R v Kuka

[2009] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/2009
[2009] NZCA 572

THE QUEEN

v

LISA KUKA

Hearing:27 October 2009

Court:Hammond, Robertson and Ellen France JJ

Counsel:M F Tuilotolava for Appellant

C L Mander for Crown

Judgment:8 December 2009 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Table of Contents

Para No

INTRODUCTION  [1]

FACTUAL CIRCUMSTANCES  [3]
MISDIRECTION ON THE ELEMENTS  [11]
COUNT 3: FAILURE TO PROVIDE MEDICAL ATTENTION, THEREBY CAUSING

NIA’S DEATH  [12]
            THE LEVEL OF CAUSATION REQUIRED  [15]
            THE EVIDENCE IN THE PRESENT CASE  [34]
                  THE NATURE OF NIA’S INJURIES  [35]
                  WHAT SYMPTOMS MIGHT A CHILD INJURED LIKE NIA

HAVE PRESENTED WITH?  [36]
                  THE TIMING OF MEDICAL TREATMENT  [37]
                  THE TRAJECTORY OF NIA’S INJURIES  [39]
                  DR KELLY’S VIEW ON THE CAUSAL LINK BETWEEN MS KUKA’S

OMISSION AND NIA’S DEATH  [41]
            THE EVIDENCE IN THE PRESENT CASE: DR STABLES  [43]
                  CAUSE OF DEATH  [45]
                  THE TRAJECTORY OF NIA’S INJURIES  [46]
            APPLYING THE TEST TO THE EVIDENCE IN THIS CASE  [48]
COUNT 4: FAILURE TO PROTECT NIA FROM VIOLENCE, THEREBY CAUSING HER DEATH  [56]
            WAS THERE ENOUGH IN THE EVIDENCE FOR THE JURY TO DRAW A

SUPPORTABLE INFERENCE OF KNOWLEDGE?  [72]
FURTHER CHALLENGES  [77]
FAIRNESS OF SUMMING UP  [85]
RESULT ON CONVICTION APPEALS  [91]
APPEAL AGAINST SENTENCE  [92]

Introduction

[1]        Lisa Kuka was convicted of two counts of manslaughter, one alleging an omission to provide the necessities of life thereby causing death, and the other of failing to protect a child from violence thereby causing death.

[2]        Ms Kuka was sentenced to an effective term of nine years’ imprisonment.  She appeals against both conviction and sentence.

Factual circumstances

[3]        The appellant was the mother of Nia Glassie who died on 3 August 2007 as a result of injuries she had sustained.

[4]        Ms Kuka and four other adults were jointly tried before Potter J and a jury on a number of offences alleging criminal acts and omissions leading to Nia’s death.  The period of offending covered by the charges was 21 May 2007 to 22 July 2007.  Over that period Nia and her two older sisters were living with Ms Kuka at an address in Rotorua.  Also living at the address were Wiremu Curtis (Ms Kuka’s partner), Michael Curtis (Wiremu Curtis’s older brother), Oriwa Kemp (Michael Curtis’s partner), and Tahlia Curtis (the young daughter of Michael Curtis and Oriwa Kemp).  The fifth accused, Michael Pearson, lived at a different address. Ms Kuka’s partner (Wiremu Curtis) and his brother (Michael Curtis) were convicted of Nia Glassie’s murder, and the other adults also faced charges with regard to the abuse of Nia and her two elder sisters.

[5]        There was no question that Ms Kuka herself had been involved personally in the persistent and violent abuse of Nia, which the Judge at sentencing summarised as:

(a)Wiremu Curtis, his brother Michael, and Mr Pearson performed “wrestling moves” on her;

(b)she was shoved, naked, into a sandpit and…