The Queen v Meynell [2003] NZCA 262; [2004] 1 NZLR 507; (2003) 20 CRNZ 526 (13 November 2003)

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The Queen v Meynell [2003] NZCA 262 (13 November 2003); [2004] 1 NZLR 507; (2003) 20 CRNZ 526

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/03THE QUEEN

v

RAYMOND OWEN MEYNELL

Hearing: 15 September 2003

Coram: McGrath J Hammond J Ronald Young J

Appearances: D J La Hood for Appellant
G C de Graaff for Crown

Judgment: 13 November 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] On 18 March 1999 Mr Meynell was convicted of the murder of his partner’s son and sentenced to life imprisonment. On 22 July 1999, after consideration on the papers, his appeal against conviction was dismissed, the appellant having been refused legal aid and being unrepresented. Under the Crimes (Criminal Appeals) Amendment Act 2001, the appeal has now been heard with the appellant being represented by counsel.

Facts

[2] The appellant had formed a relationship with his partner shortly after the birth of her son Nivek. The couple lived together at Huntly with Nivek and his two other siblings. On 9 February 1998, when he was aged 16 months, Nivek was found by his mother to be unconscious in the bath at the home. The probable cause of death, revealed in a post mortem on the same day, was a laceration to the liver which had resulted from a blow struck between one hour and 24 hours before death. The appellant was subsequently charged with murdering him.
[3] The victim’s mother gave evidence at the appellant’s trial that, at about 7am on the morning of Nivek’s death, she and the appellant had awoken and heard Nivek crying in the bedroom next door. The appellant offered to attend to the child and he got up and went into the bedroom. The mother heard the appellant abuse the child and tell him to “shut-up”. Following that, the nature of her son’s crying had changed, becoming a squeal as if he had been hurt. It continued for a short period.
[4] The appellant then ran a bath and the mother saw him carrying Nivek to it. She noticed that the child had bruises on his face and cheeks which she had not seen the day before. Shortly afterwards one of the other children called out that Nivek’s head was underwater in the bath. His mother rushed in, picked the child up and attempted to resuscitate him. The child’s head was very floppy and his lips had started turning blue. The appellant and the child’s mother then took him to a near-by medical centre. A nurse attempted CPR but there was no response, and Nivek was confirmed dead at about 8.30am.
[5] The pathologist’s view was that the child’s death was caused by an injury suffered to the child’s liver with consequent blood loss and shock. The injury appeared consistent with delivery of a blow to the abdomen administered with considerable force. The blow had transected the left lobe of the liver.
[6] The appellant was arrested and charged with murder. The Crown alleged that the appellant had hit the child that morning and that the blow had caused his death. The appellant maintained that someone else, probably his partner the child’s mother, had delivered the fatal blow.
[7] These events occurred in the context of a series of assaults over the previous 10 days against both Nivek and his mother. As a result of the police investigation the appellant was also charged with assaulting the child on 31 January and 7 February. He pleaded guilty to both these charges. Evidence of the circumstances giving rise to them was called at the trial but not the fact that he had pleaded guilty to the charges. The appellant defended the murder charge at his trial in the High Court but was convicted by the jury.

Grounds of appeal

[8] The appellant raises four grounds of appeal which he says that, separately or in combination, led to a substantial miscarriage of justice. His counsel, Mr La Hood, who was not his trial counsel, argues first that the evidence of the prior assaults on the child was wrongly admitted under the res gestae doctrine. Secondly, he submits that the trial Judge wrongly admitted evidence of previous assaults on the child’s mother in re-examination. Thirdly, he says that the Judge’s direction on s167(b) of the Crimes Act 1961 was inadequate. Finally, counsel submits that the summing up overall was unbalanced and unfair.

