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THE QUEEN v DAVID FREDERICK MEAD [2001] NZCA 228 (1 October 2001)

IN THE court of appeal of new zealand

ca 146/01

147/01

THE QUEEN

DAVID FREDERICK MEAD

IRENE PATRICIA MOLLOY

Hearing:	31 July 2001 (at Auckland)

Coram:	Elias CJ Thomas J Anderson J

Appearances:	W C Pyke for Mead M J Knuckey for Molloy K Raftery for Crown

Judgment:	1 October 2001

JUDGMENTS OF THE Court

JUDGMENTS

Para No

Elias CJ[1] - [49]

Thomas J[50] - [102]

Anderson J[103]-[111]

ELIAS CJ

[1] The appellants were convicted by a jury of four charges of wilfully ill-treating children in a manner likely to cause them unnecessary suffering, contrary to s 195 of the Crimes Act 1961.The charges were laid in respect of the three children of the appellant Molloy.They related to a period between 1 January 1999 and 10 June 1999 when the appellants were living together in a domestic relationship and had the care of the children. The children were aged 14-15, 10 and 7 at the time.

[2] Section 195 of the Crimes Act provides:

195Cruelty 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.

[3] Each of the first three charges related to a separate child, but contained the same allegations and particulars of conduct in respect of all three children.The particulars of the three charges set out in the indictment were:

Physical and mental abuse including excessive and menial domestic chores, deprivation of food, cold baths, verbal abuse, force feeding of cold and rotten food, and hitting.

[4] The fourth charge was specific to one of the children.The particulars given in the indictment in respect of the allegation of wilful ill-treatment were:

Occasion the complainant was force fed cloves.

[5] On conviction, the appellant Molloy was sentenced to 12 months' imprisonment.The appellant Mead was sentenced to 2 ½ years' imprisonment.

[6] Both appeal conviction and sentence.

[7] The convictions are appealed on the ground that the Judge failed to instruct the jury that it was necessary that they be unanimous as to the proof of the different factual bases put forward by the Crown to support the allegations of ill-treatment.The failure to direct the necessity for such unanimity is said to be fatal to the convictions in respect of counts 1-3.It is also said to taint the conviction in relation to count 4 because the direction given "may have left the Jury in doubt as to whether, even in relation to count 4, they need be unanimous in finding that act [the force feeding of cloves] proven".

[8] The sentences are appealed as being excessive in the circumstances.It is submitted that the conduct of the appellants did not amount to serious violence and did not cause the children significant injury.The sentences are said to be out of line with other sentences for similar offending.The appellants contend that the Judge failed to take into account the circumstances of the offending and their personal circumstances.

Conviction Appeal

[9] The appeal against conviction raises the adequacy of the Judge's directions in the circumstances of the case.Those circumstances included the conduct of the accused relied upon by the Crown to establish guilt, the accused's denial of that conduct, and the need for the Crown to establish to the satisfaction of the jury that the conduct relied upon (either separately or in combination) met the standard of criminal responsibility provided by s 195 of being wilful and in a manner likely to cause the children unnecessary suffering.

[10] Defence counsel, relying upon the decision of the English Court of Appeal in in Brown (1984) 79 Cr App R 115, had submitted to the trial Judge that the jury should be directed that it was necessary for it to be unanimous in respect of any conduct relied upon as amounting to ill-treatment and its sufficiency to establish ill-treatment.

[11] The Judge not only declined to give such direction, he specifically gave a direction to the contrary effect.He reminded the jury that the verdict on each charge must be unanimous.But he added what he described as "a gloss on that".The gloss related to the particulars of each charge.On that the Judge said:

The particulars that are mentioned below each of the particular charges - they are different to what I described as the elements of the offence.The particulars are essentially notification as to the factual basis on which the Crown states that this crime has been committed, and that is particularly necessary to ensure that an accused person knows what the Crown case alleged against him or her is, so that they can prepare a defence.It is important that you understand this.You do not have to be unanimous in respect of any of the particulars when you come to determine your verdict.For example, Juror A, one of you, may consider that one of the accused - let us call him Mr Mead because he features first in the indictment - one of you may consider that Mr Mead is guilty on count 1 because you find that he is responsible for the deprivation of food, cold baths, verbal abuse, whereas others of you may consider that it is because of the force feeding of cold and rotten food and hitting.So you do not have to be unanimous in respect of the matters that are particularised.

What you must be unanimous on are what I describe as the essential elements of the offence, which are contained in the body of the charge; that is, things such as a person having the charge of [the named child], that [the child] was a child under 16 years of age, that the accused wilfully ill-treated him, and that he did so in a manner likely to cause him unnecessary suffering.Those are the essential elements that must be proved beyond reasonable doubt.You do not all have to be of the same mind in relation to a factual basis on which you determine wilful ill-treatment.I will cover that again in a few minutes, but it is important that you do not say "We all have to be in agreement that [the child] was force fed cold baked beans".One of you might think that.Another of you might reach the point - the Crown has proved wilful ill-treatment here because of a different factual basis that is properly founded on the evidence. But what is important is that all 12 of you, before you may return a verdict of guilty, all 12 of you are left sure that the accused David Mead wilfully ill-treated [the child] in a manner likely to cause him unnecessary suffering. So that is what has to be proved beyond reasonable doubt.You do not have to be unanimous in relation to those matters specified as particulars. Particulars are not essential elements of the charge.

...

So counts 1 to 3 relate to a course of repetitive conduct in relation to each of the three children over a five months period.The particulars apply, and I confirm as correct what [Counsel for the Crown] said to you, that it is not necessary for the Crown to prove that all the items particularised occurred. If you find that one of the items particularised did occur and the accused was deliberately responsible for it, then that could form a proper basis on which to return a verdict of guilty.It could be you find that a number of the allegations have been proved.It may be that you are not satisfied on the evidence that you could conclude or determine guilt based upon the evidence, in which case then, of course, there would be a verdict of not guilty.

So, any one or more of those items matters particularised can form a factual basis upon which you can then go to determine whether the accused is guilty or not.You may find that there has been deprivation of food, cold baths and verbal abuse.You may find that it does not go so far as to result in wilful ill-treatment likely to cause unnecessary suffering.That is a matter for you.

[12] This direction proceeds on the assumption that the essential ingredients of the case, upon which jury unanimity is required, are simply the legal elements of the charge.For this reason, the jury was directed that it must be unanimous that the appellants had the charge of the children, and that each child was under the age of 16 years.These were matters not in contention at trial.In addition, the jury was instructed that it was to be unanimous as to the conclusions required by s 195: that the accused wilfully ill-treated the children and in a manner likely to cause them unnecessary suffering.

