[2024] SADC 62

Prosecution: R Counsel: MS K INGLETON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: S Counsel: MR N VADASZ - Solicitor: ADAM PETER GAITE Hearing Date/s: 16/08/2022, 17/08/2022, 18/08/2022, 19/08/2022, 04/10/2022, 05/10/2022, 06/10/2022, 07/10/2022, 17/10/2022, 05/07/2023, 06/07/2023, 26/07/2023, 27/07/2023, 28/07/2023, 04/10/2023, 11/10/2023, 12/10/2023 File No/s: DCCRM-21-616 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v S Criminal Trial by Judge Alone [2024] SADC 62 Reasons for Decision of his Honour Judge Burnett 28 May 2024 CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE The accused has been charged with two counts of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act (the Act). The accused has also been charged with two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Act. At the commencement of the trial, the accused raised the defence of mental incompetence to commit the offence. There was no issue raised as to his fitness to plead. Pursuant to s 269E(2), the Court determined to proceed first with the objective elements of the offence. Held: (1) the prosecution has established beyond reasonable doubt the objective elements of each of the offences. (2) A finding is made pursuant to s 269G(2) of the Act that the accused has committed the objective elements of each of the offences. Criminal Law Consolidation Act 1935 (SA) ss 20(4), 24(1), 269E(1), 269E(2), 269G(2); Evidence Act 1929 (SA) ss 34P(2)(a), 34R(1), 34R(2), referred to. -- 1 of 54 -- Browne v Dunn (1893) 6 R (HL) 67; MWJ v R (2005) 80 ALJR 329; R v C, CA [2013] SASCFC 137; Slape v The Queen [2022] SASCA 91; Plazeriano v Police [2017] SASC 106, considered. -- 2 of 54 -- R v S [2024] SADC 62 Criminal 1 The accused, S, is charged on information of two counts of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act (the Act) and two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Act. The first count on the information is in the following terms: The Charges Statement of Offence Aggravated assault causing harm (s 20(4) of the Criminal Law Consolidation Act). Particulars of Offence [The accused] between the 1st day of May 2020 and the 19th day of May 2020 at Hackham West assaulted [TN] and thereby caused him harm. It is further alleged that [the accused] committed the offence knowing that [TN] was under the age of 12 years at the time of the offence. The second count on the information is in the following terms: Statement of Offence Aggravated causing harm with intent to cause harm (s 24(1) of the Criminal Law Consolidation Act 1935). Particulars of Offence [The accused] between the 1st day of June 2020 and the 15th day of July 2020 at Hackham West caused harm to [TN] intending to cause him harm. It is further alleged that [the accused] committed the offence knowing that [TN] was under the age of 12 years at the time of the offence. The third count on the information is in the following terms: Statement of Offence Aggravated causing harm with intent to cause harm (ibid). Particulars of Offence [The accused] between the 12th day of July 2020 and the 15th day of July 2020 at Hackham West caused harm to [TN], intending to cause him harm. It is further alleged that [the accused] committed the offence knowing that [TN] was under the age of 12 years at the time of the offence. -- 3 of 54 -- [2024] SADC 62 2 The fourth count on the information is in the following terms: Statement of Offence Aggravated assault causing harm (s 20(4) of the Criminal Law Consolidation Act) Particulars of Offence [The accused] between the 12th day of July 2020 and the 15th day of July 2020 at Hackham West assaulted [TN] and thereby caused him harm. It is further alleged that [the accused] committed the offence knowing that [TN] was under the age of 12 years at the time of the offence. 2 At the commencement of the trial, the accused raised the defence of mental incompetence to commit the offence. There was no issue as to his fitness to plead. Under s 269E(1) of the Criminal Law Consolidation Act (the Act), the question of the accused’s mental competence to commit the offence must be separated from the remainder of the trial. The Court has a discretion pursuant to s 269E(2) whether to proceed first with the trial of the objective elements or the trial of the mental competence of the accused. I exercised my discretion to proceed first with the trial of the objective elements. 3 This judgment therefore determines whether the prosecution has established beyond reasonable doubt that the accused committed the objective elements of the offences. If I am satisfied beyond reasonable doubt that the objective elements of an offence have been established, I must, pursuant to s 269G(2) of the Act, record a finding to that effect. If I find that that the prosecution has not established that the accused committed the objective elements, I must find the accused not guilty of the offence and discharge the accused. Elements of the Offence 4 For counts 1 and 4, aggravated assault causing harm, there are seven elements. I identify below those elements and also identify which of those elements are objective elements and which are intentional elements. I do not address the intentional elements in these reasons. 5 The first element is that the accused committed the act or acts that are the subject of the charge. That is an objective element. The second element is that the act involved the application of force. Any application of force is sufficient. That is an objective element. The third element is that the act was voluntary and deliberate as distinct from accidental or inadvertent. The prosecution submitted, which I accept, that deliberateness, but not voluntariness, was an objective element and that I needed to find that the act was not accidental. The fourth element is the accused intended to apply force. That is an intention element and does not form part of the matters which I am addressing. The fifth element is that the application of the force caused harm. The definition of harm is the common law definition of harm and harm is synonymous for injury. Harm is defined to mean physical harm or mental harm whether temporary or permanent. That is an objective element. The -- 4 of 54 -- [2024] SADC 62 3 sixth element is the act was unlawful. That is an objective element where, as in this case, there is no issue of self-defence. The seventh element, being the aggravating feature, is that at the time the act was performed the accused knew that the person to whom the harm was caused was under that age of 12 years of age. That contains an objective element that the person to whom harm was caused was under the age of 12 years and a subjective element that the accused knew of that fact. 6 For counts 2 and 3, aggravated causing harm with intent to cause harm, there are seven elements which I identify below. I also identify those elements which are objective elements and those elements which are intentional elements. 7 The first element is that the accused performed an act. That is an objective element. The second element is that the act was voluntary and deliberate. The deliberateness, but not voluntariness, was an objective element in that I needed to find that the act was not accidental. The third element is that the person to whom the act was performed suffered a harm which could be a physical or mental harm, temporary or permanent. That is an objective element. The fourth element was that it was the act of the accused which caused the harm. That is an objective element. The fifth element was that the accused intended to cause harm. That is an intention element and does not form part of the matters which I am addressing. The sixth element is that the act was unlawful. That is an objective element, where, as in this case, there is no issue of self-defence. The final element, being the aggravating feature, is that at the time the act was performed the accused knew the person to whom the harm was caused was under the age of 12 years. That contains an objective element that the person to whom harm was caused was under the age of 12 years and a subjective element that the accused knew of that fact. 8 The issue in relation to counts 1 and 4 is whether the accused committed the alleged aggravated assault causing harm. The accused denied that he did so. If the accused committed the act in the way alleged by the prosecution, then the other objective elements of the aggravated assault have clearly been made out. 9 The issue in relation to count 2 is whether the accused committed the act causing harm to TN in the way alleged by the prosecution. The accused said that the injuries were or may have been caused by him performing CPR on TN following what I have described as the bath incident. If the accused performed the act in that way, he will not have committed the act that is the basis of the charge and the prosecution will not have proven beyond reasonable doubt the objective elements of the offence. Irrespective of my findings in relation to the bath incident, the issue remains whether the prosecution has proved beyond reasonable doubt that the accused committed the act which caused the harm to TN. 10 The issue in relation to the count 3 is whether the accused committed the act in the way alleged by the prosecution. If he did, then there is no question that the other elements of the offence have been made out. The accused says that he may have harmed TN involuntarily by what I will describe as the couch incident. If TN was harmed in that way, the accused will not have committed the act that is the -- 5 of 54 -- [2024] SADC 62 4 basis of the charge and the prosecution will not have proven beyond reasonable doubt the objective elements of the offence. Again, irrespective of my findings in relation to the couch incident, the issue remains whether the prosecution has proved beyond reasonable doubt that the accused committed the act which caused the harm to TN. General legal directions 11 As the trial of the objective elements proceeded by Judge alone, it is not necessary to set out all the standard directions that would be given to a jury. However, I remind myself of the following directions. 12 First, the accused is presumed not to have committed the objective elements of the offences unless and until the prosecution have proved beyond reasonable doubt that he did so. The burden of proof rests wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt is sufficient. The prosecution must prove each element of the offence that relates to the objective elements beyond reasonable doubt. If there is an explanation consistent with the accused not having committed the objective elements or that there is uncertainly where the truth lies, then the accused must be found not to have committed the objective elements. 13 Secondly, I must determine whether each of the witnesses have been called are credible and reliable. I can accept part of the witnesses’ evidence and reject part of that evidence or accept it or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the objective elements of the offence, then the accused remains presumed innocent. In that case, I must find that the objective elements have not been established. 14 Thirdly, the accused elected to give evidence. The accused was not obliged to do so, he had the right to remain silent and leave it to the prosecution to prove each of the objective elements of the charges. The fact that the accused has given evidence in his defence and has called a further witness as part of his case does not relieve the prosecution of proving beyond reasonable doubt each of the objective elements of the offences. It is for the prosecution to prove that the accused has committed the objective elements. The accused does not have to prove anything. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in the trial. 15 Fourthly, the prosecution has submitted that the evidence of the accused was not credible in material respects. In assessing the weight given to any evidence of the accused which I find not to be credible, I must consider the nature of that evidence. I must assess the significance of any lie and the explanation for it. A lie for which I find only to be for the purposes of credit only is not evidence that the accused committed the objective elements of the offence. The prosecution has invited me to use any lies I find to have been made by the accused for the purposes of credit only and not evidencing a consciousness of guilt. I therefore use any lie that I find may have been made by the accused only for the purpose of assessing -- 6 of 54 -- [2024] SADC 62 5 the credit of the accused. A finding that the accused lied about a particular issue does not mean that the rejection of his evidence is itself probative of guilt or that the accused is guilty. 16 Fifthly, there are instances where the prosecution submits that the accused has given prior inconsistent statements out of court. These prior inconsistent statement go only to the reliability and credibility of the evidence given by the accused. I must consider whether there is an inconsistency, and if so, the context in which the inconsistent statement was made, the significance of the inconsistency and whether there is any reason for it. 17 Sixthly, I must consider each of the counts separately, save that the prosecution has invited me to consider improbability reasoning in relation to count 1, if I find the circumstance in relation to count 4 has been established beyond reasonable doubt. I will deal with that issue later in these reasons. 18 Seventhly, the prosecution has relied on circumstantial evidence to establish the objective elements. In such a case, I can only find those elements established by circumstantial evidence if the whole of the circumstances excludes any rational explanation consistent with the accused not committing the objective elements of the offence. I must be satisfied not only that the accused committing the objective elements of the offence is a rational inference but it is the only rational inference that in the circumstances I find proven that is able to be drawn. 19 Eighthly, any admissions that I find were made by the accused must be considered in the context in which there were made, including any explanation given by the accused and weighed in the balance of the whole of the evidence. I must consider whether the witness who gave evidence about the admission is credible and reliable and whether their evidence about the admission is accurate. I must be satisfied beyond reasonable doubt that the admission was made. I must consider what the accused meant and any explanation he offered for making those statements that constitute the admission. The evidence of any admission by the accused is only one piece of evidence and I must consider all relevant evidence. 20 Ninthly, in relation to counts 2 and 3, there is an alternative offence to those charged. That is aggravated recklessly causing harm. Given my findings that the prosecution has established beyond reasonable doubt that the accused committed the objective elements of counts 2 and 3, I do not have to consider this alternative offence. In the circumstances of finding whether the objective elements of counts 2 and 3 have been established, the alternative offence does not impose any different requirements. 21 Tenthly, the prosecution submitted that there was a failure on the part of Counsel for the accused to put to Dr Noori that the liver injury could have been caused by accidental elbowing of TN by the accused. It was submitted therefore -- 7 of 54 -- [2024] SADC 62 6 that there had been a failure to comply with the obligations in Browne v Dunn.1 I invited counsel for the accused to recall Dr Noori but counsel declined to make any application. I will deal with that issue later in these reasons but I have found that there was no relevant failure to comply with the obligations in Browne v Dunn. 22 Eleventhly, the conduct of the accused in smoking cannabis might be considered as discreditable conduct. I will deal with that issue later in these reasons. Overview of the Prosecution Case 23 In February 2020, the accused commenced a relationship with HLG. HLG already had a baby, TN, from a previous relationship with a Mr AN. TN was born in January 2019 and therefore was about 16-18 months at the time of the alleged offending. 24 From about March 2020, HLG and the accused were living at the accused’s house at Hackham West (the Hackham West Property). TN was living with the accused and HLG at that property every alternate week. The accused had three children with his former wife, Ms RS. These children were Ol, then aged 6, Od, then aged 4 and So, then aged about 2. Up until 26 April 2020, all 3 children resided with the accused and HLG, but from that date, Od primarily resided with Ms RS. 25 It is the prosecution case in respect of count 1, that the aggravated assault causing harm took place between 1 May and 19 May 2020. On 19 May 2020, HLG took TN to hospital to seek treatment for a bruised penis (exhibit P3). It is the prosecution case that this injury was caused by the accused forcefully squeezing TN’s penis. Dr Noori gave evidence that it was likely force had to be involved, such as forceful pinching and gripping of the tip of the penis, to cause such an injury. He said that a significant amount of force would have been required. 26 In relation to this offence, HLG gave evidence that on 19 May 2020 she observed bruising on the penis of TN between 12 noon and 2 pm and after they had returned home from Occasional Care. HLG said that she took TN to the Trinity Medical Centre and they were then referred to the Women’s and Children’s Hospital on the same day. It is the prosecution case that the only person who could have caused that injury was a person that had TN in their care in the period leading up to 19 May 2020. Those persons were HLG, the accused or someone from Occasional Care. The prosecution submitted that the Court should accept HLG’s evidence that she did not commit the offence. The prosecution further submitted that if the Court found that TN suffered the similar injury to his penis in July 2020 (when he did not attend Occasional Care), then an application of improbability reasoning, would exclude as a reasonable possibility anyone from Occasional Care (or any of the other children of the accused) as a cause of the injury that is the 1 (1893) 6 R (HL) 67. -- 8 of 54 -- [2024] SADC 62 7 subject of count 1. The only rational explanation, the prosecution contended, was that the accused committed the act that is the subject of count 1. 