Ah You v R [2013] NZCA 12 (15 February 2013)

Last Updated: 18 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA116/2012 [2013] NZCA 12

BETWEEN OLINALE AH YOU Appellant

AND THE QUEEN Respondent

Hearing: 12 February 2013

Court: Randerson, Harrison and Stevens JJ

Counsel: M J Dyhrberg and K P Cato for Appellant C L Mander for Respondent

Judgment: 15 February 2013 at 10am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant, Mr Ah You, was found guilty of murder after trial in the High Court in November 2011. This was a re-trial after Mr Ah You’s successful appeal against conviction at his first trial.[1] On 2 February 2012 he was sentenced by the trial judge, Andrews J, to life imprisonment with a minimum non-parole period of 18 years and six months.[2] The appellant initially filed a notice of appeal against both conviction and sentence but has abandoned the sentence appeal.
[2] The conviction appeal is advanced on two grounds:

(a) The Crown led inadmissible evidence from a pathologist about vaginal injuries suffered by the victim. Associated with this were allegedly prejudicial comments made by Crown counsel during his closing address.

(b) The Crown led inadmissible and unfairly prejudicial evidence from medical witnesses as to the level of force required to inflict injuries of the kind sustained by the victim.

[3] In consequence, Mr Ah You submits there was a miscarriage of justice such that his conviction should be set aside.

Background facts

[4] The victim, Mrs Yang, was an 80 year old woman who was in good health for her age. On 11 June 2008, Mr Ah You set out to commit a burglary, entering Mrs Yang’s South Auckland home for that purpose some time between early afternoon and early evening. Mrs Yang was watching television in an upstairs lounge and was confronted and then physically attacked by Mr Ah You. Before she died, Mrs Yang was able to give an account to her family and to a police officer about what happened.
[5] According to her account, a man grabbed her neck from behind and put his hand over her mouth. He then forced her down two flights of stairs to her bedroom where he tried to push her onto the bed. She attempted to resist but was overpowered by the assailant. He tried to force her into a wardrobe in her room but there were a number of items in the wardrobe and there was insufficient room to fit her inside.
[6] Mrs Yang said she must have fallen down. The assailant grabbed her head and pulled her into the wardrobe. He tried to close the door but she kicked it open. She said the assailant stomped on her by putting his foot on her chest. To her knowledge, this had happened on one occasion. She also recalled that, when she fell down, the assailant had kicked her twice in the chest area and had earlier hit her in the head. She could not recall how many times that occurred.
[7] As a result of these assaults, Mrs Yang was left unconscious on the floor in her bedroom. The assailant took $1200 in cash from the property. Mrs Yang was taken to hospital but died three days later from her injuries.
[8] The post-mortem examination indicated that Mrs Yang suffered multiple blows to her head and chest as well as a fracture to the hyoid bone in her neck. Her chest was extensively damaged. There were multiple rib fractures (a total of 38) on both the left and right of her chest to the front, back and sides. Many of the ribs had fractures in more than one place. On the left side of the chest there was a pneumothorax, a condition in which air is present in the space between the lungs and the chest wall. Damage to Mrs Yang’s ribs resulted in a “flail chest”. This refers to a floating segment of the chest wall which becomes detached from the bony structures in the chest and impairs breathing.
[9] The expert medical evidence was that the chest injuries caused to the victim would have required a moderate or moderate to severe degree of force, even accounting for Mrs Yang’s age and the accepted fact that she suffered from osteoporosis.

The trial issues

[10] The Crown put its case to the jury on the basis that Mr Ah You had committed murder in terms of s 168 of the Crimes Act 1961. Specifically, the Crown case was that Mr Ah You intended to cause Mrs Yang grievous bodily harm either to assist him to commit a robbery or to enable him to escape without apprehension.
[11] Mr Ah You accepted that he was guilty of manslaughter but denied the murder charge. He gave evidence at trial that he had injured Mrs Yang by barging into her as he tried to escape and by his efforts to put her into the wardrobe. He admitted applying force to Mrs Yang’s chest area which he described as a single push with his foot. He denied punching, kicking or stomping on her and denied intending to cause her grievous bodily harm.
[12] Given the contrast between the cases for the Crown and the defence, an important issue for the jury was the degree of force used by Mr Ah You on Mrs Yang and whether it was sufficient to enable the jury to conclude that Mr Ah You intended to cause Mrs Yang really serious injury.