[13] The Judge's direction explicitly authorised the jury to reach a unanimous conclusion on guilt without any shared basis about the conduct relied upon as amounting to ill-treatment likely to cause unnecessary suffering.Is such direction adequate?The other members of the Court think that it is sufficient to direct a jury that it must be unanimous as to the conclusion of ill-treatment and that the "form" of the treatment is not an ingredient of the offence.I cannot agree.

[14] A jury must be unanimous as to the essential ingredients of the offence. This principle, so fundamental as to be generally assumed without need for authority, is affirmed in More (1988) 86 Cr App R 234, 252 (HL) per Lord Ackner.But it does not of itself answer the question what are the essential ingredients upon which there has to be unanimity.

[15] It is not necessary that jurors be in agreement about the evidence.They can arrive at the same point by different reasoning.But the essential points upon which they must agree are not simply a conclusion based upon the statutory criteria for the offence.The statutory elements will need to be anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence.The jury must be agreed upon the factual basis on which they find the accused guilty:Giannetto [1997] 1 Cr App R 1, 8 (CA) per Kennedy LJ; Carr [2000] 2 Cr App R 149, 158 per Lord Bingham CJ.Without such agreement there is no common foundation for the verdict.

[16] The standard jury direction about the need for unanimity refers to the need for the jury to be unanimous as to the "elements" of the offence.As noted in R v Menzies (CA 222/97, 29 September 1997) at p 12, it is usual for the Judge to make it clear what are the essential elements of the case during the course of the summing up.It is important that the summing up be tailored to the actual case before the Court in this way.

[17] What elements are essential to criminal liability in the particular case and require jury unanimity is a practical question, not a technical one.It turns not only upon the legal elements of the offence but also the factual elements essential to the cases put for the prosecution and defence:

It is important to emphasise that the criteria [for establishing what are the "essential elements of the case"] are not directly concerned with the legal constituent elements of the offence charged but with the actual issues which are prerequisites to a guilty verdict in the particular circumstances of the individual case.(R v Leivers and Ballinger [1999] 1 Qd R 649, 662 per Fitzgerald P and Moynihan J.)

[18] In many cases, any particulars contained in the count are likely to assist in identifying elements in the case which are essential.Particulars ensure that an accused is given notice of the case against him.Section 329(4) of the Crimes Act provides:

(4)Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to. . .

Such requirements are essential to fair process.Where allegations of fact in a count identify the transaction or conduct upon which the prosecution bases the case for criminal liability and where they remain in issue at trial, they may normally be expected to identify essential ingredients of the case upon which jury unanimity will be required.But what is essential turns upon the substance of the case at the end of the trial.

[19] Where the prosecution puts forward one basis for culpability, a general direction to the jury by the trial Judge that it must be unanimous on each element of the offence may well be sufficient, at least if those elements are identified during the course of the Judge's summing up.That is the case with count 4 of the indictment.But where the case is put on a number of different bases, any of which could support a guilty verdict, more care is needed.

[20] Where a number of specific incidents or transactions or courses of conduct are included in the same count, there is a risk that all jurors will be satisfied of the proof of one, but not necessarily the same one.The risk of division is increased when the legal ingredients of the offence require additional assessments of degree or quality, as is the case here where the conduct or "treatment" must be wilful and must amount to ill-treatment in a manner likely to cause the child unnecessary suffering.Both the underlying conduct of the accused and the quality of their actions were very much in dispute.It would have been perfectly possible on the evidence for the jury to have disagreed not only as to whether some conduct took place, but also whether other conduct relied upon could properly be characterised as ill-treatment likely to cause unnecessary suffering.On the Judge's direction, such divisions would not matter.

[21] In some cases where the prosecution alleges a number of specific incidents it will be a miscarriage of justice not to sever the individual incidents into separate counts in the indictment:see, for example R v P [1998] 3 NZLR 587 (a case where a single representative count of rape related to six separate and identifiable incidents).In the present case the charge of ill-treatment ultimately requires a conclusion which may draw on a number of constituent grounds and which in many cases will turn on assessments of degree or quality. A jury may be satisfied on one basis or may reach the conclusion that the accused has ill-treated the child because of a combination of actions or neglect which, separately, might not be sufficient.Those are jury questions, to be arrived at by the jury applying the standards of the community.This was not therefore a case where separate counts for each of the particulars would necessarily have reflected the Crown case adequately or provided the protection for children which s 195 is designed to achieve.

[22] In other cases, particularly where the bases of liability are alternative, the separate elements may be adequately identified for unanimous determination by a direction that the jury undertake a staged determination:see, for example Flynn (1986) 82 Cr App R 319 (where on a charge of carrying an offensive weapon the jury was instructed first to consider whether the knife carried was an offensive weapon in itself and, only if not convinced on that score, to then consider whether the defendant intended to use it to cause injury).Such direction eliminated any risk that the jury would not be unanimous.

[23] In still other cases it may be necessary to instruct the jurors that they must be unanimous on at least one basis sufficient in their collective assessment to constitute the offence.That is the approach taken in Brown.

[24] In Brown, the accused was charged with fraudulently inducing four people to acquire shares in a company by making misleading statements.The particulars given in the count identified five statements made by the accused and alleged to be known by him to be misleading, deceptive, or false.Any one of the statements particularised in the charge was sufficient to constitute the necessary inducement.The jury was correctly told that it was not necessary for all jurors to accept all five statements particularised in the count in order for a conviction.It was sufficient if each was satisfied in respect of one statement.But in the course of his summing-up and in answer to a question from the jury the trial Judge said (at 117):

It does not matter that some of you are satisfied that one of the various statements is made out, and others of you are satisfied not about that statement being made out but that another is made out.It is sufficient if you are all agreed that there was a dishonest inducement.So if you find some of you are satisfied that representation A was made out, some of you are not satisfied about that but are satisfied that representation B was made out, then it does not matter, provided that you are all satisfied that there was the dishonest inducement made and that it operated upon the mind of the person to whom it was made and caused him to act in the way that he did.

[25] The Court of Appeal held this direction to be in error in suggesting that it was not necessary that the jury be unanimous in respect of any statement relied upon.In my view the Court of Appeal was clearly correct in that conclusion.I do not understand its decision on this point to have been doubted in subsequent cases which have considered and distinguished it: Thatcher v The Queen (1987) 39 DLR (4^th) 275 (SCC); Phillips (1988) 86 Cr App R 18 (CA); Young (1993) 97 Cr App R 280 (CA); R v Ryder [1995] 2 NZLR 271, 273 (CA); Giannetto; R v P (at 591).Brown has been consistently applied where it is directly in point: R v Mitchell [1994] Cr L R 66; R v Beach (1994) 75 A Crim R 447 (CCA); Houlden (1994) 99 Cr App R 244 (CA); Smith [2007] EWHC 1836; [1997] 1 Cr App R 14 (CA); R v Leivers and Ballinger; Carr.It accords with the approach in KBT v The Queen (1997) 72 ALJR 116 (HCA).The same principle has been applied in cases where isolating the cause of death (not usually an essential ingredient of the offence of murder) is material in the particular case (R v Chignell [1991] 2 NZLR 257; Carr;R v Boreman [2000] 1 All ER 307 (CA)).

