IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2019 0258

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v  		
		
TANIA MAREE WALKER	Accused	

S ECR 2019 0259

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v  		
		
DANIEL JOHN SIMMONS	Accused	

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JUDGE:	COGHLAN JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4, 5 & 6 May 2020	
DATE OF JUDGMENT:	19 August 2020	
CASE MAY BE CITED AS:	DPP v Walker & Anor (Ruling No 1)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 518	

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CRIMINAL LAW – Evidence – Accused charge with child homicide – Accused compelled to give evidence at a coronial inquiry – Accused granted certificates under s 57(7) of the Coroners Act 2008 – Expert provided with Coroner’s findings including references to the accused’s evidence - Whether expert evidence should be excluded because of certificates – Whether expert evidence was improperly obtained pursuant to s 138 (3) of the Evidence Act 2008 – Evidence excluded because of breach of s 57 of the Coroners Act 2008 and also excluded pursuant to s 138 of the Evidence Act 2008.
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr J Lewis	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused Walker:	Mr S Bayles with 
Mr M Habib	Kate Freshwater	
			
For the Accused Simmons	Mr C Carr	Doogue + George Pty Ltd	

HIS HONOUR:
1	In the early hours of 19 July 2008 Angela Jade Bannister, who was aged 23 months, died as a result of injuries she had received.  In the hours leading up to her death she had been in the care of her mother, the accused Tania Maree Walker (‘Walker’), and her partner, the accused Daniel John Simmons (‘Simmons’).  The accused have each been charged with one count of child homicide.  It appears that it is common ground that Angela must have suffered her fatal injuries in the 12 hours leading up to her death.  There is, however, independent evidence that at about 10.00 pm she appeared reasonably well.  It must be that one or other, or both, of the accused inflicted the injuries.  Who inflicted the injuries cannot be established and there is, in any event, no concession by either accused that the injuries were inflicted intentionally.
2	The prosecution case is put on the basis that each accused is guilty of the offence charged on the basis of criminal negligence.  The crime of child homicide is a form of manslaughter in which the deceased was under six years of age at the time of her death.  
3	In general, the negligent conduct is the failure to provide appropriate medical treatment in a timely way and, that the failure to provide medical treatment was the cause of death.  It is that the failure to obtain medical evidence was a substantial and operative cause of death.  
4	One of difficulties which arises about these cases is that a careful analysis is required of the case against each accused.  There is a tendency to treat the evidence compendiously which is not permissible.  
5	It is important to set out the material showing the primary cause of death.  Before moving on to that analysis a much more detailed chronology of the events will be necessary.  The matters which are common ground or not contested are these:
(i)	Simmons called the Echuca Base Hospital at 2.55 am.  He spoke to Melissa Andrews (nee McKenzie) a registered nurse.  Ms Andrews said that he reported that Angela had possibly been given an overdose of Nurofen.  He said that the child was conscious but he was unsure of what to do.  Ms Andrews says that she advised him to call ‘000’ or to bring the child to hospital.  Ms Andrews could hear Walker and a child in the background. 
(ii)	A call was made from Simmons’ phone at 5:41 am to the number used by Ashlee Green and Warren Hall.  No further details about the call are known.
(iii)	At 6:18 am Walker called ‘000’ seeking an ambulance for a child who had stopped breathing.
(iv)	At 6:23 am a further ‘000’ call was made by Walker.  Walker and Simmons put Angela in their car and started driving to the Echuca Base Hospital.
(v)	At 6:29 am the ambulance and a vehicle containing Angela, Walker and Simmons meet in Darling Street.
(vi)	The ambulance officer found that Angela had no vital signs and attempted to commence resuscitation.
(vii)	Angela was taken by ambulance to hospital, further resuscitation attempts were unsuccessful and she was pronounced dead at 6:52 am.
(viii)	The treating doctors observed multiple injuries to the deceased.  These included:
1.	Bruise and abrasion on the left upper forehead; 
2.	Multiple bruises on the left side of face;
3	Bruise on the left eyelid;
4.	Bruise below the lateral aspect of the left eyelid;
5.	Bruise on the nasal bridge; 
6. 	Bruise on the left cheek in front of the ear; 
7. 	Old bruise on the left sternoclavicular area; 
8.	Bruise over the left shoulder;
9.	Old bruise found on the lower third of sternum; 
10. 	Small old bruise left sub costal area;
11.	Old bruise on the labia majora both sides; 
12.	Old linear bruise on the left inguinal area; and 
13.	Bruise on the right lower back.
The matter was reported to the police.  
6	On 19 July 2008, a post-mortem was conducted at the Victorian Institute of Forensic Medicine (‘VIFM’) by Dr Michael Burke.  His findings have been summarised in the ‘Summary of Prosecution Opening for Trial’ filed with the Court.  They are as follows:
65.	A cause of death was deemed by the pathologist to be chest injuries causing intra-thoracic haemorrhage (blood loss).
66. 	Examination revealed the following:
• 	multiple individual injuries and bruising to the head, neck, chest, abdomen, upper limbs, lower limbs, back, and external genitalia
• 	intra-thoracic haemorrhage
• 	mesenteric and adrenal haemorrhage
• 	multiple fractured ribs
• 	fractured left pelvis
• 	bite mark on left cheek
• 	old bruise and laceration left forehead
• 	toxicological examination showed the presence of Ibuprofen at a concentration of 12 mg/L
• 	no evidence of any natural disease process that would have led to death.
67. 	Dr BURKE also viewed the photographs taken of the deceased the day prior to her death after the alleged dog attack.  The pathologist noted that the child did not have any injuries around the left eye or nose which indicated that the observed injuries did not occur from a fall to the ground.
