Dunn v The Queen
[2019] NZCA 608
•3 December 2019 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA561/2016 [2019] NZCA 608 |
| BETWEEN | DARRELL EDWARD JAMES DUNN |
| AND | THE QUEEN |
| Hearing: | 31 October 2019 |
Court: | Kós P, Venning and Thomas JJ |
Counsel: | Appellant in person |
Judgment: | 3 December 2019 at 11 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Mr Dunn and Mr Wharawhara were members of Auckland’s homeless community. They lived on the streets and in the parks of that city. They would spend time together, walking the streets, “hustling” for money, and drinking. On the evening of 10 November 2015, they and three others found themselves in Outhwaite Park, across the road from the Auckland Domain. An argument broke out between Mr Dunn and Mr Wharawhara. The argument became a fight. The end result was that Mr Wharawhara died and Mr Dunn now resides in the Auckland South Corrections Facility.
Mr Dunn appeals his conviction for manslaughter. He does not complain about the sentence.[1] Or about Palmer J’s summing up. Or about his counsel at trial, although he has since dispensed with his services and those of a number of other lawyers.[2] Rather, Mr Dunn says there is fresh evidence that casts doubt on the cause of death. And that would support self-defence.
[1]Mr Dunn was sentenced to seven years and six months’ imprisonment: R v Dunn [2016] NZHC 2552 [Sentencing notes]. An appeal against sentence was abandoned on 10 September 2019.
[2]As a consequence Mr Dacre QC was appointed standby counsel for Mr Dunn, in accordance with the principles stated by this Court in Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392. On the appeal Mr Dacre handled the examination and cross-examination of witnesses, and delivered most of Mr Dunn’s submissions.
Before addressing these claims, we need to set out the exact sequence of events, as it occupied some time at the hearing of this appeal. It is also relevant to an argument Mr Dunn himself presented to us. It was that, had the police or ambulance service responded more promptly, death could have been averted.
The exact sequence of events
The evidence suggests that Mr Dunn and Mr Wharawhara arrived at Outhwaite Park at about 8 pm on the evening of 10 October 2015. They were there with three other men, Jack Roberts, Alfred Manu and Virgil Davidson. The five sat at a picnic table in the park talking, listening to music on Mr Wharawhara’s cellphone, and drinking alcohol.
What happened next was described by the Judge in sentencing:
[4] You and Mr Wharawhara argued — perhaps over the use of his phone or him not being passed drinks. He was irritating you. You hit him and he fell off the bench to the ground. He got back up. You said at trial that Mr Wharawhara said he was going to fuck you up. You said he lunged at you with a knife but no knife was found and no other witness saw a knife. One other witness did say he saw Mr Wharawhara come towards you and you put your hands up. He heard you yell out “Fuck, did you stab me?”
[5] You hit Mr Wharawhara again several times. You kicked something — the Crown says you kicked him in the head. You say you kicked the knife away. No one else saw what you kicked.
Although we cannot be exact about timing, the fight appears to have occurred slightly before 10 pm. The Judge found that Mr Dunn left the park almost immediately after the fight.[3] He was seen in a CCTV photograph at 10.07 pm, a three to six minute walk from the park. The Crown does not dispute that Mr Dunn (and the other members of the group) left the park at about 10 pm.
[3]Sentencing notes, above n 1, at [7].
After the fight Mr Wharawhara fell back on his back, perhaps unconscious throughout, perhaps conscious for part of the time. He appears to have lain there alone for a few minutes.
At about 10.03 pm another homeless man in the park, Mr Topia, found Mr Wharawhara lying on his back by the picnic table, apparently asleep. He soon realised he was unconscious. Mr Topia and some of his associates attempted to resuscitate Mr Wharawhara, without success.
At that point, Mr Topia detached from the group and ran down to the hospital, about a six minute walk. Mr Topia appears to have arrived at the accident and emergency department a little after 10.10 pm. There he spoke to a nurse, and she telephoned the ambulance service.
