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Court of Appeal of New ZealandLast Updated: 15 December 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA175/2009 [2009] NZCA 572THE QUEENv
LISA KUKAHearing: 27 October 2009
Court: Hammond, Robertson and Ellen France JJ
Counsel: M F Tuilotolava for Appellant
C L Mander for Crown
Judgment: 8 December 2009 at 11.30 a.m.
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JUDGMENT OF THE COURT
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The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Table of Contents
Para No
Introduction [1]
Factual
circumstances [3]
Misdirection on the
elements [11]
Count
3: failure to provide medical attention, thereby causing
Nia’s death [12]
The
level of causation required [15]
The evidence in the
present case [34]
THE
NATURE OF NIA’S INJURIES [35]
WHAT SYMPTOMS MIGHT A CHILD
INJURED LIKE NIA
HAVE PRESENTED WITH? [36]
THE TIMING OF MEDICAL
TREATMENT [37]
THE
TRAJECTORY OF NIA’S INJURIES [39]
DR KELLY’S VIEW ON
THE CAUSAL LINK BETWEEN MS KUKA’S
OMISSION AND NIA’S
DEATH [41]
The evidence
in the present case: Dr Stables [43]
CAUSE OF DEATH [45]
THE TRAJECTORY OF
NIA’S INJURIES [46]
Applying the test to the
evidence in this case [48]
Count 4: failure to
protect Nia from violence, thereby causing her death [56]
Was there enough in the
evidence for the jury to draw a
supportable inference of
knowledge? [72]
Further
challenges [77]
Fairness of summing
up [85]
Result on
conviction appeals [91]
Appeal against
sentence [92]
Introduction
[1] Lisa Kuka was convicted of two counts of manslaughter, one alleging an omission to provide the necessities of life thereby causing death, and the other of failing to protect a child from violence thereby causing death.
[2] Ms Kuka was sentenced to an effective term of nine years’ imprisonment. She appeals against both conviction and sentence.
Factual circumstances
[3] The appellant was the mother of Nia Glassie who died on 3 August 2007 as a result of injuries she had sustained.
[4] Ms Kuka and four other adults were jointly tried before Potter J and a jury on a number of offences alleging criminal acts and omissions leading to Nia’s death. The period of offending covered by the charges was 21 May 2007 to 22 July 2007. Over that period Nia and her two older sisters were living with Ms Kuka at an address in Rotorua. Also living at the address were Wiremu Curtis (Ms Kuka’s partner), Michael Curtis (Wiremu Curtis’s older brother), Oriwa Kemp (Michael Curtis’s partner), and Tahlia Curtis (the young daughter of Michael Curtis and Oriwa Kemp). The fifth accused, Michael Pearson, lived at a different address. Ms Kuka’s partner (Wiremu Curtis) and his brother (Michael Curtis) were convicted of Nia Glassie’s murder, and the other adults also faced charges with regard to the abuse of Nia and her two elder sisters.
[5] There was no question that Ms Kuka herself had been involved personally in the persistent and violent abuse of Nia, which the Judge at sentencing summarised as:
(a) Wiremu Curtis, his brother Michael, and Mr Pearson performed “wrestling moves” on her;
(b) she was shoved, naked, into a sandpit and into a broken couch;
(c) she had balls and other objects thrown at her;
(d) she was punched and kicked;
(e) she was given cold bath/s;
(f) she was hit by Tahlia Kemp at the direction of Oriwa Kemp;
(g) she was put in a hole in a fence outside where there was accumulated rubbish; and
(h) she was forced to wear soiled clothing.
[6] There were, in addition, two acts of violence that formed counts of their own:
(a) The “clothesline incident”, which involved Wiremu and Michael Curtis, and Oriwa Kemp: Nia was placed on the wires of the clothesline by Michael Curtis, who then spun the clothesline around fast until she fell to the ground crying and screaming. This was repeated, and only stopped when a neighbour stepped in.
(b) The “dryer incident”, which involved Wiremu and Michael Curtis, and Michael Pearson: Nia was pushed into the clothes dryer, crying and screaming. The dryer was turned on so that it revolved until Nia kicked open the door. Nia’s two sisters witnessed this incident.
[7] The fatal incident of abuse involving Nia occurred on 20 July 2007. Potter J recorded in her sentencing notes:
[18] I find that during the week prior to 20 July 2007 the violence and abuse towards Nia escalated rather than commenced. The incidents of abuse described in evidence might have been regarded by the perpetrators as being for their amusement, such as the drier incident and the clothesline incident which apparently started as a game, but it was certainly not a game as far as Nia was concerned, as witnessed by Mr Simiona [a neighbour witness] from the rear of the property. Nia suffered from this regular abuse and it is little wonder that her anguished cries resulted. But as one of her sisters described, she learned to contain her crying, because if she had failed to do so she would be further punished for her crying.
[19] On Friday 20 July 2007, the household was preparing for Michael Curtis’s 21st birthday to be celebrated the following day. Numerous people came to the house to bring food and to provide assistance. They all left by 7 p.m. From that time the only people present were Michael Curtis, Wiremu Curtis and Jess, Esther and Nia. Lisa Kuka came home earlier from work than she usually did. She had to return her brother’s car to his address out towards the Rotorua Airport. She called in at 13D Frank Street to enlist the help of Oriwa Kemp to follow her in the truck and to drive her back after she left the car at her brother’s. She took Jessie with her but declined Nia’s request to also come. She left Nia behind with Esther to look after her. She was not gone very long, but during her absence Esther saw her little sister Nia suffer the kicks in the head which would result in her death. She described the kicks delivered by Michael Curtis and Wiremu Curtis as being “as hard as rock”. They were such that Nia lost consciousness which she never fully regained.