68. 	In relation to the bite mark on the deceased child’s left cheek, it was noted that examination showed a bruise with acute inflammation.  The acute inflammation indicates that the injury occurred sometime prior to death allowing the injury to begin the process of healing.  The prosecution case is that this injury did not occur at the same time as the chest trauma which led to intrathoracic haemorrhage.
69. 	Dr BURKE noted that the presence of inflammation within the tissues of the atrium (heart) and adrenals indicated a period of survival between a significant injury to the chest and subsequent death. Dr BURKE states that the time between the commencement of the fatal bleed and ultimate death could not be precisely determined but would be within 12 hours of the time of death.
70.	Dr BURKE opines that the presence of the pelvic fracture reflects the application of blunt force and that examination indicates that this was a recent fracture.  The presence of a pelvic fracture is uncommon in cases of non-accidental injury and would be extremely rare as a complication of resuscitation.
7	Each accused has given a number of descriptions of what occurred on the night and the early morning of 18/19 July 2008.  There are a number of discrepancies in the accounts and, between the accounts.  The difference between the two accounts have no legitimate forensic purpose.  In relation to each accused the information as to what happened between 2:55 am and just before 6:15 am is scant.
8	The homicide squad had conduct of the investigation.  Inspector Graham Guy (then Detective Sergeant Guy) was in charge of the investigation.  
9	Inspector Guy gave evidence before me.  As the lead investigator he took the view that one or other of the accused had inflicted the injuries.  It could not be established with reasonable certainty who had inflicted any of the injuries, in particular the fatal injury. Without directly saying so, he took the view that they were not inflicted jointly in a criminal sense.  The police also obtained warrants for telephone intercepts and listening devices.  
10	The listening devices were placed in Simmons’ car and in the home of Simmons and Walker.  No inculpatory material is said to have been obtained from the telephone intercepts or the surveillance devices.  All of that material has been destroyed and that fact is a major complaint underlying the application for a permanent stay.
11	Although an extensive investigation had been carried out, including interviews with both Simmons and Walker, no charges were laid and do not appear to have been contemplated.
12	The decision was taken to conduct an inquest into the death of Angela and that Inquest occurred in February and March 2011, that is about 30 months after Angela’s death.
13	Inspector Guy had prepared a report for the Coroner dated 15 June 2009 (‘the Guy report’) and presumably that report became a significant reason for the conduct of a full inquest.
14	The Inquest was conducted on 21 to 25 February and 2 March 2011 and the Coroner published his findings on 5 July 2012. 
15	The report prepared by Inspector Guy was detailed and ran to some 11 pages.  The following matters are set out:
CONCLUSIONS
32.	Investigators believe the following:
(i) 	That Simmons consumed drugs supplied by Warren Hall whilst in the employment of Manchester Tanks on Thursday 17 July 2008 which had an adverse effect upon Simmons throughout Thursday night and into Friday morning, being the reason for him being sick all day Friday 18 July 2008 and therefore reducing his capacity to tolerate the kids. 
(ii) 	That on Friday morning the children were removed from the house by Simmons to get them out from under the feet of Walker as the children were restless or causing issues for Walker and Simmons.
(iii) 	That the deceased was bitten by her sister Ebony at some stage that morning which would have caused considerable distress or angst for the deceased for which Simmons or Walker were having trouble dealing with.
(iv)	That the deceased was never attacked by a dog on Friday 18 July 2008 as stated by Simmons outside Go Lo Supermarket. That this story was manufactured by Simmons to conceal the obvious head injury sustained by the deceased whilst in his care. His actions and haste demonstrated to locate the dog after the attack were a ruse which is supported by the fact he remained in the shopping centre for 20 minutes before commencing any search, which ensured no dog would ever be found, if it ever existed.
(v)	That the deceased was upset as a result of the injuries sustained to her face and head whilst in the care of Simmons. The deceased’s on going issues throughout the day and into the night has caused Simmons to be kept awake all night on the back of his previous nights’ experiences in regards to his drug consumption . His sleep deprived state could have caused him to violently respond to the deceased.
(vi)	That Simmons had opportunity to assault the deceased in the early hours of Saturday 19 July 2008·without Walkers knowledge.  That the deceased was clearly deteriorating throughout the night due to injuries sustained.
(vii)	That Simmons was panicked by his actions which caused him to place the phone call to the hospital under the guise of the deceased suffering a possible nurofen overdose without divulging his previous assault upon the deceased to Walker.
(viii)	That Simmons was continually worried about the deteriorating condition of the deceased and was aware of her unconscious state at 0530 hours when placing her in front of the heater and then attempted to ring an associate at 0541.
(ix)	That Simmons pondered what action to take between 0530 hours and· alerting Walker of the deceased unconscious state which was closer to the time of the call being made to the ambulance then the 0530 hours stated by them.
(x)	That Walker continues to change her story to better her position with DHS in regards to on going custody issues for Ebony and that she maintains support for Simmons as a result if her desire to continue a relationship she perceives to be more favourable than the one she had with Bannister. 
16	The conclusions of the investigator were unfavourable, in particular, to  Simmons. 
17	A preliminary issue arose at the Inquest when the Coroner had to decide whether or not he would compel the accused to give evidence.  He dealt with that matter as follows.
Preliminary Issues
The major preliminary issue for the Inquest was an application under section 57 of the Coroners Act 2008.  The section provides:
57	Privilege in respect of self-incrimination in other proceedings
(1)	This section applies if a witness objects to giving evidence, or evidence on a particular matter, at an inquest on the ground that the evidence may tend to prove that the witness—
( a)	has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) 	is liable.to a civil penalty under an Australian law or a law of a foreign country.
(2)	The coroner must determine whether or not there are reasonable grounds for the objection.
(3)	If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness—
(a)	that the witness need not give the evidence unless required by the coroner to do so under subsection (4); and
(b)	that the coroner will give a certificate under this section if —
(i)	the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)	the witness gives the evidence after being required to do so under subsection (4); and
(c)	of the effect of such a certificate.
