R v Baxter [2019] HCATrans 234 (15 November 2019)

Last Updated: 19 November 2019

[2019] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B36 of 2019

B e t w e e n -

THE QUEEN

Applicant

and

NICHOLAS AARON BAXTER

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 NOVEMBER 2019, AT 10.35 AM

Copyright in the High Court of Australia
MR M.R. BYRNE, QC: May it please the Court, I appear with my learned junior, MS S.J. HEDGE, for the applicant. (instructed by Director of Public Prosecutions (Qld))

MR L.K. CROWLEY, QC: May it please the Court, I appear with my learned friend, MR M.J. JACKSON, on behalf of the respondent. (instructed by Legal Aid Queensland)

GAGELER J: Yes, thank you. Mr Byrne.

MR BYRNE: Your Honours, the respondent was convicted of the manslaughter of his six‑week‑old infant son. Broadly speaking, the cause of death was intra‑cranial injuries which, in turn, caused cardio‑respiratory arrest and death. At the post mortem, the infant was found to be suffering two different sets of rib fractures that were aged at different times within a few weeks prior to the death. They were not related to the cause of death but were evidence, if it was accepted they were caused by human intervention, of earlier mistreatment of this child.

It is our submission that the existence of earlier injuries unrelated to the actual cause of death, very unfortunately, is a common factual scenario before the courts in this country in infant homicide cases. The resolution of the issue in this application will be of potentially wide‑ranging effect. The respondent attempts to argue the decision is limited to the peculiar, and I quote “peculiar”, facts of this case. Our submission is that cannot be accepted.

The case was conducted on the basis that at all relevant times the child was solely in the care of the respondent or his wife. The respondent’s case was a denial he caused any injuries at any stage. The prosecution intended to lead the – what I will call the “rib fracture” evidence – as propensity evidence, but were denied that in pre‑trial rulings. The Crown was limited to using the evidence as evidence of the history of the domestic relationship - relevant section 132B of the Evidence Act (Qld).

GAGELER J: What did that mean?

MR BYRNE: What that meant is that pursuant to the provisions the evidence was admissible if relevant as casting light upon the relationship – the domestic relationship – that existed at the time. Section 132B is reproduced at page 206 of the application the book.

GAGELER J: But what light did it cast on the relationship?

MR BYRNE: It took out, or it was capable of taking out of the realms of reasonable possibility that if the respondent – if it was accepted the respondent had caused those injuries that it was uncharacteristic or out of the blue.

GAGELER J: Which injuries?

MR BYRNE: The rib fracture injuries - that the ultimate fatal injuries, that is, the intra‑cranial injuries resulting in death were not uncharacteristic or out of the blue given the nature of the relationship between the two of them. The trial judge recognised the need for directions to limit the use that could be made of the evidence. He was satisfied that the directions would alleviate the relevant unfairness. Those directions have been reproduced at paragraph 16 of the application, commencing at page 4 over to page 5.

There is issue taken by the respondent in the Court of Appeal as to the adequacy of directions. That comprised what was called ground 2(c) in the Court of Appeal. The majority of the Court of Appeal, Justices Jackson and Fraser, did not decide that ground, having decided the earlier ground that I will come to in more detail shortly. Justice Crow, in the minority dissent, would have dismissed that ground.

Your Honours, in our submission, will see that the directions given were comprehensive and they were clear, particularly at page 5 from about line 13 to the end. His Honour reminded the jury that the evidence formed part of the history of the relationship:

with the purpose of rendering intelligible or explicable the conduct that is alleged to have occurred on the 3^rd of November –

That is the day when the child was found to be very unwell, having suffered the intra‑cranial injuries.

It is put against us that the Crown nonetheless ran a case of propensity. We do not accept that. In our submission the Crown abided by the ruling that was given by the trial judge. The submissions made by the prosecutor were in context put before the jury so as to explain the likelihood that the child would have suffered the fatal injuries to the extent that they were suffered. They were to put in context and to bear upon the probability that the infliction of the fatal injuries, as the prosecution alleged, was, indeed, not uncharacteristic, that it was not out of the blue.

GAGELER J: The difficulty is, as Justice Jackson exposes, not only the Crown in submissions, but the expert evidence led by the Crown tended to slip very easily into propensity reasoning.

MR BYRNE: Of course the directions - I am sorry, I beg your pardon - the address and the evidence was all prior to the directions given, which were clear to the jury as to the use that they could put it. Further we rely on the observations of Justice Crow at application book 190, paragraph [308] as to how, in our submission, the evidence of Dr Lamont should be seen. That is - and I am very much paraphrasing paragraph [308] here, but when the evidence was read as whole it was nothing more than saying one needed to look to the story behind it; one needed to look to the context to understand whether this was out of the blue and uncharacteristic.

It was also important in the Crown case, bearing in mind ‑ and I have just as I stand here now forgotten the exact number ‑ but there were a significant number of witnesses who ‑ from whom good character evidence was adduced, both in the Crown case and in the defence case, that he was a loving father. Ergo, it is unexpected that any fatal injuries would be inflicted. So our application ‑ ‑ ‑

NETTLE J: Mr Byrne, how was the jury to determine that the prior injuries had been inflicted intentionally by the accuser?

MR BYRNE: The mechanism was one of a – encompassing of the rib cage in a compression. The timeframes were necessarily approximate but they included times when the child was solely in the care of the respondent. The whole case was run on the basis that at all relevant times, as I have already submitted, the child was only ever in the respondent’s or his wife’s care. She denied any intentional infliction of injuries. She spoke of one occasion where she ‑ ‑ ‑

NETTLE J: Fell upon the child in the bed.

MR BYRNE: Well, we say that the evidence‑in‑chief was in fact far more innocuous and that she stated that she had not fallen on the child. It was in the course of - it was open to do it but it was in the course of very much leading questions in which she said that she may have come into contact. In evidence‑in‑chief - and I am referring to day 13, page 55 of the trial transcript, she said “So the way I landed was, I had Matthew’s head in my hand. His back was running along my forearm. I pushed him away from me. I had my other hand on top of his ribs. My arm fell on to a pillow which was on the bed”. She said Matthew was in her arms.

It was in cross examination, over the course of about a page, she stated ‑ and I am just trying to find the exact portion – day 14, page 6 – she was asked “It is possible, isn’t it, that when you fell on him like that, your body has also partly landed on him? Yes”. We contend that the different emphasis in cross‑examination to leading questions puts some doubt about that occurring, but it nonetheless arises only on one occasion and not the two distinct separate occasions from which the rib fractures were said to emanate.

Your Honours, this Court in Roach had considered section 132B. It relevantly held that Pfennig reasoning – if I can put it that way ‑ was not applicable. The respondent contends in answer to our submissions on the application that the more recent decision of this Court in Bauer is also of application, that it can be distinguished because, firstly, Bauer was a single complainant sex case; secondly, emanating from the state under the uniform evidence legislation.

Our response to that is that Bauer drew on common law authorities, but the respondent also says that Bauer is not applicable because section 97 of the Uniform Evidence Act imposes a less onerous test than the common law tests. Now, that may be so, but the point that is for consideration in this Court at this application is the operation of section 132B which in itself imposes a less onerous obligation.

The Court of Appeal unanimously found that the evidence was admissible under section 132B. They differed on the exercise of the discretion – the fairness discretion found at 130 of the Evidence Act (Qld). It is directly, we would submit, applicable – well, the considerations from Bauer are applicable and it is our submission that this matter will raise the point as to whether Bauer should be seen to be applied more widely than in single complainant sex cases in States or Territories emanating where the uniform evidence legislation operates.

NETTLE J: But that is about sexual attraction. It would have no application here, surely?

MR BYRNE: It was admitted in Bauer as tendency evidence.

NETTLE J: A tendency to want to have sexual intercourse with the particular kinds of children that were involved.

MR BYRNE: And which in itself carries a greater prejudice than merely shedding light on the nature of the relationship, as it was in the case here. Yet in Bauer the Court spoke with a single voice to eliminate previous doubts that had been expressed, or were taken to be expressed from earlier cases to the effect that a direction as to proof beyond reasonable doubt was not required and yet that is the very thing that the majority ‑ ‑ ‑

NETTLE J: I see. I understand, thank you.

MR BYRNE: Your Honours the Court in Roach, or the plurality judgment, I should say, in Roach in this Court, particularly at paragraphs 40 and 41 makes it abundantly clear in our submission that evidence can both have the appearance of propensity evidence but nonetheless be admissible under section 132B as relevant evidence of the domestic relationship.

The Court emphasised at paragraph 47 the importance of the directions and in our submission that is what is missing from the judgment of the majority in the present matter. There is no reference to the well‑accepted principles that it must be assumed that the jury will follow the directions that are given.

We have at paragraph 32 of the outline referred to the well‑known passage from Gilbert and also the more recent decision – forgive me if I mispronounce it – Alqudisi. That is fundamentally important because the moment it is thought that the jury will not follow the direction given as to how the evidence is to be used, the fundamentals of the criminal trial go out the window. The assuredness with which the courts act that the juries will follow those directions is important, and yet it is missing from the judgment, in our submission, in the Court of Appeal.

