Pickering v R
[2012] NZCA 311
•19 July 2012
| For a Court ready (fee required) version please follow this link |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA546/2010 [2012] NZCA 311 |
| BETWEEN PATRICIA PICKERING |
| AND THE QUEEN |
| Hearing: 28-29 March 2012 |
| Court: Glazebrook, Ellen France and Stevens JJ |
| Counsel: F P Hogan for Appellant |
| Judgment: 19 July 2012 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is refused.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
Introduction [1]
Factual background [4]
The High Court trials [6]
First ground – discharge of first jury [10]
Circumstances leading to application for discharge [10]
Ruling on Crown application for discharge [13]
Submissions on appeal [17]
Our evaluation [19]
Second ground – decisions on defence applications
under ss 345 and 347 [27]
The statutory provisions relied on [30]
Jurisdiction [32]
The Judge’s ruling under s 345 [39]
Our evaluation [42]
The Judge’s ruling under s 347 [45]
Our evaluation [46]
Third ground – prosecutor’s breach of “undertaking” [48]
Competing submissions [55]
Our evaluation [59]
Fourth ground – admission of evidence of scars and old injuries [61]
The Vuletic evidence [63]
The Judge’s ruling [69]
Submissions on appeal [74]
Our evaluation [76]
Consequences of the appellant’s discharge on count 2 [83]
(a)The decision to discharge [84]
(b)Events between discharge and summing up [89]
(c)Summing up [92]
(d)The competing submissions [93]
(e)Our evaluation [97]
Fifth ground – partisan evidence by Dr Christian [104]
Dr Christian’s evidence [104]
Submissions on appeal [106]
Our evaluation [108]
Sixth ground – alleged errors in summing up [115]
Circumstantial evidence/inferences [116]
Onus and standard of proof [123]
Dr Squier’s evidence [126]
Irreconcilable conflict in Crown case [133]
Further observations on summing up [139]
Seventh ground – alleged prosecution misconduct [143]
Cream Tuesday [144]
Calling of Zane Wright [150]
Evidence of Ms Cooper [156]
Eighth ground – alleged misconduct in Crown closing [160]
Speculation [161]
Sarcastic, emotive and inflammatory language [164]
Ninth ground – fresh evidence [177]
The applicable principles [183]
Respondent’s position [187]
Our evaluation [188]
Result [191]
Introduction
On 18 April 2008, three-year-old Dylan Rimoni died as a result of traumatic brain injuries. Following a trial before Wylie J and a jury in the High Court at Auckland, the appellant, Patricia Pickering, was convicted of Dylan’s murder. The appellant appeals against that conviction. The trial was the third attempt to try the appellant on a four count indictment, including the murder charge.
The appellant advances nine grounds of appeal as follows:[1]
[1]The notice of appeal listed two additional grounds: that the evidence of Barry Nathan Senior was inadmissible as a previous consistent statement and that the summing up favoured the Crown. Before us, Mr Hogan stated that he wished to abandon those grounds of appeal.
(a)The Judge was wrong to discharge the first jury under s 22 of the Juries Act 1981.
(b)Given the state of the prosecution evidence prior to the commencement of the second trial, the Judge ought to have quashed the murder charge under s 345 of the Crimes Act 1961 or discharged the appellant on that charge under s 347 of the Crimes Act.
(c)The prosecutor failed in his opening address at the third trial to abide by an undertaking given when the second jury was discharged.
(d)The evidence of old scars and head injuries was improperly admitted and, if properly admitted, was the subject of an erroneous propensity direction by the Judge.
(e)One of the Crown expert witnesses, Dr Christian, gave partisan evidence resulting in a miscarriage of justice.
(f)The Judge’s summing up contained various errors which either individually or collectively resulted in a miscarriage of justice.
(g)The police officers investigating the case were guilty of misconduct during the process of interviewing witnesses, resulting in a miscarriage of justice.
(h)The prosecutor was guilty of misconduct in the course of his closing address.
(i)The appellant applied for leave to adduce fresh evidence to be considered on appeal, such evidence comprising a report from Dr Lammie of the Department of Pathology, Cardiff University.
We will address each of these grounds in turn. We begin with an outline of the broad factual background. But in order to understand the nature of some of the challenges it will be necessary to expand on the trial dynamics, the reasons for requiring three trials and the context relative to particular points.
Factual background
Dylan went to live with the appellant and her partner Douglas Hoeta shortly after his second birthday because his mother could no longer care for him. The appellant was his main caregiver because Mr Hoeta was often absent from the house where they lived together. On 16 April 2008 at 12:20 am the appellant called 111 and stated that Dylan was having trouble breathing and was not responsive. Dylan died in hospital as a result of traumatic brain injury on 18 April. A post mortem revealed a number of other injuries including old brain injuries, a healing rib fracture, bruises and scars.
The appellant was charged with murder, assault on a child and causing grievous bodily harm with intent to cause grievous bodily harm (two counts). The murder charge (count 4) related to the events of 15–16 April 2008. The assault charge (count 1) was based on a separate incident in which a neighbour observed the appellant throwing Dylan to the floor. The grievous bodily harm charges (counts 2 and 3) related to the rib fracture and an older serious head injury, described in the indictment as the first head injury.
The High Court trials
The first trial commenced before Wylie J and a jury in the High Court in Auckland on 22 February 2010. For reasons we will later describe the original jury was discharged on 17 March and the trial was postponed until May. The second trial commenced before Wylie J and a jury on 4 May 2010. Following a problem with a juror early in the second trial, that jury was discharged.[2] The third jury was empanelled on 6 May 2010. During the third trial the appellant was discharged under s 347 of the Crimes Act on count 2 (the first of the grievous bodily harm charges). The appellant was ultimately found guilty of murder but not guilty of the assault and the remaining grievous bodily harm charge.
[2] R v Pickering HC Auckland CRI-2008-055-1273, 6 May 2010 (Minute No 4).
According to the prosecutor’s opening, the Crown case was that Dylan sustained the fatal head injury immediately prior to his death, and that that injury was inflicted by the appellant. The Crown suggested that the injury was caused “by slamming his body, his head, against the wall, the floor, the door, something hard to cause such injury to his brain that he never recovered”. The Crown case was based on the evidence of Ms Pickering’s neighbours (who heard screaming both on the night of 15 April and in the weeks preceding that evening), evidence of the injury to Dylan’s brain, evidence of past injuries, and evidence of medical experts who suggested that the injury sustained by Dylan would have led to his immediate collapse.[3]
[3]R v Pickering HC Auckland CRI-2008-055-1273, 21 June 2010 (Summing up) at [60].