[26] In More (at 244) the Court of Appeal considered that the direction given at trial in Brown "was an obvious misdirection".

[27] In my view the direction in the present case is indistinguishable from that given in Brown.The conduct particularised in the counts constituted (separately or in combination) the ill-treatment alleged by the Crown in the same way that the statements particularised in Brown constituted the inducement there alleged.

[28] It makes no difference that the inducement in Brown was a statement and the particulars in the present case identified different courses of conduct over a five-month period of time.It is an inadequate identification of the essential elements of the charge upon which unanimity is required to say that it is "ill-treatment".That is a conclusion required as part of the legal definition of the offence of cruelty here in issue.The conduct specified constitutes (separately or in combination) the ill-treatment alleged and is an essential element of the case in the same way that the statement specified in Brown constituted (separately or together with the other statements) the fraudulent inducement alleged.In each case, the members of the jury had to be unanimous as to the conduct or statement relied upon.It was open to the jury to find cruelty or fraudulent inducement on the basis of one or more of the particulars (provided that the agreed basis fulfilled the other statutory standards).But in each case there had to be a common foundation.Without it, the jury could not be unanimous and guilt to the criminal standard could not be attained.

[29] Because here the Crown case is based on a course of conduct over time and incorporates qualitative assessment (the treatment must amount to wilful ill-treatment and must be of a nature likely to cause unnecessary suffering), members of the jury may well differ in their acceptance of parts of the evidence and the emphasis to be placed on different incidents.That point is made in Young.

[30] In Young, the Court was concerned with the UK equivalent to s 195 of the Crimes Act (although the two sections are different in significant respects).The Crown case was that, over a period of time, the father of two children had assaulted and ill-treated them by causing them various injuries and that the mother, the appellant, had neglected them by failing to intervene to stop the violence and by failing to get medical treatment for the children. The charge against the appellant and the co-accused alleged simply that they had "wilfully assaulted, ill-treated, or neglected the children".

[31] The Court of Appeal in Young did not express any doubts about the correctness of the decision in Brown that the direction there given (which specifically authorised disparate verdicts) was wrong.It was concerned with the further suggestion made in Brown (discussed below at paragraphs 42-45) that a specific direction to the opposite effect is required where there is more than one factual basis upon which a jury can convict.The Court rejected the submission that the Judge should have directed the jury that they had to be unanimous as to the facts upon which they were satisfied of guilt.It held (at 287) that it was not necessary that the members of the jury agree on the specific evidence:"Provided that overall they are unanimous that cruelty in the sense alleged by the prosecution has been established, that is sufficient" (emphasis added).

[32] The cruelty alleged by the prosecution in that case had been a course of conduct of repeated assaults by the father and the mother's neglect in failing to obtain help or treatment.That was "the sense alleged by the prosecution" upon which the Court of Appeal considered that it was necessary that the jury be unanimous.

[33] Those allegations of repeated assaults and neglect of the consequences were evidenced by observations of bruising and injuries to the children and explanations given at the time to adults who saw the injuries.It was not necessary for the jury to be instructed that it must be unanimous about the evidence of particular incidents and observations it accepted as establishing the assaults or the neglect.But the Court of Appeal considered (at 287):

It might well be wrong for the jury to be given the impression that they can convict of cruelty if some were satisfied that there had been neglect, but others were not satisfied as to the neglect but were satisfied there had been assault or ill-treatment.

[34] In Young the essence of the prosecution case in respect of each allegation was conduct of a single character: assault in the case of the allegations of assault and ill-treatment, and failure to obtain medical attention in the case of the allegation of neglect.There were no options in terms of the factual basis, as in the present case or in the case of Brown, and therefore no risk of inconsistent foundations for the verdict.The Court correctly rejected the argument for the appellant that the jury should have been directed that it had to be unanimous on the particular factual findings in respect of incidents and observations during the period of the course of conduct.But it emphasised that it would have been wrong if the jury had been given the impression that it could divide on whether there was neglect or assault in concluding that cruelty had been established.No such impression had been given in the Judge's summing up.

[35] Young does not support the direction in the present case which invited the jury to be at sixes and sevens in its acceptance of the conduct alleged, provided only that it was unanimous in the conclusion of ill-treatment.

[36] Where the Crown case relies on a continuous course of conduct entailing actions of the same character, it is not necessary for particular incidents to be proved.In Smith, the appellant was charged with the offence of affray.On appeal, in reliance on Brown, it was submitted that the trial Judge should have directed the jury that it was required to be unanimous in respect of the conduct in two separate episodes, inside and outside a house. Without such direction, it was submitted, the possibility existed that some of the jury may have found the offence of affray proved on what happened outside the house, and some on the basis of what happened inside the house.

[37] The Court of Appeal accepted the submission and quashed the conviction because two distinct episodes were entailed in which the character of the conduct relied on, and its effect on others, might have been quite different. In those circumstances there would be no unanimous jury verdict based on either sequence.Had the sequence not been split, however, Lord Bingham CJ indicated that the nature of the offence of affray is such that the Crown was not obliged to prove and identify particular incidents (at 17):

It is essential in considering this submission to bear in mind the nature of the offence of affray.It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on.Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. . .It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard.

[38] The discussion in Smith rightly emphasises that the assessment of the character and sequence of a course of conduct is important in identifying the essential ingredients upon which the jury must be unanimous.The course of conduct in a mêlée, as described, is far removed from the separate conduct relied upon by the Crown in its charges of cruelty.The character of the conduct particularised in the present case is disparate in nature.There was a real possibility that the jury might conclude that the offence had been established in reliance upon different conduct.If so, there would be no unanimous jury verdict.

[39] The case closest in point is Mitchell.The appellant had been convicted of unlawful harassment.The Crown alleged a number of separate and different acts of harassment in relation to the count.The defence was that the incidents had not happened or could be otherwise explained.No direction that the jury was required to be unanimous on the different harassment relied upon was given.The Court of Appeal allowed the appeal and quashed the conviction.The acts were disparate in time and in nature.It was held that there was a real risk that, without specific direction, the jury might have come to the conclusion that provided all were agreed that at least one of the acts had occurred, although not in agreement as to which of them, they could convict.Mitchell was cited with approval in Carr (at 155-156).

