R v Little - [2007] NZCA 491

IN THE COURT OF APPEAL OF NEW ZEALAND
CA108/07
[2007] NZCA 491
THE QUEEN
v
KEVIN JOSEPH CHARLES LITTLE
Hearing:4 October 2007

Court:William Young P, Robertson and Wilson JJ
Counsel:A E Stevens and D M Buckingham for Appellant

R G Marshall and M D Downs for Respondent

Judgment:9 November 2007 at 11.30am

JUDGMENT OF THE COURT

APPEAL DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wilson J)
Introduction
[1]       Alyssa Patricia Little-Murphy was seven months old when she drowned in the bath at her parents’ Nelson home on 25 March 2006. In February this year a jury found her father, the appellant, guilty of the murder of Alyssa. In March, he was sentenced by Gendall J to the mandatory life term of imprisonment, with a minimum term of 17 years. Mr Little now appeals against his conviction and his sentence.
Background
[2]       Mr Little and Ms Chontelle Murphy met while attending a training course in Australia in 2004 and commenced a sexual relationship. When Ms Murphy discovered she was pregnant in November that year, Mr Little moved from his home in Dunedin to be near her in Nelson.
[3]       About two months before Alyssa was born on 4 September 2005, Mr Little and Ms Murphy moved into a flat together, which they rented from Ms Murphy’s mother. In January 2006, Mr Little left work. He explained to Ms Murphy that he was seeing a doctor for stress and depression and had resigned because of the stress.
[4]       The relationship deteriorated. Ms Murphy wanted to separate from Mr Little and asked him to leave the flat. Mr Little refused. In March 2005, Ms Murphy contacted a solicitor, who wrote on her behalf to Mr Little. He replied, suggesting some form of joint care but refusing to leave the house. Ms Murphy applied to the Family Court for an occupation order and interim custody of Alyssa. The court papers were served on 23 March 2006.
[5]       On 25 March, after helping Ms Murphy in the garden, Mr Little asked her if he could take a bath with Alyssa, and she agreed. While the two were in the bath, Ms Murphy was outside gardening. Her evidence was that she could clearly hear the child splashing in the bath. She said there was then a period of approximately 15 minutes when she heard nothing, until she heard Mr Little make a groaning noise. She ran into the bathroom. Alyssa was face down in the bath. Mr Little was distraught.
[6]       His explanation at trial was that he had slipped while getting out of the bath with Alyssa on his hip. He said that he had knocked his head on something and lost consciousness and that Alyssa must have tumbled into the bath. This evidence was against the background that Mr Little had in his youth suffered from epilepsy. At the age of ten, he suffered a series of three epileptic seizures within the space of three weeks. Mr Little was treated with anti-epileptic medication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Little

Details

AGLC: R v Little [2007] NZCA 491
Case: [2007] NZCA 491
Decision Date: 9 November 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Kevin Joseph Charles Little against his conviction and sentence for the murder of his seven-month-old daughter, Alyssa Patricia Little-Murphy. The appellant, Mr Little, had been found guilty of murder by a jury and was sentenced to life imprisonment with a mandatory minimum term of 17 years. Mr Little appealed on grounds that the verdict was unreasonable or could not be supported by the evidence, that the admission of certain expert evidence caused a miscarriage of justice, and that the 17-year minimum term was manifestly unjust.

The court found that the jury's verdict was reasonable and supported by the evidence, which included circumstantial evidence pointing to the appellant's guilt and the rejection of his explanation of Alyssa's death as an accident. The court also found that the admission of expert evidence by Dr Calhaem and Dr Sage was proper and did not lead to a miscarriage of justice, as it was relevant to the cause of death and did not unfairly prejudice the defence. Furthermore, the court held that the trial judge's direction to the jury on lies was appropriate and did not unduly influence the jury's decision.

Regarding the sentence, the court determined that the mandatory 17-year minimum term was not manifestly unjust, as the extreme vulnerability of the victim, due to her age, was a crucial feature of the offence. The court noted that the appellant's previous good character did not justify a departure from the clearly expressed legislative policy. Therefore, the appeal against both conviction and sentence was dismissed.

Orders