Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Manocha v R [2019] NSWCCA 122 Hearing dates: 22 March 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Before: Basten JA at [1]; Adams J at [72]; Ierace J at [80] Decision: (1) Grant the applicant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW — appeal against conviction — application for leave —conviction for recklessly causing grievous bodily harm and failing to provide child with necessities of life — medical and biomedical evidence of the cause of injuries — whether verdict unreasonable or cannot be supported having regard to evidence CRIMINAL LAW — appeal against conviction — whether verdict unreasonable in light of acquittal on count of intentionally causing grievous bodily harm — whether modified circumstantial evidence direction should have been provided CRIMINAL LAW — appeal against sentence — whether error in assessing objective criminality —precise mechanism of injury unknown Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5 Category: Principal judgment Parties: Mamta Manocha (Applicant) Regina (Respondent) Representation: Counsel: Mr I McLachlan (Applicant) Mr G Newton (Respondent) Solicitors: Watsons (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/45019 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 June 2017 Before: Ingram SC DCJ File Number(s): 2014/45019 Judgment 1. BASTEN JA: In May 2013 a child, known in the proceedings as "GC", was placed in the foster care of the applicant, Mamta Manocha, and her husband. On the afternoon of 25 July 2013 GC was admitted to Westmead Hospital with an occipital skull fracture, bilateral subdural haematoma, defused cerebral oedema, bruising and bone trauma. Subsequent examinations indicated further conditions. 2. The applicant was subsequently charged and, on 21 February 2017, entered a plea of not guilty with respect to three counts on an indictment, namely: 1. causing grievous bodily harm to GC with intent to cause grievous bodily harm; 2. in the alternative to count 1, recklessly causing grievous bodily harm to GC; 3. being a person having parental responsibility for GC, recklessly and without reasonable excuse failing to provide him with the necessities of life, thus causing a danger of serious injury to GC. 1. Following a trial, a jury returned a verdict of not guilty on count (1), but guilty on counts (2) and (3). On 16 June 2017 the applicant was sentenced to imprisonment for 7 years, with a non-parole period of 4 years 6 months. She now seeks leave to appeal from her convictions and the sentences. 2. With respect to the proposed conviction appeal, there was a specific allegation that a miscarriage was occasioned "by not giving a modified circumstantial evidence direction": ground 2. The applicant accepted that the judge had given the jury an appropriate general direction with respect to circumstantial evidence; the complaint was that a more detailed direction should have been given in relation to the possible mechanisms by which injury occurred and the need to eliminate a reasonable doubt that it may have occurred otherwise than in the manner postulated by the prosecutor. It was accepted that no further direction was sought at the trial and that accordingly leave was required with respect to this ground pursuant to r 4 of the Criminal Appeal Rules. For reasons explained below, leave should be refused. 3. The applicant further alleges that the verdicts of guilty on counts 2 and 3 were "unreasonable having regard to the nature and quality of the evidence and the verdict of not guilty for count 1": ground 1. This ground requires a grant of leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). It is an appropriate matter for a grant of leave; however, the appeal should be dismissed. 4. The applicant filed a separate appeal against her sentences. The primary challenge was to the assessment of the objective criminality of the offending under count 2; it was further said that that error infected the assessment of objective criminality with respect to count 3. There should be a grant of leave to appeal against the sentences imposed, but the appeal should be dismissed. Factual background 1. Although the applicant did not give evidence at her trial, she had participated in a recorded interview with police in the course of which she denied causing any harm to GC. The manner in which GC suffered his undoubted injuries was, therefore, a central issue in the trial. The critical evidence fell into four categories, namely (i) the history of events on the morning and early afternoon of 25 July 2013 at the applicant's home; (ii) medical evidence of the injuries received by GC; (iii) expert medical evidence as to the likely causes of the injuries suffered, and (iv) expert biomechanical evidence as to the possible mechanisms by which such injuries might be caused. It is convenient to address the evidence in that order. (a) events of 25 July 2013 1. In July 2013 GC was 11 months old. He had been in the care of the applicant and her husband for two months. They had had the care of GC's older brother for some 18 months. By 18 June the parents were having difficulties with sleep because GC was "crying frequently, waking up three or four times a night, sometimes stays awake for an hour crying". [1] On 26 June 2013 the applicant broke her toe. 2. On the morning of 25 July 2013 the applicant's husband started work at 6am; he finished work at 2pm. At 9am a friend of the family collected the older boy to take him to day-care. He undertook that trip on behalf of the applicant because her foot was in plaster. He saw GC who put his arms up to him and picked GC up and was playing with him. [2] GC was in good health at that time. 3. At about 2pm that afternoon the applicant made a number of telephone calls. One was to the friend, Mr Sharma, who had picked the older boy up in the morning and had then gone to work, starting his shift at 1pm. The applicant was described as "in panic and half crying" and having said "something has happened to [GC]." Mr Sharma agreed to call his mother, who was a friend of the applicant. [3] 4. At about the same time (2pm), the applicant had made a number of phone calls to her husband, who had finished his shift and was driving back to their home. After a number of missed calls, he pulled off the road to reply and spoke with the applicant who described GC as "not waking up." He then made a 000 call for an ambulance. That call was made at 2.09pm and the first emergency response officer arrived at the applicant's home at 2.15pm. 5. The primary issue in the proceedings was what happened between about 9am, when GC was last seen by an independent witness and was in good health, and about 2pm when the applicant made various telephone calls stating that GC was unresponsive. 