Solomon v The Queen
[2017] NZCA 164
•8 May 2017 at 2.30pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA434/2016 [2017] NZCA 164 |
| BETWEEN | TROY LOUIS STUART SOLOMON |
| AND | THE QUEEN |
| Hearing: | 5 April 2017 |
Court: | Randerson, Clifford and Whata JJ |
Counsel: | P K Hamlin for Appellant |
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.
____________________________________________________________________
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 the child was raised. The prosecutor suggested to the jury that “one distinct possibility” was that the appellant had assaulted the child in the same manner previously but not with the same level of force.
The grounds of appeal
Mr Hamlin advanced the appellant’s appeal against conviction on three main grounds:
(a)The evidence of Professor Christian was inadmissible and unfairly prejudicial.
(b)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.
(c)There was substantial adverse publicity about child abuse at the time of the trial that might have influenced the jury’s verdict.
The evidence in more detail
At the time in question the appellant and his partner Ms R were living together along with three children. Apart from Aaliyah, there was a 22-month old daughter and Ms R’s five-year-old son from a previous relationship. Ms R had taken the two-year-old daughter to the supermarket that morning leaving Aaliyah and the five-year-old boy in the appellant’s care at their home. Before Ms R had returned from the supermarket, the emergency services received three 111 calls in quick succession from the appellant. He said Aaliyah had fallen in the bath, she was not breathing and had gone purple. At one point he also said he was not sure if Aaliyah was breathing but there was water coming out of her nose. He was directed by call centre staff to perform CPR on the child.
Ambulance officers were despatched and arrived promptly at the scene. They found the child had no heartbeat, no pulse and was not breathing. Efforts to revive her by CPR were ineffective. The appellant’s initial account to a police officer was that he was bathing the child in the baby bath on the dining room table. He said he was distracted by the five-year-old child who had called for assistance from his bedroom. He went to attend to the five-year-old leaving Aaliyah in the bath. He was not gone for long but, when he returned, Aaliyah was underwater. The appellant told the police he picked her up, laid her down and started CPR. Within a couple of minutes he had called 111 for an ambulance. He said Aaliyah was burping and bringing up water and milk.
By the next day the police had learned from a pathologist that the baby had not drowned but had sustained severe head injuries. When this was put to the appellant, he maintained the account he had given the day before. He sustained this account for some hours during a DVD interview. He was then charged with murder. After he was charged the appellant had a discussion with a more senior police officer. As a result, he asked to be re-interviewed. The appellant then admitted he had lied about how the child had been injured. He admitted she had not drowned and, for the first time, said he had grabbed her from the water but she had slipped from his grasp and fallen. Her head had been submerged when he found her. His account was confused about the precise details of the fall including whether the child landed first on her foot or leg or on her head. He also disclosed that he had been high on marijuana at the time. The mother of the child gave evidence that the appellant had told her he had pulled the child out of the bath, dropped her and caught her by the leg.
The expert evidence
Dr Garavan is the pathologist who conducted the post-mortem. His undisputed evidence was that the child had died through blunt force trauma to the head resulting in both subdural and subarachnoid haemorrhages. This gave rise to an abnormally large quantity of blood, estimated at 50 to 100 ml, which was expelled at pressure when the autopsy was performed. Dr Garavan’s opinion was that extreme force would have been required to have caused bleeding deeper down towards the brain in the subarachnoid space. In addition, there was a spiral fracture of the child’s left femur, and bruising to the torso[2] and left upper arm. There was a fresh bruise to the right frontal bone (the impact site for her acute head injuries).[3]
[2]Dr Garavan accepted that some of the bruising to the torso could have been explained by the administration of CPR to the child but this did not account for bruising to the sides of the lower abdomen.
[3]Dr Garavan also considered the child had sustained a fracture to the skull. There was a difference in view amongst the expert witnesses on this point and the Crown did not rely on the possibility of a skull fracture.
Dr Garavan explained that there were multiple older injuries:
(a)A lesion or calcification on the right frontal lobe (immediately below the acute scalp bruise which was the site of the acute head injuries and bleeding).
(b)Older, chronic subdural and subarachnoid haemorrhages.
(c)A healed fracture of the left tibia.
