L v The King

[2023] NZHC 3794

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2022-454-5

[2023] NZHC 3794

BETWEEN

L

Appellant

AND

THE KING

Respondent

Hearing:	19 December 2023
Appearances:	C M Ruane (via VMA) for the Appellant I R Murray for the Respondent
Judgment:	19 December 2023

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 19 December 2023 at 4:00 m.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr C M Ruane, Barrister, Christchurch Mr I R Murray, Barrister, Wellington Crown Law, Wellington (for respondent)

L v R [2023] NZHC 3794 [19 December 2023]

Introduction

[1]    On 18 March 2021, following a judge-alone trial in the Palmerston North District Court, Judge Edwards found the appellant, Ms L, guilty1 of the charge of causing grievous bodily harm with intent to cause grievous bodily harm.2 The appellant had also pleaded guilty to a charge of neglect of a child.3 On 22 October 2021, the appellant was sentenced to eight and a half years’ imprisonment, with a further two years’ imprisonment on the neglect charge.

[2]    No appeal is now pursued against the sentence imposed. However, the appellant appeals her conviction. In particular, the appellant submits the evidence relied on by the Judge was insufficient for her to be satisfied beyond reasonable doubt of the appellant’s guilt.

Background to the offending

[3]    The charges arose following Ms L’s 11-year-old son I being taken to Palmerston North Hospital on 19 May 2019 with serious burns to around 25 per cent of his body. He was transferred to the National Burns Centre at Middlemore Hospital the following day.

[4]    When I was admitted to Palmerston North Hospital, staff were concerned that his burns were not consistent with his mother’s account of how they had occurred, namely that on 14 May 2019, I had been cooking pasta when he tripped and spilled the pot of boiling water and pasta on himself. Police and Oranga Tamariki conducted a joint investigation and obtained evidence that Ms L had been purchasing items used to treat I’s burns at home from 9 May 2019 onwards. Ms L was then charged with ill- treating I by failing to seek appropriate medical assistance for him, to which she subsequently pleaded guilty.

[5]    I was discharged into the care of an Oranga Tamariki-approved caregiver in mid-August. Within a few days of arriving, I told her that he did not get burnt from

1      R v L [2021] NZDC 4906 [conviction decision].

2      Crimes Act, s 188(1) – maximum penalty 14 years’ imprisonment.

3      Section 195 – maximum penalty 10 years’ imprisonment.

the pasta, but that his mother had poured boiling water on him from a kettle while he was lying on plastic she had put down on his brother’s bed. He said he had not told anyone because he was scared his mother would get angry. He said his mother had told him to tell people it was the pasta. In an evidential video interview (EVI) conducted on 26 August 2019, I repeated and expanded upon this account and made other claims of physical abuse. Ms L was charged with causing grievous bodily harm to I with intent to do so.

District Court decision

[6]    The Judge noted that the issue she was required to decide was whether the Crown had proved beyond reasonable doubt that Ms L caused the burns by deliberately pouring boiling water on I.4 The Judge noted that the Crown relied primarily on the expert medical evidence of Mr Wong-She, who was the clinical lead at the National Burns Centre at Middlemore Hospital and I’s treating clinician.

[7]    The Judge first considered I’s video recorded evidential interview, which, following an unsuccessful challenge,5 was admitted as hearsay evidence. The Judge noted there were “obvious difficulties in relying on what I said during that interview as credible or reliable” and that the defence position was that “the inconsistencies and contradictions in [I’s] evidence means that no weight can be placed on anything he said during that interview.”6

[8]    The Judge noted that in this case, the need for caution was even greater than in the usual case of deciding what weight should be given to hearsay evidence, given that I avoided making the required promise to tell the truth and had been told his mother would not get to see the recorded interview.7

[9]The Judge noted, in respect of I’s evidence:8

… Some of what he said seemed incredible, other parts exaggerated or embellished. Yet, when the interviewer was able to keep him focused on how

4      Conviction decision, above n 1, at [12]. 5 L (CA561/2020) v R [2020] NZCA 652. 6 At [14].

7 At [15].

8 At [16].

he got his burns and what happened afterwards, much of what he said was consistent, detailed and plausible.

[10]   The Judge noted she was not required to make findings in relation to other claims that I had made which were or were suggested to be untrue or inconsistent.9 The Judge said they did not lead her to reject I’s entire account.

