R v Ngati HC Auckland CRI-2006-092-01919
[2007] NZHC 1727
•8 May 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-092-01919
THE QUEEN
v
MAINE ANNABELLA NGATI TEUSILA KI VAIOLA FA'ASISILA
Hearing: 7 and 8 May 2007
Appearances: Mr R Burns and Ms C M Ryan for Crown
Mr J Rowan QC and Ms J Wickliffe for Ms Ngati
Mr E Paul and Ms L Hughes for Mr Fa'asisila
Ruling: 8 May 2007 at 2.30 pm
Reasons: 1 June 2007
REASONS FOR RULING (NO 3) OF LANG J
[on application by both accused for discharge at conclusion of evidence]
This judgment was delivered by me on 2.30 pm on 1 June 2007, pursuant to Rule
540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Solicitor, Auckland
Counsel:
Mr J Rowan QC, WanganuiMr E Paul, Auckland
R V NGATI AND ANOR HC AK CRI-2006-092-01919 8 May 2007
[1] Ms Ngati and Mr Fa’asisila were charged with murder, wilfully ill-treating a child and failing to provide the necessaries of life. Their trial was held between 23
April and 10 May 2007. The jury ultimately acquitted both accused on the charge of murder but convicted them of manslaughter. The jury also convicted both accused on the charges of wilfully ill-treating a child and failing to provide a child with the necessaries of life.
[2] At the end of the evidence counsel for both accused applied for an order discharging their clients on the charge of murder and on the charge of failing to provide the necessaries of life. Counsel contended that no jury, properly directed, could reasonably convict the accused on those charges, and that the accused ought to be discharged pursuant to s 347 of the Crimes Act 1961.
[3] Having heard argument and reflected on the matter overnight, I dismissed both applications on the morning of 8 May 2007. Closing addresses then commenced. I indicated at the time that I would give reasons for my ruling and this I now do.
Factual background
[4] The charges against the accused follow the death of Ngatikoura Ngati, a 3- year-old boy who died in Starship Hospital on the morning of 1 February 2006.
[5] Ngatikoura was the son of the accused Maine Ngati. He had been returned to Ms Ngati’s custody in November 2005 after having been raised for much of his earlier life by a relative. At the time that Ngatikoura came to live with his mother she was involved in a relationship with the accused Teusila Fa’asisila.
[6] The Crown case against the accused was that an atmosphere of violence prevailed in the home. It alleged that both Ms Ngati and Mr Fa’asisila would regularly hit all of their children, including Ngatikoura, for disciplinary purposes. They did so using objects such as a wooden spoon or fork, a vacuum cleaner tube, a canoe paddle and other implements. This allegation formed the basis of the charge
of wilfully ill-treating Ngatikoura. That charge was not the subject of either application for discharge.
[7] The evidence was to the effect that Ngatikoura regularly soiled his pants and urinated in his bed and other areas of the home. He also had problems with communication, because English was not the primary language that had been used in the family with whom he had been living up until November 2005. There was also a suggestion that Ngatikoura may have been a little slow intellectually. All of these matters, but particularly his lack of toilet training, were said to have led to frustration on the part of both Ms Ngati and Mr Fa’asisila in dealing with Ngatikoura.
[8] The charges of murder and failure to provide the necessaries of life were laid as a result of a series of events that occurred on 30 and 31 January 2006. The Crown case was that Ms Ngati administered a severe beating to Ngatikoura around lunchtime on 30 January 2006. During this incident Ms Ngati is alleged to have struck Ngatikoura numerous times using an oar handle. The motivation for the beating is said to have been the fact that Ngatikoura had defecated in the bathroom, and had tried to dispose of his faeces by washing them down the plug-hole in the hand basin and throwing them out the bathroom window.
[9] The Crown alleged that at the conclusion of the beating on 30 January Ms Ngati cleaned Ngatikoura up and put him to bed. Later in the evening she discovered that Ngatikoura had urinated on the floor of the bedroom and she hit him again, this time with her hand. Then, on the following morning, she discovered that Ngatikoura had urinated on his mattress. This led to a further incident in which Ms Ngati struck Ngatikoura several blows with her hand. Some of these blows were directed to Ngatikoura’s arm, which by that stage was severely swollen as a result of the events of the previous day.
