The Queen v Molony
[2008] NZCA 489
•19 November 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA406/2008
[2008] NZCA 489THE QUEEN
v
JULIAN BRADLEY PEEL MOLONY
Hearing:11 November 2008
Court:Glazebrook, Wild and Simon France JJ
Counsel:J M Scott for Appellant
M T Davies for Crown
Judgment:19 November 2008 at 9.30 am
JUDGMENT OF THE COURT
A THE APPEAL IS ALLOWED.
BTHE APPELLANT’S CONVICTION IS QUASHED, AND A VERDICT OF ACQUITTAL IS ENTERED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Molony appeals against his conviction on a charge of assaulting a child under the age of 14 years. The conviction was entered by Judge Field in the Auckland District Court on 20 March, at the end of a trial before the Judge alone. The trial had occupied all of the previous day, running into the morning of the 20th.
[2] In a ruling at the end of the evidence, the Judge found that the Crown had proved beyond reasonable doubt that the appellant had bruised the buttocks of his partner’s two year old son, by smacking him with force in excess of that reasonably required for the purposes of correction. That finding meant that the appellant did not have the protection of s 59 of the Crimes Act 1961 which, at the time, provided:
Every … person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.
[3] The ground of appeal is that the Judge’s finding that the charge was proved was not supported by the evidence, particularly in two respects:
(a)Although the medical witnesses for both prosecution and defence agreed that the bruises to the child’s buttocks were unlikely to have been inflicted through a nappy, there was no evidence that the appellant had removed the nappy before smacking the child.
(b)The evidence did not exclude the reasonable possibility that the bruising had been inflicted to the child by another person within the relevant period.
The evidence before the Judge
The prosecution evidence
[4] The appellant was living with his partner Ms C and her two year old son J.
[5] On 4 January 2007 the appellant and Ms C took J to a Kidzfair at Alexander Park Raceway. They took turns working at an icecream stall for Ms C’s foster father. Whichever of them was not working looked after J, who spent the day playing. At some stage J disappeared. Ms C found him at the lost children’s tent. During the day, Ms C took J around the Kidzfair.
[6] The three of them went home at about 5-5.30 pm. Shortly after arriving home Ms C was called back to the Kidzfair by her foster father to attend to a job there. She left J in the appellant’s care.
[7] While she was at the Kidzfair, Ms C received a telephone call from the appellant saying that J had fallen down the steps. When she arrived home the appellant and J were sitting on the couch. The appellant told her that while he was on the toilet J had managed to open the front door by standing on a chair, and had then got up the steps. When the appellant realised this he called out to J who stopped so quickly that he unbalanced and fell down the stairs. The appellant told her that he then smacked J for going outside and sent him to the naughty chair.
[8] Ms C said she had taken J’s clothes off to check him. He had some scrapes down his face and some red patches under his shoulders and on the top of his legs, “but he seemed mostly, you know, he seemed pretty OK”. Asked to describe the marks on J’s head she replied:
They were like lumps. I think there was one sort of on the front of his head and one on the back …
… [a]nd he had some funny scrapes sort of round his hairline and down his face … down on both sides, they looked like a rash.
[9] Ms C said that J was very tired so she put him to bed and he slept all night. When he woke next morning he seemed fine. He was eating normally, and was playing. When she changed his nappies she “could see some bruising”. When she was asked about this further she said:
I noticed he did seem to have a few bruises on him but they weren’t very dark at that point, but he has fallen off his bike, he has hurt himself, he has always got bruises on him, always. These bruises were possibly larger.
[10] Ms C denied that she had smacked J on 4 January. She was not asked about the 5th.
[11] Under cross-examination, Ms C agreed that she did all J’s nappy changes, and all his day to day care. She agreed that the appellant had a good relationship with J, and was in fact very good with him.
[12] Ms C delivered J to his father, Mr B, somewhere between 4 and 6 pm that afternoon. Ms C and Mr B shared the custody of J.
[13] When she handed J over to Mr B, Ms C told him that J had fallen down the stairs. She also told him she was there at the time and had taken J to the doctor.
[14] Mr B gave evidence that he was not “totally happy” with Ms C’s explanations. On the way home he rang Child Youth and Family (CYFS). Once at home, and having found that J “had bruises all over him”, Mr B rang the Starship Hospital. He ascertained that Ms C had not taken J in to Starship, and took J there himself, arriving somewhere between 7.30 and 8.10 pm. J was examined at the hospital by Dr Vivianne Hobbs, following which Mr B took him home at around 10.30-11 pm.
