R v Halcrow[2022] QSCPR 11

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Lisa Rose Halcrow, is charged on indictment with one count of grievous bodily harm which is alleged to have occurred on 19 August 2017 (count 1) and one count of murder which is alleged to have occurred precisely one year later (count 2). The victim in each case is alleged to be a young boy who was a little over two years of age at the time of his death.
2. [2]
   By count 1 it is alleged that the applicant unlawfully caused the heated plate of an iron to come in contact with the child’s hands with the consequence that this caused grievous bodily harm.^[1] By count 2 it is alleged that the applicant applied deliberate force to the child’s head and/or deliberately obstructed his airways and that, at the time of doing so, she intended to cause death or grievous bodily harm. Both offences are alleged to have been committed in the child’s hometown of Warwick while he was in the applicant’s care. She had no familial connection to him.

The application

3. [3]
   Application has been made on behalf of Ms Halcrow for three pre-trial directions or rulings pursuant to s 590AA of the Criminal Code (Qld).
4. [4]
   First, an order is sought that the counts be tried separately: Code, s 597A. Second, and allied to that order, a direction is sought that the evidence admissible in support of count 1 not be led at the trial of count 2. Last, evidence from two witnesses regarding the applicant’s spiritual beliefs (on which the Crown intends to rely in support of both counts) is sought to be excluded.

The Crown case

5. [5]
   The evidence making up the Crown case, taken at its highest, was comprehensively summarised by Mr Jones who appeared for the applicant.^[2] It is primarily on this basis (that the evidence is capable of proving the allegations summarised by Mr Jones) that these applications fall to be determined although some material in the form of statements, photographs, reports and extracts from the depositions was placed before the court to assist in that regard.
6. [6]
   By way of background, and for various reasons, the child’s mother, Emily Horan, struggled with his care. Ms Horan’s foster mother, Deborah Ballard, did what she could to help but she had problems of her own. She knew the applicant through their work at an aged care facility in Warwick and were once “very good friends”. At some point, the applicant offered to help with the child by minding him when required. This started off with an offer to take the child for an afternoon to give Ms Horan a break but, over time, it progressed to “overnight and just got more and more”.
7. [7]
   Although the applicant is described in various places in the material as a “babysitter”, the arrangement was unusual; the applicant would, on occasions, receive tobacco, alcohol or money in exchange for the care which she provided to the child but there was no structured agreement in place. Quite apart from anything else, the applicant seemed to have a great deal of say about when she took the child in but, by the same token, there is evidence to the effect that the applicant (like several others) was concerned about the extent to which Ms Horan was capable of caring for the child.
8. [8]
   In the end, though, Ms Ballard became uncomfortable with the frequency of contact between the applicant and the child, expressing the opinion that the applicant was preoccupied with him. Other witnesses speak about what was described as an “unhealthy relationship” with the child and the applicant is alleged to have admitted to Ms Ballard (on or about the day of the child’s death) that she indeed “was becoming obsessed” with him.

Count 1

9. [9]
   Over the course of a few days in August 2017, the child was in the applicant’s care at her home in Warwick. On 20 August 2017, she telephoned Ms Ballard to inform her that the child “got burns on his hands, he touched the iron, he pulled the iron down”. She said this happened the day before and that, although she went to the chemist to buy some “cream” (paraffin) to treat the burns, they were “looking a bit nasty this morning”. After Ms Ballard saw the burns, the child was taken to the Warwick Base Hospital where he was initially assessed and then transferred to the Lady Cilento Children’s Hospital for treatment. There he was treated for deep partial thickness burns to the back of the middle and distal joints of the fingers on his left hand as well as the tip of his left thumb and a superficial scald burn in the area of his left cheek and eye socket. There is also some evidence of a slight bruise in the area of the child’s left eye socket.
10. [10]
    Ms Ballard’s husband, Russell Ballard, recalled that the child “had a habit of pulling cords”. He said that he “used to do it at my house” and that he would “crawl around [the] house and grab any cord he could get”, adding that “he nearly pulled my computer off the desk one day”. The account which the applicant gave was to the effect that she had been ironing in a room adjacent to a room where the child was watching television. She left to go to the toilet and, while there, heard the child cry. She guessed that he had pulled the iron by its cord from the ironing board and was burnt as a result.
11. [11]
    The burns to the child’s face and fingers healed fully with minimal medical intervention and left no scarring or loss of function. In the course of assessment and treatment, the child was examined by various medical practitioners. Despite that, there is no suggestion in any of the medical records of any child welfare concerns or the existence of any view to the effect that the burns had been intentionally inflicted. Certainly, the applicant’s account was not at that time disputed by the authorities.

