Ethan James Hunt
LAW1LIM Legal Institutions and Methods
La Trobe University
AGLC referencing style
The following report on the case of R v Rowe  is based on information presented to the court during the trial on the 23rd of March, and on the 27th of March. Any factual errors are a result of observational inaccuracy. This report is not a complete report on the entirety of the case.
The case was heard before the Supreme Court of Victoria in Bendigo, Victoria, presided over by Justice Lex Lasry. The counsel for Her Majesty consisted of barristers Ben Ihle, Crown Prosecutor Fron Dalziel, and Chief Prosecutor Justine McLeod. While the counsel for the accused, Joby Rowe, consisted of barristers Paul Higham and Julia Minster.
Overview of the case
The case in question was a criminal case, whereby the prosecution bore the burden to prove that the accused, Rowe, was guilty of the crime of which he was charged, beyond any reasonable doubt. Following the death of his 12-week-old daughter, Alanah, Rowe was charged with one count of child homicide1 in accordance with the Crimes Act 1958 (Vic) s 5A, which carries a maximum penalty of 20 years imprisonment2.
The material facts of the case were that Alanah was pronounced dead as a result of head trauma. That Rowe was the sole witness to the event that preceded Alanah’s hospitalisation. And that Rowe was pleading not guilty to one count of child homicide.
The issue that was the main cause of dispute in the trial was with regards to the circumstances leading up to the death of Alanah. The prosecution alleged that the cause of Alanah’s death was head trauma sustained from the actions of her father, which Her Majesty’s barristers stated presented itself in the form of “being shaken”. While the defence alleged Alanah’s death was the result of a pre-existing medical condition.
Dr Joanna Tully, the director of forensic paediatric medicine at the Royal Children’s Hospital in Bendigo3, gave evidence during cross-examination as an expert witness, who was present while Alanah was hospitalised and examined her medical records prior to, and after Alanah was declared deceased. The evidence she presented was with respect to Alanah’s metabolic and respiratory acidosis, as well as the haemorrhages sustained by Alanah and her haemoglobin and hematocrits levels, which would support the proposition that the cause of death was head trauma sustained by “shaking”.
The atmosphere of the court
The formality of the court was considerably noticeable. Legal counsel seldom interrupted the words of the Justice unless for purposes of clarification, and the ubiquitous use of honorifics was evident to anybody present in the court. This was perhaps so due to the fact it was a Justice that was present, as opposed to a more common Judge or Magistrate — such formality made it evident that the Justice was the sole authority figure in the room, even while such Justice was not verbally imposing and scarcely interjected.
The Justice was positioned substantially above the rest of the individuals in the courtroom, even more so than the jurors, who were also positioned above the remaining attendants. For members of the public seated at the rear of the room, it was difficult to have a clear view of the whole proceeding, with legal counsel faced away from the public towards the Justice, and the jury seated above and to the right, requiring conscious effort to be able to view clearly. Such architecture means that the “observation of justice is… limited to observation of the adjudicator rather than evaluation of evidence”4.
There were no noticeable cultural or language barriers present in the courtroom. All adherents were perceived to be English-speaking. The only probable concern would be that some jurors required headphones, which may have been due to poor hearing, or possibly even preference.
The role of legal representation
The barristers representing Rowe proved to be essential to the outcome of the case. Without professional legal representation, and the reasonable doubt they were able to produce about the cause of death and about whether their client was guilty of specifically, child homicide — I have no doubt that the defendant would have been found guilty based on the medical evidence provided by Dr Tully. Such barristers were very much adversarial advocates in their approach to the case, fighting for their client’s “interests as vigorously as possible within the law”5.
Conversely, the essentiality of the professional representatives for Her Majesty in this particular case was questionable. The counsel rarely rebutted arguments made by the defence counsel and merely reiterated arguments given in evidence raised by witnesses, in particular, Dr Tully. However, this is understandable given the circumstances, since the defendant was the only direct witness to the alleged incident that was the nominated cause of death by the prosecution.
The role of the decision-maker
The Justice in the case was somewhat passive throughout the trial proceedings. During my observation of the trial, the Justice carefully listened and considered the arguments of both the parties to the case; and the evidence presented before the court, giving fair time to each party.
The jury, for the most part, was preoccupied with listening to the lengthy cross-examination of Dr Tully and the police interview of the accused, both of which took up an entire day’s sitting each. The jury was only seldom engaged with, only when the Justice clarified evidence brought before the court, at the end of each sitting, and prior to their deliberation, whereby the Justice reiterated their responsibility to come to a verdict on whether the accused was guilty beyond reasonable doubt.
At the end of my witness to the trial, the parties were expected to give their final address to the jury over the following two days. While there was no decision reached during my witness of the trial, based on the evidence and arguments presented, I would expect the jury to come to the conclusion that Rowe was not guilty, or that a decision cannot be reached. Due to the fact that Rowe was the sole witness to the event, and that there is reasonable doubt as to whether his alleged actions were the cause of death.
1 Crimes Act 1958 (Vic) s 5A.
3 Adam Holmes, ‘Father to stand trial for baby death’, Bendigo Advertiser (online) 15 July 2016 <http://www.bendigoadvertiser.com.au/story/4033848/father-to-stand-trial-for-baby-death.html>.
4 Linda Mulcahy, ‘Architects of Justice: the Politics of Courtroom Design’ (2007) 16 Social & Legal Studies 396.
5 Christine Parker, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30 (1) Monash Law Review 49.
Holmes, Adam, ‘Father to stand trial for baby death’, Bendigo Advertiser (online) 15 July 2016 <http://www.bendigoadvertiser.com.au/story/4033848/father-to-stand-trial-for-baby-death.html>
Mulcahy, Linda, ‘Architects of Justice: the Politics of Courtroom Design’ (2007) 16 Social & Legal Studies
Parker, Christine, ’A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30 (1) Monash Law Review
Crimes Act 1958 (Vic)