Brown v The King - [2024] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA331/2023
[2024] NZCA 95

BETWEEN	TYSON SHANE BROWN Appellant
AND	THE KING Respondent

Hearing:	14 March 2024
Court:	Gilbert, Whata and Churchman JJ
Counsel:	S R Lack for Appellant J E L Carruthers for Respondent
Judgment:	4 April 2024 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Churchman J)

Introduction

Following a two week jury trial in the Auckland High Court, on 21 March 2023 the appellant, Tyson Shane Brown, was convicted of the murder of a two-year-old child, A.
The appellant now appeals his convictions on the grounds that:
(a)The trial Judge erred by failing to give an unreliability direction, pursuant to s 122 of the Evidence Act 2006 (the Act), in relation to the evidence of Ms T.
(b)There has been a miscarriage of justice as a result.

Background

At sentencing, the Judge summarised the facts.[1] In early February 2021, Ms T separated from her then fiancé who was also the father of her 26-month-old daughter, A. In mid-2021, Ms T moved into an address in Weymouth with A. Friends of Ms T, namely KF and JH, later moved into the property and lived in a sleep-out behind the main house.[2]
[1]R v Brown [2023] NZHC 1267.
[2]At [6]–[7].
Mr Brown had known Ms T some years prior, and they re-established contact. Mr Brown began to spend more time with Ms T occasionally staying nights at her address. He was seen by numerous people, including KF and JH, to be verbally abusive towards A. This included yelling at her to be quiet or she would “get it”, and to shut up.[3]
[3]At [7].
Ms T had also faced questions from family members about her care of A. This included inquiries on 22 July 2021 about a cut on the underside of A’s chin, which Ms T explained was from her falling in the shower. Ms T also struck A with her hand across her face and shoulder after A had walked in front of Ms T’s phone camera whilst she was recording a TikTok video on 22 October 2021. On 26 October 2021, KF took photos of A showing bruises, grazes and scratches on A’s face, cheeks, arms and back. On 29 October 2021, Ms T was also seen throwing A into the rear of her car after they were both tested for COVID-19.
On 29 October 2021, Mr Brown tested positive for COVID-19, which meant he was required to isolate at the Weymouth address together with Ms T and A.

The offending

On the morning of 31 October 2021, Ms T and one of the occupants of the sleepout sent a series of messages to each other, which included Ms T stating Mr Brown was stressed about the COVID-19 situation within the household, and that she and Mr Brown had been swearing at one another the previous day, with Mr Brown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v The King

Details

AGLC: Brown v The King [2024] NZCA 95
Case: [2024] NZCA 95
Decision Date: 4 April 2024 at 9.30 am

CaseChat Overview and Summary

Tyson Shane Brown appeals his conviction of murdering a two-year-old child, A, following a trial in the Auckland High Court. The court heard that Ms T, A’s mother, had separated from the appellant, the father of A, and subsequently moved to an address in Weymouth with A. Friends of Ms T, KF and JH, also moved into the property and lived in a sleep-out behind the main house. The appellant had known Ms T for some time and re-established contact with her. The appellant had been seen by numerous people, including KF and JH, to be verbally abusive towards A. Ms T had faced questions from family members about her care of A, including a cut on the underside of A’s chin and a strike to A’s face and shoulder. On 26 October 2021, KF took photos of A showing bruises, grazes and scratches on A’s face, cheeks, arms and back. On 29 October 2021, Ms T was also seen throwing A into the rear of her car after they were both tested for COVID-19. On the morning of 31 October 2021, Ms T and one of the occupants of the sleepout sent a series of messages to each other, which included Ms T stating Mr Brown was stressed about the COVID-19 situation within the household, and that she and Mr Brown had been swearing at one another the previous day, with Mr Brown “throwing shit around”. Shortly after 2.00 pm that day, KF heard noises coming from the main house, and messaged Ms T asking whether they were okay and later stating that she was worried. Ms T responded “yep” and queried what KF was worried about. At about 3.00 pm, Ms T and KF met outside the house when collecting a care food package that had been dropped off. Ms T appeared upset. She told KF that Mr Brown had been telling A off for something she did, and after Ms T had tried to calm him down he got angry and threw her into a wall. At about 3.43 pm, Ms T received a message from A’s father asking how A was and questioning why she had a bruised face in Ms T’s TikTok videos. Ms T assured him A was fine and that she had fallen off her slide. Between 3.51 pm and 4.21 pm, Ms T apparently called a COVID-19 public health service, leaving A in the care of Mr Brown while she was on the call. In his sentencing notes, the Judge inferred from the evidence that during this call, Mr Brown assaulted A, using considerable force either by striking her or striking her head against hard surfaces in A’s bedroom. The Judge noted there were three distinct and forceful impacts against her head across multiple planes, causing A to suffer widespread subdural haemorrhaging. She was later found to also have suffered bruising over much of her body, and compression fractures to her spine of the type commonly seen in children her age if they had been slammed forcefully down on their bottom. At 5.21 pm, Ms T advised that, for social distancing purposes, she had retreated to A’s bedroom. The Judge inferred this was the first occasion Ms T had checked on A. Both Ms T and Mr Brown commenced a series of Google searches from 5.23 pm which included “what happens if a babys lip has ripped from the inside” and “how long can a baby be concussed for”. Ms T did not call emergency services until around 8.01 pm. Emergency services arrived at 8.20 pm. A was taken to hospital and died shortly after midnight on 1 November 2021. The appellant argues that the trial judge erred by not giving a reliability direction to the jury in relation to Ms T’s evidence. The court found that Ms T’s evidence did not materially advance the Crown’s case and, in a number of respects, contradicted it. The Crown did not rely on Ms T’s evidence in any meaningful sense, except insofar as it was verified by independent evidence and went unchallenged by the defence. The court found that the trial judge’s decision not to give a reliability warning was justified. The appeal was dismissed.

Orders