LI v R [2022] NZCA 552

PUBLIC VERSIONLI v R [2022] NZCA 552 [17 November 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF FAMILY MEMBERS UNDER THE AGEOF 18 YEARS WHO APPEARED AS WITNESSES PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF FINEDETAIL EVIDENCE OF THE CARE PROVIDED BY THE FAMILYMEMBERS PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA753/2021[2022] NZCA 552BETWEEN MALIA UNALOTOKIPEA LIAppellantAND THE KINGRespondentHearing: 22 August 2022Court: Goddard, Brewer and Edwards JJCounsel: M W Ryan and J E Tulloch for AppellantS C Baker for RespondentJudgment: 17 November 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction[1] On 1 July 2021, following a trial before Wylie J and a jury, Mrs Li wasconvicted of manslaughter by failing to provide her husband, Mr 'Epenisa with thenecessaries of life, thereby causing his death. Mrs Li was sentenced to five years andseven months' imprisonment.1[2] Mrs Li appeals against her conviction. She also filed an appealagainst sentence, but that appeal was abandoned.[3] Mrs Li submits that the jury's verdict was unreasonable or could not besupported having regard to the evidence, in particular the expert medical evidencegiven by Mr Peat, a plastic and reconstructive surgeon. The immediate cause ofMr 'Epenisa's death was a number of pressure sores that had become infected,resulting in sepsis. Mr Peat gave expert evidence about the time frame within whichthose pressure sores were likely to have developed. The essence of the argumentpresented by Mr Ryan, counsel for Mrs Li, was that:(a) Mr Peat's evidence was that the pressure sores became overwhelminglyinfected in a short time frame and rapidly caused Mr 'Epenisa's death;and(b) in the circumstances there was nothing Mrs Li could have done toprotect him from the development of sepsis, and from death.[4] As we explain in more detail below, it is in our view clear that it was open tothe jury to reach a verdict of guilty on the basis of the evidence before it in this case.The Crown's case did not depend on Mrs Li being actively aware of the pressure sores,or of their full extent. The Crown did not suggest that Mrs Li's failure to provide thenecessary care to Mr 'Epenisa began at the point in time when the sores began to beapparent. Rather, the Crown invited the jury to find that Mrs Li's failure to providenecessary care related to allowing, or not alleviating, the conditions that enabled thepressure sores to happen in the first place. It was open to the jury to accept theCrown case, and reach a guilty verdict on that basis, even if Mr Peat's evidence aboutthe minimum time for the pressure sores to develop and become infected was accepted.It was also open to the jury not to accept Mr Peat's evidence, and to prefer otherevidence suggesting that the sores had developed over a longer time frame in this case.1 R v Li [2021] NZHC 3354 at [69].[5] The appeal must therefore be dismissed.The charge against Mrs Li[6] The charge Mrs Li faced was that she:[B]etween 29 January 2016 and 2 October 2016 at Mangere, having the actualcare or charge of Lanitala 'Epenisa, a vulnerable adult unable to providehimself with the necessaries, caused Lanitala 'Epenisa's death by omitting,without lawful excuse, to perform legal duties to provide him with necessariesand to take reasonable steps to protect him from injury, those omissions beinga major departure from the standard of care expected of a reasonable personto whom those legal duties apply.[7] The particulars of the charge were as follows:Failure to provide necessaries, including adequate nourishment, hydration,medical care, and/or hygiene;and/orFailure to take reasonable steps to protect from injury, those reasonable stepsincluding preventing pressure sores from developing or worsening throughadequate care, movement and hygiene; cleaning of wounds to preventinfection; accepting assistance from other friends or relations of the deceased;and/or seeking medical assistance.Relevant facts[8] Because the appeal is presented on the basis that the verdict was unreasonableor could not be supported having regard to the evidence, it is necessary to set out insome detail the circumstances of the offending and the expert evidence called at trial.Background[9] Mrs Li and Mr 'Epenisa had been married for some years. [Redacted].2[10] Prior to Mr 'Epenisa's death, Mrs Li was employed as a health care assistantfor a period of almost three years. In this role, she received basic health care training— including on how to look after the elderly and infirm.2 Identifying particulars of family members have been redacted to ensure compliance with ss 204and 205 of the Criminal Procedure Act 2011.[11] In September 2014, Mr 'Epenisa suffered a stroke and was admitted to hospital.He was discharged in late 2014. At the time he was able to walk independently withthe aid of an ankle splint and a crutch. He was continent and able to manage his owntoileting. Shortly after his discharge, he suffered a second stroke and was readmittedto hospital. He was discharged for a second time in February 2015. He was thencapable of feeding himself with adaptive cutlery but he required assistance withshowering and dressing.