The Queen v Broadhurst [2008] NZCA 454 (31 October 2008)

Last Updated: 12 November 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA249/2008 [2008] NZCA 454THE QUEEN

v

WARICK IAN TE WETINI BROADHURST

Hearing: 17 September 2008

Court: Robertson, Wild and Cooper JJ

Counsel: P L Borich and C H Bennett for Appellant
S J M Mount for Crown

Judgment: 31 October 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No

Introduction [1]
Background [4]
Evidence of previous injuries [16]
The Judge’s approach [31]
The appellant’s arguments [35]
The Crown’s response [40]
Discussion [43]
Dr Kelly’s evidence as to likely cause [51]
Cross-examination of Dr Kelly [63]
The sentence appeal [71]
Result [78]

Introduction

[1] The appellant was charged with the murder of Arwen Fletcher, who was the daughter of his partner, Molly Fletcher. Arwen was just over two years old when she died of head injuries on Friday 17 March 2006. At his trial before Winkelmann J and a jury, the appellant was found not guilty of murder, but guilty of manslaughter. He was sentenced to imprisonment for a term of seven and a half years.
[2] He now appeals against both his conviction and sentence. In support of the conviction appeal he argues that the Judge wrongly admitted evidence related to injuries sustained by the deceased prior to the fatal injuries, that evidence given by an expert at the trial, one Dr Kelly, as to the likely cause of the fatal injuries was inadmissible and finally, that the Judge wrongly restricted the ambit of cross-examination of Dr Kelly at the trial. The appellant further submits that the sentence of seven and a half years’ imprisonment was clearly excessive.
[3] In order to put the arguments in context, it will be appropriate to say something about the family’s living circumstances, and the cause of Arwen’s death.

Background

[4] In March 2006 the appellant was 18 years of age. Ms Fletcher was 22. They had a child Jessica, born on 22 November 2005. Arwen was Ms Fletcher’s daughter from a previous relationship.
[5] The family lived at Waiuku. Ms Fletcher worked at a local Subway outlet for about 20 hours a week, and had done so for about a year. On Wednesday 15 March 2006 the appellant took Ms Fletcher to work at Subway at around 4.30 p.m. She said that the children were fed and happy when she was dropped off at work.
[6] After he had left Ms Fletcher, the appellant took the children to see a family friend, Jonathon Cameron. Mr Cameron described Arwen as “fine” at the time of the visit. The appellant drove to a video store and returned home with the children at about 7.00 p.m.
[7] Between 8.00 p.m. and 8.15 p.m. that evening the appellant arrived at the Waiuku Medical Centre with Arwen. She was limp and floppy and had stopped breathing. A Dr Anderson performed CPR, but Arwen managed only a “few gasps”. Subsequently she was taken by ambulance to Middlemore Hospital and then to the Starship Hospital in central Auckland. She was certified brain dead on the morning of Friday 17 March 2006 and taken off life support. She died at 11.45 a.m.
[8] She had suffered a skull fracture, 28 centimetres in length, described by Dr Kelly (who was a consultant paediatrician at the hospital) as a “complete fracture... from front to back”. She had suffered severe brain damage, traumatic injury to the brain stem and cervical cord, bleeding over the surface of the brain and severe retinal haemorrhaging. She had a cut lip, consistent with three teeth from her lower jaw having gone into her lower lip. There was also evidence of a separate, older, brain injury to the under surface of the left frontal lobe. It was the defence case that Arwen’s fatal injuries had been sustained in an accidental fall.
[9] Dr Synek was a Fellow of the Royal College of Pathologists of Australasia, and a specialist in neuropathology. She gave evidence that the severity of the injuries was such that Arwen would not have been able to stand or walk following the brain stem injury. In her opinion, “one particular event” had caused that injury.
[10] Another medical specialist was called, Dr Mora. He was a consultant opthamologist and an expert in paediatric opthamology. He referred to a number of features related to Arwen’s eye injuries. He mentioned first the “sheer number of haemorrhages”, which he described as being “at the extreme end”. Secondly, there was the fact that the haemorrhages were not just towards the back part of the eye, but extended all the way out to the periphery of the retina. The fact that the haemorrhages were within all layers of the retina and on the surface of the retina, together with the presence of “macular schisis” led him to state that the injures were “unheard of in any situation other than ... shaking baby non-accidental injury”. He referred to “macular schisis” as being most unusual, and until recently never reported in cases involving other than non-accidental injury. He referred to two known instances only, in which children had suffered severe crash injuries and a heavy weight falling directly on the head. He said:

It is unusual and to all intents and purposes it is considered almost diagnostic of ... non-accidental injury.

