Escobar v Police
[2022] NZHC 201
•17 February 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-463-000109
[2022] NZHC 201
BETWEEN ANDRE DE ANDA ESCOBAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 February 2022 (via VMR) Appearances:
Nick Dutch for the Appellant Justine Sutton for the Respondent
Judgment:
17 February 2022
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 17 February 2022 at 10:00 am.
Registrar / Deputy Registrar Date:
DE ANDA ESCOBAR v NEW ZEALAND POLICE [2022] NZHC 201 [17 February 2022]
Background
[1] On 26 May 2021, Andre De Anda Escobar was convicted of one charge of injuring with intent to injure following a Judge-alone trial before Judge I D R Cameron in the Tauranga District Court.1
[2] Mr De Anda Escobar appeals on the basis that the Judge erred in his assessment of the evidence by rejecting Mr De Anda Escobar’s evidence, and inferring from the prosecution evidence that Mr De Anda Escobar intended to cause and did cause the victim’s injuries. The Crown opposes the appeal.
The offending
[3] On the afternoon of 7 December 2020, Mr De Anda Escobar was at his home address with his wife and two children. Their youngest child, who is one year old, is the victim.
[4] Mrs De Anda Escobar had arranged to take their eldest child for a day care visit. The victim was left in Mr De Anda Escobar’s care. He had been drinking throughout the day.
[5] When Mrs De Anda Escobar returned a little over two hours later, the victim was crying. His face was red and flushed. Upon inspection, she discovered bruising around his left ear, and around his right eye, extending across his right cheek and down to his mouth. The bruises were not present before Mrs De Anda Escobar left.
[6] Mrs De Anda Escobar subsequently took the victim to Tauranga Hospital. Two medical practitioners concluded that the victim’s injuries were consistent with the deliberate, non-accidental application of force.
1 Police v Escobar [2021] NZDC 8218.
District Court decision
[7] Judge Cameron noted that Mr De Anda Escobar had admitted to consuming over a litre of red wine at the time of the incident.2 The Judge considered this would render him less tolerant of the victim.3
[8] Mr De Anda Escobar’s evidence was that he and the victim played a game where he threw the victim onto the couch.4 He claimed that the injuries were caused accidentally during this game when the victim fell onto the wooden floor of the lounge room.5 The Judge rejected this as a cause of the victim’s injuries.6 While the medical professionals gave evidence that such a mechanism could produce the requisite force, it was not possible for a single fall to cause the two injuries seen on opposite sides of the victim’s face.7 Mr De Anda Escobar’s evidence described only a single fall.8
[9] Despite this, the Judge noted that when his wife returned home, Mr De Anda Escobar did not disclose to her that the victim’s injuries were caused by a fall.9 Instead he claimed he did know what had happened and that the victim had been asleep.10 The Judge reasoned that if there had been an accident as Mr De Anda Escobar later asserted, there would be no good reason not to disclose it to Mrs De Anda Escobar when first confronted.11
[10] The Judge rejected defence counsel’s suggestion that the victim could have been injured when he wandered into the kitchen searching for his mother.12 Had that been the case, the Judge considered that it was inherently implausible that the child would have then entered the lounge to play with Mr De Anda Escobar (as Mr De Anda Escobar claimed).13 The victim would have been injured and upset.14
2 At [12].
3 At [12].
4 At [11].
5 At [11].
6 At [13].
7 At [13].
8 At [13].
9 At [14].
10 At [14].
11 At [15].
12 At [16].
13 At [16].
14 At [16].
[11] The Judge considered that, in light of the doctors’ evidence that the victim’s injuries could only be caused by significant force, the logical inference was that Mr De Anda Escobar inflicted them.15 The Judge inferred that in doing so, Mr De Anda Escobar intended to cause actual bodily harm, and that the blows caused the injuries described.16 He thus convicted Mr De Anda Escobar on the charge of injuring with intent to injure.17
Approach to appeals against conviction
[12] Appeals against conviction are brought under s 232 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any reason.18 A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that:19
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[13] A real risk arises if there is a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong.20
Submissions
Appellant
[14] Mr Dutch, for Mr De Anda Escobar, submits that the Judge effectively reversed the onus of proof by reasoning that because Mr De Anda Escobar could not explain the victim’s injuries, he must have caused them. He submits that there was no evidence that the injuries occurred at the same time. That, he submits, means that the
15 At [20].
16 At [20].
17 At [22].
18 Section 232(2)(b) and (c).
19 Section 232(4).
20 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
prosecution had not discharged their burden to prove that Mr De Anda Escobar caused the injuries. He further submits that the Judge’s reasoning fell short of that required by Sena v Police.21
[15] Mr Dutch also submits that the Judge failed to take into account the concessions made by the medical experts. He submits that it can be concluded from their evidence that the bruising to the front of the victim’s face could have been caused by a fall from the couch. If that is correct, it leaves only the injury to the victim’s ear unexplained and that injury on its own does not satisfy the elements of the injuring with intent charge, particularly the mens rea.