It was not possible to put any precise date upon when the older injuries might have been sustained, but they were not capable of being explained by natural causes. Significantly, Dr Garavan expressed the view that there was a connection between the child’s earlier broken leg and the fatal head injury, with an overlying lesion suggestive of repeated injuries. The bleeding resulting from the acute injuries had been so severe that the child had died within a very short period.
Dr Garavan also explained that the spiral fracture to the child’s left femur was most unusual in a non-ambulatory child. An injury of that type would require a significant amount of force. Such an injury would require compression pressure as well as a twisting motion along the axis of the fracture. Effectively, this would involve pulling the top end and bottom end of the femur in different directions. Dr Garavan considered it was reasonable to suggest that the fractured femur and the head injury were connected through the same mechanism. It was possible that the injuries could have been sustained by taking the child by the left limb and swinging her in such a way as to cause her head to strike a hard surface.
For reasons he gave in detail, Dr Garavan did not think it was feasible that the child could sustain both a spiral fracture to the femur and serious head injuries by an accidental drop such as that described by the appellant. He was also able to rule out drowning or partial drowning as a cause of the child’s death. In particular, there were no signs of water in the child’s lungs or airways. The appellant did not dispute the finding that the child’s death was not caused by drowning.
In cross-examination, Dr Garavan confirmed his opinion based on his personal experience and research that it was not possible for the child to have sustained both a spiral fracture to the femur and the head injuries from a fall in the manner described by the appellant. The most Dr Garavan was prepared to concede was that in very specific circumstances the injuries sustained were theoretically possible.
Professor Smith identified a further injury sustained by the child, namely a focal brainstem axonal injury. In his view, this injury was sustained in the incident on the day the child died. In Professor Smith’s experience, this type of injury arose only in cases of child abuse involving the shaking of a child’s head.
The other expert medical witnesses called by the Crown supported Dr Garavan’s view about the likelihood of a child accidentally suffering the acute injuries she sustained. Professor Smith confirmed that fatal low level falls were exceptionally rare; Dr Metcalfe, a paediatric radiologist, considered it was “unreasonably possible” for a baby’s fall to result in a spiral fracture. Dr Christian agreed it was “exceedingly rare” for a short fall to cause death.
Significantly, the defence experts agreed the acute injuries were unusual. Dr Donald said a child could sustain head injuries if it fell directly onto the head but he had never seen a spiral fracture in a child of Aaliyah’s age from a fall. Dr Donald also agreed that the lesion to the child’s right frontal bone was unusual. He considered it was an important feature of the case that there had been a previous injury in that area as well as a recent injury in the same location which he understood to be the point of impact for the fatal injury.
The thrust of Dr Donald’s evidence was that the child was fatally injured from a fall from a height of around 1.6 metres. She had a predisposition to intracranial bleeding due to bridging vein rupture from a widened extra-axial space. He reiterated in cross‑examination that a fatal outcome from a fall at 1.6 metres would be “very, very rare”. He also agreed with the proposition put to him that, although Mr Solomon’s description of what had occurred was vague, the “pretty clear theme or pattern of his description was that the baby landed feet first and then off to the side … and hit her head in that way”. He also acknowledged that he did not have enough information to be able to say that landing on her feet was a sufficient explanation for the spiral fracture.
Explaining this in more detail Dr Donald said:
A.I don’t think there’s enough information but I can see how it could occur. I would have liked more definitive description, like I mentioned, I think I mentioned yesterday, I would have liked to have known that leg was flexed at the knee and she landed on her, the lower part of her leg and her body weight caused the rotation of the femur. I mean I presume that’s what happened if the fall was what caused the injury but there was not, there was trouble with this descriptions. They were so minimal. It’s very hard to make a lot out of them other than the claim that she fell from the shoulder onto her foot and onto her head. There was nothing in that was of any really useful detail as far as I was concerned.
While Dr Donald accepted Dr Garavan’s evidence that the child’s right frontal bone area had been the site of previous blunt force trauma, he put it to one side in his analysis because there was no evidence that the previous injury had been caused by the same person.