Count 2

12. [12]
    In the year that followed, the applicant was said (by Ms Ballard) to be “super paranoid” about anything happening to the child. She would ring Ms Ballard if the child got “any bump or bruise”. There were however no other serious incidents and Ms Ballard never saw the applicant being “heavy-handed” with the child. Ms Ballard’s brother, Michael Turner, described the applicant as “a scared little mouse” who was “always fretting that the child was ok” and not “getting into any trouble anywhere in the house”.
13. [13]
    On 17 August 2018, the applicant took the child in. She had been paid a small sum of money to look after him for two nights. When he went into her care, the child did not have any injuries (or at least no significant injuries) and, when he was seen again by Ms Ballard the following day, he appeared to be healthy.
14. [14]
    On the morning of 19 August 2018, the applicant telephoned Ms Ballard. She told her that the child “had fallen down the stairs” and that he was “pretty bad”. Ms Ballard told the applicant to immediately take the child to the Warwick Base Hospital, and this she did.
15. [15]
    When first seen by Ms Ballard in the hallway at the hospital in an area adjacent to where medical staff were attempting to resuscitate the child, the applicant was “on her haunches … with her hands on her head” and “rocking, crying”. Ms Ballard asked the applicant what happened, to which she replied, “I’ve killed him”, before screaming words to the same effect a couple of times. Ms Ballard went into the room where the resuscitation attempts were taking place before summonsing Ms Horan.
16. [16]
    Ms Ballard then returned to the applicant. She asked, “What the hell happened?” The applicant at first said that she did not know but then said she had gone to the toilet, left the door open and that the child had fallen down the stairs. She suggested that he may have tripped over her dog. When speaking to the police at the hospital, the applicant said that the child was eating toast for breakfast at the kitchen table when she went to the toilet. She heard her dog barking and the sound of something falling down the stairs. When she investigated, she found the child at the bottom of the stairs. He was “floppy” but conscious and breathing, and he was noticeably bleeding from both ear canals as well as his mouth.
17. [17]
    On arrival at the Warwick Base Hospital, the child was cold to touch, cyanotic, asystolic and blood was observed from both ears. There were no signs of life. Despite extensive resuscitation efforts he was pronounced dead at 11:26 am, having arrived just under one hour earlier. On autopsy, he was observed to have suffered a constellation of very serious head, abdominal and other bodily injuries. The pathologist determined that the cause of death was acute blunt force injuries to the child’s head but a paediatric specialist, Dr Catherine Skellern, has expressed the opinion that, although the child died with acute head injuries, “imposed airway obstruction” was the “likely causal pathway to death”.
18. [18]
    Police attended at the applicant’s home later that day. She gave a version broadly consistent with the version she told the police at the hospital. However, although she repeated that the child was eating toast, the police could find no crumbs at or in the vicinity of the kitchen table. Nor could they find any blood at the bottom of the stairs. They did find some blood on a cloth and a pillowcase in the applicant’s bedroom but, as to this, the applicant said that she had wiped some blood off the child when she put some clothes on him before taking him to the hospital.

Subsequent versions

19. [19]
    The applicant participated in a formal record of interview with police on 26 September 2019.^[3]
20. [20]
    So far as count 1 is concerned, the applicant told police that the iron was on the ironing board when she left the room. She thought that she had switched it off but it would still have been hot. Later in the interview, the applicant said that she might have forgotten to turn the iron off. She was either in the shower or in the bathroom when the iron fell on the child. She did not think that the child was in much physical pain and thought, initially, that the burns did not “look too bad”. She expressed the belief that she would have run the “burn under cold water” (although that seems doubtful based on other accounts). On the following day, the burns looked worse, so she bandaged the child’s hand and purchased some “cream” from a pharmacy to treat the burns. The next day, because the burns looked “much worse”, she contacted Ms Ballard before taking the child to the hospital. She recalled “being scared” that she would be blamed for the incident.
21. [21]
    As for count 2, the applicant essentially repeated the gist of what she had told police at the Warwick Base Hospital and at her home later that day. She said that she had given the child some toast to eat before going to the toilet and then heard her dog bark. When she went outside, he was laying at the bottom of the stairs. After retrieving the child, she carried him inside to dress him (and herself) before, again, contacting Ms Ballard. She accepted that she had “panicked”.
22. [22]
    Since the record of interview, the applicant has spoken to various people about what occurred in relation to count 2. Some of the statements made by the applicant in this regard suggest that another person may have been involved or, at least, present in her home at the time when the child was injured. In recorded telephone conversations, the applicant has asserted that she did not know what happened to the child and, in others, expressed the suspicion that another person must have caused the injuries.

Expert evidence

23. [23]
    The court was not provided with a copy of all of the expert medical evidence that has been gathered in support of the Crown case, however mention has already been made of Dr Skellern. She has expressed opinions adverse to the interests of the applicant regarding the likely mechanism of the injuries sustained by the child on both occasions. In her view, the injuries sustained by the child cannot be satisfactorily explained by the applicant’s versions of events. On the other hand, Professor Duflou (retained by the defence) provided a written report on 7 January 2022 in which he stated, so far as count 1 is concerned, that it is “[reasonably] possible that an iron pulled from an ironing board by the electrical cord by a toddler could result in steam being expelled from the plate for a limited period of time … [which] could result in a steam scald to the face”. Further, he stated that “if the child’s fingers in some way came in contact with the hot plate it is entirely expected that this would result in contact burns”. As for count 2, Professor Duflou concluded that the cause of his death was “in all likelihood blunt force head injury”, the cause of which was “not clear” and the mechanism for which was “not readily apparent”. However, he was “unable to exclude the possibility that the child’s head injury was the result of a fall down stairs” although he added that such a “fall would have been atypical, and the injuries are significantly more extensive than is usually seen”.
24. [24]
    It is neither possible nor permissible to attempt any resolution of these issues; that will be for a jury to decide. Rather, it is sufficient for the purposes of deciding this application to appreciate that there are competing expert medical opinions regarding them. Shortly stated, the Crown contends that the objective medical evidence supports the conclusion that, on each occasion, there was a different deliberate application of force of a particular kind or kinds and the defence contends that the same evidence leaves open the possibility of an innocent explanation for the injuries sustained by the child.

Should the counts be severed?

25. [25]
    More than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose: Code, s 567(2). However, where the court is of the opinion that the accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence on the same indictment or if for any other reason it is desirable to direct the accused be tried separately for any one or more of the counts on the indictment, the court may order a separate trial of that count or counts: Code, s 597A.
26. [26]
    Before any matter of discretion under s 597A of the Code arises for consideration, the first question is whether the two counts are properly joined under s 567(2).^[4] In that regard, it cannot be said that the counts on this indictment are founded on the same facts. Instead, joinder is sought to be justified by the Crown on the basis that there exists a sufficient nexus between the counts to conclude that the alleged offences are, or form part of, a series of offences of the same or similar character.^[5]
27. [27]
    This requirement for the existence of a nexus is additional to the requirement that the offences bear a similar character.^[6] To determine whether there is a sufficient nexus, the court applies a test in which time, place and the other circumstances of the offences as well as their legal character or category fall to be considered to determine whether the “necessary features of similarity and connection are present”.^[7] However, it is important to keep in mind that an “appropriately liberal exercise of discretion to sever is called for in doubtful cases”. Put another way, caution is required before concluding that “multiple counts do truly involve a series of the same or similar character” so as to ensure that “time is not wasted in trying cases involving multiple counts which appeal courts, taking a different view from the trial judge, consider do not satisfy the test and were improperly joined”.^[8] Indeed, even properly joined cases should be severed where “the level of prejudice to the accused involved in trying them together intrude sufficiently strongly”, and this is especially so where the evidence admissible on one is not admissible as evidence on the others because that will amount to the use of a form of character evidence against the accused.^[9]
28. [28]
    Here, the Crown contends that a sufficient nexus exists between the counts because, first, the evidence in support of count 1 is revealing of a propensity on the applicant’s part to “inflict violence upon” the child and, second, because it is necessary to “properly describe the true nature of the relationship” between the child and the applicant.^[10]
29. [29]
    So far as the first contention is concerned, as Mason CJ, Wilson and Gaudron JJ explained in Hoch v The Queen,^[11] the rationale for the admission of similar fact or propensity evidence lies in it possessing a particular probative value or cogency such that, if accepted, it can bear no reasonable explanation other than the inculpation of the accused in the offence charged.^[12] It follows that, for such evidence to be admissible, the “objective improbability of [it] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged”.^[13]
30. [30]
    Also, there is an important distinction to be recognised between cases where the propensity evidence is in dispute and those where the facts are undisputed. Plainly, the probative value of disputed similar facts will be less than the probative value those facts would have if they were not disputed.^[14] Importantly, as Mason CJ, Deane and Dawson JJ observed in Pfennig v The Queen, the “prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused.”^[15] Their Honours continued:

“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”^[16]

31. [31]
    Of course, when applying this principle, the proposed propensity evidence must be viewed in the context of the prosecution case and, furthermore, the court must do so assuming that the evidence will be accepted as true.^[17] Although the court is not required to conclude that the evidence, standing alone, would demonstrate guilt of the accused of the offence or offences for which he or she is charged, the evidence must be excluded if, viewed in the context and on the assumption just described, there is “a reasonable view of the … evidence which is consistent with innocence”.^[18]
32. [32]
    In this case, the Crown submitted that the applicant’s propensity to act violently towards the child^[19] when assessed in the context of the whole of the Crown case “bears no other reasonable explanation … than the inculpation of the accused in the offence charged”.^[20] I cannot agree, there is a considerable separation in time between the counts and, as such, there is no “proximity in time” in the sense discussed by Brennan J in Harriman v The Queen.^[21] But, more than that, there is no evidence whatsoever that the applicant was violently disposed towards the child throughout the whole of the intervening period and, throughout that period, there was much close contact between the two. There is in any event a reasonable view of the evidence which is consistent with innocence and that is to be found in the explanation provided by the applicant to Ms Ballard, hospital staff and police following the incident said to give rise to count 1. That explanation was for a long time accepted by the police and various medical practitioners who attended on the child after the incident and it is an explanation that is still supported by Professor Duflou. It may also be supported by the relatively contemporaneous observation made by Ms Ballard to the effect that, in addition to the burn on the child’s face, there was “a little bit of bruising too”. In any event, for the reasons earlier stated (at [27]), a cautious approach is required. The prejudicial effect of this disputed evidence would far outweigh its probative value.
33. [33]
    The other basis on which the Crown contends there is a sufficient nexus between the counts rests on the proposition that the evidence in support of count 1 is admissible in proof of count 2 is to assist the jury to understand the “relationship” between the applicant and the child.^[22] As the Crown put it, without that evidence, the applicant’s relationship with the child would be “misrepresented, and the prosecution allegation [on count 2] would appear as aberrant behaviour and inherently unlikely”.^[23] To be clear though, the Crown does not contend that the evidence supporting count 1 is admissible pursuant to s 132B of the Evidence Act 1977 (Qld). That provision makes evidence of the history of a domestic relationship between an accused and the person against whom the offence was committed admissible in evidence in the proceeding, but the Crown concedes that the “relationship” between the child and the applicant does not meet the definition of “domestic relationship” for the purposes of this provision.^[24] Instead, the Crown submitted that the evidence in support of count 1 is necessary to properly describe the true nature of the relationship between the applicant and the child. This evidence provides context which, it was submitted, should render intelligible (or explicable) the conduct making up count 2 which, in the absence of such context, would appear improbable or to have “occurred out of the blue”.^[25]
34. [34]
    So far as the cross-admissibility of the challenged evidence is concerned, there is considerable force in these submissions. To require the jury to deliberate on count 2 as though it occurred in a vacuum – that is to say, without the benefit of the evidence supporting count 1 – may very well give the applicant’s explanation for the child’s injuries (a fall down stairs) more credulity than is warranted were that evidence known by the jury. As Jackson J (McMurdo P and Gotterson JA agreeing) explained in R v Reed,^[26] if the non-fatal injuries (count 1) were inflicted by the willed acts of the applicant, such non-fatal injuries “rendered more explicable the otherwise surprising inference” to which the nature of the fatal injuries (count 2) gave rise, namely, that “they were deliberately inflicted upon a defenceless infant”. It may therefore be accepted that the evidence in support of count 1 will prima facie be admissible in proof of count 2 as a form of relationship evidence.
35. [35]
    That however is not to say that this evidence supplies a sufficient nexus between the counts to permit joinder of the counts on the same indictment. Unsurprisingly, many of the same considerations as arose when determining if the same evidence was admissible as circumstantial evidence of propensity arise again. Of those, the lack of “proximity in time” and the body of evidence that exists with respect to the intervening period to the effect that the applicant provided a high level of care for the child count against the conclusion that a sufficient nexus is established. At best for the Crown, the question is finely balanced and, if that is so, caution would dictate that this conclusion not be reached.^[27] Indeed, even if it was concluded that a sufficient nexus was established, this would be an appropriate case for the exercise of the court’s discretion under s 597A of the Code to sever the counts because of the considerable prejudice that would be occasioned to the applicant if they are allowed to be tried together. Such prejudice to the applicant’s defence will only be exacerbated by the additional feature that, if the counts are tried together, there will be a temptation on the part of the jury to place some significance on the coincidence of dates between the counts when the fact of the matter is that no significance can fairly be attributed to this quirk in the case beyond mere happenstance.
36. [36]
    For these reasons, it will be ordered that the counts be tried separately.
37. [37]
    The question then remains whether, despite the severance, the evidence in support of count 1, being evidence that is prima facie admissible as relationship evidence, should be excluded at the trial of count 2. Such evidence may be excluded “if the court is satisfied that it would be unfair to the person charged to admit” it.^[28] That is of course a different exclusionary test to the one discussed in the context of propensity evidence^[29] although, again, similar considerations may very well apply. What is called for is a consideration of the potential for “harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way”.^[30] In the end, the court should conclude that it would be unfair to admit the evidence if to do so would create a risk of jury prejudice disproportionate to the rational probative value of that evidence.^[31]
38. [38]
    As to this, the Crown conceded that the jury would need to be directed that they must be satisfied beyond reasonable doubt of the evidence in support of count 1 before placing any reliance on it.^[32] But, even so, I do not think such a direction will do much to remedy what I consider to be a high risk of disproportionate jury prejudice if the evidence is made available to the jury in their consideration of count 2. For much the same reasoning as I expressed in connection with the exercise of the discretion under s 597A of the Code,^[33] it would be unfair to admit the evidence in support of count 1 on the trial of count 2.
39. [39]
    For completeness, although I will order the counts to be severed and rule that the evidence in support of count 1 not be led by the Crown at the trial of count 2, were it to be suggested by the defence at the trial that the conduct alleged by the Crown to constitute count 2 occurred “out of the blue”, to take one example, it would be open to the Crown to make application to lead the evidence. That, however, will be a matter for the trial judge to decide.

Should the Crown be permitted to lead the challenged evidence?

40. [40]
    Two witnesses – Marion Schmidt and Michael Turner – provided statements to the police in which, amongst other things, they record the content of past discussions with the applicant regarding her spiritual beliefs. Ms Schmidt worked at the same aged care facility in Warwick as did the applicant and Ms Ballard. Mr Turner is, as previously stated,^[34] Ms Ballard’s brother. Both were cross-examined at the committal hearing.
41. [41]
    Each of the witnesses is a believer in reincarnation and each recalled discussions with the applicant in which she expressed similar beliefs but, more specifically, her belief that the child was the reincarnation of her deceased father. There is evidence also in the hands of the Crown to the effect that the applicant complained to police at Woy Woy in New South Wales in 1996 that she was sexually abused by her father on more than one occasion. A written statement in support of this complaint was signed by the applicant. 
42. [42]
    According to Ms Schmidt, the applicant referred to her father as an “absolute bastard” and said she “felt” the child had been “sent to her as the spirit” of her father “to beg forgiveness”, something she would never give. Mr Turner recalled a similar (although more abbreviated) conversation with the applicant.
43. [43]
    The Crown argues that all of this evidence should be left to the jury to support an inference that the applicant had a motive to harm the child, that is to say, to exact retribution from her father. It is not suggested that the evidence has any other relevance and, unless the drawing of such an inference is reasonably open on that evidence, it cannot be admissible.^[35]
44. [44]
    I am not at all persuaded that the inference contended by the Crown is reasonably open. To the contrary, I think it is rank speculation. No witness in the case (including Ms Schmidt and Mr Turner) speaks of any animosity on the part of the applicant towards the child, let alone any suggestion that the applicant might have wanted to harm the child because she believed it was a manifestation of her deceased father. In fact, there is evidence from Mr Turner to the opposite effect. He recalled the applicant saying to him after the child died that she “felt her father had left her again”. That is hardly consistent with any desire on the applicant’s part to harm her father through the child.
45. [45]
    The challenged evidence is inadmissible and shall not be led by the Crown at either trial.

Orders

46. [46]
    It will be ordered that counts 1 and 2 be tried separately and there will also be a direction that the evidence admissible in proof of count 1 shall not be led at the trial of count 2. The Crown will also be directed not to lead the evidence from the witnesses, Marion Schmidt and Michael Turner, of statements made to them by the applicant regarding her spiritual beliefs (including a belief in reincarnation) or any evidence regarding the complaint made by the applicant to police in New South Wales in 1996 at either trial.