Tara v Regina [2006] SBCA 5; CA-CRAC 027 of 2005 (26 May 2006)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands
COURT FILE NO:	Criminal Appeal No. 27 of 2005 Appeal from HC-CRC No. 353 of 2004
DATE OF HEARING:	Tuesday 23rd May 2006
DATE OF JUDGMENT:	Friday 26th May 2006
THE COURT:	Lord Slynn of Hadley P Williams JA Ward JA
PARTIES:	ENOCH TARA -V- REGINA
ADVOCATES: Appellants: Respondent:	Martin Anders for the Accused Mark Hobart for the Crown
KEY WORDS:	Credibility of medical evidence.
EX TEMPORE/RESERVED: ALLOWED/DISMISSED:	Allowed
PAGES:	1-8

The appellant was convicted of the murder of his nine month old child, Jacinta, on Saturday, 9 March 2002. He appeals against that conviction.

The prosecution case was that the appellant entered a house in Talise village where his wife was staying with her aunt, Sabella Nae, in the morning of that Saturday. He had a bush knife in his hand. The mother was holding the baby. The appellant was angry and raised the bush knife as he approached her. He demanded that he be able to hold the baby and a tussle took place over the child. The husband succeeded in taking the baby and he then struck it once on the back of the neck with the blunt side of the knife. He then handed the baby back saying words to the effect that it was still alive.

Almost immediately, the child started to show serious signs of distress. The eyes rolled up so they appeared white, the pupils reduced and the body stiffened except for spasmodic movements of one hand and foot.

The child was taken to a medical centre at Lelegia by which time it would appear her condition had deteriorated. The nurse aide described how the child was stiff, the pupils were not visible and the child was unable to cry.

The child was then taken to Konide clinic where the nurse described the baby as being in a fitting state with the body stiff, not moving and the eyes rolled up.

The child died at about 8.0pm that same day and was buried the following day. No report was made to the police until two years later when it was included in other complaints by the mother against her husband.

The result of the delay by the mother is that the principal medical evidence depends on that of a pathologist who examined the disinterred body, by then no more than a skeleton, on 8 May 2004, a little over two years after the death. More contemporaneous evidence of the condition of the child is provided by the mother and her aunt who were present in the house at the time of the alleged hitting with the knife, the nurse aid from Lelegia medical centre and the nurse from Konide clinic.

The appellant initially told the police that the death might have been the result of an accident on the basis that he was holding the knife during the struggle for the baby and it may have struck her. That position was maintained in evidence in chief but, in cross-examination, he denied the allegations and suggested they had been fabricated by his wife. Although he agreed he had a knife when he entered the house, he told the court he put it down before he tried to take the baby.

The learned trial judge identified the crucial issues for determination as whether the appellant had a knife in his hand when he took the baby from the mother and, if so, whether he struck the baby with it or whether he put it down first. Equally he identified the issue of the pathologist’s evidence in respect of the cause of the fracture and of the baby’s death.

Counsel for the appellant has brought a number of issues to the attention of the Court in respect of the credibility of the witnesses especially in respect of the question of the knife and its suggested use on the baby. It is clear that both the appellant and the mother varied their accounts of events in the course of making statements to the police and during their evidence in the trial.

However, for reasons we shall explain, our consideration of the medical evidence leads us to conclude that this appeal must be allowed and so we will deal with the case without needing to determine these issues.

The court had the advantage of the evidence of a very experienced pathologist from Australia, Dr Dodd. He described how, by the time he was able to disinter the body it consisted only of a dismembered and incomplete skeleton. The small bones of the hands and feet were unrecognisable because of degrading as the probable result, in his opinion, of leaching of soil acid but the remainder of the skeleton was complete and lying in an approximate anatomical relationship. The epiphyses on all the bones were unfused and the sutures of the bony scalp plates were similarly unfused. Some of the bones of the skull showed signs of erosion or insect degradation.

Although the evidence of the mother was that the child was nine months old he considered the development was consistent with a seven month old child.

On examination, Dr Dodd found 'a transverse oriented linear 9mm fracture through the left lateral edge of the occipital bone'. It was at the edge of the bone and ceased abruptly at the left lambdoid suture with the result that the adjacent bone in the skull was undamaged.

All soft tissue had been completely decomposed and there was no convincing evidence of blood collection within the cranial, chest or abdominal cavities.

