INTRODUCTION [1] BACKGROUND [4] EVIDENCE OF PREVIOUS INJURIES [16] THE JUDGE’S APPROACH [31] THE APPELLANT’S ARGUMENTS [35] THE CROWN’S RESPONSE [40] DISCUSSION [43] DR KELLY’S EVIDENCE AS TO LIKELY CAUSE [51] CROSS-EXAMINATION OF DR KELLY [63] THE SENTENCE APPEAL [71] RESULT [78]
Introduction
[1] The appellant was charged with the murder of Arwen Fletcher, who was the daughter of his partner, Molly Fletcher. Arwen was just over two years old when she died of head injuries on Friday 17 March 2006. At his trial before Winkelmann J and a jury, the appellant was found not guilty of murder, but guilty of manslaughter. He was sentenced to imprisonment for a term of seven and a half years.
[2] He now appeals against both his conviction and sentence. In support of the conviction appeal he argues that the Judge wrongly admitted evidence related to injuries sustained by the deceased prior to the fatal injuries, that evidence given by an expert at the trial, one Dr Kelly, as to the likely cause of the fatal injuries was inadmissible and finally, that the Judge wrongly restricted the ambit of cross-examination of Dr Kelly at the trial. The appellant further submits that the sentence of seven and a half years’ imprisonment was clearly excessive.
[3] In order to put the arguments in context, it will be appropriate to say something about the family’s living circumstances, and the cause of Arwen’s death.
Background
[4] In March 2006 the appellant was 18 years of age. Ms Fletcher was 22. They had a child Jessica, born on 22 November 2005. Arwen was Ms Fletcher’s daughter from a previous relationship.
[5] The family lived at Waiuku. Ms Fletcher worked at a local Subway outlet for about 20 hours a week, and had done so for about a year. On Wednesday 15 March 2006 the appellant took Ms Fletcher to work at Subway at around 4.30 p.m. She said that the children were fed and happy when she was dropped off at work.
[6] After he had left Ms Fletcher, the appellant took the children to see a family friend, Jonathon Cameron. Mr Cameron described Arwen as “fine” at the time of the visit. The appellant drove to a video store and returned home with the children at about 7.00 p.m.
[7] Between 8.00 p.m. and 8.15 p.m. that evening the appellant arrived at the Waiuku Medical Centre with Arwen. She was limp and floppy and had stopped breathing. A Dr Anderson performed CPR, but Arwen managed only a “few gasps”. Subsequently she was taken by ambulance to Middlemore Hospital…
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.
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Details
AGLC
R v Broadhurst [2008] NZCA 454
Case
[2008] NZCA 454
Decision Date
CaseChat Overview and Summary
This appeal is against both conviction and sentence. The appellant was convicted of manslaughter following the death of Arwen Fletcher, the daughter of his partner. He was sentenced to imprisonment for a term of seven and a half years. The appellant argues that the Judge wrongly admitted evidence related to injuries sustained by Arwen prior to the fatal injuries, that evidence given by an expert at the trial, Dr Kelly, as to the likely cause of the fatal injuries was inadmissible and finally, that the Judge wrongly restricted the ambit of cross-examination of Dr Kelly at the trial. The appellant further submits that the sentence of seven and a half years’ imprisonment was clearly excessive. The Court held that the evidence of previous injuries was properly admitted and that the directions given by the trial Judge to the jury were sufficient. The evidence of Dr Kelly was not inadmissible. The Judge did not err in restricting the cross-examination of Dr Kelly. The sentence was appropriate and the appeal is dismissed.