[12] Before Mr 'Epenisa was discharged from hospital for the second time, he wasreferred to Taikura Trust so that his needs could be assessed and care arrangements putin place. Mrs Li was advised that a Healthcare NZ support worker could be madeavailable to assist Mr 'Epenisa with things such as toileting, showering, cleaning andrehabilitation. A support worker from Healthcare NZ visited initially, but Mr 'Epenisawas reluctant to accept assistance from a stranger and Mrs Li told thehealth care authorities that he did not want somebody who he did not know caring forhim.[13] Initially, the family lived at a community-owned house in Vine Street inMāngere. A number of people visited the house to see Mrs Li and Mr 'Epenisa.They often found that Mr 'Epenisa was the only person at home, that on occasion hewas hungry and that he looked unwell and untidy. Some said there were smells — onewitness said of urine — in the house. Another witness said that when she visited, thehouse was locked and Mr 'Epenisa was inside. She had to get her son to climb inthrough the window so that they could gain access to the house. Mr 'Epenisa thencomplained that Mrs Li had left in the morning and that he had not eaten. On oneoccasion one of Mr 'Epenisa's cousins visited the house. She gave evidence thatMr 'Epenisa told Mrs Li that he needed to go to the bathroom, that Mrs Li did not helphim, and that he ended up soiling himself. [Redacted].[14] In addition to his strokes, Mr 'Epenisa had other comorbidities. He sufferedfrom serious diabetes, high blood pressure and kidney failure. His conditiondeteriorated markedly after his second stroke. He had to be assisted to get from thebedroom to the lounge; he had to be fed; he had to be toileted and cleaned; and heneeded help to take his medications. Mr 'Epenisa was highly vulnerable.Events in 2016 leading up to Mr 'Epenisa's death[15] The family moved to a property in Kivell Close, Māngere, in early 2016.Various family and church members visited Mrs Li and the family at the property.Mrs Li would on occasion tell visitors that they could not see Mr 'Epenisa, saying, forexample, that he was asleep or that he had been visited by his doctors and wasreceiving treatment. Some visitors did manage to see Mr 'Epenisa. They observedthat he was always seated in a La-Z-Boy chair, that he looked skinny and that he smeltof urine. The room in which Mr 'Epenisa spent most of his time started to smell.It was described as smelling of faeces and urine. In about September 2016,Mr 'Epenisa was visited by two people from his church. They said that he was unableto talk. They commented that the room Mr 'Epenisa was in was dirty. One witnesssaid that the room smelt of someone who was sick. The other said that the smell waslike "flesh that ha[d] been rotting" or "meat that is not good".[16] [Redacted].[17] Various witnesses said that they offered to help but that Mrs Li declined theiroffers.[18] At one point, Mrs Li advised Taikura Trust that she would act as a caregiverfor Mr 'Epenisa if she could be paid. Mrs Li was told that she was not eligible toreceive any funding as a support worker for Mr 'Epenisa while she was living withhim.[19] On 29 January 2016, a Healthcare NZ co-ordinator visited Mrs Li andMr 'Epenisa at Kivell Close. Mrs Li advised that she was no longer living withMr 'Epenisa but that she was prepared to be his support worker. A further service planwas prepared and discussed with Mrs Li. The plan included the provision of assistancefor Mr 'Epenisa, including moving him from the bed to the shower, showering andwashing him, assisting with daily exercises and assisting with toileting. Mrs Li wasinitially paid for providing care, but in April 2016, further funding was put on holdbecause it was discovered that Mrs Li was still living permanently with Mr 'Epenisa.From that time Mrs Li was not being paid, but she remained the primary caregiver forMr 'Epenisa.[20] Mr 'Epenisa was initially a registered patient at a medical clinic inHillsborough. Mr 'Epenisa's doctor saw him only three times between December2014 and May 2016. He should have been seeing his doctor much more regularly.The doctor tried to contact both Mrs Li and Mr 'Epenisa. She left messages but theywere not returned.[21] Mr 'Epenisa's registration was then transferred to a medical clinic in Māngere.Nurses from that health care centre tried to arrange home visits with Mr 'Epenisa.They could not however make satisfactory arrangements and no home visits occurred.Records from the medical centre show that Mr 'Epenisa was never seen by a doctorfrom the Māngere Health Centre.