Crown
[16] Ms Sutton, for the Crown, submits that the Judge did not reverse the onus of proof. Instead, she submits that the Judge properly rejected Mr De Anda Escobar’s evidence and concluded that the prosecution case provided the only logical explanation for the victim’s injuries. She submits that Mr De Anda Escobar’s explanations for the victim’s injuries were contradictory to the medical expert evidence. For the defence theory of the case to be plausible, Ms Sutton submits that the Judge would have to accept Mr De Anda Escobar’s explanations for both injuries, in light of the circumstantial evidence tending to prove that he caused them. She submits it was open to the Judge to infer that Mr De Anda Escobar caused the injuries. Nor did the Judge fail to properly express reasons for that finding.
[17]I now turn to discuss the key questions raised on this appeal.
Did the Judge err by rejecting Mr De Anda Escobar’s evidence and finding Mr De Anda Escobar guilty on the basis of the prosecution evidence?
[18] The thrust of Mr Dutch’s argument is that the Judge erred by finding that because Mr De Anda Escobar was unable to explain the cause of the victim’s injuries, he must therefore have caused those injuries. He submits that the Judge could not properly reject Mr De Anda Escobar’s evidence and convict on the basis of the prosecution evidence.
21 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
[19] I am satisfied that the Judge did not err by rejecting Mr De Anda Escobar’s evidence. Nor did he fall into appellate error by finding that the prosecution evidence was sufficient to base a conviction. My reasons follow.
[20] Mrs De Anda Escobar gave evidence that the focal injuries to the victim’s left ear and right eye were not present when she left the victim in Mr De Anda Escobar’s care. She described a couple of other minor scrapes on the victim’s neck and forehead that were accidentally self-inflicted. Her evidence was clear that these were the only injuries to the victim at that time. She then said that the focal injuries were present when she returned home. The injuries were captured by Police in a photograph booklet that was put before the Court.
[21] In my view, accepting Mrs De Anda Escobar’s evidence inevitably leads to the conclusion that the injuries were caused during the period alleged by the prosecution. This conclusion is independently supported by Mr De Anda Escobar’s own explanation for the cause of those injuries. He accepted they were caused while the victim was in his care, albeit accidentally. This is consistent with at least one of the injuries being caused within that time frame.
[22] The combined effect of this evidence is that only two people had the opportunity to cause the victim’s injuries – either Mr De Anda Escobar or the victim himself. There was, however, no direct evidence to support either alternative. The question for the Judge was whether there was sufficient circumstantial evidence from which to infer, to the required standard, the elements of the offence were made out.
[23] The defence theory of the case was that Mr De Anda Escobar accidentally caused one of the injuries when the victim fell from a couch during a game, and that the other injury had been accidentally self-inflicted at a different time.
[24] There are three separate strands of circumstantial evidence each independently supporting the inference that Mr De Anda Escobar intentionally caused the injuries.
[25] The first is the medical expert evidence that the injuries were consistent with intentional infliction. Dr Farthing said that the pattern of injuries was consistent with
the application of direct force, such force being “highly likely” to be “inflicted”. That was because injuries from falls typically develop in areas with “bony prominences”. In this case the bruises extended to other areas of the face, including the cheek and eye areas. She considered that the focal injuries were unlikely to be caused by a fall from the couch. She expected the kind of bruising suffered from the victim to be the result of a fall from “several metres”. Dr Farthing considered that significant force would be required to inflict the victim’s injuries.
[26] Dr Momsen agreed that the injuries were likely to be intentionally inflicted, with significant force being required to do so. She considered the injuries to the victim could not be caused by him bouncing on the couch and falling onto the floor. She conceded that if the victim had been thrown by Mr De Anda Escobar towards the couch, but accidentally fallen directly onto the floor, then that could well have caused the victim’s injuries on one side of his face. That concession does not, however, assist Mr De Anda Escobar because his evidence was that the victim “bounced and hit the floor”. Nor does it explain the injuries to the victim’s ear.
