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 for several months.  Since that time he had not suffered any further attacks.

[7]       Notwithstanding the difficulties in the relationship between Mr Little and Ms Murphy, there was nothing in the background to suggest that he was wanting to harm Alyssa.  This is confirmed by the agreement of Ms Murphy that Mr Little and Alyssa should bath together. 

The trial

[8]       Following a seven day trial, Mr Little was found guilty of murdering his daughter.  We will discuss some aspects of the trial in more detail later in this Judgment but, for present purposes, it is sufficient to summarise the prosecution and defence cases.

[9]       These painted starkly opposing pictures of Alyssa’s death and the events leading up to it.  The Crown’s case was that the appellant was a near broken man who murdered his daughter against the backdrop of a failed relationship with her mother.  The defence case was that Alyssa died as a consequence of a tragic accident. 

[10]     The jury was presented with expert evidence from three Crown witnesses and one defence witness.

[11]     Dr Martin Sage, an experienced forensic pathologist, testified that the autopsy findings were compatible with drowning, and that this would usually require total immersion for a period of at least three minutes and probably more like five minutes.  He also gave evidence that the child had relatively florid facial and conjunctival petechial haemorrhages which were not a feature of death by drowning but are commonly associated with life-threatening asphyxia by facial or neck compression.  The defence challenged the admissibility of this evidence of Dr Sage, but Gendall J ruled it admissible.

[12]     Mr Venkataraman Balakrishnan, a neurosurgeon, gave evidence relating to Mr Little’s assertion that he had been knocked unconscious by a blow to the head.  He testified that a blow of considerable force would be necessary to render a person unconscious for one to two minutes.  He also expressed the opinion that it was unlikely that Mr Little had suffered a recurrence of a seizure or seizure-like episode 17 years after ceasing anti-epileptic medication, and not having suffered any seizures during that time.  Mr Balakrishnan accepted however in cross-examination that a head injury could precipitate a seizure even after many seizure-free years.

[13]     Dr Ian Calhaem, a geophysicist and director of a company that uses computer animation to illustrate the operation of geometric principles and physics-based analyses, gave evidence as to the physical plausibility of the appellant’s account.  His conclusion from an analysis of Mr Little’s account to the police of what had happened based on the laws of physics and biometrics was that, if the appellant had slipped in the way in which Dr Calhaem interpreted his statement to the police, it was very unlikely that the child could have been dropped in the bath. The admissibility of Dr Calhaem’s evidence was challenged by the defence, but Gendall J ruled that it was admissible.

[14]     For the defence, Mr Grant Gillett, a neurosurgeon, agreed that there was a very low probability of a spontaneous seizure after 17 years but considered that a knock to Mr Little’s head would put him at a “definite risk” of a seizure.  He said that following a seizure, there is a tendency to compose some impression of what must have happened to fill in the gaps that are not reliably confirmed by normal memory.

Sentencing

[15]     Gendall J considered that he was bound to apply the 17 year minimum non‑parole period required by s 104 of the Sentencing Act 2002 because one of the enumerated circumstances was present, namely that the victim was particularly vulnerable.  The Judge said that, but for s 104, he would have fixed a minimum period of 14 years.  He then applied the test in R v Williams [2005] 2 NZLR 506 as to whether the 17 year period should be decreased because it would be manifestly unjust. Gendall J concluded with some reluctance that, despite some mitigating factors relating to Mr Little’s previous good character and the emotional pressure he was under at the time, the sentence was not manifestly unjust.

Grounds of appeal

[16]     Mr Little appeals against conviction on the following grounds.

(a)The verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence. 

(b)There was a miscarriage of justice resulting from:

·the ruling that the Dr Calhaem’s evidence should be admitted;

·the ruling that Dr Sage’s evidence should be admitted; and

·the direction to the jury on lies.

[17]     Mr Little also appeals against his sentence, submitting that the minimum non-parole period of 17 years is manifestly unjust.

Unreasonable verdict

[18]     For the appellant, Mrs Stevens argues that the verdict should be set aside on the basis that it is unreasonable or cannot be supported having regard to the evidence (s 385(1)(a) of the Crimes Act 1961).  Counsel submits that this Court’s approach to this issue in R v Ramage [1985] 1 NZLR 392 should be revisited. Whereas the Ramage test provides that an appellate court will not overturn a verdict that was reasonably open to the jury, the appellant urges a shift to the “lurking doubt” approach articulated in the English case R v Graham [1997] 1 Cr App R 302 (CA) at 308:

If for whatever reason, the court concluded that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of the offence or not, then it must of necessity consider the conviction unsafe.

