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The Queen v Tanuvasa and anor [2006] NZCA 370 (21 December 2006)

Last Updated: 30 January 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA127/06
CA274/06

THE QUEEN

v

LELEI TANUVASA
KELETI TANUVASA

Hearing: 20 November 2006 and 12 December 2006

Court: O'Regan, Baragwanath and Ronald Young JJ

Counsel: L C Ord and G M Fairbrother for Lelei Tanuvasa
N Levy for Keleti Tanuvasa
B J Horsley for Crown

Judgment: 21 December 2006 at 4 pm

JUDGMENT OF THE COURT

A We extend the time for the filing of the appellants’ notices of appeal until the date on which they were actually received by the Court.
B Lelei Tanuvasa’s appeal against conviction and sentence on Count 1 are allowed and the conviction and sentence on that count are quashed. We direct the entry of an acquittal on that count and that there be no retrial upon it. Her appeal against conviction and sentence on count 3 is dismissed.
C Keleti Tanuvasa’s appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] Mr and Mrs Tanuvasa faced charges in the District Court involving violence against their baby son K. The charges were:

(a) Count 1: That Mrs Tanuvasa injured K with intent to injure in July 2003;
(b) Count 2: That Mr and Mrs Tanuvasa failed to provide the necessaries of life to K, endangering K’s life, between 1 July 2003 and 4 September 2003;
(c) Count 3: That Mr and Mrs Tanuvasa caused grievous bodily harm to K with intent to cause grievous bodily harm on 4 September 2003.

[2] The trial Judge, Judge Gittos, discharged both Mr and Mrs Tanuvasa under s 347 of the Crimes Act 1961 in respect of Count 2. Mrs Tanuvasa was convicted on Counts 1 and 3, and Mr Tanuvasa was convicted on Count 3. Both were sentenced to seven years imprisonment.
[3] Mrs Tanuvasa appealed against conviction and sentence, and Mr Tanuvasa appealed against conviction. Mrs Tanuvasa’s appeal against sentence was not pursued in argument, and we formally dismiss it.
[4] Both appeals were filed some months outside the appeal period, we were told that this was due to the failure of a lawyer instructed to file appeals to do so. The Crown accepted that no prejudice had arisen from the delay and in the circumstances we extend the time for the filing of the notices of appeal by both appellants until the days on which their respective notices of appeal were actually filed.

Grounds of appeal: Count 1

[5] There is a significant number of grounds of appeal. Because of the view we take on one of them, we have concluded that the conviction of Mrs Tanuvasa in relation to Count 1 must be set aside. As our decision in that regard affects the analysis of a number of grounds of appeal, we will outline our reasons for that conclusion first, before turning to the grounds of appeal relating to Count 3.

Count 1: Similar fact evidence

[6] The Crown’s case in relation to Count 1 relied in part on the Crown’s allegation that Mrs Tanuvasa was the perpetrator of the assault on K to which Count 3 related, which was said to support the Crown’s contention that Mrs Tanuvasa was also responsible for the assault to which Count 1 related.
[7] The Count 1 allegation was that Mrs Tanuvasa had caused severe rib injuries to K sometime between 17 July 2003 and 28 July 2003, while K was in the care of Mr Tanuvasa and her. A relative visiting the Tanuvasas noticed that K was injured and took him to a Samoan healer, who immediately advised that K needed to be taken to a doctor. K was eventually taken to a doctor, but only after some delay. The doctor arranged for K to be seen by specialists at Auckland hospital. The hospital paediatric specialist, Dr Kelly, who also specialises in cases of child abuse, formed the view that K’s injuries were not accidental, and as a result the Children and Young Persons Service became involved. Mrs Tanuvasa and her two children were placed under the supervision of a Trust. Mrs Tanuvasa denied responsibility and suggested that the injury occurred when K fell off a sofa, but this was rejected by Dr Kelly as inconsistent with the injuries actually suffered by K.
[8] The background to the September incident which formed the basis of Count 3 was as follows. Mrs Tanuvasa and the two children were then living in a supervised situation at a property operated by the Trust at Panmure while Mr Tanuvasa remained in the family home. On 4 September 2003 Mrs Tanuvasa and the two children visited the family home at Avondale, along with a social worker. At the end of the visit the social worker placed K and his brother in a car seat in the appellants’ motor vehicle, and Mr and Mrs Tanuvasa then drove with the two children to Ellerslie, where a Trust property was situated. Mrs Tanuvasa and the boys were then to be taken in a Trust vehicle to the supervised accommodation for Mrs Tanuvasa and the children at Panmure. The appellants were left unsupervised with K for the 15-30 minutes of the car journey from Avondale to Ellerslie.
[9] When the couple arrived at the Trust premises in Ellerslie, arrangements were then made for Mrs Tanuvasa and the children to be taken back to their supervised accommodation. K was placed in the front seat of the Trust’s van in his car seat. Mrs Tanuvasa and her older child were seated directly behind the driver of the van. There were a number of other passengers in the van. During the journey there was what appeared to be an accident involving the car seat, which caused the car seat to collapse forward onto the dashboard of the van. The Trust supervisor contacted emergency services, and K was taken to hospital with very serious injuries including a fractured skull, a broken arm and bruising to his face, front and back.
[10] The Crown case was that K had been assaulted during the car journey from Avondale to Ellerslie, when in the unsupervised presence of both appellants. Expert evidence was led by the Crown to the effect that the injuries suffered by K could not have been sustained in the car seat incident, and the Crown case was that this had been contrived by Mrs Tanuvasa in order to conceal the earlier assault on K.
[11] The Crown case in relation to Count 3 was that Mrs Tanuvasa was the more likely assailant, and that Mr Tanuvasa was a party. The Crown argued that if Mrs Tanuvasa was shown to be the assailant in relation to Count 3, rather than Mr Tanuvasa, then that would support the contention that she, not Mr Tanuvasa, was the assailant in relation to Count 1 too.
[12] On behalf of Mrs Tanuvasa, Ms Ord argued that evidence of Count 3 should not have been admissible to bolster the Crown case on Count 1. It is not necessary to determine that point, because it is clear to us, as Mr Horsley for the Crown responsibly conceded, that the basis on which the similar fact evidence was admitted was improperly founded. The evidence in relation to Count 3 was said to assist the jury in relation to Count 1 only if the jury found that the evidence on Count 3 established that Mrs Tanuvasa was the actual assailant. But in summing up to the jury, the Judge left it open to the Jury to convict both Mr and Mrs Tanuvasa on the basis that either could have been the assailant, and that the other would then have been a party. As the Judge put it, "it is sufficient if the Crown satisfied you that each of them must have been either the principal or the party".
[13] In those circumstances, the jury’s verdict on Count 3 leaves open the reasonable possibility that, in fact, Mr Tanuvasa was the assailant in the September incident. In those circumstances, the conviction on Count 1, to the extent that reliance may have been placed on the similar fact evidence, is unsafe. Without the similar fact evidence, the evidence before the jury in respect of Count 1 was, at best, equivocal. We therefore allow the appeal in relation to Count 1, set aside that conviction, and direct that an acquittal be entered on that Count. We do not order a new trial because the jury’s verdict on Count 3 does not allow scope for the admission of similar fact evidence on Count 3 at a new trial. Without the similar fact evidence there is insufficient evidence on which a properly directed jury could convict.

Grounds of appeal: Count 3: Mrs Tanuvasa

[14] Mrs Tanuvasa raises a number of grounds for appeal in relation to Count 3. These are:

(a) The lies direction given by the Judge was inadequate;

(b) There was no expert evidence direction given by the Judge, and this led to a miscarriage of justice;
(c) Inadmissible evidence was led at trial, and this caused a miscarriage of justice.

[15] Those three grounds of appeal were also relied on by Mr Tanuvasa, and in addition the following grounds were raised:

(a) Radical error by trial counsel;

(b) Failure of trial counsel to allow Mr Tanuvasa to elect to give evidence in his own defence;
(c) Unfair summary of the defence case by the Judge in his summing up.
We will deal with these in the order in which they are raised above.