27 In relation to count 2, the prosecution case is that the accused caused the injury to the pancreas of TN. That injury involved a complete transection of the pancreas. That injury came to light when TN was taken to hospital on 15 July 2020 as a result of injuries to his liver and penis which form the basis of counts 3 and 4. It was the evidence of Dr Noori that the injury to the pancreas was caused by blunt abdominal trauma to the upper abdomen or pushing of the pancreas against the vertebral column of the backbone. It was also the evidence of Dr Noori that the injury to the pancreas had occurred at least 3-4 weeks prior to TN’s hospitalisation on 15 July 2020. He said that a significant amount of pushing or compressive force would have been required to cause the injury. At the same time that the injury to the pancreas was discovered, a healing injury to the upper second rib was also discovered, although that could not be dated. The rib injury is uncharged conduct. I do not make any finding in relation to that rib injury and use the rib injury only to provide context regarding the circumstances in which the pancreas injury was discovered. 28 The prosecution case relies upon admissions and statements made by the accused to his former wife, Ms RS, to Dr Sima Abassi and Dr Elinor Spacie, to Ms SB (the mother of Ms RS and ex-mother in law of the accused) and to Ms ML, the mother of the accused. There are also a number of text and Facebook messages sent by the accused that are relied upon by the prosecution. 29 In relation to count 3, the prosecution case is that the accused caused injury to the liver of TN. That injury came to light when TN was taken to hospital on 15 July 2020. It is the prosecution case that this offence occurred between 12 July 2020 and 15 July 2020 and involved the laceration of the liver. 30 The prosecution relies upon the evidence of Dr Noori that the laceration to the liver was caused by a compression mechanism that occurred between 24 to 48 hours before TN was presented to hospital and was recent at that time. It was Dr Noori’s evidence that the injury occurred just prior to him becoming symptomatic. The prosecution submitted that the only persons who had the opportunity to have committed such an injury in the time leading up to the infliction of the injury were either HLG or the accused. Again, it is the prosecution case that it was the accused who did those acts. The prosecution also relies upon a number of statements made by the accused to doctors and other persons. At the same time that the liver injures were found, it was also found that TN had sustained nine fractures to his ribs. The evidence of Dr Noori was that these injuries may or may not have occurred at the same time as the laceration of the liver. The nine rib injuries are uncharged conduct. I do not make any finding in relation to these rib injuries and use the rib injuries only to provide context regarding the circumstances in which the liver injury was discovered. -- 9 of 54 -- [2024] SADC 62 8 31 As to count 4, the prosecution case is that the accused caused injury to the penis of TN. That involved the bruising of the penis of TN which, on Dr Noori’s evidence, was caused by pinching or squeezing of the penis. It is the prosecution case that HLG first observed the bruising of the penis on Tuesday 14 July 2020. The prosecution submitted that the only persons who had the opportunity to have committed such an injury in the time leading up to the infliction of the injury were either HLG or the accused. Again, it is the prosecution case that it was the accused who did those acts. 32 No discreditable conduct notice was filed by the prosecution. I therefore do not use any conduct of the accused for the purpose of propensity reasoning. The prosecution does however rely on improbability reasoning in relation to count 1 to exclude as a rational possibility that the injuries were sustained at Occasional Care. It is improbable, it is submitted, that given the similarity of the injuries suffered by TN which are the basis of count 4 and given that TN did not attend Occasional Care at the relevant time in relation to count 4, that the similar injuries that form the basis of count 1 were sustained at Occasional Care. Overview of the Defence Case 33 The accused gave evidence. He denied that he committed the objective elements as alleged. 34 As to count 1, he denied that he committed any act that may have caused injury to the penis of TN in May 2020. 35 As to count 2, the injury to the pancreas, the accused also denied that he committed the offence as alleged. The accused further submitted that it could not be excluded as a reasonable possibility that the injury occurred whilst he was performing CPR on TN during the bath incident. The accused said that there was an incident in the bath where he left TN unattended and when he returned, TN was not breathing. The accused said that he then performed CPR on TN which involved compressing his chest. 36 As to count 3, the accused denied that he committed the offence alleged. The accused further gave evidence that on the night prior to TN becoming sick, he was asleep on the couch and TN came to him during the night. The accused said he threw out his elbow and that collected TN in the chest. This is the conduct that I have described as the couch incident. The accused said that it could not be excluded as a reasonable possibility that the laceration to the liver occurred in this way. 37 As to count 4, the accused denied that he committed any act that caused injury to the penis of TN in May 2020. Witnesses 38 The prosecution called a number of witnesses, some of whom were called only for providing some evidence relating to the care of TN and for the purpose of denying that they caused any harm to TN at the relevant times. -- 10 of 54 -- [2024] SADC 62 9 39 HLG (the mother of TN) gave evidence on a number of topics. I accept her as a credible and reliable witness. 40 KLG, the mother of HLG, also gave evidence. I accept her as an honest and reliable witness. Her evidence mainly concerned matters relating to the background circumstances including the arrangements for the care of TN and the relationship between the accused and TN. 41 Mr AN, the father of TN and the ex-partner of HLG, gave evidence. He was a generally honest and reliable witness although he was not wholly responsive to questions about his responsibility for TN or how he responded when advised of TN’s injuries. However, that did not cause me to doubt his reliability on substantial matters. 42 Ms GN, the mother of Mr AN and therefore grandmother of TN, also gave evidence as to the routine in relation to the care of TN. Again, her evidence was not controversial. I have no difficulty in accepting her reliability and credibility. 43 Ms RS, the separated wife of the accused, gave evidence that she had a number of conversations with the accused after TN sustained the injuries in July 2020. This included conversations with the accused in July 2020, text messages in August 2020 and September 2020 and a telephone conversation in April 2021. In each of those occasions the accused made statements that either admitted some conduct or made statements contrary to the evidence that he gave in Court. In some cases the conversations are supported by subsequent text messages. In some cases, the accused accepted that he had made the statements but has offered an alternate explanation for those statements. I accept the evidence of Ms RS as credible and reliable. 44 Ms SK, the sister of GN and therefore the aunt of Mr AN, gave evidence as to some of the care-giving arrangements in relation to TN. That evidence was not controversial and I accept her evidence. 45 Ms Cheyenne Gee, a friend of HLG, gave evidence. Apart from some background evidence, she also gave evidence of a visit to HLG and TN on 13 July 2020. Her evidence was not controversial and I accept her evidence. 46 Ms SB, the mother of Ms RS and therefore the ex-mother-in-law of the accused, gave evidence. She had contact with the accused in the period between 21 July 2020 and 1 August 2020 by way of SMS messages. She also had a face- to-face meeting. I accept her as a credible and reliable witness. 47 Ms ML, the mother of the accused, gave evidence. Apart from some general background matters she gave evidence in relation to some conversations with the accused after the alleged offences, which is inconsistent in one aspect with the evidence that the accused gave in Court. I accept her evidence. -- 11 of 54 -- [2024] SADC 62 10 48 Ms Veronica Hristofis, gave evidence. She was the then wife of the employer of the accused. She gave evidence relating to a conversation that she had with the accused in July 2020. I accept her evidence. 49 Two police officers, Ms Nicola Woods and Ms Hannah Clarke, the investigating officer, gave evidence concerning their investigation in July 2020. Their evidence was not controversial and I accept their evidence. The only material evidence they gave concerned the record of interview given by the accused which was recorded and therefore the contents of the interview were not in controversy. 50 Three medical practitioners gave evidence, Dr Sima Abbasi, Dr Elinor Spacie and Dr Khurram Noori. Dr Abbasi and Dr Spacie were both medical officers working at Noarlunga Hospital at the time that the accused presented to that hospital on 25 July 2020 and 26 July 2020 respectively in relation to mental health issues. Their evidence related to communications that they had with the accused on those occasions. They do not have any independent recollection of the communications. I accept their evidence that the written records of their communications were an accurate record of their conversations with the accused. 51 Dr Noori gave evidence both as to his observations of the injuries of TN in July 2020 and also opinions regarding the causes of the injuries and when they occurred. He was an impressive witness. He undertook paediatric training in South Australia and in 2016 obtained his Fellowship from the College of Physicians. He had earlier been a paediatric registrar at the Women’s and Children’s Hospital from February 2009. From 2012 to 2016, he undertook advanced paediatric training. He had an extensive knowledge in his area of speciality. 52 The accused called two witnesses, himself and Dr Pakos. The accused gave evidence about background and circumstances of his relationship with HLG and also with TN. The accused gave evidence of his mental health issues. The accused gave evidence that there was an occasion when he performed CPR on TN when he had left TN in the bath. The accused has given inconsistent evidence in relation to this incident. The evidence is also not consistent with the statements that he made to Ms RS and the doctors. For reasons that will later appear, I reject that evidence. 53 The accused also gave evidence that on the night prior to TN going into hospital in July 2020 he accidently hit TN in the chest. For the reasons which will later appear, I also reject that evidence. 54 The accused also gave evidence denying that he committed the acts that are the subject of counts 1 and 4 which caused injury to TN. For the reasons which I set out below, I reject that evidence. The accused also gave evidence that, other than the bath and couch incidents, he did not commit any act that is the subject of counts 2 and 3 which caused injury to TN. For the reasons which I set out below, I also reject that evidence. -- 12 of 54 -- [2024] SADC 62 11 55 Dr Pakos was a general practitioner who has for many years treated the accused. He gave evidence about the mental health issues that the accused has experienced and how he has treated those issues. I accept his evidence. Factual findings 56 I will first make findings about some background matters which are not in dispute. I will then make findings about some of the other pieces of evidence in respect of which there is some dispute and which are relevant to my assessment of the evidence of those witnesses and the accused. I will then make findings about the specific matters and events that form the basis of the charges against the accused. Following my factual findings, I will then consider whether the prosecution has established beyond reasonable doubt that the accused committed the objective elements of the offences. Background facts 57 I make the following findings about the background matters. 58 HLG was born in 1998 and was 22 years of age at the time of the alleged offending. Her son, TN, was born in January 2019 and therefore was between 16- 18 months at that time. HLG’s former partner, Mr AN, was the father of TN. HLG’s relationship with Mr AN ended in February 2020. 59 By that stage, HLG was seeing the accused. Within a short period of time and relevantly by May 2020, HLG had moved in with the accused at his house at the Hackham West Property. When she moved in, the three children of the accused, Ol aged 6, Od aged 4 and So aged 2, were living with him at that address. Ol, Od and So spent weekends with their mother, Ms RS. 60 From 26 April 2020, Od ceased spending weeks with the accused at the Hackham West Property although all three children spent the week with the accused from 5 July 2020 to 12 July 2020. During that week, TN was with Mr AN and his mother. Arrangements for the care of TN 61 A number of witnesses gave evidence about the general arrangements that were in place for the care of TN in the period from February 2020 to July 2020. This evidence was given by HLG and others involved in TN’s care, including her mother, KLG, Mr AN, his aunt SK and his mother GN. I accept their evidence which I set out below. 62 HLG gave evidence that when their relationship ended, she and Mr AN shared the custody of TN. Each would care for him in alternate weeks, from one Sunday to the next Sunday. That evidence was confirmed by Mr AN and by KLG. When TN was in HLG’s care, he would usually stay the Friday night with KLG. -- 13 of 54 -- [2024] SADC 62 12 63 HLG said that she worked as a manager at Hungry Jacks, West Lakes on Thursdays and Fridays from 12 noon to 8pm. KLG said that HLG would work 2- 3 shifts per week and sometimes on the weekend. I do not need to resolve that difference as it is immaterial to the matters in issue. When HLG worked, KLG or her mother (HLG’s grandmother), would look after TN. Other than when she was working, HLG looked after TN when he was in her care and not in the care of Mr AN. 64 On Tuesday mornings, TN would go to Occasional Care at Woodcroft between 8 am and 11 am. HLG would take him to and pick him up from Occasional Care. It was an agreed fact (exhibit P22) that TN attended Occasional Care eleven times during 2020 and relevantly (in relation to count 1), attended on 19 May 2020. TN did not attend Occasional Care after 30 June 2020. 65 Mr AN gave evidence about the routine when TN was in his care. He said that when TN was in his care, the general routine was that TN would attend childcare either on a Tuesday or a Thursday for a half day and that on the other days a family member, his aunt, SK, or his grandmother, JN, would look after him. At the end of the day, TN would be taken to Mr AN’s parents’ house and they would eat dinner together, before he and TN returned home. He said that the routine was different on the weekends when TN was in his care as TN would usually stay with Mr AN’s parents on the Saturday and Sunday nights and they would generally look after TN over the weekend. Mr AN said that at no time in the period from March 2020 to July 2020 did anyone else stay at his home when TN was in his care. He agreed that when TN was in his care, up to 5 people would look after TN, his mother and father, his aunt (SK), his grandmother and himself. 66 Ms GN, the mother of AN, confirmed these arrangements. She said that the changeover would occur on a Sunday afternoon. She said that her sister, SK, would look after TN on Mondays, Wednesdays and Fridays when TN was in the care of Mr AN. She said that her mother (Mr AN’s grandmother) would help. She said that on Tuesday morning TN would go to Occasional Care and on Tuesday afternoon and Thursday, her mother and father-in law would look after him. 67 Ms SK, who was the sister of GN and therefore the aunt of Mr AN, gave evidence that she looked after TN on Mondays, Wednesdays and Fridays every second week in early 2020, including in May and June 2020. She said that there was never a time when TN was in her care that he appeared to be unwell or in pain. The accused’s relationship with TN 68 HLG gave evidence, as did other witnesses, that the accused’s relationship with TN was good. TN and the accused would play with play dough, eat, listen to music and play on the trampoline and swing in the back garden. KLG confirmed this evidence and said that the accused “seemed really good with [TN].” She did not have any concerns about the interactions between the accused and TN. -- 14 of 54 -- [2024] SADC 62 13 69 HLG gave evidence that there was a time when TN became clingier to her and there was a time where she thought that TN was scared of the accused but she could not identify that time. KLG gave evidence that TN was the kind of child who would tend to cling to his mother, including when he and HLG were still living with Mr AN. 70 The accused gave evidence that he was concerned about his relationship with TN and discussed that matter with his ex-wife, Ms RS. He also agreed that he was aware that HLG was concerned about his relationship with TN and that they were not bonding properly. He agreed that he had the same concern. He said that he had a problem with his connection with TN before the bath incident but it deteriorated after that. 71 A series of text messages between the accused and HLG in the period between 29 June 2020 and 3 July 2020 (part of exhibit P15) indicated the concern that the accused had about his relationship with TN. 72 I make the following findings. The accused had a generally good relationship with TN. The relationship deteriorated to some extent, although neither the date of, nor reason for, such deterioration can be determined. I accept the evidence of HLG that TN became clingier to her and seemed scared of the accused. That evidence is supported by the text messages and by the evidence of the accused that he was concerned about his relationship with TN and that his concerns were sufficiently serious to raise with his ex-wife, Ms RS. Bathing and sleeping arrangements 73 I make the following findings which were not in dispute. 