The second expert witness called by the appellant was Dr Cary, a forensic pathologist. He agreed with Dr Garavan that the cause of death of the child was brain injury from blunt force trauma to the child’s right frontal bone. He also agreed that this was the same site as a previous injury which was healing at the time the child suffered the fatal injury. He variously described the acute injuries sustained by the child as unusual, rare or extremely rare. He could not, however, exclude the possibility that the brain injury and the spiral fracture to the child’s femur were caused by a fall from 1.6 metres and her leg being grabbed as she fell. He agreed however that this was “to say the least a rare possibility”.
The expert witnesses were also agreed that the older injuries were unusual for a child of this age. Dr Garavan’s evidence was that something had been hitting, rubbing or banging the right frontal lobe area. Some external force had been repeatedly applied. He said that to suggest that this had occurred only twice was an “extremely conservative estimate”. Professor Smith identified an older subdural haemorrhage, relating to at least one episode some days or more before the acute injuries and stated he had never seen this “florid reactive change” in any non-abusive head trauma case. Dr Metcalfe stated that “this child is unexplainably dead with unexplainably very bad head injury with old and healing fractures”.
The defence experts agreed that the older injuries were concerning and unusual. Dr Donald agreed that infants very rarely get bruises before they start walking, and Dr Cary confirmed that the earlier leg fracture was unlikely to have an accidental origin. He also accepted that, generally, where there is more than one type of injury of more than one age, this was suggestive of inflicted injury. As earlier noted however, he put this to one side in the absence of any evidence that the same person was responsible for inflicting the injury.
Dr Christian’s evidence
Dr Christian is a paediatrician from the United States with particular experience in child protection at the Children’s Hospital of Philadelphia, which is said to be one of the largest and best-known children’s hospitals in the United States. In her evidence-in-chief she summarised her overall impression from all the evidence she had seen in these terms:
A.Sure, I think basically my impression is that Aaliyah was a five month old baby who developmentally was normal for age but at five months was not in any way ambulatory, she wasn’t moving on her own. She is a young infant who has multiple injuries, both old injuries and new injuries and injuries that are not explained in totality by the reports of trauma that her caregiver was giving on multiple interviews and that this represents child abuse and it represents inflicted and injury that she sustained on more than one occasion. That’s basically my summary.
Q.Just to check I’ve got that right, professor, did you indicate in the course of that answer that you have formed a view that some, if not all of these injuries, are the result of inflicted injury?
A.Absolutely, that is my opinion.
Dr Christian was asked about how often a short fall resulted in a fatal outcome in a child. Based on her experience and on literature she had reviewed her response was:
Let me start by saying it’s exceedingly rare. I think probably the most thorough evaluation of that question comes from a paper published a few years ago by David Chadwick in Santiago where he looked as much data that was available and he looked at population-based data in California over many years and estimated that for children less than five years of age approximately, and again these are estimates, approximately one in two million children who fell would have a fatal outcome from that fall. So that’s really quite rare. It’s not never but it’s exceedingly rare.
Dr Christian went on to address how many children would sustain the fatal injuries that Aaliyah had from a fall. Dr Christian’s response was:
And I don’t know any data that says that an infant who has a short fall, less than five or six feet, has a fatal head trauma in addition to multiple bruises, an acute femur fracture as well as evidence of healing injury to the body. So that I don’t know of any data that supports Aaliyah’s injuries as being the result of a short fall although I recognise that on very rare occasion children can have a fatal outcome from a fall but very rare and the vast majority of children who fall and hit their heads, especially babies, they have mild or no injury as a result of that fall.
In cross-examination, Dr Christian maintained her view. She agreed that a child could have a subdural haemorrhage from a fall but in the majority of cases where a child falls and hits their head, they do not sustain such a haemorrhage. An even smaller percentage of those who sustain a subdural haemorrhage would die. It would be very rare but could happen. Over 30 years of experience, Dr Christian could think of only about two children who she had seen with a short fall who had died.
Addressing inflicted head trauma Dr Christian described Aaliyah as having a “constellation of injuries”. A number of children die from inflicted head trauma. Continuing, Dr Christian said:
I mean that’s a much more common cause of fatality in child and infants with head trauma and, again, that’s what I believe happened to this baby because I have not only subdural haemorrhage, I have subarachnoid haemorrhage, intraventricular haemorrhage, bruising, broken bones, old broken bones, old injury to her head. I mean that’s inflicted trauma and repeated inflicted trauma.
