R v Dennison CA306/05
[2006] NZCA 397
•28 March 2006
ORDER PROHIBITING PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF CHILD
IN THE COURT OF APPEAL OF NEW ZEALAND
CA306/05
THE QUEEN
v
BRADLEY LANCE DENNISON
Hearing: 14 February 2006
Court: O’Regan, Goddard and Chisholm JJ Counsel: A J S Snell for Appellant
K B F Hastie for Crown
Judgment: 28 March 2006
JUDGMENT OF THE COURT
A The appeals against conviction and sentence are dismissed.
BOrder prohibiting publication of name(s) or identifying particulars of child.
REASONS
(Given by Goddard J)
R V DENNISON CA CA306/05 28 March 2006
[1] The appellant was convicted by a jury of wilfully ill-treating a child (s 195 Crimes Act 1961) and sentenced to 18 months imprisonment. In addition he was sentenced to a further three months imprisonment (cumulative) for threatening to kill a social worker employed by Children, Young Persons and Their Families Service (“CYFS”), having pleaded guilty to that charge. He was acquitted by the jury of a third charge of being a male he assaulted his former partner, the mother of the child complainant.
[2] The appellant has appealed against his conviction for wilfully ill-treating the child on the grounds that a mistrial should have been declared following two prejudicial remarks made by his former partner in her evidence and on the further ground that the verdicts of the jury were inconsistent. He has also appealed against the total sentence of 21 months imprisonment on the ground that it is manifestly excessive.
Background facts
[3] The appellant and his former partner were in a relationship for several months in 2004. Her two-year-old daughter, whom we will call B, lived with them until she was taken into CYFS care on 19 October 2004. That same day she was examined by a paediatrician who noted a number of significant bruises to the child's buttocks, her lower back and her neck, all consistent with the use of “a significant degree of force”. In addition to the bruising on her neck the paediatrician found an abrasion which indicated a “choke” injury consistent with “clothing or some other material [being] scrunched up around the neck”. He further found oval bruises on the child’s left arm consistent with considerable pressure from fingertip “grab prints”, and bruising to her ears consistent with pinching or twisting. Although the paediatrician said the age of these various bruises could not be determined with exactitude, they appeared to be less than three weeks old. The effect of his evidence was that the child had been extensively beaten over that period.
[4] The evidence that it was the appellant who had inflicted these injuries came from his former partner. In her evidence she described four specific episodes of abuse: an occasion when the appellant lost his temper with the child during a walk
into town and back because she was not walking fast enough and he propelled her forcefully along by the back of her clothing and smacked her; another occasion when the appellant lost his temper because the child was not learning to count quickly enough and he hit her on the back and buttocks with sufficient force to cause bruising to those areas; occasions when the child wet her bed and was smacked by the appellant on her back and buttocks and thrown into a cold shower; and an occasion when the appellant force-fed the child by holding her mouth closed and blocking her nose to make her swallow. When it was put to her that the force- feeding incident had never occurred, the appellant’s partner said that the incident had been witnessed by a friend who was visiting at the time. When it was put to her that the appellant would say that the bruising found on the child had been caused either by her or during play with other children she answered by saying "… one morning when we had woken up Brad said that he's got to stop hitting [the child] because he's noticed the bruising on her back".
[5] The charge of male assaults female arose from an alleged incident in which the appellant was said to have taken his partner’s cell phone and car keys from her on the morning of the day on which the child was removed by CYFS. His partner said this had occurred when she told the appellant that she was leaving him and going back to Masterton. She described how he had grabbed her when she went to walk past him after telling him that she was leaving. During the course of giving this evidence she also variously described other incidents of abuse by the appellant: for example, an incident where she said he had punched her in the eye while they were in the car leaving his uncle's house; and an incident where he had pushed her and then got her by the throat on an occasion when his own daughter was staying with them. Of the relationship generally she said “Brad just wasn’t abusing B. He was abusing me as well”.