Mr Mandy, on behalf of Simmons, and Mr Mylonas on behalf of Walker submitted that neither of their respective clients should be called to give evidence to the Inquest.  It was argued that they had been extensively interviewed and investigated by Police and the Department of Human Services (‘DHS’) in relation to the death and this should suffice.  It was also argued that as both Simmons and Walker are both ‘suspects’ in Angela’s death, the interests of Justice would not be served by exposing them to further examination.
I formed the opinion that there were reasonable grounds for the objections to giving of evidence, made by each of the applicants.  I informed both Walker and Simmons that they need not give evidence unless I required them to do so.  I further informed them of the effect of the Certificate.  I formed the view that their giving evidence would be in the interests of justice, and subsequently issued a Certificate to both witnesses.  Both witnesses gave evidence during the Inquest.
18	The Certificates referred to in that part of the findings arise from the provisions of s 57(7) of the Coroners Act 2008 (‘the Act’).
57	Privilege in respect of self-incrimination in other proceedings
…
(7)	In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a)	evidence given by a person in respect of which a certificate under this section has been given; and
(b)	any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person.  However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
19	The Coroner made detailed findings and concluded:
The issue of Certificates notwithstanding, no direct evidence was forthcoming from Simmons or Walker to identify which one of them or whether both were responsible for the injuries.  The circumstantial evidence of responsibility is strong and, in my opinion, the appropriate inference can be drawn.  The second finding is that I am satisfied, at the required standard of proof, that these injuries were caused by Daniel Simmons and/or Tania Walker acting individually or in concert.  
20	In the findings a number of references were made to evidence given by both Simmons and Walker.  The future use of those comments is circumscribed by s 57(7)(b) of the Act.
21	Any reader of the Coroner’s findings must have known of the matters set out in [17] which referred directly to ‘privilege in respect of self-incrimination in other proceedings’  and that the Coroner had granted relevant certificates, but without reference to s 57(7). 
22	The matter came up for review by the Homicide Squad of Victoria Police who asked former member Stephen Wardell to review the case.  After it had been reviewed, Detective Senior Sergeant Trichias sought the advice of the Office of Public Prosecutions (‘OPP’)/Director of Public Prosecutions (‘DPP’) in December 2017.
23	In January 2018 the OPP agreed to provide advice.  Advice was provided by letter dated 24 July 2018.  The pertinent part of the advice for present purposes is:
This letter constitutes that advice.  It is based on the Coroner’s findings, the inquest brief and the inquest transcript.  You are not obliged to accept this advice and you may wish to seek a second opinion.
This matter has been considered by myself, a Crown Prosecutor, a Senior Crown Prosecutor and the Director of Public Prosecutions.  Our opinion is as follows.
As the evidence currently stands, there is not a sufficient basis for laying any charges.  However, we recommend further investigation to determine whether Simmons and/or Walker could be charged with child homicide on the basis of gross negligence.
Several facts are clear:
•	Between the departure of visitors and the death of the child 6.20 am on the next day, she suffered injuries to her face, chest and pelvis.  There are bruises on her face not seen before, rib fractures causing bleeding and bruising on her vulva, and a probable human bite mark on the face.
•	Simmons called the hospital at 2.50 am about having possibly overdosed the child in ibuprofen.  His voice, a woman’s voice and a crying child were heard by the nurse.
•	An ambulance was called at around 6.20 am and when the ambulance officer arrived Angela was dead and cold.
Presumably the fatal injuries were inflicted before the call at 2.50 am.  There is presently no evidence as to whether the injuries were survivable if treated early on.  
We recommend that Victoria Police obtain a report from an expert such as Dr Jo Tully at the Royal Children’s Hospital or one of the VIFM pathologists about the injuries and whether medical intervention could have enabled the survival of the child.  The report should also address what if anything can be inferred from the pelvic fracture and the bruising to the vulva and if there is any connection between those injuries.
If this further evidence is obtained, we would be pleased to provide Victoria Police with further legal advice. 
24	After that advice was received, the informant, Detective Senior Constable Leigh Prados took over the investigation.  One of the first steps he took was to set out to obtain an opinion addressing the matters referred to in the letter set out above from Dr Joanna Tully. 
25	First, on 21 July 2018 DSC Prados sent an email to Dr Burke seeking a further opinion.  He did that based on a recommendation from Dr Tully.  The question of medical intervention and the significance of the pelvic fracture were posed.
26	Second, on 30 August 2018, Dr Burke replied to DSC Prados in the following terms: 
The presence of the pelvic fractures indicates the application of significant force to the pelvis.  The fracture on the left side and the abrasion to the labia was on the right.  It is possible the injuries could have occurred at the same time, depending on the cause of the injuries, though it would seem more likely to be separate applications of blunt trauma.
The ibuprofen analysis was done on blood from the chest cavity.  One cannot extrapolate cavity blood levels to peripheral blood samples (from the femoral vein).  It is my understanding therapeutic ranges do not exist for paediatric cases.
Could earlier intervention have saved Angela Bannister’s life?  I think it is fair to say early intervention is desirable following any injury.  However, there are difficulties in this case.  Angela had histological evidence of a heart injury in the process of healing (early inflammation – see Results for histology – Right atrium).  The presence of such a cardiac injury could have [led] to sudden collapse from an injury associated cardiac arrhythmia.  The blood in the chest may then have resulted from CPR.  On the other hand the blood loss may have arisen, at least in part, from the prior chest injury.
I don’t see how one can definitely determine which of these possibilities.
It may be advisable for Dr Jo Tully to also have a look at this issue?  I would be happy to revisit following her review.
27	Third, on 3 September 2018 DSC Prados formally sought the assistance of Dr Tully and on the same day she agreed to undertake the task and asked to be provided with the relevant material.