The witness was then asked about how a spiral fracture of the femur may have been caused. She did not think that grabbing the child’s ankle was likely to cause such an injury but accepted a spiral fracture could result from someone grabbing the thighbone or knee and twisting the leg. She believed this was how the spiral fracture had occurred. This exchange then took place dealing with a scenario in which the child fell and the caregiver grabbed the child’s leg in a rescue attempt:
Q.In the context of a fall can we see that being translated in a way in which if the child had fallen to the ground and in a rescue attempt the caregiver grabbed the child in that fashion?
A.Well first I don’t know of any history of that and, second, again I’ve seen a lot of falls, I’ve seen a lot of femur fractures, I’ve seen a lot of head trauma and I’ve never seen a scenario nor read about a scenario where a baby kind of falls, where they died of subdural haemorrhage and they also had a femur fracture from trying to be caught in the course of that fall.
Asked specifically about the older injuries, Dr Christian agreed that Aaliyah had a chronic subdural haemorrhage from an earlier head trauma as well as a healing fracture to the left tibia. She regarded these as unexplained injuries that a young child should not have. She did not know whether there were symptoms that were not recognised or ignored. It was put to her that those injuries could have happened in a variety of circumstances and could have involved siblings, for example. Dr Christian’s response was:
A. I don’t know who broke the baby’s leg but I will say this, that I might accept a single injury from a sibling but I think and I hate to just be a broken record, but a doctor’s job is to look at the totality of the findings to come up with the right diagnosis and in this case the right diagnosis is that the baby has repeated trauma, repeated injury and ultimately fatal injury and that’s how we made a diagnosis of inflicted trauma and abuse of babies so –
First ground of appeal — was Dr Christian’s evidence admissible?
Mr Hamlin submitted that Dr Christian’s evidence was inadmissible and unfairly prejudicial. He submitted there was no evidential foundation to support her view that the previous injuries had been inflicted; her medical diagnosis of abusive head trauma went to the heart of the case and effectively usurped the function of the jury; and, because she was the only paediatrician called by the Crown, the effect of her evidence was to overemphasise the earlier injuries in a prejudicial manner.
We are unable to accept counsel’s submission. First, there was an evidential foundation for the view that the prior injuries were inflicted rather than accidental. We have already referred to this issue and Dr Cary’s acceptance that the injuries were likely to have been deliberate rather than accidental. This is a sufficient basis to distinguish this Court’s decision in Robinson v R relied upon by Mr Hamlin.[4] Second, we are satisfied that by reason of her qualifications and experience in child abuse cases, Dr Christian was qualified to express her views as she did and that this was within the proper scope of her expertise. Third, although her evidence went beyond that of the other expert medical witnesses, she was entitled to express her views on the ultimate issue of whether the fatal injuries were inflicted or accidental. Fourth, the admissibility of expert evidence is governed by s 25 of the Evidence Act 2006. The court may accept expert opinion if it is deemed to be substantially helpful.
[4]Robinson v R [2014] NZCA 249.
As the Privy Council identified in Pora v R, the assessment of substantial helpfulness requires consideration of the probative value, relevance, and reliability of the evidence.[5] Although in terms of s 25(2)(a) of the Evidence Act a statement is not inadmissible simply because it is about the ultimate issue to be determined, the Privy Council in Pora has provided some guidance on the approach of this provision:[6]
The dangers inherent in an expert expressing an opinion as an unalterable truth are obvious. This is particularly so where the opinion is on a matter which is central to the decision to be taken by a jury. There may be cases where it is essential for the expert to give an opinion on such a matter but this is not one of them. It appears to the Board that, in general, an expert should only be called on to express an opinion on the “ultimate issue” where that is necessary in order that his evidence provide substantial help to the trier of fact.
[5]Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [41].
[6]At [27].
Given Dr Christian’s extensive experience in child abuse cases we consider that her views, including those relating to the previous injuries, were likely to be of substantial help to the jury. We do not consider her evidence was likely to have been given undue weight by the jury since it formed only a part of the overall body of the expert witnesses from a variety of specialised disciplines. Mr Hamlin was critical of Dr Christian’s evidence in his closing address. Those criticisms were repeated by the Judge when he summarised the defence case in summing-up.
