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Court of Criminal Appeal 19 September 2022

Reyne (a pseudonym) v R

[2022] NSWCCA 201

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION RECKLESSLY CAUSING GRIEVOUS BODILY HARM TRIAL BY JUDGE ALONE SKULL FRACTURE

Citation: Reyne (a pseudonym) v R [2022] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 19 September 2022
Judges: Beech-Jones CJ at CL; Dhanji J; Yehia J

Background

The appellant, referred to by the pseudonym Julia Reyne, was the foster carer of a 13-month-old child referred to as Ella. In October 2018, Ella was found to have sustained a parietal skull fracture, bilateral corneal abrasions, and other injuries. The appellant was charged with recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW).

The trial proceeded before a judge alone in the Albury District Court in September 2020. The Crown's case was that the appellant caused the skull fracture at some point between approximately 10:00am and 7:00-8:00pm on 28 October 2018, a period during which she had sole care of the child. The trial judge found the appellant guilty on 6 November 2020 and sentenced her to two years' imprisonment to be served by way of an intensive correction order.

The appellant sought leave to appeal against conviction, arguing the verdict was unreasonable and could not be supported by the evidence on two grounds: first, that it was not proved beyond reasonable doubt that the skull fracture was caused during the relevant timeframe; and second, that the skull fracture did not amount to grievous bodily harm.

  • Whether it was proved beyond reasonable doubt that the skull fracture was caused during the essential period of sole care on 28 October 2018.
  • Whether a parietal skull fracture in a 13-month-old child constituted "grievous bodily harm" within the meaning of s 4 of the Crimes Act 1900 (NSW).
  • How an appellate court should review an unreasonableness ground where the conviction arose from a judge-alone trial rather than a jury trial.
  • The relevance of the victim's age and speculative future harm when assessing whether an injury amounts to grievous bodily harm.

Decision

Ground 1: Timing of the skull fracture

The Court found that, while the evidence was highly suspicious and strongly suggested that Ella had suffered non-accidental injuries during the essential period, it did not establish beyond reasonable doubt that the skull fracture itself was inflicted in that window. The medical evidence confirmed that Ella had sustained other injuries, including fractures to her ulna and wrist, that were caused prior to 28 October 2018. The key expert, Dr Garside, could not give a firm opinion on the age of the skull fracture, leaving open the possibility it occurred before the essential period. The combination of these factors meant the Crown had not excluded that hypothesis to the required standard.

The Court also rejected the Crown's reliance on The Queen v Baden-Clay for the proposition that the absence of a defence alternative explanation strengthened the Crown's circumstantial case. The onus rested on the Crown throughout to prove the fracture was caused during the essential period, and the evidence did not discharge that onus.

Ground 2: Whether the fracture was grievous bodily harm

The Court held, on Ground 2, that it was open to the trial judge to find that the skull fracture constituted grievous bodily harm. The fracture raised real, not merely speculative, concerns about bone displacement in a young child given the length of the fracture and Ella's stage of development. However, the Court confirmed that the determination of whether an injury reaches the threshold of "really serious" harm is quintessentially a question of fact, reviewed on appeal under the unreasonableness standard from M v The Queen. The Court was not persuaded the trial judge had erred on this ground. Ground 2 was therefore rejected.

Outcome

Despite Ground 2 failing, Ground 1 succeeded. Because the Crown had not proved beyond reasonable doubt that the skull fracture was caused during the essential period, and the conviction rested solely on the skull fracture, the conviction could not stand.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed.
  • The conviction entered in the District Court on 6 November 2020 for the offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) quashed.
  • A verdict of acquittal entered in lieu.

Key Takeaways

  • A conviction following a judge-alone trial is treated, for the purposes of an unreasonableness ground under the Criminal Appeal Act 1912 (NSW), as if it were a jury verdict, and the same appellate review test applies, though the advantage the trial judge holds over an appellate court will vary depending on the circumstances.
  • Where a Crown case is circumstantial and depends on proving that an injury was inflicted in a defined timeframe, the prosecution must exclude beyond reasonable doubt the possibility that the injury was caused at an earlier time, even where other non-accidental injuries were clearly sustained during the relevant period.
  • The determination of whether an injury constitutes "grievous bodily harm" is a quintessential question of fact; an appellate court reviewing that finding applies the unreasonableness standard, asking whether it was open on the evidence, not whether the court would have reached the same conclusion itself.
  • The victim's age may be relevant to the grievous bodily harm assessment, but only where it actually bears on the seriousness of the injury itself, for instance through its effect on the victim's capacity to heal.
  • Speculative future harm alone cannot elevate an injury to the threshold of grievous bodily harm; however, real and non-speculative concerns about serious complications, even if those complications ultimately do not materialise, can be taken into account in assessing the seriousness of the injury at the time of admission.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 35(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 133(1)
- Evidence Act 1995 (NSW), s 38
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Equivalent provisions in the Crimes Act 1900 (ACT), Crimes Act 1958 (Vic), Criminal Law Consolidation Act 1935 (SA), and the Criminal Codes of Queensland, Western Australia, Tasmania, and the Northern Territory

Cases
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Director of Public Prosecutions v Smith [1961] AC 290
- R v Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 50
- AA v McDevitt [2017] ACTSC 342
- JH v R [2021] NSWCCA 324