At 10.16 pm the ambulance service reported to the police the existence of an assault victim, in Outhwaite Park, reported by a male person present at the emergency department. At 10.18 pm the ambulance service recorded that the ambulance could not proceed without a specific address. The ambulance was then advised that the male who had reported the assault would be waiting at the emergency department for police attendance so he could show the police where the assault took place.
It is unclear exactly when a police car was despatched to the hospital. At 10.29 pm Mr Topia left the accident and emergency department. It appears the police car got to the emergency department at 10.37 pm, but by that stage Mr Topia had left the emergency department and gone across to the main part of the hospital. He seemed to have some difficulty getting engagement by hospital staff. Somewhere between 10.40 pm and 10.50 pm Mr Topia headed back to Outhwaite Park.
In the meantime, one of Mr Topia’s associates, Mr Moore (who had earlier tried to resuscitate Mr Wharawhara), woke another homeless man, Mr Tapine, who had been sleeping in the park. When told that Mr Wharawhara seemed to be dead, and after checking for himself, Mr Tapine headed out of the park. He went first to the hospital (where he saw Mr Topia). Then, at 10.56 pm, he called the ambulance and police from a payphone at the corner of Park Road and Carlton Gore Road. The call log recorded “person assaulted?dead”. At 10.58 pm the police despatched a car to investigate the payphone report.
By this stage, Mr Topia had taken matters into his own hands. CCTV footage shows that he had returned to the park by 10.57 pm. He then carried Mr Wharawhara (who was not a big man) over his shoulder in a “fireman’s lift” back down to the hospital. He arrived at 11.03 pm.
Sergeant Kirtlan was a public safety team supervisor of the Auckland central area on the night concerned. He gave evidence before us, and was cross-examined.[4] He first became involved as a result of the payphone contact at 10.56 pm. He headed to the park, but another unit had got there before him. They had not been able to find the reported victim. That was probably because, by that stage, Mr Topia was carrying Mr Wharawhara down to the hospital. In the absence of a victim, Sergeant Kirtlan stood the ambulance down at 11.14 pm.
[4]There was no challenge to the receipt of his evidence and we will therefore receive it.
Dr Scott Orman was the supervising specialist in the emergency department that night. Shortly after 11 pm Mr Wharawhara was brought into the department. Dr Orman’s evidence was:
The patient was clinically dead upon arrival — there were no signs of life. When he arrived, I carried out a very brief assessment and noted that he was unresponsive, not breathing, his pupils were dilated and he had no pulse. This was consistent with cardiac arrest, and CPR was commenced immediately. He was transferred to the ED stretcher at this time. We administered multiple cycles of CPR and 3 doses of intravenous adrenaline. We assessed his circulation on multiple occasions during this process, but there was no response to our efforts and we could see with an ultrasound machine that his heart was not beating. He remained unresponsive throughout. We ceased resuscitation at 11.19 pm on the grounds that further efforts were futile, and I declared him deceased.
The cause of death
It was common ground at trial that Mr Dunn had struck Mr Wharawhara, a smaller man than he, repeatedly. The Crown also said he kicked Mr Wharawahara. Mr Dunn denied doing so, saying that the kick had been directed at the knife he claimed Mr Wharawhara had used.
Expert evidence at trial
It was also common ground between the experts who gave evidence at trial that the force applied by Mr Dunn caused the death of Mr Wharawhara.
The expert called by the Crown, Dr Fintan Garavan,[5] who had conducted the post-mortem, concluded that the cause of death was blunt force head trauma (with alcohol intoxication as a contributing factor).
[5]Now a forensic pathologist with the Medical Examiner’s Office in Miami, but a practitioner in this country from 2011–2015.
The expert called by the defence, Dr Stuart Hamilton,[6] concluded that death was the indirect consequence of a combination of Mr Dunn’s assault and Mr Wharawhara’s intoxication. These together resulted in the aspiration (inhalation of foreign objects into the airways) of blood (from his facial injuries) and stomach contents, blocking his airway passages.
A new opinion
[6]Deputy Chief Forensic Pathologist for the East Midlands in England.