The Judge gave an extended direction to the jury about the role of expert witnesses. In particular, the Judge said:
[37] In assessing the evidence given by expert witnesses and considering the opinions that they have given, you must, of course, have regard to the qualifications and experience of each of them. But it is important to recognise that this is a trial by jury and not a trial by experts. Despite the fact that experts have come and given their evidence and expressed their opinions on a range of issues, it is still a matter for you to decide what weight or importance you place on their evidence and on their opinions and indeed whether or not you accept their evidence and opinions at all.
[38] Where experts differ, it is for you to decide which view or opinion you prefer and you will have noted that in giving their expert opinions, the experts have had to base their opinions on certain facts that they have assumed to be correct. Whether you yourselves find those facts to be correct is an entirely different issue and if you find the facts to be different than the facts that the experts have given their opinions on, then their opinions are not opinions on the facts relevant to your findings. It is important that you note that possibility.
We are satisfied that the Judge appropriately left it to the jury to decide what weight, if any, to give to the evidence of the experts. And, significantly, he emphasised that the experts have given their opinions based on facts assumed to be correct. He added it was important for the jury to determine the facts on which the experts had based their opinions.
Second ground of appeal — propensity evidence?
Mr Hamlin initially submitted that Dr Christian’s testimony was propensity evidence and that the Judge had failed to direct the jury on how such evidence could be used. In oral argument, Mr Hamlin accepted that Dr Christian’s evidence could not amount to propensity evidence unless she had identified the appellant as the person responsible for the older injuries. She did not do that. Indeed, she stated explicitly that she did not know who caused the previous injuries. Rather, the thrust of her evidence was that, in her opinion, the older injuries were inflicted injuries and not accidental. This opinion was also shared by the appellant’s own expert Dr Cary.[7]
[7]See [23] above.
Given that acceptance, the focus of Mr Hamlin’s argument on this point moved to a submission the prosecutor made to the jury near the end of his closing address with reference to the older injuries. The prosecutor said:
This baby has suffered previous blunt force trauma causing all that bleeding. What are the odds, this is the question the Crown pose for you, what are the odds that what happened on the 7th of August was an accident when you know that during her very short life she has previously been the subject of significant blunt force trauma to her head, what are the odds really? And what are the odds that she had an accident on the 7th of August and also happens to have a healing broken leg? But really the key previous injury in many ways is the one to her forehead and that’s because that previous injury is on exactly the same spot as what appears to be the impact point for the so‑called accident on the 7th of August.
What are the odds, members of the jury, that a previous accident has occurred during her five and a half months or somebody has assaulted her in the past and just happens, just happens to apply force to that exact same spot? Not just the same spot on her body it’s the same spot on her forehead. What it tells you, I suggest, is that one distinct possibility is that Mr Solomon has previously assaulted her in that same manner as on the 7th of August but not with the same level of force otherwise how do you explain that coincidence? Because there’s two possibilities really, isn’t there? Either it is a coincidence or it’s not and there must be a limit to how many and how significant the coincidences can be in any one case.
Mr Hamlin submitted that the prosecutor was effectively relying on coincidence reasoning of the type described by the Supreme Court in Mahomed v R.[8] Although there was no positive assertion that the appellant was responsible for the prior injuries, the prosecutor was submitting to the jury that the existence of the prior injury made it less likely that the appellant’s account of accidental injury on 7 August was true. Put another way, it was more likely that the recent injuries were inflicted by the appellant deliberately and not accidentally. That could be viewed as an invitation to the jury to conclude it was more likely the appellant had acted in a particular way because he had done so previously. In these circumstances, we consider it is arguable that, at this very late stage in the trial, the Crown was invoking ideas of coincidence that might have amounted to propensity reasoning.
[8]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].
