R v Izett

[2020] NZHC 2812

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-070-3143

[2020] NZHC 2812

THE QUEEN

v

AARON GEORGE IZETT

Hearing:

19-23 October 2020

Counsel:

K Raftery QC and A Pollett for the Crown

J A Kincade QC and N P Chisnall for the Defendant

Ruling:

23 October 2020

Reasons:

28 October 2020

REASONS FOR TRIAL RULING (NO 1) OF GORDON J

[Post mortem photographs]

Solicitors:           Crown Solicitor, Tauranga Counsel:  K Raftery QC, Auckland

J A Kincade QC, Auckland N P Chisnall, Auckland

R v IZETT [2020] NZHC 2812 [23 October 2020]

Introduction

[1]    In their memorandum of 7 October 2020 filed for a pre-trial telephone conference the following day, defence counsel queried the necessity for the post-mortem photographs of the deceased to be shown to the jury.

[2]    As the Crown did not intend to refer to the post-mortem photographs in the Crown’s opening address, it was agreed that the Court would hear submissions on the issue at a convenient time during the trial.

[3]    I have now heard those submissions. Given the need for a prompt decision, in case editing of the photographs was required, I made a ruling with reasons to follow. My decision was that:

(a)Photograph 13 is to be removed;

(b)Photograph 16 is to be cropped so that only the deceased’s torso and arms remain in the photograph, i.e. the deceased’s head will not appear in the photograph;

(c)Photograph 35 is to be cropped so that the victim’s genital area is not shown in the photograph; and

(d)The remaining photographs are admissible and may be shown to the jury.

Background

[4]    The defendant, Aaron Izett, is on trial for the alleged murder of his two year old daughter Nevaeh. It is alleged that he killed Navaeh sometime between 4.30 pm on 20 March 2019 and 8.15 am on 21 March 2019. The Crown case is that during this time Mr Izett severely assaulted Nevaeh on multiple occasions likely leading to her becoming unconscious. The Crown alleges that Mr Izett then placed Navaeh naked, face down in the mudflats in the estuary adjacent to the property where they lived. He then placed two large rocks on top of her body.

[5]    At the time Nevaeh was in Mr Izett’s sole care at their home as Nevaeh’s mother, Mr Izett’s partner, had been in hospital since the early hours of the morning of 18 March 2019 having given birth to their second child.

[6]    Mr Izett also faces three other charges: wounding with intent to cause grievous bodily harm to a friend of his on 18 March 2019; assault on his partner’s step grandfather on the afternoon of 20 March 2019 when he and his wife endeavoured to deliver items for the new baby to Mr Izett; and injuring with intent to injure one of the police officers who was involved in efforts to restrain and arrest Mr Izett on 21 March 2019.

[7]    The police were contacted by residents in the neighbourhood on the morning of 21 March 2019 because of Mr Izett’s erratic conduct. They found Nevaeh’s body face down under two large rocks with a combined weight of just under 80 kilograms, in the estuary adjacent to the property occupied by Mr Izett, his partner and the victim.

[8]    A post-mortem examination revealed a multiplicity of bruises and abrasion to the victim’s body. While the pathologist’s opinion is that the cause of death was drowning, the Crown case is that Nevaeh was likely unconscious when she was put into the water.

[9]    The Crown puts its case for murder under s 167(a) of the Crimes Act 1961, namely that Mr Izett intended to kill Nevaeh.

[10]   There is no dispute that the defendant was a user of methamphetamine. The Crown case is that Mr Izett killed Nevaeh while under the influence of methamphetamine.

[11]   Mr Izett defends the murder charge on the basis that he is not guilty on the grounds of insanity. And in any event, he says that the Crown is not able to prove beyond reasonable doubt the necessary murderous intent (or the intents in the other charges).

[12]   The Crown, in response, says that the defendant was not suffering from a “disease of the mind” at the relevant time. Rather, his conduct was as a result of intoxication with methamphetamine and that he killed Nevaeh in a “meth rage”. The Crown also says notwithstanding the methamphetamine intoxication, Mr Izett had the necessary intent for murder.