[15] Dr Hobbs did not give evidence. Her examination notes were in evidence and her notes and diagrams were explained by Dr Janine Nunn, who gave the medical evidence for the Crown. Dr Nunn had examined J at Starship on 8 January, when Mr B had again brought J into the Hospital. Dr Hobbs noted injuries to J’s head, thighs, calves and feet. Her notes of the bruising to J’s backside, as read into the evidence by Dr Nunn, were:
… extensive bruising measuring 14x15 centimetres on the right buttock which extended down the middle of the right thigh, a 12x8 centimetre bruise on the left buttock and two 1x1 centimetre bruises on both the left and the right buttock, separate to the previous bruises …
[16] By the time Dr Nunn examined J on 8 January, only the bruising on J’s buttocks was still visible. Dr Nunn described this bruising thus:
… There was an extensive diffused grey yellow bruise on the right buttock, which extended down to the middle of the right thigh and there was an extensive diffused grey yellow bruise on the left buttock. There were no abrasions or swelling associated with those bruises.
She added that the areas did not appear to be tender.
[17] She expanded on the bruising in these terms:
The bruises to the buttock and thigh however are quite extensive bruises. They were documented on the 5th of January and then seen again three days later, so they’re still persisting over those three days which suggests that there’s a significant amount of I guess force applied, if you can use that term. That its more than just something that comes and just disappears the following day. You’re unable to date bruises, so you can’t say how long they’ve been there, but we know that they were there on the Friday, how long before that, I can’t tell you, but they were still present on the 8th. The bruises that I saw on the buttocks and down the thigh are not consistent with falling down the stairs, which was the only history that we had been given, as a second hand history. Bruises, when you fall down stairs, tend to be over the head, because your head is the bit that usually lands first, and they tend to also – falling down stairs is a series of small falls, not one big fall where you land, it would be unusual to see bruises on multiple surfaces with a fall down the stairs – sorry, like you see over the buttocks, that cover that extensive an area, from a fall down the stairs, it’s more likely to be consistent with blunt force trauma from another cause, other than falling down the stairs, such as being hit by an object or a hand.
[18] Dr Nunn expressed the view that those bruises to the buttocks and thighs were not the type of injury that would have been caused by J falling down the stairs. She stated that the more likely cause was blunt force trauma, such as J being hit by an object or a hand. Given that the bruises still persisted after three days, she considered that a significant amount of force had been applied.
[19] Pressed as to whether the injuries could have been caused when J fell down concrete stairs, Dr Nunn said this:
It makes very little difference to the faller, it really depends on whether they fell directly over the stairs, or fell multiply down multiple stairs, but children falling down stairs, there is a lot of literature around the types of injuries that you see and they are not the type of injury that we see over the buttocks, and I understand at the time that he was said to have fallen he was wearing a nappy, I would expect a nappy to protect that area if he had fallen onto that.
[20] In answer to a question from the Judge, Dr Nunn said that it was impossible to say when the bruises had been caused. All she could say was that they had occurred before J was seen at Starship on the evening of 5 January.
[21] There is the following exchange in Ms Scott’s cross-examination of Dr Nunn.
Q.Nappies would have to be removed to cause bruising on the buttocks wouldn’t they, like that?
A.Nappies tend to afford some protection to that area so you often see children that might be smacked over a nappy could still get a bruise, but you’re more likely to see the bruising over areas that are not covered by a nappy.
Q.So a smack over a nappy wouldn’t cause this sort of buttock bruising?
A.I think the extent of that bruising would be unusual over a nappy yes.
The defence evidence
[22] The appellant gave evidence. This was his description of what happened to J:
I went into the toilet and the next thing I thought I heard was the door slam or close or the sound of the actual latch of the door and I called out and there was no answer or anything, so I jumped and went out the door and here’s [J] standing at the top of the stairs. I yelled out, ‘[J]’ and he turned around and took one look and just sort of bounced down a couple of stairs and I ran up and went to go sort of tell him off and he’d already had a bit of a fright and everything and came back down and I run him to the naughty chair, cos that’s basically what he used to do instantly anyway. I gave him a little tap on the bum and told him he was naughty and that was all. Then I went straight inside, grabbed my cell phone and tried to get hold of [Ms C], as we’d been told previously by social welfare that it didn’t matter how minor anything was, even if he’s just fallen over and had a bump on his knee or anything, to instantly take him into the hospital.
[23] A little later in the appellant’s evidence there are these questions and answers:
Q.What was your involvement with [J]’s clothing and nappy changes and all that sort of daily care?
A.I had nothing to do with any of that. I never changed him, never changed his nappies. Occasionally I might give him something to eat or something like that, but that was about all.
Q.How hard did you smack [J] when you say you gave him a light smack, how hard?
