SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  The appellant was convicted after a trial of the manslaughter of her son Adam on 15 February 2002.  At the outset of the hearing of her appeal against conviction leave was given to delete the ground of appeal set out in the Notice of Appeal and to substitute the following;

"1.  The reasonable possibility that the death was caused by the action or actions of [R] was not excluded by the evidence, and the verdict was therefore unreasonable.

2.  Evidence of injuries sustained by Hamish Macphee and Dylan Macphee ought not to have been admitted in the trial.

3.  The learned trial judge erred when she failed to direct the jury that the evidence relating to the injuries sustained by Hamish Macphee and Dylan Macphee was an indispensable intermediary link in any chain of reasoning towards guilt, and as such they were required to be satisfied beyond reasonable doubt about any such evidence before the ultimate inference of guilt could be drawn.

4.  The learned trial judge erred in the directions she gave the jury as to the manner in which the injuries to Hamish Macphee and Dylan Macphee could be used."

[2] Most critical facts were not in dispute (though there was a question as to the use the jury could make of some of those facts) and they provide the background against which the submissions made in the course of the appeal must be evaluated.

[3] The appellant was born on 2 September 1966 making her age 35 at the relevant time.  For some nine years prior to October 2001 she had been in an "on and off" relationship with M.  The first child of that relationship, R, was born on 1 July 1994.  Then, again as a result of that relationship, on 2 January 2002 the appellant gave birth to triplet sons; Adam, Hamish, and Dylan.  The triplets were born five weeks prematurely and remained in hospital care until 21 January 2002 when the appellant took them to her home at Daisy Hill.

[4] Shortly before 8 a.m. on 15 February 2002 (that is a little over three weeks after the triplets began living with the appellant) she noticed that Adam was not breathing and called for assistance from neighbours.  Attempts by a nurse, and then by ambulance officers, to resuscitate Adam failed and he was pronounced dead.

[5] A post mortem was carried out by a pathologist, Dr Ashby, on 16 February 2002.  That examination did not reveal "any bruising externally".  On opening the scalp the doctor "saw generalised bruising in the scalp tissues and this was most marked on each side, the right and the left side extensively heavy there.  Also covering the bone on the vault of the top of the skull, there's a membrane and there was bruising in association with this membrane.  This was a deeper form of bruising in the deepest level of the scalp layers."  The doctor noted the bruising in the soft tissues "was more concentrated upon the right side"; it was "fresh bruising" meaning it was sustained "certainly within 12 hours . . . from the time of sustaining the injury to the time of death."  Further examination revealed "two obvious fractures of the skull . . . one on each side in the parietal region . . . On the right hand side of the skull, in the parietal region, there was a fracture which was widely separated, the two parts, and it passed vertically up towards the top of the head, a vertical fracture, with wide separation and associated bruising; that is, that had been sustained in life.".  Then there was "another fracture also of wide separation and passing not vertically, but transversely along the cartilage, also associated with bruising.  The fracture on the right hand side measured 3.5 centimetres in length and that on the left hand side measured 3 centimetres in length."  The doctor also noted that the "suture line on the right hand side had been widely opened up or forced open."  Further examination revealed blood clots present between the dural membrane and the surface of the brain.  There were also blood clots present around the base of the brain.  That bleeding was "very recent", that is within a few hours of receiving the injury.  Finally the doctor noted that "internally there was a small area of bruising on the strap - the right side of the strap muscles of the neck."

[6] The doctor's evidence was there was no evidence of brain swelling and that would "suggest that the period of survival was very short indeed, because the response of the brain to trauma, particularly in babies and young children, is a swelling."  The doctor concluded that death was due to brain damage evidenced by a fracture of the skull.  In her opinion the baby would have survived for only an "extreme short period" after sustaining the injury.  She said that death would not have been "instantaneous, but certainly - almost certainly within the hour, very likely of a very short period."  The doctor's evidence was that a "severe degree of force" would be needed to cause those injuries.  She went on:  ". . . there hasn’t been just a simple acceleration from gravity or just a simple - what we call a transitional fall, but there has been actual torsional twisting, shearing movement of the brain and the membranes within the skull . . . Unless there's an obvious cause like a motor car accident or something of that sort, they are suggestive markers for deep brain damage . . . but certainly both of these haemorrhages, and in particular the subarachnoid in association with the subdural would be a strong indication of torsional or shearing, deep injury to the brain."  The doctor did not consider it likely that the necessary degree of force would be present in dropping a child from the arms or indeed from shoulder height.  It would even be less likely that such a fall would cause those injuries if the fall was onto carpet.  She said:  ". . . With a simple or transitional fall you would be unlikely or very unlikely to have a subdural haemorrhage . . . The combination of the subdural, subarachnoid and the fracture such as I found would not suggest a simple fall onto the carpeted floor"; nor did she think that a fall from the rocker on which the baby had been placed would cause those injuries.  The doctor's evidence at trial was that "at least two impacts to the head" would be necessary to cause all the injuries because one of the fractures was vertical and the other horizontal.  However, the doctor did concede under cross-examination that on being questioned at the committal hearing she had said:  "One substantial blow to the right upper surface of the head might have been made, but two cannot be excluded".  She indicated that on further consideration, because of the direction of the fractures and because of the discrete areas of bruising, it was "more probable than not that there was more than one blow to the head".

[7] Further, under cross-examination, Dr Ashby conceded that though she looked carefully she did not find any healing rib fractures.  She conceded she could have missed that.

[8] X-rays were taken of Adam as part of the post mortem procedure and those x-rays were reviewed by Dr Lamont, a specialist in paediatric radiology.  At the trial those x-rays were shown on screen for the benefit of the jury, and Dr Lamont was able to point out on those pictures the fractures of the skull.  With respect to those fractures his evidence was:  ". . . there's been a very substantial amount of force applied to the head.  Whether that is by a blow or whether the skull has impacted against something, I can't say.  What I can say it is much more substantial than normal.  Why do I say that, a small amount of force, say, for example, somebody falling off a table of about the height of these tables here could easily cause a fracture of the skull, but those fractures tend to be linear, just a thin line in the skull.  Here we have a complicated fracture . . . This is force way beyond which you would expect to see in normal domestic life, even from an accidental fall say off a table . . . very much more than I would expect of a normal handling of a baby".

[9] Dr Lamont then referred to the chest x-ray of Adam which showed "rib fractures that are present are subtle and difficult to see".  There were fractures of the sixth rib on the right and the seventh on the left.  Speaking of the fracture on the right side the doctor said:  "It's likely that there has been a sudden impact on the rib at that point".  He also said:  "I think that the fracture of the left seventh rib is likely to have been caused at the same time and by the same mechanism as the one on the right."  He stated that doctors "very seldom see rib fractures" in babies.  These fractures were "approximately a week of age".

[10]  Subsequently on 13 and 22 March 2002 skeletal x-rays were taken of Hamish.  These were again examined by Dr Lamont and his evidence with respect thereto was as follows.  He said that "Hamish's right arm showed a double line along the shaft of the humerus" which demonstrated that the periosteum, which was like a sleeve around the shaft of the bone, had been "pulled away or even pushed away from the shaft".  He said that the only possible cause of that was trauma.  He went on:  ". . . Basically the whole of the sleeve of that bone has been stripped off and the question is how could that happen.  In order to produce a shearing effect of my sleeve on my arm, I would either twist it like that . . . or longitudinally in that sort of way . . .".  He thought that the injury was about three to four weeks old.  Further he said that "the force would have been a twisting or a pulling type of force on the bone and it would have been substantially more than you would expect to see normally in children of that age.".

[11]  Further, with respect to Hamish, the doctor noted that "one of the vertebral bodies has been flattened slightly and squared off, indicating that there is a crush fracture of the third vertebra in the lumbar region."  He went on to say that "a most likely cause would be picking the baby up and bobbing it down on its bottom so that the spine is crushed along its length".  He further gave evidence that the spine "usually resists quite substantial forces".

[12]  Finally Dr Lamont gave evidence with respect to x-rays of Dylan taken on 2 January 2002, 7 March 2002, 13 March 2002 and 22 March 2002.  The chest x-ray taken on 7 March "showed a fracture.  The skeletal survey shows a fracture of one of the ribs."  It was to the left seventh rib.  Referring to the x-ray taken on 13 March the doctor said it was "quite a mature fracture.  It had good callous formation around it.  It had been there for some weeks."  His evidence was that the cause was "likely to be a squeeze to the ribs".

[13]  Further with respect to Dylan's spine the x-ray showed "a similar flattened vertebra to his brother Hamish with a fracture of the fourth lumbar vertebra rather than the third."  He said he couldn't date that injury.

[14]  The doctor then referred to the left arm of Dylan.  The x-ray indicated "a very similar periosteal reaction as the one on Hamish along the left arm - along the left humerus.  That was about three to four weeks of age.  Again, quite mature."  Under cross-examination the doctor agreed with the proposition that the injury could perhaps be described as "something like a Chinese burn".

[15]  Finally the doctor referred to x-rays of Dylan's legs.  There his evidence was that "both the tibiae, that's the shin bones, showed fractures at the lower ends of the tibiae, that's on both sides.  The fractures were seen right at the margin, the growing edge, of the shaft of the bone."  The doctor's evidence was that "you need much more substantial force than simply picking up a baby by his feet in that way" to cause that sort of injury.  He went on to say that "the force has been applied to the length of the lower leg, to the length of the shin bone, the calf of the leg, as it were."

[16]  With respect to Dylan he said that "these injuries have all occurred very close to each other, whether it occurred at exactly the same time is hard to say, but they're likely to have been caused within a very short period of each other."

[17]  Dr Lamont's evidence was that the injuries to both Hamish and Dylan would have caused substantial pain when inflicted.

[18]  The undisputed evidence was that the only people in the house with the triplets for quite a number of hours prior to Adam's death were the appellant and R.  As already noted R was born on 1 July 1994 making her seven and a-half years of age at the time of Adam's death.  Dr Jones, a specialist in paediatrics, gave evidence which included a report of an examination of R on 12 June 2002.  His evidence was that R's weight was 42.8 kilograms which was "considerably in excess of the average weight of a child of her age".  Her height was 132.5 centimetres, which placed her "in the top 25 per cent of children of her age."

[19]  An interview between Senior Constable Anthony Radford and R was video taped on 16 February 2002.  That was admitted into evidence.  The video shows that R was quite chatty and answered questions relevantly and spontaneously.  She said she helped her mother with the triplets by amongst other things changing nappies, bathing them and feeding them.  She referred to the fact that the triplets cried at night so that she "couldn't sleep".  She described Hamish and Dylan as "screamers" but said that Adam "didn’t cry that much".  She referred to the fact that on the morning Adam died she was in her room making her bed and her mother was in the shower.  During that period she noted Adam was crying and "was making a funny noise".  She was asked for how long did Adam make that funny noise and she responded:  "A long time, till she got out of the shower and then he stopped.  Fell asleep."  She indicated that she did not pick Adam up whilst her mother was in the shower.  She also denied ever having dropped one of the babies and said she "wouldn't be cruel to my baby brother".

[20]  One passage in the interview was the subject of dispute at the trial.  The transcript which was provided to the jury for their assistance read as follows:

"Okay, so you've had some breakfast and then Mum went and had a shower.  And what happened then?  You went in the bedroom?  Yeah.  I cleaned my room up and then I made - before I made my bed, he started making that funny noise, and so, I went out and went to go and check on him.

