R v Topp
[2024] NZHC 1869
•10 July 2024
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 appropriate directions were to be discussed with counsel before opening addresses.
(b)That the s 147 application was dismissed.
(c)The clarification sought regarding charge 3 was to be addressed further in relation to the question trail before closing addresses.
(d)The application to abort the trial was dismissed on the basis that the offending passages from Dr Christian’s evidence were to be deleted from the transcript before it was provided to the jury and that subject to further discussion with counsel, I would address the jury on the deletions from the transcript before closing addresses and again in my summing up.
[6]This judgment addresses the reasons for:
(a)the propensity ruling;
(b)dismissal of the s 147 application regarding charges 2 to 4; and
(c)dismissal of the application to abort the trial.
[7] The defendant was found guilty of charges 1 to 3 inclusive and not guilty on charge 4. Given the latter verdict, there is no need to address reasons on the above matters so far as they affect charge 4, but for clarity charge 4 is still referred to in a number of instances.
Propensity evidence
[8] In a pre-trial judgment in this case dated 14 December 2023, Mander J ordered severance of other charges in respect of Mr Topp and said:3
No issue arises regarding the trying of the grievous bodily harm charges concerning H with the murder charge as they have a clear circumstantial relationship with that allegation and involve the same infant. They are related in time and circumstance, and the evidence, including now the admission of having fatally assaulted H, can be used as proof of T’s propensity to cause her bodily harm. Nor, once the murder charge has been resolved, could it realistically be suggested the evidence in relation to H could not be offered at a separate trial relating to D. However, the admissibility of this evidence in relation to the balance of the charges concerning H does not overcome the unfairly prejudicial effect the evidence about D would have on the murder charge if tried together. Severance of the two sets of charges must therefore be granted.
[9] While that conclusion is not binding on a trial Judge, Mander J expressed a clear view on the subject of propensity of the evidence relating to charge 1 on charges 2 to 4, and no issue was taken by the defence at that point.4 In those circumstances, until the issue was raised before me, there was no need for the Crown to make any application as to admissibility of this evidence.
[10] The issue on charges 2 to 4 was whether Mr Topp was the offender. I considered the evidence relating to charge 1 had a high probative value in respect of that issue in terms of s 43 of the Evidence Act 2006.
[11] There was strong evidence that the same injuries suffered by Baby H causing her death in charge 1 featured in charges 2 to 4, or a subset of the same injuries. As already noted, the injuries were subdural haemorrhages and fractures of the tibia. The causes of the injuries were also said to be the same, being principally shaking in the case of the haemorrhages and bending and breaking of the bones in the case of the tibia fractures. This evidence was not disputed by the defence. The injuries had been suffered by the same baby, the defendant’s child, in the same short three-month period. The evidence was that the injuries were unusual in a three-month-old baby and that
3 R v Topp, above n 1, at [49].
4 The Crown did not seek to argue propensity in the reverse direction and it is difficult to see how they could have, given the key issue on charge 1 was whether the defendant knew his actions were likely to cause Baby H’s death.
they were highly unlikely to be anything other than inflicted (by someone) in the case of charges 2 to 4. Mr Topp had admitted inflicting the injuries in the case of charge 1. While the evidence relating to charge 1 involves only one act, that act being the admitted killing of Baby H by the defendant, one act can be sufficient to demonstrate propensity and in my view that was the case here.
[12] The defence argued that the prejudicial effect of the evidence in respect of charge 1 was so high that no direction could prevent a jury inevitably finding that Mr Topp was guilty on the other charges. Mr Kirby said in those circumstances the evidence should not be admitted. However, I considered the prejudice flows only from the high probative value of the propensity evidence. Such prejudice is not unfair. The defence did not point to any other type of prejudice.