28	Fourth, on 4 September 2018, DSC Prados forwarded to Joanne Dean, RCH Nurse Unit Manager, materials to be provided to Dr Tully.  The formal request was set out as follows:
The specific questions to which the opinion is requested are:
1.	Whether medical intervention could have enabled survival of the deceased; and 
2.	What (if anything) can be inferred from the pelvic fracture and the bruising to the vulva and if there is any connection between those injuries.
To assist in the preparation of an opinion, the following material is attached:
•	A copy of the request from the OPP outlining the nature of expert opinion sought;
•	The inquest Brief police summary/report (includes a summary of the witness accounts given re the deceased’s injuries);
•	Selected medical professional statements re emergency treatment of the deceased;
•	The VIFM pathologist, toxicologist and odonatologist reports;
•	The Coroner’s findings.
There is original material (including photographs) that can be provided as necessary.
As previously flagged, the original VIFM Pathologist (Dr BURKE) has had an opportunity to address the OPP’s questions, and his responses are included in the email chain below.
29	Dr Tully provided a report dated 13 November 2018 and a supplementary report dated 9 October 2019.  The first report was detailed (26 pages).  Reference was made to the material provided to her.  She reports that she had access to the email of 4 September referred to above.  The following passage appears in the report:
Review of Provided Material
Summary of relevant background and circumstances
Information primarily obtained from the document prepared by DS Graham Guy, Homicide Squad, for the Coroner’s office and from the Coroner’s findings into the death of Angela Bannister (Court Ref COR 2008 003094):
30	Later in her report Dr Tully sets out in detail a summary of the findings of the Coroner under the heading ‘Coroner’s Enquiry’.  Sixteen items are then set out.  Dr Tully returns to the Inquest where she sets out under the heading ‘Summary of Findings of the Inquest’ nine items.  Dr Tully carried out a very thorough analysis of Angela’s injuries and rejected CPR as being directly related to the cause of death.   As already set out she was asked two questions:
1.	Whether medical intervention could have enabled survival of the deceased; and 
2.	What (if anything) can be inferred from the pelvic fracture and the ‘bruising’ to the vulva and if there is any connection between those injuries.
31	In answer to question 2 Dr Tully said:
The combination of bruising to the upper thigh and lower abdomen, abrasion to the vulva and a pelvic fracture indicates that high energy forces were applied to Angela’s pelvic region.  No history of significant accidental trauma was provided.  This pattern of injury indicates that Angela was subject to unusual and significant inflicted blunt impact forces on one or more occasions, such as may occur if she were kicked or stomped upon.  These injuries would NOT have been sustained as the result of CPR and would NOT have been sustained as the result of being pushed over by a dog.
32	In answer to question 1 Dr Tully said:
It is not possible to determine the precise time that the injuries to Angela were inflicted nor the precise length of time between when the injuries occurred and Angela’s death, although this is likely to be hour(s) and not minutes. Angela was reported to be unwell and restless overnight and was complaining of chest pain and soreness.  Daniel Simmons telephoned Echuca Hospital at 0255 but did not provide information about Angela’s clinical condition other than she was conscious and rousable.  He was advised to present to the hospital or call an ambulance.  Symptoms of internal bleeding can be difficult to recognise by non–medically trained individuals.  If Angela’s parents had appreciated the significance of Angela’s symptoms (pain, restlessness, thirst) and presented to hospital earlier or if they had followed the advice given at 0255 to seek medical attention, then medical intervention could have resulted in Angela surviving her injuries.
33	There are three issues at the forefront of a prosecution of this kind.  The first is whether or not the alleged omission, that is the failure to seek timely medical assistance, caused Angela’s death?  Dr Tully’s report was obtained to address that issue, whether it did so is moot.  
34	The second issue is whether or not, when viewed objectively, a person in the position of either of the accused would have appreciated the need for immediate medical care.  Put another way, that a person in the position of the accused would have appreciated that the child was so ill as to be in need of immediate care.
35	The third issue is whether or not the failure to obtain medical care is grossly negligent in that it involved such a high risk of causing death or really serious injury, that it deserves criminal punishment.  
36	If causation could be made out on the basis of Dr Tully’s first report, the second and third issues remain open.  
37	The accused were each charged with this offence on 19 March 2019.  It should be noted that it was then 10 years and 8 months after Angela’s death.  Apart from the expert opinion of Dr Tully, there had been no change in the evidence available from the relatively early stages of the enquiry.
38	Dr Tully’s report was apparently provided to a Crown Prosecutor who, through the Informant,  sought a supplementary opinion.  Dr Tully provided a supplementary report dated 9 October 2019.   She described her tasks as follows:  
Reason for Supplementary Opinion
I have previously provided a VFPMS Expert Opinion report to Detective Senior Constable (DSC) Prados, Homicide Squad, in relation to Angela Bannister, signed on 13th November 2018.  
Subsequent to receipt of this report, I was contacted by DSC Prados requesting that I provide a Supplementary Opinion as requested by the Crown Prosecutor.  With respect to the supplementary opinion, information was provided to the author of this report in an e-mail sent by DSC Prados on Wednesday 21st August 2019 as follows:
The issue that the OPP are seeking to have addressed is whether the symptoms which the accused persons described Angela as suffering are what you’d expect considering Angela’s injuries ..... when interviewed, Walker or Simmons say that Angela had these symptoms; she was unhappy, restless, would repeatedly fall asleep and wake up again throughout the night, was crying, complained of sore ribs, was extremely thirsty, her urine smelt strong and off, her leg had a spasm and she stopped and started breathing.  I note that the evidence was also that Angela experienced incontinence during the night.
39	For the purposes of the supplementary opinion, Dr Tully was provided with some additional material and summarised it in her report.