[10] The Crown case against Mr Fa’asisila was that at some stage on either 30 or
31 January 2006 he struck Ngatikoura on several occasions with a baseball bat. This incident was described by Ms Ngati’s 10-year-old son, Jacob Ah Sin. He said that Mr Fa’asisila hit Ngatikoura “heaps of times” with the bat.
[11] The Crown alleges that the blows that both accused inflicted on Ngatikoura caused extensive bruising and soft tissue injuries that were observed by the health professionals who attended him on the evening of 31 January and on the morning that he died. The injuries were also depicted in photographs produced at the trial. The Crown alleged that the bruising and soft tissue injuries set in motion a chain of events that caused Ngatikoura to gradually lose consciousness and ultimately die.
[12] Although the Crown initially sought to sheet home liability against both accused on the basis that they were each a party to the acts of the other, it ultimately elected not to close its case on that basis. It closed its case on the basis that each of the accused had struck blows that were a substantial and contributing cause of Ngatikoura’s death.
[13] The charge of failing to provide Ngatikoura with the necessaries of life arises from the fact that Ms Ngati and Mr Fa’asisila did not seek medical help for Ngatikoura until approximately 6 pm on the evening of 31 January 2006. The Crown contended that the accused were both aware of the extent of his injuries well before that time, and certainly at a point at which they could have obtained medical help that would have saved his life. As a result, the Crown contended that the prolonged failure to seek medical treatment for Ngatikoura caused his death and that they were guilty of manslaughter on that basis.
The applications for discharge
[14] Counsel for the accused relied on two principal submissions in support of the applications for discharge. These were:
Count 2 – Murder and Manslaughter
a) The Crown could not exclude as a reasonable possibility the evidence of the defence pathologist, Dr Ferris, that Ngatikoura’s death may have been caused solely as a result of a haemotoma that was present on the surface of Ngatikoura’s brain well before 30 January 2006; and
b) The Crown could not establish that any of the blows that either accused may have inflicted were causative of Ngatikoura’s death.
Count 3 – Failure to provide the necessaries of life
a) The Crown could not establish the point at which death became inevitable and as a result cannot establish that any failure by the accused to perform his or her statutory duty was causative of death.
Could the Crown exclude as a reasonable possibility the theory advanced by Dr
Ferris?
The competing cases
[15] The Crown case in relation to the cause of death was based principally upon the evidence of its pathologist, Dr Koelmeyer.
[16] The Crown also relied to some extent on the evidence of Dr Simpson, the clinician who was involved in the diagnosis and treatment of Ngatikoura when he arrived in the Intensive Care Unit at Middlemore Hospital on the evening of
31 January 2006. Although both counsel asked Dr Simpson a series of questions regarding the likely cause of Ngatikoura’s death, I propose to put that evidence to one side for present purposes. I do so for several reasons. First, Dr Simpson was not initially called by the Crown to deal with the issue of cause of death. Her brief of evidence was originally read to the jury by consent and it made no mention of that issue. Her evidence regarding the cause of death was given for the first time when she was subsequently called to give oral evidence by the Crown, ostensibly to explain the medical terms that she had used in her brief of evidence.
[17] Secondly, Dr Simpson is a clinician and as such is primarily concerned with the diagnosis and treatment of patients when they arrive at hospital and are admitted to the intensive care unit. As she readily admitted, she is not a pathologist and is not properly qualified to give expert opinion in relation to issues such as the cause of death. Moreover, she had not had access to much of the information that would
need to be taken into account if expert evidence on that topic was to be given. She had not, for example, seen the microscopic slides produced by Dr Koelmeyer from samples that he took from Ngatikoura’s body during the post-mortem. For these reasons I suggested to the jury (at [68]) that they should concentrate on the evidence of Dr Koelmeyer and Dr Ferris in considering the issue of cause of death, and I propose to adopt the same approach.
[18] It was common ground between both pathologists that Ngatikoura’s death was ultimately caused as a result of swelling to the brain which eventually cut off blood supply to the brain. This led directly to Ngatikoura’s death. The crucial point of difference between the two pathologists related to the cause of the brain swelling.
