The Queen v Curtis
[2009] NZCA 521
•5 November 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA96/2009
[2009] NZCA 521THE QUEEN
v
WIREMU CURTIS
Hearing:27 October 2009
Court:Hammond, Robertson and Ellen France JJ
Counsel:C R Horsley and F C Fenton for Appellant
C L Mander for Crown
Judgment:5 November 2009 at 10 am
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1] Wiremu Curtis and four others were convicted of various offences following the death of a Rotorua toddler, Nia Glassie, at a trial before Potter J and a jury. All were sentenced by Potter J early this year: HC ROT CRI 2007-063-4149 4 February 2009.
[2] This appellant was found guilty of Nia’s murder, of three counts of wilful ill-treatment of a child under sixteen years, and two counts of assault. He had also pleaded guilty to two other charges of assault. He was sentenced to life imprisonment with a minimum period of imprisonment of seventeen and a half years.
[3] Mr Curtis appeals against his murder conviction only.
[4] At the same time, we heard an appeal from Nia’s mother, Lisa Kuka, against her conviction on two counts of manslaughter, and against her sentence. We will deliver judgment on that appeal separately in due course.
Background
[5] Nia Glassie died on 3 August 2007 as a result of severe brain damage caused by swelling of the brain in response to a subdural haematoma or blood clot. Medical evidence was that the trauma was likely to have been caused by a blow or blows to Nia’s head.
[6] The five accused were jointly tried on a variety of charges relating to acts and omissions over a period of two months between 21 May 2007 and 22 July 2007. Nia and her two older sisters were living with their mother (Lisa Kuka) at an address in Rotorua. Also living there were Ms Kuka’s partner (the present appellant), his elder brother (Michael Curtis), his partner (Oriwa Kemp), and their daughter (Tahlia Curtis). Michael Pearson, who was involved in the alleged offending, did not live at the address but spent a lot of time there.
[7] Ms Kuka was the only one of the adults working, usually six days per week. She would leave the house early each morning and return late at night, travelling to Te Puke where she worked.
[8] During the two months prior to her death, Nia was subjected to persistent and violent abuse by various people in the house. There was no evidence of any actual violence on the part of Ms Kuka.
[9] In sentencing, Potter J listed several incidents of violence against Nia:
(a)Wiremu Curtis, his brother Michael, and Mr Pearson performed “wrestling moves” on her;
(b)she was shoved, naked, into a sandpit and into a broken couch;
(c)she had balls and other objects thrown at her;
(d)she was punched and kicked;
(e)she was given (a) cold bath/s;
(f)she was hit by Tahlia Curtis at the direction of Oriwa Kemp;
(g)she was put in a hole in a fence outside where there was accumulated rubbish; and
(h)she was forced to wear soiled clothing.
[10] There were, in addition, two acts of violence that formed counts of their own:
(a)the “clothesline incident”, which involved the appellant and Michael Curtis, and Oriwa Kemp: Nia was placed on the wires of the clothesline by Michael Curtis, who then spun the clothesline around fast until she fell to the ground crying and screaming. This was repeated, and only stopped when a neighbour stepped in.
(b)the “dryer incident”, which involved the appellant and Michael Curtis, and Michael Pearson: Nia was pushed into the clothes dryer, crying and screaming. The dryer was turned on so that it revolved until Nia kicked open the door. Nia’s two sisters witnessed this incident.
[11] Nia’s sisters, Jessie and Esther, were also subject to abuse. They were hit and kicked, and had wrestling moves performed on them. The appellant was charged with representative counts of assault against both Jessie and Esther. He was convicted and sentenced on those charges.
[12] The fatal incident of abuse against Nia occurred on 20 July 2007. Potter J recorded (in her sentencing notes):
[18] I find that during the week prior to 20 July 2007 the violence and abuse towards Nia escalated rather than commenced. The incidents of abuse described in evidence might have been regarded by the perpetrators as being for their amusement, such as the drier incident and the clothesline incident which apparently started as a game, but it was certainly not a game as far as Nia was concerned, as witnessed by Mr Simiona [a neighbour witness] from the rear of the property. Nia suffered from this regular abuse and it is little wonder that her anguished cries resulted. But as one of her sisters described, she learned to contain her crying, because if she had failed to do so she would be further punished for crying.
[19] On Friday 20 July 2007, the household was preparing for Michael Curtis’s 21st birthday to be celebrated the following day. Numerous people came to the house to bring food and to provide assistance. They all left by 7 p.m. From that time the only people present were Michael Curtis, Wiremu Curtis and Jessie, Esther and Nia. Lisa Kuka came home earlier from work than she usually did. She had to return her brother’s car to his address out towards the Rotorua Airport. She called in at 13D Frank Street to enlist the help of Oriwa Kemp to follow her in the truck and to drive her back after she left the car at her brother’s. She took Jessie with her but declined Nia’s request to also come. She left Nia behind with Esther to look after her. She was not gone very long, but during her absence Esther saw her little sister Nia suffer the kicks in the head which would result in her death. She described the kicks delivered by Michael Curtis and Wiremu Curtis as being “as hard as a rock”. They were such that Nia lost consciousness which she never fully regained.
The appeal
[13] Wiremu Curtis appeals against his conviction on three associated grounds, which he says led to a miscarriage of justice. Specifically he submits that the trial Judge:
(a)failed to properly and adequately instruct the jury on the particular mens rea required under s 167(b) of the Crimes Act 1961 (“the Act”);
(b)failed, in respect of her direction on the mens rea required under s 167(b) of the Act, to instruct the jury to take account of his personal circumstances such as his age, his background, and his low level of intelligence; and
(c)misdirected the jury on how it ought to apply the evidence when assessing his state of mind.
[14] As Mr Horsley accepted in the course of his oral argument, there was really only one point arising from the elements of s 167(b) of the Act which provides:
167 Murder defined
Culpable homicide is murder in each of the following cases:
...
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
[15] On appeal, Mr Horsley focused on evidence of Wiremu Curtis’s low intellectual function and slow educational development to support his submission that this appellant was less likely than the ordinary person to have appreciated that the kicks he and his brother delivered to Nia’s head would likely cause her death. In reliance on the Victorian Supreme Court’s decision in the case of R v Ty [2006] VSCA 113, he submitted that the trial Judge failed adequately to tailor her directions to meet the appellant’s personal circumstances.
Wiremu Curtis’s level of intelligence
[16] At the time of the offending, the appellant was 17 years old, and his brother Michael was 20 years old (and turned 21 over the weekend of Nia’s fatal injury). Lisa Kuka was 34 years old.
[17] Tania Te Para-Heta, the mother of Wiremu and Michael Curtis, gave evidence at trial. While being cross-examined by Michael’s counsel, the following interchange occurred:
Q I mean no disrespect, but, your son Wiremu, is a simple boy?
A What do you mean “simple”?
Q Well you describe him? Is he – did he finish his education?
A No he didn’t.
Q Do you know how far his education went?
A Not far.
Q To your knowledge, does Michael look out for him?
A He does, yes.
[18] And later:
QWhen I asked if Wiremu was a “simple boy”, I simply mean that he’s not well educated?
ANo, he’s not.
QAnd that his brother to a greater or a lesser extent, looks after him from time to time?
AHe does, yes.
[19] Later, Mr Horsley, on behalf of the appellant, asked further questions:
Q Mr Temm asked you some questions about Wiremu’s schooling?
A Yes.
QAnd would you agree Ms Te Para-Heta that at a relatively early age you as a mum had concerns about his learning?
AI did, yes.
QAnd you were of the impression – you’ve had two children that are older – you were of the impression that his learning was slow in developing compared to the others?
AYes it was.
QWas that something that you were aware of concerned about before he started school or after he started school?
ABefore he started school.
QAnd when he was in his junior years, first years at school, was he seen by any people to look into his learning difficulties?
AHe did, yes.
QAnd this happened on a number of occasions throughout his schooling?
AYes.
QThese specialists were educational psychologists?
AThey were, yes.
QPediatricians?
AYes.
QAnd am I right in saying that the conclusion was he was developmentally slow?
AHe was, yes.
QI think operating a level some four or five years below his age level?
AHe was, yes.
QAnd that pretty much carried on or that state of affairs pretty much carried through until he left school?
AYes.
QHow old was he when he left school?
AHe was 15, going on 16.
QSo it would be not long after leaving school that he met Lisa Kuka?
AYes.
QWould you, looking Wiremu’s development, would you say that he is a person who is easily led?
AHe is, yes.
QWho would very much try and fit in with what others are doing?
AYes.
QInfluenced by others?
AYes.
QEasily?
AEasily.
QIntimidated by others?
AYes
[20] Mr Horsley submitted that the fact the appellant was operating at an intellectual level below his age “may well have” led the jury to find that the probability that Mr Curtis possessed the requisite mens rea under s 167(b) was diminished. On that basis, he submitted that Potter J ought to have placed emphasis on his level of intelligence in her summing up.
The relevance of Wiremu Curtis’s experience of physical violence against Nia prior to 20 July 2007
[21] Wiremu Curtis’s stance at trial had been to deny that he had delivered one of the fatal kicks to Nia’s head. He sought to minimise the extent of his involvement in the abuse to which Nia was subjected over the two months preceding her death.
[22] For the purposes of the appeal, however, Mr Curtis accepted that, between himself and his brother Michael, a number of very hard kicks were delivered to Nia’s head on 20 July. He also acknowledged that “on most occasions [of abuse towards Nia during the period covered by the charges], if not all, [he] was either present or was the person carrying out these assaults on Nia”. What Mr Horsley sought to argue on appeal was that it was the very fact of Wiremu Curtis’s involvement in the earlier assaults that made him less likely to appreciate that the fatal kicks would in fact be fatal. He submitted that, from all the occasions of physical abuse against Nia, there was no evidence to suggest that any of the assaults caused any “real or significant injuries”.
[23] Against that empirical background, Mr Horsley submitted that Mr Curtis could have come to think that Nia was unlikely to be harmed by his assaults, and would therefore have been unlikely to “know” that the fatal kicks may cause Nia’s death.
[24] In response, Mr Mander for the Crown emphasised that the premises of the appeal were quite at odds with the position at trial which was a mixture of denial of direct involvement in assaults against Nia, and minimisation of the seriousness of the assaults, characterising them as games, some of which (such as the dryer incident) simply turned sour. In light of this, Mr Mander submitted, it was difficult for the appellant to contend now that Potter J did not adequately direct the jury on the possible effect of Wiremu Curtis’s experience of Nia’s response to the earlier assaults upon his state of mind at the time of the fatal kick(s). That had not been a trial issue.
[25] We accept the Crown’s submissions on this matter. There is nothing in this point.
Potter J’s directions to the jury
[26] Potter J directed the jury that intention is always a matter of inference, and that a person’s state of mind must be inferred from other evidence. On this matter generally, the Judge said:
[51] Intention is always a matter of inference. Because you cannot get inside a person’s mind to get direct evidence of what is going on inside, what they are thinking, you have to infer it from other evidence upon which you find you can rely, evidence which you accept. Intention is an essential element of most crimes, as it is in this case. For that reason, juries all over New Zealand many days of the week are determining intention by reference to inferences that they draw from evidence they find proved. In this case it is an essential element of most of the charges upon which you are required to deliver a verdict, e.g. murderous intent is an essential element of the crime of murder in Count 1. Where an accused is charged as a party to an offence, and that relates to several charges in the indictment, the Crown must prove that he or she intentionally helped or encouraged the commission of the offence. You have to decide the question of intention from inferences that you are prepared to draw from the facts you find proved.
[27] In respect of Michael and Wiremu Curtis specifically, Potter J said:
[90] Before you can find either Wiremu or Michael Curtis, the accused named in Count 1, guilty of murder the Crown must prove three essential elements:
(a) That Wiremu Curtis and/or Michael Curtis as the case may be – and you will consider Count 1 in respect of each of them separately – killed Nia Glassie.
...
[92] To prove murder the Crown must prove that they killed with murderous intent. The Crown may establish murderous intent in several ways.
[93] In this case the Crown relies on the alternative that the accused meant to cause bodily injury to Nia which they know was likely to cause Nia’s death – that is that Nia’s death could well happen – and were reckless about whether Nia’s death was a possibility. To be guilty in this way the accused must have had in his mind an actual or conscious appreciation that death was a likely consequence of his acts. It has to be an appreciation at the actual time the kicks were delivered. It is not enough for the Crown to say that the accused should have known or that had he stopped to think about it he would have realised that kicking a small child in the head could lead to her death, that it might well happen.
[94] The question is, does the evidence establish that the accused were reckless whether death ensued or not, that they did not care?
[95] The question can be posed in this way: Is it proved beyond reasonable doubt that the accused actually appreciated that Nia’s death was a likely consequence of the act or acts of kicking her in the head and were just willing to run the risk? That of course involves proof of something a great deal more than an accidental event. There has to be an appreciation of the danger and a decision to carry on regardless of the risk. It is concerned with deliberately taking the risk of killing. If you are not sure on the whole of the relevant evidence that each of those three states of mind existed at the time of the kicks to Nia’s head – meaning to cause bodily injury, knowing that it was likely to cause death and reckless about whether death ensued or not – then the accused has not committed murder and you must acquit him of it. He would then be guilty only of manslaughter assuming that you have found the first two essential elements proved.
[96] It is not necessary that you be unanimous about the precise part played by each of Wiremu Curtis and Michael Curtis provided you are all agreed that each of Wiremu Curtis and Michael Curtis was a principal offender or a party through intentional help and encouragement of the principal offender, in the way that I have described.
[28] The Judge directed the jury to the questionnaire drawn up in respect of the murder accused after consultation with counsel and said:
[97] Now please turn to the jury questionnaire, page 1, Count 1 murder. Page 1 deals with the situation of Wiremu Curtis. Page 1A deals with the situation of Michael Curtis. You must consider each separately. The essential elements of the crime of murder which I have just explained to you, are there set out in question form. Although they are charged jointly, the position of each accused must be considered separately. You need to work through each of pages 1 and 1A separately in order to deal fairly with the charge in relation to the two accused.
[29] Mr Mander submitted this was an adequate direction, highlighting as it did the necessarily distinct assessment of each accused that the jury was required to perform. He emphasised that the Judge gave full directions on the drawing of inferences, and that the element of intent could be established only by inference drawn from surrounding facts and circumstances that the jury found proved. He submitted that Potter J “squarely put” to the jury Wiremu Curtis’s submission that his low level of intelligence had to be factored into his subjective state of mind, but that there was “no requirement” for Potter J to include such a submission as part of her formal jury directions as to the elements of the offence.
[30] Mr Mander pointed to the “paucity” of expert or lay evidence in respect of the respective intelligence levels of Wiremu and Michael Curtis, and submitted that Potter J was not required to put to the jury in her summing up any greater detail or elucidation on the matter of Wiremu Curtis’s intelligence than had either emerged in evidence or was submitted by his defence counsel.
[31] Further, when Potter J came to summarise the defence case in respect of Wiremu Curtis, she said:
[195] Mr Horsley... said that while Wiremu Curtis accepts that his actions (other than kicking Nia’s head which he denies), contributed to Nia’s death, he had no murderous intent. In the absence of proof of murderous intent your verdict should be guilty of manslaughter on Count 1 in respect of Wiremu Curtis.
...
[196] Mr Horsley said it is not enough for the Crown to say that anyone who kicks a three year old in the head must know the consequences. The issue here is what Wiremu Curtis knew. He said you cannot be sure for the following reasons:
·Wiremu Curtis has limited intelligence and understanding
·The medical evidence does not categorically say that kicking a three year old in the head is likely to cause death. He referred to the notes of evidence at page 786 where Dr Kelly gave evidence that Nia would probably have survived if she had been presented at the hospital within the first few hours of her injury. He submitted that while death was possible it was not likely.
[32] The Judge’s direction made plain the need for the jury to consider Wiremu and Michael Curtis separately and the requirement that mens rea be assessed subjectively. When this emphasis is considered in conjunction with the fact that the Judge adverted to the defence position on Wiremu Curtis’s intention at [196] of her summing up, it cannot be said that she was too cursory or unclear in her directions.
[33] What Potter J could properly say about Wiremu Curtis’s state of mind was necessarily limited because she was bound by the testimony. It was not her role to elaborate upon or expand what was a very small amount of evidence as to his low level of intelligence. It was the Judge’s role to put to the jury the defence case and to direct the jury on the subjective mens rea required under s 167(b), both of which she did in her summing up and in the jury questionnaire.
[34] In support of the appeal, Mr Horsley placed particular emphasis on the comments of Warren CJ in the Victorian case of R v Ty, when she said:
In my view, a jury in the circumstances of reckless murder should be directed that they must be satisfied beyond reasonable doubt that:
1 The accused caused the death of the deceased;
2The accused ought and must have foreseen the consequences of the act contemplated; and further that
3In assessing foresight, what a reasonable person might have foreseen is relevant but the accused’s actual state of mind is critically important and they should not treat what they think a reasonable person’s reaction would be in the circumstances as decisive of the accused’s state of mind;
4In assessing the accused’s state of mind the accused’s circumstances are relevant (such as age, background, educational and social circumstances, emotional state and state of sobriety).
[35] This comment was made in consideration of what Barwick CJ had said in Pemble v R (1974) 124 CLR 107 at [25]:
The state of mind of the accused is rarely so exhibited as to enable it to be directly observed. Its reckless quality if that quality relevantly exists must almost invariably be a matter of inference. Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused’s actual state of mind, a firm emphasis on the latter as the fact to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man’s reaction would be in the circumstances as decisive of the accused’s state of mind. They need also to be reminded that the accused’s circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and his state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated.
[36] Mr Horsley contended that there was a failure by the trial Judge in the instant case to sufficiently remind the jury that in assessing Wiremu Curtis’s state of mind his circumstances were relevant and had to be taken into account.
Discussion
[37] It is helpful to note the facts of Ty. The accused was 14 years old. He and some friends were on a tram. The accused criticised the shortness of the dress of a girl on the tram. The deceased remonstrated with the accused who responded with an aggressive remark and struck the deceased twice on the head with the steel tip of his umbrella. There was varying evidence about the way in which the accused had swung the umbrella. The concern expressed by Buchanan J in the lead judgment was at the failure of the trial judge’s directions to differentiate between the mental elements of reckless murder and manslaughter by an unlawful and dangerous act.
[38] Whether, in another case, the additional directions favoured by Warren CJ might be necessary would depend on the facts. But the issue does not arise on the facts of this case which are quite different from those in Ty. The Judge made it clear the issue was what the appellant had in his mind, not what he should have known.
[39] The substance of Mr Horsley’s submission was that Potter J ought to have grafted on to her direction a qualification that the appellant’s circumstances set him apart from the run of people. Aside from the fact there was no evidential foundation for a defence of diminished capacity in the appellant’s case, Potter J made quite clear that the intention the jury was to consider was the appellant’s subjective mental state. This ground of appeal fails.
[40] We are not satisfied that there was any error by the Judge in the manner in which she approached the particular circumstances of this case. The evidence which referred to particular circumstances of Wiremu Curtis was, as Mr Horsley properly accepted, “slim” and, at best tangential. The peripheral nature of this evidence is reflected also in the fact there was no reference to this issue in defence counsel’s opening address. Further, counsel did not raise the issue in the context of discussion with the Judge over the terms of the jury questionnaire. Nor was the matter raised with the Judge at the close of her summing up. We do not accept that after the minimal inquiry undertaken by counsel the Judge needed to emphasis this aspect of the matter in her directions as to the relevant tests as set out above at [26] to [28].
[41] The summing up must be read as a whole. Potter J included this point in her summary of the appellant’s defence and did so without demur or any indication she disagreed with it.
[42] In making an assessment of the particular circumstances of Wiremu Curtis, it is instructive to have regard to the two lengthy video interviews which he had with the police on 23 and 24 July 2007. Although it is now accepted that he was far from truthful in much of what was said, there is no indication of a man labouring under any difficulty because of his learning disabilities. There is nothing which suggests impairment or disadvantage which would interfere with his normal social existence.
[43] That is the position which emerges also from the evidence of his sister, Hoana Maria Lee Curtis who, in answer to questions, said:
Q Do you know if your brother Wiremu can read and write?
A Before he couldn’t, not well, but now he’s getting a bit better.
QWhen you say before, can I ask you if you know when Wiremu finished school?
A No, wouldn’t have a clue.
Q Sorry?
A I wouldn’t have a clue.
Q Did your brother Michael look after Wiremu from time to time?
A Yep.
...
QI think on a previous occasion you’ve described Wiremu as a guy who’s a little bit shy, is that right?
A Shy?
Q Shy.
A Yeah—
Q Like he’s a bit scared.
A Mmm, no not really kind of.
Q You haven’t described him like that before?
A No not really, no.
[44] In the absence of any substantial evidential foundation, the fact that the Judge did not specifically make a comment of the sort contemplated by Warren CJ in the fourth category of Ty is unremarkable. This was not seriously a live or relevant issue in the case.
[45] We are confident that the jury had fully and properly identified for them by the Judge all the essential issues upon which they had to be satisfied beyond reasonable doubt. Wiremu Curtis’s appeal against conviction is unsustainable.
Result
[46] The appeal is accordingly dismissed.
Solicitors:
Adams & Horsley, Tauranga, for Appellant
Crown Law Office, Wellington