[20] Shortly after Jessie returned with her mother and Oriwa Kemp in the truck around 8 p.m., she prepared to go to bed. Nia and Esther occupied the same bed, Nia in the middle, the older girls on one side of her. Jessie described in evidence how Nia was asleep in the position which she, Jessie, usually occupied by the wall. She had to move Nia before she could get into bed in her usual place. She found that Nia had wet the bed. This was very unusual because Nia was toilet trained and did not wet the bed. Jessie reported this situation to her mother. Her mother then picked Nia up and bathed her. Jessie and Esther watched. Nia did not wake up despite efforts of Lisa Kuka to arouse her by putting water on her face and head. Nia was returned to bed. Jessie and Esther also went to bed.
[21] The jury by their verdict of manslaughter against Lisa Kuka for failing to obtain timely medical assistance for Nia, seemingly rejected the version of events told to the Police by Lisa Kuka, that it was 4 a.m. the next morning, Saturday, when Nia wet the bed and she gave her a bath. Jessie’s evidence on the timing of the incident was clear, and consistent with the logical course of events. It is entirely explicable that when Jessie tried to go to bed and found Nia in her, Jessie’s, usual position and having wet the bed, that she should at that point, report the matter to her mother. That is my finding based on Jessie’s evidence, which I accept.
[8] Nia was eventually taken to Rotorua Hospital on the morning of Sunday 22 July at the instigation of Ms Kuka’s sister, Louise Kuka, who was concerned at Nia’s physical state. At sentencing Potter J recorded:
[23] On Saturday evening, Louise Kuka, Michael Pearson’s mother and a sister of Lisa Kuka, took the girls to her home. Nia did not wake. At about 6 a.m. the next morning Louise Kuka was awoken by Jessie. Concerned at the state of Nia who was fitting and frothing at the mouth, with her arms floppy, Louise Kuka told Lisa Kuka that she was going to take Nia to Rotorua Hospital. The hospital records record Nia as having been admitted at 8.45 a.m. Both Louise and Lisa Kuka went to Rotorua Hospital with Nia.
[9] Lisa Kuka submits that there was a miscarriage of justice because the jury’s verdicts were unreasonable and could not be supported having regard to the evidence. There was additional concern about the absence of an alternative count to count 3 and in an alleged failure to adequately put the defence case to the jury.
[10] The appeal against sentence is on the basis that it was excessive in all the circumstances.
Misdirection on the elements
[11] When stripped to their essentials, the major challenges to the conviction for the two counts of manslaughter boil down to:
(a) whether the expert medical evidence, led in respect of count 3, established to the required criminal standard that Ms Kuka’s failure to seek medical attention for Nia was a substantive and operative cause of Nia’s death; and
(b) whether the evidence led in respect of count 4 proved to the required criminal standard that Ms Kuka knew, prior to Nia’s lapse into a coma, that Nia was being subjected to violence.
Count 3: failure to provide medical attention, thereby causing Nia’s death
[12] In her summing up the Judge explained to the jury the elements of count 3:
[117] Dealing first with Count 3. The essential elements the Crown must prove are:
(a) That Lisa Kuka failed without lawful excuse to perform a legal duty as the parent of Nia to provide necessaries for her. Necessaries being medical care or treatment in this case. Accordingly the Crown must prove that Lisa Kuka failed to provide medical care or treatment for Nia.
(b) That Lisa Kuka’s failure was a major departure from the standard of care expected of a reasonable person who has the legal duty. Therefore the Crown must prove that Lisa Kuka’s failure was a major departure from what a reasonable parent or guardian would have done in the circumstances that arose in respect of this legal obligation which Lisa Kuka owed to Nia.
(c) That Lisa Kuka’s failure to provide medical treatment for Nia was likely to cause her harm. You will not have any difficulty with that.
(d) That the failure to provide medical care or treatment was a real and substantive and operative cause of Nia’s death. I doubt that the word “real” adds much. The important words are substantive and operative. The Crown does not have to prove that it was the sole or only cause of Nia’s death. As you know the Crown says that the kicks to the head caused Nia’s death but also that Lisa Kuka’s failure to get prompt medical treatment for Nia also caused her death.
[118] The Crown must prove that the failure to get medical treatment for Nia was a substantive and operative cause of her death. I suggest in the circumstances of this case much will depend on the finding you reach as to when Lisa Kuka first knew that Nia was unwell. That is in light of Dr Kelly’s evidence that it is probable that had the hospital seen Nia within the first few hours she probably would have survived, that was the most likely outcome. That will be a matter for you.
[13] The Judge reminded the jury that if any of the four questions required to be answered to establish the charge were answered “no”, then the verdict must be “not guilty”.
[14] The Judge also directed the jury on the onus of proof. She said:
[9] The next point – and it is the most important – is that the onus of proof of the essential ingredients or the essential elements of each of the charges against the accused is on the Crown. The onus rests on the Crown from beginning to end. You have heard about this a lot but I need to emphasise it.