However, we accept Mr Perkins’ submission that the conclusions reached by Dr Christian and the prosecutor’s remarks in his closing submission need to be considered in the overall context of the trial. First, it was never part of the Crown case that the appellant must have caused the previous injuries. Rather, evidence of the earlier injuries was introduced to demonstrate the inherent improbability of a baby of Aaliyah’s age having multiple accidents in quick succession. Second, other than Dr Christian, all the expert witnesses called by both Crown and defence focused mainly on the acute injuries occurring on 7 August and did not place any reliance on the older injuries. Third, Mr Hamlin was critical of Dr Christian’s evidence in his closing address and repeatedly warned the jury of the absence of evidence from which it would be reasonable to infer that the appellant had been responsible for the older injuries. The Judge repeated Mr Hamlin’s submission on this point in his summing-up. Fourth, Mr Hamlin accepts that he did not raise any concerns with the Judge about Dr Christian’s evidence in the context of the Judge’s summing-up. Fifth, in the circumstances, we do not consider there was any risk the jury would use the evidence of prior injury for an improper purpose or would engage in impermissible propensity reasoning.
The final point, and perhaps the most powerful one, is that we are unable to discern any basis to conclude that there was any real risk that the outcome of the trial was affected or any unfairness arising from Dr Christian’s evidence.[9] Although the Crown case was circumstantial, it was overwhelming. The key points are these. First, there was a consensus amongst the many expert witnesses called that the chances of a fatality arising from an accidental fall of a young child in a domestic context were extremely rare. Second, there was a substantial body of expert evidence that it was highly unlikely a child could suffer a combination of fatal head injury and a spiral fracture of the femur in the course of an accidental fall. Third, the admitted lies told by the appellant when interviewed as to the cause of the child’s death plainly demonstrated a consciousness of guilt on his part.
[9]Criminal Procedure Act 2011, s 232(4).
Fourth, the jury was entitled to treat the appellant’s account to the police as implausible. Not only did he admit being high on cannabis but the conflicting explanations he gave about the mechanism of the fall were simply unworthy of belief. The appellant did not give evidence at trial. Since the two expert witnesses he called relied on the accounts he gave to the police in order to reach their view that they could not exclude the possibility of an accidental fall, the jury was entitled to discount their evidence for that reason. Finally, the significant force required to inflict the acute injuries to the child formed a proper basis for the jury to conclude that it was likely they had been sustained as the Crown suggested, namely by swinging the child by the leg so her head came into violent contact with a hard surface such as the floor.
Third ground of appeal — was the appellant unfairly prejudiced by media material at the time of trial?
At a very late stage the appellant filed an affidavit relating to media coverage during his trial. This was filed without leave being sought and in breach of the Court of Appeal (Criminal) Rules 2001.[10] Although this is unsatisfactory, the Crown did not oppose the grant of leave which is granted accordingly.
[10]Court of Appeal (Criminal) Rules 2001, r 12B.
Mr Hamlin submitted there was a real risk of a miscarriage of justice arising from publicity prior to and during the appellant’s trial in connection with the sentencing of those responsible for the death of the child Moko. That case concerned the death of a young child after several months of serious abuse. The perpetrators, Ms Shailer and Mr Haerewa, were sentenced on 27 June 2016 after pleading guilty to manslaughter.[11] The affidavit evidence supports the fact that there was extensive media publicity over the period 1 May to 30 June 2016.
[11]Shailer v R [2017] NZCA 38; R v Shailer [2016] NZHC 1414.
Mr Solomon’s trial began on 7 June and ended on 23 June 2016. Ms Shailer and Mr Haerewa were sentenced four days later on 27 June. Media coverage prior to and during the appellant’s trial focused on the Crown’s willingness in the Moko case to accept a plea of guilty to manslaughter rather than proceeding to trial on a charge of murder. A further focus of the media coverage was on the organisation of nationwide protests demanding “justice for Moko”. This was to take place on the day the perpetrators were to be sentenced.
During the appellant’s trial, concerns were raised with the Judge about the possibility of adverse publicity arising from the Moko case. The Crown was also concerned that jurors might have been required to negotiate their way through protestors outside the courthouse where the appellant’s trial was taking place. In the event, this did not occur.
