R v B HC Tauranga Cri-2012-463-54
[2013] NZHC 2415
•17 September 2013
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-463-54 [2013] NZHC 2415
THE QUEEN
v
B
Hearing: 19-23, 26-28 August 2012 Appearances:
RW Jenson for Crown
T Rickard-Simms for AccusedRuling:
20 August 2013
Reasons:
17 September 2013
JUDGMENT (NO. 1) OF TOOGOOD J
[Reasons for ruling on application to adduce propensity evidence]
This judgment was delivered by me on 17 September 2013 at 2:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
R v B [2013] NZHC 2415 [17 September 2013]
Introduction
[1] The accused B has been retried on one count of causing grievous bodily harm to his son K with reckless disregard for the child’s safety. At the time of the alleged offending, 28 April 2011, K was four months old.
[2] This judgment contains the reasons for a ruling I gave on 20 August 2013, during the Crown’s case, allowing in part an application by the Crown under s 344A of the Crimes Act 1961 to adduce propensity evidence.
Background
[3] At the first trial the accused faced an indictment containing four counts of male assaults female on his former partner, Ms W, who is K’s mother; one count of assaulting Ms W with intent to injure her at Rotoiti; one count of assaulting K (known as the fencing incident); one count of assaulting K with intent to injure him (known as the throwing on the bed incident); one count of causing grievous bodily harm to K with intent to cause him grievous bodily harm (the incident on
28 April 2011), and an alternative count related to that occasion of causing grievous bodily harm to K with reckless disregard for his safety; and one count of attempting to pervert the course of justice.
[4] In July 2012, the accused pleaded guilty to a charge of assaulting Ms W on
22 April 2011, which is the day they separated. During the first trial in September 2012, before Duffy J and a jury, the accused also pleaded guilty to three of the counts of assaulting Ms W, and was also found guilty by the jury on the count of wilfully attempting to pervert the course of justice, a charge which involved threats of violence.
[5] The jury acquitted him of the two other counts alleging violence against Ms W of male assaults female and assault with intent to injure. He was acquitted on the count of assault on K (the fencing incident); and on the count of assaulting K with intent to injure (the throwing on the bed incident).
[6] The accused was also acquitted on the count of causing grievous bodily harm to K with intent to cause grievous bodily harm, but the jury failed to agree on the alternative count of causing grievous bodily harm recklessly, relating to the same incident on 28 April 2011. That was the subject of the retrial.
[7] In the retrial, the Crown applied to call the evidence relied upon to support the charges in relation to Ms W, both on the counts to which the accused pleaded guilty and was convicted, and on the counts upon which he was acquitted. It also sought to call evidence about the fencing incident and the throwing on the bed incident, notwithstanding that the accused was acquitted of the charges of assaulting K arising from those alleged incidents.
Result
[8] After hearing submissions from counsel in the absence of the jury before Mr Jenson opened the case for the Crown, I ruled that I would not admit as propensity evidence any evidence related to the counts of assault against Ms W, including the counts to which the accused had pleaded guilty. I ruled that the Crown would be permitted to lead general evidence of violence against Ms W on
22 April 2011 and earlier occasions as background evidence explaining why Ms W left the family home on 22 April 2011, leaving K in the care of the accused, and explaining her absence on 28 April 2011.
[9] I also held that the Crown would be permitted to adduce evidence relating to the assaults against K, the fencing incident and the throwing on the bed incident, notwithstanding the accused’s acquittal on those counts. The results of my ruling were recorded in a Bench Note issued on 20 August 2013.
The proposed propensity evidence
Background
[10] When the accused was about 38 years old, he began a domestic relationship with Ms W, then aged 16 years. They lived in a remote part of the Matahi Valley
among the foothills of the Uruwera National Park. The propensity evidence which the Crown proposed to adduce came principally from Ms W who alleged that the accused acted violently towards her throughout the two-year relationship which ended on 22 April 2011, about a week before the incident on 28 April 2011 which formed the basis of the re-tried charge.