[22] On 1 October 2016, the day before Mr 'Epenisa died, his aunt and cousinvisited him. They described the smell in the bedroom — one said it was"really disgusting" and that it smelt like a "dead animal". The other said it smelt of"piss" and "dirty piglets". The carpet in the bedroom around the La-Z-Boy chair wassoaked. The aunt asked Mrs Li several times if she could wash and bathe Mr 'Epenisathat night. Mrs Li refused to let her do so but said that she could come back and bathehim the following morning.Circumstances of Mr 'Epenisa's death[23] At approximately 1.45 am on 2 October 2016, Mrs Li called 111 and reportedthat Mr 'Epenisa had passed away. Ambulance officers arrived shortly thereafter andconfirmed that Mr 'Epenisa was dead. The police were notified. Mr 'Epenisa's bodywas found in the La-Z-Boy chair in the bedroom. The police conducted a preliminaryexamination. They smelt urine and faeces in the bedroom. They found medication atvarious locations and a black plastic bag containing soiled andmaggot-infested clothing. They observed a stench of urine and decay when theymoved a mat on the floor, and a wet stain on the floor. A mouse ran out of theLa-Z-Boy chair when it was moved. They also found mouse droppings and a rodent'snest in a cupboard next to the chair. They found a green and grey top with whatthe police officer thought were strips of skin attached to it.[24] A pathologist, Dr Glengarry, visited the scene shortly afterwards.She observed that Mr 'Epenisa was in poor physical condition with relativeemaciation. His back, arms, legs and the side of his torso had multiple deep andextensive pressure ulcers. Large wounds were found on his buttocks.[25] A post-mortem examination was completed on 3 October 2016. Dr Glengarrynoted the extensive bed sores. The pathologist concluded that Mr 'Epenisa had diedfrom sepsis, due to the infected pressure wounds on his sacrum and buttocks.[26] When Mrs Li was spoken to by the police, she said that she first saw a woundon Mr 'Epenisa's buttocks the day before his death but that at that point it was not verybig. [Redacted].Expert evidence at trial[27] The Crown called Dr Glengarry to give evidence about Mr 'Epenisa'scondition, and the cause of his death. Her evidence in chief included the following:(a) Mr 'Epenisa had an extensive medical history. He had had previousstrokes, and had considerable impairment of movement,type 2 diabetes, advanced kidney failure, and high blood pressure.(b) The cause of death was sepsis due to deep pressure ulcers of the sacrumand buttocks, arising due to immobility as a complication of multipleremote cerebral infarcts.(c) The autopsy had shown a man in poor physical condition with relativeemaciation. His skin had embedded dirt, his nails were long and dirty,and the umbilicus/belly button was crusted and oozing. A maggot pupawas adherent to the right side of the hip. There was crusting of theeyelashes. The back, arms, legs and side of the torso had multiple deepand extensive pressure sores.(d) The pressure ulcers were deep. In most, they were to the subcutaneoustissues (the layer beneath the skin), but in the region of the sacrum andbuttocks there was almost total death of the skin with exposure ofmuscle and bone in the depths of the wound. There was connection tothis ulcer to the area adjacent to the anus and rectum, and theexamination showed heavy contamination of the wound by faecalmaterial. This led to an infection with bacteria normally resident in thegut and stool. There was infection of not only the wound butsystemically. Systemic infection is also known as sepsis and isinfection that is spread in the bloodstream. Sepsis is a significant illnessif untreated, particularly in a person who was in poor physical conditionwhere even maximal treatment may not give a successful outcome.(e) Whilst it was acknowledged that immobility in a person with severedisease of the cardiovascular system, as in this case, is a risk factor fordeveloping ulcers, the extent of the ulceration over the body, the depthof the ulcers and the general poor physical condition were in excess ofwhat one would see with adequate care. It could not be determinedbased purely on the pathological assessment if these findings were acomplication of neglect or of self-neglect and only assessment of thefull background and circumstances could assist with this.(f) Common areas of the body that are prone to developing pressure soresinclude the tail bone on the lower back, the buttocks or the back of thehips, the heels, the elbows or the back of the head. However, any areasubject to pressure may develop the pressure injury. The constantpressure on the skin can cause injury because it means the blood flowto that area is reduced which causes an area of tissue death. This maybe exacerbated by urine or faecal material on the skin, because thatcreates a moist environment promoting tissue breakdown or infection.Any form of moisture will do it.(g) The pressure injuries to the sacrum and buttock were stage 4 (the mostserious). The ones on the back all demonstrated exposure of underlyingfat and would be stage 3. Those to the outer thigh showed exposure offascia and muscles and would be stage 4. There were also areas ofstage 1 and stage 2 to the right and left torso. There was fat exposed onthe right hip, so this injury would be stage 3.