This evidence was held unanimously, as I have said, to be admissible. It was a strand in the rope and, as such, consistent with the principles from Shepherd and the long list of cases following it. It did not on that basis require that there be a direction that proof beyond reasonable doubt was required before it could be used in a case against the respondent.

So it is our submission that the ruling is inconsistent with Shepherd; it is inconsistent with this Court’s ruling in Roach; it is inconsistent, as we have referred in the application, to another decision in the Court of Appeal of Reed; it is inconsistent with the line of authority from the New South Wales Court of Appeal in KJS v Queen [2014] NSWCCA 27; (2014) 86 NSWLR 603; and it is inconsistent with the West Australian line of authorities including KMB v Western Australia [2010] WASCA 212.

GAGELER J: Have you mentioned those interstate authorities in your submissions?

MR BYRNE: Yes, we have, your Honour.

GAGELER J: Where do we find the reference, please?

MR BYRNE: Footnoted at footnotes 34 and 35 at paragraph 23, page 7.

GAGELER J: What is the inconsistency?

MR BYRNE: In each of those cases it was held that direction that – for satisfaction beyond reasonable doubt was not required. They were sex cases. But, again, one of the central tenets of our application is that this is an opportunity for the Court to speak as to the wider operation of what is said in sex cases about the use of propensity evidence.

I should say the New South Wales case was an admission of relationship evidence which is guided by common law. It was not under any of the provisions of the Uniform Evidence Act and of course Western Australian does not have that Evidence Act regime.

Your Honours, we note that the court majority in particular referred to the decision of this Court in Bauer. We accept at the outset that the Court of Appeal was not given any submissions to help with that. Bauer was delivered by the High Court during the period of the 11 months that this judgment was reserved. Nonetheless, we submit, for reasons that I have really outlined already, that the decision is inconsistent with Bauer and there is a view, and it is repeated by the respondent, that Bauer only applies to those single complainant sex cases and only applies to those under the uniform evidence legislation.

Your Honours, we are cognizant of the fact that this is a prosecution appeal. Nonetheless, for the reasons of inconsistency, we rely on the proposition that this is an appropriate matter for this Court to become involved in. It will help iron out, or it will iron out those inconsistencies. It is also very obvious and trite to say it is a serious offence. This trial was finalised about six years after the death. There was a delay in charging and processing. I make no criticism of that. The appeal was heard within about seven months. There was judgment then reserved for 11 months.

GAGELER J: Is that a criticism, Mr Byrne?

MR BYRNE: No, no, it is a complex matter but my point being ultimately that the case relies on both sides on the recollection of witnesses, not documented, but as to what people were doing at different times of different days. Now, if the Court does not intervene on this application the matter will proceed as a retrial. The witnesses will be in the unenviable situation of having to recall - by the time it gets on next year it will be eight and a half years or thereabouts – those matters.

The reality is that if the Court does not allow the application there will be a strong presumption that in the circumstances of this case that direction is required on the retrial. It was a lengthy trial – there were 21 days of evidence including a lot of expert evidence. There was considerable time and expense. Our application is asking for the resolution of this issue. If we succeed of course there will be no retrial, but if we do not succeed, any retrial can occur with the guarantee of knowing what the correct direction should be by way of guidance of principles resolving all of these issues.

Finally, I note that as I have said, the majority did not deal with ground 2(c) that was before it. That ordinarily would be a hurdle. Usually, even on a successful appeal it would result in a remitter back to the Court of Appeal.

In our application we have cited ASIC v Lanepoint Enterprises Pty Ltd [2011] HCA 18; (2011) 244 CLR 1 at paragraphs 55 to 57. In that case there also was an outstanding ground of appeal not resolved in the appellate court below. The High Court held it was not a hurdle to the disposition of the appeal, as it could readily be resolved. Could I take your Honours to page 133 of the application book?

May I just finish this point although the red light is on, your Honours? I will be very brief. Your Honours will see that grounds 2(b) and 2(c) are inevitably intertwined. The resolution of 2(b) will readily resolve the issue in 2(c) and we submit it is an appropriate matter for the Court, notwithstanding that outstanding ground of appeal. May it please the Court.

GAGELER J: Thank you, Mr Byrne. Mr Crowley, we do not need to hear from you.

MR CROWLEY: May it please the Court.

GAGELER J: We are not persuaded that an appeal would have sufficient prospects of success to warrant the grant of special leave. Special leave to appeal is refused.

The Court will now adjourn to 10.00 am on Tuesday, 3 December in Canberra.

AT 10.57 AM THE MATTER WAS CONCLUDED