Hearing:	30 September 2024
Court:	Collins, Brewer and Osborne JJ
Counsel:	N P Chisnall KC and S J Watt for Appellant E J Hoskin and W J Harvey for Respondent
Judgment:	21 October 2024 at 11 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] In July 2019, Mr Sinclair had the responsibility of caring for his 10‑month‑old son, “CJ”. On 8 July, CJ was unsettled due to teething. In the early hours of the morning of 9 July, Mr Sinclair contacted his mother and told her CJ had rolled off a bed and was moaning. When Mrs Sinclair arrived, she found that CJ had stopped breathing and was “floppy”. Mrs Sinclair started CPR. An ambulance was called at about 4.36 am and police arrived soon thereafter. Mr Sinclair told the police that CJ had fallen down the side of a bed and hit his head on the carpet. CJ was flown to Christchurch Hospital’s Intensive Care Unit (ICU), where a scan revealed that CJ had suffered significant injuries.
[2] The injuries suffered by CJ comprised:
(a)injuries to his brain;
(b)a significant (ear to ear) skull fracture;
(c)subarachnoid bleeding;
(d)brain swelling; and
(e)retinal haemorrhaging.

[3]        Doctors also observed multiple bruises over CJ’s body, including to his scrotum and groin, face, forehead, behind his ear, on the back of his neck, down the middle of his back, under his chin, on his stomach, shoulder, upper arm and forearm, armpit and down his legs including behind his knees. Doctors also discovered a broken bone in CJ’s foot.
[4]        CJ was placed on life support but passed away on 10 July 2019. In his evidential video interview with police, Mr Sinclair maintained his position that CJ had rolled off a bed and hit his head on carpet.
[5]        Mr Sinclair was charged with having murdered CJ. He gave evidence saying that CJ had actually fallen down a flight of nine stairs. He accepted that his earlier explanation about the cause of CJ’s injuries was a lie.
[6]        Mr Sinclair was convicted on 16 November 2020 and sentenced by Edwards J on 19 March 2021 to life imprisonment with a requirement he serve a minimum period of 17 years’ imprisonment (MPI) before he is eligible to be considered for parole.[1]
[1]R v Sinclair [2021] NZHC 569 [sentencing notes].
[7]        Mr Sinclair appeals his conviction. Three grounds are advanced:
(a)Mr Sinclair’s right not to disclose a defence under s 32(1)(b) of the Evidence Act 2006 was breached when the prosecutor commented on Mr Sinclair’s failure to talk to his mother and a close friend about some of the injuries we have summarised at [3]. As we shall explain, some of those injuries pre-dated the brain injuries…

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 DAVID GRANT SINCLAIR AND THE KING

Details

AGLC: DAVID GRANT SINCLAIR AND THE KING [2024] NZCA 534
Case: [2024] NZCA 534
Decision Date: 21 October 2024 at 11 am

CaseChat Overview and Summary

The appeal in the case of David Grant Sinclair against The King was heard by the Court of Appeal of New Zealand on 30 September 2024, with the judgment delivered on 21 October 2024. David Grant Sinclair, the appellant, contested his conviction for the murder of his 10-month-old son, CJ, who died on 10 July 2019. The trial judge, Edwards J, had sentenced Sinclair to life imprisonment with a minimum period of 17 years before parole eligibility. Sinclair's appeal against his conviction was based on three grounds: the prosecutor's comments regarding his failure to disclose a defence, the trial judge's omission to instruct the jury on the necessity to assess the factual assumptions underlying expert evidence, and the trial judge's failure to caution the jury about the objectivity of two Crown experts.

The court began by addressing Sinclair's application to adduce new evidence from two doctors, Dr Jayamohan and Dr Sudhakar, who were experts in paediatric traumatic head injuries. The court found that the proposed evidence was not fresh and did not materially differ from evidence already presented by Professor Duflou, Sinclair's expert. Consequently, the application to adduce new evidence was declined.

Regarding the first ground of appeal, the court held that the prosecutor's comments on Sinclair's failure to disclose a defence did not breach s 32(1)(b) of the Evidence Act 2006. The prosecutor's remarks were directed at Sinclair's credibility rather than inferring his guilt, thus staying within the permissible bounds set by the statute.

The second ground of appeal argued that the trial judge erred by not instructing the jury to assess the factual assumptions underlying the expert evidence. The court found that the trial judge's directions were sufficient, as they clearly placed the responsibility of fact-finding on the jury. The court was satisfied that no miscarriage of justice occurred due to the absence of an explicit direction on assumed facts.

Lastly, the third ground of appeal contended that the trial judge should have cautioned the jury about the need for impartiality and objectivity from the experts. The court observed that the trial judge had appropriately responded to concerns about the experts' objectivity, ensuring the jury was aware of the need for impartial evidence. The court concluded that no miscarriage of justice arose from the absence of a tailored direction on expert impartiality.

In conclusion, the Court of Appeal dismissed Sinclair's appeal against his conviction, finding no grounds for a miscarriage of justice in the trial process. The application to adduce further evidence was also declined.

Orders