[6] When spoken to by a detective the appellant asserted that the injuries to the child had occurred while she was playing with other children and denied that he was responsible. He gave evidence at trial and again denied that he had ever physically disciplined the child but said that he had often seen his former partner smacking the child on her bottom, legs and around the head. He said that he had noticed some bruising on the child “after a while” and when he asked his partner about it was told
that the child got the bruising “through playing with other kids … and at the park”. He denied that he had woken up one morning and said to his partner that he was going to have to stop hitting the child because the bruises were starting to show. He also denied ever having touched the child’s ears or having force-fed her and he denied having assaulted his partner on the day social workers from CYFS removed the child.
The prejudicial remarks
[7] The two prejudicial remarks made by the appellant's former partner occurred both during her evidence-in-chief and when under cross-examination. The first occurred when the prosecutor asked her:
Were there ever any concerns that you had about his treatment of B arising out of play? … Yes.
He then asked:
Tell us about that please? … I was always scared that Brad would do more than that. I always remember my dad saying Coral Burrows, once he found out I was with Brad.
[8] Mr Snell submitted that there were a number of adverse inferences that the jury might have drawn from that reference to Coral Burrows, a six-year-old Wairarapa girl whose stepfather, Stephen Williams, was convicted of her murder in early 2004. Mr Snell’s concern was that the statement may have introduced an illegitimate and highly prejudicial connection between the appellant and Stephen Williams in the minds of the jury, and that whilst the prosecutor had moved quickly to "shut-down" that statement, the damage or inferences would already have been planted in the jury’s mind and a mistrial should have been declared. He said:
… the impact of that statement and the likening of Brad in terms of his character to Stephen Williams, the murderer of Coral Burrows, was similar to bringing up not only evidence of previous convictions but also evidence of bad character. It should be noted that this trial was conducted in August
2005, less than two years after the Coral Burrows' murder. The Coral Burrows' murder received national coverage and in Counsel's submission would have been very fresh in the jury's mind.
[9] Mr Snell sought a mistrial on that basis at the first opportunity but the trial judge, Judge Adeane, did not regard the comment, whilst regrettable, as requiring a declaration of mistrial on the basis of irremediable prejudice to the appellant. His reasoning was as follows:
In the normal course of things the jury will be directed against prejudice and sympathy in terms related to the case. It will be a matter for counsels’ judgment whether a specific direction related to this passage in evidence, inevitably repeating and emphasising it, is desirable. Absent any contrary request by the accused, I do not propose to go beyond the standard direction.
[10] The second prejudicial statement which Mr Snell submitted should have resulted in a mistrial, was a reference to the appellant having a Court date. His former partner made this reference when responding to a challenge from Mr Snell about the cause of the injuries to the child’s neck. Her evidence-in-chief about those particular injuries was:
… There was an incident when we walked from Riverbend Road, walked into town and back. Brad would get pissed off with her walking slowly and grab her by the back of her top and push her along. His discipline to B was different to mine. A lot different.
Well you've raised a specific incident of walking back from town. Can you just go into some detail please. You said he was pissed off because B was walking slowly. Just tell us again what he did … because B wouldn't walk fast enough he'd push, grabbed the back of her top and push her along, he smacked her, just getting angry with her for no reason.
Was he saying anything to her during this incident … telling her to hurry up and walk faster. …
…
… You said he grabbed her clothing … yes.
Did that have any physical effect on her … when I got home, got the cold flannel on her to cool her down because she was hot, there were marks behind her ears and the back of her neck.
What sort of marks … like bruises. …
…
… the bruises that we see where her jaw meets her neck, can you tie those in for us as to when they occurred … pardon?
How did they occur … the bruises on her neck occurred when it was just after we had been to town and back. Riverbend Road. It would have been from when Brad grabbed her by the scruff and was pushing her along.
