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The Queen v Filo [2007] NZCA 20 (22 February 2007)

Last Updated: 5 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA408/06
[2007] NZCA 20

THE QUEEN

v

LATU FILO

Hearing: 14 February 2007

Court: Robertson, Ronald Young and Venning JJ

Counsel: M F Tuilotolava for Appellant
E M Thomas for Crown

Judgment: 22 February 2007 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] On 25 August 2006 the appellant was found guilty of causing grievous bodily harm to a child, with reckless disregard for the child’s safety. He was sentenced to three years’ imprisonment. The appellant was acquitted of the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm.
[2] Mr Filo appeals against conviction on the basis that the Judge’s direction to the jury was inadequate and against sentence on the basis that the term of imprisonment was manifestly excessive.

Background

[3] The incident occurred early on the morning of 21 August 2002. The appellant, his partner, their two old year old child and the partner’s nephew, the victim, were living in the home. The victim was six months old. The previous day the victim had been seen by a doctor on an unrelated matter and was reported as being generally in good health at that time.
[4] The victim’s crying woke the appellant. He got up and went to the victim. The appellant attempted to pacify the victim but the child would not settle. The appellant then took a number of steps to try and make the victim stop crying. In the course of that, the appellant caused a number of injuries to the victim. The injuries were consistent with impact trauma and with the victim having been shaken. The injuries were also consistent with the victim’s head being hit on a hard object.
[5] The victim began to have difficulty breathing. The appellant woke his partner. An ambulance was called. The victim was admitted to Middlemore Hospital and then later to Starship Children’s Hospital. Treatment was necessary to relieve pressure on his brain. The victim spent three days in intensive care and, in total, 16 days in hospital. Evidence was led at trial that the victim sustained:
 severe bleeding inside the brain;
 bleeding between the brain and skull;
 swelling to the brain;
 severe retinal haemorrhaging; and
 bruising to the forehead, lower lip and arm.
[6] The defence at trial was wide-ranging. First, the defence suggested the injury could have occurred any time after the child was seen by the doctor the day before and between the hours of 7.30 a.m. and 8.00 a.m. on the morning of the 21^st when the 111 call was made. Next, if the injuries were caused on the morning of the 21^st, defence counsel submitted there was no evidence the appellant had caused them. Counsel submitted that the injuries may have been caused by an accident, possibly a fall. Counsel then submitted that it was a quantum leap to say that not only had the accused done it but that he must have caused the injuries by hitting the child against a wall or knocking the child hard on the floor.
[7] In support of the defence of accident the appellant called Professor Ferris, a consultant forensic pathologist. Professor Ferris gave evidence that in his opinion the injuries to the victim were not caused by what is known as "shaking baby syndrome" but were caused by a fall or an impact similar to that of a fall.

The appellant’s case

[8] The appellant’s case is that Judge Wade misdirected the jury (and implicitly as a consequence that led to a miscarriage of justice) by failing to summarise the conflict between the Crown case and the defence case, and particularly by failing to refer in detail to the evidence of Dr Ferris.

How far must a Judge go to put the defence case?

[9] How far a Judge need go to discharge his or her duty to put the defence to the jury must ultimately depend on the circumstances of the particular case: R v Anderson [1951] NZLR 615 (CA), R v Campbell [1954] NZLR 22 (CA); R v Raymond [1956] NZLR 527 (CA); R v Ryan [1973] 2 NZLR 611 (CA); R v Foss (1996) 14 CRNZ 1 (CA). In R v Ryan Richmond J said at 614:

One of the most helpful statements on the point is to be found in the remarks of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R 22 at 29:

The duty of the Judge in any criminal trial, or, for the matter of that, in any civil trial, is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices or matters which require by law or practice corroboration, and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else.