[40] It should be noted that in both Smith and Mitchell the convictions were set aside for failure to give an adequate direction.In the circumstances of each, the Courts held that it could not be assumed that the jury would have appreciated that it had to be unanimous on the factual foundation, without such specific direction.In the present case, the jury was specifically told that it could disagree on the conduct relied upon.No authority supports such approach.

[41] Whether the conduct alleged had been established and whether it amounted to ill-treatment likely to cause unnecessary suffering were the essential ingredients in the present case.The jurors were clearly misdirected when the Judge told them they did not have to agree on the conduct relied upon.With such direction they were authorised by the Judge to convict without any consistent foundation.In my view the misdirection is fatal.It told the jury to proceed illegitimately, without unanimity as to the basis of criminal liability.On this basis I would allow the appeal in respect of counts 1-3 and quash the convictions entered in respect of them.

[42] The doubts expressed about Brown (for example in Thatcher and More) lie not with its determination that the direction given was a misdirection (because it explicitly authorised disparate foundations for the verdict), but rather with its suggestion (at 119) that a specific direction, beyond the general direction that unanimity is required for the verdict, is necessary whenever the prosecution is put on a number of different factual bases:

In a case such as that with which we are now dealing, the following principles apply:1.Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury.The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.

[43] In More, the Court of Appeal expressed some doubt about the need for such explicit direction in all cases, while accepting the underlying proposition that jury unanimity on the basis accepted was required.Such direction it thought would be necessary only where there was a discernible risk that the jury might fail to be unanimous on the elements of the case (there, the making, falsity and efficacy of at least one of the representations specified in the charge).It was not necessary for the House of Lords on further appeal in More to resolve the matter because of the view taken by it that the only live issue at the trial was whether the prosecution could negative the defence of duress.But the House of Lords (at 252 per Lord Ackner) indicated its view that whether a direction should be given depends upon the circumstances of the case:

Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).It is equally essential that a jury be directed in a manner that is easily comprehensible and devoid of unnecessary complications.Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury's satisfaction each ingredient of the offence must depend essentially upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence.

[44] Such view is consistent with the repeated reminders of this Court that the summing up must be tailored to the circumstances of the particular case.There is no inflexible rule requiring a specific direction as to unanimity on the different factual bases available.In most cases, it will be evident from the general direction as to the need for unanimity that such agreement is required. Whether a more elaborate direction is necessary will depend upon the live issues for jury determination and the risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved if no such direction is given: Phillips (at 25) per Woolf LJ; Giannetto (at 6) per Kennedy LJ.In Mitchell the Court of Appeal proposed that the sufficiency of the direction be tested against the question:

[W]as there a realistic risk that some members of the jury might have found one of the ingredients in the charge proved and others another ingredient as the foundation of their verdict?

[45] That risk was a very real one here, given the combinations of conduct of different character alleged to constitute ill-treatment and the qualitative assessments required under s 195.The circumstances of the case required the Judge to direct the jurors that they had to agree on the conduct relied upon as constituting ill-treatment and that it was of a nature likely to cause unnecessary suffering.That is not to say that the jurors were required to accept the same evidence of such conduct, in the sense of requiring unanimity in respect of particular incidents.Nor was it necessary for them to apply the same process of reasoning to the conclusion of wilful ill-treatment amounting to cruelty.But on the basis upon which the case was put, each juror had to be satisfied in respect of the same conduct relied upon.Without a direction as to the need for unanimity, it cannot be assumed in the circumstances of the case that the same foundation was accepted by all jurors.

[46] In the circumstances, it is not necessary to resolve the appeal on this point.The Judge did not fail to direct the jury specifically.He specifically directed the jury that it could disagree on the conduct relied upon.In my view, that was a misdirection which makes the convictions on the three counts unsafe.

[47] The same problem does not affect the conviction in relation to count 4. That was specific to one incident.A general direction of the need for unanimity was sufficient in respect of that count.

Sentence appeal

[48] The sentences were stern.But I am satisfied for the reasons given in the judgment of Thomas J that they were within the range available to the Judge. He had conducted the trial and had the opportunity to gauge the seriousness of the offending and its impact upon the children.

Conclusion

[49] In accordance with the judgments of the Court, the appeals against conviction in respect of Count 4 and the appeals against sentence are dismissed.In accordance with the judgment of Thomas J and Anderson J the appeals against conviction in respect of Counts 1 to 3 are also dismissed.

THOMAS J

Introduction

[50] For a period of up to five months, three young children were cruelly ill-treated by their mother's partner.Their mother did nothing to assist them and, at times, participated in the acts of ill-treatment.Mr Mead, and the mother, Mrs Molloy, were charged with four counts of wilfully ill-treating the children in a manner likely to cause them unnecessary suffering under s 195 of the Crimes Act 1961.

[51] When approached by the Police, who had been alerted to the ill-treatment by the oldest child in June 1999, Mr Mead and Mrs Molloy declined to make a statement.They were duly charged.At the trial they elected not to give evidence and put the Crown to the proof.

[52] Mr Mead and Mrs Molloy were convicted on four counts.Counts 1 to 3 were representative charges.The indictment followed the wording of s 195 but particulars were provided in the following terms:

Particulars: Physical and mental abuse including excessive and menial domestic chores, deprivation of food, cold baths, verbal abuse, force-feeding of cold and rotten food and hitting.

[53] The fourth charge also followed the wording of s 195, but it related to a single incident.The particulars were briefly stated:

Particulars: Occasion the complainant was force fed cloves.

[54] Mr Mead was sentenced to two and-a-half years imprisonment in respect of these four offences together with an offence of assaulting a child under the age of 16 years with intent to injure him.He had previously been convicted of this offence in respect of Mrs Molloy's son, then 12 years old. Mrs Molloy was sentenced to one years imprisonment.

[55] Mr Mead and Ms Molloy appealed against both their convictions and their sentences.

The "boot camp"

[56] Mrs Molloy's three children, Stephen, Patricia and Lorraine, were 14 or 15, ten and seven years of age respectively at the time of the ill-treatment. They had been living in a dysfunctional setting with their mother and father. Mrs Molloy's relationship with their father ended and Mr Mead moved into the home in early 1999.Shortly afterwards, he began a regime of ill-treatment of the children which was described by the Judge as sadistic in its intensity.A neighbour, who visited the house fairly regularly, described the household as being "like a boot camp".

[57] As is to be expected, the evidence of the children, particularly the two younger children, was not always consistent when recounting some of the specific incidents.But a picture emerges from the evidence as a whole which undoubtedly demonstrates a course of conduct or regime of cruelty on Mr Mead and Mrs Molloy's part.Counsel for the two accused have not sought to argue that there was not sufficient evidence for the jury to return the guilty verdicts in issue.

[58] The children were required to carry out menial household chores in the early hours of the morning and again after school.Stephen gave evidence that they were made to clean the kitchen and the lounge, wash the back porch with a bucket and a rag, sweep the floor, wash the windows, wash the ceilings and wash the windows inside and out.They were punished by Mr Mead if they failed to complete these tasks to his satisfaction.He would beat them with a leather belt in a manner that left bruises and red marks.In evidence, the children spoke of being wakened before daylight by Mr Mead pouring cold water on them. Patricia spoke of having to hand-wash clothes in the bath and clean the toilet with a toothbrush.They would often be sent to school with no breakfast and at other times deprived of food as punishment.They also said that they were made to eat cold baked-beans and "rotten" food.In one particular gruelling incident, Lorraine was force-fed powdered cloves with a teaspoon.The other children watched while she cried and vomited.

[59] The children also complained of having been immersed in cold baths and forced to remain in the cold bath.Stephen said that on one occasion he was put into a bath naked with his sisters.He recounted the embarrassment and fear which he felt.Mr Mead also punched Stephen in the stomach during another incident which was witnessed by the neighbour who was at the house at the time. On another occasion the neighbour saw Mr Mead put a teaspoon or tablespoon of Epsom Salts on one of the children's meals and make her eat the contaminated food.

[60] During this time Mrs Molloy was pregnant and often remained in bed unwell. But she was not bed-ridden and could have intervened if she had been minded to do so.She did not do so.She was convicted, along with Mr Mead, as a party when he force-fed her daughter cloves.The neighbour also described the occasion when Mrs Molloy made her son and two daughters have a cold bath. She ran the cold bath and told Patricia and Lorraine to get into it.She then made Stephen get in with them.She had Mr Mead help her.The children were naked.They were extremely upset and in tears.Yet, they were kept in the cold bath for about ten minutes.The neighbour knew of other occasions when one or other of the children were given a cold bath as punishment.

[61] The neighbour's evidence obtains a ring of truth when he relates how Mr Mead, after he had given the boy two punches in the stomach, said, "I am a 32 year old man, I shouldn't be picking on a 15 year old boy, I may as well fuck off to the bush."The neighbour said Mr Mead kept on saying words to this effect over and over again.He was still saying it an hour or so later. Clearly, Mr Mead was disturbed at his ill-treatment of the children and realised that it was wrong.But he did not desist.

[62] The detrimental effect of the ill-treatment which the children received is also apparent from the evidence of their grandmother into whose custody they were entrusted after having been in care for a short time.She described them as being "timid and frightened and...skinny" when they came to live with her. The children's well-being has improved and they have put on weight while staying with her.

The appeal against the convictions

[63] Mr Pyke and Mr Knuckey, who appeared for Mr Mead and Mrs Molloy respectively, submitted that the trial Judge misdirected the jury in his summing up in instructing them that they did not have to be unanimous in respect of the acts alleged as particulars, and that individual jurors could collectively disagree on the proof of any specific acts but could nevertheless convict the accused as long as they were satisfied that the "essential elements of the offence" were proven.

[64] Counsel argued that the Judge should have given a direction along the lines of the direction sanctioned by the Court of Appeal in the United Kingdom in Kevin Brown (1983) 79 Cr App R 115.The Court held in that case that, in a charge of inducement by making a misleading statement, the particular statement which made up the inducement must be proved to the satisfaction of the whole jury.

[65] The criticism of the Judge's direction and the question whether Brown is applicable in cases of ill-treatment under s 195 was fully traversed in argument before this Court.As I consider that the Judge's direction was correct and that Brown should not be applied, the issue may be addressed at some length.

[66] The relevant part of the trial Judge's direction in this case may be set out in full:

What you must be unanimous on are what I describe as the essential elements of the offence, which are contained in the body of the charge; that is, things such as a person having the charge of Stephen Work, that Stephen Work was a child under 16 years of age, that the accused wilfully ill-treated him, and that he did so in a manner likely to cause him unnecessary suffering.Those are the essential elements that must be proved beyond reasonable doubt.You do not all have to be of the same mind in relation to a factual basis on which you determine wilful ill-treatment.I will cover that again in a few minutes, but it is important that you do not say "We all have to be in agreement that Stephen was force fed cold baked beans."One of you might think that.Another of you might reach the point - the Crown has proved wilful ill-treatment here because of a different factual basis that is properly founded on the evidence. But what is important is that all 12 of you, before you may return a verdict of guilty, all 12 of you are left sure that the accused David Mead wilfully ill-treated Stephen Work in a manner likely to cause him unnecessary suffering. So that is what has to be proved beyond reasonable doubt.You do not have to be unanimous in relation to those matters specified as particulars. Particulars are not essential elements of the charge.(Emphasis added).

[67] Again, later in his summing up, the Judge said:

So counts 1 to 3 relate to a course of repetitive conduct in relation to each of the three children over a five months period.The particulars apply, and I confirm as correct what Ms Dunn said to you, that it is not necessary for the Crown to prove that all the items particularised occurred.If you find that one of the items particularised did occur and the accused was deliberately responsible for it, then that could form a proper basis on which to return a verdict of guilty.It could be you find that a number of the allegations have been proved.It may be that you are not satisfied on the evidence that you could conclude or determine guilt based upon the evidence, in which case then, of course, there would be a verdict of not guilty.

So, any one or more of those items matters particularised can form a factual basis upon which you can then go to determine whether the accused is guilty or not.You may find that there has been deprivation of food, cold baths and verbal abuse.You may find that it does not go so far as to result in wilful ill-treatment likely to cause unnecessary suffering.That is a matter for you. (Emphasis added).

[68] I turn now to s 195 of the Crimes Act.It reads as follows:

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.

[69] It is at once plain that the elements of the offence are five-fold:

* The accused must have the custody, control or charge of the child;

* The child must be under the age of 16;

* The accused must ill-treat or neglect the child;

* The ill-treatment or neglect must be wilful; and

* The ill-treatment or neglect of the child must be in a manner likely to cause the child unnecessary suffering...

Only the last three ingredients were in dispute in the present case.They are the ingredients which the jury had to be satisfied the Crown had established beyond reasonable doubt before returning a verdict of guilty.

[70] What is equally plain from a reading of the section is that the form which the ill-treatment might take is not an ingredient of the offence.Of course, the Crown must establish an evidential basis for the ill-treatment.The jury are required to then evaluate or assess whether the accused's treatment of the child amounts to ill-treatment having regard to the totality of the evidence and applying the standards prevalent in the community.It is on this basis that the jury must be satisfied beyond reasonable doubt that the child was wilfully ill-treated in a manner likely to cause him or her unnecessary suffering.