[10] The starting point is the presumption of innocence. You must treat each of the accused as innocent until the Crown has proved his or her guilt.
[11] There is no onus on an accused at any stage to prove innocence. An accused as I explained to you, does not need to give evidence.
...
[13] The law is that the Crown must prove each essential ingredient of each charge beyond reasonable doubt before you can bring in a verdict of guilty on that charge in respect of the accused named or each of the accused named in that charge. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if you are sure, if you are sure the accused is guilty.
[14] It is not enough for the Crown to prove that the accused is probably guilty or even that he or she is most likely guilty. On the other hand, it is virtually impossible to prove anything to absolute certainty when it involves a reconstruction of past events which is what happens in a criminal trial, and the Crown does not have to do that.
[15] What then is a reasonable doubt? A reasonable doubt is simply an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful, impartial, objective consideration to all the evidence. An honest and reasonable uncertainty left in your mind about the guilt of the accused.
[16] To be satisfied beyond reasonable doubt means that you feel sure. If after careful, impartial, objective consideration of all the evidence you do feel sure that the accused is guilty, then it is your duty to find the accused guilty on that charge.
[17] But if you are left with a reasonable doubt, one that leaves you feeling not sure of his guilt, then of course it is your duty to find the accused not guilty on that charge.
The level of causation required
[15] The causation required to be proved in cases of this kind is complicated by the differences of approach between levels of proof required by the criminal law and the language employed by medical experts. There is an additional problem of proof in any case where it is an omission, rather than a positive act, that is alleged to create the culpability.
[16] Omissions are different from positive actions, in that they do not initiate causal processes, but only permit their continuation. In that sense, causation by omission is conceptually perplexing because it does not cohere with intuitive notions of cause and effect.
[17] Allowing for such difficulties, where a person has a legal duty to act, and omits to act, the omission will be culpable if acting “would have made a difference” (see Simester and Brookbanks Principles of Criminal Law (3ed, 2007) at 75). This is usually stated as “but for” causation, which means that the omission must have been necessary, although it need not have been sufficient, to bring about the culpable result. This distinction between necessary and sufficient causes is important in cases of omissions, because the omission may not be the sole cause of the culpable result.
[18] The position in a case such as the present, where there is more than one cause of the victim’s death, is not controversial. In R v Hennigan [1971] 3 All ER 133, the English Court of Appeal held the defendant may be guilty of causing a result even if their conduct was not the only legal cause. As long as the casual contribution of the defendant’s conduct was substantial, the defendant can be said to have caused the death.
[19] This issue was discussed in the more recent New Zealand case of R v Myatt [1991] 1 NZLR 674 (CA) where one of the questions reserved by the High Court for the Court of Appeal was (at 682):
Question 5
Must the causal connection between the unlawful act or the omission and death or injury be a real and substantial cause of death or injury or is it sufficient that the cause of death or injury has been contributed to by a subsisting act or omission attributed to the accused albeit that it was not necessarily a real and substantial cause of death or injury?
[20] The Myatt trial judge, in his summing up, had directed the jury that:
If the Crown has not satisfied you beyond reasonable doubt that Mr Myatt’s actions or omissions were a real and substantial cause of those deaths and injuries, then he must be acquitted. If, for example, you thought Mr McLeod’s driving was the real and substantial cause of the deaths and injuries and that Mr Myatt’s part was an insubstantial one, he would have to be acquitted. You have to be satisfied beyond reasonable doubt that it was Mr Myatt’s unlawful acts or omissions or both combined which resulted in the deaths and injuries of the persons referred to in the indictment.
[21] This Court affirmed that direction, stating that (at 682 - 3):
Homicide is culpable when it “consists in the killing of any person” by conduct ... The use of the word “by” emphasises the fact that the unlawful act or omission must be causative of death by which it is meant “a substantial and operative cause of the death of the deceased” (see R v McKinnon [1980] 2 NZLR 31, 37). On the facts of this case... the summing up was correct and the first part of [Question 5] is answered in the affirmative.
[22] The direction affirmed in Myatt is essentially similar to Potter J’s direction in the present case, and we are satisfied Potter J’s direction was correct. The jury was told that the Crown had to show that Ms Kuka’s omission was a “substantial and operative cause” of Nia’s death. A causal link was identified by Potter J as an essential ingredient which had to be proved beyond reasonable doubt, which she directed meant the jury had to “feel sure”. When the evidence presented by the Crown is read in its totality, and Potter J’s directions are read in light of that evidence, it is clear there was no error by the judge.
[23] A further question in omissions cases is what degree of probability will be sufficient to demonstrate causation in cases of omissions. It is impossible to show that an omission for certain caused death, since that would entail making a claim about what would (for certain) have happened in different, supposed circumstances. It is tempting, given the stringent standards of criminal law, to settle for nothing less than absolute proof. But absolute proof is not going to be available in such cases.
[24] Any proposition about what “would” have happened but for an omission must be qualified by lesser standard of probability than absolute certainty. That standard might be very high. It might be nothing less than “almost certainly” or “most likely”.
[25] Medical experts do not make absolute claims about what would have happened given a particular condition. Scientists do not speak in those terms. A doctor is very unlikely to say “If X drug had been administered, the victim certainly would have recovered”. Rather, the doctor would frame their opinion as a high probability, such as “If X drug had been administered, the victim would in all likelihood have recovered”.
[26] Notwithstanding that medical experts speak in terms of probabilities (however high) rather than absolute certainties, in the criminal context a jury must be sure of an accused’s guilt before they can convict. In the recent English case of R v Gemma Evans [2009] EWCA Crim 650 (although not an analogous fact situation to the present case) one of the ingredients of the offence of manslaughter upon which the trial judge had directed the jury was:
... [whether] the prosecution made [the jury] sure that the defendant’s breach of [her] duty of care caused the death of [the victim].
This direction was not criticised in the Court of Appeal.
[27] The particular words used by a judge are not critical in themselves, as long as the jury is clearly directed on the burden of proof and on the elements of the offence in issue. Potter J’s directions were, in respect both of the burden and the elements of the offence, clear.
[28] Further, the fact a jury must be “sure” of an accused’s guilt is not necessarily incompatible with the impossibility of proving for certain what “would” have happened but for an accused’s omission. Whatever the standard of causation required to be demonstrated, the jury must be satisfied it is proven beyond reasonable doubt.
[29] The improbability of doctors answering with certainty the question, “what would have happened but for the omission?” was observed by William Young J (as he then was) in R v Little HC CHCH T17/01 12 June 2001:
[109] ... the concept of proof beyond reasonable doubt is a legal and not a medical one. When doctors talk about what would “probably” have happened, had events panned out differently, it is not necessarily to be assumed that they are talking about a degree of likelihood or probability which falls short of what is required by the criminal law.
[30] Various cases dealing with causation by omission have considered the standard of probability required. Illustrations of the range of standards that might be applied include:
(a) In R v Morby (1882) 8 QB 571 at 574, a case with almost identical facts to the present case, it was held that to sustain a conviction of manslaughter, affirmative proof is required. It is not enough to show that, but for an omission, life “might” have been prolonged or preserved. It must be shown that life “would” or “would probably” have been preserved or prolonged.
(b) In R v Hawkins HC NAP T 18/00 21 February 2001 it was held that it is not enough that an omission simply provided the occasion for death. The omission must of itself have contributed positively to the death.
(c) In R v Cato [1976] 1 All ER 260 (CA) it was held that it is enough if the cause is one of multiple causes, provided its effect on the death was more than de minimis and provided it had a “bearing on the acceleration of the moment of the victim’s death”.
[31] These cases demonstrate that a range of standards of probability might be applied. An even lower standard was seemingly applied in R v Dalloway (1847) 2 Cox CC 273, where Erle J held that if the accused “could” have saved the victim by performing a particular action, then he was guilty of manslaughter. The word “could” implies that it need only have been a possibility that the omitted action would have saved the victim. This is a long way from the “would” or “would probably” test stated in Morby.
[32] The test as expressed in Cato, is low and, arguably, too low. The “more than de minimis” requirement is a significantly lower standard than the “substantial and operative cause” requirement outlined in Myatt (although closer to that suggested in Hennigan). However, the Cato standard is not the standard being relied on in the present case. It is simply a good illustration of the range of standards that have been applied in these cases.
[33] The standard expressed in Morby is stringent, as it must be in the criminal context, but it is realistic, and we adopt it. It must be demonstrated that but for an accused’s omission the victim “would or would probably” not have died. The question in this case is whether that high degree of probability was established by the evidence.
The evidence in the present case: Dr Kelly
[34] Dr Kelly, consultant paediatrician at Starship Hospital, gave the most extensive evidence on the causal link between Ms Kuka’s omission and Nia’s death.
THE NATURE OF NIA’S INJURIES
[35] Dr Kelly explained the nature of Nia’s head injury, and the way such an injury tends to progress. He explained that the CT scan taken at Rotorua Hospital when Nia was first admitted showed subdural blood, and that Nia was subsequently transported to Starship Hospital so that the blood could be surgically removed if necessary. He said that by the time of the scan performed at Rotorua Hospital, Nia had already suffered brain damage, and that it was Nia’s brain’s response (swelling) to the subdural bleeding that caused the pressure inside her head.
WHAT SYMPTOMS MIGHT A CHILD INJURED LIKE NIA HAVE PRESENTED WITH?
[36] Dr Kelly said that in his experience, children present with symptoms such as vomiting, irritability, lethargy, and unconsciousness soon after a kick in the head. He continued:
The vast majority of the evidence is that infants and young children when they get a head injury associated with subdural bleeding, become immediately, or almost immediately unwell.
THE TIMING OF MEDICAL TREATMENT
[37] Dr Kelly said that when Nia was tested at Starship Hospital, her cranial pressure was surprisingly low:
Because given the extent of her brain damage, and there clearly had been a lot of brain swelling, most children I see with brain swelling of that degree in Starship have very high pressure. So it was odd that her pressure was low, I mean, what it suggested to me, was that her pressure had probably been higher before and was already getting better so to some degree we had missed the boat.
[38] Explaining his comment that the Starship doctors had “missed the boat” by the time Nia arrived in their care, Dr Kelly said that Nia presented as a child who had experienced, and endured, the worst of her brain swelling and that by the time she arrived at Starship she was in the throes of its after-effects. In his opinion she had been in a coma for a “good 36 hours by the time she came to hospital”, and that 36 hours is “plenty of time for brain swelling to go up, and also begin to go down”.
THE TRAJECTORY OF NIA’S INJURIES
[39] Dr Kelly distinguished the “secondary” brain injury suffered by Nia from the kind of (often irreparable) acute direct brain injury suffered in, say, motor accidents. He said that unlike in cases of acute direct brain injury (where there is often no chance for successful medical intervention), in cases like Nia’s there is a window in which treatment can be administered to minimise brain injury and possibly avoid death. He said that if Nia had presented “a whole lot earlier” she could have been within that window of successful medical intervention.
[40] Evidence of Nia struggling to breathe was consistent, Dr Kelly said, with a partially obstructed airway which could have entailed hypoxia (drop in oxygen) or hypertension (drop in blood pressure). He said that hypoxia or hypertension increases the mortality of brain-injured children by two to four times.
DR KELLY’S VIEW ON THE CAUSAL LINK BETWEEN MS KUKA’S OMISSION AND NIA’S DEATH
[41] Dr Kelly was asked whether he could guarantee that Nia would have survived if she had been taken to the hospital sooner. Not surprisingly, he replied that there could be no guarantees: empirically, some children die within minutes or an hour or so of suffering a cerebral oedema, and medical treatment will not save them. But in Nia’s case, the doctor considered:
So, it is possible that that [quick death] might have been the outcome for Nia, except that she lasted 36 hours without dying, and was in fact past the worst of the cerebral oedema. So, it’s my view that it’s probable that had we seen her within the first few hours, I think she probably actually would have survived. I can’t guarantee it, but I think it’s the most likely outcome.
[42] From a medical expert, trained in empirical quantitative probabilities, this is a strong statement of likelihood.
[43] Dr Kelly’s evidence was that, of a series of probabilities, the most likely of them was that Nia would have survived if she had been treated sooner. That conclusion was the product of an after-the-fact assessment of the type of injury suffered by Nia; its actual trajectory in Nia herself; and evidence of Nia’s symptoms before she was hospitalised. The doctor’s view was not an abstract clinical prediction, but was reached by combining his experience of this category of injury, with direct experience of Nia’s individual case.
The evidence in the present case: Dr Stables
[44] Dr Simon Stables is a pathologist who, along with a Dr Syneck, conducted the post-mortem on Nia. He gave evidence of the mechanism of Nia’s death.
[45] Dr Stables reinforced Dr Kelly’s evidence that it was not the subdural hematoma itself, but the pressure brought about by it, that caused severe compression and damage to the spinal cord, heart and lungs.
THE TRAJECTORY OF NIA’S INJURIES
[46] Dr Stables said that when a child’s head is kicked in a way that causes subdural bleeding, the brain can swell as quickly as ten minutes later, although it might swell more slowly. As the brain swells, the child will exhibit symptoms of diminishing (or lost) consciousness: they may become incontinent and floppy, they may start fitting or shaking, and they may foam at the mouth.
[47] Dr Stables deferred to the “clinicians” on the basis of insufficient experience, when he was asked whether he could comment on the probable effectiveness of earlier medical attention.
Applying the test to the evidence in this case
[48] The expert evidence is clear that had Nia received treatment earlier than she did, she “most likely” would have survived. That conclusion was possible in light of expert opinion on Nia’s actual survival for the 36 hours after her injury and before she was taken to hospital, and the typical progress of injuries of the same type.
[49] One of Ms Tuilotolava’s submissions before us was that it is simply impossible to know whether, even if Nia had been taken to the hospital on the Friday night, she would not have died anyway. As we have discussed, it is not possible to know with absolute certainty what would have happened in different circumstances. At most, it can be stated that Nia very probably would not have died if she had received medical attention earlier than she did.
[50] Dr Kelly was also questioned, in cross-examination, about the possibility of Nia’s having had a “lucid interval” (ie an apparent improvement in her condition) after receiving medical attention, but nonetheless fatally deteriorating subsequently. He accepted it was “a possibility” but that:
That would be extraordinarily rare. I mean it would – I think there are situations for example with this expanding subdurals or expanding epidurals or such may happen, but for it to happen after intervention, that would be extraordinarily unlikely.
[51] If the jury accepted that Ms Kuka observed Nia unconscious, unresponsive, and having wet the bed on the evening of Friday 20 July, and they accepted the medical experts’ evidence, they could properly conclude that Ms Kuka’s omission was a “substantial and operative” cause of Nia’s death.
[52] Ms Kuka’s version of events was that she did not discover Nia had wet the bed until 4 am on Saturday, but it was Jessie Glassie’s evidence that on the evening of Friday 20 July, she and her mother had left the house for a brief period – Ms Kuka declining Nia’s request to accompany them for a ride in the car – before arriving home and Jessie finding that Nia had wet the bed. Jessie said she reported to her mother that Nia had wet the bed, and that at that point Ms Kuka attempted to rouse and bathe Nia, and observed her in an unconscious state, unable to be woken. As Potter J observed in her sentencing notes:
Jessie’s evidence on the timing of the incident was clear, and consistent with the logical course of events. It is entirely explicable that when Jessie tried to go to bed and found Nia in her, Jessie’s, usual position having wet the bed, that she should at that point, report the matter to her mother.
[53] Further, Dr Kelly, in his evidence in chief, had cited the 2001 “Plunkett Study” which included findings on the time, in children, between a head injury being sustained and the child presenting as unwell. He said:
Almost all of [the 75,000 children whose cases were studied] became unwell either immediately, or within 15 minutes. There were a couple of kids who became unwell later... I think the paper supports the general clinical observation that if kids are gonna have these injuries, they become unwell almost immediately, or within minutes.
[54] The effect of Ms Kuka’s omission was, on Dr Kelly’s evidence, critical. It denied Nia treatment in the window of time in which it might have been effective. Ms Kuka’s omission was not, therefore, the mere provision of an “occasion” for Nia’s death (cf Hawkins). Rather, but for Ms Kuka’s omission, Nia’s life “would probably” have been prolonged or saved (Morby).
[55] We are satisfied that there was a proper foundation for the jury’s verdict on this count.
Count 4: failure to protect Nia from violence, thereby causing her death
[56] The test for causation is the same on this count. Ms Kuka’s omission must have been a “substantial and operative” cause of Nia’s death.
[57] The jury questionnaire relating to count 4 set out the elements of the charge as follows:
(a) Did Lisa Kuka fail to perform a legal duty she owed to take reasonable steps to protect Nia from violence in that period?
(b) Was Lisa Kuka’s failure to protect Nia from violence, in the circumstances, a major departure from the standard of care expected of a reasonable person or parent having such a legal duty?
(c) Was Lisa Kuka’s failure to protect Nia from violence, likely to cause harm to Nia?
(d) Was Lisa Kuka’s failure to protect Nia from violence, a real and substantive and operative cause of Nia’s death (it does not have to be established as the only cause of death)?
[58] The crux issue on this aspect of the appeal is whether the evidence supported answers of “yes” to questions (a) and (b). The critical question is whether there was evidence sufficient to support the conclusion that Ms Kuka knew, prior to Nia’s lapse into a coma on the Friday evening, that Nia was being subjected to violence.
[59] In a written statement provided to police on 24 July 2007, Ms Kuka said:
I am at work 6 days a week and spend a lot of time with Wiremu, Michael, Michael and Oriwa. They have a lot of control over the girls.
They, the girls, never talk to me about this type of thing in front of the circle.
I have had suspicions about things that go on in my house but I never see any physical injuries so I just had doubts.
[60] In her first video interview, on 24 September 2007, Ms Kuka said she did not know that Nia was being subjected to physical abuse in the two months preceding Nia’s death, saying that she first found out about the incidents of abuse upon Nia’s admission to Starship Hospital, when police enquiries were commenced. When she was asked whether she knew of the dryer incident, or was told of it, Ms Kuka replied “I didn’t hear a lot of this until Starship”.
[61] Ms Kuka admitted that she knew about, and had witnessed, Wiremu and Michael Curtis performing wrestling moves on “the girls”, but said that she had only “heard about” the so-called “pedigree” move.
[62] In her second video interview on 9 October 2007, conducted with Detective Sergeant Hawkins, the following exchange took place:
- While we’re sitting here before you told us a few things about probably ah that are probably contrary to what you said in your first interview...
LK Yep.
H What sort of things were those Lisa?
H What—
LK Because I wanted to go somewhere I just walked out the door.
H What ah what did the wrestling move involve would it—
H Did they bang their head on the mattress or on the ground
...
[63] Ms Kuka also said that Oriwa Kemp used to “whack” Nia, “with open hand across the face across the head across the back... because [Nia] was ugly”. When asked by the interviewing Constable what she would do when she witnessed Nia being treated like that, Ms Kuka said:
LK [Nia] would cry but then she got told to shut up.
H Who would say that?
LK All of them and I would do nothing just sit there.
LK To be honest yes but I also would have taken Wiremu.
H Okay
LK My loyalties were to Wiremu.
[64] Jessie and Esther Glassie also gave evidence which suggested Ms Kuka knew, before Nia’s fatal injury, that Nia was being abused. At the time of the trial, Jessie was 11 years old, and Esther was nine.
[65] In a video interview (which became the evidence in chief), Esther said that Ms Kuka would sometimes observe wrestling moves being performed on the girls (including Nia) and would do nothing about it:
Interviewer Would the wrestling move happen on you sometimes when your mum was at home?
EG Yes.
Interviewer And would she see them happen?
EG Um sometimes.
Interviewer And what would she do about you having wrestling moves done on you?
EG She just don’t care about it.
Interviewer Uhum and would you get hurt sometimes when mum was at home?
EG Yes.
Interviewer And would mum know that you were hurt?
EG No.
Interviewer How do you know your mum doesn’t care about it, what would she do?
EG Cause she don’t say stop doing it.
[66] Esther also said that there were bruises on Nia’s stomach which Ms Kuka saw and that Ms Kuka said to Wiremu that if he did “this one more time I won’t be living with yous”.
[67] Jessie also spoke about telling Ms Kuka what the other adults in the house were doing to Nia She said that Michael Curtis performed a “tombstone” move on Nia:
- Chucked her up and they took her up and the put chuck her down on the mattress cause they brung the mattress out and then they chucked her up on the mattress and then they she hit her teeth on the couch and then her teeth bleed and on Saturday her teeth came out.
...
JG But we tell what happens to Nia cause she’s only small.
Interviewer Oh so have you told your mum about what these people have been doing to Nia?
JG Yes.
...
[68] There was evidence as well from Ms Kuka’s step-father, Albert McLean, about a conversation he had with Ms Kuka and from Robyn Armstrong, a ward clerk at Starship Hospital who overheard a phone call between Ms Kuka and an Australian caller.
