Duff v The Queen
[2020] NZCA 116
•24 April 2020 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA705/2018 [2020] NZCA 116 |
| BETWEEN | DONOVAN MICHAEL DUFF |
| AND | THE QUEEN |
| Hearing: | 8 April 2020 |
Court: | Gilbert, Simon France and Wylie JJ |
Counsel: | N M Dutch for Appellant |
Judgment: | 24 April 2020 at 12.30 pm |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
BThe application to adduce further evidence in support of the appeal against conviction is declined.
CThe appeal against conviction is dismissed.
DThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Following a trial by jury in the High Court at Rotorua, Mr Duff was found guilty of the murder of his nine-month-old daughter, Maija. The Crown case was that Maija died from blunt force head injuries inflicted by Mr Duff on the night of Friday, 11 March 2016, while she was in his sole care. Mr Duff was convicted and sentenced by Downs J on 18 October 2018 to life imprisonment. He was ordered to serve a minimum period of imprisonment (MPI) of 17 years.[1]
[1]R v Duff [2018] NZHC 2690 [Sentencing notes].
Mr Duff now appeals against both conviction and sentence. Mr Duff filed his appeal two days out of time. In the circumstances we grant an extension of time in which to appeal.
Grounds of appeal
Mr Duff raises the following grounds in support of his appeal against conviction:
(a)The evidence given by Professor Lori Frasier, an expert paediatrician called by the Crown, was substantially different to that foreshadowed in her formal written statement provided before the trial pursuant to s 82 of the Criminal Procedure Act 2011.
(b)Professor Frasier’s evidence was inadmissible in any event.
(c)There was insufficient evidence for the jury to be satisfied to the requisite standard that Mr Duff inflicted the head injuries with murderous intent.
Mr Duff does not challenge his sentence of life imprisonment. Nor does he dispute that s 104 of the Sentencing Act 2002 was engaged such that a 17 year MPI was required unless this would be manifestly unjust. However, Mr Duff contends that a 17 year MPI was manifestly unjust having regard to personal mitigating factors set out in a cultural report provided to the Judge at sentencing pursuant to s 27 of the Sentencing Act.
Crown case
The Crown case, the essential parts of which the jury must have accepted, was summarised by Downs J in his sentencing remarks as follows:
[4] On the evening of Friday, 11 March 2016, [Maija] was returned to your care. She had been with others for the day. She was well. Maija’s mother, your partner, was elsewhere this night. You and Maija were home alone.
[5] Overnight, you inflicted fatal injuries to Maija’s head. Your precise mechanism of force remains unclear. Only you know exactly what you did. However, expert evidence at trial established Maija suffered at least three instances of blunt force trauma to her head. The experts agreed “significant” force was required. One likened Maija’s injuries to those caused in road traffic accidents; another likened the force to a kick to the head by a horse.
[6] These episodes of trauma caused what were described as “devastating” injuries to Maija’s skull, and associated bleeding around her brain and base of the brain. The injuries would have caused either immediate or near-immediate unconsciousness. An expert of international standing said Maija would have been very unlikely to survive even if a neurosurgeon had been standing by ready to operate.
Defence case
The Judge also summarised the defence case in his sentencing remarks:
[8] You defended the case on the basis you did nothing to hurt your daughter, and her injuries might have been the product of accident. For example, falling from the bed. The experts firmly rejected accident as a reasonable possibility. [Trial counsel] defended you with vigour and care, but in truth, you had no defence.
Mr Duff elected not to give evidence but his recorded interview with the police on Sunday, 13 March 2016, soon after the events occurred, was played to the jury. In this interview, Mr Duff confirmed that Maija spent Friday, 11 March 2016 in the care of a relative. She was returned to Mr Duff’s sole care at about 6 pm that night. Mr Duff said she was “a little bit grizzly” so he placed her on the bed and gave her a bottle of formula. Mr Duff said he went back outside to split firewood. When he came back inside, he found Maija had rolled off the bed and was on the floor crying. Mr Duff said he picked her up, calmed her down and placed her back on the bed. He said he did not notice Maija had any injuries at that stage, apart from a red line across the top of her lip. Mr Duff said Maija then dozed off and he “pretty much just kicked back by her”. Not long after that, Mr Duff said Maija “had a couple of spews”. He estimated this would have been around 9 or 10 pm. He said he then gave her water, milk powder and Milo. Mr Duff said he was concerned about the vomiting, so he sent a text to his partner, Maija’s mother. He did not get any reply.[2] Mr Duff said he placed Maija on the couch with pillows and a blanket and then cooked himself a meal. After that, he lay down by her and dozed off. He said he checked on her a few times when he woke during the night and she looked “alright”. When he woke for the last time, he noticed phlegm coming from Maija’s nose and mouth. He said he attempted to resuscitate her but could not find a heartbeat. He put her in the car and drove to where he thought his partner might be staying, leaving around 5.40 am. Finding she was not there, he drove to his sister’s house where he found his partner and told her that Maija had died.
