R v Lee [2001] ACTSC 133 (21 December 2001)

Last Updated: 22 July 2002

THE QUEEN v STUART LEE [2001] ACTSC 133 (21 December 2001)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - alternative counts of recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm - accused alleged to have caused relevant injuries by shaking a baby - case based on circumstantial evidence - evidence injuries to brain of neonate baby caused by acceleration/deceleration mechanism - need for care in examining bases of medical opinions - paucity of research findings re degree of force necessary - possibility of injuries being innocently caused - hypotheses consistent with innocence not excluded.

COURTS - trial by judge alone - power to acquit at close of Crown case even if prima facie case.

EVIDENCE - Whether evidence by medical experts that injuries caused by shaking admissible.

Supreme Court Act 1933, s 68C

Evidence Act 1995 (Cth), s 144, s 79

R v Clarence (1888) 22 QBD 23

R v Salisbury (1976) VR 452

March v Stramare [1991] HCA 12; (1991) 171 CLR 506

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

DPP v Smith [1961] AC 290

R v Perks (1986) 41 SASR 335

R v Coleman (1990) 19 NSWLR 467

R v Mowatt [1968] 1 QB 421

R v Lovett [1975] VR 488

R v Stokes (1990) 51 A Crim R 25

R v Savage [1992] UKHL 1; [1992] 1 AC 699

R v Crabbe [1985] HCA 22; (1985) 156 CLR 464

Vann v Palmer (unreported, [2001] ACTSC 12, Crispin J, 22 February 2001)

R v Miller [1954] 2 QB 282

R v Chan-Fook (1994) 99 Cr App R 147

Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573

HG v R [1999] HCA 2; (1999) 197 CLR 414

Donyadideh v R, Fed Ct, (unreported, Wilcox, Ryan and Higgins JJ, 23 August 1995)

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149

Australian Communist Party v Commonwealth (1951) 83 CLR

Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735

Doney [1990] HCA 51; (1990) 171 CLR 207

R v Rao (unreported, [1999] ACTSC 132, Crispin J, 10 December 1999)

DPP (No 2 of 1993) [1993] SASC 4152; 70 A Crim R 323

Prasad (1979) 2 A Crim R 45

Haw Tua Tau v Public Prosecutor [1978] UKHL 4; [1982] AC 136

May v O'Sullivan [1955] HCA 38; (1995) 92 CLR 654

R v Lovett (1908) 1 Cr App R 111

O'Hallorhan v Crafter [1940] SASR 29

No. SCC 69 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 21 December 2001

IN THE SUPREME COURT OF THE )

) No. SCC 69 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

STUART LEE

ORDER

Judge: Crispin J

Date: 21 December 2001

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the offence charged in the first count in the indictment, namely, that on or about 27 July 1999 at Canberra in the Australian Capital Territory he recklessly inflicted grievous bodily harm on Charlie Paige Billerwell.

2. The accused is not guilty of the offence charged in the second count in the indictment, namely, that on or about 27 July 1999 at Canberra he assaulted Charlie Paige Billerwell and thereby occasioned to her actual bodily harm.

1. The accused was arraigned before me on the following counts.

(a) that on or about 27 July 1999 at Canberra in the Australian Capital Territory he recklessly inflicted grievous bodily harm on Charlie Paige Billerwell; and

(b) that on or about 27 July 1999 at Canberra he assaulted Charlie Paige Billerwell and thereby occasioned to her actual bodily harm.

2. Upon his arraignment he pleaded not guilty to each count.

3. The accused elected to be tried by judge alone and, accordingly, I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as the verdict of the jury.

(2) The judgment in criminal proceedings tried by judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by judge alone, if the law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge will take the warning into account in considering his or her verdict.

4. As in trials conducted by a jury, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt. The verdict must be determined solely by reference to evidence properly admitted at the trial or matters of common knowledge, which may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth) (the Evidence Act).

5. To establish an offence of recklessly inflicting grievous bodily harm the Crown must prove each of three elements: first, that the accused inflicted the relevant harm; second, that the harm amounted to grievous bodily harm; and third, that the accused did so recklessly. These concepts require some brief explanation.

