R v Topp - [2024] NZHC 1869

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF BABY H’S MOTHER AND ANY IDENTIFYING PARTICULARS OF BABY H PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-641

[2024] NZHC 1869

THE KING

v

MICHAEL JOHN TOPP

Hearing: 29 April 2024 to 15 May 2024

Appearances:

D L Elsmore and C E Martyn for Crown

P J Shamy, S A Saunderson-Warner and D M Kirby for Defendant

Ruling:

9 May 2024

Reasons:

10 July 2024

JUDGMENT OF HINTON J

[Reasons for propensity, s 147 and trial abandonment rulings]

This judgment was delivered by me on 10 July 2024 at 4:00 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms D L Elsmore and Ms C E Martyn, Raymond Donnelly & Co, Office of the Crown Solicitor, Christchurch
Mr P J Shamy, Barrister, Christchurch
Ms S A Saunderson-Warner, Barrister, Dunedin Mr D M Kirby, Barrister, Christchurch

R v TOPP [2024] NZHC 1869 [10 July 2024]

[1] In this case the defendant faced four charges: murder (charge 1); a representative charge of causing grievous bodily harm with intent to cause grievous bodily harm (charge 2); and two charges of causing grievous bodily harm with intent to cause injury (charges 3 and 4).

[2] The victim of all charges was Baby H, the daughter of the defendant, who was three months old when she died on 31 December 2021.

[3] Charge 2 alleged that the defendant applied force causing subdural haemorrhages, and charges 3 and 4 alleged that the defendant caused repeated fractures of Baby H’s left tibia, all injuries being before 31 December 2021.

[4]At the close of the Crown case the defence raised five matters:

(a)an application under s 147 of the Criminal Procedure Act 2011 (CPA) on charges 2 to 4;

(b)an objection to the Crown relying on evidence relating to charge 1 as cross-propensity evidence in relation to charges 2 to 4, Mander J having previously stated there was no issue in that regard;1

(c)whether the fracture at issue in charge 4 constituted grievous bodily harm;

(d)a request for clarification from the Crown regarding charge 3 and what was required to be proven by the Crown; and

(e)an application to abort the trial based primarily on two parts of the evidence of Dr Cindy Christian, one of the expert witnesses called by the Crown.

[5]On 9 May 2024 I ruled:2

1 R v Topp [2023] NZHC 3710 at [49].
2 R v Topp [2024] NZHC 1149.

(a)As to propensity, that evidence relating to the charge of murder (including the defendant’s admission of having intentionally shaken or otherwise assaulted Baby H with sufficient force to cause blunt head trauma resulting in her death) could be used as proof of the defendant’s propensity to cause Baby H grievous bodily harm as alleged in charges 2 to 4 and therefore proof of identity of the perpetrator of those charges. I said that…

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 Topp

Details

AGLC: R v Topp [2024] NZHC 1869
Case: [2024] NZHC 1869
Decision Date: 10 July 2024

CaseChat Overview and Summary

The case of R v Topp involved the defendant, Michael John Topp, facing four charges: murder, and three charges of causing grievous bodily harm with intent. The victim was Baby H, the defendant's three-month-old daughter, who died on 31 December 2021. The legal issues in the case revolved around the admissibility of propensity evidence, the sufficiency of evidence to sustain charges under section 147 of the Criminal Procedure Act 2011, and the appropriateness of aborting the trial due to prejudicial comments made by an expert witness.

Regarding the propensity evidence, the court held that the evidence of the defendant's admission of causing Baby H's death could be used as proof of his propensity to cause grievous bodily harm as alleged in the other charges. The court found that the probative value of this evidence outweighed any prejudicial effect, provided appropriate directions were given to the jury.

On the section 147 application, the court determined that there was sufficient evidence for a reasonable jury to convict the defendant on charges 2 to 4. The court found that the evidence, including the defendant's text messages and the medical evidence regarding the nature of Baby H's injuries, supported the conclusion that the defendant was the perpetrator and possessed the requisite intent.

The application to abort the trial was dismissed by the court. The court concluded that the prejudicial comments made by Dr. Cindy Christian, the expert witness, did not create a reasonable apprehension of a miscarriage of justice, particularly as the comments were to be deleted from the trial transcript and appropriate directions would be given to the jury.

The defendant was ultimately found guilty of charges 1 to 3, and not guilty on charge 4. The court provided detailed reasons for its decisions, ensuring that the principles of evidence, criminal procedure, and trial fairness were upheld throughout the proceedings.

Orders