[19] Dr Koelmeyer was of the view that the bruising and soft tissue injuries that Ngatikoura suffered led to a complex chain of events. First, there was a significant loss of blood into the soft tissues, thereby lowering Ngatikoura’s blood pressure and increasing his heart rate. Secondly, the breakdown of muscle tissue, particularly in an area of severe bruising to the left upper arm, is likely to have resulted in the release of substances into the bloodstream which would have the effect of depressing the function of organs such as the heart, kidneys and lungs. In addition, the fact that Ngatikoura had a low haemoglobin count could also have depressed the action of the heart. Dr Koelmeyer’s conclusion was that the swelling to the brain was caused as a result of the effects on Ngatikoura’s body of the bruising and soft tissue injury rather than any direct injury to the brain.
[20] Dr Koelmeyer acknowledged that his post-mortem examination revealed a large haemotoma lying between the arachnoidal and sub-dural membranes of Ngatikoura’s brain. He treated that finding with caution, however, because he had had past experience of a situation in which a child of a similar age had a very much larger sub-dural haemotoma but had died of other causes. He did not consider that the haemotoma was likely to have caused Ngatikoura’s death. He preferred the view that there was “something else going on” to cause the swelling of the brain that led to Ngatikoura's death. Although Dr Koelmeyer could not pinpoint any single factor as being causative of death, he was of the view that the swelling of the brain
was caused by a combination of factors. These included the loss of blood into the soft tissues and the consequences of muscle necrosis, which included the effects on the kidney, heart and lungs of the substances thereby released into the bloodstream.
[21] Dr Ferris, on the other hand, did not consider that the sub-dural haemotoma could be ruled out as the sole cause of death. He was careful to confirm that he did not consider that the haemotoma was placing pressure on the brain, notwithstanding the manner in which he had depicted the haemotoma in a diagram that he produced to the Court. His evidence was that the very fact that the haemotoma was lying across the surface of the brain may have been sufficient to cause irritation to the brain, and this could have caused it to swell. He also pointed to the existence of microscopic injuries to the brain that appear to have been recently inflicted. He considered that these may also have had some relevance, although he did not explain how they may have contributed to his theory that the swelling to the brain may have arisen solely as a result of irritation caused by the haemotoma. Dr Ferris considered that it was more likely that death ensued as a result of the brain injury than as a result of the matters described by Dr Koelmeyer
[22] Dr Ferris also considered that there were difficulties with Dr Koelmeyer’s theory. He said that, if Ngatikoura had suffered muscle necrosis to the extent necessary to cause his death, he would expect to see other pathological indicia of that fact. In particular, he would expect to see microscopic evidence of fat embolism in such organs as the lung, the kidneys and the brain. Similarly, he would expect abnormalities in clotting mechanisms to have occurred. This would cause tiny clumps of protein, or fibrin, to block up many of the tiny blood vessels in the internal organs such as the lungs, kidneys and brain. These would later be evident microscopically in samples taken from Ngatikoura's organs during the post mortem examination undertaken by Dr Koelmeyer. None of these indicia were, however, present in the samples that he viewed.
[23] In the absence of findings that one would normally associate with the effects of soft tissue injury causing death, Dr Ferris was of the view that Dr Koelmeyer was not justified in ascribing the significance that he did to the soft tissue injuries. He did not consider that those injuries were the primary cause of Ngatikoura’s death.
[24] Against that background counsel for the accused submitted that the Crown could not reasonably exclude the theory put forward by Dr Ferris. They therefore submitted that no jury properly directed could reasonably convict the accused of either murder or manslaughter.
Decision
[25] As the Crown accepted, if the theory put forward by Dr Ferris was correct, neither accused could be guilty of either murder or manslaughter. The sub-dural haemotoma was in existence well before 30 January 2006, and the Crown could not establish that the actions of either accused caused it.
[26] In considering the competing arguments it is important, however, to recognise that this was not a case in which the only evidence before the jury was that of the pathologists. It was therefore different from cases such as R v Manu’ula CA
7/07 20 March 2007, in which there was no evidence available to assist the jury other than the competing opinions of the two health professionals. In the present case the Crown was entitled to rely not only upon the evidence of Dr Koelmeyer, but also upon that of the other witnesses.