Decision

[10] In the present case Judge Wade gave a relatively standard direction on the issue of expert witnesses without referring in any detail to the evidence of the expert witnesses called for the Crown or the evidence of Dr Ferris for the defence. The Judge explained to the jury that he did not propose to summarise the evidence as the jury would have copies of the transcript. However, Judge Wade did summarise the respective cases of the Crown and the accused in some detail. At the conclusion of that summary, which ran from [30] to [44] of the summing-up, the Judge helpfully identified the crucial questions for the jury, namely:

The crucial questions of course are what time did the injury occur? How was that injury caused? Who caused it? Was it done deliberately or by accident? And if you are sure it was the accused, what was in his mind at the time? Was he intending to cause grievous bodily harm? Was he being reckless, as I have directed you on the test you should apply?

[11] Earlier, in dealing with the defence of accidental injury the Judge referred to the evidence of Dr Ferris that was supportive of an accidental fall in the following passages:

[38] The Crown says if it was simply an accident such as a fall, why aren’t there any injuries on any other part of the body? The defence of course say well there are in fact. There is this bruise on the forehead and there is the abrasion Professor Ferris told us about in the centre of the bruise and that confirms that the head did strike an object of some kind to have caused that injury. The Crown say that on the face and forehead we have two separate injury sites, the lip and the forehead. The Crown says if you draw a line between those two pints that line would cross the nose and therefore, says the Crown, there must have been two separate things happen for those two separate injuries to be caused because there is no injury to the nose.
[39] Professor Ferris on the other hand, you remember, said to us that baby’s noses are not like adult’s noses, they are much softer and more pliable and therefore even though the nose may have been in contact with a hard surface as well, that may well explain the lack of any injury to the nose.

[12] In referring to the evidence of the Crown expert witnesses, particularly Dr Mora’s conclusion that the victim had been a "shaken baby", the Judge went on to refer to Dr Ferris’ opinion that was not the case at [40]:

Professor Ferris strongly disagrees with that and you can read his evidence for yourself if you want to remind yourself about it.

[13] Later the Judge put it generally:

[43] ... The defence says the Crown has to rely exclusively on hotly disputed medical evidence of their witnesses, the crucial conclusions of the Crown witnesses being hotly contested by Professor Ferris. This is not, says the defence, a clear cut case at all. This is not, says Ms Tuilotolava, a black and white case.

[14] In assessing whether, in the circumstances of this case, the Judge gave a fair picture of the defence, it is also relevant to note that the trial was of a relatively short duration. It started on 21 August and concluded on 25 August with the summing-up and jury verdicts. During that period the Judge was not able to sit on one half day. A complete transcript of the evidence went to the jury. The Judge referred to the transcript and directed the jury on the use to which that could be put. The evidence and counsels’ addresses would have been fresh in the jury’s mind when they retired to consider their verdicts. They had the transcript available if they required it.
[15] We are not able to accept the submission that the Judge was required to summarise in detail the expert evidence called by the defence. The authorities referred to at [9], particularly the concluding comments to the citation from the judgment of Lord Goddard CJ in R v Clayton-Wright make that clear. Among the matters required of the Judge was to put the defence case. He more than adequately set out the basis for the defence case and identified the issues in the case for the jury. The summing-up was clear. The jury would have understood the basis of the defence case from the summing-up. We note that counsel did not raise the concerns she now raises, when she had the opportunity to do so at the conclusion of the Judge’s summing-up.
[16] There was no misdirection. The appeal against conviction will be dismissed.

