R v Harrison-Taylor HC Auckland CRI 2004-092-1510
[2005] NZHC 1306
•18 March 2005
ORDER PROHIBITING PUBLICATION AND PARTICULARS OF THE DECISION AND THE ACCUSED UNTIL TRIAL COMPLETED
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2004-092-001510
THE QUEEN
v
SHARON ANNE HARRISON-TAYLOR
Hearing: 18 March 2005
Appearances: Ms C Gordon/Mrs L Freyer for Crown Mrs L Smith for Accused
Judgment: 18 March 2005 at 3.45 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 18 March 2005 at pursuant to Rule540 (4) of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors: Crown Solicitor, Auckland Copy to: Ms L Smith
R V SHARON ANNE HARRISON-TAYLOR HC AK CRI 2004-092-001510 []
[1] The accused is on trial for murder. A two and a half week trial is scheduled to commence on 25 July 2005.
[2] There are two interlocutory applications on the file. An application by the defence for an order pursuant to s 23 of the Evidence Act 1908 and an application by the Crown in relation to orders under s 344A.
[3] At the outset of the hearing Mrs Smith confirmed the application for an order pursuant to s 23 of the Evidence Act 1908 was withdrawn. It is withdrawn at her request.
[4] That leaves the issue of the Crown’s application pursuant to s 344A. The application was filed at a time when the defence was to be sudden infant death/cot death or if a homicide the accused was not the offender. However, Mrs Smith advised that she has more recently considered the application of infanticide. As a consequence a number of the passages of evidence that the defence indicated objection would be taken to are no longer objected to.
[5] A number of the objections can now be dealt with shortly. I deal with them as follows.
Adams
[6]Mrs Smith withdrew the objection to the evidence of Constable Adams.
Atiga
[7] The evidence noted at page 2 (para (d)); page 3 (paras (e), (f), (g); page 4 (paras (k) and (h)); and page 6 (i); and page 7 (j) and (j)(sic)are not to be led. Nor is the hearsay evidence identified in paras (a), (b) and (c) on page 1.
Caulfield
[8]The evidence of Ms Caulfield from the bottom of page 1:
· “It didn’t feel right from the beginning” through to and including “it was really odd that” is not to be led. Nor is the statement “almost as if she didn’t want to touch him”.
Corcoran
[9]The evidence at page 4:
· “I did notice … were straight” is not to be led, nor is the evidence at page 5: “that are associated with grieving or”.
Curtis
[10]By agreement the evidence at page 5:
· “Also that day” running through to page 6, “Terri- Lee ever since” and;
· page 6: “I managed to get in contact” through to page 7 “promptly said no” and;
· page 7 “and she seemed quite relaxed about it” and;
· page 8: “As a result of information … because he’s jealous of me” is not to be led.
[11] The only remaining issue in relation to Ms Curtis is her evidence concerning Caleb. I accept Ms Gordon’s submission that if the defence pursue a defence that someone other than the accused was responsible for the death then Ms Curtis’ evidence regarding Caleb might be relevant so that after the introductory paragraphs by Ms Curtis concluding at: “investigating child abuse of various natures”. The
evidence would continue on page 2: “In December 2003 I interviewed Caleb at Pakuranga” etc. If, on the other hand the defence is not to pursue a defence that someone else was responsible for Gabriel’s death, then the evidence in that paragraph would not be relevant and substantive part of Ms Curtis’ evidence could commence “This current matter came to my attention because I was the Acting Supervisor”.
[12] In any event the evidence at page 1: “Child, Youth and Family” etc. down to “on-going investigation of the two of them” can be deleted and is not to be led.
Isherwood
[13]Mrs Smith has withdrawn her challenge to Detective Isherwood’s evidence.
Jones
[14] Mrs Smith no longer pursues the objection to Mr Jones’ evidence. I note and record that the evidence at page 3 which would still be objectionable, namely the evidence concerning the receipt of two separate benefits was not led at depositions and will not be led.