Did she have those bruises there before you went into town … no. …
[11] In cross-examination Mr Snell put it to her that the appellant would give evidence to say there had never been such a walk into town on Riverbend Road. He said:
… Brad's going to say that he didn't walk up town with you or on Riverbend
Road, he hasn't done that with you. Do you agree with that …
The appellant’s partner replied:
… That's a lie because it was his Court date that we had to walk up town for. …
[12] In the context of other evidence this suggested that the date of the walk and the neck incident was 19 October 2004. Mr Snell subsequently saw Judge Adeane in chambers to advise that the defence proposed calling a court officer to testify that the appellant did not have a "court date" on 19 October 2004 and sought a ruling to prohibit the Crown, in re-examination of the witness, from ascertaining that the appellant in fact had a court date on 13 October 2004.
[13] Judge Adeane took the view however that the effect of this prohibition would be to leave the jury with the impression that the appellant’s partner was simply an unreliable witness without disclosing the possibility that she was mistaken about the calendar date of the walk into town. On that basis he ruled:
… In my view, the proposed re-examination cannot fairly be excluded. Once the evidence is given the jury will be directed on its relevance and, in particular, that no inference adverse to the accused is to be drawn from his obligation to attend Court.
[14] On appeal Mr Snell submitted that whilst he accepted that the reference to the court date had simply been "blurted out" by the appellant’s partner under cross- examination it nevertheless gave rise to an inference that the appellant was a “career criminal” and when linked to the earlier "Coral Burrows" reference gave rise to a "clear inference of criminality". The combination of the two comments should, he said, have led to a mistrial being declared. A specific direction given by the Judge immediately after the court officer’s evidence could not have neutralised the
negative effect of the disclosure that the appellant had a court appearance on
13 October 2004.
Discussion
[15] Whilst both statements made by the appellant’s former partner were unfortunate, they were unanticipated and both were passed over quickly in front of the jury. The decision as to whether a mistrial should be declared, following inadvertent disclosure of such prejudicial information, is a matter of discretion for the trial judge to be exercised in the context of the particular trial. The question is whether, singly or together, the two unfortunate statements in the appellant’s trial caused irreparable prejudice so that a mistrial should have been declared. The relevant test for declaring a mistrial in such circumstances is as stated by this Court in R v Gray CA361/96 20 February 1997:
… where there is a real danger, or a reasonable suspicion, that the accused was or might have been prejudiced by what took place. …
Similarly, in R v McLean [2001] 3 NZLR 794, this Court emphasised that the "ultimate question on appeal is whether a substantial miscarriage of justice occurred".
[16] The hearsay opinion of the appellant’s partner’s father, that that this was a “Coral Burrows” situation, was no more than that and it is drawing a long bow to surmise that the jury would have been influenced by such a hearsay remark in the context of the evidence as a whole, when coming to their unanimous verdict that the appellant was guilty of wilfully ill-treating his partner’s child. Rather, their collective decision would have been reached on the basis of their own assessment of the relative reliability and credibility of the appellant and his partner when each gave their evidence. Even if the remark had been taken notice of by the jury at the time, it came well before their own first-hand assessment of the accused when he gave his evidence and was cross-examined. The Coral Burrows’ case was wholly unconnected to the allegations against the appellant and there was no evidence before the Court to suggest that the appellant was a user of pure methamphetamine or that he had any history of violence, and no evidential weight in the fact that both
he and Stephen Williams came from the Wairarapa. Mr Snell agreed that the remark was treated sensibly by the prosecutor at the time, who said nothing and quickly moved on. No attention was therefore drawn to the remark and Mr Snell made his approach to the Judge quietly at the next adjournment. The Judge’s assessment of the situation, as not warranting either the discharge the jury or the giving of a special direction but simply to be dealt with by way of the usual directions about prejudice and sympathy in summing-up, was open to him in the exercise of his discretion.
[17] In relation to the second statement, the reference to a court date, there have been numerous cases in which witnesses have made gratuitous reference to an accused's criminal record at trial and no mistrial has been ordered but the jury simply warned not to regard the evidence as proof that the accused had committed the offence as charged. A specific direction to that effect was given by Judge Adeane immediately following the evidence of the court officer disclosing the fact of the appellant’s court appearance on 13 October 2005.