Submissions

[13]   In their memorandum of 7 October 2020, defence counsel first acknowledge that the relevance of the photographs is not in dispute. But they submit as there is no issue as to the injuries that caused death, it is not necessary for the post-mortem photographs to be shown to the jury. In support of that submission, defence counsel refer to the judgment of the Court of Appeal in R v Cui,1 where the Court said:

[88] If what is sought to be demonstrated by gruesome photographs can equally well be explained by other means, then those means should be considered. That was the point William Young J made in Healy. That simply demonstrates that the probative value of the photographs in that situation will be less than if they were the only effective means of demonstrating the point.

[14]   In oral argument, Mr Chisnall noted that the defence does not propose to cross-examine the pathologist. It is therefore not necessary for the pathologist to explain the injuries by reference to the photographs. If any visual aids are required, diagrams would suffice.

[15]   Mr Raftery QC for the Crown advises that the photographs were selected in consultation with the pathologist. The photographs are said to be the minimum needed by the pathologist to explain the injuries.2

[16]    Mr Raftery submits that the injuries sustained by the deceased suggest a prolonged assault, but all in one episode, before the victim was drowned. The photographs clearly demonstrate the degree of force used to inflict the injuries. He submits they are the best evidence of what Mr Izett did over a period of time. They demonstrate that even before Nevaeh was placed in the water in the estuary where she

1      R v Cui CA333/05, 28 September 2006.

2      This is the advice Mr Raftery received from Mr Perkins QC who was to have prosecuted the trial and who had those discussions with the pathologist.

drowned there was an intention to kill. He submits the issue of intent is very much at the forefront in this case. The photographs are relevant to that issue and words cannot demonstrate the intensity of Mr Izett’s attack on Nevaeh. Finally, he acknowledges that the Court would give an appropriate direction before the photographs are provided to the jury (and again in the summing up).

Discussion

[17]   The passage relied upon by Mr Chisnall from R v Cui,3 needs to be seen in its context in the judgment. The starting point for the analysis by the Court of Appeal was the following extract from Cross on Evidence:

1.71     Prejudicial photographs

Photographs revealing the gruesome features of a crime are admissible in evidence but are liable to be excluded if the Judge thinks that they will prejudice the jury against the accused to an extent out of proportion to their probative value. But photographic evidence may well be held necessary to tell the prosecution’s version of events to the jury in a realistic and easily comprehensible form.

(footnote omitted)

[18]The Court then referred to the judgment of William Young J in R v Healy,4

where the Judge said:

I find it difficult to see in this case that the pathologist could not adequately explain to the jury, if necessary using a model, the nature of the injuries from which Shae suffered. Case-hardened pathologists, counsel and judges may well under-estimate the distressing effect that photographs of this sort have on some jurors. The photographs in question show the progress of the dissection of this little girl’s head. It would hardly be surprising if some jurors found this extremely unpleasant; this to such an extent that they became significantly distracted from the evidence relating to the injuries. As well there is the ever present danger of prejudice to an accused arising.

It is sufficient to me to say here that, at least as presently advised, I do not see any particular evidential advantage to the Crown in the production of these photographs, whereas I do see that, individually, they will be extremely unpleasant for the jury and may well be, as a result, distracting and prejudicial. I cannot, of course, rule out the possibility that the way the case is run will warrant the pathologist referring to these photographs. For instance, if his description of the injuries or his opinions in relation to them are challenged it may be that he will not be able to respond adequately without referring to the

3      R v Cui, above n 1.

4      R v Healy HC Christchurch T126/97, 30 April 1998.

photographs. Any ruling I give under s344A of Crimes Act, however, is necessarily provisional and capable of being reviewed by the trial judge. Obviously if the case takes a turn which I presently do not anticipate that warrants reconsideration of my ruling here, then this particular issue can be revisited.

As presently advised I am of the view that the photographs ought to be excluded and they are therefore ruled to be inadmissible.

