The Queen v Yvonne McFarlane
[2001] NZCA 155
•17 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 29/01 |
THE QUEEN
V
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 in chief of the complainant being given by closed circuit television. The appellant’s submissions were not upheld. Prior to the trial the appellant’s counsel says that points were taken in respect of the charges in the indictment. However, the indictment was amended in the course of trial to the form which led to the conviction.
First point of appeal
The first point of appeal is a complaint about the indictment. It is submitted that where the offending against a single complainant can be analysed into discrete offences identifiable by time or place the offences do not amount to a single transaction and should each be charged separately. However, the complainant was a young child. The appellant had detailed information about the nature of the allegations. Upon the Crown’s evidence there were numerous incidents of unwarranted use of force and violence against the complainant such that it would have been artificial to pin the case down to isolated assaults at times and circumstances beyond the ability of a young victim clearly to recall. The fact that initial charges were of individual assaults does not affect that. We accept the submissions for the Crown that the evidence upon which the Crown relied amounted to a course of conduct entirely appropriate for a charge under s 195 of the Crimes Act 1961.
Second point of appeal
The second point of appeal is a further complaint about the indictment. It is submitted that where the Crown is relying upon the appellant being a principal party and a secondary party, both in aiding and abetting her husband actively and in deliberately failing to stop the ill-treatment of the child, the appellant should have been charged separately in the three distinct ways upon which the Crown relied. There is no authority for such a proposition. The Crown was entitled to lay the indictment in the form in which it did and to allege that the appellant was an offender in reliance upon each of the three heads promoted before the jury. If there was to be any complaint, it had to be about the Judge’s directions as to the way in which the appellant could be a party.
Third point of appeal
The third point of appeal is a submission that the Judge misdirected in respect of the elements of the offence as they applied to a secondary party under s 195 of the Crimes Act 1961. The section provides:
195. Cruelty to a child
Every one is liable to imprisonment for a term not exceeding 5 years who, having the custody, control, or charge of any child under the age of 16 years, wilfully ill-treats or neglects the child, or wilfully causes or permits the child to be ill-treated, in a manner likely to cause him unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability.
The appellant draws our attention to R v Hende [1996] 1 NZLR 153 as to the requirements for a proper direction in respect of the section but does not take issue with the direction of the trial Judge in respect of the requirements of the section. Rather it is a criticism of the direction by the trial Judge of the manner in which the appellant could be a party to her husband’s offending.
The Judge had made plain the essential elements of the crime under s 195, namely:
1. The Crown had to prove that both accused had control of the complainant during the period in question and that she was under the age of 16 years.
2. Both accused, either individually or together, deliberately badly treated the complainant.
3. The two accused ill-treated the complainant in a way that was likely to cause her actual bodily harm, with that described.
4. Both accused knew at the time of the ill-treatment that it was likely to result in the actual bodily harm.
The Judge then went on to make clear that the Crown had to establish that the force was not justified under s 59 of the Crimes Act relating to the reasonable discipline by a parent of a child.
The Judge then made clear that the jury had to treat the evidence against the two accused separately. He then went on to address the Crown’s case that the appellant was not only a primary but a secondary party. It is said on behalf of the appellant that the Judge introduced this secondary aspect, but the appellant’s submissions make plain that the case was opened by the Crown on that basis. The complaint of the appellant in respect of this part of the summing up that has to be considered is that the Judge did not correctly articulate the intent necessary on her part if she were to be found a secondary party in reliance on her deliberate failure to intervene in her husband’s ill-treatment of the child.
In respect of the issue as to parties, the Judge first put to the jury that the appellant could be found a party if the jury came to the conclusion that she actively encouraged her husband to ill-treat the complainant. There can be no criticism of this part of the summing up.
It is, however, the next part of the summing up that the appellant criticises. The Judge went on to state:
If, on your view of the evidence you are sure that Mrs McFarlane, over the period in question had the opportunity to stop any ill treatment of [the complainant], or at least seek some assistance or medical care and she deliberately refrained from doing so, then she would have failed in her duty as a parent and you would in those circumstances, if you are satisfied that was the case, be entitled to find her guilty of the crime as a party to the offence.
As the Crown acknowledges, the Judge in that sentence has not in as many words directed the jury that, to be guilty of the offences as a party in that manner, the appellant must be proved to have known of the material circumstances and intended the consequences to occur. However, it is implicit in the sentence that she knew of the ill-treatment, was present during it and deliberately refrained from taking any steps in respect of it, knowing the consequences that would occur. The appellant makes something of the words “at least seek some assistance or medical care”, but in the context of both the paragraph and the summing up as a whole that is but an aside.
It is impossible to believe, in the context of the summing up as a whole, that the jury could have convicted the appellant without being sure she was a principal party or a secondary party through being aware of the violence by her husband and assenting to it or encouraging it, whether directly or by deliberately refraining from intervening when she was present and aware of the violence and of its consequences. The jury could not have convicted the appellant on this summing up without being sure she was aware of the ill-treatment and deliberately involved herself in it, or deliberately encouraged it actively or by conscious acquiescence.
Even if the direction on the narrow issue of conscious acquiescence could have gone further, there is nothing in the context of this case to show that the particular sentence could possibly have led to a miscarriage of justice. It was in the context of a summing up directed towards positive involvement or positive encouragement with a knowledge of what was involved.
Fourth point of appeal
The final, general, point of appeal relies on a number of unrelated points, which were not pursued in oral argument.
Complaint is made that the Judge stopped counsel cross-examining a witness about the witness’s acts of discipline in respect of a child of her own. The Judge’s intervention came at a point when counsel was repeating a question to which the witness had already responded. It was a collateral issue. The Judge was right to intervene.
A further area of complaint is that the Judge asked a registered nurse called on behalf of the appellant what her reaction would be if she was able to see 13 discernible bruises on one of her children. The answer was that the witness’s concern would depend upon where they were but as her boys generally had bruises on them she generally would not have been concerned. It is difficult to see how this question and answer could give rise to any miscarriage of justice.
Another complaint is that the trial Judge intervened in the leading of evidence from another witness for the appellant. The Judge’s intervention was understandable as it appeared the witness was being asked to give evidence that on its face could have been inadmissible. In the context of a trial as a whole, the incident was a minor one and could not possibly have led to any miscarriage of justice. There is certainly nothing before this Court as to relevant evidence which could have been led from the witness which might have been probative and was not before the jury.
A further complaint on behalf of the appellant is that the Judge, in reviewing the evidence of the paediatrician, which he did briefly in a single paragraph consisting of one very long sentence, failed to refer to a particular aspect of the cross-examination of the paediatrician. However, regardless of whether the Judge was required to refer to the detail of the evidence of the paediatrician, the cross-examination question and answer had no relevance in the overall context of the trial.
The appellant argues under this general head of appeal that the lack of specifics in the indictment, the issue as to the different ways in which guilt could attach to the appellant, the effect of interventions by the trial Judge and the alleged lack of focus in the summing up results in the appellant being deprived of a fair trial with a resultant miscarriage of justice. However, none of the appellant’s submissions individually or collectively get near to establishing an absence of a fair trial or a miscarriage of justice.
It should also be noted, although we place no emphasis upon it, that counsel was given an opportunity to raise any matter on behalf of the appellant at the end of the summing up but chose not to do so.
Decision
The appeal against conviction is dismissed. The appeal against sentence has not been pursued and it is also dismissed.
Solicitors
Crown Law Office, Wellington, for the Crown
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