THE QUEEN v LANDLES HAIMONA ROPIHA [2003] NZCA 165 (29 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 339/01

THE QUEEN

v

LANDLES HAIMONA ROPIHA

Hearing: 21 July 2003

Coram: BlanchardJ

Laurenson J

Doogue J

Appearances: R M Mansfield for Appellant

G C de Graaf for Crown

Judgment: 29 July 2003

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

Introduction

[1]	The appellant has appealed against his conviction for the murder of an 11 month old child in the early hours of 26 November 2000.
[2]	There are two grounds of appeal:
a)	His counsel at trial did not act competently when presenting his defence;
b)	The trial Judge misdirected the jury when answering a question as to what constituted reasonable doubt.
[3]	As to the first ground, the appellant has provided a waiver of privilege and an affidavit has been obtained from his trial counsel.

Factual background

[4]	The appellant was born on 22 June 1984.He was 16 at the time of the murder on 26 November 2000.On that night he was present in his parents’ home with his 21 year old girl-friend of some two years, Katrina Briggs, and the victim, her 11 month old son Jordan.Also present was a 17 year old friend of the Appellant, Robert Paul.
[5]	The mother had gone to bed in a room which she shared with the appellant and the child, some time about midnight.The child was asleep in that room.The appellant and his friend Paul stayed up playing games on a play-station in another bedroom.
[6]	At approximately 6 am the appellant woke the mother and told her that the child appeared to be injured and in a bad state.Ambulance help was obtained and the child was taken to hospital where he died at 4.30 pm the following day.
[7]	A post mortem examination revealed that he had suffered extensive and severe injuries to his head, which had caused his death.The nature of those injuries was such that, in the opinion of the pathologist, they could not have been caused accidentally and must have resulted from numerous, very forceful, impacts.
[8]	The primary issue in this trial was who had caused those injuries.
[9]	The appellant was interviewed at length by Police officers on three occasions, namely on 26 and 28 November 2000 and 6 February 2001.A Justice of the Peace was present on the first occasion and his mother on the remaining two.He denied that he had dealt with the child in any way which could have caused the injuries.He referred to the following sequence of events:
a)	The child had been put to bed about 9 pm in the bedroom shared by him and the mother;
b)	The mother had gone to bed about midnight;
c)	The appellant continued playing at the play-station with Robert Paul in another bedroom;
d)	At some point he heard the child crying.He went to the bedroom and took him to his parents’ bedroom where he placed him between two pillows where he went to sleep.He had covered the child with a blanket and a jacket.
e)	At some point he and Paul heard a noise.He went to his parents’ room and found the child on the floor with a video lying next to him.The video had previously been on the bed.The child was crying so he walked him around the house before taking him back to the mother’s room where he put the child down in another bed.
f)	He woke the mother and told her what had happened.He then returned to the play-station with his friend;
g)	About two hours later he returned to the child and noticed he was not breathing properly.He stayed up with him for nearly two and a half hours.Finally he picked the child up and walked him around the house until about 6 a.m. when he found the child was not breathing properly and was obviously in trouble.He woke his friend and the mother and then endeavoured to resuscitate the child until help arrived.
[10]	The appellant said that he thought the child had received the injuries after falling off the bed in the parents’ room and when, somehow, the video on the edge of the bed had fallen on him.
[11]	He later agreed that he had used a tissue to wipe blood from the child’s mouth.He denied seeing blood on the floor near the parents’ bed.
[12]	Robert Paul confirmed that he too had heard a noise “like dropping a book or something”, and that the appellant had left the room for about ten minutes.He had not said anything to Paul on his return.The child had cried for about ten minutes during which time the appellant had gone into the mother’s room.Apart from that he had heard no other crying.He had not left the play-station room until he went to bed about three, shortly after the appellant.Apart from going outside to have a cigarette on several occasions with the appellant, he had remained in the play-station room throughout.He had gone to sleep until woken by the appellant asking for his help.He then went with the appellant into the mother’s room.He saw that the child was pale and there was a small bruise around his right cheek.
[13]	The mother confirmed:
a)	Putting the child to bed about 9 pm;
b)	Going to bed herself about midnight;
c)	Being woken twice by the appellant.The first occasion was when he had come and spoken to her for 10 to 15 minutes.The second occasion was, she thought, about 3 a.m. when the appellant told her that the child had woken up and that he had taken him into his parents’ room.He said the child had fallen off the bed and the video had fallen onto him, or had been pulled onto him.
d)	She heard the child at this point making moaning noises whilst seemingly asleep.She asked the appellant to keep an eye on him;
e)	She had returned to sleep until woken by the appellant yelling out to her from his parents’ room.
[14]	The Crown’s case against the appellant was based principally on the opportunity for the appellant to cause the injuries allied to a lack of opportunity for either Robert Paul or the mother to do so.A jacket with which the Appellant was associated, was found in the house.On it were several areas of blood spotting on the outside and also an area of blood spattering on the reverse side.The blood in each case was the infant’s.

