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Supreme Court 22 February 2022

R v NB

[2022] NSWSC 151

Homicide

Citation: R v NB [2022] NSWSC 151
Court: Supreme Court of New South Wales
Date: 22 February 2022
Judge: Cavanagh J

Background

A 20-month-old child died on 23 March 2015 while in the temporary foster care of the accused and her partner ("Kevin") at a small rural village outside Dubbo. The child had been placed with the accused by the Department of Family and Community Services in November 2014, and was due to be transferred to long-term foster carers on 1 April 2015. The accused had been told she would not be keeping the child permanently from approximately 25 February 2015.

The accused called triple-0 early on the morning of 23 March, reporting that she had found the child not breathing properly. Despite efforts by paramedics, the CareFlight team, and hospital staff, the child was pronounced dead at 7:30am. Subsequent investigation revealed multiple serious injuries.

The accused was charged with murder on 8 January 2018 and pleaded not guilty. The trial ran over 17 days before Cavanagh J sitting as a judge alone at Dubbo, beginning 17 January 2022.

  • Whether the Crown proved beyond reasonable doubt, on a wholly circumstantial case, that the accused caused the child's death
  • Whether the accused acted with the intent required for murder (intent to kill or cause grievous bodily harm), or whether the facts established only manslaughter
  • How to assess conflicting expert medical evidence about the nature, cause, and timing of the child's injuries
  • The proper approach to a circumstantial case where no witness directly observed the accused inflict any injury
  • The weight to be given to the accused's prior good character and her decision not to give evidence

Decision

Cavanagh J found the Crown had proved guilt of murder beyond reasonable doubt. No witness directly saw the accused inflict injuries on the child, making this a wholly circumstantial case. The court applied the established principle that, in a circumstantial case, a conviction requires that guilt be the only rational inference open on the whole of the evidence.

The court received evidence from 26 lay witnesses and 9 expert witnesses, including forensic pathologists and specialists in histopathology. There was no dispute that the child had sustained multiple serious injuries, including injuries to his head, a femur fracture, a stomach injury, and an anal injury. The dispute centred on causation, timing, and the identity of the person responsible. The accused raised the possibilities that injuries were accidental, self-inflicted, or caused by unknown others. The court examined this expert evidence at length and, after assessing the reliability and reasoning of each expert, rejected those alternative explanations as not reasonably open on the evidence.

The court was satisfied that the injuries had been inflicted by the accused during the relevant period when the child was in her sole or primary care. The court found that the force required to cause the femur fracture and stomach injuries was significant and could not be explained by accidental excessive gripping or inadvertent twisting. Whether or not the accused had consumed alcohol that night was treated as irrelevant to the analysis.

On the issue of intent, the court held that acts of that nature by an adult upon a 20-month-old toddler could only have been intended to cause grievous bodily harm. The accused was therefore convicted of murder, not manslaughter.

Orders Made

  • The accused was convicted of the murder of the deceased child.

Key Takeaways

  • In a circumstantial murder case, guilt must be the only rational inference available on the whole of the evidence. The court applied this standard carefully before returning a verdict of guilty.
  • Conflicting expert evidence about the cause, nature, and timing of injuries does not automatically create reasonable doubt. The court assessed the foundation and reasoning of each expert's opinion, consistent with the principles in Makita (Aust) Pty Ltd v Sprowles, and resolved the conflict on reasoned grounds.
  • A defendant's good character (including absence of prior criminal history) is a relevant consideration in a criminal trial; Cavanagh J accepted the accused's good character and took it into account, but ultimately found it did not raise reasonable doubt in light of all other evidence.
  • No adverse inference was drawn from the accused's election not to give evidence, consistent with well-established criminal procedure principles.
  • Where the force required to cause serious physical injuries to a young toddler is significant and could not be accidental, the court may infer the necessary intent for murder rather than manslaughter, even without direct evidence of the accused's state of mind at the time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Barca v The Queen (1975) 133 CLR 82
- Burns v The Queen (2012) 246 CLR 334
- Edwards v The Queen (1993) 178 CLR 193
- Holt v R [2021] NSWCCA 140
- Liberato v The Queen (1985) 159 CLR 507
- Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Meyers v The Queen (1997) 7 ALJR 1488
- Peacock v King (1911) 13 CLR 619
- Plomp v The Queen (1963) 110 CLR 234
- R v Mostyn [2004] NSWCCA 97
- The Queen v Baden-Clay (2016) 258 CLR 308
- The Queen v Hillier (2007) 228 CLR 618
- Thomas v The Queen (1960) 102 CLR 584
- Wilson v The Queen (1992) 174 CLR 313