Gray v The Queen - [2021] NZCA 298

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA287/2019
[2021] NZCA 298

BETWEEN	HAYDEN ANTHONY GRAY Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2021
Court:	French, Thomas and Muir JJ
Counsel:	A M S Williams for Appellant Z R Johnston for Respondent
Judgment:	5 July 2021 at 9 am

JUDGMENT OF THE COURT

AAn order is made under s 29 of the Criminal Disclosure Act 2008 directing Dr Martin Sage to provide Dr Daniel du Plessis with the microscope slides and blocks and macroscopic photographs taken by Dr Sage at the time of the post mortem examination of Carter Hutton relating to the dissection of the brain.
BLeave is reserved to Dr Sage and the appellant to come back to the Court in the event they are unable to reach agreement on any conditions to be imposed on the handling of the slides and blocks and the associated costs.

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REASONS OF THE COURT

(Given by French J)

Introduction

Mr Gray is appealing his convictions for inflicting grievous bodily harm in July 2017 on his four week old baby son.[1] The baby later died under palliative care on 25 July 2018.
[1]R v Gray [2019] NZHC 942 [Verdict judgment]; and R v Gray [2019] NZHC 941 [Reasons judgment].
In support of his appeal, Mr Gray has applied under the Criminal Disclosure Act 2008 (the Act) for non-party disclosure of microscope slides and blocks taken from the baby’s brain at the post-mortem. His counsel Mr Williams has retained an overseas expert Dr du Plessis who advises that he needs the slides before being able to give an opinion on the merits of the appeal.
The slides are in the custody of the forensic pathologist who conducted the post mortem, Dr Sage. Dr Sage is a very experienced forensic pathologist. He has expressed various concerns about releasing the slides particularly in circumstances where the post mortem report was not part of the evidence at trial and where the coronial process is not yet completed. He requires a court order before releasing the material.
In a judgment issued on 20 May 2021, we ordered that a non-party disclosure hearing be held under s 25 of the Act.[2] The Crown did not oppose the making of that order. Nor does it oppose the materials being provided to Dr du Plessis.
[2]Gray v R [2021] NZCA 202.
For reasons we now explain by the time of the hearing, all but one of the concerns raised by Dr Sage had been largely resolved.
First, advice was obtained from the Coronial Services Unit, that the coronial inquiry into the baby’s death remains open but has been adjourned and will remain so until the criminal proceedings (which includes any appeals) are finally concluded. The Unit also advised that the Coroner will abide by the decision of the Court regarding the application for disclosure.
This advice removed one of Dr Sage’s main concerns which was about his…

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 Gray v The Queen

Details

AGLC: Gray v The Queen [2021] NZCA 298
Case: [2021] NZCA 298
Decision Date: 5 July 2021 at 9 am

CaseChat Overview and Summary

Hayden Anthony Gray appeals against his conviction for inflicting grievous bodily harm on his infant son in July 2017, which resulted in the child's death in July 2018. Gray seeks non-party disclosure of microscope slides and blocks taken from the infant's brain during the post-mortem examination conducted by Dr Martin Sage. Gray's counsel, Mr Williams, has engaged an overseas expert, Dr Daniel du Plessis, who requires the slides to form an opinion on the merits of the appeal. Dr Sage, however, has expressed concerns about releasing the slides, particularly because the post-mortem report was not part of the evidence at trial and the coronial process is incomplete. Dr Sage requires a court order before releasing the material.

The court was required to decide whether the microscope slides and blocks should be disclosed to Dr du Plessis. The court also had to consider Dr Sage's concerns regarding his obligations to the coroner and the baby's family, the potential for the results to "sink without trace" if they are adverse to the client, and whether the material sought was relevant. The court had to balance these concerns against the need for justice and the expert's opinion on the relevance of the material.

The court found that all but one of Dr Sage's concerns had been largely resolved. The coronial inquiry into the baby's death is open but has been adjourned until the criminal proceedings are concluded, and the coroner will abide by the court's decision regarding the application for disclosure. The family does not oppose the slides being sent to Dr du Plessis provided they are returned so they can be buried with the baby. The court was satisfied that any logistical difficulties in sending the slides overseas were not insurmountable and that Dr du Plessis had the necessary expertise to review them. While Dr Sage still did not accept the material sought was relevant, the court noted this view but could not allow it to prevail where there was a competing view from another expert. The court decided it was in the interests of justice to make an order for disclosure of the microscope slides and blocks and the macroscopic photographs. The Crown's issue regarding jurisdiction was not necessary to address given the limited nature of the submissions received.

An order is made under s 29 of the Criminal Disclosure Act 2008 directing Dr Martin Sage to provide Dr Daniel du Plessis with the microscope slides and blocks and macroscopic photographs taken by Dr Sage at the time of the post-mortem examination of Carter Hutton relating to the dissection of the brain. Leave is reserved to Dr Sage and the appellant to come back to the Court in the event they are unable to reach agreement on any conditions sought to be imposed on the handling of the slides and blocks and the associated costs.

Orders