[27] In particular, the Crown was entitled to draw upon the independent evidence, including the evidence given by Angelo and the admissions that Ms Ngati made in her videotaped interview, regarding the events of 30 and 31 January 2006. It was entitled to rely upon that evidence in support of its submission that, shortly before his death, Ngatikoura had suffered injuries at the hands of both accused that were likely to lead to the chain of events described by Dr Koelmeyer. The Crown was also entitled to submit that, if Dr Ferris’s theory was correct, it was a remarkable coincidence that the swelling of the brain caused by the haemotoma occurred in such close proximity to the beatings that Ngatikoura received.
[28] This was not a case, either, in which all of the medical evidence went one way. Dr Koelmeyer remained unshaken in his view that the most likely cause of death was the series of events that were set in train by the bruising and soft tissue injuries. He accepted that his task would have been much easier if he had been able
to find evidence of fat embolism or fibrin thrombi. He did not, however, consider that the absence of that evidence detracted from his theory. He also accepted, as he was bound to do, that Dr Ferris was entitled to his opinion. Dr Koelmeyer did not, however, shift from his view regarding the most likely cause of death.
[29] This was, ultimately, a case in which the Crown case was supported not only by the evidence of its pathologist but also by the other evidence relating to the acts of the accused. I took the view that, notwithstanding the evidence of Dr Ferris, it was open to a properly directed jury to reasonably conclude that Ngatikoura’s death was caused by the combination of factors described by Dr Koelmeyer, and that blows struck by both accused created the situation that led to his death. It was therefore open to the jury to reject as a reasonable possibility Dr Ferris’s view that Ngatikoura's death was caused solely as a result of irritation caused by the pre- existing sub-dural haemotoma.
[30] In many ways I considered that the circumstances of the present case were similar to those in Re an application by Fiso (1985) 1 CRNZ 689. In that case there were conflicting expert medical opinions as to the cause of death, and the Crown’s experts could not exclude the possibility that the defence theory was tenable. In those circumstances Eichelbaum J (as he then was) declined to discharge the accused on charges of murder and manslaughter. He said (at 692):
Both the Crown's medical witnesses conceded, it is true, that although they disagreed with aspects of the defence evidence they could not exclude the reasonable possibility that the view taken by the latter was correct. Such a concession however cannot be decisive. To illustrate by postulating a simpler situation, if there were but two experts, one on each side, expressing the opposite views on the time lapse between injury and death, the Crown case would not fail solely because of the concession of the Crown expert that he could not exclude the opposite theory. There might be factual evidence that strengthened the Crown case sufficiently and when the defence expert gave his evidence his theory might be dislodged under cross-examination or the jury might so regard the position. Here the lay evidence is not conclusive, but it seems to me that the strength of such evidence must be a matter of degree which normally should properly be assessed by the jury. The reasonable doubt on which the defence relies requires not only medical support, which clearly is available, but also the opportunity for the administration of the injury. In putting the matter that way I am not intending to invert the onus of proof but the question of reasonable doubt arises in the context of clear evidence of blows struck in circumstances which could account for the brain injury which by one mechanism or another brought about Pearson's death.
In short the Crown case for exclusion of the reasonable doubt does not depend on the experts alone but must be viewed in light of both the medical opinions and the lay evidence…The argument that the evidence must leave room for reasonable doubt has, if I may say so, been presented most ably. If I were the trier of the fact, I would find it extremely persuasive, but I am not. The assessment of what is sufficient to constitute a reasonable doubt is essentially a matter for the jury, to be decided on all the circumstances of the case. It is a task constitutionally entrusted to the jury which is the tribunal best suited to that exercise. It would require a clear case indeed before a Judge could take it upon himself to say that the jury had no option but to regard the doubt as reasonable.
I have concluded that were I to accede to the present application I would be pre-empting the functions of the jury and usurping those of the Court of Appeal. The Crown and for that matter the accused are entitled to have the issue determined by the jury who will have to assess the weight to be given to the differing views, and to the whole of the evidence. If any accused is found guilty of culpable homicide the accused will be able to pursue the same argument in the Court of Appeal. I do not see that it is a situation where failing intervention by the trial Judge there is a risk of an irreparable miscarriage of justice. If the verdict is not founded on sufficiency of evidence that can be put right after trial.