74 TN would sometimes be bathed with the other children. Both the accused and HLG would supervise them on those occasions. HLG said that the accused would sometimes bath TN when she was not home but she was not sure how often he would do so. The accused would put the children to bed, including TN. 75 The sleeping arrangements were that Ol, Od and So would sleep in the front room and TN would sleep in a toddler bed in So’s room. The accused and HLG would sleep together, although on occasions the accused would fall asleep on the couch. Use of cannabis by the accused and HLG 76 HLG and the accused gave evidence as to their use of cannabis. 77 I make the following findings from their evidence. There was no dispute about these matters. 78 HLG and the accused were frequent and extensive users of cannabis. They would smoke cannabis in the garage about 8-10 or 8-15 times a day. They would smoke both in the mornings and at night. The accused admitted to that use. He said -- 15 of 54 -- [2024] SADC 62 14 that he would smoke more than HLG. HLG said that there were occasions when the children were home and awake when she and the accused smoked cannabis in the garage. HLG said that the cannabis made her feel relaxed. 79 I use that conduct only for the purpose of providing context to the conduct and actions of the accused. I do not use it to reason that because the accused was a frequent user of cannabis, that he was more likely to have committed the charged offences. I do not use it to reason that because he was a frequent user of cannabis that he was a bad person and therefore more likely to have committed the charged offences. I do not use it for any propensity purpose. Visitors to the house 80 HLG gave evidence that apart from her friend, Ms Gee, she could not recall any other visitors to the Hackham West Property in June or July 2020. No-one stayed overnight in that period. I accept that evidence. Work of the accused 81 HLG gave evidence that the accused was not working in May 2020 but commenced work in June or July 2020. It was an agreed fact that the accused commenced contract work as an arborist with Arb Pro on 20 June 2020 and worked on the following dates: 29 June 2020, 4 July 2020, 14 July 2020, 15 July 2020 and part of 17 July 2020. Mental health of HLG 82 KLG gave evidence that HLG may have suffered from depression after the birth of TN but it was not diagnosed. She said that she observed a quietness when HLG was with her. She said HLG had suffered mood swings all her life which manifested themselves in verbal, but not physical outbursts. She said that she had never seen HLG getting physically or verbally angry with TN or physically disciplining him. 83 Mr AN also said that he thought that HLG was suffering from post-natal depression. He said that went on for about 12 months from early 2019 to January 2020. He said that there were occasions when HLG was physical to him, mostly pushing or shoving, sometimes throwing a few punches. 84 I make the following findings. HLG was manifesting signs of depression following the birth of TN, although no formal diagnosis had been made to that effect. The evidence of KLG and Mr AN supports that conclusion. HLG had never been physical or verbally angry with TN. The evidence of KLG supports that conclusion. Mental health of the accused 85 The accused gave evidence that he has had mental health issues for many years, including during the time that he lived with HLG. He said that he was prescribed medication by his general practitioner, Dr Pakos. He said that he had -- 16 of 54 -- [2024] SADC 62 15 been prescribed Lexapro which is an anti-anxiety medication and Seroquel, an anti-psychotic medication. He said that he had been diagnosed as bi-polar by Dr Pakos. He said that he had been on the medication for about four years. He said that prior to having the medication, he was experiencing auditory hallucinations. He said that only happened during the period that he was with HLG if he missed his medication for a period of time (four or five days). In such cases, he would hear voices. 86 Dr John Pakos was a general practitioner who worked at Woodcroft Medical Clinic. He has been the treating general practitioner of the accused from about 1995 (when the accused was still a child). On 16 February 2015, he said that he prescribed Diazepam, which is a calming drug as the accused had presented with anxiety. In March 2015, Dr Pakos saw the accused and considered that he was suffering from depression. On 9 August 2018, he prescribed Quetiapine for the accused which is an anti-psychotic drug, usually used for schizophrenia, but also has a calming effect for severe anxiety. Dr Pakos said that he did not believe that the accused was psychotic but said that he was agitated and irrational in his thinking. It was for the accused’s severe anxiety that he prescribed Lexapro. In March 2018, the accused told Dr Pakos that he was struggling with mood swings, agitation and depression. On 12 November 2018, Dr Pakos again prescribed Quetiapine for the accused for what he described as extreme anxiety. He continued thereafter to prescribe Quetiapine for the accused for his anxiety. In January 2020, the accused undertook what is known as a K10 assessment which gauges the severity of his mental state. His results showed moderate psychological distress. 87 I make the following findings about the mental health of the accused. 88 The accused had been suffering from depression and acute anxiety for many years and was prescribed medication for those conditions. The accused experienced auditory hallucinations if he did not take his medication. I do not use this evidence to reason that he is more likely to have committed the charged offences or for any propensity reason. I use it only for the purpose of understanding the context in which he made statements about his mental health to Dr Abbasi and Dr Spacie, and to Ms RS, HLG and Ms SB. Evidence about the circumstances of the injury to TN’s penis in May 2020 89 HLG gave evidence that on Tuesday 19 May 2020, TN attended Occasional Care. She said that when she got home from Occasional Care, she changed TN’s nappy and observed bruising on the top of his penis. She said that she first noticed the injury between about 12 noon and 2 pm. She said that the bruising was not present in the morning. She thinks that it may have been the case that the accused was not home when she first noticed the injury but she did not remember. She said that she took TN to the Trinity Medical Centre that same day and was then referred to the Women’s and Children’s Hospital. She took the three photographs on 19 May 2020, 20 May 2020 and 21 May 2020 of the bruising to the penis that -- 17 of 54 -- [2024] SADC 62 16 appear in exhibit P3. She said that she did not know how TN got the injuries to his penis but she did not do anything that would have caused those marks. 90 The time of HLG’s discovery of the injury is confirmed by a text message she sent to the accused on 19 May 2020 at 3.20 pm referring to the bruising on the penis and that she was getting it checked out (part of exhibit P15). 91 Dr Noori did not examine TN in May 2020. However, he did examine TN on 16 July 2020, including in relation to the penile bruising (along with his other injuries) that he sustained at that time. He said that he had been provided with photographs of the May bruising to the penis. He said that the bruising to the tip of the penis in May was very similar to the July bruising to the penis. He said that the difference between the two sets of bruising was that the May bruising was larger and more prominent on the left side of the tip of the penis while the July bruising was larger and more prominent on the right side of the tip of the penis. He said that the only other difference was there were additional injuries in terms of bruising over the left groin and left and right upper thighs which were present in May but not in July. Dr Noori said that the May bruising would have occurred from some sort of forceful impact. He said that a significant amount of force would have been required to cause bleeding under the skin resulting in the appearance of bruising in that location. He said that the mechanism or likely forces to have been involved to cause injury of that particular appearance at the tip of the penis would have been forceful pinching or gripping of the tip of the penis. He said that children do not suffer that injury in their daily activities because they cannot grab or grip their penis with that force to cause the injury. 92 KLG (HLG’s mother) gave evidence that HLG showed her the bruising to TN’s penis and that she went with HLG and TN to the hospital. She said that she also saw the photographs that HLG took (exhibit P3). 93 Mr AN gave evidence that at some time in May 2020 he was advised by HLG of the bruising to TN’s penis. He cannot recall if he ever saw the bruising. He said that he did not cause the bruising. 94 Ms SK gave evidence that she did not do anything that caused injuries to TN’s genitals throughout the period from May 2020 to July 2020. 95 The accused gave evidence denying that he caused the injury to TN’s penis. He said that HLG showed him the injury to TN’s penis at about lunchtime on 19 May 2020 when she brought him home from childcare. He saw the bruising on the tip of his penis at that time. He said that he did not know how that injury was caused. 96 It was an agreed fact that the accused was not working at this time. 97 I will set out later in these reasons, my findings about the circumstances of the injury to TN’s penis. -- 18 of 54 -- [2024] SADC 62 17 Evidence about the circumstances of the injury to the pancreas and second rib 98 None of the lay witnesses gave evidence about observing the injuries to the pancreas or second rib of TN in June 2020. KLG said that everything seemed normal from May until mid-July 2020. Mr AN gave evidence that TN was not ill when he was in his care during the period from February to June 2020. GN gave evidence that there was an occasion in May 2020 when TN was sick and was clingy and coughing phlegm and they took him to a hospital where a diagnosis was made that he had a virus. 99 Dr Noori said that an X-ray was taken of TN’s chest on 16 July 2020 and showed a healing fracture of the left second rib. The presence of callus indicted that the fracture was already healing and was at least two weeks of age and could have been longer. 100 Dr Noori gave evidence that when he examined TN on 16 July 2020, liver function tests had shown an abnormality in liver function. Those tests had also shown an abnormality in the pancreas and some fluid in the abdominal cavity. An ultrasound and then a CT scan showed, inter alia, a complete transection of the pancreas at the junction of the body and the tail. The pancreas was split in two pieces at the junction of the body and tail. He said that the injury would never heal. 101 Following the CT scan, an MRI scan of the pancreas was conducted on 17 July 2020. That scan showed the transection of the pancreas at the junction of the body and the tail. The MRI scan also showed the presence of a circumscribed pseudocyst. A pseudocyst is a cyst with a collection of fluid which occurs outside of the pancreas. It usually occurs due to an injury to the pancreas. Dr Noori said that the significance of the finding is that the cyst does not usually show up on the scan until at least three to four weeks after the initial injury and therefore the presence of the pseudocyst meant this injury was not recent and was at least three to four weeks old and possibly more. 102 Dr Noori said that the pancreatic injury would have revealed itself in the form of abdominal pain, discomfort, as well as lethargy. There may have been vomiting episodes. The appetite might be affected. Dr Noori gave evidence that a child as young as TN, who was 18 months old when he presented, is not expressive in articulating what is wrong with them and it might appear that they were coming down with an illness and were lethargic. He said that TN would have symptoms of abdominal pain, discomfort and might have reduced oral intake. He may have been able to be treated with simple analgesia such as paracetamol. 103 Dr Noori said that given the location of the pancreas, which is in the upper abdominal area towards the back part of the abdomen, any sort of blunt abdominal trauma to the upper abdomen would cause the compression or pushing of the pancreas against the vertebral column of the backbone resulting in a transection of the pancreas. Therefore, a forceful pushing of the upper abdomen underneath the rib cage would result in the pancreatic injury that TN suffered. He said that an -- 19 of 54 -- [2024] SADC 62 18 excessive amount of force such as something that you would see in motor vehicle accidents would have been required to cause compression of the pancreas against the backbone. He said that the external force could either be a compressive injury or an application of some external force. He said that a blow might involve a significant amount of pushing or compression forces to cause the pancreas to be pushed against the backbone or the vertebral column to result in the pancreatic injury. 104 He said that it was not likely that the same act of force that caused the injury to the pancreas caused the nine rib fractures as there is a significant space between the lowest rib fracture and the pancreas. The same blow that caused the injury to the pancreas may not have caused the injury to the left upper rib. 105 Mr AN, HLG, KLG and SK all gave evidence that they did not do anything that might have caused any injury to TN’s chest or abdomen. 106 The accused gave evidence about an incident that occurred when he was bathing TN. He said that he could not recall when the bath incident occurred but said that it was about eight weeks prior to a second incident involving TN which was in about July 2020. He said that the bathing incident occurred prior to 20 June 2020. In cross-examination, he said that it might have been a month or two prior to June 2020. He says that he can specify that period because the incident occurred before he had started work. He said that at the time of the bathing incident, So and TN were in the bath. He said that Ol was on the couch and did not bath and Od was with his ex-wife, Ms RS. He said that he had taken So out as it was TN’s turn to stay longer in the bath. He said that he had taken So to the lounge room to get dressed in her pyjamas. He said that he had smoked cannabis during the day and was affected by the cannabis. He said that when he returned to the bath, TN was under the water. He said that he pulled TN out of the bath and laid him on the floor because he was not moving. He said that he then started giving CPR to TN. He said that he started doing chest compressions with his hands. He was pushing down on TN’Ss chest with both of his hands. He said that he used a decent amount of force. He said that after about 15 seconds or less, TN came to and vomited. He said that he did not tell anyone at that time about the incident, including HLG. He said that he was worried about jeopardising his relationship with her. He said that the first person that he told about the bath incident was his ex-wife, Ms RS. The evidence from Ms RS was that in April 2021 the accused told her about the bath incident. 107 The accused gave evidence that he said to others that he was responsible for the injuries of TN because of the bathing incident and the couch incident (which occurred in July 2020 and to which I will refer to later in these reasons). He said that when he admitted to HLG on 18 July 2020 and 24 July 2020 to pushing down on TN, he was referring to giving CPR to TN. He said that he was not aware of causing any injury to TN at the time. He said that at the time of the bath incident he was taking his medication but he stopped sometime after that incident so that he would not be distracted. -- 20 of 54 -- [2024] SADC 62 19 108 He said that he did not tell Dr Noori about the bath incident because he was afraid of losing his relationship with HLG. 109 He said that for the same reasons he was not open and honest in his interview with Detectives Wood and Atkins. 110 I will set out later in these reasons, my findings about the circumstances of the injury to TN’s pancreas and the evidence of the accused about performing CPR on TN. Evidence about the circumstances of the injury to the liver and ribs and penis- July 2020 111 HLG gave evidence that TN was returned to her care on Sunday 12 July 2020, having been in the care of Mr AN for the prior week. 112 Mr AN gave evidence that confirmed these arrangements and said that on Sunday 12 July 2020 TN had been taken to a party of his niece, who was about 11 years of age, at the Noarlunga Megazone. He said that the area had been booked as a private party and there were less than 20 people at the party and at Megazone. He said that he arrived at the party at about 4 pm and understood that TN had been looked after at the party by GN. GN was the mother of Mr AN and the grandmother of TN. He said that he had seen a video of TN playing in a padded playground and in a ball pit at the party. 113 GN gave evidence that TN was in her care from Sunday 5 July 2020 to Sunday 12 July 2020. She took annual leave so that she could look after TN throughout that week. She said he was well and not sick during that week. She said that she supervised TN throughout the party at Megazone on 12 July 2020. She said that when he was in the play gym, TN was alone with her. She believes (but cannot be certain) that she changed his nappy before the handover as she liked to hand him over clean and tidy. She said that she did not notice any marks on his genitals at that time. She said that the next time she saw TN was in hospital on 16 July 2020. She said that she did nothing that could have caused the injuries to TN nor did TN have any accident between 5 July and 12 July 2020 that could have caused those injuries. She did not observe anyone doing anything that could have caused those injuries. 114 Ms SK gave evidence that she did not do anything that caused injuries to TN’s abdomen, chest or genitals. 115 HLG gave evidence that on Monday 13 July 2020, her friend Cheyenne Gee came to the Hackham West Property to visit her and TN. Ms Gee arrived around lunchtime on that day. Ms Gee and HLG left TN with the accused for a short period around lunch time when they went to a bakery. Ms Gee left at about dinner time. TN was in good spirits when she left. -- 21 of 54 -- [2024] SADC 62 20 116 Ms Gee gave evidence that she visited HLG and TN at the Hackham West Property on Monday 13 July 2020. She said that the accused was also present. She said that they played with TN including on a rope swing in the backyard which had a baby seat attached to it. Other than being a “bit sooky,” she said that TN was well and enjoyed his lunch. A number of photographs were taken of TN on that day and generally show TN to be in good spirits. 117 Ms Gee was not challenged on her evidence. She was asked only two questions in cross-examination which only went to the relationship between the accused and TN which she described as normal parenting. 118 The children of the accused were with Ms RS for the week commencing 12 July 2020 as it was school holidays. HLG said that she put TN to bed between 7 and 8 pm. She said that she spent some time with the accused after putting TN to bed, including smoking cannabis. She said that she went to bed at about 9-10 pm. She said that at that time, the accused was still in the lounge room. 119 HLG said that TN came into bed in the middle of the night. She could not recall the time. She said that the accused brought TN into her bed. She said that TN was cranky, unsettled and crying. She tried to put TN back into his bed but he would not go down. 120 HLG gave evidence that on Tuesday 14 July 2020, TN was unwell. He was lethargic and did not want to eat. She said that he vomited on more than one occasion. The vomiting is confirmed by a text message she sent to Mr AN on 14 July 2020 at 9.57 am (part of exhibit P5) when she said that TN had been up last night and vomited on a few occasions and had projectile vomited that morning. She also sent a text message to the accused at 9.23 am saying that TN had just projectile vomited everywhere. When she changed his nappy, she observed that there was bruising on the tip of his penis. She could not recall at what time during the day that she observed the bruising. The text messages to which I have just referred also stated that the bruising on the penis had returned, so she must have observed it prior to 9.57 am. She agreed that she showed the injury to the accused straightaway although there is a text message to the accused at 10.09 am on 14 July 2020 referring to the bruising on the penis. The agreed facts show that TN did not go to Occasional Care on 14 July 2020. In cross-examination, HLG was unsure of the date but agreed that she showed the accused the injury straightway. Again, although uncertain as to the timing, she says that Ms Gee was not present when she first located or saw the injury. 121 KLG gave evidence that HLG rang her on Tuesday 14 July 2020 to say that TN was unwell. She said that she told HLG to call a doctor. She said that HLG rang back to say that she could not get a doctor’s appointment on the Tuesday but had made one for Wednesday. 122 On the following day, Wednesday 15 July 2020, HLG took TN to the doctors and they were then referred to the Women’s and Children’s Hospital. She said that -- 22 of 54 -- [2024] SADC 62 21 she became aware that he had fractured ribs, a laceration to his liver and pancreas and a mark at the end of his penis. She said that she had nothing to do with any of those injuries. She said that she did not see anyone cause those injuries. 123 KLG said that HLG rang her, very upset, after the doctor’s appointment and they both took him to the hospital. KLG said that did not do anything that caused the injuries to TN’s ribs, liver, pancreas or the bruising to his penis. She said that prior to going with HLG and TN to the hospital on Wednesday 15 July, she had not seen TN since the Sunday a week prior because he had been with Mr AN for the previous week. 124 HLG said that on Friday 17 July 2020, she returned to the Hackham West Property to live with the accused. She said that on the advice of her lawyer, she moved out of the property. She said that couple of days after she moved out, she received a text message from the accused. She took a screen shot of that message (exhibit P4) which read: I love you [HLG]. I too care for [TN], even though I did this to him. This wasn’t supposed to happen to him or you or [Mr AN] or your families. I am a good man and a father that was corrupted by something otherworldly. I will get better again I know and you will all move past this stronger and [TN] will live and be happy. He will have his mum and you will have your beautiful little boy back in your arms. If you haven’t already because you are so kind and loyal and full of integrity. I hope that you can forgive me and what happened. I truly didn’t mean for any of this I swear on my babies. Tell your dad, that it wasn’t me. You all saw me as I was, a good man and father. I take responsibility for this though and I will not let this horrible mistake define me. As confusing as it is also for me, I know that I love you and I hope that you and [TN] and pepper are happy, so so happy. 125 Dr Noori also gave evidence about his examination of the injuries of TN. He said that he was contacted by Dr Chris Pearson, the general paediatrician at the Women’s and Children’s Hospital, who advised him that he was concerned about the bruising on the tip of the penis and was also concerned about the chest X-ray which showed that one of the ribs, the left upper second rib, looked abnormal. Dr Pearson later advised Dr Noori that the dedicated rib views showed there to be a healing fracture of the left upper second rib. 126 Dr Noori said that he examined TN on the afternoon of Thursday 16 July 2020. He said that on examination, TN appeared unwell and lethargic. He had bruising on the tip of the penis which was more on the right side, compared to the left but it was all around the tip of the penis. 127 Dr Noori said that on TN’s admission to hospital on 15 July 2020, blood tests were taken which showed that he had very elevated liver enzymes, about ten times the normal range, which indicated that something was wrong with the liver. For that reason, he said that additional scans were taken to determine the cause of the high liver enzymes. He said that an ultrasound was taken on 16 July 2020 and a -- 23 of 54 -- [2024] SADC 62 22 CT scan of the abdomen, pelvis and chest performed later that day. He said that the ultrasound showed there was an abnormal appearance of the liver and pancreas and large amount of free fluid in the abdominal cavity which could be blood. The CT scan showed a laceration at the junction of the right and left lobe of the liver, the complete transection of the pancreas at the junction of the body and tail and the free fluid in the abdominal cavity had the appearance of blood. He said that the liver and the pancreas are in close proximity, the liver being more to the front of the body and the pancreas located at the back of the abdominal cavity. The liver is located underneath the rib cage in the right side. 128 Dr Noori gave evidence that the CT scan identified additional rib injuries (to the healing fracture of the left second rib) including rib fractures on both sides of his chest. The additional rib fractures are shown on exhibit P19. There were five rib fractures on the right side and four on the left side. Dr Noori said that the rib fractures would have occurred sometime prior to TN presenting at hospital but he could not be more accurate whether they were a few weeks old or later than that because he was not able to age them. 129 In terms of symptoms, Dr Noori said that the rib fractures would have caused TN a lot of pain initially and significant discomfort. He said that the liver laceration would have caused abdominal pain, abdominal discomfort, lethargy, loss of appetite and not wanting to drink, feeling unwell and possibly a fever and vomiting episodes. 130 He said that the liver injury was recent. The scan showed the injury to be a recent injury. The blood collection in the abdominal cavity also led to that conclusion and the rapid increase of the liver enzymes and rapid decline when he was in hospital also suggested a recent injury. He said that these matters indicated that the liver injury occurred just prior to TN becoming symptomatic clinically and within a day or two prior to him presenting to hospital. He said that given the history reported by HLG that TN was his normal self on Monday and became unwell on Monday night when he was brought to HLG’s bed and was unwell on Tuesday morning, something happened overnight (on the Monday night) resulting in TN becoming unwell. 131 Dr Noori said that the nine rib fractures were caused by the forceful compression of the chest or from a direct impact to that location. He said that it was possible that the same compression or direct impact that caused the nine fractures of the ribs was the same act of compression or impact that caused the high up fracture of the rib on the left side. He said that a significant amount of force would have been required to cause a fracture in the bones of a child who doesn’t have any medical predisposition. He said that it is possible that CPR could cause such injuries. He said that he would not expect the second rib fracture to have been sustained during a CPR mechanism as it was towards the outer part of the chest. -- 24 of 54 -- [2024] SADC 62 23 132 Dr Noori said that the laceration of the liver was caused from crushing force in the area of the lower rib cage and the right upper abdomen. Compression forces in that area or pushing or squeezing could result in the laceration of the liver. The injury to the liver may have occurred at the same time as the rib injuries but may have not. 133 Dr Noori also made the observations to which I have already referred about the penis bruising he saw on 16 July 2020 when examining TN. He said that the blood test excluded any possible bleeding disorder as a cause for the bruising to the penis. 134 Mr AN gave evidence that he saw TN on Wednesday 15 July 2020 in hospital. He said that he had nothing to do with the injuries to TN’s ribs, pancreas or liver or the bruising on his penis. He said that he did not see anybody do anything that would have caused those injuries. 135 The accused gave evidence and said that there was a second incident involving TN which occurred after Ms Gee had come to the Hackham West Property on 13 July 2020. He gave evidence that on that day he fell asleep on the couch on the night of 13 July 2020. He had smoked some cannabis. He said that HLG had gone to bed. He said that he was woken up by TN at about midnight. He said that TN had climbed up on top of him and when he woke, he was shocked and knocked TN off him with his arm. He said that his elbow connected with TN. He said that TN ended up on the carpet. He said that he did not at the time consider that he had caused TN any injury but now thinks he may have done. The accused said that TN was not crying. He did not tell anyone about the incident at the time. In cross-examination, the accused said that he was facing the back of the couch and that when TN climbed up on him, he was shocked and knocked TN off him when he turned around. He said that TN ended up laying on the carpet. The accused agreed that he did not tell the police of this incident because he was afraid of getting into trouble and losing his family. 136 In cross-examination, he said that the injury to TN’s liver might have been sustained when his elbow connected with TN in the night during the course of this incident. 137 The accused gave evidence that he knew that it was important for the child protection authorities and the medical practitioners to understand how TN had sustained his injuries. He said that he did not tell Dr Noori about the bath incident because he did not want to be the reason why TN had sustained the injuries. He said that he was afraid of losing his relationship with HLG. 138 The accused said in relation to exhibit P4, the text messages to HLG (where he admitted that he “did this to him”), he was referring to TN’s broken ribs. He agreed at the time that he knew of the liver injuries but could not recall whether he knew of the pancreas injury. He gave evidence that when he stated in the text “tell your dad that it wasn’t me” he meant that he didn’t purposely hurt TN. He gave -- 25 of 54 -- [2024] SADC 62 24 evidence that when he said in the text “I’m a good man and a father that was corrupted by something otherworldly ”, he was referring to his mental struggles at the time. 139 I will set out later in these reasons, my findings about the circumstances of the injury to TN’s liver and the evidence of the accused about accidentally knocking TN whilst, the accused, was asleep on the couch. Record of interview and arrest of the accused 140 Brevet Sergeant Nicola Woods, who is a police officer attached to the Child and Family Investigation Unit, interviewed HLG and the accused on 16 July 2020. In that interview (exhibit P11), the accused said that he understood that TN had a broken rib, high liver enzymes and an injury to his penis. The accused said that he did not have an explanation for those injuries. The accused also said that he had fallen asleep on the couch on Monday 13 July 2020. He said that when he woke up, TN was in front of him. He said that he tried to take him back in his bed but he wouldn’t go back, so he brought him to HLG. He said that he had not noticed any issue with TN’s penis on Monday 13 July 2020 but could not remember if he changed his nappy on that day. 141 The accused was also advised of the healing fractured rib. 142 The accused gave evidence that he understood that it was important to assist the police and child protection services to understand what had happened to TN and that he had been told that was the purpose of the interview. He agreed that he had not been open and honest with the police in that interview because he was afraid of losing his family. He said that he did not see the bath incident as heroic on his part. He said that at time of his interview with the police, the only thing he knew was that TN had high liver enzymes. When it was put to him that during the interview, police officer Woods had referred to the broken ribs, high temperature and the bruising on the penis, he said that he couldn’t remember everything that was said back then. The accused agreed that he was surprised that there was a healing fracture of the rib. He denied that he was surprised because there was no occasion when he performed CPR. 143 Brevet Sergeant Clarke, who was a police officer then attached to the Southern Districts Child and Family Violence Investigation Section, attended the Hackham West Property on 17 July 2020. She observed that the accused appeared unwell. 144 She said that the accused was arrested on 26 July 2020 while he was at the Noarlunga Hospital. Statements made by the accused to Dr Noori on 20 July 2020 145 The accused was interviewed by Dr Noori on 20 July 2020. That interview was recorded (exhibit P20) so there is no dispute as to the contents of what was -- 26 of 54 -- [2024] SADC 62 25 said at the interview. At the time of the interview, the injuries to the liver, ribs and the pancreas were known. 146 The accused said in the interview that he woke up in the evening on 13 July 2020 to TN climbing on his face. He said that he tried to put TN back to bed but he wouldn’t settle and TN slept with him and HLG for most of the night. The accused did not state that he accidently knocked TN. 147 He said that he thought the bruising to the penis was nappy related. Statements made by the accused to medical practitioners at Noarlunga Hospital in July 2020 25 July 2020-Dr Abbasi 148 On 25 July 2020, Dr Sima Abbasi was on duty at the emergency department of Noarlunga Hospital. At that time, she was employed as a resident medical officer. She attended upon the accused. She made notes of that attendance at the time. 149 She gave evidence that the accused told her that he presented to the emergency department because he wanted more support. He told her that two weeks ago he pushed away his partner’s son which caused the child to be admitted at ICU due to rib fracture and hemorrhage. That comment is recorded in the notes that she took (exhibit P14). 150 The notes record the history taken by Dr Abbasi (which is in some detail) and includes inter alia: he was living with his partner and 3 kids he pushed away his partner’s son 2 weeks ago which caused the kid to be admitted at ICU [intensive care unit] due to rib fx and hemorrhage he feels he needed more support to avoid further incidents 151 Dr Abbasi said that she made the notes after she spoke with the accused. She cannot now recall over what period she finished writing the section of the notes that record the history given by the accused. Dr Abbasi could not recall if the accused said where the hemorrhage occurred. She said that the notes record that the accused said that the pushing away caused rib fractures and some haemorrhage. 152 Dr Abbasi also recorded that the accused was taking anti-anxiety, anti- psychotic and anti-depressant medication. 153 When viewed in their entirety, the notes of Dr Abbasi recording the history provided by the accused were very detailed. I accept their accuracy, including where she recorded what the accused said to her about the cause of TN’s injuries. The accused does not deny making the statements to Dr Abbasi but says that he was referring to accidentally elbowing TN in the couch incident. -- 27 of 54 -- [2024] SADC 62 26 26 July 2020-Dr Spacie 154 In July 2020, Dr Spacie was a resident medical officer at the Noarlunga Hospital. She was on duty at the hospital in the emergency department of the hospital on 26 July 2020. She attended on the accused on that date but does not now have any independent recollection of seeing him. She made notes of her attendance on him. 155 The notes (exhibit P13) record that the accused was admitted to the Noarlunga Hospital at 11.47 am on 26 July 2020. The notes record that Dr Spacie recorded an ED diagnosis as “mental disorder, not otherwise specified”. Dr Spacie said that she would have made that diagnosis after reviewing the patient. Dr Spacie gave evidence that she prepared the medical progress notes which record the history that she had taken from the patient. The notes record: Patient reports that he has returned to ED today as he was advised to do so yesterday by the doctor he saw -came yesterday seeking help and support, keen for an admission-however, the mental health team were to [sic] busy to review and so he was discharged with advice to return today Reports his main issue is that he has not ‘been himself” -an incident a few weeks ago where he pushed the child of his partner States that the child is ‘okay’-discharged from ICU yesterday following rib fractures, with liver and pancreas damage -feels that he has been struggling with his mood and anger recently and needs to be admitted to get support and a ‘proper diagnosis” -feels afraid that he will do the same thing again-no longer staying with the partner, has not got access to the child Reports the police are informed about the incident, as yet not sure whether he will he charged, but feels he need to ‘mental prepare for this’, 156 Dr Spacie gave evidence that she believed that the comment the accused made about what happened to the child and the child being hospitalised were linked. She said in cross-examination that she tried to document the history given by a patient very thoroughly and reliably. She said that generally she would have seen the patient and then typed her notes but she could not recall if she was interrupted when doing so. 157 I accept that her notes were an accurate record of the history told to her by the accused. As appears below, the accused does not deny that he made the statements to the medical practitioners but says that he was referring to the couch and the bath incidents when doing so. -- 28 of 54 -- [2024] SADC 62 27 Accused’s evidence about statements to medical practitioners 158 The accused gave evidence that he said to others, including the medical practitioners, that he was responsible for the injuries to TN. He gave evidence that he said that because of the two incidents (the bath incident in which he administered CPR and the elbowing incident when he was asleep on the couch), he felt responsible for the injuries of the accused. Statements made by the accused to Ms RS 159 Ms RS is the ex-wife of the accused. They were married for 10 years and had gone out for 8 years prior to getting married. They have 3 children together, Ol, Od and So. They separated in October 2019. As the accused was not working at the time they separated, he was primarily responsible for the care of the children. Ms RS had the children for some time on the weekend and sometimes one night during the week. Ms RS gave evidence that the arrangements changed on 26 April 2020. From that date, she had the care of Od. The accused continued to have the primary care of Ol and So. 160 Ms RS gave evidence that the accused had all three children in the week of 5 July 2020 to 12 July 2020 which was the first week of the school holidays. She said that the children were returned to her care on 12 July 2020. They did not ever return to the accused as she received a phone call from the Department of Child Protection on 17 July 2020 advising her not to return the children to his care. 161 Ms RS said that she went to the Hackham West Property on Sunday 19 July 2020 to collect Ol’s school uniform. She said that she discussed what had happened to TN with the accused and HLG. Evidence about 24 July 2020 meeting 162 Ms RS said that the next time she saw the accused was at Port Noarlunga South on 24 July 2020. She said that she was walking with the children and her sister when the accused approached from behind and said “don’t freak out. I’ve just come to say goodbye.” She said that the accused appeared distressed. In cross- examination, she said that he was worried about his mental state. 163 She said that she had a conversation with the accused. She said that he confessed that he hurt TN. She said that the accused said “I’m [TN’s] monster. I would push on him.” She said she responded “Well, what did you do for him to end up in ICU?” She said that he said “I don’t remember. I blacked out”. She said that she then said “Well, if you don’t remember, how do you know that it was you?” She said that he replied, “because I remember other times.” 164 Ms RS then said that she asked a lot of questions. She said “well, what would you do?” She said that he replied, “I would push on him” and he showed me how he would place his hands and push down on TN. She described it as having one hand on top of the other as in a CPR motion and pressing down. He said that he would push down and hold. She said “What do you mean you would push on him. -- 29 of 54 -- [2024] SADC 62 28 Was he facing down, as in were you trying to smother?” He said “no, he was facing up asleep.” In cross-examination, she said that when performing the CPR, he was referring to the old injuries to TN’s ribs and not to his other injuries. 165 She said that she asked him when did he do this? She said he responded that sometimes at night he couldn’t sleep so he would just go in and push on TN. She said that she then asked “he’s in the ICU with a lacerated liver. What did you do to put him in there?” He said “I can’t remember. I blacked it out” or “blacked out.” She said that he said that everyone was sleeping when he did those things to TN. 166 Ms RS said that she told the accused she would go to the police tomorrow. He said “I know. That’s why I told you, because you would do the right thing.” Text messages and Facebook messages from the accused to Ms RS 167 Ms RS gave evidence that she received two messages from the accused on 28 August 2020 (exhibit P6 and exhibit P7). In the first message sent at 1.59 pm on 28 August 2020 (exhibit P6), the accused said, inter alia: Read up on paranoid schizophrenia, then you may better understand. Why I don’t know everything, why it is so destructive, how it goes unnoticed, how it’s [sic] builds up. You saw how happy [HLG] and I were and why it doesn’t make any sense. How it came to be that an innocent beautiful little happy boy got hurt… I hate what happened…It never should have I don’t know why I really don’t and now I do everything I can I figure it out I just think why [TN]I loved him like my own you know. 168 In the second message (exhibit P7), the accused said inter alia: I was misdiagnosed it happens, and unfortunately in the center was [TN]… I saw a monster, it has a voice that I’d heard before them I saw it’s face it’s horrible face… 169 Ms RS gave evidence that she received a further message from the accused on 27 September 2020 by way of Facebook messenger (exhibit P8). That message records, inter alia: I still had something wrong with me that I didn’t understand…Now here I am, with the knowledge I needed years ago. I’m schizophrenic. Now I know what I have to do and how to be. How to maintain myself properly for my family. Little too late an innocent boy got hurt because I didn’t know what I had or what to do. Telephone conversation in April 2021 170 Ms RS gave evidence that she had a telephone conversation with the accused in April 2021. She said that accused told her that he was going to tell her the truth about what happened to TN. He told her that the reason he dropped Od off to her in April 2020 was that he could not handle Od as she could and also he didn’t want Od to get into trouble for hurting TN. He then went into details as to how TN sustained his injuries. She agreed in cross-examination, that the accused was referring to TN’s previous injuries (i.e., not the injuries sustained in July 2020 which caused him to be admitted to hospital). He said that Ol told him that Od -- 30 of 54 -- [2024] SADC 62 29 pushed TN off the table in the backyard and that when TN fell his ribs would hit the table edge. He said that Od would sit on TN on the trampoline and that Od pushed TN off the trampoline to get out of his way. 171 Ms RS also gave evidence about what the accused said to her in this conversation about the bath incident. He said to her that he was alone with TN. He had put TN in the bath and left the bath running and went to do the laundry or dishes. He then remembered that TN was in the bath and returned to the bath where he saw that TN was underwater. He pulled him out of the water, saw that he was blue, and performed CPR. In cross-examination, Ms RS was firm that the accused said to her that he was home alone with TN when the bath incident occurred. Accused’s evidence about statements to Ms RS 172 The accused gave evidence that he approached Ms RS when she was walking in Port Noarlunga with her children and her sister and that they had a conversation about what had happened to TN. He agreed that he confessed to her that he hurt TN. He agreed that he said to her that “I pushed on him”. He did not specifically agree that he said that he was [“TN’s] monster.” He agreed that he didn’t remember and that he blacked out. He said that when he was referring to blacking out, he was referring to sleeping on the couch. He agreed that she said “well if you don’t remember, how do you know it was you” and he said “because I remember other times.” He agreed that he said that he pushed down on TN and showed her how it happened. He said that he was only referring to the bath incident when he performed CPR on TN. He denied that he said to Ms RS that he would go in and push on TN when everyone else was sleeping. 173 The accused said that when he admitted on 24 July 2020 to pushing down on TN he was referring to giving him CPR. 174 The accused admitted having a telephone conversation with Ms RS in April 2021 in which he said that he was going to tell her the truth of what happened to TN. He agreed that he told her about two incidents where Od had pushed TN off the table and another occasion when Od pushed TN off the trampoline. He agreed that both occasions occurred before 26 April 2020 when Od ceased to live with the accused. He agreed that he did not tell the police about the incidents. 175 The accused agreed that he told Ms RS about the bath incident but said that he could not remember the conversation exactly and whether he said that he was home alone with TN at the time. He said that he did not mention the other children being present. 176 The accused said that when TN became ill and was vomiting, HLG took him to hospital. He said that was after the couch incident. He said that TN was not unwell after the bath incident. 177 In cross-examination, the accused was referred to his text message to Ms RS sent on 28 August 2020 (exhibit P6). He agreed that the message said: “how it -- 31 of 54 -- [2024] SADC 62 30 came to be that an innocent beautiful little happy boy got hurt.” The accused agreed in cross-examination that at the time he sent that message on 28 August 2020, he knew how TN got hurt. Statement by the accused to his mother, Ms ML 178 The prosecution called Ms ML, the mother of the accused. 179 Ms ML gave evidence that she had a conversation with the accused after his arrest. She could not recall the date of the conversation. She said that the accused told her that he had the four children in the bath and that the two older boys, Ol and Od, had got out of the bath and then he had had got So out to get her dressed and that when he went back into the bathroom, TN was under the water. He said he was pumping TN’s chest “like crazy” until TN vomited and got some water up. He said that he worked on TN on the bathroom floor. She did not recall whether he used the word “CPR” to describe the actions he performed. 180 In cross-examination, she confirmed that he said that he had the four children in the bath but the older two had got out of the bath to get dressed. 181 The accused said that he “didn’t think so” when asked if he told his mother that he had all four children at the home at the time of the bath incident. He said he could not remember what exactly he told her as it had a been some time since that conversation. Statement by the accused to Ms SB 182 Ms SB is the mother of Ms RS and therefore the ex-mother in law of the accused and grandmother to the children of the accused and Ms RS. 183 Ms SB gave evidence that she had a series of communications with the accused in the period between 21 July 2020 and 1 August 2020 (exhibit P10). 184 On 21 July 2020, the accused advised her by text message (exhibit P10) that TN was in ICU with multiple fractured ribs and a lacerated liver and his pancreas had pulled away from his liver. The accused said that “we don’t know who or how this has happened and the police are investigating everyone [TN] had been with.” 185 On 26 July 2020, the accused sent a message (also part of exhibit P10) which contained the following statements: Firstly you must know that I am not wholly responsible for this horribleness. I know I am a good man and susceptible to otherworldly forces best left alone. A little later in the message, the accused stated: Something got to me. Spiritually. …Barugia. For nearly two years it has been hiding in me I didn’t even know. Later on in the message, the accused said: -- 32 of 54 -- [2024] SADC 62 31 I became this puppet to something more than me and it took my spark and twisted it and fed off of it. As fucked up as it all sounds I know I know. I know now what I got to do and it’s the right thing for me and it will ripple out to everyone else that I’ve not meant to hurt especially [TN] and [HLG] and [Mr AN] and their families. I never meant for any of the pain and hurt. 186 Ms SB gave evidence that she had meet with the accused some time after 1 August 2020, the exact date of which she cannot now recall. She said that she took Ol, Od and So to see the accused. She gave evidence that she had a conversation with the accused and in the presence of the accused’s brother. She gave evidence that the accused said that “it wasn’t me, it was somebody else.” He said that on more than one occasion. He also said that he had mentioned to Ms RS that it was a dream. She said that the accused was agitated during the course of this conversation. 187 The accused gave evidence that he said to Ms SB “even though I did this to him” because in his mind, he had been the cause of the injuries to TN. Statement to Veronica Hristofis 188 Ms Hristofis and her husband carried on an arboriculturist business called ARB Pro Adelaide that included tree works, tree lopping and pruning. She gave evidence that the business hired contractors from time to time. She said that the accused was one of their contractors. She said that the accused first commenced working as a contractor on 20 June 2020 and worked approximately three to four days per week. She said that the accused worked on 20 June, 29 June, 4 July, 14 July, 15 July, 16 July and half a day on 17 July. She said that her husband knew the accused previously as they had worked together for a different company. 189 Ms Hristofis gave evidence that she was advised on 17 July 2020 that the accused was unwell and that she needed to take him to hospital. She said that she collected the accused and took him to his home. She said he was adamant that he did not want to go to the hospital. She said that initially no-one was home but she later called the ambulance and the police who arrived. 190 Following this incident, she said that the accused contacted her seeking more work but she was not going to give him more work until he had a medical clearance. 191 She gave evidence that the accused came to her house. She said that they had a conversation about TN’s injuries. She said that he told her that the boy had been abused and had injuries to his ribs and possibly a punctured liver. She said that he said it was not a one off incident and that it had happened over a period of time. Ms Hristofis said that she asked the question “how can a child be injured without there being any bruising?” She said that he responded “the only way to do that would be to punch through something.” -- 33 of 54 -- [2024] SADC 62 32 192 She then gave evidence that they had a conversation about how the injuries could have occurred. She did not state the date of this conversation. She said the accused said that TN was at a birthday party and there was a trampoline. She said that accused posed the question could it have happened if he had possibly fallen off the trampoline and then he changed his mind and said that the injuries were too severe for it to have been a fall. She said that the only other comment he made was that he did witness his girlfriend rolling over and kicking the little boy early in the morning because she used to get grumpy in the morning but then he said that would not have been significant enough to have given him those injuries. Factual findings about the circumstances of the bruising on TN’s penis in May 2020 193 I make the following findings about the circumstances of the injury to TN’s penis that occurred in May 2020. 194 TN was in the care of HLG in the week of 19 May 2020. It follows that TN would have been returned to the care of HLG on Sunday 17 May 2020. From that time, the only persons with whom TN came into contact were HLG, the accused and his children and persons at Occasional Care which TN attended on the morning of Tuesday 19 May 2020. HLG picked him up from Occasional Care at about 11am. I accept the evidence of HLG on these matters. 195 The accused was not working at this time. 196 On the morning of Tuesday 19 May 2020, there was no bruising on the penis of TN but there was bruising by about lunchtime on that day. That was the direct evidence of HLG, which I accept. It is also consistent with HLG’s actions after discovering the bruising; she rang her mother, KLG, and then took TN, with her mother, to the hospital. KLG confirmed that she went to the hospital with HLG and TN. 197 HLG took TN to Trinity Medical Centre and then to the hospital that day. HLG took the photographs that appear in exhibit P3 that show the bruising to the penis. HLG gave evidence about these matters. She was not challenged about her evidence. I accept her evidence. 198 I also accept her evidence that she did not cause the injury to the penis. I have said that I accept HLG as an honest witness. There was no evidence that suggested that she may have caused the injury. Her acts of ringing her mother about the injury and taking TN to Trinity Medical Centre and then the Women’s and Children’s Hospital are not consistent with the acts of someone who has caused the injuries. 199 The bruising to the penis was very similar, but not identical, to the bruising to the penis that appeared in July 2020. A significant amount of force would have been required to have caused the bruising. Dr Noori gave unchallenged evidence about these matters. I accept his evidence. -- 34 of 54 -- [2024] SADC 62 33 200 I accept the evidence of KLG, GN, SK and Mr AN respectively that they did not cause the injuries to the penis of TN in May 2020. 