The defence case focussed on challenging the reliability of the neighbours’ accounts and suggesting alternative explanations for Dylan’s past injuries. In particular, the defence suggested that Dylan’s fatal head injury could have been sustained several days earlier when Dylan fell from a trampoline. This theory was based on the possibility of Dylan experiencing a “lucid period” during which no serious symptoms of his head injury were apparent.[4] The appellant was interviewed by police in an interview recorded on videotape. The appellant did not give evidence at her trial.
[4]Summing up at [61(h)].
Given the nature of the cases for the Crown and the defence, expert medical evidence was an important feature of the trial. For summary purposes, it is sufficient to note that the important Crown experts were Dr Christian (paediatrician), Dr Smith (neuropathologist) and Dr Vuletic (the pathologist who carried out the post-mortem on Dylan). Other Crown experts of less relevance to this appeal included Dr Campanella (paediatrician) and Dr Lee (neuroradiologist). The most important defence expert was Dr Squier (neuropathologist).
First ground – discharge of first jury
Circumstances leading to application for discharge
At the depositions the Crown called evidence from a forensic neuropathologist, Dr B.[5] It was expected that Dr B would give evidence for the Crown in the week commencing 15 March 2010. On 12 March 2010 Dr B was diagnosed with an acute medical condition. As a result of that illness she was unable to continue as a witness. The Crown accepted that it was necessary to secure a replacement forensic neuropathologist to give evidence similar to that given by Dr B in her deposition.
[5] We have anonymised the name of the forensic neuropathologist to protect her privacy.
To provide context to the above, two forensic neuropathologists instructed by the defence, Drs Waney Squier and Helen Whitwell, met with Dr B in Auckland prior to the first trial. The purpose of the meeting was for the defence neuropathologists to examine slides prepared by Dr B (the Auckland slides). At the conclusion of the meeting Dr B agreed to obtain further tissue material to enable slides to be produced and examined by Dr Squier in Oxford, England (the Oxford slides).[6] It was anticipated that the tissue material would be provided promptly, certainly within a week or so. But unbeknown to the Crown prosecutor, the Judge, defence counsel or the defence neuropathologists, Dr B, on approximately 19 February 2010, began a period of some three weeks away from work with an illness that prevented her attending to any work related matters.
[6] There was also a third set of slides in existence, the “Edinburgh slides”.
The trial began on 22 February 2010. The appellant’s counsel Mr Hogan informed the Judge early in the trial of the urgent need to despatch the further material to Dr Squier in Oxford. By the middle of the second week of the trial, the slide material had still not been despatched to Dr Squier. This led to a discussion with the Judge who was told by the prosecutor that Dr B was ill. Although the slide material was despatched and received by Dr Squier by 6 March, Dr B remained ill and away from work during the third week of the trial. On 12 March 2010 Dr B was seen by a specialist who later gave evidence on a voir dire about her findings on Dr B’s health. The specialist said Dr B presented with a critical and acute medical condition that had arisen over the preceding period of approximately two days. She explained that Dr B had been suffering various symptoms relevant to her condition since August 2009. A defence application to call hearsay evidence directed at the work attendance of Dr B since late 2009 was declined.[7]
Ruling on Crown application for discharge
[7]R v Pickering HC Auckland CRI-2008-055-1273, 17 March 2010 (Ruling No 6). A further defence application to call Dr B’s immediate superior to give evidence about the medical condition of Dr B at an earlier time and what steps, if any, he took to inform the Crown of Dr B’s medical condition was also declined: R v Pickering HC Auckland CRI-2008-055-1273, 17 March 2010 (Ruling No 7).
The prosecutor learned of Dr B’s indefinite incapacity late on the afternoon of 12 March 2010 and alerted the appellant’s counsel the next day. The Crown was unable to arrange an alternative expert at short notice because Dr B’s unique expertise was not possessed by any other medical expert in this country. After dismissing the defence applications to call further evidence about Dr B’s medical history, the Judge heard a Crown application seeking a discharge of the jury under s 22(3)(a) of the Juries Act on the basis that there was a casualty or emergency which made it highly expedient for the ends of justice that the jury be discharged and the trial be postponed. The Judge granted the application and ordered that the trial be adjourned until 3 May 2010.[8]
[8] R v Pickering HC Auckland CRI-2008-055-1273, 17 March 2010 (Ruling No 9).
In his reasons, Wylie J first considered the circumstances leading to the deterioration in Dr B’s heath. The Judge concluded:
[26] The evidence satisfied me that [Dr B’s] condition deteriorated quickly and markedly in the days immediately prior to 12 March 2010. [Dr B] had been unwell prior to that date – indeed, Mr Hamlin so advised me during the course of the trial. It does not, however, follow that because a prospective witness has been unwell, the witness will be unable to give evidence at a later date. I accept the advice that I received from Mr Hamlin, namely that the Crown did not know the details of [Dr B’s] medical condition, or that [Dr B] would be unable to give evidence, until late in the afternoon of Friday 12 March 2010. I am also satisfied from the evidence of [the specialist] that [Dr B] was unable to give evidence to the Court during the week of 15 March 2010 or in the foreseeable future.
[27] [Dr B’s] inability to give evidence is clearly a chance occurrence or a mishap. It is a “casualty” as that word is used in s 22(3)(a). Moreover, it has had an impact on the ordinary processes of the trial.
The Judge ruled that Dr B’s unavailability was a casualty that had created an emergency for the Crown.[9] As a result, the Crown was unable fully to advance its case to the jury. The Judge referred to a defence submission that the Crown was seeking a discharge to facilitate better preparation to meet defence medical evidence, details of which had shortly before been released to the Crown. The Judge rejected this argument:
[33] There is no proper foundation for Mr Hogan’s submission. Mr Hamlin’s application was not founded on ambush. It was founded squarely on [Dr B’s] unavailability. I accept fully that a jury should not be discharged at the instance of the prosecution, merely to enable the Crown to come better prepared before another jury with better evidence … . In the present case, this issue simply does not arise.
[9] At [31].