Sources of information
In producing this report I have reviewed the following material:
1.	VFPMS Expert Opinion Report authored by myself and signed on the 13th November 2018.
2.	E-mail correspondence between the author of this report and DSC Leigh Prados, Homicide Squad.
3.	Material provided to me by DSC Prados as follows:
(i) 	A summary of observations made by multiple witnesses over the time preceding Angela’s death.
(ii) 	Transcript of a tape recorded interview between DSC Kurkze and DSC Dean and Tania Walker conducted on the 19th July 2008, relevant parts highlighted in yellow by DSC Prados.
(iii) 	Transcript of a tape recorded interview between DS Guy and Detective Bell and Tania Walker conducted on the 15th September 2008, relevant parts highlighted in yellow by DSC Prados.
(iv) 	Transcript of a tape recorded interview between DS Guy and DSC Campbell and Daniel Simmons, conducted on the 19th July 2008, relevant parts highlighted in yellow by DSC Prados.
(v) 	Redacted copy of notes made by DHHS workers Ms Tamara Smith and Mr Ricardo Pasquale from an interview with Tania Walker and Daniel Simmons conducted on the 22nd July 2008 at 1430 hours.
40	After an analysis which included a detailed consideration of the various things said to have been said by each of the accused, she concluded:
While the constellation of signs and symptoms that Angela reportedly experienced in the hours preceding her collapse and death are not specific to a child suffering multi-system trauma, they are easily explained by multi-system trauma and indicate a seriously unwell child who is in urgent need of medical attention.
In light of the additional information provided to me for the purposes of providing this supplementary opinion, it appears that Angela demonstrated signs and symptoms indicating that she was seriously unwell in the hours preceding her collapse.  This additional information strengthens my opinion that a reasonable parent of a child with these symptoms and signs would have recognised the significance of them and sought urgent medical attention and does not alter the view expressed in my report signed on 13th November 2018 that earlier intervention would have created an opportunity for medical treatment that could have enabled Angela to have survived. 
41	The  committal was conducted on 28 November 2019.  Dr Tully was called to give evidence and her evidence-in-chief consisted of the adoption by her of her two reports which she swore were true and correct.
42	A large amount of cross-examination was directed towards the consequences of CPR being performed on a small baby.  There was cross-examination about causation as follows:
MS BALLARD:	What you’ve said is that medical intervention could have resulted in Angeles (sic) surviving her injuries. From your professional medical opinion that’s as high as you can put it, as in you wouldn’t be prepared to say ‘would have’ saved her?
DR TULLY:	I think that’s a very difficult thing to say.  I think given that she had no large major vessel bleed and the likely cause of her death was internal bleeding I think that there’s a high probability she could have survived her injuries. 
MS BALLARD:	Could have?
DR TULLY:	High probability she would have. 
MS BALLARD:	Right.  But obviously you just can’t say for sure?
DR TULLY:	No, I can’t say for sure. 
MS BALLARD:	And you can’t say with any certainty at what point along the way treatment would have made the difference, given all the uncertainties you’re presented with?
DR TULLY:	Yeah, it’s difficult to say that.  I think obviously if medical attention had been obtained, from what I’ve read and from the information that I’ve got several hours earlier at the time the call was made to the hospital I think there’s, there’s a very high chance that, that Angela would have survived.
43	In this Court, application was made by each accused to exclude the entirety of Dr Tully’s evidence for any of the following reasons:
1.	The evidence is excluded by the operation of s 57 of the Act.
2.	If not specifically excluded by that section, the prosecution’s derivative use of the material enlivened s 138 as there was a impropriety in obtaining the evidence.
3.	In so far as any of Dr Tully’s evidence is based upon a consideration of evidence admissible only in the case of a particular accused, it is not admissible in the case of the other accused.
44	On the pre-trial hearing Inspector Guy, Detective Senior Constable Prados and Dr Tully gave evidence and I heard argument.  Written submissions had already been filed. 
45	Mr Chris Carr of counsel, who appeared for the accused Simmons made the following written submissions:
Section 57 of the Coroner’s Act 2008
44.	Section 57 allows for a coroner to compel the giving of evidence where a witness has a valid claim of the privilege against self-incrimination. It adopts the structure, familiar from s 128 of the Evidence Act 2008, of abrogating that privilege for the purposes of a particular proceeding but providing, by the grant of a certificate, an absolute protection against the evidence having any adverse effect on future curial proceedings.  That last aspect is given effect by sub-section (7), which provides:
In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence
(a) 	evidence given by a person in respect of which a certificate under this section has been given; and
(b) 	any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person.  However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
45.	Sub-section (7) provides both a use immunity (paragraph (a)) and a derivative use immunity (paragraph (b)).  It is the derivative use immunity that is of present relevance. Five observations about the scope of the immunity are relevant.
46.	First, the protection is to be read amply.  The rule concerning such provisions requires that ‘a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self-incrimination’.
47.	Secondly, the immunity precludes the prosecution from adducing, inter alia, any information obtained as a direct or indirect consequence of the person having given evidence.  All that is required is some consequential link between the evidence given under the protection of a certificate and the evidence sought to be led.
48.	Thirdly, the protection is absolute.  It is not subject to any assessment, either qualitative or quantitative, of the significance of the protected evidence to the evidence sought to be led.  Any information obtained even indirectly in consequence of the person’s evidence is inadmissible.
49.	Fourthly, the absolute nature of the protection is entirely unsurprising.  The protection is the compensation given for the abrogation of a fundamental common law right.  The obvious purpose of s 57 is to make information available for the decision-maker at an inquest, but to give comprehensive protection to ensure that the person thus compelled to testify is not exposed to any risk of adverse use of the evidence in future proceedings.