The first ground of appeal – failure by trial counsel to adequately present the appellant’s denial that he was responsible for the injuries

[15]	It was common ground that trial counsel’s instructions were that the appellant did not kill the baby.He thought it was an accident but if it was not he did not know who killed the baby.It was submitted first, that trial counsel had failed to adequately pursue, in cross-examination, the possibility that either Robert Paul or the mother had been responsible for causing the injuries and, secondly, that the failure to do so amounted to both a failure to follow instructions and a radical mistake:see R v Accused (CA467/97), 16 June 1998.
[16]	The appellant’s counsel submitted there are a number of matters upon which the mother could have been cross-examined with a view to establishing that there was a possibility she may have been responsible for the child’s injuries, namely:
a)	The periods of time when she was alone with the child;
b)	Concerns as to her ability to care for the child;
c)	A previous incident about a month before when the child had sustained bruising to the back of the head;
d)	Another uninvestigated incident involving an injury to another of her children attributed, at the time, to that child’s father;
e)	A possibility she suffered from depression.
[17]	The notes of evidence reveal that, apart from a passing reference to the mother having been alone with the child, none of the above matters was explored.
[18]	The friend, Robert Paul, was not cross-examined at all.But on this appeal it was not suggested that he could have been responsible for the child’s injuries.It was accepted that he had had no real contact with the child.
[19]	It was submitted that this was a case where the appeal should be allowed on the ground there had been a miscarriage of justice pursuant to s.385(1)(c) of the Crimes Act 1961.
[20]	There is a further and rather unusual factor involved.According to the trial Judge’s bench notes, defence counsel had raised with him a matter in chambers before the trial resumed on the second day.The Judge noted that defence counsel indicated his “present intention is, in his final address to the jury, to suggest to them that the accused was not responsible for Jordan’s death, but rather that one of the other two in the house that night might have been”, and, the “current intention is not to accuse the other two directly of the death in cross-examination”, and he “wants there to be no consequences from him adopting that line, that is to say he wants to pursue that tactic without any risk of comment from me in my summing up and without complaint from the Crown”.

Not surprisingly neither the trial Judge nor the Crown was prepared to give any assurances in this regard.

[21]	Following the completion of the cross-examination of the mother the trial Judge asked to see counsel in chambers where he recorded the following note:

[Defence counsel] indicated that he had completed his cross-examination of Ms Briggs.At that point I asked the jury to retire and I cleared the Court to sit in chambers.Ms Briggs has been taken under the wing of the officer in charge who has been asked not to speak to her.

I then raised with [defence counsel] in the presence of the accused, the question as to whether the cross-examination went far enough if he later intended to make a submission that Ms Briggs could have been responsible for Jordan’s death.I said to him that what(sic) I was far from deciding the matter, and still had an open mind, I was concerned that the cross-examination might not have gone far enough.

He replied that in line with the discussion we had earlier today, he had discussed a possible cross-examination with [the Crown] and that [the Crown] had indicated that if [counsel] conducted the cross-examination in the way in which he had in fact now done, that ought to suffice from the Crown’s point of view.That is to say, the Crown would not ask for the sort of direction referred to at page 8 of the Bench Note Transcript.[Crown counsel] confirmed that this was the case.

In light of counsel’s agreement, I am content to leave matters as they are.

I raised this matter at this point before re-examination commenced so as to give [defence counsel] the opportunity to consider the position prior to completing absolutely his cross-examination.I did this out of concern of fairness to the accused, I was not aware of counsel’s agreement on this topic.

