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CITE

Unreported Judgment
Appeal Pending

R v Desatge and Dawita[2024] QSC 205Cooper J
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R v Desatge and Dawita[2024] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:	R v Desatge; R v Dawita [2024] QSC 205
PARTIES:	THE KING v DESATGE, Tane Saul THE KING v DAWITA, Sinitta Tammy
FILE NO/S:	Indictment No 95 of 2023
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED ON:	17 September 2024
DELIVERED AT:	Toowoomba
HEARING DATE:	22, 23, 24, 25, 26, 29, 30 and 31 July 2024; 2, 5 and 6 August 2024
JUDGE:	Cooper J
ORDER:	TANE SAUL DESATGE Count 1: Guilty Count 2: Guilty of murder SINITTA TAMMY DAWITA Count 1: Not guilty Count 2: Not guilty of murder. Not guilty of murder.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – where the co-accused Desatge and Dawita are charged with the murder of their stepdaughter and daughter, respectively – where the case for murder against both accused is circumstantial – where the prosecution’s case is that an accumulation of mistreatment by the defendants was a substantial or significant cause of, or contributed substantially to, Kaydence’s death – where each accused ran a “cutthroat” defence, seeking to blame the other for the death of Kaydence – where Dawita’s case was that Desatge acted alone in committing acts of mistreatment and violence which led to Kaydence’s death; Desatge’s case was that he was not present when Kaydence died and Dawita was responsible for supervising Kaydence when she sustained injuries which caused her death – where there was evidence that Kaydence was last seen lying on a red couch with laboured breathing and that she had bruising on her head and face – where Kaydence disappeared from the house where the defendants and other children under their care were living after she was last seen lying on the red couch – where both defendants told lies about the whereabouts of Kaydence after her disappearance from the house – where there was evidence that Desatge beat Kaydence with a bamboo stick – where there was evidence that Dawita slapped or smacked Kaydence and the other children with an open hand – where there was evidence that Kaydence was made to sleep in the toilet on occasions – where Desatge gave an account of what happened to Kaydence to undercover police and, on his version, he was not present when Kaydence sustained injuries by falling down stairs which caused her death, and Dawita did not subsequently allow him to obtain medical assistance – where both co-accused were involved in Kaydence’s clandestine burial – where Desatge subsequently led undercover police to Kaydence’s burial site – where medical evidence demonstrated that Kaydence had suffered a base of skull fracture but that evidence did not establish whether that fracture caused her death – where Desatge’s accounts to undercover police sought to minimise his involvement in the events which caused Kaydence’s death but certain statements he made amounted to an implied admission that he was present when Kaydence suffered the injuries which led to her being placed on the red couch – where Desatge told lies to undercover police about the circumstances of Kaydence’s death – where there was evidence that both co- accused disposed of Kaydence’s belongings after her death – where Desatge had significant animosity towards Kaydence’s biological father and this animosity influenced his treatment of Kaydence – whether one or both of the defendants are guilty of murder, or alternatively, manslaughter CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY – OTHER OFFENCES – where the co-accused Desatge and Dawita are charged with torturing Kaydence – where the Crown alleged that the co- accused tortured Kaydence by: confining Kaydence to the toilet during the day and night; not properly clothing Kaydence; not providing Kaydence with sufficient nourishment; forcefully striking Kaydence; and not seeking or providing adequate medical care for Kaydence – where there was evidence that Desatge hit Kaydence with a bamboo stick – where there was evidence that Kaydence was made to eat her own faeces on multiple occasions by Desatge – where there was evidence that Dawita slapped and smacked Kaydence out of frustration – where there was evidence that Dawita fed Kaydence her own faeces on one occasion – whether one or both of the defendants are guilty of torture Criminal Code 1899, s 7, s 8, s 31, s 286, s 291, s 293, s 302, s 303, s 320A, s 615B Evidence Act 1977, s 21AK, s 21H, s 21KA, s 93A R v Baden-Clay (2016) 258 CLR 308, cited R v Beckett [2011] 1 Qd R 259, cited R v Roughan and Jones (2007) 179 A Crim R 389, cited Webb v The Queen (1994) 181 CLR 41, cited
COUNSEL:	MB Lehane with NE Friedewald for the Prosecution FH Martin for the Defendant, Tane Saul Desatge DP Jones KC for the Defendant, Sinitta Tammy Dawita
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Prosecution Skuse Graham Criminal Lawyers for the Defendant, Tane Saul Desatge Legal Aid Queensland for the Defendant, Sinitta Tammy Dawita

Introduction

[1]
Tane Saul Desatge and Sinitta Tammy Dawita are charged on indictment with four offences. Following amendment of the indictment on the first morning of the trial, the charges are as follows:

Count 1

That on divers dates between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA tortured KAYDENCE HAZEL MILLS.

And the offence is a domestic violence offence.

Count 2

That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA murdered KAYDENCE HAZEL MILLS.

And the offence is a domestic violence offence.

Count 3

That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA without lawful justification or excuse, improperly interfered with a dead human body.

And the offence is a domestic violence offence.

Count 4

That on a date unknown between the sixteenth day of February, 2017 and the sixth day of May, 2017 at Chinchilla in the State of Queensland, TANE SAUL DESATGE and SINITTA TAMMY DAWITA without lawful justification or excuse, improperly interfered with a dead human body.

And the offence is a domestic violence offence.

[2]
Upon arraignment each defendant pleaded not guilty to counts 1 and 2.

[3]
Each defendant pleaded guilty to counts 3 and 4. The particulars of count 3 are that, on an unknown date in the specified period, the defendants buried the body of the deceased, Kaydence Hazel Mills (Kaydence), at 10 Inverai Rd, Chinchilla, that being the address of the house they rented from 10 February 2017 (the Chinchilla house). The particulars of count 4 are that, on an unknown date in the specified period, the defendants removed Kaydence’s body and then reburied her at a different location near the Chinchilla weir.

[4]
From each defendant’s plea of guilty to both counts 3 and 4 and the particulars of those counts, it followsthat they each accept that Kaydencedied between 16 February 2017 and 6 May 2017.

[5]
Kaydence was Ms Dawita’s daughter. She was born in the Cairns Hospital on 23 September 2014. Her father was Robert Mills, a former partner of Ms Dawita.

[6]
In November 2014, Kaydence was removed from Ms Dawita’s care by the Department of Child Safety and placed into foster care. At that time, Kaydence’s older half-sisters, MT (born 5 February 2008) and MS (born 3 September 2010), were also placed in foster care.

[7]
Ms Dawita and Mr Desatge commenced a relationship in 2015, although there appear to have been breaks in that relationship for parts of 2015 and 2016. At the commencement of the relationship, both Ms Dawita and Mr Desatge were living on the Atherton Tablelands. In September 2015, Ms Dawita relocated to a flat at 1/11 Gorge Road, Tully (the Tully flat).

[8]
On 2 January 2016, Ms Dawita gave birth to Mr Desatge’s son, DT. By around the time DT was born, Mr Desatge had taken up residence with Ms Dawita at the Tully flat. Ms Dawita and Mr Desatge had two more children together: DS who was born on 3 August 2017, and DC who was born in December 2019.

[9]
Between April 2015 and September 2016, Ms Dawita participated in supervised visits with MT, MS and Kaydence overseen by the Department of Child Safety.

[10]
On 18 September 2016, Kaydence was returned to Ms Dawita’s care. MT and MS were also returned to Ms Dawita’s care on the same date. From that time until mid-December 2016, Ms Dawita and Mr Desatge resided at the Tully flat with MT, MS, Kaydence and DT.

[11]
The family then moved to Chinchilla in mid-December 2016. They initially stayed at the Chinchilla Motor Inn for approximately two months. They then moved into the Chinchilla house.

[12]
After Kaydence died (between 16 February 2017 and 6 May 2017), the defendants sought to conceal her death: first, by wrapping the body and placing it in an outhouse in the backyard of the Chinchilla house; then, subsequently, burying the body at the Chinchilla weir. The defendants told the other children that Kaydence had gone to live with someone else. Ms Dawita subsequently lied on numerous occasions to members of her family and others about Kaydence’s whereabouts. Mr Desatge also told lies which concealed his knowledge that Kaydence was dead.

[13]
Kaydence’s body was eventually located by police after Mr Desatge made admissions to law enforcement participants involved in a covert investigation into Kaydence’s disappearance.

[14]
The defendants were arrested and charged with Kaydence’s murder on 1 March 2020.

[15]
The trial commenced on 22 July 2024 without a jury after orders to that effect were made pursuant to s 615 of the Criminal Code.

[16]
Section 615B(1) of the Criminal Code provides that, in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If a statute or the common law requires information, a warning or an instruction to be given to the jury in particular circumstances, the judge in a trial by a judge sitting alone must take that requirement into account if those circumstances arise in the course of the trial: s 615B(2)(a). The judge may make any findings or give any verdict that a jury could have made or given if the trial had been before a jury, and any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury: s 615C(1). The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact on which he or she has relied: s 615C(3).

The prosecution case

[17]
On both counts 1 and 2, theprosecution particularised the caseagainst each defendant on alternative bases. The particulars of counts 1 and 2 are relevantly the same against both defendants.

Count 1 – torture

[18]
A person who tortures another person commits a crime (s 320A(1) of the Criminal Code). Torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more occasions (s 320A(2) of the Criminal Code).

[19]
The elements of the offence of torture are:

(a)
the defendant inflicted severe pain or suffering on Kaydence;

(b)
the defendant inflicted the severe pain or suffering intentionally;

[20]
The Crown’s primary case is that each of the defendants is liable as a principal offender (s 7(1)(a) of the Criminal Code). The particulars of count 1 state that each defendant intentionally inflicted severe pain or suffering on Kaydence by the following acts or series of acts done on one or more than one occasion:

(a)
confining Kaydence to the toilet during the day;

(b)
confining Kaydence to the toilet during the night;

(d)
not providing Kaydence with sufficient nourishment;

(e)
forcefully striking Kaydence;

(f)
not seeking or providing adequate medical care for Kaydence.

[21]
As an alternative to liability as a principal offender, the particulars also set out a basis for establishing the guilt of each defendant on count 1 relying upon s 7(1)(c) of the Criminal Code. That is that each defendant, with knowledge that the other had the intention to inflict severe pain or suffering on Kaydence, aided that other defendant (that is, Mr Desatge aided Ms Dawita, or Ms Dawita aided Mr Desatge) who intentionally inflicted severe pain or suffering on Kaydence by the particularised act(s) or series of acts done on one or more than one occasion. In each case, the conduct alleged to constitute aiding is the aiding party’s deliberate presence at the Chinchilla house.

[22]
If I am satisfied beyond reasonable doubt that one of the defendants committed the offence of torture (the principal offender), the following issues arise concerning the potential application of s 7(1)(c) to the other defendant:

(a)
whether that defendant’s deliberate presence at the Chinchilla house aided the principal offender to commit the offence of torture;

(b)
if so, whether the defendant provided the aid intending to help the principal offender commit the offence of torture; and

(c)
whether the defendant had actual knowledge or expectation of the essential facts of the offence of torture, including the principal offender’s intention to inflict severe pain or suffering on Kaydence.

Count 2 – murder

[23]
The killing of another is unlawful unless it is authorised, justified or excused by law (s 291 of the Criminal Code). A person kills another if he or she causes the death of that other directly or indirectly, by any means whatever (s 293 of the Criminal Code).

[24]
The prosecution relies on two provisions as a basis to establish each defendant’s guilt for the offence of murder: ss 286 and 302 of the Criminal Code.

Section 286 of the Criminal Code

[25]
Section 286 provides:

“286
Duty of person who has care of child

(1)
It is the duty of every person who has care of a child under 16 years to—

(a)
provide the necessaries of life for the child; and

(b)
take the precautions that are reasonable in all the circumstances to avoid danger to the child’s life, health or safety; and

and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not.

(2)
In this section—

person who has care of a child includes a parent, foster parent, step parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.”

[26]
The section comprises the following elements:

(a)
the defendant has care of a child;

(b)
the defendant fails to perform the duty imposed by the section by failing to perform any of the actions specified in subsections 1(a), (b) or (c);

[27]
If those elements are proved beyond reasonable doubt, the defendant is held to have caused the consequences to the life and health of the child. In this case, the prosecution case is that each defendant’s failure to perform the duty imposed by s 286 resulted in Kaydence’s death.

[28]
The prosecution’s primary case is that each of the defendants is liable as a principal offender for failing to perform the duty they owed. The particulars state that each defendant failed in performing the duty by:

(a)
confining Kaydence to the toilet during the day;

(b)
confining Kaydence to the toilet during the night;

(d)
not providing Kaydence with sufficient nourishment;

(e)
forcefully striking Kaydence;

(f)
not seeking or providing adequate medical care for Kaydence.

[29]
The particulars further state that each defendant did those things or omitted to do those things (as the case may be), with the intention of ultimately killing Kaydence through the combination of some or all of the particularised acts; and that the combination of some or all of the particularised acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.

[30]
As an alternative to liability as a principal offender for the consequences of breaching the duty imposed by s 286, the particulars of count 2 also set out a case relying on s 8 of the Criminal Code.

[31]
The case set out in the particulars against each defendant under s 8 is that:

(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;

(b)
it was a probable consequence of the prosecution of such an unlawful purpose that the other defendant would form the intention of ultimately killing Kaydence through the combination of some or all of the particularised acts set out in [28] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would form the relevant intention; in the s 8 case against Ms Dawita it was a probable consequence that Mr Desatge would form the relevant intention);

(c)
the combination of some or all of the particularised acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.

Section 302 of the Criminal Code

[32]
The second basis which the prosecution relies upon to establish that each defendant is guilty of murder is under s 302 of the Criminal Code.

[33]
Section 300 provides that unlawfully killing another is a crime “which is called murder or manslaughter, according to the circumstances of the case”. Section 302 defines “murder” by prescribing circumstances in which an unlawful killing constitutes murder rather than manslaughter.

[34]
The particulars of the case under s 302 are that each defendant did an act or acts that were a substantial or significant cause of, or contributed substantially to, Kaydence’s death and, at the time of doing the act or acts, had an intention to kill Kaydence or do grievous bodily harm to her. The particularised acts in the prosecution case under s 302 are the act or acts which led to Kaydence’s condition as observed by MT on the last day she saw Kaydence alive.

[35]
The particulars raise the circumstance prescribed by s 302(1)(a) of the Criminal Code, namely:

“302(1)
Definition of murder

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—

(a)
if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

is guilty of murder.”

[36]
This means that in the case against each defendant under s 302, the elements of the offence of murder are:

(a)
Kaydence is dead;

(b)
an act or omission of the defendant was a substantial or significant cause of, or contributed substantially to, Kaydence’s death;

(d)
the defendant intended, at the time the act or omission that caused Kaydence’s death, to kill her or to do her grievous bodily harm.

[37]
As an alternative to liability as a principal offender, the particulars of count 2 also set out a case based on s 8 of the Criminal Code that each defendant formed a common intention with the other defendant.

[38]
The case set out in the particulars against each defendant under s 8 is that:

(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;

(b)
it was a probable consequence of such an unlawful purpose that the other defendant would form the intention to kill Kaydence or do grievous bodily harm to her when committing the particularised act or acts as set out in [34] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would form the relevant intention; in the s 8 case against Ms Dawita it was a probable consequencethat Mr Desatge would form the relevant intention);

(c)
the particularised act or acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.

Count 2 – manslaughter

[39]
By s 576 of the Criminal Code, manslaughter is an alternative verdict on a count of murder. A person charged with murder may be convicted of manslaughter on the count of murder if manslaughter “is established by the evidence”: see s 576(1) of the Criminal Code.

Section 286 of the Criminal Code

[40]
The particulars of count 2 identify each defendant’s alleged breach of the duty imposed by s 286 of the Criminal Code as one basis for establishing his or her guilt for the offence of manslaughter.

[41]
The particulars of the offence of manslaughter relying upon breach of the duty owed under s 286 are relevantly the same as set out above for the offence of murder under s 286 (see [28]-[29] above), save that the particulars do not contain the assertion that the relevant defendant acted with the intention of ultimately killing Kaydencethrough the combination of some or all of the particularised acts.

[42]
As an alternative to liability as a principal offender for the consequences of breaching the duty imposed by s 286, the particulars of count 2 also set out a case based on s 8 of the Criminal Code.

[43]
The case set out in the particulars against each defendant under s 8 is that:

(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;

(b)
the combination of some or all of the particularised acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death;

Section 303 of the Criminal Code

[44]
The second basis which the prosecution relies upon to establish that each defendant is guilty of manslaughter is under s 303(1) of the Criminal Code.

[45]
Manslaughter will be established where the prosecution proves beyond reasonable doubt an unlawful killing (the first three elements of the offence of murder under s 302(1)(a)) but do not prove the circumstances which make the unlawful killing murder (the fourth element): see ss 300 and 303(1) of the Criminal Code.

[46]
The particulars of the offence of manslaughter under s 303(1) against each of the defendants are relevantly the same as set out above for the offence of murder under s 302(1)(a) (see [34] above), save that the particulars do not contain the assertion that, at the time of doing the act or acts that are alleged to have been a substantial or significant cause of, or to have contributed substantially to, Kaydence’s death, the relevant defendant had an intention to kill Kaydence or do grievous bodily harm to her.

[47]
As an alternative to liability as a principal offender under s 303(1), the particulars of count 2 also set out a case based on s 8 of the Criminal Code.

[48]
The case set out in the particulars against each defendant under s 8 is that:

(a)
they formed a common intention with the other defendant, who also had care of Kaydence, to mistreat Kaydence in the manner set out in [28] above;

(b)
it was a probable consequence of such an unlawful purpose that the other defendant would unlawfully commit one of the particularised acts as set out in [34] above (that is, in the s 8 case against Mr Desatge it was a probable consequence that Ms Dawita would unlawfully commit one of the particularised acts; in the s 8 case against Ms Dawita it was a probable consequence that Mr Desatge would unlawfully commit one of the particularised acts);

(c)
the particularised act or acts were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.

[49]
In the caseagainstMs Dawita, if Iam satisfied that the prosecutionhas provedbeyond reasonable doubt that she is criminally responsible for:

(a)
an act or acts amounting to the torture of Kaydence; or

(b)
an act or acts which were a substantial or significant cause of, or contributed substantially to, Kaydence’s death but without the element of an intention to kill or to cause grievous bodily harm (that is, an unintentional killing),

I must consider whether the prosecution has excluded beyond reasonable doubt the defence of compulsion (s 31 of the Criminal Code).

Principles governing the trial

[50]
The burden rests on the prosecution to prove the guilt of the defendants. The defendants arepresumed innocent and thereis no burden on either ofthem to establish their innocence. The defendants may be convicted only if the prosecution establishes that they are guilty of the offence charged or some other offence of which they may be convicted on the indictment.

[51]
For the prosecution to discharge its burden of proving the guilt of a defendant of an offence, it is required to prove, beyond reasonable doubt, that the defendant is guilty of that offence. This means that to convict, I must be satisfied beyond reasonable doubt of every element of the offence charged. If I am left with a reasonable doubt about the guilt of a defendant, my duty is to acquit; that is, to find that defendant not guilty. If I am not left with any such doubt, my duty is to convict; that is, to find the defendant guilty. Proof beyond reasonable doubt is the highest standard of proof known to the law. It may be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the case must be proved to be more likely than not. In a criminal trial the standard of satisfaction required for conviction is much higher; the prosecution must prove the guilt of each defendant beyond reasonable doubt.

[52]
I have not been influenced by public opinion about these offences in general, or in this particular case, nor what I might expect public opinion to be about any particular verdict I might return.

[53]
I have dismissed all feelings of sympathy or prejudice: whether it be sympathy for, or prejudice against, either of the defendants or anyone else, including the deceased. I have approached my duty dispassionately, deciding the facts upon the whole of the evidence.

[54]
I have dismissed all feelings of sympathy or prejudice: whether it be sympathy for, or prejudice against, either of the defendants or anyone else, including the deceased. I have approached my duty dispassionately, deciding the facts upon the whole of the evidence.

[55]
Ihavenot drawn any adverseinferencefrom the fact that the defendants wereguarded while in court. The presence of corrective services staff guarding defendants during a trial is a daily occurrence in a criminal court.

[56]
On the first morning of trial, Ms Dawita applied for orders that, for the duration of the trial, she be separated from Mr Desatge by way of a screen located so that she could not see Mr Desatge, and further that she be seated, separately from Mr Desatge, in the jury box. The separation of the defendants with Mr Desatge seated in the dock and Ms Dawita seated in the jury box was not opposed by Mr Desatge. The application for the positioning of a screen preventing Ms Dawita from seeing Mr Desatge was opposed.

[57]
The basis for Ms Dawita’s application was set out in an affidavit sworn on information and belief by her solicitor recording instructions he had received from Ms Dawita about incidents of alleged domestic violence committed against her by Mr Desatge, and further that she remained fearful of Mr Desatge and was concerned she would not be able to properly concentrate during the trial if she could see Mr Desatge or if Mr Desatge could see her.

[58]
Mr Desatge disputed much, but not all, of the hearsay evidence of alleged domestic violence. It was neither necessary nor appropriate for me to attempt to resolve that conflicting evidence. Ultimately, I allowed the application in circumstances where it was conceded on behalf of Mr Desatge that he would suffer no prejudice on the basis that this is a judge-alone trial, and it was common ground between all parties that I cannot use the presence of the screen in reaching my verdicts. I have not drawn any inference adverse to Mr Desatge, nor any inference favourable to Ms Dawita, by reason of the screen being positioned between the defendants during the trial.

[59]
Oneof the lawenforcement participants involved in the investigation into Kaydence’s disappearance gave evidence under an assumed name. The formal admissions which were tendered at the conclusion of the prosecution case referred to a statement which Mr Desatge made to a second law enforcement participant who also utilised an assumed name. A witness identity protection certificate for each of those law enforcement participants was filed with the Court pursuant to s 21H of the Evidence Act 1977. In accordance with s 21KA of the Evidence Act 1977, I have not given the evidence given by the first law enforcement participant, or the formal admission setting out the statement made by Mr Desatge to the second law enforcement participant, any more or less weight because there is a witness identity protection certificate for each of those law enforcement participants or because orders were made protecting the identity of those law enforcement participants. Nor have I drawn any adverse inferences against the defendants because of those matters.

[60]
Evidence was given about Ms Dawita having a history of abusing alcohol and illicit drugs. I have not drawn any adverse inferences against Ms Dawita because of those matters. I have not used that evidence to reason that Ms Dawita’s history makes it more likely that she would commit the present offences.

[61]
There was also reference in the evidence to Mr Desatge having a criminal record. I have not drawn any inferences against Mr Desatge because of that. I have not used the fact that Mr Desatgehas acriminal record to reason that becausehehas previously committed offences, he must be guilty of the present offences. Nor have I had regard to that fact in assessing the truthfulness of statements which Mr Desatge made to law enforcement participants.

[62]
Evidence was given about Ms Dawita striking MT and MS. The prosecution does not rely on that evidence in its case against Ms Dawita as establishing a relevant propensity on her part. In deciding if the prosecution case against Ms Dawita has been proved, I have not used that evidence to reason that Ms Dawita has a propensity to strike her children that would make it more likely that she committed the offences that she has been charged with. Evidence of Ms Dawita’s violent propensity can only be relevant in the case against Mr Desatge in considering whether it was more likely that Ms Dawita, rather than Mr Desatge, was guilty of the offences of violence with which Mr Desatge was charged.^[1]

[63]
There was evidence of alleged sexual offending by Mr Desatge against MT and MS. The prosecution does not rely on that evidence to prove that Mr Desatge is guilty of the present offences. I have not considered that evidence at all when deciding if the prosecution case has been proved against Mr Desatge.

[64]
There was evidence that Mr Desatge committed acts of domestic violence towards Ms Dawita. The prosecution does not rely on that evidence to prove that Mr Desatge had the propensity to commit violent offences. In deciding if the prosecution case against Mr Desatge has been proved, I have not used that evidence to reason that Mr Desatge has a propensity to act violently that would make it more likely that he committed the present offences.

[65]
On Ms Dawita’s case, evidence of domestic violence by Mr Desatge is relevant in three ways. First, in ascertaining Ms Dawita’s intention. Secondly, in assessing whetherMs Dawita aided Mr Desatge in his mistreatment of Kaydence(which is only relevant to count 1). Thirdly, in assessing whether Ms Dawita was party to a plan with Mr Desatge to mistreat Kaydence (which is only relevant to count 2). The evidencewillalso fallto beconsidered if itbecomes necessary to considerthe defence of compulsion under s 31 of the Criminal Code. In these circumstances, I have had regard to the provisions of part 6A, div 3 of the Evidence Act 1977 (inserted by the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023) which address jury directions related to domestic violence.

[66]
Domestic violence –

(a)
is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse or financial abuse;

(b)
may amount to violenceagainst aperson even though it is immediately directed at another person;

(d)
may consist of separate acts that form part of a pattern of behaviour that can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial.

[67]
Behaviour, or patterns of behaviour, that may constitute domestic violence include, but are not limited to, the following –

(a)
placing or keeping a person in a dependent or subordinate relationship;

(b)
isolating a person from family, friends or other sources of support;

(d)
depriving aperson of, or restricting aperson’s, freedom of movement or action;

(e)
restricting a person’s ability to resist violence;

(f)
frightening, humiliating, degrading or punishing a person, including punishing a person for resisting violence;

(g)
frightening, humiliating, degrading or punishing a person, including punishing a person for resisting violence;

[68]
Experience shows that –

(a)
people may react differently to domestic violence and there is no typical response to domestic violence;

(b)
it is not uncommon for a person who has been subjected to domestic violence to stay with an abusive partner after the domestic violence, or to leave and then return to the partner;

(c)
it is not uncommon for a person who has been subjected to domestic violence not to report domestic violence to police or seek assistance to stop domestic violence;

(d)
decisions made by a person subjected to domestic violence about how to address, respond to or avoid domestic violence may be influenced by a variety of factors including, for example:

(i)
the domestic violence itself;

(ii)
social, cultural, economic or personal factors, or inequities experienced by the person, including, for example, inequities associated with race, poverty, gender, disability or age;

(iii)
responses by family, the community or agencies to the domesticviolence or to any help-seeking behaviour or use of safety options by the person;

(iv)
the provision of, or failure in the provision of, safety options that might realistically haveprovided ongoing safety to theperson, and the person’s perceptions of how effective those safety options might have been to prevent further harm; or

(v)
further violence, or the threat of further violence, used by a family member to prevent, or in retaliation for, any help-seeking behaviour or use of safety options by the person;

(e)
it is not uncommon for a decision to leave an intimate partner who is abusive, or to seek assistance, to increaseapprehension about, or the actual risk of, harm.

[69]
A number of witnesses who gave evidence were Indigenous. I have had regard to draft directions contained in Appendix C of the Equal Treatment Benchbook which address the use of Aboriginal English:

(a)
Many Indigenous people in North Queensland, including Indigenous people of mixed descent, do not speak English as their first language. And many, in all parts of the State, who do speak English as their first language have learnt to speak English in a manner which is different from other speakers of English in Australia: they are speakers of Aboriginal English.

(b)
Aboriginal English is not the same all over the State, and varies from person to person, and situation to situation. It ranges from “heavy” Aboriginal English to “light” Aboriginal English. Heavy Aboriginal English is harder for non-Indigenous people to understand fully, but even with speakers of light Aboriginal English there are some important things I must be aware of. Speakers of heavy and light Aboriginal English are found all over the State, and even with people I may think do not look distinctively Aboriginal or Torres Strait Islander.

(c)
There are a number of grammatical differences between Aboriginal English and other kinds of English. For example, the verb “to be” may not be used in sentences,and allthe verbs may bein the present tense, even though thecontext shows that it is the past or the future that is being talked about. I may notice that pronouns, such as “he”, “she” and “you”, are used differently at times. Many Indigenous people have trouble with some of the consonants used in the English language, especially f, v and th. F and v are often replaced with p or b, so the word ‘fight’ might sound like ‘pight’ or ‘bight’, and so on.

(d)
Aboriginal English speakers may also have different cultural values which affect the way they speak and behave. Many Aboriginal and Torres Strait Islander cultural values and ways of communicating are strong even in places like Brisbane. It is very common for Aboriginal people to avoid direct eye contact with those speaking to them, because it is considered to be impolite in some Aboriginal societies to stare. On the other hand, in most non-Aboriginal societies people who behave like this might be regarded as shifty, suspicious or guilty. I must be very careful not to jump to conclusions about the demeanour of an Aboriginal witness on the basis of the avoidance of eye contact, as it cannot be taken as an indicator of the Aboriginal witness’s truthfulness.

(e)
It is customary among many speakers of Aboriginal English to havelong lapses of silence from time to time, even in everyday speech. I must be careful not to jump to the conclusion that a witness who is doing this is being evasive or untruthful about the matter he or she is being asked about. Many Aboriginal English speakers are not used to direct questioning in the way in which it is used in the courtroom, and they are used to having the chance to think carefully before talking about serious matters, so it may take time for them to adjust to this method of imparting information.

(f)
It is very common for witnesses to be asked questions in the form of a ‘leading question’. Many Aboriginal English speakers will answer “yes” to this type of question, even if they do not agree with the proposition being put to them in the question, and even if they do not understand the question.

(g)
Similarly the answers “I don’t know” and “I don’t remember” do not always refer directly to the Aboriginal English speaker’s knowledge or memory. They can be responses to the length of the interview, or to the length of the question, or to the difficulty which a number of Aboriginal people have in adjusting to the use of repeated questioning.

(h)
Many Aboriginal English speakers use gestures which are often very slight and quick movements of the eyes, head or lips to indicate location or direction.

(i)
Some concepts, such as time and number, are understood by Aboriginal English speakers very differently from Standard English speakers.

(j)
Sometimes, especially in formal situations, Indigenous people speak very softly to non-Indigenous people and are hard to hear, even with a microphone.

(k)
Many Indigenous people suffer from hearing problems. It may be that if a witness has a hearing difficulty, he or she may have had problems understanding questions put to him or her. In such asituation the witness might have answered inappropriately or asked for the question to be repeated.

(l)
Aboriginal English can differ in many important ways from other kinds of English. Even if an Aboriginal person’s language sounds like English, Icannot always make the same assumptions about their meaning.

[70]
I have decided the case on the evidence which has been presented to me in court and only that evidence. That evidence consists of the testimony of the witnesses that I have heard, the exhibits and the formal admissions that have been made. I have not taken into account any outside information or other outside influence. I have not made my own enquiries or investigations about the case or anyone connected with it.

[71]
I have approached the task of reaching a verdict on the basis that I may accept evidence in whole or in part. It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it. I have accepted or rejected such parts of the evidence as I have thought fit. It is for me to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.

[72]
In this case, I have drawn inferences from proven facts. That is, I have used evidence circumstantially by using facts, which Iaccepted as having been proved, in an indirect or circumstantial way as pointing to the existence of another fact.

[73]
I have approached the drawing of inferences on the basis that any inferences must be reasonable ones drawn from the evidence. I have not engaged in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.

[74]
I have drawn inferences bearing in mind that where there are reasonable inferences consistent with guilt and reasonable inferences consistent with innocence, I must not draw an inference consistent with guilt. Further, I must not convict either defendant based on inferences unless I have excluded beyond reasonable doubt any reasonable inference consistent with innocence. Guilt must be the only rational inference. These principles are an incident of the burden of proof which rests upon the prosecution.

[75]
One of the matters which the prosecution must prove as an element of the offence of torture and the offence of murder is that the relevant defendant held a specific intention.

[76]
Likewise, in respect of the offence of murder, proof of intention to produce a particular result, namely to kill Kaydence or to cause grievous bodily harm to her is an element of the offence. Accordingly, the prosecution must prove beyond reasonabledoubt that the defendant meant to producethat result by his or her conduct.

[77]
Likewise, in respect of the offence of murder, proof of intention to produce a particular result, namely to kill Kaydence or to cause grievous bodily harm to her is an element of the offence. Accordingly, the prosecution must prove beyond reasonabledoubt that the defendant meant to producethat result by his or her conduct.

[78]
The prosecution relies on evidence which it says proves that the defendants had a motive to mistreat Kaydence in the manner they are said to have done, namely their animosity towards Kaydence’s father, Robert Mills. The motive by which a person is induced to do an act or form intent is immaterial to the question of criminal responsibility. If I decide that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive. In that event, I would have to base my verdict on the evidence that I do accept. However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks me to infer guilt. If there is motive then what might otherwise be inexplicable becomes explicable. I have borne in mind that the existence of motive without any more would not be sufficient to found a finding of guilt.

[79]
Positive evidence that the accused lacked motive is clearly a matter to be taken into account, particularly in a case based on circumstantial evidence.

[80]
Neither of the defendants gave evidence or called other people to give evidence on their behalf or otherwise produced evidence. That was their right. The defendants were not obliged to add to the evidence of the prosecution. The fact that a defendant did not get into the witness box and give evidence is not evidence against him. It does not constitute an admission of guilt by conduct. Nor may it be used to fill in any gaps in the prosecution case. It proves nothing at all. I have not assumed that, because each defendant did not give or call evidence, that adds in some way to the case against him. I have not considered it at all in deciding whether the prosecution has proved its case beyond reasonable doubt. The fact that the defendants did not give evidence does not make the prosecution’s task any easier. It does not change the fact that the prosecution is responsible for proving the guilt of the defendants beyond reasonable doubt.

[81]
Various witnesses gave evidence by audio-visual link. I have not given that evidence any more or less weight or drawn any adverse inferences against either defendant because the evidence was given in that way.

[82]
Dr Ong and Dr Skellern each gave opinion evidence as an expert witness. The ordinary rule is that witnesses may only give evidence about facts and not express their opinions. An exception to the general rule is that persons qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise. The expertise of both Dr Ong and Dr Skellern was not challenged. Each of them was clearly qualified to give opinion evidence on the matters which they did.

[83]
The fact that witnesses such as Dr Ong and Dr Skellern are referred to as experts does not mean that their evidence must automatically be accepted. I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. It is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinions at all. It is important to remember that an expert’s opinion is based on what the expert witness has been told of the facts. If those facts have not been established to my satisfaction, the expert’s opinion may be of little value.

[84]
Two of the prosecution witnesses, MT and MS, were children at the time they were spoken to by police about relevant events. Their conversations with police were electronically recorded and the electronic record was tendered under s 93A of the Evidence Act 1977. The receipt of the evidence of children in this way is routine. I have not given it disproportionate weight and have not considered it without also considering the cross-examination of each of those witnesses.