[69] Mr McLean said that, on the morning of Sunday 22 July 2007, Ms Kuka arrived in a distressed state at the home Mr McLean shared with Ms Kuka’s mother, Polly Kuka. He said he asked Ms Kuka if “those people at Frank Street was abusing the kids, Nia, and she said yes”.
[70] Ms Armstrong gave evidence of overhearing Ms Kuka’s end of a telephone call from Australia. She stated:
... [Ms Kuka] said [to the caller], “I saw it happen. I saw it, I was there.”, and then there was a space for a second, and then she said, “He hit her head on the floor, he put her head between her knees, and hit her head on the floor three times, and he threw her across the room, and she hit the wall.”, and then it was silent, and then she said, “Because he said she was ugly and won’t listen.”
[71] In his closing address for the Crown, Mr Pilditch framed the Crown case against Ms Kuka as follows:
There are certainly competing accounts from Ms Kuka from the 22nd July the day that she spoke to Detective McLeod at Rotorua, the police station here, to the 24th of July to her interviews in September and October of last year. What I suggest to you is that gradually Ms Kuka began to acknowledge more in terms what she knew about the way Nia was being treated although when compared to the balance of the evidence she certainly did not acknowledge as much as the Crown says she in fact knew.
Was there enough in the evidence for the jury to draw a supportable inference of knowledge?
[72] In addition to her direction to the jury of the elements of count 4, Potter J directed on the circumstances in which the jury were entitled to draw inferences (although she made no express direction on inferences in respect of knowledge). The Judge said:
[43] I need to talk to you about inferences. You are entitled to act on logical inferences based on facts you find properly proved. If you find certain facts proved you may well feel justified in coming to the conclusion, though there is no direct proof of it, that another fact may be inferred from the proved facts.
...
[50] An inference must be a proper inference drawn from the facts as you find them proved. Inferences are not mere speculation or guesswork. They are logical, reasonable and fair deductions from the facts you find proved.
[73] There was overwhelming evidence before the jury of abuse of Nia over the two-month period. Ms Kuka’s evidence of her own knowledge of the abuse was inconsistent across her various statements and police interviews, although she said without contradiction that she had turned a blind eye to “a couple of things that were happening to Nia”, and that she would “do nothing just sit there” when the other adults in the household taunted and assaulted Nia. Ms Armstrong’s evidence was also capable of supporting the conclusion that Ms Kuka witnessed abuse of Nia and had done nothing.
[74] An appellate court’s approach to a jury verdict was considered in R v Owen [2008] 2 NZLR 3 (SC) and elaborated upon in R v Munro [2008] 2 NZLR 87 (CA). Intervention is only justified where the verdict is unreasonable, which means that the evidence before the jury could not reasonably have satisfied the jury to the required criminal standard that the accused was guilty. In R v Munro this Court cautioned that:
- appellate courts are performing a review function;
- the jury had the advantage of hearing and digesting all the evidence at trial; that the weight to be given to discrete pieces of evidence is essentially a jury function;
- reasonable minds disagree on matters of fact.
[75] The threshold for interference with a jury verdict on the basis of unreasonableness or unsupportablity is high. In this case, there was available evidence from which it could reasonably be inferred that Ms Kuka knew of the violence to which Nia was subjected and did nothing to protect her daughter from it. That conclusion is reasonable and the test for appellate interference is not met.
[76] The appeal against conviction on count 4 cannot on this basis be sustained.
Further challenges
[77] In respect of count 3, the appellant argued that the trial Judge erred in declining an application to include an offence under s 152 of the Crimes Act 1961 which provides:
152 Duty of parent or guardian to provide necessaries
(1) Every one who as a parent or person in place of a parent is under a legal duty to provide necessaries for any child under the age of 16 years, being a child in his actual custody, is criminally responsible for omitting without lawful excuse to do so, whether the child is helpless or not, if the death of the child is caused, or if his life is endangered or his health permanently injured, by such omission.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, without lawful excuse, neglects the duty specified in this section so that the life of the child is endangered or his health permanently injured by such neglect.
[78] It is contended that the refusal to provide this alternative led to a miscarriage of justice. It “effectively deprived the appellant of a verdict of guilty of this charge as a real alternative to the charge she was facing of manslaughter”.
[79] Ms Tuilotolava submitted that, because of the high profile of the case and the public concern which it created, there was the likelihood of a miscarriage of justice because the jury would have improperly reasoned that it had no alternative but to return a verdict of guilty on the manslaughter count as they would not have wished to allow the mother to avoid responsibility entirely.
[80] In our system the Crown determines what counts should be contained in an indictment. Providing there is an evidential foundation in respect of the essential elements, it is for the jury to determine whether they have been proved beyond reasonable doubt.
[81] There will be instances where the circumstances could justify conviction on more than one count, but what is placed before the jury is for the Crown. It is not a matter upon which the Court would generally intervene. This is not one of the exceptions. Contrary to Ms Tuilotolava’s submission we do not see this as a situation covered by the provisions of s 335 of the Crimes Act, nor do we find any support for this position in the decision of this Court in R v Bovey [1964] NZLR 865.
[82] The Judge was at pains to explain to the jury the essential elements of the manslaughter count. If all were not established, the jury was duty-bound to acquit. There is no basis for the submissions that the jury has, as an emotional response, convicted although not satisfied that all elements had been proved beyond reasonable doubt.