And what did you do when you checked on him? - Um, changed him and then he stopped and fell asleep, then I started cleaning my room up again, and Mum got out of the shower, and um like got dressed and went to go and put him in the car, and he didn’t move at all."

[21]  Defence counsel submitted to the jury that R did use the word "changed", whereas the Crown Prosecutor submitted that the word used was "shaked".  I have listened to the tape and it appeared to me that R used the word "checked".  It was, of course, for the jury to determine what word was used.  If R did say "changed" then it was the only occasion on which she admitted to changing Adam's nappy whilst her mother was in the shower on the morning in question.

[22]  Photographs admitted during the trial showed three "bouncers" on which the babies were regularly placed.  In the course of the interview in question R said that Dylan fell out of the bouncer once but did not hurt himself; "Adam fell out three times, and hurt himself on the sharp part that goes up" but then she went on to say that he didn’t hurt himself, he just fell off.  She then said that he got a bruise somewhere on his arm and he was screaming.

[23]  She also mentioned that some weeks prior to the critical day she changed the babies' clothes while her mother was asleep, but she said she didn’t change their nappies.  Her mother told her after that not to change the babies while she was asleep.

[24]  In the course of that interview she also recounted an incident when her mother and Natalie (Macphee) were handling Adam "nobody had Adam's head and so part of his - some of his body fell down and his head fell down . . . just a little bit down."  She made it clear he did not fall onto the ground on that occasion.

[25]  The police officer then referred to the fact that the doctor said that an x-ray showed that Adam might have hit his head on something to which R replied:  "Probably hit it on the chair".  When asked when that was she replied:  "When they dropped him".  She also said that he hit his head a lot of times on the cot.

[26]  The following day a female police officer, Senior Constable Procter, further interviewed R because it was thought R might be even more open with a female.  Again R was responsive and chatty.  On this occasion R was further questioned about the time when she heard Adam making a noise.  Her response was:  "I went outside and I jiggled him around and he stopped and Mum got out of the shower and my bed was made and then she went to go and put him in the car . . . "  She was asked what she meant by "jiggled him" and she responded:  "It's like wiggled him . . . and he stops."  Constable Proctor referred to the x-rays of Adam's head and asked R how he could have got the injuries.  The response was:  "Falling off the rocker . . .  because he jiggles around too much."  R then again referred to the fact that Adam fell off the rocker on three occasions and said that was "not that long before he died . . . the day before."

[27]  Again in response to specific questioning R said that she didn’t pick up Adam whilst her mother was in the shower.  Constable Proctor asked a specific question:  "Was there any time that morning that you might have tripped over the rockers or you might have picked up Adam and accidentally dropped him" and R replied:  "I might have tripped over the rocker when I was going into Mum's bedroom but I can't remember."

[28]  R's evidence for the trial was video taped pursuant to the provisions of s 21AK, s 21AM and s 21AQ of the Evidence Act 1997 (Qld), and instructions were given to the jury in accordance with s 21AW of that Act.  The video recording was made on 3 June 2004, some two and a half years after the death, and just before R's 10th birthday.  By then she had been living with her father for some time.  Though R was in a room away from the courtroom, she could see on the screen that she was being questioned by bewigged barristers.  She also took an oath on the Bible before being questioned.  On this occasion her responses were not as expansive as when she was interviewed by the police officers shortly after the day in question; most of her answers were either a "yes" or a "no".  She agreed that when she told the police officers about Adam falling off the rocker that he landed on the carpeted floor.  She also denied picking up Adam and tripping with him on the morning that Adam died.  She denied accidentally or deliberately hurting any of the babies and said that she did not ever see her mother hurt the boys.

[29]  Under cross-examination she said she was not sure that on one occasion she changed the boys' clothes whilst her mother was asleep.  In answer to a question under cross-examination:  "On the morning that Adam died, Mum didn’t do anything at all to Adam, did she?"  She responded "No".  She also again denied picking Adam up whilst her mother was in the shower and also denied changing him on that occasion.

[30]  She also denied on one occasion jabbing Hamish in the stomach (a matter to which I will refer later).  She was also asked about a conversation with Jody (Ferran), another matter to which I will refer later.  R admitted asking Jody "why Adam had died".  She also admitted asking Jody if she (R) "had made Adam die", and that Jody replied:  "No, he just went to sleep and didn’t wake up".  R denied under cross-examination that she then asked:  "What if I dropped him?"

[31]  The appellant did not give evidence before the jury, but the statements she gave to investigating police on 16 and 17 February 2002 were admitted into evidence.  Detective Sergeant Cook also gave evidence of a conversation he had with the appellant at her house on the morning of 15 February; that of course was before the post mortem examination.  On that morning the appellant relevantly told Cook the following:

"She indicated she got Adam up at 6.30 a.m. and fed him with a 100 mils (sic) of S26 formula.  She then burped him and placed him in his bouncer at about 7 a.m.  She then stated that she then put some washing on and had a shower.  She then went to put all three children in the car when she noticed Adam was pale."

[32]  The interview on 16 February was after the post mortem.  Constable Radford informed her of the post mortem findings with respect to the two fractures of the skull and asked her did she have any idea how that happened; her response was "No, I don’t."  She went on to say:  "I'm sure R said to me a couple of days ago that Adam was crying on his rocker and fell off."  She also said:  "I know he's got his arm caught out before in the cot."  A short while later when again asked about the injury to Adam's head she said:  "The only thing I can think of is that rocker, when R said he fell off the rocker."

[33]  Then she recounted her movements on the morning of 15 February.  She said:  "They all got up at 6.30.  Adam got up first at 6.30 and then I got the others up, so I fed him a little bit and then got the others one and then I fed him and the other two fell asleep and Adam didn’t.  He had his whole bottle and burped and everything just - like perfectly normal."  She said that by the time she burped Adam it was around 7 o'clock;  at that time she said R was fine and was dressed having her breakfast.  The appellant said that she then went and had a shower and after that did R's hair.  She went downstairs and opened the car to put the children in and when she went back to get them is when she noticed something was wrong with Adam.

[34]  With regard to R the appellant said that she let her feed the babies "while I'm supervising".  She went on to say that she "thinks that she's the mother".  She then referred to the fact that on one occasion when she was asleep for an hour R changed their clothes.  She said that when she found out she "absolutely flipped out" and told R not to do that "because if you dropped them it will kill them".  She said that she had seen R pick the triplets up and had often seen R with one sitting on her lap.

[35]  A little later in the interview the appellant said:  "And I'm not going to blame R but . . . I'm going to be really real, you know.  Like, she is 7."

[36]  The appellant then denied that she had ever dropped Adam either inadvertently or accidentally.  She also denied that R had ever told her she'd dropped Adam.  She added to that the response:  "No, 'cause I'd hear it.  I'd hear a baby crying from pain.  I would hear, and the house is small . . . I don’t leave the boys for long periods of time".

[37]  A little later on these passages occur:

"And that's why I'm wondering - you know, like - and I'm not going to stick up for R.  You know, like I'm her mother and I'll protect her but, I mean, if she's done something wrong I'm not going to hide it, but . . .

The reason - when she changed their clothes and I was talking to my . . . about it and I said I wouldn't forgive if something happened, and then now something has actually happened and I - I can - I just rather hope she hasn’t done anything and she's not aware of it."

[38]  Subsequently on 17 February 2002 the appellant gave a witness statement to the police which she signed.  The following extracts from that statement are relevant for present purposes:

"My daughter R, since the boys have come home, has been very involved with them and calls herself "sissy", because she is the big sister.  R speaks to the boys beautifully and loves helping them although I do think that she thinks she is more the mother than the big sister most times . . .

R is very good at helping me although there were times when she was really trying to portray the mother . . .

There was another time, about two weeks ago, when I told R that I was going to lie down and have a bit of a sleep while the three boys were asleep in their cot.  Before I went to sleep, I told R she was not to touch the boys at all and that if she heard them wake up or crying, that she could go in and check on them and that she was to come and wake me up straight away . . .

I remember when I woke up, I walked out of my room and then went into the boys' room to check on them.  When I walked into their room, I found all the boys to be asleep but I was shocked to see that all the boys were dressed in different clothes to what I had put them to bed in . . .

Since the boys have come home, I have told R so many times that she is not to ever to pick up the boys without being supervised . . .

I really went off at R and explained to her all of the things that could've gone wrong, like if she had dropped one of them and things like that, and I started to cry because of the things that I know could've happened and that upset me the most . . .

On Friday the 15th of February 2002 I woke up… just a little bit past 6 a.m. after hearing that one of the boys was awake . . . I changed Adam's nappy and put him into some clothes for the day and then put him on his bouncer in front of the television in the lounge room.  I have then woken up the other two boys, dressed them and then put them in their bouncers as well.  Once the boys were all in their bouncers, I've gone and got their bottles and started to prop feed . . . When R came out she was dressed for school and I remember telling her to go back into her room and to put her shoes on for school.  R has gone and put her shoes on and then come out and had . . . breakfast which I arranged for her.

I remember Dylan and Hamish weren't feeding properly, in that they only had a little bit of a feed and then fell asleep again.  I let them both sleep so because it was just Adam that was awake, I picked him up and hand fed him . . . I remember finishing feeding Adam and looking up at the clock and seeing that it was 7.30 a.m. . . . Whilst I was feeding the babies R was getting herself ready for school . . . After I finished feeding Adam I put him back into the rocker next to the other two boys and went and got myself some toast for breakfast . . . After I finished my toast I told R that I was going to have a shower . . . I've then told R to go into her room and to make her bed while I had a shower.  R went into her room and I watched her start making her bed then walked off and had a shower.  I only would've been in the shower for about five to ten minutes . . . Once I was finished getting dressed, I called R into the bathroom so I could do her hair for school . . . When I was doing R's hair she had said to me that Adam had made a funny sound.  I can't remember her exact words but I think she said something about him making a crying sound as well."

[39]  It was after that that she noticed Adam was pale and she could not wake him up.  Then she panicked and sought assistance from neighbours.

[40]  During the period of a little over three weeks that the triplets were at home with the appellant she had assistance from numerous friends, relatives and others.  A significant number of those people were called to give evidence.  They were unanimous in saying that the appellant was a good mother and they never saw any injuries inflicted on the children.  All that evidence was obviously honestly given, but it must be treated with some reserve because of the injuries in fact suffered by each of the triplets.

[41]  The evidence from those witnesses generally established that none had witnessed any rough handling of the triplets (save as is dealt with hereafter) and in particular that over the day or so prior to 15 February all the triplets, including Adam, appeared healthy.  Also that evidence established that the appellant had developed an infection in the caesarean wound and was on pain killers and an antibiotic; she had not been feeling all that well and her sleep had been impaired by the triplets.

[42]  It is only necessary to refer to some of the evidence from those other witnesses in order to deal with the issues raised by the appeal.

[43]  Dian Macphee was a niece of the appellant.  Under cross-examination she gave the following evidence:

"You noticed that R was always herself wanting to hold the boys? - Yes, she did.

And she would sometimes even try to pull them out of your arms? - Yes, she did.  She would quite often try and take the boys off you.

And it is correct to say that it appeared to you that the boys were almost like dolls to her? - Yes.  She didn’t quite understand how to sort of look after them."

[44]  Then again under cross-examination she was asked about the reaction of people after she arrived at the house on 15 February.  She said that the appellant was "distressed beyond words".  Then the following exchange occurred:

"You told the police in your statement that you noticed that R, on the other hand, didn’t appear to be affected by anything at all? - Not at all.  R was very strange.  She was quite happy wanting to play.

. . .