First ground of appeal: the evidence of vaginal injury and the prosecutor’s comments

[13] Mr Ah You objects on appeal to evidence given by Dr Vuletic about an injury to Mrs Yang’s vagina. Dr Jane Vuletic was the pathologist who examined Mrs Yang on behalf of the Crown. She gave extensive evidence about the injuries sustained and the cause of death. In response to the prosecutor’s questions as to whether there was any injury to the genital area, Dr Vuletic responded as follows:

1. Yes there was a small tear of the, of the mucosa, the superficial lining of the vagina, which measured 2 by 0.5 centimetres and the, wall of the vagina itself showed some focal areas of haemorrhage but no, there was no other indication of trauma.
17. No lacerations there?
1. No and I wasn’t, wasn’t certain whether this could have happened during catheterisation perhaps, one would not expect, wouldn’t expect that but–
17. But you couldn’t be sure one way or another?
1. I couldn’t be sure.
17. Could it be caused by any other sort of way?
1. It could be caused by trauma to the area, yes.
17. You’ve used the phrase “trauma” on a couple of occasions now. Trauma to the – just so that, what that means in lay terms?
1. Yes, I mean a blow to that area, kick.
17. But it was impossible for you to determine one way or the other?
1. Yes.

[14] In his closing address, the Crown prosecutor, Mr Raftery, referred to events in Mrs Yang’s bedroom:

Then going down to the room, she said, “He pushed me into my room. He tried to push me to my bed, but he couldn’t because I grabbed my bed and he couldn’t push me there. He was still holding me like that when he pushed me into the closet.” Now, I’m not suggesting this was anything else other than theft was in Mr Ah You’s mind, but you can imagine what might be going through Mrs Yang’s mind as she’s being “pushed” or “dragged” was the words used on both occasions, but on a number of occasions by her or by him, to her bed, that she may have thought something worse was going to happen than theft.

So that’s why no doubt she did fight as, put up as much as a struggle as she could to avoid whatever might be happening to her. And so he had a very resistant and very feisty 80 year old, who needed rather more severe treatment than he is prepared to admit to if he was going to actually silence her, or prevent her interfering with either his theft, which was about to take place, or get away after he’s committed it.

[15] After Mr Raftery’s closing address, trial counsel (not Ms Dyhrberg) asked the Judge to discharge the jury. It was submitted that the combined effect of Dr Vuletic’s evidence and Mr Raftery’s closing was to “raise the spectre” of there being a sexual attack on Mrs Yang, or at least that this was in the mind of Mrs Yang. The Judge gave a formal ruling in which she declined counsel’s application to abort the trial.[3]
[16] The Judge said there was no evidence suggesting that there was either the prospect or the actuality of any sexual assault on Mrs Yang; Mr Raftery had not at any time suggested that any form of sexual attack was either intended by Mr Ah You or was in fact inflicted on Mrs Yang; and Mr Raftery’s comment in closing about what Mrs Yang may have been thinking at the time could be dealt with by way of a direction in her summing-up.
[17] After discussion with counsel, the Judge gave the following direction in her summing-up:[4]

[32] Mr Raftery said something in his closing address about what Mrs Yang may have been thinking at the time she was assaulted by Mr Ah You. As to that, you need not be concerned, at all, with what Mrs Yang may have been thinking. Put that out of your minds. The issue for you is what Mr Ah You intended. It is clear from what you have heard from Mr Raftery and Mr Cassidy that it is agreed that Mr Ah You went to [Mrs Yang’s address] for the purpose of stealing something. What you have to focus on in your deliberations is whether, in order to steal from the house, or to get away from it, or to avoid detection, he intended to cause Mrs Yang really serious injury.

[18] There is nothing to suggest that experienced trial counsel raised any concerns about the Judge’s direction.

Counsel’s submission

[19] Ms Dyhrberg submitted that the evidence of injury to the vaginal area was inadmissible because it was not relevant in terms of s 7 of the Evidence Act 2006 since it did not have a tendency to prove or disprove anything of consequence to the determination of the proceeding. Even if it had any probative value, Ms Dyhrberg submitted this was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding. As such, it should have been excluded under s 8 of the Evidence Act.
[20] Ms Dyhrberg further submitted that the cumulative effect of the improper admission of this evidence and Mr Raftery’s subsequent comments in closing were such as to create a real risk of prejudice to Mr Ah You. The combined effect was to suggest the possibility of a sexual assault having occurred or that Mr Ah You had intended to sexually assault Mrs Yang. The Judge’s direction was insufficient to overcome any prejudicial effect and the trial ought to have been aborted.
[21] Ms Dyhrberg pointed out that at Mr Ah You’s first trial the Crown had agreed not to lead the evidence of vaginal injury to avoid any risk of the jury concluding there was a sexual assault on Mrs Yang. Mr Raftery candidly admitted he had forgotten about this at the time of the re-trial.

