Jie Hua Yu looked blank when the police first asked her about playing the pokies. “Pokies?” she asked, in her uncertain English. “What – what do you mean?” It seemed she had been in Australia long enough to have discovered this consolation of the lonely, but not long enough to know its name in the local lingo.

It was midnight in a homicide squad interview room. Yu hadn’t slept for 36 hours. She was there because her son, 19-month-old Brian Yao, was in intensive care. The previous day, February 16, 2000, she had left him in a hot car for two-and-a-half hours while she played poker machines at a local hotel.

On the police video tape of that interview, played in court last week, Yu looked weary but relaxed. She even laughed a couple of times. It was if she didn’t yet understand the gravity of the situation: her son’s, or her own.

On February 22 last year, five days after that interview, doctors at the Royal Children’s Hospital pronounced Brian dead. Yu was charged with having killed him.

It seemed to be a different woman who appeared on a charge of manslaughter in the Supreme Court dock last week. This woman wept; not noisily, but often. Whenever the events surrounding her child’s death were raised, she cried, her face crumpling like a child’s. Then she would rub at her eyes with a handkerchief, fiercely, as if trying to scour away the grief.

The gambling problem that was to take her son’s life began long before he was born, a psychiatrist told the court. Yu, now 40, arrived in Australia from China in 1988 and married her husband, waiter Benny Yao, the following year. The psychiatrist said her “very significant” gambling difficulties began after she left work to have children.

The eldest of her three children was seven when Brian died; the youngest, three months.

Ruth Vine, deputy chief psychiatrist for the state of Victoria, said: “There was certainly an element of loneliness and lack of socialisation in Mrs Yu’s life, in that she had very little contact with non-Chinese-speaking people, particularly following the birth of her children and her removal from the workforce … the setting in which this initiated.”

The doctor said Yu was an intelligent woman whose problem had reached the point where she was almost constantly preoccupied by the thought of poker machines: “Although she probably only actually attended such venues two or three times a week, nonetheless the thought and the preoccupation, and a sense of anxiety and guilt and apprehension, was with her on a far more frequent basis.”
Dr Vine said problem gambling was classified medically as an impulse-control disorder, such as shoplifting. People suffering from it used gambling “as self-treatment for depression, looking for excitement, to calm down – it has all sorts of different (causes)”.

(For legal reasons, Dr Vine’s evidence was ruled not relevant and was not presented to the jury. The comments reported here relate to a voir dire examination before the judge, the purpose of which was to help determine the legal relevance of her medical evidence as to Yu’s state of mind.)

Dr Vine said Yu’s husband had become concerned about her gambling to the point where he had got rid of her Visa card.

That fateful Wednesday morning, Benny Yao was asleep after having finished work at 2am. Jie Yu got up about seven, fed Brian and his school-aged brother, and pottered about until it was time to drop her older son at school.

Then she returned home to get money for shopping. She entered the house briefly and took $150. When she returned to the car, Brian was asleep. So she decided instead to go to the Ferntree Gully hotel, which has 90 gaming machines.

“I was going to go in there for 20 to 30 minutes,” she told police through an interpreter. “… I thought, `I will just play for a while and if I can win $8 or $10 or something, then I can shop for more things’.”

She parked her red Toyota Camry in an area of the car park that had no shade and wound up the windows so Brian would not be abducted. She left him asleep, in his polycotton pyjamas, strapped into his child harness.

Inside, she “did one round” to see which machine was “good”. “Then I played with one machine for some time and then I didn’t win and then … I go and do the same thing with the other one.” She sometimes looked through a window to check the car, “but I didn’t go into the car to check … I thought that I was lucky and he was still asleep”.

In fact, Brian was developing heatstroke, a condition to which children are far more vulnerable than adults. Children’s bodies are not as effective at regulating their temperature and they have a higher metabolic rate. And small children, as the prosecutor pointed out, cannot remove themselves from safety harnesses or locked cars.

Scientists later determined from tests that if the temperature outside is 24.7, the car’s interior will be 35.1 degrees; and if it is 28.8 outside, the inside can reach 59 degrees. But Yu was inside in air-conditioning, unaware of the rising temperature or even the passage of time. Dr Vine said: “Mrs Yu described a state of mind at that time that is very common in persons who have a preoccupation with gambling in that she was entirely – entirely – focused on the activity at hand … and I think it’s recognised that the (environment) in which many poker machines are kept tends to be one where there is an encouragement for that focus to develop …

“I am not going to say she had an altered state of consciousness, but an extremely focused attention that was only cognisant, really, of the machine in front of her.”
To that extent, the doctor said, she was “unaware of her son or the car or the day”.

Reality returned with the arrival some time after 11.30am of her husband. Hotel staff saw him talking to her angrily in the foyer. A gaming-room attendant, Val Miles, told the court Yu was “certainly cowering” as her husband upbraided her. Yu later told police through an interpreter: “He said that I was having fun by myself and leaving our son in the car.” Yu said she thought she had been in the gaming room for only 20 or 30 minutes.

Mrs Miles said she watched the couple leave. When they reached the car, “the gentleman hit the lady across the head. They seemed still to be arguing”.

When the parents found the child unconscious, they took him straight to the local Angliss Hospital. Doctors said he was cyanosed (blue) and convulsing, with a dangerously high temperature of 42.3 degrees (a normal temperature is between 36 and 37.5 degrees).

Pathologist Matthew Lynch, who performed the autopsy on Brian, said: “(Heatstroke) is the end stage of the temperature going up and the body losing the capacity to bring it down. When it gets to that end point, most of the important systems of the body start to malfunction.” Dr Lynch said this involved severe brain injury as well as problems with the heart, lungs and kidneys. “And these problems will compound each other. The situation often just gets worse and worse.”

In his summing up, the prosecutor, Paul Coghlan, QC, built a quiet but inexorable case against Yu. He pointed out that love and negligence are not mutually exclusive; that negligence arises because we have a duty of care to others; and that the duty of care of a parent for a small child is one of the greatest. He said that Brian’s death was an inevitable and foreseeable consequence of his mother’s conscious actions, and that two-and-half hours was an inexcusable length of time to have left him in the car. He asked the jury to set a community standard on the issue.

He spoke soberly, without aggression. “There’s no joy in this case. There’s no joy for me as a prosecutor, no joy to say that this is a case in relation to which a determination has to made about a mother in these circumstances. (But) it’s about the enforcement of law as we understand it in this community.”

The defence counsel, Brian Bourke, appealed for the jury’s sympathy with Rumpolesque eloquence. He quoted at length the British writer G.K. Chesterton on his experience as a juror, including his dismay at the way lawyers and judges and policemen lose perspective: “`This is the reason for the jury system. Strictly, they don’t see the prisoner in the dock … They only see their own workshop…”

Mr Bourke suggested it was the gambling industry that should be on trial. The jury should remember the accused as a good and caring mother, he said.

“Put yourself in her position for one minute. She will live with it to the end of her days. Regardless of what is said by this jury, what verdict you return, she will bear that, and she needs no verdict of yours to appreciate and realise the enormity of this sort of conduct.”

The jury took only two hours to find Yu guilty. She has yet to be sentenced. Justice Bernard Teague indicated that he would impose jail only if it were necessary to allow Yu to access the supportive supervision available to those on parole.

In the end, the law had viewed the child’s death with gravity and the mother’s life with compassion.

First published in The Age.

Also see The End of The Affair.