And particularly, you observed that she didn’t appear to be affected by her mother being upset? - Not at all."

[45]  Finally it should be recorded that in re-examination this witness conceded that she never saw R "actually pick up and carry one of the boys".

[46]  Natalie Macphee, a cousin of the appellant, also gave evidence.  Obviously related to a passage in R's interview with the police which I've quoted above, defence counsel asked her in cross-examination:  "Was there ever an occasion when you dropped Adam at all?", to which she replied:  "No, I never dropped Adam."  That was followed by the question:  "Was there an occasion when you might have been passing Adam to Louise and Louise was passing Adam to you and you both might have dropped him?, to which she replied:  "No, he was never dropped."

[47]  Then in re-examination the following exchange occurred:

"Ms Macphee, you were asked if there was ever an occasion when you had been involved in passing Adam over to Louise Macphee and had dropped him? - Yes.

You indicated there was not.  Was there ever to your recollection an occasion, perhaps a few days prior to Adam's death, where you were out the back and outside the house where you were holding Adam's bottom, went to pass him over, nobody had Adam's head and some of his body - his head fell down a little bit, but did not hit the ground? - Yes, his head just flipped back, but he did not hit the ground and Louise did not have hold of him as well."

[48]  Nicole Ramsey, another cousin of the appellant, gave evidence that on one occasion she "saw R, she jabbed Hamish in the stomach".  Her evidence indicated that it was with two hands with the fingers extended.  She said that Hamish screamed but was not marked at all.  The witness said to R:  "You can't do that".  According to the witness when she said that R "sort of looked at me.  She didn’t really say anything."  She then went on to say, with respect to R:  "For a child, generally she would be rougher with them when she picked them up, but that's what children do."  Under cross-examination she said that the poking incident struck her as being "really nasty".

[49]  Jody Ferran, a long time friend of the appellant, gave evidence of a conversation she had with R on 16 February 2002.  It should be noted that the evidence of Ferran does not establish whether or not the conversation took place before or after R was interviewed by Detective Radford on 16 February; that interview commenced at 3.20 p.m.  The relevant evidence of Ferran is as follows:

"Now, on the 16th of February 2002, you had a conversation with R, didn’t you? - Yes, I did.

All right.  You remember when you were at the house when you had that conversation? - Yes, I was sitting on the back patio by myself having a cigarette outside when R approached me.

All right.  And R asked you why had Adam died, didn’t she? - That's correct.

And you told her that some babies that were born little go to the angels? - That's right.

She then asked you if she had made Adam die? - That's correct.

And you told her, no, he just went to sleep and didn’t wake up? - That's correct.

She then said to you, "What if I dropped him?" - Yes. 

You then asked her, "Well, where was he dropped?"; is that correct? - That's right.

And she said, "Between the seats." - That's right."

[50]  According to the witness Ferran when she then asked R when she did that she "became very restless, started fidgeting and I moved on to the next question".  There was then a conversation between the witness Ferran and R about the gurgling noise which R had heard on the morning Adam died.  According to Ferran:  "I couldn't push her any further to get any more information.  She just became very restless and went inside."

[51]  Jillian Trudgian, a friend of the appellant, gave evidence under cross-examination that she had "observed R treating the boys roughly".  Her evidence indicated that on one occasion she saw R pick Dylan up by the legs so that his head was almost pivoting, so that she could smell if his nappy was soiled.  She agreed the child was not hurt by that incident.

[52]  The final witness to whom reference need be made is Elizabeth Peters, a child health nurse who visited the appellant at her home.  On her visit on 13 February the witness observed that the appellant "was really tired that day and the babies had been crying a lot, according to her, through the night and not sleeping."  In consequence Peters determined to make a referral to the Riverton Centre where the appellant and the babies would be inpatients.  That Centre is run by Queensland Health and it is a place where mothers with babies are given advice, help and hands on support.

[53]  At an early stage in the trial an issue arose as to the admissibility of evidence relating to the injuries sustained by Hamish and Dylan.  The prosecution sought to lead that evidence principally to negative accident and also to demonstrate the relationship between the accused and her babies.  Defence counsel opposed the admission of that evidence.  After referring to a number of authorities, in particular Pfennig v The Queen (1995) 182 CLR 461, Hoch v The Queen (1988) 165 CLR 291 and The Queen v O'Keefe [2000] 1 Qd R 564, the learned trial judge concluded that the evidence in question was "admissible to negative any conclusion that in some unknown fashion he met his death by accident".  Her reasoning went on:

"It is highly unlikely that all those injuries to the other babies could have been inflicted by R.  The evidence reasonably supports the inference that the accused is guilty of the unlawful killing of Adam and is, as a whole, reasonably capable of excluding all innocent hypotheses.  It is highly prejudicial evidence - that is axiomatic of propensity evidence - but its probative value is also very high."

[54]  As already noted, the appellant did not give evidence, and that meant her counsel had the right of last address to the jury.  In that address counsel put to the jury that they would be satisfied that in the interview with police officers on 16 February 2002 the appellant was "honest and truthful".  The following extracts from that address indicate what to my mind was a significant part of the defence case as put to the jury:

"Is she [the appellant] at any time during the interview of the 16th of February 2002 seen to cast blame on anyone let alone R?

. . . [she] must have known or realised at least the police thought R might have caused this injury . . .

See, the Crown case is with only two people in the house, it either has to be my client or R, and on the evidence that must be true and there has never been any dispute by us.

Ladies and gentlemen, the Crown case really comes to this - I've made a note of it:  highly unlikely that a seven and a-half year old would cause the injuries to these infants.  Ladies and gentlemen, you need to take great care when one considers a proposition like that.

. . .

Totally inconceivable were the words the Crown Prosecutor said.  Totally inconceivable that the primary care giver would be unaware that the injuries were being caused to these babies if they were being caused by R and referred to in the passage in my client's interview of 16th of February 2002 that she - "I would hear a baby crying."  Now that's a curious answer, isn't it.  If she had known that she'd inflicted this pain and injuries on these children, would she be making a statement like that?  Would she be trying to cast the blame?

The whole tenor, the whole impression you will get from my client's interview on the 16th of February 2002 and the statement that she gave on the 17th of February 2002 is one of complete bemusement, just didn’t know how it happened . . .

What do you we know about R?  R was large for her age.  The evidence of Dr Jones was that she weighed about 42 kilos when the average weight for a seven and a-half year old or seven year old was 20 to 25 kilos.  Her height was in the top 25 percentile of that age group.  Is there evidence that might suggest that R showed some malice or may even have shown some aggression towards any of the boys?  Evidence of Nicole Ramsey - Nicole Macphee?  The Crown really just pushed this aside, "Oh, no injury was caused."  It's the fact of what R did that is significant.

The baby is asleep.  Hamish in his rocker.  Nicole just happened to be coming out after helping Louise bathe the other two boys and sees - you remember the demonstration with the hands - jab Hamish in the torso.  As Nicole Ramsey said to you, it was really nasty.  Does that give you some indication, ladies and gentlemen, that R, for no explanation - it can only be out of malice or sport - was prepared to hurt one of the babies?  It's critical evidence, ladies and gentlemen.

. . .

It's totally inconceivable that the primary caregiver would be unaware that these injuries would be caused.  Remember the evidence of Dr Lamont.  You would not expect there to be - there may not be any bruising or external signs.

. . .

Is the Crown seriously suggesting to you and asking you to consider and decide that my client, a former child care worker, who, on all the evidence, loved these boys, has deliberately hurt them by giving them a Chinese burn?  It doesn't make sense, ladies and gentlemen.  The malicious act of a Chinese burn, is it more probable it might have been caused by a school aged child who had, at least on one previous occasion, acted maliciously in assaulting Hamish in his rocker.

. . .

Dr Ashby's evidence is that upon receiving the skull fractures and the subsequent brain injury, he would've become unconscious rapidly.  So there can be no question, ladies and gentlemen, that this head injury has been inflicted and then Adam is fed.  Adam was obviously fed before the infliction of the head injury.

. . .

Ladies and gentlemen, my learned friend spent a lot of time on R in suggesting to you that you would find R as a truthful, consistent witness.  He didn’t refer, ladies and gentlemen, to the two distinct inconsistencies in her evidence.  You have the transcript with you, ladies and gentlemen, and I urge you to look at it.  The two dramatic inconsistencies are the conflict between her and her Auntie Nicole and the conflict between her and Jody Ferran.  Now, ladies and gentlemen, I'm not going to pick on or criticise a child, but my client is facing a charge of manslaughter.

. . .

For all sorts of reasons, for panic, for fear of getting into trouble, the child may not admit to causing harm whether it be deliberate or accidental to a baby.  But the evidence here, ladies and gentlemen, is significant.  You would have no doubt, ladies and gentlemen, in accepting the evidence of Jody Ferran about what was said, the experienced nurse, you might think, had come across very genuine and honest.  And that passage I have just read goes against the Crown submission that R has been fully consistent and truthful about her denials in this case.

. . .

And, look, it's a simple fact, ladies and gentlemen, that the law of Queensland is simple, a child under the age of ten years is not criminally responsible for any actions that they do because they're just too young.  And Detective Proctor was simply trying to reassure R that she wasn’t going to get into trouble.

. . .

I'm not here to cast blame on R.  It may well have been that something happened that was accidental.  In respect of the crushed lumbar fractures to Dylan and Hamish, a young child, not knowing any better, might have used more force, plonked them down on the change table, plonked them down on a coffee table.  Mum can't be everywhere, and there is the incident, as I've mentioned, where my client was asleep, when the babies were asleep, where R obviously picked the boys up out of their cots and changed them without Mum's knowledge  . . .

Isn't it a rational explanation that R did something to Adam that morning while Mum was in the shower?

. . . While on the subject of the age of R, of course she could have inflicted those injuries . . . "

[55]  Given those passages, there is no doubt that at trial the defence mounted a positive case that the injuries to the three babies, and in particular the injuries which caused Adam's death, were inflicted by R.  At the end of counsel's addresses the jury could have had no doubt but that one of the critical matters for their consideration was whether or not the injuries which caused Adam's death were inflicted by R.

[56]  It was against the background of the evidence I have referred to above, and the address to the jury by defence counsel, that the learned trial judge summed up to the jury.

[57]  The jury was directed appropriately as to the drawing of inferences from established facts (including the difference between drawing inferences and speculating) and as to the approach of the jury where the prosecution case was essentially circumstantial.  The jury was clearly told on a number of occasions that if there was "any reasonable possibility consistent with innocence, it is your duty to find the accused not guilty".

[58]  Her Honour dealt with the evidence of R, including her out of court statements on 16 and 17 February 2002.  The observation was made:  "You may conclude that she was more likely to be able to recall events accurately then, rather than two years and four months later.  It is a matter for you to decide if her answers were reliable and if they were honestly given."

[59]  After reminding the jury that the "prosecution must prove that there was no reasonable explanation for Adam's death which is consistent with innocence on the part of Louise Macphee" the learned trial judge went on to direct the jury as to the use they could make of the evidence about injuries inflicted on Dylan and Hamish.  Relevantly the jury were directed:

"But what use can you make of that evidence if you accept it in respect of the charge before the court; that is, of unlawfully killing Adam?  In the first place, evidence of the injuries to Dylan and Hamish may be used to rebut any suggestion that Adam's injuries may have been caused accidentally.  You will recall that R was asked by Detective Radford and Detective Proctor if she tripped while carrying Adam or if her mother tripped that morning or if Adam had been accidentally dropped.  That's what's meant by accident in this context.  It's for you to decide if the objective probability of the injuries sustained by all three babies in such a limited timeframe, as the evidence suggests, occurring by accident would defy common sense.  The nature of the injuries and the force necessary to produce them will be a further useful enquiry for you on this matter.