Evidence resulting in guilty pleas to counts of assault on Ms W
[11] When Ms W was about six months pregnant, she and the accused were staying with the accused’s aunt in Patterson Place in Whakatane. While they were there, Ms W told the accused that there was someone else who cared more about her than he did and that that person did not hit her. The accused reacted violently, slapping Ms W about the head and face. She alleged he grabbed her hair and pulled her to the ground and dragged her around the small bedroom they occupied. The assault was interrupted by the accused’s aunt.
[12] Later, while Ms W was pregnant with K, the accused again assaulted her by slapping her, pulling her hair and dragging her around a room at the house he occupied in Matahi known as “the camp”.
[13] On the morning of 22 April 2011, again at Matahi, when K was approximately four months old, an argument developed during which the accused complained about Ms W’s attitude. Again the accused grabbed Ms W by the hair and started slapping her face, telling her that he was over her and that she should leave. When Ms W refused, the accused grabbed a piece of wood and threatened her with it telling her again to leave. Ms W tried to pick up K who was still being breastfed. The accused grabbed the child and told Ms W to leave without him, which she did.
[14] About a week later, the incident occurred which resulted in K being taken to Starship Hospital. This incident forms the basis of the present charge and I shall return to it.
[15] On 8 May 2011, the accused and Ms W were staying at the Grafton Oaks Motel in Auckland, as a result of K having been admitted to the Auckland Starship Hospital with serious head injuries. Other friends and relations had also travelled to Auckland to offer support and an arrangement had been made for Ms W and the accused to join some of them for lunch. Ms W began to send a text message to a member of her family, to let her know that she was going for lunch. The accused became angry with her saying that she was more worried about her family than she was about their son. He grabbed her by the head, pulled it back several times before picking her up and throwing her on the bed. Ms W was scared and crying and when she attempted to leave the accused kicked her on her backside before grabbing her by the head and pulling her backwards. A friend intervened and stopped the assault.
[16] In order to prove the facts relating to these assaults as propensity evidence, the Crown proposed to produce the four related certificates of conviction and to call evidence from Ms W and others who witnessed the assaults.
Evidence related to charges on which the accused was acquitted
[17] Ms W alleged an assault at the camp while she was pregnant (the water tank incident), when the accused punched her in the face causing her nose to bleed. When Ms W went to clean herself up and wash her clothes in a water tank, she was pursued by the accused who pushed her head under the water. He then grabbed her by the throat and threw her against a wall. Ms W alleges that the accused said to her, “Don’t you fuck with me. You know not to push me to this point, 'cos I can’t handle myself”.
[18] A short time after K was born, the accused and Ms W spent some time staying with friends in Rotoiti. When they returned to the accused’s place in Matahi Valley, the accused’s truck became stuck halfway up a steep driveway. The accused got angry. He is alleged to have punched Ms W on the arm and told her to take the child up the driveway to home and to get there before he did otherwise she “would get it”. This was referred to by counsel as the driveway incident.
[19] When K was about a month old, the accused and Ms W were staying at a friend’s place in Rotoiti. Ms W said she was annoyed because she was made to look after the child and do chores around the house. The accused got angry with her because of her attitude, kicked her in the back and started slapping her face. She alleges that he picked her up by the throat and threw her to the ground and kicked her while on the ground. This assault was seen by other witnesses.
[20] Ms W’s allegations about the fencing incident resulted in the charge of assault on a child on which the accused was acquitted. Ms W said that while she and the accused were working on some fencing down the driveway, K was in a car seat in the back of the car. The child would not stop crying and every time she went to attend to him the accused told her to leave him. Eventually, the accused picked up the still crying child, began yelling at him and slapped his face. A short time later, while K was still crying, Ms W says the accused threw water over the baby causing him further distress.
[21] The charge of assaulting K with intent to injure him (the throwing on the bed incident) arose from the allegation by Ms W that the accused became angry when the baby was crying, picked him up and said “What the fuck’s wrong with you – you’d better shut up” while shaking the child. Ms W alleged the accused then slapped K’s face and bottom and says that when she tried to take the child from him the accused said, “Nah, he needs to fucken learn. He aint getting away with shit with me”. She said the child would not stop crying and the accused then got up and threw K some distance onto their bed. Ms W said that the child was still for a while and remained crying until comforted by her.