Appeal against sentence

[17] In support of the appeal against sentence counsel submits that a sentence of less than two years would have seen justice done and that the sentence of three years was akin to a sentence for the more serious charge of intentionally causing harm to the victim as opposed to the jury’s verdict of causing injury by reckless disregard. Counsel also submitted that in all the circumstances it was harsh to increase the starting point of two years nine months to three years to take account of the appellant’s previous convictions.
[18] The maximum penalty for the offence is seven years. In the case of R v Gatland CA330/98 26 November 1998 this Court dismissed an appeal against a three year sentence imposed after trial on one count of causing grievous bodily harm with reckless disregard. In that case the victim, a six month old child suffered a skull fracture causing subdural bleeding into the eye sockets and local brain damage. The Court upheld the three year sentence as being well within the available range.
[19] This Court has also recently noted that assaults on children, especially those children who are in the care of the offender, would warrant sterner sentences than like assaults on adults: R v Wilson [2004] 3 NZLR 606 at [35] (CA).
[20] Given the circumstances of this case and the injuries sustained by the victim the starting point of two years nine months was well within the sentencing range available to the Judge. Indeed, Ms Tuilotolava was prepared to concede it was within the range available to the Judge.
[21] The appellant has two previous convictions for male assaults female and also two previous convictions for common assault. Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) [1988] HCA 14; 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at 597:

... the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[22] The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.
[23] In this case the Judge was entitled to uplift the starting point of two years nine months by three months to take account of the previous convictions under s 9(1)(j) of the Sentencing Act 2002. The previous convictions for violence were sufficiently recent and relevant to the offending for which he was for sentence on.
[24] There is one further matter that arose during argument. The offending occurred in August 2002. The appellant was not arrested and charged until 2004. Although initially granted bail, he was subsequently arrested on a charge of rape against his partner. The appellant spent nine months in custody on that charge, which did not proceed as the complainant was killed in a car accident. Given the delay in prosecuting the appellant we sought submissions from counsel as to the effect of the remand in those circumstances.
[25] Mr Thomas filed a memorandum which confirmed that the effect of s 91(1)(c) of the Parole Act 2002 is that the appellant will be credited with the time he spent in custody on the rape charge as he was arrested on that charge after he was arrested for the offending the subject of this appeal. Ms Tuilotolava, by memorandum, agreed with that interpretation. In the circumstances the issue does not require further consideration.

Result

[26] The appeals against conviction and sentence are dismissed.

Solicitors:
Ferguson Tuilotolava, Manukau for Appellant
Crown Law Office, Wellington

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[1]	On 25 August 2006 the appellant was found guilty of causing grievous bodily harm to a child, with reckless disregard for the child’s safety. He was sentenced to three years’ imprisonment. The appellant was acquitted of the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm.
[2]	Mr Filo appeals against conviction on the basis that the Judge’s direction to the jury was inadequate and against sentence on the basis that the term of imprisonment was manifestly excessive.

[3]	The incident occurred early on the morning of 21 August 2002. The appellant, his partner, their two old year old child and the partner’s nephew, the victim, were living in the home. The victim was six months old. The previous day the victim had been seen by a doctor on an unrelated matter and was reported as being generally in good health at that time.
[4]	The victim’s crying woke the appellant. He got up and went to the victim. The appellant attempted to pacify the victim but the child would not settle. The appellant then took a number of steps to try and make the victim stop crying. In the course of that, the appellant caused a number of injuries to the victim. The injuries were consistent with impact trauma and with the victim having been shaken. The injuries were also consistent with the victim’s head being hit on a hard object.
[5]	The victim began to have difficulty breathing. The appellant woke his partner. An ambulance was called. The victim was admitted to Middlemore Hospital and then later to Starship Children’s Hospital. Treatment was necessary to relieve pressure on his brain. The victim spent three days in intensive care and, in total, 16 days in hospital. Evidence was led at trial that the victim sustained:
	severe bleeding inside the brain;
	bleeding between the brain and skull;
	swelling to the brain;
	severe retinal haemorrhaging; and
	bruising to the forehead, lower lip and arm.
[6]	The defence at trial was wide-ranging. First, the defence suggested the injury could have occurred any time after the child was seen by the doctor the day before and between the hours of 7.30 a.m. and 8.00 a.m. on the morning of the 21^st when the 111 call was made. Next, if the injuries were caused on the morning of the 21^st, defence counsel submitted there was no evidence the appellant had caused them. Counsel submitted that the injuries may have been caused by an accident, possibly a fall. Counsel then submitted that it was a quantum leap to say that not only had the accused done it but that he must have caused the injuries by hitting the child against a wall or knocking the child hard on the floor.
[7]	In support of the defence of accident the appellant called Professor Ferris, a consultant forensic pathologist. Professor Ferris gave evidence that in his opinion the injuries to the victim were not caused by what is known as "shaking baby syndrome" but were caused by a fall or an impact similar to that of a fall.

[14]	In assessing whether, in the circumstances of this case, the Judge gave a fair picture of the defence, it is also relevant to note that the trial was of a relatively short duration. It started on 21 August and concluded on 25 August with the summing-up and jury verdicts. During that period the Judge was not able to sit on one half day. A complete transcript of the evidence went to the jury. The Judge referred to the transcript and directed the jury on the use to which that could be put. The evidence and counsels’ addresses would have been fresh in the jury’s mind when they retired to consider their verdicts. They had the transcript available if they required it.
[15]	We are not able to accept the submission that the Judge was required to summarise in detail the expert evidence called by the defence. The authorities referred to at [9], particularly the concluding comments to the citation from the judgment of Lord Goddard CJ in R v Clayton-Wright make that clear. Among the matters required of the Judge was to put the defence case. He more than adequately set out the basis for the defence case and identified the issues in the case for the jury. The summing-up was clear. The jury would have understood the basis of the defence case from the summing-up. We note that counsel did not raise the concerns she now raises, when she had the opportunity to do so at the conclusion of the Judge’s summing-up.
[16]	There was no misdirection. The appeal against conviction will be dismissed.

[17]	In support of the appeal against sentence counsel submits that a sentence of less than two years would have seen justice done and that the sentence of three years was akin to a sentence for the more serious charge of intentionally causing harm to the victim as opposed to the jury’s verdict of causing injury by reckless disregard. Counsel also submitted that in all the circumstances it was harsh to increase the starting point of two years nine months to three years to take account of the appellant’s previous convictions.
[18]	The maximum penalty for the offence is seven years. In the case of R v Gatland CA330/98 26 November 1998 this Court dismissed an appeal against a three year sentence imposed after trial on one count of causing grievous bodily harm with reckless disregard. In that case the victim, a six month old child suffered a skull fracture causing subdural bleeding into the eye sockets and local brain damage. The Court upheld the three year sentence as being well within the available range.
[19]	This Court has also recently noted that assaults on children, especially those children who are in the care of the offender, would warrant sterner sentences than like assaults on adults: R v Wilson [2004] 3 NZLR 606 at [35] (CA).
[20]	Given the circumstances of this case and the injuries sustained by the victim the starting point of two years nine months was well within the sentencing range available to the Judge. Indeed, Ms Tuilotolava was prepared to concede it was within the range available to the Judge.
[21]	The appellant has two previous convictions for male assaults female and also two previous convictions for common assault. Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) [1988] HCA 14; 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at 597:

[22]	The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.
[23]	In this case the Judge was entitled to uplift the starting point of two years nine months by three months to take account of the previous convictions under s 9(1)(j) of the Sentencing Act 2002. The previous convictions for violence were sufficiently recent and relevant to the offending for which he was for sentence on.
[24]	There is one further matter that arose during argument. The offending occurred in August 2002. The appellant was not arrested and charged until 2004. Although initially granted bail, he was subsequently arrested on a charge of rape against his partner. The appellant spent nine months in custody on that charge, which did not proceed as the complainant was killed in a car accident. Given the delay in prosecuting the appellant we sought submissions from counsel as to the effect of the remand in those circumstances.
[25]	Mr Thomas filed a memorandum which confirmed that the effect of s 91(1)(c) of the Parole Act 2002 is that the appellant will be credited with the time he spent in custody on the rape charge as he was arrested on that charge after he was arrested for the offending the subject of this appeal. Ms Tuilotolava, by memorandum, agreed with that interpretation. In the circumstances the issue does not require further consideration.