[18] It cannot be assumed that the jury paid no regard to the Judge’s directions about reaching their verdicts without prejudice or sympathy, or that they disregarded his specific direction not to draw any adverse inference from the evidence about the court date. As Ms Hastie submitted, it is a well-recognised principle that directions to juries are to be taken as having been observed in good faith unless there is clear evidence to the contrary. The measure of the care with which the jury approached their task in the appellant’s case is reflect in the different verdicts they returned, an event which, as Ms Hastie submitted, is entirely consistent with a jury who took seriously the requirement to separately consider the evidence in respect of each charge.
[19] Furthermore, it was the appellant’s partner’s credibility and reliability that was put in issue by the defence’ decision to call the court officer, because that evidence established that the partner erred in her recollection of the date on which the Riverbend Road incident occurred, if the incident occurred at all.
Inconsistent verdicts?
[20] Mr Snell submitted that the guilty verdict returned by the jury on the charge of lawfully ill-treating a child was inconsistent with the not guilty returned on the charge of male assaults female. He said the critical question was whether the different verdicts indicated that the jury must have accepted certain evidence in relation to the first charge but rejected that same evidence in relation to the second charge.
[21] The law relating to inconsistent verdicts is well established. In R v Cornwall
CA441/02 18 March 2003 this Court summarised the position as follows:
[29] This court may quash a guilty verdict as unsafe if it is inconsistent with a not guilty verdict on another count. The long established test is that laid down by this Court in R v Irvine [1976] 1 NZLR 96, following the observations of the Devlin J in R v Stone (unreported), 13 December 1954, Court of Criminal Appeal (UK) viz:
When an appellant seeks to persuade this Court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.
[30] If there is some reasonable explanation for the differences in the verdicts, then they cannot be regarded as inconsistent. (R v Hayward, CA375/98, 11 March 1999). Different verdicts are not inconsistent where they may be explained on the basis that the jury must have accepted some parts of the evidence of the witness and rejected other parts of that same witness’s evidence, particularly in a case where the acceptance or rejection may itself reflect the presence or absence or corroborative evidence. (See R v Nuttal CA 260/99, 17 December 1999; R v Evans CA 411/99, 13 March
2000).
[31] The law in this subject area was recently reviewed by this Court in R v H [2000] 2 NZLR 581. Even where a verdict might be said to be “inconsistent” in some way(s), a verdict may still be reasonable, and hence supportable. The innate sense of fairness and justice of the jury might have properly been applied to reach a verdict of acquittal to avoid an unnecessary double conviction, or for other appropriate reasons”.
[22] The essential argument under this head was that both charges were dependent on the jury accepting the evidence of the appellant’s partner. As Mr Snell put it, the
trial “boiled down to a straight out conflict as to who had caused the injury to the child and had the appellant assaulted [his partner]”. He said there was no supporting evidence from any independent witness that it was the appellant who had wilfully ill- treated the child on any occasion and pointed to the reasonable possibility that his partner had a motive for wrongly blaming the appellant for the injuries to the child to deflect blame from herself and avoid losing custody of the child. His express submission was:
The only evidence supporting the fact that it was the [appellant] was [his partner] in both instances. It appears that the jury have accepted [his partner’s] evidence in relation to the child but rejected it in relation to herself. In Counsel’s submission, while a jury is quite properly allowed to accept some of a witness’/s’ evidence and reject other parts of it, in this particular case it seems totally inconsistent that they could accept [his partner’s] evidence as to the child in which there was direct evidence contradicting it and certainly significant concern regarding [his partner’s] evidence relating to that but then also reject her evidence relating to herself.
