Solomon v The Queen - [2017] NZCA 164

IN THE COURT OF APPEAL OF NEW ZEALAND

CA434/2016
[2017] NZCA 164

BETWEEN	TROY LOUIS STUART SOLOMON Appellant
AND	THE QUEEN Respondent

Hearing:	5 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	P K Hamlin for Appellant A J F Perkins QC and R K Thomson for Respondent
Judgment:	8 May 2017 at 2.30pm

JUDGMENT OF THE COURT

ALeave is granted to the appellant to adduce further evidence on appeal.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant appeals against conviction after jury trial before Davison J on a charge of murdering his five-month-old daughter Aaliyah on 7 August 2014. On that day, the child was left in the appellant’s care while her mother went to the supermarket. While the mother was absent, the child sustained brain injuries that led to her death. She also had an unusual spiral fracture to her femur and other injuries. Mr Solomon was sentenced to life in prison with a minimum period of imprisonment of 17 years.[1]
[1]R v Solomon [2016] NZHC 1653.
The appellant gave varying explanations as to the cause of the child’s injuries. His first account was that she had drowned while he was bathing her but in a later interview with the police he maintained she had slipped from his grasp and had sustained the injuries in a fall. The trial issue was whether the injuries were deliberately inflicted, as the Crown alleged, or whether they had occurred accidentally, as the appellant contended. The Crown did not suggest the appellant intended to kill the child. Rather the Crown submitted the killing was reckless under s 167(b) of the Crimes Act 1961.
The Crown called a number of expert witnesses. Their evidence was that it would be most unusual for the child’s injuries to be sustained in an accidental fall as the appellant described. The Crown case focused in the main on the acute injuries sustained on the day the child died. However, there was also evidence of older injuries. One of the Crown witnesses was a paediatrician, Professor Christian. In common with the other expert witnesses, Professor Christian said it was rare for a fatal outcome to result from a short fall such as that described by the appellant. However, she went further than the other expert witnesses by expressing the view that the multiple injuries sustained by the child, both old and new, represented inflicted injury sustained on more than one occasion. She described this finding as a diagnosis based on all the data available to her as well as her own experience and research.
In both his opening and closing addresses the prosecutor focussed primarily on the acute injuries. He submitted to the jury, based on the expert evidence, that those injuries were likely to have been deliberately inflicted and that the appellant’s explanation for the injuries was implausible. However, towards the end of his closing address, the issue of the previous injuries sustained by…

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 Solomon v The Queen

Details

AGLC: Solomon v The Queen [2017] NZCA 164
Case: [2017] NZCA 164
Decision Date: 8 May 2017 at 2.30pm

CaseChat Overview and Summary

The appellant, Troy Louis Stuart Solomon, appeals against his conviction of murdering his five-month-old daughter Aaliyah on 7 August 2014. He was sentenced to life in prison with a minimum period of imprisonment of 17 years. The appeal was heard by Randerson, Clifford and Whata JJ. The main grounds of appeal were that Professor Christian's evidence was inadmissible and unfairly prejudicial, the evidence relating to the previous injuries to the child and the way it was presented was effectively propensity evidence but the Judge failed to give any or adequate directions to the jury about how to deal with this evidence, and there was substantial adverse publicity about child abuse at the time of the trial that might have influenced the jury's verdict.

The court found that Professor Christian's evidence was admissible and not unfairly prejudicial. The court also found that the evidence relating to the previous injuries to the child and the way it was presented was not propensity evidence. Finally, the court found that there was no real risk that the outcome of the trial was affected or any unfairness arising from the adverse publicity about child abuse at the time of the trial. The appeal against conviction is dismissed.

Orders