[27] The second source of circumstantial evidence is Mr De Anda Escobar’s spurious explanations for the injuries. These support an adverse inference as to his account of events. Mrs De Anda Escobar said that when she returned home and discovered the victim crying and injured, Mr De Anda Escobar proffered no explanation. Mrs De Anda Escobar gave evidence that her husband told her that the victim had been sleeping the entire time she was away and that he did not know what had happened. Mrs De Anda Escobar further noted that the time she was away did not coincide with the victim’s usual sleep pattern. Mr De Anda Escobar was unable to explain why he did not tell Mrs De Anda Escobar that there had been an accident. As noted by the Judge, had there been an accident, there would have been no good reason not to disclose it.
[28] The Judge noted that Mr De Anda Escobar did not offer his explanation that the injuries were caused by an accident until he spoke to his mother-in-law almost three months later. Mr Dutch submits that it was unfair to criticise Mr De Anda Escobar for this, given that he was subject to non-association bail conditions and that he told a social worker at Oranga Tamariki that the injury was accidental. Even so, it
remains the evidence that Mr De Anda Escobar failed to explain the injuries as accidentally inflicted when first confronted and in circumstances where one might naturally expect him to have done so. It supports the reasonable inference that at that time he had not yet formulated his exculpatory explanation for the injuries.
[29] Mr De Anda Escobar did, however, seek to explain the injuries in his evidence. He claimed that some injury was caused accidentally when he was playing a game with the victim where he bounced him on the lounge-room couch. He said that the victim fell from the couch onto the wooden floor. As noted, the medical expert evidence was unequivocal; this description could only account for one set of injuries because the other was on the opposite side of the victim’s face.
[30] Mr De Anda Escobar’s evidence was then that Mrs De Anda Escobar arrived home immediately after the victim fell after being bounced on the couch. If that version is to be accepted it necessarily means that the other injury had to be caused before that time. He gave evidence that the victim had been asleep for some time before this occurred, leaving a relatively short interval between the two injuries. This account contrasted with Dr Momsen’s evidence that the victim likely would have been in distress after hurting himself and would have sought comfort from Mr De Anda Escobar. She said that this would have been the typical reaction of a child after suffering injury and that Mr De Anda Escobar was the only caregiver present. She noted that he would likely have been crying and rubbing his injured ear. As noted by the Judge, it is implausible that the victim would have wanted to be thrown onto the couch shortly after suffering such an injury.
[31] It was clearly open to the Judge to reject Mr De Anda Escobar’s evidence as to the cause of the injuries. He advanced differing explanations for the cause of the victim’s injuries and each was implausible on the facts. This further supported the Judge’s inference that those explanations were Mr De Anda Escobar’s attempt to exculpate himself from the reality that he caused the injuries, and that he did so intentionally.
[32] The final strand of evidence is that Mr De Anda Escobar had been drinking alcohol at the time he was responsible for caring for the victim. Mrs De Anda Escobar
gave evidence that Mr De Anda Escobar had been drinking nearly every day, often starting at around 11:00 am and continuing through until the evening. In cross- examination Mr De Anda Escobar accepted that he had consumed around a litre of wine that day. Mrs De Anda Escobar had previously told him to stop drinking. I accept the fact that Mr De Anda Escobar had been drinking is not significantly probative of whether he caused the victim’s injuries. But, as correctly noted by the Judge, it is circumstantial evidence which lends some support to the proposition that he would have had reduced inhibitions against violently lashing out at the victim. That evidence adds some, albeit modest, weight to the Crown case.
[33] Taking into account the combined effect of that evidence, it is my view that the Judge did not err in rejecting Mr De Anda Escobar’s evidence and determining guilt on the basis of the prosecution evidence. It follows there was no risk of a miscarriage of justice.
Did the Judge fail to give adequate reasons?
[34] Mr Dutch submits that the Judge failed to give adequate reasons. In particular, he submits that the Judge failed to address the competing contentions relating to the medical evidence. He says the Judge failed to meet the standard set out in Sena v Police.22
[35] In a Judge-alone trial, a failure to give adequate reasons can impinge upon the right to a fair trial. In Sena, the Supreme Court commented that:23
“The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute.”
[36] The Court clarified, however, that “imperfection of expression is practically unavoidable”, noting the “burden for judges of balancing the need for prompt
22 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
23 At [36].
determination of criminal cases with other workload requirements”.24 Reasons must address the substance of the case advanced by the losing party, but need not refer in detail to every issue or argument which that party has advanced.25
[37] The core plank of the Judge’s reasoning was that Mr De Anda Escobar tried and failed to explain the victim’s injuries, while the medical expert evidence indicated that both were caused intentionally. The Judge commented that:
“[13] The evidence of both Dr Farthing and Dr Momsen was that significant force would be required to cause the bruising to [the victim]’s right eye and left ear area. Both doctors stressed that those injuries were on either side of the face. While it was accepted by the doctors that landing on [the victim]’s face in the way described by [Mr De Anda Escobar] could account for one of those two injuries, it did not account for the other injury on a different side of the face. In his own evidence, [Mr De Anda Escobar] accepted that the fall he said [the victim] suffered happened only once. Thus, the assertion that [the victim] fell on his face on the floor does not account for the fact that there were two significant injuries, one on either side of his facial area.”
[38] Mr Dutch takes issue with the Judge’s alleged failure to consider the defence proposition that the injuries could have occurred at different times.
[39] The proposition that the injuries could have occurred at different times does not undermine the Judge’s finding that Ms De Anda Escobar caused those injuries. To the contrary, that finding is entirely consistent with the medical evidence. Dr Momson gave expert evidence accepting that the two focal injuries could have occurred at different times. It is self-evident that two injuries on opposite sides of the victim’s head were necessarily caused at different times. The Crown theory of the case and the Judge’s verdict contemplated that the injuries would have been caused by (at least) two intentional strikes to opposite sides of the victim’s face. Mr De Anda Escobar had the opportunity. The only time within which the injuries could be caused was during the period when Mr De Anda Escobar and the victim were alone together.
24 At [37].
25 At [37].
[40] During cross-examination, Dr Momson explained that it was not the timing but the nature of the injuries that supported the conclusion that they were intentionally inflicted:
“Q.You’ve concluded it’s not accidental because there’s two injuries. Is that correct?
A.Not just because they’re two injuries, also the nature of the injuries. We don’t often see the swelling around the eyes. We don’t often – a black eye, but more concerning was the bruising around the left ear, with that’s very un – atypical.”
[41] Similarly, Dr Farthing gave evidence that, based on her professional experience in recognising non-accidental injuries caused by child abuse, the nature of the victim’s injuries indicated that they were likely to be intentionally inflicted. In particular, she noted that bruising of the ear was “highly associated” with inflicted injury or child abuse.
[42] The finding that Mr De Anda Escobar caused the injuries was supported by Mr De Anda Escobar’s various explanations for (and initial inability to explain) the injuries. While the Judge ultimately rejected both of the defence’s explanations for the victim’s injuries, he reasoned that those explanations were mutually exclusive:
“[16] … It was suggested by the defence that he could have struck his head on the edge of the tabletop in the kitchen and that that could have been the cause of one of the two injuries of concern. However, had an accident causing that type of injury have happened in that way then inevitably [the victim] would have been very upset and crying. The defendant’s evidence was that after returning from the kitchen [the victim] placed his hands on the couch, indicating that he wished to play the game involving the couch, and so there were no signs of him being visibly upset. I reject the defendant’s assertion that one of the injuries could have occurred in the way suggested by the defence.”
[43] The Judge’s reasoning was supported by evidence from Dr Momsen. As previously noted, she said that while it was possible that injury to the victim’s ear was accidentally self-inflicted (for example by running into a table), the victim would subsequently be in distress and would likely “come to seek comfort” from Mr De Anda Escobar. She noted that it is a typical reaction of children to seek comfort from a caregiver after hurting themselves, and that Mr De Anda Escobar was the only caregiver present. Mr De Anda Escobar’s evidence that the victim hurt himself and
then subsequently wished to be thrown onto the couch is clearly at odds with that opinion, as reasoned by the Judge.
[44] Even accepting Mr De Anda Escobar’s explanation for the injury to the victim’s face, there remains the injury to the victim’s ear. The medical evidence is that this injury was highly likely to be caused by an intentional strike. I reject Mr Dutch’s submission that this injury alone is insufficient to meet the elements of the charge. It resulted in bruising and is plainly an injury. Given the other circumstantial evidence going to intention, it would have been open to the Judge to enter a conviction to the charge on the basis of that injury alone.
[45] In any event, I am satisfied it was open to the Judge to find that Mr De Anda Escobar’s evidence lacked credibility and to reject his explanation for the injury to the victim’s cheek. The Judge explained that he drew an adverse inference from Mr De Anda Escobar’s various explanations for the injuries and the contradictory medical evidence.
[46] This is not a case where the Judge has failed to give a reasoned decision. He appropriately conveyed his assessment of the medical evidence and his findings on credit were readily available. Mr De Anda Escobar’s fair trial rights were not prejudiced.
Result
[47]The appeal is dismissed.
Moore J
Solicitors:
Mr Dutch, Tauranga Crown Solicitor, Tauranga
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