R v Eatts[2025] QCA 175

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 27 September 2023, a jury found the appellant guilty of two counts of manslaughter.  Each was a domestic violence offence.
2. [2]
   The appellant appealed her convictions, relying on two grounds of appeal.  First, that the trial judge erred by not excluding a telephone intercept dated 18 March 2019.  Second, that a miscarriage of justice was occasioned by the failure of the trial judge to adequately warn the jury regarding that telephone intercept.
3. [3]
   On 3 June 2025, at the conclusion of the hearing of the appeal, the Court ordered:

1. Appeal allowed.
2. Convictions quashed.
3. Retrial ordered on both counts on the indictment.
4. Reasons to be provided at a later date.

Indictment

4. [4]
   The indictment alleged that on 25 February 2019, the appellant unlawfully killed two children, one aged 3 years and the other aged 5 years.  Both were the appellant’s children.  The cause of death for each child was drowning or immersion.
5. [5]
   Each count was particularised as the appellant having caused the death of the child because of her omission to perform a duty of care owed to that child, in circumstances where the appellant had care of the child; having had a duty to take precautions that were reasonable in all the circumstances to avoid danger to the life, health, or safety of the child; and having omitted to perform that duty by failing to supervise the child and failing to prevent the child from accessing the body of water where he drowned.

Trial

6. [6]
   At the trial, formal admissions were made that on 25 February 2019, the appellant had the care and charge of each child and that each child died.  The cause of death, drowning or immersion, was also formally admitted.
7. [7]
   The central issues in dispute at trial were whether the appellant omitted to perform her duty to take precautions that were reasonable in all the circumstances to avoid danger to the life, health, or safety of those children, whether that omission could be held to have caused the death of those children, and whether the omission was so serious as to be regarded as a crime and deserving of punishment.

Evidence

8. [8]
   The appellant’s residence was located near a park adjacent to the Ross River.
9. [9]
   On the day prior to their death, the appellant reprimanded both children for travelling from the appellant’s home to play in a gully adjacent to the river.
10. [10]
    On the afternoon of 25 February 2019, the appellant’s daughter walked one of the children home from school.  The two children then went into the backyard to play.
11. [11]
    Later that afternoon, the appellant told the children, who were still playing outside, that it was 15 minutes until shower time.  The children replied, “yes”.
12. [12]
    About 10 minutes later, the appellant’s daughter went downstairs to bring the children upstairs.  The children were not in the yard.  The appellant sent her daughter to the nearby house of some African boys, with whom the children often played.  The daughter returned to advise the appellant that the children were not there.
13. [13]
    The appellant called the father of the 3 year old child.  The appellant then contacted emergency services on triple-zero.  The call to the father was made at 7.21 pm.  The triple-zero call was made at 7.23 pm.
14. [14]
    A search was undertaken to locate the children.  Their bodies were discovered at 4.30 am and 5.27 am respectively on 26 February 2019.
15. [15]
    On the morning that their bodies were discovered, a worker for an Indigenous organisation attended the appellant’s residence.  When that person told the appellant that they were neighbours to the African boys, the appellant replied that that was where she thought the children were and that they never went to the Ross River.  The appellant also commented that the younger child might have been chasing frogs.
16. [16]
    Investigations revealed that the appellant first left her home at 6.18 pm on the evening of 25 February 2019 and that no other person attended her home that afternoon.

Telephone intercept

17. [17]
    Police recorded a conversation between the appellant and the father of the 5 year old child on 18 March 2019.
18. [18]
    The Crown sought to rely on the contents of that conversation, to support an assertion that on the afternoon of 25 February 2019, the appellant believed that the children were in the backyard, which contradicted the statements made by her on 26 February 2019, that she thought the children went to the African boys’ house.
19. [19]
    Defence counsel sought to exclude the recording on the basis that the tone and content of the conversation was hostile and accusatorial.
20. [20]
    The trial judge ruled that aspects of the conversation ought to be excluded, but that part of the conversation should be played to the jury.
21. [21]
    At the hearing of the appeal, the Court was invited to listen to the recording because the appellant relied on the tone and content of the conversation for the purposes of her argument.  It is fair to say, and it is an appropriate introduction to the relevant part of the transcript to observe that the conversation was highly charged and emotional conversation in which the father of the eldest child was plainly accusing the mother of negligently causing the death of his child and suggesting to her that she should take responsibility for it.

The transcript of the relevant part of the conversation was as follows:

“[FATHER]:  You lied from the start with the boys--

[APPELLANT]:  You fuckin’ idiot--

[FATHER]:  The boys were missing late in the afternoon.  You had two other people or whatever in that house.

[APPELLANT]:  No, we had four of us--

[FATHER]:  The gate was left open.  Exactly.  So yet no-one kept an eye on the, a 5 and 3-year-old boy to wander off .

[APPELLANT]:  They were in the backyard--

[FATHER]:  No-one gave a fuckin’ shit.  Right?

[APPELLANT]:  They were in the backyard--

[FATHER]:  Exactly but--

[APPELLANT]:  [Father].  How dare you--

[FATHER]:  Yeah, how do you know that--

[APPELLANT]:  What are you, what are you makin’ out, I’m negligent?

[FATHER]:  W-, were--

[APPELLANT]:  Is that what you’re tryna make out--

[FATHER]:  Were they, yes--

[APPELLANT]:  It’s my fuckin’ fault--

[FATHER]:  Were they there?

[APPELLANT]:  You’re saying it’s my fault--

[FATHER]:  Were they there?

[APPELLANT]:  That’s what you’re saying--

[FATHER]:  Were they there or down the creek?  Where were they?

[APPELLANT]:  They were in the fuckin’ backyard--

[FATHER]:  They’re in the fuckin’ creek--

[APPELLANT]:  And they don’t go to the creek--

[FATHER]:  They were not in the backyard--

[APPELLANT]:  They ever go to creek.

[FATHER]:  Listen, they were in the backyard but no-one bothered watchin’ ‘em.  Okay--

[APPELLANT]:  Oh [INDISTINCT] downstairs, I started fuckin’ cookin’ dinner.  I just spoke to them--

[FATHER]:  If, dinner’s not important than those lives.  You get those boys upstairs, don’t make any excuses--

[APPELLANT]:  How--

[FATHER]:  ‘Cause there’s none--

[APPELLANT]:  They’re allowed to play in their fuckin’ in the backyard.  They’re allowed--

[FATHER]:  Yeah, but someone--

[APPELLANT]:  In their yard--

[FATHER]:  [INDISTINCT] with the gate open, with the gate open.

[APPELLANT]:  [INDISTINCT] --

[FATHER]:  You lied to me, alright, the gate was not fucking locked.

[APPELLANT]:  Yes, I know.  It doesn’t get locked.

[FATHER]:  That’s right.  And it should’ve been, these are 5 and 3.

[APPELLANT]:  Tha-, so you’re, you’re blaming me--

[FATHER]:  It’s hitting-

[APPELLANT]:  You’re fuckin’ blaming me--

[FATHER]:  You have some--

[APPELLANT]:  Fuck off--

[FATHER]:  You have responsibility--

[APPELLANT]:  Get fucked--

[FATHER]:  To take some, right--”^[1]

22. [22]
    The trial judge refused to exclude the portion of the conversation, on the basis that statements made by the appellant concerning the boys’ whereabouts, and that a side gate was not locked, were relevant to facts in issue.  The trial judge did not accept that the probative value of the statements was reduced by the hostile manner in which the appellant had been questioned, or by her emotional state, or by the passage of time that had elapsed between the children’s death and the conversation.

Consideration of Ground 1

23. [23]
    The appellant’s contention that the trial judge erred in admitting the portion of the conversation between the appellant and the older child’s father, was plainly correct.  It was not probative to any issue in dispute.  But even if it had been, the prejudicial effect of the evidence far exceeded its probative value and it should have been excluded on that basis.^[2]
24. [24]
    As to the former conclusion, there was no dispute that on the afternoon of 25 February 2019, the two children were playing in the backyard, but that at some stage thereafter they must have left the backyard and gone down to the river.  Moreover, there was no dispute that at some stage that afternoon the appellant must have had a belief that the boys were playing in the yard.  There was also no contest that at some stage thereafter when the boys went missing, she had a belief that they had gone around to their friends’ place.  There was also no dispute that on that afternoon the side gate was closed, but not locked.  Against that background, the statements made by the appellant, weeks after the death of two of her children, to the effect that she had thought the children were in the backyard, were not probative to any issue in dispute.  Nothing in the conversation gave context to the time at which the appellant was speaking, in respect of her knowledge.  On that basis it was inadmissible.
25. [25]
    And as to the latter conclusion, at best the probative value would have been tenuous, yet the risk that the jury might make inappropriate use of the transcript was extreme for at least three reasons.
26. [26]
    First, the statements made by the appellant were in response to a hostile and accusatorial conversation with the father of one of the dead children.  The accusatorial nature of the questioning was evident from the appellant’s responses “… what are you makin’ out, I’m negligent? … Is that what you’re tryna make out … It’s my fuckin’ fault … You’re saying it’s my fault … That’s what you’re saying”.  The father was clearly accusing the appellant of negligence and being responsible for the death.  Such an accusation went to the heart of what was to be proved by the Crown, if it was to establish the appellant’s guilt of the offences, beyond reasonable doubt.  No evidence could be received upon that question.^[3]  Given the nature of the issue with which the jury was charged, that they might take this material into account when it was not even arguably relevant and give it significant weight was obvious.
27. [27]
    Second, the conversation also contained a false assertion, namely, that the gate was open.  There was no suggestion anywhere in the evidence that the gate on the day in question was in any position other than closed.  In addition, the accusation was made in circumstances where the child’s father conceded that he had no personal knowledge as to the circumstances that existed on 25 February 2019.  Any knowledge had arisen as a result of him being told things by other persons.^[4]  Those circumstances gave no evidential basis for the accusation made to the appellant that she had lied to the child’s father, as the gate was not locked.  The risk was that the jury would regard the assertion was evidentiary when it was not.
28. [28]
    Third, it was not part of the case of the Crown that the transcript revealed lies by the appellant let alone lies which might go towards guilt.  Yet the father accused the mother of lying.  And the transcript contained the statement that “they don’t go to the creek” when it was part of the Crown case that indeed the previous day the boys had gone to the creek.  The obvious risk was that the jury might take these parts of the transcript into account as lies or an inconsistencies going to assessment of guilt when that did not form part of the Crown case.
29. [29]
    Once it was found that the evidence of the recorded conversation should not have been admitted, the verdicts of the jury had to be set aside.  The incorrect decision to admit evidence to which objection had been taken was a wrong decision on a question of law establishing the second limb of the common form criminal appeal provision.^[5]  The admission of that evidence constituted an error giving rise to a miscarriage of justice as the wrong decision could realistically have affected the reasoning of the jury to the verdicts of guilty.^[6]

Conclusion

30. [30]
    The conclusion in relation to ground 1 rendered it unnecessary to consider ground 2.