[22]	Prior to the trial Judge summing up, counsel asked to see him in chambers in respect of which the following was recorded:

After the jury retired, I asked counsel in the normal way whether there was any matter on which they felt that I had inaccurately stated the law or unfairly summarised their respective cases.

[Crown counsel] indicated that she had no concerns.[Counsel] on behalf of the defence, indicated that he had one concern.That concerned a comment I made to the jury when considering issue 2, that while it was a matter for the jury “there would seem no doubt that it is in that bedroom [Mr Ropiha’s parents’ bedroom] that harm befell Jordan”.

[Defence counsel] submits that it is part of the defence case that the fatal injuries were not necessarily caused in that bedroom.The first line of defence is that the injuries were the result of accident caused when Jordan fell from the bed or when the video recorder fell on him, or a combination of the two.Those events, without dispute, if they happened, happened in the master bedroom.

The second line of defence is that if human agency was involved in Jordan’s death, and then one cannot be certain that the fatal acts did occur in the master bedroom.The defence argument is, that the tearing of the fraenulum which caused the blood, must have happened in the master bedroom, but that that act may have occurred at a different time from the injuries to the back of the head which caused Jordan’s death.It is possible the defence says, that the injuries to the back of the head occurred somewhere other than the master bedroom and there is a possibility that they could have occurred in Katrina’s bedroom.It is further possible the defence says, that different people may have caused the injury to the fraenulum, and the injury to the back of the head.Alternatively the injury to the fraenulum may have been caused by accident while the injury to the back of the head was through human agency.

I must confess that I have not previously understood the subtlety of this argument.It is certainly not referred to in the evidence, but it is, I suppose, something that might be drawn from the evidence that we do have.In fairness to the defence I have decided to recall the jury to explain this further to them.

I have now planned what I will say to the jury on this topic and have read this to counsel.[Defence counsel] has indicated that what I plan to say is acceptable to the defence.[Crown counsel] has some concerns that I am now going too far in the defence favour and that it has never previously been suggested that the fatal injuries could have been caused in Katrina Brigg’s bedroom.I am not sure that this is right because, [Defence counsel] tells me, he did throw open that possibility in his final submissions.[Crown counsel’s] rejoinder to that is that there was no evidence on this topic.

I agree that the evidence on this whole issue is extremely skimpy and it comes about, in my view, because matters were not adequately put to Ms Briggs in cross-examination.That was a matter I expressly raised with counsel immediately prior to the formal conclusion of that cross-examination(see Bench Note transcript at pages 9 and 10).I did not take the matter further because of the agreement there recorded by which the [Crown] accepted that [defence counsel’s] cross-examination did go far enough for him to be able to make a submission that Ms Briggs could have been responsible for Jordan’s death.

[Defence counsel] has relied on that concession from the Crown and the Crown cannot now resile from it.Obviously, if [defence counsel] can make a submission that Ms Briggs could have been responsible for Jordan’s death, it must be open for him to submit where her acts might have taken place.

For those reasons I am prepared to make the statement that I have indicated to counsel and I will now recall the jury in order to make that statement.

[23]	The appellant’s counsel now submits that even though trial defence counsel may have ensured that his submission that one of the other two may have caused the death did not attract adverse comment from the Judge, that is simply not enough.It was not enough, because he had failed to give any substance to the submission when cross-examining.Put simply, if the accusations were not put to the relevant witnesses, no jury was likely to give a submission that they might have been responsible, any weight at all.
[24]	Crown counsel submitted that, once the medical evidence had made it clear that the child’s death could not have been caused accidentally, there remained only two defences which could be put forward.First, the primary defence put forward by the appellant, that he was simply not responsible for the death, and secondly that, if the jury found he was, then there was an issue as to whether it could be proved that the appellant had the necessary murderous intent.
[25]	As to the primary defence, the Crown submitted:
a)	That although there were periods of time when the mother could have had access to the child there was no evidence at all to suggest she had not been asleep at all relevant times;
b)	Her evidence in this regard was confirmed, in part, by both the appellant and the friend, Robert Paul;
c)	More particularly, the appellant repeatedly confirmed in his video interviews that he was the only person who had been responsible for the child and had actually tended to him, certainly after he had removed the child into the parents’ bedroom;and that he himself repeatedly said that the mother had been asleep at critical times.
d)	Whilst admittedly trial counsel had not cross-examined the mother at any length, he had, nevertheless, done so sufficiently to leave open to the jury that there had been periods when the mother was either alone with the child or could have had access to him, unbeknown to the appellant and Robert Paul.
e)	The trial Judge had, in turn, referred clearly to these matters in summing up.
f)	Trial counsel was in a difficult position in trying to maintain both defences because, if the mother had been taxed more rigorously as to her opportunities to harm the child, then if this failed any sympathy the jury may have had for the appellant would have been so undermined that to expect it to view what was, in effect, an alternative defence of lack of murderous intent, would have been seriously undermined.
g)	In short, trial counsel, faced with this difficulty, had endeavoured to respect his instructions as to the primary defence, but in such a way that could hopefully still attract the jury’s sympathy towards a young accused and thereby secure a verdict of manslaughter.
h)	In these circumstances, even if trial counsel had misjudged the position, the alleged failure to cross-examine the mother could not be regarded as a crucial or fundamental failure.Rather, it was at worst a tactical error which was both explicable and understandable in the circumstances.

Second Ground of Appeal – failure to carry out further investigations

[26]

The second ground of appeal related to the failure by trial counsel to investigate in any way the circumstances surrounding the alleged ill-treatment of the mother’s other child.Although this was said to be attributed to the father, this was not something which could be assumed.Although the appellant’s counsel had instigated enquiries regarding this matter, he had been unsuccessful in obtaining any information.This ground of appeal was, therefore, abandoned.

Third Ground of Appeal – misdirection by trial Judge

[27]	The third ground of appeal related to a submission that the trial Judge had misdirected the jury in relation to a question after the jury had retired.This is recorded in a Bench Note as follows:

Those first two questions read as follows:

‘Could you please further explain the concept of beyond reasonable doubt?Does the remote possibility of some other explanation mean that beyond reasonable doubt cannot be achieved?’

What I said to you on the topic of the standard of proof was this:

‘The law is that the Crown must prove each essential ingredient of the charge beyond reasonable doubt before you can bring in a verdict of guilty.To be satisfied beyond reasonable doubt means that you feel sure that the accused is guilty of the charge.’

I repeat those words to you because they do encapsulate what the standard is: that you feel sure that the accused is guilty of the charge.But let me try, briefly, to give a little further guidance.The Crown does not have to prove each element of the charge as a certainty.Nor does the Crown have to eliminate remote or fanciful doubts, remote or fanciful possibilities.The Crown must, however, prove each element beyond reasonable doubt.That is, if you entertain, after considering all the evidence, a reasonable doubt, not a remote or fanciful doubt, but a reasonable doubt, then the Crown will not have proved that element of the charge to the required standard.

[28]	The appellant’s counsel submitted that the answer amounted to a direction that if the jury or some of its members had a remote doubt as described, that wasn’t a ‘reasonable doubt’ and they should convict.His Honour’s answer was said to be the very type of direction that the Court criticised in R v Manhaas CA 228/98, 3 September 1998 and clearly could have prejudiced the accused.
[29]	In Manhaasthe Court had criticised a direction which said that the jury should not seize upon “some insubstantial weak or thin doubt”.The Court held that the direction could have prejudiced the accused “because the terms used were capable of elastic meaning.”
[30]	Appellant’s counsel submitted that in the context of this case the direction was particularly important for the following reasons:
a)	The Crown case had depended almost entirely on whether or not it could prove beyond reasonable doubt that the appellant was the only person who had had the opportunity to harm the child;
b)	Realistically the only other person in the house who could have had the opportunity to do so was the mother;
c)	This possibility had been left open to them in the Judge’s summing up.
d)	For the reasons referred to by the Crown, it was entirely realistic to conclude that the jury regarded this possibility as being remote and it was for this reason they sought further guidance from the Judge.
e)	The effect of the direction was to equate “remote” with fanciful.
f)	A remote possibility can be reasonable, whereas a fanciful possibility cannot.
g)	Therefore, a direction that a remote and a fanciful possibility were the same was wrong in law.
h)	In short, the effect of the direction was to effectively deprive the appellant of a finding of not guilty of murder because a remote doubt which may have been harboured by the jury was not, as directed by the Judge, a reasonable doubt.
[31]	Crown counsel submitted, in reply, that any direction in relation to the vexed question of what amounts to a reasonable doubt can only be considered within the context of the particular case and by reference to the entirety of the direction.Reference was made to R v Ross CA224/98, 18 March 1999 where the Court said at para [18]:

On issues of misdirection it is elementary that what has to be assessed is the effect, taken as a whole, of the summing up on the particular issue under consideration.In Walters v The Queen [1969] 2 AC 26, 30 the Privy Council approved the following passage from the judgment of Lord Goddard CJ in R v Kritz [1950] 1 KB 82:

It is not the particular formula that matters:it is the effect of the summing-up.If the jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the Judge uses one form of language or another is neither here nor there.

Viewed in this light, the Crown submitted that whilst it may have been better for the direction to have referred to a vague or fanciful doubt, the effect in this case was not to create a misdirection.There were two reasons for this:

a)	The direction had to be read in the context of the Judge’s repeated emphasis that when considering the issues in this case they, the jury, had to be sure that the Crown had proved each element.Reference was made in this regard to a question sheet supplied by the Judge to the jury in which each question was begun with the words, “Are you sure that”....
b)	The wording of the direction, viewed in its entirety, came down to a direction that a remote doubt was not a reasonable doubt if it was fanciful.

Discussion

[32]	The critical question on the first ground of appeal is whether trial counsel did justice to his instruction that the appellant did not kill the child.In particular, should he have endeavoured to provide a more substantial basis for his later submission that the nature of the mother’s opportunity to harm the child was such that the jury would be entitled to find a reasonable doubt that it was the appellant who was responsible;
[33]	The accused was, of course, not required to prove his innocence.However, there was a need for the defence to point to some circumstance which raised a reasonable doubt.The appellant has submitted that whilst trial counsel did ensure that the possibility of the mother’s involvement remained open, without more explanation of the matter in cross-examination, mere reference to that possibility was, realistically speaking, not enough.
[34]	In this regard we observe that the effect of the cross-examination of the mother was, in effect, that she merely repeated her denial of any involvement, which was, of course, the Crown case.
[35]	Importantly, we also note that the appellant very clearly denied any attempt on his part to protect the mother by covering up for her.
[36]	In these circumstances we have considered what else the defence could have been expected to obtain under cross-examination which could have provided more of a basis to raise a reasonable doubt by reference to the mother’s opportunity.
[37]	Having considered the issue in this light, and against the background of the available evidence, we are unable to discern any single matter by reason of which there could have been any realistic chance of assisting the defence.On the contrary, we consider any attempt to do so would have been met by further denials from the mother which would have served only to emphasise the lack of real (as opposed to theoretical) opportunity on her part.
[38]	Assuming this to have been the assessment of trial counsel, we are unable to find there was any failure on his part, let alone one which was crucial or radical.Furthermore, having preserved the defence as instructed by his client, he then set about putting together the defence which he probably favoured and which appears to have been his client’s only realistic chance of avoiding a murder verdict. He did so by establishing the fact of the mother’s opportunity, but without attacking her and thereby forfeiting any possibility of sympathy for the appellant which may have been forthcoming by reason of his age and general circumstances.
[39]	We therefore find that the appeal on the first ground must fail.
[40]	Having reached this conclusion we wish to note three matters:
a)	The grounds advanced justified consideration by this Court.Mr Mansfield did so temperately and appropriately,
b)	We are conscious that in appeals based principally on the ground of counsel’s alleged incompetence, there can be a danger of viewing matters with the advantage of hindsight, and in the absence of the stress which inevitably attends the actual trial.
c)	We are grateful for the careful attention given to this appeal by both counsel.

The Judge’s direction

[41]

We have referred to the arguments presented by counsel in this matter.It is unnecessary to repeat these because we are satisfied that the arguments advanced by the Crown identify the correct position namely, that the overall effect of the direction in this case was that the jury would have understood that the Judge was equating a remote possibility with a fanciful possibility and would, crucially, have understood the essential need to be sure of the accused’s guilt.We accordingly find that the second ground must also fail.

Decision

[42]	For the above reasons the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington