R v Darren Paul Mackness
[2003] NZCA 269
•24 November 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA160/03
THE QUEEN
v
DARREN PAUL MACKNESS
Hearing:18 November 2003
Coram:Elias CJ
Blanchard J
Panckhurst JAppearances: W C Pyke for Appellant
M A Woolford for Crown
Judgment:24 November 2003
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
[1] The appellant was convicted upon trial by Judge and jury of the murder of the 11 year old daughter of his partner on 3 August 2002. He was sentenced to life imprisonment with a minimum period of imprisonment of 17 years. He appeals against his conviction but there is no appeal against the sentence.
[2] The appellant was living at an address in Hamilton with his partner, Karen Paget, and her two daughters from a former marriage, Kylie Gush and the victim, Kelly Gush. The relationship between the appellant and Ms Paget had begun in 2001. The appellant was very much the dominant figure in an unusual household. Evidently at his insistence, the two girls were required to spend most of their time when at home locked in their bedrooms, being permitted to come out only for meals and to go to the bathroom. They were locked in overnight with buckets in their rooms for toilet purposes. The bedroom windows were nailed shut.
[3] By way of further background, it should also be mentioned that the appellant had experience in martial arts.
[4] On the afternoon of Saturday 3 August 2002 the appellant and Ms Paget together consumed a dozen cans of beer in the lounge of the home. The girls were locked in their bedrooms. They were released in order to have their evening meal at about 6.45pm. Kelly appeared to be in good health. But during the course of the meal she vomited on the floor of the lounge. This was cleaned up but the appellant appeared to be angry about it. Ms Paget took Kelly to the bathroom. The appellant followed behind, pushing Kelly down the hallway.
[5] In the bathroom Kelly knelt in the bath while Ms Paget washed some vomit off her feet. The appellant pushed her again at that time. Kelly then got out of the bath. Ms Paget had her arm around Kelly and was talking to her. The appellant then kicked her twice in quick succession on the left side of her forehead. The style of the kicks, using a raised foot, seems to have been like that used in the martial arts or in kick-boxing. The kicks were delivered with the toe of the appellant’s shoe (a sneaker). Because the mother was holding her, Kelly did not fall over.
[6] It was not appreciated that Kelly had suffered serious injury. She was crying but was able to stand. Her mother finished cleaning her up, washing and drying her hair. The appellant then carried her to her bedroom, put her into bed and locked the door.
[7] Ms Paget and the appellant returned to the lounge. About 11.00pm they heard a bang or thump. Ms Paget opened the door of Kelly’s room, having to push the door against her daughter who was lying on the floor just inside the door. The appellant and Ms Paget moved Kelly into the hallway and then into the lounge. She was unable to talk and her arms and legs were thrashing around. The appellant rang for an ambulance and accompanied her to the hospital. Kelly died on the following evening.
[8] Pathological evidence at the trial was that the cause of death was a blow or blows to the left side of the head which had caused deep nerve damage to the brain and had also caused the vein over the surface of the brain to tear causing a blood clot or haematoma, resulting in swelling of the brain or oedema which had in turn led to further swelling of the brain, further oedema and eventually death. The pathologist expressed the view that the pattern of head injuries was consistent with at least a moderate degree of force. There were no underlying skull fractures. The injury could have been caused by a punch, a kick or an accelerated fall, i.e. a fall with weight behind it as in a rugby tackle.
[9] A warrant was issued enabling the police to intercept conversations in the home. Excerpts of tape recorded conversations between the appellant and Ms Paget were played during the trial and the jury was given transcripts. In the conversations there were discussions about what had occurred. The appellant appears to have been attempting to persuade Ms Paget that Kelly’s head must have been hit when she was lying on the floor of the bedroom and the door was opened. During one of the conversations the appellant referred to his “huge anger problem” and his experience with martial arts. In another he commented:
Forehead ssh forehead…bang, right there and that on top of that, which I said it doesn’t need a very hard knock around this area you know that yourself, I mean I it doesn’t take a very hard knock around this it’s a very very sensitive area, you can’t blame yourself but when you hit, when the door hit here right?
[10] The appellant’s position at trial was that the fatal injury must have occurred to Kelly in her bedroom or during the process of transporting her to the lounge.
[11] The Crown case was that Kelly’s death was caused by the two kicks to her head inflicted by the appellant. By its verdict the jury must have found that proved beyond reasonable doubt. For the purposes of this appeal it is accepted as being the cause of death.
[12] The Crown had also to prove that in so kicking Kelly the appellant intended to kill her or, perhaps more realistically on the facts of the case, that, in terms of s167(b) of the Crimes Act 1961, he meant to cause her bodily injury that he knew to be likely to cause death and was reckless whether death ensued or not.
[13] The first grounds of the appeal addressed by Mr Pyke (who was not trial counsel) were:
(1)That the tapes of the intercepted conversations should not have been admitted in evidence because there was no formal proof of the identity of the voices heard on them; and
(2)That the Judge should in any event have warned the jury to be careful about mistaken identity of the voice said to be that of the appellant, which, it was suggested, might have been confused for that of a third party or of Ms Paget.
[14] These grounds had emerged only in counsel’s supplementary written submission and appeared to be something of an afterthought. We reject them. Indeed, it was surprising that they were advanced for identity was simply not an issue at trial. Plainly it was considered by the experienced defence counsel who heard the tapes (which Mr Pyke told us he has not) that formal proof of identity was unnecessary and that there was no point in contesting that the voices on the tapes, which were admitted to have been recorded at the home of the appellant and Ms Paget, were their voices. Additionally, from the content of the conversations, it is inconceivable that the speakers could have been anyone else. And, to respond to the further theoretical argument addressed by Mr Pyke, it must have been considered by defence counsel that there was no difficulty distinguishing between the male and female speakers. The suggested possibility of some third participant in the conversations was entirely unsubstantiated.
[15] Mr Pyke’s next ground was that the verdicts could not be supported because there was no basis in the evidence for the jury to have concluded that the appellant knew that the kicks were likely to cause death. But counsel conceded that this was a difficult argument to pursue if, as we have held, the interception tapes were admissible, because of the mention therein of the appellant’s martial arts background and of his recorded comment showing his knowledge that the particular area of the forehead which he kicked is sensitive to force.
[16] The appellant’s remaining grounds of appeal alleged misdirections by the Judge in his summing up. It was said, first, that the Judge had erred in his directions on murderous intent, in particular by telling the jury that “recklessness is really foreseeing dangerous consequences that could well happen but still choosing to take that risk”. Mr Pyke pointed out that the particular consequence, which the Crown must prove that the accused has foreseen in order to prove murder under s167(b), is the consequence of death. Mr Pyke is of course correct. Taken in isolation the particular sentence could have led the jury to think that it was sufficient that the appellant may have foreseen a serious injury, but not death. However, the sentence would have been understood by the jury in its context. We are left in no doubt that the jury would have understood that the dangerous consequence to which the Judge was referring was that of death. Immediately before the sentence in question the Judge had told the jury that the Crown needed to prove beyond reasonable doubt that the accused must have had in his mind an actual or conscious appreciation that there was a real and substantial risk of death as a result of his actions and that the last element of murderous intent which the Crown had to prove was whether the evidence established that the accused was reckless as to whether death ensued or not.
[17] In the immediately following paragraph the Judge referred to the question of whether the appellant knew that his assault on Kelly was likely to cause her death and was reckless whether death ensued or not.
[18] The Judge then immediately gave the jury the following summary:
To summarise then on murder there are three essential elements which the Crown must prove beyond reasonable doubt before the accused can be convicted of murder:
· first, homicide or killing;
· second, that it was culpable or blameworthy; and
· third, that the accused either intended to kill Kelly straight out or had an intention to cause her bodily injury which he knew was likely to cause death and was reckless whether death ensued or not.
If you come to the view that the Crown has failed to prove any one of those elements beyond reasonable doubt then you must find the accused not guilty of murder.
[19] In this context the jury would certainly have understood that when, in the sentence in question, the Judge referred to “dangerous consequences” he was meaning the consequence of death.
[20] Next, it was said that the Judge had failed to direct the jury as to the onus and standard of proof in relation to recklessness. In contrast, it was submitted, the Judge had told the jury that it was necessary for the Crown to prove the second element, namely an actual or conscious appreciation that there was a real and substantial risk of death as a result of his actions, beyond reasonable doubt. Mr Pyke suggested that because, in discussing recklessness, the Judge did not again mention the onus and burden of proof, the jury may have thought that it did not apply to that element.
[21] The Judge had of course given the standard direction on this subject at the outset of his summing up, but the short answer to Mr Pyke’s submission is that in his summary of the elements of murder, which has been quoted above in para [18], the Judge made it quite clear that all three elements must be proved by the Crown beyond reasonable doubt, and that if the jury were to come to the view that the Crown had failed to prove “any one of those elements beyond reasonable doubt”, the accused must be found not guilty.
[22] It was also submitted that the Judge misdirected the jury concerning inferences because he told them that the Crown asked them to draw the conclusion from all the circumstances that the accused either intended to kill Kelly or knew that his assault on her was likely to cause her death and was reckless whether death ensued or not, but failed to tell them that they were also entitled to draw upon the evidence, particularly that about the appellant’s concern for Kelly when he summoned the ambulance and accompanied her to hospital, that he had not intended to kill her and had not appreciated that his assault on her was likely to cause her death or had not been reckless about whether death ensued.
[23] In the passage to which Mr Pyke directed attention the Judge was of course setting out for the jury what the Crown must prove in relation to murderous intent. He was not embarked on a general discussion of the evidence and it would have been unusual for him to introduce the subject of the inferences which the defence were asking them to draw. Indeed, to do so might have given the false impression that the defence, like the Crown, had to prove the relevant state of mind of the appellant.
[24] We are not persuaded that the jury would have misunderstood the Judge and thought that they were unable to draw inferences favourable to the defence. The Judge actually told them in a passage immediately following the one to which Mr Pyke drew attention that if in respect of any aspect of the case the evidence would support two conclusions of similar weight (by which he obviously meant one favourable to the Crown and another favourable to the defence) then to choose between them would be to guess and that they must not do that.
[25] Furthermore, in a summary of the defence case which Mr Pyke accepted as being entirely adequate, the Judge later referred to trial counsel’s submission that the steps which the appellant took to seek help for Kelly and certain other evidence was inconsistent with the actions of someone who had intended to kill.
[26] Finally, in written submissions but not orally, Mr Pyke referred to a concluding passage in the summing up in which the Judge suggested to the jury an approach to the case, although telling them that it was ultimately for them to discuss the case in whatever way they considered best. The Judge laid out for the jury a sequence in which they might consider the case. Mr Pyke’s criticism was that although the Judge referred to the need for proof beyond reasonable doubt in relation to some of the matters, he did not do so in respect of all. But, again, this portion of the summing up would have been understood by the jury in the context of the summing up as a whole in which the Judge had made it abundantly clear, as we have already demonstrated, that the onus and burden of proof applied to all elements of the charge.
[27] There being no merit in any of the grounds of appeal against conviction, it is dismissed.
Solicitors:
Crown Solicitor, Auckland
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