Philip OPAS QC interview 4/8/2003

Well, this was a case of a nurse in a hospital in Ballarat, who was charged with the murder of her newly-born baby. Strangely enough, nobody knew she was pregnant.

It was a Saturday morning and she’d been working in an operating theatre. She was a big girl and wearing a form-concealing coverall smock, and she was on duty till about midday, when being a weekend, her flatmate went off home and she was left alone.

Her roommate didn’t even know she was pregnant, believe it or not. She had her baby while she was seated on a toilet seat, and the baby was born into the toilet bowl. She took the baby, and wrapped it, dead, in a newspaper, and put it down the chute to the incinerator in the nurses’ quarters in the hospital.

That incinerator was only lit twice a week, not until the following Tuesday, and she spent the rest of the weekend in bed alone, because she wasn’t on duty. She resumed duty on Monday as though nothing had happened. On the Tuesday morning, when some employee was raking the incinerator, ready to start it up again, they found the baby. There was a routine investigation – she was not under suspicion – and naturally anyone who was in those quarters over the weekend was questioned by police, including this girl.

She panicked, blurted out the story, and was charged with murder. When the case came to me, she’d already been committed to trial, and all I knew was that the baby was still attached to a 2 and a quarter pound placenta, joined by the umbilical cord, which was 8 and a half inches long. I didn’t know what happened at a birth – I asked my wife – she’d had two children, and she was clueless. She was unconscious when they were born. So I didn’t know what being joined at the cord meant, and whether the cord was short or long.

My instructing solicitor’s wife had five children, but she was equally ignorant – she’d been sedated at the births. The only alternative I had was to get the facts right, so I saw Professor Townsend, who was in the chair at Melbourne University, and he arranged for me to attend seven births at the (Royal) Women’s Hospital.

The strange thing to me was the length of the umbilical cords, some of them were up to nearly a metre long, and I asked the obstetrician whether it was significant that the cord was 8 and a half inches. Of course it was, he said, because it had to go from the placental site to the exit point. How long was that? Oh, he said, about 10 inches, but the trouble we often have is that the cord is so very long that it can wrap around a baby’s neck and strangle it.

I wondered if it were possible for a baby to breathe before it was born, and be born dead because murder means the taking of a life in being, and a life in law is not in being until it has a separate existence outside the body of its mother. So I was concerned to see if this was possible – there must have been air present in the lungs at the autopsy, otherwise she could not have been charged with murder.

The point in my mind was: when did that air get into the lung? If it got in after the baby exited from the body of the mother, then murder was sustainable. It was explained to me by the obstetrician that the baby travels down the umbilical cord like a yo-yo, until it gets to the end of it. I asked what happens if the cord isn’t long enough to go from the placental site to the exit, and he said (that) the baby is jerked like a yo-yo and it must open its mouth. That means, I said, that it must take in air. He said, it takes in air and amniotic fluid and that baby will drown in the amniotic fluid unless there is immediate professional attention.

So that means, I said, a woman on her own in a situation like that – he said that it would be hopeless. So I would not have asked a sensible question if I hadn’t seen this, and by asking the right questions, I elicited from the pathologist who did the autopsy that the baby must have breathed the moment it reached the end of the cord and before it was born. Therefore it breathed before it was born, and was born dead. There was nothing the mother could have done – she had no hope of being convicted.

Did other barristers go to similar lengths to prove such important points in cases?

I’ve no idea. But my approach to everything was to understand my problem, and that was a factual one. After I took silk, I became briefed in a number of patent actions, and I’d never had a scientific lesson in school. I had to understand in order to represent clients in patent actions just what was the innovative original step that entitled them to the protection of a patent. And the innovative step often involved the application of known principles to a new use. I can read about these things, but it doesn’t register – show it to me and I can understand it.

So I’d go to factories and laboratories and sit with engineers and scientists who’d show me what was involved in the inventive step they claimed credit for. So perhaps due to my ignorance of chemical and scientific problems, I insisted on personal instruction, and that was always the way I worked.

Conducted for the Bar Oral History project by Juliette Brodsky in the Neil McPhee Room, Owen Dixon Chambers and filmed by Stewart Carter (People Pictures)