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Supreme Court 8 November 2013

R v FEW (No 2)

[2013] NSWSC 1771

Homicide
CRIMINAL LAW JUDGE ALONE TRIAL MURDER CHILD VICTIM

Citation: R v FEW (No 2) [2013] NSWSC 1771
Court: Supreme Court of New South Wales
Date: 8 November 2013
Judge: Fullerton J

Background

The accused was charged with the murder of a two-and-a-half-year-old girl who died on 1 April 2011 from a head injury sustained the previous day. The child was in the sole care of the accused at his home in Coffs Harbour when the injury occurred. Although not related to the child, the accused had an established relationship with her in the role of a de facto grandparent.

The fatal injury comprised a linear fracture at the base of the skull, with associated bilateral subdural haemorrhages, brain swelling, and bilateral multi-layered retinal haemorrhages. The child also presented with numerous sites of secondary bruising across her head, ears, buttocks, and thigh, many of which were confirmed at autopsy.

The accused denied deliberately harming the child. In three electronically recorded police interviews and a walkthrough reconstruction at his home, he maintained that the child's head injury was caused by an accidental fall from her pram while he was in the toilet. The trial proceeded before Fullerton J sitting alone, without a jury, pursuant to s 132 of the Criminal Procedure Act 1986.

  • Whether the Crown proved beyond reasonable doubt that the fatal head injury was deliberately inflicted by the accused, rather than caused by an accidental fall from the pram.
  • Whether, if the fatal injury was deliberately inflicted, the accused acted with the requisite intent to kill or to cause grievous bodily harm, thereby establishing murder.
  • Whether the accused's false or incomplete statements to police were consistent only with a consciousness of guilt, or whether another explanation existed.
  • Whether the secondary injuries, viewed as a constellation, were consistent only with deliberate infliction rather than accidental causes.

Decision

Fullerton J identified the critical question as whether the Crown had disproved, beyond reasonable doubt, that the child's fatal head injury resulted from an accident. The Crown conceded it could not identify the precise mechanism of the fatal injury, the exact location in the home where it occurred, or produce any corroborating scientific evidence from the crime scene search.

The Crown built its case on circumstantial evidence: the narrow window of time between the child being seen alert at a chemist at 10:01am and being found gravely injured at approximately 10:22am; the accused's demonstrated false accounts of his movements that morning; the implausibility of the accident scenario as described; and the extensive secondary bruising inconsistent with a pram fall. Fullerton J accepted that the accused's account contained significant inconsistencies, including his repeated failure to mention visiting the chemist that morning and his false claim about which children's television programs were screening at the time of the alleged fall.

Despite these concerns, the medical and biomechanical expert evidence could not exclude the possibility that the fatal skull fracture resulted from the child falling from the pram and striking her head. Fullerton J held that, without evidence from the Crown positively discounting that possibility, it would be impermissibly speculative to conclude the physical laws precluded such a fall. The judge also noted the inherent unpredictability of a young child's behaviour and the well-recognised difficulty of recreating the dynamics of an unwitnessed fall.

Directing herself that the burden of proof rested entirely on the Crown, Fullerton J found the Crown had not proved beyond reasonable doubt that the fatal injury was deliberately inflicted. Although the case raised "perplexing issues," the threshold for a murder conviction had not been met, and the accused was acquitted.

Orders Made

  • The accused was found not guilty of the murder of JP and a verdict of not guilty was entered.

Key Takeaways

  • A murder conviction requires the Crown to prove beyond reasonable doubt both that the fatal act was deliberate and that the accused held the requisite intent; where expert evidence cannot exclude a non-deliberate cause, an acquittal may follow even on strong circumstantial evidence.
  • Fullerton J confirmed that where medical and biomechanical evidence leaves open a reasonable possibility of accidental causation, it is not open to the court to fill that gap with inference unsupported by evidence, as doing so risks impermissible speculation.
  • False or incomplete statements by an accused to police may support an inference of consciousness of guilt, but such lies alone do not satisfy the Crown's independent obligation to disprove an innocent explanation for the fatal injury.
  • In judge-alone trials under s 132 of the Criminal Procedure Act 1986, the same standard of proof applies as in a jury trial: the Crown must negate all reasonable hypotheses consistent with innocence before a guilty verdict can be returned, consistent with the principles in Shepherd v R (1990) 170 CLR 573.
  • The inherent unpredictability of young children's behaviour was treated as a relevant consideration, with the court declining to attribute rationality or predictability to a two-and-a-half-year-old in a way that would disadvantage the accused.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132 (judge-alone trials)
- Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases
- Shepherd v R [1990] HCA 56; 170 CLR 573
- Edwards v R [1993] HCA 63; 178 CLR 193
- R v FEW [2013] NSWSC 1486 (related earlier decision in the same proceedings)