[22] The Crown also proposed to call evidence from one of the accused’s children, his daughter P, who, on 28 April 2011, was a few days short of her seventh birthday and who was present at the house at Nukuhou on that day. In an evidential interview recorded on 5 May 2011, P was asked whether anyone had ever been rough with K. In a response which I considered a jury would be entitled to regard as spontaneous and unprompted, P said it was mostly her “Dad because he gets angry.” When asked “How does he get rough with K?”, P said “... sometimes he shakes him and chucks him in the air and catches him.” She explained that “chucking him in the air and
catching him” was done when her Dad was happy. When asked “What does Dad do when he’s angry with K?”, she replied that “he throws him around, just like, onto the bed”, which she described as “a little bit hard”. When asked what her Dad says to K when he throws him around, P replied “Stop being naughty”. She then demonstrated the shaking movement. P said she had not seen her father shake K on 28 April but she timed the other shaking initially at “four sleeps” earlier and then at some other times which she said were “10 ... oh, heaps of days ago.”
[23] P said that her siblings H1, H2 and T had also seen her father shake the baby. She said she had not told anyone else about her father shaking the baby because he wanted them to “keep it as a big secret and that they shouldn’t tell anyone that he’d been doing stuff to baby.” She said he told her that he would give them a growling if they told.
Circumstances of the alleged offence
[24] The count upon which the accused was retried was based on allegations that after Ms W was forced out of the home on 22 April 2011 the accused became K’s principal caregiver. On Thursday 28 April, K was in the accused’s care for much of the day. They were staying at the house of a friend, M, and her partner and their children. Some of the accused’s children were also present.
[25] At around 3:00 pm, the baby was bathed by the accused with the assistance of some of his other children; nothing appeared to be untoward, and following his bath and being fed, the accused put K to bed.
[26] At around 6:00 pm the accused was having dinner with the other occupants of the house. K apparently woke up and started crying. The accused interrupted his meal and went to the bedroom to attend to the baby.
[27] After spending some 30 seconds or so alone in the bedroom, the accused emerged holding K and saying that he did not think he was breathing. The child’s lips were purple and his eyes were rolling to the back of his head. M went over to the accused and put her finger down K’s mouth to clear his airway. The baby
resumed breathing. An ambulance was called and arrived 15 or 20 minutes later. After the ambulance officers assessed the child they considered no further treatment was necessary and left. A short time later, however, K had what appeared to be a seizure during which time the child appeared to have difficulty breathing. Ms W was summoned and she arrived at the house. Other seizures occurred during the evening.
Subsequent events and medical findings
[28] The next morning K continued having seizures and after telephoning a helpline the accused, Ms W and M took K to Whakatane Hospital. A paediatrician who examined K there reported his condition as being very serious, the baby having had a short but intense history of seizures which were slow to respond to treatment. A CT scan revealed bilateral subdural collections of fluid and the baby was flown to Starship Hospital.
[29] An ophthalmologist, Dr Mora, examined K on 30 April 2011 in the Paediatric Intensive Care Unit at Starship Hospital. He found multiple retinal haemorrhaging to an extent seen only with non-accidental injury and severe trauma. In Dr Mora’s opinion, such severe haemorrhaging was highly unlikely, in the absence of an explanation such as a motor vehicle accident, to be caused by accident and occurs only through inflicted force.
[30] The principal medical witness to be called by the Crown, Dr Kelly, did not examine K but he based his opinion on medical records and reports including reports of a consultant paediatrician in the team of which Dr Kelly is Clinical Director and who had examined K after his admission to Starship Hospital. But, in summary, Dr Kelly’s findings were that K suffered a number of conditions which he considered were the consequence of non-accidental injury (child abuse), namely:
(a) subdural haemorrhages requiring surgical drainage; (b) severe extensive brain injury;
(c) severe extensive retinal haemorrhage; and
(d) permanent moderate to severe neurologic disability.
[31] In Dr Kelly’s opinion, there was evidence that K suffered “old bleeding” most probably the result of a previous inflicted head injury although he cannot identify when that may have occurred, possibly weeks before the date of K’s admission to hospital. In Dr Kelly’s opinion, the recent bleeding observed at the time of K’s admission to Whakatane Hospital and the associated seizures indicate that the trauma causing the injuries occurred at the time the symptoms first became obvious. It was the case for the Crown that the accused caused K’s serious head injuries while he was alone with the baby for about 30 seconds on the evening of
28 April 2011.
Issues at trial
[32] I proposed to direct the jury that the four ingredients of the count of causing grievous bodily harm with reckless disregard which the Crown was required to prove were:
(a) that on 28 April 2011 at Nukuhou, K suffered really serious harm; (b) that the really serious harm to K was caused by the accused;
(c) that the accused caused the harm to K by intentionally inflicting significant force on him, directly or indirectly; and
(d)that when the accused intentionally inflicted that significant force on K, Mr B knew that there was a risk to K’s safety but carried on to inflict the force regardless of that risk.
[33] Mr Rickard-Simms informed me that all four ingredients were in issue. The Crown relied on the medical evidence to establish the time of the trauma causing the injury and its likely nature as being inflicted by way of the child being hit or shaken violently. Mr Jenson said he would invite the jury to infer that whoever was responsible for such trauma did so intentionally and with, at least, a reckless disregard for the child’s safety.
[34] The Crown sought to adduce the propensity evidence to establish that the Crown had proved beyond reasonable doubt that it was the accused who inflicted the injury.
[35] In support of its case, the Crown also referred to the medical evidence which, it submitted, established that K suffered serious trauma at an earlier stage, possibly some weeks earlier, which also caused significant subdural bleeding. The jury would be asked to infer that the cause of this old injury was either the slapping of the child by the accused during the fencing incident or, more likely, by the accused violently throwing K onto the double bed in his house at the camp.
[36] The Crown also proposed to rely on P’s evidence discussed above at [22], although it was not entirely clear whether P was referring to the same particular incident described by Ms W. I considered that the evidence of Ms W and P about the bed throwing incident may be regarded as background evidence tending to explain the old injury. I considered also that the evidence was relevant to rebut the accused’s statements to the Police that he loved K and had never shaken him. I was required to decide whether it was also capable of being relied upon by the jury, if accepted, as propensity evidence.
Propensity evidence
[37] Section 43 of the Evidence Act 2006 provides:
43 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the
Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the
Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[38] The principles for the application of the section are summarised in Mahomed v R1 and Vuletich v R.2
[39] It was the Crown’s case that it was justified by s 43 in leading evidence to establish that the accused has a tendency, when under domestic pressure, to “snap” and, in a burst of violent temper, to assault others. I considered it would be open to the jury to infer also that one of the characteristics of these outbursts is that the accused’s temper abates as quickly as it arises.
[40] As proof of this tendency, the Crown proposed to lead evidence of the assaults on Ms W to which the accused has pleaded guilty, evidence of the alleged
1 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
2 Vuletich v R [2010] NZCA 102.
assaults on Ms W on which he was acquitted, and evidence of the fencing incident and bed throwing incident related to alleged assaults on K.
Ruling of Duffy J at first trial
[41] At the first trial, in relation to the Crown’s proposal to rely on the purported propensity evidence to support the counts alleging assaults against K, Duffy J ruled that evidence of assaults against Ms W could not be used in that way.3 The Judge rejected the Crown’s argument that both Ms W and K were vulnerable persons but she distinguished between the two alleged victims on the basis that they had different relationships to the accused. Duffy J held that there was no similarity between an
assailant attacking an adult woman, who was his partner, during a domestic dispute, and the assailant attacking his son.
[42] The Judge also concluded that there was no evidence that any of the accused’s six other children showed signs of serious injury and no evidence that he reacted angrily and assaulted those children when frustrated by their actions. Duffy J also ruled that the use of the evidence of the assault on Ms W as propensity evidence to prove a tendency to attack K was “highly unfairly prejudicial.”
[43] However, Duffy J ruled that evidence of prior assaults on K constituted mutually supportive allegations establishing a tendency on the part of the accused to lose his temper when frustrated with the child’s crying and to assault him. There was sufficient similarity between the circumstances of each offence, the frequency and timing of each offence so as to give high probative value to the evidence which outweighed any unfairly prejudicial effect. The Judge ruled, however, that while the other assaults were relevant to proof of the commission of a physical assault on K, the evidence did not prove a propensity to assault him while having the specific intent alleged at the first trial. There, the allegations were assault with intent to injure or causing grievous bodily harm with intent to cause grievous bodily harm,
and the alternative count of causing grievous bodily harm recklessly.
3 R v B [2012] NZHC 2434 at [17]-[23].
Ruling of Woodhouse J as to propensity evidence at retrial
[44] Dealing with pre-trial issues on 10 December 2012, Woodhouse J issued a short oral judgment dealing with an application by the Crown to reargue the admissibility of the evidence of assaults against both Ms W and K as propensity evidence on the remaining charge of causing grievous bodily harm with reckless
disregard.4 Woodhouse J held that he did not “have jurisdiction in a general sense
effectively to review Duffy J’s decision” and made a formal order dismissing the Crown’s application under s 344A of the Crimes Act 1961 to enable the Crown to appeal that decision.
[45] In expressing that view, Woodhouse J considered the provisions of s 7(1)(b) of the Evidence Act 2006 and the discussion of those provisions by the Court of Appeal in JF v R.5 In that case, the Court of Appeal was required to consider whether evidence which had been ruled inadmissible for the purposes of a trial in
2009 on one set of charges, those charges having been finally disposed of in the past, could nevertheless be admitted in evidence on completely different charges against the same accused at a later date. As Woodhouse J noted, the Court of Appeal held that the judgment on the earlier occasion holding the evidence inadmissible did not mean that the evidence was inadmissible for the later proceeding. The Court of Appeal took the view that the Evidence Act was “proceeding specific” and went on to hold that its conclusion that the earlier propensity ruling was not binding in the subsequent trial was consistent with the principles discussed by the Supreme Court
in Fenemor v R.6 Fenemor concerned the admissibility as propensity evidence of
evidence adduced in support of charges upon which the accused had been acquitted. The Supreme Court ruled that the fact of the acquittal did not render the evidence inadmissible in other proceedings essentially because the proposed evidence had to be considered in the light of ss 7, 8 and 43 irrespective of the conclusion reached by
the Court as to the appropriate verdict.
4 R v B [2012] NZHC 3328.
5 JF v R [2011] NZCA 645.
6 Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298.
[46] Woodhouse J held that the retrial, notwithstanding that it related to only one count in the earlier indictment, was part of the same proceeding and that reconsideration of Duffy J’s ruling was not available.
Ronald Young J’s view
[47] In a subsequent pre-trial Minute, however, Ronald Young J considered that the Crown was not barred on jurisdictional grounds from applying to lead propensity evidence which had been ruled inadmissible at the first trial and indicated that counsel for the accused should prepare to meet such an application before the trial Judge.
The arguments advanced at the retrial
[48] When the issue came before me as trial Judge, Mr Rickard-Simms did not strongly press the jurisdictional argument which had been upheld by Woodhouse J. He did not abandon it, however, but took the realistic view that if I should accept that Duffy J’s ruling in the first trial did not bind the Crown on the retrial then I should assess the applicable propensity rules in the context of the remaining count and the evidence which the Crown proposed to adduce in respect of it.
Retrial not the same proceeding as the earlier trial
[49] When a jury is unable to agree on a verdict, the jury is discharged and the trial comes to an end. If a new trial is ordered, an accused is re-arraigned; it is open to the Crown Solicitor to present an indictment containing any charge or count, upon which the accused had not previously been convicted, which is reasonably founded on the evidence. Further, a retrial is not a continuation of the earlier proceeding but a new trial in which both Crown and defence are able to call evidence which is additional to or different from that adduced at the first trial. The jury hearing the case are called upon to reach their verdicts on the basis of evidence and submissions, and a summing-up, specifically related to the way in which the Crown and defence cases are presented at the retrial and not in any respect on the basis of what occurred at the first trial.
[50] For those reasons I considered, in respectful disagreement with the views of Woodhouse J, that the trial over which I was presiding was not the same proceeding as that in which Duffy J had given her ruling. In my view, the Court of Appeal’s reference to the rules of evidence being ‘proceeding specific’ call for a definition of
‘proceeding’, if one is necessary, which confines the application of the ruling, in jurisdictional terms at least, to the trial in which the ruling is given. That view is supported by the need for a trial Judge to address questions of admissibility in the context of the evidence and issues for determination at the particular trial which is being conducted.7
[51] I determined that I was free, therefore, to embark upon my own consideration
of the Crown’s application under s 344A to adduce propensity evidence.
Discussion of the propensity issues
[52] The issues facing the accused on the retrial were narrowed to one count on which the Crown was required to prove, first, that the accused intentionally (rather than accidentally) caused K grievous bodily harm and, second, whether he did so recklessly.
[53] For the reasons given by Duffy J, I agreed that evidence of the accused’s previous assaults on Ms W arising out of a domestic relationship between adults was not sufficiently similar to the alleged offence against K to have any probative value as indicating a tendency to act violently towards the child.
[54] As I observed at [8], I considered that the evidence of violence against Ms W on 22 April 2011 and earlier occasions was admissible as background evidence explaining why Ms W left the family home in April 2011, leaving K in the care of the accused, and explaining her absence during the day and early evening on
28 April 2011. I determined that the specific allegations of violence on
28 April 2011, resulting in a charge to which the accused had pleaded guilty, could be led and that Ms W could also give general evidence of violence towards her on
7 R v AJS HC Tauranga CRI-2010-070-2263, 10 March 2011 at [29]; R v BCH [2012] NZHC 361 at [18].
other occasions. I left it to counsel to confer as to how that evidence should be adduced, giving an indication that the scope of the evidence should be confined in such a way as to limit the prospect of the jury being overwhelmed or distracted by that evidence rather than focusing its attention on the allegations of the accused’s past conduct towards K and his conduct on the day of the instant alleged offending.
[55] I agreed with Duffy J that evidence of the alleged assaults against K comprising the fencing incident and the allegation that K had been thrown on the bed, comprised in the statements of Ms W and P, was sufficiently probative to justify allowing the Crown to lead the evidence and directing the jury that it was capable, if accepted, of amounting to propensity evidence in accordance with the standard direction. I considered that any prejudicial effect could be sufficiently mitigated by a properly structured direction, emphasising that the jury should treat it purely as circumstantial evidence to be considered with all other evidence when assessing the issues and warning them not to jump to the conclusion that because the accused had assaulted K in the past he must have done so as alleged in the remaining count.
[56] Mr Rickard-Simms acknowledged on the authority of Fenemor v R that such evidence was admissible notwithstanding that the accused had been acquitted of the charges related to the bed throwing incident and the fencing incident at the first trial.
[57] I did not consider that it would be necessary to address the jury in a way which directed them as to the possibility of relying on propensity evidence for some purposes and not for others in respect of the same charge. The Crown’s case was that the accused has a quick temper and that when even relatively trivial things annoy him he can snap and react violently. It was open to the jury to accept the evidence of earlier violence towards K as proving that tendency. The Crown’s case was focused principally upon the hotly contested issue of whether it was the accused who caused K’s injuries. As to the issue of recklessness, the Crown accepted that it was necessary for it to prove that the accused intentionally inflicted significant force on K, whether by striking or shaking him or by some other mechanism. The Crown also proposed to argue that, having regard to the extensive haemorrhaging in the brain and K’s retinae, it was a matter of compelling inference that an adult who applied force sufficient to inflict such injuries must, at the least, have known of the
risk of harm and been reckless as to the consequences. Propensity evidence was not available to show that the accused knew from past experience that the child had suffered serious harm as a result of his violence in the past. In my view it was not appropriate to make specific reference to the propensity evidence in that context as to do so would only have led to confusion.
[58] In the end, therefore, I agreed in general with Duffy J’s approach in terms of the direction that would need to be given to the jury as to the proper application of propensity principles to the matters at issue on the retrial. The question of whether I had jurisdiction to give a ruling different to that given at the first trial became academic.
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Toogood J
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