50.	Fifthly, the protection must be understood in the broader context of the fundamental accusatorial nature of a criminal trial.  In a number of recent cases, the High Court has emphasised that an accused being compelled to give an account of events undermines the accusatorial nature of a criminal trial.  The Court has made clear that not only the trial itself, but also ‘pretrial inquiries and investigations’ are accusatorial in nature.  The accusatorial nature of a trial will be undermined by even the possession of evidence given by the accused at a compulsory examination, because the prosecution being ‘armed with the evidence of an accused person obtained under compulsion concerning the subject matter of the charges’ constitutes ‘a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have’.  When s 57 is read in light of such authority, one cannot contemplate that it does not encompass evidence which was formulated in light of, and with reference to, the accused’s account given in the protected evidence.
51.	No attempt to whittle down the preclusion enacted by s 57 can be countenanced.
52.	Nor, lest such a step be attempted, would it be proper for the prosecution to attempt to pull apart the strands of Dr Tully’s opinions, which were formed with the benefit of the protected evidence, to seek to uphold the individual strands by reference to other evidence, and then weave them together to form the same whole.  To do so would not be effective to avoid either the spirit or the effect of s 57.  As to the former, the spirit of s 57 required that no resort was had in the investigation of the accused to anything derived from what the accused said at the inquest.  Clearly, that requirement was grossly breached by the prosecution, by giving Dr Tully accounts that were derived from the protected evidence.  The effect of s 57 is to exclude from evidence the opinion reached by Dr Tully, which was formed with the benefit of reading material that distilled the accused’s evidence at the inquest.  That exclusion operates because Dr Tully’s evidence is information obtained as an indirect consequence of the accused’s evidence.
46	In his oral submissions Mr Carr set out the material Dr Tully said that she had access to in forming her opinion.
47	There were three particular documents referred to.  They were the Guy report, the Coroner’s findings and a ‘Timeline’ prepared by the informant contained in an email dated 13 September 2019. 
48	Dr Tully said at the committal that it was important to have or make a detailed chronology of the events leading up to Angela’s death.
49	That chronology, it was submitted, was based upon the material referred to above.
50	Mr Carr further submitted that since his client had been compelled to give evidence and had been granted a certificate pursuant to s 57 of the Act, the use of any evidence given on the direct or indirect use of any information in the prosecution of his client was precluded.  It followed, so the argument ran, that Dr Tully’s first report said to have been based upon the Coroner’s findings and the Timeline referred to above in which reference was made to the evidence of each accused at the Inquest, was not admissible.  The second report is supplementary to the first report and makes reference to the first report and is also inadmissible.
51	In both his written and oral submissions, Mr Carr maintained that the words of s 57(7)(b) of the Act were expressed widely to protect a person who was compelled to give evidence over objection.  It was submitted that because material which could not be admitted into evidence had been given to Dr Tully and she included reference to that evidence in her report, this was a case in which it could be said that Dr Tully’s opinion had been obtained as a direct or indirect consequence of the accused having given evidence.
52	In  summary, the material given to Dr Tully which referred to the evidence of the accused could not be used as the foundation of an opinion to be given in evidence against the accused.
53	It was the prosecution response that although the material which came from the Inquest, which can be said to have been derived at least in part from the evidence of each accused, should not have been given to Dr Tully, her evidence is still admissible.  It was submitted that there is sufficient admissible material which was available to Dr Tully on which she was entitled to base her opinion and give evidence of that opinion.
54	In argument Mr Carr continued to press the matters set out in his written submissions.  Mr Stewart Bayles who with Mr Markorius Habib both of counsel, appeared for the accused Walker, supported Mr Carr’s submissions with reference to the matters particularly relevant to his client but which do not need to be set out in detail here. 
55	In his written submissions the learned prosecutor Mr Lewis said:
The Evidence of Dr Tully
42. 	The Crown relies on Dr Tully for her expert medical opinion.  That evidence is set out in two reports dated 13/11/18 and 19/10/19.  The Crown will not seek to adduce the entirety of those reports, but will limit Dr  Tully’s evidence to that which is relevant and admissible. Dr Tully was provided with a significant amount of material.  However, much of that material provided background information and was not required as a vital stepping-stone in relation to the formation of her medical opinion.  The Crown regards it as unnecessary to adduce much of that evidence through Dr Tully.
Section 57 of the Coroner’s Court Act 2008
43. 	The Crown does not seek to adduce or rely upon evidence which was the subject of a certificate at the Coroner’s Court.  As a consequence, the Crown does not seek to adduce any part of Dr Tully’s reports that refer to the evidence given by either accused in the Coroner’s Court. Further, the Crown does not seek to adduce any part of Dr Tully’s reports that are derived solely from evidence given by either accused at the Coroner’s Court.  However, where there were other sources of that information (such as the records of interview of the two accused) the Crown proposes to rely on the opinions generated.
44. 	It is essentially asserted by the accused that because Dr Tully has been in receipt of the material from the Coroner’s Court, she can no longer give evidence in relation to this matter.  That is said to be so notwithstanding the acknowledged existence of other sources of information available to Dr Tully.  It is said that to allow Dr Tully to give evidence, even if that evidence is supported by material from perfectly legitimate sources, ‘would be to avoid either the spirit or the effect of s 57’.
45. 	Dr Tully’s opinion was formed by the assessment of a number of pieces of information.  Where individual pieces of information had more than one source, and at least one of those sources was properly available to her, it is submitted that the opinion cannot be impugned because the other source was not properly available.  That position lacks logic.
46. 	In any case it is the Crown’s position that the vast bulk of the relevant parts of Dr Tully’s evidence do not derive from the evidence given at the Coroner’s Court.
47. 	Furthermore, much of Dr Tully’s evidence does not derive from information provided by one or other of the accused.  Rather the evidence is overwhelmingly related to observed injuries.
56	Mr Lewis in his oral submissions continued to press the argument that a statement could be produced which did not rely upon any ‘prohibited’ material and which would set out which evidence was relied upon in relation to each accused.  He produced a table for each accused to demonstrate those propositions.  I later marked the documents as exhibits 6A and 6B on the preliminary argument.