[83] We are not satisfied that this tangential attack to the verdict advances the appellant’s position. If there had been alternative counts, the jury would not have been left to pick and choose between them. They would have been directed to consider the more serious count and only if that were not proved beyond reasonable doubt would they consider the alternative at all.
[84] The appeal cannot succeed on this basis of challenge.
Fairness of summing up
[85] A general complaint in respect of both counts 3 and 4 was that the defence was not fairly put to the jury.
[86] Under this heading it was alleged that, in respect of count 4, there was a failure to direct the jury on knowledge. We find no substance in this complaint. The test involved was an objective one and Potter J said:
That the failure to protect Nia from violence was grossly negligent, that means it was a major departure from the standard of care expected of a reasonable person or parent in all the circumstances. The Crown must prove that a reasonable person in the circumstances that arose would have observed the legal duty that Lisa Kuka had as Nia’s parent, to protect her from the violence to which she was subjected.
[87] That is in conformity with what this Court said in R v Hamer [2005] 2 NZLR 81:
[37] In our view, the test which must be applied in determining whether an accused has been negligent, and whether the negligence has been a major departure is, in both cases, an objective test.
[88] The Judge made clear that the appellant’s knowledge of what was occurring had to be established as had her reaction or lack of it to that knowledge. Both these elements were addressed by the trial Judge. The point was specifically adverted to again when, after the jury had initially retired at the end of the summing up, at the request of counsel they came back into Court and the Judge said to them:
Members of the jury you will be pleased to hear there is only one small matter on which I need to detain you further and that is just to make quite clear if I have not done so, that in relation to Count 4 which charges Lisa Kuka with breach of legal duty for failing to protect Nia from violence, it is essential in relation to that count that the Crown prove that Lisa Kuka had knowledge of the violence towards Nia in the home. That is an essential part of that count and essential to the issue of whether, in the circumstances, Lisa Kuka’s conduct was a major departure from the standard expected of a reasonable person. I want to make quite clear to you that matter, if it was not already clear.
[89] We are satisfied that the summing up as a whole was balanced, comprehensive and fairly put the respective cases. The circumstances relating to Ms Kuka’s position as the only adult working in the household and the pressure under which she found herself, the fact that she was in other respects a loving mother of her children and supportive, were all remarked upon to the jury.
[90] Issues which were not part of the defence of Ms Kuka in the trial court can hardly be advanced now as grounds for suggesting there was a miscarriage of justice because of the Judge’s failure to direct upon them. The same comment applies to various other inferential matters Ms Tuilotolava said should have been included in the summary of the defence. Nor do we see any merit in the other criticisms raised by Ms Tuilotolava relating to the jury questionnaire.
Result on conviction appeals
[91] There is no basis for interfering with the jury verdicts on either count 3 or count 4 and the appeals against conviction are dismissed.
Appeal against sentence
[92] On count 3, the Judge imposed an effective sentence of nine years’ imprisonment. A concurrent sentence of seven years was imposed with respect of the other manslaughter charge (count 4).
[93] Ms Tu’ilotolava contended that nine years’ imprisonment was particularly severe and did not properly reflect the total circumstances of the offending or the offender.
[94] Potter J referred in her sentencing notes to previous cases heard by this Court including R v Witika [1993] 2 NZLR 424 (CA), R v Filimoehala CA367/99 16 December 1999, and R v Tipene [2001] 2 NZLR 577. The Judge accepted they involved more serious offending. She also referred to R v Moorhead HC AK T011974 13 June 2002 and found the most relevant authority was R v Tracee Harris HC WN CRI 2004-078-1816 26 August 2005, where a sentence of seven years’ imprisonment was imposed. Ms Harris had turned a blind eye to violence inflicted on her young daughter by her partner, who subsequently killed the child. Ms Harris had entered a guilty plea.
[95] The starting point of seven years adopted by Potter J was totally consistent with those decisions. The add-on of two and a half years to recognise the second manslaughter charge for failing to protect Nia from violence was in accordance with principle: see, for example, R v Witika (at [94]).
[96] There were serious aggravating factors in respect of both counts, including:
(a) the vulnerability of a three year old child;
(b) the extraordinary harm done to the child;
(c) the magnitude of the breach of trust by Nia’s mother who the Judge found had “failed her utterly”; and
(d) the concealment of the offending so that the 21st birthday party could go ahead and then an endeavour to protect the other adults even when the authorities were eventually involved.
[97] The Judge considered Ms Kuka’s mitigating personal circumstances. She noted that Ms Kuka is 35 years old, has sound educational and employment records, and significant family support. She had been a conscientious mother, at least prior to the breakup of her relationship with Nia’s father. The Judge accepted Ms Kuka was remorseful and wanted to move forward with her life. The Judge allowed a discount of six months for these factors, concluding that only a minimal discount was appropriate given the “gross breach of trust” involved in the offending.
[98] The sentence imposed was clearly within sentencing discretion, and cannot be challenged. There was no discount available for a guilty plea or co-operation, and we accept the Crown’s submission that the Judge was entitled to recognise the extreme failure by Ms Kuka to perform her duty as a mother.
[99] This was a stern sentence, but in our view it needed to be. It was clearly within sentencing discretion and the condemnation of Ms Kuka’s failure needed to be given substantial weight.
[100] The appeal against sentence is also dismissed.
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URL: http://www.nzlii.org/nz/cases/NZCA/2009/572.html