[23] Whilst the assessment of guilt or innocence on count one did turn on the jury accepting the evidence given by the appellant’s partner in relation to at least one of the episodes of ill-treatment of the child, this was not a case where the verdicts on both counts depended on the same evidence. There was a material distinction in the evidence relating to the separate charges, in that the injuries inflicted to the child were supported by independent medical evidence. The presence of those injuries was not able to be refuted by the appellant, and his defence of that charge relied on putting the Crown to proof that it was he who had caused the injuries, whilst also raising the reasonable possibility that it was his partner who had inflicted them. Some inroads were made into his partner’s credibility and reliability in this regard, both in respect of the alleged force-feeding incident and the Riverbend Road incident. What the jury made of those challenges to his partner’s evidence about those incidents or made of her evidence as a whole was a matter for them. Whilst it cannot be known whether they accepted all or only parts of her evidence, it is clear they were satisfied that the appellant was responsible for at least some of the injuries evident on the child.
[24] The evidence relating to the charge of male assault female was, in contrast, not supported by any independent medical evidence. The evidence relating to it was less graphic and essentially comprised a statement from the appellant’s partner that
he had taken her car keys and cell phone and pushed her up against a wall. That evidence was interspersed with a recounting of other episodes of alleged abuse by the appellant on various other occasions. Further, the evidence relating to the car keys incident was somewhat equivocal both as to date and the extent of the particular assault alleged. This is clear from the following passage of cross-examination:
Now I want to just ask you about incidents between well that you say happened between you and Brad okay. On the day your child was removed from you by CYPS which is the 19th October were there any incidents between you and Brad … that morning he had taken my cell phone, my car keys so I couldn’t go anywhere, taken something underneath my bonnet so if I was to get a key cut I couldn’t go anywhere.
Okay … I was stuck at home all that day with my daughter at my next door neighbour’s house.
Okay. Aside from those things was there any physical violence between you and Brad that day that you are alleging … yeah I told him I was going back to Masterton and that’s why he took my car keys, my phone, my mother had even tried ringing.
Can you tell me what was the physical violence you are alleging on that day please … he had grabbed me by my throat, had me against the wall, he’d slapped me, pushed me around.
Is that on the 19th do you say … it happened pretty much all the time.
No I am not asking you about all the time, I am asking you very specifically on the 19th … yes that happened on that day. That was one incident that day.
Are you sure anything happened on that day … I am positive.
Okay. So is that the incident where you say you ended up down by the toilet
… that was one of the days yes.
No on the 19th I am trying to work out what happened on the 19th … yes. So you are saying it is this toilet incident is it. Yes … yes.
Okay. In the photos of you which were taken I think on the day you made a statement to the police is that right … yeah.
So that’s on the 21st is that right … I think so.
You have got one bruise on your right arm just about towards the centre of your right arm, towards the inside of the elbow do you agree. You can have a look … just above. Up there exactly. Is that the only bruise that you had as on the 21st … on the 21st yes. Did you not receive any bruising or injuries from anything else that happened on the 19th … on that day I recall there was a bruise on my arm. I had a slight bruise underneath my eye, my left eye which was covered easily by make up.
Did the police miss that … I told the cops that.
You had no bruising around your throat or anything like that in this being held against the wall for a minute … he had me like that okay. Is that not around your throat?
I was just wondering whether you had any bruising … no.
No bruising from that. And you said he had slapped you, no bruising on your face from slapping … Brad is dirty. He doesn’t go for marks on your faces and that. He goes for marks that you can cover up.
Well was that the only bruise you had on the 21st … yes.
[25] The vagueness of the appellant’s partner’s evidence as to the date and severity of the incident she described, and the absence of any independent medical evidence, obviously failed to carry the jury beyond the threshold of reasonable doubt. But that does not render their different verdicts on the two counts inconsistent on application of the approach in Cornwall. What the difference in the two verdicts does indicate is that the jury applied their collective mind carefully to the facts relating to each separate charge and were prepared to give the appellant the benefit of the doubt in relation to the charge of male assaults female.
[26] We are not satisfied that the appellant has established that the jury verdicts cannot stand together. So we reject this ground of appeal. The appeal against conviction is therefore dismissed.