His written report was exhibited and states that he had been given information, which he conceded may or may not have been accurate, which:

'... strongly indicates that the baby was struck on the back of the head whilst being nursed by its mother.

... the father has struck the infant on the back of the head with either the grip of a machete or the flat of the blade.

... the baby was transferred to Guadalcanal from one of the islands and survived for several hours.

... there is a report that the infant may have fitted and developed a hemiparesis.'

His interpretation of the fracture indicates that blunt force has been applied to this area and his opinion was:

'In such a scenario, the likelihood of intercranial haemorrhage (probable subdural haemorrhage) and the formation of gross cerebral oedema are highly likely.

Death in this case would be due to cardio-respiratory arrest secondary to raised intracranial pressure either from cerebral oedema or blood accumulation.'

He considered that the extensive degree of body degradation precluded further comment. He concluded:

'It is my determination that the death of Jacinta was caused by (a) Skull fracture (and probable intracranial haemorrhage) (b) blunt force trauma to the head.

He was examined closely by counsel in the trial on the evidence of the eye witnesses on the condition of the child.

The mother and other prosecution witnesses gave important evidence of the condition of this little baby before the Saturday on which she died.

It appears the baby was not well on the Thursday. She had a fever and the mother told the court, 'Her neck is not all that good, paralysed'. The mother said she had come to Talise village in order to look for custom medicine for 'the back neck' of Jacinta because it was paralysed. A witness saw the baby and noticed that her facial expressions were 'small' (meaning slow) and another spoke of the baby 'at times get stiff'. Sabella said the child has to be treated for her hands and neck to relieve her paralysis.

During that night the mother said the baby collapsed and so next day she was taken to the Lelegia clinic following which the mother told the appellant to come to Talise.

The learned judge noted that there was no dispute that the baby was sick at the time of the alleged incident with the bush knife and continued, 'However, the crucial evidence from the prosecution witnesses is that the child was not critically ill to the point of death or paralysis.

On the Saturday morning, the mother’s evidence was that the appellant only took the child after 'we struggled for the baby'. Once he had it, she said he whipped the child with the knife once. It is not clear if that was intended to describe the force of the blow or the manner in which the knife was brought down. However, she also told the court that she did not actually see the impact because she looked away at the critical moment.

When she looked again she said the baby was already stiff with only the whites of its eyes showing and with only her right hand and leg shaking. Sabella did not see what the appellant did with the knife after he approached the mother with it raised. She closed her eyes and when she next opened them the mother was sitting holding the baby. She noticed the baby had changed and was struggling with only her hands moving. Sabella’s daughter came to the house and gave a similar description of the baby’s condition.

On the way to the Lelegia medical post, the person holding the baby noticed she was shaking and that her eyes 'were turning around'. At the clinic the nurse aide, Florence, noted that the baby’s eyes were white, she could not cry and she was stiff. She considered it was case of 'big malaria' and gave her an injection and Panadol. She listened to her chest and it was clear. The baby had no clothes on and Florence saw no injuries. She asked the mother what was wrong and received the reply simply that the baby was sick. No mention was made of a blow to the head.

After about 20 minutes, she told them to take the child to Konide clinic where the child could be seen by a registered nurse, Wendy. She noted that, when the baby came in, she was fitting. The eyes were rolled up, her body was stiff and not moving. She examined the baby’s head and noticed no injuries but did notice neck stiffness.

Wendy told the court she obtained the history of the child’s condition from the mother. She recorded it as, 'The mother said the baby was not sick. The baby started to have these stiffness in the neck area. When they had a row this came about. She said her husband Tara would get drunk and bash her up. She did not say anything about how the baby became sick.'

The nurse gave the child penicillin for suspected pneumonia although she said she had observed that the child’s heart beat, temperature and respiratory systems appeared to be 'all right'. The nurse said the parents were arguing in her presence and there was never any suggestion that the child had sustained a head injury.

After some two hours, the baby’s condition had not improved and the parents took her back to Lelegia but, by the time they arrived, the baby was dead.

In her evidence the mother spoke of a seeing a swelling on the top of the child’s head and said she mentioned it to the nurse at Konide. The nurse did not accept that there was swelling or that she was told.

In his evidence in chief the pathologist amplified his written report. He suggested the force needed to cause the fracture was very focal and over a small area and so it would be consistent with a blow from the blunt side of a bush knife. He was asked about the baby struggling and the right hand and leg moving and the eyes rolling up to show the whites and explained that all those would be non-specific symptoms.