Now, if you are going to use this evidence to implicate Louise Macphee, you must first be satisfied that she was responsible for those injuries inflicted on Dylan and Hamish.  The prosecution evidence suggests that either Louise Macphee was responsible or R caused those injuries.  Dr Lamont gave detailed evidence as to the possible mechanics of the injuries he observed; that is, how they were inflicted and that evidence may assist you."

[60]  The learned trial judge then dealt with the injuries sustained by Hamish.  In dealing with the injury to the arm she noted that the evidence as to its cause was "trauma due to twisting either around the arm or up and down the arm".  In dealing with the crush fracture to a vertebra of the lumbar spine she noted the evidence was that it was "caused by force on the ends of the bone crushing it down."  She then dealt with the injuries to Dylan.  She noted that the evidence was that the rib injury was "caused by a squeezing mechanism".  The cause of the injuries to the arm and the lumbar vertebra were due to a similar mechanism as caused those injuries in Hamish.  In dealing with the fractures to the shin bones on Dylan's legs the learned trial judge noted that the evidence was that "more substantial force than picking up a baby by its feet" would be required.

[61]  That then led the learned trial judge to say:

"So to conclude on the body of evidence about the injuries of Hamish and Dylan,  you may use it to negative accident as an explanation for Adam's death if you conclude that the same person was responsible for those injuries to Dylan and Hamish and also to Adam."

[62]  The learned trial judge then quoted extensively from the evidence of Dr Ashby as to the injuries sustained by Adam which caused his death.  It is not necessary to repeat that, other than to note that the passages in question referred to the skull fractures requiring "actual torsional twisting, shearing movement of the brain and the membranes within the skull" requiring something "like a motor car accident or something of that sort".  There was then reference to the evidence from Dr Ashby that dropping Adam from the arms or from shoulder height was not likely to occasion those injuries.

[63]  Then comes the following passage which was referred to in the course of argument on appeal:

"Well, this body of evidence, ladies and gentlemen, may satisfy you that Adam's death did not occur accidentally.  If it does not, then you would not be satisfied that his death occurred by an unlawful act and you must acquit.  If you are satisfied beyond reasonable doubt that Adam's was not an accidental death, you need to consider if Louise Macphee was responsible for that death.  As I have mentioned, you may make use of the injuries to Dylan and Hamish to assist in deciding if she was responsible for Adam's injuries, but only if you are satisfied that she inflicted those injuries on the other two boys.  Otherwise you must completely disregard that evidence for the purposes of identification."

[64]  There was then reference to the body of evidence which indicated that the appellant "was organised, she was loving, she welcomed the help of friends and family."  The observation was then made that to "injure the babies in the way seen on x-ray would be quite out of character as that character was observed by, particularly, the witnesses who knew Louise Macphee well."

[65]  The learned trial judge then referred to the defence contention that R was responsible for the injuries by saying to the jury:

"Well, what of R?  She was seven and a-half years old.  She was, we were told, a tall girl for her age.  She weighed above the average.  She helped with the babies.  Louise Macphee imposed rules about her handling of them when alone.  On one occasion, for which we have evidence, R took them out of their cots and changed their clothes.  Mrs Trudgian observed her once handling Dylan roughly when holding him by the legs to see if his nappy was soiled.  Nicole Ramsey saw R jab the fingers of both hands into Hamish's stomach as he slept in his rocker and that caused him to scream.  This occurred about two weeks before Adam died.  She noted, and I quote from her evidence;

"R was rougher with them, the babies, when she picked them up, but that's what children do."

. . .

You might consider the amount of force which the doctor said was necessary to bring about the injuries on Dylan and Hamish which I have discussed.  In your experience, was it beyond the strength and capacity of a girl like R?  If you cannot be satisfied that Louise Macphee was responsible for the injuries to Dylan and Hamish, as I said, you must ignore that evidence for the purpose of deciding if she inflicted injuries on Adam.  But you may, as I've said, use that evidence to eliminate death by accident.

The evidence of Dr Ashby that the death followed closely on the trauma and the fact that Adam had undigested milk in his stomach would tend to place the time when the injuries were sustained in that narrow period when Louise Macphee and R were breakfasting and getting ready to leave for school."

[66]  The jury were asked to consider issues such as "opportunity and truthfulness" and "the degree of force necessary to inflict the injuries that were seen on Adam".

[67]  The learned trial judge then correctly told the jury that "a verdict of not guilty does not, I would emphasise, mean a finding that R was responsible for this and for the injuries to Hamish and Dylan.  It simply means that you have not been satisfied beyond a reasonable doubt of Louise Macphee's guilt."

[68]  The learned trial judge then summarised the prosecution case.  In the course of so doing she noted that the prosecutor reminded the jury "that you don’t need to be satisfied of every single fact beyond reasonable doubt, but the result must be beyond reasonable doubt."  The learned trial judge reminded the jury that the prosecution had "said that you would accept R's denials that she had inflicted injury on Adam and she'd been tested under cross-examination."

[69]  In the course of summarising the defence case the learned trial judge reminded the jury that defence counsel had submitted there was "no evidence that [the accused] had ever hurt her babies".  She also reminded the jury that counsel for the defence in his address to the jury had referred to the fact that they could infer malice on the part of R from the evidence of Nicole Ramsey and Jill Trudgian.

[70]  Those extracts from the summing up are sufficient for present purposes.

[71]  I now turn to the issues raised on the hearing of the appeal.  It is more logical to deal first with the contention by the appellant that the evidence of injuries sustained by Hamish and Dylan ought not to have been admitted in the trial.

[72]  On the material available to the prosecution, and this was not disputed, only the appellant and R were present when Adam must have sustained the injuries which resulted in his death.  When specifically asked by investigating police as to whether or not she had any idea as to how Adam sustained his fatal injuries, the appellant replied "No, I don’t."  It followed that if the prosecution was to prove beyond reasonable doubt that the appellant caused those injuries the prosecution, as part of its case, had to negative the possibility that the injuries were accidentally caused; that would have included, for example, that the injuries were caused accidentally by R.  Unless the jury could negative beyond reasonable doubt the proposition that the injuries were accidentally caused a verdict of not guilty would have to be returned.  If authority is needed for that proposition reference need only be made to Griffiths v The Queen (1994) 125 ALR 545; 69 ALJR 77 and R v A T Smith [1997] QCA 350.  The latter case has some similarities to the present, particularly because of the fact that the fatal injuries could only have been occasioned either by the accused or another person who was present at about the material time.  Referring to Griffiths and R v Falconer (1990) 171 CLR 30, Macrossan CJ in A T Smith said:  "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 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 had 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."  As Mr Copley for the respondent on the hearing of this appeal contended, that is consistent with what is said in some of the leading cases on the topic, namely Makin v Attorney-General New South Wales (1894) AC 57 and G J Smith (1915) 11 Cr App R 229 (the "brides in the bath" case.).  Such a conclusion is also supported by the reasoning of the Court of Criminal Appeal in R v Mills [1986] 1 Qd R 77.  There is no doubt, in my view, that the evidence was admissible as providing a basis for negativing accident.

[73]  The facts of Mills were in many ways similar to those here; the injuries causing the death of the infant could only have been occasioned by the acts of one of two people.  Evidence of injuries to the child sustained at an earlier point of time to the injuries which proved fatal was admitted.  In that case the trial judge instructed the jury that, if they were satisfied that on the earlier occasion the accused had assaulted the child with the degree of force required to cause an unusual type of fracture to the child's arm, the jury might conclude it was "more likely or less likely that he would have acted by using on the day in question a significant degree of violence to the body of the same child".  McPherson J, with whom Andrews SPJ agreed, said at 84:

"The question is whether this was a proper direction to the jury about the use to which that evidence might be put, and whether His Honour was correct in ruling, as earlier he had done, that the evidence of that and other injuries was admissible as being relevant to the relationship between the accused and the child, and as part of the chain of circumstances capable of showing the attitude of the accused to the child on the day of the death."

[74]  Ultimately his Honour concluded that the evidence was admissible and could be used in that way.  In A T Smith Davies JA speaking of the earlier injuries said:  "The jury were entitled to infer from this evidence, the probative value of which is high, that it was the appellant who 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."  Also in that case Macrossan CJ said:  "In the end, although the Judge explained to the jury that they might use the evidence of 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."

[75]  In my view, in accordance with the reasoning in Pfennig v The Queen (1995) 182 CLR 461, the evidence as to the other injuries sustained by each of the triplets had a particular probative value in the circumstances of this case in that as a matter of common sense and experience it raised the objective improbability of the fatal injuries having been occasioned by some person other than the person who inflicted the other injuries.

[76]  It therefore follows that the evidence in question was not only admissible at the trial to assist in negativing accident but it could also be used by the jury to link the perpetrator of the other assaults with the person who inflicted or occasioned the fatal injuries.

[77]  The next question is whether the learned trial judge erred in not directing the jury that they had to be satisfied beyond reasonable doubt that it was the appellant who inflicted the other injuries on each of the triplets before they could have recourse to that evidence as part of the circumstantial case against her.  That contention raises for consideration the reasoning of the High Court in Shepherd v The Queen (1990) 170 CLR 573.  The submission by counsel for the appellant is that the occasioning of the other injuries to each of the triplets and the identification of the person responsible for causing those injuries was an "indispensable intermediate step in the reasoning process towards an inference of guilt" which necessitated the jury being told that they had to be satisfied of such fact beyond reasonable doubt before they could use it as part of their reasoning.

[78]  In my view the finding as to who occasioned those other injuries was not an "indispensable" step in finding the appellant guilty as charged.  The jury, having seen and heard evidence from R, could have concluded that she did not inflict the serious head injury on Adam whilst her mother was in the shower on 15 February, and in consequence their task was relatively straightforward; the only person present who could have inflicted the injury was the appellant.  The jury could well have been assisted in arriving at that conclusion by the consideration that it was unlikely that R could have inflicted the substantial force necessary, involving as it must have torsional twisting and shearing of the brain of a magnitude similar to that found in motor vehicle accidents, to cause the fractures and brain damage which precipitated almost instant death.  The other injuries to each of the triplets and the identification of the person responsible were not in consequence essential links in the chain of reasoning leading to the conclusion that the appellant was guilty of manslaughter.

[79]  But if the jury was satisfied that the appellant was responsible for the other injuries sustained by the infants then they could well have regarded that as facilitating the drawing of the inference beyond reasonable doubt that it was the appellant who inflicted the fatal injuries on Adam.  Such a finding would merely be another factor to be taken into account in determining the ultimate question.

[80]  In the circumstances I am of the view that the summing up was in accordance with the reasoning of the High Court in Shepherd and that this ground of appeal has not been made out.

[81]  Against that background I am of the view that there was no further error such would enliven amended ground four in the amended Notice of Appeal.

[82]  That leaves for consideration the first of the amended grounds of appeal; could the jury have reasonably excluded the possibility that the death was caused by conduct on the part of R.

[83]  I have set out in greater length than usual a summary of the trial to demonstrate that the issue whether R was responsible was the critical question for the jury to determine.  The defence case was essentially: the appellant did not cause the death, R did, and because of her age she was not criminally responsible.  The defence case advanced at trial went much further than merely putting the prosecution to proof beyond reasonable doubt that the appellant committed the offence.  If the jury, having seen and heard R giving evidence (both the interviews with the police and the pre-trial evidence) accepted that R did not apply the significant force to Adam's head and therefore rejected the defence proposition that R caused Adam's death, there was no obstacle to the jury returning the verdict which they did.  It will be remembered that when Constable Radford queried R about whether she had hurt Adam she replied:  "I wouldn't be cruel to my baby brother," and she was adamant when interviewed by both police officers she did not pick Adam up while her mother was in the shower.  Whilst it is true the jury did not actually see R in the witness box, they had a good opportunity of evaluating her during the lengthy tape-recorded interviews with the police on 16 and 17 February.  That gave the jury the opportunity of determining the weight which should be attached to her statements, and also provided an opportunity of assessing her capability of inflicting the fatal injuries.

[84]  The real question is whether or not the jury was entitled to conclude that R did not cause Adam's death.

[85]  Given the massive head injuries which caused Adam's death there can be no doubt on the medical evidence that those injuries were not occasioned by Adam being dropped by R; a much more sustained assault was required.    Further, the jury could reasonably have concluded that all of the injuries sustained by each of the triplets were caused by the same person.  In order for the appellant to succeed in those circumstances on the argument addressed to this court it has to be demonstrated that it was unreasonable for the jury to exclude the possibility that R was responsible for all of those injuries.  Was it reasonably possibe for R to have occasioned all of those injuries to the triplets without the appellant, the primary care giver, the person regularly supervising both the triplets and R, not being aware of any of those injuries being sustained?  Given the medical evidence those injuries were sustained by the triplets on somewhere between three and eight occasions, yet on the evidence the appellant was not aware of any such incident.

[86]  The jury may well have been satisfied that R jabbed Hamish in the stomach on one occasion (evidence of Nicole Ramsay) and roughly picked up Dylan by the legs when changing his nappy (evidence of Jillian Trudgian) but that is hardly probative evidence when it comes to considering who caused the massive head injuries to Adam.  That could well be regarded as not atypical conduct of a seven and a half year old girl, but a reasonable jury would well conclude that it was not evidence suggesting that R was capable of inflicting or occasioning two separate blows to the head within a short space of time which involved applying a torsional, twisting, shearing movement to the brain with force comparable to that found in a motor vehicle accident.  Even if one added into the equation the possibility that R caused the arm injuries to Hamish and Dylan by giving each of them a Chinese burn (intentionally or accidentally) that would not make it unreasonable for a jury to conclude that there was no reasonable possibility that Adam's death was caused by massive blows inflicted or occasioned by R.  Despite defence counsel inviting the jury to infer malice on the part of R it is not surprising that the jury obviously rejected that contention.

[87]  Much was made at the trial about the conversation between R and Jody Ferran.  Whether that conversation took place before or after R was interviewed by Detective Radford on 16 February, it is clear that over the 24 hours or so after Adam's death there had been much speculation by the appellant and those of her friends who visited her as to the possibility of R having dropped Adam and thereby causing his death.  It would be surprising in the circumstances if such conversations were not overheard by R.  Particularly given the way the defence case unfolded at trial the real probability is that from 15 or 16 February R was aware that people were questioning whether she might have dropped Adam and thereby caused his death.  The conversation could be no more than a young girl querying one of the adults about what she had overheard.  The exchange between R and Jody Ferran was a matter for the jury to take into consideration but, in my view, it was not of such significance as necessarily to have made it impossible for a reasonable jury to reject the proposition that Adam's head injuries were occasioned by R.

[88]  As already noted the medical evidence suggests that the head injuries were sustained by Adam after he had been fed.  In my view, against the background of the evidence and conduct of the defence at trial, it was open to the jury to exclude as a reasonable possibility the proposition that R viciously attacked Adam whilst her mother was in the shower with such force as to cause two skull fractures and a torsional, twisting shearing movement to the brain, thereby precipitating death.

[89]  As I have already said, the way the defence was conducted at trial the critical issue for the jury was whether or not they could exclude the reasonable possibility that death was caused by R and it cannot be said that that was a matter which the jury did not take into account in the course of deliberations.  Given the nature of the injuries sustained by Adam, and the significant injuries sustained by Hamish and Dylan, the jury was entitled to accept the evidence of R that she did not cause or occasion the injuries which resulted in Adam's death, and in consequence the way was open for the jury to be satisfied beyond reasonable doubt that it was the appellant who was so responsible.

[90]  The submissions addressed to this court on appeal by counsel for the appellant have not caused me to conclude that there is a significant possibility that an innocent person has been convicted.

[91]  The appeal should be dismissed.

[92]  FRYBERG J: The circumstances of this case are recounted in the reasons for judgment of my colleagues.  I need not repeat them; but that does not mean they are unimportant.  They are important, because the Crown case was based on circumstantial evidence. For that reason it was necessary for the jury to exclude beyond reasonable doubt any reasonable hypothesis suggested by the evidence which was consistent with innocence.[1]  Sitting in this Division, I must do likewise.[2]

[93]  The circumstances include the evidence of injuries sustained by Hamish and Dylan.  For the reasons given by my colleagues that evidence was admissible and could be used for the purposes which they describe. Ground two of the grounds of appeal should be rejected.[3]  Taking that evidence into account, it cannot in my judgment be doubted that both those injuries and the ones which killed Adam were inflicted deliberately and by the one person.  The jury was given appropriate directions on accident.  Plainly they too were satisfied to the requisite standard that Adam’s injuries were inflicted deliberately.

[94]  By ground four of the notice of appeal the appellant challenged the directions given by the trial judge as to the manner in which the evidence of injuries to the other two babies could be used.  That challenge related to the possible use of that evidence for purposes other than to rebut accident.  Williams JA has set out the relevant direction.[4]  The appellant did not submit that the evidence could not be used to assist in determining whether she was responsible for Adam's death.  Holmes J shows in her reasons for judgment how it can be so used.[5]  The submission was that the jury should have been told it could be so used only if there was no reasonable view of it which was consistent with the appellant’s innocence.  Reliance was placed on Pfennig v The Queen[6].  In my judgment that submission is not supported by that case.  A trial judge in a circumstantial case must tell the jury of their duty to acquit unless there is no reasonable view of the evidence consistent with innocence.  That duty may require the identification by the judge of hypotheses open on the evidence under which an accused might not be guilty.  It does not require the judge to isolate a particular segment of the evidence and direct the jury that the segment could only be used for an otherwise legitimate purpose if they were first satisfied that there was no reasonable view of it, in isolation, which was consistent with innocence.  I see no ground for criticising the trial judge's direction.  Ground four should be rejected.

[95]  Do the circumstances lead to the conclusion that the appellant is guilty?  For the appellant it was submitted that there is an hypothesis consistent with innocence which is not excluded beyond reasonable doubt.  That hypothesis is that the appellant’s seven-year-old daughter R killed Adam.  I agree that the state of the evidence is such that this hypothesis must be considered and excluded if the jury’s verdict is to be sustained.  What makes the case unusual is that a conclusion excluding that hypothesis would also be a very powerful finding suggestive of the appellant’s guilt.  The conclusion that the killer must have been either the appellant or her daughter is irresistible.

[96]  I note the view of Williams JA that the real question is whether the jury was entitled to conclude that R did not cause the death.  With respect, I do not agree.  In my judgment, the question now is whether we so conclude.  That is because we are in as good a position as the jury to make the decision, despite the fact that it involves R’s credibility.  All of her evidence is available to us on videotape.  We must form our own judgments.

[97]  Accident has in my judgment been excluded beyond reasonable doubt.  I therefore ask myself, am I satisfied beyond reasonable doubt that R did not deliberately do the acts which caused death.

[98]  The precise mechanism by which the injuries were inflicted is unknown.  There were two blows to the head caused by impact with a flat object; but whether the head or the object was in motion it was impossible to say.  The injuries they caused required a severe degree of force.  The complex fracture was most unlikely to have been sustained by being dropped to the floor even from the shoulder of an adult.  Unconsciousness would have followed almost immediately and death fairly quickly, within an hour.  There was no evidence to suggest that a seven-year-old child would lack the strength necessary to inflict the injuries deliberately.

[99]  I find the medical evidence of little direct assistance in identifying which person inflicted the injuries.  As a matter of general impression I suppose that injuries of this type are inflicted by a parent far more commonly than by a sibling, particularly one as young as seven; but that is an uncertain basis upon which to proceed.  R had the strength to lift a baby; she was large for her age.  I proceed on the basis that she had the strength to inflict Adam's injuries.

[100]  What could have motivated R to injure the triplet, Adam so severely?  Counsel for the appellant pointed to her statement to the police that the babies were crying all night and she could not sleep.  I cannot accept this.  The idea that she would attack the triplets, particularly the one who, she told police, “didn't cry that much”, simply because they kept her awake I find improbable.  No other motive is suggested by the evidence.  Some sense of malice arose from Dr Lamont's evidence that the injuries to Hamish and Dylan were inflicted by longitudinal twisting, a mechanism which he likened to a Chinese burn.  There was no evidence that the injuries were inflicted that way.  To infer malice from this evidence would be speculation. 

[101]  Nicole Ramsay, the appellant’s cousin, gave evidence that about a fortnight before Adam’s death, she saw R jab Hamish in the stomach with her two hands, causing him to scream; she noticed no bruising.  The incident struck her as really nasty.  She told the appellant about it.  The appellant was very stern with R, telling her she had to be gentle with the baby.  That evidence provides some support for an inference of malice.  R denied the incident when she gave evidence over 2¼ years later.  I find the denial unsurprising and reject any inference that it demonstrates a consciousness of guilt.  The weight to be given to the incident must be considered in the light of other evidence referred to below.

[102]  On the medical evidence the total number of assaults on the babies was from three to eight.  R was attending school, so her opportunities to carry out the assaults were limited.  Nor can I understand how R could have carried out such a series of assaults without her mother’s knowledge.  Apart from the fatal injuries to Adam, the injuries would have caused pain and induced the babies to cry.  As the appellant told police, “I’d hear a baby crying from pain. I would hear, and the house is small.” She made no suggestion of any difficulty in R's relationship with the babies.  On the contrary, she told police that R was “great with the boys”.

[103]  Counsel also referred to a number of statements made by R in her interviews with police and a conversation with Ms Ferran.  I see nothing sinister in the latter conversation.  R had been drilled to be careful in her handling of the babies lest she drop them.  R’s question about what would be the position if she had dropped Adam seems a quite natural one for a child to ask if worried about what she might have perceived as mishandling of the baby.  The medical evidence weighs heavily against the possibility that Adam died because he was dropped, particularly by someone of R's height.  If that evidence is accepted (as I think it must be) R’s question is in my judgment incapable of constituting evidence of a consciousness of guilt.  I do not perceive an ulterior motive (such as exploring the possibility of claiming accident for her own deliberate conduct) in the question; and I think that if one must look for such a motive, a desire to exculpate her mother is a more likely one.

[104]  R's two interviews with the police were videotaped.  Her evidence at an earlier trial was also videotaped.  All of those videotapes were tendered.  I have watched them. I agree with Holmes J that in relation to R's evidence this is not a case where the jury was at any advantage compared to this court.  I also agree with her Honour that R's evidence for the purposes of trial was not illuminating.  This was mainly because it was given after a delay of over two years.  R aged nine was a very different person from R aged seven.  Much had obviously faded from her memory.  Understandably she was not cross-examined with a direct suggestion that she had caused Adam's death.  I too found the evidence of little assistance in assessing her credibility.  On the other hand I found her interviews with the police of considerable assistance.  They took place on the two days following Adam's death and lasted for more than an hour and a half.  After some initial nervousness R answered questions responsively and spontaneously. Sometimes her brain-tongue coordination was imperfect (“Sandy” when she meant “Cindy”; “bed” when she meant “bird”).  So was her grasp of time and tense: she muddled dates and days; her capacities to read a clock, to recall events in their precise sequence and to recount the timing of events in relation to other events were doubtful; her capacity to estimate time in hours and minutes was plainly deficient; and sometimes she used the present tense when referring to past events.  However I detected no sign of dissimulation.  The substance of what she said was I thought accurate.  While her face was not clearly visible in detail, her voice displayed a wide variety of intonations.  On a number of occasions these gave meaning and colour to her answers, creating quite a different impression from that gained by reading the transcript of the interviews by itself.

[105]  I thought this particularly relevant in the context of questions asking (in effect) how Adam might have sustained his injuries.  In the first interview this questioning took place after R was informed that x-rays said that someone might have accidentally dropped the baby.  Her first reaction was to refer to an event when the appellant and her cousin Natalie Macphee were handling Adam.  I shall revert to that event shortly.  The officer persisted.  Told that from the x-ray it looked like Adam might have hit his head on something, R speculated, “Probably hit it on the chair.” Asked could she think of any other times that he might have hit his head, she speculated that he might have hit it on the cot, something he had done lots of times.  Asked if she could think of a time just before he died when he might have hit his head on anything, she said, “Maybe on the rocker.” Asked, “What about the floor?” she responded, “Probably.  Maybe on the floor when he fell off the rocker.” Shortly after that, she affirmed that he did not fall off his rocker on the morning he died just before her mother found him.

[106]  In the second interview the police officer reminded her that she had been told about the x-rays of Adam's head.  She asked if R knew how he could have got them.  R replied, “Falling off the rocker.” She said that she had seen him fall off the rocker three times one day before he died.  She had put him back and told her mother, who was outside having a cigarette.  Her mother said she would come in soon to see if he was all right, which she did.  (When she gave her evidence R was cross examined about some things which she said in the interviews, but not this; and, of course, the appellant gave no evidence.)  Later in the interview, R was again reminded of the x-rays showing problems with the baby’s head a very short time before he died. She said she didn't remember anything. She was pressed, being told it was important to tell the officer about these things. She speculated that he might have hurt his head from the couch or something might have fallen down from the couch when no-one was with him.  Contrary to the submission of counsel for the appellant, she did not say (much less volunteer) that Adam may have hurt his head when he fell from the couch.  A little later she was told it was “really important”, not only for the interviewer but also for Adam to have a “nice peaceful sleep … up in heaven”, that she help with what happened.  She responded, “I’ll try.”  Asked specifically if she had tripped on the rocker, she said she might have but she could not remember.  She also said her mother might have done so.  She had no memory of any such events.

[107]  When one listens to these answers it is in my judgment evident that they were given in an attempt to please the questioner.  They do not sound like an attempt to deflect suspicion or to set up an alternative explanation for what happened in order to avoid inculpating herself.  With respect to those who think otherwise, I cannot see them as suspicious in any way.  In saying that, I confess my inability to judge the capacity of a six week old baby to squirm itself off a rocker.  Nothing in my personal experience of premature babies slightly heavier than Adam raises any doubt in my mind; although I doubt whether I can take that into account as there was no evidence on the point.  The answers were not of sufficient weight to cause doubt among the jury.

[108]  The event involving Natalie Macphee happened, according to R, “out the back” of the house.  R said (omitting questions), “Natalie had Adam's bottom and nobody had Adam's head and so part of his - some of his body fell down and his head fell down.  Just a little bit down.  But it didn't fall down to the concrete.” The last sentence was a correction to an earlier answer where she had said, “When Natalie was giving Mum -- Adam to Mum -- she had his bottom and -- and Mum didn't have his head -- cause they dropped the head just down and they fell on the concrete.” Natalie denied that she, or she and Louise, had ever dropped Adam and her denial must be accepted.  To my mind it does not contradict anything R said.  I find neither the content of the answers nor the fact that they were given in any way sinister.

[109]  My overall impression of R from the videotapes of the two interviews is that, if she had deliberately inflicted Adam's injuries, she would have been incapable of concealing the fact for the whole of the interviews.  It is true that she was not asked explicitly if she had deliberately inflicted those injuries, but I am satisfied that had she done so, that fact would have become apparent from her answers and behaviour.

[110]  On the whole of the evidence, I am satisfied beyond reasonable doubt that R did not inflict the injuries which killed Adam. Ground one in the notice of appeal must therefore be rejected.

[111]  That does not conclude the question of the appellant's guilt.  It is a powerful circumstance to be weighed with the others.  The appellant had abundant opportunity to inflict the fatal injuries.  Despite the help which she was receiving from friends and relatives she must have been under stress; and she had had an infection in her caesarean wound.  Two days before the death she told the visiting child health nurse, Nurse Peters, that she was really tired and the babies had been crying a lot during the night.  They agreed that she would be referred to the Riverton Centre for admission.  (The Riverton Centre is a residential facility providing around-the-clock advice and help with the management of babies.)  The injuries were of a type likely to be inflicted by an adult under stress.

[112]  On the other hand most if not all of the friends and relatives who visited during the period of approximately three weeks while the babies were at home described the appellant in glowing terms.  Their evidence is summarised in the reasons for judgment of Holmes J.[7] It certainly tends to negate the idea of a series of deliberate assaults by the appellant and to some extent it tends to negate the idea that the appellant committed a series of stress-induced assaults on the babies.

[113]  In addition there was an interview conducted by the police with the appellant.  It was conducted in her home with a field recorder (audio) and contains more than the usual amount of inaudible material.  I have listened to it.  The appellant’s affect is rather dull, which is not surprising in the circumstances.  She sounds distressed and may have been sedated.  She was interviewed not as a suspect but for the purposes of preparing a report for the coroner.  The interview was not as probing as interviews with suspected persons usually are.  It did not assist me very much in an attempt to make an assessment of the appellant.  I do not feel able to give it much weight.  It is perhaps regrettable that the appellant chose not to give evidence before the jury.

[114]  And so to the conclusion.  Weighing up all the circumstances I am satisfied beyond reasonable doubt that the appellant is guilty. 

[115]  It follows from that conclusion that it was the appellant who inflicted the other injuries on the babies.  That is a consequence of my reasoning.  It is not a step in reaching my conclusion.  It is therefore possible to reach a finding of guilt without first determining that question.  Such a finding is not an indispensable step in reaching a conclusion of guilt.  It was unnecessary, and probably would have been wrong, for the judge to have given the jury a direction to that effect.  Ground three in the notice of appeal must be rejected.

[116]  The appeal should be dismissed.

[117]  HOLMES J:  The appellant, Ms Macphee, was convicted of the manslaughter of one of her triplets.  The babies, Adam, Hamish and Dylan, were born prematurely on 2 January 2002. The appellant had one other child, a daughter, R, who was then seven and a half years old. The babies were brought home from hospital on 21 January 2002.  Over the next three weeks, the appellant had a good deal of help with their care during the daytime, but on the morning of 15 February 2002 only she and R were in the house.  At about 7:50am that day the appellant called for the assistance of her neighbours.  They arrived to find the three babies lying in their separate rockers in the living room.  Adam was dead; he had sustained a fractured skull. 

[118]  The appellant appeals against her conviction of Adam’s manslaughter on the grounds that the verdict was unreasonable, because the reasonable possibility that his death was caused by R was not excluded; that evidence of injuries sustained by Hamish and Dylan ought not to have been admitted; and that the trial judge had made errors in directions given as to the use of that evidence.

The post-mortem evidence

[119]  Dr Ashby, a pathologist, carried out a post-mortem examination of Adam’s body on 16 February 2002.  The only external marks she observed were a small lesion on the front of the nose and a very small red mark inside on the left flap of the nostril.  The lesion had probably occurred within a period of 24 to 48 hours before death.  There was no external bruising on the baby’s scalp, but there was bruising in the scalp tissues on the left and right side, with more bruising in the deepest level of the scalp layers.  On the right hand side of the skull there was a fracture, the parts of which had widely separated, running vertically up towards the top of the head. It measured 3.5 cm in length.  That fracture, Dr Ashby was able to say, had been sustained while the baby was alive.  On the left hand side of the head was another fracture, 3 cm in length, also widely separated and running transversely along the cartilage.  The child had sustained a subarachnoid haemorrhage, and a subdural haemorrhage which was very recent, forming within, at most, a few hours of injury.  There was a small amount of bruising in the neck muscles which was not visible externally. 

[120]  Dr Ashby considered that Adam’s death was due to serious brain damage.  There was no evidence of brain swelling, which suggested that he had survived only for a brief period after injury: more than minutes, but certainly less than an hour.  The haemorrhage suggested to her that the baby had not simply fallen, but that there had been a twisting, shearing movement of the brain and the membranes within the skull.  Although she had initially been uncertain as to whether the injuries were the product of one or two blows, she had, on further consideration, come to the conclusion that there had been two impacts to the head.  Dr Ashby thought it unlikely that the injuries to the baby were the product of a fall onto carpet from a modest height, in particular from the shoulder height of a girl of R’s size.  (Evidence was led to the effect that R was 132.5 cm in height, tall for her age, and weighed 42.8 kg, the average weight for a twelve year old.)

[121]  Part of Dr Ashby’s evidence was particularly relied on by the Crown on appeal as demonstrating the force involved in the injuries. Counsel referred to the doctor’s giving as an example “the forces involved in a motor vehicle collision”, which, he said, read in context, suggested the forces involved in “a smash at high speed between vehicles.” That, I think, is rather an over-statement, and it is worth setting out Dr Ashby’s evidence in this regard:

“The findings of these haemorrhages, the subdural and the subarachnoid, and especially when taken in consideration any haemorrhage in the retina, suggests that there hasn’t been just a simple acceleration from gravity or just a simple – what we call a transitional fall, but there has been actual torsional twisting, shearing movement of the brain and the membranes within the skull. It suggests it is – they are markers. Unless there’s an obvious cause like a motor car accident or something of that sort, they are suggestive markers for deep brain damage, deep – damage which may not be microscopically detectable if death supervenes very quickly. But certainly both of these haemorrhages, and in particular the subarachnoid in association with the subdural, would be a strong indication of torsional or shearing, deep injury to the brain”.

[122]  That seems to me not a reference to magnitude of force but to types of force: that if there were no explanation for the haemorrhages in terms of forces from different directions, such as might be obvious in the case of a car accident, they were a clue to the possibility of deep brain injury. That is not to say that the injury to Adam was not an extremely serious one, involving, as Dr Ashby said, a severe degree of force; but it seems an unwarranted reading of her evidence to equate whatever force was applied to Adam with his having been involved in a car accident.

[123]  As part of the post-mortem procedure, x-rays were taken of Adam, and they were examined by Dr Lamont, a specialist in paediatric radiology.  The x-ray of Adam’s skull which he examined had been taken face on, and there were no sideways views available.  He was unable to see any fractures of the left hand side of the skull, but he observed the right side fracture. He could not say whether it was the result of a blow or the skull hitting against something, but it was produced by a very substantial amount of force applied to the head.  It was, he said, “way beyond” what one might expect from an accidental fall, for example, from a table. 

[124]  Dr Lamont also examined a chest x-ray of Adam which showed fractures of the sixth right rib and the seventh left rib.  It was likely, Dr Lamont said, that the rib fractures had been caused at the same time and by the same mechanism.  They were about a week old.  It was most likely that there had been a sudden impact to the ribs, but it was also possible that they had been squeezed.

The injuries to Hamish and Dylan

[125]  In March 2002 x-rays were performed on the two remaining babies.  According to Dr Lamont, Hamish’s x-rays showed that the periosteum, the fibrous membrane covering the bone of the right humerus, had been pulled away from the shaft.  That result was likely to have been produced by twisting of the arm, something of the nature of a Chinese burn.  The injury was three to four weeks old, the x-ray in question having been taken on 13 March.  Hamish had also suffered a crush fracture of the third of his lumbar vertebrae, the likely cause of which was the application of force along the baby’s spine; for example by picking it up and putting it down on its bottom with very substantial force.  It was not possible to date that fracture. 

[126]  Dylan’s chest x-ray showed a fracture of the left seventh rib.  It was a mature fracture which had been present for some weeks before the taking of the x-ray, in that instance on 7 March.  It was likely to have been caused by a squeeze to the ribs.  Dylan’s spine showed a similar crush fracture to that sustained by Hamish, but in his case it was of the fourth lumbar vertebrae.  Again the most likely cause was that the baby had been banged down on its bottom, and again the injury could not be dated.  Dylan had also sustained an injury to the periosteum of his left humerus, similar to that in Hamish’s right arm, three to four weeks before the x-ray on 13 March.  It was likely, Dr Lamont said, to have entailed a similar mechanism and degree of force to that which Hamish had suffered.  In addition, Dylan had sustained fractures at the lower ends of each of his tibiae; the periosteum seemed to have been pulled on so as to cause fine “bucket handle” fractures of the edges of the bones.  It was most likely that force had been applied to the length of the lower legs; a more substantial force than that entailed in lifting a baby’s legs to change its nappy.  The fractures looked to be about two to three weeks of age as at 13 March.  Dr Lamont considered it likely that all the injuries to Dylan had occurred within a short period of each other. 

[127]  Questioned about the effects of the injuries generally, Dr Lamont said that the rib fractures would have been painful when they were sustained and would have caused continuing discomfort, exacerbated when the babies were moved or any pressure applied at the fracture sites.  The vertebral fractures, the periosteal damage and the tibial fractures would have caused substantial pain when inflicted, and ongoing pain afterwards, but not at a major level unless those parts of the babies’ bodies were moved or pressed on.  It was quite conceivable, however, that there would have been no external signs of the various injuries.

The appellant’s accounts

[128]  Police officers arrived at the appellant’s house at 9:15 am on the morning Adam died, and took some brief details of what had happened.  The appellant said that she had got Adam up at 6:30 am and fed him with formula.  She had burped him and placed him in his rocker at about 7am.  Then she had put on some washing and had a shower.  When she went to put the three children in her car, she noticed Adam was pale and called her neighbours for assistance.

[129]  On 16 February, the following day, the appellant took part in a formal record of interview.  By that time Dr Ashby had performed the post-mortem, and the existence of the fractures in Adam’s skull was known.  The appellant denied knowing how Adam had sustained the fractures.  She said he had not been dropped; in particular, she had not dropped him or done anything to him.  The only incident in which he might have conceivably have received any injury was one during the previous week, when R had told her he fell off his rocker, but there had been nothing wrong with him on that occasion. 

[130]  Describing the events of 15 February, the appellant said that she had got up and started feeding the three babies at about 6:30 am. Adam took his bottle, but the other babies fell asleep. She had finished the process sometime after 7 am.  R had eaten her breakfast and dressed, and they were both watching television.  The appellant, noticing that it was after 7:30 am,  went to have a shower. She spent five or ten minutes in the shower.  During this time the babies were in their rockers in the living room.  She dressed and returned to the bathroom to do R’s hair.  Next, she went out to the driveway of the house and opened the car in order to put the babies in.  It was when she returned to get Adam that she first noticed that there was something wrong; he was pale, and she could find no pulse.  It was then that she ran for the neighbours and called an ambulance.

[131]  The appellant said that she had been having some difficulties with the children’s father, who did not live with her, but she had been coping well nonetheless.  She had had the assistance of her family and friends with the babies.  R had been “really good” with the babies but required some supervising.  On one occasion she had tried to breastfeed one of them.  On another, while the appellant was sleeping, she had changed all the babies’ clothes, despite instructions not to go into the babies’ room without her mother. On that occasion, the appellant said, she had “flipped out” and told R not to do such things, because if she dropped the babies then it would kill them.  R continued, however, to pick the babies up; she was often to be found sitting with a baby on her lap.  The appellant was concerned that if R had had any sort of accident with the babies she would not tell her, because of what she now perceived as her over-reaction on the occasion when R changed the babies’ clothes.  She did not, however, think that R had dropped Adam and not told her, because she expected that she would hear a baby crying from pain.  The house was small and she did not leave the babies alone for long periods.

[132]  On 17 February 2002, a statement was taken from the appellant.  Its content was generally consistent with the interview the previous day.  She elaborated a little, saying that while she was feeding the babies on the morning of Adam’s death, R was getting ready for school.  R had not fed the babies or nursed them that morning.  After putting Adam into his rocker the appellant had made herself some toast for breakfast.  The babies seemed to be asleep by that stage.  She noticed that R had not made her bed and she told her to do so while she had a shower.  She spent five or ten minutes in the shower and had then dressed.  Once dressed, she had called R into the bathroom to tie her hair up for school.  At that point R had told her that Adam had made a funny sound; she might have said he made a crying sound as well. 

R’s accounts

[133]  On the morning of 16 February, R had a conversation about Adam’s death with her mother’s friend, Ms Ferran, who gave this evidence about it:

“All right.  You remember when you were at the house when you had that conversation? -- Yes, I was sitting on the back patio by myself having a cigarette outside when R approached me.

All right.  And R asked you why had Adam died, didn’t she? --  That’s correct.

And you told her that some babies that were born little go to the angels? --  That’s right.

She then asked you if she had made Adam die? --  That’s correct.

And you told her, no, he just went to sleep and didn’t wake up? --  That’s correct.

She then said to you, “What if I dropped him?”? --  Yes.

You then asked her, “Well, where was he dropped?”;  is that correct? --  That’s right.

And she said, “Between the seats”? --  That’s right.

Did you understand what she meant by “the seats”? --  Given – given that the three bouncers were lined up permanently at the front door, and that’s where the babies had been, I interpreted that that’s where she meant, the bouncers.

The words she used was “between the seats”? --  The seats, that’s right.

Thank you.  You asked her when she did that? --  Yes.

But she didn’t answer? --  No, she became very restless, started fidgeting and I moved on to the next question.

All right.  She told you that she heard Adam breathing funny;  is that correct? --  That’s right.

And you asked her how and she made some sort of gurgling noise in her throat;  is that correct? --  That’s right.

All right.  And then she ran off;  is that correct? --  Yeah.  She told me that – she made the noise, I said, “Can you show me what sort of noise it was?”, made a gurgling noise, said she went off to tell mum, and on – when the incident happened, and I couldn’t push her any further to get anymore information.  She just became very restless and went inside.”

[134]  R was interviewed by police officers later that day.  She said that on the previous morning her mother had woken and fed the babies, who at that stage were all right, and had gone to have her shower.  She, R, had picked Dylan up – although she did not know whether it might in fact have been Adam, because the two were identical - but had put him down when her mother started the shower. She had finished her breakfast and gone to make her bed.  Adam had fallen asleep, but woke up again. She went outside (presumably into the living room) where Adam was crying, went back to her room, and then returned to the living room because Adam was “making a funny noise”.   She “changed” him. (There was some debate at trial as to whether that was a mistake in the transcript and the word she used was in fact “shaked”;  in fact, having watched the tape, my own impression is that it may simply have been “checked”.)  He stopped making the noise and fell asleep just as her mother got out of the shower.  At that stage, his eyes were “open and shut” and his mouth was open; she had come out of her bedroom when she saw his eyes in that state.  Her mother had found that Adam was not moving when she went to put the babies in the car. 

[135]  More generally, R told the police officers that she helped her mother with the babies by changing their nappies, feeding them, dressing them, and putting them in their cots.  She claimed that Dylan had fallen out of his rocker once without hurting himself.  Adam had fallen out three times and had once hurt himself on a protrusion in the rocker.  He had got a bruise on his arm and screamed.  She agreed that on an earlier occasion she had changed the babies while her mother was asleep and that her mother had been angry.  The babies cried all night and stopped her from sleeping, although of the three she preferred Adam because he was the least noisy;  Hamish and Dylan were “the screamers”.  R was asked whether she had ever dropped the babies, the police officer reassuring her that she was not in trouble.  Her response was: “I wouldn’t be cruel to my baby brother”. 

[136]  R was spoken to again by another police officer the following day.  Again she said that her mother had fed the boys, although now she said that she was in her room at the time.  She had helped her mother by burping Dylan but had put him down when her mother was going into the shower. She was now definite that it was Dylan, not Adam.  She had tidied her room while her mother was in the shower.  Adam was making a funny noise.  She went to him and “jiggled him around”.  He stopped the noise.  R was asked about how Adam might have got the injuries which had shown on x-ray. She suggested that it might have been by falling off his rocker, because he “jiggle[d] around too much”, unlike Dylan and Hamish, who were quiet. She repeated her assertion of the previous day, that Adam had fallen off his rocker three times. She had seen him fall off the day before he died, while she was watching television before school, and her mother was outside having a cigarette.  He had fallen on his head, but did not cry.  She had picked him up and put him back on the rocker. 

[137]  R’s trial evidence was taken on 3 June 2004 in the form of a video recording.  Her answers consisted almost exclusively of “yes” and “no”.  She answered in the negative questions as to whether she had picked Adam up on the morning he died and tripped; whether her mother had fallen with him; whether she had ever hurt any of the babies, accidentally or deliberately; whether she had ever seen her mother do so; and whether she had been holding Dylan that morning.  When the prosecutor asked her if her mother had fed Adam that morning and then had a shower, she answered in the affirmative; when she was asked where she had been when her mother put Adam down after feeding him, she responded that she was in her bedroom. 

[138]  Under cross-examination, R confirmed that her mother had not done anything to Adam on the morning in question, and also agreed to the propositions that she had heard Adam making a funny noise while she was in her bedroom and her mother was still in the shower, and that she had gone out to check on him.  She answered “no” to questions about whether she had picked Adam up, changed him, or picked Dylan up; and she denied (again with a series of “no” answers) the occurrence of the incident which Nicole Macphee described, of her jabbing Hamish in the stomach.  When she was questioned about the conversation with Ms Ferran, she agreed to having asked Ms Ferran about why Adam had died and whether she had made him die, but denied the balance of Ms Ferran’s account: that she had said “what if I dropped him”, responded that he was dropped between the bouncers, or told Ms Ferran that she had heard Adam “breathing funny”.

The household prior to Adam’s death

[139]  The Crown called evidence from eleven witnesses, friends and relatives of the appellant, who had had contact with her during the three weeks after the children were brought home from hospital.  The level of contact ranged from a couple of visits to regular assistance. Those witnesses who had been most involved with the family were the appellant’s aunt, Dian Macphee, who visited the house each weekend and occasionally bathed or changed the babies;  her daughters, Natalie and Nicole, who visited every few days and bathed, fed and changed the babies as well as occasionally taking them out to give the appellant a break;  a friend, Ms Trudgian, who went to her house two or three days a week to give some assistance;  Ms Jamieson, a friend who, up until the day before Adam’s death, had been visiting regularly, sleeping three or four nights a week at the appellant’s house and assisting both with the babies and with general household chores.

[140]  All of the witnesses, those who had merely visited and those who had been more involved with the babies, described the appellant as a caring and highly competent mother. (The only mild exception was Ms Trudgian who seemed to think when she was there that the appellant was not doing the amount of housework she would expect).  They were uniform in saying that the appellant showed every sign of delight in her children; no-one had seen any hint of frustration or impatience in her dealing with the babies. She appeared distraught at the loss of Adam. All of the witnesses said that they had not seen any of the babies roughly handled by anyone, and those who had been involved in bathing or changing the babies said that they had not at any time noticed any sign of pain when they were handled. 

[141]  Three of those witnesses made observations of the interaction between R and the babies.  Dian Macphee said that R regarded them rather as dolls: she wanted to hold them and would try to grab them from the arms of adults.  Nicole Macphee described an occasion in which she entered a room to see R jabbing the baby Hamish in the stomach with two hands, fingers extended.  The event struck her, she said, as “really nasty”, and she reprimanded R.  She had seen R trying to pick the babies up, although she had been told not to; she was rough with them when she did so, although no more so, Ms Macphee said, than one would expect of a child.  Ms Trudgian said that she had seen R treat the babies roughly, picking one up by the legs so that his head was “almost pivoting” in order to smell whether his nappy was soiled. The baby, however, showed no distress and was unhurt.

[142]  The Crown also called three witnesses who had had professional contact with the appellant. A child health nurse, Mrs Peters, had visited the appellant as part of a Queensland Health program on two occasions on 29 January and 13 February.  She had on each occasion weighed the babies, who were developing normally. She had not noticed any bruises, marks or signs of injury on them and they showed no sign of distress when they were handled.  On her second visit, on 13 February, the appellant had been tired as a result of her disrupted nights.  They agreed that she should attend a residential facility which would help her get the babies into a sleeping routine. 

[143]  Ms Baker, a trainee social worker, had visited the appellant on 12 February.  The appellant had told her that she had been unwell, having developed an infection from a caesarean scar.  During her visit Ms Baker saw the three babies and saw nothing out of the usual in their handling. 

[144]  Ms Lucas, a volunteer support worker, also visited the appellant to discuss assistance on 12 February, and saw the triplets.  On that day, there were no marks obvious on the babies, although one of them looked slightly unwell.  She and the appellant agreed the child health nurse should look at him; of course Mrs Peters did visit the next day and noticed nothing untoward. From 13 February Ms Lucas began, by arrangement, to pick R up from school.  The three babies looked “perfect” when Ms Lucas saw them in their rockers in the afternoon of 14 February.

     The similar fact evidence and the directions as to its use

[145]  The Crown sought to lead evidence of the injuries to the surviving babies in order to negative the possibility that the death of Adam occurred by accident.  It was also submitted that the evidence was available to illuminate the nature of the relationship between the appellant and the children, but that suggestion seems to have come to nothing. (Oddly, the evidence as to the fractured ribs sustained by Adam does not seem to have been the subject of any application for a ruling, nor of any direction.)

[146]   The learned trial judge reviewed the authorities, particularly Pfennig v The Queen[8] and R v O'Keefe[9], as to the admission of propensity evidence to rebut a defence of accident.  Her ruling was in these terms:

“I have concluded that the evidence of injuries to Dylan and Hamish at about or shortly after the death of Adam from a fractured skull is admissible to negative any conclusion that in some unknown fashion he met his death by accident.

It is highly unlikely that all those injuries to the other babies could have been inflicted by R.  The evidence reasonably supports the inference that the accused is guilty of the unlawful killing of Adam and is, as a whole, reasonably capable of excluding all innocent hypotheses.”

[147]  In the course of summing up, her Honour told the jury that evidence of the injuries to Dylan and Hamish could be used to rebut any suggestion that Adam’s injuries were caused accidentally; as, for example, was suggested in the questioning of R when she was asked if she or her mother had tripped while carrying Adam or if Adam had accidentally been dropped.  It was, she said, up to the jury to decide

“if the objective probability of the injuries sustained by all three babies in such a limited time frame, as the evidence suggests, occurring by accident would defy common sense.” 

[148]  The learned trial judge instructed the jury that if they were to use the evidence to implicate the appellant, they must first be satisfied that she was responsible for the injuries inflicted on Dylan and Hamish.  She reviewed the expert evidence as to the nature of the injuries, the likely mechanisms involved and the degree of force entailed, and ended by summarising as follows:

“So to conclude on the body of evidence about the injuries of Hamish and Dylan, you may use it to negative accident as an explanation for Adam’s death if you conclude that the same person was responsible for those injuries to Dylan and Hamish and also to Adam.”

[149]  The learned trial judge then reminded the jury of the evidence about the fractures to Adam’s skull which she suggested might satisfy them that his death did not occur accidentally.  She continued:

“If you are satisfied beyond reasonable doubt that Adam’s was not an accidental death, you need to consider if Louise Macphee was responsible for that death.  As I have mentioned, you may make use of the injuries to Dylan and Hamish to assist in deciding if she was responsible for Adam’s injuries, but only if you are satisfied that she inflicted those injuries on the other two boys.  Otherwise you must completely disregard that evidence for the purpose of identification.”

After reviewing the favourable evidence given about the appellant’s parenting abilities and mentioning the evidence about R’s handling of the babies, her Honour went on to suggest to the jury that they should consider the amount of force necessary to cause the injuries to Dylan and Hamish and whether it was “beyond the strength and capacity of a girl like [R].”

The appellant’s submissions

[150]  Mr Callaghan SC, for the appellant, submitted that it was not permissible for the Crown to lead evidence to rebut a defence of accident which had not been raised.  The appellant’s defence was that she had not caused Adam’s death. If a reasonable hypothesis existed that R had done so, it did not matter whether that was by accident or deliberately.  If it was suggested that the evidence qualified as propensity evidence, it could not meet the standard identified in Pfennig v The Queen[10]:  that there was “no reasonable view of the evidence consistent with the innocence of the accused.”  

[151]  Mr Callaghan SC agreed that if the evidence were admissible, the conclusion could be drawn, beyond reasonable doubt, that one or other of the appellant and her daughter inflicted the injuries on the children. What was required, however, was a direction that before the jury could convict, they must be satisfied beyond reasonable doubt as to the appellant’s responsibility for the injuries to Hamish and Dylan; that was an indispensable intermediary fact in the chain of reasoning towards guilt.[11] At the least, the jury should have been told that the evidence could be used only if there were no reasonable view of it consistent with the appellant’s innocence.

The admissibility of the similar fact evidence

[152]  The Crown case, in the absence of the evidence in relation to Hamish and Dylan, consisted of the evidence that Adam had suffered two skull fractures from a significant impact, beyond what might be expected from a fall, at a time when there were two people in the house. To inculpate the appellant rather than her daughter, the Crown could say only that she was the adult of the two, that she had been tired, and that she had suffered from an infection. That was in a context in which the evidence was uniformly to the effect that the appellant had shown no signs of stress or not coping. It was, in my view, impossible for the Crown to establish her guilt on that evidence alone.

[153]  The evidence of the injuries to Dylan and Hamish was admissible, not as showing a particular propensity on the part of the appellant, but as demonstrating a willed act on the part of the person who harmed the child; or, to put it another way, as excluding, as a reasonable hypothesis consistent with innocence, that whoever was the author of Adam’s death, it occurred by accident.  Taking Adam’s death in isolation, and notwithstanding the force involved in his injuries, the Crown clearly would have had considerable difficulty in excluding the possibility that either the appellant or her daughter dropped the child by accident. Where the possibility was raised by the very circumstances of the case – a trauma to a baby’s skull caused by an impact or impacts - I do not think the Crown was precluded from leading the evidence by the fact that the appellant had not herself identified an excuse under s 23 of the Criminal Code Act 1899 (Qld). But it remained for the Crown to prove that it was the appellant who had inflicted the injuries on the babies.

[154]  Although the evidence of the other babies’ injuries could not of itself establish who the perpetrator was, it went some way to making it more likely that the appellant was responsible, rather than R.  The number of assaults on the babies might have been anywhere between three and eight; the appellant had greater opportunity to inflict those injuries, since she was undoubtedly alone with the babies much more often than R (who was at school each day). The force involved would more readily be inflicted by an adult.  The fact that no one observed the injuries, too, might suggest a greater degree of cunning than most seven and a half year olds would possess. (On the other hand, the fact that none of the witnesses observed any tenderness or bruising in any of the babies, although they must have been injured, might go some way to explaining how the appellant could have been oblivious to harm done to them.) Finally, one might also question whether a child of R’s age would have the presence of mind to avoid telling the police officers of her repeated mistreatment of the babies.

The competing hypotheses

[155]  But the difficulty is that the evidence goes no further than, at best, making it more likely that the appellant was responsible for injuring all the babies.  It does not go so far as to exclude as a reasonable possibility the prospect of R’s having done so.  The questions R asked of Ms Ferran as to whether she had killed Adam, and what the situation would be if she had dropped him, are suggestive of a consciousness of guilt tentatively being explored.  R had previously been seen to handle the babies roughly.  She had embarked on changing the clothes of all three in her mother’s absence, in what must have been a relatively lengthy, and possibly at times trying, exercise for a child.  She seemed, as Dian Macphee observed, to regard the babies rather like dolls; consistently with that attitude, she may well have vented some frustration and annoyance on them without appreciating the seriousness of the injury caused.

[156]  This is not a situation, in my view, where the jury was at any advantage.  They did not see R giving evidence in person; her interviews with the police officers were on video tape (which I have watched). There were aspects of what she said to the officers which rather suggested the possibility of a part played by her.  It was evident from her answers that she had had some physical contact with Adam - she had “jiggled him around” - while her mother was in the shower.  The assertions to the interviewing police officers that Adam had fallen out of his rocker three times are, in my view, suspiciously suggestive of an attempt to explain injury:  it seems most improbable that a premature baby of six weeks managed on three occasions to “jiggle” himself out of a rocker.  At best, the interviews are not such as to reassure the viewer that R had no involvement with the baby’s death.

[157]  R’s evidence for the purposes of the trial was also video recorded, and again I have watched it. From the perspective of a watcher seeking to exclude the possibility of R having mishandled the babies, it was not illuminating. Unlike evidence given by, say, a child complainant in a sex case, it was not tested to any significant degree.  As Mr Callaghan pointed out, it was not incumbent on the defence to prove that R had killed the baby; and at the same time she was not making any assertion of guilt against the appellant which had to be challenged.  The result was a fairly limited and innocuous questioning of the child some two years after the event in which she did not, and was not required to, expand on her answers.  It is of no real assistance in assessing R’s credibility. 

Unsafe verdict

[158]  There are aspects of the case which suggest that R might have been responsible; there are others which point to the appellant.  On the whole one might say it was more likely that the appellant was responsible, but I do not think one can say that a reasonable hypothesis consistent with innocence, that is to say R’s having inflicted the injuries, can be excluded.  It was not suggested that she did not have the physical strength to inflict the injuries on the babies;  the Crown case did not (could not) go beyond the proposition that it was unlikely a seven and a half year old would do such a thing.  Unlikely it may be, but it is not beyond reasonable possibility.

[159]  I find myself concluding, in the phrase used in M v The Queen[12] that “there is a significant possibility that an innocent person has been convicted”.  It was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

[160]  I would allow the appeal, set aside the verdict and enter a verdict of acquittal.