(h) In relation to indicating how old the ulcers were, given their extent, sizeand degree of infection, there is no firm basis to give accurate timeframes for the development of ulcers. One can give perhaps broadtime frames, hours, days, weeks. But saying it is two versus threehours, two versus three days, two versus three weeks, is not possible.The reason one can give broad time frames but not be completelyspecific is because the factors predicting when the pressure outweighsthe tissue resistance is variable and differs for each individual.The extent of the ulceration seen in Mr 'Epenisa was unlikely to havedeveloped over minutes or hours.(i) Pressure injury can start and come on very quickly. The pressure soreswould have taken more than six hours. Given the presence of multiplestage 3 and 4 ulcers, the extent of the ulceration would have taken"a great deal longer than six hours".(j) Dr Glengarry disagreed with Mr Peat's observations that the dead blacktissue had not separated from the healthy tissue to form an ulcer. On thebuttocks there was a large deep ulcer with bone and muscle exposed.(k) There was no pus in the pressure sores but there was certainlymicroscopic evidence of inflammation in those pressure sores.[28] In the course of cross-examination, Dr Glengarry gave the following evidence:(a) Dr Glengarry could not say how soon after the pressure sores developedthe sepsis would be expected to start. Dr Glengarry also could not sayhow long Mr 'Epenisa would have stayed alive after the start of theblood poisoning, because she does not treat patients with sepsis.The diagnosis of pressure sores is well within the expertise of a forensicpathologist, but the treatment of them is not part of her role.She advised the police that they should probably consult a geriatrician,internal medicine physician, neurologist or plastic surgeon.(b) Dr Glengarry accepted she is not an expert in timing and treatment ofpressure sores. She does not treat them, she sees them at a single pointof time and there is often no history of how long they have been there.She felt that the deep ulcers would have taken longer to develop than aperiod of one to two days, but she would defer to Mr Peat's statement.[29] Mr Peat was initially contacted by the police to provide advice aboutMr 'Epenisa's medical condition, in particular the pressure sores. He answereda number of questions put to him by the police. However the Crown did not rely onMr Peat's evidence. Instead, he was called as a defence witness.[30] Mr Peat's evidence-in-chief included the following:(a) Pressure sores are formed when pressure is applied to soft tissues of thebody that is high enough and continuous enough to stop the blood flowto the tissues. Pressures roughly twice the capillary pressure appliedfor more than two hours result in irreversible damage to tissues.There are four stages of pressure sores (stages 1 to 4).(b) Mr 'Epenisa's pressure sores will have all developed at the same time.The pressure sores were very recent. They would be more thansix hours old, since this is the time that it takes to get to death of tissuefrom severe pressure. The pressure sores were not weeks ormonths old. The pressure sores had been there for a few days ratherthan weeks or months.(c) Mr 'Epenisa did not move from the time when he first started to developthe pressure sores until the time that he died. He had suddenly stoppedmoving, then he developed the pressure sores.(d) Mr 'Epenisa could well have developed the pressure sores within 24 or48 hours of his death.(e) Mr Peat did not agree that there is no firm evidence basis for accuratetimelines in relation to aging the pressure sores, based on hisknowledge of pressure sores, wound healing and infections. He couldnot give a time frame to an hour but thought he could give a time framebased on whether it is a few days as opposed to several weeks orseveral months.(f) The depth of the pressure sores and the extent of the pressure sores inMr 'Epenisa indicated that there was severe, unrelenting pressures onthe tissues, enough to obstruct the blood flow for more than six hours.(g) After six hours, the tissue dies and would change colour and eventuallyturn black. When there is dead tissue in the body, this will likelybecome infected, especially if there is incontinence and diabetes.(h) The pressure areas would have very rapidly become infected, especiallywhen there is urinary or faecal incontinence. They would very rapidlyhave caused Mr 'Epenisa to become very unwell, especially in thepresence of his diabetes and his other medical problems. Thepressure sores were the terminal event. The pressure sores rapidlybecame infected, and this infection rapidly caused his death.