He said that the stiffness of the body was in keeping with changes that may occur towards the end of a child’s life. With swelling of the brain it is not uncommon for all limbs to become quite rigid and the head to arch back. He was asked:

'Given the nature of the injury how likely is it that the injury would have been occasioned by dropping on a flat hard surface?

I can’t exclude that as a cause. It’s a likely cause. Any firm unyielding surface given sufficient height could cause a fracture like this.

Again it’s very variable. Babies are quite resilient, the bones are pliable, babies can be dropped from considerable heights and not incur any fracture however this fracture again is quite in keeping with the scenario that was put to me that it may have been the flat edge or the blunt edge of a blade or the handle, swung with some force. All those things could equally explain this.'

He was subject to a lengthy and searching cross-examination. It is not necessary to set it out in detail. He did not consider this could have been a post mortem injury and discounted the possibility that it occurred long before the death.

He reminded the court more than once that, as a pathologist and as he had only the bony tissue to study, he was not really qualified to comment on the likely soft tissue damage or its effect on the child.

When asked about the likelihood of swelling occurring around the fracture site he considered it was not likely and that, if there had been any internal bleeding, it may disperse upwards and downwards along the neck muscles rather than causing an outward bulging.

He was asked about the conclusion in his report that the fracture was the cause of death and replied:

'That is for primary cause of death and I can only speculate about what happened around the brain but you must appreciate I’m looking at bones only in this case

Was a fracture of this type capable of being sustained and not necessarily resulting in death?

If a fracture of this type were to result in death what sort of time frame are we looking at?

Again that’s very difficult to address. There are a lot of variables. If a child is ultimately going to die from an injury like this, certain things have to occur. I’m suggesting very strongly that the fracture has caused haemorrhage between the skull and the brain, a so-called subdural haemorrhage. If that is the case that takes time to develop, it pushes against the brain and causes the brain to swell to the point where it can’t be accommodated inside the skull any longer and ultimately that will cause death. That progression of signs and symptoms may take several hours to occur or longer.

It is possible. That’s the far end of the spectrum of time, more likely to be sooner than that, but its still possible.'

It is correct to say that his overall opinion was that the fracture, when considered with the signs of neurological damage, was the cause of death.

'In the scale of things this was relatively small fracture but unfortunately for this child the fracture is in a very critical part of the skull overlying a very vital part of the brain where minor injury could lead to death. If the fracture had have been towards the front of the skull it’s very likely this child could well have survived and in fact it may have just been irritable for a few days and then recovered.

But ultimately, we are still left with the situation where the child’s death could possibly have been the result of say a condition of malaria that it suffered in days prior to its death?

That is a possibility. I mean, it’s very hard to comment on that. Obviously malaria is endemic here and has a high mortality and morbidity and it is possible there could have been a co-existing condition. But I’m impressed by the description of the neurological changes in this child, the story of fitting on one side of the body and the other side being flaccid, that is more in keeping with an expanding lesion inside the skull such as an expanding blood clot or gross swelling of the brain as a result of blunt injury.'

His final answer to counsel’s suggestion that he could not ascertain the precise mechanical cause of the injury was:

'No. That’s correct. I can speculate on what information had been given to me but there’s no doubt that there are varying alternative explanations for the causations of blunt force trauma, but I do believe it was blunt force trauma that was the underpinning cause of this child’s demise.'

'I have considered carefully the question whether the prosecution has discharged the onus on it to prove beyond any reasonable doubt that the fracture was [not] caused by anything other than blunt force trauma and that it caused the demise of the child and must answer that question the affirmative.' (We have supplied the missing word as the remainder of his findings make it clear he intended to include it.)

'[I] cannot be satisfied that any reasonable doubt on the other hand has been raised in my mind that the fracture may have been caused by anything other than the use of blunt force trauma. The evidence of the learned doctor regarding his observations is fairly clear and his conclusions or expert opinion based on those factual observations consistent throughout. When considered in the light of the scenario presented to him, his expert evidence and opinion is entirely consistent with the evidence of the mother as to the location or area where the blunt force trauma was applied, the type of weapon used and the consequent symptoms described or observed. ... The only force alleged and evidence produced in this court as being the most likely cause has been none other than that alleged by the prosecution, the use of the blunt edge side of the defendant’s bush knife. When the totality of the evidence is considered, it is clear in my mind so that I am sure that the cause of death was not malaria or pneumonia. Yes, the child was sickly, possibly malaria at that time, that is not in dispute, but the fatal act which turned the condition of the baby around suddenly was the tragic blow with a bush knife ... witnessed by the wife ... and confirmed in the neurological history of what happened thereafter through the testimony of other witnesses ... and confirmed by the autopsy report....'

