The Queen v Yvonne McFarlane - [2001] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 29/01

THE QUEEN

YVONNE MCFARLANE

Hearing:	15 May 2001
Coram:	Blanchard J Doogue J Randerson J
Appearances:	J F Mather for appellant J C Pike for the Crown
Judgment:	17 May 2001

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

This is an appeal against conviction and sentence. The appellant along with her husband was found guilty by a jury in the District Court on a single count that between 1 January 1997 and 23 July 1999 they wilfully mistreated a child under the age of 16 years in their custody or control in a manner likely to cause the child actual bodily harm. The child was a daughter of the husband and a step-daughter of the appellant. She was born on 4 December 1989. The sentence imposed by the trial Judge was nine months imprisonment.

Facts

The evidence for the Crown was that in the period in question the appellant and her husband regularly assaulted the child in a variety of ways using their open hands, fists, a plastic spoon and, in the case of the husband, a leather belt. In addition, there was evidence that on a number of occasions the appellant encouraged and incited her husband to inflict violence on the child and on occasions stood by and watched while that was being done. The Judge noted on sentencing that the appellant had on a number of occasions urged her husband to “sort out” the children, including the complainant, and knew that this would result in the application of physical discipline.
The complainant gave evidence that her father and step-mother “hit me till they had had enough”. A 13 year old described seeing the father smacking the complainant with what he described as a wooden spoon about eight times until it broke, after which he then took off his belt and continued to beat the complainant. The bruises that were suffered extensively over the body of the complainant were seen by a number of people, including her teacher. A specialist paediatrician who examined her said that she would not allow him to examine either her chest or buttocks or her groin area. He told the jury that the complainant was the most frightened child he had ever examined.
The appellant denied every allegation levelled against her, except admitting that she had asked her husband to “sort things out” with the children. She suggested to the jury that the bruising to the complainant was caused by various childhood accidents, an explanation which the Judge at sentencing found quite fanciful.
The Crown case against the appellant was thus that she had herself wilfully mistreated the child in a manner likely to cause her actual bodily harm and was a party to her husband’s similar actions in aiding and abetting him both actively and in deliberately failing to stop his ill-treatment of the child.
Prior to the trial the appellant sought severance of trials and objected to the evidence…

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 Yvonne McFarlane

Details

AGLC: The Queen v Yvonne McFarlane [2001] NZCA 155
Case: [2001] NZCA 155
Decision Date: 17 May 2001

CaseChat Overview and Summary

The case of The Queen v Yvonne McFarlane involved an appeal against the conviction and sentence of Yvonne McFarlane. The appellant was found guilty of wilfully mistreating a child under the age of 16 years in a manner likely to cause actual bodily harm. The child was the daughter of the appellant’s husband and was subjected to regular assaults by both the appellant and her husband. The trial judge imposed a sentence of nine months imprisonment.

The legal issues in this case included the validity of the indictment, the adequacy of the trial judge's directions to the jury, and whether the appellant's right to a fair trial was compromised by certain actions of the trial judge. The first point of appeal concerned the indictment, arguing that discrete offences should be charged separately. However, the court found that the numerous incidents of assault amounted to a course of conduct appropriate for a single charge. The second point of appeal argued that the appellant should have been charged separately for being both a principal and secondary party. The court held that there was no requirement to charge the appellant in three distinct ways. The third point of appeal related to the trial judge’s direction on the elements of the offence as they applied to a secondary party. The court found that the summing up was adequate, and the jury could not have convicted the appellant without being sure of her deliberate involvement or encouragement of the ill-treatment.

The appeal against conviction was dismissed, and the appeal against sentence, which was not pursued, was also dismissed. The court found no miscarriage of justice and upheld the conviction and sentence imposed by the trial judge.

Orders