally. Analysed in this way, in the Crown's submission, the link is forged between the lie and both the infliction of the secondary injuries and the infliction of the fatal assault. 296In the course of dealing with the medical evidence bearing upon the issue of secondary injuries, I was able to reason confidently to the conclusion that the injuries to the child's ears, buttocks (and probably the thigh) and the deep bruising to her scalp were all inflicted injuries, and were the consequence of an assaultive act or acts by someone. The medical evidence did not however allow me to find that any of those injuries were inflicted at any particular time or whether they were inflicted at the same time or at different times. The identity of the person who inflicted those injuries loomed large in this trial. It is however neither the primary focus of the trial nor is it the subject of the charge that the accused faces. I caution myself against the inquiry into the identity of the person or people who inflicted the secondary injuries on the child overwhelming the question whether the Crown has proved that the accused is guilty of the child's murder. 297Were I left in no doubt as to the credibility of the evidence of the child's mother and her boyfriend, and in particular, were I left in no doubt that it was the accused, and only the accused who had the opportunity to inflict the injuries on the child, thereby excluding any reasonable possibility that BJP or LB or both might have assaulted the child, and were I also able to accept their evidence that when they left at 5pm on 29 March the child was well in all observable respects, then logic would dictate that I would find that it was the accused who inflicted the secondary injuries given their frank presentation on her admission to hospital and that he was the only person who had access to her in the preceding 24 hours. Were I able to reason in that way, it would also allow me to afford preponderant weight to the Crown's submission that the secondary injuries were inflicted by the accused at some time after 5pm on 29 March and before 9.45am the following morning after he lost control, perhaps only momentarily, and repeatedly struck the child (or threw or dropped her) perhaps as a consequence of the interplay of environmental, physical and emotional stressors the Crown submitted were in play, and that in a state of abject remorse he telephoned his doctor for assistance and made a telling admission in the process. 298While I do not reject the evidence of the child's mother in its entirety (or to the extent that LB gave truly independent evidence, the entirety of his evidence), I am however left in considerable doubt as to whether their version of events of the afternoon of 29 March is truthful and, by necessary extension, whether their version of events as it relates to the delay in calling the ambulance is acceptable. It is no part of my role or function to make a finding that the child was forcefully smacked on her buttocks and about her head and ears by the child's mother or by anybody else, and I do not make that finding. I am not however persuaded on all of the evidence to a sufficient level of satisfaction that the accused inflicted those injuries. Unlike the child's mother, there is nothing in the evidence that is even faintly suggestive of a tendency to violence on his part. The overwhelming weight of the evidence is that his treatment of the child is to the contrary. Further, his exposure of the child to public view after having, on the Crown case, abused her such as to cause observable injuries is also inexplicable. 299In contrast, the tendency evidence in the trial led by the accused does establish that the child's mother can, under stressful circumstances, lose self control to the extent of inflicting serious and sustained violence upon a vulnerable person, without apparent regard for the consequences, and then to later express regret and remorse. Whilst there is no evidence that the child was assaulted by her mother (aside from the accused in his interviews with police to which I afford some weight), I am satisfied that the measures she took to control the child by tightly restraining her in her pram does tend to suggest that she was not, as a very young mother with an active, even hyperactive child, always able or willing to employ more benign methods of controlling her. I note in that connection that, contrary to BJP's evidence that the child was "hypo" or a "wild child", to the observation of Dr Bedford, Ms Young and Ms Franks she was a relatively quiet child, also consistent with the accused's experience of her whilst she was in his care. 300I emphasise that I cannot say what occurred to the child while she was in her mother's company for some hours on 29 March. That said, the accused's observations of her on her return as subdued and possibly unwell and with a raised temperature are suggestive that something happened to the child to result in the bruising observed by medical personnel the following day. Whatever happened might also explain Ms Maione's observations of the child as unwell. I caution myself against affording the accused's observations of the child upon her return any undue weight given that they are untested in cross-examination. On the other hand, the lengthy and intensely focused questions by police and the answers volunteered by the accused without accusation or insinuation are, in my view, entitled to appropriate weight in his favour. 301Reasoning in this way, I am also prepared to conceive of the reasonable possibility that the child's condition worsened on the night of 29 March and into the early morning of the following day (or at least her condition did not stabilise or resolve to the extent that she fully recovered) such that by mid morning, with the bruising becoming apparent, the accused became concerned, even alarmed, that either he would be regarded as an irresponsible or negligent carer or, perhaps even more likely, that he knew or believed that the child's mother (his de facto stepdaughter for whom he felt considerable paternal sympathy) was responsible for harming the child and that, in an unguarded moment, when seeking to address his anxiety in that situation, he reported to Dr McClure that "Something terrible has happened", as reflecting that knowledge or belief. 302I am also compelled to the view that his lies to police about his movements on the morning of 30 March might have been motivated by something other than a consciousness of his own guilt in respect of the crime charged, namely a misplaced but understandable desire on his part to protect BJP from the obvious judgment that a disclosure that she had harmed her child would involve, and that he became wedded to that lie and could not later retract it. 303I now move to consider whether, in light of those findings depriving the Crown of any reliance upon the accused's infliction of the secondary injuries, or the lies he told to police as to his movements on 30 March as evidence in proof of the allegation that he fatally assaulted the child, the Crown has discounted the reasonable possibility that the injuries which caused the death of the child were sustained accidentally in the fall. 304Accepting as I do for the purposes of this analysis that the accused called the child's mother at 10.21am and told her that the child had harmed herself in a fall, and that it was within minutes that she arrived to find the child unconscious, if the accused deliberately inflicted the head injury there was a very narrow time frame, measured in minutes, after he left the chemist and returned home to do so. 305One of the factors relied upon by the Crown as undermining the plausibility of the accused's account of accident is the relative placement of the pram and the child in the reconstructed accident scene. There was evidence from the manufacturer of the pram that the pram seized from the accused's premises was in generally poor condition, with some suggestion that the back wheels did not function in accordance with the condition of the pram at the point of initial purchase. On the other hand, there was no evidence to suggest that the base functioning of the pram and its stability was other than sound. No evidence was called by the Crown however, to inform the question of whether it was possible for the pram to be rendered unstable if climbed upon and, if it was rendered unstable, the likely direction it would move so as to ultimately fall on its side. It is a notorious fact that the dynamics of a fall are difficult if not impossible to recreate, the more so when the fall is unwitnessed. While for my part I find it difficult to conceive of how the child came to rest, or how she may have come to rest on the tiled foyer with her head generally at right angles to the door and the pram on its left side in the carpeted area of the lounge room that leads directly to the small tiled foyer, the evidence does not allow me to find that the physical laws do not allow for the possibility that the child fell backwards from the pram and struck her head. Uninformed by the evidence, I would be at risk of speculative reasoning with all of the inherent dangers that are entailed were I to conclude otherwise. From a different but allied perspective, while again I find it difficult to conceive of why a child in what I am satisfied must have been the compromised physical condition of the deceased child on her return from the chemist might climb onto or into the pram, to conclude against the accused that there is no rational explanation for it, attributes to a two and a half year old child a degree of rationality and predictability, which has its own inherent dangers. 306Because the combined weight of the medical and biomechanical evidence cannot exclude the possibility that the child sustained the fatal head injury from the postulated fall from the pram, in the absence of other evidence available to the Crown to discount that as a reasonable possibility, I am compelled to the conclusion that the Crown has not disproved beyond reasonable doubt that the child's fatal injury was the result of an accident. 307There remains a complex of perplexing issues raised by the evidence in this trial, but I direct myself that it is for the Crown to prove guilt beyond reasonable doubt and in this case the Crown has failed to discharge that heavy onus. 308Accordingly, on the charge that on 1 April 2011 the accused murdered JP, I find the accused not guilty and enter that verdict. ********** 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: 30 November 2013