Our assessment

[22] We accept Mr Mander’s submission on behalf of the Crown that the evidence from Dr Vuletic about the vaginal injury sustained by Mrs Yang was relevant and admissible. By itself, the evidence of vaginal injury was equivocal but, when combined with the evidence of the undoubted multiple injuries to other parts of Mrs Yang’s body, it was open for the jury to conclude that the evidence of vaginal injury was indicative of the infliction of widespread injury from which an intention by Mr Ah You to cause grievous bodily harm could be inferred.
[23] We also accept Mr Mander’s submission that the fact that Dr Vuletic could not rule out the possibility that the injury was caused by the insertion of a catheter did not make the evidence irrelevant. It was appropriate for the jury to evaluate this evidence in the context of the other evidence led at trial with a view to determining whether the vaginal injury was caused by Mr Ah You and whether, in the light of all the evidence, he intended to cause grievous bodily harm.
[24] Mr Mander accepted that the probative value of the evidence might have been relatively modest, but he submitted it was not outweighed by any risk of unfair prejudice. We agree with Mr Mander that there was no risk that the jury might have thought the vaginal injury was evidence of a sexual assault. Mrs Yang was found fully clothed and she did not suggest that there was any sexual assault. There was no other evidence that any such assault had taken place and the Crown did not suggest this at any stage.
[25] We also agree it is unlikely that Dr Vuletic’s evidence as to vaginal injury was a significant factor in the jury’s deliberations. It was no more than a minor piece of evidence in a much more substantial volume of evidence about the injuries Mrs Yang sustained. No reference was made to it by either counsel in their closing addresses. We are satisfied it was unnecessary for the Crown to agree not to lead the evidence of vaginal injury at the first trial since the evidence was properly admissible.
[26] We do not accept the submission made on Mr Ah You’s behalf that Mr Raftery’s comment in his closing address (whether taken by itself or in combination with Dr Vuletic’s evidence of vaginal injury) was improper or unfairly prejudicial. Mr Raftery made it clear that it was no part of the Crown’s case to suggest that sexual assault was contemplated by Mr Ah You. Contrary to the view taken by the Judge, we do not see any ground to criticise Mr Raftery for suggesting that, in Mrs Yang’s mind, she may have been fearful that “something worse” was going to happen to her including the possibility of sexual assault. Given that she had been pushed onto the bed by Mr Ah You, it was an inference available to the jury. As the prosecutor said, it may have explained why Mrs Yang resisted the attack upon her as fiercely as she did.
[27] It was not necessary for the Judge to discharge the jury in all the circumstances. The Judge’s direction given to the jury, with the apparent agreement of Crown and defence counsel, was more than adequate to deal with any possible prejudice to the appellant and was, in our view, more favourable to Mr Ah You than was strictly required. The Judge made it clear to the jury that they were to put entirely to one side Mr Raftery’s comments about what Mrs Yang may have been thinking at the time of the assault. Moreover, as the Judge put it, the issue for the jury was what Mr Ah You intended. She pointed out to the jury that counsel had agreed that Mr Ah You went to Mrs Yang’s property for the purpose of stealing something. The jury were to focus on whether, in order to steal from the house, or to get away from it, or to avoid detection, Mr Ah You intended to cause Mrs Yang really serious injury. The same focus was emphasised in the written jury questionnaire provided to the jury.
[28] We are not persuaded there was any material risk of a miscarriage of justice arising from the first ground of appeal.