Lies direction

[16] Ms Ord argued that the directions given by the Judge on lies were inadequate. The focus of this submission related to Count 1, in respect of which Ms Ord said the Crown relied on lies as evidence of guilt, rather than as merely going to credibility. Our decision in relation to Count 1 makes it unnecessary for us to consider this aspect of the case.
[17] In relation to Count 3, the Crown suggested that the car seat incident in the van was contrived by Mrs Tanuvasa to conceal the real cause of K’s injuries. This was an important part of the Crown’s case because the defence case was that the injury may have been caused by the car seat incident. The focus was not, therefore, on whether Mrs Tanuvasa had lied about the car seat incident, but whether the Crown contention that the car seat incident was a cover up was accepted by the jury.
[18] Given the now very limited focus of the objection to the lies direction, we can deal with this point briefly. The Judge’s direction on lies was in two parts. It was not part of the general directions, but rather given in the context of the summary of the Crown and the defence case.
[19] When summarising the Crown case, particularly the allegation that Mrs Tanuvasa had lied about the causes of the rib incident (Count 1), and that those falsehoods told against the accused, the Judge warned the jury to be careful. He asked them to consider whether Mrs Tanuvasa’s statements were deliberate untruths, and warned the jury against the tendency of jumping to the conclusion that because someone has lied that makes her guilty of the offences with which she is charged. He said that lying helped mainly with credibility, that is whether you can believe what a witness is saying.
[20] The Judge then returned to the issue of lies when summarising the defence case. He referred to the submission made by Mrs Tanuvasa’s trial counsel that the Crown had pointed the finger at Mrs Tanuvasa for the rib injury incident because she had told lies, and added:

[Counsel] reminded you, as I have done, that that’s not necessarily going to help you very much; people tell lies for all sorts of reasons, not necessarily because they are guilty.

[21] The Judge had not, in fact, directed the jury in precisely those terms earlier, but nevertheless this direction gave a form of judicial endorsement to the submission by counsel.
[22] While the direction on lies was not in a model form, and would have been more properly given in the Judge’s own remarks rather than in the context of summarising the Crown and defence cases, we are satisfied it was adequate in the present context. The relevance of lies to Count 3 was insubstantial, and the jury was properly advised that proof that an accused person has told a lie did not prove guilt of the offence.
[23] Counsel for Mr Tanuvasa also relied on this point of appeal, but, given our views on the adequacy of the lies direction, we reject this ground of appeal in relation to Mr Tanuvasa as well.

Expert witness direction

[24] The Judge did not give an expert witness direction, as is customary when expert evidence is led at a criminal trial. In addition it was alleged that one of the expert witnesses, Dr Kelly, the hospital paediatric expert, was not neutral. It was also argued that some of the evidence given by Dr Kelly was outside his area of expertise and that evidence relating to a reconstruction of the baby seat incident should not have been permitted.
[25] It is customary, but not compulsory, for an expert evidence direction to be given: R v Flaws [1998] NZCA 93; (1998) 16 CRNZ 216 at 219 (CA). None was given in this case. At the conclusion of the Judge’s summing up, he asked counsel whether they wished to raise anything, and the Crown prosecutor raised the omission of an expert opinion direction. The Judge indicated that he did not think it was appropriate to bring the jury back to give such a direction because "it might rather savour of over-emphasis on the Crown case". Both Crown counsel and counsel for Mr Tanuvasa indicated that they did not wish to press the matter, and counsel for Mrs Tanuvasa did not express a view. The end result was that no expert evidence direction was given. The question for us on appeal is whether this omission led to a miscarriage of justice. We are satisfied that it did not.
[26] The principal medical expert was Dr Kelly, the hospital paediatrician. He had examined K when he was taken to the hospital in August, and had concluded that the rib injury was not accidental. He had recommended the supervision regime which applied to the Tanuvasas at the time that the September incident occurred. His evidence as to the September incident was that injuries from the September incident involved a blow to the head, probably from behind, bruising to the face probably caused by something held and wrapped around K’s face for at least 30 seconds, and bruising to the back and front which was probably caused at the same time as the blow to K’s head, because he was strapped inside the car seat at the time.
[27] There was no expert evidence called by the defence to contradict this, and there was no attempt to adduce evidence to the contrary in this Court either. The defence theory of the case was that the injuries to K had been caused by the car seat incident, but Dr Kelly’s evidence was that the injuries were not consistent with the car seat incident.
[28] Evidence was also given by the paediatric intensive care specialist from the hospital, Dr Miles. She examined K on his admission to hospital and gave a description of the injuries she saw and their likely cause. She ruled out whiplash causing the injuries, and also indicated that she did not accept that the version of the car seat incident which was given to her by Mrs Tanuvasa was an explanation of the injuries that K had suffered. She was asked about the timing of the injuries. She accepted that it was difficult to estimate how long a period of time had elapsed between the time of the injury and the time that K was admitted to hospital, but said that it would not have been more than 12 hours. She said if there had been any extensive period of time between the time of the injuries and the time of admission to hospital, it was likely that K would have died.
[29] The other expert evidence given was by Mr Miller, a specialist in the field of engineering materials. He gave evidence about the damage to the car seat, and of an experiment he conducted on a similar car seat. His evidence was that the car seat could not have been compressed in the way that Mrs Tanuvasa described. Mrs Tanuvasa’s description was consistent with that of the CYFS supervisor who was driving the van when the car seat incident occurred.
[30] Ms Ord suggested that the lack of an expert evidence direction meant that the jury was left with the impression that the expert evidence had to be accepted. We disagree. The Judge gave the conventional direction that it was for the jurors to weigh the evidence and determine which parts of it they accepted and which they rejected. The jurors were told that they did not need to accept all of the evidence given by a particular witness.
[31] Ms Ord said the impression that the jury had to accept the expert evidence was compounded by the Judge’s summary of the evidence in his summing up. She particularly criticised the reference by the Judge to Dr Kelly’s evidence being "uncontroverted". She noted that some of the doctor’s views were expressed as postulations or possibilities rather than as conclusions. That is true, but the doctor did say:

In my opinion it is clear that [K] was physically assaulted, and that the force applied was potentially lethal in its intensity. I think the assault also involved the application of force to several different parts of the body by several different mechanisms.

[32] There was no expert evidence contradicting that view at trial. The Judge described as "uncontroverted" Dr Kelly’s evidence that "[it] required at least one very violent blow to the back of the head, possibly other blows to the head to cause that". We do not consider this to be an embellishment of what the doctor said. Having considered carefully what the Judge said about the doctor’s evidence, we do not accept the validity of the criticism made by Ms Ord. Overall, the Judge summarised the expert evidence fairly and said nothing which would have led the jury to believe it was obliged to accept it.
[33] We are satisfied in this case that the failure to give an expert evidence direction has not led to a miscarriage of justice. The evidence was led appropriately, expressed in appropriately restrained terms and, although there was some cross-examination of the experts, there was no serious challenge to their conclusions, and no contradictory evidence. The jury was aware that it did not have to accept the evidence of any particular witness, including the expert witnesses. In circumstances where the defence offered no serious challenge to the expert evidence, we do not consider that any miscarriage resulted in the circumstances of this case.
[34] Ms Ord also challenged the neutrality of Dr Kelly. She said because Dr Kelly had examined K after the rib incident and formed a view that this incident was non-accidental, and had also recommended the supervision regime for the Tanuvasas, he was not neutral when it came to assessing the injuries resulting from the September incident. We disagree. The fact that a medical expert has expressed a medical opinion about a different incident sometime before does not provide any proper basis for an accusation that he is not neutral. In circumstances where his evidence remains unchallenged even on appeal, there is no indication that his evidence was other than a proper application of his expertise to the facts. There is no proper basis for an accusation that he has given evidence other than impartially.
[35] Ms Ord also argued that Mr Miller’s evidence was not complete because he did not give a clear explanation for a stress mark in the plastic of the car seat. He was not asked by defence counsel about this, and there was no indication given to us as to how that compromised the experiment which Mr Miller undertook. There is nothing in this point.
[36] Ms Ord asserted that the evidence given by Dr Kelly about the car seat experiment was outside his area of expertise. We do not think there is anything in this. Ms Ord said only a specialist in biomechanics was qualified to give evidence of the kind given by Dr Kelly. We can see no reason why Dr Kelly should not have described what he saw when the experiment was conducted. Nor do we accept that a paediatrician is not qualified to express a view on the injuries a child would suffer from an incident like the car seat incident.
[37] Ms Ord also submitted that the evidence of the experiment should not have been admitted. No objection was taken at the trial: Ms Ord said the failure to object was a radical error by counsel. We are satisfied that the experiment, although not an exact replication of what happened in the car seat incident, was relevant, and the evidence was more probative than prejudicial. There is no basis for the submission that failure by trial counsel to object to its admission led to a miscarriage of justice.