[31] In the course of cross-examination Mr Peat elaborated on his evidence abouttiming, and suggested that the process of the pressure sores developing and becominginfected could take as little as 10 hours. His evidence included the following:(a) Mr Peat thought the pressure sores were one to three days old.They could be less than 24 hours old. A minimum time frame wouldbe six hours to develop the dead tissue and maybe another six hours tobecome infected, or it could be four hours. The process is so rapid thateven a healthy person can actually die four to 24 hours after theinfection, so it could be four hours. The minimum time frame could be10 hours.(b) Mr Peat said that at a maximum the photographs would be consistentwith something that could be three days old. The time frame may be asshort as 10 hours or as long as three days. Mr Peat said, "he's got to beat the shorter end of that time frame." Mr Peat could not say exactlythe number of hours as he did not know the pressure Mr 'Epenisa waslying on. The maximum period was not known exactly.(c) Mr Peat confirmed that he had sent an email to Mrs Li's counsel thenight before, which included "[a]ll of these pressure sores would beconsistent with them developing at the same time over the last one tothree days".(d) When Mr Peat was asked where the evidence was, prior tocross-examination, that he had said that it had to be at the shorter endof the time frame, Mr Peat referred to having said in his brief ofevidence:These pressure sores are very recent, they would be more thansix hours old since this is the time that it takes to get death oftissue from severe pressure. These pressure areas would veryrapidly have become infected, especially when there isurinary or faecal incontinence. They would very rapidly havecaused the person to become very unwell, especially in thepresence of diabetes and other medical problems such askidney failure.(e) Mr Peat agreed that he had also said in his brief of evidence, thatMr 'Epenisa "[c]ould well have developed a pressure sore within 24 to48 hours of his death that then caused overwhelming sepsis". Mr Peatsaid the pressure sores could well have developed within 24 to 48 hours,and they were not weeks or months old.(f) Mr Peat was further questioned about the reason for the shorter timeframe mentioned by him in cross-examination. He referred to beingable to go into more detail now and that he had been asked the wrongquestions by the police. When Mr Peat was asked why he had not inhis brief said "between one to three days and most likely at the lowerend of that scale", Mr Peat said:I don't know why I didn't say it like that, no, I could have saidit like that, but I think the inference is there and I don't thinkit's actually substantially changed what I'm saying.(g) Mr Peat agreed that the difference between one to three days could besignificant in this case, but that what he was trying to explain was thatthey were dealing with something that was one to three days old andnot three weeks or three months old, and he did not think that the oneto three days range was significant.(h) Mr Peat agreed that moisture is one of the risk factors of pressure soresand that it was correct if someone was sitting on a wet surface for along period of time that this would contribute to the creation ofpressure sores. Mr Peat said that urinary incontinence is a contributorto pressure sores.(i) Mr Peat agreed that full thickness down to the bone tissue death wouldnot be caused in under six hours on a cushioned surface, and dependingon how much cushioning the time frame would tend to be longer.(j) Mr Peat disagreed with Dr Glengarry when she said that there was adeep ulcer down to the bone on the buttocks, and he went on to refer tothe liquefication process. He agreed it was a stage 4 pressure sore.(k) Mr Peat was questioned about an email from Dr Glengarry sent inresponse to recent material from Mr Peat. Dr Glengarry said that shehad sampled the tissues of the pressure ulcer to examine under themicroscope. Dr Glengarry said:This was aimed at trying to establish how long the ulcer and infectionhad been present. The histologic findings were of acute necrotisinginflammation. That is there was inflammation of some days duration(how many days can't be stated) and tissue death.When Mr Peat was asked if he disagreed with Dr Glengarry saying thatshe could see inflammation of some days' duration and tissue death inher histological findings, he said "I would accept her statement".The Crown case at trial[32] At trial, the Crown accepted that Mrs Li's care of Mr 'Epenisa up to a fewmonths prior to his death was poor but sufficient, and was not grossly negligent.The Crown case was that the last few months were the critical period, when there wereclear signs that Mr 'Epenisa's condition was significantly deteriorating. It was then,the Crown submitted, that Mrs Li's care became grossly negligent. Mr 'Epenisa wasgetting noticeably worse. His last visit to the doctor had been in January 2016.He stopped eating as much. There were far more frequent toileting accidents.His speech ability stopped. He stopped being bathed properly. His skin wasembedded with dirt. Any washing was taking place in the chair, which was why itwas wet.