[71] The fact an evaluation is required as to whether the treatment amounts to ill-treatment for the purposes of s 195 tends to set this type of offence apart from those where an accused's act or omission constitutes, with the necessary mens rea, the actual offence.Thus, in cases of, say, assault, the Crown must establish that the accused applied force to the person of another without that person's consentNo evaluation is required.The action of the accused is either an assault or it is not.In cases of cruelty to a child, however, the Crown must establish the particular incident or course of conduct which it alleges amounts to ill-treatment.It is the jury's assessment of that evidence which will determine whether or not the accused's conduct amounts to ill-treatment.It is inevitable that in carrying out that evaluation individual jurors will focus on different aspects of the deceased's conduct.

[72] It is, therefore, an egregious error to seek to elevate the form the ill-treatment might take into an ingredient of the offence which must be proved beyond reasonable doubt to the satisfaction of the whole jury.The key requirement is that there is probative evidence on which the jury can be satisfied to the requisite standard of proof that the child was wilfully ill-treated in a manner likely to cause him or her unnecessary suffering.

[73] The fact that the evidence may disclose a number of forms or incidents of ill-treatment does not alter this basic principle.It matters not that one-half of the jury may conclude that the ill-treatment took one form of cruelty and the other half conclude that it took a different form if all 12 jurors are satisfied beyond reasonable doubt that the accused wilfully ill-treated the child so as to cause him or her unnecessary suffering.The core of the offence lies in the cruelty, not the particular form it may have taken.

[74] Crucially, however, the notion that the evidence in cases of cruelty under s 195 will fall into a number of discrete incidents is artificial and divorced from reality.Ill-treatment in the form of a single isolated act of cruelty is more often than not likely to be the subject of a separate charge.For the most part ill-treatment for the purposes of the section will comprise a course of conduct on the part of the parent or guardian.It will be an accumulation of incidents extending over a period of time.Some incidents will be less serious than others and, standing alone, not necessarily amount to ill-treatment.What the jury is required to do is to examine the evidence and be satisfied that the Crown have established beyond reasonable doubt that the course of conduct or accumulation of incidents constitutes wilful ill-treatment.In reality, the likelihood that the jury could reach unanimity on such aspects of the accused's conduct as can be isolated from the body of the evidence is remote. For the purpose of s 195 there is one crime, notwithstanding that there have been a number of incidents extending over a period of time.

[75] Nor is it necessary to require unanimous agreement on the form of the ill-treatment or particular incidents in order to determine whether the accused's actions were "wilful" or done "in a manner likely to cause the child unnecessary suffering".This argument is a non sequitur.All that is again required is that each juror be satisfied, not only that the accused's conduct on which he or she has focused amounts to ill-treatment, but also that it was wilful and likely to cause the child unnecessary suffering.Individual jurors may adopt a different route to that overall conclusion.

[76] The present case provides a paradigm example of the above principles. Ample evidence was adduced to show that the accused were responsible for a course of conduct in the household amounting to cruelty to the three children. It was a "boot camp" regime.Various forms of physical and mental abuse were established in evidence.The jury was entitled to conclude, irrespective of the fact that individual jurors may not have perceived particular items of evidence identically, that the course of conduct or regime amounted to wilful ill-treatment likely to cause the children unnecessary suffering.

[77] Particulars were provided by the Crown.But the fact particulars were furnished does not make them an ingredient of the offence.The purpose of the particulars was to fairly inform the accused of the case they had to meet.The particulars fixed the bounds of the evidence against them.They indicated the course of conduct or regime which, the Crown alleged, amounted to ill-treatment.In this respect, the particulars could just as well have read: "Physical and mental abuse in any one or more of the following respects ...".

[78] Furthermore, treating the particulars as an ingredient of the offence creates real difficulties.Where is the line to be drawn?Is it sufficient to stop at "mental abuse", or must specific incidents of mental abuse be established to the satisfaction of the whole jury?Take another example.The particulars refer to "cold baths".But there may have been, say, five, ten or 15 cold baths.Does this mean that the jury must be unanimously satisfied as to both the number of cold baths and particular incidents of cold baths established by the Crown?The notion is absurd.Yet this absurd outcome would seem to be a logical extension of the argument under scrutiny.

[79] In an admirable summing up, the trial Judge correctly instructed the jury on this issue.If anything, perhaps, the issue loomed larger than should have been the case, but this was to be expected having regard to the fact that it was raised with and argued before the Judge prior to the trial.It would have been sufficient for the Judge to have directed the jury that they must be satisfied beyond reasonable doubt that the Crown had established on the totality of the evidence that the accused had wilfully ill-treated the children in a manner likely to cause them unnecessary suffering, and that they must be unanimous on those three ingredients of the offence.Whether or not the accused's conduct amounted to ill-treatment would need to be determined in accordance with the contemporary standards of the community.

[80] Brown, supra, does not preclude this approach.In that case the appellant was charged with fraudulently inducing investments contrary to s 13 of the Prevention of Fraud (Investments) Act 1958 (UK).Particulars were given to the effect that the accused had fraudulently induced four persons to enter into agreements to acquire shares in a company by making misleading statements.Eveleigh LJ, as he then was, acknowledged that jurors may differ in their perception of the facts in arriving at an agreed verdict.In pertinent words, he stated (at 118-119) :

Different members of the jury may arrive at their conclusions by different routes.Far from invalidating their final conclusion, different approaches which lead to the same result may often be seen as strengthening the verdict. They may be able to say that, whichever way one looks at it, the case is proved.A juror may reach his conclusion by relying upon certain parts of the evidence and, having reached that conclusion, find it unnecessary to proceed to see whether he accepts other parts of the evidence.

[81] What was lacking in that case, however, was a direction that the jury had to be unanimous in relation to the misleading statement relied upon as an ingredient of the offence of inducing the investment (at 119).The other false statements were the means by which the accused had sought to convince the authorities concerned of the truth of that statement.They were themselves statements, "but not the statement relied upon as an ingredient in the offence" (at 118).The Court perceived them to be matters which on investigation would help to prove the falsity of the amount which the appellant had defrauded and go to prove knowledge and the dishonesty of the accused.

[82] Brown's case can therefore be distinguished.Ill-treatment is an essential ingredient of the present offence, and ill-treatment must be established, but the various forms or incidents of ill-treatment cannot be equated with the false statement in Brown which made up the inducement in the charge.In any event, Brown is not binding on this Court and it is open to the Court to prefer a more logical approach to a charge under s 195.

[83] To be fair to counsel, Mr Pyke did acknowledge in oral argument that Brown's case does not establish an absolute principle.Relying upon a passage in an article by Michael Bowes, "The Form of Indictments: Comments on the Law Commission's Consultation Paper" [1995] Crim LR 114, at 118, he submitted that the Judge in this case should have directed the jury that, while they did not have to be unanimous "across the board", they should be in full agreement that certain of the particulars had taken place and taken place more than once.As apparent in the exchange with the Bench, however, this submission simply became a complaint that the Judge had not sufficiently tailored his direction to fit the circumstances of the case.The submission in this form can be shortly rejected.Far from failing to tailor his summing up to the circumstances of the case, the Judge sought to meet the essential dispute between the Crown and the defence with an appropriate direction as to how the jury should approach the evidence relating to the various particulars of ill-treatment.My Pyke cannot escape the fact that it is the terms of that summing up which he basically disagrees with.

[84] A more realistic view was adopted by the Court of Appeal in R v Young (1993) 97 Cr App R 280.R v Young was a case of wilful cruelty to a child.The Crown alleged several different acts of cruelty and, on appeal, the appellants submitted that a Brown direction should have been given, requiring the jury to be unanimous as to the factual basis for their verdict.The Court disagreed.It referred to the submission that the Judge failed to direct the jury, in accordance with Brown,that they had to be unanimous as to the factual basis of any finding of guilt.The Court then stated that, in a case such as fraud, a jury must be directed that they should be unanimous as to the specific inducement upon which a verdict of guilty is to be founded (at 287).This did not mean, however, that in every case the jury must agree on the specific evidence that leads them to find a defendant guilty.In the present type of case, the Court held, "members of the jury may well differ as to the emphasis to place on different incidents in what is, after all, an allegation of a course of conduct.Provided that overall they are unanimous that cruelty in the sense alleged by the prosecution has been established, that is sufficient."I fully agree.

[85] This Court took a similar view in R v Ryder (1995) 13 CRNZ 81, where the trial Judge's summing up included the following passage (at 82):

Counsel said to you that you must be unanimous as to each fact relating to the injury.That is not correct.The requirement of being unanimous is that you must be unanimous as to the verdict you arrive at.It may well be that you have different views about particular parts of the evidence or particular facts.The important consideration is whether or not you are unanimous about the overall verdict based upon the facts as you individually find them.

The case involved the killing of a child in circumstances where the precise cause of death was difficult to ascertain. The Court expressly rejected the application of Brown (at 82-83).It held that the evidence may not necessarily have enabled the fatal kick or blow which had killed the child to be singled out, but the prosecution was not bound to assign a particular kick or blow as causative, it being enough to point to a range of possibilities. The jury was not required to agree on the precise mode of death as long as they were satisfied that the accused must have caused it with the requisite intent. The summing up was endorsed.

[86] Mr Raftery presented a persuasive argument for the Crown which confirmed me in my view that it is sufficient for the jury to be unanimous in respect of the essential ingredients of the offence only.I differed with him in one respect only.In an exchange with the Chief Justice, Mr Raftery contended that the issue was essentially a question of policy and that, having regard to the community's current awareness of and concern about the ill-treatment of children, the Court should not apply Brown's case to charges under s 195.

[87] I agree that the community is presently keenly conscious of the prevalence of child abuse and its disastrous consequences for those children who are its victims, and I agree that Brown's case should not be applied to charges under s 195.But I do not agree that the issue is one of policy.To my mind, the question is essentially one of logic.An accused is guilty if he or she has wilfully ill-treated a child in a manner likely to cause unnecessary suffering.Different views may be entertained as to the conduct which comprised that ill-treatment without detracting from the accused's guilt.If the jury is satisfied of the ingredients of the offence, then, 12 jurors have agreed that the accused is guilty of cruelty in terms of the section.The particular evidence which may have been accepted by individual jurors does not destroy their unanimity on the core elements of the charge and the guilt of the accused.The logic of the argument was conveyed by Turner J, delivering the judgment of the Court, in Thomas v The Queen [1972] NZLR 34, at 41:

While, as I have said, the presumption of innocence cannot be rebutted unless the members of the jury are individually and collectively convinced beyond reasonable doubt of the guilt of the accused, it does not logically follow that each of the members of the jury must base his or her individual conclusion upon the same reasoning as the others.Different members may individually be convinced beyond reasonable doubt of the guilt of the accused, by their individual acceptance of different facts.

[88] For the above reasons the Court is neither constrained by logic nor case law to impose an artificial and unrealistic requirement on the Crown in establishing the offence of cruelty to a child under s 195.

[89] I would dismiss the appeals against conviction.

[90] Since preparing the above judgment, I have received and read the judgments of Elias CJ and Anderson J.I would only add that, if it were necessary, I would be prepared to hold that Brown was wrongly decided. I endorse the realistic approach to the issue so succinctly articulated in the judgment of Anderson J.

Appeal against sentence

[91] Mr Pyke and Mr Knuckey appealed against the sentences of two and-a-half years and one years imprisonment imposed on Mr Mead and Mrs Molloy respectively.I consider both sentences fully merited.

[92] The trial Judge had the advantage of hearing the evidence and seeing the witnesses.He did not, of course, hear and see Mr Mead and Mrs Molloy as they elected not to give evidence.

[93] In sentencing Mr Mead the Judge observed that Mr Mead had imposed a regime of control over the three children that saw them subjected to severe cruelty over a number of months.He noted that at times they were deprived of food as punishment and, at other times, deprived of food for no particular reason.Mr Mead beat the three children using a leather belt, purportedly for the purpose of discipline.Occasionally, the food which the children were given was inedible. The Judge thought that the regime had distinct overtones of sadism.

[94] The Judge acknowledged that it was difficult to be entirely clear as to how often the children were subjected to specific acts of cruelty of the type particularised in the indictment.He believed, however, that it was clear that over a period of months in early 1999 the children at different times were required to carry out acts that in the final analysis left him, as it had left the jury, in no doubt that they had been subjected to wilful ill-treatment.He described the cruelty as being of a type that should never be permitted, sanctioned or justified in this country.

[95] The Judge further noted that Mr Mead had previously been found guilty of a charge of assaulting Stephen with intent to injure him when he had punched the boy in the head.Mr Mead was to be sentenced on that matter as well.

[96] The Judge referred to the separate charge relating to the force-feeding of Lorraine with powdered cloves by Mr Mead.He considered that the amount which had been used to force-feed the girl had been between half a standard spice packet through to two packets.He thought that, of all the cruelty the Court had heard during the course of the trial, this incident most clearly illustrated Mr Mead's sadistic approach to the care of the children.

[97] In imposing a sentence of two and-a-half years imprisonment on Mr Mead the Judge referred to the gross betrayal of trust on his part.He had imposed himself on these children while in the role of a stepfather.He noted the young age of the children and the duration of their ordeal.Finally, he expressed the view that a condign sentence was required to mark society's outrage that children had been treated in such a despicable way.

[98] In sentencing Mrs Molloy, the Judge acknowledged that she had been pregnant at times during the course of the period in issue and had been ill in bed.He also adverted to the view of the children, however, that she was not ill or indisposed throughout the whole of the relevant time, but simply lazy. She failed them by failing to protect them from Mr Mead.She had displayed a great deal of weakness at the start but in the end had shown a preference for the company of Mr Mead over what was best for her children.The Judge again considered that there was a distinct need for a sentence to be imposed which would mark society's outrage that a mother would allow her children to be treated in such a way.Mrs Molloy had also been convicted of assisting Mr Mead as he had administered the powdered cloves to her daughter.

[99] Referring to the victim impact statements, the Judge noted that the children appeared to be recovering well in the care of the grandparents.He did not doubt, however, that the harm which had been done to them would stay with them for the rest of their lives and affect their ability to ever form a loving relationship with their mother.

[100] Having regard to the cruelty shown towards the children, it is not possible to hold that the sentence of two and-a-half years imprisonment for Mr Mead was outside the sentencing range open to the Judge.Behaviour of this kind to innocent and defenceless children is not to be tolerated.A sentence is required which not only punishes Mr Mead for his cruel behaviour towards the three young children in his custody but also serves as a deterrent sentence and reflects the community's abhorrence of the ill-treatment of children.

[101] Nor would I interfere with Mrs Molloy's sentence of one years imprisonment.It is again well within the sentencing range open to the Judge. For the most part the Judge sentenced Mrs Molloy on the basis that she had failed to intervene to protect her children from Mr Mead's cruel treatment. Certainly, the children's victim impact statements reveal that each child has been acutely affected by the fact that their mother chose not to come to their aid.But the evidence does not exonerate Mrs Molloy to this extent.She was convicted of being a party to the force-feeding of the powdered cloves to her seven year old daughter.Further, the evidence of the accused's neighbour referred to above indicates that Mrs Molloy was on some occasions more than a passive participant in the ill-treatment of her children.The sentence of one year must stand.

[102] I would also dismiss the appeals against sentence.

ANDERSON J

[103] Having had the benefit of considering the other judgments in draft, I am generally in agreement with Thomas J for the legal reasons he has expressed.

[104] The issue in the appeals against conviction is amenable to persuasive but conflicting arguments which are, I think, ultimately resolved by invoking elementary principles, recognising the mischief at which s 195 of the Crimes Act 1961 is directed, having regard to the evidential realities in cases of child abuse, and appreciating the nature of a jury's function in this type of case.

Elementary principles

[105] The elementary principles include that the essential elements of a crime are defined by law, not evidence; that particulars in an indictment are of an evidential, not a legal, nature; and that juries have conventionally been entitled to reach a collective conclusion without individual members of the jury being unanimously satisfied as to the occurrence, weight or significance of the evidence, including parts of the evidence of a witness.There is no principled reason why it should be otherwise in respect of s 195 of the Crimes Act 1961.Rather, the evaluative and conclusionary nature of the offence suggests that the conventional view is entirely appropriate.

Statutory purpose

[106] The purpose of s 195 is to proscribe cruelty to children, not merely by single acts but by a course of conduct inflicted by those who have custody, control or charge of a child.Specific acts of cruelty might be met by specific offences such as the various types of neglect or degrees of assault referred to, for example, in Part VIII of the Crimes Act.But s 195 recognises the realities of child abuse within a relationship of adult authority where the accumulation of wilful ill-treatment or neglect may be obvious although the causes may be practically incapable of proof as individual offences or even incidents.

Evidential realities

[107] The evidential realities include the likelihood that the principal witnesses will often be the young victims of the domestic cruelty itself.For them the chronology and specificity of conduct which amounts to a regime of cruelty will be less significant than the harmful consequences.Their recollections are likely to be general, as indeed adults' would be, because of the very nature of chronic domestic cruelty.Analysis of discrete causative impact may be an unrealistic expectation.Moreover, the consequences of cruelty may be a combination of unnecessary suffering, actual bodily harm, injury to health, mental disorder or disability in ways that defy particular categorisation or relativity with each other but loudly bespeak combined damage.The likelihood of such cases indicates general evaluation rather than acute dissection of conduct.

Jury function

[108] Before convicting of cruelty to a child pursuant to s 195 of the Crimes Act 1961 a jury must be collectively satisfied beyond reasonable doubt that an accused has wilfully ill-treated or neglected the child or wilfully caused or permitted the child to be ill-treated; that the manner of the ill-treatment or neglect is likely to cause the child unnecessary suffering or actual bodily harm or injury to health or any mental disorder or disability. Often the ill-treatment or neglect will be of a chronic or repetitive nature importing a conclusion as to whether it amounts to ill-treatment or neglect. If so, it will then have to be evaluated as to its manner so that a conclusion might be reached as to its potential for harm as described in the section.It is inevitable that collective conclusions in respect of the essential elements will be informed by individual perceptions as to why a domestic regime will or will not be regarded as ill-treatment or neglect, or will or will not have the potential for the proscribed harm.It is in the very nature of a jury's verdict that it is a collective decision to which each subscribes, and not 12 separate decisions which exactly coincide in their reasoning as well as in their results.

[109] If the jury has to be unanimously satisfied as to particulars, to what standard must each be satisfied?And if each must be satisfied as to the proof of a particular, must there be unanimity as to the weight or significance of the particular in respect of the conclusion?In my view, with respect, there cannot sensibly be any such requirements.Whilst juries might ponder endlessly or unavailingly over unanimity as to particulars, child abuse, manifest in its consequences, might be overlooked in its substance.The proposition, unsound in respect of any other type of offence, that particulars are essential seems wholly inappropriate in cases requiring the evaluation of conduct, not just a single act, in relation to the safety of children.

Conclusion

[110] And so, for realistic reasons, I consider that the Judge's direction to the jury in the particular case, concerned as it was with allegations of a course of conduct, was correct.Nor do I consider there to be any legal authority inconsistent with this view.Even if Brown's case were on point it would not bind this Court, but it is not on point.In that case each "particular" was an act which if proved in fact would constitute an essential ingredient.Each statement could support a discrete count and did not involve a conclusion as to a course of conduct.In my view the decision of the English Court of Appeal is responsive to the injustice of five alleged discrete offences being rolled up into one count in the indictment.An alleged course of cruelty, such as the present, is clearly distinguishable from that type of situation.

[111] Accordingly I would dismiss the appeals against conviction and for the reasons articulated by Thomas J I would also dismiss the appeals against sentence.

Solicitors

Meredith Connell, Auckland for Crown

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