THE QUEEN v ELIZABETH MARY HEALY [1999] NZCA 31 (18 March 1999)

PERMANENT ORDERS MADE IN THE HIGH COURT PROHIBITING PUBLICATION OF (1) THE NAME OF THE MANUFACTURER OF THE BABY FOOD INVOLVED IN COUNT 4 AND OF JOB DESCRIPTIONS AND TITLES OF THE MANUFACTURER'S STAFF WHOSE EVIDENCE WAS READ AT TRIAL (2)THE NAME OF THE APPELLANT'S SON; IN EACH CASE WITH ANY DETAILS LEADING TO IDENTIFICATION.

IN THE court of appeal of new zealand

ca 172/98

THE QUEEN

V

ELIZABETH MARY HEALY

Hearing:	1 December 1998
Coram:	Eichelbaum CJ Anderson J Goddard J
Appearances:	K N Hampton QC for appellant J C Pike for the Crown
Judgment:	18 March 1999

judgment OF THE COURT DELIVERED BY EICHELBAUM CJ

[1] The appellant was convicted on 13 May 1998 by a jury in the High Court at Christchurch on one charge of murder (count 1), one of injuring with intent to injure (count 3) and one of administering a noxious substance (count 4).The appeal has been pursued in relation to counts 1 and 4 only.

[2] In July 1996, the appellant was employed as a Barnados caregiver providing part-time childcare for five children.She also had sole custody of her 18 month old son.Previously, the appellant had been a dental assistant, and had completed two years of a three-year nursing degree at Otago Polytechnic.

[3] Dealing first with the facts relevant to the count of murder, from October 1996 until January 1997 the appellant was employed as a part-time caregiver for the first victim, S aged 17 months. On Saturday 4 January 1997, S's mother arranged for her to stay overnight at the appellant's house, this being the first time the appellant had had the child for an overnight stay.

[4] On the previous day during a child's birthday party, S had appeared healthy and normal. Although on the Saturday she seemed tired and slightly irritable, she had begun teething and was less cheerful than usual.S's mother had given her pamol at intervals to ease the pain.

[5] During the afternoon of 4 January the appellant, her sister, her niece and a friend took turns spending time with S and cuddling her.The appellant then gave both S and her son 5 mls of pamol and made them dinner. S did not have any appetite and refused to eat the meal.The appellant rang S's mother who thought her behaviour was attributable to teething but there was no real concern.The next day, the appellant was unable to wake S.After half an hour, she telephoned S's mother who advised her to call an ambulance.S was taken to Christchurch Hospital, where she was found to have sustained a serious fracture to the skull with resultant brain injury.She died at 8pm that night.

[6]When interviewed by police, the appellant provided several different accounts of what occurred on the evening of 4 January.Initially, she stated that while she was sitting on the couch with S in her arms, S had gone "floppy".The appellant thought she had fallen asleep and carried her to her cot.During the night the appellant heard her making a snoring or gurgling noise.

[7] In a later interview, the appellant stated she had consumed several stubbies of beer and half a bottle of wine, and described herself as being quite intoxicated before she put S to bed.The appellant could recall dancing with S during the evening but could not remember any injury occurring.The appellant woke up on the lounge floor at 3 am.

[8] In yet a further interview the appellant downplayed the extent to which she had been drinking; but at trial, her counsel suggested that while dancing, the appellant might have swung S around the room, accidentally causing the child to hit her head on some item of furniture.

[9] The pathologist performing the post mortem considered there had been a forceful contact at the right side of the back of the head causing skull fractures, subdural haemorrhage and brain injury.He estimated that the injury was most likely sustained in the period of 18 to 36 hours prior to S's death, and in any event occurred not more than two days before she died.The outer limit was, therefore, 8pm on Friday 3 January.The pathologist considered it unlikely that the injuries were caused accidentally.A curious feature of the injury was the absence of external bruising, the pathologist saying that the contact was with a surface sufficiently flat and soft not to leave a surface pattern or bruise, but sufficiently robust to transmit considerable force. Possibilities suggested included a fall, a push against a fixed surface or a blow with a blunt instrument.No credible suggestion emerged of any fall, which would have to have been from a considerable height.

[10] Turning to count 3, from June 1996 the appellant also provided daytime care for the second victim, CM, aged about 18 months.On the morning of 10 April 1997, as usual CM was taken to the appellant's house.Prior to his arrival, he showed no sign of injuries.Later in the afternoon, the appellant contacted CM's mother to inform her that he had fallen from a slide but although he had sustained some bruising to one side of his face, he was all right.

[11] When CM's mother picked him up at 3pm, she was concerned to find extensive bruising on both sides of his face and ears.The following morning, he was found to have vomited on his bed.The paediatrician who examined CM concluded his injuries were inconsistent with a fall from a slide.When interviewed by police, the appellant stated that her son and CM had been playing outside the front door of her house.When CM shut the door on her son's fingers the appellant, feeling angry with CM, retaliated by pushing the door knowing it would strike him.According to the appellant, CM had either received his injuries from the door hitting him, or when knocked over by the shutting door. The paediatrician stated that the injuries were inconsistent with this explanation also, being of the opinion that the injuries were deliberately inflicted, for example by a slap from a hand.

[12] As to count 4 the third victim, CG aged 11 months, stayed with the appellant on a trial basis.In October 1996, her father left CG at the appellant's house together with a tin of her favourite apricot and rice baby food.When he returned to collect his daughter the appellant was feeding the tinned baby food to CG who was crying and upset.The tin was about half empty but CG refused to eat any more.The appellant wrapped the tin in gladwrap and gave it to CG's father.On returning home he tasted the food and found it was extremely salty.

[13] When the father returned the tin to the supermarket where he had purchased it, staff tasted the food and confirmed it was salty.The manufacturer of the product advised salt was not used in the production and could not have been introduced during the manufacturing process.The manufacturer had not received any similar complaints.The supermarket lost the tin of baby food before it could be tested.When interviewed, the appellant denied any involvement and was unable to provide an explanation.

The appeal hearing

[14] The day before the fixture for the hearing of this appeal counsel for the appellant advised he had been instructed to raise a ground additional to those contained in the notice of appeal, the issue of the admissibility of the principal videotaped interview of the appellant.Its admissibility had not been challenged at trial, and Mr Hampton acknowledged that implicit in the question now raised were issues relating to the way counsel (not Mr Hampton) conducted the trial.Mr Hampton informed the Court that he was taking advice from a consultant psychiatrist, and at a later stage filed an affidavit by that person.The Court declined to vacate the fixture but reserved leave for the additional point to be argued at a later date.Affidavits were also filed by the appellant, and by trial counsel.A fixture was given for the resumed hearing on 12 March 1999.On the day before this fixture Mr Hampton filed a memorandum stating that in essence the appellant did not and could not take issue with the account of matters deposed to by trial counsel.In the circumstances Mr Hampton informed the Court he could not take the argument as to admissibility of the videotaped statements any further, and did not wish to pursue that ground.We do not mention this history by way of complaint but simply to explain the apparent delay in the issue of this judgment.It was appropriate that the further matter raised by Mr Hampton should be properly investigated, as it has been.

[15] Our judgment deals with the grounds argued at the hearing, others contained in the notice of appeal not being pursued.

Severance

[16] The appellant's pre-trial application that count 4 should be tried separately from the others was refused.On the appeal it was contended that the refusal to sever resulted in a miscarriage of justice.Counsel argued there were significant factual differences between the other charges and count 4.Defence counsel at trial did not deny the appellant was involved in some way with the injuries sustained by S and CM.In S's case there was a strong body of evidence that her injury must have been sustained while in the appellant's care, while in relation to CM, she had admitted as much.On count 4 however the appellant had consistently maintained she had no knowledge of the salt found in the baby food.According to counsel, the injuries sustained by S and CM were the result of an unplanned response or set of circumstances. However, if the appellant added salt to the food this could only have been deliberate and premeditated.Counsel for the appellant argued that the differences in the character of the first two counts and the allegation of deliberate administering of salt in the baby food should have resulted in separate trials.There was no special feature or signature relating to the offending linking count 4 with the other charges.

[17] Counsel for the Crown submitted that the evidence in count 4 was relevant to rebut the defence of accident on all the charges and therefore, the Judge correctly left them joined.In R v Accused (CA 461/97) (1997) 15 CRNZ 674, this Court stated:

Similar fact evidence may be used not only where the issue is the identity of the offender.It may be used to bolster the inference of the state of mind of an accused when doing some act.If the same act is shown to have been done by him repeatedly in the past in the same characteristic manner or in the same characteristic circumstances that will tend to support the inference that on the next occasion it was intentional, or was done for the same purpose... (681)

[18] The manner in which the prosecution sought to use the evidence on one count to strengthen the case on the others is shown by the following passage from the summing up:

The Crown has submitted that it is a totally implausible coincidence if three of the five children the accused cared for over a few months suffered an untoward incident by some sort of accident.Its case is that all three were deliberate acts, not accidental, and that each supports the other in this particular aspect.

[19] Implicit in the appellant's argument was the proposition that to add salt to the baby food required a degree of premeditation.However, nothing in the evidence particularly supported this perception.It could just as easily have been a spur of the moment reaction.The critical point, from the Crown's perspective, was that it could not have been accidental.Thus the presence of count 4 enabled the prosecution to argue the theory of the defence case involved the coincidence that three children had been injured while in the appellant's care; in each case she denied responsibility and in the first two, maintained there was no intent on her part yet in the third intent was obvious, once the possibility that the salt had been added by some third party was excluded.

[20] In our view this case involved the legitimate use of similar fact evidence.Crown counsel referred us to R v Arp, a decision of the Supreme Court of Canada delivered on 26 November 1998 and in particular the statement at para 45 that in all cases a principled approach to the admission of similar fact evidence will rest on the finding that the accused's involvement in the alleged similar acts or counts is unlikely to be the product of coincidence.Whether this approach will be accepted into New Zealand law must await another day, but clearly the present was a case where the "not the product of coincidence" factor was capable of carrying real probative value. As always, the additional evidence also created prejudice, but we would not differ from the assessment made by the Judge that the evidence was sufficiently supportive of the prosecution case to justify allowing it to go to the jury notwithstanding such illegitimate prejudicial effect as it might have.We do not consider the joinder led to any miscarriage of justice.

Summing up

[21] The trial Judge gave a concise direction as to the limited purposes for which the jury could use the evidence on one count in evaluating the case on the others.The essence of his direction was that if on any count it was established the child's injury (or, in the case of count 4, the presence of the salt) resulted from a deliberate action by the accused, the jury could take this into account in evaluating the possibility that the event featuring in another count was accidental.The Judge carefully rehearsed the various permutations.

[22] Mr Hampton did not take issue with anything the Judge said; rather, he argued, it was a question of matters left unsaid.He submitted the Judge should have directed the jury not to use the similar fact evidence to raise any question of character or disposition.As to this it may be noted in R v Accused (CA 461/97) this Court said it was unhelpful simply to tell juries that it was inappropriate to rely on evidence of propensity, or "mere propensity":

The important focus is upon what sets evidence that supports a logical inference probative of guilt apart from evidence that does no more than indicate bad character suggesting that the accused should be taken as more likely to have engaged in the conduct charged.(682)

[23] The Judge commenced this section of his summing up by telling the jury that subject to the qualifications he would deal with, each count was to be considered separately and determined solely on the evidence relating to that child.He repeated that direction after dealing with similar fact evidence. In such a case a Judge might go on to deal with the illegitimate use of bad character evidence, bearing in mind what has since been said on that subject in R v Accused (CA 461/97);but having regard to the clear way the trial Judge limited the use to which the similar fact evidence could be put the absence of such a direction was not critical.