57	Mr Lewis developed a further argument in which he submitted that the words of s 57(7)(b) ‘as a direct or indirect consequence of the person having given evidence’ were not sufficiently broad in their import to apply to this set of circumstances.  In particular it could not be said that the production of Dr Tully’s reports or the evidence based on those reports was as a consequence of either of the accused having given evidence.
Analysis
58	Section 57 is designed to protect a person who is compelled to give evidence before a Coroner from having that evidence used against them in another proceeding.
59	The prohibition of the use of the evidence is set out in the section.
•	Pursuant to s 57(7)(a) the evidence itself cannot be used in evidence.  The sub-section is not applicable in this case.  
•	Pursuant to s 57(7)(b): 
any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person. …
60	The two reports of Dr Tully (the second by reference and ‘incorporation’ of the first), indicate reliance by Dr Tully, in the formation of her opinion, on material in which reference is made to the evidence given by each accused.
61	The Coroner’s findings make a number of references to the evidence.
62	The Timeline prepared by DSC Prados also makes a direct reference to the evidence given by each accused.
63	Up until this stage Dr Tully’s evidence has taken the form of her reports.  Mr Lewis does accept that any evidence she would be permitted to give could not include any reference to reliance being placed on any material which included references to the evidence given by the accused.  He submitted that the reports could be disaggregated by removing these references and sought to demonstrate that by reference to exhibits 6A and 6B.
64	When the matter was approached in that way, a statement including only admissible material would be produced. 
65	I am satisfied that the reports as provided, if led in evidence, would be a breach of s 57(7)(b) of the Act.  The calling of Dr Tully to give evidence of her opinion based on the reports as they stand would be using information which had been obtained as a direct or indirect consequence of their having given evidence against the accused.
66	To make that clear, what was contained in the Coroner’s findings and in DSC Prados’ email was information obtained from the evidence each accused had given and the opinions were sought to be obtained as a consequence of the evidence having been given. 
67	The question which arises is whether there is a permissible form in which Dr Tully can give her evidence which would ‘cure’ what was done.  I accept that it would be possible to reconstruct Dr Tully’s evidence so that no reference is made to any material which could not be used as a basis for her opinion and which directly deals with evidence admissible against a particular accused.
68	The fact remains that in forming her opinion (ie her first report) Dr Tully had access to materials, the use of which was prohibited by law.  It is true that on occasions expert witnesses will have had regard to material which is later found to be inadmissible.  It may be a matter of degree but experts are sometimes asked to provide a revised opinion based solely on admissible material.  On occasion the anticipated evidence may change which might be the basis for an expert reconstructing an opinion.  
69	I regard those cases as being entirely different from the present cases.  There are also cases where an opinion could not be reconstructed for instance where evidence of a record of interview has been excluded.
70	I observed in argument and Mr Bayles submitted that it would be extremely difficult if not impossible for counsel to adequately cross examine Dr Tully without reference to how she came to express her opinion in the first place.
71	I find that the opinions of Dr Tully were obtained in contravention of s 57 and that the contravention cannot be avoided by recasting of her evidence in an otherwise admissible form.  I exclude her evidence from the trial.
72	A further alternative submission was made that I should exclude the evidence of Dr Tully on the basis that the evidence was improperly obtained.  Section 138(3) of the Evidence Act 2008 is in the following terms:
(3)	Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)	the probative value of the evidence; and
(b)	the importance of the evidence in the proceeding; and
(c)	the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)	the gravity of the impropriety or contravention; and
(e)	whether the impropriety or contravention was deliberate or reckless; and
(f)	whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)	whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)	the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
73	As observed in [28] Dr Tully was provided with a body of material which included the Coroner’s findings.  In an email dated 13 September 2018 DSC Prados forwarded a ‘Timeline’ to Dr Tully in which he set out:
From SIMMONS at Inquest
•	Changed deceased’s nappy approx. 0530 hrs;
•	Coroner’s assessment is that SIMMONS’ chronology is ‘confused’.
and:
From WALKER at Inquest
•	Asserted she was awake most of the night;
•	Coroner’s assessment is that WALKER’s evidence is ‘problematic’ as it varies to earlier accounts given to police.
74	The purpose of contacting Dr Tully was to seek from her an opinion as to whether or not earlier medical intervention would have saved Angela.
75	The argument on behalf of the applicants had been stated relatively briefly.  It was submitted that the use of coronial material gave rise to an impropriety of the kind which would enliven s 138 of the Evidence Act. 
76	The prosecution submissions accepted that the material referred to should not have been supplied to Dr Tully but submitted that it was not an impropriety of the kind which would lead to the exclusion of Dr Tully’s evidence.
77	In his oral submission Mr Carr expanded that argument somewhat by reference to the evidence given by DSC Prados.  He said while being cross-examined by Mr Bayles:
MR BAYLES: 	Yes.  Now, I take it from the way you’ve answered that the questions that I asked you about s.57 of the Coroners Act and the way this was dealt with in the transcript which you've read, that was something that you would have been aware of at the time I take it?  It’s an issue that you would have been aware of?
DSC PRADOS:	Yes. 
MR BAYLES:	So you turned your mind to this as an issue?
DSC PRADOS: 	Yes, I did.
MR BAYLES:	And so after turning your mind to it as an issue, you took the view that it was appropriate to do it?
DSC PRADOS: 	Yes.
MR BAYLES:	Notwithstanding that you accept that this is a use of that evidence that is now being used against these two people in criminal proceedings?
DSC PRADOS: 	Yes, again, I — my position with Dr Tully was also, I suppose, influenced by the fact that again I am dealing with an expert and — to my mind, if there were parts of the information which would have no bearing or that she should ought not have reference to that …
HIS HONOUR:   But she’s not to know about s.59 [sic].  You’re the person who knows about s.59 [sic] for those purposes? 
DSC PRADOS: 	Yes, Your Honour.  Yes, I …
HIS HONOUR:	How is she to know that she’s been provided with something she shouldn't have?
DSC PRADOS:	Your Honour, to my mind at the time I provided this - at the time I provided this information, it was not — how can I put it?  I was not presupposing what the expert's opinion would be.  To my mind it was simply that the expert had reference to all available information.  I have to say that that was - that was my thinking at the time.  And …
HIS HONOUR:	And what in this particular material was favourable to the accused?
DSC PRADOS:	Your Honour, in terms of the findings, whether there was anything that may well not have necessarily gone against the interests of the accused but toward the interests of the accused and I wasn’t going to, I suppose, try to edit or change what the coroner's decision was at the end.
MR BAYLES:  	So what you seem to be saying there is for all you knew, the answer to Question 1 might well have been ‘No, medical attention could not have enabled the survival of the deceased’?  Medical intervention?
DSC PRADOS:	Correct.  I didn’t.  Yes, I wasn’t presupposing what the answer would be.
78	And later when being cross-examined by Mr Carr:
MR CARR:	You had some evidence that you knew couldn't be used against Mr Simmons; correct so far?
DSC PRADOS:	Yes.
MR CARR:	And you gave it to an expert for the purpose of the expert providing an opinion that would be used against Mr Simmons in court; correct so far?
DSC PRADOS:	Ah yes. 
MR CARR:	And you never even thought about the propriety of that.  Is that your evidence?
DSC PRADOS:	No, I — it was a consideration.  And I know in questioning earlier in terms of the coronial inquest and the findings in that document, I did consider it before giving it to Dr Tully and for the reasons that I gave, I did proceed with it.  So I had turned my mind to that point but I didn't …
MR CARR:	Turned your mind to it, you say?
DSC PRADOS:	Yes.
MR CARR:	Did not speak to anyone about it, about the propriety of doing that?
DSC PRADOS:	Ah, no.
MR CARR:	The OPP who were giving advice in relation to this case, didn’t speak to them about it?
DSC PRADOS:	No.
MR CARR:	Didn’t speak to a sergeant about it?
DSC PRADOS:	Ah, look, it would have been – it would have been raised probably, but no, not specifically.  Not that issue specifically, no.
MR CARR:	When you say it would have been raised, not that issue specifically; you either did speak to a sergeant or you didn’t about propriety of providing protected evidence to an expert witness for the purpose of that expert giving evidence in the proceeding against Mr Simmons.  What’s the position, did you or did you not?
DSC PRADOS:	No.
MR CARR:	So you say as a detective conducting your fourth Homicide investigation, just off your own bat, without speaking to anyone, without seeking any advice from anyone, knowing it was protected evidence, you decided that you’d do anyway; is that right?
DSC PRADOS:	Ah, yeah.
79	I am not sure that I would go so far to say DSC Prados was as wilful as his answer to that question makes it appear but it does appear that the material was handed over in the knowledge that it could not be used.  If not as direct as that,  but it was handed over in the knowledge that there were restraints on the way it could be used.
80	Each of the matters set out in s 138(3) need to be examined.
(a)	The probative value of the evidence and (b) the importance of the evidence in the proceeding.
81	If admitted, the evidence is highly probative.  It is of significant importance in that it is really the only evidence from which a jury could conclude that child homicide, as put, can be made out.  In the absence of evidence from which a jury could conclude that earlier medical intervention would have saved the child, together with evidence that it would have been obvious to those with the care of the child, that medical intervention was required, the accused could not be convicted.
(c)	The nature of the relevant offence
82	The offence is that of child homicide.
(d)	The gravity of the impropriety or contravention
83	Mr Carr submitted that the impropriety was grave.  I would not necessarily use that word to describe the contravention but I do regard it as serious.  This was a reconsideration of a case which had occurred in July 2008.  An Inquest had been conducted in February and March 2011 with respect to which findings had been handed down in July 2012.  No prosecution was commenced.  No new material was obtained.  It was sought to recast the case to involve both accused when it was, as I understand the matter, a case in relation to which one or other of the accused had murdered the deceased.  Without a positive opinion from Dr Tully, the case would not and could not have progressed.
84	It follows that great care should have been taken to ensure that Dr Tully’s opinion was based upon material which she could legitimately use to support the opinion.  That is not what was done.
85	It seems to follow from the prosecution  submission  in relation to s 57 of the Act that because Dr Tully could and would reach the same opinion based only on material which would be admissible any ‘impropriety’ should be regarded as minor. 
86	It cannot reasonably be said that the material was simply produced in the name of completeness and/or fairness, as seems to be asserted by DSC Prados.  None of the material could be taken to have been of any assistance to either accused.
(e)	Whether impropriety or contravention was deliberate or reckless
87	DSC Prados conceded in evidence that he knew of the s 57 prohibition but somehow thought that Dr Tully would be able to deal with that difficulty.  The possible reliance on the prohibited material is quite stark in the email used to set up the Timeline.  The Timeline coupled with the knowledge or supposed knowledge of either accused is very important in the case of each accused.
88	Sub paragraphs (f) and (g) were not argued.
(h)	The difficulty (if any) of obtaining the evidence without the impropriety or contravention
89	I imagine there must be, in Australia or elsewhere, many experts who could give fresh consideration to the question raised without reference to the impugned material.  
90	I am obliged to consider whether ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way which the evidence was obtained’.
91	I do not in any way question Dr Tully’s bona fides and her sincerity in saying that she would reach the same opinion based only on admissible material.  I am not satisfied that such an analysis can make any difference to this application.
92	I am not satisfied that the desirability of admitting this evidence outweighs the undesirability of admitting this evidence obtained in the way that it was.
93	It follows that even if I if am wrong about my analysis of excluding the evidence because of the breach of s 57 generally, I would still exclude the evidence pursuant to s 138 of the Evidence Act.
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