Citation: R v Jeong Ming FOO [2008] NSWSC 587
Court: Supreme Court of New South Wales
Date: 12 June 2008
Judge(s): Harrison J
Background
The accused was charged with the murder of his 11-week-old son, who died on 31 August 2006 from pneumonia secondary to serious brain and other injuries sustained before his admission to Westmead Children's Hospital on 20 March 2006. The infant had been vaccinated days before his collapse and had been unwell in the intervening period. On the morning of 20 March 2006, the accused carried the child upstairs and the baby went limp in his arms; the accused and his wife drove immediately to hospital.
Medical examination revealed a right parietal skull fracture, subdural haemorrhages, suspected rib fractures, bilateral retinal haemorrhages, and diffuse axonal brain injury consistent with non-accidental shaking or impact. The infant survived in hospital for approximately five months before dying from pneumonia caused by those earlier injuries.
The accused elected to be tried by judge alone under the Criminal Procedure Act 1986. He did not give evidence at trial, but his account of events was contained in two electronically recorded interviews and a video walk-through of the premises, all tendered without objection.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused was the person who inflicted the non-accidental injuries that caused the infant's death.
- Whether the circumstantial evidence, including statements made by the accused during police interviews, excluded reasonable alternative hypotheses consistent with innocence.
- Whether statements made by the accused amounted to admissions of guilt or were explicable by other hypotheses.
- Whether, if identity were established, the mental element for murder or the alternative verdict of manslaughter was made out.
Decision
The central issue was one of identity: who inflicted the injuries to the child. The Crown's case was entirely circumstantial. Harrison J applied the established principle that, for a circumstantial case to support a conviction, the degree of probability that the proved facts would be accompanied by the fact to be proved must be so high that the contrary could not reasonably be supposed.
The household at the time included the accused, his wife, and his sister and her brother-in-law. The court found that the evidence did not exclude the reasonable possibility that another person in that household was responsible for the injuries. The accused's wife was present in the home throughout the relevant period and had access to the child. The circumstantial case did not sufficiently narrow the field of possible perpetrators to the accused alone.
The Crown also relied on certain statements made by the accused during police interviews that it characterised as admissions. Harrison J found these statements were explicable by alternative hypotheses entirely consistent with innocence. In particular, the accused's apparent surprise upon being told of the skull fracture was, in the court's assessment, genuine. Statements suggestive of remorse or frustration did not necessarily indicate guilt and could not displace a reasonable alternative explanation.
Because the court was not satisfied beyond reasonable doubt that the accused inflicted the injuries, it was unnecessary to consider the mental element required for murder or manslaughter. A verdict of not guilty was entered.
Orders Made
- Verdict of not guilty entered on the charge of murder.
Key Takeaways
- In a circumstantial murder case, a conviction requires the proved facts to be of such a degree of probability that the contrary cannot reasonably be supposed; where a reasonable alternative hypothesis consistent with innocence exists, the Crown case must fail.
- The Supreme Court confirmed that statements made by an accused that appear to suggest remorse or frustration do not amount to admissions of guilt where those statements are explicable by hypotheses consistent with innocence.
- Where multiple persons had access to a victim and the evidence does not sufficiently exclude other possible perpetrators, identity remains unproven beyond reasonable doubt even where non-accidental injury is established.
- A finding that injuries were non-accidental in nature does not, of itself, establish which particular person in a household inflicted those injuries.
- Once the court was not satisfied beyond reasonable doubt on the question of identity, the mental element inquiry for both murder and manslaughter became unnecessary and was not determined.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 132(1) (election for trial by judge alone)
Cases
- Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
- Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
- Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573