[2]Police were unable to find any evidence such a text was sent by Mr Duff.
When Mr Duff was asked whether he could recall any other occasions when Maija may have been injured, he answered that about two weeks before, while he was pushing her down the back steps, he had forgotten that Maija was unstrapped, and she had fallen out of her walker face first onto the pavement. He said Maija sustained grazes to her face from this incident.
Mr Duff was asked what he thought had happened to cause Maija to stop breathing. He replied:
My gut feeling was have I fucken squashed her again by being on top of her or yeah, was it the fall.
The comment — “squashed her again” — refers to another incident on the preceding night, Thursday, 10 March 2016, when Mr Duff said he woke up to Maija “grizzling and screaming” because he was “smothering her”. He explained he had rolled on top of her in his sleep.
Was Professor Frasier’s evidence admissible?
We address this issue first because if Professor Frasier’s evidence was inadmissible it will be irrelevant whether her evidence at trial went materially beyond that foreshadowed in her written statement.
Professor Frasier is an eminent paediatrician based in the United States. She has some 30 years’ experience as a specialist in the evaluation of infants, children and adolescents who are suspected of having been abused. Over the course of her career, Professor Frasier has personally evaluated thousands of children presenting with concerns about physical abuse. She has published review articles and research studies in the evaluation of child abuse, with a recent emphasis on medical conditions related to abusive head trauma. Professor Frasier has served as chair of the executive committee of the American Academy of Paediatrics Section on Child Abuse and Neglect. She has also served on the board of directors of the American Professional Society on the Abuse of Children and the Child Abuse Sub-board of the American Board of Paediatrics. The American Board of Paediatrics is tasked with ensuring the competencies of all Board-Certified paediatricians in the United States and Canada. In 2017, she was elected for a two‑year term as Vice President of the Ray E. Helfer Society, an international honorary society of physicians dedicated to the care of abused and neglected children. After serving two years as Vice President, Professor Frasier will serve as President of the Society. Professor Frasier not only practises in paediatrics, she has lectured internationally on the topic of child abuse and abusive head trauma.
Professor Frasier was one of three experts called by the Crown to give evidence about the injuries Maija sustained and their likely cause. The other two experts were Dr Dianne Vertes, the forensic pathologist who carried out a post mortem examination of Maija, and Professor Colin Smith, a neuropathologist.
Professor Frasier’s written statement included the following key passages:
In my opinion Maija was subject to both contact forces (blunt force trauma) and acceleration/deceleration trauma as evidence[d] by the diffuse subdural hematoma. She has unexplained bruises on her jaw, her anterior torso and upper extremities. She had bruising of her face, neck and upper extremities. These injuries are typical of abusive injuries when a child is grabbed at her jawline or struck on her chest and grabbed around her arms. She has a remote frenula tear that suggests a blow to the face or pushing something forcefully into her mouth. Scleral hemorrhages and petechial hemorrhages of the right eye suggest increased intra thoracic pressure caused through chest squeezing or a component of manual suffocation.
This constellation of injuries is not compatible with an accidental asphyxiation. Asphyxiation does not result in subdural or subarachnoid hemorrhages. Suffocation also does not cause retinal or optic nerve sheath hemorrhages. The overlying incident described on Thursday night by Mr. Duff was not the cause of her final injuries as Maija was reportedly normal all day Friday. Also, the injuries are NOT compatible with accidental asphyxiation on the morning she was found deceased.
The injuries that Maija suffered are also not compatible with the short fall that was described as occurring the night of 11 March. Short falls are extremely unusual causes of death. In this case the facts that are contrary to a single short fall are: The diffuse subdural hemorrhage, multifocal subarachnoid hemorrhage and multi focal subgaleal hemorrhage. An infant can fall and strike the heard on a hard surface, this is considered a contact injury. These rarely result in injuries of any significance and often result in no injuries. Injuries that occur from a short fall may be a skull fracture and even a localized subdural. Maija had multiple subgaleal hematomae (bruising under her scalp) which represent multiple impact or blunt force injuries and are not consistent with a single fall. The fall from her stroller that occurred two weeks prior would have no bearing [on] the injuries that ultimately caused her death.