The Judge then considered whether a discharge was “highly expedient for the ends of justice”, in the sense of being necessary to prevent a miscarriage of justice. The Judge held:
[35] In my view, it is necessary to prevent a miscarriage of justice that a discharge be granted in the present circumstances. Were I to deny a discharge, the Crown would be unable to advance its best evidence relating to the timing of the fatal injuries. The defence’s position, in the event that the accused elects to [call] evidence, would become the only substantial evidence on the issue. The Crown’s theory of the case would be substantially undermined. That would not be fair to the Crown.
[36] Justice is not a one-sided coin. In my view, it is expedient for the ends of justice that the trial proceeds on a fair basis – fair to both the community and the accused. It would be unfair to the Crown, representing the community, to require it to proceed when it is prevented from a calling a key witness whose evidence is central to its theory of the case, because that witness has unexpectedly become unavailable through ill health. The position would be no different if the accused, or one of the accused’s key witnesses, were suddenly unavailable as a result of ill health.
[37] In my view Mr Hogan’s arguments on behalf of the accused are opportunistic and seek to take advantage of a windfall opportunity afforded by [Dr B’s] unavailability. When I put this proposition to him, he was unable to rebut the same in any satisfactory way.
[38] I note Mr Hogan’s submissions regarding prejudice to the accused. In my view, the position of the accused is no different from that of any other accused person who faces a second trial on the same evidence following an earlier trial in which a jury has been unable to reach a verdict.
Submissions on appeal
Mr Hogan submitted that Dr B’s medical condition was not a casualty or emergency because it was not a “sudden onset illness” such as a heart attack. Counsel further submitted that the Judge wrongly denied the defence the opportunity of adducing further evidence of Dr B’s medical history at the hearing of the application. He submitted Dr B’s unavailability was not unforeseeable: the existence of symptoms from August 2009 suggested that an inability to give evidence during the trial in March 2010 was “readily foreseeable”. Mr Hogan went further claiming that there was an obligation on Dr B’s employer as “one limb of the Crown” to communicate with the Crown Solicitor that the symptoms experienced by Dr B in late 2009 might lead to her unavailability to give evidence at the trial.
For the respondent Mr Lillico submitted that Dr B’s illness was a classic form of casualty leading to an emergency at the trial. Counsel supported the reasoning in the Judge’s ruling. He emphasised that the Judge had accepted the advice he received from the prosecutor that the Crown did not know the details of Dr B’s medical condition or that Dr B would be unable to give evidence until late in the afternoon of Friday 12 March 2010. Any prior knowledge (around the middle of the second week of the trial) that Dr B was ill did not change the position. Mr Lillico noted that Dr B was not employed by the Crown but rather by a separate entity, the Auckland District Health Board. In any event there was no obligation on Dr B’s employer to advise of symptoms of an employee in the lead up to the trial.
Our evaluation
The words “casualty or emergency” in s 22(3)(a) of the Juries Act have most recently been considered by the Supreme Court in Buddle v R.[10] The reasons of the majority (given by Tipping J) referred to the decision of this Court in R v Tatana[11] and the comprehensive survey of the previous case law given there. As to the meaning of the words “casualty” and “emergency”, then contained in a similarly worded s 374 of the Crimes Act, this Court said:[12]
The words “emergency” and “casualty” are common words. It would be difficult to conclude that the circumstances in this case amounted to an “emergency”. “Casualty”, however, is defined in the New Shorter Oxford Dictionary as being “a chance occurrence, an accident, a mishap, a disaster”. The circumstances in which it may be desirable in the interests of justice to discharge a jury under s 374 are multifarious and possibly indefinable. We do not see any need to adopt a strained or limited interpretation of “casualty”.
[10] Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717.
[11] R v Tatana (1994) 11 CRNZ 708 (CA).
[12] At 711.
Commenting on what was said in Tatana, Tipping J in the Supreme Court stated:
[36] Of the dictionary definitions of casualty referred to in Tatana, the most apt, for present purposes, is “mishap”. Something must have gone wrong with or affecting the trial process. As was said in Tatana, the concept of casualty, and the same applies to the synonymous term “mishap”, should not be given a narrow or limited construction. Parliament has nevertheless clearly confined the power to discharge to circumstances in which it can be said that the ordinary processes of trial have been subject to an occurrence which can fairly be called a casualty or mishap.
Counsel helpfully referred us to a number of other authorities including the decisions of this Court in R v Samuels[13] and the High Court in Namana v Wellington District Court.[14] In the former the casualty arose from errors in, and the resulting invalidity of, a certificate provided by the Commissioner of Police for an undercover officer. Applying the definitions used in Tatana this Court upheld the Judge’s finding of a casualty, notwithstanding that the prosecuting agency was the author of the difficulty. In Namana the same test was applied in a context where the Crown was aware prior to the commencement of the trial of potential difficulties with an important lay witness. Mallon J accepted that the inability of the police to locate the witness once a warrant for his arrest was obtained was in the circumstances unexpected.[15]
[13] R v Samuels (2001) 18 CRNZ 566 (CA).
[14]Namana v Wellington District Court [2012] NZAR 196 (HC).
[15]However, Mallon J went on to find that the District Court Judge had erred in making an order for discharge of the jury because of a failure to apply the statutory test requiring it to be “highly expedient for the ends of justice”.
We have no doubt that the judgment of Wylie J granting the application for discharge of the jury in the circumstances of this case was correct. We are satisfied that the events surrounding Dr B’s critical and acute condition, and the resulting incapacity occurring three weeks into the trial, gave rise to a mishap of the type described by the Supreme Court in Buddle. The unexpected incapacity of an important expert witness on a live trial issue in circumstances where no short term replacement expert was available in New Zealand meant that something had gone wrong with or affecting the trial process. There is no dispute about the unique nature of Dr B’s forensic medical expertise. An adjournment of the trial for a short period was not realistic.
At the time the trial started on 22 February, nothing had occurred to suggest to any counsel, or the Judge, that Dr B would not be able to give evidence during the trial. Even when the prosecutor learned around the second week that Dr B was ill, the position had not changed. The prosecutor only knew of the indefinite incapacity of Dr B on 12 March. We are satisfied that these factual aspects were properly taken into account when the Judge made his ruling.
We therefore uphold the Judge’s conclusions for the reasons he gave. For completeness, however, we deal briefly with the further points raised by Mr Hogan. First, we are satisfied that the incapacity of Dr B was not foreseeable: it was the equivalent of a sudden onset illness. The fact that Dr B had exhibited some symptoms in August 2009 cannot affect the situation. There is no suggestion that the prosecutor knew about these symptoms, let alone knew of any likely incapacity of Dr B prior to the trial. The evidence is the other way. When the prosecutor informed the Court some ten days into the trial that Dr B was ill, the expectation was that such illness would not preclude Dr B from giving evidence.
