STEWART v R [2017] NZCA 246

STEWART v R [2017] NZCA 246 [13 June 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSONUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS ORNAMED WITNESS UNDER 18 YEARS OF AGE PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA611/2016[2017] NZCA 246BETWEEN DOUGLAS GLEN STEWARTAppellantAND THE QUEENRespondentHearing: 23 May 2017Court: Asher, Venning and Ellis JJCounsel: M J English for AppellantA J Ewing for RespondentJudgment: 13 June 2017 at 11.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)Introduction[1] On the evening of 9 May 2014, Mr Stewart had been left alone to care for three young children while his partner went to a party. Two of the children were Mr Stewart's own and the other was his partner's 18 month old daughter, A. At 9.56that evening Mr Stewart made a 111 call in which he told the operator that, just minutes before, A had chased their Labrador puppy through the front door and had fallen down the stairs outside. He said that after coming inside and asking for a"bikkie" she had collapsed in the hallway.[2] When the ambulance officers arrived at 10.09 pm, they found A pale and unconscious. She had obvious injuries: bruising to her forehead and the side of her face; a graze on her chin; and a grazed and swollen top lip.[3] A was taken to Starship Hospital, where it became apparent she had suffered serious internal injuries: bleeding between her brain and skull; swelling leading to brain cell death on the right-hand side of her brain due to insufficient oxygen; fractures to her jaw and forearm; and injuries to several spinal vertebrae.[4] Mr Stewart was later charged with causing A grievous bodily harm with intent to cause such harm to her. At trial he maintained his position that she had fallen down the steps outside after being knocked over by the dog and had fallen again in the hall. But on 30 September 2016, a jury found him guilty on that charge.Judge Field subsequently sentenced him to seven years' imprisonment.[5] Mr Stewart now appeals against his conviction, principally on the grounds that there was insufficient evidence of intent and that the Judge's directions in thatregard were inadequate.The factual evidence[6] We begin by noting that there is no issue taken on appeal with the jury's conclusion that Mr Stewart's account of what had happened to A was a lie. It is not therefore necessary to deal with the evidence about that in any detail. It probablysuffices to say that Mr Stewart's evidence that A had fallen down the front stepsshortly before he called 111 at 9.56 pm was contradicted by the records from the alarm system installed in the house which revealed that the front door had not been opened between 8.19 pm and 9.58 pm. There was also evidence which cast doubt onthe probity of other aspects of Mr Stewart's version of events.1The Crown's expert evidence[7] Because the matters at issue in this appeal largely turn on the expert medical evidence, it is necessary to set it out in some detail. The following summary of thatevidence is largely taken from Ms Ewing's helpful and comprehensive submissions before us.2[8] The Crown called four medical experts: Dr Metcalfe (a paediatric radiologist); Dr Nunn (a paediatrician); and Drs Furneaux and Scotter (both paediatric neurosurgeons). They all agreed that if A had not fallen down the front steps, there was no possibility of the injuries being caused accidentally inside the house.[9] Their evidence can usefully be summarised under three headings: A's externalbodily injuries, her skeletal injuries, and her brain injuries.External injuries[10] A's external injuries were relatively minor:(a) bruising to her face — right and left sides of her forehead, left eyebrow, left lip and both ears — and a small bruise on her left upper arm. While these bruises could not be dated, Dr Nunn noted they were on multiple planes of A's face, indicating multiple impacts;1 In particular, in relation to Mr Stewart's evidence about changing A's clothes. A's mother hadleft her wearing a pink onesie under her cupcake pyjamas. When ambulance staff arrived, she was in a polka-dot onesie. When the pink onesie was found, both sleeves were stained with her blood. Mr Stewart said he had changed her outfit, but that this occurred before dinner — at which point her clothes could not yet have been bloodstained. Her cupcake pyjama top also had a tear that had not been there earlier in the day.2 We have nonetheless made some minor corrections based on our own reading of that evidence and also as a result of matters raised by Mr English at the hearing.