Maija would have been quickly, if not immediately symptomatic following the injuries that resulted in her death. Those symptoms would have included altered mental status, such as loss of consciousness or an abnormal state of consciousness where she would not have responded normally, as a 9 month does, to the environment around her. She may have vomited, or had a seizure. Her brain was swelling and she had evidence of global hypoxia. As her brain continued to swell, she would continue to deteriorate, resulting finally in cardiac arrest and death. She would not have recovered consciousness or normal behaviour at any time following the event. A caretaker would realise immediately the child was in distress and not normal as a result of their actions. Although the amount of time she survived following the injuries is unclear, she certainly would not have been conscious and acting normally. She could have been allowed to continue to deteriorate after her injury but would never have looked “alright” with poor color and poor muscular tone. Any individual who had spent much time with this 9 month old would have known she was in distress and abnormal. Not seeking care for these symptoms also contributed to her death from the head injury. She may have survived if medical care had been obtained promptly. She was still warm when emergency services responded to her suggesting she had not been deceased for very long, as an infant will quickly lose body temperature following death.
…
In summary, Maija had evidence of blunt force head trauma as well as inertial head trauma (acceleration/deceleration), bruising that was indicative of child abuse, old frenum tear that was likely caused by abusive behaviours, and she was denied the essentials of medical care that could have provided some opportunity to save her life. Her symptoms would have been immediate, following her head trauma. The retinal hemorrhages and optic nerve sheath hemorrhages as described are also most compatible with head trauma, and without a history to support any accidental injury other than the fall from the bed, the most likely explanation is Abusive Head Trauma (blunt force, craniocerebral head injury, inflicted).
The admissibility of Professor Frasier’s evidence was challenged during the course of the trial, shortly before she gave evidence. It was submitted that Professor Frasier was not qualified to give her evidence because her expertise is based on the observation of living children, not those who have died. Downs J rejected that submission. He was satisfied that Professor Frasier was well-qualified to give evidence about the nature of Maija’s injuries and their likely cause.[3]
[3]R v Duff HC Rotorua CRI-2017-069-543, 13 June 2018 (Ruling Nos 2 and 3).
Mr Dutch, who was not trial counsel, repeats the submission that Professor Frasier was not qualified as an expert able to express an opinion on the topics covered by her evidence. This is said to be because Professor Frasier only has expertise in examining live children, has no expertise in forensic pathology, did not see Maija while she was still alive, did not have access to Maija’s developmental history, and did not examine her during the autopsy. This is an extremely ambitious submission. We have already summarised Professor Frasier’s impressive qualifications and experience. Professor Frasier offered a useful perspective, different to that of the pathologists. In the course of her professional work, Professor Frasier sees live children who have sustained injuries from falls. Her experience, accumulated over her many years of practice, enables her to express an expert opinion about the type of injuries caused by short falls. By contrast, pathologists examine people who have died from falls. They reason backwards that the fatal injuries observed could not have been caused by a short fall. Like Downs J, we have no hesitation in accepting that Professor Frasier was well‑qualified to express the opinions she gave as an expert witness within s 25 of the Evidence Act 2006.
Mr Dutch next argues Professor Frasier’s evidence was “prejudicial and speculative” and written to address issues in North American jurisdictions which have different elements to their culpable homicide charges than New Zealand’s murder/manslaughter dynamic. He suggests that Professor Frasier’s approach effectively shifted the onus of proof onto the defence. Mr Dutch also complains that Professor Frasier “drew a conclusion based on reports from witnesses” — for example that Maija was “reportedly normal on the day prior” to her death. He says the jury would need to draw their own conclusions on this evidence.
Obviously, all questions of fact were solely for the jury. Professor Frasier’s evidence was her professional opinion based on facts to be proved by other witnesses. This is the same as any expert evidence in any trial. It is not accurate to describe her evidence as “speculative”. Professor Frasier’s evidence was not directed to issues arising in other jurisdictions, rather, it was directly relevant to the matters in issue here. Leaving aside the question of murderous intent, the onus was on the Crown to prove that the serious head injuries sustained by Maija caused her death. The Crown also had to exclude the reasonable possibility that such injuries could have been caused by some means other than by Mr Duff deliberately inflicting them. The onus of proving this never shifted from the Crown and Professor Frasier’s evidence was not predicated on any other basis. While it could be said that any evidence that supports the Crown case is “prejudicial” to the defence, this does not of itself make the evidence inadmissible. We see nothing in any of these points.
Mr Dutch also criticises Professor Frasier’s evidence because the chronology she relied on “ignored the comment that the child was left alone for extended periods of time”. Mr Dutch contends that the Professor’s evidence “relies upon the logical fallacy that if something is not witnessed by an independent person it can be excluded”. These are not proper criticisms of the Professor’s evidence. We repeat, as with any expert, her opinion is necessarily based on assumed facts that will be proved by other witnesses and ultimately for the jury to assess. Apart from the fall down the steps two weeks earlier, the fall from the bed and the possible smothering event, there was no suggestion by anyone of any other possible cause of the severe head injuries Maija sustained that night while she was in Mr Duff’s sole care. There was no evidential foundation for any other factual scenario that could have caused the injuries and therefore nothing else for Professor Frasier to consider.
