The Queen v Smith[1997] QCA 350

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  29 of 1997

Brisbane

Before  Macrossan CJ

Fitzgerald P

Davies JA

[R v.  Smith]

THE QUEEN

v.

AARON THOMAS SMITH

              (Applicant) Appellant

Macrossan C.J.

Fitzgerald P.

Davies J.A.

Judgment delivered 10 October 1997

Separate reasons for judgment of each member of the Court; Macrossan C.J. and Davies J.A. concurring as to the orders made, Fitzgerald P. dissenting.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL AGAINST SENTENCE ALLOWED.  THE SENTENCE IMPOSED BELOW IS SET ASIDE AND A SENTENCE OF FOUR YEARS IMPRISONMENT IS SUBSTITUTED.

CATCHWORDS: CRIMINAL LAW - evidence - similar facts - appellant convicted of doing grievous bodily harm to child - appellant in sexual relationship with child’s mother - appellant alone with child prior to discovery of injury - medical examination of child revealed earlier injuries caused by significant force - whether admission of evidence of earlier injuries caused substantial miscarriage of justice - R v. Carne (C.A. 553 of 1996) - Pfennig v. R (1995) 182 CLR 461 - R v. W (C.A. 62 of 1996).

SENTENCE - appellant sentenced to 5½ years imprisonment - young offender with minor criminal history - unlikely that complainant will suffer gross impairment - whether trial judge gave too little weight to prospect of rehabilitation - whether sentence manifestly excessive.

Counsel:  Mr A. Glynn S.C. for the applicant/appellant.

Mr D. Bullock for the respondent.

Solicitors:  Robertson O'Gorman for the applicant/appellant.

Director of Public Prosecutions (Queensland)  for the respondent.

Hearing Date:  15 May 1997.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 10 October 1997

The facts are set out in the judgments of the President and Davies JA.

The appellant’s argument was directed to the evidence that was admitted of injuries suffered by the infant son of Ms Ellacott additional to and distinct from the head injuries that were the subject of the offence charged.  It was submitted that the admission of this further evidence, notwithstanding objection, meant that the verdict should not be permitted to stand.

The case against the appellant without the additional evidence was a strong one.  The evidence of Ms Ellacott was that on the morning of 28 January 1996 after the appellant had been alone in a room with the crying child, Ms Ellacott entered the room and the child was then in the condition she described with head flopping and eyes turned back in his head.  These were signs of the skull fracture and brain damage, the subject of the charge.  After an ambulance had been summoned and an examination made at the hospital, those injuries were diagnosed as having been recently suffered.

Ms Ellacott gave evidence at the trial and in the course of it denied that she had caused the injuries charged or any of the other injuries that the child, on the medical evidence, was said to have sustained in the period stretching back for about three weeks prior to 28 January.   Although the appellant prior to trial had made a statement to the investigating authorities denying that he had caused any of the child’s injuries, he did not give evidence. Since there was no suggestion that anyone else had been in the house with access to the child on the morning of 28 January, it was clear that the only people with opportunity to inflict the injury charged were Ms Ellacott and the appellant.  If the jury, having seen and heard Ms Ellacott give her evidence were disposed to accept her denial that she had caused this injury, then their task in deciding whether the appellant was responsible, was a straightforward one, and their conclusion could have seemed to them to be inevitable with no room for doubt.  Yet it is contended by the appellant’s argument that the jury were, in effect, deflected from an uncomplicated assessment of the acceptability of Ms Ellacott’s denials that she had caused the injuries sustained on 28 January and this had come about because of the judge’s admission of the evidence of the further injuries which had been sustained over the period of the preceding three weeks.

Urged by the prosecutor to admit the further evidence, the judge approached his decision upon the basis that its admissibility was to be determined by looking to the test prescribed by Pfennig v. R (1995) 182 C.L.R. 461 for the admission of that broad category of evidence there called “propensity” evidence.  The trial judge had regard to the probative force of the evidence of the other injuries and also to its possible prejudicial effect.  In doing this he adopted the correct approach: cf.  R v. W C.A. No. 62 of 1996, 20 August 1996, unreported.