[85]
The evidence of both MT and MS was recorded prior to the trial pursuant to s 21AK of the Evidence Act 1977. At the time each child gave evidence, she was in a room remote (separate) from the courtroom. The evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom. At the time the child gave evidence there was a support person sitting in the room with her, and no other person. Whilst the child gave evidence, all non-essential persons were excluded from the courtroom. At the time, the defendants were present in the courtroom but were positioned so that the child could not see the defendants on the monitor, or at all. The child’s evidence was recorded as it was given and that is the recording that was played during the trial. The courtroom was closed and all non-essential persons were excluded while part of the pre-recorded evidence of each child was played.

[86]
All of those measures, used for the taking and showing of each child’s evidence, are the routine practices of the Court for taking and showing evidence of children. I have not drawn any adverse inference against either defendant because those measures were used.

[87]
The probative value of the evidence is not increased or decreased because those measures were used. That is, the evidence of MT and the evidence of MS is not better evidence, or worse evidence, than if the evidence had been given before me from the witness box. Ihavenot given that evidence any greateror lesser weight becausethose routine measures were used.

[88]
Transcripts wereprepared of the recordings of the s 93A evidence, the 21AK evidence and Mr Desatge’s conversations with law enforcement participants. Transcripts were also prepared of the evidence given by the witnesses called at the trial. Those transcripts are an aid only. They are an unknown person’s opinion about what the witness said. It is what I saw and heard which is evidence. And if I heard something which differed from the transcript, then it is my view which has prevailed.

[89]
In cross-examination by Mr Desatge’s counsel, witnesses who are members of Ms Dawita’s family or her friends (Isobel Banu, Leighton Dickman and Pamela Dickman) were asked questions suggesting that their relationship with Ms Dawita gave them a motive to lie in their evidence by placing the greatest amount of blame on Mr Desatge. If I reject the motive to lie put forward on behalf of Mr Desatge, that does not mean that the witness is telling the truth. It is for the prosecution to satisfy me that the witness is telling the truth; for it is the prosecution’s burden to satisfy me beyond reasonable doubt of the guilt of the defendants.

[90]
Finally, although the defendants have been tried together, each is entitled to have his or her casedecided solely on the evidenceadmissible against them. In respect of each charge, each defendant is entitled to have the case decided on the evidence, and on the law, that applies to them, and as it relates to each particular charge.

[91]
The fundamental issue for me to decide in the case against each defendant is whether, on the evidence admissible against that defendant, I am satisfied, beyond reasonable doubt, that defendant is criminally responsible for the torture of Kaydence (on count 1) and for the unlawful killing of Kaydence (on count 2). If the prosecution fails to prove beyond a reasonable doubt that either defendant is criminally responsible for either offence, then I must acquit that defendant of that offence.

[92]
My conclusion as to whether I am satisfied beyond reasonable doubt of the guilt of one defendant has no bearing on my consideration whether I am satisfied beyond reasonable doubt of the guilt of the other defendant. If I conclude that one defendant is guilty, I cannot draw any inference against the other defendant from that conclusion. That is, if I find one defendant guilty that does not mean that the other defendant must necessarily be guilty. Likewise, if I find one defendant not guilty on the evidence admissible against that defendant that does not necessarily mean that the other defendant is not guilty. That is, I may be satisfied beyond reasonable doubt as to the guilt of one defendant and fail to be satisfied beyond reasonable doubt as to the guilt of the other defendant. Finally, if Ifind one defendant not guilty on theevidence admissible against that defendant that does not necessarily mean that the other defendant is guilty. That is, I may not be satisfied beyond reasonable doubt as to the guilt of either of the defendants, in which case I would acquit both defendants. In this last case, I note the observation of Deane J in Webb v The Queen,^[2]that in a case like this, while I may think it apparent that the crime was committed by at least one of the defendants, there would be nothing inconsistent in my finding that the guilt of neither defendant has been proved beyond reasonable doubt.

[93]
I have given the cases against each defendant and for each defendant separate consideration. For each particular charge, I have separately considered the evidence admitted in relation to each defendant and have returned separate verdicts in respect of each defendant.

The evidence

[94]
The following witnesses gave evidence in the prosecution case:

(a)
Sally-Ann Pearson;

(b)
Leanne Davis-Collier;

(d)
Angus Lindsay;

(e)
Isobel Banu;

(f)
Pamela Dickman

(g)
Allan Low;

(h)
Leighton Dickman;

(i)
Raymond Hicks;

(j)
Eleanor Hicks;

(k)
Melissa Jackson;

(l)
Kira Brett;

(m)
MT;

(n)
MS;

(o)
Maureen Yasserie;

(p)
Chantal Dickman;

(q)
June Cook;

(r)
Leisha Robinson;

(s)
Codie Thornton;

(t)
Nathan McBride;

(u)
Melissa Hodge;

(v)
Plain Clothes Senior Constable Junior Savaliga;

(w)
Detective Senior Sergeant Adrian Sala;

(x)
Detective Senior Sergeant Glenn Kite;

(y)
Detective Sergeant Rodney Messer;

(z)
Senior Constable Elise Vanderwalt;

(aa)
Detective Sergeant Craig Ellis;

(bb)
Dr Beng Beng Ong; and

(cc)
Dr Catherine Skellern.

[95]
A number of exhibits were also received in evidence. All were tendered by the prosecution. These included:

(a)
recordings of interviews which police conducted with MT on 9 September 2019, 12 November 2019 and 9 June 2020;

(b)
recordings of interviews which police conducted with MS on 9 September 2019, 13 November 2019 and 9 June 2020;

(d)
the recording of MS’s evidence pursuant to s 21AK of the Evidence Act;

(e)
diagrams of the Chinchilla house: the first drawn by MT during her second police interview; the second prepared by police;

(f)
photographs of the Chinchilla house;

(g)
recordings of conversations between Mr Desatge and various law enforcement participants during the covert investigation;

(h)
recordings of telephone calls involving Mr Desatge and Ms Dawita that were intercepted during the police investigation;

(i)
recordings of telephone calls involving Mr Desatge and Ms Dawita that were intercepted during the police investigation;

(j)
photographs of abamboo stick located by policeafterasearch of astorageshed which Mr Desatge had rented in Mission Beach;

(k)
documents evidencing the dates on which Mr Desatge was employed by different entities.

[96]
Pursuant to s 644 of the Criminal Code,admissionsof fact weremade. The document recording those admissions was marked as exhibit 35 and the admissions were read into the record. Those admissions were sufficient proof of the facts stated therein, without the need for further evidence of those facts. Rather than setting the admissions out in full, I have referred to relevant paragraphs of the admissions in the reasons below.

Kaydence’s health when she was in foster care

[97]
Between November 2014 and 18 September 2016, Kaydence was cared for by Sally-Ann Pearson and her partner, Nicholas Pearson. The Pearsons also received assistance from Ms Pearson’s mother, Leanne Davis-Collier, who filled the role of grandmother.

[98]
There was a formal admission that, among other reasons, Kaydence was placed into Ms Pearson’s caredueto aconcern that the Department of Child Safety had in relation to Mr Mills. Specifically, Mr Mills had committed domestic violence against Ms Dawita and the children. Mr Mills’ mental state was deemed to be unstable at the time. He was not taking his medication and had been abusing illegal drugs. Mr Mills himself admitted to threatening to kill Ms Dawita and to arguing with her whilst armed with a knife.^[3]

[99]
Ms Pearson gave evidence about difficulties she experienced bottle-feeding Kaydence when she first came into foster care. Those issues were addressed with the assistance of a paediatrician and the trial of various formulas. Kaydence was also diagnosed with bronchiolitis and had to be admitted to hospital on two or three occasions due to difficulties with her breathing. As Kaydence grew, Ms Pearson took her to attend specialist appointments with paediatricians, an occupational therapist, and a speech therapist to address some developmental issues.

[100]
Ms Pearson said that by the time that Kaydence was returned to Ms Dawita’s care, Kaydence’s bronchiolitis was no longer an ongoing concern. She was in very good health and meeting all developmental milestones.

[101]
Ms Pearson’s evidence is supported by formal admissions. Kaydence was reviewed four times by general paediatric consultant, Dr Marnie Fraser. Those reviews occurred when Kaydence was aged five months, eight months, 14 months and 20 months. Because of Kaydence’s normal developmental progress, she was discharged from further paediatric follow-up.^[4]Advanced occupational therapist Holly Webster also assessed Kaydence during the same timeframe and noted that she was displaying normal development. At an assessment in March 2016, Ms Webster recommended that Kaydence be assessed again at the two-year developmental screen in September 2016.^[5]

[102]
Shortly before Kaydence was returned to Ms Dawita’s care, Ms Pearson spoke to Ms Dawita and offered to help with anything Ms Dawita needed in looking after Kaydence and the other girls.

[103]
Ms Pearson said that she only saw Ms Dawita interacting with Kaydence on a few occasions during the first year she was in Ms Pearson’s care, but that she noticed Ms Dawita did not exhibit much affection towards Kaydence.

[104]
After Kaydence was returned to Ms Dawita’s care, Ms Pearson unsuccessfully attempted to contact Ms Dawita because she wanted to speak to Kaydence on her birthday. Ms Dawita sent a message to Ms Pearson apologising that she had missed Ms Pearson’s call but stating that “Kaydence is good”. That was the last contact Ms Pearson had with Ms Dawita.

The period in Tully after the children returned from foster care

[105]
On 29 September 2016, Ms Dawita sent a message to Mr Desatge which said:^[6]

“I just want u here I’ve been smacking Kaydence not a lot just a little”

[106]
Ms Dawita then sent further messages to Mr Desatge which said:

“Idk I can feel myself getting frustrated really quick it’s not good my old self is coming back to haunt me

I feel myself heading down the wrong path again

I feel myself heading down the wrong path again

[107]
Ms Webster, the occupational therapist who had previously assessed Kaydence, called Ms Dawita in September 2016. Ms Dawita advised Ms Webster that she was happy with Kaydence’s development. She consented to Ms Webster arranging for Kaydence to be assessed at the Tully Hospital. Staff at the Tully Hospital contacted Ms Dawita and arranged for appointments on 1 November 2016 and 10 November 2016. On 14 November 2016, a hospital staff member contacted Ms Dawita about having missed those appointments. Ms Dawita said that she would not be rebooking as she was leaving the district and moving to the Gold Coast. She could not provide a forwarding address.^[7]

[108]
Ms Davis-Collier gave evidence about two occasions when she saw Ms Dawita by chance. They both occurred when Ms Davis-Collier took a different foster child to the flats in Tully where Ms Dawita lived, to visit that foster-child’s mother.

[109]
On the first occasion, sometime in October 2016, Ms Davis-Collier saw Ms Dawita holding DT while MT, MS and Kaydence played outside the Tully flat. Ms Davis-Collier said that on that first occasion, Ms Dawita was happy for her to say hello and to give the girls a hug. All the girls, including Kaydence, looked happy. Ms Davis-Collier stated that Ms Dawita was acting protectively of the children while they played outside. On that occasion, Ms Davis-Collier did not see or hear any other adults at Ms Dawita’s flat and had the impression that only Ms Dawita and the children were present.

[110]
On the second occasion, one or two weeks later, Ms Davis-Collier saw MT and MS outside Ms Dawita’s flat. On that occasion, MT approached and spoke to Ms Davis-Collier before Ms Dawita came and pulled the girls away. Ms Davis-Collier asked where Kaydence was. Ms Dawita said that she was around the back of the flat in the pool with her aunt. Ms Davis-Collier gave evidence that Ms Dawita behaved differently towards her on this second occasion. She said that Ms Dawita was “standoffish”. On this second occasion, Ms Davis-Collier could hear an adult male voice and formed the impression that Ms Dawita’s boyfriend was present. Even though Ms Davis-Collier could hear a male voice, Ms Dawita described that voice as being the girls’ aunt. Ms Davis-Collier said that Ms Dawita told her that the kids were okay, but Ms Dawita’s body language did not accord with what she was saying. Ms Dawita acted as though she wanted Ms Davis-Collier to leave.

[111]
Ms Davis-Collier also gave evidence about an occasion shortly before Christmas 2016, when she saw Ms Dawita and the three girls at Kmart in Innisfail together with a man and a young baby (which must have been Mr Desatge and DT). On that occasion, Mr Desatge looked over in Ms Davis-Collier’s direction before he picked up DT and walked off in the opposite direction. MT and MS ran over to Ms Davis-Collier and gave her a hug. Kaydence began to walk towards Ms Davis-Collier, but Ms Dawita picked Kaydence up and walked away. Ms Davis-Collier said that on this occasion Kaydencelooked very thin; thinner than Ms Davis-Collierwas used to when Kaydence was in Ms Pearson’s care. She said that Kaydence did not look like the baby she knew because, when she was in Ms Pearson’s care, she was a chubby, healthy and happy baby. Ms Davis-Collier said that Kaydence did not look happy on that occasion after Ms Dawita picked her up and stopped her giving Ms Davis-Collier a hug. Ms Davis-Collier said that the way Ms Dawita acted on the occasion at Kmart was similar to the way she had acted on the second occasion at the Tully flats. It was in contrast to how she behaved towards Ms Davis-Collier on the first occasion at the Tully flats when her boyfriend did not appear to be present.

[112]
Angus Lindsay was employed by the Department of Child Safety as a child safety officer in Innisfail. From about April 2015, he was involved in the supervision of Ms Dawita in relation to contact with her children while they were in foster care. Mr Lindsay understood that Mr Desatge moved into the Tully flat with Ms Dawita in about November or December 2016, shortly after Kaydence and her sisters were returned to Ms Dawita’s care.

[113]
Mr Lindsay gave evidence about a conversation he had with Ms Dawita and Mr Desatge in November or December of 2016. They informed him of their intention to move from Tully because they were fearful of Mr Mills. Mr Lindsay said that Ms Dawita appeared to be very fearful of Mr Mills. So too did Mr Desatge, who had told Mr Lindsay that he had been severely assaulted by members of Mr Mills’ wider family. Mr Lindsay said that he told Ms Dawita that she did not need to be fearful because Mr Mills had informed Mr Lindsay that he was moving to the Gold Coast. Mr Lindsay then noticed Ms Dawita and Mr Desatge exchange a look before Ms Dawita told Mr Lindsay that they had told people they were moving to the Gold Coast so as to trick Mr Mills and his family about where they would be living. They told Mr Lindsay that they would not be moving to the Gold Coast but would be moving to Chinchilla.

[114]
At the end of 2016, Ms Dawita stayed with her older brother, Christopher Dawita and his long-term partner, Sophie Lind. Ms Dawita told Ms Lind that she and thechildren were moving to Chinchilla to start a relationship with Mr Desatge. Over a two-month period, Ms Lind noticed Ms Dawita was getting upset and frustratedwith thechildren, especially Kaydence, but she never saw Ms Dawita hitting the children. Ms Lind thought Ms Dawita was very frustrated with Kaydence because Kaydence was sick, crying and could not eat. By the time Ms Dawita and the children left, Kaydence was sick and crying a fair bit, but she was a little better than when she arrived.^[8]

The period after the family moved to Chinchilla

[115]
Mr Desatge and Ms Dawita resided with the four children (MT, MS, Kaydence and DT) at the Chinchilla Motor Inn from 16 December 2016 to 17 February 2017. Allan Low was the manager of the Chinchilla Motor Inn during that period.

[116]
Mr Low said that he saw Mr Desatge and Ms Dawita with three children: two aged around seven and five (which must have been MT and MS) and a babe in arms (which must have been DT). He said that the two older children spent most of their time in the swimming pool which was adjacent to the unit occupied by the family. The baby was always with Ms Dawita. He described Ms Dawita as being shy and said he saw her sitting on the edge of the pool holding the baby.

[117]
Mr Low also said that he saw the family go for a walk each afternoon, but that he could not see from his office how many people went out together.

[118]
Mr Low said that he purchased soft toys for the children and left them as presents outside the door of the family unit on Christmas morning. His recollection was that he only left two or three soft toys.

[119]
After moving from the Chinchilla Motor Inn, Mr Desatge and Ms Dawita rented the Chinchilla house from Raymond and Eleanor Hicks. Mr and Mrs Hicks lived at 18 Burbank Street, Chinchilla. The back fence of the Chinchilla house ran along one side of the Hicks’ residence.

[120]
Mr Hicks said that he was present when the family first moved into the Chinchilla house. He provided some beds and mattresses for the family to use, and he put the beds together with Mr Desatge. He recalled that Mr Desatge and Ms Dawita had four children when they moved in: two girls aged about eight and ten, and a boy and girl which he described as infants.

[121]
At the time the family moved in Mr Hicks was the managing director of an engineering company. On weekdays he was working during daylight hours, but he was at home most nights and most weekends. He said that he did not hear any arguments between Mr Desatge and Ms Dawita from his house, which he estimated to be about 30 metres from the Chinchilla house. On the weekends, Mr Hicks saw the older girls play in the backyard of the Chinchilla house. Sometimes, when the Hicks’ grandson was visiting, he would also talk to the girls because one of the girls was in his class at school.

[122]
Mr Hicks was also a board member at the RSL in Chinchilla. He said that he saw Mr Desatge playing the pokies at the RSL occasionally in 2017, but more regularly – probably two or three days a week – in the later years that Mr Desatge and Ms Dawita rented the Chinchilla house.

[123]
Mrs Hicks recalled the family consisting of five people when they moved into the Chinchilla house: Mr Desatge, Ms Dawita, two girls aged about six and seven to eight (who must have been MT and MS) and a little boy who Mrs Hicks referred to as “TJ” (who must have been DT).

[124]
Mrs Hicks had retired from her job as a teacher and was at her house most days when the family moved into the Chinchilla house. She said that she soon noticed that all the windows at the Chinchilla house were closed, and all the curtains were drawn. She also noticed that sheets had been put up over the windows in a sunroom at the front of the Chinchilla house which had never had curtains in it before.

[125]
Mrs Hicks said that her grandson was in the same class at Chinchilla State School as the younger of the two girls. She said that if her grandson saw or heard the children in the backyard of the Chinchilla house, usually after school, he would go over and play with the two girls and DT.

[126]
Melissa Jackson worked as a Centrelink agent at the Family Support Service in Chinchilla in 2017. She was employed in that role for approximately 13 months. Ms Jackson described meeting Mr Desatge and Ms Dawita when she assisted Mr Desatge’s mother, Rhonda, with her Centrelink business. She said that the couple had four children: two older girls and two toddlers, a boy with curly hair and a girl with straighter hair. She said that she saw the family together as a group at least once a week.

[127]
Ms Jackson said that she would also see Ms Dawita walking with the children past the Family Support Centre on their way to school. She agreed when cross-examined by Mr Desatge’s counsel that she saw this almost every morning in the early part of 2017. She said she saw this from her car in the carpark. The path which Ms Dawita and the children used passed only a couple of metres in front of Ms Jackson’s car.

[128]
Ms Jackson said that when she saw Ms Dawita and the children walking to school the two older girls would walk near Ms Dawita. Ms Dawita would sometimes have one of the toddlers on her hip and one in a pram. She recalled one occasion when she saw the girl toddler walk beside the pram. She noticed that the girl toddler walked in a funny way and thought this was because she was learning to walk. She described the girl toddler’s manner of walking as a swagger. Ms Jackson agreed when cross-examined by Mr Desatge’s counsel that she could see the girl toddler’s face on that occasion, and she did not see any bruising on it.

[129]
Ms Jackson said that she also saw Ms Dawita come into the Family Support Centre with the children from time to time. On those occasions, Ms Dawita would have the pram with her. Ms Dawita generally used a self-service terminal and turned the pram away from the desk where Ms Jackson sat. Ms Jackson said that although she could

[130]
When cross-examined by counsel for Mr Desatge, Ms Jackson recalled an occasion when Ms Dawita came into the Family Support Centre with the children and there was a discussion between Ms Jackson and a co-worker about how cute the girl toddler was. That occurred in circumstances where Mr Desatge’s mother was also present, having attended for an employment interview with Ms Jackson’s co-worker. Ms Jackson said that on that occasion she stood up and looked at the girl toddler in the pram a short distance from her desk. She was able to see the girl toddler’s face. Again, Ms Jackson said she did not see any bruising on the girl toddler’s face on that occasion.

[131]
When cross-examined by counsel for Ms Dawita, Ms Jackson described Ms Dawita as quiet, polite and courteous. Ms Jackson never saw Ms Dawita discipline the children. The children always seemed to be well-behaved. Ms Jackson said that Ms Dawita appeared to be more tense and in a rush on occasions when Mr Desatge was also present.

[132]
Kira Brett worked as a teacher at the Chinchilla State School in 2017. She taught MS that year. Ms Brett became aware of the family because they were new to Chinchilla State School in 2017 and MS was a new student in her class. Ms Brett recalled that MS had an older sister, MT, and that there was also a younger toddler in the family. She said that MS referred to this toddler as her younger sister. Ms Brett recalled a specific occasion when MS brought a homework sheet to class and explained that her little sister had torn it up.

[133]
Ms Brett said that, at the start of 2017, she saw Ms Dawita at Woolworths with MT, MS and a toddler in a stroller. She said that she later saw Ms Dawita holding the same toddler, most likely when she met Ms Brett for a parent-teacher interview in April 2017. Ms Brett recalled the toddler being grizzly and grabbing on to Ms Dawita’s skin. She described the toddler as a being a girl wearing a pink singlet and having black curly hair. She said the child appeared to be between two and three years old. She said that did not see a fourth child with Ms Dawita on those occasions.

[134]
Isobel Banu was a childhood friend of Ms Dawita. Ms Banu gave evidence that Ms Dawita contacted her in early February 2017. In her evidence in chief, Ms Banu said that this contact occurred about two weeks before her own child was born on 13 February 2017. Ms Banu said that she received a text message unexpectedly from Ms Dawita asking if MsBanu could takeKaydence. At that time, MsBanu was living with Leisha Robinson, Ms Dawita’s cousin. She was aware that Ms Dawita had sent a similar request to Ms Robinson. Ms Banu sent amessage back to Ms Dawita asking why she wanted Ms Banu to take Kaydence. Ms Dawita did not respond to that message. Ms Dawita then telephoned Ms Banu. Ms Robinson also participated in that call. Ms Dawita asked if Ms Robinson or Ms Banu could take Kaydence. Ms Banu’s evidence was that Ms Robinson declined as she was pregnant at the time. In her evidence in chief, Ms Banu said she told Ms Dawita if she waited until Ms Banu’s baby was born that she would be happy to take Kaydence. Ms Banu’s evidence when cross-examined by Ms Dawita’s counsel was slightly different. She agreed that Ms Dawita telephoned after the exchange of text messages. She then said that during the telephone conversation she made arrangements for Ms Dawita to bring Kaydence to Ms Banu that same day, but that Ms Dawita did not follow through on those arrangements.

[135]
Leisha Robinson also gave evidence that she recalled being with Isobel Banu when Ms Dawita asked whether Ms Robinson could take Kaydence. She confirmed that conversation occurred when she was pregnant, but at the beginning of the pregnancy. She agreed that she told Ms Dawita she could not take Kaydence because she was pregnant.

MT’s evidence concerning the defendants’ treatment of Kaydence

First police interview

[136]
The police first interviewed MT on Monday, 9 September 2019.^[9] That interview took place at Chinchilla State School.

[137]
The previous Friday, 6 September 2019, MT had played a recording of an interaction between Ms Dawita and Mr Desatge to Marilyn Andrews, a guidance officer at the school. The recording captured Ms Dawita threatening to cut Mr Desatge’s throat.^[10]It was in that context that Detective Sergeant Ellis interviewed MT. Two officers from the Department of Child Safety were also present.

[138]
Officer Ellis commenced the interview by asking MT to tell him who was in her family. MT first identified Mr Desatge as her stepfather and Ms Dawita as her mother. After referring to MS, DT and DS, MT said that they had another sister, Kaydence.

[139]
In response to questions from Officer Ellis, MT said that Kaydence’s full name was Kaydence Mills and that she lived with an auntie in Innisfail but that she used to live with the family. When Officer Ellis asked how long ago Kaydence had lived with MT and the rest of the family MT initially said 11 months, but after a clarifying question from Officer Ellis she said that she thought Kaydence had lived with the family for 11 months. She said she did not know how long Kaydence had been living with her auntie in Innisfail, but that she left when MT was in year 4 at school. She said she thought that Kaydence was five years old (at the time of the interview).

[140]
At that point of the interview, MT confirmed to Officer Ellis that those were all the people in MT’s family. She then began talking about Kaydence again, unprompted by any questions from Officer Ellis. The relevant part of the interview proceeded as follows:

MT:	Umm, and you know the little girl named Kaydence?
Ellis:	Yeah. Who lives up in Innisfail?
MT:	Yeah, she lives up in Innisfail.
Ellis:	Mmm hmm.
MT:	Umm, one, one of the nights, cause Mum and that were, Mum and Big Tane were listening to music. Umm, one of the nights we sat in the room crying about her …
Ellis:	Mmm hmm.
MT:	Cause we missed her.

[141]
At that point MT’s voice began breaking. Officer Ellis asked her if she was okay.

[142]
After a pause, MT then proceeded:

MT:	And umm, and umm, some, I don’t think they told Child Safety care, but some of the nights, so she had to get potty trained cause she was three.
Ellis:	Mmm hmm.
MT:	And since we didn’t have enough money to buy a potty back then, umm, we put her on the toilet.
Ellis:	Mmm hmm.
MT:	Umm, but umm, we didn’t, Mum and Big Tane didn’t feed her proper food. So umm, she ate her own umm. Umm, am I allowed to swear here?
Ellis:	Yep.
MT:	She ate her own shit. And, umm, some nights if she didn’t want to go to the toilet, sooner or later, Big Tane would come in and umm, she wouldn’t, he wouldn’t go into the toilet. He’d bring her into the hallway and flog her at night time so we all didn’t see. Umm, with the cane. And umm, wooden one.
Ellis:	Mmm hmm.
Ellis:	Mmm hmm.
MT:	And umm, he’d umm, he’d always run us down, well, he’d always run me down because he knew I loved Kaydence. Umm, but he’d always run me down for it. So I didn’t really, I pretended to like, to be like the rest of them. Cause even, even [MS] did. But when we were, when we were in that room, he, she was bawling her eyes out too.
Ellis:	Yeah.
MT:	Umm, and umm, and she, she didn’t even sleep anywhere. She just slept in the toilet. Umm. And, but then like three days later we let her sleep on a couch. Umm, but it wasn’t anywhere near our rooms. Mum also, if she had to be left in the house by herself she wouldn’t. So Mum would have to cover her all up ’cause all the bruises she had.
Ellis:	Yep.
MT:	Umm, so when we’d go out, she’d even wear a hat at night time so people didn’t see her.
Ellis:	Mmm hmm.
MT:	Umm, and that was pretty much the last time we ever saw Kaydence.
Ellis:	Okay. Okay. Thank you for telling us that.

Second police interview

[143]
MT’s second interview with the police occurred on 12 November 2019.^[11] On that date she was interviewed by Plain Clothes Constable Chloe Marshall and Plain Clothes Acting Sergeant Belinda Young. That interview focussed more closely on Kaydence. After dealing with introductory matters, Officer Marshall asked MT to tell her everything about Kaydence. MT said:

“So, once we all got out of Child Safety care, umm, and Kaydence came with us out of Child Safety care, Mum met Big Tane. And, umm, they wanted her to go to the potty cause she was like two or three, I dunno, umm, and umm, and umm, umm, since they, they did have the money but I don’t think, I just don’t think they wanted to buy her a potty so they umm tried to train her to go to the toilet, on the toilet. Umm. And since she didn’t want to, or she didn’t, she’d sleep in the toilet, or, yeah, in the toilet. Umm, and, and umm, she’d, she didn’t eat properly. She didn’t, she ate like her own umm business. Umm, and, in the middle of the night, if, if, if, if we were all asleep, I think, if we were all asleep, umm, maybe in the middle of the night, or some other time, Big Tane would get like a bamboo stick out with sticky tape around it. Umm. But it wasn’t that long, sort of. Then there was, umm, then he hit Kaydence with it, cause she wouldn’t go to the toilet. And sooner or later she’d go all the way, she, she went to, I think her old foster parents house, or her grandma’s house or something, and umm, and umm, whatchamacallit, and, and, every time we’d try to go out in public Mum would always have to cover her up like fully. Like, like, long sleeve everything like that. Umm, and even if it was night time she’d still have to wear a hat cause people would still be looking, like at her. Umm, so yeah.”

[144]
Later in the second interview, Officer Marshall asked MT to tell her more about Kaydence and the potty. MT said:

“I just don’t think they wanted to get her a potty or, or they just didn’t have the money. I’m not really sure. But, I never hit Kaydence or anything. And sometimes she’d call my name and I’d have to ignore her cause Big Tane would be there teasing me about it cause, well, that’s what he does.”

[145]
MT also said:

“Umm, if, they didn’t really help her, so, like. If she got stuck in the toilet, like, if she fell in the toilet she’d have to get herself out. But she’d end up getting out anyway, so. Umm, she’d sleep in the toilet, cause she didn’t really have anywhere else to sleep. Umm, she kind of lived like an animal. She didn’t really, she ate her own business, so.”

[146]
When Officer Marshall asked MT to tell her more about sleeping in the toilet, MT said:

“Well, they didn’t really want her, I don’t know, like, I mean now that I think of it, I don’t, I just don’t think she had a bed. Well she could’ve but, I just don’t think they wanted her to have a bed. Cause she could’ve, well they just didn’t know where she would sleep. Cause I know they didn’t want her in their room. But she could’ve slept in our room. I just don’t think they thought of that.”

[147]
Officer Marshall then asked MT to tell her more about Kaydence getting stuck in the toilet. MT explained that Kaydence was too short to reach the floor and that once when she tried to reach the floor when sitting on the toilet she fell back into the toilet. MT said that she had seen this when she needed to go to the toilet and Mr Desatge and Ms Dawita told Kaydence to get off the toilet. MT also said that Kaydence did not really wear any clothes while she was in the toilet, but she would wear clothes if she was walking somewhere with the rest of the family.

[148]
When Officer Marshall asked MTto tell her about Kaydenceeating her own business, MT said that Mr Desatge and Ms Dawita fed Kaydence for the first couple of days when the family got to the Chinchilla house “but then when they wanted her to go in the toilet then they started treating her not good”. When asked to expand on that, MT said:

“They started flogging her if she went to the toilet, or hitting her with that bamboo stick.”

[149]
When Officer Marshall asked MT to tell her about the last time she remembered them flogging Kaydence, MT said:

“Umm, maybe at like 3 am or something. Umm, well, it wasn’t Mum. It was mostly Big Tane because he didn’t like Kaydence. Umm. So, yeah, at night time he was, he was in the hallway, he was flogging her with a bamboo stick. Wrapped around tape.”

[150]
When asked to expand on this, MT said that she got up and came out of her room at 3:00 am to go to the toilet. She said that she saw Mr Desatge was crouching down while Kaydence was standing up and Mr Desatge was hitting her. She said that she saw Mr Desatge hitting Kaydence on the back of the legs with the bamboo stick.

[151]
Officer Marshall then asked if MT knew “how many times”. It is not clear whether this question was directed towards how many times Mr Desatge hit Kaydence on the back of the legs on the occasion MT had just described, or on how many occasions she had seen Mr Desatge had hit Kaydence with the bamboo stick. MT’s answer was: “Probably more than once”. When prompted to further explain, shesaid “Umm, well, like I said, he didn’t really like her, so.”

[152]
MT then described the bamboo stick as being a light brown bamboo stick, wrapped around with black tape. She said that Mr Desatge owned the bamboo stick but she did not know where he kept it.

[153]
MT said that sometimes Kaydence would say MT’s name or MS’s name when Mr Desatge was hitting her but she could not do anything. MT explained that was because “Big Tane would like tease me, or something, I dunno what else would happen”.

[154]
MT said that after she had seen Mr Desatge hitting Kaydence with the bamboo stick she went straight back to bed. She said that the next morning she acted like nothing had happened because she knew she could not do anything. When asked who was there the next morning, MT said that it was Ms Dawita, Mr Desatge, MS, DT and DS.^[12]MT said that Kaydence was in the toilet laying down on the cold floor. She said that Kaydence was there in winter. She said that Kaydence was not wearing anything. When Officer Marshall asked MT to tell her more about Kaydence not wearing anything, MT said:

Well, I think Mum accepted the way Big Tane treated Kaydence so, she just treated us normally and, now that I look back on it, it’s kind of unfair.”

[155]
Officer Marshall then asked how Kaydence got treated differently. MT said:

“Abused pretty much. But I didn’t know that was abuse.”

[156]
MT said that Kaydence not wearing clothes would happen almost every day. She said that Kaydence did not sleep anywhere else but the toilet, except for the last day she was in the house. On that day, Kaydence slept on a red couch.

[157]
When Officer Marshall asked MT to tell her everything about the last day and the red couch, MT said that Mr Desatge and Ms Dawita put Kaydence on a red couch and then Kaydenceleft in the middle of the nightor early in the morning. Shesaid nobody saw her leave except for Ms Dawita and Mr Desatge. She then qualified her answer by saying: “Or maybe, maybe Big Tane did. I don’t know if Mum did”. MT said she did not see Kaydence leave.

[158]
Officer Young then asked questions directed towards what MT remembered about the last day she saw Kaydence in the Chinchilla house. MT explained where the various members of the family slept in the house. She said that Mr Desatge and Ms Dawita had a room at the front of the house and that DT slept with them in that room. MT shared a room with MS. She said that when Kaydence was on the red couch she slept where the family hung their clothes out, but that when she was not on the red couch she slept in the toilet.

[159]
MT then drew a sketch of the Chinchilla house.^[13] She marked the various rooms, including the toilet,andthe location of theredcouch asan oval shapeabovethe words “Were [sic] we hang the cloths [sic]”.

[160]
When Officer Young asked MT to tell her everything about Kaydence being put on the red couch, MT said:

“I think they put her on the red couch so the people that were coming to get her didn’t know they treated her so bad. Well, Mum and Big Tane treated her so bad.”

[161]
Officer Young then asked MT to describe Kaydence on the last day MT saw her. MT said that Kaydence was asleep on the red couch. She said she did not know what Kaydence was wearing, but she must have been wearing a shirt and some shorts. When Officer Young asked whether she saw any marks or bruises on Kaydence, MT said that she saw bruises on Kaydence’s head and face. She described Kaydence as being “pink and purple and some blue on her”. She also said that Mr Desatge and Ms Dawita had shaved Kaydence’s hair off so she did not get nits.

[162]
When talking about the bruises, MT also said that Kaydence had some scratches but said that she did not remember Kaydence getting scratched. She said that Kaydence might have got smacked a little. When Officer Young asked MT to tell her more about the scratches that she saw on Kaydence, MT said that they were not scratches but were probably slaps. She then volunteered that Ms Dawita sometimes hit Kaydence.

[163]
MT said that the marks which she had referred to as slaps were a line and a deep pink spot. She said she remembered those marks being on Kaydence’s arm and face. She said that Kaydence also had bruises all up her arm and on her legs.

[164]
Officer Young then asked MT how she knew that Kaydence was asleep on the red couch. MT said that Kaydence was closing her eyes. She said that Kaydence was not moving but that she could hear her breathing. She did not think that Kaydence was breathing properly. When Officer Young asked MT to tell her more about Kaydence not breathing properly, MT said: “Well they did flog her up pretty bad, so, I dunno”.

[165]
Officer Young asked MT who else was around in the house when she saw Kaydence for the last time. MT said that nobody else was there. MT saw Kaydence on the red couch when she went to the toilet at nighttime. She did not know where Ms Dawita and Mr Desatge were. Officer Marshallasked whether what MTwas describing about seeing Kaydence on the red couch happened at the same time MT had talked about earlier in the interview, when she got up to go to the toilet at 3:00 am. MT said that was a different time.

[166]
MT said that on the morning after she last saw Kaydence, everybody acted like normal. She said that Mr Desatge and Ms Dawita told the other children that Kaydence had gone back to somebody: either her Grandma or her old Child Safety parents. Later in the interview, Officer Marshall returned to the subject of Kaydence being picked up by someone. MT repeated that Mr Desatge and Ms Dawita told the other children that Kaydence had been picked up by someone. In this later part of the interview, however, MT said that they did not tell the other children who had picked her up.

[167]
In response to a question from Officer Marshall, MT said that she did not ask anyone where Kaydence was. She explained that this was because nobody knew where Kaydence was except for Ms Dawita and Mr Desatge. She did not ask them where Kaydence was because she was scared they would yell at her for bringing Kaydence up. She said that they did not like Kaydence. She then qualified this to say that she did not know if Ms Dawita liked Kaydence, but she knew that Mr Desatge did not like Kaydence.

[168]
Officer Marshall asked MT what Ms Dawita would do when things happened with Mr Desatge and Kaydence. MT said: “Nothing. She let it happen”.

[169]
When Officer Marshall asked MT to tell her more about Kaydence’s breathing, MT described it as sounding like the way a dog would breathe if it was sick.

[170]
When asked to describe how Kaydence was lying on the red couch, MT said that she was lying on her back with a sheet on her and her eyes closed. She thought it was a white sheet. She said that she thought Ms Dawita had thrown the sheet away and that Ms Dawita had thrown everything of Kaydence’s away because she did not like Kaydence. When asked to explain why shethoughtMs Dawita did not likeKaydence, MT said it was because Ms Dawita and Mr Desatge mistreated Kaydence. She said that she thought Ms Dawita liked her and MS because they were not treated any differently than DT and DS.

[171]
When MT was asked if she knew how Kaydence got the bruises which she had the last time MT saw her, MT gave the following answers:

MT:	Yeah. The bamboo stick.
Marshall:	Yep.
MT:	Mmm. Mum and Big Tane slapping her around.
Marshall:	Mum and Big Tane?
MT:	Maybe. I dunno if Big Tane slapped her around, but I know Big Tane hit her with a stick.^[14]
Marshall:	Yeah. And so, you said slapped around?
MT:	Yeah.
Marshall:	Who slapped her around?
MT:	Probably Mum.
Marshall:	Yep. So did you see Mum slap her around that last time?
MT:	No. Not really. I dunno.
Marshall:	So was there another time you saw Big Tane hit her with the bamboo stick?
MT:	Ah, yeah.
Marshall:	Yep, can you tell me about that time?
MT:	Umm. It happened a couple of times actually, so.
Marshall:	Yep, and whereabouts did you see the bamboo stick?
MT:	In the hallway.
Marshall:	Was it always in the hallway it happened?
MT:	Yes. Uh huh. I wasn’t, I wasn’t awake then.^[15]
Marshall:	Okay, so what makes you think it happened then?
MT:	Umm. I dunno. Cause I seen her hurt once. Could’ve happened a load of times.^[16]
Marshall:	Okay. That last time you saw her and she had the bruises on her face, do you know how she got those?
MT:	Umm. Same thing. Big hit. Big slap.
Marshall:	Did you see it?
MT:	(Unintelligible) I dunno. Maybe.
Marshall:	So you said maybe.
MT:	Yeah, maybe.
Marshall:	Did someone tell you not to tell us about the last time?
MT:	Umm. Mum told me not to tell youse anything, so.
Marshall:	Okay. When did she tell you that?
MT:	Last day. Every day.

[172]
Towards the conclusion of the interview, MT said that, although she was not keeping track of time, shethought that Kaydencehad lived in the Chinchillahouseforbetween two months and four months. MT also spoke about Mr Desatge’s mother moving into the Chinchilla house but she said that was after Kaydence lived at the house.

[143]
MT’s second interview with the police occurred on 12 November 2019.^[11] On that date she was interviewed by Plain Clothes Constable Chloe Marshall and Plain Clothes Acting Sergeant Belinda Young. That interview focussed more closely on Kaydence. After dealing with introductory matters, Officer Marshall asked MT to tell her everything about Kaydence. MT said:

Third police interview

[173]
MT’s third interview with the police took place on 9 June 2020.^[17]By that time, Mr Desatge and Ms Dawita had been arrested and charged with Kaydence’s murder and MT had been placed back in foster care. The interview was conducted by Detective Sergeant Ellis and Plain Clothes Senior Constable Eisentraut. A child safety officer was also present.

[174]
After confirming that the police wanted to talk to MT about Kaydence, Officer Ellis commenced by saying he had heard the family used to go camping a lot and asked MT to tell him about that. MT said that she was pretty sure that the family went camping after Kaydence left.

[175]
MT then volunteered that Mr Desatge and Ms Dawita told the other children that Kaydence went to live with her auntie. Later in the interview she said that Ms Dawita had told them that Kaydence went to stay with Robert Mills’ auntie. MT said that Kaydence had left the Chinchilla house at nighttime when MT was asleep in bed.

[176]
When asked to tell the officers about the first camping trip the family went on, MT said that they went to the Chinchilla weir on a Saturday afternoon in Mr Desatge’s car. She said they set up two tents: a smaller one, which MT and MS slept in, and a larger tent, which Mr Desatge, Ms Dawita, DT and DS slept in.^[18]She said that they went fishing, had some dinner and went to bed. Early the next morning they packed up and returned home to the Chinchilla house.

[177]
When Officer Eisentraut asked if Kaydence remembered hearing Mr Desatge and Ms Dawita talking about anything the first time the family was at the weir, Kaydence said no. There was then the following exchange:

MT:	So you thought they were talking about where they’re going to bury Kaydence, and where …
Eisentrau:	I’m just asking about whether you heard them talking about anything.
MT:	I’m pretty sure that’s what you were going to try to say, or try to come out of my mouth.
Eisentraut:	Well, do you remember anything?
MT:	No.

Pre-recorded evidence

[178]
MT’s evidence was pre-recorded on 14 November 2023.^[19] In her evidence in chief, MT said that she had watched the recordings of her police interviews before giving evidence and confirmed that what she told the police in those interviews was the truth.

Cross-examination by Mr Desatge’s counsel

[179]
When cross-examined by Mr Desatge’s counsel, MT said she could not remember if Ms Dawita hit Kaydence when the family lived in Tully.

[180]
When asked about the period the family spent at the Chinchilla Motor Inn, MT said that she could not recall Kaydence going to the pool or even leaving the cabin the family stayed in. She did not see Kaydence being toilet trained, and she did not see her being disciplined, during that period. She did not see either Mr Desatge or Ms Dawita hit Kaydence during that period.

[181]
MT said that she and MS were fed during the period the family stayed at the Chinchilla Motor Inn, but she did not remember seeing Kaydence being fed. She also could not remember whether Ms Dawita was bottle feeding or breast-feeding DT at that time.

[182]
MT confirmed that Ms Dawita disciplined Kaydence in the period Kaydence was at the Chinchilla house. She also agreed that Ms Dawita was responsible for feeding her and her sisters during that period but said that she did not see Ms Dawita feed Kaydence.

[183]
MT said that Kaydence was not allowed to play when she lived at the Chinchilla house and that Ms Dawita would stop MT and MS from playing with Kaydence. She agreed that she was present on one occasion when Mr Desatge had tried to give Kaydence some lollies, but that Ms Dawita had told him not to. She also agreed that there were times when Mr Desatge tried to feed Kaydence and Ms Dawita said no. She said she remembered one occasion when Mr Desatge cooked dinner for the family and Ms Dawita said that Kaydence was not sitting down to have dinner with the rest of the family.

184]
MT denied the suggestion that Mr Desatge never disciplined Kaydence and never hit her. She denied that what she said to the police in her second interview about seeing Mr Desatge flogging Kaydence in the hallway was either a mistake or that she had made it up. She said that the only time she saw this happen it was in the hallway. She said there were other times when she could hear Kaydence screaming. She described the stick Mr Desatge used to hit Kaydence as a bamboo stick with black duct tape around it.

[185]
MT said that she saw bruises on Kaydence before the last time she saw her having trouble breathing. She said that she saw bruising on Kaydence for as long as she was at the Chinchilla house.

[186]
MT confirmed that when she saw Mr Desatge hitting Kaydence with the stick, he was hitting her on the back of the leg, behind the knee. She said that she never saw Mr Desatge hit Kaydence around the head or on the back.

[187]
MT said that she did not see Ms Dawita ever use a cane on Kaydence. She did see Ms Dawita hit Kaydence. She said Ms Dawita would give Kaydence a fair slap. She did not see Ms Dawita punch Kaydence in the head. MT said that she saw deep pink marks on Kaydence where Ms Dawita hit her, but no bruises.

[188]
MT confirmed that the night when she got up to go to the toilet and saw Mr Desatge hitting Kaydence with the stick was a different night to when she got up to go to the toilet and saw Kaydence lying on the red couch and heard her breathing. She said that she got up to go to the toilet at around 3:00 am on both nights, although it was Mr Desatge’s counsel who first introduced the idea that MT had got up at 3:00 am when she saw Kaydence lying on the red couch.^[20]

[189]
MT frankly accepted that her Auntie Claire had said to her in November 2019, before her second interview with the police, that she should forgive Ms Dawita. She further accepted that, after hearing that, she thought she would forgive Ms Dawita a little bit but blame Mr Desatge the biggest.

[190]
Mr Desatge’s counsel cross-examined MT at some length about things she had said in her second police interview and suggested that MT must have reconstructed, or guessed, or made up what she said to the police about Mr Desatge hitting Kaydence with a stick. MT refuted those suggestions.

Cross-examination by Ms Dawita’s counsel

[191]
At the commencement of the cross-examination by Ms Dawita’s counsel, MT was asked whether she saw Mr Desatge hitting Kaydence with a stick the day before she had seen Kaydence lying on the red couch. MT said she did not recall that happening the day before.

[192]
Ms Dawita’s counsel then put a series of suggestions to MT, with which she agreed, concerning Mr Desatge’s use of the stick. MT agreed that sometimes she saw it with her own eyes but there were also many times when she could hear things: Kaydence making noises like she was in pain; Kaydence calling out MT’s name; something that sounded like something was hitting Kaydence; the sound of Mr Desatge’s voice or the sound of him grunting. MT confirmed that she heard these things more often as time progressed closer to the last time she saw Kaydence. Later in the cross-examination, MT said she remembered Mr Desatge talking about Kaydence’s dad’s friends flogging him when the family was still living up north. She said that story came out when Mr Desatge was mad, and that when he spoke about it he seemed to give Kaydence more attention in terms of hitting her. MT also agreed that before Kaydence left the Chinchilla house, Mr Desatge used the stick a lot. He did not use the stick again after Kaydence left.

[193]
MT agreed that, on the last occasion she saw Kaydence, some of the bruises she saw on Kaydence’s face were a straight line. She also confirmed that the bruises she saw on Kaydence started to become more and more noticeable as time progressed towards the last time she saw Kaydence, and that a lot of the time those bruises were straight lines.

[194]
MT agreed that, at the start, when Kaydence called out her name she would go and see what was wrong but that she stopped doing that because Mr Desatge would tease her and talk her down. MT agreed that life was easier for her, and Mr Desatge was nicer to her, when she pretended to also hate Kaydence.

[195]
MT agreed with the suggestion that Kaydence was treated normally when the family stayed at the Chinchilla Motor Inn and when they first moved into the Chinchilla house, but that this changed over time. She agreed that Mr Desatge and Ms Dawita started treating Kaydence differently after they began trying to toilet train her. She agreed that, when Kaydence was toilet training, she would sometimes hear Mr Desatge getting angry and swearing in the morning because there would be poo or wee around where Kaydence might have been. She agreed that she heard Mr Desatge say things like, “She needs to learn”; and that Ms Dawita would say, “I’ll clean it up, don’t worry”. She agreed that every time this happened, Mr Desatge seemed to get angrier and angrier.

[196]
MT confirmed that Kaydence was made to eat her own faeces a number of times. This happened after Kaydence had made a mess by going to the toilet on the floor. On those occasions Kaydence screamed and Mr Desatge said something like “Shut the fuck up” over and over in an angry manner. Mr Desatge took a plastic spoon and put Kaydence’s faeces on the spoon. He grabbed Kaydence and forced the spoon down her throat. He then said something to the effect of “I told you to shut the fuck up”. He forced the faeces down Kaydence’s throat to get her to stop crying.

[197]
MT said she vaguely remembered an occasion when Ms Dawita forced Kaydence to eat her own faeces. She agreed that the following occurred: Mr Desatge was cooking and held a knife in his hands; Kaydence was being loud about something; Ms Dawita was trying unsuccessfully to quieten Kaydence; Mr Desatge went up to Ms Dawita, put the knife towards her, and told her to put faeces down Kaydence’s throat; Ms Dawita looked very upset; Mr Desatge looked very angry.

[198]
MT agreed that the occasions when Mr Desatge forced Kaydence to eat her own faeces occurred closer to the time that she last saw Kaydence; and the closer in time to the last time that she saw Kaydence it happened more often. She also confirmed that as time progressed towards the last time she saw Kaydence, Mr Desatge seemed to be getting angrier and angrier at Kaydence.

[199]
MT confirmed that she remembered an occasion, close in time to the last time that she last saw Kaydence, when the family bought KFC and were eating it at the Chinchilla house. She agreed that Ms Dawita went to give Kaydence some of the KFC but that Mr Desatge said something along the lines of “Don’t feed that ugly, possessed thing”.

[200]
MT did not agree with the suggestion by Ms Dawita’s counsel that Ms Dawita fed Kaydence proper food when she was living at the Chinchilla house. MT said that she never saw Ms Dawita feed Kaydence proper food. She agreed that she never saw Mr Desatge give Kaydence any proper food.

MS’s evidence concerning the defendants’ treatment of Kaydence

First police interview

[201]
The police first interviewed MS on Monday, 9 September 2019.^[21]That interview took place at Chinchilla State School. The interview was conducted by Officer Ellis. Two officers from the Department of Child Safety were also present. MS did not say anything about Kaydence during that interview.

Second police interview

[202]
MS’s second interview with the police occurred on 13 November 2019.^[22]On that date she was interviewed by Detective Sergeant Michelle Goodman.

[203]
After asking questions about who was in MS’s family, Officer Goodman asked if she had another sister. MS confirmed that she did and said that her name was Kaydence. MS then said:

“… shewouldn’t go to thetoilet properly so Mum and my stepdadwould always hit her and smack her. And, umm, then when we moved into Chinchilla, like a few days after that, umm, we got our own house and then, because we lived at a hotel first and then in Chinchilla, and then we got a house. And then, a few days later, we, Mum in the night she moved, she moved Kaydence to our auntie.”

[204]
When Officer Goodman asked how she knew that Ms Dawita moved Kaydence to her auntie, MS said that she woke up and saw two people. She also said that Ms Dawita told her that Kaydence had gone to her auntie. She did not know which auntie Kaydence had gone to.

[205]
When Officer Goodman asked how she knew that Ms Dawita moved Kaydence to her auntie, MS said that she woke up and saw two people. She also said that Ms Dawita told her that Kaydence had gone to her auntie. She did not know which auntie Kaydence had gone to.

[206]
MS said that Kaydence would normally sleep in the bathroom, but that she never got to see her there because she did not use the bathroom with a shower in it, only Mr Desatge’s mother did.

[207]
When Officer Goodman asked what would happen to Kaydence if she got into trouble, MS said that Kaydence would be smacked by Mr Desatge with a wooden stick with duct tape around it. She said that she remembered seeing that happen but did not know when she last saw it happen or where on her body Mr Desatge would hit Kaydence.

[208]
In response to questions about how the other children were treated, MS said that she did not get hit with the stick. Later, she said that DT and DS did not get into trouble much and, when they did, would only get a little smack.

[209]
When Officer Goodman asked what made Kaydence different and why she got hit with the stick, MS said that it was because Kaydence could not go to the toilet properly “and they growled at her”. She said that Kaydence had to stay in the toilet until she learned how to go properly. She said Kaydence did learn “but they still didn’t let her out”. Kaydence did not play with the older girls because she needed to stay in the toilet.

[210]
MS said that she saw Kaydence with bruises. The bruises were black and purple. They were on Kaydence’s face, belly, arms, back and feet. She said that the bruises were from Mr Desatge hitting Kaydence with the stick. She said this happened in the bathroom.

[211]
After Kaydence left, MS did not see the wooden stick and no one else in the house got smacked with the wooden stick.

[212]
In terms of whether Kaydence was properly fed, MS said that Kaydence was not there when MS ate dinner; she was still in the bathroom.

Third police interview

[213]
MS’s third interview with the police took place on 9 June 2020.^[23]The interview was conducted by Detective Sergeant Ellis and Plain Clothes Senior Constable Eisentraut. A child safety officer was also present.

[214]
During the interview, MS became upset when Officer Ellis asked her about thefamily going camping. She said she was unable to remember anything about that.

Pre-recorded evidence

[215]
MS’s evidence was pre-recorded on 14 November 2023.^[24]In her evidence in chief, MS said that she had watched the recordings of her police interviews before giving evidence and confirmed that what shetold the policein those interviews was the truth.

Cross-examination by Mr Desatge’s counsel

[216]
At the outset, MS rejected the suggestion that her statements to the police were exaggerated, made up or things she had guessed at. She also said that she had not discussed with MT what she thought might have happened to Kaydence or the last night that she recalled seeing Kaydence.

[217]
MS confirmed her recollection was seeing two people with Kaydence outside the bathroom: Ms Dawita and another person that MS thought was a woman. MS did not hear Kaydence breathing in a funny way.

[218]
When asked about the time the family spent at the Chinchilla Motor Inn, MS confirmed that things were good but said that Kaydence was kept inside the room. During that period Kaydence slept in the bathroom.

[219]
When asked about the period after the family moved into the Chinchilla house, MS rejected the suggestion that Kaydence mainly slept on the red couch. She said that Kaydence slept in the bathroom. She never saw Kaydence sleeping in the toilet, which was separate from the two bathrooms in the Chinchilla house.

[220]
MS said that she did not remember anyone toilet training Kaydence at the Chinchilla house and she did not see anyone force feed Kaydence with faeces. She said she did not remember ever seeing Mr Desatge threaten Ms Dawita with a knife.

[221]
When it was first suggested to her that Mr Desatge never hit Kaydence with a stick, MS’s answer was “Not that I remember”. Later, MS rejected the suggestion that she had lied to the police when she said that Mr Desatge had hit Kaydence with a stick. She said that she saw it happen in the bathroom, but she did not know where on Kaydence’s body Mr Desatge hit her, how hard he hit her or how many times he hit her. When asked about the bruises she saw on Kaydence, MS said that these were all over Kaydence’s body. She was not able to say when she first saw those bruises.

[222]
MS said that she did not see Ms Dawita hit Kaydence across the back of the head.

[223]
As to whether Kaydence was properly fed, MS said that sometimes Kaydence had dinner with the rest of the family but other times she was not there. She said she did not know whether that was because Ms Dawita would not allow Kaydence to be at the table.

Cross-examination by Ms Dawita’s counsel

[224]
MS agreed that she saw Mr Desatge hitting Kaydence with a wooden stick at the Chinchilla house. Sometimes she saw that happen in the bathroom. Other times she heard Kaydence making a noise that sounded like she was hurt and, coming from the same direction, the sound of something hitting something and the sound of Mr Desatge’s voice. She also agreed that after Kaydence left the Chinchilla house, she did not see the stick again.

Ms Dawita’s statements about Kaydence

[225]
Maureen Yasserie is Ms Dawita’s cousin. Ms Yasserie gave evidence that she spoke to Ms Dawita in about June 2017 at Michael Dickman’s funeral in Tully. Ms Dawita attended that funeral with MT, MS and DT. When Ms Yasserie asked where Kaydence was, Ms Dawita said that Kaydence did not want to come up with her but had wanted to stay with Mr Desatge on the Gold Coast.

[226]
Chantal Dickman is Ms Dawita’s half-sister. Ms Dickman gave evidence that she spoke to Ms Dawita at Michael Dickman’s funeral in 2017. Kaydence was not with Ms Dawita and the other children at the funeral. When Ms Dickman asked about Kaydence, Ms Dawita said that she was saying with a family friend from Kaydence’s childcare centre in Chinchilla.

[227]
Leighton Dickman is Ms Dawita’s half-brother. Mr Dickman and his wife, Pamela Dickman, both gave evidence that Ms Dawita returned to Tully with MT and MS for the opening of the tombstone of Mr Dickman’s uncle. Mr Dickman said that on that occasion Ms Dawita brought MT, MS and DT with her. Mr Dickman asked Ms Dawita where Kaydence was, and Ms Dawita told him that she was with an Auntie Sarah in Brisbane. Pamela Dickman’s evidence was that Ms Dawita said she had left Kaydence in Chinchilla with Mr Desatge.

[228]
Claire Burns is Ms Dawita’s third cousin. She spoke to Ms Dawita on the phone when Ms Dawita was living in Chinchilla. Ms Burns asked where Kaydence was. Ms Dawita told her that Mr Mills’ sister had picked Kaydence up at night and that she was fine and in no harm. When asked why she gave up custody of Kaydence, Ms Dawita explained that she did not want to deal with the father, Mr Mills, being abusive. Ms Dawita said she was looking over her shoulder and Mr Mills was threatening her.^[25]

[229]
ChristopherDawita is Ms Dawita’s olderbrother. Helives with his long-termpartner, Sophie Lind. Shortly before Christmas 2017, Ms Dawita visited Christopher Dawita and Sophie Lind in Townsville. Ms Dawita stayed for a few weeks at their house with four children – MT, MS, DT and DS – before Ms Dawita said that she and the children were going back home to Mr Desatge. When Christopher Dawita asked Ms Dawita where Kaydence was, Ms Dawita said that she had left Kaydence with Mr Desatge.^[26]During the same visit, Ms Dawita told Sophie Lind that she had left Kaydence with family in Brisbane.^[27]Noreen Lind, Sophie Lind’s daughter, was also living in the house when Ms Dawita visited. Ms Dawita told Noreen Lind that she had left Kaydence with Mr Desatge’s family in Brisbane.^[28]

[230]
Simon Dawita, Ms Dawita’s father, lives in Tully. Sometime between 2017 to 2019, Ms Dawita told her father that Kaydence did not move with the rest of the family to Chinchilla because Kaydence had been put into foster care in Innisfail, as Ms Dawita had too many children to handle. In 2019, before November of that year, Ms Dawita brought her children to visit for a funeral in Innisfail. Kaydence was not among them. When asked about Kaydence, Ms Dawita said Kaydence was good, had started grade one and was staying with the same family in Innisfail. Ms Dawita told her father that she would send him photos of Kaydence in her school uniform. He told her that she should try to get Kaydence back, and Ms Dawita said she would try.^[29]

[231]
Tammy Day is Ms Dawita’s auntie. At some point after Ms Dawita moved to Chinchilla, she told Ms Day, that she gave Kaydence to a lady in Chinchilla. Ms Dawita told Ms Day that she organised this herself and did not use the Department of Child Safety to do it. Ms Dawita told Ms Day that the lady was a neighbour and that she had a daughter that was older than Kaydence.^[30]

[232]
Alexandra Fort is a Child Safety officer employed with the Department of Child Safety. On 5 November 2018, Ms Dawita called Ms Fort. During this conversation, Ms Dawita told Ms Fort that Kaydence was the biological daughter of Robert Mills. This was the first time Ms Dawita had mentioned Kaydence to Ms Fort. Ms Dawita further advised that Kaydence was staying with her auntie in Brisbane. She also said that Kaydence was not in the Chinchilla house at the time of a domestic violence incident. Ms Dawita stated that Kaydence regularly went to stay with her auntie to give Ms Dawita a bit of a break. However, Kaydence was still in Ms Dawita’s care.^[31]

[233]
On 13 November 2018, Ms Fort attended the Chinchilla house with Melissa Bebbington. During their discussions, Ms Dawita told Ms Fort and Ms Bebbington that Kaydence was in her care, and she still had full decision-making responsibility. Ms Dawita stated Kaydence lived with her Auntie “Jessica” but could not provide her surname. She said Kaydence lived with her because she adored her very much. Ms Dawita also could not provide a contact number and said that Kaydence was not attending any day care facility.

[234]
Isobel Banu gave evidence that, in about May 2019, she saw Ms Dawita when Ms Dawita returned for the funeral of Ms Banu’s brother (Ms Dawita’s cousin). Ms Dawita brought her other children to the funeral, but not Kaydence. Ms Dawita told Ms Banu that Kaydence was with family in Brisbane.

[235]
Lyla Oakley is a friend of Ms Dawita. She lives in North Queensland. Between the middle of 2019 and the end of that year, Ms Dawita told Ms Oakley that Kaydence was living with Robert Mills. Ms Dawita also stated that she was trying to get Kaydence back and wanted all her children to live together.^[32]

[236]
Leisha Robinson gave evidence that Ms Dawita visited her place in Cairns for about two weeks in September 2019. Ms Dawita brought DT and DS with her. During that visit, Ms Dawita told Ms Robinson not to tell anybody, but that she had given Kaydence away to a family in Brisbane. Ms Dawita explained that she did not want any conflict with Kaydence’s father and his family. She repeated her request to Ms Robinson not to tell anyone about what she had said.

[237]
On 24 October 2019, Ms Dawita was being driven back to the Chinchilla house by Wendi Lindsay and Kristy Dodd. Both Ms Lindsay and Ms Dodd worked for the Goolburri Aboriginal Health Advancement Company. During the drive, they received a call from Child Safety officers. This call was put on speaker via the car’s Bluetooth device. At one point, department officers began talking about Kaydence. Ms Dawita had never mentioned Kaydence to Ms Lindsay before. Ms Dawita said that Kaydence was living with her grandmother.^[33]

[238]
When they got off the phone, Ms Lindsay and Ms Dodd asked Ms Dawita about Kaydence. Ms Dawita stated that Kaydence’s father had held her captive in a house for nine months, and when the baby was born, she had to give the baby to the father’s grandmother. She said that she saw Kaydence, but it was the best for her.^[34]

[239]
On 5 November 2019, Ms Lindsay went back to the Chinchilla house with Child Safety officers and spoke to Ms Dawita again. Ms Dawita told Edin Fleming, a Child Safety officer, that Kaydence was in Brisbane. Ms Dawita said she was scared of Kaydence’s father finding them, so she went on the internet and contacted a family member who came up and took Kaydence. Ms Dawita stated she needed a break, but still had contact with Kaydence and had last seen her one year earlier. She did not know the name of the person who had Kaydence and had no contact details for her. Ms Dawita said she had deleted the person from her Facebook and she did not know where she was. She stated that when the person came up to take Kaydence, she explained to Ms Dawita how she was related. Ms Dawita stated that Robert Mills was not related to this person. Ms Dawita said she gave Kaydence to this person and then the person left. When Ms Dawita was asked about Kaydence’s whereabouts, she said she met a person online and did not know how Kaydence was related to the person she was currently living with.^[35]

[240]
During that visit, Ms Dawita was asked about Kaydence being locked in the toilet, made to eat her own faeces and being physically abused. Ms Dawita denied this.^[36]

[241]
On 12 November 2019, Ms Lindsay again spoke to Ms Dawita about Kaydence’s whereabouts. This was in the context of the police having removed DT and DS from Ms Dawita’s care. When Ms Dawita was asked why the police did that, she responded that it was probably because of “that other kid”. When asked to clarify which kid, she said “Kaydence”. Ms Dawita then went on to explain that she had told Officer Ellis that she had given Kaydence to “Sarah” but, when asked, could not provide Sarah’s surname. Ms Dawita said that she had seen Kaydence about 12 months ago. She then said she had given Kaydence to the “grandmother” when Kaydence was three.^[37]

[242]
In December 2019, Ms Fleming spoke to Ms Dawita about custody issues surrounding DC, who was about to be born. During that conversation, Ms Dawita said “So you’re not going to give me my kids unless I give you Kaydence”.^[38]

Ms Dawita’s consultations with the Western Downs Mental Health Service

[243]
June Cook worked for the past 24 years as a clinical nurse at the Western Downs Mental Health Service. She first had contact with Ms Dawita on 8 November 2018, following a mental health referral from Ms Dawita’s general practitioner in Chinchilla. On that date, Ms Cook arranged for Ms Dawita to attend the Chinchilla mental health unit for a mental health assessment.

[244]
Ms Cook then undertook that assessment of Ms Dawita on 19 November 2018. During the assessment, Ms Dawita told Ms Cook that her head was spinning and she was worried that she was going insane. Ms Dawita said that she was worried about going back on drugs. She said that she had thoughts of hanging herself two months prior to the assessment and had plans to go and buy a rope but did not go further with that plan. She reported auditory and visual hallucinations which took the form of negative self-talk. During the assessment, Ms Dawita also told Ms Cook that her ex-partner was still living at the Chinchilla house and that he helped with the care of the children. Ms Dawita told Ms Cook that one of her children, Kaydence, was not living in the Chinchilla house with them but was living with an aunt in Brisbane because Ms Dawita could not care for all the children.

[245]
Ms Cook referred Ms Dawita to a drug and alcohol service and made an appointment for her with a consultant psychiatrist. Ms Dawita attended those appointments on 4 December 2018 and 16 January 2019. It was recommended that Ms Dawita continue counselling with Ms Cook.

[246]
Ms Dawita next consulted with Ms Cook on 30 January 2019. On that day, Ms Dawita looked visibly distressed. She told Ms Cook that she had a secret that she had been hiding from everyone and was afraid that, if she divulged her secret, she would lose her children. Ms Dawita said that the secret involved her ex-partner and one of her children. She indicated that an incident had happened some time ago and she was having trouble coping with her knowledge of it. She said she felt extremely guilty that she had not done anything about it but was fearful that her ex-partner’s family would not believe her and would seek retribution. She said that they thought Ms Dawita was “nuts” and that she would be put away in a rehabilitation facility. Ms Dawita told Ms Cook that it was the stress of knowing what had happened that was hurting her. She indicated that she still loved her ex-partner, but thought that she may cope better without him being at the house with the children. Ms Dawita told Ms Cook that she was waking up every morning angry and finding it difficult not to snap and lose her temper over the secret she was keeping.

[247]
Based on what Ms Dawita had said during the consultation on 30 January 2019, Ms Cook made a referral to Department of Child Safety. Following that referral, Ms Dawita disengaged from counselling with Ms Cook despite Ms Cook’s attempts to contact her.

[248]
Ms Cook’s next contact with Ms Dawita came when Ms Dawita telephoned her unexpectedly on 9 January 2020. Ms Dawita told Ms Cook that she was pregnant, felt depressed and had suicidal thoughts prior to the previous Christmas. She said that she had thought about slashing her wrists but decided against it because of the baby. When Ms Cook asked what was going on, Ms Dawita referred to the disappearance of a child. She said that Ms Cook could read about that in the paper. She did not want to talk to Ms Cook about the missing child. Instead, she wanted to talk about her distress at Child Safety having removed her other children from her care and the likelihood that her new baby would be taken away when it was born. When Ms Cook sought to redirect Ms Dawita to the subject of the missing child, Ms Dawita said that she had handed care of the child over to an ex-partner’s aunt, that she had stayed in contact with the aunt for a little while but then went off the radar and lost contact.

The investigation into Kaydence’s disappearance

[249]
Following the interview with MT at Chinchilla State School on 9 September 2019 (see [136]-[142] above), the two child safety officers who were present during that interview, Edin Fleming and Cherie Hatchman, attended the Chinchilla house. Ms Fleming observed that DT and DS were home at this time. MT and MS arrived home at the same time Ms Fleming and Ms Hatchman arrived. Ms Fleming did not see any other children at the residence.^[39]

[250]
On 10 September 2019, Ms Fleming spoke to Ms Dawita by telephone. Ms Dawita told Ms Fleming that Kaydence’s biological father was Robert Mills. Ms Dawita also advised Ms Fleming that she was taking the four children – MT, MS, DT and DS – to Mackay and would be staying with her cousin, Claire Burns.^[40]

[251]
On 15 October 2019, Ms Fleming spoke with MT about Kaydence.^[41]Ms Fleming then conducted a telephone interview with Ms Dawita on 24 October 2019, during which shetalked about Kaydence(see [237] above). Shethen conducted an in-person interview with Ms Dawita at the Chinchilla house on 5 November 2019 (see [239] above). After she spoke with Ms Dawita on 5 November 2019, Ms Fleming attended the Chinchilla library and spoke with Mr Desatge. During that conversation, Mr Desatge told Ms Fleming that he did not know where Kaydence was and that she should speak to Ms Dawita.^[42]

[252]
On 8 November 2019, Ms Fleming contacted Officer Ellis and requested his assistance in conducting inquiries to find Kaydence. Officer Ellis attended the Chinchilla house that evening. Mr Desatge was not present, but Officer Ellis spoke to Ms Dawita about Kaydence. Ms Dawita asked why Officer Ellis was asking questions about Kaydence. She said that Kaydence was safe but did not know where. She said that she gave Kaydence up approximately two and a half years before to an Auntie Sarah due to the fear she had of Robert Mills and his threats to kill her and Kaydence. Shesaid that Auntie Sarah was Kaydence’s biological aunt. When Officer Ellis asked for contact details for Auntie Sarah, Ms Dawita said she did not have any and did not know Auntie Sarah’s full name or her current address. When Officer Ellis asked further questions, Ms Dawita said she thought Auntie Sarah was living somewhere in Brisbane. Ms Dawita told Officer Ellis that she had not spoken to Kaydence or Auntie Sarah since handing Kaydence over two and a half years earlier.

[253]
On 10 November 2019, Officer Ellis attended the Chinchilla house again and spoke with Ms Dawita. Mr Desatge’s mother, Rhonda, was also present. Ms Dawita maintained that she did not know where Kaydence was, but that Kaydence was safe. She confirmed that Kaydence had been in the care of the Department of Child Safety for almost two years before she was returned to her care. That occurred when she was living in Tully. She said she moved to Chinchilla with Mr Desatge, not long after getting Kaydence back, due to ongoing violence issues with Robert Mills and his threats to kill her and to try find herand Kaydence. Shestated that Mr Mills continued his threats towards her, and his attempts to find her and Kaydence, while she resided in Chinchilla. Although Mr Mills never came to the Chinchilla house, he got as close as Toowoomba. Ms Dawita said that she feared Mr Mills might attempt to hurt her and Kaydence, so she decided to give Kaydence up. When Officer Ellis asked why Ms Dawita would give Kaydence to someone on Mr Mills’ side of the family, where it would be easier for him to gain access to the child, she said that no one in Mr Mills’ family speaks with him. When Officer Ellis asked Dawita why she did not place Kaydence with members of her own family, she said that her family still spoke with Mr Mills, and she feared that they would tell him where she was.

[254]
When Officer Ellis asked Ms Dawita about her prior knowledge of Auntie Sarah, Ms Dawita said she had not met her before giving Kaydence up to her. She said that she looked up relations of Mr Mills on Facebook and found Auntie Sarah. She told Officer Ellis that she sent a Facebook message to Auntie Sarah and Auntie Sarah responded. She said she told Auntie Sarah her story and Auntie Sarah agreed to take Kaydence. A few days later, Auntie Sarah came to the Chinchilla house and picked Kaydence up. Ms Dawita was not able to describe the car Auntie Sarah arrived in or provide an exact date when that occurred. Ms Dawita provided a description of Auntie Sarah. She said that she had a mobile telephone number for Auntie Sarah but had lostitabout six months after Kaydenceleft. Shesaid shehadmadesomesearches on the internet after that but could not find Auntie Sarah. She had not made any attempt to locate Kaydence over the preceding two years. Ms Dawita said that she did get a call from Auntie Sarah on a private number about a year prior. Auntie Sarah told her that they were going to enrol Kaydence in kindergarten and that they might be moving to the Ipswich area.

[255]
On 15 November 2019, police obtained a telecommunications interception warrant for both Ms Dawita’s mobile telephone and Mr Desatge’s mobile telephone.

[256]
On 3 December 2019, police executed a search warrant at the Chinchilla house. A police dog handler attended as part of that search with a dog trained in the detection of human remains. The dog searched the backyard of the property, including an outhouse with a blue wooden door. Upon entering that outhouse, the dog began giving an indication that he had detected the odour of decomposing human remains in both the outhouse and on the wooden door. The dog handler attempted to move the dog on from the outhouse, but the dog’s indications intensified. There were no other indications by the dog in any other area of the property.^[43]During the course of the search, the police excavated the backyard of the Chinchilla house.

[257]
Shortly after 8:00 pm on 3 December 2019, police recorded a call made from Ms Dawita’s mobile telephone. The prosecution tendered a copy of that recording at the request of Ms Dawita’s counsel. It was admitted over the objection of Mr Desatge’s counsel.^[44]The recording commenced before the call was answered by a person who Ms Dawita refers to as “Mum”. It captures Mr Desatge talking to Ms Dawita, initially while she waited for the call to be answered and then when Ms Dawita began talking to the recipient of the call. Not everything which Mr Desatge said can be heard clearly. After listening to the recording, the following is what I was able to hear:

[258]
The recording continues, but I was unable to hear what Mr Desatge or Ms Dawita said in the latter part of the recording. As Officer Ellis said during his evidence, Mr Desatge appeared to be affected by alcohol at the time this exchange was recorded.

Mr Desatge’s statements about Kaydence to law enforcement participants

[259]
Junior Savaliga (an assumed name, see [59] above) acted as a law enforcement participant in the investigation into Kaydence’s disappearance.

[260]

[261]

[262]

[263]

[264]

[265]

[266]

[267]

[268]

[269]

[270]

[271]

[272]

[273]

[274]

[275]

[276]
On the evening of 20 February 2020, Savaligaand Mr Desatgemet a law enforcement participant who used the name Julian Takai (an assumed name, see [59] above). The three men then had dinner together.

[277]
After dinner, Takai had a conversation with Mr Desatge. During that conversation, Takai asked Mr Desatge about the missing girl, Kaydence. Mr Desatge told Takai that hewas at workat the time the child left andthat hereturnedto find that his partner had given the child to an auntie.^[45]

[278]
Mr Desatge subsequently told Savaliga about his conversation with Takai and what he had said about being at work at the time the child left and returning to find the child gone with her auntie. He also told Savaliga that the police had asked him about the child, and he did not find it weird that the child went with an unknown auntie.

[279]

[280]

[281]

[282]

Mr Desatge’s conversation with Officer Savaliga on 28 February 2020

[283]
On 28 February 2020, Savaliga travelled to Chinchilla to pick Mr Desatge up and drive him to Surfers Paradise . The prosecution tendered a recording of a conversation that took place between Savaliga and Mr Desatge as they drove between Chinchilla and Dalby.^[46]

[284]
During that conversation, Mr Desatge told Savaliga that the police had asked him about evidence of where the missing child was living. He said that he told the police the same thing as last time they asked him: that he was at work, he came home, and the child was gone. Mr Desatge told Savaliga that he thought his missus (Ms Dawita) knew more than she was telling him, but that she did not look “guilty or suss or anything”. Mr Desatge said that the police had asked him whether it seemed suspicious to him that he had come home and the child was gone. He explained that when he grew up, kids got “tossed off with their auntie or something and gone”.

[285]
Desatge then spoke about wanting “this shit” (a reference to the police investigation into Kaydence’s disappearance) over with so he could go on with his life. He referred to his children having been gone for seven months (a reference to their removal by Child Safety).

[286]
Mr Desatge went on to tell Savaliga that the police had taken evidence from the Chinchilla house and sprayed luminol everywhere to try and find blood. Savaliga asked Mr Desatge if he thought the police did not believe that there was an auntie looking after the missing child. Mr Desatge confirmed that was what the police were saying to him. Mr Desatge went on to refer to media stories about the police looking for human remains and talked about the various things the police had taken as evidence from the Chinchilla house.

[287]

[288]
Savaliga and Mr Desatge arrived on the Gold Coast at about 1:00 pm on 28 February 2020.

[289]
The next morning, Savaliga and Mr Desatge had breakfast Shortly before 4:00 pm, they were met by another law enforcement participant who escorted them to an apartment

Mr Desatge’s first conversation with Officer Sala on 29 February 2020

[290]
Upon entering the apartment, Savaliga introduced Mr Desatge to another law enforcement participant (Detective Senior Sergeant Adrian Sala)

[291]
Shortly after 5:00 pm, Sala said that he needed to talk to Savaliga and Mr Desatge. Once the other law enforcement participants left the apartment, Sala went outside onto the balcony and smoked a cigarette while Savaliga remained inside with Desatge alone. The prosecution tendered a recording of the conversation which then took place between Sala and Mr Desatge.^[47]

[292]

[293]
Mr Desatge said that, when questioned by the police, he told them that he was Mr Desatge again maintained that he at work and came back to find that his missus (Ms Dawita) had passed the child to an in-law of her ex, Robert Mills. He said that they told police that her name was Sarah Mills. Mr Desatge said he did not know any more because he was at work.

[294]
Sala asked how long ago it happened and Mr Desatge said that it was three or four years ago.

[295]
Mr Desatge maintained that what he had told Sala was all that he knew. He was working for QGC when it happened. When he came home from work he asked Ms Dawita where the baby was. Ms Dawita told him that she had passed her on to an in-law. Mr Desatge asked who the in-law was, and Ms Dawita said it was Sarah Mills, Robert Mills’ auntie. Mr Desatge asked whether Ms Dawita had her number. Ms Dawita said that she did not, and Mr Desatge asked her why she did not have the number because “you don’t just give your kid away to anybody”.

[296]

[297]
Mr Desatge repeated that he did not know what happened because he was at work. He said that Ms Dawita knew more than him and that he had said this to the police.

[298]
Mr Desatge again maintained that he had told Sala allheknew. Hesaid that when heleft forwork in themorning Kaydence was asleep in bed and that the older girls had seen her there. He said that the older girls noticed that Kaydence was gone when they came home from school and asked Ms Dawita where Kaydence was and Ms Dawita told them the same thing: that she went with the in-law, Auntie Sarah Mills. Mr Desatge maintained that was what Ms Dawita told him. He said that Ms Dawita must know more than she was saying and that he would have to find her and ask her what was going on.

[299]
Mr Desatge continued to say that he did not know anything else. He said Mr Desatge talked as they walked around Broadbeach. Mr that Ms Dawita was not telling him the whole story. He said he did not know what Ms Dawita had done with Kaydence, only that she told him that she gave her to Sarah Mills.

[300]

[301]
Mr maintained that he had told Sala everything he knew.

[302]
Sala then called Savaliga back into the room.

[303]
Savaliga then left the apartment with Mr Desatge at about 5:45 pm and the two men talked as they walked around Broadbeach. Mr Desatge maintained that the account he had given, about coming home to find Kaydence had gone with an auntie, was true. Mr Desatge told Savaliga that Ms Dawita was the person that had all the answers, not him. He said that Ms Dawita knew more than she had told him.

[304]
They walked back to the apartment building where they met another law enforcement participant who took them up to the apartment at about 6:52 pm.

[305]
Savaliga and the other law enforcement participant left shortly after returning to the apartment with Mr Desatge. Sala then spoke to Mr Desatge alone for a second time. The prosecution tendered a recording of the conversation which then took place between Sala and Mr Desatge.48

[306]

[307]

[308]

[309]
When Sala asked what Mr Desatge meant when he had previously said that Ms Dawita was not telling him everything, Mr Desatge recounted what he had previously told Sala about the questions he asked Ms Dawita, and the answers Ms Dawita gave after he came back from work and found Kaydence gone. Mr Desatge hat he did not know why Ms Dawita would give Kaydence away. He then said Ms Dawita might have something against Robert Mills because he had tortured her, kept her away from the children and starved the children. He said that Ms Dawita did not want anything to do with Kaydence.

[310]

[311]

[312]
It was at this point that Desatge changed his account to Sala.

[313]
Mr Desatge’s voice became emotional when he said the following:

My partner, like yeah, my partner, like, said, like. She fell down the stairs and hit her head and stuff. She had a fit. She couldn’t breathe.49

[314]
Mr Desatge said he wanted to take Kaydence to the hospital, but Ms Dawita refused because she would lose her children. He said that Ms Dawita buried Kaydence. When Sala asked where Ms Dawita had buried Kaydence, Mr Desatge said it was at the weir.

[315]
Sala asked where Mr Desatge was when this happened. Mr Desatge responded:

It was at this point that Desatge changed his account to Sala.

[316]
Mr Desatge said that they went camping and Ms Dawita had something in a plastic bag. He then said:

And, went to sleep and she dug the ground, or something. She was, yeah, she buried her out there.

[317]
Sala asked Mr Desatge what he did. Mr Desatge said that all he did was help Ms Dawita dig a hole. He said he did not want to touch Kaydence. He said that he did not touch Kaydence, or the bag she was in. He said that Ms Dawita had wrapped Kaydence up in bags.

[318]
In response to questions from Sala, Mr Desatge said that they had gone to the weir in his white Commodore. He repeated that they had gone camping and said that Ms Dawita threw Kaydence in the boot of the car. By that stage Kaydence was already wrapped in the bag.

[319]
Sala then redirected the conversation back to what had occurred at the Chinchilla house in the following exchange:

[320]
Sala asked about the couch. Mr Desatge said that Kaydence could not breathe. He said that Ms Dawita laid Kaydence down on the couch and covered her up. He thought Kaydence was asleep. She lay on the couch, covered up, with her eyes closed. Sala asked if Kaydence was already dead on the couch. Mr Desatge said he did not know; he only saw her asleep. He repeated that he did not touch Kaydence at all.

[321]
When asked what Kaydence was wearing, Mr Desatge said that she had clothes on, but he did not remember which clothes. When asked what Kaydence had been covered with on the couch, Mr Desatge said it was a blanket. He confirmed that Ms Dawita had put Kaydence’s body in the plastic bag.

[322]
When Sala asked a further time what Mr Desatge did, Mr Desatge repeated his account of having seen Kaydence “taking a turn”, telling Ms Dawita that they should take Kaydence to hospital or ring an ambulance, and Ms Dawita refusing because she thought she would lose the children.

[323]
When asked whose idea it was to bury Kaydence, Mr Desatge said that it had been Ms Dawita’s idea. He said:

I didn’t want to bury her. I wanted, I didn’t want, I didn’t want to do anything like that. I wanted to take her to the hospital.

I even wanted to take her to the, like, even if she did pass away we could have, like, she would have been at the hospital anyway. And we wouldn’t have gotten into so much trouble.

[324]
When Sala asked again whether Kaydence was dead on the couch, Mr Desatge said he thought so but was not sure. He repeated that he did not touch her.

[325]
Sala asked how Mr Desatge knew Kaydence fell down the stairs. Mr Desatge said Ms Dawita had told him. He said he was not there when it happened. He thought he was at the pokies.

[326]
When Sala asked Desatge to describe what he saw when he came home, he said Kaydence was breathing funny. He said he asked Ms Dawita what was wrong, and Ms Dawita told him Kaydence fell down the stairs. He then said Ms Dawita told him Kaydence was not breathing properly. He then repeated his account of him telling Ms Dawita that they should take Kaydence to hospital and Ms Dawita refusing. Sala asked why Mr Desatge did not ring an ambulance if Kaydence was still breathing on the couch. Mr Desatge said he did not know. He said again that he wanted to ring an ambulance.

[327]
When asked if there was any blood anywhere, Mr Desatge said that Kaydence was not bleeding. He said there was no blood on the stairs, on the couch, or in the car. He said the car was at Chinchilla with a mate of his.

[328]
Mr Desatge confirmed that Kaydence remained buried at the weir.

[329]
Mr Desatge said that Ms Dawita wrapped Kaydence and carried the plastic bag. When Sala asked questions about what Kaydence was wrapped in, Mr Desatge said he thought she was wrapped in a blanket and then put inside a black plastic garbage bag. He said he was not there when Ms Dawita wrapped Kaydence. Sala asked how Mr Desatge knew this if he had not seen it. Mr Desatge did not provide a direct answer to this question. He confirmed that he did not touch Kaydence, the blanket or the plastic bag. He said that all he touched was the shovel he used to dig the hole.

[330]
When Sala returned to the subject of what had happened to Kaydence, there was the following exchange:

[331]
Mr Desatge said no one else knew what had happened to Kaydence. Neither he nor Ms Dawita had told anyone.

[332]
Sala asked whether there were any injuries on Kaydence other than falling down the stairs. Mr Desatge said that there were none he knew of. He referred to Ms Dawita shaving Kaydence’s hair. He said he thought this was because of lice but clarified that it had occurred before Kaydence had fallen down the stairs.

[333]
When asked again to say what he saw when he came home from the pokies, Mr Desatge said that Ms Dawita was holding Kaydence and Kaydence was breathing funny. He said he was sure that she was breathing; that she was gasping for air. He said he was sure that Kaydence was breathing when he told Ms Dawita that they should ring an ambulance or take Kaydence to the hospital.

[334]
After Sala asked questions about burying Kaydence at the weir, Mr Desatge said he was sure that Kaydence was dead before she was put into the plastic bag. When Sala asked how he knew, Mr Desatge said:

She wasn’t breathing, I think. She was asleep, and I asked my missus, “Is she alright?” and then my missus said like, “She’s really cold”. And I said, “Well, check if she’s breathing”, you know. “Put your hands near her nose and stuff”, like, you know.

And then, but then she just covered her up and laid her in the bed, like.50

[335]
Mr Desatge said he thought that Kaydence lay on the couch for between a day and a day and a half. He did not know whether she was dead or alive during this period, but she was cold. He said that the older girls walked past and saw Kaydence asleep on the couch. He said that he thought Kaydence was asleep. He referred again to Ms Dawita refusing to take Kaydence to hospital because she would lose her children. He added that he thought he would also lose his son if Ms Dawita lost all her children.

[336]
Sala then called Savaliga back to the apartment at about 7:25 pm. Savaliga and Mr Desatge then left the apartment.

[337]
Sala then called Savaliga back to the apartment at about 7:25 pm. Savaliga and Mr Desatge then left the apartment.

[338]
Savaliga and Mr Desatge then had a further conversation while walking outside the apartment building. Mr Desatge told Savaliga he had previously been lying, and that what had happened was that he came home and Ms Dawita told him that Kaydence had hit her head falling down the stairs. He said he was relieved he had told someone,. He denied killing Kaydence or hurting her. He Savaliga that he only helped Ms Dawita get rid of Kaydence’s body. Savaliga and Mr Desatge returned to the apartment at about 8:15 pm.

Mr Desatge’s third conversation with Officer Sala on 29 February 2020

[339]

[340]

Mr Desatge’s conversations with Officers Kite and Savaliga on 1 March 2020

[341]
As directed by Sala, Savaliga and Mr Desatge travelled to Coolangatta airport and picked up (Detective Sergeant Glenn Kite) shortly before 6:30 am the next day. The prosecution tendered a recording of relevant parts of the conversations which took place between Kite, Savaliga and Mr Desagte.

[342]
Mr Desatge that Kaydence had died about three years before. He could not remember the day or the month. He said he thought that it might have been a Saturday because he was not working; he was at the pokies. He said he played the pokies once a weekend when he was working.

[343]
Mr Desatge said he thought Kaydence died during the summer because it was warm. He said it happened during the school year. He thought that the NRL pre-season was on. When asked further questions about his work at the time, Mr Desatge talked about working at QGC, which sometimes required him to work away from home during the week and return on the weekends. When asked about the Friday before Kaydence had died, Mr Desatge said that he had been away from home for work that week but had come home.

[344]
Mr Desatge then talked about different jobs he had. He said he had worked for QGC for about two months and for a business called Muddy Waters for a month and a half. When asked who he was working for when Kaydence died, Mr Desatge said he thought it happened when he worked with Muddy Waters. When asked whether that job involved him going away for work during the week, Mr Desatge said it did not.

[345]
Mr Desatge then provided his account of what had happened with Kaydence: he was at the pokies; he came home and asked Ms Dawita what was wrong; Ms Dawita was holding Kaydence and said that she was not breathing properly; he told Ms Dawita they should ring the ambulance and take Kaydence to the hospital.53 Mr Desatge said the reason Ms Dawita did not want to take Kaydence to hospital was that she would probably lose her children. He referred to Ms Dawita’s children having just come back to Ms Dawita after spending two years in care.

[346]
Later, when asked if he was sure he was working at Muddy Waters when Kaydence died, Mr Desatge said he was sure of that because he began working for QGC when he moved down to Chinchilla and then moved on to Muddy Waters.

[347]
When asked to tell as much as he could about what had happened, Mr Desatge repeated that he was at the pokies, came home and asked Ms Dawita what was wrong. During this account, Mr Desatge said that Ms Dawita had told him “the baby’s not breathing properly”. He said that Ms Dawita told him that Kaydence had fallen down the stairs and hit her head and that she had taken a turn. He repeated his account of him telling Ms Dawita that they should call an ambulance and take Kaydence to hospital but Ms Dawita refusing because she would lose her children. Mr Desatge said he had asked Ms Dawita what they were going to do, and she told him that she wanted to bury the body. Mr Desatge said he told Ms Dawita that they could not do that because they would be caught. He said he told Ms Dawita that if they took Kaydence to the hospital that everything would be fine. He repeated that Ms Dawita said “no way” because she would lose her children again.

[348]
Mr Desatge said Ms Dawita had laid Kaydence on the couch and covered her up. He said he had asked Ms Dawita if Kaydence was asleep, and Ms Dawita said she was. He said he asked Ms Dawita if Kaydence was breathing, if she was alright, and Ms Dawita said she was cold. He said Kaydence was “on there for one day, one night, sleeping”54 (I infer this was a reference to the couch). He said he told Ms Dawita: “You’ve gotta check her, like if she’s alright”.55 He said he did not touch Kaydence.

[349]
Mr Desatge said Ms Dawita then told him that Kaydence was not breathing. He said he asked what they were going to do and told Ms Dawita that they had to take Kaydence to hospital. He said Ms Dawita did not want to do that, so she grabbed plastic bags and a blanket. He said Ms Dawita wrapped Kaydence in the blanket. He said he told Ms Dawita that he could not do it; he walked out and Ms Dawita wrapped Kaydence up.

[350]
Mr Desatge said they had gone camping that weekend. He dug the hole, but he did not touch the bag. Ms Dawita put Kaydence’s body into the hole and covered her up. He said that they went on further camping trips and Ms Dawita would go for a walk and check the area where Kaydence was buried. They stopped going camping at the weir after about four or five months.

[351]
When taken back through his account from the time he returned from playing the pokies, Mr Desatge said Kaydence was breathing funny when he returned home. He said he asked Ms Dawita what happened, and Ms Dawita said Kaydence fell down the stairs and hit her head. He said he told Ms Dawita that they had to take Kaydence to the hospital. If they did not do that it would get worse for them down the track because people would think that they had done something to Kaydence.

[352]
When asked further questions about Kaydence’s condition when he got home, Mr Desatge confirmed she was struggling to breathe. He said Kaydence’s eyes were open but rolled backwards. She did not respond if someone talked to her or rubbed her head.

[353]
Mr Desatge said he came home from the pokies at about 5:30 pm. Kaydence was with Ms Dawita when he got home. Ms Dawita laid Kaydence on the couch after he spoke with her. Kaydence then lay on the couch that night with no response. Mr Desatge said he told Ms Dawita she needed to keep checking on Kaydence and see how she was breathing. He said there came a time when Kaydence was not breathing, and Ms Dawita said she was cold. He said this happened three or four hours after he got home. He thought Kaydence was dead by that point because she was cold.

[354]
Mr Desatge said they left Kaydence lying on the couch for the whole of the following day. He said Kaydence was dead by this time. They went camping the next night.

[355]
When asked where Ms Dawita got the bags she used to wrap Kaydence, Mr Desatge said they were black rubbish bags which they got from Bunnings in Dalby. He thought Ms Dawita wrapped Kaydence first in a blanket or a sheet and then in three or four rubbish bags. He said Ms Dawita told him she had put sticky tape around the bags to hold them down. He repeated he was not present when Ms Dawita wrapped Kaydence’s body. He said this was done at around 6:00 pm or 7:00 pm on the night they went camping. He said Ms Dawita took a blue tarp and threw Kaydence’s body in the back of the car. He confirmed he still had the car, a Commodore, and that he had left it with a mate.

[356]
When asked about going camping, Mr Desatge said they went at night. He took a shovel from home to dig the hole. He threw the shovel away at the dump straight afterwards. When asked if the purpose of the trip was to go camping or to bury Kaydence, Mr Desatge said that it was to go camping. When asked what they were going to do with Kaydence if they had not been going camping, Mr Desatge said he did not know. Ms Dawita just wanted to bury Kaydence in the yard at the Chinchilla house. He told Ms Dawita they could not do that because the first thing the authorities would do would be to dig the yard up. They went camping and Ms Dawita decided to bury Kaydence there.

[357]
Mr Desatge said Kaydence was in the plastic bags but not the tarp when they buried her. They took her out of the tarp, and he threw it away at the dump along with the shovel. He said he did not throw anything else out. He said Kaydence was wearing clothes when they buried her, but he could not remember what.

[358]
When asked about the Chinchilla house, Mr Desatge said there were two concrete stairs going down to the laundry and three concrete stairs at the front of the house. Ms Dawita told him that Kaydence had fallen down the laundry stairs. He said he had not seen any injuries, bruises or cuts on Kaydence. He referred to Kaydence having a bald head after Ms Dawita had shaved her hair because she had lice.

[359]
When asked whether anyone talked about Kaydence, Mr Desatge said that the other children had been talking to child safety workers after they had gone back to care. In response, Mr Desatge said that no one knew what had happened. When Kite asked about what the other children knew, Mr Desatge said that they did not know much and thought that Kaydence had gone with her auntie.

[360]
Mr Desatge referred to his mother having lived with the family but said that she was not living there when Kaydence died. He said his mother never met Kaydence. Later in conversation, Mr Desatge said his mother had moved into the house after Kaydence passed away to give him and Ms Dawita a hand with the children. She stayed with them for about two to two and a half years. He confirmed his mother did not meet Kaydence.

[361]
When asked how he had dug the hole without being seen, Mr Desatge said he dug it at about 2:00 am or 2:30 am. They had arrived at the camping area at about 8:00 pm. After the children had gone to bed, he and Ms Dawita waited until everything was quiet before going out and digging the hole.

[362]
When asked why he had taken a shovel with him on the camping trip, Mr Desatge said he had taken it to dig for worms and do some fishing. He said Kaydence was in the boot of his car but he did not have any plans about what to do with her body until they went camping. When he asked Ms Dawita what was wrapped up in the blue tarp, she said it was Kaydence.

[363]
When asked why he did not take Kaydence to the hospital, Mr Desatge said that he did not know, that he was just stupid, that he should have just done the right thing, but that he did not want Ms Dawita to lose her children, including his son.

[363]
When asked why he did not take Kaydence to the hospital, Mr Desatge said that he did not know, that he was just stupid, that he should have just done the right thing, but that he did not want Ms Dawita to lose her children, including his son.

[364]
When asked whether he and Ms Dawita did anything to try and help Kaydence, Mr Desatge said that he told Ms Dawita to rub Kaydence’s head with a wet rag but that did not help. He said Kaydence did not lose colour at first but when she was lying on the couch the next day she lost a bit of colour.

[365]
When asked whether Kaydence knew how to use the toilet, Mr Desatge said that she did not. He said she was in “Kimbies”. He confirmed these were a brand of store- bought nappies. He said that he was not sure whether Kaydence was buried in a nappy because Ms Dawita had changed Kaydence’s clothes after she had laid her down on the couch. He said he threw the old clothes out around the same time that he threw the shovel out. When it was pointed out that he had previously said he had only thrown out the shovel and the tarp (see [357] above), Mr Desatge agreed that was what he had said but changed his account and said that he had also thrown out clothes, medical papers for Kaydence and a little backpack. He said he threw those items away because Ms Dawita had told him that she did not want any evidence of Kaydence being there.

[366]
The conversation then returned to the subject of whether anyone else knew what had happened to Kaydence. In that context Kite asked Mr Desatge whether the older girls had asked where Kaydence was. Mr Desatge said that they had, but that he and Ms Dawita had told the older girls that the auntie had come and picked Kaydence up. After some brief further discussion of how Kaydence was buried, Kite returned to the subject of the older girls and asked if they had seen anything happen at home. Mr Desatge said, “No. Nothing at all”.

[367]
When asked if he and Ms Dawita had sat down and come up with a story to tell people, Mr Desatge said that they had decided to say that Kaydence had gone with her father’s auntie. He said Ms Dawita told the police that the auntie’s name was Sarah Mills but there was no such person. Despite that, he said they put a lot of thought into what they were going to say.
[368]
After a pause in the conversation, Mr Desatge continued to say that Ms Dawita had told him that, if it came to it, she would take the rap. He responded by saying that she should take the rap; he was not going to take the rap, because she was at home with the babies.^[56]
[369]
When asked if he thought Kaydence really fell down a couple of stairs, Mr Desatge said he was not sure. He said Ms Dawita did not like “that ex” (a reference to Robert Mills) because of what he had done to her. He said Ms Dawita loved the baby (a reference to Kaydence) but got angry and jealous, and started swearing and calling him names, every time he played with Kaydence.
[370]
When asked if Kaydence was treated any differently, Mr Desatge initially said, “No, no. It was all good”. He said Ms Dawita loved Kaydence, but she did not give Kaydence a lolly if she gave the other children a lolly; she would sometimes buy something for the other children but would not buy anything for Kaydence. He said he asked Ms Dawita why she would not get Kaydence something as well. Ms Dawita told him that Kaydence did not deserve it. Mr Desatge said he asked if Ms Dawita was serious; that Kaydence had to be treated like the rest of the babies because she was an innocent little baby. He said Ms Dawita told him that her ex (Robert Mills) raped her to make her pregnant.
[371]
After some discussion about items which the police had taken from the Chinchilla house, the conversation returned to the day that Kaydence died. Mr Desatge said he went to the pub to play the pokies around 12:00 pm or 1:00 pm. He said Kaydence was good and everything was fine when he left to go to the pub.
[372]
Mr Desatge then talked again about going to the Dalby shops. He confirmed they had gone there to get the bags Kaydence was wrapped in. When asked if they had gone there the next day and if Kaydence was left at home dead, Mr Desatge said she was wrapped up in the blanket. When asked if Kaydence was still on the couch, Mr Desatge said for the first time that she was in the garage. When asked when he moved Kaydence out to the garage, Mr Desatge said it was before they wrapped Kaydence up; it would have been on the day they were ready to go camping.
[373]
When asked to confirm what he had said to that point, Mr Desatge confirmed the following: he came home on a Saturday after playing the pokies and saw Kaydence gasping; Kaydence died at some stage on that Saturday night or Sunday morning; Kaydence was wrapped up on the Sunday and they went camping on the Sunday night.
[374]
Mr Desatge then provided further information about going to the Dalby shops. He said he went there on the Sunday with Ms Dawita and his two babies. They went to the Reject Shop and bought the tape that was used on the plastic bags. They went to Bunnings and got the plastic rubbish bags, the shovel and an axe. Mr Desatge said they paid cash at both shops. They withdrew the cash at an ATM in Chinchilla using Ms Dawita’s card. When asked why they had gone to Dalby, Mr Desatge said it was to get the plastic bags and other items they used to bury Kaydence. When talking about the shovel, Mr Desatge said he bought it to dig the hole.
[375]
The recording also captured a conversation between Savaliga and Mr Desatge, which took place in Kite’s absence, about whether Mr Desatge believed what (on his account) Ms Dawita told him about Kaydence falling down the stairs. Mr Desatge said he had never seen Ms Dawita smack any of the children. He said he did not know if Ms Dawita had lied to him or not
[376]
Mr Desatge told Savaliga that he was shocked when he came home. He repeated that he just wanted to take Kaydence to the hospital. He said he did not know why he had not done that himself. He said everything happened fast.
[377]
[378]
After Kite rejoined Mr Desatge and Savaliga, Mr Desatge began speaking again about what Ms Dawita had been through with her partner (Robert Mills), and that being the reason the children had previously been taken away from Ms Dawita. He also referred to Ms Dawita getting jealous of him when he played with Kaydence. He said these things made him think Ms Dawita did not like Kaydence because of her ex.^[57] Mr Desatge said Ms Dawita had got custody of her children back when they lived in Tully. They moved down to Chinchilla to start over away from everybody. Every time Ms Dawita walked around when they lived in Tully she would run into her ex and he would threaten her. He believed Ms Dawita saw Kaydence as Robert Mills and thought that, whatever Mills had done to her, she would take it out on the baby (Kaydence).^[58]
[379]
When asked if Ms Dawita hit the baby (Kaydence), Mr Desatge said that did not occur when he was around; Ms Dawita did not hit any of the children. He said Ms Dawita would “growl” at the children but she never hit them.^[59]
[380]
Later, the conversation turned to the Commodore which Mr Desatge and Ms Dawita used to take Kaydence’s body to the weir. Mr Desatge said he got that car two or three months after they had moved to Chinchilla. When asked how long he had the Commodore before he had to “use it for this”,^[60] Mr Desatge said it was about three years.^[61]
[381]
The three men arrived at Chinchilla at about 11:19 am on 1 March 2020. Mr Desatge indicated the Chinchilla house to Kite and Savaliga. He told them that was where Kaydence had died. He said he and Ms Dawita had taken Kaydence’s body into the garage where it was stored until he reversed his car into the garage and it was placed in the boot. The men then travelled to another address in Chinchilla where they had a conversation about the car Mr Desatge and Ms Dawita had used to take Kaydence’s body to the weir.
[382]
Mr Desatge then directed Kite and Savaliga to the Chinchilla weir. After they arrived, Mr Desatge took Kite and Savaliga to an area of the park, looked around and nominated a spot by kicking a hole in the dirt with his heel. He told Kite and Savaliga that was the area where he had dug a hole into which Kaydence’s body was placed. Kite then placed a discarded Coke can on the area nominated by Mr Desatge.
[383]
The men then travelled to the Chinchilla dump. Mr Desatge said that was where he got rid of property linked to the death of Kaydence and property linking Kaydence to the Chinchilla house.
[384]
Kaydence’s remains were located at the Chinchilla weir on 3 March 2020. On that date, undertakers attended the scene and placed Kaydence’s remains inside a body bag. The remains were then transported to the John Tonge Centre in Brisbane.^[62]

Medical evidence

Dr Ong

[385]
Dr Ong, a forensic pathologist employed at Queensland Health, Scientific Services Forensic Pathology in Brisbane, performed the post-mortem examination on Kaydence. That examination was performed at the John Tonge Centre over two days on 5 and 6 March 2020.
[386]
On the first day of the examination, Dr Ong noted that Kaydence’s body was wrapped in numerous layers of black plastic bags. Dr Ong proceeded to remove each layer of material.
[387]
The first layer was a black plastic bag. There was soil on the outside of this bag. It had been secured with black duct tape at five regions along the body: the neck, chest, abdomen and two points on the lower limbs.
[388]
The second layer was a plastic bag. This bag was not secured around the body with any tape.
[389]
The third layer was a plastic bag. This bag was wrapped around the body without the body being inserted inside it.
[390]
The fourth layer was a plastic bag. There was soil on the outside of this bag which appeared to be slightly different to the soil on the outermost bag. This bag had been secured with black duct tape at four regions on the body: the neck, chest and at two points on the legs.
[391]
The fifth layer was a black plastic bag with an orange tie around its opening which had been knotted together to secure the body.
[392]
The innermost layer was a light-coloured floral pattern cloth which resembled a bedsheet. The cloth had been secured to the body by blue duct tape which had been wound around the body at least 18 times, from the feet region to the head.
[393]
The examination resumed the following day, when Dr Ong was assisted in examining Kaydence’s skeletal remains by Donna McGregor, a forensic anthropologist.
[394]
The body, beneath the cloth, was in a near skeletonised state with partially liquified decomposed tissue. Dr Ong was not able to identify the type of soft tissue or the internal organs. When the innermost cloth wrapping was removed, the integrity of the skeletal remains collapsed.
[395]
After the tissue was washed from the bones, Dr Ong recovered a full skeleton, save for the hyoid bone, a small horseshoe shaped bone at the front of the neck. Dr Ong said that the hyoid bone of a child of Kaydence’s age consists of three parts which are not yet fused and could split apart, particularly where the body was subject to decomposition. He thought it was possible that the hyoid bone was missed during the process of washing the soft tissue from the bones. He was not surprised that he was unable to find the hyoid bone and did not regard its absence as having any significance.
[396]
With the assistance of the forensic anthropologist, Dr Ong determined that the body was that of a toddler aged between two and four years at the time of death. It was not possible to determine the ancestry, sex or height of the child.
[397]
Upon examining the skeletal remains, Dr Ong identified two injuries.
[398]
The first injury was an incomplete fracture, referred to as a greenstick fracture, of the left ninth rib (rib fracture). When Dr Ong examined the rib fracture under the microscope, he observed evidence of healing. He estimated that the rib fracture occurred at least a week prior to death, possibly longer.
[399]
Dr Ong stated that the rib fracture was caused by blunt trauma resulting from a direct impact. That trauma could have been inflicted by another person or might have been the result of the child falling and landing around the site of the fracture. Using the scale of mild, moderate and severe force, Dr Ong described the force required to cause the rib fracture as moderate to severe.
[400]
The second injury was fractures of the occipital bone in two places. The occipital bone is located at the back of the skull and extends around the base of the skull. The fractures occurred at each side of the foramen magnum, the large opening at the base of the skull which allows for entry of the spinal cord to join with the brain, roughly at the site where the skull rests against the spine (base of skull fracture).
[401]
The base of skull fracture appeared fresh with no evidence of healing. This means it occurred at around the time of death or within a week after death. Dr Ong could not identify when, within this period, the base of skull fracture occurred.
[402]
Dr Ong identified four mechanisms by which fractures of this type can occur:

(a)
through direct trauma, resulting from a direct impact to the area where the fracture occurred;

(b)
indirectly, where trauma to the top of the head causes the skull to press downwards against the spine resulting in the fracture;

(c)
indirectly, where trauma to the base of the spine presses the spine upwards against the skull resulting in the fracture;

(d)
indirectly, where the head is bent (or extended) forwards or backwards excessively, compressing the base of the skull against the spine resulting in the fracture.

[403]
Dr Ong considered that, regardless of the mechanism, severe force would have been required to cause the base of skull fracture.
[404]
When Dr Ong was shown photographs of stairs at the Chinchilla house,^[63] he said it would be unusual for a two-year-old child to have suffered the base of skull fracture from falling down any of those stairs. This was because of the low height of the stairs and the fact that most children would be capable of breaking the fall (thereby, I infer, avoiding trauma to the top of the head of the type which could have caused the base of skull fracture).
[405]
When asked how long a two-year-old child who suffered the base of skull fracture could have survived, Dr Ong said this depended upon the extent of associated injuries which were likely to have been caused by the application of severe force at the time the fracture occurred. He would expect this severe force to cause associated injuries to the brain or spinal cord. The severity of those injuries would differ for each person. Dr Ong said that it was possible that a two-year-old child who suffered the base of skull fracture might survive for a period of days. It was also possible that the child might die virtually immediately.
[406]
Ultimately, Dr Ong concluded that the cause of Kaydence’s death could not be ascertained.
[407]
When cross-examined by Mr Desatge’s counsel, Dr Ong said it was possible a base of skull fracture could be caused if a child was pushed down the stairs at the Chinchilla house from a standing position. It would depend on the force used to push the child. He also said a base of skull fracture could be caused in circumstances where a child was running, fell down the stairs and hit the top of their head. Dr Ong said it was possible that the rib fracture could be caused if a child fell down the stairs from a stationary position, or if a child was pushed down the stairs.
[408]
Dr Ong was asked whether the base of skull fracture or the rib fracture could cause difficulties with breathing. As to the base of skull fracture, Dr Ong said that sometimes brain swelling secondary to the injury can cause complications leading to breathing difficulties. That could occur over hours or days. Dr Ong said the rib fracture would cause pain when breathing. However, assuming a child is fit and with plenty of reserve, he would not expect the rib fracture to cause issues with the child’s breathing.
[409]
Dr Ong confirmed he could not rule out the possibility that the base of skull fracture was caused after Kaydence had died. It was possible that, if Kaydence’s body was manipulated into a bag or confined space, excessive movement of her head forwards or backwards caused the base of skull fracture after her death.
[410]
When cross-examined by Ms Dawita’s counsel, Dr Ong said that when he referred to direct trauma as a possible mechanism by which the base of skull fracture was caused, he was talking about the direct application of force to the back of the neck. He accepted that, if the base of skull fracture was caused by direct trauma, the size of Kaydence’s neck and the absence of any fracture to the back of the skull itself meant it was possible that the direct impact took the form of striking with a thin object like a stick. He also accepted it was possible that the base of skull fracture was sustained in circumstances where Kaydence was sitting on the ground with her head bent forward and a blow was struck on the back of her exposed neck.
[411]
In terms of indirect trauma resulting from the head being extended forwards or backwards excessively, Dr Ong accepted that a mechanism for doing that could be an act akin to breaking someone’s neck by pushing the head down, or pulling the head back, with significant force. He agreed that severe force could be applied in that way by an adult using their bare hands.
[412]
Dr Ong said that if Kaydence survived for minutes after suffering the base of skull fracture it is possible that she would have displayed signs such as her eyes rolling back in her head. This is a normal sign of head injuries. If the survival time was longer, Kaydence’s level of consciousness could have varied with her having been awake initially and then deteriorated over time to the point where she died. This sort of deterioration could be the result of progressive swelling of the brain.
[413]
Dr Ong agreed the rib fracture was an injury that would usually be expected to heal itself without any medical intervention. That injury was not of such a nature that, if left untreated, it would have been likely to endanger Kaydence’s life or to cause a permanent injury to her health.
[414]
Dr Ong further agreed the rib fracture might cause a person to complain of pain. That pain might manifest if the person coughed, sneezed or laughed. The person might have difficulty lying on their side. The rib fracture would not, in the case of a child, cause crippling pain.
[415]
As to the mechanism which could have caused the fracture to only one rib, Dr Ong agreed such an injury would more likely have been caused by a skinny object, like a stick, than by an object with a larger surface area. He said the force causing the injury would have been focussed on the single rib which sustained the fracture.

Dr Skellern

[416]
Dr Skellern is a paediatric specialist and a specialist in community child health. She has post-graduate qualifications in forensic medicine and holds a consultant position in the Child Protection and Forensic Medicine Service at the Queensland Children’s Hospital. She has practiced as a paediatric specialist in the field of child protection since June 2000.
[417]
Dr Skellern gave evidence about the rib fracture and the base of skull fracture after reading the reports prepared by Dr Ong and by the forensic anthropologist, Donna McGregor.
[418]
As to the rib fracture, Dr Skellern stated that the injury was on the inner surface of the left ninth rib, in the anterior lateral position. It had callus, which is a bone healing response. The earliest callus would become visible would be five days after the fracture occurred, but a period of between ten days to two weeks would be more typical. Based on Kaydence’s age, it was likely that direct force to the rib was the causative mechanism of that type of fracture in the location it occurred. Significant force would be required to cause such a fracture. Incidental force might cause bruising but would not be likely to cause a rib fracture. The rib fracture would have caused Kaydence to experience significant pain when breathing or crying.
[419]
As to the base of skull fracture, Dr Skellern said fractures of that type can be caused by the application of direct force to the part of the head where the fracture occurred. They can also be caused indirectly where a high energy impact, for example to the top of the head, results in a transmission of force to the location where the fracture occurred. A very high energy impact is required to cause a base of skull fracture in a child. Dr Skellern gave the examples of the impact experienced in a car versus pedestrian accident or an accident with more than one vehicle, where there is a high level of acceleration and momentum and then impact.
[420]
When Dr Skellern was shown photographs of the stairs at the Chinchilla house she said that a fall from those heights would not generate the high levels of force and subsequent impact to the head that would be needed to cause the base of skull fracture.
[421]
Dr Skellern said that base of skull fractures can cause immediate death in some cases and in other cases there can be a period of survival. She explained that the latter cases typically involve injury to the brain which results in the brain swelling over time to a level beyond the pressure that can be accommodated inside the skull. This leads to downward pressure of the brain through the foramen magnum causing compression of the brainstem and death. She said that base of skull fractures are not necessarily fatal, but would typically require intensive care to minimise the secondary effects of a head injury. She said that it was possible that, without such medical care, a two-year-old who suffered the base of skull fracture might survive for a period of days because head injuries are variable; they typically peak after about three days and then start to subside.
[422]
Dr Skellern said that if Kaydence had sustained the base of skull fracture while she was alive, she would expect there to have been noticeable signs to an observer because of the associated injury to the brain.
[423]
Like Dr Ong, Dr Skellern was not able to say whether the base of skull fracture occurred before or after Kaydence died.
[424]
When cross-examined by Mr Desatge’s counsel, Dr Skellern said that a person might suffer a simple skull fracture from falling onto a hard surface from the height of the stairs at the Chinchilla house, but not a base of skull fracture. It was also unlikely that a child who was running before falling down those stairs would suffer a base of skull fracture. Dr Skellern referred to a body of research looking at various types of falls, including scenarios where there is some extra energy at the beginning of the injury event, which suggested that a base of skull fracture would not be the expected result from such a scenario. She accepted that a child who was pushed backwards off the stairs with sufficient force that they were not able to break the fall (meaning there was insufficient time for the engagement of child’s instinctive reflexes to protect the head) might suffer a base of skull fracture.
[425]
Dr Skellern said direct trauma caused by the impact of a stick to the back of the head with sufficient force could have caused the base of skull fracture. She said it might also have been caused by the application of force to the back of the head by a hand, but she considered this to be less likely on the basis that such an application of force is more likely to have been accommodated by the protective neck muscles.
[426]
Dr Skellern also gave evidence that linear bruising is caused by the application of force using something that is round, such as a stick, a power cord, or a hand. This causes a bruising pattern where the skin that is impacted against is compressed and does not bruise but there is capillary rupture along the edge of the impact which gives an outline called a negative imprint type bruise. She agreed the application of force by an open hand to the face of a two-year-old child could cause linear bruising if it was done with sufficient force.
[427]
When cross-examined by Ms Dawita’s counsel, Dr Skellern said her reference to high energy forces required to produce the base of skull fracture was interchangeable with Dr Ong’s reference to severe force. With one exception, she agreed with Dr Ong’s description of the various mechanisms that could cause a base of skull fracture. The exception was she disagreed that the base of skull fracture could have been caused by pressure applied upwards from the base of the spine towards the base of the skull. Dr Skellern’s experience is that children who experience that type of impact sustain wedge compression fractures to their vertebrae which were not present in the examination of Kaydence.
[428]
On the question of the direct trauma mechanism, Dr Skellern agreed the use of something thin but hard, like a stick, would increase the likelihood of a person applying high energy force to the back of Kaydence’s neck resulting in a fracture to the base of the skull. She also agreed that likelihood would increase if Kaydence was positioned on the ground with her head forward and the stick was brought down across the back of her neck.
[429]
Dr Skellern described the range of symptoms that might be observed if a person experienced brain swelling. She said there is an impairment of consciousness as the brain starts to swell. There might be seizures resulting from injury to the surface of the brain which creates electrical discharge. Seizures can lead to abnormal breathing. Dr Skellern referred to an evolution of symptoms to the point of loss of consciousness then cessation of breathing and fatality.
[430]
As to the rib fracture, Dr Skellern agreed the injury would be expected to heal by itself without medical treatment. She said severe force would be required to cause the fracture. She also said the fracture of a single rib could be caused if Kaydence was lying on her right side and was struck with a stick, provided the strike was parallel to the direction of the rib.

Other evidence from the police investigation

[431]
Officer Ellis gave evidence about documents obtained during the police investigation, related to Mr Desatge’s employment. A letter of verification from Haynes Mechanical Pty Ltd (an employment agency that provided labour services to QGC and other businesses) confirmed that Mr Desatge commenced work with that entity on 17 May 2017.^[64] Consistently with that, payslips from Haynes confirmed that Mr Desatge was first paid by that entity on 24 May 2017, for work he had done in the period from 17 May 2017 to 21 May 2017.^[65] Officer Ellis gave evidence that he analysed Mr Desatge’s bank records and saw that this was the earliest money was paid into Mr Desatge’s account in 2017 from an entity other than Centrelink.
[432]
Officer Ellis also obtained pay slips from Mr Desatge’s employment with Muddy Waters. The earliest of those pay slips was for the period from 11 October 2017 to 17 October 2017.^[66]
[433]
Officer Ellis also gave evidence that Ms Dawita had continued to claim Centrelink benefits for Kaydence after she claimed to have given her away. The police stopped those payments in January or February of 2020.
[434]
On 23 June 2020, police searched a storage shed which Mr Desatge had rented at Mission Beach from 22 November 2016. Mr Desatge had made weekly payments on a sporadic basis until 3 April 2017. The shed then remained locked and was not released.^[67] During the search of the storage shed, police seized a bamboo stick. Photographs of that bamboo sticks were taken.^[68] The police did not show the bamboo stick seized from the storage shed to MT or MS.

Relationship evidence

The relationship between Mr Desatge and Ms Dawita

MT’s evidence

[435]
When cross-examined by Mr Desatge’s counsel, MT recalled Ms Dawita made the following threat to Mr Desatge, which MT recorded on her phone:

“When you go to sleep, I’ll cut you into pieces. I’ll slit your throat.I ’ll stab you. I’ll smash the car up and the TV.”

[436]
MT remembered Mr Desatge responding by saying “That’s stupid”, laughing, and suggesting that MT and MS go to bed.
[437]
Ms Dawita’s counsel cross-examined MT about the events leading up to, and following, her making this recording. MT agreed it happened after she had told Ms Dawita that Mr Desatge was sexually abusing MS. Ms Dawita got very angry when MT told her this and she confronted Mr Desatge. Ms Dawita asked MT to record that confrontation. In the next day or two after the confrontation between Ms Dawita and Mr Desatge, Ms Dawita looked like she was sore and asked MT to delete the recording that she had made. MT did not delete the recording. She played the recording to Ms Andrews, the guidance officer at Chinchilla State School, on 6 September 2019, leading to her being interviewed by police for the first time the following week.
[437]
Ms Dawita’s counsel cross-examined MT about the events leading up to, and following, her making this recording. MT agreed it happened after she had told Ms Dawita that Mr Desatge was sexually abusing MS. Ms Dawita got very angry when MT told her this and she confronted Mr Desatge. Ms Dawita asked MT to record that confrontation. In the next day or two after the confrontation between Ms Dawita and Mr Desatge, Ms Dawita looked like she was sore and asked MT to delete the recording that she had made. MT did not delete the recording. She played the recording to Ms Andrews, the guidance officer at Chinchilla State School, on 6 September 2019, leading to her being interviewed by police for the first time the following week.
[438]
MT said she remembered being woken up a few times when Mr Desatge came home to the Chinchilla house after drinking and noticed that Ms Dawita was sleeping in MT and MS’s room. She agreed she heard Mr Desatge say to Ms Dawita something like “What the fuck are you doing? Get back to bed”.
[439]
MT confirmed it was Mr Desatge who told Ms Dawita that they would move down to Chinchilla. They had no other family in Chinchilla.
[440]
MT also agreed that, when he argued with Ms Dawita, Mr Desatge threatened to kick her and the children out of the Chinchilla house because his name was on the lease.
[441]
MT agreed Mr Desatge went out most nights and came back to the Chinchilla house drunk. She confirmed there was one night when Mr Desatge brought another woman back to the Chinchilla house and told Ms Dawita that the woman was his new girlfriend. She agreed Ms Dawita got very upset that night, but Mr Desatge laughed at her.
[442]
MT agreed that sometimes, when they argued, Mr Desatge and Ms Dawita would go into their bedroom and, although the door was shut, MT could hear something being hit. She said that on one occasion she heard Ms Dawita call out for help. When Mr Desatge left the bedroom, he would look angry. When Ms Dawita left the bedroom, she would look sad and hurt. This sometimes happened after Mr Desatge criticised Ms Dawita for not doing a good enough job disciplining the children. MT later agreed that Mr Desatge would not criticise Ms Dawita if she smacked the children.
[443]
MT agreed Ms Dawita said that they should all say “yes” to Mr Desatge, and dosomething if he told them to. She said Ms Dawita told her not to make Mr Desatge angry.
[444]
MT agreed Ms Dawita was a lot calmer and more relaxed when Mr Desatge was not at home, but she looked stressed and got angrier at the children when Mr Desatge came home.
[445]
MT agreed with the following propositions Ms Dawita’s counsel put to her about an incident involving Mr Desatge and Ms Dawita on 19 October 2017: Mr Desatge came home drunk in the early hours of the morning; he was angry and accused Ms Dawita of taking his wallet; he dragged Ms Dawita out of bed when she had one of the babies with her; he punched her in the face and kicked her in the ribs; Ms Dawita, MT, MS and DS got out of the house; Ms Dawita was very upset because Mr Desatge still had DT with him; Mr Desatge said to Ms Dawita, “I’ll break your fucking neck”; that was something Mr Desatge often said to Ms Dawita when he was angry; MT and the others ran next door and the neighbours called the police and an ambulance; Mr Desatge came out of the Chinchilla house and continued to shout abuse saying, “This is my fucking home. Fuck off”; DT was being flung about while Mr Desatge held him.

The incident on 19 October 2017

[446]
During the morning of 19 October 2017, two paramedics responded to a call for service at 12 Inverai Road, Chinchilla. On arrival, one of the paramedics, Joanne Gosper, spoke with Ms Dawita. Ms Dawita was holding a newborn infant and appeared very distressed. Ms Dawita told Ms Gosper that her partner had come home earlier that morning, complained of money issues, and dragged her out of bed while she was nursing her two-month-old daughter. Ms Dawita said her partner kicked her and punched her in the face. Ms Dawita said she managed to flee to a neighbour’s home with her infant child and two elder daughters. Ms Dawita said she felt dazed and had affected vision. Ms Gosper observed that Ms Dawita had swelling and bruising to the right side of her face. Ms Dawita complained of pain to that area, to her left flank, and left thigh. Ms Dawita said her partner still had possession of her one-year-old son, and her partner refused to hand the child to her before she left the house.^[69]
[447]
Ms Gosper saw Mr Desatge leave the Chinchilla house and enter the front yard. Mr Desatge was holding an infant child, who was being flung around as Mr Desatge paced the front yard in an agitated state. Mr Desatge yelled abuse towards Ms Dawita, and the paramedics. Mr Desatge refused to hand over the child to Ms Gosper and returned inside the house. Several times, Mr Desatge re-entered the front yard in an agitated state while holding the same child, and yelled abuse at the paramedics.^[70]
[448]
Police eventually attended. One of the attending officers, Senior Constable Elise Vanderwalt (nee Moran), gave evidence that when she located Mr Desatge inside the house, he had his son in the bath. Officer Vanderwalt said that Mr Desatge was obviously affected by alcohol. Nevertheless, he handed DT to the officers withoutany sort of struggle.
[449]
Officer Vanderwalt confirmed that when she initially approached Mr Desatge inside the house he was speaking in a heightened manner, saying words to the effect of, “My name is on the lease. Hers isn’t. It’s my house, and I don’t want her here”. Mr Desatge was told that he was being detained for the purpose of a domestic violence investigation and that he had to get his son dried and dressed. The officers handed DT to the paramedics to be assessed. Mr Desatge agreed to go to the police station with the officers. During that time, Mr Desatge continued saying words to the effect of, “My name is on the lease. Hers isn’t. It’s my house”. He also said words to the effect of, “Police are scumbags, always taking the woman’s side”.
[450]
When Officer Vanderwalt told Mr Desatge that Ms Dawita had swelling to the face and had complained of being punched to the face and kicked in the ribs, he replied with words to the effect of, “I didn’t fucking kick her in the ribs. Yeah, I fucking punched her in the face”. He also said, “I’ll fucking break her neck”. When Officer Vanderwalt said that this would kill Ms Dawita, Mr Desatge laughed and responded in words to the effect of, “Oh, I’m not going to murder her. Why are you treating this like a murder case?”.

MS’s evidence

[451]
In her first police interview, MS said that Mr Desatge and Ms Dawita fought with each other. They swore at each other, tipped things over or broke things and slapped each other on the face.

Other evidence

[452]
Maureen Yasserie gave evidence that the first time she met Mr Desatge with Ms Dawita she heard Mr Desatge abuse Ms Dawita and tell her that he would hit her if she did not do what she was told. Mr Desatge’s behaviour upset Ms Yasserie so much that Ms Yasserie and her partner decided to leave.
[453]
Isobel Banu gave evidence that, towards the end of 2016, she visited Ms Dawita at the Tully flat. Mr Desatge, MT, MS, Kaydence and DT were also present. Ms Banu said that she noticed Ms Dawita watching everything she said and everything she did when Mr Desatge was around them. Mr Desatge’s behaviour, loitering behind and listening to her conversation with Ms Dawita, caused Ms Banu to turn around and tell him to stop hanging around, creeping her out and listening in while she was catching up with Ms Dawita. Ms Banu said that Ms Dawita seemed more relaxed when she left the flat with Ms Banu and Kaydence to walk to the shops but that she shut down again when she returned to the flat and Mr Desatge.
[454]
Ms Banu said that she returned to the Tully flat around two days after this visit but found that the flat was empty. Ms Dawita had not said anything to Ms Banu during her visit to the Tully flat about the family moving to Chinchilla.
[455]
Ms Banu also gave evidence about an occasion in May 2019 when Ms Dawita stayed with her for two nights. She said that the whole time Ms Dawita was there she was getting messages and calls from Mr Desatge.
[456]
Chantal Dickman gave evidence that Ms Dawita had called her in about November of 2017 and said that Mr Desatge had assaulted her. Ms Dawita said Mr Desatge had caused a bruise on her head. Ms Dickman told Ms Dawita that she should leave Mr Desatge and return to her family in North Queensland, but Ms Dawita did not do that. Ms Dickman also said there were times when she spoke by phone to Ms Dawita and Ms Dawita would tell her to be careful. Ms Dickman understood this to be an indication that Mr Desatge was listening to her conversation with Ms Dawita. At other times Ms Dickman spoke with Ms Dawita, she heard Mr Desatge in the background saying things such as “Who the fuck are you talking to?” and “Hurry the fuck up”.
[457]
Leisha Robinson gave evidence that, during Ms Dawita’s visit to in September 2019 (see [236] above), Mr Desatge would ring Ms Dawita regularly and Ms Robinson could hear them fighting on the telephone. Ms Dawita told Ms Robinson that Mr Desatge was threatening her and accusing her of sleeping with former partners. Ms Robinson also said that Mr Desatge called Ms Dawita using the Facetime video call application so that he could make sure that no men were present where Ms Dawita was staying.
[458]
Codie Thornton met Mr Desatge in the second half of 2019. Mr Thornton gave evidence about an occasion in late 2019 when he invited Mr Desatge to his place. Mr Thornton lived about 45 kilometres from Chinchilla. He picked Mr Desatge up on that occasion and drove him out to the property. The intention was that Mr Desatge would spend the night at Mr Thornton’s place. Mr Thornton said that Mr Desatge started drinking when they arrived and quickly became drunk. During the evening, Mr Thornton heard Mr Desatge yelling abuse at Ms Dawita over the telephone. He recalled Mr Desatge saying something like “It wasn’t my fault”. Mr Thornton did not like the way Mr Desatge spoke to Ms Dawita. As a result of Mr Desatge’s behaviour, Mr Thornton and his partner decided that Mr Thornton would drive Mr Desatge back to Chinchilla rather than letting him remain at the property overnight.
[459]
The following week, Mr Desatge telephoned Mr Thornton and told him that he had a job working at the Chinchilla showgrounds. Mr Desatge asked Mr Thornton to visit him at the showgrounds. When Mr Thornton went to visit Mr Desatge, he heard him arguing with Ms Dawita over the telephone again. He heard Mr Desatge call Ms Dawita names like dickhead and fuckhead. He heard Mr Desatge say something like “It’s all your fault. Don’t call me and don’t text me”. Once again, Mr Thornton decided to leave because he did not like the way Mr Desatge spoke to Ms Dawita. He said that Mr Desatge’s behaviour on that occasion scared him a little.
[460]
Police recorded a telephone call which Mr Desatge made to Ms Dawita at 7:36 am on 9 January 2020.^[71] During that call, Mr Desatge said:

“Oi. You dead dying little ugly black motherfuckin’ lookin’ monkey dog. Don’t lie to me, and stop lying to me, you dirty slut. I will kill you when I get out motherfucker, you wait. You and Brodie, you cunts. You think youse all that, you wait you lying cunt. Youse with Mum. You wait until I get out you fuckin’ cold [indistinct] bitch. I will kill you, you cunt. I’ll break your neck. Lying to me, you fuckin’ scumbag. You cold hearted cunt. You could’ve come down here and been with me you dirty fucking dog, but you didn’t. You’re a fuckin’ dog. I’ll get you cunts, you wait. You fuckin’ dogs.”

[461]
Police recorded a further telephone call which Mr Desatge made to Ms Dawita at 7:48 am on 9 January 2020.^[72] Mr Desatge was recorded saying, “Pick your phone up you lying little cunt”, before Ms Dawita answered the call. Once Ms Dawita answered, the conversation proceeded as follows:

Desatge:	[Indistinct] Sinitta? You just say ‘OK’ hey? You and him hey, bitch? Hey? You and him, hey? Like sucking cock all night and all day bitch. Are you gonna talk, or what, dog?
Dawita:	I did nothing wrong.
Desatge:	Fuck off, you did so, you dog. He said ‘Oh, I’ve got a woman right here who wants me now, today. Ha ha’. That was you, cunt, at the RSL, dog. Youse two, ya fuckin’ scum.
Dawita:	No.
Desatge:	No. Bullshit.
Dawita:	That wasn’t me.
Desatge:	Bullshit, ya fuckin mutt.
Dawita:	Nuh. That wasn’t me.
Desatge:	I’m gonna kill you when I get out cunt. True God. I’ll hunt you down and I’ll break your little fuckin’ neck bitch, you wait. You don’t care about me, you fuckin’ never have. You just gammin, all in fuckin’ show, you cunt.
Dawita:	You need to stop.
Desatge:	You need to fuckin’ stop, you sick cunt. That’s why when I rang that dog, I said ‘Come down here, bro. We need to go get some ice. I’ll give you $10 fuel’. He didn’t come. You was too busy there, sucking his dick.
Dawita:	No. I was home here, myself.
Desatge:	[Indistinct] Fuck off, you ugly cunt.

[462]
Officer Ellis also gave evidence that police had obtained CCTV footage taken at about 9:00 am on 9 January 2020 which showed Mr Desatge attended the Chinchilla library complex. After changing his clothes in the toilets, Mr Desatge waited outside the library. Ms Dawita then attended the library complex, followed by Mr Desatge’s mother. Mr Desatge was seen to greet Ms Dawita and have a conversation with her. They hugged and kissed each other before Mr Desatge left at about 9:17 am to attend the Chinchilla Magistrates Court. Ms Dawita left in the direction of the Chinchilla RSL.
[463]
Police then obtained CCTV footage from the Chinchilla RSL which showed Ms Dawita arrive shortly after she had met with Mr Desatge at the library. Mr Desatge then attended the RSL at 11:37 am. There were various interactions between Mr Desatge and Ms Dawita over several hours. They exchanged money and gambled together for a short period of time prior to leaving.

Ms Dawita’s relationship with her children

MT’s evidence

[464]
MT spoke about Ms Dawita’s relationship with her children in her second interview with police, and in her pre-recorded evidence.
[465]
In her second police interview, MT said that she would get a smack from Ms Dawita when she played with DT and DS and they got hurt. Sometimes, if Ms Dawita got really angry, she might hit DT and DS a little bit, but not so as to give them a bruise.
[466]
When MT was cross-examined by Mr Desatge’s counsel, she said Ms Dawita hit her during the period Ms Dawita was in a relationship with Mr Mills. She said she remembered an occasion when Ms Dawita gave her a black eye but could not remember how it happened. She did not remember whether Ms Dawita hit her on more than one occasion during that period.
[467]
MT also said Ms Dawita hit her and MS quite often when the family lived in Tully. She described it as being a slap on the back of the head and not very forceful. She said it was the right amount of force for Ms Dawita to use to discipline the girls. She said Ms Dawita continued to discipline both her and MS in the period that Kaydence was at the Chinchilla house.
[468]
MT agreed Ms Dawita lost her temper and punched MS in the head when the family was in Chinchilla. She initially said she did not remember Ms Dawita losing her temper and punching her in the head. Later in the cross-examination, she said she was in fear of Ms Dawita, especially when the family lived in Chinchilla, and she agreed Ms Dawita would lose her temper and hit her. These later answers were given when Mr Desatge’s counsel asked her about things she said in 2019 about being scared of Ms Dawita’s moods and being afraid of what Ms Dawita would do. She agreed that was because of the way she saw Ms Dawita treat her and her sisters, including Kaydence.
[469]
MT confirmed that on 10 December 2019, Ms Dawita got angry at her and MS after representatives of the Department of Child Safety came and spoke to them. She remembered describing what had happened to Marilyn Andrews, a guidance officer at Chinchilla State School:

“As Child Safety were leaving out the gate, Mum was yelling. She came into our room and used words, ‘ungrateful cunt’, regretted having me, and a few other words. She said we have lost all her love and respect. She scared us. We walked past her. She was angry. She started yelling. She said she was going to shoot up, go drink, and do drugs, and go back to like she used to be. She’s yelling that I told on her.”

[470]
Although MT could not recall it herself, there was a formal admission that when she spoke to Ms Andrews on 10 December 2019, she said she wanted to be in Chinchilla, but not with Ms Dawita.^[73]
[471]
MT agreed Ms Dawita sometimes hit her with a mobile phone she had in her hand.
[472]
When MT was cross-examined by Ms Dawita’s counsel, she said Ms Dawita smacked her ‘a bit more than sometimes’ when she lived at the Chinchilla house. She said Ms Dawita did not always use her hand to smack her. She repeated that Ms Dawita hit her once with a mobile phone and said that in other circumstances she used whatever was in her hand. Later in the cross-examination, MT did not accept the suggestion that Ms Dawita never hit her with a closed fist. She said that she vaguely remembered Ms Dawita hitting her with a closed fist once when the family lived in the Chinchilla house.
[473]
MT agreed Ms Dawita smacked her more when Mr Desatge was present and that, if Ms Dawita smacked the children, Mr Desatge would not criticise Ms Dawita for not disciplining them.
[474]
MT also confirmed that Ms Dawita got angry at her for playing the recording to Ms Andrews and the talking with police. MT agreed Ms Dawita said this would lead to the Department of Child Safety taking MT and the other children away from her.

MS’s evidence

[475]
When MS was cross-examined by Mr Desatge’s counsel, she said Ms Dawita did not hit her when Ms Dawita was with Mr Mills. She also never saw Ms Dawita hit MT during that period. MS said she was treated well after she returned to Ms Dawita’s care and lived in North Queensland. Later in the cross-examination, MS said Ms Dawita never hit her across the back of the head and she never saw Ms Dawita hit MT in that way. She rejected the suggestion that Ms Dawita punched her and left her with a black eye, or that Ms Dawita punched MT and caused her to suffer a black eye.

Other evidence

[476]
Nathan McBride was Ms Dawita’s partner for about six years commencing in 2007. He described Ms Dawita as a good mother who appeared to care for MT and MS.
[477]
When Mr McBride was cross-examined by Mr Desatge’s counsel, he agreed there were occasions when Ms Dawita would get angry at something, unrelated to the girls, and take it out on them by swearing at them and threatening to hit them. He confirmed that he saw Ms Dawita hit MT and MS out of frustration. He said this happened about once a week.
[478]
During cross-examination by Ms Dawita’s counsel, Mr McBride said the occasions when Ms Dawita became stressed out with the girls occurred after MS was born, when Ms Dawita was 18 or 19 years old and caring for two children under the age of two. He said when Ms Dawita hit MT and MS she smacked them with an open hand. He confirmed he never saw any injuries on MT or MS that caused him any concern.
[479]
Mr Lindsay said that part of his role in supervising Ms Dawita’s contact with her children while they were in foster care, was to assess the relationship Ms Dawita had with the children and Ms Dawita’s capacity to look after the children if they were to be returned to her care. The primary consideration was ensuring that the children were safe. Mr Lindsay also provided support for Ms Dawita to address the issues that had led to the children being removed from her care and assessed the success or otherwise of her efforts in that regard.
[480]
When Mr Lindsay first became involved in supervising the care of Ms Dawita’s children, she was living on the Atherton Tablelands. He described Ms Dawita’s situation at that time as being unsuitable for the raising of the children, with there being significant domestic violence between Mr Desatge and Ms Dawita, as there had been with Ms Dawita’s previous partners, including Mr Mills.
[481]
Mr Lindsay was aware that Ms Dawita had issues with alcohol and drug abuse, but she had engaged in counselling to address those issues.
[482]
Mr Lindsay gave evidence about what he observed of Ms Dawita’s interactions with her children at approximately 49 supervised or semi-supervised visits between 27 April 2015 and 24 September 2016. I have had regard to that evidence however it is not necessary to set out the detail of each visit in these reasons. As the supervised visits progressed, Mr Lindsay observed the emotional attachment which all three girls had towards Ms Dawita increase.
[483]
Mr Lindsay confirmed that, to his knowledge, none of the three girls (including Kaydence) ever returned from a visit with Ms Dawita upset. They all appeared to get along well with Ms Dawita. Ms Dawita was achieving all the goals set for her by the Department of Child Safety.
[484]
After the orders relating to the care of Kaydence and her sisters had been revoked, and the girls had been returned to Ms Dawita’s care, she engaged in what Mr Lindsay described as “intervention with parental agreement”, under which she agreed to submit to further visits by the Department of Child Safety. That formal agreement concluded on 18 November 2016, but Mr Lindsay continued to visit Ms Dawita and the children at the Tully flat until 14 December 2016, by which time the family was preparing to leave for Chinchilla.
[485]
Based on his observations of Ms Dawita’s interactions with the children, Mr Lindsay concluded that, at the time the children were returned to Ms Dawita’s care, there was no indication that Kaydence or her sisters were in any danger or fearful of the living conditions in which they were being placed. Ms Dawita appeared to be a capable mother and to have the skills required to appropriately care for Kaydence and her sisters.
[486]
Despina Parakas had MT and MS in her care from 14 November 2014 until 18 September 2016. She said Ms Dawita had little contact with MT and MS up until about the middle of 2015. Ms Dawita reestablished contact after a period of six or seven months when she found out she was pregnant with DT. In the second half of 2015, Ms Dawita would usually have a weekly telephone call with MT and MS. She would also travel down from Atherton on the bus most weeks to have face-to-face contact with the girls. That involved a three hour round bus trip for Ms Dawita.
[487]
Ms Parakas referred to a time when Ms Dawita moved with DT from Atherton to the Tully flat and told the girls that she had broken up with Mr Desatge. Ms Dawita appeared to be doing well during that period; she was doing everything she could do to improve her relationship with the girls and the relationship she had with Ms Parakas. That changed, however, when Ms Dawita returned to her relationship with Mr Desatge.
[488]
Isobel Banu gave evidence that when she visited Ms Dawita at the Tully flat towards the end of 2016 (see [453] above), she observed Ms Dawita to be pretty good with the children, attending to them appropriately, including when Kaydence cried for her mother. Ms Banu noticed that Kaydence was wearing special shoes and Ms Dawita explained that one of Kaydence’s legs was shorter than the other and the doctor had recommended the special shoes to help Kaydence balance properly. Ms Banu did not notice anything unusual about Ms Dawita’s interactions with the children.
[489]
Maureen Yasserie gave evidence about a supervised visit which Ms Dawita had with MT, MS and Kaydence at Ms Yasserie’s house. Ms Dawita sat down, talked and played with the girls for the whole of that visit. She asked Ms Yasserie to take some photographs of her with the girls. She seemed very happy when the girls were with her. When the girls were not with her, Ms Dawita often talked to Ms Yasserie about them.

Mr Desatge’s relationship with the children

MT’s evidence

[490]
MT said during her second police interview that she thought Mr Desatge just wanted it to be him, Ms Dawita, DT and DS. It did not seem like Mr Desatge liked the rest of the children.
[491]
When MT was cross-examined by Mr Desatge’s counsel, she said Mr Desatge did not hit her in the period the family lived at the Tully flat, and she did not think that Mr Desatge hit MS during that period. She agreed Mr Desatge never hit Kaydence, or touched her physically when disciplining her, while the family lived in Tully.
[492]
When MT was cross-examined by Ms Dawita’s counsel, she agreed there were times when she heard Mr Desatge say to Ms Dawita that she was spending too much time with the three older girls who were not his children rather than DT and DS.

MS’s evidence

[493]
When MS was cross-examined by Mr Desatge’s counsel she said Mr Desatge never hit her and she never saw Mr Desatge hit MT.

Other evidence

[494]
Mr Lindsay observed Mr Desatge interacting with MT, MS and Kaydence during visits with Ms Dawita at which Mr Desatge was also present. Mr Lindsay’s first contact with Mr Desatge was in a telephone call in about May 2015. He understood that the relationship between Mr Desatge and Ms Dawita broke down around that time. The relationship recommenced in about January 2016 when DT was born. Mr Desatge was present for two or three visits which Mr Lindsay and the children attended at Atherton at that time.
[495]
Mr Lindsay gave evidence about a particular visit with the children at Atherton on 21 January 2016, when Mr Desatge was present and exhibited appropriate concern for safety when Ms Dawita was feeding Kaydence with the sharp end of a kebab stick pointed towards her. Mr Lindsay described Mr Desatge’s behaviour towards the children on that occasion to have been very good.
[496]
Mr Lindsay understood that the relationship between Ms Dawita and Mr Desatge broke down again but recommenced around November or December 2016.
[497]
Mr Lindsay thought Mr Desatge behaved appropriately towards all the children. He said the children did not appear fearful of Mr Desatge and engaged with him positively.
[498]
Ms Banu gave evidence about Mr Desatge’s interactions with the children during her visit to the Tully flat towards the end of 2016 (see [453] above). She said Mr Desatge did not have much to do with the children except DT. She sat with Ms Dawita in the loungeroom talking and watching over the other children. Mr Desatge hovered behind them with DT, listening to their conversation. When DT became upset, Mr Desatge called for Ms Dawita to attend to him. When Kaydence came over to Ms Dawita wanting some attention, Mr Desatge came over with DT and demanded that Ms Dawita give her attention to him.
[499]
Ms Banu said Mr Desatge acted like he did not like MT, MS and Kaydence and only really cared about DT. She said that something about the way he looked at the other children did not sit right with her.
[500]
Leighton Dickman gave evidence that after Ms Dawita moved into the Tully flat, he would visit her twice a week or more. Mr Dickman said that on one visit Mr Desatge was present and they had a conversation in which Mr Desatge said that some of Mr Mills’ family or friends had bashed him. This was arranged by Mr Mills from jail. In this conversation, Mr Desatge also said he did not like Kaydence because she was Mr Mills’ daughter.
[501]
Mr Dickman said Mr Desatge was not nice to Kaydence when he saw them at the Tully flat. He described Mr Desatge’s attitude towards Kaydence as standoffish and said that Mr Desatge did not appear to want to go near Kaydence. He said Mr Desatge would pick the other children up but that he never saw Mr Desatge pick Kaydence up. He did not see Mr Desatge show Kaydence any affection at all.
[502]
When cross-examined by Mr Desatge’s counsel, Mr Dickman said his conversation with Mr Desatge occurred outside the Tully flat but they had talked loudly. Mr Dickman’s wife, Pamela Dickman, was present at the Tully flat on that occasion but was inside in the loungeroom when his conversation with Mr Desatge occurred. Mr Dickman accepted that he told his wife later what Mr Desatge said to him in the conversation but denied that he told her to tell the police about it.
[503]
Pamela Dickman also gave evidence. She provided a statement to police on 7 December 2019 in which she said:

“Whilst we visited Sinitta, Tane and the girls, I observed that Tane was very cold towards Kaydence. I recall that Tane told me that he doesn’t like her, meaning Kaydence. And he said he blames Kaydence for being bashed by Robert’s [ie Mr Mills] mate. And I thought, ‘How can you say that or be nasty to a baby?’ Kaydence was only a baby and didn’t know what was going on.Tane would ignore Kaydence but talk or interact with the other two girls, MT and MS. It was very noticeable.”

[504]
When cross-examined by Mr Desatge’s counsel, Mrs Dickman said that she did not have a conversation with Mr Desatge, but she overheard him having a conversation with her husband. She said she overheard Mr Desatge tell her husband that he did not like Mr Mills because Mr Mills had arranged to have people bash him. She said she did not recall hearing Mr Desatge say anything about not liking Kaydence. Mrs Dickman said that when she spoke to her husband later that night about what Mr Desatge had said to him, he was upset. He then told her what Mr Desatge had said about not liking Kaydence because she was Mr Mills’ daughter.
[505]
When cross-examined by Ms Dawita’s counsel, Mrs Dickman said that she did hear Mr Desatge say something about not liking Kaydence because her father had some people bash him up in Cairns. She confirmed that Mr Dickman got upset when he spoke to her later about Mr Desatge saying he did not like Kaydence because Mr Mills had him bashed.
[506]
Mrs Dickman maintained that she saw Mr Desatge treating Kaydence differently to the other children and that he did not interact with her. When asked by Ms Dawita’s counsel about the type of difference – “better different, worse different or bad different” – Ms Dickman said it was “bad different”.

Summary of counsels’ submissions

Submissions of the prosecution

[507]
Mr Lehane commenced his address by submitting that an important component of the prosecution case is not challenged by either defendant: that is, the proposition that whatever put Kaydence on the red couch in the condition described by MT (see [161]-[164] and [169] above) was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. Ms Dawita’s case is that Mr Desatge committed acts of mistreatment and violence which led to Kaydence lying dead on the couch. Mr Desatge told law enforcement participants that Kaydence was on the couch in an extremely serious state and that is where she died. On his account, Ms Dawita was responsible for supervising Kaydence when she sustained her injury. His case is that Ms Dawita has a violent disposition, and at times in his statements to law enforcement participants he expressed doubt about what (on his account) Ms Dawita said to him after he returned home on the day Kaydence was injured.
[508]
The prosecution case is that an accumulation of mistreatment by the defendants led to Kaydence’s condition when MT saw her on the red couch, and this mistreatment was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. Mr Lehane submitted this mistreatment may have had as its final act the
[509]
The prosecution case rests on four main planks drawn from the whole of the evidence. First, the evidence of MT and MS as to the defendants’ treatment of Kaydence. Secondly, evidence of motive. Thirdly, the medical evidence. Fourthly, post-offence conduct revealing a consciousness of guilt.
[510]
Mr Lehane submitted that I would find MT to be a truthful and reliable witness, and that I would accept that she saw, heard, or saw the results of, the defendants’ mistreatment of Kaydence: making her sleep naked in the toilet; making her eat her own faeces; not giving her any proper food; not seeking any medical assistance for her; hitting her with a hand and beating her with a bamboo stick. Mr Lehane submitted that MS’s evidence supports MT’s account of the defendants’ mistreatment of Kaydence to a significant degree.
[511]
Mr Lehane identified the defendants’ motive as the hatred they held for Robert Mills, Kaydence’s father.
[512]
As to Mr Desatge, Mr Lehane referred to evidence given by MT, Angus Lindsay and Leighton Dickman about Mr Desatge having been assaulted by people associated with Mr Mills; evidence given by Leighton Dickman, Pamela Dickman and Isobel Banu about Mr Desatge’s interactions with and attitude towards Kaydence; Mr Desatge’s own description of Kaydence as “that dying little cunt” following the execution of the police search at the Chinchilla house on 3 December 2019; and Mr Desatge’s description of Mr Mills’ ill-treatment of Ms Dawita in the statements he made to law enforcement participants.
[513]
As to Ms Dawita, the prosecution relies on the formal admission that Mr Mills’ conduct was among the reasons Kaydence was placed into care; evidence of statements which Ms Dawita made about Mr Mills’ treatment of her which Mr Lehane submitted revealed her animosity towards Mr Mills; evidence that Ms Dawita was aware that Mr Desatge was supposedly assaulted by Mr Mills. Mr Lehane submitted that Ms Dawita acted as she did because she was inflamed by Mr Mills’ conduct towards both herself and Mr Desatge and she wished to please Mr Desatge (with whom she already had one child, and was pregnant with a second child). Mr Lehane further submitted that the evidence of domestic violence and intimidation by Mr Desatge towards Ms Dawita was relevant in discerning her motivation for acting as she did.
[514]
As to the medical evidence, Mr Lehane submitted that MT’s account is supported to a degree by, at least, the evidence concerning the rib fracture and, arguably, the evidence concerning the base of skull fracture.
[515]
As to evidence of post-offence conduct, Mr Lehane submitted this provides support for the prosecution’s case that the defendants’ mistreatment of Kaydence was a substantial or significant cause of, or contributed substantially to, Kaydence’s death, and that, by the time Kaydence was laid on the red couch, the defendants intended that she should die. Mr Desatge got rid of Kaydence’s possessions. The bamboo stick was not seen after Kaydence disappeared. The defendants buried Kaydence, first in the backyard of the Chinchilla then, fearing it is too easy a location for the body to be found, at the Chinchilla weir under the pretence of a family camping trip. For more than two years after Kaydence had died, both defendants lied about what they knew of her whereabouts. Mr Lehane submitted that even when Mr Desatge changed his account when speaking to law enforcement participants he lied when he described Kaydence’s condition as she lay on the red couch, making no mention of any bruises on her face. The prosecution case is that the defendants’ conduct was completely out of proportion to the level of culpability involved in an unintentional death.
[516]
Mr Lehane submitted that each defendant was individually responsible for ensuring that Kaydence was cared for but that, as individuals, they did the opposite. However, the prosecution case is that they acted together, agreeing, either directly or implicitly, to mistreat Kaydence. That is, the conduct which caused Kaydence’s death was done by the defendants in combination. Although the evidence was that Mr Desatge committed greater violence against Kaydence, Ms Dawita had Kaydence in her care over the period of mistreatment yet failed to take her to a doctor at any time or give her into the care of others.
[517]
Mr Lehane argued that the strength of the defendants’ agreement to mistreat Kaydence was demonstrated by how tightly they stuck together over the years after her death. A person who was not involved in their partner’s mistreatment of a young child would be expected to reveal that mistreatment, leave the relationship and seek to remove children from the partner’s conduct. Mr Lehane submitted that the defendants did the opposite; each at times, throughout the years, confessing their love for each other. Each refused to reveal what they knew about where Kaydence lay buried. That is because they had mistreated Kaydence together. So, together, they had to keep their conduct secret.
[518]
On the issue of intention, Mr Lehane emphasised how, on the prosecution case, Kaydence died. If MT’s evidence is accepted, Kaydence died in a beaten, malnourished state. Mr Lehane submitted that it would have been obvious to both defendants that if they continued to mistreat Kaydence in the way that they did, she would die. He emphasised that both defendants understood what needed to be done to properly care for a child. Evidence was given by Mr Lindsay and Mr McBride that Ms Dawita appeared to be a capable parent. Further, the defendants provided adequate care for three other children when Kaydence was in their care. Those other children were fed, clothed and allowed to sleep in a bed. It was only Kaydence who was singled out for mistreatment. The prosecution case is that the defendants acted this way because they intended that Kaydence should d

Submissions for Ms Dawita

[519]
Mr Jones KC submitted that the prosecution case for murder (or alternatively manslaughter) is substantially circumstantial. Consequently, it is not sufficient that Ms Dawita’s guilt be a rational inference. It must be the only rational inference that can be drawn from the circumstances. The difficulty with the prosecution case against Ms Dawita, in Mr Jones KC’s submission, is that a rational inference consistent with Ms Dawita’s innocence cannot be excluded. That is, Mr Desatge, acting alone and without Ms Dawita’s knowledge, caused the base of skull fracture either with his bare hands or using the bamboo stick, or otherwise beat Kaydence in a way that ultimately killed her.
[520]
Mr Jones KC relied on five categories of evidence in support of this inference. First, evidence of Mr Desatge’s threats coupled with the medical evidence. Secondly, evidence of Mr Desatge’s use of the bamboo stick coupled with the medical evidence. Thirdly, evidence of Mr Desatge’s motive. Fourthly, evidence of Mr Desatge’s lies. Fifthly, evidence of Mr Desatge acting alone.
[521]
As to Mr Desatge’s threats, Mr Jones KC referred to evidence given by MT and Officer Vanderwalt that Mr Desatge threatened that he would break Ms Dawita’s neck. That threat can also be heard in the two telephone calls which Mr Desatge made to Ms Dawita on 9 January 2020. He submitted that the medical evidence, particularly that given by Dr Ong, was consistent with the possibility that the base of skull fracture was caused by pushing Kaydence’s head down, or pulling it back, with significant force in a motion akin to breaking someone’s neck.
[522]
Mr Jones KC relied on the second category of evidence concerning Mr Desatge’s use of the bamboo stick as an alternative to the first category on the pathway to the rational inference consistent with Ms Dawita’s innocence. He referred to evidence given by MT concerning Mr Desatge’s frequent use of his bamboo stick to beat Kaydence, and the evidence given by MS which supported MT’s account. Mr Desatge was the only person who used that weapon. There was no evidence it was ever in the hands of Ms Dawita. Mr Jones KC also emphasised the evidence of both MT and MS that once Kaydence had gone the bamboo stick vanished. Mr Jones KC submitted the medical evidence was consistent with the possibility that both the rib fracture and the base of skull fracture could have been caused by Kaydence being hit with a bamboo stick.
[523]
As to Mr Desatge’s motive, Mr Jones KC relied on the evidence I have already referred to in setting out the prosecution’s submissions. He submitted the evidence of Mr Desatge’s motive demonstrates not only that he did not like Mr Mills, but that his dislike for Mr Mills affected the way in which he treated Kaydence.
[524]
Mr Jones KC submitted that Mr Desatge told lies in his statements to law enforcement participants which fell into several categories: lies relating to his employment at the time Kaydence died; lies about Ms Dawita becoming jealous and getting upset when he played with Kaydence; lies about the concern he felt when he saw the condition Kaydence was in when she was lying on the red couch.
[525]
As to Mr Desatge acting alone, Mr Jones KC submitted there was no evidence that Ms Dawita was present when Mr Desatge beat Kaydence, nor that anything occurred which would have drawn Ms Dawita’s attention at the time Mr Desatge beat Kaydence. Mr Jones KC also submitted that evidence of Mr Desatge’s violence towards Ms Dawita also provided support for the hypothesis that Mr Desatge acted alone.
[526]
Mr Jones KC submitted the evidence did not support a finding that Ms Dawita harboured animosity towards Kaydence because of Mr Mills (unlike Mr Desatge). He referred to the evidence of Ms Davis-Collier, Ms Parakas, Ms Yasserie, Ms Banu and, particularly, Mr Lindsay. He argued that Ms Dawita’s request of Ms Banu and Ms Robinson to take Kaydence did not support the proposition that Ms Dawita had a motive to mistreat Kaydence or that she was part of a plan to mistreat Kaydence. It was consistent with Ms Dawita acting protectively towards Kaydence.
[527]
Mr Jones KC submitted the evidence of Mr Desatge’s domestic violence towards Ms Dawita is relevant in three ways. First, in assessing what Ms Dawita’s intention was. Secondly, in assessing whether Ms Dawita is liable as a party who aided Mr Desatge in his mistreatment of Kaydence (which is only relevant to count 1). Thirdly, in assessing whether Ms Dawita was involved in a plan with Mr Desatge to mistreat Kaydence (which is only relevant to count 2).
[528]
As to the lies Ms Dawita told about where Kaydence was, Mr Jones KC submitted that this conduct was explained by her fear that her other children would be taken away from her.
[529]
Mr Jones KC submitted that both MT and MS were honest when they gave their evidence, but that, due to their young age and the passage of time, their recollection of some matters (for example, how long Kaydence spent sleeping on the floor of the toilet) is not reliable and cannot be acted upon. He submitted that the evidence of MT and MS did not support the prosecution case of death by torture over an extended period (the particulars of count 2 relying upon s 286 of the Criminal Code). Instead, that evidence demonstrated that the defendants’ treatment of Kaydence changed over a shorter period, and the change was connected to Kaydence’s toilet training. No medical evidence was led in support of this death by torture case under s 286.
[530]
In addressing the elements of torture, Mr Jones KC submitted the prosecution has not proved that Ms Dawita had an actual, subjective intention to cause Kaydence severe pain or suffering, given the domestic violence Ms Dawita was subjected to. He submitted the prosecution has not proved that Ms Dawita was present for, or knew of, sufficient acts on Mr Desatge’s part to establish the requisite knowledge for the purposes of s 7(1)(c) of the Criminal Code.
[531]
In addressing the first particularised case for murder relying upon s 286 of the Criminal Code, which he described as murder by torture, Mr Jones KC pointed out that the particulars stated the specified acts of mistreatment were carried out with the intention to kill. He submitted that even if it was found that Ms Dawita engaged in any of the particularised acts of mistreatment, the prosecution has not excluded an intention to cause some lesser form of harm.
[532]
As to the second particularised case for murder relying upon s 302(1)(a) of the Criminal Code, which he described as murder through blunt force, Mr Jones KC relied on the reasonable inference consistent with Ms Dawita’s innocence set out earlier: that it was Mr Desatge, acting alone, who caused Kaydence’s death.
[533]
On the issue of common unlawful purpose under either case for murder, Mr Jones KC submitted the prosecution has not proved that there was a plan by both defendants to mistreat Kaydence. Even if there was a plan, the prosecution has not proved that it was more than a mere possibility that in the execution of that plan that Mr Desatge might form an intention to kill Kaydence (under both the murder by torture case and the murder through blunt force case) or cause her grievous bodily harm (under the murder through blunt force case).
[534]
In addressing the alternative offence of manslaughter, Mr Jones KC submitted the prosecution has not proved what objective symptoms of Kaydence’s condition were on display, for how long they were on display, or that Ms Dawita was aware of those objective symptoms. He further submitted there was no evidence that there was medical treatment available that would have saved Kaydence’s life. The submissions as to common unlawful purpose repeated those made in relation to the case for murder.

Submissions for Mr Desatge

[535]
Mr Martin submitted I should accept the version of events which Mr Desatge ultimately gave to law enforcement participants as a truthful account. He submitted that, although Mr Desatge made statements in that account which were incorrect (for example, where he was working when Kaydence died), those statements were the result of faulty memory and were not lies.
[536]
Based on Mr Desatge’s final account to law enforcement participants, Mr Martin conceded (on instructions) that the case against Mr Desatge for manslaughter has been made out. Mr Martin submitted that the path to finding Mr Desatge guilty of manslaughter was that his failure to take Kaydence to the hospital when he was aware of her need for medical attention was a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[537]
Mr Martin submitted the case against Mr Desatge for murder had not been made out and nor had the torture case.
[538]
As to the evidence which the prosecution relies on in the case against Mr Desatge for murder, Mr Martin submitted I should scrutinise the evidence of both MT and MS and be wary of accepting all their evidence uncritically. He referred to the leading nature of the questions which both MT and MS were asked by Mr Jones KC in their pre-recorded evidence and the difficulty which this form of questioning can sometimes cause in the cross-examination of some Aboriginal witnesses (see [69](f) above). Mr Martin also referred to MT’s acceptance that she thought she should forgive Ms Dawita a little bit and blame Mr Desatge the most, and to evidence which he submitted demonstrated that both MT and MS had previously made statements about the defendants’ treatment of Kaydence which were inconsistent with parts of their evidence.
[539]
Mr Martin submitted that because the cause of Kaydence’s death could not be ascertained by Dr Ong, the question whether Mr Desatge’s conduct (save for the conduct the subject of the concession set out at [536] above) was a substantial or significant cause of, or contributed substantially to, Kaydence’s death requires consideration of circumstantial evidence. If that evidence supports any reasonable inference that is consistent with Mr Desatge’s innocence then it is my duty to acquit him of the charge of murder.
[540]
Mr Martin noted that there is no medical evidence that one, or more, or all, of the acts of mistreatment by which Mr Desatge is alleged to have caused Kaydence’s death under the first particularised case for murder (the “murder by torture” case) was a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[541]
Mr Martin submitted that the prosecution has failed to exclude a number of available inferences which were consistent with Mr Desatge’s innocence on the charge of murder: that the base of skull fracture was caused after Kaydence died when her body was wrapped and buried; that Kaydence suffered the injury which caused her death in some sort of fall; that Ms Dawita, acting alone, caused the base of skull fracture by striking Kaydence to the back of the head.
[542]
In relation to the last of these hypotheses, Mr Martin referred to evidence given by Mr McBride about Ms Dawita losing her temper and hitting the older girls. He submitted that MT’s statement that she wanted to live in Chinchilla but not with Ms Dawita, without referring to Mr Desatge, revealed which of the two defendants was the more aggressive. Mr Martin also referred to evidence of Ms Dawita getting frustrated with Kaydence and hitting her before the family moved to Chinchilla. He submitted that this indicated things went wrong for Ms Dawita and Kaydence only a short time after Kaydence was returned to her care. Mr Martin also referred to MT’s evidence about Ms Dawita’s treatment of Kaydence when they lived at the Chinchilla house.
[543]
Even if Mr Desatge’s conduct (other than the conduct the subject of the concession set out at [536] above) is found to have been a substantial or significant cause of, or contributed substantially to, Kaydence’s death, Mr Martin submitted that the prosecution has not proved that Mr Desatge engaged in that conduct with the necessary intention for him to be found guilty of murder. He submitted the prosecution has not excluded the reasonable inference that, if found to have caused Kaydence’s death, Mr Desatge came home drunk and acted in anger or to discipline or punish Kaydence but without the intention to kill her or cause her grievous bodily harm. Similarly, on the torture case, Mr Martin submitted that the prosecution has not proved that, if found to have mistreated Kaydence in any of the ways alleged, Mr Desatge acted with the intention of causing her severe pain or suffering.
[544]
Mr Martin described the motive which the prosecution relies on, Mr Desatge’s animosity towards Kaydence’s father, as entirely implausible.
[545]
Mr Martin submitted the statements which Mr Desatge made in the recording captured on 3 December 2019 were explained by his drunken state, his knowledge that he had helped bury Kaydence’s body and his awareness that the police investigation raised a threat to his liberty because of that conduct. He submitted that the post-offence conduct which the prosecution relies on as demonstrating consciousness of guilt is just as likely to be consciousness of guilt of the lesser offences of manslaughter and burying Kaydence’s body than any consciousness of guilt of the offence of murder.
[546]
In addressing the case against Mr Desatge for murder relying upon s 8 of the Criminal Code, Mr Martin submitted that in addition to issues finding that Ms Dawita (as principal offender) acted with the necessary intention in causing Kaydence’s death, there was no evidence of a common intention to mistreat Kaydence. As to the case against Mr Desatge for torture relying on s 7(1)(c) of the Criminal Code, that he aided Ms Dawita in committing the offence of torture by his deliberate presence in the Chinchilla house, Mr Martin submitted that there was no evidence that Mr Desatge was present and witnessed one or more of the particularised acts of mistreatment.

Assessment of the evidence and findings of fact

[547]
I accept Ms Pearson’s evidence about Kaydence’s health when she was in foster care. Based on that evidence and the relevant formal admissions (see [99]-[101] above), I find that Kaydence was in good health when she was returned to Ms Dawita’s care.
[548]
I accept Mr Lindsay’s evidence of his observations of Ms Dawita’s interactions with her children while they were in foster care and the conclusions he drew from those observations (see [479]-[485] above). Of course, those observations were made when Ms Dawita was in the company of Kaydence and the older girls for short periods. The formal admission as to Ms Lind’s observation of Ms Dawita and Kaydence at the end of 2016, before the family moved to Chinchilla, establishes that Ms Dawita struggled and became frustrated when Kaydence and the older girls were returned to her care, particularly in circumstances where Kaydence had become sick (see [114] above).
[549]
Although Ms Lind did not witness it, I find that Ms Dawita’s frustration led to her hitting Kaydence at times when the family lived at the Tully flat. This is made plain in the messages Ms Dawita sent to Mr Desatge on 29 September 2016 (see [105]-[106] above). Ms Dawita’s reference in those messages to her old self coming back to haunt her is consistent with Mr McBride’s evidence about Ms Dawita having hit MT and MS out of frustration when those girls were younger (see [477]-[478] above).
[550]
I find that Ms Dawita and Mr Desatge treated Kaydence relatively normally during the period that the family stayed at the Chinchilla Motor Inn, even though Kaydence did not spend as much time outside the room as the other children. MT accepted this when she was cross-examined. She did not see either Ms Dawita or Mr Desatge hit Kaydence during that period (see [180] and [195] above).
[551]
I accept Ms Banu’s evidence that Ms Dawita contacted her in February 2017 and asked if she could take Kaydence, and that Ms Banu indicated she was willing to do so either immediately or within a relatively short period (see [134] above). I infer that at least part of the reason Ms Dawita asked Ms Banu if she would take Kaydence was to protect Kaydence. I infer that having Ms Banu take Kaydence would also reduce Ms Dawita’s stress, frustration, and anger which Ms Lind had observed in late 2016 and which Ms Dawita had herself described in the messages she sent to Mr Desatge on 29 September 2016.
[552]
I have not been able to make any finding about what Ms Dawita was seeking to protect Kaydence from when she contacted Ms Banu. That is, I have been unable to determine from the evidence whether Ms Dawita was concerned about her own treatment of Kaydence – as she appeared to have been in the messages she sent to Mr Desatge on 29 September 2016 (see [105]-[106] above) – or she was concerned about Kaydence for some other reason. Any finding about that would amount to impermissible speculation or conjecture.
[553]
Whatever Ms Dawita was seeking to protect Kaydence from when she contacted Ms Banu, I find that she was aware from Ms Banu’s response that there was at least one place she could send Kaydence. I also accept Ms Pearson’s evidence that shortly before Kaydence was returned to Ms Dawita’s care she spoke to Ms Dawita and offered to help with anything Ms Dawita needed in looking after Kaydence and the other girls (see [102] above).

Evidence about the mistreatment of Kaydence

[554]
MT and MS are important witnesses in this case because they are the only witnesses who gave direct evidence about the defendants’ treatment of Kaydence when the family lived in Chinchilla. I have approached the task of reaching a verdict bearing in mind the need to scrutinise the evidence of each of them with great care before arriving at a conclusion of guilt. That is not to say that I cannot act on the evidence of either of MT or MS. But I should only do so if I am convinced of its truthfulness and accuracy.
[555]
In assessing the weight to attach to the evidence of MT and MS, I have had regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of their s 93A evidence and their s 21AK evidence.
[556]
I have had regard to the girls’ age at the time the events which they gave evidence about occurred: MT was nine years old and MS was six years old when Kaydence lived with them at the Chinchilla house.
[557]
I have had regard to the length of time which passed between the events they gave evidence about and when they gave their evidence: the s 93A evidence was given more than two years after the relevant events and the s 21AK evidence was given more than six years after the relevant events.
[558]
I have considered whether either MT or MS had any incentive to conceal or misrepresent the facts, including their relationship with Ms Dawita. I have had particular regard to MT’s concession that, after speaking with her Auntie Claire, she thought she would forgive Ms Dawita but blame Mr Desatge the most (see [189] above).
[559]
I have also had regard to the submission by Mr Desatge’s counsel that MT and MS made out of court statements which were not consistent with their evidence and which reflected adversely on the credibility or reliability of that evidence.
[560]
Mr Martin cross-examined both MT and MS about statements which, on Mr Desatge’s case, they made to their foster carer, Melissa Hodge, in December 2019. He asked both girls if they said the following things to Ms Hodge: that Kaydence was locked in the bathroom; that Kaydence was chained with a dog collar in the bathroom; that Kaydence lived in her own filth; the only water Kaydence had was what was in the bathroom; that Kaydence was fed dog food; and that if the girls were caught trying to sneak food to Kaydence they were tied outside and beaten with sticks. He asked MS (but not MT) if she told Ms Hodge that Kaydence was not given nappies or clothing when she was kept in the bathroom.
[561]
As to having made statements to Ms Hodge, MT’s evidence was that she had said that Kaydence lived in her own filth and that the only water she had was in the toilet. She denied having made the other statements to Ms Hodge. As to whether any of those things happened, MT said that neither Mr Desatge nor Ms Dawita ever chained Kaydence with a dog collar in the bathroom or fed Kaydence dog food. She could not recall whether Mr Desatge or Ms Dawita ever locked Kaydence in the bathroom. She said that she sometimes tried to sneak Kaydence food and when she was caught by Mr Desatge he sent her outside, but he did not tie her up outside. She could not recall whether Ms Dawita ever caught her sneaking food to Kaydence. She said that Ms Dawita never tied her up outside and neither Mr Desatge nor Ms Dawita ever beat her with sticks outside.
[562]
MS agreed she told Ms Hodge that Kaydence was locked in the bathroom. She could not remember having made any of the other statements to Ms Hodge. MS said that she saw Mr Desatge lock Kaydence in the bathroom. She did not see Ms Dawita lock Kaydence in the bathroom. She never saw either Mr Desatge or Ms Dawita chain Kaydence with a dog collar in the bathroom. She never saw either Mr Desatge or Ms Dawita feed Kaydence dog food. She could not remember ever being caught sneaking food to Kaydence, being tied outside or being beaten with sticks when she was outside.
[563]
Melissa Hodge gave evidence that she had her husband had MT and MS in their care for a period of between eight and twelve weeks beginning in the first week of December 2019. She said that the girls made the following statements to her during that period:

(a)
MT told her (in MS’s presence) that Kaydence was locked in the bathroom by Ms Dawita and Mr Desatge. MS made the same statement when she spoke to Ms Hodge separately;

(b)
MT told her (when MS was not present) that Kaydence was chained with a dog collar in the bathroom. MT did not say whether this was done by Ms Dawita or Mr Desatge. MS did not say anything to her about a dog collar;

(d)
MT told her that the only water Kaydence had was in the bathroom; and

(e)
MT told her (when MS was not present) that the only food Kaydence was given was dog food and that if the older girls tried to sneak her different food they were beaten and then chained or locked outside and fed dog food themselves. MS made a similar statement when she spoke to Ms Hodge separately.

[564]
Ms Hodge did not take notes of her conversations with MT or MS.
[565]
I accept that if there are significant differences between statements MT and MS made to Ms Hodge and their evidence in this trial, and no acceptable explanation has been provided for the inconsistency, it may cause me to be hesitant about their accuracy, honesty, reliability and credibility generally.
[566]
In this case, I accept the prosecution submission that I should not automatically prefer Ms Hodge’s evidence about what MT and MS said to her simply because she is an adult. I also accept that there is a real possibility that, in circumstances where there is no record of what the girls said, Ms Hodge either misinterpreted, or has a faulty recollection of, parts of what MT and MS said. In particular, the statements about dog food and a dog collar might be the product of misinterpretation or faulty recollection on Ms Hodge’s part when MT was recorded saying in her second police interview that Kaydence was treated like an animal and that she sounded like a sick dog when she was lying on the red couch.
[567]
Having carefully scrutinised MT’s evidence in light of the matters set out above, I am convinced that what she said about Ms Dawita and Mr Desatge hitting Kaydence when she lived at the Chinchilla house was truthful and accurate. None of those matters cause me to doubt the truthfulness or accuracy of MT’s evidence about Ms Dawita and Mr Desatge hitting Kaydence when she lived at the Chinchilla house.
[568]
There were occasions in her police interviews when it was clear that MT appreciated what she was being asked about and could have taken the opportunity to embellish her evidence. She did not do so. Her exchange with Officer Eisentraut during her third police interview set out at [177] above is a clear example of this. That exchange supports my assessment of MT’s evidence as being credible. I do not accept that MT made up her evidence about Ms Dawita and Mr Desatge hitting Kaydence.
[569]
Nor do I accept the submission for Mr Desatge that the reliability of MT’s evidence was impacted by the leading nature of the questions she was asked by Ms Dawita’s counsel. MT’s statements about Kaydence during her first police interview were entirely unprompted. The questions the police officers asked during MT’s second police interview were non-leading questions which sought to elicit the evidence in her own words. Although the questions she was asked by Ms Dawita’s counsel in cross-examination were leading, MT disagreed with questions which did not accord with what she had said during her police interviews. I do not think that MT was unable to understand the leading questions she was asked, or that she answered leading questions affirmatively when she did not truly agree with the propositions which were put to her.
[570]
MT drew a connection between Kaydence’s toilet training and her being flogged by Mr Desatge with the bamboo stick or cane during her first police interview (see [142] above) and during her second police interview (see [143] and [148]-[151] above). That is consistent with MS’s recollection in her second police interview (see [203] and [209] above). MT also agreed in her pre-recorded evidence that the defendants’ treatment of Kaydence changed when they started to toilet train her, and that Mr Desatge became angrier and angrier when Kaydence had made a mess (see [195] and [198] above). I accept MT’s evidence about those matters.
[571]
I accept MT’s evidence that she saw Mr Desatge on one occasion in the hallway hitting Kaydence on the back of the legs with the bamboo stick when MT got up during the night to go to the toilet (see [149]-[150], [184] and [186] above). I accept MT’s evidence that she heard Mr Desatge using the bamboo stick on other occasions, and that this occurred more often as time progressed towards the last time MT saw Kaydence (see [192] above).
[572]
MS’s evidence about having seen Mr Desatge hit Kaydence with a wooden stick did not include the same level of detail that MT was able to give (see [207], [221] and [224] above). Nevertheless, it supports MT’s evidence about that issue.
[573]
I find that Mr Desatge hit Kaydence with the bamboo stick repeatedly, and with increasing frequency leading up to the night MT saw her on the red couch.
[574]
As to Ms Dawita hitting Kaydence, I accept MT’s evidence that Ms Dawita slapped Kaydence (see [162], [171] and [187] above). MS’s evidence from her second police interview is consistent with that (see [203] above).
[575]
I accept what MT said about bruises she saw on Kaydence, including on her head and face, when she last saw her lying on the red couch (see [161]-[164], [171] and [193] above). In doing so, I have taken account of the evidence of Ms Jackson that in early 2017 she saw Ms Dawita with a girl toddler who had no bruising on her face (see [126]-[130] above). I accept it is possible that this girl toddler was Kaydence. I have been unable to reach a positive conclusion one way or the other about that because of the significant discrepancy between Ms Jackson’s account of Mr Desatge’s mother, Rhonda, being present when she observed the girl toddler and MT’s evidence that Mr Desatge’s mother did not live with the family until after Kaydence had left the Chinchilla house.^[74] Ultimately, the possibility that Ms Jackson (and Ms Brett – see [132]-[133] above) saw Kaydence with Ms Dawita in early 2017 does not cause me to doubt the truthfulness or accuracy of MT’s evidence about the bruises she saw on Kaydence when she was lying on the red couch. Importantly, that evidence was focussed on the last occasion MT saw Kaydence. If it was Kaydence that Ms Jackson or Ms Brett saw with Ms Dawita in early 2017, I am satisfied those sightings occurred before Kaydence suffered the bruises which MT referred to in her second police interview. MS’s evidence that she saw Kaydence with bruises supports MT’s evidence (see [210] and [221] above).
[576]
I find that on the last occasion MT saw Kaydence, she had bruises on her head and face. Some of those bruises were a straight line. I also find that the bruises on Kaydence started to become more and more noticeable as time progressed towards the last time MT saw Kaydence, and that a lot of the time those bruises were straight lines.
[577]
Based on the findings I have made in [573] and [576] above, I infer that the bruises on Kaydence’s head and face, seen by MT when Kaydence was lying on the red couch, were caused by Mr Desatge hitting Kaydence on the head and face with the bamboo stick.
[578]
Although MT said in her pre-recorded evidence that she saw Kaydence with bruises for as long as she lived at the Chinchilla house (see [185] above), I do not regard that broad statement to be reliable given her young age at the time the relevant events occurred and the length of time which passed between her observations of Kaydence at the Chinchilla house and the pre-recording of her evidence. However, that does not cause me to doubt the truthfulness or accuracy of the evidence MT gave in her second police interview about the bruises she saw when Kaydence was lying on the red couch.
[579]
I accept MT’s evidence about Kaydence having to eat her own faeces. She raised that subject unprompted in her first police interview and in her second police interview (see [142]-[143] above). Her pre-recorded evidence as to how that occurred took the form of her agreeing to a series of leading questions asked by Ms Dawita’s counsel (see [196]-[198] above), but there was nothing in the way she gave that evidence which indicated that she did not understand the questions or that she was giving affirmative answers even if she did not agree with the propositions that were put to her.
[580]
Based on MT’s evidence, I find that Mr Desatge forced Kaydence to eat her own faeces repeatedly, and with increasing frequency leading up to the night MT saw her on the red couch. I find that, to the extent that Ms Dawita forced Kaydence to eat her own faeces, she did so at the insistence of Mr Desatge.
[581]
I accept MT’s evidence that the last time that she saw Kaydence she was lying on the red couch. Her eyes were closed. She was not moving. She was alive but was not breathing properly (see [164] and [169] above). Based on MT’s description of Kaydence’s condition when she was on the red couch, Kaydence’s subsequent disappearance from the Chinchilla house, and the defendants’ each conducting their case that Kaydence died while she was on the red couch, I infer that whatever led to Kaydence’s condition on the last time she was seen by MT was a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[582]
I find that no one else was present when MT last saw Kaydence lying on the red couch (see [165] above).
[583]
Ms Hodge did not take notes of her conversations with MT or MS.I find that MT saw Mr Desatge hitting Kaydence with the bamboo stick in the hallway on a different night to the night she got up and saw Kaydence for the last time, when Kaydence was lying on the red couch (see [165] and [188] above).
[584]
There are some aspects of MT’s evidence of the defendants’ treatment of Kaydence that I do not accept. This is not because I have any concern about MT’s credibility but because I am not satisfied that her recollection about these matters is accurate.
[585]
The first matter is MT’s evidence that Kaydence was not given any proper food. The way MT spoke about this in her first police interview indicates that this was a conclusion she had come to because she had seen Kaydence eating her own faeces (see [142] above). Her initial statement in her second police interview also seems to connect Kaydence not eating properly with MT having seen Kaydence eating her own faeces (see [143] above). It is easy to see why a child of MT’s age would draw that conclusion. The sight of Kaydence eating her own faeces is one that would making a significant imprint on a child in MT’s position. The sight of Kaydence eating normally is one that is much less likely to remain in her memory.
[586]
MT did say in her second police interview that Kaydence was fed for a couple of days when they got to the Chinchilla house but that things changed when Kaydence began toilet training (see [148] above). In circumstances where that interview was conducted more than two and a half years after the family had moved into the Chinchilla house, I do not think that MT’s reference to “a couple of days” can be regarded as an accurate recollection on her part of the time during which Kaydence was fed proper food.
[587]
In her pre-recorded evidence, MT agreed that there were occasions where each of Ms Dawita and Mr Desatge sought to give Kaydence food, but the other prevented this (see [183] and [199] above). I accept that evidence, but the fact that it happened occasionally does not satisfy me that Kaydence was not given any proper food.
[588]
MS’s evidence that Kaydence sometimes ate with the family is also inconsistent with the proposition that Kaydence was never given any proper food (see [223] above).
[589]
The second aspect of MT’s evidence that I do not accept is that Kaydence slept in the toilet until the night MT saw her on the red couch. In her first police interview, MT said that Kaydence slept in the toilet but that “three days later” she was allowed to sleep on a couch (see [142] above). Again, MT’s reference to a period of three days should not be treated as a reliable recollection of the period Kaydence was left in the toilet, but this shows that, when MT initially spoke about this subject, she was not saying that Kaydence slept in the toilet the whole time she was at the Chinchilla house. I accept that there were occasions when MT saw Kaydence sleeping in the toilet, in circumstances where she was being toilet trained, but that does not satisfy me that Kaydence did not sleep anywhere other than the toilet until the last night when MT saw her on the red couch. MT’s evidence about this matter is not supported by MS’s evidence that Kaydence slept in the bathroom, which was separate from the toilet (see [206] and [219] above).
[590]
I also do not accept MS’s evidence about seeing Ms Dawita with another woman when Kaydence left the Chinchilla house (see [204] and [217] above). In my view, MS’s recollection about that matter is the result of what she was told about Kaydence being moved to an auntie.

Mr Desatge’s account to the law enforcement participants

[591]
Ms Hodge did not take notes of her conversations with MT or MS.Some of the statements Mr Desatge made to the law enforcement participants – that he came home to be told by Ms Dawita that Kaydence had fallen down the stairs and Ms Dawita refused to let him call an ambulance or take Kaydence to hospital – might be viewed as indicating his innocence of the offence of murder. I am entitled to have regard to Mr Desatge’s exculpatory statements for the purposes of deciding whether they give rise to a reasonable doubt in my mind as to his guilt of the offence of murder.
[592]
Where, as here, exculpatory statements made by an accused out-of-court are in evidence, usually, one of three possible results will follow:

(a)
I may think that Mr Desatge’s exculpatory statements are credible and reliable and that they provide a satisfying answer to the prosecution’s case for murder. If so, my verdict would be not guilty of that offence.

(b)
I might be uncertain about the truth of Mr Desatge’s exculpatory statements but consider that they might be true. In that case my verdict would be not guilty of murder.

(c)
I might not accept Mr Desatge’s exculpatory statements as being truthful, in which case, I am required to put those statements to one side. I must be careful not to jump from non-acceptance of Mr Desatge’s exculpatory statements to an automatic conclusion of guilt. I must then go back to the evidence that I do accept and ask myself if, on the basis of that evidence, the prosecution has proved Mr Desatge’s guilt beyond reasonable doubt.

[593]
Other statements Mr Desatge made to the law enforcement participants might be viewed as supporting the prosecution case against him.
[594]
Before I may rely on inculpatory statements made by Mr Desatge, I must be satisfied that:

(a)
Mr Desatge did make the statements and he was thereby making an admission against interest; and

(b)
the statements he made were true.

[595]
If I am not satisfied that those things said by Mr Desatge which would tend to indicate that he is guilty were true, I cannot rely on those inculpatory statements as going to prove his guilt. I have only acted on inculpatory statements made by Mr Desatge if I am satisfied that the statements were true. If I accept that inculpatory statements made by Mr Desatge were true, then it is up to me to decide what weight I give them, and what I think they prove.
[596]
Statements against interest made by Mr Desatge may only be used in the case against him. I have not considered those statements when deciding if the case has been proved against Ms Dawita.
[597]
For the reasons which follow, I do not accept that the exculpatory statements which Mr Desatge made to law enforcement participants were true.
[598]
First, I find it implausible that if Mr Desatge was faced with the situation he described to the law enforcement participants – where Kaydence was alive but having difficulty breathing and clearly required medical attention – he would acquiesce in Ms Dawita’s refusal to let him call an ambulance or take Kaydence to hospital. As the concession made by Mr Martin referred to at [536] above demonstrates, if Mr Desatge’s account is accepted his acquiescence exposed him to criminal liability for the consequences of the failure to seek medical treatment for Kaydence. Mr Desatge’s assertion that he did not want Ms Dawita to lose custody of the other children, including DT, does not provide a rational explanation for him to have acted that way.
[599]
Secondly, there was an important discrepancy between the account which Mr Desatge gave to Sala and what he said the following day. Mr Desatge told Sala that the events he was describing happened during the day, and on a day when the older girls were at school (see [330] above). The following morning, Mr Desatge said he thought he came home on a Saturday (see [342] above) at about 5:30 pm (see [353] above). That is plainly inconsistent with the events happening at a time when the older girls were at school. I can see no reason why Mr Desatge’s recollection would have changed to such an extent overnight.
[600]
Thirdly, Mr Desatge’s response when Kite asked him if the older girls had seen anything happen at home is important (see [366] above). In the context of the conversation, and Kite’s apparent concern to find out whether anyone apart from Mr Desatge and Ms Dawita knew what had happened to Kaydence (see [359] and [366] above), Mr Desatge must have understood that question to be directed to the whole sequence of events: how Kaydence was hurt, the wrapping of her body after she died, and the subsequent burial. He answered that question definitively and unequivocally: the older girls had not seen anything. The way Mr Desatge gave that answer indicates it was based on his own knowledge. He made no mention of his answer being based on anything that Ms Dawita might have said to him.
[601]
Understood in that way, Mr Desatge’s account of what happened sits comfortably with his answer that the older girls did not see anything related to Kaydence’s body being wrapped or her subsequent burial. Although Mr Desatge minimised his involvement in those events, his account conveyed that he was present for them which consequently indicated that he had a basis for knowing the older girls had not seen anything.
[602]
The same cannot be said for the matter of how Kaydence was hurt. On Mr Desatge’s account, he was not present when Kaydence was hurt and so could not know whether the older girls had seen what happened. He could only confirm that the older girls did not see how Kaydence was hurt if he was present when that happened and knew the older girls were not there to see it. On that basis, I find that Mr Desatge’s statement that the older girls had not seen anything happen at the Chinchilla house contains an implied admission that he was present when Kaydence suffered the injury or injuries which led to her being laid on the red couch in the condition he described (which is consistent with my finding about Kaydence’s condition when MT last saw her on the red couch – see [581] above). I am satisfied beyond reasonable doubt that this implied admission was true.
[603]
Fourthly, Mr Desatge’s account is not consistent with his statement to Ms Dawita in the recording from 3 December 2019 (see [257] above): “Do you understand? Fuckin’ understand? Cause you’re gonna get locked up as well” (my emphasis). On Mr Desatge’s account to Sala and Kite, Ms Dawita was responsible for what had happened to Kaydence. Ms Dawita had Kaydence under her supervision when Kaydence was hurt, and she refused to let Mr Desatge call an ambulance or take Kaydence to hospital. Mr Desatge told Kite that Ms Dawita had said she would take the rap and he had responded by saying that Ms Dawita should take the rap; he was not going to take the rap because Ms Dawita was at home when Kaydence was hurt (see [368] above). That sort of exchange would make sense if Mr Desatge’s account of what happened to Kaydence was true. If Mr Desatge’s account to Sala and Kite was true it could be expected that his response to the police having searched the Chinchilla house on 3 December 2019 would be to tell Ms Dawita what he later said to Kite – that he would not be taking the rap. What he said to Ms Dawita in the recording from 3 December 2019 was very different. I find that Mr Desatge’s recorded statement to Ms Dawita about her being locked up “as well” contains an implied admission that he bears responsibility for what happened to Kaydence. I am satisfied beyond reasonable doubt that this implied admission was true.
[604]
Fifthly, Mr Desatge lied about what happened to Kaydence (see [251], [277]-[278], [293]-[295], [298], [301], [303], [336] and [338] above. Putting aside the issue of consciousness of guilt, that is a matter that reflects poorly on Mr Desatge’s credit when deciding whether to accept the account he ultimately provided to Sala and Kite as truthful. There were other aspects of Mr Desatge’s account to Kite that were plainly untruthful. For example, Mr Desatge’s statement that Ms Dawita did not hit any of the children (see [379] above) was plainly a lie given what Ms Dawita had said in her message to Mr Desatge about hitting Kaydence (see [105]-[106] above).
[605]
I also find that Mr Desatge lied when he told Kite that he saw no bruises on Kaydence (see [358] above) when she was having difficulty breathing in the period preceding her death. I have set out above my finding that Kaydence had bruises on her head and face when MT saw her lying on the red couch, and that these bruises were caused by Mr Desatge hitting her with the bamboo stick.
[606]
Although I have rejected Mr Desatge’s exculpatory statements as untruthful, I do accept that aspects of the account he gave to Sala and Kite were true.
[607]
Based on his statements to Sala and Kite, I find that Mr Desatge was aware of the seriousness of Kaydence’s condition when she was having difficulty breathing in the period preceding her death, and of her need for medical attention. Further, I find that Mr Desatge chose not to seek medical attention for Kaydence. I have already explained that I reject Mr Desatge’s explanation for that – that he did not want Ms Dawita to lose custody of the other children, including his own son – as untruthful.
[608]
I also accept that admissions Mr Desatge made about his conduct following Kaydence’s death were true. I turn now to the findings I make about that conduct.

Mr Desatge’s conduct after Kaydence’s death

[609]
Based on his statement to Kite, I find that Mr Desatge disposed of Kaydence’s clothes, medical papers and backpack after her death (see [365] above).
[610]
I accept MT’s evidence that Mr Desatge used the bamboo stick a lot before Kaydence left but he did not use it at all after Kaydence left (see [192] above). MS’s evidence is consistent with that (see [211] and [224] above). From this, I infer that Mr Desatge disposed of the bamboo stick after Kaydence’s death.
[611]
Based on his plea of guilty to count 3, and the formal admission concerning the response of the police dog to the outhouse in the backyard of the Chinchilla house (see [256] above), I find that Mr Desatge was involved in the placement of Kaydence’s body in that outhouse.
[612]
Based on his statements to Kite, I find that Mr Desatge purchased items required for Kaydence’s burial (see [355], [372] and [374] above).
[613]
Based on his plea of guilty to count 4 and his admissions to Sala and Kite, I find that Mr Desatge was involved in the burial of Kaydence’s body near the Chinchilla weir.
[614]
Based on his statements to Kite, I find that Desatge disposed of the tarp used to transport Kaydence’s body to the Chinchilla weir and the shovel used to bury her (see [356]-[357] above).
[615]
Based on his statement to Kite, I find that Desatge agreed to lie about what had happened to Kaydence and say that she had gone to live with an auntie (see [367] above).
[616]
I accept MT’s evidence that Mr Desatge (together with Ms Dawita) told the other children that Kaydence had been picked up and gone to live with other family (see [166] and [175] above). Although MT gave different accounts in her interviews about what she had been told about the identity of who had picked Kaydence up, this uncertainty on her part does not cause me to doubt the truthfulness and accuracy of her evidence that she was told Kaydence had gone to live with family.
[617]
In addition to lying to the other children, I find that Mr Desatge told the following lies after Kaydence’s death:

(a)
on 5 November 2019, telling Ms Fleming that he did not know where Kaydence was (see [251] above);

(b)
on 20 February 2020, telling Takai that he was at work when Kaydence left and returned to find that she had been given to an auntie (see [277] above);

(d)
on 28 February 2020, telling Savaliga the substance of what he had told police about Kaydence: that he was at work, he came home and Kaydence was gone (see [284] above);

(e)
on 29 February 2020, telling Sala during their first conversation that he came home from work and Ms Dawita told him that she had given Kaydence away to an Auntie Sarah who was related to Robert Mills (see [293], [295] and [298] above);

(f)
on 29 February 2020, maintaining to Savaliga that the account he had given – coming home to find Kaydence gone with an auntie – was true (see [303] above);

(g)
on 1 March 2020, telling Kite (in Savaliga’s presence) that he saw no bruises on Kaydence (see [358] above).

Ms Dawita’s conduct after Kaydence’s death

[618]
I accept MT’s evidence that Ms Dawita threw all of Kaydence’s possessions away (see [170] above).
[619]
Based on her plea of guilty to count 3, and the formal admission concerning the response of the police dog to the outhouse in the backyard of the Chinchilla house (see [256] above), I find that Ms Dawita was involved in the placement of Kaydence’s body in that outhouse.
[620]
Based on her plea of guilty to count 4, I find that Ms Dawita was involved in the burial of Kaydence’s body near the Chinchilla weir.
[621]
I accept MT’s evidence that Ms Dawita (together with Mr Desatge) told the other children that Kaydence had been picked up and gone to live with other family (see [166] and [175] above).
[622]
I also find that Ms Dawita told numerous lies about Kaydence after her death. Those lies are set out in [225]-[239], [241], [244], [248] and [252]-[254] above.

Motive – Mr Desatge

[623]
I accept Mr Lindsay’s evidence about the conversation he had with Ms Dawita and Mr Desatge in November or December 2016 concerning Mr Mills (see [113] above). Mr Lindsay’s evidence is consistent with Mr Dickman’s evidence of the conversation he had with Mr Desatge at the Tully flat (see [500] above).
[624]
I accept Mr Dickman’s evidence that Mr Destage told him he did not like Kaydence because Mr Mills was her father. Although I do not accept that Mrs Dickman heard that part of the conversation, her evidence that Mr Dickman was upset when he spoke to her later about what Mr Desatge had said about Kaydence supports Mr Dickman’s account (see [504]-[505] above). I also accept the evidence of both Mr Dickman (see [501] above) and Mrs Dickman (see [506] above) that Mr Desatge treated Kaydence differently to the other children. That evidence is consistent with observations made by Ms Banu (see [498]-[499] above) and with MT’s evidence of Mr Desatge’s relationship with Kaydence and the older girls (see [192], [194], [199], [490] and [492] above).
[625]
Mr Desatge’s dislike of Kaydence was made plain in his own description of her as “that dying little cunt” in the recording from 3 December 2019 (see [257] above). Although Mr Desatge was affected by alcohol when he made that statement, I am satisfied that it reveals his true feelings towards Kaydence.
[626]
Based on this evidence, I find that Mr Desatge felt a significant degree of animosity towards Mr Mills and this animosity influenced his feelings towards Kaydence and his treatment of her.

Motive – Ms Dawita

[627]
I accept Mr Lindsay’s evidence that Ms Dawita appeared to be very fearful of Mr Mills (see [113] above). That fear is explained by the formal admission that Mr Mills committed domestic violence against Ms Dawita, including by threatening to kill her and arguing with her while armed with a knife (see [98] above). However, unlike the position with Mr Desatge, I am not satisfied on the evidence that Ms Dawita’s treatment of Kaydence was motivated by her feelings towards Mr Mills. MT’s evidence about Ms Dawita’s attitude towards Kaydence was equivocal (compare [167] and [170] above). What is clear from MT’s evidence is that Ms Dawita hit all of the children when she became frustrated and angry, including DT and DS (see [465]-[472] above). Having regard to that evidence, I am not satisfied that Ms Dawita’s treatment of Kaydence was the result of Ms Dawita’s feelings towards Mr Mills.

Reasoning to verdict on count 2 – Mr Desatge

[628]
I commence by considering the case under s 302(1)(a) of the Criminal Code.

Kaydence is dead

[629]
Based on Mr Desatge’s plea of guilty to counts 3 and 4, as well as his admissions to Sala and Kite about his involvement in burying Kaydence, I am satisfied beyond reasonable doubt that Kaydence is dead.

Did Mr Desatge cause Kaydence’s death?

[630]
A person who causes the death of another, directly or indirectly and by any means whatever, is deemed to have killed that other person. To decide whether Mr Desatge caused Kaydence’s death I must decide whether the acts or omissions alleged against him were a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[631]
It does not matter that death was not immediate. If the acts or omissions of Mr Desatge led to Kaydence suffering an injury or condition which in the ordinary course resulted in her death, then Mr Desatge is responsible for that death however long after his acts the death occurred.
[632]
The means by which a person causes the death of another may be direct or indirect, as long as those means are, or are caused by, the person’s acts or omissions.
[633]
To prove Mr Desatge’s acts or omissions caused Kaydence’s death it is not necessary to prove they were the sole or only contributing cause of death. However, it must be proved his acts or omissions were a substantial or significant cause of death or contributed substantially to the death.
[634]
Whether it has been proved that Mr Desatge’s acts or omissions were a substantial or significant cause of Kaydence’s death or contributed substantially to her death is not a question for scientists or philosophers. It is a question for me to answer, applying common sense to the facts as I find them, appreciating I am considering legal responsibility in a criminal matter and the high standard of satisfaction required is proof beyond a reasonable doubt.
[635]
My consideration of Mr Desatge’s conduct as potentially causing death must be confined to such of his acts or omissions, if any, as have been proved beyond a reasonable doubt. I have explained the reasons why I have rejected Mr Desatge’s account of coming home to be told by Ms Dawita that Kaydence had fallen down the stairs, and Ms Dawita refusing to let him call an ambulance or take Kaydence to hospital. Simply rejecting this account cannot support a finding that an act or omission of Mr Desatge was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. I must be satisfied of that beyond reasonable doubt based on the evidence which I have accepted and the findings of fact that I have made.
[636]
In this case, the medical evidence does not establish the cause of Kaydence’s death. Consequently, the prosecution must prove that an act or omission of Mr Desatge was a substantial or significant cause of, or contributed substantially to, Kaydence’s death by inference. This means that I must consider two issues. First, whether it is reasonable to draw that inference based on the facts I have found. Secondly, whether on the evidence it is the only rational inference that the circumstances enable me to draw.
[637]
As to the first issue, I am satisfied that it is reasonable to infer from the facts I have found that an act or acts committed by Mr Desatge, namely hitting Kaydence on the head and face with the bamboo stick, was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. That inference can be drawn from the following facts, of which I am satisfied beyond reasonable doubt:

(a)
Mr Desatge hit Kaydence with the bamboo stick repeatedly, and with increasing frequency leading up to the last time MT saw her on the red couch;

(b)
Kaydence had bruises on her head and face, some of which were a straight line, the last time MT saw her;

(d)
whatever led to Kaydence’s condition when she was last seen by MT was a substantial or significant cause of, or contributed substantially to, her death;

(e)
Mr Desatge’s statement to Kite that the older girls had not seen anything contains an implied admission that he was present when Kaydence suffered the injury or injuries which led to her being laid on the red couch in the condition described by MT; and

(f)
Mr Desatge’s statement to Ms Dawita in the recording from 3 December 2019 about Ms Dawita being locked up “as well” contains an implied admission that he is responsible for what happened to Kaydence.

[638]
I consider that Mr Desatge’s animosity towards Mr Mills explains his conduct in hitting Kaydence in the head and face with the bamboo stick, but I am satisfied that the inference that Mr Desatge caused Kaydence’s death can be drawn regardless of my acceptance that fact.
[639]
Further, my conclusion that it is reasonable to draw this inference does not depend upon the prosecution establishing that Kaydence suffered the base of skull fracture before she died. Put another way, the prosecution’s inability to exclude the possibility that Kaydence suffered the base of skull fracture after she died does not affect my conclusion that, based on the proven facts I have identified, it is reasonable to draw the inference that Mr Desatge’s conduct – hitting Kaydence on the head and face with the bamboo stick – was a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[640]
As to the second issue, I must consider whether the circumstances are consistent with any reasonable hypothesis other than Mr Desatge’s conduct being a substantial or significant cause of, or contributing substantially to, Kaydence’s death.
[641]
As the High Court said in R v Baden-Clay:^[75]

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’. … Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’. … The evidence is not to be looked at in a piecemeal fashion….”

[642]
The first hypothesis said to be consistent with Mr Desatge not having caused Kaydence’s death is that Kaydence suffered the injury which led to her death in a fall down the stairs at the Chinchilla house. The only evidence that could support this inference is Mr Desatge’s exculpatory statements to Sala and Kite; that is, Ms Dawita told Mr Desatge that is how Kaydence suffered her injury. I have explained why I am satisfied beyond reasonable doubt that these exculpatory statements are not truthful and should be rejected. Once those statements are rejected there is no basis in the evidence to infer that Kaydence fell down the stairs. The suggestion rises no higher than mere conjecture. Even if it could be inferred that Kaydence had fallen down the stairs, having regard to the height of the stairs and as a matter of common sense, I am satisfied beyond reasonable doubt that a fall down those stairs would not have resulted in an injury that caused Kaydence’s death.
[643]
The second hypothesis said to be consistent with Mr Desatge not having caused Kaydence’s death is that Ms Dawita, acting alone, caused Kaydence’s death by striking her. I am satisfied beyond reasonable doubt that no such inference is reasonably open on the evidence. The evidence which I have accepted is that Ms Dawita slapped Kaydence out of frustration. There is no evidence that Ms Dawita hit Kaydence with anything other than an open hand. I have found that the bruises on Kaydence’s head and face were caused by Mr Desatge hitting her with the bamboo stick. I am satisfied beyond reasonable doubt that Ms Dawita’s acts – slapping Kaydence – did not cause those bruises. Further, I am satisfied beyond reasonable doubt that Ms Dawita’s acts did not cause the injury or condition which resulted in Kaydence’s death.
[644]
Mr Martin also emphasised the prosecution’s inability to exclude the possibility that the base of skull fracture referred to in the medical evidence was caused after Kaydence died, when her body was wrapped and buried. As already discussed, this possibility is relevant to the question whether it is reasonable to draw the inference that Mr Desatge’s conduct was a substantial or significant cause of, or contributed substantially to, her death. Having concluded that it is reasonable to draw that inference, the possibility that the base of skull fracture occurred after Kaydence died does not give rise to any reasonable competing inference as to what caused Kaydence’s death. That is, although it must be accepted that the base of skull fracture might have occurred after Kaydence died, that circumstance is not evidence of objective facts from which it would be reasonable to draw an inference that Kaydence’s death was caused by some mechanism other than Mr Desatge’s conduct which I have found to have been proved beyond reasonable doubt.
[645]
Having regard to the whole of the evidence, I am satisfied that the only rational inference that the circumstances enable me to draw is that Mr Desatge’s conduct was a substantial or significant cause of, or contributed substantially to, Kaydence’s death.
[646]
Accordingly, I am satisfied beyond reasonable doubt that the prosecution has established this second element.

Unlawfulness

[647]
All killing is unlawful, unless authorised, justified or excused by law.
[648]
It was no part of Mr Desatge’s defence that, if I found the prosecution has established the first two elements beyond reasonable doubt, the killing of Kaydence was authorised, justified or excused by law. That is clear from Mr Martin’s concession that it is open to find Mr Desatge guilty of manslaughter.
[649]
I am satisfied beyond reasonable doubt that Mr Desatge caused Kaydence’s death unlawfully.

Did Mr Desatge have the requisite intention when he caused Kaydence’s death?

[650]
Having reached that point, I am satisfied beyond reasonable doubt that Mr Desatge is criminally responsible for the unlawful killing of Kaydence. Whether that unlawful killing constitutes the offence of murder, or the alternative offence of manslaughter, depends upon whether the prosecution has established that, when he caused Kaydence’s death, Mr Desatge intended to kill Kaydence or to cause her grievous bodily harm.
[651]
The mental element of intention is the extra element required to prove an unlawful killing constitutes the offence of murder. If it is not proved beyond reasonable doubt, an unlawful killing would only be manslaughter. Having found that Mr Desatge’s acts unlawfully killed Kaydence, element four requires me to be satisfied beyond reasonable doubt that, in so acting, he intended to, at least, cause some grievous bodily harm to her.
[652]
Grievous bodily harm is defined in s 1 of the Criminal Code as follows:

“grievous bodily harm means—

the loss of a distinct part or an organ of the body; or

serious disfigurement; or

any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.”

[653]
“Intent” and “intention” are familiar words. In this legal context, they carry their ordinary meaning.
[654]
In considering whether Mr Desatge held the relevant intention, I am drawing an inference from facts which I find established by the evidence concerning his state of mind. Intention may be inferred or deduced from the circumstances in which Mr Desatge acted, and from his conduct before, at the time of, or after he caused Kaydence’s death. Whatever Mr Desatge has said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time.
[655]
While I can have regard to earlier and later events in considering whether the requisite intention existed, I should appreciate it is not necessary for the prosecution to prove the intention was held for a long time before Mr Desatge’s fatal actions or that the intention lingered afterwards. The time at which Mr Desatge must be proved to have held at least the intention to do grievous bodily harm is the time at which he committed the act or acts which caused Kaydence’s death.
[656]
For the element of intention to be proved I must be satisfied beyond reasonable doubt that, in acting as he did, Mr Desatge actually held at least the intention to cause grievous bodily harm to Kaydence. Nothing less will suffice. What if I think the evidence may support more than one inference, so that there are competing potential inferences on this issue? There may be the guilty inference, that Mr Desatge held the intention to do grievous bodily harm. There may also be inferences consistent with innocence, such as Mr Desatge coming home drunk and hitting Kaydence with the bamboo stick in anger or to discipline Kaydence but without the intention to kill her or cause her grievous bodily harm. In such a situation it is essential not only that the evidence is strong enough to sustain the guilty inference but that it is the only remaining inference. That is, that all inferences consistent with innocence have been excluded beyond a reasonable doubt. This merely reflects the prosecution’s obligation to prove the element of intention beyond a reasonable doubt. It will not have done that if there lingers a real possibility Mr Desatge held no particular intention to do harm in acting as he did, or if he did, that the harm he intended was something less than an intention to do grievous bodily harm.
[657]
If I am not satisfied beyond reasonable doubt that Mr Desatge had the requisite intention at the time of his alleged actions, then I would acquit him of murder. In that event, having been satisfied beyond reasonable doubt of the first three elements, I would convict Mr Desatge of manslaughter.
[658]
It is not for Mr Desatge to prove anything. Unless the prosecution proves beyond reasonable doubt that he held the requisite intention I must find him not guilty of murder. If, however, I am satisfied beyond reasonable doubt that, when Mr Desatge committed the acts which caused Kaydence’s death, he at least intended to cause grievous bodily harm, then I would find him guilty of murder. For that purpose, the question is not whether Mr Desatge meant to hit Kaydence with the bamboo stick, but whether in hitting Kaydence with the bamboo stick, he intended at least to cause her grievous bodily harm.
[659]
I consider that it is open on the facts which I have found to draw the inference that in causing Kaydence’s death, Mr Desatge had at least the intention of doing grievous bodily harm to her. Further, I am satisfied on the evidence that is the only rational inference that the circumstances enable me to draw. I have reached those conclusions based on the following matters.
[660]
First, I have found that the acts which caused Kaydence’s death were the culmination of Mr Desatge’s escalating use of violence against her by striking her with the bamboo stick. Those acts were not an isolated incident of violence that can be explained by the influence of alcohol, a flash of anger or a misguided approach to discipline. I am satisfied that, in striking Kaydence repeatedly and with increasing frequency, so as to cause bruising to her head and face and, ultimately, her death, Mr Desatge acted with the intention of at least causing her grievous bodily harm.
[661]
Secondly, I am satisfied beyond reasonable doubt that Mr Desatge would have had to use considerable force, when he struck Kaydence in the head and face with the bamboo stick, to inflict the injuries which caused her death. I reject the possibility that Mr Desatge used force that was sufficient to cause Kaydence’s death without having the intention of at least causing her grievous bodily harm.
[662]
Thirdly, Mr Desatge chose not to seek medical attention for Kaydence in the period preceding her death when, as I have found, he was aware of the seriousness of Kaydence’s condition and of her need for medical attention. I reject the possibility that Mr Desatge would have taken that course if he did not have the intention of at least causing grievous bodily harm to Kaydence. If that was not his intention when he hit Kaydence in the head and face with the bamboo stick then, upon realising the effect of his actions on Kaydence, he would have sought medical treatment for her.
[663]
Fourthly, Mr Desatge’s conduct after Kaydence’s death establishes his consciousness of guilt of the offence of murder. As to that, I have found that Mr Desatge:

disposed of the bamboo stick;

disposed of Kaydence’s possessions;

was involved in placing Kaydence’s body in the outhouse in the backyard of the Chinchilla house;

purchased items required to bury Kaydence;

was involved in burying Kaydence’s body near the Chinchilla weir;

disposed of items used in the burial;

agreed with Ms Dawita to lie about what had happened to Kaydence and say that she had gone to live with an auntie;

together with Ms Dawita, lied when he told the other children that Kaydence had been picked up and gone to live with other family;

told the further lies set out at [617] above.

[664]
In treating lies told by Mr Desatge as conduct evidencing consciousness of guilt, I have borne in mind the requirement that I be satisfied of the following matters:

I am satisfied beyond reasonable doubt that Mr Desatge told deliberate untruths. I have reached that conclusion bearing in mind that there is a difference between the mere rejection of a person’s account of events and a finding that the person has lied. In many cases, where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told. The person may have been confused; or there may be other reasons which would prevent a finding that he has deliberately told an untruth. That is not the case here. Based on the admissions in the account which he ultimately gave to Sala and Kite, I am satisfied that Mr Desatge lied.

I am satisfied beyond reasonable doubt that Mr Desatge’s lies were concerned with a circumstance or event connected with the offence of murder. I have reached that conclusion bearing in mind that I can only use a lie against Mr Desatge if I am satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence of murder or some aspect of it. As to that, I reject the possibility that Mr Desatge lied so that Ms Dawita would not lose the other children. I further reject the possibility that Mr Desatge lied to conceal the occurrence of an accidental death or a crime in which he was not involved. I am satisfied that Mr Desatge’s lies reveal, at the very least, his knowledge that he caused Kaydence’s death.

I am satisfied beyond reasonable doubt that Mr Desatge lied because he knew that the truth of the matter would implicate him in the commission of the offence of murder, and not of the lesser offences of manslaughter, torture or interference with a corpse. I have reached that conclusion bearing in mind the need for me to carefully consider the possibility that the consciousness of guilt revealed by the lies relates to those lesser offences. I reject that possibility. I do not accept that consciousness of guilt of the lesser offences, or any other reason, is the explanation for Mr Desatge’s lies. I am satisfied beyond reasonable doubt Mr Desatge lied to conceal both the fact that he caused Kaydence’s death by hitting her on the head and face with the bamboo stick and, further, that when he did so he intended to cause at least grievous bodily harm to her. That is, Mr Desatge lied out of a realisation that the truth would implicate him in the offence of murder.

[665]
As to Mr Desatge’s broader conduct after Kaydence died, including his lies, I am satisfied beyond reasonable doubt that Mr Desatge acted as he did because he knew he was guilty of murder and not for any other reason. I have reached that conclusion bearing in mind that people do not always act rationally and that conduct of this sort can often be explained in other ways: for example, as the result of panic, fear or other reasons having nothing to do with the offence charged. As I have explained when addressing Mr Desatge’s lies, I reject the possibility that Mr Desatge acted as he did so that Ms Dawita would not lose the other children. I further reject the possibility that Mr Desatge acted as he did to conceal the occurrence of an accidental death or a crime in which he was not involved.
[666]
Here again, I have carefully considered the possibility that the consciousness of guilt revealed by Mr Desatge’s conduct after Kaydence died relates to the lesser offences of manslaughter or torture. Again, I reject that possibility. I am satisfied beyond reasonable doubt that the lengths to which Mr Desatge went to conceal Kaydence’s body and to conceal his part in her death went beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed Kaydence or some lesser offence.
[667]
I do not accept that consciousness of guilt of the lesser offences, or any other reason, is the explanation for Mr Desatge’s conduct after Kaydence’s death. As previously stated, I am satisfied beyond reasonable doubt Mr Desatge acted as he did to conceal both the fact that he caused Kaydence’s death by hitting her on the head and face with the bamboo stick and, further, that when he did so he intended to cause at least grievous bodily harm to her. Having reached the conclusion that there is no other explanation for Mr Desatge’s conduct after Kaydence’s death, I have used that finding as a circumstance pointing to Mr Desatge’s guilt for the offence of murder to be considered with all the other evidence in the case.
[668]
For the reasons set out above, I am ultimately satisfied that the prosecution has established beyond reasonable doubt that when he caused Kaydence’s death, Mr Desatge had the intention of at least doing grievous bodily harm to her.

Conclusion

[669]
The prosecution having satisfied me beyond reasonable doubt of each of the four elements to prove murder under s 302(1)(a) of the Criminal Code, founded upon an intention to kill or do grievous bodily harm, I find Mr Desatge guilty of the murder of Kaydence.
[670]
Consequently, it is not necessary for me to consider the alternative case under s 286 of the Criminal Code.

Reasoning to verdict on count 1 – Mr Desatge

[671]
Torture means the intentional infliction of severe pain or suffering on a person by an act or a series of acts done on one occasion or more than one occasion. The prosecution must prove each of the three elements of the offence, identified at [19] above, beyond reasonable doubt.

Infliction of severe pain or suffering

[672]
To inflict pain or suffering is to cause it to be felt. The pain or suffering may be physical, mental, psychological or emotional and it may be temporary or permanent (s 320A(2) of the Criminal Code). Pain or suffering are subjective. One person may experience greater pain or suffering from the same pain-provoking factor than another person. The question of whether any pain or suffering was severe is a matter of fact for me to determine.
[673]
Based on my findings as to Kaydence’s condition when she was last seen by MT (see [576] and [581] above), I am satisfied that Kaydence endured severe pain and suffering before she died.
[674]
Further, in reasoning to my verdict on count 2, I have explained the basis for my finding that Mr Desatge caused Kaydence’s death by hitting her on the head and face with the bamboo stick. For the same reasons, I am satisfied beyond reasonable doubt that, by hitting Kaydence on the head and face with the bamboo stick, Mr Desatge inflicted severe pain or suffering on Kaydence before she died.
[675]
I therefore find the first element of the offence of torture proved beyond reasonable doubt.

Intention

[676]
The prosecution must prove beyond reasonable doubt that Mr Desatge intended his act or acts to inflict severe pain or suffering on Kaydence. It is not enough that such suffering is the consequence of Mr Desatge’s acts and that the acts were deliberate. The prosecution must prove an actual, subjective, intention on the part of Mr Desatge to cause severe pain or suffering by his conduct. The acts in question must have the infliction of such pain and suffering as their design or object; that must be their intended consequence or purpose. The prosecution must prove that Mr Desatge consciously decided to commit the acts in order to cause Kaydence severe pain or suffering.
[677]
In reasoning to my verdict on count 2, I have explained my reasons for finding that when he caused Kaydence’s death by hitting her on the head and face with the bamboo stick, Mr Desatge had the intention of at least doing grievous bodily harm to her. For the same reasons, I am satisfied beyond reasonable doubt that by the same conduct Mr Desatge intentionally inflicted severe pain or suffering on Kaydence.
[678]
I therefore find the second element of the offence of torture proved beyond reasonable doubt.

An act or series of acts done on one occasion or more than one occasion

[679]
The prosecution must prove that Mr Desatge intentionally inflicted severe pain or suffering on Kaydence by at least one act. A series of acts which by their cumulative effect result in the infliction of severe pain or suffering is sufficient, but to convict of torture I must be satisfied that Mr Desatge did particular acts described in the evidence, that those were done for the purpose of causing severe pain and suffering, and that they did result in that intentionally inflicted condition. I do not have to be satisfied that every incident or act alleged by the prosecution actually occurred, but I must be satisfied as to acts that did occur and by which severe pain and suffering was intentionally inflicted on Kaydence.
[680]
Again, I have found that Mr Desatge caused Kaydence’s death by hitting her on the head and face with the bamboo stick. That finding also means that I am satisfied beyond reasonable doubt of the third element of the offence of torture.

Conclusion

[681]
The prosecution having satisfied me beyond reasonable doubt of each of the three elements to prove torture under s 320A of the Criminal Code, I find Mr Desatge guilty on count 1.

Reasoning to verdict on count 2 – Ms Dawita

Liability as a principal offender

[682]
Consideration of the particulars of the prosecution case under count 2 reveals that a necessary element of each alternative case against Ms Dawita for the unlawful killing of Kaydence is that an act or omission by her was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. Put another way, for me to find Ms Dawita guilty of the offence of murder (whether on the case under s 286 of the Criminal Code or on the alternative case under s 302(1)(a) of the Criminal Code), or find her guilty of the alternative offence of manslaughter (whether on the case under s 286 of the Criminal Code or on the alternative case under s 303(1) of the Criminal Code), the prosecution must prove beyond reasonable doubt that she caused Kaydence’s death.
[683]
As I explained in reasoning to my verdict on count 2 in the case against Mr Desatge, the absence of medical evidence which establishes the cause of Kaydence’s death means that the prosecution must prove that an act or omission of Ms Dawita was a substantial or significant cause of, or contributed substantially to, Kaydence’s death by inference. This means that, to find that the element of causation has been proved beyond reasonable doubt, I must be satisfied that the inference that Ms Dawita caused Kaydence’s death must be the only rational inference that the circumstances enable me to draw.
[684]
I am not satisfied that an inference that Ms Dawita caused Kaydence’s death, whether in combination with Mr Desatge or alone, and by either an act or acts which led to Kaydence’s condition when she was last seen by MT, or by some act, or combination of acts, of mistreatment, is the only rational inference that is open on the evidence admissible in the case against Ms Dawita. Based on the facts which I have found concerning Mr Desatge’s use of the bamboo stick to hit Kaydence on the head and face, I am not satisfied that the prosecution has excluded the reasonable hypothesis that it was Mr Desatge’s acts which inflicted the injury or brought about the condition which caused Kaydence’s death, without the involvement of Ms Dawita.
[685]
I have also considered whether the prosecution has proved beyond reasonable doubt that, separately to Mr Desatge hitting Kaydence in the head and face with the bamboo stick, Ms Dawita’s failure to seek medical treatment for Kaydence when it was apparent that she required such care was a substantial or significant cause of, or contributed substantially to, Kaydence’s death. That would fall within the case against Ms Dawita relying on s 286 of the Criminal Code. For this to be the only rational inference that the circumstances enable me to draw, I must be satisfied that Ms Dawita was aware of the physical condition that Kaydence was left in after Mr Desatge’s acts of violence and, more specifically, the condition which Kaydence was in when she was on the red couch in the period preceding her death.
[686]
There is no direct evidence that Ms Dawita saw Kaydence when she was alive but not breathing properly. No one else was present when MT saw Kaydence in this condition when she was lying on the red couch. I have rejected Mr Desatge’s statements to Sala and Kite about Ms Dawita having refused to let him call an ambulance or take Kaydence to hospital. Those statements are not admissible in the case against Ms Dawita in any event. This means that a finding that Ms Dawita saw Kaydence’s condition, and consequently knew of her need for medical care, would also have to be made by inference.
[687]
The medical evidence is relevant to this issue. That evidence leaves open the reasonable possibility that:

Kaydence suffered the base of skull fracture before she died;

Mr Desatge caused the base of skull fracture by hitting Kaydence on the back of the neck with the bamboo stick using severe force;

Kaydence died because of an associated injury to the brain or spinal cord caused by the same application of severe force which caused the base of skull fracture.

[688]
On that hypothesis, the medical evidence was that the time in which Kaydence might have died because of the base of skull fracture and associated injury ranged from immediately up to a period of days (see [405] and [421] above).
[689]
My finding that Kaydence was alive but was not breathing properly the last time MT saw her excludes the possibility that (on the hypothesis I am considering) Kaydence died immediately. Nevertheless, upon considering MT’s evidence and the medical evidence together I accept that there remains the possibility that:

Mr Desatge struck Kaydence with the blow or blows which caused the base of skull fracture and associated injuries during the night when no one else was present;

Ms Dawita did not see or hear Mr Desatge strike Kaydence with that blow or blows;

when she got up during the night to go to the toilet, MT observed Kaydence’s condition after she had been struck;

Kaydence died as a result of the base of skull fracture and associated injury in the period between MT getting up during the night and whatever time Ms Dawita woke up the next morning;

consequently, Ms Dawita did not become aware that Kaydence required medical care until after Kaydence had died.

[690]
If the standard of proof was the balance of probabilities I would have inclined to the view that it is likely that Ms Dawita was aware that Kaydence required medical care before her death, but did not seek this care because of a fear that Child Safety officers would remove the children from her care if they became aware of Kaydence’s condition. However, the fact that the prosecution has not excluded the scenario set out in the preceding paragraph means that it has not discharged its burden of proving beyond reasonable doubt that, by failing to seek medical care for Kaydence, Ms Dawita caused her death. On the basis that the scenario set out in the preceding paragraph might have occurred, I am not satisfied that Ms Dawita having caused Kaydence’s death by failing to obtain medical care when the need for such care was apparent is the only rational inference that the circumstances enable me to draw.
[691]
For completeness, I note that the particulars of the prosecution case under s 286 of the Criminal Code did not allege that Ms Dawita’s failure to send Kaydence away from the Chinchilla house to be cared for by someone else, such as Ms Banu, was a substantial or significant cause of, or contributed substantially to, Kaydence’s death either on its own or in combination with any other act or omission. Consequently, it is neither necessary nor appropriate for me to consider that issue.
[692]
In summary, in its case against Ms Dawita the prosecution has not excluded reasonable hypotheses which are consistent with her not having caused Kaydence’s death: firstly, that Mr Desatge inflicted the base of skull fracture and associated injuries without Ms Dawita’s involvement; secondly, that Ms Dawita did not become aware of Kaydence’s condition, and her consequent need for medical care, before Kaydence died as a result of the base of skull fracture and associated injuries. On that basis, I am not satisfied that the prosecution has proved the element of causation beyond reasonable doubt in its case against Ms Dawita.
[693]
Accordingly, I find that Ms Dawita is not liable as a principal offender for the unlawful killing of Kaydence; that is, Ms Dawita is not liable as a principal offender for the offence of murder, or for the alternative offence of manslaughter.

Liability as a party to the prosecution of a common unlawful purpose

[694]
It remains for me to consider whether the prosecution has established that Ms Dawita is liable for the unlawful killing of Kaydence under s 8 of the Criminal Code. That section provides:

“Offences committed in prosecution of common purpose

When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

[695]
If two or more people plan to do something unlawful together and, in carrying out the plan, an offence is committed, the law is that each of those people is taken to have committed that offence if, but only if, it is the kind of offence likely to be committed as the result of carrying out that plan.
[696]
For the prosecution to prove Ms Dawita guilty relying on s 8, I must be satisfied beyond reasonable doubt that:

that there was a common intention to prosecute an unlawful purpose (and I must consider carefully and in detail what was the alleged unlawful purpose, and what its prosecution was intended to involve);

that the offence of murder (constituted either by the wilful failure to comply with the duty imposed under s 286 with the intention of ultimately killing Kaydence, or the intentional killing of Kaydence by the act or acts which led to her condition when MT last saw her) or, alternatively, the offence of manslaughter (constituted either by the failure to comply with the duty imposed under s 286 without the intention of killing Kaydence, or the unintentional killing of Kaydence by the act or acts which led to her condition when MT last saw her) was committed in the prosecution or carrying out of that purpose;

that the offence of murder, or alternatively, the offence of manslaughter (as each described in the preceding subparagraph) was of such a nature that its commission was a probable consequence of the prosecution of that purpose.

[697]
A great deal depends on the precise nature of any common unlawful purpose, proved by the evidence in the light of the circumstances of the case, particularly the state of knowledge of Ms Dawita. It is Ms Dawita’s own subjective state of mind as established by the evidence, which decides what was the content of the common intention to prosecute an unlawful purpose. That common intention is critical because it defines the restrictions on the nature of the acts done or omissions made which Ms Dawita is deemed by the section to have done or made.
[698]
When considering what any common intention was, and what any common unlawful purpose was, I must consider whether I am satisfied beyond reasonable doubt that Ms Dawita agreed to a common purpose that involved mistreating Kaydence in the manner set out in [28] above.
[699]
If I am satisfied beyond reasonable doubt there was a common intention to prosecute an unlawful purpose and what that was, I must consider whether I am satisfied beyond reasonable doubt that an offence of murder, or alternatively an offence of manslaughter (as each described in [696](b) above) was committed in the prosecution or furtherance or carrying out that purpose.
[700]
If so satisfied, I must consider whether I am satisfied beyond reasonable doubt that the nature of the offence committed was such that its commission was a probable consequence of the prosecution or furtherance or carrying out of the common unlawful purpose. The probable consequence is a consequence which would be apparent to an ordinary reasonable person with Ms Dawita’s state of knowledge at the time when the common purpose was formed. That test is an objective one and is not whether the relevant defendant in fact recognised the probable consequence or realised or foresaw it at the time the common purpose was formed.
[701]
A probable consequence is more than a mere possibility. For a consequence to be a probable one, it must be one that I would regard as probable in the sense that it could well have happened. So, for the offence actually committed to be “a probable consequence” of carrying out the unlawful common purpose, the commission of the offence must be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose.
[702]
The prosecution’s case was that Ms Dawita’s intention to prosecute the unlawful purpose of mistreating Kaydence in common with Mr Desatge should be inferred from her failure to remove Kaydence from the danger which Mr Desatge posed and her conduct after Kaydence died. Mr Lehane asked rhetorically during the prosecution’s closing address: if a person was not involved in their partner’s appalling mistreatment of a child under their care and wanted no part of that behaviour, would that person not be expected to inform someone about what their partner was doing, leave the relationship and remove others from it as well? He submitted that Ms Dawita’s conduct was the opposite of what would be expected if she did not hold the common intention to mistreat Kaydence. On the prosecution case, Ms Dawita’s conduct is evidence that she agreed with Mr Desatge, even if only implicitly, as to the way in which Kaydence came to be treated.
[703]
I accept that it is open on the evidence to draw such an inference. I consider it likely that Ms Dawita’s failure to take steps to prevent Mr Desatge’s mistreatment of Kaydence reflects, at least, a tacit or implicit agreement on her part as to the continuation of that mistreatment, particularly when that failure is considered in light of Ms Dawita’s own conduct towards Kaydence and her involvement in concealing Kaydence’s death. Nevertheless, I am not satisfied that it is the only rational inference that the circumstances enable me to draw.
[704]
I accept the evidence of Ms Davis-Collier at [109] above that, on the first occasion she saw Ms Dawita with Kaydence and the other children at the Tully flat in about October 2016, Ms Dawita was acting protectively of the children while they played. That evidence is not consistent with the inference that Ms Dawita had the subjective intention to mistreat Kaydence.
[705]
More significantly, my finding (at [551] above) that part of the reason Ms Dawita asked Ms Banu if she would take Kaydence in February 2017 was to protect Kaydence is not consistent with a subjective intention, or an implicit agreement, on Ms Dawita’s part that Kaydence should be mistreated.
[706]
Although I am satisfied that Ms Dawita must have been aware that Mr Desatge was mistreating Kaydence by hitting her with the bamboo stick and forcing her to eat her own faeces, I am unable to conclude that the only reasonable explanation for her failure to take steps to prevent further mistreatment is her implicit agreement to the continuation of that mistreatment.
[707]
I am not satisfied that the prosecution has excluded, as a reasonable explanation for her not taking steps to prevent Mr Desatge’s mistreatment of Kaydence, that Ms Dawita did not subjectively intend for that mistreatment to occur but that:

the dynamics of her relationship with Mr Desatge meant she was unable to protect Kaydence from his mistreatment. There was evidence that the relationship between Ms Dawita and Mr Desatge involved domestic violence before the family moved to Chinchilla (see [480] above). The evidence about the incident which occurred on 19 October 2017 (see [445]-[450] above) makes it clear that Mr Desatge committed acts of physical violence against Ms Dawita during the relationship. Based on that evidence, I accept that Ms Dawita’s failure to tell anyone about Mr Desatge’s mistreatment of Kaydence or take other steps to protect or remove Kaydence from the continuation of that mistreatment might be explained by a fear of what Mr Desatge might have done in response; or

she did not act out of a fear that Child Safety officers would remove all the children from her care if they became aware of Mr Desatge’s mistreatment of Kaydence.

[708]
Likewise, I accept that Ms Dawita’s involvement in burying Kaydence, and her lies about where Kaydence was, might be explained by facts other than her having intended, or implicitly agreed with Mr Desatge, that Kaydence should be mistreated. Other possible explanations for Ms Dawita’s conduct after Kaydence’s death are:

fear of what Mr Desatge might have done if she revealed what had happened to Kaydence;

the fear that Child Safety officers would remove the other children from her care if they discovered what had happened to Kaydence; and

shame that she had not taken sufficient steps to protect Kaydence from Mr Desatge’s mistreatment while she was at the Chinchilla house or to send Kaydence away to a safer environment.

[709]
Ultimately, I am not satisfied that the prosecution has proved beyond reasonable doubt that Ms Dawita held a common intention to prosecute the unlawful purpose of mistreating Kaydence in conjunction with Mr Desatge. Accordingly, I find that Ms Dawita is not liable for the unlawful killing of Kaydence as party to the prosecution of a common unlawful purpose under s 8 of the Criminal Code.

Conclusion

[710]
As I have found that Ms Dawita is not liable for the unlawful killing of Kaydence, whether as a principal offender or as party to the prosecution of a common unlawful purpose, I find her not guilty of murder and not guilty of manslaughter.

Reasoning to verdict on count 1 – Ms Dawita

Liability as a principal offender

[711]
As already explained in reasoning to my verdict on count 1 in the case against Mr Desatge, for me to find Ms Dawita guilty as a principal offender on count 1 the prosecution must prove beyond reasonable doubt that she intentionally inflicted severe pain or suffering on Kaydence.
[712]
I am not satisfied that when, as I have found, Ms Dawita slapped Kaydence or forced her to eat her own faeces, she did so with the intention of inflicting severe pain or suffering on Kaydence.
[713]
I have found that Ms Dawita slapped Kaydence out of frustration (see [549] and [643] above). Based on that finding, the prosecution has not excluded the reasonable possibility that Ms Dawita’s acts of slapping Kaydence are explained by her acting out of frustration but without an intention to inflict severe pain or suffering on Kaydence.
[714]
I also accept MT’s evidence that Mr Desatge sometimes criticised Ms Dawita for not doing a good enough job disciplining the children and this led to arguments between them, but that Mr Desatge would not make this criticism if Ms Dawita smacked the children (see [442] above). My acceptance of that evidence means that the prosecution has not excluded the reasonable possibility that Ms Dawita’s acts of slapping Kaydence are explained by her acting out of a desire to placate Mr Desatge and avoid his criticism, but without an intention to inflict severe pain or suffering on Kaydence.
[715]
As to Ms Dawita forcing Kaydence to eat her own faeces, I have found that Ms Dawita did this at Mr Desatge’s insistence (see [580] above). I also accept MT’s evidence that Ms Dawita told her that they should all do what Mr Desatge told them to, and they should not make Mr Desatge angry (see [443] above). On that basis, the prosecution has not excluded the reasonable possibility that Ms Dawita forced Kaydence to eat her own faeces because she felt compelled to comply with Mr Desatge’s demand and avoid his anger, but without an intention to inflict severe pain or suffering on Kaydence.
[716]
Ultimately, I am not satisfied that the prosecution has proved beyond reasonable doubt that Ms Dawita committed any of the alleged acts of mistreatment with the intention of inflicting severe pain or suffering on Kaydence.
[717]
Accordingly, I find that Ms Dawita is not liable as a principal offender on count 1.

Liability as a party who aided in the intentional infliction of severe pain or suffering

[718]
It remains for me to consider whether the prosecution has established that Ms Dawita is liable for the torture of Kaydence under s 7(1)(c) of the Criminal Code. That section provides:

“7Principal offenders

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

…

every person who aids another person in committing the offence;…”

[719]
Section 7(1)(c) makes each person who intentionally aids another to commit an offence guilty of that offence. It is not only the person who actually does a criminal act (or makes a criminal omission) who may be found guilty of an offence. Anyone who aids – that is, assists or helps or encourages – that person to do it may also be guilt of the same or a less serious offence if they did it for the purpose of, or with an intention to, aid.
[720]
Proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator, and proof that the defendant was aware of at least the essential matters constituting the crime in contemplation.
[721]
The prosecution must prove that the defendant knew that the type of offence which was in fact committed was intended; but not necessarily that that particular offence would be committed on that particular day at that particular place. It is not enough if the prosecution prove the defendant knew only of the possibility that the offence might be committed.
[722]
The particulars of the prosecution case against Ms Dawita under s 7(1)(c) are that, by her deliberate presence in the Chinchilla house, she aided Mr Desatge in his intentional infliction of severe pain or suffering on Kaydence.
[723]
I accept that a person’s deliberate presence at a place where an offence is committed can, in some circumstances, amount to aiding the principal offender to commit the offence. In the circumstances of this case, however, the requirement that Ms Dawita provide aid with the intention of assisting Mr Desatge to commit the offence of torture raises similar issues to those addressed in considering the case against Ms Dawita under s 8 for the unlawful killing of Kaydence.
[724]
I accept it is open on the whole of the evidence to infer that Ms Dawita’s continued presence at the Chinchilla house, when she was aware that Mr Desatge was mistreating Kaydence, is explained by her having held a subjective intention to aid in his intentional infliction of severe pain or suffering on Kaydence. I do not accept, however, that is the only rational inference that can be drawn from the circumstances. I am not satisfied that the prosecution has excluded, as a reasonable explanation for Ms Dawita’s continued presence at the Chinchilla house, an apprehension on her part that Mr Desatge might inflict harm on her, or the children, if she attempted to leave the relationship.
[725]
Ultimately, I am not satisfied that the prosecution has proved beyond reasonable doubt that Ms Dawita intended, by her continued presence in the Chinchilla house, to aid Mr Desatge in his intentional infliction of severe pain or suffering on Kaydence. Accordingly, I find that Ms Dawita is not liable for the torture of Kaydence as party who aided in the commission of that offence under s 7(1)(c) of the Criminal Code.

Conclusion

[726]
As I have found that Ms Dawita is not liable for the torture of Kaydence, whether as a principal offender or as a party who aided in the commission of that offence, I find her not guilty on count 1.

Conclusion on the case against Mr Desatge

[727]
On count 1, I find Mr Desatge guilty.
[728]
On count 2, I find Mr Desatge guilty of murder.

Conclusion on the case against Ms Dawita

[729]
On count 1, I find Ms Dawita not guilty.
[730]
On count 2, I find Ms Dawita not guilty of murder and not guilty of manslaughter.

Footnotes

[1] Knight v Jones; Ex parte Jones [1981] Qd R 98; R v Randall [2004] 1 WLR 56; R v Roughan & Jones (2007) 179 A Crim R 389, 403-404 [68]-[72], 406 [88] and 410 [102]; R v Beckett [2011] 1 Qd R 259, 263-267 [25]-[32].

[2] (1994) 181 CLR 41, 80. Deane J was in the minority in Webb but the observations I have noted were not dependent upon his Honour’s dissenting views.

[3] Exhibit 35, para 3.

[4] Exhibit 35, para 4.

[5] Exhibit 35, para 5.

[6] Exhibit 17.

[7] Exhibit 35, para 7.

[8] Exhibit 35, para 23.

[9] Exhibit 1.

[10] Exhibit 35, paras 54 and 55.

[11] Exhibit 2.

[12] MT’s reference to DS appears to be mistaken based on the defendants’ acceptance that Kaydence died before 7 May 2017 and the fact that DS was not born until 3 August 2017. Later, when asked who was living in the house on the last day that MT saw Kaydence, MT said she did not think DS had been born.

[13] Exhibit 5.

[14] The transcript of MT’s second interview (MFI-C) records this statement as “Maybe. I dunno if Big Tane slapped her around. I don’t know if Big Tane (unintelligible)”, however the statement I have set out above is what I heard when listening to the recording of the interview.

[15] The transcript of MT’s second interview (MFI-C) records this statement as “Yes. Ah ha. It was in the hallway yeah”, however the statement I have set out above is what I heard when listening to the recording of the interview.

[16] The transcript of MT’s second interview (MFI-C) records this statement as “Umm. I dunno. Cause I seen it happen once. Could’ve happened like”, however the statement I have set out above is what I heard when listening to the recording of the interview.

[17] Exhibit 3.

[18] Here again, MT’s reference to DS appears to be mistaken based on the defendants’ plea of guilty to count 4 on the basis that they each buried Kaydence at the Chinchilla weir before 7 May 2017 and the fact that DS was not born until 3 August 2017

[19] Exhibit 4.

[20] Transcript of the pre-recorded evidence of MT (MFI-E), 1-45:39 to 1-46:32.

[21] Exhibit 13.

[22] Exhibit 14.

[23] Exhibit 15.

[24] Exhibit 16.

[25] Exhibit 35, para 21(a).

[26] Exhibit 35, para 22.

[27] Exhibit 35, para 23.

[28] Exhibit 35, para 24.

[29] Exhibit 35, para 25.

[30] Exhibit 35, para 26.

[31] Exhibit 35, para 27.

[32] Exhibit 35, para 28.

[33] Exhibit 35, paras 29 and 30. I note that para 35 of exhibit 35 refers to Ms Dawita telling Edin Fleming, one of the Child Safety Officers involved in that telephone conversation, that Kaydence was with an aunt in Brisbane under a family arrangement, that she had contact with Kaydence by phone and had last seen her one year earlier.

[34] Exhibit 35, paras 29 and 30.

[35] Exhibit 35, paras 30 and 36.

[36] Exhibit 35, paras 30 and 37.

[37] Exhibit 35, para 30.

[38] Exhibit 35, para 40.

[39] Exhibit 35, para 31.

[40] Exhibit 35, para 32.

[41] Exhibit 35, para 34.

[42] Exhibit 35, para 38.

[43] Exhibit 35, paras 44 to 47.

[44] Exhibit 34 (first file).

[45] Exhibit 35, paras 41 and 42.

[46] Exhibit 18.

[47] Exhibit 19.

[48] Exhibit 20.

[49] The transcript of the recording (MFI-L) does not include the words “said” and “fit”, but I have set out what I heard when listening to the recording.

[50] In this part of the recording Mr Desatge first says that Ms Dawita laid Kaydence in the bed but corrected himself to refer to the couch.

[51] Exhibit 21.

[52] Exhibit 22.

[53] The transcript of the conversation (MFI-N, page 8 lines 22 to 28) does not include Mr Desatge’s statement about taking Kaydence to the hospital but I was able to hear it on the recording.

[54] This differs to what is recorded in the transcript (MFI-N, page 16 lines 12-13), but is what I heard on the recording.

[55] This differs to what is recorded in the transcript (MFI-N, page 16 lines 17-18), but is what I heard on the recording.

[56] The transcript of the conversation (MFI-N, page 38 lines 46 to 52) does not include Mr Desatge’s statement about taking Kaydence to the hospital but I was able to hear it on the recording.

[57] This differs to what is recorded in the transcript (MFI-N, page 87 lines 42-43 which has the word “fits” instead of “ex”) but I have set out what I heard on the recording. I interpret this reference to Ms Dawita’s “ex” to be a reference to Robert Mills.

[58] Parts of this exchange are marked as indistinct in the transcript (MFI-N page 90 lines 19-26) but I could hear them on the recording.

[59] Parts of this exchange differ to what is recorded in the transcript (MFI-N page 90 lines 28-40) but I have set out what I heard on the recording.

[60] These words do not appear in the transcript (MFI-N page 95 lines 32-33) but I was able to hear them on the recording. I interpret these words to be a reference to moving Kaydence’s body.

[61] It appears that Mr Desatge misunderstood the question he was asked. If Mr Desatge purchased the Commodore three months after moving to Chinchilla (mid-March 2017) then he would have owned the vehicle for about three years at the time he was speaking to Kite (1 March 2020).

[62] Exhibit 35, paras 48 and 49.

[63] Exhibits 23, 24 and 25.

[64] Exhibit 31.

[65] Exhibit 32.

[66] Exhibit 33.

[67] Exhibit 35, para 11.

[68] Exhibit 30.

[69] Exhibit 35, paras 50 and 51.

[70] Exhibit 35, para 52.

[71] Exhibit 34 (second file). Officer Ellis gave evidence, that when Mr Desatge made this call he was subject to bail conditions which prohibited him from having either direct or indirect contact with Ms Dawita.

[72] Exhibit 34 (third file).

[73] Exhibit 35, paras 54 to 56.

[74] Mr Desatge also told Officer Kite that his mother never met Kaydence.

[75] (2016) 258 CLR 308, 324 [47] (citations omitted).

Editorial Notes

Published Case Name:
R v Desatge; R v Dawita
Shortened Case Name:
R v Desatge and Dawita
MNC:
[2024] QSC 205
Court:
QSC
Judge(s):
Cooper J
Date:
17 Sep 2024

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2024] QSC 205	17 Sep 2024	-
Notice of Appeal Filed	File Number: CA 227/24	16 Oct 2024	-

Appeal Status

Appeal Pending

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Knight v Jones; ex parte Jones	[1981] Qd R 98	1 citation Jump To Cite 1 - [1981] Qd R 98
R v Baden-Clay	View on:JADE(2016) 258 CLR 308	2 citations Jump To Cite 1 - (2016) 258 CLR 308 Cite 2 - (2016) 258 CLR 308
R v Beckett	[2011] 1 Qd R 259; [2009] QCA 196	2 citations Jump To Cite 1 - [2011] 1 Qd R 259 Cite 2 - [2011] 1 Qd R 259
R v Randall	View on:ICLRUK[2004] 1 WLR 56	1 citation Jump To Cite 1 - [2004] 1 WLR 56
R v Roughan & Jones	(2007) 179 A Crim R 389	2 citations Jump To Cite 1 - (2007) 179 A Crim R 389 Cite 2 - (2007) 179 A Crim R 389
Webb v The Queen	View on:JADE(1994) 181 CLR 41	2 citations Jump To Cite 1 - (1994) 181 CLR 41 Cite 2 - (1994) 181 CLR 41

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R v Desatge and Dawita[2024] QSC 205