R v Kelly[2022] QCA 275

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  In Osland v The Queen,^[1] Gaudron and Gummow JJ said that when a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what the prosecution contends may be made of the evidence in question, before instructing the jury, as required by Edwards v The Queen,^[2] if the evidence (in the judge’s view) may be left to the jury as evidence of guilt.  A similar course should be followed by a trial judge where it appears that the prosecution intends to rely upon other conduct of the accused, occurring after the commission of the alleged offence, as evidence of guilt.
2. [2]
   The trial judge in this case did discuss with counsel, after the evidence had concluded, the specific directions which were required.  Unfortunately, the prosecutor did not foreshadow two arguments which she made to the jury in her address on the following morning, which relied upon what the appellant had said to police and to the complainant’s mother about the presence of blood on the bandana which the complainant had been wearing.
3. [3]
   The appellant told police that the bandana had no blood on it, which was incorrect.  The appellant told the complainant’s mother that there was blood on it.
4. [4]
   The prosecutor submitted to the jury that the statement to police was a lie, and without being directed according to Edwards v The Queen, the jury may have concluded too readily that this evidence was probative of guilt.
5. [5]
   The prosecutor’s argument about the statement to the appellant’s mother was that it was significant, in that it showed a knowledge by the appellant as to how the complainant had been injured.  The submission implied that the appellant otherwise would not have mentioned the blood on the bandana when speaking to the complainant’s mother.  In my opinion, that evidence of what was said to the mother did not bear that interpretation and the jury should have been told to disregard the prosecutor’s argument about it.
6. [6]
   The effect of these irregularities was a miscarriage of justice.  I agree with the reasons given by Dalton JA for rejecting the first ground of appeal.  I agree also with the orders which her Honour proposes.

7. [7]
   BOND JA:  I agree with the reasons for judgment of Dalton JA and with the orders proposed by her Honour.
8. [8]
   DALTON JA:  On 3 November 2021 a jury returned a verdict of guilty against the appellant on the one charge before them, assault occasioning bodily harm.  An appeal was brought on the ground that the verdict was unreasonable – s 668E Criminal Code (Qld).  In my view that ground must be rejected.  However, the appellant is entitled to a retrial on the basis of a second ground added (with leave) during the hearing of the appeal, namely that, “a miscarriage of justice occurred by the prosecution addressing the jury in terms which invited the jury to treat lies as evidence of guilt and no direction was given in terms of Edwards v The Queen (1993) 178 CLR 193”.

The evidence below

9. [9]
   The assault was alleged to have occurred on 2 July 2018.  At that time the appellant was a 46 year old disability support worker employed by a service which leased a house at Park Ridge for the purpose of providing respite care.  The appellant worked part time.  The complainant, AB, was her client, a 17 year old man who suffered from Dravet syndrome (severe epilepsy accompanied by intellectual impairment).
10. [10]
    AB could walk; kick a ball, and play with children’s puzzles.  He could take himself to the toilet.  He could not shower or dress independently.  He could say one or two words together, but could not construct a sentence.  He did not give evidence.  He drooled, and as a consequence, wore large triangular bandanas or bibs around his neck.  They were fastened with velcro or a press stud at the back.  He wore these during the day, and they were taken off when he was put to bed each night.  He could take a bandana off, presumably by pulling apart the fastening, but he did not have the motor skills to put one on.
11. [11]
    In her police interview the appellant said she worked every second weekend.  On the weekend in question she worked three night shifts in succession at the Park Ridge house.  She began work at 3.00 pm on Friday afternoon and the shift lasted until 9.00 am on Saturday.  Through the night shift she was entitled to sleep between 10.00 pm and 6.00 am, but had to be available to the client she cared for if needed.  The appellant told the police that on the Friday night AB came in and woke her twice seeking assistance to go to the toilet.  Each time she put AB back to bed and he went to sleep.
12. [12]
    The appellant started her second night shift at 5.00 pm on Saturday.  This shift ended at 9.00 am on Sunday.  AB again sought her assistance twice.  The first time he went back to bed.  However, the second time he refused to go back to bed, so the appellant stayed up supervising him from around 12.30 am or 1.00 am in the morning until 9.00 am when her shift ended.  The appellant returned home, but she told police she had no sleep that day.
13. [13]
    She returned to the respite house to start her third night shift at 5.00 pm on Sunday.  The appellant told police that she made AB’s dinner and got him organised for bed.  She did not actually say what time she put AB to bed.  She said that she went to bed at 11.00 pm that night, and that having just dozed off, she received a phone call at 11.30 pm.  After this, she checked on AB, and he was asleep in bed.
14. [14]
    The appellant told police that on the Friday and Saturday nights AB wore pyjamas to bed, but on the Sunday night he went to bed in tracksuit pants wearing a singlet, a t‑shirt, and a long sleeved flannel shirt.  She said that this latter combination was what his mother normally packed for him to wear to bed.  She did not explain how it was that, contrary to this normal practice, he wore pyjamas on the Friday and Saturday nights.  She also did not explain why he did not wear pyjamas on the Sunday night.