Mr Dutch is critical of Professor Frasier’s written statement for not referring to any research to support her finding that Maija’s bruising was unexplained or abusive, particularly New Zealand research. He also suggests Professor Frasier purported to make a “conclusive finding” in her written statement that these bruises were abusive without referring to “any studies which consider accidental or non‑accidental injuries” suffered by children. The Professor made no such “conclusive finding”. She stated that the bruising on Maija’s face, jaw, neck, anterior torso and upper extremities were “typical of abusive injuries when a child is grabbed at her jawline or struck on her chest and grabbed around her arms”. Professor Frasier was clearly able to give this evidence based on her vast experience and without needing to refer to any particular studies.
In any case, these bruises had only peripheral relevance because it was agreed by all the experts that Maija’s death was caused by the injuries to her head, not by the bruising to her face and body. The Judge gave clear directions to the jury to this effect in his summing up, ensuring their attention was appropriately focused on the head injuries which were said to have been causative of death:
In relation to Maija’s internal head injuries, the experts essentially agree. But in relation to her minor injuries, there is less consensus. Only Professor Frasier attaches any real significance to the injuries to Maija’s jawline, neck and chest. This likely reflects her particular expertise. Dr Vertes said she could not exclude the possibility the chest injury had been caused by CPR; Professor Frasier has a different view. No one saw these external injuries before the post-mortem, but in fairness to those concerned, their focus was elsewhere. And of course, the minor injuries did not cause death. With all that in mind, you may wish to put the minor injuries to one side and focus instead on the internal head injuries. The experts agree these required significant blunt force trauma, caused Maija’s death, and would have done so quickly.
Finally, Mr Dutch takes issue with Professor Frasier’s statement concerning whether Maija might have survived had medical care been obtained promptly. Mr Dutch suggests that Professor Frasier did not take into consideration Mr Duff’s parenting abilities (having been incarcerated most of his life), the ambulance system in Turangi or how long it might have taken to get Maija to Starship Hospital in Auckland. These points could have been explored in cross‑examination and been the subject of submissions to the jury. However, these matters could only affect the weight that might be attached to the evidence, not its admissibility. In any event, this evidence was of peripheral relevance only given Mr Duff was not charged with failing to provide the necessaries of life.
We have no doubt the Judge was correct to conclude that Professor Frasier’s evidence was admissible. This ground of appeal fails.
Was Professor Frasier’s evidence at the trial substantially different from her pre‑trial written statement?
Mr Dutch submits Professor Frasier’s evidence at trial materially differed from that contained in her written statement in three respects. These are her references to:
(a)injuries suffered by children in the Amish community after falling through a hay hole six or seven metres high or being kicked in the head by a horse;
(b)the TEN FACES acronym for the location of bruises and injuries in children that are indicative of child abuse or non-accidental injury. TEN denotes Thorax, Ear, Neck. FACES denotes Frenulum, Angle (of the jaw), Cheek, Eyelid, Sclera (of the eye); and
(c)the effect of methamphetamine on Maija given that a low level of methamphetamine was detected in her urine.
Mr Dutch submits this evidence was novel and could not be tested effectively at the trial. We disagree.
As we have already noted, the onus was always on the Crown to prove that the serious head injuries caused Maija’s death and that these were deliberately inflicted by Mr Duff with murderous intent. In discharging that onus to the required standard, the Crown needed to exclude the reasonable possibility that Maija sustained the head injuries through accident, for example, the fall from the bed or the smothering incident. The written statements provided prior to the trial addressed all of these issues.
Fall injuries
In her written statement, Professor Frasier expressed her opinion that the three serious head injuries — diffuse subdural haemorrhage, multifocal subarachnoid haemorrhage and multifocal subgaleal haemorrhage — were not compatible with injuries that might be sustained in a short fall from the bed. She said that even if an infant’s head strikes a hard surface in such a fall, this rarely results in injuries of any significance.
In her evidence-in-chief at trial, Professor Frasier was asked whether she could comment, as Dr Vertes and Professor Smith had done, on the amount of force likely required to cause the type of head injuries sustained by Maija. It was in this context that the Professor related her experience of seeing many children with head trauma of comparable severity. Examples she gave included children who had fallen from a second storey window, through six or seven metre barn holes (noting her community includes a large Amish population), been kicked in the head by a horse, or involved in motor vehicle crashes. By contrast, she said that children tolerate common falls in the home extremely well.
Mr Dutch argues that there was “no realistic way” for the defence to challenge the further evidence, not signalled in the written statement, about these types of accidents. Further, it was not relevant because this case did not involve a horse, a haybarn, or a child capable of climbing to the second storey of a building. Mr Dutch complains that there was no evidence about the design of Amish barns, hay holes, the nature of the surface on the floor of an Amish haybarn including any cushioning, or the normal height of an Amish haybarn. Further, there was no evidence about the effects on nine-month-old children of being kicked on the head by horses.
It would have been plain to everyone from the outset that the degree of force required to cause Maija’s head injuries and whether these could have been the result of an accidental fall from a bed would be key trial issues. Professor Smith, a consultant neuropathologist at the NHS in Scotland and a professor of neuropathology at the University of Edinburgh was one of the witnesses who addressed these issues directly. He was clear that these types of injuries require “significant levels of force”. He said they do not see significant head injuries from low level falls. While it was not possible to give an exact fall height required to sustain fatal head injuries, he said fatal outcomes can start to occur when children fall three or four metres, for example, from the first storey of a flat onto a road. He said he typically sees this type of pathology in road traffic accidents. Professor Frasier’s examples are not dissimilar, indeed two of them were the same. She too referred to head injuries sustained in a fall from a second storey window and in road accidents. The other examples of accidents involving sufficient force to cause these types of head injuries were broadly comparable — falls from a six or seven metre haybarn or being kicked in the head by a horse. These examples did no more than illustrate the same general point that Maija’s head injuries were not consistent with a fall from a bed.
Trial counsel tested in cross-examination whether Maija’s head injuries could have been caused accidentally by a fall from the bed, possibly as a result of her head striking shoes or other items on the floor. That prospect was firmly rejected. Detailed evidence about such matters as the design of Amish haybarns was not required in order to test the basic question of whether there was a reasonable possibility Maija’s serious head injuries could have been caused by an accident in the home or whether the force required was greater by an order of magnitude.
TEN FACES
As we have seen, Professor Frasier referred in her written statement to the bruising to Maija’s jaw, anterior torso, face, neck and upper extremities and stated that these were typical of abusive injuries. She also referred to the frenula tear suggesting a blow to the face or something having been forced into Maija’s mouth. Finally, she referred to scleral and petechial haemorrhages of the right eye which she considered were not compatible with accidental asphyxiation.
While it is correct that Professor Frasier did not mention the TEN FACES acronym in her written statement, we consider the significance of this is greatly overstated by Mr Dutch. It was clear from the written brief that the Professor considered the location and combination of these bruises suggested they were non‑accidental and typical of abusive injuries. Reference to the acronym does not alter this opinion, nor does it enlarge her evidence in any material way. Trial counsel cross-examined Professor Frasier about each of these injuries, suggesting innocent explanations, particularly that they may have been caused by the administration of CPR. The pathologist, Dr Vertes, was also asked about whether CPR could account for these bruises and she agreed this could not be ruled out. It is not clear to us how the cross-examination (which substantially achieved its desired effect on these issues) would have been any different if the acronym for the location of the bruises had been referred to in the written statement rather than merely describing that location, as was done. We have already made the additional point that these injuries were only of peripheral relevance leading to the Judge’s clear directions in summing up — “the minor injuries did not cause death. With all that in mind, you may wish to put the minor injuries to one side and focus instead on the internal head injuries.”
Application to adduce further evidence on appeal
Mr Duff applies to adduce further evidence on appeal, being an affidavit of Dr Terence Donald, a retired paediatric forensic physician who formerly consulted to Child Protection Services at the Women and Children’s Hospital in Adelaide, Australia. Dr Donald has clinical experience in forensic medical assessments of infants, children and adolescents referred to the Child Protection services by the state statutory welfare agency and the police in cases of suspected physical or sexual abuse.
Dr Donald covers three topics in his affidavit addressed under the headings — diagnosis of child abuse, child’s developmental age, and studies of older children. On the first topic, “diagnosis of child abuse”, he makes these points with reference to Professor Frasier’s evidence:
(a)A paediatrician cannot definitively diagnose child abuse. Acronyms such as “TENNS” relate to population based studies of children presenting with unexplained bruises, particularly involving the face, head and chest. There is no doubt such bruising should be considered suspicious. The more uncommon the bruising is found to be, the greater the concern “it has not been caused by the child to themselves, from some self-inflicted incident but may have been inflicted by another person”. However, whether such injuries have resulted from child abuse should be determined by a court.
(b)Dr Donald understands that the term “reasonable medical certainty” is used in the American legal system. If an expert witness concludes with reasonable medical certainty that a child’s injuries have resulted from child abuse, this opinion may be put before the court “as factual”. In Dr Donald’s opinion, this exceeds the role of an expert witness whose evidence should be confined to evidence of their clinical assessment, their evaluation of investigations undertaken and any explanations to account for the injury from witness statements and suspects.
(c)Maija suffered some type of impact head injury and there was more than one impact. He says this was as far as an expert can go when giving evidence.
(d)In Dr Donald’s opinion, one explanation for the injuries was a physical assault. The mechanism that caused the death was either an unexplained high force head injury that may have involved another person assaulting the child or “there might have been some other interaction which [was not] an assault but led to the same outcome”. He says this question would need to be determined by the court on the basis of all the evidence before it.