The possibility of adopting this approach has recently been urged on this Court in R v Munro CA33/07, where judgment is reserved.

[19]     In Mrs Stevens’ submission, the jury ought to have been left in a state of reasonable doubt as to whether the drowning was deliberate because the appellant’s explanation of events is entirely reasonable on the basis of the available evidence.  She argues that Dr Calhaem’s evidence did not exclude the possibility of Alyssa falling accidentally in the bath because it did not take into account variables such as a wet, wriggly baby on a slippery hip, the baby’s position as a counterweight rather than an upright, and the possibility of other factors which the appellant may not have recalled after a blow on the head, such as a foot slipping on soap, or dizziness when rising from a low position. 

[20]     For the Crown, Mr Marshall argues that the question of whether the Ramage or Graham test should be applied is irrelevant, because the issue in this case is one of credibility, which is ordinarily if not exclusively the province of the jury.  The appellant gave evidence at trial and the jury rejected his version of events.  This Court should not intervene unless, on the totality of the evidence, the jury could not have returned a verdict of guilty.  In this case, the Crown submits, there was sufficient evidence to support the jury’s verdict.

[21]     We agree with the Crown that, whatever test is applied in determining whether the verdict was unreasonable, the appellant has not established that it was.

[22]     The jury saw and heard the witnesses of fact and the expert witnesses.  It was correctly directed by Gendall J as to the onus and standard of proof.

[23]     It was then for the jury to assess the strength of the circumstantial evidence on which the Crown case of murder was based and whether Mr Little’s evidence that Alyssa’s death was accidental could reasonably be true

[24]     It was open to the jury to reject the evidence of the appellant and to conclude that the Crown case had been established to the necessary standard by reference to matters such as:

·     although the appellant’s demeanour and apparent state of mind on 25 March 2005 did not suggest that he was likely to harm Alyssa, it remains an awkward coincidence that what he maintained was Alyssa’s accidental death occurred at a time when he was under pressure and strain and within two days of service of the proceedings commenced by Ms Murphy.

·     having heard the baby splashing in the bath from the position in which she was gardening, Ms Murphy did not hear any noise consistent with Mr Little (a large man) falling in the bathroom.

·     Ms Murphy testifying that, on her arrival in the bathroom, the accused was (inconsistently with his account of what had occurred) wearing a towel around his waist.

·     the police finding, on arriving at the scene within 40 minutes, that there was little, if any, water on the floor of the bathroom (again, inconsistent with Mr Little’s account).

·     despite there being possibly innocent explanations for them and not a great deal being made of them by the Crown at trial, the petechiae referred to by Dr Sage were also consistent with something untoward having happened to Alyssa before she drowned (or was drowned); as with the evidence of Mr Little’s state of mind, this is another aspect of the case which involves Mr Little’s explanation requiring a not entirely plausible coincidence (in this case that on 25 March 2005 Alyssa was both accidentally dropped in the bath and that independently something else happened to her resulting in the sort of injuries which are characteristically associated with asphyxiation).

·     the only injury to the appellant’s head or face was a superficial scratch, first observed by any witness three days later.

·     some remarks attributed to Mr Little by witnesses who spoke to him after Alyssa was found in the bath which were either conceivably in the nature of admissions, or at the least were inconsistent with the explanation he advanced at trial.

·     the blow to the head and epileptic attack explanation advanced by the defence, while not a medical impossibility, involved what was at least an unlikely and unexpected chain of events and physiological consequences, again giving rise to coincidence considerations.

·     on one view of Mr Little’s explanation, as given to the police and amplified in what he told a Mr Kitchen, it would not have been possible for the baby to be dropped in the bath (at least according to Dr Calhaem).

·     when he gave evidence, Mr Little did not so much dispute Dr Calhaem’s conclusion but rather advanced an explanation of how he got out of the bath – an explanation which the jury may well have concluded was different from the explanation advanced to the police and Mr Kitchen.

Dr Calhaem’s evidence

[25]     The appellant submits through counsel that Gendall J erred in holding that Dr Calhaem’s evidence was admissible.  The evidence was not an experiment, but a reconstruction.  In the alternative, counsel submits that, even if it was an experiment, the evidence had the potential to mislead the jury because there was insufficient similarity between the tests conducted and the actual conditions.  The prejudicial effect of admission outweighed the probative value and may have led the jury to abdicate its primary responsibility to determine the facts.

[26]     Ms Buckingham, who presented this part of the oral argument for the appellant, did not dispute that Dr Calhaem could have presented his evidence entirely by oral question and answer.  She also accepted that computer-generated evidence will be admissible if it is used for illustrative purposes only.

[27]     The difficulty in this case, counsel submitted, is that the computer presentation had been modelled on Dr Calhaem’s interpretation of Mr Little’s statement to the police, namely that he had stepped forward out of the bath carrying Alyssa.  The presentation therefore had no regard to the evidence of the appellant at trial that he had stepped sideways out of the bath.  What was, on the defence case, a mistaken assumption had apparently been authenticated by the computer presentation.

[28]     The Crown submits that the computer evidence was not a reconstruction because it did not set out to recreate the crime, but rather to disprove the defence’s hypothesis of an accident.  The evidence was relevant and sufficiently reliable.  The issue of the similarity or otherwise with the actual conditions was addressed at trial.

[29]     The admissibility of Dr Calhaem’s evidence can in our view be resolved by the application of well-established principles.

[30]     Counsel for the appellant relied on R v Baker [1989] 3 NZLR 635 (HC) as supporting the categorisation of such evidence as either admissible experimentation or inadmissible reconstruction but, as Mr Downs pointed out in reply, Jeffries J had in that case relied on relevance and probative value as the overriding criteria.

[31]     It is trite that the opinion of an expert witness is only as good as the facts on which it is based.  But that does not mean that an expert can only express an opinion on agreed facts.  If it did, the availability of expert evidence would be severely limited.

[32]     It follows that Dr Calhaem’s evidence was not inadmissible because it was premised on a factual basis which the appellant disputed at trial.  For the same reason, the computer-generated illustration of his evidence was admissible, in the same way that a plan prepared by an expert to illustrate his or her evidence will be admissible.

[33]     Defence counsel put to Dr Calhaem at trial, quite appropriately, that his opinion and the computer modelling were based on an assumption which was materially different from that asserted by Mr Little at trial.  This is true.  Dr Calhaem’s computer modelling was based on his interpretation of Mr Little’s statement to the police.  In particular, he construed Mr Little’s explanation of his movements as he exited the bath as involving his moving forwards.  Although Dr Calhaem had not addressed what Mr Little told Mr Kitchen, that explanation very much suggested that he was moving forwards as he left the bath.  Leaving aside the computer modelling, common sense would suggest that, if Mr Little had left the bath in this way, with his centre of gravity necessarily over the edge of the bath when he fell, it is not particularly likely that he would or could have dropped the baby in the bath.  Perhaps recognising this, Mr Little’s evidence at trial was of a very different exiting manoeuvre, one which on the Crown case was not a good fit for what he had told the police and, more particularly, Mr Kitchen.  Obviously, Dr Calhaem’s evidence and modelling could not disprove this account.  Rather, by the time the case went to the jury, the issue on this aspect of the case must primarily have been whether the explanation given in evidence by Mr Little was credible, given particularly what he had previously said.

[34]     Objection was taken to Dr Calhaem’s evidence only after it had been given, although the possibility of objection was, we were told, foreshadowed in a pre-trial application under s 347 of the Crimes Act 1961.  If upheld, the objection would therefore have required the trial to be aborted.  But, even if objection had been taken at trial before Dr Calhaem gave evidence, his evidence (including the computer presentation) would have been admissible for the reasons we have given.

Dr Sage’s evidence

[35]     Mrs Stevens submits that Gendall J erred in finding that Dr Sage’s evidence of the presence of petechiae was admissible.  The evidence was not relevant to the question of whether Alyssa drowned accidentally or was deliberately drowned.  The probative value of the evidence could only be as to the possibility of partial asphyxiation prior to drowning.  There was no other evidence to support this hypothesis and, given the alternative explanations for petechiae which Dr Sage accepted in cross-examination, the evidence must be seen as speculative.  However, the mere implication of asphyxiation had a huge prejudicial effect on the defence case.

[36]     For the Crown, Mr Downs submits that Dr Sage’s evidence was relevant and admissible.  There is no rule that, simply because an expert cannot exclude other (unlikely) possibilities, otherwise admissible testimony is thereby rendered inadmissible.

[37]     We agree with Mr Downs.  The evidence was relevant to the question of the cause of death, which was a central issue in the trial.  As noted in para [24] above, the evidence was a component of a Crown case which was, in large part, founded on circumstantial evidence. Its probative value in this respect outweighed any prejudicial effect.

Lies

[38]     The final ground of the appellant’s appeal against conviction is that Gendall J’s direction on lies would have focussed the jury’s attention on a statement Mr Little allegedly made to the effect that he had left Alyssa alone in the bath, giving its prominence a special character.  This would have increased the possibility of a lie being given weight in determining guilt. 

[39]     There is nothing in this point.  At trial, Detective Senior Sergeant McCoy gave evidence that when he went to the house the appellant, who was personally known to him, said “It’s my fault – I left her alone for a few minutes”.  If the jury accepted that the appellant made this statement, it was in conflict with his own evidence at trial.

[40]     In summing-up, Gendall J directed the jury as follows:

[41] I am going to give you a direction about lies because the Crown’s position is that the accused said to his rugby coach, the Detective Senior Sergeant McCoy, upon that office arriving at the house “I left her alone in the bath”.  The Crown says that is a lie.  The accused, of course, denies that he said it.  If you accept that the accused said that, and that it is a lie, then you must be careful how you deal with that conclusion.  You must of course be satisfied that the accused told a deliberate lie to Detective Senior Sergeant McCoy and that he was not, for example, mistaken or confused.  If you are satisfied that what he said was a deliberate lie you must be careful about what weight you place upon that.  The mere fact that an accused person tells a lie is not of itself evidence of guilt.  You must ask yourselves what prompted him to do so.  People might lie for various reasons.  Some do it to protect others or because they are embarrassed, or out of pain, or confusion, or matters such as that. 

[42] Obviously if you are satisfied that there was a deliberate lie you may regard that as a relevant factor in assessing the accused’s credibility.  That is whether you can rely upon the rest of his statement or evidence.  That is a matter for you to assess.  It is important that you not go into any tendency to think that if an accused told a lie then he must be guilty of the crime for that reason alone.

[41]     These directions were conventional and appropriate.  If they had not been given, and the jury had concluded that the appellant’s statement was a lie, they may well have attached too much significance to it.

[42]     None of the grounds having been established, the appeal against conviction is dismissed.

Appeal against sentence

[43]     The appellant submits through counsel that the imposition of a minimum period of imprisonment of 17 years is manifestly unjust.  There was a low level of culpability, relative to comparable cases such as R v Paul CA496/05 1 August 2006, R v Mackness HC HAM TO23921 14 April 2003 and R v Li HC AK TO24483 15 December 2003.

[44]     The sentence is said to be manifestly unjust in because the loss of a child and the verdict itself are terrible punishment, particularly when the appellant is of previously good character. A life sentence is a dreadful penalty, and the additional burden of a 17 year minimum period of imprisonment is disproportionate to the level of culpability compared to other cases.

[45]     Mr Downs argues in response that the enormity of the crime outweighs the mitigating factors, and the Judge was correct not to depart from the statutory datum point of a 17 year minimum term.

[46]      Section 104(g) of the Sentencing Act 2002 requires that, “if the deceased was particularly vulnerable because of his or her age”, the minimum term of imprisonment for murder must be at least 17 years unless the court is satisfied that this is “manifestly unjust”.

[47]     Like Gendall J, this Court must give effect to the legislative policy expressed by that provision.

[48]     It could not be disputed, and Mrs Stevens did not attempt to, that Alyssa was because of her age particularly vulnerable.  Accordingly, the only question is whether a minimum term of 17 years imprisonment is in the circumstances “manifestly unjust”.

[49]     This Court dismissed in Williams, at paras [67] and [68], the degree of disparity between a 17 year term and the sentence but for the application of s 104 which is required to establish manifest injustice:

We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.  That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder.  In that sense they will be exceptional but such cases need not be rare.  As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny.  Judges must guard against allowing discounts based on favourable subjective views of the case.  The sentencing discretion of Judges is limited in that respect.

Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgment that is not capable of precise determination.  It may be helpful, however, to indicate that when the qualifying factor has only peripheral significance in the case the statutory minimum term may be manifestly unjust.  Otherwise, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.

[49]     Applying this approach, it cannot be said on the present facts that a 17 year minimum is manifestly unjust.  Far from being of peripheral significance, the extreme vulnerability of the victim is a striking and crucial feature of the offending.  If s 104(g) does not apply to the murder of a seven month old baby, it is difficult to imagine when it would apply.  The culpability of the present offence cannot be said to be low, having regard to the scheme of s 104.

[50]     The previous good character of the appellant does not justify a departure from the clearly expressed intention of Parliament.

[51]     It follows that Gendall J had no option but to impose a 17 year minimum, and the appeal against sentence must therefore fail.

[52]     Finally, we note that this Court discussed in Paul that the introduction of the Sentencing Act has seen an increase in the minimum term to be served by those who are convicted of murder but who do not come within s 104.  Given this increase, the appropriate sentence here, even if s 104 did not apply, may well have been greater than the term of 14 years suggested by Gendall J.

Result

[53]     The appeal is dismissed as to both conviction and sentence.

Solicitors:
Crown Law, Wellington for respondent