A.It was just a light tap on the bum, on the nappy, as he went past. I mean he was on his weight, standing, when I gave him the little tap, so it wasn’t too hard and he didn’t stumble or anything, so.
[24] Under cross-examination the appellant made it clear that he did not challenge Ms C’s evidence, or that of Dr Nunn.
[25] The cross-examination of the appellant includes the following exchange:
Q.I put it to you Mr Molony that that wasn’t because it was however minor take [J] to hospital, that it was in fact because you had frightened yourself, you had freaked yourself out with what you had done to [J]?
A.No.
Q.That rather than it being however minor, that you needed to call [Ms C] to get her home because of what had occurred in her absence?
A.No it’s not.
[26] The Judge then asked the appellant some questions about J being taken to Starship. The appellant explained that he understood that J was to be taken there, even for a stubbed toe. He agreed with the Judge that Starship could not have been very pleased about that situation.
[27] Dr James Ferris gave evidence for the defence. He is a pathologist, with a particular interest in infant pathology. His evidence was based on Starship’s medical records and photographs taken by Starship of J’s injuries. Dr Ferris expressed himself as reasonably confident that the bruises to J’s buttocks were typical of smacking. His evidence includes the following:
Q.Are you able to comment Dr Ferris on whether or not the bruising would have to be inflicted by a moderate or a severe application of force?
A.Again within this context I think it’s probably moderate force. This is not a severe beating. On the other hand it has to involve probably a moderate impact to cause bruising in the area of the buttocks.
Q.What about if the infliction of force had occurred over the top of a nappy, would you expect to see this sort of bruising?
A.No, it’s highly unlikely that this type of injury would be caused over either a cloth or a paper nappy.
Q.No it has to be skin on skin, is that what you’re saying?
A.Yes it really needs to be exposed skin to get this type of injury. The cushioning effect of cloth nappies which probably are a bit thinner than a paper nappy would be sufficient normally to prevent any deep bruising.
[28] In cross-examination Dr Ferris was asked about the force necessary to cause the bruising. His answer included this:
… I think if these injuries are as a result of smacking, they would’ve caused certainly discomfort. Whether after the bruise had been sustained, there would’ve been any tenderness, if there would’ve been, it would’ve disappeared quite quickly. So I think these are moderate injuries with a moderate amount of force, but its impossible to say for example, that a mild slap could not cause bruising, cos times it can.
[29] Like Dr Nunn, Dr Ferris said it was impossible to date the injuries that had caused the bruising. He stated:
… The fact that they were observed on the Friday and were seen on the Monday and described as showing some yellowing would suggest to me that they were probably three to four days old, but I can’t be accurate about it.
The Judge’s decision
[30] The Judge accepted the evidence of Mr Molony senior, called by the defence, that he had seen Ms C hit J about the head on the Molony’s yacht about a month after the ‘stairs’ incident on 4 January 2007. The Judge disbelieved Ms C’s denial. But the Judge accepted Ms C’s evidence that she saw no bruising on J prior to the ‘stairs’ incident. The Judge said:
[6] … It is not suggested that either she or Mr B caused the injuries observed by Dr Nunn and it falls now to the Court to determine just how and when this child received the bruising to the buttocks identified by the medical practitioners and shown in the photographic exhibits.
[31] Although the Judge expressed caution about assessing injuries from photographs, he said he was satisfied that photograph 18 showed bruising on the upper part of J’s right buttock and a smaller area of bruising on the left upper part of his buttock. He added:
[8] … Certainly he did present with other minor bumps and injuries which are not seen as significant in the context of this case and which are relatively common to all toddlers. It is the injuries to the buttocks which concern the Court on this occasion.
[32] The Judge then made a finding that those injuries occurred on 4 January. He did that because he accepted Ms C’s evidence that there was nothing observable prior to that date and because that was within the time range given by Drs Nunn and Ferris, although the Judge added:
[9] … although it is not possible to identify with extreme accuracy the time at which trauma may have occurred resulting in the bruising. …
The Judge said he was satisfied that the bruising did not occur after J was admitted to hospital.
[33] No consideration, and therefore no reason, was given by the Judge as to why those injuries might not have been inflicted on 5 January, before Ms C handed custody of J to Mr B some time after 4 pm.
[34] Next, the Judge recounted the appellant’s evidence about J’s fall down the stairs. Although the Judge did not expressly say so, it seems that he accepted the detail of this account because he stated:
[11] It is clear on his own evidence that Mr Molony did apply force to the person of the child. The issue here is the circumstances and the degree of force used, given that I am satisfied that the injuries arose from the incident on that day.