Evidence of prior assaults on the child

[9] In her statement to the police shortly after her child’s death the child’s mother described two earlier incidents of violence to the child by the appellant. The first took place on the morning of Saturday 31 January 1998 when the mother was in the kitchen. The appellant was bathing Nivek in the adjacent bathroom. The mother heard the appellant loudly say to her son “toughen up you are nothing but a wimp,” and “you need to toughen up you little black bastard.” The child was crying. Then she heard a crash against the wall, between the kitchen and the bathroom, and a cry. The mother ran into the bathroom and saw her son lying on the floor against the wall. She asked the appellant why he had done what he did and the appellant replied “because he needs toughening up”. The child was wet and crying but did not appear to be injured.
[10] The second incident recounted by the mother took place on Saturday 7 February 1998, two days before the child died. The appellant stood Nivek up in front of him, as he had on other occasions. When Nivek did not walk towards him the appellant kicked his legs from underneath the child and told him to get up and walk. On this occasion he also called him “a lazy little bastard”.
[11] Prior to trial the appellant had pleaded guilty to two counts of assault with intent to injure in respect of the two incidents. Evidence of those two assaults by the appellant on the child during the period of ten days before his death was held admissible in a pre-trial ruling by the trial Judge on 24 November 1998. The Judge gave reasons for his ruling on 1 December 1998. After reviewing the authorities on the scope of the res gestae doctrine the Judge said:

I consider that these earlier events, because of their proximity in time to the event in issue, can be regarded as part of the same overall transaction. They form part of the story. They tend to explain what the Crown alleges occurred at the hands of the accused on the morning of Monday 9 February. The intended evidence is relevant to the ultimate issues in the case. Evidence of these events will assist the jury in its choice between the two explanations of the occurrence, namely whether the accused did it or whether the mother did it – after all there were only two persons present...

The intended evidence tends to show that the relationship between the accused and Nivek was one of hostility accompanied by violence. That is the mixture which the Crown put forward in relation to the events of 9 February. The Crown is not simply saying that the accused has a propensity for violence. Its case goes further than that. The prosecution says that the accused had a hostile attitude to Nivek and that when exhibiting that attitude the accused was violent towards the child.

[12] He observed that the evidence was relevant to identity, to whether the accused had murderous intent, and to negativing accident. While the defence was to be one of identity, the other issues remained relevant. Because of his conclusions on the scope of the res gestae, the Judge considered it unnecessary to test the evidence against the similar facts rule.
[13] Mr La Hood argued that the distance in time between the earlier events and those leading to the child’s death was too great for them to be relevant to the death of the child. Given the different nature of the previous incidents, he also submitted that the prejudicial effect of the evidence outweighed its probative value.
[14] Ms de Graaff, for the Crown, adopted the reasoning of the Judge, and relied upon three recent Court of Appeal decisions as showing that the Judge’s approach was correct in the circumstances of this case.
[15] The res gestae principle allows evidence which is otherwise inadmissible to be admitted in order to give a true picture of the event which is the subject of the charge against an accused at a trial. In Ratten v R [1972] AC 378, 388 Lord Wilberforce, delivering the advice of the Privy Counsel, observed that in the context of the law of evidence the expression “res gestae” may be used in at least three different ways. Two were concerned with evidence of spoken words as opposed from the truth of what they conveyed, and a hearsay statement made either by a victim or a bystander indicating the identity of the attacker. Of the other Lord Wilberforce said:

When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing in a broader sense, what was happening. Thus in O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J said at p.577:

Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.

[16] Although some criticism has been levelled at the scope of the application of the principle in relation to earlier explanatory acts, it is well established that it allows evidence of surrounding offences to be admitted in spite of dangers associated with historical similar fact evidence.
[17] In New Zealand in R v Karetai [1988] NZCA 129; (1988) 3 CRNZ 564, 566 Cooke P said that while certain similar fact evidence was inadmissible as such it was rightly admitted in that case because:

...in one sense in which that term is used it was part of the res gestae. That is to say part of the facts surrounding or accompanying a transaction which this is the subject of legal proceedings; or a fact so connected with the facts in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction.

[18] As well, in R v Accused [1992] 2 NZLR 187, 191 this Court said:

In as much as A’s evidence could not be specifically linked to any of the three remaining charges, it can perhaps be described as similar fact evidence, although it can equally be described as part of the relevant history or res gestae. We do not consider that it matters which description is used. While the description “similar fact” and the associated one “strikingly similar” have been used in New Zealand in the past, largely in deference to English authority, and no doubt will continue to be used as convenient labels, the real question is always whether, as a matter of common sense the evidence is sufficiently supportive of the prosecution case to justify allowing it going to the jury notwithstanding any illegitimate prejudicial effect it may have.