201 From the evidence as to the timing of the injury and when it became apparent and the arrangements for the care of TN, only HLG, the accused or someone at Occasional Care (and possibly the children of the accused) had the opportunity to have caused the bruising of the penis of TN. The evidence from Dr Noori as to how the injury occurred excludes as a reasonable possibility that the injury occurred by way of accident or was self-inflicted. 202 I have referred to various statements made by the accused to third persons including Dr Spacie, Dr Abbasi, Ms RS and Ms SB. Those statements do not specifically address or refer to the injury to the penis. Although in some instances, the statements made by the accused are broad enough to encapsulate that conduct, I do not consider that they were intended to refer to that injury and I do not take them into account when determining whether the accused committed the objective elements of count 1. Factual findings about the circumstances of the injuries to the pancreas and second rib of TN 203 I make the following findings concerning the circumstances in relation to the injury to the pancreas and second rib sustained by TN. 204 When Dr Noori examined TN on 16 July 2020, an ultrasound and then CT scan had revealed that TN had suffered an injury to the pancreas. The pancreas was split in two. An MRI scan showed the transection of the pancreas and also the presence of a circumscribed pseudocyst. The presence of the pseudocyst led Dr Noori to conclude that the injury to the pancreas was not recent and was at least 3-4 weeks old. Dr Noori said that the fracture of the second rib was a healing injury and was at least 2 weeks of age and could have been longer. 205 The injury to the pancreas caused TN to suffer abdominal pain as well as lethargy. It might appear as though TN was coming down with an illness and was lethargic. TN would have symptoms of abdominal pain and discomfort. 206 The injury to the pancreas was caused by the application of external force through compression such as the forceful pushing of the upper abdomen underneath the rib cage. An excessive amount of force was required to cause the compression of the pancreas against the backbone to cause the injury. The external force could either have been a compressive injury or an application of some external force. 207 Dr Noori gave the above evidence about the pancreas injury, its timing, symptoms and its cause. I accept that evidence. Dr Noori was clearly an expert in his field and was independent. -- 35 of 54 -- [2024] SADC 62 34 208 None of the witnesses who looked after TN on a regular basis, HLG, KLG, GN, SK or Mr AN observed TN being ill in the period from June to July 2020. The only evidence about any unwellness of TN came from GN who said that TN was sick in May 2020 and taken to hospital where a diagnosis was made that he had a virus. That diagnosis and the timing of that illness in May 2020 leads me to find that it had no connection to the injury to the pancreas. 209 The accused gave evidence that an incident occurred in the bath where TN was left unattended in the bath and was under the water and not moving when the accused returned. The accused said that he performed CPR on TN and started doing chest compressions with his hands. He said that TN and So were having a bath and that he had taken So out before TN was left unattended. He said that Ol was on the couch in the lounge room and Od was with his ex-wife, Ms RS. 210 In determining whether or not I reject the evidence of the accused about performing CPR on TN, it is necessary to first examine statements made by the accused to the police, the medical practitioners and some family members about the incident. 211 On 16 July 2020, the accused gave a record of interview to the police. Although the accused made no reference to the CPR incident in that interview, I consider that little weight can be given to his failure to mention that matter. The accused was being questioned about recent injures that had been sustained by TN. In those circumstances, I consider that it was reasonable for him not to have referred to the CPR and the bath incident, even if those incidents occurred. 212 I accept the evidence of Ms RS in relation to her conversation with the accused on 24 July 2020. I accept that on 24 July 2020 the accused said to Ms RS that he was “[TN’s] monster and that he would push on him” and that he showed Ms RS what he would do namely place his hands on top of each other as in a CPR motion and press down. I also find that the accused told her that he would do it when TN was asleep and was facing up. 213 There is no doubt that the accused when he made those statements was not referring to the then recent injuries that TN sustained (his further rib injuries and injuries to his liver) which caused his admission to ICU. That is evident for two reasons. First, the accused said to Ms RS that he was referring to the old injuries and not to the recent injuries. He said in relation to his recent injuries that he couldn’t remember and “blacked out” or “blacked it out”. The accused agreed he said that he blacked out in relation to the recent injuries. Secondly, the accused admitted in evidence that he was referring to the bath incident when he said that he pushed down on TN (but denied that he said that he would push on TN when everyone was sleeping). 214 I further find that the accused said that he was “TN’s monster” and that the use of those words is inconsistent with the pressing of TN’s chest being performed when undertaking CPR to save TN from drowning. Ms RS had a specific memory -- 36 of 54 -- [2024] SADC 62 35 of the accused using those words. It is words that she would likely recall. When she was uncertain as to what was said, she admitted to such uncertainty (e.g., “blacked out” or “blacked it out”). Although the accused did not admit using those words, he did not deny using those words. The use of those words is broadly consistent with the terminology used by the accused in text messages to Ms RS (see below, where he refers to having paranoid schizophrenia and it being so destructive and that is why an innocent boy got hurt). 215 I find also that the accused said to Ms RS that he performed the pressing down while TN was sleeping and everyone else was sleeping. The accused admits a conversation occurred about pressing down, but denies that he said that he was pressing down while TN was sleeping. The accused said that he was referring to performing CPR on TN. I accept Ms RS’ version of the conversation. She has a specific memory of the conversation. It is entirely plausible that she would ask questions as to the detail of what occurred and that she would recall those details. The accused’s evidence about the conversation and that he was referring to the bathing incident: (a) lacks credibility in that he makes no specific reference to the bathing incident; (b) is inconsistent with his use of words that I have found to have been made namely he was “TN’s monster” and is inconsistent with the later text messages; and (c) is inconsistent with the accused accepting responsibility for the later injuries (to the liver and further rib injuries) even though he said that he could not recall them, because he remembered other times. There would be no link between an earlier incident (had it occurred) of performing CPR in an emergency situation to save TN’s life and an acceptance of responsibility for TN’s later injuries. 216 I therefore find that on 24 July 2020 the accused said to Ms RS that he pressed down on TN’S chest when TN was asleep and everyone else was asleep. I find that that in making those statements, the accused was not referring to performing CPR as a result of an emergency situation in the bath. 217 The text message sent by the accused to Ms RS on 28 August 2020 (exhibit P6) is also inconsistent with the injuries being sustained in the bath incident. In the text, the accused is drawing a link, in his mind, between what he describes as his paranoid schizophrenia and its destructiveness, and the injuries sustained by TN. There is no such link if the injures were sustained in the way contended by the accused. 218 The further text message sent by the accused on 28 August 2020 (exhibit P7) also draws the link between his illness and the injuries sustained by TN. It refers to the accused saying he was misdiagnosed and in the centre was TN. There is no misdiagnosis in the bath incident. 219 In the Facebook message sent by the accused to Ms RS on 27 September 2020 (exhibit P8), the accused again drew a link between his schizophrenia and what happened to TN. There is no such link between the bath incident (in the way described by the accused) and the injuries. -- 37 of 54 -- [2024] SADC 62 36 220 In the telephone conversation between the accused and Ms RS in April 2021, the accused referred to the bath incident. Ms RS said that the accused said that the incident occurred whist he was alone with TN and he had put TN in the bath and left it running while he attended to some laundry or the dishes. I accept the evidence of Ms RS that the accused said these words. The accused said that he couldn’t remember the conversation exactly when it was put to him what was said by Ms RS. This version of events is inconsistent with the evidence of the accused that three children were present and that So and TN had been having a bath and that it was when he had taken So out of the bath that the incident occurred with TN. The accused said to his mother, Ms ML, that the bath incident occurred when he had 4 children in the bath and that the 2 older boys had got out and then he had taken So out of the bath to get her dressed and then he went back to get TN and he was under the water. Although the accused said he didn’t think that he said this to Ms ML, I find that he did so. Ms ML had a specific memory of the conversation. 221 The inconsistencies in the accounts given by the accused to Ms RS and Ms ML and with his own account are further evidence that the bath incident did not occur. 222 The accused also sent text messages to Ms SB, the mother of Ms RS and his ex-mother in law. In the first of these messages, sent on 21 July 2020, he refers to TN being in ICU with multiple fractured ribs and a lacerated liver and his pancreas had pulled away from his liver and that they didn’t know how it had happened. I don’t draw any adverse inference against the accused for not mentioning the bath incident in that conversation. However, on 26 July 2020, the accused sent a further text to Ms SB in which he again links his mental condition to what happened. He says that he was “not wholly responsible for this horribleness” and that he was a good man susceptible to otherworldly forces. Again, in my view this text is inconsistent with the act being committed by accident as described in the bath incident. 223 For all of these reasons, I reject the evidence of the accused that an incident occurred in the bath whereby the accused was required to perform CPR on TN. It follows that I also reject the submission of the accused that the injuries to the pancreas of TN were or might have been caused by the accused performing CPR on TN in an emergency situation. Factual findings about the circumstances of the injuries to the liver and nine ribs and further injury to the penis of TN in July 2020 224 I make the following findings concerning the circumstances relating to the injury to the liver, the ribs (other than the upper second rib) and the penis sustained by TN in July 2020. 225 TN was returned to the care of HLG on Sunday 12 July 2020, having been in the care of Mr AN for the previous week. At that time, he was well. That was the evidence of HLG, Mr AN and GN. There was no bruising to the penis at that time. That was the evidence of HLG and GN. -- 38 of 54 -- [2024] SADC 62 37 226 The evidence of Dr Noori, which I accept, that the injuries to the liver occurred within a day or two prior to TN presenting to hospital on 15 July 2020, confirms that TN had not sustained the liver injury at the time that he left the care of Mr AN on Sunday 12 July 2020. 227 On Monday 13 July 2020, Ms Gee visited HLG and TN. The evidence from HLG and Ms Gee, which I accept, was that TN was well when he was with them on that day. That finding is confirmed by the evidence of Dr Noori as to the timing of the injuries. It follows that I accept the evidence of Ms Gee that she did nothing to harm TN. 228 As from the time that Ms Gee left at about dinner time on Monday 13 July 2020, the only persons who had contact with TN before he was taken to hospital on 15 July 2020, were HLG and the accused. 229 The accused brought TN to HLG’s bed in the middle of Monday night/Tuesday morning. That was the evidence of HLG and the accused. TN was upset, unsettled and crying. 230 TN was unwell on Tuesday 14 July 2020. He did not go to Occasional Care on that day. When HLG changed his nappy on that day, she observed that there was bruising on the tip of his penis. She said that TN was unwell and lethargic and did not want to eat. HLG rang her mother who told her to call a doctor. HLG could not get a medical appointment with the doctor until the following day. 231 On Wednesday 15 July 2020, HLG took TN to the doctors and was then referred to the Women’s and Children’s Hospital. She then became aware of the injuries to his liver, pancreas and ribs as well as the bruising on the penis. 232 Scans and other investigations carried out on TN showed the transection of the pancreas, the healing fracture of the second rib, the nine further rib fractures, five fractures on the right side and four on the left side, and the laceration at the junction of the right and left lobe of the liver. 233 Dr Noori gave evidence that the laceration of the liver would have caused abdominal pain, abdominal discomfort, lethargy, loss of appetite and not wanting to drink, feeling unwell and possibly a fever and vomiting episodes. TN was exhibiting symptoms of the laceration of liver certainly by Tuesday 14 July 2020 and to some extent when he was brought to the bed of HLG in the night of Monday 13/early morning of Tuesday 14 July 2020. Dr Noori further stated that the liver injury occurred just prior to TN becoming symptomatic clinically and within a day or two of him being admitted to hospital (on 15 July 2020). I accept the evidence of Dr Noori on all of these matters. 234 It follows from that evidence (and the evidence from Ms Gee) that the laceration of the liver of TN occurred some time on the evening of Monday 13 July 2020 (or the very early hours of Tuesday 14 July) before TN was brought to HLG’s bed. -- 39 of 54 -- [2024] SADC 62 38 235 The liver injury was caused, according to Dr Noori, by crushing force in the lower rib cage and right upper abdomen. Compressive forces, by pushing or squeezing, could have caused the laceration of the liver. I accept that evidence. 236 The only persons who had the opportunity to cause the liver injury to TN were HLG or the accused. 237 The accused said that an incident occurred in the middle of the night on Monday 13 July 2020 when he was woken by TN who had climbed on top of him and accidentally knocked TN off with his arm. He said his elbow connected with TN. 238 I reject this evidence of the accused about this incident. I find that no such incident occurred and that it was not the cause of the injuries to TN’s liver. 239 I have come to this conclusion for the following reasons. 240 First, the accused did not tell Dr Noori of the incident when he was interviewed by him on 16 July 2020. The interview was recorded (exhibit P20) so there is no dispute as to the content of that interview. The interview was for the purpose of ascertaining what might have caused the injuries to TN. It would be expected that if the injuries had occurred in the innocent way described by the accused that he would have told Dr Noori how the injuries were or might have been sustained. 241 Secondly, in his record of interview with the police which occurred on 16 July 2020 (Exhibit P11), the accused said that he woke up and TN was in front of him and he tried to take him back to bed but he didn’t want to go so he brought him to HLG. Again, that interview was recorded so there is no dispute about its contents. That is inconsistent with his evidence at trial where he said that he was facing the back of the couch and TN climbed up on him (which was when he said that he knocked TN). 242 Thirdly, the accused sent a text message to HLG on 17 July 2020 (exhibit P4) which is inconsistent with the innocent explanation given by the accused. The text message said that he cared for TN even though he did this to him. He said that he was a good man that was corrupted by something otherworldly. That text message is inconsistent with the evidence of the accused that he caused the injuries accidentally. The accused said that when he said that he did this to TN, he was referring to his broken ribs and that at that time he knew of the liver injuries but could not recall whether he knew of the pancreas injuries. That evidence is important because it establishes that he was referring to the recent injuries that had been discovered (which were the ribs and the liver, even though the ribs could not later be precisely dated). The mental struggles of the accused had, and could have had, no link to the innocent explanation posed by the accused. By committing the innocent acts, the accused had not been corrupted by something unworldly (as he says in the text). There was no need to explain his mental struggles as being the cause of the innocent acts that he says caused or may have caused the injuries to -- 40 of 54 -- [2024] SADC 62 39 TN. It is only if the injuries were not caused innocently, that a need arises to provide a mental health explanation as to why it wasn’t him who caused the injuries. 243 Fourthly, the accused said to Dr Abbasi when he presented to the emergency department of Noarlunga Hospital on 25 July 2020 that he pushed away his partner’s son which caused him to be admitted at ICU due to rib fracture and hemorrhage. I attach little weight to this evidence in the context of deciding whether or not the accused’s innocent explanation should be accepted given that it is equally consistent with the accused’s explanation. However, it becomes relevant if I reject the accused’s innocent explanation. 244 Fifthly, the accused said to Dr Spacie that there was an incident a few weeks ago where he pushed the child of his partner. I have found that the accused said those words to Dr Spacie. He told her that he was afraid that he would do the same thing again. If the injuries to TN occurred by way of the accident described by the accused, there is no reason why he would feel afraid that he would do the same thing again. I also do not consider the description of pushing the child is consistent with the accident described by the accused. 