What, however, could have been the effect of the evidence of the further injuries upon the jury’s deliberations?  Assuming that they considered the matter rationally, then in terms of its capacity to identify the person or persons causing the various injuries to the child, this further evidence was also circumstantial. 

The appellant, like Ms Ellacott, was on a number of occasions over the previous three weeks in the house with the child.  He was accustomed to stay over on three or four nights a week and had commenced to do this from a time that was earlier than that at which, according to the medical evidence, the first of the additional injuries was suffered.  There were other visitors to the house and others who had access to the child during this period but those persons were either called as witnesses or had their lack of opportunity to cause any of the injuries referred to by Ms Ellacott. The result is that if this further evidence is viewed separately from that dealing with the events of 28 January, there are, it is true, some further elements introduced but the jury’s consideration of the likely agency causing the additional injuries would again not have been impeded by complications.  In combination with the medical evidence concerning the times at which those further injuries occurred, it would have been open to the jury to conclude that the person or persons who caused them were the appellant or Ms Ellacott or, perhaps, both of them.  Judging by their verdict they must have thought it was not Ms Ellacott but that it was the appellant.  It is hardly conceivable that they might have been disposed to think that one of the others who had access to the child or the house at the earlier time had caused the other injuries, especially when the events of the morning of 28 January were taken into consideration.

What then could be said about the probative force of this further evidence?  What, also, was its potential prejudicial effect, that is what impermissible prejudicial thoughts might it have tempted the jury to pursue?

The judge in a firm direction told the jury that they might use the further evidence in considering the case against the appellant only if they were persuaded beyond reasonable doubt that the appellant caused those injuries and that they could use it only to show the appellant’s attitude to the child and to exclude the possibility of the injury charged being the result of an accident.  This restriction upon the use that could be made of the evidence of the further injuries caused no injustice to the appellant.

It is true that the unopposed medical evidence gave no support to any suggestion that the injury charged could have been the product of an accident and the defence below which  consisted of a denial of responsibility, did not seek to suggest accident.  However, the prosecution had to exclude the possibility of accident: see Griffiths v.  The Queen (1994) 69 A.L.J.R. 77.  Although it would not, in the state of the evidence, have been necessary for the prosecution actually to call further evidence to exclude the possibility of an accidental cause, (cf. R.F. Falconer (1990) 171 C.L.R.30 at 40-42, 43, 61, 68, and 83) still nothing restricts the prosecution to reliance only upon its strongest evidence and it was open to the prosecution to seek to add further evidence which would have the effect of excluding the possibility of accident even more firmly, so supporting the expert view that the injury caused could not have been due, say, to an accidental fall or some other non-deliberate cause.  The accumulation of injuries sustained over an extended period did tend to establish that the child had been the victim of continuing aggression so supporting the view that the injuries that occurred on 28 January were non-accidental.  That is, the additional evidence was logically probative of a matter which the Crown was obliged to prove. 