[19] R v Manuel (CA288/97, 9 September 1997) was a pre-trial appeal against a ruling that evidence was admissible of prior violence by the female accused against her male partner on three occasions during the 2½ year period prior to his death. The Court saw the earlier violent episodes as part of the relevant history to the charge of murder and regarded them as directly relevant to her state of mind at the time of the victim’s death. The Crown contended she had acted violently, and the Court accepted that evidence of uncontrolled and violent behaviour in the earlier domestic altercations supported that assertion. It showed she was not physically subordinate in the relationship and tended to confirm that the deceased was not necessarily the leading or more aggressive partner in resorting to violence. The Court decided that the jury would be presented with an incomplete picture if the evidence of the previous incidents was excluded. The approach taken in R v Accused, as set out above, was applied.
[20] In the present case in his pre-trial ruling the Judge said:

The proximity in time of the two prior incidents was such that they formed part of the same overall transaction. The evidence was of relevance in particular to whether it was the accused who was responsible for the blow that killed the child or whether the mother had done it there being only two persons present. The evidence tended to show the relationship between the accused and the child was one of “hostility accompanied by violence”. It was relevant to the Crown case that the accused had a hostile attitude to the child and when exhibiting it he was violent to the child. This took the evidence beyond that of a mere propensity for violence and made it relevant at the trial. As it was part of the res gestae it could be received even though it tended to show bad disposition by the accused.

[21] Towards the end of this ruling there is a suggestion by the Judge that the evidence of previous assaults on the child might be relevant to the question of whether the accused had murderous intent under either s167(a) or s167(b). The present question for the Court turns on the relevance of the evidence of the prior incidents to the question of which of the two persons who might have been responsible for administering the blow that killed the child did so. At the trial the issue of intention had been concerned with the state of mind of that person at the time the blow was struck. It was not seriously suggested that the blow was the result of an accident. In those circumstances we do not see that there was a legitimate use of the prior material as evidence of murderous intent under the Act. In the present case it was the reckless intent element which was most likely to be focussed on by the jury.
[22] On the other hand the two prior incidents were relevant material which might assist the jury in relation to the appellant’s attitude to the deceased child. Evidence of them could complete the picture of the family situation over a period which is very near to the time and place in which the crucial events occurred. Having that full picture would be advantageous in the context of a case where it was almost certain that one of two people known to be in the house at the time was responsible for the death.
[23] We are satisfied that the events concerned were part of the relevant history in providing background to the domestic situation in which the death concerned took place which was highly relevant to the crucial issue in the case. It also goes directly to the relationship between the appellant and the deceased child and his attitude to the child and thus removes the evidence from being characterised as being of only a propensity character. Without the assistance of evidence of the two incidents, one of which of course was more serious in its nature than the other, the jury would have been inappropriately disadvantaged in deciding on the crucial issue of identity. In this way the evidence was also sufficiently supportive of the Crown case to justify its admission despite the risk of illegitimate prejudice.
[24] As the Judge’s suggestion in his earlier ruling that the evidence might be directly relevant to intention was not carried through to his summing up it does not raise an issue which requires a finding from us.
[25] This ground of appeal accordingly fails.