Second ground of appeal: The Crown led inadmissible and unfairly prejudicial evidence from medical witnesses as to the level of force required to inflict injuries of the kind sustained by the victim

[29] Dr Sylvia Boys attended Mrs Yang in the Accident and Emergency Department at Middlemore Hospital after she was attacked. She gave evidence for the Crown about the injuries sustained by Mrs Yang. She described the multiple rib fractures already discussed and the “flail chest” injury. She did not regard Mrs Yang’s injuries as consistent with a simple fall. Rather, they were more consistent with an assault. Injuries of the kind sustained were normally seen in major trauma cases – usually falls from a height of more than three metres or road traffic accidents at significant velocity. When asked whether she had seen this type of flail injury in other circumstances, Dr Boys referred to a case involving a farmer who had been squashed by a bull ramming him into a gate. He had sustained a significant flail chest injury as a result. Generally, injuries of that kind involve a high impact.
[30] Dr Vuletic also gave evidence that injuries of the type Mrs Yang sustained were ordinarily seen in motor accident cases or falls from a height. Both these causes could be ruled out in Mrs Yang’s case. She could not have sustained all the injuries she did from a fall from her own height. Mrs Yang’s description of being stomped on was a mechanism which would probably have caused all the injuries to the front of her chest including the fractured sternum. The other injuries she had sustained on the lateral and posterior aspects were consistent with her account that she had been kicked. General areas of bruising on Mrs Yang’s body were consistent with blunt trauma. Asked to identify other cases in which she had seen injuries of a similar nature, Dr Vuletic said that the injuries were similar to those sustained by someone who had been run over by a motor vehicle.
[31] Ms Dyhrberg submitted that the evidence given by Dr Boys and Dr Vuletic of other cases in which they had seen similar injury was not contained in their briefs of evidence and was inadmissible on the footing that the evidence was not substantially helpful in terms of s 25 of the Evidence Act. She also submitted alternatively that the evidence was inadmissible on the basis that any potential probative value was outweighed by the risk of the evidence having an unfairly prejudicial effect on the proceeding. The trial judge ought to have directed the jury to disregard the evidence.
[32] Ms Dyhrberg pointed to the acceptance by Dr Boys in cross-examination that, unlike Mrs Yang, the farmer who had been rammed by a bull was not suffering from osteoporosis and was aged in his late 50s. Dr Boys had also accepted in cross-examination that, due to Mrs Yang’s osteoporosis, the amount of force that would have been required to cause the injuries she sustained was lower than that required to cause the same injuries in a younger and otherwise healthy person. Ms Dyhrberg submitted that the effect of the evidence given by the two medical witnesses was to suggest to the jury that Mr Ah You must have inflicted the same degree of force on the deceased as the bull had done in the case of the injuries sustained by the farmer. The evidence was, she said, given in a vague and generalised way which did not assist the jury in determining the degree of force used in the present case.

Dr Sage’s proposed evidence

[33] Ms Dyhrberg sought to adduce further evidence on appeal from the consultant forensic pathologist Dr Martin Sage. This was opposed by Mr Mander on the basis that the evidence was not fresh since Dr Sage’s evidence was available and could have been called at trial if trial counsel had sought to do so. Ms Dyhrberg accepted that the evidence was not fresh but submitted it was relevant and ought to be introduced at least for the purpose of supporting the submission made by Mr Ah You that the impugned evidence was not substantially helpful.
[34] The evidence of Dr Sage (if leave were given to introduce it on appeal) does not significantly advance Mr Ah You’s case. Rather, in material respects, it supports the Crown case. To illustrate the point, we quote the following passage from Dr Sage’s proposed evidence:

Mrs Yang sustained 38 separate rib fractures. At autopsy Dr Vuletic documented fractures to right ribs 1-8 anterolaterally, left ribs 1-12 posteriorly and 1-12 laterally and 1-6 anteriorly as well is [sic] a fracture of the body of sternum. This created a large left sided flail segment and would have significantly embarrassed right sided respiratory function as well, quite apart from being very painful. Dr Vuletic concluded that “the presence of multiple fractures and a number of ribs indicates the application of force to a number of sites”. I agree with her conclusion and would add that the extent of fracturing in this case is extreme. She was asked to consider a contribution of age-related softening of the bones termed osteoporosis. She indicated that even in the light of this, moderate force would be required to produce the fractures seen.

[35] Dr Sage goes on to discuss high energy impact injuries such as motor vehicle accidents which cause injuries of the type sustained by Mrs Yang. None of these were applicable to the case in question but Dr Sage agreed that:

... a persistent and violent assault in which the victim is stomped or kicked in the chest or jumped on many times and the body is unable to “move with the blow” because it is pinned against the ground or some other immovable surface can easily replicate the effect of single massive force injury.