(e)Dr Donald says that Professor Frasier “said that this is definitely a case of child abuse” implying intentional injury to the child. In his view, it is not the role of a paediatrician to make that kind of decision, rather it is the responsibility of the court.
(f)Finally, Dr Donald expresses his opinion that “a doctor cannot talk about intent or conclude categorically, as [Professor] Frasier has, that child abuse has occurred”.
On the topic of “[c]hild’s developmental age” Dr Donald says this:
Another problem with the evidence at trial was that the child’s developmental stage was not apparently considered. For example, if the child could pull herself to stand then at the distance her head moved in a fall from the bed (the bed height measured at 71 cms) should have been calculated from the child’s ‘standing head height’. This would be equal to the bed’s height of 71 cm plus the child’s height (76 cms) which leads to the child’s head falling from 147 centimetres. A fall from this height could produce sufficient angular acceleration force to produce a subdural haematoma.
I agree a single fall would not have accounted for all the impact injuries to the child but some of these could have occurred separately to the mechanism of injury that caused the subdural haematoma. The nature of the injuries means they could have occurred at different times by unrelated mechanisms. In other words it is possible that not all the bruises related to the fatal injury.
Dr Donald concludes his affidavit with a paragraph under the heading “Studies of Older Children”:
The evidence about injuries to older children is not relevant to a nine month old and wasn’t relevant to this trial. A two year old, or older child, is mobile, is capable of getting into situations where accidental injuries can occur such as kicks from horses or falling out of haybarns. A nine month old child is not able to move much more than crawling and the evidence about the older Amish children and falls and kicks is simply not relevant to the issue before the Court and was simply a distraction.
We decline to admit this affidavit. The evidence is neither fresh nor cogent.[4] Most of it is inadmissible.
[4]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
The evidence is plainly not fresh. Evidence of this kind could have been obtained for the trial. Mr Dutch does not contend otherwise. There is no suggestion of trial counsel error and there has been no waiving of privilege.
More significantly, the evidence is not cogent. Questions of relevance and admissibility of evidence are for the court, not for expert witnesses to express views about. What may or may not happen in the American legal system is not relevant to this case. Contrary to Dr Donald’s understanding, Professor Frasier did not say “this is definitely a case of child abuse”, she did not make a “definitive decision” about the cause of the injuries, nor did she “conclude categorically that child abuse had occurred”. Nor did Professor Frasier “talk about intent”. The jury made all determinations of fact, consistent with Dr Donald’s expectation of what should occur.
There was no suggestion that Maija, at nine months of age, was able to stand on the bed. As Dr Donald himself states in the next section of his affidavit, “a nine month old child is not able to move much more than crawling”. In any event, Dr Donald acknowledges that a single fall could not account for the multiple serious head injuries Maija sustained.
Methamphetamine
Professor Frasier’s written statement dated 6 March 2017 did not refer to the fact that traces of methamphetamine had been found in Maija’s urine. This fact was included in an agreed statement of facts dated 15 June 2018 prepared pursuant to s 9 of the Evidence Act. Maija’s mother gave evidence at the trial, which was not objected to, that she and Mr Duff were both using methamphetamine in the period leading up to Maija’s death. Professor Frasier was asked to comment on whether “methamphetamine may have affected Maija”. The Professor discounted this as having contributed to Maija’s injuries:
AIt may have made her a little grizzly, as they say in New Zealand, or fussy as they say here. A little bit more irritable than her usual self. It can kill if in high doses, it will cause seizures and death, it is a neurological stimulant, it’s taken to get stimulation and so it might make her a little irritable and not sleep very well.
QWould it have contributed in any way, to any of the injuries that she had?
ANo.
The defence cannot have been taken by surprise by this evidence. The presence of methamphetamine was an agreed fact going into the trial. The Professor’s evidence confirmed what appears to have been common ground that the traces of methamphetamine found in Maija’s urine would not have contributed to her injuries. There was no cross-examination on this point. The Judge emphasised the limited relevance of this evidence in his summing up:
You heard uncontested evidence Melina Puhi, Maija’s mother, and Mr Duff, Maija’s father, used methamphetamine. The reason — and only reason — you heard that evidence is because methamphetamine was found in Maija’s system after her death. I direct you to take special care with the evidence of Mr Duff’s consumption of methamphetamine.
To elaborate, there is no evidence Mr Duff used this drug in connection with Maija’s death, or that the drug had any involvement in Mr Duff’s alleged murder of Maija. You must not reason that because Mr Duff used methamphetamine from time to time, it is therefore more likely he assaulted Maija or had criminal intent. Nor may you engage in any like reasoning. To do so would be to engage in speculation, something I have already warned you against. It would also be unfair to Mr Duff.