Evidence of prior assault on the mother

[26] Prior to the trial the Crown had accepted that evidence relating to assaults on the mother on 31 January and 7 February 1998 was inadmissible but it also signalled that it might alter that stance, at a later stage, depending on the conduct of the defence. At the trial defence counsel cross-examined the mother on the basis that her version of events on the morning that the child died had changed when the police asked if she had caused the injuries to her son. In particular defence counsel suggested that it was she who had gone into the child’s bedroom and put Nivek in the bath that morning and not the appellant. Defence counsel also put to her in cross-examination that the appellant was “really good with the children” and that she had made a statement to the police that she had “never seen him hit the children”. The mother was also cross-examined on whether she was being interviewed as a witness or as a suspect and on whether she had made allegations concerning the appellant to the police because she wanted to protect herself or a third person.
[27] The background to this line of cross-examination is that the mother had been interviewed on the morning that her child had died. A written statement was taken from her in which she said that she had never seen the accused hit the children, that being something he left her to do because he was not their father. She also said that if the children were naughty he would send them to their room. In her sworn testimony at trial, however, she had referred to acts of violence to her as well as Nivek on the part of the accused on 31 January and 7 February.
[28] In the course of the cross-examination she said that she had made the original statement because she was scared. The accused had threatened her that if she said anything against him he would come back and kill her. She denied she had changed the story at the point when she had been asked if she had caused the child’s death or because she wanted to protect herself or someone else.
[29] At the conclusion of the cross-examination the Crown applied to re-examine the witness on these matters. The Judge gave leave to re-examine in relation to the two incidents concerning the mother on the days in question. The incident on 31 January had taken place shortly after the mother had retrieved her son from the bathroom floor. According to the mother there had been an interchange between them as to why he had thrown Nivek out of the water in the course of which the mother swore at the appellant. She said that the appellant then pushed her and punched her in the eye, quite hard, making that side of her face swell. On the evening of Saturday 7 February she had remonstrated with the appellant concerning his brutality to the child in relation to when he was just starting to walk. She said that she was then hit on her face and arms. She tried to pick up the telephone to call a friend but the appellant pulled the phone out of the wall. When she then twice tried to leave the house he slammed the door shut on her. He also threatened to shoot her. The events followed an incident in which Nivak’s legs had been kicked by the accused out from under him.
[30] The Judge ruled that the scope of the intended re-examination was within the principle that where a witness during cross-examination has admitted making a previously inconsistent statement she may explain her motives for doing so in re-examination. The Judge accepted that the evidence concerned would be prejudicial but not such as to outweigh its probative value. The evidence which the Crown was permitted to call was restricted to the violence and threats following immediately on from the mother’s remonstrations with the accused concerning his conduct to the child. They were also approximate in time to the child’s death and the making of the inconsistent statement. The evidence of the two incidents was led accordingly. The appellant’s counsel says that decision resulted in a miscarriage of justice.
[31] The general rule of re-examination is that it must be confined to matters arising out of the cross-examination and fresh matters may be introduced only with the leave of the Judge. A further relevant principle of evidence is that previous consistent statements can be put to the witness only if made admissible by the terms of the cross-examination or by statutory authority. As Cross on Evidence (N.Z. edition) puts it, the terms of a cross-examination may allow prejudicial evidence in through re-examination although it would not be admissible in chief (Para 9.73). As the principle was stated in Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323:

A party, however, is entitled, in re-examination, to elicit from his witness facts which explain away or qualify facts which have been elicited from the witness in cross-examination, and which are in themselves prejudicial to the party’s case or the witness’s credit, or from which prejudicial inferences could be drawn...

[32] The rule is however subject to a qualification. In R v Singleton [1986] 2 QR 535, 539 the Court of Criminal Appeal of Queensland held that a co-offender could explain his earlier inconsistent statement in re-examination on the basis that collaboration with the appellant was forced on him by fear of the appellant. McCrossan J added this important rider:

Further, if the matter sought to be led in re-examination is of no more than moderately probative value either on the facts in issue or upon the witness’s credit, but its prejudicial effect to the accused is substantial, then there will be a discretion in the trial Judge to exclude, or in some appropriate fashion, restrict the extent of the evidence. The form of the cross-examination will be relevant to the exercise of this discretion and may even, at times, be relevant to the decision on admissibility itself.

[33] In the present case the evidence elicited in re-examination was important. The actual violence which the mother said she had suffered, tended to explain her evidence that she had made her earlier statement at a time when she was influenced by the appellant’s threats. This gave the explanation in her sworn evidence at the trial additional credibility. The defence had been made fully aware of the probable result of any cross-examination of the appellant on her statement and the re-examination that was permitted by the Judge was within the scope of what should have been anticipated. The re-examination was not excessive in its extent. We are also satisfied that it would have been artificial for the Judge to have rejected the Crown’s application to call evidence of actual violence to the mother in the circumstances, as the impact on her of the threats could not be properly understood unless it was before the jury.
[34] Certainly the evidence concerned had a prejudicial effect, but that impact was adequately covered by the direction from the Judge in his summing up to the jury concerning the relevance of the evidence of the appellant’s violence to the mother being concerned with her credibility as a witness. The Judge said:

I remind you the accused is not on trial before you for violence against her. The trial concerns the death of Nivak and whether the accused was criminally responsible for that. That is the use to which you can put that evidence. In other words if you accept (the mother’s) evidence that she was hit by the accused and that because he hit her she then had the statement made you would be entitled to bring that into account when considering the inconsistency and the reason for it in considering her reliability.