Admission of inadmissible evidence

[38] Ms Ord said that inadmissible and prejudicial evidence had been admitted at trial, and this had caused a miscarriage of justice. There were two broad categories of evidence subject to this complaint. These were:

(a) Aspects of the video interview by the police of Mrs Tanuvasa;

(b) Evidence of neglect of K.

Aspects of video interview

[39] There were two video interviews with Mrs Tanuvasa, both of which were conducted by Detective Constable Bull. The first of these was on 4 September 2003, and the second was on 1 October 2003.
[40] Ms Ord said that there were passages in the video interviews which were prejudicial and not probative, and ought not to have been played in front of the jury. She argued that a miscarriage of justice had resulted from this occurring.
[41] There was, however, no objection to any of this material either in a pre-trial application or at trial, and in no instance did the exchanges complained of lead to any inculpatory statement by Mrs Tanuvasa. If objection had been taken either prior to the trial or at trial, it is possible that the Judge would have directed that the videotape be edited, or that the Crown would have agreed to such editing in the interest of fairness. But now that the matter is raised for the first time on appeal, the issue for this Court is whether the inclusion of this material in the videotape seen by the jury has led to a miscarriage of justice. We are satisfied that it has not.
[42] The following aspects of the first video were highlighted by Ms Ord:

(a) The detective’s reference to Mrs Tanuvasa’s written statement, and a question asking her to confirm that there were no lies in the statement. She confirmed there were none;
(b) The question the officer asked her about how she fed K with a bottle, particularly asking if she had propped K up against a pillow and left him to feed on his own;
(c) A series of questions about how often Mrs Tanuvasa took K to the doctor. She had said in her earlier statement that she took him once a week, and this was challenged by reference to the doctor’s records which showed that that was not correct;
(d) Extensive questioning about the delay between the time of the rib injury and the time Mrs Tanuvasa took K to the doctor;
(e) Questions and answers after Mrs Tanuvasa had spoken to a lawyer and had been advised not to answer any further questions.

[43] Dealing with the last aspect first, Mrs Tanuvasa told the detective that she did not wish to answer questions after she had been advised to that effect by a lawyer. The detective still asked her a number of further questions. She either refused to answer them or said nothing which was inculpatory. If she had made an inculpatory statement after exercising a right to silence, there might have been an issue about the admissibility of the inculpatory evidence: R v Ormsby CA493/04 8 April 2005 at [12]-[21]. In fact, Mrs Tanuvasa said nothing which was prejudicial to her in that interview after she exercised the right of silence, so the issue does not arise.
[44] Much of the questioning by the officer was relevant to the neglect charge, which was later subject to a s 347 discharge. We will deal with its admission later. The questioning about the delay in taking K to the doctor after the rib injury was obviously relevant to Count 1, and although the police officer challenged Mrs Tanuvasa, we do not think the questioning was improper, and we are satisfied that no miscarriage arose from the jury seeing this part of the videotape.
[45] The following passages from the 1 October video statement were criticised by Ms Ord:

(a) The detective said to Mrs Tanuvasa that it had been brought to his attention that she was laughing in the waiting room at the hospital after the car seat incident. She said this was untrue and that she was crying;
(b) The police officer asked Mrs Tanuvasa why she did not stay overnight at the hospital when K was admitted, and she explained that this was because there was no room at the hospital for her and her husband to stay and that they were told to go home and have a rest;
(c) The police officer put it to her that her story about the car seat incident was unbelievable, and that the engineer had described the events that she recounted as being impossible. Her response was that accidents might happen, and that she had not done anything to K on the night in question;
(d) The detective put it to her that the senior doctor at the hospital had described the injuries as either a stomp on K’s head with a foot, trapping K’s head in the door or pushing K’s head down and then hitting him on the back of the head. Her response was that she would not do that and that she and her husband were not stupid enough to do that to their kids;
(e) In a similar vein, when the detective was challenging Mrs Tanuvasa’s assertion that the car seat had caused the injuries, he asked her whether the car seat had collapsed inwards on its own without anybody touching it, and was told that it had. He asked whether this had happened "with the same force as if you was [sic] to stomp on K’s head with a foot...or trap his head in the door". Mrs Tanuvasa denied that this is what had happened and repeated that she and her husband were not stupid enough to do that to their kids;
(f) Later, the detective put it to Mrs Tanuvasa that she had hurt K during the car ride between Avondale and Ellerslie, and that she had caused injuries to K "by either stomping on his head, trapping his head in the door or hit [sic] him on the back of the head". Mrs Tanuvasa denied this, and said that if this had really happened then the social worker who was driving the van from Avondale to Panmure would have noticed.

[46] Ms Ord said that there was no evidence of stomping on K’s head or trapping him in a car door, but rather evidence of the application of extreme force to his head. She said the inclusion of these questions made the interview unbalanced. In our view this complaint needs to be read in the context of the evidence which the jury heard about the injuries suffered by K. The evidence of Dr Kelly was that the injuries which K suffered were such that the impact on his head must have been "extraordinarily violent". He said he had never seen injuries of the kind suffered by K in a child of his age group. When asked what sort of things could cause skull fractures of the magnitude suffered by K, he answered:

They would require very major accidental injury, the kind of comparison might be a child unrestrained in a high velocity motor vehicle accident, or a violent impact to the head, a fall from a considerable height, a heavy object falling on to the head from a height, in fact if someone told me that someone had stood on this child’s head I would not be surprised, given the extent of the fractures.

[47] We accept that the doctor’s statement was a description of the degree of force used, rather than an allegation of the manner in which the injuries had been caused. But the jury had before it expert evidence that the injury was so bad that it would be consistent with a stomp on the head. The police officer’s question put it to Mrs Tanuvasa that she had actually stomped on the child’s head or jammed his head in the door, which she denied. Given that no objection was taken at the time, that Mrs Tanuvasa maintained her denial throughout, and that the evidence of Dr Kelly about the extent of the injury was before the jury anyway, we are not satisfied that the asking of these questions has led to a miscarriage of justice in this case.
[48] We have considered the cumulative effects of these matters, and are satisfied that they did not lead to a miscarriage of justice in the circumstances.