[11] Another medical expert, a pathologist, Dr Denmark, gave evidence as to the kind of impact that could have produced Arwen’s injuries. It was his evidence that:

... [I could] certainly say slamming down against a slightly padded surface with a firm underlay to it could produce this. I certainly don’t think it could occur from a simple fall .... The reason why I’m going on about slightly padded surfaces is because we have no surface injury on the skin ... if we had this sort of impact where [say on] bare concrete [we would] expect a split in the skull. We’ve got no surface injury at all. How did we get this big impact that cracks the skull open with no skin injury and the answer is if the actual immediate surface is slightly padded and you’ve got hair in between you don’t necessarily get skin damage.

[12] It was Dr Denmark’s evidence that the injuries could not have been the result of a simple fall from a standing height.
[13] Similarly, it was Dr Kelly’s view that a “very large amount of force” would have been required to cause the skull fracture sustained by Arwen. It was very unusual, in his view, for there to be a skull fracture of any sort from a “typical” fall such as from a bed or couch. In those sorts of cases, the incidence of skull fractures was about one per cent and the fractures were usually a “simple crack” through one bone in the skull. However, in this case the skull had been split essentially down the middle. Dr Kelly said that he had “never seen a fracture of this severity from ... any kind of ordinary fall”. In his view, for the fracture to have been sustained in a fall, the fall would have had to have been very significant, probably one of several metres. In his view, the injuries were not accidental.
[14] The appellant made two statements to the police, on 16 March 2006. In the first statement he said that Arwen had banged her head after getting out of the shower the previous night. He had lifted her out of the bath, turned away for a few seconds and had then seen Arwen “almost on the floor of the bathroom”. Her head was touching somewhere near the door frame or wall on the “open” side of the door frame, away from the hinges. He then saw her slide onto the floor on her back, her head “again hitting the bottom part of the door frame”. Then she stood up, walked into the hallway just outside the bathroom and “lost control of her body”. He described her as having gone limp and then:

shit and pissed all over the floor. Her head slumped forward of her shoulders and she fell head-first into the wall, sort of on a corner. She then lay on the floor, not moving. Her breathing was like a wheezing sound, like she had asthma. She was perfectly still, her eyes were open but I don’t know if she was awake or conscious.

[15] He took her to the bedroom where he called out her name, but there was no reply. He then took her to the Waiuku medical Centre. He denied at any stage deliberately causing injury to Arwen. In a second statement on the same day, he added that after he had picked her up following her fall he held her under each armpit and shook her several times “to try to keep her awake”. He said that he probably shook her “a bit harder than I should have done because I was panicking at the state that she was in”.

