Record of Investigation into Death

Coroners Act 1995
Coroners Rules 2006
Rule 11

These findings have been partially de-identified in relation to Fiona Garth's son by direction of the Coroner pursuant to S.57(1)(c) of Coroners Act 1995

I, Stephen Raymond Carey, Coroner, having investigated the death of

Liam Robert OSBORNE

UPON HOLDING AN INQUEST

Find That :

a) The identity of the deceased is Liam Robert Osborne (Liam) who died at a precise time unable to be determined but between the hours of approximately 8.30pm on 26 June 2009 and 4.30am on 27 June 2009 but in all probability before midnight on 26 June 2009.

b) Liam was born on 25 June 2005 and was aged 4 years.

c) Liam was the infant son of Jason Robert Osborne and Kristie Lee Rainbow and in the period leading up to his death resided with his father and stepmother Litischa Ann Palmer. Liam died at Unit 1, 29 Abbotsfield Road, Claremont, but the cause of Liam's death is unable to be determined and that issue remains open.

Circumstances surrounding the Death :

By way of overview it is established that on the night of 26 June 2009 Liam and his twin brother Aiden Scott Osborne (Aiden) were staying the night at the home of Fiona Maree Garth (Ms Garth) and her son (name deleted) at Unit 1, 29 Abbotsfield Road, Claremont. Ms Garth attended the Shell Service Station on the corner of Abbotsfield and Main Roads, Claremont and purchased chicken nuggets and chips for their dinner. The children played together and watched television. A friend, Ms Angela Cunningham attended the Garth residence at about 7.40pm and stayed until approximately 8.30pm. All the children were present and there were no matters of concern although it is reported that Liam sat in an armchair for the period that Ms Cunningham was there and that he appeared quiet.

The next morning, shortly after 5am Ms Garth went to the home of Jason Osborne and Litischa Palmer advising them that she could not wake Liam. They travelled to the Garth residence and upon entering the unit, Mr Osborne observed Liam on the floor in front of the heater. He attempted CPR but noted that Liam's teeth were clenched and that he was cold and stiff. The Tasmanian Ambulance Service was contacted at 5.42am. An ambulance with ambulance officers Anton Bartulovic and Jessie Bresnehan arrived at the Garth residence at 5.52am. When they arrived no CPR was being conducted upon Liam who at this time was lying on the couch. It is apparent that after Jason Osborne had ceased his CPR efforts he had gone outside the residence (obviously upset) that Ms Garth had then moved Liam from the floor to the couch. The examination by the ambulance officers revealed that Liam had no signs of life, he was stiff to touch and cold and appeared cyanosed and mottled. He was also noted to have marks, abrasions and bruising about his body.

The Tasmanian Ambulance Service officers then directed Ms Garth to leave the premises and not to touch anything as they were aware police were to attend. However, despite this direction, Ms Garth was observed to move a bean bag, blanket and teddy bear from the room and "dump" them upside down at the end of the hallway.

What occurred in the period from 8.30pm on 26 June until 5am on 27 June 2009 has not been established with any clarity. However I am satisfied that on the night of 26 June all the children were bathed. Despite her continued denials throughout the investigation it was established that on or about the time of bathing that Ms Garth assaulted Liam on a number of occasions. Ms Garth pleaded guilty in that regard and I adopt the findings of fact made by Evans J in sentencing Ms Garth upon her plea of guilty for assault. His Honour states:

It was clear that all of the children were playing in the bath, were perhaps tempestuous and perhaps innocently misbehaving. The post mortem findings of Liam were of widespread bruising and abrasions on the body including the pattern contusion on the buttock, apparently as a result of being struck by a foreign object. This was later identified as a cooking spatula. During the investigation when questions were specifically asked about this Ms Garth admitted she had hit Liam with the spatula when he was in the bath but asserted they were merely "…playing around" and that he did not cry. Clearly he was hit with considerable force, so much so that the pattern mark was made upon his body. She also said that in playing around before the bath she had hit Liam once on the bottom, that he was wearing underpants and that the force involved would not have been enough to leave a mark.

The fact that Ms Garth, having the care and responsibility of a child not her own, would assault that child at all, let alone to the extent that numerous bruises and abrasions were apparent on his body raises fundamental concern as to the type of person Mr Garth is, and whether she would be capable of inflicting any further harm on Liam.