[24] Next Mr Hampton submitted the Judge should have made it clearer that the jury must not convict on any count unless satisfied beyond reasonable doubt that the accused was guilty of that offence.Early in the summing up the Judge gave conventional direction regarding the onus and burden of proof.At the end of the summing up he summarised the specific issues arising under each count. Dealing with counts 1, 3 and 4 separately, in each case the Judge told the jury it had to be satisfied of guilt beyond reasonable doubt before bringing in a verdict of guilty.There is no substance in this contention.

[25] The third point under this heading was that the Judge should more specifically have drawn attention to the different character of the charge in count 4, by cautioning the jury that if it took its finding on count 4 into consideration in deciding count 1, to bear in mind that under count 1 what was required was not merely that the jury had to negative any question of accident; to find the accused guilty of murder there had to be a finding of a specific state of mind under section 167 of the Crimes Act 1961.

[26] At trial the Crown did not rely on section 167(a), a specific intent to kill.Its case was based solely on (b), that the appellant meant to cause bodily injury known to her to be likely to cause death, and was reckless whether death ensued or not.The Judge gave appropriate directions as to the requirements of that form of intent.When summarising the matters required to be proved at the end of the summing up, he repeated the need for the Crown to establish the intent, to justify a finding of guilty of murder.Following a question from the jury during its retirement, the Judge provided the jury with the text of section 167(b), and again went over the elements in detail, concluding with a reminder about the burden of proof.We do not accept that further directions were required.

Count 4 - evidence

[27] In relation to count 4 the notice of appeal contended the conviction was not supported by the evidence.The only matter of substance argued on the appeal related to the question of date.As originally presented the indictment alleged the date of the offence was 28 October 1996.During the course of the prosecution evidence this was amended to 18 October.

[28] In his evidence at the trial CG's father did not specify the date on which the event took place.We are not aware of the basis on which the indictment originally nominated 28 October.However, when the father took the tin back to the retailer he obtained a refund which was documented by a machine printed docket bearing the date 18/10/96.Its production as an exhibit at trial may have triggered the amendment of the indictment.There was however a further difficulty.The docket bore the time of 1.41pm whereas according to the father's evidence the child was fed from the tin at 4pm.This discrepancy remained unnoticed until during its retirement the jury drew attention to it. Another factor was that during the relevant period, according to an exhibit the appellant cared for CG on 11, 16, 18 and 23 October.In answer to the jury's question the Judge told them that Crown counsel acknowledged he had missed the point but since it was now too late to clarify the matter by further evidence or otherwise, the jury was left with the position that there was an apparent conflict and they would have to do the best they could with the material they had before them.He added:

I have to tell you, however, that the precise date on which an incident such as this occurred is not an essential element in the Crown's case.It is sufficient if you are satisfied on the evidence as a whole, beyond reasonable doubt, that each of the essential elements in the crime alleged, that is the noxious substance, knowingly administering it, and with intent to cause inconvenience or annoyance, are established to that degree whether it happened precisely on that date or not.The date is not an essential item of the charge.

[29] The father did not maintain that he took the tin back to the supermarket on the day of the incident.He did not say how soon afterwards it was. His letter to the manufacturer informing it of the incident, dated 21 October, referred to the purchase as being "last Tuesday" which would have been 15 October.On this evidence the appellant could have fed the food to the baby on 16 October.

[30] It was open to the jury to decide the incident happened on the 16th.The Judge's direction given in answer to the question was correct, Mr Hampton was unable to argue otherwise.We are unable to see how it can be said the verdict was other than properly open to the jury on the evidence.

Conclusion

[31] None of the grounds argued having succeeded the appeal is dismissed.

Solicitors

Crown Law Office, Wellington