(b) several small scratches to her face and a graze to her chin; and(c) a large bump (haematoma) to the back of A's head, consistent with animpact to that area. In cross-examination, Drs Metcalfe and Scotteraccepted that this injury could have been caused if A had fallen over in the hall (as Mr Stewart had described) and struck her head.Skeletal injuries[11] A had a fractured jaw (mandible), on the right side near her ear. The Crown'sexpert evidence was that the usual mechanism for this injury would be a direct blowto the tip or left side of the jaw. It would have required "a significant blow"(Dr Furneaux); or "major trauma", such as from rugby, a mountain bike crash or a caraccident (Dr Metcalfe).[12] A also had compression fractures (or "trabecular disruption") to four spinalvertebrae. All experts were agreed that the cause of such injuries was"hyperflexion"; an impact to the top or bottom of A's body which resulted in herspine compressing forwards, damaging the vertebrae.[13] As to the force required, all four Crown experts suggested these injuriescould result from A being dropped from a height, or (in Dr Metcalfe's case) violentlyshaken:(a) Dr Metcalfe described these injuries as common in child abuse cases where a child has been "very violently" shaken; "as they shake backwards and forwards you get the hyperflexion so the child's bodyflexes and you get those compression fractures from bending toomuch". It could also occur from an external force being transmittedthrough the spine, for example by the child falling or being forced down onto a hard surface on her bottom. These injuries would not be expected to result from the minor external trauma that A had suffered; accidental causes of hyperflexion injury include a major car crash, or falling 20 feet from a tree;(b) Dr Nunn agreed these injuries require "extreme bending" of the spine from "high energy trauma", such as that involved in a car accident ora fall from quite a high height;(c) Dr Furneaux also gave the example of a road accident or a pilot whoseplane bounces along the runway, causing "massive flexion" of thespine. In A's case, he suggested a blow to the top of her head could havecaused the spinal injuries; and(d) Dr Scotter disavowed expertise in this area but agreed that, in children, these fractures are commonly seen after a car accident or a fall from height, where pressure has gone down from the head or up from the feet and the spine has compressed forwards.[14] A's left radius (forearm) was also fractured. Dr Metcalfe noted this kind of fracture was common in children, typically from falling over with an outstretchedhand. He said it was unlikely that both A's jaw and her arm had been broken in thesame incident because if she had put out her hand to stop her fall she would not have hit her chin.Brain injuries[15] There was bleeding between the right side of A's brain and the skull (subduralhaemorrhages). Again, the Crown experts consistently suggested this brain bleed would have required a powerful blow to the head, or violent shaking:(a) Dr Metcalfe noted that, if unexplained by a "major catastrophe" such as a car crash, "[t]he conventional theory on how you tend to get subdurals in little infants under two, is from shaking"; this causes veins in the brain to tear. The haemorrhages A had suffered would notbe seen with what he termed "minor" trauma, such as a child fallingout of a shopping cart and fracturing her skull. Dr Metcalfeconsidered that, in the absence of any external impact injury, "themechanism that fits medically is that these are from shaking". And"we're not just talking a little shake, it's violent shaking that tears these veins as the head is moving front to back";(b) Dr Nunn suggested "significant force", as in a major accident or a fall from over three feet, would be required to cause this kind of brain haemorrhage; and(c) Dr Scotter agreed that subdural haemorrhages would be associatedwith a "significant primary brain injury", and are common in cases of"high energy impact to the skull": assault, falls from "great height"(higher than simply from standing), or motor vehicle accidents.[16] The right side of A's brain showed oedema (swelling) which effectivelycaused cells on that side to die from oxygen deprivation (in technical terms, hypoxicischaemic encephalopathy). Dr Metcalfe commented that "you don't see this [injury] with minor trauma".[17] The neurosurgeon, Dr Furneaux, suggested a "significant blow" to the left rear of A's head (causing the bump) might have caused a "contra-coup" injury to the right front brain (causing the brain injuries). He considered her right brain injuries were consistent with "shearing" forces, or one part of the brain moving over another. This would have required significant accelerating force, such as a "king hit" blow or "martialarts" kick; it could not be caused by a fall or striking a solid surface. Unconsciousness would immediately result and would last some hours.