Mr Dunn has now obtained a third opinion from Professor Johan Duflou.[7] It raises the possibility that death was caused by acute alcohol intoxication, resulting in aspiration, independently of Mr Dunn’s assault. That is, that there may be an intervening cause of death for which Mr Dunn was not culpable.
[7]A forensic pathologist and Clinical Professor in the Central Clinical School at the University of Sydney.
The evidence of Professor Duflou, and what might be termed rebuttal evidence from Dr Hamilton (albeit he was called by the appellant) and Dr Garavan (called by the Crown) was before us by consent, and each expert was cross-examined.
We now address two questions. First, when will new expert evidence be admitted on appeal? Secondly, is the new evidence cogent?
When will new expert evidence be admitted on appeal?
The principles for the admission of new expert evidence on appeal have been stated in a number of decisions of this Court and of the Supreme Court. In R v Bain this Court (in a passage later approved by the Privy Council, and again by the Supreme Court in Fairburn v R) said:[8]
[26] It can … be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.
[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control. …
[8]R v Bain [2004] 1 NZLR 638 (CA), approved in Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
The third screen is “cogency”. That requires that, for the evidence to be admitted, it might reasonably have led a jury to return a different verdict when considered alongside the other evidence given at trial.[9] The appellate court to which the application is made must consider the new evidence in that context, and against that test. It stands, in effect, in the place of the jury, asking itself whether the new evidence, taken in the context of all the evidence led at the trial, might realistically give rise to a reasonable doubt as to guilt on that charge.
[9]Fairburn v R, above 8, at [35]. See also Wallace v R [2010] NZCA 46 at [52] and [76]; Redeemed v R [2013] NZCA 61 at [20]; and Chetty v R [2017] NZCA 586 at [28].
As noted earlier, the further evidence of Professor Duflou and the rebuttal evidence of Drs Hamilton and Garavan was before us by consent. Notwithstanding that fact, the decision for this Court in this appeal remains whether the cogency requirement is met by the new evidence.[10] In other words, the question is whether it might reasonably have led a jury to return a different verdict when considered alongside the other evidence given at trial?
Is the new evidence cogent as to a supervening cause of death?
[10]No real contest was made by the Crown on freshness, and none could be made on credibility.
The leading decision of this Court on causation of death in a homicide case is R v McKinnon.[11] Its ratio is best drawn from the headnote:[12]
There may be more than one cause of death in homicide cases. Where more than one injury has been inflicted on the deceased, death can properly be said to be the result of the original injury if at the time of death the original injury is still an operating cause and a substantial cause of death; provided that the act which is the immediate cause of death is an act of the accused, or an act to which he is a party, and which is not so overwhelming as to make the original injury merely part of the history.
[11]R v McKinnon [1980] 2 NZLR 31 (CA).
[12]At 31.
In McKinnon, the defendant had struck the victim across the head with a fence paling, dragged him to a telephone box, robbed him, and left him there (where his body later was found). The forensic evidence was that the blow to the head could well have caused death by itself. But the victim had also suffered a minor injury to his nose in or after the assault. That resulted in bleeding which the victim inhaled, so that he effectively drowned in his own blood. This Court held that the blow from the fence paling remained an operating and substantive cause of death, because that act had rendered the victim unconscious at the time he involuntarily inhaled his blood.[13]
[13]At 37.
In this appeal Professor Duflou’s evidence was that Mr Wharawhara had a blood alcohol level of 363 mg/100 ml, and a urine alcohol level of 413 mg/100 ml. This was, he said, “a very high blood alcohol level”. Research based on coronial autopsy cases in Sydney, which Professor Duflou had co-authored, demonstrated that such a level “can certainly cause death from alcohol toxicity, in both non-alcoholics and alcoholics”. Professor Duflou concluded:
… I am of the view that the deceased could quite readily have died of acute alcohol toxicity, especially if it is accepted that the injuries to the face are at most moderate in severity, and that there is no evidence of potentially fatal injury to the brain caused by the application of blunt force.