[36] Dr Sage also agreed with evidence given by the Crown medical experts at trial that elderly people, especially women, often have less robust bones due to osteoporosis. In that context, multiple rib fractures and even major flail segments are not uncommon findings where, for example, vigorous attempts at CPR have been made in an attempt to save the life of a victim of a heart attack. Dr Sage’s opinion is that “horizontal stomping” as described by Mr Ah You in his evidence while Mrs Yang was pinned up against the contents of the wardrobe could result in most or all of the chest wall injuries found. So too, a series of forcible wardrobe door closures by Mr Ah You against Mrs Yang in the crowded space of the wardrobe provided a potential mechanism for chest wall injury. Dr Sage did not accept that if Mrs Yang had fallen down the stairs that this would have been a major operating cause of the very extensive and multiple fractures sustained.
[37] Dr Sage concluded his evidence in these terms:

I fully concur with Dr Vuletic in her view that the chest wall injuries are very likely to have resulted from multiple separate blows, and that each blow needed only moderate force as its “least necessary” level given the age and condition of the victim. This offers a quite different picture to the massive single force envisaged by a road crash or squash by a charging bull. However, it does carry the clear implication of a prolonged and determined assault, and I have no way of ascertaining whether the forceful kicks to Mrs Yang’s chest were “least necessary” or “maximal force” blows.

...

If the illustrative examples available to the jury when they considered their verdicts comprised only those of a single episode of massive force, (such as road vehicle crash, a fall from great height, or pinning crush by charging bull) this could have created a false impression of the degree of force necessary or actually used to inflict these injuries.

As the evidence was presented, I believe that the jury was only given a very vague explanation of the force that was applied in both of the examples in order to create the injuries described. In order for the jury to make practical use from these examples I believe that a more detailed explanation was required. The evidence as it stood may not have been sufficient to explain to laymen the complex issue of degrees of force in such circumstances.

Our conclusions on the second appeal ground

[38] We do not consider it is appropriate to allow Dr Sage’s evidence to be introduced on appeal. He was engaged by trial counsel at the time of Mr Ah You’s trial but, for reasons which are entirely understandable, trial counsel chose not to call him. It would have been most unwise to have called him, given Dr Sage’s agreement with the essential conclusions reached by Dr Vuletic. There can be no doubt, as Ms Dyhrberg conceded, that Dr Sage’s evidence is not fresh. Nor is it cogent in advancing Mr Ah You’s appeal.
[39] We are not persuaded there was any material risk that the jury would be misled by the examples given by the Crown’s medical experts of chest injuries sustained by the high energy impacts involved in motor vehicle collisions, by falling from a significant height, or by being crushed by a charging bull.
[40] The jury would have been well aware that the least amount of force Mr Ah You could have used to inflict the victim’s injuries was significantly less than the single crushing force involved in the kinds of incidents described by the Crown’s experts. It was common ground that Mrs Yang was an elderly woman with osteoporosis and, on the evidence, she was therefore more vulnerable to injury than a younger healthy person. It was plain from the evidence that the degree of force needed to inflict a flail chest injury on Mrs Yang was less than might be required in other cases. This point was brought out in cross-examination by trial counsel and emphasised in his closing address when counsel submitted to the jury that comparisons with the one-off high energy impact cases were of little assistance to the jury.
[41] As already noted, Dr Vuletic’s evidence was that, as a general proposition, a moderate degree of force could have caused the injuries Mrs Yang sustained. Dr Boys’ evidence on the same subject was that moderate to severe force would have been required, even considering Mrs Yang’s osteoporosis.
[42] Standing back and reviewing the evidence as a whole, there was ample evidence available to the jury to conclude that Mr Ah You intended to cause really serious harm to Mrs Yang. This is apparent from the evidence of multiple rib fractures, the flail chest injury, the fracture to the hyoid bone and the bruising sustained to various parts of Mrs Yang’s body including the head. All of this was inconsistent with Mr Ah You’s account as we have described it. We are not persuaded that the jury could have been under any misapprehension about the degree of force required to inflict the kind of injuries Mrs Yang suffered or that the examples of injury from high energy impact led to any material risk of miscarriage.

Result

[43] For the reasons given, the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Ah You v R [2011] NZCA 82.
[2] R v Ah You [2012] NZHC 42.
[3] R v Ah You HC Auckland CRI-2008-092-19108, 22 November 2011 (Ruling (No 2)).
[4] R v Ah You HC Auckland CRI-2008-092-19108, 22 November 2011 (Summing up).