6. In a record of interview with the police, the applicant described an incident in the course of the morning (apparently before 11am) when she had been working in the kitchen and heard GC crying in the lounge room. When she investigated he was under a chair. At about 11am she gave him a slice of bread for lunch and he continued to play. Some two hours later she said that he began to cry and, thinking he was ready for his afternoon sleep, prepared some warm milk. As she was preparing the milk she realised he was no longer crying and went to investigate; she at first thought he had gone to sleep, but he was unresponsive and his head was flopping to one side. (b) medical evidence of injuries 1. By the time the first paramedic from the ambulance service arrived, at that time a friend of the applicant, Ms Seema Rani had been called by the applicant and had arrived at the house. She had described GC as lying on the carpet with his eyes rolling backwards and making circular movements with his arms. 2. When the paramedic, Stuart Peterson arrived, he found that the child's pupils did not respond to light and he had a bruise on his right cheek near the nose, under his eye. He applied oxygen, having called for assistance. A second car arrived at 2.23pm with a qualified paramedic, Mark Richardson and a trainee. At about that time GC "started fitting and going stiff, and posturing in what is known as a decerebrate manner … that would indicate some kind of brain injury." [4] Mr Richardson took the child to the ambulance and administered an intramuscular injection to reduce his fitting. The ambulance departed for Westmead Children's Hospital. 3. Mr Peterson asked the applicant "if the patient had had any medical history, including allergies; any recent history; whether the child had had a fall or anything which might account to [sic] the bruising to the face." The applicant stated that "the child had eaten lunch and played for a little while before becoming unresponsive." Mr Peterson was asked whether there was any further conversation and stated: "Yes. Initially the mother denied any falls or strikes to the head, but on further questioning the mother stated the child had fallen earlier in the day when trying to stand up against the chair, and the chair had fallen on him. The mother told me the chair was from the dining room table but did not tell me where the chair had landed on the child." 1. At that stage, Mr Peterson described the child's breathing as "erratic"; his Glasgow coma scale score was 3, being the lowest score, with a healthy person scoring 15. The score rose to 7 at 2.50pm, just before they reached Westmead, after administering oxygen for some 20 minutes. 2. The child was seen by Dr Anna Stachurska on the following day, 26 July 2013 who noted a number of bruises and abrasions, including (i) a bruise to the right side of the face on the higher part of the cheekbone; (ii) two superficial linear abrasions to the right side of the face around the jaw; (iii) a superficial abrasion on the right ear; (iv) a bruise over the left temporal region of the skull outside the eye socket; (v) a bruise on the upper right shoulder; (vi) five circular bruises over the left middle back along the thoracic spine; (vii) six bruises over the middle aspect of the left inner thigh; (viii) a bruise over the middle of the posterior left thigh; (ix) a bruise over the left lower leg, above the left ankle; (x) a bruise over the left foot and a bruise on the right outer thigh with five superficial "punctiform abrasions". 3. A CT scan had been taken shortly after 4 pm on 25 July, [5] which revealed an undisplaced linear left occipital skull fracture and bilateral subdural haematomas extending into the inter-hemispheric fissures both anteriorly and posteriorly and a small amount of blood in the left parietal region and diffuse cerebral oedema. 4. On 31 July 2013, an MRI was undertaken which indicated swelling or oedema in the inter-spinal ligament between C1 and C6. There was some blood around the thoracic areas, but it was not possible to say where the blood had originated in circumstances of a subdural haematoma in the posterior fossa. 5. On 30 July GC had undergone an examination by an ophthalmologist who had reported that there were retinal haemorrhages on both eyes, at different levels and layers of the retina. 