The Queen v Manu'ula

[2007] NZCA 82

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/07
[2007] NZCA 82

THE QUEEN

v

ITI MANU'ULA

Hearing:5 March 2007

Court:Chambers, Gendall and Heath JJ

Counsel:J H Wiles and J Scott for Appellant

P K Feltham for Crown

Judgment:20 March 2007     at 3 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction is quashed and there is no order for a retrial.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant was convicted in the Auckland District Court on 21 October 2006 of the crime of injuring with intent to injure, the alleged victim being his daughter aged 15 months at the time of the offence.  He was sentenced to six months imprisonment with leave to apply for home detention.  He appeals against his conviction and sentence.

Background

[2]       The appellant was caring for his youngest child on 19 October 2005 whilst his wife was at work.  Some time late in the morning the child was taken by the appellant to a relative’s home.  The relative noticed that the child appeared to have an injury to her right ear.  The police were notified and the child taken by ambulance to Starship Children’s Hospital.  Diagnosis by a senior consultant paediatrician revealed that the child had bruising over her head and face, comprising bruising behind her right ear and on the ear itself, swelling to the rear scalp and some bruising below the right eye and across the right cheek. 

[3]       The appellant was interviewed on 21 December 2005 at the Auckland Central Police Station, with the aid of a Samoan interpreter, as he was not fluent in English.  His explanation was that around noon on 19 October 2005 he was about to feed the child but left her sitting on a chair beside a table in order to obtain a diaper, heard the child crying and returned to find that she had fallen onto the floor.  He noted that her ear was red and he comforted her as she was crying because of the pain.  He said that the chair had fallen over.  There were some other minor marks on the child which could be explained as the product of normal childhood play.  The appellant denied assaulting the child or in any way being responsible for her bruising.

[4]       At trial the essential evidence was the appellant’s exculpatory statement recorded on videotape, that of Dr Kelly, the consultant paediatrician, called by the Crown, and of Dr Ferris, an expert pathologist, called on behalf of the defence. 

[5]       Dr Kelly’s evidence was that he examined the child on her admission to hospital and concluded that the bruising and other injuries to the face and scalp were not consistent with a fall, whether from a chair or otherwise, but comprised evidence of striking, about the head in the form of a physical assault.  On the other hand, Dr Ferris, who did not examine the child but had access to photographs and the medical records and Dr Kelly’s opinion, gave evidence that the injuries were consistent with a single fall, perhaps associated with more than one impact.  He thought the bruising to the cheek and eye could have been due to “tracking”, that is, where a bruise may track downwards under gravity and appear around the eye cavities.  Dr Ferris expressed an opinion, as a forensic pathologist with experience of deaths arising from child abuse, that without reliable information about the cause of an injury, an allegation of assault had no valid foundation.  He opined that, in a case involving non-specific bruises, he could not exclude, as an explanation for their cause, that the infant had fallen from a chair.  Dr Ferris’ opinion was that the injuries suffered could have been sustained as a result of a complex fall from a chair, the child having other injuries or marks consistent with accidents.

Summing-up

[6]       In his summing-up Judge Gittos said:

…You have two eminent specialists coming from different angles on his business as it were and really if you were to convict the accused you would have to accept wholeheartedly the impressions and the opinion that Dr Kelly offers….He, like Dr Ferris, said it was not impossible that that these injuries could be caused by a fall but he rated it as being unlikely to the point where he said, if it was so, then it was the first and such occasion he would have seen in his 15 years of practice and on that basis he was prepared to say that in his opinion it was clear evidence of physical assault.

[7]       The Judge then went on to describe the contrary view of Dr Ferris, namely that the injury on the front of the face might well have been attributable to “tracking”, and said that Dr Ferris “cannot exclude the prospect of a complex fall as being the reason for these injuries….I suppose the difference really is that both doctors agree that these injuries could be the result of a complex fall”.  The Judge concluded in his summing-up saying:

You have a conflict of medical evidence, a denial on the part of the accused.  I remind you that you must be sure.  If you unreservedly accept and align yourselves with the evidence of Dr Kelly and are prepared to dismiss the other medical opinion, then it is open to you to convict the accused.  If you think that the injuries may have been occasioned in some other way, unlikely as it might be, in some other way, that is, than physical abuse, then it is your duty to return a verdict of not guilty.  To convict the accused you must be sure that the accused had struck her and did so knowing that the force he was using was such as to cause injury, intending that that should be so.

[8]       The real issue on this appeal is whether the contention that the conviction was not supported by the evidence is valid.  Putting that proposition another way, as set out in R v Ramage [1985] 1 NZLR 392 (CA) at 393:

The Crown case against the accused was circumstantial.  In such a case the jury may infer guilt where that is the only rational conclusion on the facts proved:  see the direction in R v Hodge (1838) 2 Lew CC 227.  The common ground advanced by the applicants – that the verdict is unreasonable or cannot be supported having regard to the evidence – is that contained in s 385(1)(a) of the Crimes Act 1961.  A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.  It is not enough that this Court might simply disagree with the verdict of the jury:  see R v Mareo (No 3) [1946] NZLR 660; R v Ross [1948] NZLR 167; R v Kira [1950] NZLR 420; Chamberlain v R (1984) 51 ALR 225.

[9]       This is an unusual case in that the only evidence to support the Crown case was the expert opinion of Dr Kelly.  Dr Kelly’s evidence was given in a fair, balanced and measured way.  No criticism can be directed at his evidence.  But the crucial issue is whether it was sufficient to establish the charge to the necessary standard of proof beyond reasonable doubt.  Obviously, probabilities were not enough. 

[10]     Dr Kelly said he found it difficult to explain the bruising from a single impact.  In his view, there had clearly been a blow to the side of the child’s face, the injuries being “quite typical of what we often see in children who have been slapped or punched in the side of the head”.  But he went on to say:

·     I think that falling off a chair and hitting your ear on the side of your face directly against the floor certainly could provide enough force to cause bruising and swelling to the ear in this distribution.  The thing I have trouble with is accepting that the other bruises under the eye, over the cheek, and on the jaw bone, and on the occiput, all resulted from that single impact.

·     My opinion is built on the concern that the multiple locations of the bruising, to me, are unlikely to have resulted from a single impact, or certainly not from a single impact against a flat surface.

·     [In reference to Doctor Ferris’ conclusions] I think we agree that there’s no conclusive evidence that these bruises weren’t sustained in a single episode, so that these could indeed have been sustained in a single episode.  I can’t say, with regard to Doctor Ferris’ first conclusion, that it’s impossible that [J] got these bruises in a fall from a chair.  I have to say, I think that’s very unlikely….

·     I disagree, however, with Doctor Ferris’ final conclusion that there is no evidence to support the view that this injury resulted from physical abuse.

[11]     In cross-examination Dr Kelly said:

·     I think my evidence is that I think abuse is the most likely explanation, but it’s certainly not the only one.

·     I think the other one would be some kind of very unusual and complex fall…on the scale of a freak accident….so I can’t exclude a complex and very unusual fall.  I just think that’s unlikely than the usual mechanism I see for this kind of injury.

[12]     When questioned by the Court the following exchange took place:

Q.I take it, Doctor, that the combination of injuries that you saw would be explicable in your mind in terms of a series of accidents, were they?

A.That’s conceivable, possibly, yes.  I mean, if the child had had several falls, for example, striking the jaw on one occasion, the cheek on another occasion, and the side of the head on another occasion, yes, you could explain the injuries that way. 

Q.In the context of a history given of one fall only, your evidence is that you think it unlikely, that’s correct?

A.That’s correct.

Discussion

[13]     As we have said it was open to the jury to accept the evidence of one doctor rather than the other.  The difficulty for the Crown is whether Dr Kelly’s evidence took the matter far enough to enable a reasonable jury to convict by rejecting Dr Ferris’ view.  It seems to us that on careful reading the evidence only went so far as to say that assault was likely and the other option, namely accidental injury was “unlikely”.  Whilst Dr Kelly pointed out the reasons why he preferred the view that the bruising was non-accidental, and unlikely to have arisen from an accidental fall from the chair, he nevertheless could not disagree with Dr Ferris’ conclusion that such was possible and although the most likely explanation was deliberate assault, it was certainly not the only one. 

[14]     We are clear that the evidence did not exclude as a reasonable possibility the appellant’s innocent explanation supported by the opinion evidence of Dr Ferris.  Here, there were two experts expressing different opinions, but with Dr Kelly accepting the possibility, although unlikely, accidental injury could not be excluded.  Given that there was no other evidence available to assist the jury, and the opinion of Dr Kelly left open the possibility that the theory of Dr Ferris, although unlikely, was correct it is difficult to accept that the jury ought to have been able to reach a conclusion beyond reasonable doubt that the bruising was deliberately inflicted with the necessary intent. 

[15]      A decision as to whether a verdict was unreasonable or cannot be supported having regard to the evidence is not one which lends itself to any extensive elaboration of reasons: see Ramage at 395. Viewed objectively, the only evidence available to the jury was two expert opinions, neither of which could conclusively exclude the "innocent" theory. We are satisfied that a jury which was acting reasonably and had been properly directed must have entertained at least a reasonable doubt as the guilt of the appellant. Consequently we are driven to the conclusion that the verdict is unsafe.

Result

[16]     The appeal is allowed.

Solicitors:
Crown Law Office, Wellington