245 Sixthly, the accused said to Ms RS on 24 July 2020 when asked by her what did you do to TN for him to be in ICU with a lacerated liver, that he could not remember and that he “blacked out” or “blacked it out.” The accused agreed that he said he didn’t remember and that he blacked out and said that he was referring to sleeping on the couch. I do not accept that evidence. The accused was clearly saying to Ms RS that he could not recall what caused the recent injuries to TN (including the injury to the liver). Sleeping on the couch is a very different thing to blacking out. Further, the accused was admitting to a link or possible link between his earlier conduct which he described (the pressing down of the chest) and the later conduct which caused the liver injuries. There could be no such link if the later conduct was innocent. 246 Seventhly, the accused said to Ms SB on 21 July 2020 that TN was in ICU with multiple fractured ribs and a lacerated liver and his pancreas pulled away from his liver and that he didn’t know what had happened. I do not place much weight on that statement. If there was an accident as the accused claimed, it was still unclear at that time, in the accused’s mind, that the accident was the cause of the injuries. However, on 26 July 2020, the accused sent the message (exhibit P10) that he was “not wholly responsible for this horribleness” and that he was “a good man and susceptible to otherworldly forces best left alone.” The message further said that he became a “puppet to something more than me” and this had been going on for nearly two years. In this message, the accused is accepting that he committed the act but that he was not wholly responsible because of his mental state. That is inconsistent with an accidental striking of TN as the cause of his injuries. I do not accept the evidence of the accused that the reason he said to Ms SB “even though I did this to him” was because in his mind, he had been the cause of the injuries to -- 41 of 54 -- [2024] SADC 62 40 TN. That is not consistent with the balance of the text message to which I have referred. 247 Eighthly, the accused had a conversation with Ms Hristofis where they talked about TN’s injuries to the ribs and liver and discussed how the injuries may have occurred. I accept Ms Hristofis’ account of that conversation. She had a specific memory of that conversation. The accused did not deny having the conversation or give evidence of having some different conversation. The accused said that he was not putting forward a factual scenario to Ms Hristofis but was just speculating as to what may have been the causes. The accused referred to the possibility of TN injuring himself at a birthday party but then discounted that possibility. He then referred to the possibility that HLG may have accidentally rolled over and hurt TN in bed. The accused did not make any reference to the possibility that he may have accidentally hurt TN in the way described. Had that event occurred, it would be expected that he would have told Ms Hristofis of the event as a possible cause. 248 Ninthly, the evidence of Dr Noori as to how the injuries occurred, in particular to the liver and the crushing force required to inflict the blow in the area of the lower rib cage and the right upper abdomen, is inconsistent with the blow which the accused alleged he accidentally inflicted on TN. 249 For all of these reasons, I reject the evidence of the accused that an incident occurred on Monday 13 July 2020 when he accidentally elbowed TN when TN came to him in the night when the accused was asleep on the couch. I reject that as a reasonable possibility. Findings on Count 1-aggravated assault-bruising to the penis-May 2020 250 The prosecution has relied on improbability reasoning as a piece of circumstantial evidence to establish that the accused committed the objective elements of count 1. That improbability requires the Court to consider the circumstances in which count 4 was committed. I therefore will consider count 1 after I have considered count 4. I reject the submission of counsel for the accused that I should consider count 1 first. I do so because to do so would not be considering all of the evidence relevant to count 1. Findings on Count 2-aggravated causing harm with intent to cause harm- injury to pancreas 251 To establish the objective elements of this offence, the prosecution must establish beyond reasonable doubt that: (1) the accused performed an act; (2) the act was deliberate and not accidental; (3) TN suffered a harm, which could be physical or mental, temporary or permanent; (4) it was the act of the accused which caused the harm; (5) the act was unlawful; and (6) TN was under the age of 12years at the time. 252 The evidence establishes beyond reasonable doubt that TN suffered harm. The harm he suffered was a complete transection of the pancreas at the junction of -- 42 of 54 -- [2024] SADC 62 41 the body and the tail. The injury will never heal. That was the unchallenged evidence of Dr Noori which I accept. 253 If the accused committed the act of pushing down on the chest of TN, I am satisfied beyond reasonable doubt that this act caused the harm to the pancreas. Dr Noori said, which I accept, that the forceful pushing of the upper abdomen underneath the rib cage would have resulted in the pancreas injury. He said that an excessive amount of force was required and could have been by a compressive injury or some external force. 254 I am also satisfied beyond reasonable doubt that TN was under the age of 12 years at the time that he sustained the injury. 255 I am also satisfied beyond reasonable doubt that the act, as relied upon by the prosecution (i.e., an act that was performed by pressing down on TN and not performed by the accused in the course of performing CPR), was unlawful and voluntary. 256 The real and only issue in dispute in relation to count 2 and determining whether the objective elements have been satisfied, is whether I am satisfied beyond reasonable doubt that the accused committed the act of pushing down on TN so as to cause the injury to the pancreas. 257 Dr Noori said that the injury to the pancreas occurred at least three to four weeks, and possibly more, prior to his examination of TN on 15-16 July 2020. None of the lay witnesses could recall any time that TN exhibited symptoms associated with the injury to the pancreas so there is no circumstantial evidence surrounding the timing of the injury. 258 The evidence that the accused caused the injury therefore depends on two matters: first, the admissions made by the accused and secondly, the exclusion as a reasonable possibility that the accused caused the injury when performing CPR on TN in the bath. I have already made findings in which I reject the accused’s evidence on that latter issue and exclude as a reasonable possibility that TN sustained his injuries in that way. However, my exclusion of this possibility does not mean that I accept that the accused committed the act. The prosecution must prove beyond reasonable doubt, by other evidence, that he did the act. 259 The admissions made by the accused in relation to the pancreas injury are as follows: (1) The statement made by the accused to Ms RS on 24 July 2020 that he was “TN’s monster and that he would push on him” and that he showed Ms RS what he would do namely place his hands on top of each other as in a CPR motion and press down and that he would do it when TN was facing up asleep. I have already found that when he made those statements, he was referring to the pancreas injury and not the then more recent injury to the liver and ribs (other than the second rib injury); -- 43 of 54 -- [2024] SADC 62 42 (2) The text messages sent by the accused to Ms RS on 28 August 2020 (exhibits P6 and P7) draw a link between the injuries suffered by TN and the mental illness of the accused. It is implicit in making that link that the accused is admitting that he performed some act that caused the injuries; (3) The Facebook message sent by the accused to Ms RS on 27 September 2020 (exhibit P8), where the accused again drew a link between his schizophrenia and what happened to TN. It is implicit in making that link that the accused is admitting that he performed some act that caused the injuries; and (4) The text message sent by the accused to Ms SB, the mother of Ms RS and his ex-mother-in-law on 26 July 2020, where the accused again linked his mental condition to what happened. He says that he “was not wholly responsible for this horribleness” and that he was a good man susceptible to otherworldly forces. 260 The conduct that the accused admitted saying to Ms RS is consistent with the evidence of Dr Noori as to how the injury to the pancreas occurred. I have already excluded the alleged bath incident as something to which the accused was referring when making that statement. It is inherently improbable that any other incident occurred that caused the injury to the pancreas. 261 In my view, it is clear that the accused was admitting to Ms RS that he was pressing down on TN when he was asleep. 262 Based on the admissions made by the accused to Ms RS and to Ms SB and the evidence of Dr Noori as to how the injuries to the pancreas occurred, I am satisfied beyond reasonable doubt that the accused performed an act, namely pressing down on TN’s abdomen whilst TN was asleep that caused the injury pancreas. Findings on Count 3-aggravated causing harm with intent to cause harm- injury to liver 263 To establish the objective elements of this offence, the prosecution must establish beyond reasonable doubt that: (1) the accused performed an act; (2) it was the deliberate act of the accused (as distinct from some accidental act); (3) TN suffered a harm, which could be physical or mental, temporary or permanent; (4) it was the act of the accused which caused the harm; (5) the act was unlawful; and (6) TN was under the age of 12 years at the time. 264 The evidence establishes beyond reasonable doubt that TN suffered harm. The harm he suffered was a laceration of the liver. That was the unchallenged evidence of Dr Noori which I accept. -- 44 of 54 -- [2024] SADC 62 43 265 If the accused committed the act of pushing down on the chest of TN, I am satisfied beyond reasonable doubt that this act caused the harm to the liver of TN. Dr Noori said, which I accept, that the laceration of the liver is caused from crushing force in the area of the lower rib cage and the right upper abdomen. Compression forces in that area or pushing or squeezing could result in the laceration of the liver. 266 I am also satisfied beyond reasonable doubt that the act, as relied upon by the prosecution, if it were performed in that way, was unlawful and voluntary. I am also satisfied beyond reasonable that TN was under the age of 12 years at the time that he sustained the injury. 267 For the reasons which I have already expressed, I reject the evidence of the accused that the injury to the liver occurred by the accused accidentally knocking TN when he was asleep on the couch. I exclude that as a reasonable possibility. If the accused committed the act as alleged, then I am satisfied beyond reasonable doubt that it was a deliberate and not accidental act. 268 The real and only issue in dispute in relation to count 3 and determining whether the objective elements have been satisfied, is whether I am satisfied beyond reasonable doubt that the accused committed the act that caused the injury to the liver of TN. 269 The evidence of Dr Noori was that the liver injury occurred just prior to him becoming symptomatic clinically and within a day or two prior to TN presenting to hospital. I have accepted that evidence. 270 The evidence from HLG was that TN was his normal self on Monday 13 July 2020 when Ms Gee came to the house. Ms Gee confirmed that evidence. HLG first observed TN as being unwell on Monday night when the accused brough him to her bed. He remained unwell. It would follow from the evidence of Dr Noori that the injury to the liver occurred on the Monday night. 271 The evidence of HLG, which I accept, is that the only persons at the house with TN at that time were herself and the accused. Ms Gee had left at dinner time. I accept the evidence of HLG that she did not do any act that caused the injury to TN’s liver and exclude as a reasonable possibility that she was the cause of the liver injury. Insofar as might be relevant, I accept the evidence of Ms Gee that she did not do any act that caused the injury to TN’s liver and exclude as a reasonable possibility that she was the cause of the liver injury. 272 There was no evidence that HLG or Ms Gee was the cause of the injuries and there was no evidence that caused me to doubt their denials. 273 The timing of the injury to the liver of TN is a powerful piece of circumstantial evidence that the accused was the cause of the injury to TN. -- 45 of 54 -- [2024] SADC 62 44 274 The accused has also made admissions that he caused the injuries to TN that resulted in TN being hospitalised. I have already found that these messages demonstrate that there is no reasonable possibility that the injuries were caused by accident. 275 I refer to the following statements made by the accused as admissions that he committed acts that caused the liver injury to TN: (1) The text message sent to HLG on 17 July 2020 (exhibit P4) which states that he cared for TN even though he did this to him. The text went on to say that he was a good man that was corrupted by something otherworldly. The accused said in evidence that when he said that he did this to TN, he was referring to his broken ribs and that at that time he knew of the liver injury but could not recall whether he knew of the pancreas injury. The text message, and that evidence, makes it clear that the accused was referring to the recent injuries suffered by TN at that time (the liver and ribs). The accused was not in a position to differentiate between what caused the rib injuries and the liver injury. Dr Noori said that same act may have caused both injuries. The text and evidence of the accused is evidence that the accused admitted doing the act which caused the liver injury to TN; (2) The accused’s statements to Dr Abbasi when he presented to the emergency department of Noarlunga Hospital on 25 July 2020 was that he pushed away his partner’s son which caused him to be admitted at ICU due to rib fracture and hemorrhage. Given that I have rejected the innocent explanation, the statement by the accused is a clear admission that he did an act that caused TN to be admitted to ICU; (3) The statements made by the accused to Dr Spacie on 26 July 2020 that there was incident a few weeks ago where he pushed the child of his partner. That is an admission by the accused that the accused did that act; (4) The statements of the accused to Ms RS on 24 July 2020 that, when asked by her what did you do to TN for him to be in ICU with a lacerated liver, he said that he could not remember and that he “blacked out” or “blacked it out.” That statement, while not admitting committing the act, is not consistent with the positive denials in his evidence to the Court; and (5) The statements made by the accused to Ms SB on 21 July 2020 and 26 July 2020. The accused said to Ms SB on 21 July 2020 that TN was in ICU with multiple fractured ribs and a lacerated liver and his pancreas had pulled away from his liver and that he didn’t know what had happened. On 26 July 2020, the accused sent the message that he was not wholly responsible for this “horribleness” and that he was “a good -- 46 of 54 -- [2024] SADC 62 45 man and susceptible to otherworldly forces best left alone.” The message further said that he became a puppet to something within him and this had been going on for nearly two years. In this message, the accused is accepting that he committed the act but that he was not wholly responsible because of his mental state. 276 By reason of: (1) the evidence of Dr Noori as to the cause of the injury to the liver and its timing; (2) the exclusion as a reasonable possibility that the injury was caused by accident; (3) my acceptance of the evidence of HLG that she did not cause the injury; (4) my acceptance of the evidence of Ms Gee that she did not cause the injury; (5) the circumstantial evidence that the accused was the only other person present at the house when the injuries were caused; and (6) the admissions made by the accused that I have described above: I am satisfied beyond reasonable doubt that the accused committed the objective elements of count 3. 277 For the sake of completeness, I do not place any weight on any failure of the accused to comply with the rule in Browne v Dunn2 in relation to failing to put to Dr Noori that the injury to the liver and the ribs could have been caused by the accidental elbow as described by the accused. As the High Court made clear in MWJ v R,3 the Court should exercise a degree of caution when determining the consequences of a failure to comply with the obligations in Browne v Dunn. In the circumstances of this case, I am satisfied that the accused sufficiently put to Dr Noori the possible causes of the injury to the ribs and liver. Findings on Count 4-aggravated assault-bruising to penis-July 2020 278 To establish the objective elements of this offence, the prosecution must establish beyond reasonable doubt that: (1) the accused performed an act; (2) the act involved the application of force; (3) the act was deliberate and not accidental; (4) it was the application of force by the accused which caused harm to TN; (6) the act was unlawful; and (7) TN was under the age of 12 years at the time. 279 The evidence establishes beyond reasonable doubt that TN suffered harm. The harm he suffered was the bruising of his penis. That is established by the 2 (1893) 6 R (HL) 67. 3 (2005) 80 ALJR 329. [2005] HCA 74. -- 47 of 54 -- [2024] SADC 62 46 evidence of HLG and Dr Noori. The bruising constitutes physical harm of a temporary nature. 280 If the accused committed the act of squeezing the penis, I am satisfied beyond reasonable doubt that this involved the application of force to TN and caused the harm to the penis of TN. Dr Noori said that a significant amount of force would have been required to have caused that injury. That evidence was not challenged. If I am satisfied that the accused did the act of squeezing the penis, I am satisfied beyond reasonable doubt that this application of force caused the injury. In coming to this conclusion, I have accepted the evidence of Dr Noori about the force required to have caused the injury and the evidence of HLG about the timing of the injury. 