6. In the present context, the requirement that the accused "inflicted" the relevant harm merely means that he must have carried out some act that was a real and effective cause of the harm. A more limited meaning seems to have been ascribed to the term in the case of R v Clarence (1888) 22 QBD 23 in which Stephen J expressed the opinion at 42 that one could not "inflict" smallpox upon another by passing on the infection. His Honour conceded that it may be inappropriate to lay too much stress on etymology, but nonetheless observed that the word "inflict" had been derived from "infligo" which, he suggested, meant "to strike". I do not accept that the term has such a narrow meaning in contemporary English usage. In R v Salisbury (1976) VR 452 the Full Court of the Supreme Court of Victoria reviewed numerous authorities on this issue and held that grievous bodily harm may be "inflicted" either by assaulting the victim or by "doing something intentionally, which, though it is not itself a direct application of force to the body of the victim, does result in force being applied violently to the body of the victim so that he suffers grievous bodily harm" (at 461).

7. In the quarter century since that statement, cases involving the reckless transmission of the HIV and other infectious diseases have emerged as a real risk and I am inclined to think that the concept should be extended to cases in which the accused recklessly causes the victim to suffer grievous bodily harm even without the direct application of force. The issue of causation has itself been the subject of considerable discussion in recent years with the High Court adopting a "common sense" test in cases such as March v Stramare [1991] HCA 12; (1991) 171 CLR 506 and Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232. In the present case, however, the Crown alleges that the injuries were inflicted by the direct application of force in a violent assault upon Charlie, and it is not necessary for me to attempt to delineate the boundaries of the concept.

8. The term "grievous bodily harm" has been described by the scarcely more informative term "really serious" bodily harm: DPP v Smith [1961] AC 290 per Viscount Kilmuir LC at 334. It has been suggested that it is a misdirection to use the adjective "serious" without the presumably expansive adverb "really": R v Perks (1986) 41 SASR 335 per King CJ at 337. There are numerous cases in which courts have been obliged to consider whether injuries of various kinds have been sufficiently serious to constitute grievous bodily harm, but no more clearly stated principle seems to have emerged.

9. The concept of recklessness differs qualitatively from that of negligence or even gross negligence. In this context it requires advertence to the possibility that the relevant event might occur. It is not sufficient for the Crown to prove that an act was inherently dangerous or such that a reasonable person should have foreseen the possibility of someone being injured.

10. In the present case the Crown submitted that it was sufficient for the accused to have foreseen the possibility of some physical harm and cited the remarks of Hunt J in R v Coleman (1990) 19 NSWLR 467 at 475 in support of the contention that advertence to the possibility of grievous bodily harm was not necessary. However, in Coleman His Honour had been concerned with the concept of malice, and the offence charged had required only the infliction of actual bodily harm rather than grievous bodily harm. It is true that in a number of cases it has been held that a person may be taken to have maliciously inflicted grievous bodily harm if the accused foresaw that "some physical harm to some person, albeit of a minor character, might result": R v Mowatt [1968] 1 QB 421 per Diplock LJ at 426. See also R v Lovett [1975] VR 488; R v Stokes (1990) 51 A Crim R 25; and R v Savage [1992] UKHL 1; [1992] 1 AC 699. However, whilst recklessness as to the consequences of an act may establish that a person has acted maliciously, the concepts are not synonymous. There can be no doubt that a person who deliberately cuts another person, other than for some benign purpose such as to facilitate a surgical operation, has acted maliciously. Similarly, a person may act maliciously by making a slashing movement with a sharp object towards another person knowing that he or she may be cut. If the latter proves to be a haemophiliac and grievous bodily harm results, then the authorities to which I have referred suggest that the first person may be guilty of maliciously inflicting grievous bodily harm, even if he or she had been unaware of the condition and hence had not adverted to the possibility of causing really serious bodily harm. That is because the relevant act was accompanied by sufficient foresight of harm to constitute malice.

11. When recklessness is a specific element of the offence, that element is not established merely by showing that the accused had sufficient foresight of adverse consequences to make his or her act malicious. The nature of the foresight required must depend upon the act or circumstance which the section specifies as the subject of the recklessness. Hence, if the offence is one of murder, then the accused must be shown to have adverted to the probability of causing death (or grievous bodily harm in jurisdictions where the common law definition of murder applies): R v Crabbe [1985] HCA 22; (1985) 156 CLR 464. Similarly, if the allegation is one of sexual intercourse without consent, then the accused must be shown to have adverted to the possibility that the alleged complainant had not consented to the relevant sexual act. Accordingly, I have previously held that if the offence is one of recklessly causing grievous bodily harm then the accused must be shown to have adverted to the possibility of causing harm sufficiently serious to properly fall within that description. As I said in Vann v Palmer (unreported, [2001] ACTSC 12, Crispin J, 22 February 2001) a person cannot be found to have been reckless as to one thing by proof that he or she adverted to the risk of another. I adhere to that view.

12. In my opinion a person cannot be convicted of recklessly causing grievous bodily harm unless he or she adverted to the risk that really serious injury might be caused by their act. That does not means that the accused must have adverted to the possibility that his or her act may cause the precise injuries suffered by the alleged complainant, or even injuries of comparable gravity, but the requirement will not be met by evidence establishing that the accused foresaw a risk of some injury falling short of grievous bodily harm.

13. The alternative charge of assault occasioning actual bodily harm requires proof of only two elements: that the accused assaulted the victim and that the assault occasioned to her actual bodily harm.

14. An assault is a hostile act which causes another person to have an apprehension of the immediate application of unlawful force or violence. A battery, which is what is alleged in the present case, is an assault which involves the actual application of unlawful force or violence.

15. The term "actual bodily harm" means no more than some bodily injury, which need be neither permanent nor serious. A small bruise, abrasion, scratch or even causing a "hysterical and nervous condition" is sufficient. See R v Miller [1954] 2 QB 282; R v Chan-Fook (1994) 99 Cr App R 147.

16. In her opening address, the learned Crown prosecutor made it clear that the charge pleaded in the second count on the indictment was an alternative to the charge pleaded in the first, and was based upon the same injuries.

17. The Crown alleges, in essence, that on 27 July 1999 the accused violently shook Charlie Paige Billerwell, who was then a three week old baby, and that he may have thereafter thrown her onto a soft surface. It alleged that, as a consequence, she suffered what were described as "acceleration/deceleration" brain injuries.

18. It was not suggested that anyone saw the accused commit the acts alleged, and he has always denied intentionally harming the child. The Crown case against him is based entirely on circumstantial evidence.

19. To prove guilt by circumstantial evidence the Crown must prove beyond reasonable doubt that there can be no rational explanation for the relevant circumstances other than the guilt of the accused. Such a conclusion obviously requires the Crown to exclude any reasonable hypothesis consistent with the innocence of the accused that might explain what happened. An inference of guilt or some intermediate factual conclusion may be drawn from a chain of reasoning in which case each link in the chain must obviously be proven beyond reasonable doubt if the ultimate conclusion is to be established to that standard. There may also be cases in which such inferences may be drawn from the combined weight of circumstances and the strength of the case is analogous not to a chain but a woven cable or bundle of sticks. See Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 and Shepherd v R [1990] HCA 56; (1990) 170 CLR 573.

The incident

20. In the present case many of the relevant facts and circumstances were not in dispute and a statement of agreed facts was tendered in evidence pursuant to s 191 of the Evidence Act. That document includes the following statements:

Charlie Paige Billerwell (Charlie) was born on 7 July 1999 at Calvary Hospital, Canberra.

Her mother is Kellie-Lee Billerwell and her biological father is Lee Steele. Charlie is Kellie-Lee Billerwell's third child.

Kellie-Lee Billerwell's pregnancy with Charlie was unremarkable until she was admitted to hospital on 10 June 1999 at about 33 weeks amenorrhoea with false labour. She was discharged after having had contractions for approximately 10 hours.

Kellie-Lee Billerwell presented to Calvary Hospital on 6 July 1999 with ruptured membranes. She was about 37.5 weeks amenorrhoea.

The labour lasted 8 hours and the membranes had been ruptured for 21 hours. A quick delivery did occur, with the second stage only lasting 3 minutes.

The apgar scores for both one minute and five minutes were 9.

3 minutes after her delivery Charlie turned slightly blue and oxygen was administered. She responded immediately and returned to her normal pink.

Charlie did have some facial contusion, which appeared as a swelling with a slight blueish tinge. As a consequence she was placed in a humidicrib in the special care unit but no problems eventuated.

Charlie was discharged from Calvary Hospital on 9 July 2001 [sic- 1999] with her mother.

. . .

Charlie Billerwell was admitted to Calvary Hospital at 11.10 am on Tuesday 27 July 1999. She was asleep when left in the care of the accused at approximately 8.50 am on 27 July 1999.

Kellie-Lee Billerwell took Charlie to visit with her proposed family based child care worker, Thirisa McDougall, at approximately 10.30 am on 26 July 1999. Thirisa McDougall, who had been a child care worker for 17 and a half years, noted that Charlie was attentive and lively. She thought that the baby appeared to be behaving in a normal manner.

On Monday 26 July 1999 at about 12.30 pm Kellie-Lee Billerwell took Charlie to visit a former work colleague, Suzanne Harrington. Suzanne Harrington nursed Charlie and noted that she had "a bloodshot eye" but seemed content.

Charlie was more unsettled than usual in the afternoon and evening with a lot of crying, particularly after her bath.

Kellie-Lee Billerwell's friend, Karen O'Brien, visited the family premises at 121 Sommerville Crescent Florey on the evening of 26 July arriving at 6.30 pm. She did not observe any injuries on Charlie.

She woke about three times in the night but did not sleep from about 1.30 until 6.30 which was unusual. At the 6.30 feed she vomited a small amount.

At approximately 8.50 am on 27 July 1999 Kellie-Lee Billerwell left Charlie with the accused to drive her daughters to school. She returned home after dropping the two girls at school, collected some paperwork and drove to Woden to attend an appointment with her accountant leaving Charlie again in the accused's care.

Marguerite Stewart, an accountant with the Income Tax Professionals recalls that Kellie-Lee Billerwell attended for an appointment at approximately 9.30 am on 27 July 1999 and left between 10.10 am and 10.15 am.

She returned about 10.30 am and found Julie Nelson and the accused with Charlie and observed that Charlie was floppy and pale.

21. It is clear that the accused had rung Ms Julie Nelson, Ms Billerwell's aunt, at about 10 am. He told her that something was wrong with Charlie and that she looked as if she were dead. He explained that he had just got out of the shower with Charlie and that she was not breathing. Ms Nelson asked him why Charlie had been in the shower with him and he said that she had been crying and he hadn't wanted to leave her alone. He explained that one of the community nurses had said that it would be alright for him to do so. The fact that a nurse had given him such advice was subsequently confirmed by evidence from Ms Billerwell.

22. Ms Nelson asked him if he was sure that Charlie had not swallowed any water and, despite his tentative assurance to the contrary, suggested that he "put her on his knee and slope her downhill a little to drain her, and try and tap her . . . for a little while to see if that would shift any . . . obstructive secretions or water that she may have inhaled." The conversation lasted for about twenty minutes. Ms Nelson was obviously unable to recall everything that was said but did recall that the accused sounded concerned. The sequence of events is not entirely clear. It appears that she heard him tapping Charlie at least from time to time throughout the conversation. At some stage she heard the baby make "a little whimpering sound" and the accused told her that Charlie was not breathing properly. The accused also told Ms Nelson that he had to keep patting her or she did not move.

23. The accused ultimately told Ms Nelson that Charlie didn't seem to be improving and she went to his home. She arrived about 10.30 am, just before Ms Billerwell returned home, and found the accused standing at the end of the driveway holding Charlie in his arms. She said that Charlie was warmly dressed and that he had been holding her with great tenderness. He said "I think she's better". Ms Nelson, who is a nurse, examined Charlie with a stethoscope and told the accused to take her to hospital.

24. The statement of agreed facts also included the following statements:

Charlie was taken to Calvary Hospital by the accused and Kellie-Lee Billerwell, arriving at approximately 11.00 am on 27 July 1999.

They approached Monica Robinson who was rostered on the triage desk in the Emergency Ward. The accused told Monica Robinson that the baby had stopped breathing properly.

Mary Beveridge, who was also on duty at Calvary Hospital Accident and Emergency Department overheard the conversation with Monica Robinson at the Triage Desk attended to Charlie. She directed Kellie-Lee Billerwell to place Charlie in the Infant Warmer Crib.

Dr Margaret Keaney is a qualified medical practitioner and as at 27 July 1999 had worked in the Australian Capital Territory for 25 years. At that time she had been a medical practitioner for 37 years and was employed as the Director of Emergency at Calvary Hospital.

Dr Margaret Keaney examined Charlie on her admission and found her pale and having breathing difficulties including very shallow breathing. Dr Keaney said that her heart rate was slow at 100 beats per minute and her body temperature was 33 degrees celcius [sic].

The baby experienced life threatening episodes during the examination and treatment by Dr Margaret Keaney.

Calvary Hospital staff conducted several tests including x-rays and the removal of blood for testing.

Mary Beveridge noticed that the baby had a darkened area on each buttock that she at first believed to be Mongolian spots. The marks were oval in shape and diffuse in nature across the buttocks.

Marie Cummins, a pastoral care worker at Calvary Hospital, comforted Kellie-Lee Billerwell and the accused. She noted that Kellie-Lee Billerwell was upset however the accused was "very distraught, he was crying and shaking. I would say he was in a state of shock".

Once Charlie's condition stabilised she was transported to Canberra Hospital in a humidicrib. Her temperature was 34 degrees celcuis [sic] and her heartrate had improved.

Dr James Keaney accompanied Charlie to Canberra Hospital. Dr James Keaney had at the time been a qualified medical practitioner for 35 years having performed duties mainly in the intensive care field including the area of paediatrics.

25. Following Charlie's admission to Canberra Hospital she suffered severe and intractable seizures over a period of several hours but fortunately she survived.

The injuries

26. A CT scan was carried out on 28 July 1999 and this was followed by an MRI scan two days later. She was found to have sustained a sub-dural haemorrhage and damage to the parenchyma or tissue of the brain. She was also examined by two ophthalmologists and found to have suffered bilateral retinal haemorrhages.

27. Regrettably, some of the injuries are permanent. Dr Jones, a paediatric neurosurgeon, referred to an area of damage adjacent to the anterior aspect of the left temporal lobe and a smaller area at the right vertex as two obvious areas "in which there is frank tissue loss and there is a gaping hole, as it were, in the fabric of the brain". He said that damage to the right temporal lobe was also evident from the absence of grey/white differentiation in the scans, and that "there may be three areas of atrophy". There were other areas of damage as well. Dr Steinberg, a paediatric radiologist who had reviewed the CT and MRI scans taken on 28 and 30 July 1999 respectively, said that there had been a "constellation" of injuries. Like Dr Jones, he referred to an area of damage in the left temporal lobe in which he said the normal brain tissue had been substantially replaced by fluid and cysts. That damage was permanent and there were a number of other areas of permanent damage. Both agreed that the damage was "patchy".

28. Despite earlier fears that the injuries may have caused blindness, it appears that Charlie's sight is now normal, and she has met all of the normal `milestones' by which the intellectual development of such a young child may be judged. However, Dr Jones described the injuries as "very severe" and the statement of agreed facts includes the following:

A report prepared relating to an MRI examination of 2/5/01 by Dr Kevin Osborn states that the MRI "demonstrates an area of tissue loss within the anterior aspect of the left temporal lobe, corresponding in location to oedema present previously. Similarly, an area of abnormality is present at the right vertex together with a smaller area of tissue loss."

A report prepared by Dr Jyoti on 2/5/01 states that" areas of altered signal intensity are seen in the apex of the right parietal lobe and the right occipital lobe. There is a similar area in the left temporal lobe. The findings are consistent with multiple foci of gliosis/cavitation."

As a result of these episodes Charlie Billerwell has long-term gliosis/cavitation of the brain in the areas identified by Dr Osborn and Dr Jyoti.

Charlie was reviewed by Dr Crawford on 31 October 2001 when she was aged 2 years and 3 months. At this stage she is not exhibiting developmental problems but it is too early to say whether she might experience learning problems as she moves into the school years.

Her ophthalmology review by Dr David Tridgell on 18 June 2001 was quite satisfactory and he noted normal refraction and normal appearances of both retinas. He has suggested review at age five.

29. Notwithstanding the promising signs on her most recent clinical assessments, I have no doubt that the brain damage discerned on the CT and MRI scans was sufficiently serious to constitute grievous bodily harm. Mr Collaery, who appeared for the accused, did not contend to the contrary.

The Crown case as to causation of the injuries

30. The Crown produced extensive medical evidence in support of the contention that these injuries had been caused by a deliberate act or acts of shaking. Mr Collaery objected to much of this evidence on the ground that the opinions in question were not based upon any established body of specialised knowledge or, alternatively, were not based upon matters falling within the expertise of the relevant witnesses. The Crown objected to some opinion evidence elicited in cross-examination on similar grounds. The issues raised by these objections are referred to later in these reasons for judgment. Subject to those objections, I have taken into account the whole of the evidence adduced by the Crown but for present purposes it may be sufficient for me to make limited references to the more significant statements of opinion.

31. Dr Packer expressed the opinion that Charlie had sustained an "inflicted" brain injury involving sub-dural haemorrhage, damage to the parenchyma or substance of the brain and marked bilateral retinal haemorrhages.

32. Dr Morris, who had treated Charlie upon her admission, said that in view of the intractable seizures, the limited information he had concerning the results of the CT scan, the buttock bruising and the fall in the haemoglobin level between admission and the following day, he had formed a provisional conclusion that the seizures had been due to brain haemorrhage caused by trauma. He said that he was also suspicious about retinal haemorrhages and "thought that the trauma could have been due to shaking of the baby".

33. Dr Ryan said that the results of the CT scan were the "classic findings in a child with inflicted head trauma" caused by violent shaking or possibly a severe blow to the side of the head. He said that in circumstances of a blow to the head one commonly finds bruising to the side of the face. The scans had "the features of an acute sub-dural haematoma between the two hemispheres of the brain and damage to the brain substance itself in several areas, which may have criteria [sic] in what is seen in an infant who has been violently shaken". He ventured the opinion that Charlie had been "held tightly around the chest and . . . vigorously shaken backwards and forwards for a significant period of time".

34. Dr Jones said that the sub-dural bleeding could have been caused by a violent movement of the brain against and away from the falx. He said that such a movement could have been caused by an impact injury or shaking impact injury, and that that, and other injuries to the brain, indicated severe trauma. In the absence of any history of a severe automobile accident he believed that it had been a non-accidental injury and suggested that impact injury, severe repetitive shaking or a combination of both was in his opinion "the likely scenario". He said that retinal haemorrhages were "overwhelmingly" found in non-accidental injuries in comparison with motor vehicle accidents. He conceded that there were other possible explanations for some of the injuries to Charlie's brain, but did not think that there were other alternatives to trauma as a cause of this "constellation of symptoms and signs".

35. Dr Donald said that the only mechanism that he would consider as a possible explanation for the injuries in Charlie's brain was an acceleration/deceleration injury. When asked what might have caused such an injury he said "there's nothing in the history that explains it, therefore I would presume that it was some assault, most likely shaking, but I've got nothing - no history of that; that's speculation on my part. But that is what, without an explanation, would otherwise account for it; it would be most likely to produce these changes in a baby of her age".

36. Dr Dickson, an ophthalmologist, referred to an article by Professor Levan in which the opinion was apparently expressed that haemorrhages that are seen in shaken babies are not the result of mild trauma. He said that he had thought about what Professor Levan would have made of the retinal haemorrhages and said that his feeling was that he would have looked at the baby's eyes and concluded that he was very suspicious that the child was shaken, but would not have concluded from the retinal haemorrhages alone that he could have affirmatively stated that it was a case of shaken baby syndrome. However, he thought that if the Professor had been informed that the child also had sub-dural haemorrhages the Professor would have had no doubt in his mind that the child had been shaken, and that the only question to be answered was who had done so.

37. Dr Steinberg, an expert paediatric radiologist who had reviewed the CT and MRI scans gave evidence that the primary brain injury was the direct result of an initial traumatic force which included damage to the blood vessels and shearing injuries to the white matter fibres of the brain. He said that shearing injuries were most commonly seen in rapid acceleration/deceleration injuries. He explained that the images available on CT and MRI scans can give a very accurate idea of how a radiologist believed the injury had been caused. He said the injury could have been caused by vigorous motion of the head to and fro suddenly coming to a stop against either a hard or soft object, but that the clinical history was also very important. When asked about the significance of there being no external injury he said that that was "classical of the shaken baby or shearing type of injury" and that what often happens is that "the head is vigorously shaken from side to side and then thrust against a soft object . . . and comes abruptly to a stop". He said that in his opinion, and those of his senior colleagues, it was "not the sort of injury that would occur from patting, hugging or that form of interaction with a baby or child".

38. There was other evidence to like effect.

Issues relating to the expert evidence

39. During the course of the trial there was considerable debate as to whether the expression of various opinions fell within the expertise of the relevant witnesses. As I have mentioned, these objections were noted but not resolved because any attempt to have done so would have generated lengthy arguments, and it was desirable to limit the amount of time which each of the medical experts was obliged to spend in court to avoid undue inconvenience to them and adverse consequences for their patients.

40. The relevant principles may be briefly stated. Section 79 of the Evidence Act provides that if "a person has specialised knowledge based on the person's training, study or experience, the opinion rule (which generally excludes evidence of opinion) does not apply to evidence of an opinion that is wholly or substantially based on that knowledge." In HG v R [1999] HCA 2; (1999) 197 CLR 414 the High Court of Australia stressed that the opinions of expert witnesses must be confined, in accordance with the requirements of this section, to opinions substantially based on their specialised knowledge.

41. For present purposes it is unnecessary to resolve all of those objections. Indeed, some of the evidence elicited in the cross-examination of Dr Packer and admitted subject to objection by the Crown was not pressed by Mr Collaery in his submissions, and it is common ground that it must be excluded. Furthermore, in most cases the objections related to all of the evidence of a particular nature and it is unnecessary to go through the transcript and deal with them on a sentence by sentence basis.

42. Some objections are readily resolved. It is difficult to envisage any circumstances in which a medical expert would be entitled to express an opinion that the injuries must have been inflicted deliberately because divining the state of mind of an unknown person would not fall within his or her field of specialised knowledge. In the present case such assertions seemed to have been based largely upon supposition and reflected some measure of unrecognised inconsistency. For example, injuries said to have been non-accidental were said to have been similar to those sustained in motor vehicle accidents and Dr Sternberg also said that they were of the kind that one would expect to see if children were knocked from bicycles or otherwise struck by cars. The evidence before me did not suggest that there was any way in which acceleration/deceleration injuries caused by an intentional infliction of force could be differentiated from acceleration/deceleration injuries caused by the accidental application of force.

43. For the same reason, expressions of opinion as to what such a person must have intended, realised or understood would also be inadmissible.

44. Of course there may be circumstances in which a psychiatrist who has interviewed a particular person might be able to express an expert opinion as to that person's level of understanding, whether he or she would have been likely to have had sufficient cognitive ability to understand certain matters or even perhaps, to deduce certain matters from circumstances proven in evidence. It is unnecessary for me to offer any opinion as to the likely boundaries of such evidence because issues of that kind do not arise in the present case.

45. Particular difficulties may arise when an expert has ventured an opinion which is partially dependant upon views derived from his or her field of expertise, and partially dependent upon other matters. Such a situation may require the resolution of difficult questions of fact on a voir dire to determine whether the opinion is really based substantially on his or her specialised knowledge. In the present case issues were raised as to whether certain witnesses were expert in the resolution of issues as to whether or not injuries had been caused to babies and/or young children by shaking. Such claims of expertise seem to have assumed some credibility within the medical profession, and at least one witness said that he would defer to baby shaking experts on some matters. However, that does not absolve the Court of the need to critically examine the relevant issues.

46. The evidence revealed a paucity of empirical research on potentially critical issues.

47. Several of the medical experts referred to a paper apparently written in 1990 based upon interviews with people who had admittedly shaken babies. It was suggested that this study provided a basis by which the type of injuries caused by such actions could be determined. Some witnesses referred to the "classic" pattern of injuries sustained in that manner and sought to draw, or at least support, conclusions as to the degree of force required to cause them from the descriptions given by the admitted perpetrators.

48. Despite the reliance on this paper by several well qualified medical experts I have substantial reservations as to what, if any, conclusions could safely be drawn from it in a criminal trial. One can understand medical practitioners relying upon studies of that kind because, as Dr Packer pointed out, "it is the best range of indications we can get". Medical practitioners are called upon to treat patients in potentially life threatening situations, and if the information available to them is not wholly reliable they must nonetheless do the best they can in the circumstances. The exigencies of the moment may sometimes make it impracticable to wait for further confirmation even if there is some potential means of obtaining it. However, that approach cannot be transplanted into a criminal trial. The fact that it may be difficult to ascertain the truth does not relieve the Crown of the need to prove the defendant's guilt beyond reasonable doubt, nor does it permit the Court to act upon some lesser standard determined by reference to the quality of evidence available.

49. It was submitted that since the participants of the study had already been convicted of causing injury to babies, they had no reason to lie. That is obviously a valid consideration but it does not, of itself, warrant a conclusion that the information conveyed would have been entirely accurate. The participants would have been attempting to recount how they acted months or years earlier, at a time of acute stress and anger, and their memories of the incidents may have been influenced by a range of emotional responses to their behaviour. Dr Jones, who was generally an impressive expert witness and was obviously familiar with the survey, conceded that the results were not "completely reliable". The common threads drawn from it may offer guidance to those seeking to investigate possible causes of brain injuries in babies, but it is difficult to accept that the anecdotes of an unknown group of people who admittedly injured young children by shaking them provides a wholly satisfactory basis for conclusions upon which the Crown relies to establish the guilt of the accused.

50. Any assessment of the extent to which the survey might have provided a basis for expert opinions was also limited by the paucity of information as to what actually occurred in the compilation of the study, and what information was actually elicited from the participants. I was not told how many people participated, what procedure was employed in questioning them, how recent were the incidents that were recounted, how consistent were the descriptions of what occurred or how many participants claimed to have shaken neonate babies.

51. In any event, evidence that injuries have been caused in a certain manner could not, of itself, prove that similar injuries cannot be caused by some other mechanism. The survey could, at most, have provided some basis for concluding that the injuries suffered by Charlie could have been caused by shaking. It could have provided no basis for concluding that they could only have been caused in that manner, nor for assuming that the accused must have acted in the same manner as the participants in the survey.

52. I was satisfied that evidence was admissible as to the opinions of each of the relevant experts that the injuries could have been caused by either a blow or by the baby being vigorously shaken. On the other hand, I find that the evidence was not admissible to the effect that the injuries were caused in that manner, whether by the accused or otherwise, or that they could only have been caused in that manner. The evidence suggests that such opinions would not be based wholly or even substantially on the expert's specialised body of knowledge as a paediatrician but, as in HG v R, on a combination of speculation, inference, and a process of reasoning beyond the relevant field of expertise.

53. Further issues were raised in relation to the admissibility of expert opinion as to the degree of force that may have been required to cause such an injury. Such an opinion could obviously be expressed if based upon the expertise of the relevant witness. For example, an orthopaedic surgeon could express the opinion that considerable force would be required to fracture the tibia of a normal adult. However there is no law of human nature that decrees that expert witnesses are immune from the temptation to leap to unwarranted conclusions, engage in unsubstantiated speculation or act upon hearsay or rumour. Hence, despite the Crown's submission that the source of an expert's expertise becomes a dead issue under s 79, it will sometimes be necessary to explore the basis for the opinion before determining whether it is properly admissible.

54. A number of witnesses attempted to address the issue of how much force would have been required to cause the constellation of injuries that Charlie sustained. Dr Packer said that "very considerable" force would have been involved, and rejected the suggestion that the force would have been within the capability of an eight year old child or even perhaps a Rottweiler. Dr Ryan said that the type of force was similar to the type of forces that would be generated in a high speed motor vehicle accident and later added "particularly where a child would be unrestrained and thrown around in the car, or thrown out of the car as a result of the accident".

55. Dr Dickson also thought that severe force would have been required but prefaced his expression of opinion with the statement that he was not fully qualified to answer the question and had not researched the area. I formed the impression that this evidence was outside the area of his expertise and therefore inadmissible.

56. When asked what force could cause the disruption of the grey and white matter of the brain Dr Jones replied:

Injuries to cause this amount of disruption as I say have to be severe. To quantitate it is difficult, one however can give examples of the type of automobile accidents that will give rise to retinal haemorrhages and this type of damage to the brain. And this is of the order of an impact of eighty to ninety kph, fifty mph, to a girl strapped into the back seat of a car the door of which was impacted. And she was - she presented with retinal haemorrhages, a severe head injury, and died. This is the - as it were, the magnitude of injury. The type of injury can be - is debated. Can be an impact injury such as would happen in an automobile accident, it can be - it's postulated that it can be due to a shaking injury as well because we do not have - the problem is we do not have good experimental animals to use, and one cannot use children to demonstrate the type of injury that occurs.

57. Dr Jones conceded that the evidence that it requires hard shaking to produce the injuries was imperfect. He adhered to the view that it required a severe injury and said that this view was based upon the clinical experience of having seen a lot of children who had been dropped and had sustained only relatively minor head injury.

58. Dr Steinberg said that "shearing injuries were most commonly seen in rapid acceleration/deceleration injuries" and cited examples of "children being thrown through the windscreen of a car, . . . being knocked over in the street on a bicycle or skateboard . . .or being dragged behind a car". He also said that it was seen in babies who had suffered shaking injuries and that it was "not the sort of injury that would occur by vigorous cuddling or patting".

59. Dr Donald recounted having asked two men, who admitted to shaking babies, whether they were able to rate the degree of force they had employed on a scale from zero to ten with ten being the most vigorous shaking of which the person was capable if his life had depended upon it. He said that one had rated the degree of force employed at seven and the other at eight. There is no suggestion that this was part of a controlled survey or that it clothed Dr Donald with any particular expertise. Furthermore, the mere fact that the men in question may have used a considerable amount of force on children of unspecified ages did not prove that a comparable amount of force was required to cause similar injuries in a neonate baby. The evidence was, in my opinion, inadmissible as hearsay but, even if admissible, added little weight to the Crown case.

60. The validity of these opinions was the subject of considerable debate.

61. Dr Jones conceded that there was very little experimental evidence of the force required to cause injuries of this kind. One investigation that had been undertaken was based upon experiments performed in 1962 whereby adult monkeys were put into what was described as an "accelerometer", held in an upright position and accelerated into a wall. The data so obtained was examined in order to gain some idea of the forces involved. Extrapolations from those experiments to models had produced theories as to the amount of force required to cause injuries in human infants. The degree of force so "theorised" was such that most people would find "unbelievable"=