Evidence of neglect of K

[49] Evidence was given of the way in which Mr and Mrs Tanuvasa cared for K, which indicated neglect in a number of respects. This was relevant to Count 2, but, as indicated earlier, the appellants were discharged under s 347 in respect of this count during the course of the trial. Ms Ord said that evidence of neglectful treatment of K was not admissible in relation to Counts 1 and 3, and that its admission and the lack of any guidance from the Judge to the jury about how to deal with this evidence had led to a miscarriage of justice.
[50] In his summing up, the Judge recorded that the Crown accepted that it had failed to meet the standard of proof required in relation to Count 2 (that is, that the appellants had failed to provide the necessaries of life for K). The Judge continued that the Crown case was that this failure did not mean that the Crown was not taking issue with the management of the children. In fact the Crown suggested that evidence that was led in relation to Count 2 was helpful to the jury in their appraisal of the general attitude of the parents to their children, which was relevant to other charges and the Crown suggested that there was an attitude of neglect.
[51] When summarising the defence case, the Judge noted a submission by counsel for Mrs Tanuvasa that Count 2 had not been pursued by the Crown, and that there was therefore no evidence of neglect. The Judge commented that that was a matter for the jury, and that it may or may not agree about that, but to the extent that there was any such evidence (of neglect), it may be helpful to the jury in considering the other matters before it.
[52] Mr Horsley submitted that the evidence of neglect was of general relevance by way of background to the charges. He said the evidence illustrated that the appellants were under severe financial stress and pressure caused by a number of members of the extended family staying at their home. He said the evidence established that Mrs Tanuvasa’s treatment of K was such that she failed to get medical assistance after the broken ribs were drawn to her attention, and on a day to day basis did not take good care of K. He said this helped explain to a jury how it would be that a parent could assault his or her child in such a serious fashion. He said the general picture of neglect and the cavalier attitude to the baby was relevant, and compared to the injuries that were actually effected, was not of great prejudicial value.
[53] In England and Australia there is authority distinguishing between "similar fact" evidence and "background" evidence. The leading English case is R v M [2000] 1 WLR 421. There the Court of Appeal stated at 426:

As Professor Birch pointed out in a useful note in [1995] Crim LR 651, it is important to distinguish evidence of background, which is normally admissible, from similar facts evidence. Her note continues:
"Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves ‘dragging up’ material which is by definition prejudicial and which might have been left out. Thus it has been said that such evidence should be admitted in circumstances where it would be an ‘affront to common sense’ to exclude it (per Lord Cross in Director of Public Prosecutions v. Boardman [1975] AC 421 at 456). Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchas L.J. says (in Reg v Pettman (unreported), 2 May 1985, C.A.) ‘incomplete or incoherent’ without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather that it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history."

In Australia Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, at 464-5 suggested that such evidence has been treated as within the ambit of the rules as to propensity evidence. But in Conway v R [2000] FCA 461; (2000) 172 ALR 185, at [97] and [101]-[102] the Federal Court of Australia has held that "relationship evidence" does not fall within the strict rule applied by Pfennig to "similar fact" evidence and that the test for its admission is that of relevance, coupled with the statutory requirement under s 137 of the Commonwealth Evidence Act 1995 that its probative value outweigh its prejudicial effect.

[54] The need for a separate test for relationship evidence to dilute the high test of Pfennig is intelligible in Australia. However, in the present state of New Zealand law there seems no good reason to multiply categories of what, to use a term coined by Fisher J in giving the judgment of this Court in R v Mokaraka [2002] 1 NZLR 793, is "discrete evidence".
[55] We are satisfied that the evidence was relevant as background evidence. It is clear that the original intent in adducing the evidence in this case was directed towards proving the neglect charge, but we are satisfied that it was also relevant background to both Count 1 and Count 3. It would have been artificial to consider the allegations in Counts 1 and 3 in isolation from the circumstances which led to the intervention of social workers, the supervision regime imposed on the appellants, the events leading to the discovery of the rib injury and the delays in obtaining medical treatment, as well as the other instances of neglectful treatment.
[56] The defence was denial of involvement in the injuries to K. The version of events which the defence asked the jury to accept was that the appellants were loving parents who would not do anything to harm their children. In our view the evidence was, to use the words of Cooke P in R v Accused (CA 247/91) [1992] 2 NZLR 187 at 191, "sufficiently supportive of the prosecution case to justify allowing it to go to the jury notwithstanding any illegitimate prejudicial effect that it might have".
[57] While we accept that some prejudicial effect arises from this evidence being before the jury, we do not see that as outweighing the probative effect of the evidence in the circumstances of this case. We see this case as similar in principle to the decision of the House of Lords in Thompson v The King [1918] AC 221.
[58] Such analysis is consistent with ss 40-41 of the Evidence Act 2006, to be brought into force by Order in Council.

Conclusion: Mrs Tanuvasa’s conviction appeal

[59] None of the grounds of appeal is made out, and Mrs Tanuvasa’s appeal against conviction is therefore dismissed.

Mr Tanuvasa’s appeal

[60] We now turn to the appeal by Keleti Tanuvasa. He relied on the grounds raised by Mrs Tanuvasa, and we reject those grounds in relation to him for the same reasons as we rejected them in relation to her. In addition, he raised three further appeal points. These were:

(a) The Judge’s direction on the law relating to parties was insufficient and contributed to a miscarriage of justice;
(b) The actions of Mr Tanuvasa’s trial counsel denied him the right to give evidence in his own defence, in circumstances where that evidence was capable of having a significant impact on the jury’s deliberations;
(c) The trial Judge’s presentation of the defence case was unbalanced and unfair.

[61] We will deal with these in the above order.

Direction on parties

[62] Counsel for Mr Tanuvasa, Ms Levy, accepted that the Judge directed the jury appropriately on the requirements for establishment of criminal liability under s 66(1)(b) of the Crimes Act. However she argued that Mr Tanuvasa’s trial counsel failed to explain four important matters to the jury, and this meant that those important matters were also omitted from the Judge’s summing up. She said that the omission of these important matters raised a real risk of a miscarriage of justice.
[63] The first of these matters was that there was no admissible evidence that Mr Tanuvasa knew that his wife had attacked the baby in the circumstances that were the subject of Count 1. Thus there was no basis for Mr Tanuvasa to be "on his guard" against a violent attack on K. In our view that submission ignores the reality that Mr and Mrs Tanuvasa were living apart at the time of the 4 September incident because of the supervision arrangements that had been put in place after the rib injury suffered by K. Whether there was admissible evidence that Mr Tanuvasa knew Mrs Tanuvasa had caused the rib injury is of secondary importance to the fact that he knew that she was suspected of doing so and that CYFS had intervened and imposed a supervision regime because of concerns about her treatment of K. In our view that was enough to put him on his guard.
[64] The second matter was that the injuries could have taken place in a way that Mr Tanuvasa was not in a position to stop them. The Crown case was that the injuries had taken place during the car ride from Avondale to Ellerslie, while Mr and Mrs Tanuvasa and their two children were in the van. Both Mr and Mrs Tanuvasa denied any involvement in the injuries being caused. The possibility that Mrs Tanuvasa had caused the injuries during the car ride but without Mr Tanuvasa’s knowledge was never canvassed, and there was no indication that trial counsel was instructed to put forward a defence on that basis. Trial counsel was cross-examined before us and this was not put to him. We do not think trial counsel can be criticised for not putting forward what would have been a speculative and inherently unbelievable defence.
[65] The third matter was that the failure of Mr Tanuvasa to obtain medical help for K’s injuries after the 4 September assault was capable of being consistent with ignorance of the injuries. That ignorance could result either from the possibility that the injury occurred before the car ride from Avondale to Ellerslie commenced, or because Mr Tanuvasa was unaware of the infliction of the injuries taking place during the car ride. Alternatively his failure to obtain medical help may have resulted from his acquiescence in his wife’s plan to stage the car seat incident, which would precipitate the provision of medical attention.
[66] We do not think there is anything in this point. The Judge’s direction to the jury did not suggest that the mere failure to seek medical help would substantiate a case of being a party: the issue that was put to the jury was whether Mr Tanuvasa could have intervened at the time of the attack and failed to do so.
[67] Nor do we think that there is any plausible basis for the argument on appeal that the injuries to K could have occurred prior to the commencement of the car journey, at a time when the social worker was present at the appellants’ home. The evidence of the social worker who was with the Tanuvasas at their home on 4 September was that K was uninjured at the time she placed him in the car for the journey from Avondale to Ellerslie. She was not challenged about this in cross-examination.
[68] The only evidential basis for the possibility of the injuries occurring before the car journey was the evidence of Dr Miles, the doctor who examined K on his admission to the hospital. She gave evidence that the timing of the injuries was difficult to determine, and that they may have occurred up to 12 hours before his admission to hospital. That 12 hour period would include the period prior to the car journey. But in the light of the social worker’s evidence which was not challenged in cross-examination, there was no proper basis for counsel to submit to the jury that it should find that the injuries occurred prior to the car journey.
[69] The fourth matter was that a finding that Mr Tanuvasa was lying to cover up for his wife’s offending did not necessarily equate to his guilt in the matter. Ms Levy said there would have been good reasons for him to lie, even if he was aware of an attack by his wife: one being his desire to prevent her being convicted, and the other being his desire to prevent the children being taken away.
[70] We have already dealt with the lies direction earlier in this judgment, and we reiterate that we are satisfied that it was adequate.
[71] Ms Levy said that the Judge effectively directed the jury that, if the jury accepted the Crown case, then Mr Tanuvasa was guilty as a party. That is not what the Judge said: rather he said that the Crown submitted that Mr Tanuvasa was guilty as a party. The Judge did not endorse that submission and, as counsel properly conceded, his direction on the law relating to parties was both appropriate and correct.
[72] We reject this ground of appeal.