We reject Mr Hogan’s submission that Dr B’s employer had an obligation to advise the Crown Solicitor sometime in late 2009 that Dr B had medical issues. First, Dr B’s employer is not “the Crown” as Mr Hogan argued. Second, there is no evidence to support the proposition that the symptoms exhibited from August 2009 would make an indefinite incapacity likely to occur during the trial. In any event, even if the employer had known of potential difficulties, we doubt the existence of any obligation to advise the Crown Solicitor in the present circumstances. Obvious privacy and confidentiality issues are likely to have precluded such disclosure. It follows that we see no reason to differ from the Judge’s view that further evidence on this aspect was hearsay and irrelevant in any event. Finally we reject Mr Hogan’s submission that Dr B, as a professional expert witness, had an obligation to tell the Crown about her possible incapacity. There is no evidential foundation to support an obligation of that type here, let alone a claim that Dr B failed to comply with any such obligation.
For the reasons outlined the first ground of appeal fails. Given that we have upheld the Judge’s conclusions on the discharge application, there is no need for us to address Mr Hogan’s consequential submission that a discharge of the appellant ought to have been granted following what should have been an unsuccessful Crown application. The theory Mr Hogan relied upon is that an “error” by the Judge on the casualty point would vitiate the whole trial. It is difficult to see how this could give rise to a miscarriage of justice. As the respondent submitted, the appellant did not forfeit any trial rights. She has since had the benefit of a complete trial, being the trial that took place commencing 6 May 2010. We also note the implication arising from the decision of the Supreme Court in Buddle that an error of that type would be no bar to a new trial being conducted even if there were a wrongful discharge.[16]
Second ground – decisions on defence applications under ss 345 and 347
[16]This is apparent from the order in Buddle that there should be a retrial in respect of charges against the second complainant: at [45].
Between the time the first jury was discharged and the start of the second trial, the Crown sought to instruct a substitute neuropathologist who would be able to give the same or similar evidence as Dr B would have done. The services of Dr Smith of Edinburgh were retained, the Court being informed of his appointment during a case management conference on 15 April 2010.
The Judge directed the prosecutor to provide defence counsel with a copy of Dr Smith’s report (expected the next day) as soon as practicable. By the scheduled commencement of the second trial the defence had not received the anticipated report. This prompted Mr Hogan before the second trial commenced to file an application for discharge of the appellant on counts 2 and 4. The unsuccessful application relied in the alternative on ss 345(5) and 347 of the Crimes Act. The question is whether the Judge was wrong not to discharge the appellant under one or other of these sections.
On appeal the focus was solely on the murder charge (count 4) because the appellant was later discharged on count 2 after the close of the Crown case in the third trial. The appellant submitted that the evidence of Dr B was crucial to the Crown case and, because of Dr B’s indefinite unavailability, would not be able to be presented and relied upon by the Crown at the second trial. Defence counsel submitted that an essential element of the murder charge involved the Crown establishing that Dylan’s death was caused by injuries inflicted between 14 and 16 April 2008. It was submitted that only a neuropathologist could give the necessary evidence on this crucial issue of timing.
The statutory provisions relied on
Section 345(5) of the Crimes Act provides:
Except where an indictment is filed under subsection (3), the accused may, at any time before he is given in charge to the jury, apply to the court to quash any count in the indictment, on the ground that it is not founded on the evidence disclosed in the depositions; and the court shall quash that count if satisfied that it is not so founded.
The alternative basis was s 347 of the Crimes Act, which provides:
(1) Where any person is committed for trial, the Judge may, in his discretion,—
(a)of his own motion or on the application of the prosecutor or the accused; and
(b)after giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and
(c)after perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused—
direct that no indictment shall be filed, or, if an indictment has been filed, direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.
Jurisdiction
With respect to a refusal to grant a discharge under s 347, there is clear authority in this Court suggesting that there is no right of appeal to this Court.[17] In our view, the same must apply to a refusal to quash a count under s 345(5). This Court only has statutory jurisdiction and an appeal against a refusal of a s 345 order or a s 347 discharge is not included in any of the grounds in either s 383 or s 379A.
[17] See R v Wells CA77/00, 22 May 2000 at [3] and R v Harrison [2007] NZCA 588 at [12].
This Court in R v Dacombe[18] suggested that, once a case has reached the point of an appeal under s 383 of the Crimes Act against conviction or sentence (as is the case here), issues relating to ss 345 or 347 are subsumed into the broader inquiries under either s 385(1)(a) (verdict cannot be supported having regard to the evidence) or s 385(1)(c) (there was a miscarriage of justice). The Court said:[19]
Concern is expressed at the beginning of the extensive submissions filed on behalf of Dacombe about the dismissal of an application for discharge pursuant to s 345(5) of the Crimes Act 1961 made immediately before the trial commenced. When the Judge ruled against that application counsel asked for a point of law to be reserved under s 380 of the Crimes Act 1961, but the Judge was not inclined to accede to this request because she was not satisfied that a point of law was involved. We agree with that conclusion. After verdict, alleged inadequacy of evidence has to be framed in terms of the ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence.
[18] R v Dacombe CA276/99, 15 December 1999.
[19] At [9] (emphasis added). See also H v R (470/96) CA470/96, 28 May 1997.
This approach is of course consistent with there being no jurisdiction to appeal against a refusal to quash a count under ss 345(5) and 347. It does suggest that there might be an ability to reserve a question of law under s 380 (in a situation where a question of law does arise).
This is consistent with earlier dicta of this Court. With respect to s 345 this Court in R v Coneybear suggested the following:[20]
We think that the proper course, if counsel wished to challenge that ruling [refusing to quash the count under s 345], was for him then to ask the Judge to reserve the point pursuant to s. 380 of the Act; but he did not do so and the trial proceeded, apparently on counsel’s acceptance of the learned Judge’s ruling. It is open to doubt whether the appellants can now attack that ruling in an appeal brought under s. 383 …
[20] R v Coneybear [1966] NZLR 52 (CA) at 56–57.