Evidence of previous injuries

[16] The first ground of the conviction appeal is essentially a challenge to a ruling made by Winkelmann J that evidence of previous injuries to Arwen could be led by the Crown at the trial. The evidence in question related to events or observations made on 7 and 14 March 2005, 4 April and 27 June 2005 and February 2006.
[17] In relation to the first two dates, the Crown called evidence from Sylvia Galbraith, who was employed at the Waiuku Childcare Centre. She said that on 7 and 14 March she had observed “very unusual” dark bruising along Arwen’s spine radiating out to both sides of her back. However, Ms Fletcher described these markings on Arwen’s body as Mongolian spots, which had been present since birth. Dr Kelly, in his evidence-in-chief also spoke of observing “some Mongolian blue spots which are a common birth mark on the lower back and are of no particular significance.” In cross-examination he explained that Mongolian spots are particularly common in infants of Pacific Island or Maori descent. He said that to an inexperienced observer they can look like a bruise, but they are not. In the light of that evidence, the Crown changed its stance at the trial and in its closing address no longer sought to rely on the Mongolian spots as indicative of injury to Arwen inflicted in March 2005.
[18] There was also evidence from Helen Smithson, who was a senior teacher at the Waiuku Childcare Centre. She said that on 4 April 2005 Arwen had a deep graze on her inner back and upper thigh. Ms Fletcher said that she could not recall that injury, but assumed that the graze would have resulted from “falling down the steps”. In a voir dire, Dr Kelly said of this injury that there might be an “accidental explanation” for it, but that it was “hard to be sure whether it may have represented abuse or not”.
[19] Ms Smithson also gave evidence that on 27 June 2005, she noticed that Arwen’s right eye and right side of her forehead were “red and black bruised”. Ms Fletcher recalled these injuries. She said that Arwen had managed to climb up onto a television cabinet and had then fallen off. That explanation was not in fact hers; she was recounting what the appellant had told her. Arwen had been in his care at the time.
[20] Dr Kelly also gave evidence about the 27 June injuries in the voir dire. In his evidence in chief he addressed a different factual scenario of Arwen having fallen “onto” a television cabinet. He said that there may well have been an “accidental explanation”. In cross-examination he confirmed that he could not say whether or not it was accidental.
[21] The final evidence to which the appellant objected was in relation to events that occurred in February 2006. Ms Fletcher gave evidence that on Monday 20 February she was leaving the house to go to the supermarket to pick up some baby formula when Arwen saw her, ran after her and fell on the back deck. She did not see the fall, but heard it from the bottom of the steps. At the time, she also saw a red circular mark on Arwen’s temple. After comforting her, she sent her back inside. When she returned from the supermarket, Arwen appeared to be well.
[22] However, by the following morning, Arwen’s face had become swollen, and she took her to see a Dr Brown at the Waiuku Medical Centre. On the way to the medical centre, Arwen vomited. The doctor diagnosed simply “a bump and bruise”. There was swelling outwards from Arwen’s right eye and the following day, both eye lids were swollen. There was bruising that faded after a period of almost three weeks. Ms Fletcher mentioned an overflow pipe on the back porch, a little lower than Arwen’s height. She said that at the time Arwen fell, she thought she might have “banged into that” or simply fallen into a recycling bin containing bottles which was placed on the deck nearby.
[23] Jonathon Cameron was a friend of Ms Fletcher. He gave evidence of seeing Arwen in early 2006 with bruises under her eyes. A few days later, when he saw her again, the bruising had become darker. He spoke to the appellant about it. The appellant told him that Arwen had been up on a chair “and as the chair fell away she hit her head on the table”.
[24] Victoria Heaslip, a work acquaintance of Ms Fletcher, had seen Arwen “in the first couple of months of 2006”. She described her as having a lot of bruising on both sides of her face, from the nose to the ears “very similar to a batman mask”.
[25] Pamela Morley, employed as a practice nurse at the Waiuku Medical Centre also saw Arwen on 21 February. She described a bruise on the cheek on one side of her face (she could not remember which) and a bruise on the temple of the other.
[26] Dr Synek described a lesion on the under surface of the left frontal lobe of the brain. It was a small bruise, and at least two weeks old when she examined Arwen’s brain at a post mortem on 17 March 2006. In her view, it was possible that there would have been concussion with the event that had caused the lesion, with sleepiness and vomiting. This was consistent with the records of the Waiuku Medical Centre. However, under cross-examination she conceded that the lesion could in fact have been up to three months old. She could not exclude the possibility that it was the result of Arwen accidentally running into a table, although that would be “very unusual”.
[27] Dr Denmark also gave evidence that the lesion related to an injury sustained earlier than those causing death. Dr Kelly gave evidence that a bruise on the under surface of the frontal lobe is an uncommon injury in children. He said that it would not have been the result of her falling from the dining room chair as had been suggested by the appellant to Mr Cameron. Some “rather significant” mechanism would in his view have been needed:

Something has to decelerate the head enough to make the frontal lobe move over the surface of the inside of the skull enough to tear the brain....

[28] The symptoms Arwen exhibited on the day of the incident on the deck made it most likely that the lesion had occurred at that time. However, it was unlikely that the injury could have been caused by her just running and falling from her own height on the verandah.
[29] Dr Kelly was cross-examined at length by Mr Borich about this incident. He said that the lesion was possibly the result of non-accidental injury, but that he could not be certain of that, and it could well have been accidental. He stressed, however, the rare nature of the injury, and in response to various possible causes put to him by Mr Borich, he maintained his view that it could only have been the result of one incident involving a major “decelerative” episode.

Clearly if I had evidence that she had run the full length of the verandah and run full tilt into the wall and fallen over flat on her back, then yes, that would be a mechanism that might well explain that injury.

[30] In the statements that he made to the police on 16 March 2006 the accused described two incidents, as well as the events on the morning when Arwen’s fatal injuries were sustained. One incident, which he said happened about one month previously, was when he heard a bumping sound which he attributed to Arwen hitting her head on the glass top of the dining room table. She had cried for a short time, but he thought rather as a result of shock than because she was in significant pain. The second incident was about four days after the first and was the event that Ms Fletcher had described when Arwen fell on the deck. From the appellant’s account, Arwen had run into the living room pointing to the side of her face and saying “sore”. After the visit to the Waiuku Medical Centre, the appellant said that Arwen had slept a lot on that day and for the next couple of days. She had also “vomited most of her food” during this time. He had not seen what happened on the deck, but said that there were several boxes of empty beer bottles there, and that a bottle top had formed the perfect match with the mark on Arwen’s face.