6. On 15 August 2013 a skeletal survey was undertaken which showed periosteal reaction, being a response to trauma where there has been an injury to the bone. (c) medical evidence as to likely causes of injuries 1. Dr Stachurska was given the account provided by the applicant as to the fall suffered by GC some three to four hours before he became unresponsive. Dr Stachurska was unable to reconcile that account with the injuries. With respect to the skull fracture and the subdural haematoma, she said: [6] "… if the subdural hematoma under the fracture [site] is bleeding profusely, [it] may develop what we call space-occupying mass, so this [dis]places the brain onto one side and then the child may … collapse and be very sick. So this usually happens with quite significant impact, when there is a significant impact to the head and you have a large subdural which shifts the brain towards different sides. We have a different situation. We have a child who [has] subdural bleeds in relatively thin layers but in almost all compartments of the brain. So it's not secondary to the impact, it's secondary to – and usually we see this with some repetitive rotations of the head where the bridging veins or other veins ruptures from the acceleration and [decelerations] in the rotation form." 1. With respect to the bruising, Dr Stachurska stated: [7] "So, well, those bruises are not pattern bruises so I cannot say it – what object was against or what object hit the – to cause those bruises but those bruises are in different parts and planes of the body … if I'd been told that … a chair [fell] on the face, yes, you can have a bruise but … I've been also told that there was not any objects under him when he was found so if he had bruises on his back, under his legs and the inner aspect of his thigh, I'm not expecting those bruises [to] be explained by one incident. … So we don't see children coming into our hospital in these critical conditions from a fall from standing position. That's very, very unusual." 1. Dr Stachurska was cross-examined in relation to the retinal haemorrhaging, the bruising, the periosteal reaction in the long bones of GC's forearms, the fact that he was having seizures when the ambulance arrived, the skull fracture and the subdural haematoma. She concluded her examination with the following opinions: [8] "I do not understand that a child presenting with so severe [an] injury could have been playing and eating normally. Some children may present with vague symptoms, not necessarily collapse and having seizures, but they are irritable, they are sleeping, they may be vomiting, they may be not themselves, so they always come to be symptoms with severe head injuries. … most of the types of injury [GC] sustained, I'm not talking about skull fractures but the subdural haematomas, I would expect him to be symptomatic from the time this has happened. … … And the history provided by [GC's] carer does not adequately explain the severity of his head injury, the multi-layered retinal haemorrhages in the four quadrants of the retina and extent of his bruising and bilateral bony trauma to his both forearms [leaving] [GC's] injuries highly suspicious for inflicted injury. As a consequence of his head injury [GC] will have lifelong physical and intellectual disability." 1. In the course of cross-examination, Dr Stachurska was pressed as to whether she could exclude the possibility that the injuries suffered by GC were occasioned in the manner the applicant described. The final question and answer in the cross-examination were as follows: [9] "Q. … You cannot exclude the injuries that you observed in this infant based on what you were told by the accused who was reporting to you an unwitnessed accident? A. Some of the injuries I cannot exclude but all of them will be very, very unlikely. I cannot see that the child sustained head injuries, injuries to the bones and bruises in the front and in the back. That's very hard to understand." 1. Dr Chaseling, a neurosurgeon, was called to explain the nature of the surgery undertaken on GC on 25 July 2013. He explained that there was a thin subdural haematoma which was quite diffuse, but was likely to give rise to cerebral swelling, which could be fatal. He rejected the proposition that it was a "space-occupying lesion", which would involve a large blood clot which needs to be removed. Dr Chaseling was not cross-examined. 2. Dr Jane Edwards gave extensive evidence in relation to the way young children can suffer brain injuries. She described how retinal injuries could result from a rotational force creating sheering between the eyeball and the layers at the back of the eye. [10] Dr Edwards also described the presence of an occipital skull fracture as a very uncommon skull fracture in a young child, being at the back of the head, just above the connection with the neck. Normally when a child falls, the bone likely to fracture is the thinnest bone and not the largest bone. Significantly more force is required to fracture the occipital bone. She described the likely force required to create such a fracture as a fall from over one metre onto a hard surface with the head flexed forward so that the bone at the back of the head was exposed. [11] Dr Edwards also rejected the proposition that GC had a space-occupying haemorrhage. 3. Consistently with the account given by Dr Stachurska, she rejected the proposition that a child suffering a severe head injury would be completely normal for some hours before suddenly collapsing. [12] She was asked to state what sort of incident would explain the occipital fracture, the subdural haematomas and the retinal haemorrhages and stated: [13] "So it has to be a quite high force incident so either a fall from a significant height or as I said before some initial accelerating event where the child is flung or there is a push to the child or thrown or there is – the head is actually forcibly impacted against something whether holding the body so that the head rotates as well so those sort of scenarios could account for such a head injury." 1. Again consistently with Dr Stachurska, Dr Edwards described the multiple sites of bruising as not able to be accounted for by a single fall. [14] She rejected the "reported four hour symptom free interval involving this fall and low forces involved in this fall" as not accounting for "the type and severity or the totality of his head injuries." [15] 2. The defence called expert evidence from Dr Johan Duflou, a clinical professor at Sydney University with expertise in forensic pathology. 