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…

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 Pickering v R

Details

AGLC: Pickering v R [2012] NZCA 311
Case: [2012] NZCA 311
Decision Date: 19 July 2012

CaseChat Overview and Summary

Patricia Pickering appeals against her conviction of the murder of Dylan Rimoni, a three-year-old child who died of traumatic brain injuries on 18 April 2008. The appeal concerns the conduct of the trial, which was the third attempt to try the appellant on a four count indictment, including the murder charge. The trial judge, Wylie J, had to deal with the discharge of the jury in the first trial, the discharge of the jury in the second trial, and the discharge of the appellant on one of the grievous bodily harm charges during the third trial. The appellant advances nine grounds of appeal, focusing on the discharge of the jury, the admissibility of evidence, the summing up, and alleged prosecutorial misconduct. The Court of Appeal rejected all grounds of appeal and dismissed the appeal. The Court held that the discharge of the jury was justified by the unexpected incapacity of a key expert witness. The Court held that the trial judge was correct in refusing to discharge the appellant on one of the charges on the basis that there was sufficient evidence in the depositions to support the charge. The Court held that the Crown prosecutor did not breach an undertaking made in the second trial. The Court held that the evidence of scars and old injuries was properly admitted and that the summing up did not contain any error that resulted in a miscarriage of justice.

Orders