[35] We are satisfied that this direction was adequate to deal with the illegitimate prejudicial effect of the evidence of the mother led in re-examination. We are also satisfied that the Judge’s ruling has not been shown to be wrong, focussing as it did on the relevance of the evidence to the reason the mother had made an earlier inconsistent statement.

Direction as to Section 167(b) Crimes Act 1961

[36] It was common ground that the child’s death was the consequence of an injury to his liver as a result of a blow to his abdomen. If the jury accepted that the appellant delivered the blow, and that the child’s death was a culpable homicide, it was required to go on to consider the third element of the crime of murder which was whether the appellant had a murderous intent. The Judge gave a direction on intent under s167(b) of the Crimes Act. Mr La Hood’s submission is that the Judge misdirected the jury on this point in a manner that may have led the jury to believe, wrongly, that the appellant’s knowledge of the possibility of death resulting from the blow would be sufficient to constitute the degree of foresight that would satisfy s167(b).
[37] Section 167(b) reads as follows:

167. Murder defined – Culpable homicide is murder in each of the following cases:

...

(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not;

The passage of the Judge’s summing up on the requirements of s167(b) reads as follows:

Point one: the Crown must establish beyond reasonable doubt that the accused meant to cause bodily injury to the deceased. The question would have to be asked: does the evidence establish beyond reasonable doubt that the accused meant to cause bodily injury to Nivek? Well, here the Crown takes you to such matter as the age, the size of the child, the severity of the injury, the severity of the force which it is said was used, the result of it, and the Crown asks you to infer that the accused meant to cause bodily injury. Of course, the defence say that you will never get to this point, but in any event you will have a reasonable doubt.

Point two: The Crown must next prove that the accused knew that the bodily injury resulting from the blow was likely to cause death. Therefore you must ask yourselves the question: does the evidence establish beyond reasonable doubt that the accused knew, knew at the time of the blow, that the bodily injury resulting from the blow was likely to lead to death? So to find in favour of the Crown on this point, the prosecution would have to establish that the accused must have had in his mind at the time he delivered the blow the actual or conscious appreciation that death was a likely consequence of his act; or put another way that he actually or consciously appreciated that his action was such as could well cause death. Now the contention for the Crown here is that you would be able to readily find that bodily injury from the blow was known to the accused in the way I have described as to be likely to cause Nivek’s death. Again, of course, this point is put in issue by the defence.

Point three. Finally, the Crown must prove beyond reasonable doubt that the accused was reckless whether death ensued or not. So you would have to ask yourselves whether at the material time of the delivery of the blow the accused was reckless whether death ensued or not. Reckless in this context does not mean simply being careless or thoughtless. Reckless requires an awareness that death might follow. There must be a deliberate taking of the risk of which the accused was aware at the time of the delivery of the blow. It does not mean that it is necessary that he desired death to follow. He may well not have desired that death should follow but as I have said to you recklessness requires an awareness of the risk, and a taking of the risk whatever his wishes and intentions might have been. So a person is reckless whether death ensues or not if that person pursues a course of action, consciously taking a risk of causing death, and you will be judging on your assumption of what the accused intended. You must judge him on that; not what you might consider some other person in the circumstances of the accused might have intended. Whether the accused had that knowledge and whether he was reckless in the way that I have defined it to you, is for you as the arbiters of the facts to determine. It is a question of fact at the time of his actions which resulted in the injuries which ultimately lead to the death of the deceased. And that, of course, all proceeds on the assumption that you found proved beyond reasonable doubt that it was the accused who delivered the blow.

Now that is an explanation of the second alternative, [of] murderous intent.

[38] Mr La Hood’s main criticism of the direction is that the words “such as could well cause death” were inadequate to convey the necessary element of actual knowledge of a real or substantial risk of death. He submitted that the direction was unhelpful and confusing. It might have been taken by the jury to mean that a mere possibility that death could follow would be sufficient. Mr La Hood argued that this problem was compounded by an inconsistent direction in point three in relation to the word “reckless”, which the Judge said required “an awareness that death might follow”. Mr La Hood was also critical of the use of the word “assumption” in his direction in point three, because the jury was not entitled to assume anything in terms of the accused’s state of mind but instead must make a finding as to what it was at the relevant time. The word “inference” should have been used. The direction then failed to make plain that the appellant’s subjective state of mind had to be determined rather than what a reasonable person in his shoes might have thought.
[39] In the leading judgment in R v Piri [1987] 1 NZLR 66, 79 Cooke P discussed the word “likely” in the context of s156(d) of the Act and, in a passage in his judgment which is of equal application to the words in s167(b), said:

...with the words “likely” and “probable” there are occasions when it is unnecessary for the Judge to expand on their meaning; the Judge can simply leave the case to the jury without elaboration in this respect. But where a critical issue as to the degree of likelihood or probability clearly arises, that may not do. The jury may then be entitled to more guidance, and so it was here.

...If the risk of the death of the victim was truly no more than negligible or remote in the offender’s eyes, the stigma of murder should be withheld. To be distinguished from that, however, are cases where the risk is so appreciable that to indulge in the conduct is seen by society as the virtual equivalent of intentional killing. Every Judge who tries to formulate a test for the distinction in precise and simple terms, suitable for directing a jury, soon realises that no single formula is preferable or adequate. Expressions commonly used to indicate the degree of foresight of death required to be proved against the accused are a real risk, a substantial risk, something that might well happen.

[40] The notions of there being a real risk, or an outcome that “could well happen,” provide a straightforward way of explaining the meaning of “likely” to the jury by the trial Judge. It would generally be desirable that one or both of them were used. But whatever form of words is used, the ultimate question must be whether the Judge has brought home to the jury what the word means. In the present case the Judge stated and carefully and repeatedly paraphrased the statutory language in relation to the degree of foresight required by s167(b). He also went on to elaborate on the statutory expression of the requirement by saying that “put another way that he actually or consciously appreciated that his action was such as could well cause death.” When point two of his direction is read as a whole we have no doubt that the jury would have been left with a full and accurate understanding of what was required by the second element. As Ms de Graaff submitted the repeated use in the point 2 discussion of the word “likely” of itself precludes the suggestion that the jury could have construed this part of the summing up as a direction that knowledge of a mere possibility that the injury would cause death was all that s167(b) required.
[41] Nor do we consider that the direction in relation to the requirement of recklessness in point 3 confused the position in relation to intention whether by the use of the word “assumption” instead of “inference” or otherwise. The overall position was made clear including that it was the appellant’s subjective intent that the jury had to ascertain rather than the objective position. The direction on this point in our view was unambiguous.
[42] The third ground of appeal accordingly fails.

The summing up was “unbalanced and unfair”

[43] Under this point of his submissions Mr La Hood raised a number of points each of which we can deal with briefly. First he argued that the Judge’s direction in relation to the evidence of violence against the victim’s mother failed to make plain that such violence itself could not be used to determine the appellant’s guilt of the offence charged. The Judge did however tell the jury the accused was not on trial for violence against the mother and that her evidence that she had been hit by the appellant could be brought into account in considering her credibility and reliability in relation to inconsistencies in her evidence. He also told the jury, that reasoning from a propensity to violence would be “quite the wrong approach” a phrase which in our view in this context and when used later by the Judge carried no ambiguity in giving proper emphasis to the point.
[44] There was a complaint of lack of balance through the reading of a lengthy passage in the mother’s evidence covering the period when the homicide took place without reading any part of the relevant cross-examination. The summing up however did elsewhere make appropriate reference to issues raised in cross-examination and the experienced trial counsel who represented the appellant at trial saw no grounds to object to the manner in which these matters were put to the jury by the Judge.
[45] There was some criticism of the way that the Judge dealt with evidence of the pathologist as to when the fatal blow was struck, which it was suggested was inconsistent with evidence of the mother as to when she heard the child cry out. The criticism is that the direction was over-long and confusing. We have read the passages of the summing up and in our view the evidence concerned is addressed clearly and adequately by the Judge. Nor is there anything of substance in the further point that various aspects of the evidence in combination created prejudice leading to a miscarriage of justice. The Judge was particularly careful to make it clear repeatedly to the jury that they were to address and decide only the particular issues before them.
[46] This ground of appeal also fails.

Conclusion

[47] For the reasons set out in this judgment each of the grounds of appeal against conviction have failed and the appeal is accordingly dismissed.

Solicitors:
Sladden Cochrane & Co. Wellington, for Appellant
Crown Law Office, for Crown