3. None of the reports prepared by the medical practitioners was tendered. However, most of the brief examination in chief of Dr Duflou consisted of reading passages from his report and obtaining his agreement with them. Dr Duflou's evidence involved a number of propositions of which only two seriously challenged the opinions expressed by Dr Edwards, on whose report (which was not before the Court) Dr Duflou was apparently commenting. First, Dr Duflou took issue with the possibility that the injuries caused to GC resulted from severe shaking. He treated that proposition as unlikely to be correct because there was no bruising or injury to the ribs and chest. Dr Duflou was satisfied, however, that "it is entirely possible that the head injury sustained was as a result of being inflicted by another person". [16] 4. So far as the multiple bruising was concerned, Dr Duflou noted that it is not easy to determine when the bruising occurred and therefore concluded that the bruising may not have been the result of the conduct which led to the head injury. 5. Thirdly, Dr Duflou noted that the possible interspinous ligamentous injury may not have been the result of the fall. He correctly noted that it had not been detected until an MRI was undertaken six days after admission. Dr Stachurska did not place significant weight on the possible ligamentous injury, although it was consistent with a severe rotational force applied to the neck. Finally, whilst satisfied that the injury to the head could have been inflicted by another person, Dr Duflou was also of the view that it could have resulted from a chair falling on to the child as he fell over backwards. 6. In cross-examination, Dr Duflou was asked about his view that symptoms from a head injury might appear "suddenly or gradually". [17] His evidence continued: "Q. So would it be the usual case that a child would be immediately symptomatic after a head injury? A. If the head injury is a severe one with the production of subdural haemorrhage, yes. Q. So as in this case? A. Yes it would be the usual that the child would appear to have a head injury to a parent. Q. What sort of symptoms would you expect? A. The child may be anything from unconscious totally unresponsive, to vomiting, being drowsy, not feeding, being grizzly, and anything in between. Q. And not their normal self? A. Yes correct. Q. Would you expect a child to be their normal self after a severe head injury? A. I would – I wouldn't expect them to be but there certainly have been very well documented cases. Q. Is that because in some instances the swelling in the brain increases over time? A. I suspect there are many reasons, but the major ones is that well brain swelling on its own, the brain can respond to any injury by swelling. … The second problem here is the presence of subdural haematoma and this blood clot, takes up room within the skull and compresses the brain as a result. So in the end it's very similar to brain swelling so you probably have an additive effect and as it – as the space occupying lesion increases in size, whether it's from brain swelling or from the haematoma it causes damage to the brain and that damage manifests as the patient deteriorating over time. Q. Are you talking about the brain being reduced in size as a result of the swelling or the bleeding? A. Well the swelling increases the brain size, the haematoma compresses it. … And it can also distort the brain causing what is called herniation and that can also cause quite severe secondary damage to the brain. Q. We've heard evidence about midline shift-- A. Yes. Q. --is that what you're talking about? A. Well midline shift is one example of herniation yes. … Q. So leaving aside that, so bleeding within the head, that causes the brain to move off its usual centre line is that-- A. Yes it can. Yes and that's called a midline shift. Q. Is that one of the indications of the subdural haematoma? A. Well it's one of the complications of a subdural haematoma …. Q. In those – we're talking about a space occupying injury is that what you're talking about-- A. Yes correct. Q. What would the usual treatment be for that? A. For a subdural haematoma, and I emphasise I am not a surgeon, but for a subdural haematoma, if it is of sufficient size to be a space occupying lesion, you remove the blood, so you either drill a hole in the skull or remove part of the skull and remove the blood. 1. Dr Duflou was then taken to Dr Chaseling's evidence as the supervising paediatric neurosurgeon as to the nature of the haemorrhage. In particular, Dr Chaseling had said it was not a space-occupying lesion but rather a thin film. [18] Dr Duflou accepted that a "smear subdural haemorrhage, … is less likely to be associated with a lucid interval." (d) expert biomechanical evidence 1. Both parties called evidence from biomechanical engineers who had undertaken research in relation to impact related injury. The prosecutor called Dr Andrew McIntosh, who had conducted experiments at a facility referred to as Crashlab operated by Roads and Maritime Services. Using a dummy with sophisticated instrumentation attached, Dr McIntosh undertook a number of tests to calculate the forces in play at impact based on the cause of injury proposed by the applicant in her police interview. That is, measurements were made based on a child of approximately 12 months, and of similar height and weight to GC, falling backwards from a chair placed at a dining room table and, in some experiments, pulling the chair backwards on top of him. Although the oral description of the experiment may have been difficult to follow, Dr McIntosh's ultimate opinion was that, based on his experiments, there was a negligible risk of the skull fracture and subdural haemorrhage suffered by GC as a result of falling in the manner described by the applicant. [19] 2. The defence called its own witness, Dr Thomas Gibson. Dr Gibson was critical of aspects of the experimentation, including some of the assumptions and Dr