[35] Finally, the Judge made a finding that the force used by the appellant was in excess of that acknowledged by the appellant or reasonably required for the purposes of correction. He concluded:
[14] I am satisfied that the force used was in excess of that reasonably required for the purposes of correction. I am satisfied that it arose from the intentional application of force and I find that the charge has been proven beyond reasonable doubt.
Exclusion of reasonable doubts or possibilities
The legal test
[36] The test where a verdict or finding is challenged on the basis that it is unreasonable is well established. The latest and most authoritative statement is that of the Supreme Court in R v Owen [2008] 2 NZLR 37 at 44 ‑ 45:
[17] … The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.
[37] Before finding the charge proved, the Judge needed to exclude reasonable doubts or possibilities inconsistent with finding the appellant guilty.
[38] In three respects, we consider the Judge did not do that.
Possibility that Ms C had inflicted the injuries
[39] This possibility involves two interrelated aspects: Ms C’s credibility, and her opportunity to inflict the injuries. As to the first, the Judge rejected Ms C’s denial that she had hit J about the head on the yacht. He also found she lied to Mr B when she told him that she was there when J fell down the stairs, and had subsequently taken him to the doctor. In short, the Judge found Ms C untruthful, including about hitting J. J was in Ms C’s care for a good part of 4 January, and it was she who retrieved him from the lost children’s tent. That might have been an occasion to smack him for wandering off.
[40] Despite that background, the Judge gave no reasons why he believed Ms C’s evidence that the bruising to J’s buttocks was not there before the ‘stairs’ incident. The Judge also did not consider the possibility that the injuries were inflicted on 5 January, before Ms C handed custody to Mr B after 4 pm. J was in Ms C’s care that day. We also note that Ms C may well have had a motive to lie (as explained at [47] below).
[41] Thus, we do not accept that the Judge could exclude the reasonable possibility that the injuries had been inflicted by Ms C (or some other person) before the ‘stairs’ incident, and he did not exclude the possibility that she may have inflicted the injuries the following day, 5 January. Given the medical evidence, the bruises could have been inflicted on either 4 or 5 January, although on the second of those days it would have to have been sufficiently early in the day to allow the bruises to have developed so that they were visible to Dr Hobbs upon examination at Starship late that evening.
[42] Exacerbating this is the passage we have set out in [30], which is simply wrong. The defence case was that Ms C could have inflicted the injuries on J. There was no other point in the defence calling Mr Molony senior. Because the Judge misunderstood the defence he cannot have considered it properly.
[43] We should stress that we are not suggesting that Ms C did cause the bruises to J’s buttocks. We are merely noting that the Crown had not excluded the reasonable possibility that she (or that someone other than the appellant) had done so.
Smacking through J’s nappy
[44] The appellant’s evidence that he had smacked J on his nappy was not challenged. The Judge made no finding about that, although – as we have said – he appears to have accepted the appellant’s account of the incident, which included the appellant stating that he had smacked J “on the nappy” (the question and answer are set out in [23]).
[45] Both medical witnesses expressed the view that the bruising was unlikely to have been caused by smacking through a nappy. Thus, evidence from the appellant that the Judge appears to have accepted was inconsistent with the Judge’s finding that the appellant had inflicted the injuries that caused the bruising.
Appellant’s evidence about how hard he smacked J
[46] The Judge excluded the s 59 Crimes Act defence because he found the appellant was untruthful as to the degree of force he used. Yet the Judge believed the remainder of the appellant’s evidence. As outlined in [25], the appellant denied that he had telephoned Ms C because he had “freaked .. out with what (he) had done to J”. This was a significant point, because it was being put to the appellant that he had realised he had hit J too hard, and telephoned Ms C in something of a panic. The appellant’s evidence was that he and Ms C had been instructed by CYFS to take J to Starship, or to a doctor for every injury he received.
[47] That was consistent with the evidence of both Ms C (who untruthfully told Mr B she had taken J to the doctor) and Mr B (who immediately did take J to Starship). We should explain that all this was occurring because Ms C and Mr B had an ongoing dispute over custody of J. It seems that Mr B was continually trying to fault Ms C’s care of J, by gathering evidence about bruises and other injuries J sustained while in Ms C’s care.
[48] Given this background, which provides a credible explanation for the appellant telephoning Ms C immediately after J had fallen down the stairs, we do not understand why the Judge believed all the appellant’s evidence except that on the critical point.
Result
[49] We consider the evidence the Judge heard did not permit him to exclude the reasonable doubts and possibilities we have outlined.
[50] The result is that the Judge’s finding that the charge was proved beyond reasonable doubt is unreasonable, and cannot stand.
[51] We allow the appeal and quash the appellant’s conviction. In the circumstances a retrial is not appropriate and we therefore direct that a verdict of acquittal be entered.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington
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