[18] A's retinal haemorrhages were said to be a further sign of head trauma.Dr Nunn explained these as resulting from "shearing" forces (the brain moving whilethe retina remains fixed). Major trauma, such as whiplash from a car accident or asignificant fall (more than a metre) might cause them. In A's case the retinal injurywas extensive, covering several layers.The number of impacts[19] The majority of the Crown experts considered that several impacts wouldhave been required to cause all of A's injuries:(a) Dr Metcalfe thought "there would have to be several different eventshere with several different types of trauma to explain all this child's injuries". The bump to the back of the head and the jaw injury would have been different impacts; violent shaking could have caused the subdural haemorrhage and the spinal injuries, but not the jaw fracture.The constellation of injuries "would be very unusual from one or two events".(b) Dr Furneaux thought there were at least three "episodes" needed toexplain the injuries; the blow to the chin could have caused the shearing and subdural haemorrhages, and perhaps also the retinal haemorrhage. But this left the vertebral compression, facial bruising, and broken arm.[20] By contrast, in cross-examination, Dr Scotter appeared to agree with thedefence expert's conclusion that A's major injuries might have resulted from a single high force impact. The facial bruising could not, however, be explained in that way.Dr Metcalfe's comments about Dr Donald[21] Towards the end of Dr Metcalfe's evidence in chief, he made a commentsuggesting that the defence expert, Dr Donald, had expressed a particular viewcontingently "because he's the defence person". Later, during cross-examination, he was asked if he knew Dr Donald. His response was that he did not know him personally, but he had come across him frequently as he "does a lot of defence work". The Judge then intervened, and asked whether Dr Metcalfe was suggesting that Dr Donald's view was coloured by the fact that he was giving evidence for thedefence. Dr Metcalfe denied that and said that he was simply responding to the question about whether the two men had met.[22] When later cross-examined about the comments he had made about Dr Donald, Dr Metcalfe responded that he considered it unhelpful for expert witnesses to use ambiguous language and to talk about possibilities "when you're trying to sort out a problem". Defence counsel then put to him that expert witnesses are not advocates for either side, to which he responded "I would imagine we're bothadvocates for the children in giving an answer to what's happened, yes". He refusedto withdraw his comment, but reiterated that he was not trying to be derogatory about Dr Donald.The application under s 147[23] At the close of the Crown case, Mr Stewart applied for a discharge under s 147 of the Criminal Procedure Act 2011. Judge Field's subsequent ruling makes itclear that the application was advanced principally on the basis that no clearmechanism for A's injuries had been established by the Crown's evidence. Indeclining the application, the Judge said:3[T]he Crown points out that there could be a number of mechanisms which could be reasonably considered by the jury, a blow to the chin by way of a king hit, a kick, there is no requirement to prove beyond reasonable doubt for mechanism.As so often happens in cases like this there are no witnesses to what has occurred one way or the other it is simply because the Crown is unable to specify a particular mechanism that cannot and should not be fatal to the Crown case. In any event, the defence is that there was no incident of violence to the child by Mr Stewart and that then leaves open what, in fact, happened to the child. It is the Crown case that Mr Stewart is not telling the truth when he maintains that he did nothing to [A].The evidence of the defence expert, Dr Donald[24] Dr Donald disagreed that there was evidence of a "shearing" injury. His view was that most of A's injuries could all have been caused by a single "high force"impact, such as being knocked over by the dog while running, or a forward fall down stairs onto concrete. The exception was the facial and ear bruising.[25] Dr Donald nonetheless agreed with the Crown experts that if there was no fall down the front steps, there was no possibility of the injuries being caused accidentally inside the house. He also said that if A had not fallen down the stairs, a fall from her own height could not explain the injuries, apart from the bump on the back of her head. Beyond this, he offered no comment on what other mechanisms may have caused her injuries, or the degree of force required.3 R v Stewart [2016] NZDC 19116 at [3]–[4].Closing addresses[26] The Crown in its closing address listed five reasons which (it said) proved Mr Stewart's guilt. It is fair to say that most of these were concerned with establishing that Mr Stewart's account of events was a lie, rather than being focussed on the question of intent.[27] Because the defence position was that Mr Stewart did not cause A's injuries,the defence did not close on the issue of intent at all.The Judge's directions on intent[28] The Judge's summing-up was, regrettably, not recorded. Counsel were nonetheless agreed that he told the jury:(a) that there could be no doubt that the harm suffered by A was really serious; and(b) that the issues therefore were:(i) whether Mr Stewart caused that harm; and, if so(ii) whether he intended to cause that level of harm.[29] Once the jury had retired, defence counsel raised a question with the Judge about the sufficiency of his directions on intent. The Judge declined to call the jury back.The appeal[30] Mr Stewart's appeal against conviction was advanced on the grounds that:(a) the Judge's refusal to dismiss the charge at the conclusion of theCrown case was wrong;(b) the Judge did not direct the jury adequately on the issue of intent;(c) the verdict was unreasonable; and(d) the Crown expert evidence was given in an inappropriate fashion.[31] Notwithstanding the separate articulation of the grounds in this way, Mr English acknowledged that the first, second and third grounds were each squarely focused on the question of intent. More particularly, he contended that:(a) the Judge's directions to the jury on intent were wrong because:(i) they did not accord with the recent dicta of this Court inVincent v R;4 and(ii) he should have told the jury that there were alternativehypotheses open to them about the cause of A's injuries and, in particular, that it was possible that they might have been caused accidentally or with some lesser form of intent;(b) whether Mr Stewart had the requisite intent was necessarily a matter of inference;(c) because Mr Stewart had denied causing A's injuries at all, there was nothing in the factual narrative disclosed at trial which enabled the jury to determine how they were caused; and(d) although the precise mechanism by which A's injuries were causedwas not an element of the offence that needed to be proved by the Crown beyond reasonable doubt, the expert medical evidence aboutthe nature and extent of A's injuries was an insufficient basis for thejury to infer that Mr Stewart had inflicted them with the intent to cause A really serious harm.4 Vincent v R [2015] NZCA 201 [Vincent CA].[32] The appeal ground relating to the expert evidence relates to Dr Metcalfe'scomments during the trial about Dr Donald which we have set out above. The submission was that the comments indicated that Dr Metcalfe was not impartial and that the Judge should have directed the jury to ignore his evidence.Discussion: IntentVincent[33] The charge in Vincent was one of wounding with intent to cause grievousbodily harm. Mr Vincent admitted causing the injuries in question.5 But because thetype of injury referred to in the charge was wounding, rather than causing grievousbodily harm, it could not be safely inferred that simply intending to cause the harmactually suffered (wounding) meant that Mr Vincent had the requisite intent. Thisdisjunct had been highlighted by jury questions about whether it was Mr Vincent'sassessment of the seriousness of the injuries which he had intended to inflict whichwas relevant to determining his level of intent or some more objective standard.[34] On appeal to this Court, it was confirmed that the task for the jury is firstly to determine the type of injuries which the applicant intended to inflict and secondly to decide whether injuries of that character were really serious harm.6 The Court went on to note:7[49] The focus of the first question is subjective in the sense that it is thedefendant's actual intention that must be determined. But the jury must consider all the evidence including the nature of the assault and the acts and statements made by the accused before, at, or after the event. In doing so, the jury may draw appropriate inferences from the proven facts in deciding5 The charge arose out of an incident in prison between two serving prisoners. Mr Vincent came up behind the complainant and stabbed him four times in the neck using a home-made implement consisting of a toothbrush handle and metal blade of approximately 80 mm in length. The complainant's wounds were sutured in hospital and he returned to the prison later the same day. No permanent injury was caused. Mr Vincent claimed that it was a pre-emptive strike associated with prior bullying behaviour of the complainant towards him. He said that it was nothis intention "to destroy [the complainant] completely". Rather he "targeted some of the muscles in his neck, [to] cause some trauma just to prevent him from pursuing his policy of antagonising and exploiting my vulnerabilities". Similarly, in his evidence at trialMr Vincent said that his intention had been "to immobilise him to a certain extent" so that "hewould have to step back from his aggressive, energetically aggressive, behaviour".6 Vincent CA, above n 4, at [48] (footnotes omitted).7 In a subsequent decision by the Supreme Court denying Mr Vincent leave to appeal further, no concern was expressed about this analysis: Vincent v R [2016] NZSC 15 [Vincent SC].what the appellant actually intended and whether that amounted to an intention to cause grievous bodily harm. As Mr Lithgow ultimately accepted, it is for the jury to determine the second question on an objective basis.