McIntosh's reliance on earlier research. However, Dr Gibson accepted that the bilateral subdural haematomas extending into the inter-hemispheric fissure both anteriorly and posteriorly were most likely to be the effect of rotational movement. [20] Finally he was asked: [21] "Q. I just wanted to speak to you about the injury to the child's neck. You've expressed the opinion that it's not likely that the impact of the child['s] head and the carpeted floor, or the impact with the top of the chair and the child's face, caused flexion of the cervical spine. Is that the case? A. It may have caused some deflection, some flexion, but it is unlikely it would have caused hyper – in this - hyperextension or hyperflexion is usually due to extreme motion of the head. There's no particular reason in this case, with a standing child falling backwards, that you'll get extreme motion of the head. Q. You wouldn't expect to see the injuries of the type that are seen in this case from that particular fall? A. I wouldn't expect to see the strain that is what we've got in the cervical spine, related to that." 1. Although some little time was taken on the biomechanical evidence at the trial, it is unlikely to have played a major part in the reasoning of the jury for two significant reasons. First, it provided no clear basis for the multiple injuries to the head, which included the bilateral retinal haemorrhages, the bilateral subdural haemorrhages and the undisplaced fracture of the occipital bone, putting to one side the ligamentous injury to the spine. The underlying assumption of the testing was that there was a direct fall backwards with a rigid body on to the floor. Secondly, the evidence left unexplained the other physical injuries. 2. Further, from the point of view of the defence, the jury were not assisted by any significant cross-examination of Dr McIntosh. The cross-examination covered less than two pages of transcript and was largely anodyne. [22] Verdict not supportable on evidence 1. In substance, the applicant's case was straightforward: she adhered to the proposition that GC's injuries were caused by a fall in the lounge room at some time around 10 or 11am. If that were a possible explanation of the serious injuries suffered by GC, it was undoubtedly an explanation consistent with the innocence of the applicant. 2. In this Court the applicant accepted, indeed relied upon, this being a case dependent on circumstantial evidence. By that she meant that there was no direct proof that she injured GC; rather, that conclusion must be derived inferentially from the available evidence. Furthermore, she contended that it remains unclear as to precisely how the injuries occurred, and therefore unclear as to precisely how she is said to have inflicted them. Finally, and as part of the last point, she noted that the prosecution case was opened as a "baby-shaking" case. [23] The submission was not that there was an impermissible change in direction in the course of the trial, but that the change in emphasis demonstrated the inherent weakness in the prosecution case. 3. It will be convenient to return shortly to the available inferences. First it is necessary to address the specific bases upon which the applicant seeks to attack the case for the prosecution. 4. First, she relies upon the evidence of Dr Gibson which was critical of the failure of Dr McIntosh to acknowledge the uncertainty which attended his experimentation and data. The jury should, the applicant submitted, have had a reasonable doubt as to whether Dr McIntosh was correct in concluding that the chance of the head injuries having occurred in the manner described by the applicant was negligible. 5. The applicant also sought to rely upon what were described as the normal symptoms which would be expected for a child suffering the kinds of injuries which GC displayed. By way of example, she referred to the fact that the medical practitioners identified vomiting as a normal symptom of this type of injury, but that GC had not vomited at any stage. 6. That submission appeared to misunderstand the medical evidence. All the experts were invited to consider the proposition that, on the applicant's case, there was a period of between perhaps two and four hours during which GC appeared to be his normal self, despite having suffered a severe head injury. The symptoms described by the medical practitioners were simply inconsistent with that possibility. In other words, the fact that GC was not vomiting during that period demonstrated that he had not suffered the injury at the time and in the way that the applicant described. 7. Thirdly, the applicant submitted that the assessment of the evidence should have been made in the context of the plethora of good character evidence. No doubt that is so; it remains necessary for there to be some plausible explanation, sufficient to raise a reasonable doubt in the mind of the jury, that GC suffered serious injuries whilst in the care of the applicant, but without those injuries having been inflicted by her. Character evidence can play only a limited role having regard to the objectively verifiable circumstances of the case. 8. The major flaw in the way in which the applicant presented her case on appeal lay in the proposition that each of the defence experts had raised an hypothesis consistent with innocence and therefore the jury must have had a reasonable doubt as to the prosecution case. However, this was not a case in which the prosecution relied upon a series of necessary inferences linking the accused with the crime. Rather, it was a case in which the question of reasonable doubt arose when assessing all of the circumstantial evidence. For example, the jury may have accepted in full Dr Gibson's criticisms of Dr McIntosh's opinions so as to give those opinions little or no weight; there was still ample material upon which to convict. 9. So far as Dr Duflou's evidence was concerned, much of it agreed with the evidence of the prosecution witnesses. He expressed doubt about the possible ligamentous injury in the neck, but that was a doubt which Dr Stachurska had also accepted. The other important point of departure between the evidence of Dr Duflou and those of the prosecution witnesses related to his view as to the nature of the subdural haematoma. His evidence that it involved a space occupying lesion was inconsistent with the evidence of the supervising neurosurgeon who treated GC, Dr Chaseling. It was also inconsistent with the evidence of Dr Stachurska and Dr Edwards. Further, that point of departure was expressly taken up with Dr Duflou in the course of cross-examination, in circumstances where it was open to the jury to disregard his evidence and prefer that of Dr Chaseling. Indeed, there was no reason for the jury not to take that view. 10. Fourthly, there were the muted submissions about the change in emphasis from a baby-shaking case to one dependent upon a severe impact with the back of the baby's skull. In fact, the prosecutor explained the injuries suffered by the child in some detail in her opening address to the jury. The injuries were multiple. With respect to the mechanism for the subdural haematoma, the explanation was that they are "commonly seen in shaking injuries or a situation where a child has been thrown and the head stops abruptly against a hard surface". [24] Reference was also made to the impact on the back of the skull causing the fracture of the occipital bone. [25] The prosecutor concluded with the following brief statement: [26] "Just to summarise, it is the Crown case that when you consider all of the evidence you would be easily satisfied and satisfied beyond reasonable doubt that the cause of [the child's] serious injuries was shaking and/or striking to his head and that this was done by the accused …. So the doctors describe a repeated acceleration and deceleration of the head about the neck which is representative of the child being vigorously shaken. That injury causes the brain to move within the skull and it is the Crown case that that is the mechanism of injury to this baby." 1. Taken in isolation the last sentence would suggest that the prosecution case was originally limited to a severe shaking of the child. Read in context, it was clear that that was not so; there had been a lengthy description of the different injuries suffered and the different possible causes of such injuries. It was not at any stage part of the prosecution case that the fracture of the occipital bone was caused merely by shaking, even vigorously. 2. The evidence given by Dr Stachurska and by Dr Edwards, as summarised above (and in less detail than in the prosecution opening to the jury), was entirely consistent with the opening. There was no change in direction, or in emphasis in the prosecution case. Some injuries were capable of being explained by severe shaking; others were not. To the extent that it was necessary to negative, as a possible explanation of the injuries, the applicant's account of a possible fall by the child whilst unattended in the lounge room, it was clear that an injury which could be accounted for by vigorous shaking could not be accounted for by such a fall. The fact that there were multiple injuries strengthened the prosecution case; it did so by limiting the plausibility of any innocent explanation inconsistent with the deliberate acts of a third party. Once such acts were established, it was beyond doubt that the actor must have been the applicant. 3. It may be accepted that the applicant was a woman of previously exemplary character who had shown no propensity for violence towards a child in her care. Nevertheless, the expert evidence of medical officers with extensive experience of paediatric injuries demonstrated the high likelihood that the injuries were created only by the infliction of rotational force of a magnitude which caused the thin bilateral subdural haematoma, the bilateral retinal haemorrhaging, the bruise to the face and to other parts of the body and the fracture of the occipital bone in the skull. There was ample evidence to support the verdict and nothing to raise a reasonable doubt in the mind of the appellate Court that the jury should not have been satisfied beyond reasonable doubt of the guilt of the applicant. 4. There remain two issues to be addressed. First, to the extent that the challenge to the verdict on ground 3 was entirely dependent on demonstrating error with respect to the conviction on ground 2, nothing further need to be said about ground 3. 5. Secondly, although there was a suggestion that there was inconsistency between the acquittal on count 1 and the conviction on count 2, there is no rational basis for that challenge. The mental element of count 1 involved an intention to cause grievous bodily harm; the mental element with respect to count 2 was satisfied where the accused recklessly caused grievous bodily harm. There was no submission that it was not open to the jury to adopt the lower mental element of recklessness, rather than intention. The jury were given clear instructions as to the separate concepts of intention and recklessness in the context of the separate offences and alternative counts. No complaint is made about those directions and the rejection of the greater element did not necessarily require rejection of the lesser. 6. The first ground of appeal must be rejected. Direction on circumstantial evidence 1. In the course of the summing-up, after dealing with questions of intention and recklessness, the trial judge, Judge Ingram SC, discussed the correct approach to a case based on circumstantial evidence. [27] 2. Ground 2 alleged that the judge should have given a "modified circumstantial evidence direction". In circumstances where no such direction was sought, it is not easy to understand the nature of the ground. 3. In one passage of the written submissions (par 312) it appears to have been suggested, consistently with the misconception identified above, that the case was one in which there were a number of sequential elements, each of which was to be established beyond reasonable doubt, rather than a single question, did the accused inflict the harm, as to which the jury was properly required to assess the whole of the evidence to reach an answer beyond reasonable doubt. 4. The submissions also suggested that the jury was not told "what standard" they were to apply to the elements of the circumstantial evidence. That was fallacious: the jury were told repeatedly to apply the standard of beyond reasonable doubt. 5. In another passage the following submission was put: [28] "To receive a fair trial and a proper chance of acquittal, the jury should have been told that their consideration as to a reasonable conclusion that was inconsistent with the Crown case should involve an individual consideration of the factors the Crown asserted as eliminating any mechanism that was not throwing, flinging or pushing with impact. They should have been told that if they had a doubt as to one or more of those factors, they could consider a totality of factors that excluded those matters and then consider if there was another reasonable conclusion. In this case, that consideration should have been at least done without consideration of the neck 'injury' and/or the retinal haemorrhages." 1. Why the jury should have disregarded the retinal haemorrhages was not explained; the reason for disregarding the ligamentous neck injury may have been a doubt as to whether it was caused in the same manner as the head injuries. However, the underlying premise of the challenge is unsound. Having spent some pages explaining the nature of circumstantial evidence, the judge then identified the specific aspects of the evidence which were relied upon by the prosecutor and explained in careful detail how they might be used by the jury. The judge said: [29] "The Crown asks you to draw an inference or conclusion of guilt based on circumstances and to do so beyond reasonable doubt in relation to Count 1 and, in the alternative, Count 2. These directions concern those Counts. It will not be open to you to come to a conclusion favourable to the Crown unless you were, first to find as a fact a number of what I will call essential facts; that is to say, facts that must be proved individually beyond reasonable doubt. … … If you were satisfied beyond reasonable doubt as to the existence of the essential facts then you can take that fact or those facts together with all the other facts which do not have to be individually proved beyond reasonable doubt but which you find established and ask whether you can and do draw an inference or conclusion in favour of the Crown from those facts considered as a whole. …" 1. After dealing with the principles at a level of generality, the judge then proceeded as follows: [30] "What are the circumstances upon which the Crown relies to establish the guilt of the Accused? There are a number of them and I will refer to them, firstly, by indicating which are the ones that must be established beyond reasonable doubt. … The first circumstance is one that must be proved beyond reasonable doubt. That circumstance is that the child, [GC], was uninjured in the sense that he did not have a serious brain injury, the subdural hematoma, at 9.20am on the morning of 25 July 2013 …. The second circumstance upon which the Crown relies is also a circumstance which must be established to your satisfaction beyond reasonable doubt. That circumstance is that the Accused was alone with [GC] from about 9.20am … until the arrival of Mrs Seemi Rani shortly before ambulance officer Stuart Peterson arrived at 2.15pm …." 1. The judge then proceeded, in terms which need not be repeated, to identify each of the other circumstances relied upon by the prosecution to establish the guilt of the applicant. The Court was not taken through the detail of the summing-up, but it is beyond reasonable criticism. In these circumstances, the concept of a "modified circumstantial evidence direction" is without meaning. Accordingly, ground 2 must also be rejected. Challenge to sentence 1. The application for leave to appeal against the sentence fell within a confined compass. 2. In the course of the reasons on sentence, Ingram DCJ noted that the jury had been satisfied beyond reasonable doubt that the injuries were caused in accordance with the expert evidence in the prosecution case, which "comprehensively demonstrated that [the applicant's] account did not in any way give rise to an alternative rational hypothesis as to the mechanism of injury. On the contrary, the Court accepts the evidence in particular of Dr Edwards that the nature and extent of the injuries sustained by [GC] were such that the mechanism of injury required the child to have been thrown, flung or pushed onto a hard surface causing a high level of rotation of the head, about the neck and impact to the skull causing the occipital bone fracture." 3. In discussing the objective seriousness of the offences, the judge repeated the characterisation of the conduct as "throwing, flinging or pushing" the baby onto a hard surface. [31] 4. The complaint is that, the precise mechanism of injury being unknown, the judge should not have sentenced on the basis of a throw or fling, which must have involved a higher level of moral culpability than a push. The applicant noted that such a possible distinction had been raised by the judge himself in the course of submissions. 5. As a matter of semantics, the point is no doubt valid; further to the extent that there is a differentiation in the level of objective seriousness, it is true that the judge should not have sentenced on the basis of the more serious level of offending unless that was a fact established beyond reasonable doubt. Such a finding was not inherent in the jury's verdict, nor did the judge expressly make such a finding. 