The appellant wakes late

15. [15]
    The appellant was meant to start her active shift at 6.00 am on Monday morning, and for this purpose had set her alarm at 5.45 am.  She slept through her alarm.  Both to her employers on Monday morning, and in her police interview, she stated that she did not wake until around 8.00 am, when a day care worker knocked on the front door repeatedly.  The day care worker was driving a minibus which was to collect various clients including AB.  The day care worker gave evidence which generally supported the appellant’s version of waking late.  She said that the appellant appeared at the front door only after repeated knocking, and looking as though she had just got out of bed.  The day care worker could not wait, as she had other clients to collect.  They made an arrangement that the appellant would get AB ready and drop him off at the day care centre.

AB has been injured

16. [16]
    The appellant told police that she then went to get AB and found that he was lying on the floor of the bathroom, partly blocking her opening the door.  He said his name and “hurt”, and then suddenly stood up.  She could see he had been injured.  In his bedroom she had noticed that his bed had blood on it, and there was blood on the bedroom floor near the clothes basket.  She said there were a few drops of blood on the bathroom floor, and some dry blood on AB’s nose and chin.  The thing she was most concerned about was the colour of his face.
17. [17]
    The appellant said she rang 000 straight away.  The 000 call was made at 8.24 am on 2 July 2018.  The transcript of the 000 call was in evidence.  The appellant described that AB had been bleeding from his nose and mouth, and described the colour of his face as purple; she had never seen anything like it; it was “weird”.  She said that she could see marks on his neck which she described as “a distinct line and from that upwards his face, head is purple, from below it’s his normal skin colour”.
18. [18]
    The ambulance arrived.  A female crew attended to AB, and a male crew wanted to know what had happened.  She said she showed them the bedroom.  In her police interview she said, “And whilst we were in [AB’s] bedroom, that’s when I noticed that the door was open.  His sliding door to that bedroom was open. … ’Cause the windows and the curtains kinda came in the room.”  She said that the door had been closed the previous night.

The appellant and AB were alone in the house

19. [19]
    The appellant told police that on the Friday and Saturday nights she was supporting another client as well as AB, and that there was also another staff member supporting another client on the Friday and Saturday nights.  That is, there were others in the house at all times until the last of the other clients went home Sunday morning.  That meant that from her arrival at 5.00 pm on Sunday afternoon, through to 8.00 am on Monday, the only people legitimately in the respite house were the appellant and AB.

Instruction from management to lie

20. [20]
    After the ambulance arrived the appellant rang her manager and received permission to travel with AB in the ambulance to hospital.  An arrangement was made that the complainant’s mother, Ms B, would be given the appellant’s mobile number so that Ms B could keep in contact with the appellant as they made their separate ways to the hospital.
21. [21]
    The appellant told police that when she rang her manager she spoke to Mariah Hartshorn who told her, on speakerphone, with two other managers, that the appellant was under no circumstances to tell Ms B that she (the appellant) had slept through her alarm.  The appellant said she took that as a “directive” and accordingly did not tell Ms B that she had slept past her alarm.  Further, the appellant said she told Ms B that AB was not up at 6.00 am, but that she was, and that she prepared AB’s lunch while she waited for AB to wake up.  She acknowledged to police that this was a lie, but she felt she had been instructed to tell the lie by her employer.  The appellant thought that Ms B was “a very smart woman” and that Ms B realised that the appellant was not telling her “a hundred percent of the truth”.  In fact Ms B did not believe what the appellant told her, and took it up with Ms Hartshorn when she arrived at the hospital later.  In turn Ms Hartshorn questioned the appellant once they were alone, asking her “why did you lie?”.  Ms Hartshorn’s evidence was that the appellant replied that that’s what her manager, Mr Barlow had told her to do.
22. [22]
    In her evidence Ms B said that at the hospital the appellant had told her that she got up at 6.00 am, checked on AB who was asleep in his bed, and then made his lunch to take to the day care centre.
23. [23]
    Mr Barlow and Ms Hartshorn gave evidence that the appellant rang them at work at a little after 9.00 am.  Mr Barlow said that he asked the appellant “to limit her information that was shared with [Ms B]”.  He did not remember the exact words he used, but “I know that it was most definitely along those lines”.  He confirmed that although at that stage he didn’t know “all the details”, he did know that the appellant had slept through her alarm.  Ms Hartshorn said that during the telephone call, the appellant was told “to basically keep the details to a minimum until we have a chance to further investigate”.  Ms Hartshorn said that it was her belief that the appellant and/or the respite care organisation could “get in some trouble for her sleeping in”.  Ms Hartshorn agreed in cross-examination that she did not want the fact that the appellant had overslept conveyed to Ms B until an investigation had been done.
24. [24]
    At the time the appellant spoke to her managers, the only information she gave as to wrongdoing on her part, was that she had slept through her alarm.  It is not difficult to imagine that something specific might have been said by management about not letting Ms B know that.  It is also not difficult to imagine that the appellant might have inferred such an instruction, even if it had not been expressly given.
25. [25]
    The Crown relied upon the lie about not sleeping in as going to credit.  The primary judge directed the jury that it could only go to credit.  That was appropriate.