281 I am satisfied that if the act occurred by the squeezing of the penis of TN, then that act was deliberate and involved the application of force and was unlawful. I am also satisfied that TN was under the age of 12 years at the time that he sustained the injury. 282 The real and only issue in dispute in relation to count 4 and determining whether the objective elements have been satisfied, is whether I am satisfied beyond reasonable doubt that the accused committed the act of squeezing the penis of TN in July 2020. 283 The case of the prosecution on count 4 is entirely circumstantial. 284 HLG gave evidence that she first observed the bruising of the penis on 14 July 2020. She took him to the hospital on 15 July 2020. Apart from Ms Gee who saw TN on Monday 13 July 2020, the only persons who saw TN or had any interaction with him from the time that he was returned to HLG’ care on Sunday 12 July 2020 were the accused and HLG. The accused’s other children were with Ms RS from 12 July 2020. 285 In the case of Ms Gee, I accept her denials that she did not cause the injury to the penis of TN. There was no suggestion or submission that she caused the injuries. The evidence from HLG was that the bruising was not evident when Ms Gee was present at the house. I exclude as a reasonable possibility that Ms Gee did any act that caused the injury to the penis. 286 I also exclude as a reasonable possibility that HLG caused the injury. There was no evidence that caused me to doubt her denials. I have accepted her denials. 287 The accused did not make any statements in which he admitted causing the injury to the penis of TN in July 2020. Although that injury occurred at the same time as the liver injury, the statements made by the accused, to which I have referred, addressed the liver injury and not the injury to the penis. I therefore do not take those admissions into account when considering count 4. -- 48 of 54 -- [2024] SADC 62 47 288 I do not accept the denials of the accused in his evidence that he did not cause the injuries to the penis. I do not regard the accused as a credible witness. I have found that he told deliberate lies in relation to the alleged bath incident and the couch incident. Those lies do not relate to the offending comprised in count 4. However, they do cause me to doubt the credibility of the accused. I remind myself that persons may lie for different reasons and that a lie about one matter does not mean that the person lied in all respects. I also use the lies made by the accused only for the purpose of assessing the credit of the evidence of the accused and for the purpose of rejecting his denials. The prosecution must still prove that the accused committed the objective elements of the offence. 289 Based on: (1) the evidence of Dr Noori about the cause and timing of the injury; (2) the evidence as to the persons who had the opportunity to commit the act; (3) my finding that I exclude as a reasonable possibility that that HLG or Ms Gee committed the act; (4) the evidence of Dr Noori that the blood tests ruled out any bleeding disorders to predispose TN to bruising with lesser amount of force; and (5) my finding as to the lack of credibility of the accused and therefore my rejection of his denials: I am satisfied beyond reasonable doubt that the only rational explanation for the injuries of TN to the penis was that the accused committed the act that caused those injuries. 290 I am satisfied beyond reasonable doubt that the accused squeezed TN’s penis in July 2020 and by that act caused harm to TN, namely the bruising of TN’s penis. In these circumstances, I am satisfied beyond reasonable doubt that the prosecution has proven that the accused committed the objective elements of count 4. Findings on Count 1-aggravated assault-bruising to the penis-May 2020 291 To establish the objective elements of this offence, the prosecution must establish beyond reasonable doubt that: (1) the accused performed an act; (2) the act involved the application of force; (3) the act was deliberate and not accidental; (4) it was the application of force by the accused which caused harm to TN; (5) the act was unlawful; and (6) TN was under the age of 12 years at the time. 292 The evidence establishes beyond reasonable doubt that TN suffered harm. The harm he suffered was the bruising of his penis. HLG gave evidence about this bruising. The photographs (exhibit P3) show the extent of that bruising. The bruising constitutes physical harm of a temporary nature. -- 49 of 54 -- [2024] SADC 62 48 293 If the accused committed the act of squeezing the penis, I am satisfied beyond reasonable doubt that this act caused the harm to the penis of TN. Dr Noori, although he did not examine the penis injury in May 2020, examined the injury to the penis in July 2020 and saw photographs of the May injury. Dr Noori said that a significant amount of force would have been required to have caused that injury. That evidence was not challenged. If I am satisfied that the accused did the act of squeezing the penis, I am satisfied beyond reasonable doubt that the act caused the injury. In coming to this conclusion, I have accepted the evidence of Dr Noori about the force required to have caused the injury and the evidence of HLG about the timing of the injury. 294 I am satisfied that if the act occurred by the squeezing of the penis, it was deliberate and involved the application of force. I am also satisfied that TN was under the age of 12 years at the time that he sustained the injury and the accused knew of that fact. 295 The real and only issue in dispute in relation to count 1 and determining whether the objective elements have been satisfied, is whether I am satisfied beyond reasonable doubt that the accused committed the act of squeezing the penis of TN in May 2020. 296 There are four pieces of circumstantial evidence relied upon by the prosecution: (1) the timing of the injury and the limited number of persons who had the opportunity to have inflicted that injury; (2) the inherent unlikelihood that TN suffered the injury at Occasional Care or that the injury was caused by Ol; (3) the opportunity that the accused had to cause the injury; and (4) the improbability that the injury was caused at Occasional Care on the morning of Tuesday 19 May 2020 or by Ol given that TN suffered the same injury in July 2020 when he did not attend Occasional Care and when Ol was not present. 297 As to the first matter, I accept the evidence of HLG that the bruising was not visible in the morning of 19 May 2020 and that she first observed the bruising at about lunchtime on 19 May 2020. For the reasons which I have already expressed, I accept HLG’s evidence that she did not cause the injuries and exclude as a reasonable possibility that she did so. In those circumstances, the question becomes whether I can exclude as a reasonable possibility that someone other than the accused committed the act when the only other persons who could have committed the act was someone at Occasional Care which TN attended on the morning of the Tuesday 19 May 2020 or possibly Ol. At that time, Od was in the care of Ms RS, she having assumed responsibility for his care on 26 April 2020. 298 As to the second matter, I consider that it is inherently unlikely that TN sustained the injury to the penis at Occasional Care. Occasional Care is a public space with little privacy that would afford the opportunity to perform any act which would cause the injury to the penis. HLG first became aware of the injury to the penis of TN after she had returned home from Occasional Care. It is inherently unlikely that the injury to the penis could have occurred at Occasional Care in -- 50 of 54 -- [2024] SADC 62 49 secret such that HLG was not made aware of the occurrence when she picked up TN from day care. A forceful squeezing of the penis at Occasional Care so as to have caused the injury would have caused significant distress to TN. I also consider it inherently unlikely that TN sustained the injury from Ol. The bruising required, according to Dr Noori, a forceful pinching or gripping of the penis. It is inherently unlikely that a 6 year old boy would be able to exercise that degree of force. It follows that is inherently unlikely that Od, then a 4 year old boy (even if he had been present), or So a 2 year old girl, would be able to exercise that degree of force. 299 As to the third matter, the accused had the opportunity to cause the injury as he was not working and TN was at the Hackham West Property with HLG and the accused from Sunday 17 May 2020. 300 As to the fourth matter, the prosecution submitted that Occasional Care or Ol (or any other of the accused’s children) could be excluded as a reasonable possibility because of the improbability that TN would suffer a similar injury to the penis in July 2020, when the evidence established that he did not attend Occasional Care and that Ol and the other children were not present at the Hackham West Property in the week commencing 12 July 2020 and further that TN had also been in the care of Mr AN in the prior week from 5 July 2020 to 12 July 2020. 301 The evidence from Dr Noori was the bruising at the tip of the penis sustained in May 2020 “was very similar to what he had in July.” I make the following findings as to the similarities between the injuries to the penis in May 2020 and July 2020: (1) TN sustained bruising to his penis which were very similar on both occasions; (2) On both occasions, the bruising occurred to the tip of the penis. There was a slight difference in the particular areas where the penis was bruised (the May bruising was more prominent on the left side of the top of the penis while the July bruising was larger and more prominent on the right side of the penis). There were additional injuries in terms of bruising of the left groin and upper thighs in May but not July; (3) A forceful pinching or gripping of the tip of the penis was required on both occasions to have inflicted those injuries. A significant amount of force was required to cause bleeding under the skin resulting in bruising in that location; (4) The degree of force required was inconsistent with the injury being self- inflicted; and (5) The two sets of injuries occurred within an eight week period. -- 51 of 54 -- [2024] SADC 62 50 302 In determining the similarity of the injuries such that improbability reasoning is engaged, I have applied the approach set out in R v C, CA4 (recognizing that dealt with a different circumstance of improbability reasoning namely the improbability of multiple complainants making similar complaints). In that case, Kourakis CJ held: The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub- conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. 303 In my view, there were substantial similarities in the injuries to the penis sustained by TN in May 2020 and July 2020. Therefore, the evidence of offending in relation to the fourth count is admissible in relation to the first count because that evidence demonstrates the improbability that TN would have suffered the substantial similarities in the injuries to the penis other than by a common cause.5 304 There was a similarity and underlying unity in the injuries. A pattern was demonstrated. This is not because of any propensity which the evidence demonstrated but because of the improbability that TN would sustain the similar injuries to the penis other than by a common cause.6 The similarity of each injury raised the improbability that the first injury in May 2020 occurred at Occasional Care which TN did not attend in July 2020. The similarity of each injury also raised the improbability that the first injury in May 2020 occurred by any act of the children of the accused who had not been with TN since 5 July 2020 as TN was in the care of Mr AN in the week from 5 July 2020 to 12 July 2020 and the children of the accused were with Ms RS from 12 July 2020. Therefore, those children could not have caused the bruising of the penis in July 2020. 305 In one sense, the conduct relating to the circumstances in which count 4 occurred (i.e., whether TN went to Occasional Care or whether Ol was present), would not constitute discreditable conduct for the purpose of s 34P of the Evidence Act. However, the evidence is used to identify the accused as the person who committed the act that is the subject of count 1. The exclusion of Occasional Care and any other cause identifies the accused as the offender. In these circumstances, the admissibility of the evidence in count 1 must be considered under the rubric of s 34P. 306 The evidence that the accused committed the fourth count is admissible in relation to the first count under s 34P(2)(a) of the Evidence Act. The evidence that the accused committed the fourth count is not admitted for the purpose of 4 R v C, CA [2013] SASCFC 137, [65]. 5 R v C, CA [2013] SASCFC 137, [57]; Slape v The Queen [2022] SASCA 91, [53]. 6 Plazeriano v Police [2017] SASC 106, [14]. -- 52 of 54 -- [2024] SADC 62 51 suggesting that the accused is more likely to have committed the first count because he also committed the fourth count. That is an impermissible use. It is improper for me to reason that because I have found that the accused committed the fourth count that he committed the first count. It is not admitted for any propensity purpose. 307 However, the evidence relating to the fourth count is admissible in relation to the first count because its probative value outweighs any prejudicial effect it may have on the accused. As Kourakis CJ held in R v C, CA, 7 the probative value (and in fact the strong probative value) of this evidence lies in the improbability that the substantially similar injuries would have occurred from other than common cause. The similarity of account excludes the hypothesis that the two injuries were committed by separate people. 308 The prejudice that might arise if the evidence of count 4 is admitted in relation to count 1 arises because the similarity of account might cause a predisposition to convict the accused in relation to count 1, an antipathy to the accused and a distraction from the proper examination of the evidence in relation to count 1, given the improbability of those injuries not being from the same cause. 309 In this case, the probative value of the evidence outweighs any prejudicial value. In the circumstances of this case, the prejudice that might arise is hypothetical as I have not used the evidence of count 4 other than for the improbability reasoning and not for giving rise to any antipathy to the accused or for any propensity or predisposition on the part of the accuse to have committed the act. I have taken into account only the evidence in relation to count 1 (which includes the improbability reasoning). 310 I direct myself under s 34R(1) of the Evidence Act that, in considering count 1, I can use the circumstances surrounding the commission of count 4 and the implicit identification of the accused as the person having committed the objective elements of count 4 only for the purpose that it is improbable that the TN would have sustained the similar injury to the penis that is the subject of count 1 other than by a common cause and therefore it was improbable that he would have sustained it at Occasional Care or by some act of Ol. I do not use it for any other purpose. As I consider in relation to count 1, that the improbability reasoning is essential to the finding of guilt, I cannot, pursuant to 34R(2) of the Evidence Act, use the evidence in relation to count 4 (and the improbability reasoning that I have outlined) unless the circumstances surrounding the commission of count 4 and the implicit identification of the accused as the person having committed the objective elements of count 4 are established beyond reasonable doubt. I am so satisfied for the reasons that I have set out in the part of these reasons that deal with count 4. 311 Although the accused made statements to various persons, as I have described, about harming TN in the past, these statements did not specifically refer 7 R v C, CA [2013] SASCFC 137, [60] -- 53 of 54 -- [2024] SADC 62 52 to the injuries to TN’s penis. Some of the statements made by the accused referred to pushing on TN and others were made in the context of discussion about the rib and liver injuries sustained by TN in July 2020. For those reasons, I do not place any weight on those statements for the purpose of finding whether or not the objective elements of count 1 have been established. 312 I am satisfied beyond reasonable doubt that the accused squeezed TN’s penis in May 2020 and by that act caused harm to TN, namely the bruising of TN’s penis. I reject as reasonable possibility the denials of the accused. I have reached this finding based on the following matters: (1) The fact that TN was in the care of HLG during the week that the injury occurred in May 2020; (2) HLG first noticed the bruising of the penis at lunchtime on the Tuesday of that week (19 May 2020); (3) Other than the accused, HLG, Ol and So and those persons who interacted with TN at Occasional Care, no-one else interacted with TN on the Tuesday before the bruising became apparent; (4) The similarity in the bruising suffered by TN in May 2020 and July 2020; (5) The inherent unlikelihood that TN suffered the injury to the penis in May 2020 at Occasional Care or at the hands of Ol; and (6) The fact that it was improbable that TN suffered the bruising to the penis in May 2020 and July 2020, other than by a common cause. 313 Therefore, as TN did not attend Occasional Care in July 2020 and the accused’s other children were not present in the week of 12 July 2020, the possibility that TN suffered the injury in May 2020 at Occasional Care or by the accused’s other children can be excluded as a reasonable possibility. In these circumstances, I am satisfied beyond reasonable doubt that the prosecution has proven that the accused committed the objective elements of count 1. Conclusion 314 For the reasons that I have expressed, I find beyond reasonable doubt that the accused committed the objective elements of each of the offences contained in counts 1-4 of the Information. I record a finding that the objective elements of counts 1-4 (inclusive) has been established. -- 54 of 54 --