Judge queries 'public benefit' of retrial

Joby Anthony Rowe, 24, pleaded not guilty to one count of child homicide following the death of his daughter, Alanah Rowe, in Heathcote in 2015.

Jurors spent three days locked in deliberations after his trial concluded last week but were discharged on Wednesday afternoon after telling Justice Lex Lasry it would be “futile to go any further”.

Justice Lasry suggested to Crown prosecutor Fran Dalziel “it may well be that the Director [of Public Prosecutions] should consider the matter and weigh up whether there's a utility in the matter being conducted again”.

“I'm not expressing a view about that, but I think this is a case where that consideration ought to be given,” he said.

Justice Lasry said it was “a difficult case” and “the only one that I've come across where the case depends entirely on the inferences to be drawn from the medical evidence”.

“The case depends on the medical evidence and depends on inferences to be drawn from the medical evidence without there being anything else, in circumstances where clearly there is some dispute within the medical profession about those conclusions,” he said.

Justice Lasry made the comments despite also noting there was “clearly” a case to answer.

“No submission was made that there wasn't, and any submission that would have been made would have failed, but nonetheless I think the director should consider whether in his view there is a utility and a public benefit in the matter being run again,” he said.

“If his view is, of course, that there is, well that'll be the end of that, but I simply request that that consideration occur.”

Ms Dalziel agreed to pass Justice Lasry’s comments on to the DPP to “see what can be done in terms of reconsideration”.

Justice Lasry set a new provisional trial date for later in the year.