Grieving family begs for answers after new evidence emerges

The grieving family of a toddler who a coroner found died as a result of suspicious injuries have been forced to plead with the Director of Public Prosecutions for action, despite coronial findings unearthing significant evidence about Baylen Pendergast’s death.

Grandmother Ruth and father Luke Pendergast holding a replica of Baylen’s favourite cap.Credit: Marlon Dalton / SMH

Baylen Pendergast, who was 21 months old, died after sustaining “non-accidental” head injuries in 2013.

Deputy NSW Coroner Derek Lee last week found fault with Tamworth Hospital’s treatment of the 21-month-old, writing that the hospital not only missed a brain bleed and skull fracture on a CT scan, but failed in its responsibility to report Baylen’s first suspicious injuries to authorities. Baylen died eight days after his discharge after an incident “that involved the application of significant non-accidental force”.

When this masthead asked the DPP last week if it would reconsider its position not to prosecute anyone given the evidence the coroner had unearthed, a spokesperson said “in the absence of a referral from a relevant agency or body, the matter is not presently with the DPP for further consideration”.

In a letter to the DPP, a copy of which has been obtained by this masthead, paternal grandmother Ruth Pendergast details the arduous 10-year journey for truth and the toll it has taken on Baylen’s father Luke and their extended family.

“We are dumbfounded that all the expert evidence heard at the Coroner’s inquest and the detailed Coroner’s finding report isn’t enough to have the person of interest charged with Baylen’s death,” she wrote.

“It has been almost 10 long years since we had to turn Baylen’s life support off. Baylen was a defenceless child that should have been safe in his own home, yet he wasn’t.”

Baylen was not in the care of his father or paternal grandparents when the injuries occurred.

This week, DPP director Sally Dowling, SC, via a spokesperson, declined to comment on the letter “while correspondence from the Pendergast family is under consideration”.

In 2018, the coroner halted Baylen’s inquest, referring the case to the DPP as he believed there was enough evidence for a jury to convict a “known person” over the boy’s death. In 2020, the DPP handed the file back without laying any charges.

“The cause of Baylen’s death was complications of blunt head injury resulting from at least two separate acts of trauma. It is most likely that these acts of trauma occurred on 17 and 28 November, 2013,” Lee wrote in his findings. “The injuries were the result of the application of significant force by another person or persons.”

Ruth Pendergast holding the locket containing a lock of her grandson Baylen’s hair.Credit: Marlon Dalton / SMH

The coroner wrote that, after his death, Baylen’s mother Zoe Merlin told friends she heard “a loud thump” in Baylen’s bedroom on the night the critical injuries occurred, and claimed that her boyfriend told her he had “kicked his toe” while putting the toddler back to bed and that is what accounted for the noise.

“Baylen suffered injuries on numerous occasions that no child should ever have to endure at the hands of another person. One of the most difficult things was sitting in the Coroners Court listening to expert witness statements as to the horrific injuries Baylen had sustained on numerous occasions,” Ruth said in her letter.

NSW Police detectives in Tamworth continue to investigate Baylen’s death, but the family hopes charges will be imminent.

“Ten years is too long to wait,” Ruth said. “He was a beautiful, innocent, defenceless child that tragically had his young life taken from him. We will never forget our final cuddles and sitting with Baylen whilst his life support was withdrawn.”