Murder trials and other serious criminal cases often take place in a blaze of publicity. Usually, when it is alleged a trial was unfair through adverse media publicity, the allegedly adverse publicity relates to the appellant who is on trial. An exception was the Weatherston case, in which the appellant raised the then-available defence of provocation in relation to the murder of a young woman student.[12] Prior to the trial, there was a television interview and media articles in which the defence of provocation was featured. Those articles had resulted from another trial in which the jury had found the defendant guilty of manslaughter on account of provocation.
[12]Weatherston v R [2011] NZCA 276.
The Weatherston case is not on all fours with the present case but some principles emerge. First, there can be no doubt of the importance of maintaining the right of accused persons to a trial by a jury free of bias and preconception and whose decision will be based only on facts proved in evidence.[13] In Weatherston, the Court saw the issue as essentially one of fact and judicial evaluation.[14] On the facts, the allegation of unfair trial was rejected. Second, as this Court said in R v Harawira:[15]
… the question is whether the publicity in this case gives rise to a real concern that the accused did not receive a fair trial. This must be judged in relation to New Zealand circumstances and experience, bearing in mind that the trial Judge will direct the jury to put aside emotion and prejudice, to ignore anything they may have previously heard, and to decide the case solely on the evidence presented to them. That warning will vary in emphasis, depending on the circumstances. In this case the Judge gave a very strong warning.
In the present case, there is no evidence that any juror was actually affected by the publicity surrounding the Moko case. The courts have noted that the impact of pre-trial publicity and prejudicial media coverage during a trial, even in high-profile cases, is minimal.[16] As Mr Perkins submitted, if that is true of media coverage of a defendant, it is even more true of media coverage of a third party.
[13]Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 (HC) at 47.
[14]Weatherston v R, above n 12, at [29].
[15]R v Harawira [1989] 2 NZLR 714 (CA) at 72.
[16]Law Commission Juries in Criminal Trials: Part Two (NZLC PP37, 1999) at [287], cited in R v Burns [2002] 1 NZLR 410 (CA) at [11], and Montgomery v HM Advocate [2003] 1 AC 641 (PC) at 673 per Lord Hope.
During his closing address to the jury, Mr Hamlin raised the media issue squarely:
Just aside on prejudice and sympathy in a way because we now have a lot of media attention about domestic violence and children, children in homes and what happens to them, it’s in the paper today and it’s been in the paper for weeks and you’ve got to be alert to that, we all are, but as I will come to say in relation to the medical evidence in the studies, we know it happens. We’ve got to look down at each individual case so, please, members of the jury, put aside what you read in the newspaper and as you have done look at the facts of this individual case because that’s what’s critical here, not what might be happening commonly or what might happen regularly, but what happened here in this very case, that’s the crucial part.
In his summing-up Davison J picked up and repeated Mr Hamlin’s observations on this topic. As well, the Judge gave a firm direction in conventional terms on the subject of prejudice or sympathy:
[31] Importantly, sitting here as Judges, you are required to put aside any prejudice or sympathy that you may have for any party or person in relation to this case. That is not to say that as human beings we have such reactions. But when we act as Judges we must consciously put them to one side. An emotional response to evidence is inappropriate and has no place in the logical and careful assessment which you must bring to bear to your decision making here. Here, when you are acting as Judges you need to be careful, calm, clinical, logical and rational. So I urge you to put aside any quite natural and human sense of sympathy or any other emotion which may have been stirred by your examination of the evidence in this case, as such sympathy, prejudice or emotion has no place in your assessment of the case or your decision as regards your verdict.
We accept that, apart from repeating Mr Hamlin’s urgings on this topic, the Judge did not specifically address the Moko case. However, Mr Hamlin made no complaint at trial about the way in which the Judge dealt with the media issue in his summing-up. We are of the view that if the Judge had specifically addressed the Moko case, this would have been likely to highlight the issue in a way that would have been prejudicial to the appellant. Finally, we reiterate that the courts proceed, in the absence of evidence to the contrary, on the assumption that juries follow judicial directions.[17] There is no evidence in the present case to suggest that the jury in the appellant’s case did not follow the clear directions by the Judge to put aside any prejudicial feelings and to focus on the evidence before them. In brief, there is nothing to suggest that the appellant did not receive a fair trial.
Result
[17] Weatherston v R, above n 12, at [24].
For the reasons given, the appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
5
0