[35] Be all that as it may, we do not consider that the Court in Vincent intended to lay down any immutable rules about directions in cases where an intent to cause grievous bodily harm must be proved. It is trite that jury questions should betailored to the circumstances of the particular case. And Mr Stewart's case was different from Mr Vincent's in two important respects. First, whether Mr Stewart had caused A's injuries was, of course, contested. And secondly, there was nodispute that A's injuries did constitute grievous bodily harm. Accordingly, in theevent that the jury found it proved that Mr Stewart did cause A's injuries (as it did)the only remaining question for the jury was whether he intended to cause her that kind of harm. To require the Judge to frame that issue using the Vincent two step analysis in our view overcomplicates the relevant inquiry and is unnecessary.Was the Judge required to put alternative hypotheses about the cause of A's injuriesto the jury?[36] The starting point is that the defence case was that A had fallen down the steps and then fallen again once she came back inside. No other possible cause of her injuries was suggested; it was inconsistent with the defence case to suggest that Mr Stewart might have caused them accidentally.[37] Mr English nonetheless submitted that the jury should have had drawn to itsattention that, in the event that they found that Mr Stewart did cause A's injuries, hemight have done so accidentally, with a level of intent less than to cause her grievous bodily harm. He said that the Judge was therefore obliged to put alternativeexplanations to the jury as to some, conceivably accidental, cause of A's injuries.[38] A not dissimilar argument was rejected by this Court and the Supreme Court in Vincent.8 The Supreme Court said:[16] The charge of wounding with intent to cause grievous bodily harm was the only charge faced by the applicant. During their deliberations the8 Vincent CA, above n 4, at [41]–[44]; and Vincent SC, above n 5.jury asked to see the sections of the Crimes Act 1961 which identified "the charges above and below in seriousness of the current charges". The Judgedeclined to provide this to the jury and told them that they had to concentrate on the charge which the applicant faced. Counsel for the applicantcomplains as to the Judge's refusal to provide the jury with the hierarchy ofcharges and also, although not in a very particularised way, with the laying of a single charge.[17] Had the Judge acceded to the jury's request, it would have invited questions well-removed from the jury's task and, as well, providedconsiderable scope for confusion, given the extent of overlap between the crimes in question. We accept that it would have been open to the prosecution to lay alternative charges and, given the nature of the defence as to mens rea, perhaps better — or at least safer — if they had done so. That said, however, the jury would not have found the applicant guilty of the offence charged unless satisfied that he was guilty.[39] The point made here applies even more strongly in Mr Stewart's case.Unlike Mr Vincent, Mr Stewart did not even put the nature and level of his intent at issue. But the fundamental point is that the Crown had to prove intent to the requisite (charged) standard. It was not, in doing so, required to rebut alternative factual scenarios which were not advanced by the defence and which had no evidentiary basis. Similarly, we do not consider that the Judge was required to invite the jury to consider such fanciful hypotheses. Once the jury had determined that Mr Stewart was responsible for A's injuries the question simply was whether theCrown had proved he had the requisite intent when he did so.Was there sufficient evidence for the jury to find the Crown had proved intent beyond reasonable doubt?