This judgment concerns an appeal against a conviction for manslaughter of an infant where evidence of an earlier injury was led by the Crown as propensity or relationship evidence. The Court of Appeal considered the question of the unfairness arising from that evidence, including whether an appropriate direction can cure any such unfairness.
Fraser JA and Jackson and Crow JJ
17 May 2019
The defendant was acquitted after trial of murder but convicted of the manslaughter of his six week old son. The trial lasted 23 days during the which the Crown called 41 witnesses and the defendant called 17 witnesses as well as giving evidence. –. The Crown allegations concerned the death of the child by traumatic brain injury from shaking, striking his head or causing an impact of the head against a surface..
The first ground of appeal was that the verdict was unreasonable having regard to the medical evidence and evidence of causation. . The second ground challenged the failure to exclude evidence of a rib injury said to have been suffered by the infant three weeks prior to those causing death as well as the directions the trial judge gave the jury in respect of that evidence. 
Jackson J (with whom Fraser JA agreed) opined that the verdict was reasonably open to the jury on the whole of the evidence. . However, his Honour allowed the appeal with respect to the second ground and held that the evidence of the rib fractures, while admissible as evidence of a domestic relationship pursuant to s 132B Evidence Act 1977, should have been either excluded in the trial judge’s discretion under s 130 of the Act or alternatively the jury should have been directed that they could only act on that allegation if they were satisfied beyond a reasonable doubt that the applicant caused the rib fractures. . His Honour canvassed the authorities with respect to the unfairness arising from propensity and relationship evidence and concluded that an appropriate direction may have cured any unfairness to the accused.
Crow J comprehensively examined the medical evidence led in the course of the trial and concluded that the verdict was not unreasonable given the impressive evidence led by the Crown. –. As to the second ground of appeal, his Honour dissented from the majority. In particular, it was stated that the exercise of the discretion not to exclude the evidence of the rib injury was sound but also that that evidence did not form an indispensable link in the chain of circumstantial reasoning which might have required the direction that the jury must be satisfied of that allegation beyond a reasonable doubt. .
The appeal was allowed, the conviction quashed, and a re-trial ordered.
J P Feely of Counsel