[13] Mr Kirby sought to rely on R v Kishore where Cull J declined the Crown’s application for a potential manslaughter verdict to be used as cross-propensity evidence on a charge of injuring with intent to injure.5 Identity was at issue for both charges which both related to Mr Kishore’s three-month-old son. Mr Kishore was alleged to have inflicted fatal brain injuries on his son in respect of the manslaughter charge, and fractures to the clavicle and ribs in the six weeks leading up to his death in respect of the injuring charge. Cull J declined the cross-propensity application because there was no other evidence on the injuring charge and therefore admission of a manslaughter conviction, should there be one, would risk the jury impermissibly engaging in likelihood reasoning. That is, the jury would impermissibly reason that because Mr Kishore was guilty on the manslaughter charge, he must be guilty on the injuring charge.6
[14] The circumstances of this case are however fundamentally different. First, as set out below, there is other evidence upon which the jury could also rely to be satisfied beyond reasonable doubt that Mr Topp inflicted the injuries the subject of charges 2 to
4. There is therefore no risk of the jury improperly engaging in the impermissible reasoning described by Cull J. Second, the injuries in charges 2 to 4 are subsets of the injuries inflicted in charge 1. The probative value of Mr Topp admitting to causing
5 R v Kishore [2023] NZHC 1420.
6 At [20].
the injuries the subject of charge 1 is therefore far stronger than in Kishore, where the injuries relevant to the two charges were completely different. I would add, although it did not seem to trouble the Judge, that the case also relied on a hypothetical of a manslaughter conviction when there was none, Mr Kishore faced two charges on both of which identity was at issue. That was not the case here.
[15] For the above reasons I concluded that the propensity evidence was admissible subject to the usual directions.7 It was relevant to the identity of the offender in charges 2 to 4 and its probative value outweighed the risk of an unfairly prejudicial effect on the defendant.
Section 147 application regarding charges 2 to 4
[16] The defence applied for charges 2 to 4 on the Crown charge list to be dismissed pursuant to s 147 on the basis that there was insufficient evidence to:
(a)identify Mr Topp as the perpetrator of those charges; and
(b)prove Mr Topp possessed the requisite intent.
[17] As to identity, Mr Kirby submitted that there was no direct evidence of Mr Topp inflicting any injuries on Baby H nor any evidence to suggest that he had hatred or animosity towards her. The only direct evidence as to the infliction of a non- fatal injury came from Ms Jones who said that Ms F told her she had shaken the baby. Mr Kirby said that in fact there was positive evidence from Ms F that she never saw or heard anything that made her suspicious Mr Topp was inflicting injuries to Baby H and Mr Topp was described as having doted on her. Mr Kirby submitted that while there was evidence that Mr Topp was frustrated and tired, so too was Ms F and therefore any available inference about that frustration and fatigue leading to animosity is equally available with respect to Ms F.
[18] As to (b) and the requisite intent, Mr Kirby submitted that there was a “complete absence of evidence” to prove the intentions required for charges 2 to 4.
7 I note that when it came to directions, neither counsel wished to be heard.
He submitted that such intentions could not be inferred simply from the injuries in the absence of proof of mechanism.
[19] Mr Kirby submitted that in light of the lack of evidence with respect to (a) and (b), there was a risk that the jury would conclude that Mr Topp was more likely than Ms F to have injured baby H and therefore find him guilty on that basis. That would be impermissible reasoning.
Legal principles applicable to applications to dismiss under s 147
[20]Section 147 of the CPA provides:
147 Dismissal of charge generally
(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2)The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3)A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4)Without limiting subsection (1), the court may dismiss a charge if—
(a)the prosecutor has not offered evidence at trial; or
(b)in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c)in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5)A decision to dismiss a charge must be given in open court.
(6)If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
(7)Nothing in this section affects the power of the court to convict and discharge any person.
[21] Sub-section (4)(c) codifies case law under s 347 of the Crimes Act 1961 such that previous authorities under that provision are applicable to a dismissal application under s 147(4)(c) of the CPA.
[22] As settled by R v Flyger,8 on a s 147 application the test is whether there is evidence such that a reasonable jury could return a verdict of guilty. An assessment as to the likelihood of such a verdict plays no part in the determination.9
[23] In the subsequent Court of Appeal decision in Parris v Attorney-General, the Court held:10
… There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence…
[24] In considering an application under s 147 the Crown case must be taken at its highest.11
Application of s 147 principles to this case
[25] As Mr Kirby submitted, there was no direct evidence of Mr Topp inflicting any injuries to Baby H in relation to charges 2 to 4.
8 R v Flyger [2001] 2 NZLR 721 (CA).
9 At [13].
10 Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13]-[14].
11 R v Flyger, above n 8, at [17]-[18] and [25].
[26] However, I found on the basis of the following evidence that a reasonable jury could conclude beyond reasonable doubt that Mr Topp was the perpetrator.
[27] First, the facts in relation to charge 1 could be used as cross-propensity evidence to support charges 2 to 4, as discussed above.
[28] Second, there was extensive evidence via text messages and other communications from Mr Topp that during the month of December 2021, a period relevant to all of the charges, he was angry, impatient, frustrated, having outbursts, depressed, overwhelmed and said of himself that Baby H deserved better.
[29] Third, while Mr Topp was not antagonistic towards Baby H and was described as doting on her, there was also evidence from Ms F, the baby’s mother, that he spoke punitively to the baby regarding her nappy changing and feeding behaviour. There was also evidence from Ms F that Baby H was restless or difficult to settle after periods when she was left in the sole care of Mr Topp.
[30] In respect of charge 2 where it was suggested by the defence that the baby’s injuries could have been accidentally inflicted by Ms F, there was sufficient evidence, particularly from medical experts, that a jury could find it was not a reasonable possibility that the alleged earlier subdural haemorrhages were the result of the accidents or other incidents involving Ms F. The medical evidence was that Baby H’s injuries had been inflicted, rather than accidental, and other than Ms F and Mr Topp there was no suggestion anyone else had inflicted the relevant injuries. All of the same types of injury that were the subject of charges 2 to 4 had also been incurred in the fatal acts admitted by Mr Topp in respect of charge 1.
[31] As to the evidence on intent, the medical evidence described the injuries as requiring significant force. I considered that the jury could reasonably infer from that evidence that the injuries could only have been inflicted by someone intending to cause injury. Mr Topp’s admission and the propensity evidence of charge 1 is also relevant and could be relied upon by the jury when determining the issue of intent.
[32] For the above reasons and taking the Crown case at its highest, I concluded that there was sufficient evidence that a reasonable jury could return a verdict of guilty on charges 2 to 4, and dismissed the s 147 application.
[33] I note that the subsequent verdicts indicate the propensity evidence of the murder charge was not, as the defence alleged it would be, so overwhelming that it led the jury to guilty verdicts on all three of the lesser charges.
Application to abort trial
[34] The defence applied to abort the trial on the basis of what was described as incurable prejudice stemming from comments of Dr Christian. The defence also raised, as a “subsidiary issue”, that the Crown had failed to disclose evidence by Dr Christian as to potential shaking of the baby by Ms F, with regard to charge 2.
[35]As Woolford J stated in R v Bublitz:12
Criminal jury trials are not infrequently aborted in a range of situations. The Court has the power to discharge juries and abort trials both under its inherent jurisdiction and statutorily under s 22 of the Juries Act 1981. Section 22(3)(a) provides for the Court to discharge the jury during the hearing of a case where “a casualty or emergency makes it, in the Court’s opinion, highly expedient for the ends of justice to do so”. A casualty or emergency will include unforeseen occurrences or “mishaps” requiring the judge to intervene at trial. Effectively “something must have gone wrong with or affecting the trial process”.
Whether it is highly expedient for the ends of justice to discharge a jury will turn on “whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances”. The need to abort often comes about due to problems with disclosure, for example unauthorised disclosure to the jury of prejudicial material during the trial. Where an appropriate direction by the judge cannot sufficiently counteract the unfairness, it will be necessary to discharge the jury and abort the trial.
[36] The test for aborting a jury trial was set out by the Court of Appeal in R v Marshall.13 It depends on “whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances”.14
12 R v Bublitz [2017] NZHC 1059 at [28]-[29] (footnotes omitted).
13 R v Bublitz, above n 12, at [40] citing R v Marshall [2004] 1 NZLR 793 (CA) at [16].
14 R v Marshall, above n 13, at [16].
[37] As noted, on charges 2 to 4 the key issue was identity. The key issue on charge 1 was whether Mr Topp had the requisite murderous intent in terms of the second limb of intent – whether he knew that what he was doing was likely to kill Baby H.