[11]The Judge then said:

[20] What [I] said during the interview about how he got his burns was consistent with what he told his foster carer and repeated to a social worker the following day, although his account at interview [w]as more detailed. In particular, on both occasions, he described his mother boiling the kettle four or five times and putting the plastic on his brother’s bed so the sheets would not get wet. He said he was tied up and lying on his back when his mother poured the water on him, but the water ran down under his back on the plastic and burnt him there as well.

[12]   The Judge noted that some of the details I gave were “quite specific and therefore plausible”, such as the fact that he described the plastic as “not a sheet or exactly a plastic bag but one of the bags with two handles that a mink-feel blanket comes in”.10 The Judge went on to state:

[22]    The absence of physical evidence corroborating his account does not in itself cause me to reject [I’s] allegations. He may well have been mistaken about a kettle being used, rather than an electric jug. There may be other explanations for why the police did not find a kettle. or scarves, or the type of plastic bag a blanket comes in, when they executed a search warrant over three months after [I] sustained his burns.

[13]   The Judge then noted two other factors that she took into account “in assessing whether I was trying to tell the truth at his interview”.11 The first was that:

… despite his antics and avoidance tactics, [I] seems to have a sense of what is right and wrong and what is unfair. He thought it was unfair that his younger brother was punished for doing something wrong, even by accident, because he is only two years old. He took umbrage at being accused of hitting his other brother when he had a friend with him at the time who would have seen it and then expressed disbelief when the response was that he could have done it without anyone noticing.

9      At [17]-[19].

10 At [21].

11     At [23]-[25].

[14]   The second factor was that the motivation suggested by the defence for I to falsely accuse his mother, namely that he could have more food and a better variety of food at his foster home, made little sense viewed in the context “that the cupboards, fridge and freezer in [the appellant’s] home contained plenty of sustainable food” when the constable saw them, or the considerable quantities of food ordered through online grocery shopping.12 The Judge noted that “[o]f course, [the appellant] does not have to suggest or prove any reason why I would falsely accuse her”.13

[15]The Judge concluded, in respect of I’s evidence:

[26] While I treat the reliability of [I’s] evidential interview with the considerable degree of caution it warrants, I am not prepared to disregard everything he said about how he sustained his burns as untrue.

[16]   The Judge also found that the circumstances in which I first made his allegation to his foster carer lent I’s evidence credibility.14 The Judge noted that I made the allegation without any prompting whatsoever and that “his explanation as to why he had not told anyone earlier was consistent with his reluctance to tell his social worker or the police”.15

[17]   The Judge noted that although the appellant lied about where I suffered his burns and how serious they were, this did not determine her guilt, and people lie for various reasons.16 However, her Honour concluded that in the absence of any evidence of any other reason for the delay in seeking medical assistance for I, the reason was because she did not want the cause of his burns to be investigated.17

[18]   The Judge considered the evidence that was determinative of the case, however, was the expert medical opinion of Mr Wong-She.18 This passage is critical to the Judge’s finding of guilt, and I reproduce it in full:

[32]      In the end however, the evidence which determines this case for me is the expert medical opinion of Mr Wong-She. He was a very fair and measured

12 At [25].

13 At [24].

14 At [27].

15 At [27].

16 At [31].

17 At [31].

18 At [32].

witness. He acknowledged that both the accounts he had been given as to the cause of the burns were plausible. He acknowledged that it was possible the burns were caused by [I] tripping while carrying a pot of boiling water and spilling or pouring it onto himself. He acknowledged that it was possible the burns to [I’s] back were caused by the water pooling under him as he lay on the floor. He conceded that he could not explain the dark shaped patches of unburnt skin on [I’s] inner thighs if [I] had not had the tops of his legs together when the boiling water made contact.

[33]      However, Mr Wong-She’s evidence was that the second account was “almost definitely the cause” of the burns. There were several important factors which he said were more consistent with the second account than with the accidental scenario. These included the distribution of the burns, the varying depths of the burns, and the different stages of healing of the wounds. In his expert opinion, the burn pattern was more consistent with someone not wearing clothing. In Mr Wong-She’s opinion, the most likely cause of the deep burns to [I’s] back was water pooling under his back as he lay on the plastic.

[34]It was put to Mr Wong She that those burns could have been caused if

[I] had fallen onto his back on the kitchen floor with the pot of boiling water and pasta. While the witness conceded it was possible, in his view the depth of the burns to [I’s] back could only have happened if there had been contact for a prolonged period of time. He did not consider that the burns would have been caused on a cool surface like a floor, given water cools very rapidly.

[19]The Judge concluded:

[37]   I am satisfied on Mr Wong-She’s evidence that the most likely cause  of [I’s] burns is boiling water being poured onto him while he was restrained and lying on a plastic surface. While Mr Wong-She acknowledged the accidental scenario is a possibility, in the context of all the evidence I heard, I do not consider it is a reasonable possibility.

[20]   The Judge said that when she considered Mr Wong-She’s evidence together with the other evidence she accepted as credible and reliable, she was not left with any reasonable uncertainty as to the appellant’s guilt and found the appellant guilty of the charge.19

Submissions

Appellant's submissions

[21]   The essence of the submissions of Mr Ruane, for the appellant, both written and oral, is that the medical evidence given at the trial from Mr Wong-She was entirely

19 At [38].

dependent on the accuracy and reliability of the account given by I in his EVI, which the appellant says was neither credible nor reliable. The appellant submits that the medical evidence, in combination with I’s account, was therefore insufficient to establish the charge proved beyond reasonable doubt.

Respondent's submissions

[22]   Mr Murray, for the respondent, submits that the Judge was correct in concluding that the evidence in totality established the charge beyond reasonable doubt. The respondent says the Judge appropriately noted the difficulties with I’s account and was right to ultimately conclude that they did not detract from I’s credibility. In respect of the evidence of Mr Wong-She, the respondent says the Judge dealt with his evidence appropriately and drew reasonable conclusions from that evidence. As such, given the combination of all the evidence, the Judge was entitled to find the charge proven beyond reasonable doubt.

Approach to appeal

[23]   The Court must allow an appeal of a decision in a judge-alone trial if it is satisfied that the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.20

[24]   A “miscarriage of justice” is any error, irregularity, or occurrence in or in relation to or affecting the trial that (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.21   A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.22 The errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court must condemn the trial as unfair and quash the decision.23

20   Criminal Procedure Act 2011, s 232(2)(b)–(c).   For conviction appeals involving WorkSafe  see for example Southern Pallet Recycling Ltd v WorkSafe New Zealand [2022] NZHC 1042, (2022) 18 NZELR 873; and Waimea Sawmillers Ltd v WorkSafe New Zealand [2016] NZHC 915.

21 Section 232(4).
22 Matenga v R [2009] NZSC 18 at [30].

23 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

[25]   A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.24 The appellant does not have to establish that the verdict was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.25 To meet the “real risk” test, “something more” than a simple disagreement with a judge’s factual assessment is required.26

[26]   In an appeal from a judge-alone trial, the appellate court must form its own independent judgment on the merits of the appeal following the approach in Austin, Nichols.27 If an appellate court comes to a different view on the evidence, the judge necessarily will have erred and the appeal must be allowed.28 However, the appellant bears the onus of persuading the appellate court to reach a different conclusion, and in discharging that onus must identify the respects in which the judgment under appeal is said to be in error.29 Additionally, in determining whether the judgment was wrong, the appellate court “must take into account any advantages a trial judge may have had.”30 Some caution must therefore be adopted before departing from factual findings. Ultimately the appellant must persuade the appeal court that the trial judge erred.

Points being pursued on appeal

[27]   First, the appellant submits the Judge erred in failing to find that I was an unreliable witness. The appellant does not challenge the use of I’s evidential interview by way of a hearsay statement, but says that the Judge erred in the way she dealt with the need for caution in dealing with his evidence. The appellant says I is a demonstrably unreliable witness, pointing to false allegations he made to Dr Rishi Duggal, which must damage his credibility. The appellant says the allegations contained in I’s EVI were not challenged at the time of the interview, and have not subsequently been able to be tested and challenged.

24     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

25 At [110].

26     Gotty v R [2017] NZCA 528 at [15].

27     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

28 At [38].

29 At [38].

30 At [38].

[28]   The appellant also says the Judge erred in failing to place weight on the wound pattern described by Mr Wong-She being inconsistent with I’s description of how he was tied. The appellant also criticises the Judge for relying on the evidence of the foster carer and social worker despite other allegations made by I being challenged and then retracted. The appellant says that the Judge’s conclusion that she treated the reliability of I’s evidential interview with “the considerable degree of caution that warrants”, but was not prepared to disregard everything he said about how he sustained his burns, does not recognise the very high standard of proof required for a finding of guilt. The appellant says that given these issues, the Court could not have been satisfied, beyond reasonable doubt, about the truth of the allegations made by I.

[29]   The appellant also challenges the Judge’s treatment of Mr Wong-She’s evidence, which the appellant says was based on I’s (unreliable) evidence. Mr Wong- She treated I at the National Burns Centre at Middlemore Hospital, and subsequently provided two medical reports about the causation and mechanism of the injuries sustained by I. The first report was based on the account that I had tripped and spilled pasta water over himself. Mr Wong-She accepted this as a possible cause of the injuries.

[30]   The second report followed I’s EVI and was based on the suggestion that the burns occurring as a result of being tied down on a plastic surface. Mr Wong-She considered this was “the more likely cause” of the injury. The appellant says the Judge failed to deal with the discrepancy between I’s evidence that his feet were tied to the end of the bed with the legs apart and Mr Wong-She’s medical evidence that because of the unburned areas on the inside of I’s legs, “the legs were likely to be together”. The appellant says the Judge made it clear that she considered the evidence that determined the case for her was the evidence of Mr Wong-She, and that given his evidence depended entirely on the accuracy and reliability of I’s EVI, his evidence should be treated with considerable reserve and was not sufficient to find the appellant guilty beyond reasonable doubt.

Analysis

[31]   Mr Wong-She gave an initial medical report on 19 June 2019. He was of the opinion that the burn injury was at least 10-12 days of age by the time he was seen at Middlemore Hospital. As he noted: “This would suggest that I had been burnt earlier than reported, and consequently there was a longer delay before medical attention was sought”. Mr Wong-She was of the opinion that the burn injury was “consistent with the proposed mechanism of a spill of hot water cooking pasta. The serpiginous burn down his medial left leg could be the result of a strand of hot pasta.”

[32]   Mr Wong-She then gave an additional medical report on 14 January 2020, having been asked to give an opinion as to whether the injury could have been sustained under different circumstances, namely “a naked individual, restrained to a bed, lying on a plastic bag under the middle of the body and having the contents of a freshly-boiled electric jug poured over the middle of the body”. In the additional medical report he stated that:

Having reviewed the images and distribution of the burn injury sustained by [I], it is my opinion that not only is the restrained circumstance a possible cause of his injuries, but it is also, in my opinion, the more likely cause of the pattern of injury seen.

[33]His report was otherwise unaltered.

[34]   The wording used in these reports is important. In his first medical report,  Mr Wong-She noted that the injuries were “consistent”31 with a burn from hot water being spilled cooking pasta, and that one burn in particular “could be the result of a strand of hot pasta.”32 In his later report, however, Mr Wong-She noted that the restrained circumstance was “the more  likely  cause  of  the  pattern  of  injury”.33  Mr Wong-She expressly considered the two contrasting scenarios suggested as the cause of the burns, and concluded that the restrained scenario given by I was “the more likely cause”.

31     Emphasis added.

32     Emphasis added.

33     Emphasis added.

[35]   The Judge carefully considered Mr Wong-She’s evidence, noting his concessions. She found him to be a “very fair and measured witness”, who acknowledged that both the accounts he had been given as to the cause of the burns were plausible. Nevertheless, the Judge was satisfied on Mr Wong-She’s evidence that the most likely cause of I’s burns was boiling water being poured onto him while he was restrained and lying on a plastic surface. This was a finding that was reasonably open to the Judge to make. It is particularly important to bear in mind the advantages the trial Judge had in assessing the witness personally. The Judge considered both possibilities and was entitled to find the charge proven beyond reasonable doubt on the basis of the evidence before her, in particular that of Mr Wong- She.

[36]   A court on appeal may come to a different view on the evidence. As noted, however, for there to be found on appeal a “real risk” that the verdict was safe requires “something more” than a simple disagreement with a judge’s factual assessment.34 Ultimately the appellant must persuade the appeal court that the trial judge erred.

[37]   Overall, I am not satisfied that there is anything in the appellant’s submissions that gives rise to a real risk that the verdict reached was unsafe. Neither do I disagree with the factual findings reached by the Judge.

Conclusion

[38]   I am satisfied that the Judge did not err in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any other reason.

Result

[39]The appellant’s appeal against her conviction is dismissed.

Churchman J

34     Gotty v R [2017] NZCA 528 at [15].