Duff v The Queen - [2020] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA705/2018
[2020] NZCA 116

BETWEEN	DONOVAN MICHAEL DUFF Appellant
AND	THE QUEEN Respondent

Hearing:	8 April 2020
Court:	Gilbert, Simon France and Wylie JJ
Counsel:	N M Dutch for Appellant Z R Johnston and M L Wong for Respondent
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…

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 Duff v The Queen

Details

AGLC: Duff v The Queen [2020] NZCA 116
Case: [2020] NZCA 116
Decision Date: 24 April 2020 at 12.30 pm

CaseChat Overview and Summary

Donovan Michael Duff appeals against his conviction and sentence for the murder of his nine-month-old daughter, Maija. The appeal against conviction is based on three grounds: (a) Professor Lori Frasier's evidence was substantially different to that foreshadowed in her written statement; (b) Professor Frasier's evidence was inadmissible; and (c) there was insufficient evidence of murderous intent. The appeal against sentence contends that a 17 year minimum period of imprisonment (MPI) was manifestly unjust. The appeal against conviction is dismissed. The appeal against sentence is also dismissed. 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 court held that Professor Frasier was a suitably qualified expert to give evidence on the nature of Maija's injuries and their likely cause. The court rejected the argument that Professor Frasier's evidence was inadmissible. The court also rejected the argument that Professor Frasier's evidence at trial was substantially different to her written statement. The court was satisfied that the jury was properly directed to focus on the evidence of the experts concerning the injuries to Maija's head, which led to her death. The court found there was sufficient evidence for the jury to be satisfied to the requisite standard that Duff inflicted the head injuries with murderous intent.

The court held that the Judge was not persuaded that there was anything in the cultural report that could displace the presumptive statutory minimum sentence of 17 years' imprisonment. The court found that the Judge was not wrong 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.

Orders