It is clear from the evidence, especially of her neighbours, that Ms Garth at times displayed a bad temper, was threatening in attitude, was dishonest and upon her own evidence showed an ongoing disregard for the law by driving a motor vehicle whilst her licence was disqualified. She was a person to whom opiate based medication (Endone) was prescribed for chronic pain, and who consumed alcohol and cannabis in combination with that medication. I find that on the night of 26 June 2009 she consumed more alcohol that she has stated in her evidence and that she also used cannabis. Whether or not this contributed to any incident that may have occurred between her and Liam including the assault I am unable to say, but it clearly lessened her ability to properly care for those children in her care. There was evidence given about the death of two puppies that were (her son's) pets. Although there is no direct evidence, a strong inference can be drawn that both animals died as a result of physical trauma inflicted by Ms Garth.

A reflection as to the nature of Ms Garth's character concerns her lack of emotion and remorse following the death of Liam who was a child in her care.

There is evidence from a family member of Ms Garth that Ms Garth displayed some emotion at her unit at or about the time that the investigation into this matter had commenced. By contrast the evidence of others including Liam's family, Ms Garth's family and friends, police and ambulance officers indicate that she showed little emotion or empathy in respect of Liam's death. The only emotion displayed by Ms Garth appears to have been her anger at her son being taken into care by Child and Family Services and the worry and concern at her own predicament. For reasons outlined herein I determine Ms Garth is not a witness of the truth in respect of her actions and involvement in this tragic event.

I therefore accept the evidence of Ms Honey that in her presence at Ms Garth¡¦s unit on the Saturday night Ms Garth referred to a bag of Liam's clothes, kicked them and said:

"….there's the little cunt's clothes there."

This was not an isolated comment as I accept the evidence of Kylie Garth that on the Sunday in her presence when asked who a particular pair of shoes belonged to responded:

"They're the fucking ferral's."

Any reasonable person would be horrified and astounded at this complete lack of empathy and sympathy by Ms Garth concerning the tragic death of Liam and the impact that that would have upon his family and one would have anticipated, upon her.

All of this establishes that Ms Garth is a person prone to temper outbursts, violence, is a person who plays scant regard to the law, who combines the use of prescribed opiate medication, marijuana and alcohol, who showed little or no emotion as to the tragic death of Liam who was in her care and who in fact showed a cold, detached and obscene displeasure to what had occurred . As mentioned, I also do not consider that she is a witness of the truth. However this is merely a description of the person, a person I am sure would attract strong negative feelings from the overwhelming majority of society, but that of itself does not mean or establish that she was necessarily responsible for or contributed to Liam's death.

Ms Garth has given numerous formal and informal descriptions of what happened that night and I do not accept that any of them are truthful. There may be truthful aspects but the mere fact that she has provided so many versions indicates the likelihood of concoction and a deliberate endeavour to find a suitable explanation to protect her own interests rather than to describe what really occurred.

Those various versions are summarised as follows:

1. To Kylie Garth on Sunday 28 June 2009 she described that (her son) and Liam's brother had been in the bath and had been playing in the bath. After this those two boys were falling asleep in the lounge whilst Liam was having his bath. She says she heard a bang come from the bathroom, she went into the bathroom and said she found Liam just lying there in the bath looking ahead. She said she had to lift him out of the bath as he was wobbly. She then said she took him to the lounge room, dried him and put his pyjamas on and laid him there. She said she thought he was asleep. She sat up watching movies all night. When she woke in the early morning to go to the toilet she noticed his eyes were half open. She said she shook him to try to wake him and that's when she went to get his father.
2. She gave a similar version to the above to Debbie Honey on the Monday after the incident, although she included that whilst Liam was having his bath she went back into the bathroom because he was doing a sliding thing in the bath and had fallen. She said that he put his arms up in the air gesturing to be picked up, she picked him up, carried him from the bathroom out into the lounge room, wiped him and put his pyjamas on and laid him on the lounge and then he went straight to sleep. There was no suggestion in this version that he was "wobbly". However in discussions she had with Ms Garth another version was given that involved Liam returning to the bath after he had been put down to sleep without her knowledge a couple of hours later and that she then found him in the bath. In her evidence to the inquest Ms Honey says that she has also been told other different versions of events and said that she was torn in trying to support her friend but she "felt being lied to". Ms Honey said the stories given to her by Ms Garth sounded made up and that she does not believe that Ms Garth has even told her the truth.
3. Katrina Garth was at Ms Garth's unit on the Saturday night and also heard her description that she had bathed (her son) and Aiden, and then bathed Liam. Ms Garth is reported as saying that she heard a noise in the bathroom, went to the bathroom and found Liam staring, she got him out of the bath, dressed him and put him to sleep on the lounge.
4. During the period from approximately 7.10am until 7.55am on the morning of the incident Ms Garth gave an affidavit to Constable Ortuzo whilst sitting in a police vehicle on Abbotsfield Road at Claremont. Of note in this affidavit she describes:

• She gave Aiden and (her son) a bath. Following this Liam had a bath which would have been between 7pm to 7.30pm. Liam remained in the bath for between 20 to 30 minutes and during this time she was in and out of the bathroom.
• On two occasions Liam held his nose and lay on his back under the water, playing a game. On the second occasion Ms Garth told Liam not to do this as it was dangerous. Liam was coughing and spluttering and she assumed he had swallowed some bath water. She had heard him "spluttering", that's why she entered the room. It looked like he was choking but he cleared it out himself.
• She then got Liam out of the bath, towelled him off and dressed him. This took place in the bathroom. Aiden and (her son)were playing in the living room at this time.
• Liam entered the living room, climbed on the couch and laid down on his pillow. Ms Garth finished dressing him as Aiden and(her son) were playing with each other.
• Liam cuddled his teddy bear on the couch and Ms Garth put a blanket over him. Liam had fallen asleep while Ms Garth had been dressing him. He was breathing and appeared to be sleeping soundly.
• Ms Garth slept on another single seater couch and checked on the children during the night.
• Ms Garth checked Liam at around 5am, he appeared not to be breathing and had his eyes open. She tried to wake him but got no response. She picked him up, tried to wake him by shaking him gently but again no response. She laid Liam on the floor and blew into his mouth four times trying to revive him. She then laid him on the couch and left to drive to his father's house.
• She expressed no idea how Liam had died but suggested that maybe he had swallowed water whilst he was in the bath earlier.

5. Another formal interview was conducted between Ms Garth and police officers on Saturday 27 June 2009. In summary Ms Garth stated:

• (her son) did not have a bath as he had a bath the day before.

• Aiden had a bath, when finished at about 8.30pm Liam got into the bath and Aiden and (her son) watched a movie.

• She heard a bang and thought Liam was sliding down the end of the bath into the water. She went into the bathroom and found that he was alright. She stated that Liam kept sliding off the bath into the water, he would sit and slide down into the bubble bath. He stayed in the bath by himself for about 20 to 30 minutes.

• She went in and checked upon him approximately every 5 minutes. On one occasion she entered the bathroom, found him lying under the water with his face above the water line in the bath. At that time there were not many bubbles in the water, his eyes were open and he was blinking.

• She saw no marks on him. She stated that marks found on Liam's body after the incident were present before he came to her house.

• She told Liam not to slide and went back out to the lounge room. When she returned she picked him up, he was still moving his arms but not talking or trying to talk he "wasn't himself". After this he appeared a lot different than he had been prior to his bath when he had been playing.

• She dried him off and dressed him. She stated he only had the clothes for him to wear and not pyjamas. She put a blanket over him and gave him a teddy bear.

• She noticed during the night that Liam was sound asleep. She woke up between 5 and 5.30am. She checked on Aiden and Liam and discovered Liam had his eyes open and was still curled up in the position he had been in when he went to sleep.

• She stated she was in shock and that she shook him but got no response, she tried to resuscitate him by putting him on the floor and tilting his head back, she blew into his nose and mouth, there was no response. She then left the address and travelled to Liam's father's address. Prior to leaving she put Liam back on the couch.

• She said that when Liam was in the bath she heard a bang as if he had fallen over, when she went in she found him face down in the bath and said he had obviously been sliding off the bath end face first. His face was under the water but he raised his head back up. He had been on his stomach but he was alright. After this incident she told him not to slide in the bath. It was the next time that she returned to the bath she found him lying on his back with his face out and above the water line. At that stage he was staring and blinking but didn't say anything. It didn't look like there was anything wrong. He put his arms up to her but didn't stand up, and she steadied him under the arms with him walking in front of her, he was moving his feet as they went out to the lounge room. He did seem as though he was "funny" on his legs.

6. A further police interview was conducted on 5 July 2009. In summary in this interview Ms Garth states:

7. A further explanation was provided in a letter to police from Ms Garth's solicitor, Ms Mary Anne Ryan. In this matter it's asserted on behalf of Ms Garth as follows:

8. A formal interview was conducted between the police and Ms Garth on 3 August 2009. In summary in this interview Ms Garth asserts:

• She stated that on the Friday night the twins had stayed she had drunk approximately 2 ½ tumbler size drinks of alcohol, she had felt tired after drinking this alcohol. She had smoked two "cones" and she had also taken other medication during the day. She denied that she was intoxicated.

• During this interview she adopted certain aspects of previous versions and said that inconsistencies in earlier statements were because she was in shock. When asked how Liam had sustained the visible injuries she stated she was not sure, but he may have received them when she was playing in the bath with him and when he was running and slipping, or when he was in the bath "mucking" around. She also stated she could have caused some injuries by scratching him when she was washing his hair. She specifically denied that she had in any way assaulted Liam.

• ( words deleted not for publication)

Despite the numerous inconsistencies of the above statements the common thread is that something occurred during Liam's bath that caused or contributed to his death.

(Words deleted - not for publication)

All of this evidence concerning what may or may not have occurred when Liam had his bath leads me to the conclusion that something more violent and more significant occurred than has been admitted by Ms Garth. Ms Garth has admitted to assaulting Liam, but I also consider that she used force against Liam whilst he was in the bath, that this may have been associated with trying to wash his hair and that this also may have involved Liam's head being under the water with a risk that water had entered his airways. Supporting evidence as to this was found by Forensic Pathologist, Dr Donald Ritchie, at the autopsy he conducted on 29 June 2009. Dr Ritchie attended the scene and observed Liam's body lying on the couch in the lounge room. At that time he noted numerous injuries on the body. He describes his autopsy findings as follows:

Dr Ritchie also described that at autopsy copious watery fluid came from Liam's nose and that he had also observed a watery type fluid from Liam's nose when he was moved at the scene. He says that at the conclusion of his autopsy and based upon his observations at the scene that it was his opinion that Liam had died from asphyxia and drowning and that this was secondary to an assault.

I surmise that based upon this opinion and also the factual matters set out above, a decision was made that Ms Garth be charged with murder. However, subsequent findings of the post mortem examination identified a material doubt as to this opinion as to the cause of death.

Apparently, subsequent to the post mortem, microscopic slides of heart tissue and brain tissue from Liam were forwarded to Dr Byron Collins, a Forensic Pathologist in Victoria. These were returned on 30 November 2009 with comment that there was an indication of an inflammation of the heart tissue. Having identified this apparent inflammation Dr Collins sought additional levels of each of these samples for further examination. Subsequent to discussions with Dr Collins, Dr Ritchie reviewed the same slides with Dr David Challis, Anatomical Pathologist at the Royal Hobart Hospital. Dr Challis concurred that the focal inflammation in the heart qualified a diagnosis of myocarditis but that the small blood vessel seen in the brain section was not pathologically significant. Following this, additional heart tissue samples were prepared for microscopic examination. Examination of this additional tissue revealed clear evidence of lymphocytic myocarditis.

Dr Ritchie described that myocarditis is an inflammation of the heart muscle and it occurs randomly within the heart. The condition is associated with arrhythmia and at times death and this this can occur at any time. Such arrhythmia can occur at rest or in stressful environments or in response to other physiological factors. The condition however is not necessarily fatal as in his experience people who have died of other causes are found to have myocarditis at post mortem, such condition not being responsible for the death. He describes that lymphocytic myocarditis refers to a condition caused most likely from a viral infection. Dr Ritchie also described the term of "dry drowning" as describing a situation where a body is removed from water with little or no fluid in the lungs, airways or stomach and in those cases there is an indication that some other condition has been the cause of death. In this case he accepted that if Liam had been pushed under the water the stress of this event on a heart affected by myocarditis could cause an arrhythmia. In the alternative, if Liam was held under the water he may have drowned without any contribution of the myocarditis. Or alternatively, there may have been a combination of both. He concluded that as this was a "relatively dry drowning" he believed that the myocarditis was relevant in some way to the cause of death. In summary, Dr Ritchie accepted scenarios such as an arrhythmia precipitated by stress of being held under the water, or the arrhythmia may have been initiated without external involvement of another causing Liam to slide under the water. He favoured either of these two options, believing that Liam had died in the bath. He did not accept the option that at some stage Liam had slid under the water in the bath, had got out of the bath or been helped out of the bath, dressed and then slept for a period before being found dead. He says that this scenario did not account for the copious amount of water that had been discharged from his nose at the scene and at autopsy as the normal reflex would have been that this water would have discharged once he was out of the bath. In summary, Dr Ritchie concluded that Liam died in the bath but he was unable to say as to the circumstances of that death. He believed that myocarditis was a contributing factor and death may have been as a result solely of the myocarditis or of a combination of drowning complicated by the involvement of the myocarditis. He says that he cannot say which is more probable. He also accepts that there is no direct evidence of the involvement of another person in Liam's death.

Given these changed circumstances an independent assessment was conducted of the forensic findings at post mortem by Professor Roger Byard from Adelaide. Professor Byard was provided all of the autopsy findings and details together with photographs at autopsy and at the scene and a DVD taken at the scene. He then prepared a report dated 24 March 2010 in which he addressed a number of issues. These issues and his comments are summarised as follows:

• Myocarditis -Myocarditis refers to inflammation of the heart with death of heart cells. This was identified in sections from Liam's heart. Myocarditis is a well known cause of sudden and unexpected death, with the incidents of lethal myocarditis in series of sudden paediatric deaths ranging from 9 to 17%. Although some children may have some symptoms and signs of heart failure, a significant number of cases will have non-specific clinical features, giving no indication of a primary cardiac problem prior to autopsy. Thus, Liam would not have necessarily appeared ill, or may only had what seemed to be a minor viral illness. Sudden death results from arrhythmia or acute cardiac decompensation.
  
  It must be emphasised that interpretation of the significance of myocarditis must be undertaken cautiously, as studies have also demonstrated genuine myocarditis in apparently well children who suffered sudden death was unrelated to any form of cardiac disease; ie, it is quite possible for someone to die with myocarditis rather than from it.

• Asthma - Review of microscopic sections of the lung showed a chronic inflammatory cell infiltrate around small airways (bronchiolitis) with scattered eosinophils and thickening of the bronchiolar basement membranes in keeping with a diagnosis of asthma.
  
  Asthma is characterised by episodic attacks of wheezy breathlessness due to narrowing of the small airways in the lungs triggered by a variety of materials including pollen, dust and infectious agents such as viruses. It is the most common chronic lung disorder of childhood in Australia. Although asthma is associated only rarely with fatal outcome, the incidents of asthma related deaths has been reported to be increasing.
  
  The mechanisms of sudden death in an acute asthmatic attack are not understood completely but include cardiac arrhythmias and asphyxia.
  
  It is unusual that there was no history, albeit even a very short one, of shortness of breath in Liam's case.
• Drowning - The history of Liam being found face down in the bath raises a possibility of drowning, although this can obviously be discounted if he was indeed removed from the bath and appeared fine afterwards.
  
  Unfortunately drowning can also be quite a difficult diagnosis to make at autopsy, as there are no diagnostic pathological findings. Essentially the diagnosis is one of exclusion that requires a detailed history of a victim being found in water with no potentially lethal diseases present, unless these have initiated the fatal episode. If death occurs in shallow water or in a bath, the possibility of an underlying natural disease, such as epilepsy or a cardiac problem, or inflicted injury, must all be considered.
• Petechiae and Asphyxia - The findings of pinpoint areas of bleeding (petechial haemorrhages) of the conjunctivae raises the possibility of neck or chest compression. Petechiae of the face and the conjunctivae are classical signs of venour engorgement with raised intravascular pressure. The resultant pinpoint bleeding may be seen in cases of strangulation, low suspension hanging and crush asphyxia. However, petechiae, particularly in small numbers, must be interpreted with caution as they may also occur in cases of viral or bacterial infection.
  
  External examination in cases of accidental or inflicted asphyxia may reveal markings around the neck or bruises corresponding to ligatures in hanging or ligature strangulation, or fingertip pressure in manual strangulation. However, in Liam¡¦s case the neck markings were limited to an oblique linear abrasion on the right side of the neck which did not have the appearance of a ligature mark or fingertip bruising. Although there are no bruises in the underlying tissues, small children may not necessarily bruise when pressure is applied to the neck.
• Epilepsy - The episode that Liam had in the bath on the evening before his death raises the possibility of epilepsy. However it would be very unusual for a child to die at the first manifestations of epilepsy. In addition, there were no neuropathological or toxicological findings to indicate an underlying cause.
  
  A variety of theories have been proposed to explain the occurrence of sudden death in episodes of epilepsy, including suffocation from bleeding, asphyxia, pulmonary oedema and cardiac arrhythmia.
• Injuries - A range of superficial injuries were also present in Liam. Whilst some of these may have been due to normal "wear and tear" from playing and while none were lethal, the pattern, number and distribution were more like that of an inflicted injury (ie, assault). None of the injuries were lethal.

Professor Byard concluded that this was a complicated case with a number of unanswered questions. He commented that the autopsy investigation and sampling had been most thorough, however the interpretations of the findings were complex. He therefore concluded as follows:

In his evidence Professor Byard explained that he was considering the pathological findings only in relation to his assessment as to a cause of death. He accepted that the surrounding facts can assist in reaching a more definite conclusion as to a cause of death. If certain facts were decided that could alter an opinion as to the cause of death. For example, if a finding of fact was made that Liam's head was held under water until he became limp and died, then he would be prepared to say that drowning was the cause of death, possibly with myocarditis contributing. He also commented that if the facts were that there was a sound heard of a bump in the bath and Liam was found limp and face up in the bath then the possibility was that he had slipped and hit his head, that he had become concussed and drowned. Finally, if there was no bump or noise but he was merely found in the bath, then drowning with a contribution of myocarditis was probable with the possibility that the swallowing of water may have triggered an arrhythmia.

Insofar as the other injuries and abrasions observed on Liam¡¦s body are concerned, Professor Byard commented that he was unable to determine their age and whether they had been inflicted at the same time, but if they had been then injuries were significant as they involved force being applied to a number of areas of the body. Finally, he was asked to comment as to the significance of the water like substance noted discharging from Liam¡¦s nose at the scene and also at autopsy. He commented that this finding can be consistent with myocarditis as the cause as fluid will build up in the lungs from the heart failure and this can appear similar to water.

The forensic medical evidence therefore does not permit a definitive finding as to the cause of Liam's death, nor does it establish that a person may have contributed to that cause of death.

Although I am not bound by the rules of evidence and determinations that I make are made upon satisfaction on the balance of probabilities, a finding that a person may have engaged in criminal conduct or extremely reckless or negligent conduct requires a high level of satisfaction upon the evidence.

This is demonstrated in the well-known passage from Dickson J in Brigenshaw v. Brigenshaw (1938) 60 CLR 36 at 361 and 362 where he said:

The background evidence and the evidence as to Ms Garth's conduct, her inconsistent and contrived statements as to what occurred that evening and her extremely unsatisfactory evidence before this inquest provide an indication that in some way she was involved or present at Liam's death. However, the medical evidence provides alternatives as to the cause of Liam's death, some of which would not involve the actions of another person. It is for this reason alone that I am unable to conclude that Ms Garth contributed to the cause of Liam's death. Throughout the investigation as to Liam's death Ms Garth has lied as to the factual circumstances, in order to minimise her involvement and contribution. Throughout her evidence at Inquest she maintained that she "could not remember" when asked questions central to what occurred on the night that Liam died. This was a dramatic circumstance in anyone's life and not one where a reasonable person would have such poor recall as to the events. The only other alternative is that she was so affected by marijuana, her opiate medication and alcohol, and that she cared for children in that state, and because of the level of the effects of any or all of these substances she could not recall next morning what she may or may not have done on the previous evening.

I therefore close this inquest leaving as undetermined the cause of Liam's death, but before doing so I once again express by sincere condolences to Liam's parents and family.

Dated: 15 day of February 2013 in the State of Tasmania.

Stephen Raymond Carey
CORONER