Professor Duflou accepted (“[t]here appears to be no doubt”) that Mr Wharawhara had aspirated stomach contents and blood into his airway and lung fields. Further, the absence of an inflammatory cell reaction in Mr Wharawhara’s lungs indicated a relatively limited time between aspiration and death. But aspiration could still have occurred as a consequence of the effects of acute alcohol intoxication. Under questioning, Professor Duflou accepted that it was more likely than not that Mr Wharawhara was concussed before he died.
Professor Duflou’s opinion did not find favour with the pathologists who had given evidence at trial. Both gave rebuttal evidence, albeit that Dr Stuart Hamilton was in fact called by the appellant both at trial and before us.
Dr Hamilton told us that the proposition that Mr Wharawhara became unconscious because of alcohol intoxication by coincidence immediately after an altercation in which he was struck to the head and face and knocked to the ground was not plausible. In Dr Hamilton’s opinion, the blows represented a part of the sequence of events leading to death. The injuries caused by the blows would be unlikely by themselves to be fatal. But without the blows being delivered, subsequent events would not have occurred as they did. There was a combination of factors contributing to death: (1) Mr Wharawhara’s alcoholism, (2) his nasal occlusion,[14] (3) most fundamentally, the assault — which resulted in him (4) being rendered unconscious by the blows, (5) lying on his back on the ground, and (6) the aspiration of foreign material which caused death.
[14]Due to prior injury, one of Mr Wharawhara’s nostrils was blocked.
Dr Garavan was of similar opinion. He agreed with Dr Hamilton’s view that the blunt force trauma caused by the assault inflicted by Mr Dunn would be unlikely on its own to have been fatal. However, but for the assault, Mr Wharawhara would not have died. The blunt force trauma “kicked off a series of events which has led to this man’s death in the environment of a high alcohol level, his position when he fell, aspiration, bleeding, broken nose, which … all combined … led to his death”.
We do not find the alternative theory offered by Professor Duflou cogent as to an independent, intervening cause of death. That is, we consider it would not reasonably lead a jury, in the context of the whole of the evidence given at trial, to be left unsure that the assault by Mr Dunn was a substantial and operative cause of Mr Wharawhara’s death.
We start with the post-mortem examination, described in detail in the evidence of both Dr Garavan (who conducted it) and Professor Duflou. Some points may be noted. First, the presence of contusions from blunt force trauma to Mr Wharawhara’s face, lips and neck area (and corresponding internal injuries). Secondly oedema (swelling) to the brain, and haemorrhaging in three specific areas of the brain itself. Thirdly, Mr Wharawhara’s respiratory system displayed fresh blood and stomach contents in the pharynx, larynx, epiglottis and trachea. Gastric contents were present in Mr Wharawhara’s lungs, and aspirated blood was found in his stomach.
The overwhelming burden of the medical evidence was that there had been an assault which had produced injuries, including concussion. Following that assault, Mr Wharawhara was rendered unconscious. The direct effect of his falling unconscious, in an injured and intoxicated state, was his aspiration of both blood (from his facial injuries) and stomach contents, which directly caused death. By that analysis, a jury could have no reasonable doubt that the assaults were a substantial and operative cause of death.
To be cogent, the new evidence presented by Professor Duflou would need to leave a jury unsure as to whether death might not instead have been caused by a supervening, independent factor: acute alcohol toxicity. Mr Wharawhara was, by reason of his level of intoxication, potentially prone to death from that cause, just as an obese member of the public is potentially prone to death by reason of heart failure. The Sydney study on which Professor Duflou relied is, to that extent, a statement of the obvious: heavy drinkers, even those who have achieved some measure of tolerance to alcohol, can die of acute alcohol poisoning.
Professor Duflou’s evidence did not substantiate the probability of death intervening from this cause at the intoxication levels Mr Wharawhara had achieved. The data is not that sophisticated. Apart from the obviously high levels of alcohol present in Mr Wharawhara’s blood, no post-mortem analysis of Mr Wharawhara’s body lends any weight to the theory now advanced.