[19]   The Court then went on to say that as with other evidence, photographs are admissible if relevant to a fact in issue. However, if, as was the position in Baker5 and Healy, the photographs show gruesome injuries or the effects of such injury the Judge will need to consider whether their probative value outweighs the prejudice to the defendant of the jury seeing such photographs.6 The Court continued that if what is shown in photographs is a relevant and important part of the Crown case, and can only adequately be demonstrated by photographs, then they should be admitted with the Judge giving appropriate directions to the jury to minimise any illegitimate prejudice to the defendant.7

[20]   In Cui the photographs in issue showed a slit to the throat of the victim side to side, which the Court of Appeal described as being inflicted in a “neat and almost clinical” manner.8 The Court accepted that this could not have been conveyed adequately to the jury by the pathologist giving a demonstration on his own body or using a model.9

[21]   The Court referred to the power of a photograph and its superiority to spoken words.10 The Court considered that if the photographs were not so “gruesome or ghastly” that the trial judge should have ruled them out. The Court distinguished the photographs of the fatal injury in that case from the photographs in issue in Baker and Healy. In those two cases the photographs showed underlying bruising or fractures revealed by the peeling back of the scalp or face in the post-mortem examination.11

5      R v Baker, above n 12.

6      R v Cui, above n 1, at [87].

7 At [87].

8 At [89].

9 At [89].

10     At [89] citing Elliott Goldstein’s article Photographic and Videotape Evidence in the Criminal Courts of England and Canada [1987] Crim LR 384.

11 At [90].

[22]   In R v Baker Jeffries J stressed the importance of identifying the purpose for which the photographs are produced. He said:12

In deciding on admissibility of photographs on the grounds that they might cause revulsion and prejudice in the jury because of the horrifying nature of the photographs, it is essential to examine first the purpose of them in the evidence. If they fill no specific role essential to the Crown case then they ought to be excluded, particularly if there are other less objectionable photographs of the deceased. However if the photographs are an important and relevant part of the Crown case, either to prove a positive aspect of the case or to disprove an explanation expected from the defence, then they should be admitted, but the trial Judge may feel it appropriate to warn the jury at the time of admission and later in his summing up of possible prejudice.

[23]   The photographs in this case all depict external injuries. In other words, none are of the “gruesome and ghastly” kind referred to in Cui, showing internal injuries to the brain or the skull. In the photographs of her face the victim’s eyes are closed.

[24]   A central issue in this case is intent under s 167(a). I accept Mr Raftery’s submission that an oral description of the injuries by the pathologist without the use of photographs would not be adequate to explain the degree of force used, the sustained nature of the attack and the multiplicity of the injuries, especially to Nevaeh’s head and neck. These matters are all relevant to an intention to kill.

[25]   The submission that Mr Chisnall makes that diagrams be substituted is not a realistic one. In his report, the pathologist refers to 25 separate bruises and abrasions (one of those involving four areas of bruises and abrasions) to the head (including the face, ears and mouth). The multiplicity of these injuries could not adequately be reproduced in diagrammatic form.

[26]   There is a degree of overlap in some of the photographs of the injuries to head/face. That occurs as the camera view moves around the victim’s head and face. As the camera moves to focus on the next area of injury, some of the injuries from the previous photograph also appear in the following image. In my view this is not a gratuitous repetition. It is simply because of the number of injuries to the victim’s head and face.

12     R v Baker [1989] 3 NZLR 635, at 639. Confirmed on appeal in R v Baker CA361/89, 19 March 1990.

[27]   I accept the images do have the potential to be distressing, but that follows from the nature of the case. The photographs do not add any new layer of prejudice over and above the oral evidence of the pathologist. I consider that probative value exceeds potential prejudice. I will give the jury the necessary direction at the time the photographs are referred to and later in my summing up.

[28]   For completeness I explain the exclusion of one photograph and the direction that two photographs be cropped as referred to in [3] above. The photograph I excluded was a waist up photograph of the victim lying on her back. The injuries that can be seen on her face, neck and upper body are all depicted in other photographs. Those other photographs each focus on a particular part of the victim’s body as opposed to a view of the whole child (at least from the waist up). The jury will therefore be able to focus on a particular area of injury rather than seeing a photograph of a child.

[29]   One of the photographs that I directed be cropped was a waist up photograph of the back of the victim, who was lying on her front. I directed that photograph be cropped so that just the torso and arms appear in the photograph. In other words her head will not be shown in the photograph. Again that allows a focus on the injuries rather than seeing a photograph of a child. The second photograph I directed be cropped was, as is apparent from my ruling, so as to remove the part of the photograph that showed the victim’s genital area.

[30]   I note that after my ruling Mr Raftery advised that another of the photographs depicted part of the victim’s genital area. That photograph will also be cropped.

Gordon J