By contrast, the later decision of this Court in R v Grime[21] suggests that s 380 is not applicable to ss 345 and 347. That case, however, dealt with a different situation of orders quashing a count under s 345 and granting a discharge under s 347.[22]
[21] R v Grime [1985] 2 NZLR 265 (CA).
[22] This situation is now dealt with under s 381A for s 347 discharges but s 345 is not covered.
We do not need to resolve the question of the applicability of s 380 as Mr Hogan did not seek to reserve a question of law. As in R v Coneybear, it seems that the trial proceeded, apparently on Mr Hogan’s acceptance of the ruling of Wylie J. In any event, Mr Hogan’s challenge to the rulings appears purely factual.
We also note that, even if an order had been made under s 345(5), that does not amount to an acquittal. We have no doubt that the Crown Solicitor would have been granted permission to file another indictment.[23] In any event, we consider the Judge’s rulings to have been correct.
The Judge’s ruling under s 345
[23] See s 345(3) of the Crimes Act 1961.
The Judge considered the two applications separately in his ruling,[24] dealing first with the requirements of s 345(5). The Judge noted correctly that it is a pre‑condition to the filing of an indictment that it is based on the evidence disclosed in the depositions. An accused may apply to the Court for an order quashing an indictment where the Court is satisfied that the indictment is not founded on the evidence disclosed in the depositions.[25] On such an application, attention is confined to the evidence given at the depositions hearing.[26] Under s 345(5) the Court’s approach is substantially the same as that approved by this Court for applications under s 347. The question is whether there is evidence upon which a jury properly directed could convict the accused on the charge(s) in the indictment.[27]
[24]R v Pickering HC Auckland CRI-2008-055-1273, 5 May 2010 (Ruling No 1).
[25]As occurred in Morgan v The District Court at Wellington HC Wellington CIV-2006-485-2038, 30 October 2006.
[26]Palu v The District Court at Wellington HC Wellington CIV-2005-485-458, 18 March 2005.
[27]Parris v Attorney-General [2004] 1 NZLR 519 (CA); R v Flyger [2001] 1 NZLR 721 (CA); R v Riley [1982] 1 NZLR 1 and H v Auckland District Court [2010] 1 NZLR 426 (HC).
Applying these principles, the Judge began by surveying all evidence before the Court at the depositions stage, noting:[28]
(a)It was common ground that Dylan came into the appellant’s care in March 2007, and remained with the appellant until his death on 16 April 2008.
(b)At the depositions hearing, Dylan’s birth mother gave evidence that he was a healthy baby of normal weight and without scars when he left her. Similar evidence was also given by Dylan’s grandmother, uncle and aunt.
(c)Mr Hoeta gave evidence that Dylan was an active boy, and that he had never physically disciplined him.
(d)After Dylan was placed with the accused, he was observed by various people to have a number of scars and bruises.
(e)Evidence given by Ms Pickering’s neighbours suggested that events were escalating in the six weeks prior to Dylan’s death.
(f)There was evidence from doctors who saw Dylan both before and after he went to live with Ms Pickering as to his medical condition.
[28] At [13]–[18].
The Judge was alert to the timing issue relating to the murder charge, given that the indictment alleged death had occurred between 14 and 16 April 2008. The Judge analysed the evidence as follows:
[24] At depositions, evidence was given by a neighbour – Trieste Ngatai – and by various members of her family, about events alleged to have occurred on 15 April 2008. She said that she got home from work that evening, and that while she was playing cards with family members, she heard Dylan screaming. She said she put her head out the window and heard the scream again, followed by the accused yelling at Dylan. She said that the accused sounded like a frustrated woman who just wanted her baby to shut up, and that Dylan’s scream was like he had had a jug of boiling water poured on him. Evidence to similar effect was given by Sequoia Nathan. She also said that she heard a bang that sounded like something hitting the floor. Barry Nathan said that he heard the accused shouting, that a little boy was crying, and that he heard the sound of smacking twice, and four thumps. He said that the thumps sounded like someone or something hitting the walls, and there were three thumps in a row, followed by a last one. He said that the last one sounded harder than the others. He said that he heard the accused say, “If you don’t shut your mouth, I’m going to punch you in the head”.
[25] There was also evidence from neighbours across the drive. In particular, a Mr Moehurori stated at depositions that on the Tuesday evening before the Police were at the house – 15 April 2008 – he heard a muffled scream, followed by a thump, followed by more muffled screaming.
[26] I have also considered the depositions evidence of the ambulance officers – Sherly-Lee Moorby, David Porter, Kevin Harnett and Wendy Lorrigan. They described Dylan’s critical condition when they arrived at the accused’s house in the early morning of Wednesday 16 April 2008.
[27] Dr Campanella saw Dylan when he was admitted to Starship Hospital in the early morning of Wednesday 16 April 2008. She described his condition at that time. She referred to his head injury, and said that based on clinical and post mortem findings, Dylan would have become symptomatic, with a loss of consciousness, and a period of apnoea (stopped breathing) soon after he sustained the head injury. This evidence ties in with the evidence of the ambulance officers. One scenario put forward by Dr Campanella was that the fatal head injury was sustained some time on Tuesday 15 April 2008. It was her opinion that the injuries were due to a non-accidental head injury.
[28] I have also considered the evidence of damage to the walls in the accused’s house, the presence of blood likely to have come from Dylan in various locations, and the fact that a hair likely to have come from Dylan was found in an indentation on the door.
Our evaluation
The Judge was careful not to rely on the depositions evidence of Dr B.[29] We are satisfied that the depositions evidence of the other witnesses described in the passages above amply meet the test in Parris v Attorney-General. We reject the appellant’s argument that only a neuropathologist could give the necessary evidence to establish the time of death. As is clear from the Judge’s ruling, the Crown also relied on other depositions evidence to establish the timing of the fatal injuries. Inferences from such evidence were plainly available to be considered on the s 345 application. Mr Hogan has come nowhere near demonstrating that the murder count was not founded on sufficient evidence in the depositions. The issues of timing and causation are quintessentially jury issues. The absence of the evidence of Dr B, or any substitute expert witness, was not decisive. We consider that the Judge’s ruling on the s 345 application was not in error.
[29]There is no reference to that evidence in Wylie J’s s 345 analysis and the Judge refers to the fact that he is able to take that evidence into account on the s 347 application. The Judge accepted that Dr B was no longer available as a witness but the Crown had “instructed two neuropathologists and that their evidence is expected in the near future”: R v Pickering HC Auckland CRI-2008-055-1273, 5 May 2010 (Ruling No 1) at [33].
Although it is not determinative in the present case, the Judge’s approach in excluding from his consideration Dr B’s evidence, notwithstanding it was contained in the depositions, was, if anything, generous to the defence. Section 345(5) refers to evidence disclosed in the depositions and Dr B’s evidence was in the depositions. In any event, as was said by this Court in R v Coneybear:[30]
… it is not essential for the evidence in the depositions to prove an offence as strictly as is necessary on the trial itself. ... too critical an attitude in applying s 345 is also undesirable.
[30] At 57.
For the reasons discussed the challenge based on error in the Judge’s ruling under s 345 fails.
The Judge’s ruling under s 347
This challenge may be rejected in short order. The Judge noted that his consideration under s 347 was not confined to the depositions evidence.[31] The Judge was entitled to consider “such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused”. In respect of this application the Judge considered, for the reasons already discussed, that he could rely on the contents of the brief of evidence of Dr B, which referred in some detail to the timing of the alleged injuries which led to Dylan’s death. The Judge also took into account the expected evidence from the newly instructed neuropathologist. Accordingly the Judge ruled that it would be inappropriate to discharge the accused under s 347 at that point of time.
Our evaluation
[31] Relying on s 347(1)(c).
We cannot fault the Judge’s reasoning. Mr Hogan was able to show no error in it. In reality, in the circumstances of this case, an application under s 347 was likely to be decided in the same manner as the application for discharge under s 345.
This basis for the second ground of appeal also fails.
Third ground – prosecutor’s breach of “undertaking”
This ground relates to events arising following the discharge of the second jury on 6 May 2010. In the course of his opening address to the second jury, the prosecutor stated that on the day of Dylan’s admission to hospital “Ms Pickering volunteered [to Dr Campanella] that [Dylan] may have fallen through the trampoline at his uncle’s place the weekend before”.
When Mr Hogan made his opening statement to the jury, he referred to that statement, submitting that it was in error. Mr Hogan’s statement included the following:
… But in reality, in truth, it may well be that Dylan did fall from the trampoline at Adam’s home on the Saturday morning. And why do I say that? Because that is what Adam told the doctors and the police … it was not from Patricia Pickering to Dr Campanella as my friend has said, that Patricia said to her, Dr Campanella that is, that Dylan may have fallen through the net on the trampoline. Those words came from Adam to Dr Campanella.
After the first day of the second trial an issue arose as to whether one juror could continue to sit. As events transpired the juror was discharged.[32] In the circumstances, both counsel considered it was appropriate for the Judge to discharge the jury. But defence counsel’s agreement to that course was recorded as being conditional upon the Crown not changing its opening statement in any material way.[33] Both the Judge and counsel were concerned not to cause confusion in the minds of jurors at the third trial as members of the discharged jury were to return to the pool and could be balloted to serve on the next jury. The Judge confirmed the agreement as follows:[34]
I have canvassed with both Mr Hamlin and Mr Hogan whether their respective opening address and statement will change in any material way. Both have confirmed that they will not and both have given the Court an undertaking to that effect.
[32] R v Pickering HC Auckland CRI-2008-055-1273, 6 May 2010 (Minute No 4).
[33] At [7].
[34] At [16].
In his opening statement to the jury in the third trial the prosecutor changed what he contended was said to Dr Campanella. He stated:
[Dr Campanella] had spoken to Ms Pickering and members of the family, there [were] no accidental causes. At one point, she was told that [Dylan] may have fallen from a trampoline, or had fallen from a trampoline at his uncle’s place, Uncle Adam Pickering’s place the weekend before.
At the conclusion of the Crown opening address defence counsel raised an objection with the Judge claiming that the opening contained a material change in breach of the undertaking. Mr Hogan did not ask the Judge to discharge the jury. Rather he asked the Judge to “direct the Crown to amend its opening address”.
The Judge refused to so direct, his reasons being as follows:[35]
[12] I do not consider that this alteration is material. What is material is whether or not there is a reasonable possibility that Dylan fell from a trampoline at the relevant time and whether any fall, if it occurred, is responsible for his fatal head injuries. The Crown will have to exclude such a fall as being a reasonable possibility. To my mind, whether or not Adam, or Ms Pickering told Dr Campanella that Dylan may have fallen from the trampoline is not of itself material.
[13] Further, the jury will hear direct evidence on this matter. The evidence will be that Ms Pickering told ambulance officers early on the morning of 17 April 2007 that Dylan had fallen from the trampoline. Further, she asked her brother Adam to back up that assertion and say that Dylan had fallen from the trampoline at his home. The jury will hear evidence from Adam, from the ambulance officers, and from Dr Campanella. That evidence will clarify what was said, who said what, and to whom.
[14] It must be borne in mind that the Crown’s opening address and other statements by counsel are not evidence. The jury will be directed by me to that effect when I sum up the case at the end of the trial. The jury has to focus on the evidence it hears, and not what counsel may or may not have said. I cannot see that the prejudice asserted by Mr Hogan is real. The words omitted comprised a few seconds in an opening which lasted some hours.
[15] I also bear in mind that while some members of the current jury served on the first jury, they have been directed by me to ignore the opening statements made on Tuesday 4 May 2010.
[35] R v Pickering HC Auckland CRI-2008-055-1273, 7 May 2010 (Ruling No 2).
The Judge doubted in any event that he had power to direct the Crown to open in a particular way, particularly if such direction were to open on a basis that may prove to be factually incorrect when the evidence was led.
Competing submissions
The appellant submitted that there was a failure by the prosecutor to honour the undertaking. Mr Hogan argued that the fact that the second opening did not refer to the accused telling Dr Campanella that Dylan may have fallen through the trampoline at his uncle’s place the weekend before was said to involve a “clear and plainly deliberate” breach of undertaking. The issue of who told what to Dr Campanella was material.
Mr Hogan emphasised that his conditional consent to the discharge of the jury was deliberate. He had assessed that the Crown could not adduce evidence in support of its contention that the accused had made the claimed statement to Dr Campanella. This would permit him in closing to submit that the jury should have no confidence in the Crown case as the Crown had failed to support this particular point with evidence.
Mr Lillico submitted that there was no material change to the opening and therefore no dishonour of the agreement. The respondent supported the Judge’s ruling to this effect. Mr Lillico emphasised that the issue for the jury was whether, in considering whether the charges had been proved to the required standard, there was a reasonable possibility that Dylan might have fallen from the trampoline the previous weekend, causing the fatal head injuries. Who it was that raised the trampoline theory was not itself material. Hence a change in the Crown opening from saying Ms Pickering raised it to saying someone unspecified raised it was not a material change.
Mr Lillico submitted that all that had been lost by the appellant was the opportunity to make a point in closing about a possible gap between the Crown opening and the evidence produced at trial. But this did not result in a miscarriage of justice because the words were a minor point in a lengthy opening, the opening address was not evidence and there was no real gap in any event. This is because the appellant was one of two people who said that Dylan had fallen from the trampoline. Whether she or someone else said that to Dr Campanella was of little moment.
Our evaluation
We are satisfied that the change in the Crown opening between the second and third trials did not result in a miscarriage of justice. We consider that the Judge was correct when he ruled that he should not direct the prosecutor to amend his opening at the start of the third trial. We endorse the Judge’s reasons for so ruling.
For the reasons advanced by Mr Lillico, the change of content in the opening address was not material. The issue of materiality is informed by the fact that what counsel said is submission only and the jury would be directed by the Judge to determine the case based on the evidence, not on counsel’s submission. We conclude that there was no breach of undertaking by the prosecutor. This third ground of appeal must fail.
Fourth ground – admission of evidence of scars and old injuries
There are two parts to this challenge. The first concerns Dr Vuletic’s evidence regarding scars and old injuries. Such evidence was held by the Judge to be admissible propensity evidence. The appellant challenges the admissibility of that evidence.
The second part concerns the consequences of the Judge’s decision to discharge the appellant on count 2. The appellant contends that, following the discharge, the Crown ought to have sought a ruling from the Judge permitting the Crown to offer evidence of the older head injuries as propensity evidence. The appellant also challenges the propensity direction given by the Judge.[36] It is said that the direction was inadequate in relation to the evidence of the older head injuries.
The Vuletic evidence
[36] R v Pickering HC Auckland CRI-2008-055-1273, 10 June 2010 (Ruling No 10).
Throughout Ms Pickering’s trials the Crown case was that while Dylan was in the appellant’s care he suffered numerous largely unexplained injuries which caused a significant number of scars on his body. The assertion was that many of the injuries were likely to have been as a result of assaults. Moreover, the scars and external injuries on his body were evidence of his ongoing mistreatment by the appellant. The defence contention was that Dylan’s injuries were accidental injuries. The defence also denied that the accused was responsible for those injuries, and instead suggested that there were other candidates who could have been responsible.
Events at the first trial resulted in at least some of the evidence of Dylan’s injuries not being placed before the jury. The prosecutor had advised the Court that he would not be leading evidence from Dr Vuletic about a number of the specific scars found on Dylan’s body. Rather he was content to rely on general findings, namely that there was significant, and in some respects unusual, scarring on Dylan’s body. The Court was also informed that the Crown would not be leading evidence from Dr Vuletic that Dylan was poorly nourished or that damage to Dylan’s frenulum had been observed. However, the Crown was permitted to lead evidence of certain other scarring found on Dylan’s body during the post-mortem and to produce photographs to the jury showing that scarring. This included evidence of lesions said to have occurred during the period covered by the indictment and of a previous injury to Dylan’s metatarsal bones.[37] The upshot was that some, but not all, of Dr Vuletic’s post-mortem findings were before the first jury. The excluded findings were recorded in the Judge’s ruling.[38]
[37] R v Pickering HC Auckland CRI-2008-055-1273, 22 February 2010 (Ruling No 1).
[38] R v Pickering HC Auckland CRI-2008-055-1273, 10 June 2010 (Ruling No 10) at [21].
When it came to the second trial the Crown sought to call Dr Christian, an expert in paediatric medicine from the University of Pennsylvania. A brief of her evidence was made available to the defence in mid-May. It referred to material from Dr Vuletic’s original brief which the Crown had indicated would not be led in the first trial. In all there were 13 items of evidence of scarring and previous injuries observed by Dr Vuletic which had not been referred to in the first trial. The Crown wished to lead this evidence at the second trial because, together with the other observations of Dr Vuletic that were admissible by virtue of the prior ruling, it would provide an evidential foundation for the conclusions to be given by Dr Christian.
Defence counsel sought to have the 13 items of evidence that were not led at the first trial excluded. By the time the application concerning Dr Vuletic’s evidence was heard (in the fourth week of the third trial), the defence had asserted that the majority of the injuries and scars found on Dylan’s body could be readily explained. Mr Hogan had sought to establish through cross-examination that Dylan was an active, but clumsy, toddler. He had put it to various Crown witnesses that Dylan was susceptible to accidents and that those accidents, alongside various medical conditions from which Dylan suffered (such as impetigo), accounted for most of the scars and external injuries found on his body. It was in this context that the application was brought to exclude the evidence.
Admission of the evidence was opposed on the basis that the trial had proceeded on the same basis as the first trial, namely, that the evidence would not be led. Moreover, it was unfair for the defence to be faced with dealing with this evidence during the fourth week of the trial. Specific prejudice was alleged in a number of respects.
The Crown sought a ruling that the evidence was relevant, in that the evidence of scarring and previous injuries had a tendency to prove or disprove matters of consequence in the trial. The Crown relied on the number of scars and prior injuries, together with evidence that several of Dylan’s injuries and scars were in unusual places on his body. The Crown argued it was open to the jury to determine that the injuries occurred after Dylan came into the care of the accused. The Crown argued that to present evidence only of the internal injuries and not evidence of the number and unusual nature of the external injuries would be to present only part of the relevant evidence.
The Judge’s ruling
The Judge first rejected the view that the defence was entitled to proceed on the assumption that the evidence was not going to be led at the third trial. The Crown opening made it apparent that evidence of the scarring and other external injuries would be relied upon. If the defence was seeking to rely on the Crown indication at the first trial then this point should have been clarified. Accordingly, the admissibility of the evidence was dependent upon the application of ss 7 (relevance) and 43 (propensity) of the Evidence Act 2006.
As to relevance, defence counsel had signalled that two particular matters would be raised. The first was whether or not the injuries were accidental; the second was who caused particular injuries. The Judge held:[39]
[40] If there is material which suggests that scarring and other injuries on Dylan’s body were likely to have been caused during the period covered by the indictment, then in my view the evidence of that scarring and of those other injuries is relevant to the matters in issue in this trial. If the jury does not accept the explanations offered by the accused, or on her behalf, and considers that it was the accused who inured Dylan over the relevant period, then that evidence has a tendency to disprove the defence’s assertions that the injuries, that are subject of the charges, were accidental or that they were not inflicted by the accused. …
[39] R v Pickering HC Auckland CRI-2008-055-1273, 10 June 2010 (Ruling No 10).
The Judge also assessed the probative value of the evidence. His findings can be summarised as follows:
(a)Frequency – s 43(3)(a): The evidence suggested there were a number of areas of scarring, and a number of other external injuries, on Dylan’s body. This suggested he was subjected to injury on a relatively frequent basis.
(b)Connection in time – s 43(3)(b): The events which were the subject of the charges occurred from 26 March 2007 to 16 April 2008. Over that period Dylan was in the appellant’s care. The family evidence suggested Dylan was uninjured when he left their care. There was therefore a strong connection in time.
(c)Similarity between evidence and alleged offending – s 43(3)(c): The similarities between the proposed evidence and the injuries which formed the subject of the charges were less obvious, but it could be said in a broad sense that all the injuries arose from assault.
(d)Extent to which the evidence is unusual – s 43(3)(f): The Judge declined to express a view on this point, indicating that the question of the meaning of the scarring and the various injuries was a matter for the jury. However, he noted that in answering this question the jury would no doubt take into account their common sense view of how common such extensive scarring and injuries are in a young child.
The Judge concluded that the evidence of the scarring and external injuries had significant probative value in relation to the charges faced by the accused. The evidence was held to be probative of a pattern of unusual injuries during a period where the accused was largely responsible for the care of Dylan.
The Judge then considered whether the evidence was unfairly prejudicial and whether any prejudice outweighed its probative value.[40] The principal aspect of prejudice advanced was that, had counsel known that all of the scarring and external injuries were in issue, he would have cross-examined Mr Hoeta and members of the appellant’s family differently. The Judge commented that counsel had cross-examined all of these witnesses extensively and that they had been questioned in relation to the suggestion that Dylan was inclined to injure himself.[41] Moreover, the Judge was satisfied that any such prejudice could easily be resolved as the prosecutor had indicated he was prepared to recall any witness whom defence counsel might require for further cross-examination.
Submissions on appeal
[40] Applying ss 8 and 43(4) of the Evidence Act 2006.
[41] At [43(c)]
The appellant submitted that the Judge was wrong to admit the 13 items of Dr Vuletic’s evidence relating to old scars and external injuries that the Crown had agreed not to lead at the first trial. This evidence was said to be “highly prejudicial”. The appellant also submitted that the defence was taken “by surprise” by the lack of communication of the Crown’s change of stance between the two trials; this caused prejudice to the conduct of the defence case. In particular, the appellant’s counsel was unable to cross-examine various Crown witnesses effectively. This in turn reflected poorly on the “defence performance”.
Mr Lillico submitted that the Judge rightly admitted the evidence of old scars and external injuries. The evidence was admissible under both ss 7 and 43 of the Evidence Act. Moreover, the probative value of the evidence outweighed any unfair prejudicial effect. There were a large number of scars and injuries and they were in unusual positions. This evidence was relevant to the appellant’s case that the injuries were not inflicted but were rather accidental injuries arising because Dylan was a clumsy child. In terms of propensity, the evidence was available to demonstrate a historical pattern of non-accidental injury while Dylan was in the appellant’s care. This could assist the jury in determining both whether the injuries were non-accidental and whether they were caused by the appellant. Mr Lillico also submitted that any prejudice from the way in which the intended use of the evidence was communicated by the Crown was countered by the opportunity of the appellant’s counsel to cross-examine any Crown witnesses. The remedy was in the appellant’s hands.
Our evaluation
We consider that the whole of the evidence of Dr Vuletic’s post‑mortem findings was properly admitted at the third trial. The Crown’s agreement not to lead 13 items of this evidence at the first trial was not decisive. We agree with the Judge that there was no impropriety by the prosecutor in terms of lack of communication or the timing of any confirmation that the evidence would be used. The prosecutor was not estopped from calling the evidence by his earlier agreement (in different circumstances) not to do so.
We cannot fault the reasoning in the Judge’s ruling on this point. We are satisfied that the 13 items of Dr Vuletic’s evidence at issue comprised relevant evidence under s 7 for the reasons the Judge gave. The evidence was relevant under s 7(3) because it had a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. The defence that the injuries were accidental and the live issue of causation are examples. Similarly, we find that the Judge did not err in deciding that the probative value of the evidence was not outweighed by unfair prejudice under s 8 of the Evidence Act.
We have concluded that Dr Lammie’s report is not admissible. While we accept that there is a minor distinction between the evidence of Dr Lammie and Dr Squier with respect to the question of whether TAI in the brainstem would cause immediate collapse, we do not consider that this distinction warrants the admission of the new report as fresh evidence. Dr Lammie’s report is relevant to the possibility that Dylan experienced a lucid interval between the time the fatal injury was inflicted and the time of his collapse. But this was a live issue from depositions onwards. Indeed, the question of whether Dylan’s injuries would have caused his immediate collapse was examined in great detail during the trial. The jury was made aware that the phenomenon of “lucid intervals” is the subject of considerable debate within the medical community. Dr Lammie’s report does not add in any significant way to that evidence. This is not a case where the evidence led at trial could be classified as “bad science”, or where Dr Lammie’s report can be seen as “better science”.[101] In sum, the evidence is not of such a nature that might reasonably have led the jury to return a different verdict.
[101] See Wallace v R [2010] NZCA 46 at [48].
We add that Dr Lammie’s report is not entirely helpful to the defence. That is because Dr Lammie concluded that Dylan’s injuries were “strongly suggestive of non-accidental injury”. This statement is inconsistent with the defence claim that Dylan sustained his fatal head injury by falling from a trampoline.
While we accept that Dr Whitwell’s decision to alter her opinion created a difficulty for the defence, it was open to Mr Hogan to choose between seeking an adjournment to obtain another witness and proceeding with Dr Squier as the sole neuropathologist for the defence. He chose the latter. Nothing that is now said by Dr Lammie differs materially from Dr Squier’s evidence on the central issue of the brain injuries suffered by Dylan.
Result
For the reasons set out above the application for leave to adduce further evidence is refused.
All grounds of appeal have failed. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
9
5
0