To be cogent, this new evidence as to causation would need to demonstrate a real (and not fanciful) possibility of death by an independent cause, supervening serendipitously despite the assault inflicted by Mr Dunn which had, directly and evidently, caused Mr Wharawhara to fall unconscious to the ground.
We think this new theory, as a supervening potential cause of death, unrealistic and fanciful. It is not evidence a properly instructed jury might reasonably consider left cause of death uncertain. The evidence of Drs Hamilton and Garavan given at trial and again before us, traced a logical and ultimately uncontroverted path from blunt force trauma to concussion, to unconsciousness, to the aspiration of blood (from bleeding caused by the assault) and stomach contents, to death shortly after (and due to) that aspiration (a process to which intoxication contributed, but was not a supervening cause).
We conclude the new evidence, although before us by consent, is not cogent on the issue of cause of death. It would not have led a jury reasonably to be unsure that the assault by Mr Dunn was a substantial and operative cause of Mr Wharawhara’s death.
For completeness we record that Mr Dunn also sought to argue that Professor Duflou’s evidence was relevant and cogent to the question of self‑defence. We disagree. We do not see that evidence assisting evidentially in relation to any of the elements of self-defence, including (in particular) the reasonableness of the force used. Nor did Professor Duflou himself suggest his evidence might assist on that subject.
No miscarriage of justice is sustained by the new evidence, therefore.
Did delay matter?
As noted at [3] above, Mr Dunn argued before us that had the police or ambulance service responded more promptly, death could have been averted. Mr Dacre QC rightly did not associate himself with that argument, for there is nothing whatsoever in it.
The jury found that Mr Wharawhara died as a result of being punched or kicked in the head by Mr Dunn, those injuries causing his death. The jury were instructed, correctly, that the injuries inflicted by Mr Dunn had to be a substantial and operative cause of death, but did not need to be the only cause of his death. That is why it was immaterial whether the jury preferred the evidence given by Dr Garavan, or that given (for the defence) by Dr Hamilton. Even on the latter account, the head wounds caused by Mr Dunn’s assault, leading on to unconsciousness and the aspiration of blood and stomach contents, were a substantial and operative cause of death.
In that context, delays occurring in the attempts of third parties to effect the rescue of Mr Wharawhara — attempts which Mr Dunn did not see fit to undertake himself — are neither here nor there. The injuries inflicted by Mr Dunn continued to be the substantial and operative cause of death. The rescue efforts by third parties were themselves consequential upon, and not independent of, those injuries.[15]
[15]R v Smith [1959] 2 QB 35 (CA). See, in New Zealand, Crimes Act 1961, s 166; R v Kirikiri [1982] 2 NZLR 648 (HC) at 650–651; and, generally, Andrew Simester and Warren Brookbanks Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at [3.3.3(2)].
For completeness, we note that Dr Hamilton’s evidence was clear that Mr Topia lifting Mr Wharawhara’s body over his shoulder would be expected to have helped dislodge blood and stomach contents from his airway passages, had he been alive. It would not have worsened Mr Wharawhara’s status. The medical evidence at trial suggests Mr Wharawhara was already dead by the time that intervention occurred. Mr Wharawhara had been lying unconscious, on his back and seemingly dead to observers, for almost an hour after the assault before Mr Topia picked him up and carried him to the hospital.
Delay in those efforts did not break the chain of causation, and Mr Dunn cannot thrust responsibility on to the shoulders of others. He alone is responsible for the death of Mr Wharawhara, not those who set about rescuing him.
Other points raised
For completeness we note that Mr Dunn’s written submissions complained that there were breaches of the code of conduct for expert witnesses by Dr Garavan in preparing the post‑mortem report and in giving evidence at trial. These points were not abandoned, but nor were they pursued in oral submissions before us. In any event, we are clear that there is nothing material in them.
We record our appreciation of the assistance given by Mr Dacre, ensuring Mr Dunn’s appeal was presented most effectively.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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