Denial of right to give evidence

[73] Ms Levy said that Mr Tanuvasa was denied the right to give evidence by the actions of his trial counsel. She did not suggest that trial counsel had failed to comply with an instruction to call Mr Tanuvasa. Rather, the allegation was that trial counsel’s actions led Mr Tanuvasa to believe that he did not have the choice of giving evidence, because his lawyer did not think it would be a good idea. She said this had led to, or contributed to, a miscarriage of justice.
[74] We received in evidence affidavits from both Mr Tanuvasa and his trial counsel, and both were cross-examined before us. Having considered the affidavits and having seen and heard the cross-examination, we have reached the clear view that Mr Tanuvasa accepted his counsel’s advice not to give evidence, knowing he had a choice. It is equally clear to us that trial counsel did not do anything to cause Mr Tanuvasa to believe that he did not have the choice to give evidence on his own behalf.
[75] The evidence of trial counsel was that he knew before the trial that Mr Tanuvasa was keen to give evidence and that he anticipated during the trial that he would give evidence. He said that the matter was discussed on the day before the trial at a meeting between Mr Tanuvasa and his trial counsel, and at that time counsel expected that Mr Tanuvasa would be called. This is confirmed by a letter which counsel wrote to the Legal Services Agency on the day before the trial, in which he stated that he anticipated that Mr Tanuvasa would give evidence.
[76] Trial counsel said that the matter was discussed with Mr Tanuvasa at the end of the Crown case, and he advised Mr Tanuvasa in Samoan that he was entitled to give evidence if he wished to do so. Counsel said that he said to Mr Tanuvasa that he believed that Mr Tanuvasa had given a good video interview with the police, and that in counsel’s view this was sufficient for the purposes of the trial. Counsel said he was concerned at the possibility that cross-examination by an experienced Crown prosecutor could undo the good impression which the video interview would have created. Counsel said that he advised Mr Tanuvasa not to give evidence but left him the choice of doing so.
[77] Mr Tanuvasa accepted that there was a discussion between him and his counsel at the end of the penultimate day of the trial when it was time for him to elect whether or not to give evidence. He accepted that he discussed the matter with his counsel, and that he then discussed with his wife later that evening whether he should give evidence. When asked why he was discussing the matter with his wife if he thought he had no choice about giving evidence, he said that he was relying on his lawyer. He accepted in cross-examination that whether or not he should give evidence was "something that you needed to decide with you and your wife". When asked from the Bench why he thought his lawyer was raising the topic of the choice of giving evidence if there was in fact no choice, he answered that he did not understand exactly what to do and he was relying on his lawyer’s work.
[78] We are satisfied that trial counsel’s advice was that it would be better if Mr Tanuvasa did not give evidence, in counsel’s view, but that the decision remained with Mr Tanuvasa himself. It is consistent with the fact that Mr Tanuvasa was told to discuss the matter with his wife overnight, which would have been pointless if his lawyer had taken the decision away from him. It is also consistent with the expectation that both counsel and Mr Tanuvasa had at the beginning of the trial that Mr Tanuvasa would, in fact, give evidence.
[79] This ground of appeal therefore fails.

Summary of defence case

[80] Ms Levy submitted that the trial Judge interpolated into his summary of the defence case answers to points made by the defence, or reminders to the jury that matters were for the jury to determine. She said this was done more in relation to the defence case than in relation to the Crown case. She gave a number of examples. Her submission was that, in the context of a poorly presented defence case, with obvious limitations in some of the matters raised, the constant answering and commenting by the trial Judge on the defence case deprived the appellants of having their case fairly put.
[81] We do not accept this submission. We have carefully considered the examples cited to us by counsel and are satisfied that the interpolations by the Judge do not undermine the defence case or distract the jury from the matters at issue which they need to decide. We reject this ground of appeal also.

Result

[82] Mrs Tanuvasa’s appeal against conviction and sentence on Count 1 is allowed and the conviction and sentence on that count are quashed. We direct the entry of an acquittal on that count and that there be no retrial upon it. The appeals against conviction on Count 3 by both appellants are dismissed. Mrs Tanuvasa’s sentence of seven years imprisonment remains unaffected by the quashing of her conviction on Count 1, for which she had been sentenced to a concurrent term of nine months imprisonment.

Solicitors:
Sladden Cochrane & Co, Wellington for Lelei Tanuvasa
Crown Law Office, Wellington

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[2]	The trial Judge, Judge Gittos, discharged both Mr and Mrs Tanuvasa under s 347 of the Crimes Act 1961 in respect of Count 2. Mrs Tanuvasa was convicted on Counts 1 and 3, and Mr Tanuvasa was convicted on Count 3. Both were sentenced to seven years imprisonment.
[3]	Mrs Tanuvasa appealed against conviction and sentence, and Mr Tanuvasa appealed against conviction. Mrs Tanuvasa’s appeal against sentence was not pursued in argument, and we formally dismiss it.
[4]	Both appeals were filed some months outside the appeal period, we were told that this was due to the failure of a lawyer instructed to file appeals to do so. The Crown accepted that no prejudice had arisen from the delay and in the circumstances we extend the time for the filing of the notices of appeal by both appellants until the days on which their respective notices of appeal were actually filed.