Appeal against sentence
[27] Judge Adeane approached sentencing on the basis that the jury must have been satisfied that on at least some occasions the appellant had put the child into a cold shower, hit her around the legs, buttocks and back and pushed her along by the scruff of the neck. Mr Snell submitted however that this contrasted with the way the Judge had summarised the case for the Crown in summing-up, the Crown prosecutor having invited the jury to find the appellant guilty if they accepted that any one of the episodes of ill-treatment alleged had occurred at his hand. Given the way the Crown’s case was put and summarised by the Judge, Mr Snell submitted that the verdict of guilty did not necessarily reflect that the jury had found the appellant guilty of each kind of ill-treatment alleged. He suggested the jury may have
accepted that only one of the incidents alleged had occurred and found the appellant guilty on that basis. However the sentence of 18 months’ imprisonment reflected a more extensive ill-treatment, as Judge Adeane made clear in his sentencing notes when he said:
The evidence of what was alleged was quite clear and in my view there is an ample basis to conclude now that the ill-treatment extended over a period and that it involved diverse acts on the part of the accused of the kind referred to by the complainant mother.
[28] Mr Snell referred to the absence of any tariff guidelines for sentencing in this area and cited a number of cases in which sentences of imprisonment varying from six months to two and a half years’ imprisonment have been imposed. In one of those cases, R v M CA146/01 CA147/01 1 October 2001, this Court considered the approach to be taken where the prosecution has alleged a course of conduct of wilful ill-treatment comprising various incidents of mental and/or physical abuse of children and concluded that a jury is not required to unanimously find that each or all of the incidents alleged have been proved, as the form of ill-treatment alleged is not an ingredient of the offence of wilful ill-treatment. In his separate judgment Thomas J explained the situation thus:
7.2 It is, therefore an egregious error to elevate the form the ill-treatment might take into an ingredient of the offence which must be proved beyond reasonable doubt to the satisfaction of the whole jury. The key requirement is that there is probative evidence on which the jury can be satisfied to the requisite standard of proof that the child was wilfully ill-treated in a manner likely to cause him or her unnecessary suffering.
7.3 The fact that the evidence may disclose a number of forms or incidents of ill-treatment does not alter this basic principle. It matters not that one-half of the jury may conclude that the ill-treatment took one form of cruelty and the other half conclude that it took a different form if all 12 jurors are satisfied beyond reasonable doubt that the accused wilfully ill- treated the child so as to cause him or her unnecessary suffering. The core of the offence lies in the cruelty, not the particular form it may have taken.
[29] Whilst R v M was concerned with the issue of unanimity of a jury’s verdict, the principles enunciated by Thomas J are apposite to the sentencing approach in this case.
[30] All cases of wilful ill-treatment of a child necessarily turn on their own facts and each call for their own sentencing evaluation. The selection of an appropriate
sentence in the appellant’s case was a matter for the judge who presided over the trial, to be determined in the exercise of his discretion. He was not constrained to sentence on the basis of one discrete incident simply because he had summarised the Crown prosecutor’s statement to the jury in the course of his summing up. The Judge’s own directions to the jury on the elements of the charge were not so circumscribed. He simply referred to the onus being on the Crown to establish that the way in which the child was badly treated was likely to cause her actual bodily harm and that the issue really in dispute was whether it was the appellant who had inflicted “this harm” on the child. As there was clear evidence from the paediatrician that the child had been extensively beaten over a period of three weeks the Judge was entitled to have regard both to that timeframe and to the extent of the injuries described by the paediatrician in assessing the appellant’s culpability. In the circumstances a sentence of 18 months’ imprisonment cannot be characterised as manifestly excessive. Rather, it properly reflects society’s condemnation of this type of child abuse. Nor is the cumulative sentence of three months’ imprisonment for threatening to kill a CYFS social worker the day after the child was taken into custody wrong in principle or manifestly excessive. It is essential that social workers engaged in assisting at-risk children and their families are afforded the protection of the law, and sentencing must reflect the seriousness with which intimidation or threats of violence to social workers undertaking their duties are regarded by the Courts.
[31] The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
0
0
0