[31] I considered that these comments were particularly apposite to the present case. I concluded that I would be usurping the function of the jury if I granted the application for discharge. I would also usurp the function of the Court of Appeal in relation to the issue of sufficiency of evidence.
[32] For these reasons I concluded that the applications could not succeed on the basis that the Crown could not exclude as a reasonable possibility the theory advanced by Dr Ferris.
Could the Crown prove that blows that were inflicted by either accused contributed to Ngatikoura’s death?
[33] This argument was pressed principally by Mr Rowan on behalf of Ms Ngati. I did not understand Mr Paul to advance it with any degree of enthusiasm on behalf of Mr Fa’asisila.
[34] If the jury accepted the evidence of Jacob Ah Sin, Mr Fa’asisila struck
Ngatikoura on several occasions with the baseball bat on either 30 or 31 January
2006. Traces of Ngatikoura’s blood were also found on the baseball bat. Moreover, Dr Koelmeyer was of the view that the baseball bat may have caused the
serious injury to the muscles of Ngatikoura’s left arm. By the time of Ngatikoura’s death that particular injury was such that the muscle had begun to die and, if Dr Koelmeyer’s evidence was accepted, not only would there have been blood loss from the injury but it may also have released substances into the bloodstream that depressed the actions of the heart, kidney and lungs. For these reasons I had no hesitation in concluding that a discharge would not have been appropriate on this ground so far as Mr Fa’asisila was concerned.
[35] So far as Ms Ngati is concerned, Mr Rowan relied principally upon the evidence of Dr Koelmeyer regarding the nature of the bruising that he saw on Ngatikoura’s body. He submitted that the only definitive bruises that might be attributable to the actions of Ms Ngati were “tramline marks” that may have been caused by the wooden spoon or wooden fork. Dr Koelmeyer accepted that this particular bruising would not have been sufficient to have contributed to Ngatikoura’s death.
[36] Against that, however, is the fact that in her videotaped interview with the police Ms Ngati described a prolonged incident in which she struck Ngatikoura repeatedly with the handle of an oar. Even if no identifiable bruising could later be discovered as a result of this incident, I took the view that the jury was nevertheless entitled to accept that it must have caused at least some of the bruising that was clearly evident at the post-mortem. As a result, I considered that on Ms Ngati’s own statement there was sufficient evidence to enable the jury to accept that she delivered blows to Ngatikoura that were a substantial and operating cause of his death.
2. Failure to provide the necessaries of life
[37] As I have already indicated, the Crown case was that both accused knew of the fact that Ngatikoura had suffered serious injuries, and in particular the injury to his arm, from a very early stage. Notwithstanding this knowledge they failed to call an ambulance until approximately 6 pm on 31 January 2007. By that stage it was too late. Ngatikoura was unconscious and was unable to be saved notwithstanding the best endeavours of the medical staff at Middlemore and Starship hospitals. In
those circumstances the Crown contended that the accused failed to provide
Ngatikoura with necessary medical treatment and that their failure led to his death.
[38] Counsel for the accused submitted that the Crown case was fatally flawed because the Crown could not identify the point at which Ngatikoura’s death became inevitable. As a result, they submitted that the Crown could not establish that any failure on the part of the accused led to Ngatikoura’s death.
[39] The defence relied upon the following evidence given by Dr Simpson during her evidence in chief (at 136):
Now in this case the evidence is that the last of the injuries which this child suffered is likely to have occurred some time more than probably six hours before you saw him, had he received medical treatment say six hours earlier, would his life have been saved … I cannot say for sure either way because some of the damage that was done would not have been reversible.
[40] When she was questioned on this point in cross-examination she said (at
147):
You told us that the child could not survive and some of the changes were irreversible what changes are you talking about … I don’t know If I used the word changes I might have, in saying changes I mean events that have, not events
…
what do you say is not reversible … in my experience and my clinical impression of this child was that there was brain injury that a lot of the severe brain injury is not something brain injury is not reversible the extent of it and the end result can be unpredictable
so it’s the brain injury you’re referring to not … I was concerned about the brain injury and also about the soft tissue injury across the front of the shoulder and the upper arm which was also evidence on the chest CY and I was concerned that there would be some permanent damage from there that while in itself may not led to death could well be a contributing factor.
[41] In considering this issue the evidence of Dr Ferris is also important. During cross-examination he said (at 220):
There must have been a point in the course of the abuse that this child suffered where had responsible adults ceased the abuse and sought medical attention that that child’s life would have been saved mustn’t there … I think I can’t give you a specific moment in the sequence of these injuries where
treatment might have prevented it obviously if the child had sustained no injuries it would not have died in this fashion.
So while you can’t identify a specific point at which his life would have been saved you would nevertheless agree that there must have been a point where his life would have been saved … Yes
[42] In re-examination by Mr Rowan he said (at 221):
If Dr Ferris as you’ve told us the principal or major cause of death is the head injury what effect if any does that have on this issue that you’ve just been asked questions about namely earlier treatment … I think once the brain swelling had progressed to the point where the brain stem that’s the part of the bottom of the brain had begun to die then early treatment would probably have had little effect.
And while you agreed with my learned friend Mr Burns that there must in every case be a point in time where the child’s life would or might be saved, in your view is it possible to determine that in this case … well in retrospect I don’t think you can and it really would depend on I suppose the quickness of diagnosis or the quickness of recognition of the serious deterioration and that can be a problem medically as well as for lay people.
[43] At the conclusion of Dr Ferris’ evidence I asked the following questions:
One question which flows from a question Mr Rowan just asked you you said once the brain swelling had progressed to the point where the brain stem had begun to die then early treatment would probably have had little effect
… Yes
How would a person who had reached that stage present … in coma with probably little response to external stimuli.
[44] In my view the Crown was not required to pinpoint the exact moment at which any treatment would have been ineffective. Rather, it was required to satisfy the jury that the accused knew at a point in time when Ngatikoura could have been saved that he was suffering from physical injuries that were a threat to his health. If they failed to seek treatment for those injuries notwithstanding that knowledge, they would be guilty of manslaughter if death ensued and if the jury accepted that the failure to seek medical treatment was a major departure from the standard of care that would be expected of a reasonable person in those circumstances.
[45] In the present case the Crown was able to rely on the evidence in Ms Ngati’s videotaped interview where she told the police that she saw the bruising, including the severe bruising to his left arm, on the evening of 30 January 2006. It was
therefore entitled to submit that Ms Ngati ought to have sought medical treatment for
Ngatikoura at that time.
[46] Mr Fa’asisila acknowledged that he saw the bruising to Ngatikoura’s arm on the morning of 31 January 2006 when Ngatikoura took a shower. The Crown was therefore entitled to submit that Mr Fa’asisila ought to have arranged for Ngatikoura to obtain medical treatment at that point.
[47] It was also open to the jury to conclude that, at those two points in time, death was not inevitable. Ngatikoura was clearly conscious and alert on the evening of 30 January, and remained so through until at least the early afternoon of 31
January. On the morning of 31 January he was seen by his aunt to be sitting at the table having his breakfast, and he interacted with her at that time by giving her a “High Five” when she left the house with Ngatikoura’s mother.
[48] The evidence suggests that Ngatikoura’s condition did not deteriorate significantly until at least the afternoon of 31 January, when he appears to have begun slipping in and out of consciousness. Given the evidence of Dr Ferris, the jury would have been entitled to conclude that that was the point at which death became virtually inevitable because the swelling of the brain had begun.
[49] For these reasons I reached the conclusion that, although the Crown could not pinpoint the precise moment at which death became inevitable, nevertheless a jury properly directed could reasonably conclude that both accused knew that Ngatikoura had suffered serious injuries at a point when his life could still have been saved. Whether or not a failure to seek medical treatment at that point was a major departure from the standard of care expected of a reasonable person in those circumstances was a matter for the jury.
[50] For this reason I was not prepared to discharge the accused on the charge of failing to provide the necessaries of life.
Lang J
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