The appellant twice mentions that she would wash AB’s bandana

26. [26]
    Ms B gave evidence that she spoke to the appellant on the telephone as both she and the appellant were separately travelling towards the hospital.  She asked what happened; the appellant said that she had found AB on the bathroom floor and that he had had a seizure and had a blood nose.  Ms B expressed a concern about AB’s condition.  Information was passed backwards and forwards from the paramedics in the ambulance to Ms B.  Ms B’s evidence continued, “And then, she [the appellant] said, ‘Oh, by the way, I washed his bandana’”.
27. [27]
    Ms B spent quite some time with the appellant at the hospital.  She said that at some point the appellant gave her a plastic bag, “in the – in – in a bag was a – was his shirt, and Dianne said, ‘His shirt is in there’.  And she said again, she goes, ‘But I washed his bandana.’”.
28. [28]
    The appellant’s counsel went back to this topic in cross-examination:

“Now, as far as the washing of the bandana issue, is it the case that what Ms Kelly might have said is not that, ‘I’ve washed the bandana,’ but that, ‘I will wash the bandana because there’s blood on it.’? ---Said, ‘By the way, I’m’ – she’s used, ‘by the way, I’m going to wash his bandana,’ or, ‘I’ve washed his bandana.’

Yes, yes. I’m trying to get that clear; the difference between ‘I have washed’ or ‘I’m going to wash’. Can I suggest something to you that might help, [Ms B]? You know you gave a statement about these events on the 13^th of July 2018? --- Yes.

And I take it things would have been clearer in your memory then than they are today? --- Yes.

All right. I’d suggest to you at paragraph 35 when you talked about the first occasion and where you had this conversation with her at the hospital, I suggest you said at paragraph 35:

Di also mentioned to me –

sorry. This was during the phone call, I should say? --- Yes.

Paragraph 35:

Di also mentioned to me during this phone call that she was going to was [AB]’s bandanna as it had blood on it.

? --- Yes.

Do you accept you said that in your statement? --- Yes. Yes, I’m pretty sure I said that.

And was that the truth? --- I now don’t know if she said about the blood on it, but she said, ‘I – I’m going to – by the [way], I’ve washed his bandana.’

Well, that’s what I was suggesting to you? --- Yes.

That maybe you’ve got that mixed up. But I’m suggesting to you that, in fact, you might have had that conversation with Mariah Hartshorn or one of the other carers about washing the bandana. I’m asking about what Ms Kelly said to you. I wonder if I could call for you statement. We might just have a look at it together.

…

Now, I suggest to you that sentence at paragraph 35 says:

Di also mentioned to me during this phone call that she was going to was [AB]’s bandanna as it had blood on it.

? --- Yes.

Do you accept you wrote that there? --- Yes, that’s what I told the police, so - - -

And was that the truth when you said that? --- I wouldn’t have lied if I had have said that.

Yes, that’s what I mean? --- So it’s the truth.

And I’m trying to help you to refresh your memory. Okay? --- Yes, yes.

And then the second time you talked about was – if you go over to paragraph 49? --- Yes.

This is at the hospital. On page 7 that first sentence there:

And she told me again that she was going to wash his bandana as it had blood on it.

? --- Yes.

Do you accept you said that there? --- Yes.”

Bloodied bandana on the floor

29. [29]
    There was evidence that one of AB’s bandanas was lying on his bedroom floor on Monday morning, and that it had blood on it.  First, Ms B’s recollection of what the appellant said at the hospital was that the bandana had blood on it.  It was never put to Ms B that the appellant did not say the bandana had blood on it.
30. [30]
    One of the female ambulance officers who attended the house had a recollection that there was “something like a plastic bag or a cloth or something of that nature” on the floor in the bedroom.  It was white and there was a small puddle of blood just in front of it.
31. [31]
    Ms Hartshorn and another employee of the agency, Ms Edgar, attended at the respite house at approximately 1.00 pm on Monday.  The evidence was that no-one should have been in the house since AB and the appellant had left in the ambulance that morning.  Ms Hartshorn described walking into AB’s bedroom at that time:

“The master bedroom had two single beds separate from each other and the bed that was in the corner facing the window was made and had droplets of blood on it.  And then in the corner of the master bedroom where the sliding door is, there was a pool of blood in the corner with [AB’s] bandana open out.”

32. [32]
    Her photographs of this became exhibit 4 which show the bandana, spotted with blood, on the floor near AB’s bed, close to a clothes basket.  Ms Hartshorn’s description of the bed as being “made” is also borne out, the doona is pulled up the full length of the bed and the top sheet is turned over the top of the doona at the head of the bed.  There is a considerable blood stain on the top of the doona and another sizeable stain on the margin of top sheet turned over the doona.  The other bed had no linen on it at all.  The appellant told police that AB had slept in the bed close to the sliding door, ie., the bed which appeared made up when Ms Hartshorn photographed it at about 1.00 pm.
33. [33]
    Ms Edgar’s evidence was to the same effect as Ms Hartshorn’s about the bloodied bandana.  It was put to her by the appellant’s counsel that the majority of blood was “over near the glass sliding door where the bandana was” and that there was blood on the bandana.

Appellant denies bloodied bandana on floor

34. [34]
    Although medical staff called police to the hospital after AB’s admission on 2 July, it was some three months before police interviewed the appellant.  Notwithstanding that delay, the appellant was adamant in telling police that she did not see blood on the bandana, nor did she see the bandana on the floor on the morning she discovered AB had been injured.  She told police that she took the bandana off AB “before I put him to bed”.  She put the bandana in the dirty clothes basket.  This was consistent with the normal practice described at other parts of the interview; AB wore the bandana during the daytime, and it was taken off at night.
35. [35]
    The appellant went on to volunteer that after the incident she had been shown photographs of AB’s bedroom, “But the photos he showed me and where the bib was, it wasn’t there, it wasn’t where I had placed it.”  The appellant said this several times in her interview and was very definite about it.  She was also definite about the fact that the bandana did not have blood on it:

“The only time I knew it had blood on it was when Andrew showed me the photos.  And I said to him, even the way the bed, they took photos of the bed, I said, even the bed … was not like that.  It had been, like they, just say that’s the bed.  The way I saw the bed, the linen was all crunched up here, and there was blood here on the doona and blood on the bed.  The sheets had been, the doona, and the sheet had been pulled back over as if the bed was made. … I didn’t leave it like that … I didn’t touch the bed.  And then the bandana was on the ground in front of the hamper with blood on it.  And I said to him [Andrew], that room wasn’t like that.  … That bandana was in the hamper.”

36. [36]
    The police returned to this subject several times.  Each time the appellant gave the same version of events and could offer no explanation as to how the bandana had come to be removed from the clothes basket, and how the bed had come to be made.  For the appellant’s version to be true, after she and the ambulance officers left the house, and before the photographs were taken by Ms Hartshorn at about 1.00 pm, some unknown person would have to have made AB’s bed and taken the bandana from the basket, spotted it with blood, and placed it on the floor.  It was never put to Ms Hartshorn or Ms Edgar that they did anything like this.  As discussed below, the only evidence was that the house was locked between the time the appellant and ambulance officers left and Ms Hartshorn and Ms Edgar returned to the house.
37. [37]
    The jury might have thought it unlikely that anyone accessed the house during the relevant time.  Even if they had, it may have been possible to make the bed and place the bandana on the floor, but the jury might well have thought that the bloodstains on top of the bed looked as though they had been deposited at a time when the bed was made, and the jury may well have thought it very difficult indeed to sprinkle droplets of blood on the bandana on the floor, which seemed very much like the other droplets of blood on the bedroom and bathroom floor.  There was no suggestion in the evidence of any motive for anyone to do such things.  All in all, the jury might have found the idea that someone interfered with the doona and the bandana after the appellant left the house most unlikely.

Medical evidence

38. [38]
    The medical experts were not cross-examined; the medical evidence was not controversial.
39. [39]
    AB’s paediatric neurologist gave evidence that he had an IQ of less than 70 and was dependent on carers for all his activities of daily living.  She said that AB was not capable of engaging in self‑harm firstly, because he lacked manual dexterity and secondly, because he did not have the intellectual capacity to “even formulate the idea of – of self‑harm or of – suicide”.
40. [40]
    AB’s face, scalp and superior neck were covered with a “warm erythematous flush” with petechiae, and there was a distinct demarcation between the erythematous skin at the top of his neck and the rest of his neck.  That demarcation line was “near circumferential with a four to six centimetre gap at the posterior aspect of the neck.”
41. [41]
    A forensic medical officer gave evidence.  He explained that erythema meant redness, and that petechiae were pinpoint haemorrhages in the skin where “little red blood cells can leak out of the – the small veins and get – get under the skin and are just – are – are visible as very small red dots”.  These represented “congestion due to probable obstruction to the – the veins of the neck”.  There was a subconjunctival haemorrhage in one of AB’s eyes which could have been caused by increased pressure to the veins.
42. [42]
    The forensic doctor described a linear fine abrasion running around AB’s neck.  The outer layer of the skin had been damaged by some movement across the skin.  As to the type of ligature involved, the doctor’s evidence was that it “appears to be broad … more like a piece of material … than a rope or a cord.”  He looked at a photograph of the bandana and agreed that use of it as a ligature could explain the injuries.
43. [43]
    The doctor could say that the ligature had been applied across the neck and not from above (as in a hanging) because the line of abrasion was horizontal, rather than angled.  The abrasion was consistent with pressure coming from behind AB, “So if someone is applying pressure from behind, the abrasion will run further around towards the back of the neck”.  He agreed that the four to six centimetre sparing of abrasion at the back of the neck was consistent with someone manually applying a ligature; this area of non-abrasion “would be where their hands were in – in relation to the person’s neck”.  He agreed that the injury was consistent with a person standing behind AB applying a ligature.
44. [44]
    The forensic doctor concluded,

“So put – putting all that together, it’s fairly easy to – to draw the conclusion that there has been a – a level of compression or obstruction at that mid – at the mid-neck  area, and running in a horizontal line, that has caused backward pressure of the veins of – that are draining from the head area back to the heart … causing … the veins to be distended, blood to rush out, causing the [markings on the face] … these are hallmark signs that … there has been venous obstruction …”

45. [45]
    The doctor said pressure of only “a few pounds”, “two or three pounds or something like that” would be needed to produce the injury.  He further said that obstructing the neck veins for a minimum of 20 to 30 seconds would cause the type of markings and discolouration found on AB’s face.  He said that nose bleeds can happen from increased pressure within the face, which in turn could result from obstruction of the veins in the neck.
46. [46]
    The forensic doctor gave evidence that loss of oxygen to the brain could precipitate a seizure.  There was evidence from blood tests conducted at the hospital that was consistent with AB having had a seizure.  However, the observable signs of injury to AB were not consistent with a history of a fall secondary to a seizure.

Doors, keys, and the idea of an intruder

47. [47]
    Early on in her police interview the appellant said that after she put AB to bed on Sunday night she worked until about 11.00 pm trying to sort out some paperwork and the keys for the property.  She said there had been issues with access to the respite house, so “I tried to sort out the keys and label them because she was the new manager [Ms Hartshorn] and couldn’t work out what key belonged to what …”.  There was support for this in the evidence of Ms Hartshorn who said that on the desk in the respite house the next day there was “a whole array of keys.  So just someone’s been – well, not someone – the person that was on shift potentially was sitting there labelling keys.”
48. [48]
    The appellant said that on the Friday night she checked the whole premises to lock up and found that “two doors were open and unlocked, that we previously didn’t have keys to”.  She said that she closed those doors that night but did not lock them, because there were no keys for them.  There was no other evidence to this effect at trial.
49. [49]
    Later in her police interview the appellant said that a set of keys to the respite house went missing because a bad‑tempered client took them and threw them in the bush behind the house.  The bush into which the client had thrown the keys was between the respite house and the Park Ridge Tavern.  Again, there was no evidence from any other witness as to this.
50. [50]
    One of the other carers called to give evidence “vaguely” remembered that the respite house had been broken into.  She had no recollection that keys for the house were lost outside somewhere.  These type of propositions were not put to the other carer called, and were not put to the two management witnesses for the respite care organisation.
51. [51]
    There was a sliding glass door to the bedroom in which AB slept during the weekend in question.  On the outside of that was a sliding security door.  The appellant told police that the sliding security door had never been opened because “we didn’t have the keys”.  She said the glass door could be opened, but it was really hard to open because the tracks were damaged.  The glass door was not designed to be locked with a key, it was on a latch.
52. [52]
    The appellant told police it was part of her night‑time routine to check all doors and windows.  She reiterated, in response to a follow-up question, that this was “always” done as she “never felt safe in that house”.  However, she went on to say that, on the night in question, she thought that the door to AB’s bedroom was closed and the curtains were closed, “so as far as I knew it was secure”, but she did not physically check that the door was secure.
53. [53]
    The appellant told police that in the morning, after she found AB injured, both the security door and the glass door were open.  She said she had “no idea” how the doors came to be open.  She suggested that the only “possible thing I could think of is an intruder”.
54. [54]
    She did not think that AB had the functional ability to open the doors.  The evidence from another carer who knew AB, and from Ms B, was that AB was able to flip the latch on a sliding glass door.  There was no evidence as to whether or not he could open an unlocked security screen door.
55. [55]
    The appellant told police that it was while she was showing the male ambulance officers through AB’s bedroom that she noticed that the doors to AB’s bedroom were open.  In cross-examination one of the ambulance officers who attended said that the appellant “mentioned to me that the sliding door was unlocked, and that that was abnormal because she had locked it the night prior”.  In answer to the question whether the sliding door was open or closed, the officer said she did not recall.  The officer recalled that the appellant used the word “unlocked” rather than the word “open”.  She did not go over to inspect the door herself.  She thought the curtains were partly obscuring the door.
56. [56]
    Ms Hartshorn said in cross-examination that one of the first things the appellant said to her on the day AB was discovered injured, was that she (Ms Hartshorn) should check the glass sliding door to AB’s room because when the ambulance had been there it had been open, and the wind had been blowing the curtains in.
57. [57]
    Ms Hartshorn gave evidence that at about 9.30 am she asked Ms Edgar to go and check the respite house.  Ms Edgar said she went to the house, but was not able to enter it because the appellant had taken the keys to the house with her to the hospital, rather than leaving them in the lock box at the house.  Ms Edgar tried all the doors.  She recalled that the security screen to AB’s bedroom was open but the glass sliding door was closed from the inside.  She could not see any signs of forced entry or damage to the house either at this time when she walked around the entire house trying to get in, or later when she went inside with Ms Hartshorn and attended to cleaning.
58. [58]
    Ms Edgar tried to pull the glass door to AB’s bedroom open from the outside, just pulling on the handle.  She was unable to open it.  She did not try any further experiments on that door.  However, she had one at home which she could push off the latch from the outside by pushing the door off its tracks.
59. [59]
    Ms Hartshorn drove to a real estate agent to collect a spare set of keys.  She attended the respite house around 1.00 pm.  There was no damage to any property, or to the house. There was nothing missing from the house.  Cash was kept on the premises.
60. [60]
    Police took no fingerprints from the doors to AB’s room and did not conduct any DNA or other testing on those doors.

Matters personal to the appellant

61. [61]
    The appellant accepted in the police interview that the reason she slept through her alarm on Monday morning was that she was so tired after a lack of sleep through the weekend.
62. [62]
    Evidence from a paramedic was that AB was not “shying away” from the appellant at the scene.
63. [63]
    Ms B said that the appellant had worked with AB for about five years and there had never been any previous issues with her.  In fact, Ms B had asked for the appellant to care for AB over the years because she knew his routine, and Ms B considered that she had been helpful and good at her job.  One of the other carers who gave evidence said she had worked with the appellant for about five years and was unaware of any injury to any patients, or complaints about the care provided by the appellant.  Mr Barlow said that he had known the appellant for about eight years, and that she had worked for the same organisation for 15 years.  There had never been any issues with the support care given by the appellant.  He had never seen, or heard anyone else complain of, the appellant being angry, upset or frustrated with clients.

Verdict not unreasonable

64. [64]
    There was a strong circumstantial case against the appellant.  She was the only person known to be in the respite house with AB at a time when he was strangled in a way consistent with his bandana being held against his neck and tightened from the back of his neck using two to three pounds pressure, for a period of about 30 seconds.  That pressure was likely to have caused AB’s nosebleed.  From AB’s position in the morning there is an inference that the nosebleed began in his bedroom.  His bandana was found, spotted with blood, near the other blood in the bedroom, and there were two relatively large bloodstains on his bed.  There was a trail of blood spots leading to the bathroom in which he was found.
65. [65]
    The appellant had little sleep the preceding night, and had interrupted sleep on Saturday night.  She was so overtired she slept through her alarm, and for two hours after it, on Monday morning.  Although she said she had put AB to bed, he was not in the pyjamas he had worn on the previous two nights; the bed looked made, rather than slept in, and AB’s bandana was not in the clothes basket where the appellant said she had put it.
66. [66]
    The medical evidence was that the bandana might have been the ligature used to strangle AB.  It was on the floor near the blood stains in the bedroom and was itself spotted with blood, adding weight to the idea that it had been involved with the strangulation.
67. [67]
    It was open to the jury to think that the appellant had mentioned the bloody bandana to Ms B for no discernible innocent reason twice the next morning.  It was open to the jury to think that she had lied to the police about not having seen the bandana spotted with blood on the floor of AB’s bedroom.  Subject to being properly directed about those matters, it was open to the jury to think that both the gratuitous mentions of the bandana, and the lies told about the bandana to police, were post‑offence conduct indicative of guilt.
68. [68]
    Because the Crown presented a circumstantial case, the jury needed to be satisfied beyond reasonable doubt that there was not an inference available on the evidence which was consistent with the appellant’s innocence.
69. [69]
    There was no available inference on the evidence that AB had self‑harmed.
70. [70]
    It was well open to the jury to find that there was no available inference consistent with AB having suffered an accident causing his injuries.  According to the appellant, his bandana would have been removed before he was put to bed.  He could not put the bandana on himself.  Having regard to the fact that the bed was made and AB was found in his day clothes on Monday morning, I think there was an inference available to the jury that in fact he had not been put to bed as the appellant claimed.  The jury therefore had to consider whether there was a possibility on the evidence that AB was still wearing the bandana and that it, or the back of his shirt, t-shirt or singlet, had somehow become caught on something and produced strangulation.  There was no mechanism suggested for that, having regard to any of the objects in the bedroom or the bathroom.  There was no rational inference on the evidence of accident.
71. [71]
    The only other possibility consistent with the appellant not having injured AB was that a third party – an intruder – had come into the house.  The hypothesis would have to be that the intruder probably entered, and likely left, by the door to AB’s bedroom.  That he or she strangled AB, for about 30 seconds, and then departed having left no sign of forced entry, and not having damaged the house or property in any way.  It was open to the jury to regard this as so unlikely as not to be a rational inference open on the evidence.
72. [72]
    In my view, having regard to all the evidence before the jury there was nothing unreasonable about their verdict.  While the case was a circumstantial one, there was no evidence which meant that the jury must have recognised a reasonable inference consistent with innocence in terms of the test in Pell v The Queen^[3].
73. [73]
    In my view, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty because the only rational inference available to them was that the appellant assaulted AB.  One scenario which suggests itself is that the appellant was over-tired.  She tried to put AB to bed, but was not able to persuade him to go to bed.  In his bedroom, she went to undress him and he insisted on trying to walk back out to the living rooms.  In frustration she restrained him by holding his bandana to prevent his leaving the room.  She need only have done so for 30 seconds according to the medical evidence.  In low light she did not realise the effects on him, and thought he had capitulated to her demand by falling onto, and remaining on, his bed.  That scenario would account for the two pronounced bloodstains on top of the made bed; the blood spots on the floor nearby, and the bloodied bandana beside the bed.  Of course, the jury did not have to be convinced of any particular scenario to convict.

Need for an Edwards direction

74. [74]
    When the primary judge asked counsel about the necessary directions to the jury, the prosecutor said that the Crown was relying on the lie told to Ms B about getting up at 6.00 am “as a credit lie only.  So that’s the Zoneff direction, if I can use the shorthand. So as a matter bearing against her credit, certainly not as a consciousness … of guilt.”  Nothing was said by either counsel about post‑offence conduct, or lies indicative of guilt.  The judge in summing up gave the direction he was asked to give, namely a Zoneff direction about the lie told to Ms B as to the appellant’s movements on the Monday morning.
75. [75]
    The difficulty is that the prosecutor invited the jury to find that the appellant had: (a) made guilty mention of the bloodied bandana to Ms B at the hospital, and (b) lied to police when she said that the bandana was not bloody and was not on AB’s bedroom floor.  She invited the jury to use those lies as inculpatory evidence.  Her address included:

“The use of the bandana matches the situation.  And you could draw the inference that the bandana was what was likely used to strangle [AB]. …

The bandana was disturbed from where it was put in the hamper.  It was found at the scene of this traumatic event, near a pool of blood, on the floor, and it had blood on it.  …

And the use of that bandana fits.  It’s a spontaneous item.  Not planned; not premediated.  She has used something readily to hand, when she snapped.  It’s unlikely, for example, to be the kind of thing an intruder would pluck from a washing basket in a dark room while breaking into a random house. …

But before we leave the topic of the bandana, in her interview, you will recall that the defendant was absolutely adamant that the bib, the bandana, was not on the floor where we know it was found.  And she was clear it didn’t have blood on it.  There was no wriggle room in her answers about that.  No room for movement.  She was adamant.  So it can’t really be chalked up to a mistake or a lapse of memory.  She was adamant that the first she knew of the bandana having blood on it was when she was shown photos at a – at a later time, and that it didn’t have blood on it at the time she put it in the hamper: ‘You can ask anyone.  I am very meticulous at work’ is what she says on the topic.  But, members of the jury, she wasn’t so meticulous when she was speaking to [Ms B] on the morning of the 2^nd of July, when she introduced, without any prompting, not once but twice, first in the ambulance, and then later again repeated at the hospital, that she was going to wash [AB’s] bandana, as it had blood on it.  Those things are incompatible.  What she says in her interview, and what has introduced [indistinct] conversations with [Ms B].  So that’s another big hole, and a big inconsistency in her story. … It’s starting to unravel.

It’s quite weird that she is mentioning it, at all, as it seems to have no relevance to the situation, and that this again demonstrates the implausibility of her account.  So everything points to the defendant as being the person responsible.  …

...

… And yet she would have you believe she didn’t hear a thing until Lidiya Maloney came knocking the next morning.  So, again, when you start picking at the seams of her story, it comes apart.  Just like the gratuitous mention of the bandana, which she swears, black and blue, she never saw in a bloodied state. …” (my underlining).

76. [76]
    In this passage the prosecutor asks the jury to infer guilt from the circumstances that:

    1. (a)
       the bandana was likely used to strangle AB;
    2. (b)
       the appellant twice, without prompting, gratuitously and quite weirdly mentions that she would wash AB’s bandana because it had blood on it; and
    3. (c)
       the appellant lied to police in saying, adamantly, that she never saw blood on the bandana and that the bandana was not on the floor.

She says that these things, amongst others, demonstrate the implausibility of the appellant’s account and point to the appellant as being the person responsible for the assault.

77. [77]
    In respect of the statements at [76](b), the prosecutor did not ask the jury to find that the appellant was lying.  The prosecutor asked the jury to accept Ms B’s evidence (not challenged on this point) that the appellant had mentioned her intention to wash AB’s bloodied bandana, where that was an unimportant matter, in circumstances of medical emergency, not once but twice, and “by the way”, as Ms B put it in her evidence.  While Edwards v The Queen concerned post‑offence lies, there is a wide range of conduct which has been recognised in the cases as being capable of amounting to inculpatory post‑offence conduct.  I summarised some of the cases, and some of the types of conduct in this category, in R v WBS.^[4]  In my view the principles in Edwards applied here because the prosecutor was asking the jury to find the statements at [76](b) above as being probative of guilt because they showed inappropriate over-concern with the bandana, the instrument likely used to inflict injury on AB, and with its being bloody as a result of that use.  In substance, the prosecution was asking the jury to find that the over-concern was an indication that the appellant knew that AB had been strangled with the bandana, and that she knew that, because she had strangled him.
78. [78]
    As to [76](c), the prosecutor asked the jury to find that the appellant lied to police about not having seen the bloodied bandana on the floor.  She pointed to those statements being incompatible with what is said to Ms B at the hospital, and referred to the bandana being in fact on the floor, and bloodied, based on the other evidence.  At the underlined part of her address to the jury, the prosecutor invited the jury to make more of this lie than that the appellant was not creditworthy; she invited them to use the lie as probative of guilt.  She invited the jury to find that the appellant was lying about the bloodied bandana being on the bedroom floor (near to where the bloodstains indicated the attack took place) when she was alone in the house with AB.  The point of such a lie would be to distance herself from the incriminating picture captured in Ms Hartshorn’s photograph (exhibit 4).  That is, it is a lie a guilty person would tell.
79. [79]
    As explained at [66] above, the matters at [76](b) and (c) were able to be used by the jury as indicative of guilt.  However, to ensure the jury assessed the evidence logically, it was necessary that they be given an Edwards direction.  They were not, and in my view that resulted in a miscarriage of justice because the two matters at [76](b) and (c) were capable of being regarded as quite powerful evidence against the appellant, so that it was necessary that the jury be instructed to analyse it according to law.