Murdock
[15] Mrs Smith accepts the deletions the Crown proposes to make to Mr Murdock’s evidence. They are:
· at page 1. “Dean was staying …” down to on page 2 “Sam were living with them as well”.
Quinn
[16]The following evidence of Mrs Quinn is not to be led:
· page 3: “When they moved in … like they were hiding from someone”.
· page 4: “The accused would often leave …” down to “only manage to pay
$200.”.
· page 8: “I felt sorry for the kids” down to “they owed me $2,115 in back rent”.
Still
[17]Mrs Smith objects to the evidence of Mr Still that:
“it seemed strange with the extensive rigor mortis and the venous pooling in the face, and the version given to me by the accused, just didn’t seem to add up.”
[18] Mrs Smith objected to the evidence on the basis that it was effectively opinion evidence and Mr Smith was not an expert.
[19] However, I accept Ms Gordon’s submission that as a qualified registered nurse and a person employed by St Johns for seven years before he became a paramedic in May 2003, Mr Still could appropriately be qualified as an expert on the basis of his nursing training and more particularly his experience of attending death scenes to make a comment as to his observation concerning the state of the deceased when he attended the scene. It will be a matter for the Crown to further qualify Mr Still. Provided that is done then there can be no objection to him expressing that opinion.
Vale
[20]No longer an issue.
Detective Westera
[21]No longer an issue.
Williams
[22]No longer an issue.
Lally/similar fact evidence
[23] By agreement the following passages of Mr Lally’s evidence are not to be led.
· page 4, “I had moved to Ashburton …” to page 5 “move around with my work.
· page 5: “Child Youth and Family became …” over to and including page 6, “Gabriel’s death in January 2004”.
· page 6: “I had a phone call on Christmas Day 2003 … in the future”.
· page 6: “it was like she was high …” and over page 7 to “screaming and becoming upset”.
· page 8: “One day when Caleb” down to “I know Caleb was poisoned” is not to be read.
[24] The other two principal issues with the evidence are the nappy incident with Terri-Lee and Mrs Smith’s submission that the evidence at page 4 concerning another incident involving Terri-Lee ought not to be led.
[25] I accept that the evidence at page 4 concerning Terri-Lee is only marginally relevant and unduly prejudicial. It is not to be led. That is the evidence at:
· page 4 commencing: “When Terri-Lee was about 2½ years old …” through to “she was screaming”.
[26] That leaves the issue of Mr Lally’s conduct of the nappy incident. Mr Lally was a former partner of the accused. They had two children together, Terri-Lee and
Caleb. The particular evidence that Mrs Smith objects to is Mr Lally’s evidence concerning an incident that he describes in the following way:
One day I was watching TV when I just got this feeling that I should go and check on the baby, on Terri-Lee, so I went up to the back bedroom where her cot was.
The accused had come out of Terri-Lee’s bedroom a few minutes before I went and checked on her.
There was a nappy tucked in very tightly across Terri-Lee’s face and into each side of the cot.
The nappy was down over her face to the level of her chin & her arms were flailing about. Terri-Lee was about 8 months old at the time.
I removed the nappy and Terri-Lee looked glad to see me, her eyes lit up. She was gasping for air but her colour was okay. I went to the accused who I think was in the kitchen and I said “Hey, there’s a bloody nappy over Terri- Lee’s head” the accused just shrugged her shoulders, and said “Oh I don’t know”.
There was no one else in the house at the time. Caleb wasn’t born at that stage, the accused was about 3 months into her pregnancy with Caleb.
This happened around December 1991.
[27] Mrs Smith submitted the evidence was irrelevant and unduly prejudicial and ought not to be led on the basis that the prejudicial effect outweighs his probative or evidential value.
[28] Ms Gordon submitted that the evidence was admissible as similar fact evidence and it was relevant to the two main issues in the trial, namely the cause of death and identity of the offender. She submitted the common features were:
· the victim in each case was an eight month old baby or at least an infant child entirely dependent on the accused;
· in each case there was an act of either attempting to or succeeding in preventing the deceased from being able to breathe – mechanical asphyxiation;
· the accused in each case displayed a lack of closeness and affection for Terri-Lee and the deceased.
[29] Both counsel referred to the decision of R v Bull (High Court, Hamilton T030332, 7 August 2003, Fisher J) where His Honour analysed the evolution of attitudes of similar fact evidence. As Fisher J observed in that case:
[39] … evidence of conduct on a discrete occasion showing a relevant propensity is admissible in principle if, but only if, probative value outweighs illegitimate prejudice. Nothing more and nothing less is required.
… What matters is what the conduct on the discrete occasion tells us about the likelihood that the accused had a particular propensity, and hence any logical increase in the likelihood that he would have acted in a particular way when placed in a similar situation. The probative/prejudice threshold is not to be underestimated. Evidence of general propensity will never suffice. Only a propensity that is highly focused and specific has any prospect of outweighing the heavy illegitimate prejudice inherent in evidence of that type.
And later:
The question is whether the evidence of conduct on a discrete occasion demonstrates a propensity that is so focused and specific, and so free of alternative explanation such as collusion between complainants, that its probative value will outweigh its inherently prejudicial effect … A propensity to commit burglaries is one thing. A propensity to commit them in a particular street every Thursday night wearing a clown suit is another. What is needed is propensity of such specificity that it satisfies the probative/prejudice test”.
[30] Dr Ferris, the pathologist gave evidence in cross-examination as to the cause of death:
I believe that there was some force applied to this child’s neck and face. Perhaps as a result of a single episode or one or two episodes but all occurring in a very short space of time – probably within a few minutes and as a result of this the child was unable to breathe and died and all of the post- mortem findings including the changes in the lung and brain were as a result of this.
Is it your view that the baby died because of his nostrils being pinched and cutting off the air ….. That is probably part of it – I think the neck compression as evidenced by the neck bruising is also a significant factor.
[31] In my judgment the evidence of the nappy incident with Terri-Lee is not evidence of a propensity so focussed and specific that its probative value outweighs its potential prejudicial effect.
[32] The reasons I have come to that view are these. Assuming for the moment that the evidence supports the inference that the accused wrapped a nappy tightly
over Terri-Lee’s face whilst she was in a cot, that action is distinctly different to the evidence of the actions that caused death in the present case. Further, Mr Lally’s evidence in fact is that while Terri-Lee was gasping for air her colour was okay. The nappy was down towards the level of the chin. The evidence is not compelling. The action of tucking a nappy over the child’s face in that way even if attributed to the accused is quite different to the action taken towards the deceased child in the present case which was a manual asphyxiation.
[33] Mrs Gordon emphasised that both actions could have led to mechanical asphyxiation arising from an inability to breathe but the methods employed on the two separate occasions are quite different and are so distinct in my view that they fall short of being sufficiently focussed and specific so that probative value would outweigh prejudicial effect.
[34] There are also other differences that Mrs Smith referred to which I accept are also relevant. First is the age of the child. Although Mr Lally’s initial brief of evidence said that Terri-Lee was aged eight months old at the time it now appears from cross-examination that she was 15 months old at the time. While I accept Ms Gordon’s submission she was still a child dependent on the mother in particular for support and vulnerable, there is a subtle difference between the vulnerability of an eight month old child and a 15 month old child.
[35] More significantly, however, there has been a long gap between the event in issue and the event for which the accused is on trial. The earlier incident involving Terri-Lee occurred over 12 years ago in 1990 or 1991. The dynamics of the home were different then. It occurred at a time when the plaintiff was pregnant with another child, Caleb. The length of time between the two incidents is also a factor which detracts from the immediacy and the focus, the conduct being particularly relevant.
[36] For those reasons I rule that Mr Lally is not to give evidence concerning the incident of the nappy with Terri-Lee.
G J Venning J
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