6. Nevertheless, the objective seriousness of the offence is primarily dependent upon the mental element (recklessness) and the consequences (the injuries to the child). The use of the language of throwing, flinging or pushing, in the context of the trial, appears to have been by way of contrast to the suggestion, raised at times in the course of the proceedings, that the injury was caused by severe shaking of the child. That possibility having been discounted on the medical evidence, the precise nature of throwing, flinging or pushing, or indeed striking or slapping, were not treated by the judge as giving rise to a differential assessment of objective seriousness. That may be inferred from the very passage in the transcript upon which the applicant relied, in which the judge considered whether such a distinction should be drawn: the reasons for judgment indicate that he took no such view. 7. In the result, there is no error identified in the sentencing judgment and, while leave to appeal against sentence should be granted, the appeal must be dismissed. 8. N ADAMS J: I have had the considerable advantage of reading the reasons of Basten JA in draft. I agree with the orders proposed by his Honour. 9. With respect to ground 1, I too am not persuaded, for the reasons set out by his Honour at [41]–[56], that the jury ought to have entertained a reasonable doubt as to the appellant's guilt. My agreement with his Honour on this ground was reached after an independent examination of the trial evidence. This ground of appeal was based on a submission that, because each of Professor Duflou and Dr Gibson raised a hypothesis consistent with innocence, the jury ought to have entertained a reasonable doubt. The difficulty with this submission, as Basten JA has pointed out at [48], is that the Crown's circumstantial case was a "strand in a cable" case rather than a "link in the chain" case. 10. Particular emphasis was placed at the hearing of this appeal on the fact that the appellant was a woman of previous good character with no history of any violence towards a child in her care. It is to be accepted that the charges upon which the appellant was convicted were "out of character" but, as Basten JA has observed at [47] and [53], that evidence of good character was not capable of overcoming the evidence relied upon in the Crown case against her. 11. With respect to ground 2, I agree with the reasons of Basten JA and have nothing further to add. 12. With respect to the appeal against sentence, the application for leave to appeal turned on one discrete error. If that error was not established there was otherwise no attack on the sentence imposed on the appellant. I agree with his Honour that this ground of appeal has not been made out for the reasons provided by his Honour. 13. Finally, it should be noted that evidence was before the trial court, both at trial and sentence, as to the ongoing disabilities that the child, GC, suffers as a result of the actions of the appellant. The two reports of Dr Louise Tofts, staff specialist in the Paediatric Brain Injury Service at The Children's Hospital at Westmead, were relied upon by the sentencing judge. 14. In her report of 23 April 2017, Dr Tofts states that GC "has suffered a very severe brain injury in the community". Although he has made "remarkable gains" since the injuries described by Basten JA at [14]–[22], due to the severe traumatic brain injury he suffered, her prognosis is that GC "will have lifelong impairment in his cognitive and motor skills and a reduced work capacity and significant care needs into adulthood." In her view, "[t]his will be a very significantly life changing injury for this young man who will have impairment on a permanent basis because of this injury." Dr Tofts notes that GC has "global development delay as a result of his injury" including that he "has clear decrements in concentration and cognitive skills". Furthermore, GC remains on anticonvulsant medication to prevent the possibility of seizures and requires ongoing neurological follow up. 15. Dr Tofts additionally notes that GC "has now developed severe spasticity in lower limbs, and has a spastic diplegic cerebral palsy". He will require 6-monthly botulinum toxin injections under sedation and ankle foot orthosis for the foreseeable future. In her view, GC will be wheelchair dependent from his mid-teens. Further, due to his intellectual disability, GC will always need a support person for self-care, day-to-day activities as well as any work activities. In conclusion, Dr Tofts opined, "his injury has resulted in a severe intellectual and physical disability and will render him fully dependant on caregivers for the rest of his life." 16. IERACE J: I agree with the reasons of Basten JA and the orders his Honour proposes. I also agree with the additional remarks of N Adams J. ********** Endnotes 1. Evidence of Anglicare Adoptions Team Program Manager, Tcpt 22/02/17, p 40(35). 2. Tcpt 27/02/17, p 184(10). 3. Tcpt, p 188. 4. Tcpt, p 147. 5. The scan bears a time record of 16.11; Dr Stachurska noted the report gave the time as 16.36: Tcpt, 01/03/17, p 351(5). 6. Tcpt, p 364(5)-(25). 7. Tcpt, p 365. 8. Tcpt, p 378. 9. Tcpt, p 392. 10. Tcpt, p 456. 11. Tcpt, p 457. 12. Tcpt, p 461. 13. Tcpt, p 462. 14. Tcpt, p 475. 15. Tcpt, p 474. 16. Tcpt, p 503(30). 17. Tcpt, p 507(22). 18. Tcpt, p 511(25). 19. Tcpt, p 253(1). 20. Tcpt, p 333(30)-(35). 21. Tcpt, pp 340-341. 22. Tcpt, pp 272(15)-273(21) and 274(23)-(35). 23. CCA Tcpt, 22/03/19, p 5(20)-(25). 24. Tcpt, 22/02/17, p 9(30). 25. Tcpt, p 9(45). 26. Tcpt, p 11(12)-(20). 27. Summing-up, 10/03/17, pp 48-51. 28. Written submissions, par 316. 29. Summing-up, p 52. 30. Summing-up, pp 53-54. 31. Judgment on sentence, p 11. 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: 14 June 2019