Then to what impermissible prejudice did the additional evidence expose the appellant?  It is not possible to identify any.  The greatest effect it had that was adverse to the appellant was that it left the determination of the agency causing the additional injuries as a choice between Ms Ellacott and the appellant, but this was exactly where the evidence of the injuries suffered on 28 January was left.  The additional evidence had no tendency to lead the jury to make a prejudicial determination against the appellant rather than the other person who had an opportunity to inflict the injuries.  There was, in fact, some weak suggestion that the evidence of Ms Ellacott at the trial might have been viewed as having a potential to clear the appellant of responsibility because Ms Ellacott gave certain rather ambiguous answers said to suggest or concede that over the numerous occasions when the appellant would have visited and stayed overnight at the house he was never alone with the child.  I agree, however, with what Davies JA has said about this evidence coming from Ms Ellacott and that it cannot be regarded as introducing any real uncertainty about the appellant’s opportunity to have caused the other injuries.  In the end, although the judge explained to the jury that they might use the evidence of the additional injuries as relevant only to the elimination of the possibility of accident and as showing the accused’s attitude to the child, it could be stated in broader fashion that the evidence added a helpful dimension to the area to be considered and that in combination with Ms Ellacott’s denial that she was responsible for the injuries, it was capable of providing additional circumstantial confirmation that the appellant was guilty of the charge against him.  The evidence should be regarded as properly probative of the matter charged and as being properly admitted.  The directions as to the limited use to be made of it by the jury contained no error of which the appellant can complain.  The appeal should be dismissed.

I agree, for the reasons stated by Davies JA, that the application for leave to appeal against sentence should be granted and that an order should be made as he proposes.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 10 October 1997

On 20 January this year, the appellant was convicted in the District Court at Brisbane of one offence of doing grievous bodily harm to a ten month old child, who was the son of the appellant’s sexual partner.  The appellant has appealed against his conviction and applied for leave to appeal against the sentence of imprisonment for five and a half years which was imposed in respect of the offence of which he was convicted.

The offence involved an injury to the child which consisted of a large right parietal skull fracture with an extra-cerebral haemorrhage in the left upper parietal region with a small amount of surrounding tissue oedema.  These injuries were caused on the morning of 28 January 1996.  The child’s mother found him in his cot with his head rolling back and his eyes rolling back in his head, and took him to the Redcliffe Hospital where he was seen at about 1.45 p.m.  Later that day, the child was transferred to the Royal Children’s Hospital.  Other injuries to the child were discovered, including a fractured rib at its connection with the vertebral column, a fracture of the right tibia and fibula at the ankle, bruising in the small of his back and minor facial injuries.  Medical evidence established that the head injuries to which the offence related were recent and had been caused by shaking the child, the fractured rib was two to three weeks old and had been caused by a very significant force, the fractured leg had occurred in the ten days prior to the child’s admission to hospital and required considerable force, and that a reasonable degree of force would have been needed to cause the bruising to the child’s back, which appeared to be at least seven days’ old.  According to his mother, the child had been irritable, off his food and crying a lot from late December 1995 and throughout January 1996.

The relationship between the appellant and the child’s mother was not of long duration, but had commenced prior to the period in which the injuries to the child occurred.  The appellant did not live with the child and his mother on a full-time basis, but maintained a separate residence and slept at the home of the child and his mother on three to four nights a week.  The appellant spent the night of Saturday, 27 January with the child’s mother, who arose before the appellant on the morning of Sunday, 28 January and spent some time with the child, before leaving him playing on the floor of his room.  Later, while  the child’s mother was speaking on the telephone, the appellant arose and, when the child started crying, offered to change his nappy.  According to the child’s mother, the appellant was absent for about five minutes.  She said that she heard a thud during that period, and that, when the appellant returned, he was carrying a nappy and commented on the child’s crying.  It was some time after she finished speaking on the telephone that the child’s mother went into his room and found him injured in his cot.

The prosecution was required to prove beyond reasonable doubt that it was the appellant who caused the child’s injuries to which the charge related, and that he did not do so accidentally.^[1]  If the child’s mother’s account of the events of 28 January was accepted, there was obviously a strong case against the appellant without proof that he caused the child’s other injuries, which were not the subject of any criminal charge against the appellant.  However, proof that he had caused those injuries, demonstrating a pattern of violent behaviour towards the child, would plainly put his guilt of the offence charged beyond reasonable doubt.  The appellant’s appeal against conviction is based on submissions that the trial judge erred in admitting evidence of the child’s earlier injuries and in his directions to the jury concerning the use of that evidence.

Before admitting evidence of the child’s other injuries, the trial judge was required to be satisfied that the evidence was capable of acceptance by the jury and, if accepted, of persuading the jury to the requisite standard that the appellant had caused the child’s earlier injuries; further, the evidence of the earlier injuries, if accepted as persuasive to the requisite standard by the jury, must leave open no rational inference in the context of the prosecution case except that the appellant was guilty of the offence charged.  The rationale for the admission of the evidence of the earlier injuries in those circumstances is that, because the specified requirements were satisfied, the probative value of the evidence of the earlier injuries sufficiently outweighed its prejudicial effect.^[2]  Obviously, it is involved in these propositions that proof of the uncharged criminal conduct is logically probative of the offence charged; that is, the uncharged criminal conduct is a circumstance which is probative of the accused’s guilt of the offence charged.  Ordinarily, the logical connexion is to be found in the similarity between the uncharged criminal conduct and the offence charged.  However, that is not essential.  In my opinion, R. v. Carne^[3] is an example of a case in which there was no need to compare the two offences in which Carne was allegedly involved.

The requirements of proof to the requisite standard that an accused engaged in uncharged criminal conduct and that evidence of the uncharged criminal conduct, if accepted, leaves open no rational inference in the context of the prosecution case except that the accused committed the offence charged will often coalesce; for example, when there is direct evidence of uncharged criminal acts which the trial judge considers that the jury could accept as credible and reliable.  Carne was such a case.  Consequently, I found it unnecessary to decide what standard of proof applies to uncharged criminal conduct.

Nor need that issue be considered in the present case.  There was no evidence directly implicating the appellant in the child’s earlier injuries.  The child’s mother was not challenged on her evidence that she did not cause the injuries.  Her evidence was also inconsistent with any other person, including the appellant, causing the injuries.  She swore that he was never alone with the child prior to the morning of 28 January 1996, when the child received the head injury to which the charge against the appellant related.  The prosecution made no attempt to prove otherwise.

The evidence concerning the child’s earlier injuries was incapable of proving beyond reasonable doubt that the appellant had caused those injuries.  The prosecution case not only left open the possibility that the appellant had not caused the child’s earlier injuries but failed to prove that he had probably caused those injuries.  Since the only evidence implicating the appellant was itself circumstantial, namely his relationship with the child’s mother and presence at their residence from time to time during the period when the child’s earlier injuries were caused, it is more accurate to say that the prosecution evidence did not give rise to more than an inference that he had possibly caused such injuries, and did not give rise to an inference that he had probably done so, or, obviously, that he had certainly done so.

Evidence that the appellant possibly caused the child’s earlier injuries was not logically probative of his guilt of the offence charged.  Accordingly, evidence concerning the child’s earlier injuries should not have been admitted.

The appeal should therefore be allowed, the appellant’s conviction quashed, and a new trial ordered.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 10 October 1997

The appellant appeals against his conviction for grievous bodily harm to a ten month old child of Alison Marie Ellacott with whom he was having a sexual relationship and with whom he lived on three or four nights a week.  He also seeks leave to appeal against the sentence imposed on him for that offence which was one of five and a half years imprisonment.  The facts relevant to the appeal against conviction are substantially set out in the reasons for judgment of the President.  I adopt his Honour's statement of those facts although I shall add some further facts.

As the President has pointed out in his reasons for judgment the appeal against conviction concerns evidence admitted, over the objection of the appellant, of injuries incurred by the child, other than those constituting the grievous bodily harm, incurred over a period of some weeks prior to the occurrence of the grievous bodily harm.  Two aspects of this evidence are challenged;  its admission into evidence over the appellant's objection and the adequacy of the learned trial Judge's directions given with respect to it.  The appellant did not seek any redirection in respect of the latter.

The central question in the case was whether it was the appellant or Ms. Ellacott who had caused the injuries which constituted grievous bodily harm.  There was no other person who could have caused them.  The medical evidence excluded accident because it indicated that these injuries had been deliberately caused and the appellant at trial indicated that he did not intend to rely on a defence of accident.  He did not resile from that before this Court.

Ms. Ellacott in evidence-in-chief denied that she had caused the injuries which constituted the grievous bodily harm and gave evidence to the effect that the appellant was the only person who had the opportunity of inflicting the injuries.  She was not cross-examined upon her own denial but it was put to her, and accepted by her, that she had given a version to a police officer as to the appellant's involvement which was inconsistent with an earlier version and with her evidence.  The inconsistency related to the "thud" referred to in the President's reasons.  In her earlier version and in her evidence she said that she heard this whilst the appellant was apparently in the child's room and that it came from that direction.  However in a later version given to a police officer she had apparently said that the thud occurred after the appellant had emerged from the child's room.

The appellant did not give evidence and there was no other evidence contradicting Ms. Ellacott's version of events on the morning of 28 January 1996.  The case was therefore a very strong circumstantial one against the appellant.  The injury constituting grievous bodily harm was plainly deliberately inflicted.  It was not contended on the appellant's behalf that it was inflicted by Ms. Ellacott and the only other person who had the opportunity to inflict it was the appellant.  Moreover on the version which Ms. Ellacott gave at trial, which accorded with the first version which she gave the police, there was a thud which came from the direction of the child's room at a time when the appellant and the child were alone in that room.  Only the appellant could explain what took place and he did not give evidence.

The earlier injuries, the admission of evidence of which was objected to, were:

1. a fracture of the tenth rib on the right hand side at the back near where the rib connects with the vertebral column.  It showed some bone healing which indicated that it had occurred about two to three weeks prior to 28 January.
2. A fracture of the tibia and fibula at the point where those bones meet at the ankle.  The x-ray showed signs of early healing which indicated that it had occurred about ten days before 28 January.
3. Bruises to the back which were about seven days old on 28 January.

Considerable force would have been needed to cause the first and second of these injuries and they would not have been accidental.  A reasonable degree of force was required to cause the third of those injuries;  it was not such as would occur during the course of ordinary handling of a young child.

The argument here and below for the exclusion of that evidence is that there was no evidence that the appellant had the opportunity to cause these injuries and there was evidence from Ms. Ellacott to the opposite effect.  That evidence was in the following passages during the course of her cross-examination:

"Alright.  It is correct to say, isn't it, that Aaron was never left alone with Kohbyn? -- Not really, no.

It's not really correct or he was never really left alone with him? -- No, not that I remember.

"That he was left alone with him.  You don't remember him being left alone with him? -- Yeah."

The matter was returned to later in cross-examination in the following exchange.

"Now, you said yesterday that the accused person, Mr. Aaron Smith, had never been left alone with Kohbyn;  correct? -- Not that I know of, yeah."

There are two respects in which this evidence is unclear.  The first is that it is not clear whether Ms. Ellacott was agreeing that she had never gone out leaving the appellant alone in the house with the child or whether she was agreeing, as the appellant contends, that the appellant had never been out of Ms. Ellacott's sight, in the house, whilst he was with the child.  The second seems an unlikely construction of what she was saying;  unlikely because the appellant stayed in Ms. Ellacott's house three or four nights a week and, it would appear, during the daytime on at least some of those days.  It would be most unlikely that there would not have been times when he was in the presence of the child but not that of Ms. Ellacott.

The second respect in which these passages are unclear is as to whether Ms. Ellacott was agreeing that the appellant was not left alone with the child or that she could not recall any occasion when he was.  It is unlikely that she would specifically recall occasions when both she and the appellant were present in the house but he and the child were both out of her sight.

Whatever is the true meaning of this evidence it was in my view plainly open to the jury to infer from the appellant's frequent presence in the house that he had the opportunity to inflict the earlier injuries referred to.  Again, these injuries could have been inflicted only by the appellant or Ms. Ellacott.  Senior counsel for the appellant conceded before this Court that he could not point to any other person who might have caused these injuries.  Ms. Ellacott gave evidence that she did not inflict any of these earlier injuries and she was not cross-examined with respect to her denial.  The jury were entitled to infer from this evidence, the probative value of which is high, that it was the appellant who had inflicted these injuries and, at least the first two of these and the injuries constituting the grievous bodily harm being injuries which were deliberately inflicted, that this evidence raises the objective improbability that it was someone other than the appellant who inflicted the injuries constituting the grievous bodily harm.^[4]  The evidence as to these earlier injuries was therefore in my view rightly admitted.

It is true that the learned trial Judge did not specifically remind the jury of Ms. Ellacott's evidence in cross-examination, which I have set out above.  No doubt, however, it would have been referred to by defence counsel who addressed immediately before his Honour commenced to sum up.  But nor did his Honour refer to the opportunities which the appellant must plainly have had, during the periods he spent in the house, to inflict the earlier injuries referred to.  Referring to the earlier injuries his Honour said:

"All this evidence, ladies and gentlemen, the Crown says involves hostility by the accused against the child, and supports the conclusion, the Crown says, that the grievous bodily harm alleged was not done accidentally.  It is possible for you to use this evidence in this way, but you can only do so if satisfied beyond reasonable doubt that the accused was responsible for those injuries to which I have referred, and that he in fact had the relevant hostile attitude towards the child.  You can only do that on circumstantial evidence."

His Honour did not go on to refer to the circumstantial evidence in favour of or against the conclusion that the appellant was responsible for those earlier injuries.  That may well have been because counsel on both sides had so recently addressed on these matters.  In any event his summing up was neutral in this respect and no redirection was sought.  For these reasons I do not think his Honour's failure to specifically mention the evidence set out above amounted to a misdirection.

In my view, the appeal against conviction should be dismissed.

The applicant was sentenced to five and a half years imprisonment.  He is 26 years of age, having been born on 3 June 1971.  His only previous convictions were for obscene language in 1990 and for three marijuana offences all in 1993.  He had never previously been sent to gaol,  his highest penalty being a fine of $360.  At the time of commission of this offence he was on a methadone programme for a heroin addiction.

There is no doubt that this offence involved a vicious attack on a defenceless baby.  Moreover the appellant has shown no remorse for his conduct.  Although this Court is not sentencing the appellant for his earlier conduct towards the child, that conduct tends to indicate that he was prone to acts of violence.  On the other hand impressive references were tendered on his behalf which indicated that generally he was a caring person and that the offence was completely out of character.  If these are accepted his conduct over this period is a little difficult to understand.

Although the injuries were initially were quite serious the child is making a good recovery.  The prognosis at this stage is not entirely clear.  The child has a mild functional deficit on the left side but it is impossible to say whether that will result in any functional impairment.  It seems unlikely that there will be any gross impairment.

In imposing the sentence which he did the learned sentencing Judge considered R. v. Henry^[5] and R. v. Rainbird.^[6]  The respondent also relied on R. v. Donaghey.^[7]  The first two of these cases, although they were Attorney's appeals and therefore perhaps not entirely reliable as precedents, indicate a sentencing range lower than that which his Honour imposed in this case.  Donaghey appears, at first sight, to support the sentence imposed.  However the injuries in that case were much more serious than those in this, the child there having gross permanent injuries.

Despite the seriousness of this offence, the appellant's youth and the absence of any substantial previous convictions indicate, in my view, that, in imposing the sentence which he did, the learned trial Judge gave too little weight to the prospect of rehabilitation which, despite the commission of such a serious offence, in a man so young with so few prior transgressions, must be quite high.^[8]

Having regard to the circumstances to which I have referred, in my view the sentence imposed here was manifestly excessive.  I would substitute for it a sentence of four years imprisonment.  Accordingly I would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed below and substitute a sentence of four years imprisonment.