On the evidence as a whole, it is clear the learned judge had very good reason to accept the prosecution had proved to the criminal standard that the baby died from the effect of the fracture of the occipital bone. Our concern arises from two aspects of his conclusions.

The first is his acceptance that the fracture was the result of a blow from the appellant’s bush knife and the second that he has apparently discounted the earlier symptoms on the sole basis that the child did not die of malaria or pneumonia.

The pathologist never went further than to opine that the fracture was consistent with a blow from the blunt side of a knife as had been described to him. However, he also accepted that he could not exclude the possibility it could have been cause by a fall against a hard floor or rock.

Passing to the second aspect, the pathologist’s evidence was that the effect of the fracture could have been bleeding into the muscles of the neck and that could produce symptoms similar to those described by the mother and referred to by the pathologist as the neurological changes.

The learned judge appears to have accepted that left him with the result that the sudden onset of these symptoms after the incident with the appellant was sufficient to prove that the blow, assuming for this purpose that there was one, was the undoubted cause of those symptoms.

The pathologist described the fracture as fresh. He was asked if it might have occurred earlier but answered only in terms of a birth injury. He was not asked if he could say whether it had occurred less than 12 hours before death or whether it would still be described a fresh if it had occurred two days before. He did say:

'There is no sign of healing. All I have is a single fresh fracture in one site only and so most likely it has caused the death of the child and therefore it occurred during life.'

He was able to say that the symptoms that had been described by the witnesses pointed to a probable subdural haemorrhage and that would be a very likely result of such a fracture. He also pointed out that such symptoms would be progressive; that progression of signs and symptoms may take several hours to occur or longer. That he agreed could be a couple of days.

The effect of that evidence should have alerted the judge to the possibility that the injury may have occurred earlier from some other source of blunt force. Once it was clear that the baby’s symptoms before the incident on Saturday morning were consistent with the likely consequences of the fracture, it was essential that the prosecution prove beyond reasonable doubt that they were not.

Those symptoms principally related to the neck. They included stiffness and paralysis. There was a specific reference to the hands being affected. Although the opinion of the nurse and nurse aide was that this could have been a severe case of malaria or pneumonia, the judge was wrong to dismiss the evidence of the earlier condition of the child by a finding that it had not died of either of those conditions. Whether it did or not cannot now be conclusively proved.

The pathologist was not asked whether the cumulative effects of a skull fracture could have resulted in development of pneumonia. Similarly he was not asked whether, if the child was already suffering from the developing effects of a subdural haemorrhage, the trauma of a struggle between his parents in which she was clearly the object over which they were struggling could have caused a sudden acceleration of the effects either because of the distress if would cause the child or because of possible further aggravation of the already existing condition.

The pathologist, as we have said, was subject to a searching cross-examination. He tried to help but more than once needed to remind counsel that the questions demanded answers outside his specific field of expertise. However, the issues were clearly raised and the prosecution might have considered it prudent to call a doctor who could have answered these questions from his own expertise.

We are satisfied that an overall analysis of the evidence allows for a suggestion that the injury could have occurred on the Thursday and led to the symptoms which alarmed the mother sufficiently to seek custom medicine and which shortly afterwards had continued or increased sufficiently for her to visit a medical centre on Friday.

Counsel for the respondent places emphasis on the sudden onset of extreme and accelerating symptoms after the incident with the bush knife and that is, as the judge found, a significant factor. However, the burden is on the prosecution to prove that was the cause of death. In order to do so, it was necessary to prove to the same standard that the symptoms were not the result of an earlier application of blunt force by a fall or some other incident and that the similar earlier symptoms were not a developing consequence. The evidence of the pathologist was not sufficient to answer those questions but, if the prosecution allegation was to be proved, they needed to be answered beyond reasonable doubt in the negative. They were not.

The appeal is allowed. The conviction is quashed and a verdict of acquittal entered.

Court of Appeal of Solomon Islands

Tara v Regina [2006] SBCA 5; CA-CRAC 027 of 2005 (26 May 2006)