Again, this evidence was introduced only because the drug was found in Maija’s system. It has no other relevance. Is that clear? You’re nodding again; thank you.
Conclusion
In summary, we do not accept that Professor Frasier’s evidence was materially different from her written statement or that it could have taken the defence by surprise. We accept Ms Johnston’s submission for the Crown that no issue of non-disclosure or unfairness arises out of the supplementary evidence of Professor Frasier, none of which was objected to at the time. This ground of appeal fails.
Was there sufficient evidence of murderous intent to support the verdict?
Mr Dutch submits that even taking the evidence at its highest for the Crown, the only available verdict was manslaughter, not murder, because there was insufficient evidence of murderous intent. In other words, he contends the verdict was unreasonable. He says the “best case the Crown has is that some unknown mechanism of death caused the child to die and [Mr Duff] was somehow responsible for this mechanism”.
Mr Dutch accepts there was sufficient evidence to satisfy the jury beyond reasonable doubt that Maija died from head injuries deliberately inflicted by Mr Duff after he assaulted her in some unknown manner on at least three occasions. This much is clear beyond argument once the possibility of the injuries being caused in an accident was excluded beyond all reasonable doubt. The additional element of murderous intent required the jury to be satisfied in this case of three things, namely that when Mr Duff assaulted Maija, he:
(a)intended to cause her bodily injury;
(b)knew the injury was likely to cause death; and
(c)knew there was a real risk Maija could die as a result.
Mr Dutch is of course correct that the Crown could not prove the precise nature of Mr Duff’s assaults. However, the questions posed above did not require proof of this. The jury heard evidence from three leading experts on the number and nature of the serious head injuries Maija sustained in the attack and the degree of force likely required to cause these injuries. Dr Vertes, the pathologist, was clear that Maija died from the multiple head injuries caused by blunt force trauma. The injuries were sustained shortly prior to her death and included five bruises in the deep tissue of her skull, subdural bleeding around both sides of her brain and bleeding at the base of her brain. Professor Smith, the neuropathologist, said the fact that the blood vessels between the dura and the surface of the brain had been ruptured indicated the type of sheer force caused by rapid acceleration/deceleration. He considered the injuries were consistent with those caused by significant levels of force such as can occur in serious road traffic accidents or in high impact falls (such as from a second storey or higher onto a road). We have already summarised Professor Frasier’s evidence, which was to similar effect.
We are satisfied it was open to the jury to draw available inferences from this evidence, applying their collective common sense, and conclude beyond a reasonable doubt that the answer to each of the three questions (required to establish murderous intent) was “yes”. We note that the Judge considered the Crown case to be so strong as to remark at sentencing that “in truth, [Mr Duff] had no defence”.[5]
[5]Sentencing notes, above n 1, at [8].
This ground of appeal also fails. The conviction appeal must accordingly be dismissed.
Was the 17 year MPI manifestly unjust?
Sentencing judgment
It is accepted that s 104 of the Sentencing Act was engaged because of Maija’s vulnerability as an infant. As a result, the Judge was obliged to impose an MPI of at least 17 years unless it would be manifestly unjust to do so. The Judge was not persuaded that there was anything in the s 27 cultural report, which detailed Mr Duff’s personal background, that could displace the presumptive statutory minimum.[6] However, the Judge acknowledged the disadvantages Mr Duff suffered in his upbringing and took this into account in rejecting the Crown’s submission that the MPI should be higher because of Mr Duff’s history of serious violent offending.[7]
Cultural report
[6]At [27].
[7]At [31].
The cultural reports describes Mr Duff as a 42-year-old Māori male whose whakapapa is to Ngāti Tūwharetoa iwi. Due to his mother’s heavy drinking at the time of his birth, he was placed under the care of, and brought up by, his grandparents who lived in Palmerston North. When Mr Duff was aged 11, his grandfather retired and moved the whānau to Turangi. Mr Duff is described as having received a stable upbringing and his needs were more than adequately provided for.
Mr Duff did not know his biological father, but he continued to have contact with his mother, who he loved. She was not a good role model and she and Mr Duff drank alcohol and smoked cannabis together. Mr Duff began getting into trouble at age 15. In an attempt to address this concern, his grandfather took Mr Duff out of school and arranged work for him at a friend’s sawmill. This is when Mr Duff started breaking into cars, finding he could make more money this way. He began associating with anti-social peers and embarked on a path of juvenile delinquency. Mr Duff described this period in this way:
It was hard work [at the sawmill]. I found, I was breaking into cars. I was making more money breaking into cars.
…
It was just I suppose being young, some of the friends, new relationships I developed, quite mischief, smoking marijuana, sniffing glue, trying all sorts of stuff, getting up to mischief.
…
For all my mischief, I got a corrective training sentence for 3 months. I ended up in Tongariro prison for a couple of months. I just turned 16. After that I pretty much carried on the same path.
