Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Flood-Smith v R [2018] NSWCCA 103 Hearing dates: 4 May 2018 Decision date: 01 June 2018 Before: Hoeben CJ at CL at [1]; Walton J at [152]; Button J at [153] Decision: (1) Leave to rely upon Ground of Appeal 1 is refused. (2) In respect of Ground 2, leave to appeal is granted but the appeal is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – recklessly causing grievous bodily harm – victim two year old daughter of applicant – whether evidence of admissions wrongly admitted – ss 90 and 137 of Evidence Act 1995 (NSW) – whether conviction unreasonable and not supported by the evidence – medical evidence that injuries deliberately inflicted – issue whether applicant committed offence – circumstantial case – reasonable hypothesis consistent with innocence excluded – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 35(2) Criminal Appeal Act 1912 (NSW) – s 5(1)(b) Criminal Appeal Rules – r 4 Evidence Act 1995 (NSW) – ss 88, 90, 137, 142 Cases Cited: ARS v R [2011] NSWCCA 266 Burns v R [1975] HCA 21; 132 CLR 258 Dickson v R [2017] NSWCCA 78 FDP v R [2008] NSWCCA 317; 74 NSWLR 645 Hawi v R [2014] NSWCCA 83 M v The Queen [1994] HCA 63; 181 CLR 487 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Obeid v R [2017] NSWCCA 221 Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 Poniris v R [2014] NSWCCA 100 R v Buckley [2004] 10 VR 215; 149 A Crim R 122 R v Burton [2013] NSWCCA 335 R v Le [2002] NSWCCA 186; 54 NSWLR 474 Shepherd v R [2011] NSWCCA 245 SKA v The Queen [2011] HCA 13; 243 CLR 400 Steve v R [2008] NSWCCA 231; 189 A Crim R 68 Category: Principal judgment Parties: Nicole Rose Flood-Smith – Applicant Regina – Respondent Crown Representation: Counsel: P Lowe/J Leaver – Applicant H Roberts – Crown Solicitors: Paul McGirr – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2012/387051 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 March 2016 Before: Culver DCJ File Number(s): 2012/387051 JUDGMENT 1. 1 HOEBEN CJ at CL: Offence and sentence 1. On 17 December 2015 the applicant was found guilty by a jury of an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence occurred on 30 August 2012. The victim was the applicant's two year old daughter, "C". 2. The applicant was sentenced by the trial judge, her Honour Judge Culver, on 11 March 2016 to imprisonment comprising a non-parole period of 3 years commencing 17 December 2015 and expiring 16 December 2018, with a balance of term of 2 years expiring 16 December 2020. 3. The applicant now seeks leave to appeal against her conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). 4. The applicant relies upon the following grounds: Ground 1 – A miscarriage of justice was occasioned in that: (a) The trial judge erred by failing to exclude admissions which were ambiguous or equivocal in nature, In the alternative (b) The trial judge erred in failing to direct the jury that they could not act on any admission unless they were satisfied that the words were intended to be an admission of guilt of the offences charges and did not bear some other innocent meaning. (c) The trial advocate inviting the jury to act on admissions which were ambiguous or equivocal in nature. Ground 2 – The verdict was unreasonable or cannot be supported having regard to the evidence. Crown case 1. The applicant and her partner (Gavin Henness, the father of the victim) presented their child at Mount Druitt Hospital at 7am on 30 August 2012. The child was transferred to the Child Protection Unit at Westmead Hospital where she was seen by specialists including Dr Anna Starchurska. C had a number of injuries, including three mandibular (jaw) fractures, bruising on both sides of the face, a pelvic fracture and trauma to the liver and pancreas. 2. The applicant had been temporarily living at a home rented by Rose Porter, a friend. She was living there with her daughters, C aged two and A, aged three. The applicant, along with C and A, occupied one bedroom which was furnished with a set of bunk beds. Although the applicant was in a relationship with Gavin Henness, he did not live at the house and was not there overnight on 29-30 August 2012. 3. The applicant gave an account to hospital staff and then police, which varied in some details, but in which she stated that C was sleeping on the bottom bunk with her sister and that she (the applicant) was sleeping on the top bunk. She had last seen C uninjured at around 1am before going back to sleep and was awakened at 6.30am by C asking for breakfast, whereupon she (the applicant) saw that C's face was injured. She alerted Rose Porter and they bathed C before telephoning Gavin to come and take her to hospital. The applicant thought it was possible that C had tried to climb onto the top bunk and had fallen, but she had not seen this or anything else happening. 4. The Crown case was a circumstantial one which relied upon the medical evidence excluding the reasonable possibility that an accidental fall could have caused all of the injuries; the opportunity for the applicant to assault the child undetected; the implausibility of another person assaulting the child undetected; and the applicant's conduct after the injuries were sustained, including her responses, the inconsistent versions of events provided by the applicant, and admissions made by her to other members of the household. Defence case 1. The applicant's case was that her conduct was consistent with innocence, that she had no history of violence and no motive to assault C, and that the Crown could not exclude the reasonable possibility that the injuries were sustained in an accidental fall or that another person had, for reasons unknown, assaulted the child. The evidence at trial 1. C was born in June 2010 and was aged two at the time of the assault. She was the youngest child of the applicant and Mr Henness. Mr Henness and the applicant had been in a relationship for approximately 16 years. Together the applicant and Mr Henness have five other children. 2. Ms Porter, her daughter Kerry (aged 28 or 29 at the time), Kerry's daughter CT (aged 9) and Ms Porter's grandson TR (aged 14) whom she assumed care of (being the son of her eldest daughter Jamie) were present in the home on the evening of 29 August 2012. 3. The applicant, C and A had been living with Ms Porter on and off, but before the assault they had been at the premises for about four or five weeks. The applicant shared a bedroom with both her daughters while residing with Ms Porter. The bedroom contained a set of single bunk beds. The applicant and the two children normally slept on the bottom bunk. There was a rail guard on the top bunk. 4. C usually slept closest to the wall and A slept on the end. The applicant always put C near the wall. The bunk beds were positioned against the wall next to Kerry's bedroom. CT slept with Ms Porter while the applicant and her daughters remained in the home. 5. Mr Henness was residing in Lethbridge Park. That accommodation was temporary. When he visited the home he would drive there, park out the front or at the side of the house and enter via the front door. He ordinarily would not stay over. If he did stay over he would sleep in the lounge room. One of the reasons why Mr Henness did not stay over was because there had been arguments between himself and the applicant. 6. C was presented to Mount Druitt Hospital at 7.04am on 30 August 2012. She was carried into the hospital by Mr Henness. She was wearing a pink hooded jumper or jacket with the hood pulled over her head. She remained in hospital for approximately one month. 7. The premises where the assault occurred was a four bedroom housing commission home with a separate bathroom and toilet. All bedrooms had doors. TR did not have a door to his room but had a blanket acting as a door to give him some privacy. The laundry was separate from the main house. The back door of the house led into the laundry. There were four steps made of concrete to the backyard. Ms Porter gave evidence that she did not see C go up or down the back steps on her own but that she always required assistance to do so in the form of hand holding. Evidence of Ms Porter 1. Ms Porter was the only one with a key to the house. The practice at the time of the assault was that if Kerry went out, the laundry window was unlocked for her to get in. Kerry was able to reach around from the window and unlock the back door from inside. That routine did not apply to the applicant nor to Mr Henness. 2. Ms Porter occupied the bedroom next to that occupied by the applicant and her two daughters. The acoustics meant that Ms Porter could not hear exact conversations in the applicant's room but could hear talking. Ms Porter slept with her bedroom door closed. Ms Porter sometimes left the hallway light on for CT but otherwise there were no lights kept on in the house. Ms Porter denied any knowledge of a practice by the applicant of leaving the bedroom door partially ajar during the night. She agreed that on most occasions, the applicant went to bed after she did. 3. Ms Porter recollected that one of the children cut their foot in the backyard. She thought there was a little bit of blood on the path. She did not recall it being washed away. The children were told not to go through the "stuff" in the backyard. They rarely went out the back. If C went out the back she would wear shoes. The children were almost always out the front playing. 4. In cross-examination she denied being aware that either C or A had cut their foot. She was unaware of C ever having hurt herself at the back of the house. 5. Ms Porter said that the applicant bathed the children most of the time and would also change their clothes and feed them. The applicant disciplined the children by smacking them on the hand when they were "touching stuff" they were told not to. Mr Henness never really got angry with the children but would take on the discipline role if he were there. 6. C and A always cried to be picked up. They would cry almost constantly. They cried whenever they were not in the applicant's arms. Before 30 August 2012 Ms Porter did not hear either child crying when she was aware that they were going to bed or to sleep. C called Ms Porter "Nan". They had a fairly close relationship. C was always "on the go". The children did not have a usual bedtime but would fall asleep wherever they were and then be taken into the bedroom by either the applicant or Mr Henness. Ms Porter looked after the children if the applicant went out for the day and Kerry also looked after the children from time to time. Ms Porter said that the children had a good relationship with Kerry and she did not observe any difficulties. 7. Ms Porter agreed that she told the police on 30 August 2012 that C was forever climbing. By this she meant climbing on the bunks and the bedside table. She described C as a "pretty active kid". She had seen both children climbing many times and she was concerned that they might hurt themselves. She had seen C climbing during the day when she was in the room and the applicant was on the top bunk. Events of 29 August 2012 1. Ms Porter awoke between 7 and 7.30am. She organised CT to go to school. CT left the home between 8 and 8.30am. TR was not going to school at the time and Kerry was not working. Because of her medication, Kerry normally woke at about 10.30am. TR did not have a set routine for mornings and woke when he wanted to. 2. Ms Porter cooked dinner on 29 August. Dinner was usually finished by 6.30pm, including washing up. They all ate dinner. C ate dinner without difficulties. There was nothing about C's physical appearance which was unusual before she went to bed. After she went to bed, Ms Porter did not hear any crying from the children that caused her concern. The children would normally cry in the lounge room when the applicant told them they were going to bed which Ms Porter regarded as a normal cry. Ms Porter usually went to bed between 10 and 10.30pm. 3. The children watched TV together. Ms Porter gave Kerry her medication at 9pm. When Ms Porter went to bed, the children were in the lounge room with the applicant. Mr Henness was out the front. C was asleep when Ms Porter went to bed. Ms Porter said when she last saw the applicant, she seemed normal. There was no argument between Mr Henness and the applicant and their relationship seemed fine to her. Ms Porter was not aware of the time the children went to bed on this occasion, nor what time Mr Henness left. 4. Ms Porter agreed that she had told the police on 30 August that she had heard C cry that morning but that she did not take much notice of it. She did not know the time when she heard the cry but she did remember that it was dark. She could not tell whether the crying was from C or A, but she thought nothing of it because they used to cry all the time. If she had heard something which caused her concern during the night, she would have checked on it. Events of 30 August 2012 1. On the morning of 30 August Ms Porter was awakened by the applicant. The applicant said "Look at [C], look what I've done. I don't know what I've done." The applicant was yelling but otherwise appeared normal. It was dark at the time and before Ms Porter's alarm had gone off at 7 or 7.30am. Ms Porter saw C standing in the hallway near the bathroom and she had marks all over her face, which were "purplish and black". Ms Porter thought she saw some blood on C's mouth or nose. The bathroom light was on and there was a small amount of water in the bath. There had been no water in the bath when Ms Porter went to bed. Ms Porter did not notice any towels on the floor and C did not appear to be wet. C was not crying and seemed alert. 2. Ms Porter said that at no time in the morning was C crying. She did not see C show any reluctance to go to the applicant. Ms Porter asked the applicant what she had done and the applicant responded "I don't know what happened. I don't know what I've done". The applicant said that she might have knocked C off the top bunk or C might have fallen from there. Ms Porter told the applicant to ring an ambulance but the applicant said that she would ring Mr Henness first. 3. The applicant rang Mr Henness, using Ms Porter's phone, and he arrived shortly afterwards. Ms Porter thought it was possible that CT was awake but she could not remember whether TR got up or not. She was pretty sure that Kerry was still in bed. 4. The applicant seemed a little upset and Mr Henness took her and C to hospital. About 20 minutes or half an hour later, the applicant returned to pick up Ms Porter and A. The applicant told Ms Porter that she had slept on the top bunk that night because she did not want to disturb the kids. Evidence of CT 1. CT was Kerry's daughter. She participated in an interview with police on 29 October 2012. She gave evidence at trial when she was aged 12. CT said that when the applicant stayed with A and C, she did not sleep in her room because they were using it. She had to sleep with her Nan (Ms Porter). She thought that the applicant closed the bedroom door only half way and that C slept on the bottom bunk. The night before the incident, she believed she had gone to McDonalds with the applicant, Mr Henness, A, C and her Nan. 2. C was asleep when they got back so Ms Porter placed her on a mat on the floor and put a blanket over her. When the applicant came back, she took C and A to bed. Mr Henness went home and the applicant and Nan had a cup of tea together. She and Nan then went to bed. She thought the applicant stayed up for a little longer watching TV. 3. The next morning Kerry was still in bed when she saw C in the bath. TR got up when they were all in the lounge room. He asked the applicant what the "f----" happened to C. CT did not know what the applicant said in reply. 4. The applicant said that C fell off the top bunk. She stood on the chest of drawers and climbed. The applicant said C might have hit her face on the chest of drawers. CT was in her Nan's room with her Nan when it happened. The applicant ran into the room and said "What did I do to my baby, what happened? I don't know what I done" (A.202). 5. The applicant said she could not look at C and asked Nan to hold her. Nan told the applicant to put C in a bath and wash her. This is what the applicant did. CT thought C was crying at the time. C had some dried blood on her chin and her cheek. The applicant said that she did not want to wash C any more so Nan did. C was not crying after she got out of the bath. When Mr Henness arrived and asked what happened to C, the applicant said "I don't know, look at her". 6. CT never saw Kerry act violently towards C. They had a good relationship. CT saw the applicant carry C to bed on 29 August 2012. There was no blood on her face or any bruises on her face at that time. Evidence of Mr Henness 1. Mr Henness considered that he had a close relationship with the applicant and he used to visit her at Ms Porter's home every day. He had observed C climb up to him on the top bunk. There was an occasion when C tried to climb up but he told her to get back down again and moved the chest of drawers out of the way. He had concerns about C hurting herself. He had seen C climbing on the bedside table next to the bed. He had witnessed C and other children climb to the top bunk via the bedside table and use a mattress to slide down from the top bunk. C always slept near the wall on the bottom bunk with A. The applicant also slept on the bottom bunk. He had not known her to sleep on the top bunk. The children normally had baths in the mornings. 2. C was very active. She was energetic and clumsy. He never actually saw her climb onto the top bunk, but had seen her on the top bunk. Kerry used to look after the children from time to time and he had not seen her act violently towards them. He did not see any conflict, tension or aggression on the part of Kerry towards C. 3. He did not recall C hurting her foot. He recalled something about one of the other children cutting a foot. 4. On the evening of 29 August he had dinner with the applicant, the children, Ms Porter, Kerry and CT. He was not sure if TR was there also. C appeared fine to him. After dinner he drove to Wallacia. In the car were the applicant, A, Ms Porter and CT. C was asleep at home on the lounge with Kerry who was watching TV. When they returned from Wallacia, C was still asleep. A, who was asleep in the car, was placed on the lounge with C. 5. Mr Henness and the applicant left the house to spend some time together and Ms Porter agreed to look after C and A. When they returned, both girls were sleeping on the lounge in the same position. He and the applicant put them to bed at about 10pm. C was positioned near the wall at the end of the bunk where the drawers were. C's face looked normal to him when he kissed her good night. 6. He left the home at 11 or 11.30pm. The next morning he was awakened by a telephone call from the applicant at 6.30am. The applicant was hysterical. She said "Something's happened to [C] quick, come, come quick". She said C's face was all bruised. He said the applicant was crying on the telephone. He drove quickly to Ms Porter's home which took about five minutes. C was sitting on the applicant's lap on a dining table chair when he arrived. The applicant was cuddling C and comforting her. 7. C's face was bruised. He saw dried blood. C was whingey, as if she was uncomfortable, but apart from that she seemed okay. He carried C to the car. C complained of pain when he carried her to the car but he did not know why. Her chin was on his shoulder. When he put her into the car, she was going in and out of consciousness. 8. As they drove to Mount Druitt Hospital, he asked the applicant what happened. She said she did not know. She thought C might have decided to climb to the top bunk and fallen. C was expressing discomfort and whingeing all the way to the hospital. The applicant was very upset. He carried C into the hospital and then subsequently travelled with C via ambulance to Westmead Hospital. 9. The applicant did not provide him with any further information about what had happened to C. She said she woke up and C was sitting on the bottom bunk and said "Mumma". The applicant did not tell him that she did anything to cause C's injuries. She told him that she had bathed C that morning, but did not say why. He thought the applicant told him that C woke in the middle of the night at about 1.30 or 2am for a bottle or something like that and she was fine. 10. In cross-examination, Mr Henness said that he knew the applicant would not hurt the children because she was not that type of person. She did not even smack the kids and was a "push-over parent". He was mainly responsible for the discipline of the children. He considered the applicant to be a very heavy sleeper who snored. He said sometimes she awoke easily and other times she was hard to wake. He recalled the applicant telling him that she slept on the top bunk on the night of 29 August because she wanted to get a good night's sleep. He denied any knowledge of how C was injured and denied having anything to do with how she was injured. Evidence of Kerry Townes 1. Kerry was Ms Porter's daughter. She was a paranoid schizophrenic and was taking medication for that condition. She saw C the day before they went to the hospital. She was normal and playing. Kerry did a lot of the washing and cleaning in the house. She usually went to bed at about 9.30pm and woke at about 8am. 2. She agreed that she would have a couple of drinks every day and that her mother was helping her control her use of alcohol. She thought she drank about a six pack a day. She did not have a key to the house. If her mother was not home, the back window was left open and she would put her hand through it to unlock the door. 3. She had not seen C climbing on the chest of drawers in the bedroom. She could not hear conversations in the room which the applicant shared with A and C. She used to play with the children and mind them many times. She was looking after A and C on the afternoon and evening before C was injured. She went to bed after the applicant and Mr Henness came home. She took her medication before she went to bed. 4. She was awakened by the applicant and her mother the next morning and told "Look at C". C's face was bruised. C was not crying. She thought the applicant had C in the bath that morning and was bathing her. She did not know how C came to be injured and she had nothing to do with C being injured. Evidence of Jamie-Lee Townes 1. She was an older daughter of Ms Porter and the mother of TR. In August 2012 Mr Henness was temporarily staying with her at Lethbridge Park. She recalled Mr Henness getting in contact with her at 10.30 or 11pm on 29 August about access to her house. He collected the house keys from her and left. The next morning he rang her at around 6 or 6.30am and returned the house keys to her. He told her that there was something wrong with C and she had to be taken to hospital. 2. In the course of giving her evidence, the following exchange took place: "Q. Can you tell me what Nicole said, if anything, in response to that? A. Because after I got the phone call, I turned around and said "Nicole and Gavin, youse need to take me to my mum's house now" and then they said "Why" and I said "Well, Liz just rang me and said 'You'd better come to your mum's. There's a chance like they might remove [TR] and your mum' - then that's when I said "Nicole and Gavin, come on, jump in the car. Drive me to my mum's." Then they were driving and I said to Nicole and Gavin "I'm telling you now" - sorry about my language. I said "I'm telling you now if anything f***ing happens to my mum or she loses these kids, I will kill you" and then Nicole's looked at me and she was crying and she said "I didn't mean for none of this to happen."" (T.248.19) Medical evidence 1. Ms Black, a Senior Social Worker with the Child Protection Unit at Westmead Hospital, interviewed the applicant on 30 August 2012. At the interview were Doctors Anna Stachurska and Preeti Raghavan. The applicant was on her own for this interview. 2. The applicant said that C had been walking since aged 11 months and could climb freehand upstairs. She reported that C was a good climber and had no sleep difficulties. She reported that C had climbed on the chest of drawers next to the bunk bed on previous occasions and that C bruised easily. 3. The applicant said that C slept in the bottom bunk and the previous night she (the applicant) might have climbed onto the top bunk. The applicant said that she liked to sleep next to the children and to know what they were doing. She denied any accidents or broken bones having occurred the day before (29 August). She denied that any violence had occurred before C went to sleep. 4. The applicant reported that she went to bed after watching TV. She gave C a drink at about 12 midnight when she woke up. She had changed C's nappy. There was no blood on C when she changed her nappy and she was talking without difficulty. The applicant described herself as "not a very heavy sleeper". She reported that C was unable to reach door handles. 5. The applicant reported that C woke up at about 6.30am and said "Mum breakky". The applicant surmised that C may have fallen and hit herself on the floor. She said "It didn't wake me up". The applicant denied drinking the previous evening or taking drugs. Dr Stachurska 1. Dr Stachurska was the staff specialist at Westmead Children's Hospital in August 2012. She was working with Dr Paul Tait who was a Consultant Paediatrician at the time. She made the following observations of the victim: extensive bruising to the face, abdomen, back and limbs, abrasions over the anterior abdominal wall, bruising under the left eye, bruising on the left and right side of the face, dry blood in her nostrils, dry blood in and around her mouth, lacerations on her lip, a linear bruise or mark extending from the left side of her eye towards the cheek and below the ear, linear abrasions and some smaller abrasions on the abdomen, specifically on the lower abdomen close to the pubic bone, and a bruise on the top of the left hip. 2. Dr Stachurska also noted a black toenail which was caused by residual blood from previous trauma. She noted a fresh injury to another toe which had a small red mark. She noted bruising behind the victim's earlobe. There was a bruise on the victim's shoulder on the right side. In addition to those observations, the following additional injuries were recorded: three lower jaw fractures and a pelvic fracture. 3. Dr Stachurska was of the opinion that a mandible fracture was very uncommon in this age group. A mandible fracture was more common in older children or teenagers when they were involved in sports and sometimes violence. She explained that in small children the jaw is still underdeveloped while the cranium is bigger. The jaw is more protected with younger children so that the head is most commonly injured first. Dr Stachurska referred to one other case where she observed non-accidental jaw injuries on a two year old child. That child had some other fractures as well, but did not have any external evidence of bruising. Dr Stachurska also considered two other reported cases one of which involved a small child, who came out of a bouncer, and fell face down and suffered a jaw fracture and laceration, but no other injuries. The other case involved an intentional injury of one punch to the child's jaw. 4. Dr Stachurska opined that if the force was significant enough, either by way of an impact or a blow, three fractures of the mandible could be caused. She opined that the injuries to the victim's face and ears were not in keeping with the fracture of the jaw on its own. She opined that there had to be at least three impacts to the victim's face. Those impacts would be from the front and from both sides. Dr Stachurska considered that there was an impact to the victim's forehead as well. She had suffered trauma to her liver and pancreas, demonstrated by elevated enzymes. Dr Stachurska observed that bruising to both ears is uncommon in children suffering accidental falls. 5. C underwent surgical repair of the mandibular fractures on 1 September 2012. The plastic surgeon who conducted the surgery opined that the bruising on the victim's ears and high cheek and the black eye were not related to the jaw fracture because in order to cause such a jaw fracture, the impact would have to be to the front of the chin. Accordingly, the ear bruises were not related to the jaw fracture. 6. Dr Stachurska opined that there were two impact injuries, one on the side and one on the back. She was of the opinion that one cannot have an impact to the front and at the same time to the back – it was simply not possible. There would have to be two separate impacts. 7. Dr Stachurska opined that if the jaw fracture was caused by a fall onto the chest of drawers, that would not explain the injury to the left and right ear, nor the impact injuries to the pelvis area. Such an injury was most commonly observed in direct and high impact situations. Dr Stachurska thought that the pattern of bruises on the victim's forehead would involve a more forceful impact. She was of the opinion that a punch could cause an impact and could also create a bruise. The fracture to the victim's jaw could have been caused by a hard punch. She was of the opinion that the victim's injuries involved multiple body planes. 8. Dr Stachurska was of the opinion that if the victim fell onto the floor via a chest of drawers, there would still be an injury predominantly to one body side, rather than to the front and back and right and left. In the course of her evidence in chief the following exchange took place: "Q. In relation to the injuries on the multiple body planes as you've described and gone through the photographs and the further description of the fractures - bearing in mind that and bearing in mind the bedroom that you've looked at and the layout of the bedroom, in terms of the scenario that's been put to you, a fall from a bunk bed and the chest of drawers, are you able to provide an opinion as to whether it was likely that that could have caused all the injuries or unlikely? A. I'm not looking at individual injuries separately. I need to look at all injuries together, considering that none of them were present before. So I look a number of times on the bunk beds and the drawers and her injuries, and I cannot match them. I know that some - if the hypothesis was they fall from a bunk bed directly onto the ground, I don't think this will be this types of injury. If she fell onto the floor via the chest of drawers, I still think this will be an injury predominantly to one body side, rather than front and back and right and left. So I cannot join those injuries with the scenario proposed. It's very difficult. I don't know how it happened. Q. Because of that process of elimination or exclusion and hypothesis, do you say, bearing in mind the layout of the bedroom, that in the circumstances, the injuries sustained on [C] would have been inflicted? A. I have a high level of suspicion that something else happened, other than this scenario given to me. Q. The scenario doesn't explain the other impact injuries. A. It doesn't explain the other injuries and it's very - it has been very strange to find out that no one have actually witnessed if this injury happening. This is a painful injury. So I have a high level of suspicion that something different - a different scenario may have happened." (T.439.43-T.440.20) 1. Dr Stachurska opined that she would expect the child to cry and otherwise make noises when she suffered these injuries. She was of the opinion that movement would increase the child's pain. 2. In evidence in chief Dr Stachurska said: "Q. I want to provide you a further hypothesis, assuming [C] has injured herself by some type of fall in the bedroom, or has made her way after going to the backyard and then put herself back to bed, what do you say about [C] then waking up at about 6.30am and the first thing that she says is, "Mummy, brekky or bickie," or something to that effect? A. I would not expect her to do that." (T.445.23) 1. In cross-examination the following evidence was given: "Q. Let me ask you this. Is one of the matters that attracts your suspicion the fact that these injuries couldn't have occurred without the awareness of an adult? Is that something that attracts suspicion? A. I would say so. Yes. Q. And the reason for that is because you'd expect that these injuries would be painful to [C] and [C] would cry a lot. Is that right? A. One of the aspects would be pain. The other is the bleeding from the mouth or from the nose, which would be quite easy to observe. Q. But in relation to this particular matter, one of the matters that attracted your suspicion was the fact that notwithstanding the injuries suffered by [C] that no adult claimed any awareness of how those injuries might have occurred? A. That's correct. I cannot understand with those kind of injuries, the bleeding from the mouth and having fractures, somebody has not kind of became aware what's been happening." (T.450.43-T.451.9) 1. In cross-examination Dr Stachurska agreed that it was possible that the victim did not cry. Some children were more resilient and every child had a different threshold for pain. She agreed that if the victim fell down the stairs at the back of the house, she would expect some injuries from that but she could not see it all happening with one fall. She did not think that the distance covered by four or five stairs was sufficient to explain all of the victim's injuries. Her opinion with respect to the injury to the victim's head was that the victim would have been less likely to suffer an imprint from concrete than from carpet. She agreed that the grazes on the victim's knees were more consistent with having fallen on the concrete path than on carpet. She was unable to understand how the grazes on the victim's abdomen could have happened on the stairs or on the concrete. She did not consider those abrasions were from carpet but could be from another object. 2. Dr Stachurska considered that if a person lost consciousness, she would expect that person to be found where the accident occurred, not climbing back into bed. Dr Stachurska maintained that there were four distinct impacts to the victim's head region. She agreed that the injury to the sacrum (the bone at the rear of the pelvis) involved a significant impact and could have resulted from being hit with an object or being thrown against something in that area with force. She considered that the bruise to the victim's abdomen could have involved a punch or a kick or the child falling onto something. She considered that the injury to the victim's hip involved another discrete application of force. Police evidence 1. When police commenced their investigation on 30 August 2012, they interviewed Mr Henness, Ms Porter and the applicant. In the course of those interviews, police did not notice any visible injuries to the applicant's hands. The applicant did not give evidence at trial but provided two statements to police which were before the jury. 2. The applicant told police that on 29 August the children had hot dogs for dinner and C had no trouble eating everything. C had only two marks on her toes and an older bruise on her leg from falling over. After dinner the applicant and the two girls went for a drive, during which time C fell asleep in the car. 3. C cried a little when she was taken to bed at about 8 or 8.30pm. After about 40 minutes, during which time she cried from time to time, C fell asleep. A fell asleep on the lounge. A went to sleep somewhat later than C at around 9.30pm. Thereafter the applicant and Mr Henness spent some time together. They returned at about midnight. By that time Ms Porter was in bed but awake. Mr Henness went home. 4. The applicant went to bed at 12.30am. She left the bathroom door open and the light on. C woke up at 1 o'clock for a drink. There was not a mark on her at that time. The applicant changed C's nappy, had a cigarette and went back to sleep. She was tired. C woke at around 6.15 or 6.30am and said "Mama, bic, bic" which meant breakfast. A said "Mama look at C". 5. The applicant was on the top bunk while C and A were on the bottom bunk. Normally she would sleep on the bottom bunk with the girls but that night she went to bed a bit later than them and thought she would give them and herself a little more room and slept on the top bunk. She accessed the top bunk using the chest of drawers because she was short and the ladder to the bunk was against the wall and could not be used. 6. In the morning when she sat up and looked down at C she saw a little bit of blood. She jumped down, turned on the light and screamed. She rushed C into Ms Porter's room who also jumped up. Ms Porter said that C was fine when she went to bed. The applicant thought to put C in a lukewarm bath which she did. She took her clothes off. She thought she left them in the bathroom and that Kerry might have washed them. 7. The applicant just let the water drip over C to try to get rid of some of the blood. When C cried she took her out of the bath. C followed her down the hallway and the applicant dressed her. C was sobbing, as if she was really hurting. She called Mr Henness using Ms Porter's mobile phone. She told him that something was wrong with C and he needed to come over. 8. She and Mr Henness went to Mount Druitt Hospital and were there for an hour. They were told C was being transferred to Westmead Children's Hospital. The applicant went home, picked up A and Ms Porter and arrived at Westmead Hospital at about 9.15am. 9. The applicant thought the dog may have attacked the victim because it was getting a "bit nippy". The dog is a Maltese Terrier. All the applicant could think of was that C had climbed from the bottom bunk to the chest of drawers, lost her footing, fallen and hit her face either on the drawers or the bed. She normally put A up against the wall in the bottom bunk and C behind her. She said that C had never fallen out of the bed before. 10. The applicant denied being on any medication. She agreed she was a social drinker. She thought it was unlikely that C would have cried without her hearing. In the past she had always woken up if one of the children cried. 11. After the interview with the applicant, a decision was made to remove C and A from the care of the applicant and Mr Henness. When they were told of this decision, the applicant's reaction was quiet and she did not show any emotion. Mr Henness was very emotional and needed to be calmed down. The applicant participated in a second police interview on 22 November 2012. During this interview, the applicant made the following comments in addition to those in the earlier interview. 12. She put C to bed closest to the wall but when she awoke in the morning A was on that side. She put C there because she was little and it saved her rolling and hitting the drawers. When C woke that night, there was already a bottle of milk with her in the bed. The applicant thought Ms Porter must have made it for her and she gave C the bottle. She said "C had done a poo", so she wiped her bottom while she drank the milk and changed her in the bed. She did not move C. The light was on so she could see. At that time there was nothing wrong with C. She was wearing a pink pyjama top and a nappy. A did not wake up. C then went back to sleep. 13. When the applicant woke the next morning, C was sitting on the edge of the bed with her legs dangling. C said "Hi mama". The applicant asked what C had done to her mouth and C replied "Sore". C had blood on the left side of her face and there was a small patch of blood on the mattress and a few dots on the pillow. The applicant was panicking. C was crying by this stage because she (the applicant) had "freaked out and screamed". TR and Kerry got up and the whole house was up after she started to scream and carry on. 14. She threw the clothes C had been wearing into the bathroom, along with the nappy. She did not think of an ambulance. Her first reaction was to get C to a hospital. 15. The applicant said that this was a peaceful night and neither child woke up. There were no interruptions at home until C woke up at about 6.15am. She told Mr Henness that she thought C had fallen off the top bunk when she called him that morning. She only spoke to Ms Porter once. 16. The applicant said that C wrestled a lot with her sister, mucking around. The bruises on her legs were from falling, playing, kicking rocks "or whatever". This was the first night that the applicant had slept on the top bunk at Ms Porter's home. 17. The crime scene examination took place at Ms Porter's home on 31 August 2012. As part of that examination, a number of swabs were taken of what was understood to be blood located in the rear yard of the premises. The area of bloodstain was approximately 20mm by 20mm. The swab came back with DNA matching the victim C. 18. The Crime Scene Examiner did not see any spillage of drink along the chest of drawers, or around that area. The bottom bunk did not have any sheets or bed coverings on it. The Crime Scene Examiner did observe children's clothing on the clothes line in the backyard. He did not recall observing any blood on a pillow. 19. On 31 August Kerry Townes and TR were interviewed by police. 20. During his interview with police, TR said that on the evening of 29 August he watched TV with C and A. C was fine and was not injured in any way. The next morning he saw bruises on her face. He went to bed at about 10pm. When he went to bed, C and A were asleep in front of the TV set. He did not know what time Mr Henness left that night because Mr Henness was still in the lounge room when he went to bed. 21. The next morning he woke when the applicant and Ms Porter were dressing C. He did not wake up until C was in the lounge room. He did not hear anything during the night. He is a heavy sleeper. TR did not give evidence at the trial and was not required for cross-examination. 22. Detective Dunn agreed in cross-examination that police reviewed over 3000 intercepted communications between the applicant and other persons between 11 September and 29 November 2012. At no time did she ever indicate in any of those communications that she inflicted injuries upon C. 23. The applicant had never been charged or convicted of any matter of violence, including violence against children. 24. The applicant did not call any evidence in her case, but relied upon the evidence adduced in the Crown case. The appeal Ground 1 – A miscarriage of justice was occasioned in that: (a) The trial judge erred by failing to exclude admissions which were ambiguous or equivocal in nature, In the alternative (b) The trial judge erred in failing to direct the jury that they could not act on any admission unless they were satisfied that the words were intended to be an admission of guilt of the offences charges and did not bear some other innocent meaning. (c) The trial advocate inviting the jury to act on admissions which were ambiguous or equivocal in nature. 1. At the hearing of the appeal, the Court was advised that the applicant did not intend to rely upon Ground 1(c). 2. By way of factual background, the admissions relied upon by the Crown were as follows: To Jamie-Lee Townes: "I didn't mean for none of this to happen." To Rose Porter: "I don't know what happened, I don't know what I've done." To CT: "I don't know what I've done." 1. None of those statements were objected to by defence counsel at trial. The fact that the applicant had made those statements was not disputed. 2. The only reference to the admissions by the Crown in her closing address was: "There's been a number of conversations relayed during the course of the trial involving what the accused said to various persons. In relation to Jamie Townes, you may recall I asked her a question where she was a bit concerned about using swear words in Court and at some point she confronted Nicole [the applicant] and was concerned about other people being implicated. That, you might think, is a natural reaction. And she said this, that is Jamie Townes said, "I'm telling you now if anything f***ing happens to my mum or she loses these kids I will kill you" and then Nicole looked at me and she was crying when she said, "I didn't mean for none of this to happen". The Crown says it's a matter for you what you make of that, but the Crown says that that could be used as an admission, that is that she is saying that she didn't mean for any of this to happen and you may infer that perhaps she should have come forward and indicated that she committed this assault on [C]. In relation to Ms Porter, she was asked some questions, when the accused went to the bedroom she said something to the effect of, when Ms Porter asked her, "Nicole, what happened? What did you do?" Her response was, "I don't know what happened. I don't know what I've done." The words "I don't know what I've done" is telling, you may think, and that's also repeated in CT's, that is "I don't know what I've done." Well members of the jury in relation to the accused she does know what she's done she's either assaulted the child or she hasn't. …" (T.13.1, 16.12.15) 1. Defence counsel did not in terms deal with the asserted admissions. His overall submission, however, was that the reaction of the applicant was consistent and exactly what one would expect from a mother who woke up to find her child injured and who did not know how those injuries had occurred. He submitted that the applicant, when asked what happened, was consistent in her responses to the effect that she did not know. 2. In support of this ground, the applicant submitted that each of the asserted admissions was readily explicable on the basis that the applicant did not inflict the injuries but nonetheless felt responsible for injuries which happened to her child whilst the child was in her care. Counsel for the applicant submitted that these statements demonstrated the "guilt" that any mother would feel in circumstances where she felt that she should have been more alert and attentive to their child. 3. In her summing up the only reference the trial judge made to the "admissions" was when she came to summarising the respective cases of the parties. In the course of summarising the Crown case, her Honour said: "Then Madam Crown finished with a reminder to you about the conversations that the accused had with other people. Jamie Townes said she confronted the accused and words from Jamie Townes were to the effect of, "If anything happens to my mum I'll kill you", whereupon the accused said, "I didn't mean for none of this to happen". Then Ms Porter said that she said to the accused on the morning of the 30th, words to the effect of "what did you do?" and the accused said, "I don't know what happened. I don't know what I've done." CT also said that the accused said, "I don't know what I've done"." (SU, 14) 1. When summarising the applicant's case on this point, her Honour said: "The next topic Mr Munro spoke to you about was the accused's response to seeing [C] injured. She responded, said Mr Munro, in a way that was consistent with someone who did not inflict the injuries. She went and woke up Rose. She screamed out and that is precisely what you would expect a person who had not inflicted the injuries to do, out of surprise and shock. Then he said that Gavin Henness said he was woken up at about 6.30 by the accused calling him and he described the accused as being very upset. Again, says Mr Munro, that is what you would expect if the accused had not inflicted the injuries." (SU 18) 1. The applicant relied upon the common law on this issue and in particular Burns v R [1975] HCA 21; 132 CLR 258 and R v Buckley [2004] 10 VR 215; 149 A Crim R 122. By reference to those cases, the applicant submitted that before a jury could use an admission they must be satisfied that the statement constituted a truthful representation of the accused's involvement in the crime and must also be satisfied that the words used were intended to be an admission of guilt of the offences charged and did not bear some other innocent meaning. 2. The applicant submitted that while no objection was raised to the admission of this evidence, the representations were genuinely ambiguous and that the Crown had failed to establish that they were in truth admissions at all. The applicant submitted that this evidence should have been excluded as a matter of law and that its admissibility did not involve the exercise of a discretion. 3. The applicant submitted that while the Evidence Act 1995 (NSW) expressly covered the issue of proof of admissions (ss 88 and 142) and the discretionary exclusion of same (s 90) the common law test was still relevant in determining whether as a matter of law, ambiguous or equivocal admissions could be used by the Crown. Consideration 1. When considering this ground of appeal, it needs to be kept in mind that no objection was made by defence counsel to this evidence and it was never suggested that these conversations did not take place. Those matters of themselves strongly suggest that defence counsel at trial did not consider that any unfairness was occasioned by the Crown's reliance upon these "admissions". In that regard, the oft quoted observation by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9] is applicable: "9 … A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function." 1. Along the same lines, it should not be forgotten that, unlike this Court, defence counsel at trial had the opportunity to gauge the performance of witnesses and most particularly, the atmosphere of the trial. His failure to take objection to the evidence, or to the terms in which it was expressed, and to seek further directions from the trial judge (which the trial judge had expressly raised with both counsel) provides strong support for the proposition that he did not think the evidence harmed his client's case. On the contrary, he may well have seen a tactical advantage for the defence in allowing the evidence to be adduced in that it supported an important limb of the defence case, i.e. that the applicant became distraught and upset when she observed the injuries which C had suffered, which was fully consistent with the actions of a mother who had not made any contribution to those injuries. 2. In any event, the submissions on behalf of the applicant in support of this ground are largely misconceived. Insofar as admissibility is concerned, the Evidence Act provides a Code and one must look to its provisions when considering issues of admissibility. The common law applicable before the enactment of the Evidence Act, is of little value on this issue except insofar as it assists in the interpretation of the words of the statute. 3. The relevant exclusionary provisions are sections 90 and 137. Those sections relevantly provide: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. Insofar as s 90 is concerned, if the applicant's responses in the conversations relied upon by the Crown are construed as admissions (as they are capable of being construed) they were not, within the meaning of s 90 of the Evidence Act, made in circumstances that rendered it unfair to use them in evidence. No evidence was adduced and nothing was submitted at trial to suggest that the evidence, if accepted by the jury as admissions, should have been excluded under s 90 of the Evidence Act. 2. The application of s 137 was comprehensively analysed by Simpson J (with whom R A Hulme J and Barr AJ agreed) in R v Burton [2013] NSWCCA 335. The following extracts from that judgment are on point: "134 The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131. … 144 Section 137 does not arise for consideration unless and until the evidence in question has been judged to be relevant. That is because, as mentioned above, s 56(2) provides that evidence that is not relevant is not admissible. Section 56(2) is absolute, allowing for no exceptions. By s 56(1), evidence that is relevant is admissible. Unlike s 56(2), s 56(1) is subject to exceptions specified elsewhere in the Evidence Act. … 157 A number of provisions in the Evidence Act (s 97, s 98, s 101, s 103, s 35, s 137 and s 138) make the admissibility of evidence dependent upon an assessment, by the trial judge, of the probative value of the evidence. Two things may be said about the actual probative value to be assigned to any item of evidence. The first is that the actual probative value to be assigned to the evidence is in the province of the tribunal of fact - in most criminal trials, the jury. The second is that the actual probative value cannot be determined until all of the evidence in the trial is complete. By way of example, evidence of a positive identification of an accused person as the perpetrator of a crime may appear to have powerful probative value when it is admitted. Its actual probative value may diminish, even to the point of extinction, in the light of other evidence, whether given in cross-examination, or by other witnesses. … 159 The actual probative value of any item of evidence will often be determined by reference to the credibility or reliability of the witness through whom it is given. That is the simple case. In other cases, the actual probative value of the evidence may depend on what interpretation is placed upon it - or what inferences are drawn from it. The present is such a case. As I have noted above, there is no issue that the respondent spoke the words recorded. As I have also noted above, I accept that his answers to the complainant may legitimately be interpreted by the jury as unequivocal admissions of sexual intercourse with the complainant, in circumstances where she was asleep and therefore not in a position to consent. … The assessment of the potential probative value of the evidence must disregard the more benign interpretation and focus on the interpretation most favourable to the party tendering the evidence. That alternative interpretation is, in my opinion, for the purpose of assessing the potential probative value of the evidence, irrelevant. What the court is concerned with at the stage of determining admissibility is its potential probative value. … 160 Where an item of evidence is capable of different interpretations, or is susceptible of "competing inferences", its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue. This was the approach taken by James J, with whom Rothman and Harrison JJ agreed, in R v SJRC [2007] NSWCCA 142; his Honour said: "38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the inference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice. 39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn."" 1. Applying those statements of principle to the facts of this case and this ground of appeal, it is clear that no unfair prejudice has been identified in respect of the evidence other than the fact that the evidence is capable of bearing another interpretation. As was made clear in the passage from R v SJRC, that fact does not amount to unfair prejudice. 2. There are two other problems which confront the applicant when relying upon this ground of appeal. There is considerable authority from this Court to the effect that s 137 has no application unless an objection to the evidence is actually taken (FDP v R [2008] NSWCCA 317; 74 NSWLR 645, Shepherd v R [2011] NSWCCA 245; Poniris v R [2014] NSWCCA 100 and Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89). While there is authority to the contrary (R v Le [2002] NSWCCA 186; 54 NSWLR 474 and Steve v R [2008] NSWCCA 231; 189 A Crim R 68) the better view is, in my opinion, that set out in FDP v R and Perish v R, i.e. that s 137 only applies if evidence is wrongly admitted over objection. 3. The other problem faced by the applicant in relation to this ground of appeal is that, in the absence of any objection being taken at trial to the admission of this evidence, r 4 of the Criminal Appeal Rules applies. In ARS v R [2011] NSWCCA 266 Bathurst CJ (with whom James and Johnson JJ agreed) identified the following important considerations in respect of r 4: "148 … The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. …" 1. In Obeid v R [2017] NSWCCA 221 Bathurst CJ (with whom Leeming JA, R A Hulme J, Hamill J and N Adams J agreed) said: "24 … To that extent, they raise matters which, if correct, would constitute a miscarriage of justice and thus r 4 would have no application. Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant's favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R (No 2) [2011] NSWCCA 266 at [147]; Greenhalgh supra per N Adams J at [47]-[48]." 1. In the present case there was no miscarriage of justice in admitting evidence of the statements by the applicant capable of being relied upon by the Crown as admissions to having caused the injuries to C. On the contrary, when assessing whether a statement is capable of being regarded as an admission in a trial, any alternative competing inferences must be disregarded because the question of relevance, and therefore admissibility, turns upon the extent to which the evidence has the capacity to bear upon the proof of the facts in issue. The evidence relied upon by the Crown had that capacity. 2. In similar vein, no submission was made at trial that his Honour should direct the jury in the terms now said to have been called for by ground 1(b). 3. Secondly, and in any event, the direction now said to have been necessary is really a matter of common sense: if the jury does not regard a statement said to be an admission as indeed an acceptance of guilt by the speaker, then self-evidently they will not use it as such. 4. In light of the clear competing submissions in the final addresses at trial about that topic, there is no risk that the jury misunderstood this aspect of its task of assessment. 5. The applicant has not established that the absence of the directions for which she now contends constitutes a miscarriage of justice. 6. It follows that not only has this ground of appeal not been made out in either of its aspects, no proper basis has been identified as to why r 4 would not apply. I would refuse leave to the applicant to rely upon this ground of appeal. Ground 2 – The verdict was unreasonable or cannot be supported having regard to the evidence. 1. The applicant divided the Crown case into six categories and proceeded to point out what was said to be the weaknesses in those categories. 2. The six categories identified by the applicant were: 1. The expert medical evidence. 2. That she was the last person to see C uninjured and the first to see her injured. 3. The admissions made by her. 4. That she was a light sleeper. 5. The lies which she told. 6. Her delay before C was taken to hospital. 1. The applicant submitted that care had to be taken when assessing the evidence of Dr Starchurska because many of her answers assumed that the injuries suffered by C occurred in the bedroom. The applicant submitted that there was no evidence to that effect and there was evidence to the contrary. The applicant referred specifically to the finding of some blood belonging to C on concrete paving at the rear of the house. The applicant submitted that this left open the reasonable possibility that the injuries had been inflicted on C outside the house and accordingly, rendered unsafe the assumption by Dr Starchurska that the injuries suffered by the victim occurred in the bedroom. 2. The applicant submitted that cross-examination of Dr Starchurska showed that she had limited experience in assessing non-accidental injuries on two year old children. It was submitted that this significantly weakened the effect of her evidence, even though she was the only medical expert to give evidence in the trial. 3. The applicant submitted that even if the evidence of Dr Starchurska to the effect that it was impossible for all of the victim's injuries to have been brought about by an accidental fall was accepted, that evidence could not exclude as a reasonable possibility that some other occupant of the house, or even a stranger, had inflicted the injuries on C. The applicant submitted that it was just as likely that Kerry Townes or TR had caused the injuries to C. The applicant referred to Kerry Townes' diagnosis of paranoid schizophrenia as providing an explanation for any attack that she may have perpetrated against C. The applicant also referred to Kerry Townes' consumption on a daily basis of beer. The applicant noted that no forensic examination of the bedroom of Kerry Townes was carried out. 4. The applicant submitted that very little was known about TR except his age and the fact that he was in the house at the time that C was injured. The applicant noted that there was no independent evidence concerning his movements between 1am and 6.30am on 30 August. No forensic examination of his bedroom was carried out. 5. The applicant noted the open window at the back of the house which could have been easily used by an unknown person to break into the house and assault the victim. 6. In response to the Crown's submission that she was the first person known to have come in contact with the victim after she was injured and the last to see her uninjured, the applicant submitted that she had never previously engaged in any violent behaviour, particularly towards her children. The applicant also relied upon the description of her as a "pushover" parent who was very indulgent to her children. She submitted that this was the effect of the evidence of other persons living in the house who had observed her behaviour. 7. In relation to the admissions, the applicant adhered to the propositions she relied upon in support of Ground 1 – i.e. that the evidence was inadmissible because of its ambiguity. 8. The applicant's submission in response to the evidence that she was a light sleeper and by inference, should have awakened if the applicant had been assaulted by someone else in the bedroom while she was asleep, was that she was very tired. There was also a strong likelihood that the assault took place outside the bedroom in the backyard where some of the victim's blood was found. The applicant submitted that if the assault took place outside the house, this would adequately explain why she did not wake up at the time. 9. The lies relied upon by the Crown went only to credibility. The applicant submitted that the alleged lies related to places which she had visited in the afternoon of 29 August. She submitted that even if she were mistaken as to the detail of which shops she visited, the lies (if they were lies) had nothing to do with the offence and no motivation was identified as to why she would bother to tell lies about such incidental matters. 10. The Crown relied upon her statement to police that she had only limited contact with Rose Porter as a lie. To establish this the Crown called a significant amount of evidence which showed that there was considerable contact between them by telephone in the days and weeks following the assault on C. The applicant's response was that the question put to her was ambiguous at best and that the important thing to emerge from the contact between her and Ms Porter was that at no time during many telephone conversations did she ever say anything which could be taken as an admission that she had caused any of C's injuries. 11. The applicant did not accept that she had inexplicably delayed taking the victim in hospital. She submitted that it was reasonable for her to wash her daughter, particularly when dried blood was observed. She submitted that, given her distraught state, it was reasonable for her to rely upon Mr Henness to drive to the hospital, rather than having the presence of mind to immediately call an ambulance. The applicant also submitted that the extent of the injuries suffered by C was not obvious at the time. C was walking and talking. The applicant submitted that she was not responsible for the removal of the bedding and in particular the pillow case from the lower bunk. The inference left open was that Kerry might have washed those items since that was a job which she normally performed. 12. In summary, the applicant relied upon the following evidence to make out this ground of appeal: 1. Her good character and her indulgent treatment of her children up to and including the night before C was injured. 2. The presence of C's blood in the backyard, which left open the possibility that she could have been assaulted outside the premises. 3. That she was tired when she went to bed, which left open the possibility that she did not awake when C either left the bedroom or was removed by someone. 4. The opportunity for other persons in the house (or an unknown person not being an occupant) to inflict injuries on C. 5. The evidence that C was an active child who was capable of walking and climbing. 6. Her obvious distress when she observed the injuries to C. 7. The fact that in 3000 phone calls subsequent to the assault she made no admission that she had injured C. 1. The applicant submitted that when those matters were taken into account, it was not open to the jury to conclude beyond reasonable doubt that she had assaulted C. Consideration 1. The manner in which this Court approaches a ground of appeal of this kind is stated in M v The Queen [1994] HCA 63; 181 CLR 487 and SKA v The Queen [2011] HCA 13; 243 CLR 400. In SKA the plurality (French CJ, Gummow and Kiefel JJ) said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'. 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 1. In Hawi v R [2014] NSWCCA 83 Bathurst CJ (with whom Price and McCallum JJ agreed on this point) explained the application of the test of whether a verdict of guilty is unreasonable: "308 It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (MFA) at [26] and [55]-[56])." 1. More recently, Bathurst CJ (with whom Johnson and Fullerton JJ agreed) in Dickson v R [2017] NSWCCA 78 made statements to similar effect: "85 As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. 86 In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48]." 1. As Bathurst CJ made clear in Dickson v R the correct approach for this Court when considering a circumstantial case is to take into account the totality of the circumstances, rather than to consider each circumstance in isolation. The relevant circumstances and how they were taken into account in the formulation of the Crown case are set out at [8] hereof. 2. The only medical evidence in the case was that of Dr Starchurska. Her assessment of the injuries suffered by C was that they could not be explained by an accidental fall. Despite being heavily cross-examined, she did not resile from that primary position. Although she agreed that a fall whereby C's chin impacted with the chest of drawers could cause the jaw fractures, this would not explain all of C's injuries. She said that even if one allowed for the possibility of a fall from the top bunk onto the chest of drawers and then onto the floor, which could potentially explain the jaw fractures and the pattern bruising to the forehead, it would still not explain the injuries to the left and right ears, the back, the pelvis or the thighs. Dr Starchurska concluded that because the injuries had affected multiple body planes, a scenario in which C fell from the bunk bed whether or not involving the chest of drawers, could not account for all of the injuries. 3. It is not accurate to discount the evidence of Dr Starchurska as coming from someone inexperienced in dealing with such injuries. She was a specialist in the Child Protection Unit at Westmead Children's Hospital. What she did indicate was that injuries to the jaw of this kind for a child of the victim's age were very unusual and consequently there was a paucity of data in relation to that kind of injury to a child that age. If anything, the rarity of this kind of injury for a child of two was yet another reason for doubting that its occurrence was due to an accident. That concession by Dr Starchurska does not in any way adversely affect the quality of her evidence. 4. On the basis of Dr Starchurska's evidence, not only was it open to the jury to be satisfied beyond reasonable doubt that the injuries to C could not be explained by way of an accident or misadventure, it would have been unreasonable to reach any other conclusion, since her evidence was the only expert evidence on the subject. I am satisfied beyond reasonable doubt on that issue, i.e. that the injuries suffered by C were deliberately inflicted. 5. Once that is accepted, it is necessary to consider the remaining circumstances to assess whether they are sufficient to establish beyond reasonable doubt the identity of the person who inflicted those injuries. 6. It is also incorrect to challenge the evidence of Dr Starchurska on the basis that she made an inappropriate assumption that the injuries occurred in the bedroom. A proper reading of the questions and answers makes it clear that some questions were based on the assumption that the injuries occurred in the bedroom and others on the assumption that the injuries were inflicted outside the bedroom. In any event, that challenge to the evidence of Dr Starchurska does not affect her reasoning as to why the injuries could not have had an accidental cause. 7. In my independent assessment of the evidence the following circumstances strongly implicate the applicant as the person who assaulted C. 1. It was not in issue, and supported by the evidence of all witnesses who were present at the home, that C was uninjured when seen on the evening of 29 August probably until about 11pm. 2. It was the applicant's evidence that she saw C at 1am and she was uninjured then. 3. No member of the household, including the applicant, said that they heard any noise or C crying out from the bedroom in the night, consistent with an accident of the kind that would have been required to cause even some of her injuries. 4. In Dr Starchurska's opinion the nature and extent of the injuries excluded as a reasonable possibility that they were sustained in an accident by falling down the stairs at the back of the house. 5. A scenario where by C would have made her way back up the stairs, into the house and back into her bed without any member of the household being alerted after sustaining such injuries and a fall outside is incredible. 6. C had a fresh wound to her toe, which could have been the source of the blood on the concrete path, at the back of the house. 7. The applicant consistently gave an account in which she saw C uninjured at 1am, remained sleeping in the same bedroom and was awakened by C making her usual request for breakfast at 6.30am. Given the nature of C's injuries (in particular the fractured jaw) and the pain that would have caused, the prospect that she would have asked for breakfast is also incredible. In that regard, it should be noted that C was given morphine at the hospital when she was admitted. 8. Despite having been bathed, and having her clothes changed by the applicant and/or Ms Porter before she was taken to hospital, there was still some dried blood remaining around her nostrils. 9. There were inconsistencies in the applicant's accounts of details, including the time she and C went to bed, whether C drank from a bottle or a cup and the position in which the children were sleeping. These matters on their own can be readily explained but taken together could lead to a conclusion that the applicant's account of how she discovered the injuries should be rejected. 10. The blood found on the pillow and mattress indicate that C did end up on the lower bunk after sustaining her injuries. 11. It is quite implausible for another person to have inflicted the extensive injuries which C suffered in the bedroom without the applicant hearing something. Alternatively, if another person had inflicted the injuries, he or she would have had to remove C from the bedroom, assault her and return her to bed all without the child crying, calling out or otherwise alerting the applicant or any other member of the household. This scenario is so implausible as to be incapable of belief. By contrast, the applicant was in a position to inflict injuries upon C, behind a closed bedroom door, without necessarily alerting other members of the household. 12. The applicant's highly emotional response in the morning when she saw the extent of C's injuries was equally consistent with her not realising the extent of the injuries when she first inflicted them as with her becoming aware of those injuries for the first time. Her undisputed statements to Ms Porter are also consistent with this: "Look at C" and "I don't know what's happened" and "I don't know what I've done". When confronted by Ms Porter asking "What did you do?" the applicant repeated "I don't know what I've done". These words are capable of being regarded as an admission that the applicant had to her own knowledge assaulted C but was shocked or even distressed at the extent and seriousness of the injuries. 13. There was no evidence whatsoever to connect TR or Kerry Townes to the injuries suffered by C. In the case of TR, his recorded statement to the effect that he was in his bedroom asleep and not aware of anything happening to C, was admitted into evidence without objection and he was not cross-examined. Kerry Townes gave evidence in the trial. At the end of her evidence, the following questions were asked and answered: "Q. Ms Townes do you know how C got injured? A. No I don't. Q. Did you have anything to do with C being injured? A. No mate, no way." (T.295.12) 1. It is nothing other than speculation to suggest as a reasonable hypothesis consistent with the applicant's innocence that either TR or Kerry Townes was the person who assaulted C. 2. When appropriately assessed as a circumstantial case, the case put forward by the Crown was strong. Having independently assessed all of the evidence and having regard to the medical evidence and the matters referred to at [147] hereof I am satisfied that it was open to the jury to find beyond reasonable doubt that the applicant was the person who assaulted C and is guilty of the offence of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act. 3. The orders which I propose are: 1. Leave to rely upon Ground of Appeal 1 is refused. 2. In respect of Ground 2, leave to appeal is granted but the appeal is dismissed. 1. WALTON J: I agree with Hoeben CJ at CL. 2. BUTTON J: I agree with Hoeben CJ at CL. 3. To be clear, with regard to Ground 2, my own assessment of the evidence is that all rational hypotheses other than the guilt of the accused have been excluded beyond reasonable doubt. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2018