[6]	The Crown’s case in relation to Count 1 relied in part on the Crown’s allegation that Mrs Tanuvasa was the perpetrator of the assault on K to which Count 3 related, which was said to support the Crown’s contention that Mrs Tanuvasa was also responsible for the assault to which Count 1 related.
[7]	The Count 1 allegation was that Mrs Tanuvasa had caused severe rib injuries to K sometime between 17 July 2003 and 28 July 2003, while K was in the care of Mr Tanuvasa and her. A relative visiting the Tanuvasas noticed that K was injured and took him to a Samoan healer, who immediately advised that K needed to be taken to a doctor. K was eventually taken to a doctor, but only after some delay. The doctor arranged for K to be seen by specialists at Auckland hospital. The hospital paediatric specialist, Dr Kelly, who also specialises in cases of child abuse, formed the view that K’s injuries were not accidental, and as a result the Children and Young Persons Service became involved. Mrs Tanuvasa and her two children were placed under the supervision of a Trust. Mrs Tanuvasa denied responsibility and suggested that the injury occurred when K fell off a sofa, but this was rejected by Dr Kelly as inconsistent with the injuries actually suffered by K.
[8]	The background to the September incident which formed the basis of Count 3 was as follows. Mrs Tanuvasa and the two children were then living in a supervised situation at a property operated by the Trust at Panmure while Mr Tanuvasa remained in the family home. On 4 September 2003 Mrs Tanuvasa and the two children visited the family home at Avondale, along with a social worker. At the end of the visit the social worker placed K and his brother in a car seat in the appellants’ motor vehicle, and Mr and Mrs Tanuvasa then drove with the two children to Ellerslie, where a Trust property was situated. Mrs Tanuvasa and the boys were then to be taken in a Trust vehicle to the supervised accommodation for Mrs Tanuvasa and the children at Panmure. The appellants were left unsupervised with K for the 15-30 minutes of the car journey from Avondale to Ellerslie.
[9]	When the couple arrived at the Trust premises in Ellerslie, arrangements were then made for Mrs Tanuvasa and the children to be taken back to their supervised accommodation. K was placed in the front seat of the Trust’s van in his car seat. Mrs Tanuvasa and her older child were seated directly behind the driver of the van. There were a number of other passengers in the van. During the journey there was what appeared to be an accident involving the car seat, which caused the car seat to collapse forward onto the dashboard of the van. The Trust supervisor contacted emergency services, and K was taken to hospital with very serious injuries including a fractured skull, a broken arm and bruising to his face, front and back.
[10]	The Crown case was that K had been assaulted during the car journey from Avondale to Ellerslie, when in the unsupervised presence of both appellants. Expert evidence was led by the Crown to the effect that the injuries suffered by K could not have been sustained in the car seat incident, and the Crown case was that this had been contrived by Mrs Tanuvasa in order to conceal the earlier assault on K.
[11]	The Crown case in relation to Count 3 was that Mrs Tanuvasa was the more likely assailant, and that Mr Tanuvasa was a party. The Crown argued that if Mrs Tanuvasa was shown to be the assailant in relation to Count 3, rather than Mr Tanuvasa, then that would support the contention that she, not Mr Tanuvasa, was the assailant in relation to Count 1 too.
[12]	On behalf of Mrs Tanuvasa, Ms Ord argued that evidence of Count 3 should not have been admissible to bolster the Crown case on Count 1. It is not necessary to determine that point, because it is clear to us, as Mr Horsley for the Crown responsibly conceded, that the basis on which the similar fact evidence was admitted was improperly founded. The evidence in relation to Count 3 was said to assist the jury in relation to Count 1 only if the jury found that the evidence on Count 3 established that Mrs Tanuvasa was the actual assailant. But in summing up to the jury, the Judge left it open to the Jury to convict both Mr and Mrs Tanuvasa on the basis that either could have been the assailant, and that the other would then have been a party. As the Judge put it, "it is sufficient if the Crown satisfied you that each of them must have been either the principal or the party".
[13]	In those circumstances, the jury’s verdict on Count 3 leaves open the reasonable possibility that, in fact, Mr Tanuvasa was the assailant in the September incident. In those circumstances, the conviction on Count 1, to the extent that reliance may have been placed on the similar fact evidence, is unsafe. Without the similar fact evidence, the evidence before the jury in respect of Count 1 was, at best, equivocal. We therefore allow the appeal in relation to Count 1, set aside that conviction, and direct that an acquittal be entered on that Count. We do not order a new trial because the jury’s verdict on Count 3 does not allow scope for the admission of similar fact evidence on Count 3 at a new trial. Without the similar fact evidence there is insufficient evidence on which a properly directed jury could convict.

[16]	Ms Ord argued that the directions given by the Judge on lies were inadequate. The focus of this submission related to Count 1, in respect of which Ms Ord said the Crown relied on lies as evidence of guilt, rather than as merely going to credibility. Our decision in relation to Count 1 makes it unnecessary for us to consider this aspect of the case.
[17]	In relation to Count 3, the Crown suggested that the car seat incident in the van was contrived by Mrs Tanuvasa to conceal the real cause of K’s injuries. This was an important part of the Crown’s case because the defence case was that the injury may have been caused by the car seat incident. The focus was not, therefore, on whether Mrs Tanuvasa had lied about the car seat incident, but whether the Crown contention that the car seat incident was a cover up was accepted by the jury.
[18]	Given the now very limited focus of the objection to the lies direction, we can deal with this point briefly. The Judge’s direction on lies was in two parts. It was not part of the general directions, but rather given in the context of the summary of the Crown and the defence case.
[19]	When summarising the Crown case, particularly the allegation that Mrs Tanuvasa had lied about the causes of the rib incident (Count 1), and that those falsehoods told against the accused, the Judge warned the jury to be careful. He asked them to consider whether Mrs Tanuvasa’s statements were deliberate untruths, and warned the jury against the tendency of jumping to the conclusion that because someone has lied that makes her guilty of the offences with which she is charged. He said that lying helped mainly with credibility, that is whether you can believe what a witness is saying.
[20]	The Judge then returned to the issue of lies when summarising the defence case. He referred to the submission made by Mrs Tanuvasa’s trial counsel that the Crown had pointed the finger at Mrs Tanuvasa for the rib injury incident because she had told lies, and added:

[21]	The Judge had not, in fact, directed the jury in precisely those terms earlier, but nevertheless this direction gave a form of judicial endorsement to the submission by counsel.
[22]	While the direction on lies was not in a model form, and would have been more properly given in the Judge’s own remarks rather than in the context of summarising the Crown and defence cases, we are satisfied it was adequate in the present context. The relevance of lies to Count 3 was insubstantial, and the jury was properly advised that proof that an accused person has told a lie did not prove guilt of the offence.
[23]	Counsel for Mr Tanuvasa also relied on this point of appeal, but, given our views on the adequacy of the lies direction, we reject this ground of appeal in relation to Mr Tanuvasa as well.

[24]	The Judge did not give an expert witness direction, as is customary when expert evidence is led at a criminal trial. In addition it was alleged that one of the expert witnesses, Dr Kelly, the hospital paediatric expert, was not neutral. It was also argued that some of the evidence given by Dr Kelly was outside his area of expertise and that evidence relating to a reconstruction of the baby seat incident should not have been permitted.
[25]	It is customary, but not compulsory, for an expert evidence direction to be given: R v Flaws [1998] NZCA 93; (1998) 16 CRNZ 216 at 219 (CA). None was given in this case. At the conclusion of the Judge’s summing up, he asked counsel whether they wished to raise anything, and the Crown prosecutor raised the omission of an expert opinion direction. The Judge indicated that he did not think it was appropriate to bring the jury back to give such a direction because "it might rather savour of over-emphasis on the Crown case". Both Crown counsel and counsel for Mr Tanuvasa indicated that they did not wish to press the matter, and counsel for Mrs Tanuvasa did not express a view. The end result was that no expert evidence direction was given. The question for us on appeal is whether this omission led to a miscarriage of justice. We are satisfied that it did not.
[26]	The principal medical expert was Dr Kelly, the hospital paediatrician. He had examined K when he was taken to the hospital in August, and had concluded that the rib injury was not accidental. He had recommended the supervision regime which applied to the Tanuvasas at the time that the September incident occurred. His evidence as to the September incident was that injuries from the September incident involved a blow to the head, probably from behind, bruising to the face probably caused by something held and wrapped around K’s face for at least 30 seconds, and bruising to the back and front which was probably caused at the same time as the blow to K’s head, because he was strapped inside the car seat at the time.
[27]	There was no expert evidence called by the defence to contradict this, and there was no attempt to adduce evidence to the contrary in this Court either. The defence theory of the case was that the injuries to K had been caused by the car seat incident, but Dr Kelly’s evidence was that the injuries were not consistent with the car seat incident.
[28]	Evidence was also given by the paediatric intensive care specialist from the hospital, Dr Miles. She examined K on his admission to hospital and gave a description of the injuries she saw and their likely cause. She ruled out whiplash causing the injuries, and also indicated that she did not accept that the version of the car seat incident which was given to her by Mrs Tanuvasa was an explanation of the injuries that K had suffered. She was asked about the timing of the injuries. She accepted that it was difficult to estimate how long a period of time had elapsed between the time of the injury and the time that K was admitted to hospital, but said that it would not have been more than 12 hours. She said if there had been any extensive period of time between the time of the injuries and the time of admission to hospital, it was likely that K would have died.
[29]	The other expert evidence given was by Mr Miller, a specialist in the field of engineering materials. He gave evidence about the damage to the car seat, and of an experiment he conducted on a similar car seat. His evidence was that the car seat could not have been compressed in the way that Mrs Tanuvasa described. Mrs Tanuvasa’s description was consistent with that of the CYFS supervisor who was driving the van when the car seat incident occurred.
[30]	Ms Ord suggested that the lack of an expert evidence direction meant that the jury was left with the impression that the expert evidence had to be accepted. We disagree. The Judge gave the conventional direction that it was for the jurors to weigh the evidence and determine which parts of it they accepted and which they rejected. The jurors were told that they did not need to accept all of the evidence given by a particular witness.
[31]	Ms Ord said the impression that the jury had to accept the expert evidence was compounded by the Judge’s summary of the evidence in his summing up. She particularly criticised the reference by the Judge to Dr Kelly’s evidence being "uncontroverted". She noted that some of the doctor’s views were expressed as postulations or possibilities rather than as conclusions. That is true, but the doctor did say:

[32]	There was no expert evidence contradicting that view at trial. The Judge described as "uncontroverted" Dr Kelly’s evidence that "[it] required at least one very violent blow to the back of the head, possibly other blows to the head to cause that". We do not consider this to be an embellishment of what the doctor said. Having considered carefully what the Judge said about the doctor’s evidence, we do not accept the validity of the criticism made by Ms Ord. Overall, the Judge summarised the expert evidence fairly and said nothing which would have led the jury to believe it was obliged to accept it.
[33]	We are satisfied in this case that the failure to give an expert evidence direction has not led to a miscarriage of justice. The evidence was led appropriately, expressed in appropriately restrained terms and, although there was some cross-examination of the experts, there was no serious challenge to their conclusions, and no contradictory evidence. The jury was aware that it did not have to accept the evidence of any particular witness, including the expert witnesses. In circumstances where the defence offered no serious challenge to the expert evidence, we do not consider that any miscarriage resulted in the circumstances of this case.
[34]	Ms Ord also challenged the neutrality of Dr Kelly. She said because Dr Kelly had examined K after the rib incident and formed a view that this incident was non-accidental, and had also recommended the supervision regime for the Tanuvasas, he was not neutral when it came to assessing the injuries resulting from the September incident. We disagree. The fact that a medical expert has expressed a medical opinion about a different incident sometime before does not provide any proper basis for an accusation that he is not neutral. In circumstances where his evidence remains unchallenged even on appeal, there is no indication that his evidence was other than a proper application of his expertise to the facts. There is no proper basis for an accusation that he has given evidence other than impartially.
[35]	Ms Ord also argued that Mr Miller’s evidence was not complete because he did not give a clear explanation for a stress mark in the plastic of the car seat. He was not asked by defence counsel about this, and there was no indication given to us as to how that compromised the experiment which Mr Miller undertook. There is nothing in this point.
[36]	Ms Ord asserted that the evidence given by Dr Kelly about the car seat experiment was outside his area of expertise. We do not think there is anything in this. Ms Ord said only a specialist in biomechanics was qualified to give evidence of the kind given by Dr Kelly. We can see no reason why Dr Kelly should not have described what he saw when the experiment was conducted. Nor do we accept that a paediatrician is not qualified to express a view on the injuries a child would suffer from an incident like the car seat incident.
[37]	Ms Ord also submitted that the evidence of the experiment should not have been admitted. No objection was taken at the trial: Ms Ord said the failure to object was a radical error by counsel. We are satisfied that the experiment, although not an exact replication of what happened in the car seat incident, was relevant, and the evidence was more probative than prejudicial. There is no basis for the submission that failure by trial counsel to object to its admission led to a miscarriage of justice.

[39]	There were two video interviews with Mrs Tanuvasa, both of which were conducted by Detective Constable Bull. The first of these was on 4 September 2003, and the second was on 1 October 2003.
[40]	Ms Ord said that there were passages in the video interviews which were prejudicial and not probative, and ought not to have been played in front of the jury. She argued that a miscarriage of justice had resulted from this occurring.
[41]	There was, however, no objection to any of this material either in a pre-trial application or at trial, and in no instance did the exchanges complained of lead to any inculpatory statement by Mrs Tanuvasa. If objection had been taken either prior to the trial or at trial, it is possible that the Judge would have directed that the videotape be edited, or that the Crown would have agreed to such editing in the interest of fairness. But now that the matter is raised for the first time on appeal, the issue for this Court is whether the inclusion of this material in the videotape seen by the jury has led to a miscarriage of justice. We are satisfied that it has not.
[42]	The following aspects of the first video were highlighted by Ms Ord:

[43]	Dealing with the last aspect first, Mrs Tanuvasa told the detective that she did not wish to answer questions after she had been advised to that effect by a lawyer. The detective still asked her a number of further questions. She either refused to answer them or said nothing which was inculpatory. If she had made an inculpatory statement after exercising a right to silence, there might have been an issue about the admissibility of the inculpatory evidence: R v Ormsby CA493/04 8 April 2005 at [12]-[21]. In fact, Mrs Tanuvasa said nothing which was prejudicial to her in that interview after she exercised the right of silence, so the issue does not arise.
[44]	Much of the questioning by the officer was relevant to the neglect charge, which was later subject to a s 347 discharge. We will deal with its admission later. The questioning about the delay in taking K to the doctor after the rib injury was obviously relevant to Count 1, and although the police officer challenged Mrs Tanuvasa, we do not think the questioning was improper, and we are satisfied that no miscarriage arose from the jury seeing this part of the videotape.
[45]	The following passages from the 1 October video statement were criticised by Ms Ord:

[49]	Evidence was given of the way in which Mr and Mrs Tanuvasa cared for K, which indicated neglect in a number of respects. This was relevant to Count 2, but, as indicated earlier, the appellants were discharged under s 347 in respect of this count during the course of the trial. Ms Ord said that evidence of neglectful treatment of K was not admissible in relation to Counts 1 and 3, and that its admission and the lack of any guidance from the Judge to the jury about how to deal with this evidence had led to a miscarriage of justice.
[50]	In his summing up, the Judge recorded that the Crown accepted that it had failed to meet the standard of proof required in relation to Count 2 (that is, that the appellants had failed to provide the necessaries of life for K). The Judge continued that the Crown case was that this failure did not mean that the Crown was not taking issue with the management of the children. In fact the Crown suggested that evidence that was led in relation to Count 2 was helpful to the jury in their appraisal of the general attitude of the parents to their children, which was relevant to other charges and the Crown suggested that there was an attitude of neglect.
[51]	When summarising the defence case, the Judge noted a submission by counsel for Mrs Tanuvasa that Count 2 had not been pursued by the Crown, and that there was therefore no evidence of neglect. The Judge commented that that was a matter for the jury, and that it may or may not agree about that, but to the extent that there was any such evidence (of neglect), it may be helpful to the jury in considering the other matters before it.
[52]	Mr Horsley submitted that the evidence of neglect was of general relevance by way of background to the charges. He said the evidence illustrated that the appellants were under severe financial stress and pressure caused by a number of members of the extended family staying at their home. He said the evidence established that Mrs Tanuvasa’s treatment of K was such that she failed to get medical assistance after the broken ribs were drawn to her attention, and on a day to day basis did not take good care of K. He said this helped explain to a jury how it would be that a parent could assault his or her child in such a serious fashion. He said the general picture of neglect and the cavalier attitude to the baby was relevant, and compared to the injuries that were actually effected, was not of great prejudicial value.
[53]	In England and Australia there is authority distinguishing between "similar fact" evidence and "background" evidence. The leading English case is R v M [2000] 1 WLR 421. There the Court of Appeal stated at 426:

[54]	The need for a separate test for relationship evidence to dilute the high test of Pfennig is intelligible in Australia. However, in the present state of New Zealand law there seems no good reason to multiply categories of what, to use a term coined by Fisher J in giving the judgment of this Court in R v Mokaraka [2002] 1 NZLR 793, is "discrete evidence".
[55]	We are satisfied that the evidence was relevant as background evidence. It is clear that the original intent in adducing the evidence in this case was directed towards proving the neglect charge, but we are satisfied that it was also relevant background to both Count 1 and Count 3. It would have been artificial to consider the allegations in Counts 1 and 3 in isolation from the circumstances which led to the intervention of social workers, the supervision regime imposed on the appellants, the events leading to the discovery of the rib injury and the delays in obtaining medical treatment, as well as the other instances of neglectful treatment.
[56]	The defence was denial of involvement in the injuries to K. The version of events which the defence asked the jury to accept was that the appellants were loving parents who would not do anything to harm their children. In our view the evidence was, to use the words of Cooke P in R v Accused (CA 247/91) [1992] 2 NZLR 187 at 191, "sufficiently supportive of the prosecution case to justify allowing it to go to the jury notwithstanding any illegitimate prejudicial effect that it might have".
[57]	While we accept that some prejudicial effect arises from this evidence being before the jury, we do not see that as outweighing the probative effect of the evidence in the circumstances of this case. We see this case as similar in principle to the decision of the House of Lords in Thompson v The King [1918] AC 221.
[58]	Such analysis is consistent with ss 40-41 of the Evidence Act 2006, to be brought into force by Order in Council.

[62]	Counsel for Mr Tanuvasa, Ms Levy, accepted that the Judge directed the jury appropriately on the requirements for establishment of criminal liability under s 66(1)(b) of the Crimes Act. However she argued that Mr Tanuvasa’s trial counsel failed to explain four important matters to the jury, and this meant that those important matters were also omitted from the Judge’s summing up. She said that the omission of these important matters raised a real risk of a miscarriage of justice.
[63]	The first of these matters was that there was no admissible evidence that Mr Tanuvasa knew that his wife had attacked the baby in the circumstances that were the subject of Count 1. Thus there was no basis for Mr Tanuvasa to be "on his guard" against a violent attack on K. In our view that submission ignores the reality that Mr and Mrs Tanuvasa were living apart at the time of the 4 September incident because of the supervision arrangements that had been put in place after the rib injury suffered by K. Whether there was admissible evidence that Mr Tanuvasa knew Mrs Tanuvasa had caused the rib injury is of secondary importance to the fact that he knew that she was suspected of doing so and that CYFS had intervened and imposed a supervision regime because of concerns about her treatment of K. In our view that was enough to put him on his guard.
[64]	The second matter was that the injuries could have taken place in a way that Mr Tanuvasa was not in a position to stop them. The Crown case was that the injuries had taken place during the car ride from Avondale to Ellerslie, while Mr and Mrs Tanuvasa and their two children were in the van. Both Mr and Mrs Tanuvasa denied any involvement in the injuries being caused. The possibility that Mrs Tanuvasa had caused the injuries during the car ride but without Mr Tanuvasa’s knowledge was never canvassed, and there was no indication that trial counsel was instructed to put forward a defence on that basis. Trial counsel was cross-examined before us and this was not put to him. We do not think trial counsel can be criticised for not putting forward what would have been a speculative and inherently unbelievable defence.
[65]	The third matter was that the failure of Mr Tanuvasa to obtain medical help for K’s injuries after the 4 September assault was capable of being consistent with ignorance of the injuries. That ignorance could result either from the possibility that the injury occurred before the car ride from Avondale to Ellerslie commenced, or because Mr Tanuvasa was unaware of the infliction of the injuries taking place during the car ride. Alternatively his failure to obtain medical help may have resulted from his acquiescence in his wife’s plan to stage the car seat incident, which would precipitate the provision of medical attention.
[66]	We do not think there is anything in this point. The Judge’s direction to the jury did not suggest that the mere failure to seek medical help would substantiate a case of being a party: the issue that was put to the jury was whether Mr Tanuvasa could have intervened at the time of the attack and failed to do so.
[67]	Nor do we think that there is any plausible basis for the argument on appeal that the injuries to K could have occurred prior to the commencement of the car journey, at a time when the social worker was present at the appellants’ home. The evidence of the social worker who was with the Tanuvasas at their home on 4 September was that K was uninjured at the time she placed him in the car for the journey from Avondale to Ellerslie. She was not challenged about this in cross-examination.
[68]	The only evidential basis for the possibility of the injuries occurring before the car journey was the evidence of Dr Miles, the doctor who examined K on his admission to the hospital. She gave evidence that the timing of the injuries was difficult to determine, and that they may have occurred up to 12 hours before his admission to hospital. That 12 hour period would include the period prior to the car journey. But in the light of the social worker’s evidence which was not challenged in cross-examination, there was no proper basis for counsel to submit to the jury that it should find that the injuries occurred prior to the car journey.
[69]	The fourth matter was that a finding that Mr Tanuvasa was lying to cover up for his wife’s offending did not necessarily equate to his guilt in the matter. Ms Levy said there would have been good reasons for him to lie, even if he was aware of an attack by his wife: one being his desire to prevent her being convicted, and the other being his desire to prevent the children being taken away.
[70]	We have already dealt with the lies direction earlier in this judgment, and we reiterate that we are satisfied that it was adequate.
[71]	Ms Levy said that the Judge effectively directed the jury that, if the jury accepted the Crown case, then Mr Tanuvasa was guilty as a party. That is not what the Judge said: rather he said that the Crown submitted that Mr Tanuvasa was guilty as a party. The Judge did not endorse that submission and, as counsel properly conceded, his direction on the law relating to parties was both appropriate and correct.
[72]	We reject this ground of appeal.

[73]	Ms Levy said that Mr Tanuvasa was denied the right to give evidence by the actions of his trial counsel. She did not suggest that trial counsel had failed to comply with an instruction to call Mr Tanuvasa. Rather, the allegation was that trial counsel’s actions led Mr Tanuvasa to believe that he did not have the choice of giving evidence, because his lawyer did not think it would be a good idea. She said this had led to, or contributed to, a miscarriage of justice.
[74]	We received in evidence affidavits from both Mr Tanuvasa and his trial counsel, and both were cross-examined before us. Having considered the affidavits and having seen and heard the cross-examination, we have reached the clear view that Mr Tanuvasa accepted his counsel’s advice not to give evidence, knowing he had a choice. It is equally clear to us that trial counsel did not do anything to cause Mr Tanuvasa to believe that he did not have the choice to give evidence on his own behalf.
[75]	The evidence of trial counsel was that he knew before the trial that Mr Tanuvasa was keen to give evidence and that he anticipated during the trial that he would give evidence. He said that the matter was discussed on the day before the trial at a meeting between Mr Tanuvasa and his trial counsel, and at that time counsel expected that Mr Tanuvasa would be called. This is confirmed by a letter which counsel wrote to the Legal Services Agency on the day before the trial, in which he stated that he anticipated that Mr Tanuvasa would give evidence.
[76]	Trial counsel said that the matter was discussed with Mr Tanuvasa at the end of the Crown case, and he advised Mr Tanuvasa in Samoan that he was entitled to give evidence if he wished to do so. Counsel said that he said to Mr Tanuvasa that he believed that Mr Tanuvasa had given a good video interview with the police, and that in counsel’s view this was sufficient for the purposes of the trial. Counsel said he was concerned at the possibility that cross-examination by an experienced Crown prosecutor could undo the good impression which the video interview would have created. Counsel said that he advised Mr Tanuvasa not to give evidence but left him the choice of doing so.
[77]	Mr Tanuvasa accepted that there was a discussion between him and his counsel at the end of the penultimate day of the trial when it was time for him to elect whether or not to give evidence. He accepted that he discussed the matter with his counsel, and that he then discussed with his wife later that evening whether he should give evidence. When asked why he was discussing the matter with his wife if he thought he had no choice about giving evidence, he said that he was relying on his lawyer. He accepted in cross-examination that whether or not he should give evidence was "something that you needed to decide with you and your wife". When asked from the Bench why he thought his lawyer was raising the topic of the choice of giving evidence if there was in fact no choice, he answered that he did not understand exactly what to do and he was relying on his lawyer’s work.
[78]	We are satisfied that trial counsel’s advice was that it would be better if Mr Tanuvasa did not give evidence, in counsel’s view, but that the decision remained with Mr Tanuvasa himself. It is consistent with the fact that Mr Tanuvasa was told to discuss the matter with his wife overnight, which would have been pointless if his lawyer had taken the decision away from him. It is also consistent with the expectation that both counsel and Mr Tanuvasa had at the beginning of the trial that Mr Tanuvasa would, in fact, give evidence.
[79]	This ground of appeal therefore fails.