At 18 I got a jail sentence for 3 years 9 months for aggravated robbery.
Mr Duff said this set him “on a path of violence and repeat offending”. After being released from prison when he was around 20 years old, Mr Duff said he met his then partner, who became pregnant. He then “did another silly aggravated robbery and ended up in jail for 4 years”. It was during this period of incarceration that he started prospecting for the Mongrel Mob. When he was released at age 24 or 25, he became a patched member. A pattern of repeat serious offending and terms of imprisonment followed. Mr Duff’s description of his life makes sad reading:
Basically, my whole adult life has been inside, in trouble. At one stage 9 months had been the longest time that I spent on the outside. Prior to coming in this time I had spent about 4 and a half years before coming back in here [prison].
I look back on that as some sort of achievement in my life because it is the longest I had stayed out of the system.
Mr Duff has four children to a previous partner. She has sole custody of these children and a protection order against Mr Duff. As a result, he has little contact with his children. The protection order was needed because Mr Duff inflicted grievous bodily harm on her in a brutal attack with a hammer, breaking her pelvis. Mr Duff was sentenced to five and a half years’ imprisonment for this offending. The cultural report writer suggests this “angry violent behaviour” was consistent with “prolonged and intense use of methamphetamine”.
After being released from prison for this offending, Mr Duff says he attempted to rehabilitate himself, employing some of the strategies he had learnt from a violence prevention programme he attended in prison. However, he experienced challenges reintegrating into society. Finding suitable accommodation proved difficult because his family and friends were deemed unsuitable, most having gang affiliations and records of offending. Mr Duff said he tried to find work but was unable to because of his own record of offending. He said he struggled financially on the unemployment benefit, so he turned to selling drugs. He described his progression in this way — “[s]tarted using. Got myself comfortable. Then fell into [addiction]”.
Mr Duff met his new partner when she was aged 18. They had been together for about a year when she gave birth to Maija. Mr Duff says he was “heavily addicted” to methamphetamine at that time and was using it on a daily basis. Mr Duff declined to discuss with the report writer the events leading to Maija’s death.
The report writer suggests that Mr Duff was raised in a severely deprived urban Māori community. As with many others in this situation, Mr Duff did not succeed in the education system and failed to achieve appropriate developmental milestones in adolescence. Lacking the ability to control anger, respect social rules and feel empathy for others, he engaged in disruptive behaviour ultimately leading to his recruitment into the Mongrel Mob. The report writer says the “Mongrel Mob ethos has been to invert what would be normally acceptable and turn social failure into perverse achievement”.
The report writer concludes by suggesting that the remarks made by Williams J in R v Rakuraku also apply to Mr Duff:[8]
Your anger and aggression is partly a factor of your personality and you made free choices in that regard. But it is also partly a response to the drivers I’ve discussed that aren’t of your making at all; to the way the world responds generally to Māori boys and men from poor backgrounds. We must be honest with ourselves about that. So it comes as no surprise to me that you sought security in the brutalised and traumatised company of those who share your experience and history — the Mongrel Mob. That shared experience has a terrible magnifying effect when it gathers in one place. To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today, and therefore in your own criminality.
Submissions
[8]R v Rakuraku [2014] NZHC 3270 at [58].
Mr Dutch notes that in Rakuraku, Williams J allowed a discount of 12 months for the personal mitigating factors identified in that case. Mr Dutch submits that the cultural report demonstrates a clear linkage between Mr Duff’s upbringing, his early and repeated incarceration and the index offending. Mr Dutch observes that the Judge acknowledged this linkage by not increasing the statutory minimum period of 17 years’ imprisonment for his prior offending. He invites the Court to consider whether a reduction could be justified, despite the high statutory threshold for imposing an MPI of anything less than 17 years in cases such as this.
Assessment
The leading authority remains this Court’s decision in R v Williams:[9]
[67] We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with the specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[9]R v Williams [2005] 2 NZLR 506 (CA).
We accept Mr Dutch’s submission that there is a causal nexus between Mr Duff’s disadvantaged background and his offending. The Judge also accepted this. The Judge took this into account in not increasing the MPI on account of Mr Duff’s lengthy history of serious violent offending. It may be noted that this was also the outcome in Rakuraku. Williams J did not increase the MPI, but he was not persuaded that a reduction from the presumptive statutory minimum of 17 years could be justified in the circumstances of that case. For that reason, Rakuraku does not support the submission that the “manifestly unjust” requirement is met here.
We are not persuaded the Judge made any error in concluding that the “manifestly unjust” threshold was not met in all the circumstances of this case, which involved a particularly callous and brutal murder of a defenceless and highly vulnerable infant. The appeal against sentence must be dismissed.
Result
The application for an extension of time to appeal is granted.
The application to adduce further evidence in support of the appeal against conviction is declined.
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent