R v Turmaine[2004] QCA 75

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted after a jury trial in the Supreme Court at Brisbane on 4 September 2003 of murdering his four week old son, Liam James Turmaine, on 10 February 2001.  He contends that the conviction was unreasonable and cannot be supported having regard to the evidence[1] which turned on the appellant's admissions of guilt, which the appellant argues were unreliable.

[2] This ground of appeal requires a review of the whole of the relevant evidence.

The evidence

(a)The prosecution witnesses

[3] The appellant, who was 22 years old, resided with the deceased child and the child's mother, Katherine Grainger, at Beachmere.  Ms Grainger gave birth to Liam on 11 January 2001.  The child was not a difficult baby initially but after the third or fourth week he cried more and slept less; he developed thrush on his tongue.  Because he was so unsettled, his parents changed his sleeping arrangements from a cot in the second bedroom to a pram in the main bedroom, which Ms Grainger shared with the appellant. 

[4] On the night of 9 February 2001, Ms Grainger put him in the pram in the main bedroom at about 8.00pm and went to sleep.  She woke once and checked on the baby who was still asleep in the pram.  She asked the appellant to feed the baby if he woke up with a prepared baby's bottle of formula from the fridge.  The appellant was then in the kitchen with a friend who was staying the night, Troy Hibbs.  She slept until the appellant woke her with Liam in his arms saying that the baby was dead.  They called '000' emergency services and both Ms Grainger and the appellant performed CPR on the baby.  The ambulance arrived shortly after 1.00am and paramedics continued efforts to revive the child as he was transported to Caboolture hospital.  He was pronounced dead at 2.04am. 

[5] The pathologist who performed the post-mortem examination, Dr Stinton, was unable to determine the cause of death.  A microscopic examination revealed an abscess and a small area of ulceration through and behind the wall of the oesophagus.  Such an area of infection commonly develops pus; tends to be quite painful; was not obvious to the naked eye and could have caused a change in feeding and sleeping habits.  The abscess was unlikely to have caused the death although it was possible on pathological grounds that it contributed to it.  This is because the abscess could have caused septicaemia, spread to other sites or caused malnutrition through an inability to feed.  There was no indication the abscess had contributed to the death; no infection was found in the body and the child had recently ingested milk and was not malnourished.    Although Dr Stinton was unable to exclude the abscess as a theoretically possible cause of death, he did not regard it as a serious possibility.  He could not exclude the possibility that the baby had been smothered by plastic or gladwrap and his post-mortem findings were not inconsistent with such a scenario.

[6] The appellant was enthusiastic about the birth of the child, both during the pregnancy and after the birth. He appeared to be in deep grief after the death of the baby, even attempting suicide on one occasion.  About a month after Liam's death, a counsellor advised the appellant and Ms Grainger that as part of the grieving process they should put some photos of Liam in the house; the appellant was compliant, but Ms Grainger felt that she was not ready.

[7] The prosecution case centred on admissions made by the appellant.  At about 3.30pm on 9 April 2001 he attended his doctor's surgery.  The receptionist, Karin Wright-Hession, noted that he was very upset; he had been drinking and was very agitated, very emotional, very distraught and said that he killed his baby.  He asked to see Dr Evans.  She took him into a private room to wait for the doctor.  He told Ms Wright-Hession "that he'd been standing outside having a cigarette and he had previously taken drugs and that Liam was crying and he couldn't stand the crying any longer ... he got some plastic and put it over his face".  He said the drugs he had taken were speed.

[8] Dr Evans then saw the appellant.  He was very agitated, upset and angry and said, "I want help.  No-one will help me."  She asked him what he wanted help with and he said, "I killed my baby."  She asked him what he meant.  He said that he tried to kill his baby; that he tried to use a plastic bag; that this was not successful and the baby would not die so he got some gladwrap and then the baby died.  She asked him what he did. He said he put the baby back inside; Ms Grainger was asleep.  He became angry with Dr Evans claiming that she was not helping him either and he stormed out of the consulting room.  His parents, who had been called to the surgery, followed him outside.  He was very angry with everybody, including his parents.  Because of his behaviour, Dr Evans thought the appellant was affected by alcohol and possibly drugs at the time of the consultation. 

[9] Prior to making these statements to Dr Evans and Ms Wright-Hession, the appellant had been abusive towards Ms Grainger and had thrown a knife towards the door as she left their home.

[10]  The appellant's parents were in the waiting room whilst the appellant was talking to Dr Evans.  His mother heard him tell Dr Evans that he had killed the baby.  She thought he was pretty drunk, the worst she had ever seen him.  Outside the doctor's surgery the appellant made allegations that his father had tied him to the clothes line and belted him when he was younger and that he had seen his mother in bed with her brother.  These allegations were completely baseless. 

[11]  The appellant had visited a clinical nurse with the Mental Health Assessment Team at the Caboolture hospital on 7 April 2001, (two days before the confession to Ms Wright-Hession and Dr Evans), and was given an appointment to see the Psychiatric Registrar at 4.00pm on 9 April 2001.  He attended for that appointment after the episode at Dr Evans' surgery but because he was heavily intoxicated the hospital was unable to provide him with any useful assistance.

[12]  On 21 October 2001, Ms Grainger and the appellant argued.  The appellant had drunk about six stubbies of XXXX bitter in a couple of hours.  He threw the telephone, which hit her on the leg.  Ms Grainger said that he head butted her so that she banged back against the wall.  She told him that she was going to her father's home.  He said that he had killed the baby with a plastic bag or gladwrap, that he wrapped it around the baby's head and suffocated him.  He said, "If you don't believe me, it is near the water meter at Beachmere."  She left for her father's home. 

[13]  The next morning she returned and said they would talk further about the matter when she returned home from work.  The appellant was unable to go to work that day because he was affected by the alcohol he had consumed the previous night.  Ms Grainger returned home again at about 10.30am and asked him if he wanted to talk about the matter.  He said he had nothing to say.  At her prompting he apologised.  She again asked him if he wished to talk about what he had said the night before but he declined saying, "What's there to say?  I killed Liam, and that's all there is to it."  She asked him why; he said, "I don't know."  She asked him why he did not tell somebody about it; he said, "What's there to tell? … I don't want to carry this guilt around forever"; that was why he had told her.  She told him that she would go to the police.  He said, "Well, you could tell the police, but they are not going to do anything about it because there's no proof.  They can't do anything."  He did not appear to be affected by any intoxicating substances although he had a hangover; he appeared upset and his eyes were watering.  She rang her mother and asked for advice and the following day she rang the Crisis Assessment Team.  She also rang police officer Kelly McAuliffe.  As a result a listening device was placed in the home with Ms Grainger's permission.

[14]  Troy Hibbs gave evidence that the appellant was a caring, enthusiastic and involved father.  On 9 February 2001 he visited the appellant and Katherine Grainger at their home at Beachmere.  Liam was whingy, crying a lot, a bit distressed and unsettled.  The purpose of his visit was to help tidy up the garden but they did not do this because the baby was so unsettled.  He suggested they might take Liam to the hospital because he was coughing and having trouble breathing.  Troy had dinner there and then spent the night.  Katherine went to bed tired and exhausted.  He and the appellant consumed two or three cones of marijuana.  He went to bed at about 10 or 11pm and was woken by the appellant holding the baby in the early hours of the morning: the baby's face was pale; yellow/green mucus was coming from his mouth and there was a little bit of blood under the corner of his mouth and nose.  He and the appellant followed Katherine and the baby in the ambulance to the hospital.

[15]  One day in October 2001, apparently after the first confession to Katherine and before the second confession to her the next day, the appellant rang Troy and asked to come over because he had had a row with Katherine.  They bought a bottle of bourbon and some coke and by the end of the night the appellant was fairly intoxicated; he was loud and noisy when he went to bed and later vomited in a bucket from too much alcohol.  The appellant left at about 4am.

[16]  On 25 October 2001, Ms Grainger and the appellant again spoke about the baby's death.  On this occasion he was not affected by any intoxicating substances.  She raised the topic of his earlier confession to killing Liam.  He said, "There's no way of proving it, nothing like that."  She said she did not believe he killed the baby; he said, "Well, I didn't. … I didn't then, leave it at that, that's all."  She persisted in her questioning of him and he added, "Oh, look, li (sic) tell you, you don't believe me so just believe what you like, do what you wan (sic), I don't mind, I don't care just don't keep on asking me something I've already told you."   Later the conversation continued:

“Appellant:You’ll always be in doubt and I shouldn't have said anything, I shouldn't have said a word it's just that it's playing on my mind that much, that it's making me crook, making me upset all the time and stuff like that and I can't, I can't do anything about it, forget it, don't worry about it, leave it.

Grainger:So, I'm supposed to forget you told me

Appellant:I did it, I have to. … [indistinct] can't do nothing, about it now, they can't do anything, like there's no way of proving it,  the coroners said all the stuff like it was SIDS they don't know what did it.

…

Grainger:I don’t believe you could be capable of that?

Appellant:I don't think I would either, but like it seemed like

Grainger:Do you remember anything?

Appellant:Yeah, I remember the whole thing

Grainger:Do you remember what you used?

Appellant:Yeah

Grainger:Was it plastic or ..

Appellant:  Glad wrap.

Grainger: It was glad wrap are you one hundred per cent sure that you used it?

Appellant:Yeah, [indistinct]."

[17]  A subsequent search of the Beachmere property late in 2001 did not reveal any gladwrap near the water meter.

(b)The appellant's interview with police

[18]  The police came to the premises later that evening.  The appellant attended the police station where police interviewed him in a video recorded interview.  He denied killing the child.

[19]  He told police that on the night of his son's death he was looking after Liam.  He changed and fed him at about midnight, burped him and then put him in the pram in the bedroom.  He went outside for a cigarette and coffee.  He returned to the bedroom to check the baby; he was blue and was not breathing.  He woke up Ms Grainger straight away and they tried CPR and rang the ambulance.  He said he had been trying to forget the death.  The baby had been "pretty good" during the day although he had vomited a couple of times after feeds and Katherine was concerned about him; he had been spitting up milk and gurgling and choking for a little bit after feeds. 

[20]  The appellant's friend, Troy Hibbs, had been visiting since mid morning and was staying the night; they had drunk some alcohol but not a great deal because they were broke.  After dinner they watched television and Troy helped him bathe Liam before putting him down for a sleep.  He thought Katherine may have been grumpy because he and Troy had not done the dishes after dinner.  She went to bed first because she was always tired.  Troy was sleeping in a spare bedroom and he and Troy went to bed at about 8.30pm.  The baby woke up a few times during the night.  On the first two occasions Katherine looked after him.  On the third occasion at about midnight, she made the appellant get up.  After feeding the baby and leaving him in the pram whilst he had a break, he returned, picked the baby up and noticed some red mixed in with the milk which the baby had brought up.  He immediately screamed at Katherine to ring the ambulance.  They attempted to resuscitate the baby following instructions from the triple 0 operator.  Katherine went with the baby in the ambulance and he and Troy collected some belongings and followed the ambulance in a car to Caboolture hospital. 

[21]  He said he had used marijuana or amphetamines prior to the baby's death but he had ceased using them at the time the baby died.  He modified that statement by adding that he and Troy had smoked three and a half cones of marijuana that day and then had a couple of beers.  He had not used amphetamines for two or three days before Liam's death and did not use amphetamines that day. 

[22]  About five months after the baby's death he was very depressed and attended his doctor's surgery.  He had five or six wines beforehand and was really distraught.  He had given up smoking marijuana and was really on edge.  He denied telling Dr Evans that he killed the baby.

[23]  He told police that once, during an argument when he was angry with Katherine, he falsely confessed to her that he killed the baby.  Katherine was always putting the theory to him that the baby had died when he was looking after him.  He falsely said he killed the baby as retaliation against Katherine; this was untrue and he denied killing Liam.  He felt guilty because he was looking after Liam when he died.  He denied telling Katherine he had killed the baby with plastic wrap and denied telling her on any subsequent occasion that he had killed the baby.

[24]  The appellant did not give oral evidence.

The appellant's contentions

[25]  The appellant contends that the circumstances in which the various admissions were made rendered his statements that he had killed Liam entirely unreliable.  He was plainly disturbed and intoxicated at the time of the admissions to Ms Wright-Hession and Dr Evans.  His statements to Ms Grainger on 21 October 2001 were made after they had argued and after he had consumed about half a dozen stubbies of XXXX bitter within a couple of hours; he wanted to hurt and get back at her.  The reliability of his subsequent conversations with Ms Grainger in which he again made admissions to killing Liam were tainted by the circumstances surrounding the earlier unreliable confessions.  His admission to Ms Grainger on 22 October 2001 was also tainted by his heavy drinking the night before and his subsequent hangover.

[26]  At trial the appellant's counsel relied upon a decision of the State of Washington Court of Appeals, The State of Washington v Aten[2] where the majority held that Aten's admissions to suffocating the child were insufficient on their own to sustain a conviction for second degree manslaughter; the corpus delicti doctrine required corroboration of the confession.  Mr Rafter SC, who appears for the appellant, and has said all that can be fairly said on the appellant's behalf, properly concedes that the learned primary judge correctly identified that Aten does not represent the law in Queensland.  An accused person may be convicted on confessional evidence alone, provided the jury's attention is drawn to the need to be satisfied not only that the confession was made but also that it was reliable: see, for example, R v Baker[3] and R v Arnold; ex parte Attorney-General (Qld).[4]

The judge's directions to the jury

[27]  No complaint is or could be made of the learned primary judge's directions to the jury.  They highlighted the importance and centrality of the confessions to establishing the prosecution case.  Her Honour accurately summarised that evidence and directed the jury:

"Where there is no evidence about the cause of death from the body of a deceased person; that is, death from natural causes, or by unlawful act, you will need to be especially careful in evaluating the confession of the accused.  Before you can act on the confessions you must be satisfied the accused man said the words attributed to him, and that what he said was true."

[28]  Her Honour explained:

"It is the experience of those involved in law enforcement that some people make false confessions.  The reasons vary.  Sometimes they are attention seeking.  Occasionally they are protecting someone else.  Perhaps the person confessing feels a sense of guilt about the death of the person based on a wrong view about the cause of death, or sometimes the balance of the confessing person's mind is disturbed."  (my emphasis)

[29]  The learned trial judge reminded the jury of some of the inconsistencies between the appellant's record of interview with the police and the uncontradicted evidence of those witnesses in court.  Her Honour also accurately summarised the pathologist's evidence as to the ulcerated abscess on the oesophagus, and the possibility that it may have contributed to the death.

[30]  Her Honour fairly summed up the prosecution and defence cases.  The latter was that the appellant was a loving father who was so grief-stricken on the death of his son that he became depressed, abused alcohol and illicit drugs and made false confessional statements, which constituted the only evidence that a crime had been committed.  Neither Ms Grainger nor Troy Hibbs was awakened by the baby's cries.  It could not be excluded that the abscess was the cause of death.  The jury could not be satisfied that on this evidence the appellant killed the baby; even if they were so satisfied they could not be satisfied that he intended to kill or do grievous bodily harm to him because his mind was so affected from alcohol and drugs at the time.

Conclusion

[31]  The reliability of the appellant's confession was the essential and crucial point for the jury's determination.  The medical evidence did not reveal any other reasonably possible cause of death and suffocation by plastic wrap was not excluded as a cause of death.  The appellant's explanation to police for his false confessions, whilst in evidence, was not sworn.  It contained some significant inconsistencies in that he there denied telling Ms Grainger that he killed the baby with gladwrap and denied that he repeated the confession the next day and again in the tape recorded conversation on 25 October.  None of the confessions was challenged at trial as not having been made.  Whilst the confessions to Ms Wright-Hession and Dr Evans on their own may have been of questionable reliability and weight, they were given strong support from the subsequent confessions to Ms Grainger, especially the tape recorded confession made when he was sober, not hung over and not in the course of any argument.  In any case, the details of the admission that he smothered Liam with plastic wrap do not seem to have been the guilt-racked ramblings of a parent devastated because the baby died whilst in his care.  The appellant's explanation in the police interview contained some denials which were objectively established as false, of most significance his denial that he confessed to smothering the baby with gladwrap and his denial that he repeated the initial confession to Ms Grainger. 

[32]  The jury were properly directed that they must be satisfied the confessions were true, that sometimes people make false confessions and that they must be especially careful in evaluating the confessional evidence.  They were entitled to reject the appellant's explanation to police that the confessions were false and to be satisfied that the appellant not only made the confessions but that the confessions were true beyond reasonable doubt.  It follows that on a consideration of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant: M v The Queen.[5]

[33]  The appeal must be dismissed.

[34]  DAVIES JA:  I agree with the reasons for judgment of McMurdo P and with the order she proposes.

[35]  McPHERSON JA:  For the reasons given by the President, I agree that this appeal should be dismissed.  The jury were entitled to reach the verdict that they did, and there is no ground on which this Court would be justified in setting it aside.