The Judge’s approach

[31] In her ruling made at the outset of the trial, and before the position about the Mongolian spots emerged with clarity, Winkelmann J allowed the Crown to call all the evidence, noting that its purpose was to rebut the defence of accident raised in relation to the fatal injuries sustained by Arwen. She also said that the evidence was called for the purpose of showing that the appellant had hit Arwen on previous occasions, and had a propensity to do so. Consistently with that, she analysed the admissibility of the evidence under s 43 of the Evidence Act 2006, but also referred to s 7 of that Act. In the result, the evidence was admissible as tending to show that the accused had on earlier occasions intentionally injured Arwen, or to undermine the credibility of the defence claim that the injuries were the result of an accident whilst she was in his care.
[32] Winkelmann J held that all of the evidence was of probative value. Her reasoning was set out at paragraphs [18] – [22]:

[18] In terms of the probative value of these incidents, the June 2005 incident involved injuries to Arwen’s head occurring while in the sole care of the accused. The injuries caused extensive facial bruising. It is for the jury to assess what they make of those injuries in a 16 month old child, and of the explanation the accused offered to Ms Fletcher in relation to it. In assessing that they can take into account their own common-sense view of how common significant facial bruising in a child is. They can also take into account that it was significant enough to have been noted at day-care, and raised with the mother.

[19] There is no evidence that the March and April [2005] injuries (if the March injury was an injury) occurred while Arwen was in the sole care of the accused. The evidence is that the accused was one of her care-givers at the time, and that the mother did not know how the grazing injury was caused.

[20] In relation to the February incident it is the Crown’s case that the presentation by Arwen to the Waiuku medical centre with bruising and vomiting was associated with the aged head injury observed on autopsy. The Crown case is that the fall Ms Fletcher described was not sufficient to cause the head injury. It will invite the jury to infer that the injury was inflicted on Arwen by Mr Broadhurst after Ms Fletcher left for work. It has an evidential basis for this in terms of the extent of the injury to the brain observed on autopsy, and the evidence of Dr Kelly.

[21] The June 2005, February 2006 and March 2006 injuries all involve damage to the head and are said by the accused to have been caused by clumsy or fall type accidents. They occurred over an 8 month time period during which the accused was living with Arwen. I assess the evidence of the June and February injuries as having significant probative value in relation to the identified issue because of the frequency and nature of the injuries in a toddler. The circumstances in which they occurred, and the accused’s explanations for them adds to their probative weight.

[22] The March and April injuries are injuries to a different part of the body than the fatal injuries. There is no direct evidence that Mr Broadhurst was in sole charge of Arwen when they were suffered but there is some evidence that he was a care-giver sometimes left in sole charge of Arwen and the mother’s evidence in relation to the grazing is that she did not know how it had been caused. The injuries are, on a common-sense analysis, unusual injuries. I consider these injuries, when considered with the others, probative of a pattern of unusual injuries during a period of time that Arwen was sometimes in the care of the accused. In reaching this view I take into account that the jury is entitled to consider the course of unusual injuries suffered by Arwen over the period of time that Mr Broadhurst cared for her from time to time, and the explanations given by him in respect of some of them, and to infer that the evidence is such that it is improbable that Arwen suffered so many significant accidental injuries, and further to infer that it was Mr Broadhurst who was injuring her.

[33] The Judge then addressed the prejudicial effect of the evidence in accordance with s 43(4) of the Evidence Act. She considered that it was not likely to unfairly dispose the jury against the appellant, or gain disproportionate weight given sufficient judicial direction to the jury.
[34] Consistent with the approach that she had foreshadowed in her decision, the judge dealt with this evidence in her summing up as follows:

[67] I am also going to give you some directions on the approach that you should take to the evidence you have heard of previous injuries observed on Arwen. You have had before you evidence from a number of witnesses about markings and injuries observed on Arwen on occasions other than 15 March 2006. That evidence is evidence you can take into account when assessing Mr Broadhurst’s account to the police that the March injuries were accidentally caused. In particular if you were satisfied that Mr Broadhurst had previously intentionally injured Arwen that is evidence that you could weigh in assessing his statement that the March injuries were accidentally caused.

[68] In considering the evidence of previous injuries you are entitled to consider the frequency and nature of the injuries and the nature of the account given by Mr Broadhurst as to how they were caused, that’s in those instances when we have evidence of an account given by him. But you must remember that it is for the Crown to prove that Mr Broadhurst has intentionally injured Arwen on any occasion. There is no obligation on Mr Broadhurst to provide any explanation for any alleged injury.

[69] The approach you should take is to look at the evidence in relation to each alleged incident. You may also consider any similarities you believe exist between the nature of the injuries and the circumstances in which they occurred. If in respect of any injury you are not satisfied that Mr Broadhurst intentionally caused it, you should put it to one side and give it no further consideration and in this case we know already that one of the reports of suspected injuries is something you can put to one side, and I refer here to the report of bruising on Arwen’s back. The Crown concedes that those markings observed were most likely birthmarks. I think you heard Dr Kelly describe them as Mongolian blue spots. You will remember his evidence that he did observe such markings on Arwen’s back when he examined her and there’s also the evidence of Molly Fletcher that Arwen did have those birth marks.

[70] Even if you are satisfied that one or more of those injuries were deliberately inflicted by Mr Broadhurst you should not jump from that to concluding that he must then have inflicted the fatal injuries on Arwen. You need to consider this factual finding together with all of the other evidence that bears on what happened at Riverside Drive on the evening of 15 March. You should not for example use reasoning that goes something like “because he has injured Arwen before he must have done it this time because he is a person of bad character”.

The appellant’s arguments

[35] Mr Borich submitted that it was “disingenuous” for the Crown to assert in opening to the jury that what was observed on 7 and 14 March 2005 was evidence of violence committed by the appellants against the deceased and then to abandon that position in closing to the jury. However, Winkelmann J’s directions at [69] of her summing up were clear and in the circumstances the jury would not have been influenced by the March 2005 evidence.
[36] In relation to the balance of the evidence, Mr Borich pointed out that there was no evidence of the deceased being in the appellant’s care when the injuries observed on 4 April 2005 were sustained. Although she had been in his care at the time of the 27 June 2005 incident, he argued that an explanation had been given and there was no legitimate basis on which the jury could conclude that it was false. As to the February 2006 incident, Mr Borich submitted that the Crown was essentially inviting the jury to speculate as to the cause of the injury, and asking them to put on one side the possibility that whatever happened to Arwen on that day was the result of her either running into the overflow pipe or falling into the recycling bin.
[37] He argued further that there was insufficient medical evidence to support any conclusions about the incidents of 4 April and 27 June 2005. Insofar as the February 2006 incident was concerned, the possibility of Arwen having run into the overflow pipe on the deck had not been excluded. Mr Borich noted that the height of the pipe had been measured by a Crown witness prior to the trial, but the results had not been disclosed to the defence until well after the trial had started, and after Dr Kelly had given his evidence. When the Crown sought to call the evidence which was that the overflow pipe was the same height as Arwen, Winkelmann J ruled that the evidence could be called, but only if Dr Kelly was recalled so that Mr Borich might cross-examine him on the possibility that, notwithstanding it was the same height as Arwen, she had run into it. The Crown however decided not to call the evidence about the height of the overflow pipe.
[38] Mr Borich submitted that none of the evidence should have been admitted as “propensity” evidence. The previous injury should simply have been ignored for the purposes of the trial. Overall, the propensity incidents upon which the Crown relied were indirect and relied primarily on the number of events and unlikelihood they were all accidental for their probative force. The appellant denied his involvement in all of the incidents. The evidence was highly prejudicial. Its prejudicial effect outweighed any probative value it might have, and it should have been excluded.
[39] Coupled with those submissions, was a claim that the directions in the summing up as to propensity were inadequate. Mr Borich argued that strong criticism of the Crown’s approach in respect of the March evidence was warranted. In addition, there should have been criticism of the Crown’s failure to lead evidence of Dr Kelly about the overflow pipe.

The Crown’s response

[40] For the Crown, Mr Mount noted that the defence at trial had submitted that Arwen was accident-prone, and that she had fallen accidentally at home causing the fatal injuries. It was, therefore, relevant to establish what other documented injuries this two year old girl had suffered in the twelve months leading up to her death. He argued that the observations of daycare workers, and the existence of the older head injury were relevant and probative.
[41] Leaving the evidence concerning the Mongolian spots on one side, the evidence of the other injuries that Arwen had sustained was consistent with there being a pattern of unusual and unexplained injuries, as the Crown maintained. As to the failure to exclude the overflow pipe, insofar as there was late disclosure of the height of the overflow, Mr Mount pointed out that the evidence about the height of the overflow pipe tended to exclude it as a possible source of injury. He argued that Mr Borich had been wrong to suggest that there was a “legitimate and reasonable explanation” available for the February 2006 incident, based on Dr Kelly’s evidence.
[42] Mr Mount submitted that the Judge had been right to conclude that the probative value was not outweighed by any illegitimate prejudice that the evidence might have and the evidence had been properly admitted. Nor did the Judge commit any error in the way in which she had dealt with the issues in summing up.

Discussion

[43] It was possible to regard the evidence as propensity evidence and to analyse its admissibility in accordance with s 43 of the Evidence Act. Essentially, that is what Winkelmann J did. However, a more direct route to the admissibility of the evidence was s 7 of the Act. It provides that all relevant evidence is admissible unless it is inadmissible by statute. Evidence is relevant, under s 7(3), if it has a “tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. Here, the evidence was plainly relevant in relation to the defence contention that Arwen’s fatal injuries were accidental. Evidence of past events in which she had been injured would have a tendency to disprove that assertion by the defence, if the jury were of the view that the appellant had been responsible for earlier injuries to Arwen.
[44] Evidence which is admissible under s 7 must still be such that its probative value is not outweighed by unfair prejudice, under s 8 of the Act. Consequently, whether the evidence is labelled as propensity evidence or simply regarded as relevant evidence, the same test for admissibility is reached in either case. We are satisfied that the evidence was admissible on both approaches.
[45] In relation to specific criticisms made by Mr Borich, we have already recorded our view that the March 2005 evidence was satisfactorily dealt with by Winkelmann J in her summing up. As to the incident of 4 April 2005, the graze on Arwen’s inner back and thigh arguably supported the Crown’s case about there being a pattern of unusual and unexplained injuries. On the other hand, Ms Fletcher’s evidence that the graze had possibly resulted from Arwen falling down steps was in line with the defence argument that Arwen was accident-prone. It was for the jury to assess what weight and significance to give this evidence.
[46] The same applies in the case of the incident of 27 June 2005, when Arwen was in the sole care of the appellant. The appellant’s explanation, conveyed through Ms Fletcher’s evidence, was that there had been a fall from the television cabinet. Plainly, that was an unusual thing to have occurred. It was for the jury to assess its significance.
[47] There was clearly another serious incident in or before February 2006, giving rise to the brain lesion that was referred to in the expert evidence. As noted by Winkelmann J in sentencing the appellant, Arwen had sustained a very significant injury on that occasion, as shown by the substantial bruising that had been observed, and the vomiting and concussion-type symptoms that accompanied it. Whatever caused it, there had been a very significant trauma to Arwen’s head, resulting in the frontal lobe lesion. We acknowledge that the Crown should have disclosed earlier than it did the height of the overflow pipe. However, we accept Mr Mount’s submission that the height of the pipe tended to exclude it as a possible source of injury. Putting that issue on one side, we do not consider that the thrust of Dr Kelly’s evidence was consistent with the overflow pipe being a possible source of the injury. The only kind of incident that Dr Kelly was prepared to accept could have caused the injury in question, was addressed by him in one of his answers:

Clearly if I had evidence that she had run the full length of the verandah and run full tilt into the wall and fallen over flat on her back, then yes, that would be a mechanism that might well explain that injury.

[48] We also observe that the appellant’s account of what happened just after Arwen fell on the verandah was that she had come into the room where he was, pointing to the side of her face and saying “sore”. He also observed that at that stage he could not see any mark on her face, and her behaviour seemed normal. It was for the jury to assess in the light of all the evidence (including Dr Kelly’s evidence about the nature of the incident that would have been necessary to cause the lesion) whether or not either of the possibilities raised by the defence (running into the overflow pipe, or falling into the recycling bin) could have produced the brain lesion.
[49] We do not accept that the summing up was wanting in the respects alleged by Mr Borich. The Judge made it plain that it was for the jury to decide whether or not it accepted that the appellant had been responsible for any of the injuries previously sustained by Arwen. For reasons that we have just discussed the alleged failure to exclude the drainpipe as a mechanism that might have explained the February 2006 injury was not something that required special highlighting or indeed, criticism of the Crown.
[50] We are satisfied that the first ground of appeal should not succeed.

Dr Kelly’s evidence as to likely cause

[51] The appellant’s second ground of appeal against conviction was that Dr Kelly’s evidence as to the likely cause of the fatal injuries sustained by Arwen was inadmissible.
[52] Counsel for the appellant had objected in advance to parts of Dr Kelly’s intended evidence, and those objections were the subject of a ruling made by Winkelmann J during the trial. Amongst the evidence to which exception was taken was an opinion expressed by Dr Kelly that Arwen had been “violently shaken and/or thrown or slammed against the surface”. Winkelmann J recorded counsel’s submission that that would be evidence as to the ultimate issue and thus beyond the proper scope of the expert evidence. Winkelmann J upheld that objection and ruled that:

Dr Kelly should confine himself to expressing an opinion as to what mechanism the injuries are consistent with. It is a step beyond that to conclude what actions actually caused the injuries.

[53] However, in evidence in chief Dr Kelly was asked about what mechanism was likely to have caused Arwen’s combined injuries. In answering that question he said that they could not have been caused by a simple fall from her own height. Later in his answer he said that:

It is most likely that she was actually slammed against the surface ... whether that was a floor or a wall ... I can’t say.

[54] He expressed the opinion that it was possible, with an impact of that severity, that the deceleration from the impact alone would cause the subdural bleeding that occurred. However, Arwen had also sustained retinal haemorrhages, and Dr Kelly thought that those were unlikely to be the result of a simple impact mechanism. The retinal haemorrhages made it:

far more likely ... that violent shaking ... was part of the mechanism and for the same reason ... the injury to the brain stem and cervical cord suggests that violent shaking was part of the mechanism ... . So, in summary I think the most consistent ... explanation for her injuries would be that she was slammed and shaken.

[55] He was asked then whether he was making reference to an impact injury and he said:

Yes ... that she was picked up and physically being held, thrown or slammed against a surface, causing impact.

[56] Mr Borich argued that Dr Kelly in fact thereby expressed an opinion on the “ultimate issue” in contravention of Winkelmann J’s ruling, through the use of “circuitous language”. He conceded that s 25(2)(a) of the Evidence Act removes the scope for an argument that expert opinion evidence is inadmissible on the basis that it is about an ultimate issue to be determined in a proceeding. However, he maintained that the evidence given was inadmissible as it was outside Dr Kelly’s area of expertise. He argued that the opinion evidence would not have substantially helped the jury, that it had no probative value and was highly prejudicial.
[57] Assuming that the jury excluded the scenario of accident, it was, Mr Borich argued, inappropriate for Dr Kelly to express an opinion as to the likelihood or probability of the mechanism that had in fact caused the fatal injuries.
[58] Mr Borich objected to the evidence given by Dr Kelly and, in the absence of the jury, made an application for mistrial. Winkelmann J rejected the application. She noted that her ruling had been that Dr Kelly could not state his opinion in the form that Arwen was violently shaken and/or thrown or slammed against a surface, but that he should confine himself to expressing an opinion as to what mechanism the injuries were consistent with. She had not excluded the possibility of him expressing a view as to whether the injuries were more or less consistent with the particular mechanism. The opinion he had expressed was within his area of expertise. She was of the view that because of the complexity of the injuries the jury had to consider, his expert evidence would be particularly helpful. The defence application for a mistrial was rejected accordingly.
[59] We are not persuaded that Dr Kelly’s evidence was inadmissible. Under s 25(1) of the Evidence Act, an opinion by an expert is admissible “if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”. In our view, Winkelmann J correctly held that this evidence would be particularly helpful to the jury.
[60] Section 25(2)(a) effectively puts an end to any remaining controversy about whether an expert may give opinion evidence on the ultimate issue. In any event, the “ultimate” issues in this case were whether the appellant had killed Arwen Fletcher, whether he did so by an unlawful act and whether he acted with murderous intent. Dr Kelly’s evidence did not purport to deal with those issues.
[61] Having regard to Dr Kelly’s experience and expertise, we consider that he was well able to give the evidence that he did. Effectively, the evidence was to describe the kinds of events which caused Arwen’s fatal injuries by reference to those injuries. There can be no criticism of that kind of evidence.
[62] The second ground of the conviction appeal must also fail.

Cross-examination of Dr Kelly

[63] The third ground advanced in support of the conviction appeal complains that the Judge made rulings limiting defence counsel’s cross-examination of Dr Kelly. Counsel sought to focus on evidence given by Dr Kelly at the depositions and in a previous trial (on an unrelated matter) conducted in the District Court at Manukau in May 2007. It was counsel’s intention to demonstrate that Dr Kelly was prepared to offer material beyond his expertise, prepared to give evidence to a jury that was contrary to rulings that had been made and that, contrary to best practice, he was prepared to give expert evidence in cases where he had not conducted a thorough review of the available and necessary material required to offer a proper expert opinion.
[64] Mr Borich referred in particular to two rulings of Winkelmann J, made during the trial on 22 and 23 February 2008. In the first, Winkelmann J mentioned that Mr Borich had foreshadowed an intention to cross-examine Dr Kelly on the fact that on one occasion she had ruled parts of his proposed evidence inadmissible and on another occasion had observed that the manner in which he expressed an opinion (by commenting upon what he would personally have done in this situation) was not a proper way for an expert to express an opinion. Winkelmann J held that Mr Borich could not proceed as he intended on the basis that it would be unfair to criticise an expert witness in cross-examination for intending to give evidence that was in fact ruled inadmissible; because the material had been ruled inadmissible, the Crown would then face difficulties in any re-examination to clarify the extent or significance of the ruling.
[65] It is evident from the way in which he put his argument on this point on appeal that Mr Borich was intending to cross-examine Dr Kelly on the basis that he had given inadmissible evidence as to the mechanisms by which Arwen sustained the fatal injuries. We have already ruled against him on that point. There was evidently a subsidiary point which Mr Borich intended to raise because Dr Kelly had no knowledge of the Mongolian spots during the voir dire, but had referred to them in the trial before the jury. We do not read Winkelmann J’s ruling as having precluded cross-examination on the latter.
[66] We do not consider that there was any error in Winkelmann J’s ruling of 22 February.
[67] The ruling of 23 February 2008 concerned Mr Borich’s wish to cross-examine Dr Kelly about evidence that he had given in an unrelated trial that had taken place in the Manukau District Court. In opening the Crown’s case at that trial, the prosecutor mentioned that Dr Kelly would give evidence that the genital injuries that had been sustained by the victim were supportive of sexual assaults and rape. The trial Judge ruled that Dr Kelly could not give such evidence. Mr Borich proposed to cross-examine Dr Kelly on the basis that notwithstanding the Judge’s ruling, he had proceeded to give evidence in breach of the ruling.
[68] Mr Mount explained that in the Manukau trial Dr Kelly had not been told of the Judge’s ruling, prior to giving evidence. Plainly, that was counsel’s omission, and no criticism of Dr Kelly was appropriate as a result of it. Mr Mount also pointed out that at the time of the Manukau trial it was not clear law that doctors in New Zealand should not give an opinion as to whether physical injuries were consistent with non-consensual sexual activity.
[69] In our view, Winkelmann J’s ruling of 23 February was correct. To allow an extensive inquiry into the events that had happened in the Manukau trial would, on the basis proffered by Mr Borich, have been unjustified and could potentially have led to the need to call rebuttal evidence. That would have resulted in an unduly prolonged trial.
[70] The third ground of the conviction appeal also fails.

The sentence appeal

[71] Winkelmann J accepted for sentencing purposes that Arwen had been fatally injured by being violently shaken and slammed with great force down onto a hard surface covered with a padding, such as a carpeted floor. She recorded that the Crown submitted an appropriate starting point would be ten to eleven years’ imprisonment. The Crown contended that a penalty near the maximum would be appropriate, having regard to the violence of the assault and the seriousness of the injuries that Arwen had sustained. She recorded a counter-submission by Mr Borich that a starting point for sentencing purposes would be six and a half to seven years’ imprisonment.
[72] The Judge referred to the decision in R v Leuta [2002] 1 NZLR 215 in which the Court of Appeal observed at [77]:

Violence inflicted upon a child is worse than that directed at another adult. Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility. The fragility of young children, particularly infants, is frequently referred to, and too often overlooked. The lethal consequences of shaking and striking babies is often enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised.

[73] The Judge treated as aggravating the fact that the appellant had previously assaulted Arwen in a serious manner. That was a reference to the events of February 2006. The Judge said that she was satisfied, beyond reasonable doubt, that the only possible explanation for the injuries sustained by Arwen on that occasion was that they had been intentionally inflicted by the appellant. She fixed a starting point of eight and a half years, and allowed a deduction of six months on account of the appellant’s comparatively young age at the time of the offending. A further six months was then deducted on the basis that soon after inflicting the fatal injuries, the appellant had in fact sought medical assistance for Arwen. The resulting sentence was one of seven years and six months’ imprisonment.
[74] Mr Borich submitted that the Judge had had no reasoned basis for concluding that the appellant was responsible for the injuries sustained by Arwen in February 2006. Because in fixing the starting point the Judge took that incident into account, the starting point was necessarily too high. He also referred to the fact that the Crown had brought to the Judge’s attention victim impact statements from persons who were not “victims” or “immediate family” in terms of the Victim’s Rights Act 2002. By reference to R v Leuta and R v Iorangi CA 534/99 30 March 2000, Mr Borich submitted that there is a distinction recognised in the cases between incidents involving a single brief and one-off loss of control, and cases where there have been attacks with weapons and significant prior mistreatment. He contended that a starting point more in line with the authorities would have been the six and a half to seven years (for which he had argued in the High Court).
[75] For the reasons which she gave, we consider that it was open for Winkelmann J to conclude that the appellant had been responsible for the injuries sustained by Arwen in February 2006. The proffered explanation that her injuries were accidental was not compelling. Quite apart from the medical evidence about the brain lesion, the description of the extent of the swelling and bruising to Arwen’s face, described by the witness Victoria Heaslip and to which Winkelmann J referred, showed that the injury was very significant. It was accompanied by symptoms usually associated with concussion. Arwen had been in the care of the appellant on that day. It was open for the Judge to conclude, beyond a reasonable doubt, that the appellant was responsible for the injuries.
[76] In the circumstances this case cannot be described as having involved a “single brief loss of control”. On the contrary, the fatal attack had been preceded by at least one significant event of substantial violence directed against a very young child. The conclusion that the fatal injuries were inflicted in a very violent attack was also amply justified by the evidence.
[77] Although mentioned in the decision, the victim impact statements did not give rise to material that the Judge found aggravating and we do not consider that anything turns on Mr Borich’s contention that some of the statements should not have been before the Judge and that the content of others was inappropriate.
[78] We are in no doubt that the sentence imposed was appropriate and, therefore, dismiss the sentence appeal.

Result

[79] All of the grounds of appeal have failed and the appeal is dismissed.

Solicitors:
Rice Craig, Papakura for Appellant
Crown Law Office, Wellington