[40] In Taingahue v R this Court confirmed that the type of injuries suffered formpart of the evidence from which a defendant's intention may be inferred.9 The Court referred to its earlier decisions in R v Black, R v Howse, and Owen v R by way of further example.10[41] We acknowledge that it was not possible here for the jury to come to adefinitive view about the relevant causative mechanism or mechanisms of A'sinjuries. As Mr English accepts, that is not something the Crown had to prove. We nonetheless consider that there was more than sufficient evidence for them to9 Taingahue v R [2016] NZCA 557 at [13]–[14].10 R v Black [1956] NZLR 204 (CA) at 210; R v Howse [2003] 3 NZLR 767 (CA) at [39]; andOwen v R [2011] NZCA 348 at [56].conclude that her injuries were caused with intent to cause her really serious harm, for the reasons which follow.[42] Once it was accepted by the jury that it was Mr Stewart who had caused A'sinjuries, the starting point for any analysis of the circumstantial evidence going to his intent in doing so is that he was a grown man and A was an 18 month old little girl. Any reasonable person in Mr Stewart's position would know that an assault upon herby him was likely to cause her serious harm.[43] And once that point is reached, it is relevant that there was general expert agreement that:(a) regardless of whether A had been shaken, kicked, dropped or punched, considerable force would have been required to cause a number of her injuries;(b) the relevant acts (whether shaking, kicking, punching or dropping)involved A's head and spine; and(c) her injuries could not have been caused by a single event.[44] The medical evidence that suggests that the assault had several stages wasfurther supported by the evidence that A's blood was found in several locationsaround the house. To continue an assault on an already injured toddler necessarilyspeaks to the assailant's intent to injure her seriously.[45] Mr English's suggestion on behalf of Mr Stewart that A's injuries could havebeen caused by Mr Stewart but without intent to cause her grievous bodily harm (Mr English's suggestion was some kind of rough game "gone wrong") is at odds with the evidence just mentioned. Nor was there any other evidence before the jury to support such a hypothesis. Moreover, it is at odds with the lies told by Mr Stewart (both to the 111 operator and at trial) and his attempt to cover up what had happened(by changing A's clothing). If what had happened to A had been a genuine accidentit would make no sense to make up some other story about her falling down the steps.[46] In summary, we consider it is facile to suggest that a grown man who seriously injures a toddler after assaulting her with considerable force and on more than one occasion did not intend to cause her really serious harm. Based on our own assessment of the evidence above we are unable to see any basis upon which thejury's verdict in that regard could be said to be unreasonable.Dr Metcalfe's comments[47] Mr English submitted that Dr Metcalfe breached the rule that experts are to assist the Court impartially. He said that the comments we have recorded above were unjustifiably critical of Dr Donald, who was simply meeting his own expertwitness obligations. Dr Metcalfe's description of himself as an advocate forchildren, and his refusal to withdraw his comment about Dr Donald also (it was said) suggested that he was partisan. Ultimately, the submission was that had Dr Metcalfe's evidence been more temperate, and had he not criticised Dr Donald inthe way he did, the jury would have reached a different verdict.[48] We are unable to accept that submission. To the extent that Dr Metcalfe'scomments might initially have been taken to be suggesting that Dr Donald was partisan, that was quickly corrected by the Judge and by defence counsel in cross-examination. Dr Metcalfe disavowed any intentional criticism of Dr Donald and overall we do not consider that his evidence veered into advocacy or emotion. His reference to advocating for the children did not mean that he was advocating against Mr Stewart or in favour of the Crown. As Dr Metcalfe made clear, what he meant was that he was attempting to provide an expert view about what had happened to A.[49] Lastly, there is the point that even without Dr Metcalfe's evidence (and wenote that defence counsel urged the jury to put it to one side on the grounds that he was biased) the other three Crown experts and, to some extent, Dr Donald himself, concurred on many of the critical points. There was agreement that if the injuries were caused inside the house they could not have been accidental. There wasagreement that A must have suffered more than one assault. There was agreementthat a considerable amount of force was required to cause many of A's injuries. Andthere was the uncontested fact of the very serious injuries themselves.Result[50] None of the grounds of appeal can succeed, for the reasons we have given.[51] The appeal is dismissed.[52] We do not consider there is any material risk of identification of the complainant from this judgment. We therefore make no order suppressing Mr Stewart's name.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent