The Queen v Curtis - [2009] NZCA 521

IN THE COURT OF APPEAL OF NEW ZEALAND
CA96/2009
[2009] NZCA 521
THE 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…

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 The Queen v Curtis

Details

AGLC: The Queen v Curtis [2009] NZCA 521
Case: [2009] NZCA 521
Decision Date: 5 November 2009

CaseChat Overview and Summary

Wiremu Curtis appeals against his conviction for the murder of Nia Glassie, a three-year-old girl, as well as for various counts of child abuse and assault. The appeal focuses on three grounds: the trial judge's instruction to the jury on the mens rea required for murder under section 167(b) of the Crimes Act 1961; the failure to consider Curtis's personal circumstances, such as his age, background, and intellectual capacity; and the misdirection on how the jury should apply the evidence in assessing his state of mind. Curtis argues that his low intellectual function and slow educational development should have led the jury to find that the probability of him appreciating that his actions would likely cause death was diminished. The Court of Appeal considered these submissions in detail, examining the evidence and the trial judge's directions to the jury. The Court found that the trial judge adequately directed the jury on the necessary mens rea, and that Curtis's personal circumstances, while noted, did not alter the jury's requirement to assess his state of mind based on the evidence presented. The Court of Appeal dismissed the appeal, confirming Curtis's conviction for murder and other related offences.

Final orders: The appeal is dismissed.

Orders