[38]In giving evidence, Dr Christian was asked:
Q. You’ve said: “Repeated”. Are you able to put a number on it?
A.I’m not able to put a number on it. I would agree that there are at least three but I would not be surprised if there were more than three. We know from the literature, we know from people who confess to shaking babies and harming them that their history when they confess, their history is often that they’ve harmed the baby repeatedly and sometimes many, many times before the baby presents for medical care or presents in terrible condition. So I agree that it’s at least three but I would not be surprised if it was more. And I don’t know that – there’s only one person who knows how many times the baby was injured.
(emphasis added)
[39]She later said:
… so, again, I just said that when people confess to shaking babies, it is most common that this has happened repeatedly.
[40] Clearly, as the defence asserted, the highlighted evidence was inadmissible and invited inappropriate reasoning – namely, that if the defendant is guilty of manslaughter, as he admitted, then he is also guilty of the rest of the charges. It was accepted that this evidence was not briefed by the Crown. It came out suddenly and inadvertently.
[41] Dr Christian’s answer did not impact on the principal charge, nor did the defence suggest otherwise. (As addressed above, the Crown was not arguing that the acts alleged in charges 2 to 4 were relevant to the defendant’s knowledge on charge 1. In fact, the contrary could be argued. If the defendant had committed charges 2 to 4 using similar forms of assault and the baby had not died that might tend to suggest he did not know death was likely following the assault in respect of charge 1. The defence did not put this proposition to the jury given charges 2 to 4 were denied.)
[42] Further, I considered the evidence, particularly the propensity evidence with regard to charges 2 to 4, was strong and that if the passages set out above were excised, coupled with a very firm direction, the damage could be adequately cured.
[43] The third passage of Dr Christian’s evidence, which was at issue, related to the fatal assault and was recorded as follows:
Q.So the forces that were used to cause the injuries in [Baby H], are you able to tell us, give us an idea, as to the level of the forces that caused the injuries in [Baby H]?
A.I can’t tell you the Gs of forces. I can tell you that they are not the forces that any young infant should be subject to. That a reasonable person who saw someone do this to a baby would know that that was a very dangerous and terrible thing that happened to the baby. And that it constitutes violence against the baby and this is clearly violence against this baby. Multiple bones were broken. Repeatedly, the brain was severely injured. This is just terrible violence against this baby.
(emphasis added)
[44] The defence argued, with regard to the murder charge, that the highlighted part of this evidence “introduces an objective test which clearly is met in Dr Christian’s view in terms of this case”. They submitted that Dr Christian’s answer had “completely misdirected the jury” as to what is at issue in this trial.
[45] I do not agree that this evidence either introduced an objective test for knowledge or amounted to a “jury misdirection”. The jury would have been clear from my opening remarks, summing up and counsels’ addresses, that any directions were to come from the Judge. They would similarly have been clear that they had to be sure as to the defendant’s knowledge, not the knowledge of a reasonable person. However, while I considered the admissibility of this second passage of Dr Christian’s evidence to be debatable, I concluded that it was outside Dr Christian’s expertise to comment on the “reasonable person”.
[46] On the Crown’s application I therefore directed that the above passages be deleted in full from the transcript15 and that the jury be addressed on the deletions both
15 R v Topp [2024] NZHC 1159 (Ruling No 2).
before closing addresses and in my summing up. Both counsel subsequently requested that I not raise this issue before closing addresses so I directed the jury on all three passages and the reasons for their deletion, only in my summing up.
[47] As to the issue of late disclosure, I consider this to be truly subsidiary. Dr Christian gave evidence during the trial on evidence of another witness as to shaking of Baby H by Ms F, that evidence in turn having been given during the trial. The relevant evidence did not raise a new issue or create any surprise or unfairness. There had been ample disclosure by the Crown around the issue of potential shaking of the baby by Ms F.
[48] For the above reasons I considered any prejudice was adequately cured such that there was no reasonable apprehension of a miscarriage of justice, and the application to abort the trial was dismissed.
Hinton J
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