[33] [Redacted].[34] [Redacted].[35] The Crown case was that Mrs Li was actively aware of the injuries that weredeveloping, and that she should have done something to try to prevent Mr 'Epenisa'sdeath. Mrs Li had said in interview that she had taken Mr 'Epenisa to the toilet theday before he died, and she "recognised the wound there". Mrs Li said that it was onMr 'Epenisa's "bum", and it looked "like the skin had come off".[36] The Crown argued at trial that more weight should be given to Dr Glengarry'sopinions than to Mr Peat's. Mr Peat's opinions had changed in a number of respectsover time. The Crown referred to the fact that Mr Peat's initial report had stated thatthe pressure sores were probably about three days old. Subsequently this had changedto one to three days. The absolute minimum of 10 hours now referred to would requireall the conditions to be at their worst possible. There was evidence from Dr Glengarrythat there was inflammation of "some days duration". The Crown submitted that thispushed the timing to the upper end of the three-day estimate.[37] The Crown had to prove that Mrs Li failed to provide Mr 'Epenisa withnecessaries and/or failed to take reasonable steps to protect Mr 'Epenisa from injury.3These are separate legal duties, and breach of either duty is sufficient. The jury onlyneeded to be sure of one.[38] In relation to providing Mr 'Epenisa with necessaries, the Crown's case wasthat there was evidence of inadequate nourishment and of inadequate medical care andhygiene. Mr 'Epenisa had inadequate medication over the last few months of his life.He was in poor general condition and sitting in a soaking wet environment.[39] In relation to Mrs Li's failure to protect Mr 'Epenisa from injury, the Crown'scase was that all of the factors listed in the particulars of the charge were relevant.Her liability arose well before the pressure sore injuries started to happen.[40] The Crown argued that Mrs Li's failures to fulfil the two duties represented amajor departure from the standard of care of a reasonable person. The major departurecame in the last few weeks or months when it became apparent that Mr 'Epenisa wasdeteriorating, and particularly when she noticed his pressure sore injuries.[41] The Crown case was that Mrs Li's failure to provide Mr 'Epenisa withnecessaries and/or to take reasonable steps to protect him from injury were asubstantial and operative cause of his death. In closing, the Crown said:But ultimately, the defendant's actions or inactions in the circumstances of thiscase, given her responsibility in the care of Mr 'Epenisa, her ability to controlhis environment and change what was happening and reach out for help ifnecessary, her leaving him sitting in wet, filthy conditions, left home alonewithout adequate medicine or medical care were, the Crown say, the directcause of the pressure injuries that were suffered that led to the sepsis, whichled to the death. This is not a complicated causation case. The failures leddirectly to what occurred, in an entirely predictable and preventable fashion.3 Crimes Act 1961, s 151.Appeal on grounds that verdict unreasonable[42] In Owen v R the Supreme Court said: "A verdict will be unreasonable if, havingregard to all the evidence, the jury could not reasonably have been satisfied to therequired standard that the accused was guilty".4[43] The Supreme Court endorsed the following propositions drawn fromthis Court's decision in R v Munro:5(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a) [now s 232(2)(a) of theCriminal Procedure Act 2011] must recognise that the appellate courtis not conducting a retrial on the written record. The appellant mustarticulate clearly and precisely in what respect or respects the verdictis said to be unreasonable and why, after making proper allowance forthe points made above, the verdict should nevertheless be set aside.Mrs Li's submissions on appeal[44] Mr Ryan submitted that the jury's verdict was not reasonable in light of theexpert evidence on pressure sores given by Mr Peat. Dr Glengarry had acknowledgedthat the issue of pressure sores and the treatment of them was outside her professionalexpertise. By contrast, Mr Peat was an expert on the timing and treatment of pressuresores.[45] Mr Peat's evidence was that the pressure sores around Mr 'Epenisa's buttockarea became overwhelmingly infected in a short time frame and rapidly caused4 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [5] and [17].5 At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.his death. In the circumstances, Mr Ryan submitted, there was nothing Mrs Li coulddo. The maximum time frame between the first evidence of pressure sores appearingand death was between 24 and 48 hours. The minimum time frame could be 4–10hours. Due to Mr 'Epenisa's existing comorbidities and poor health, once the soresbecame infected there was nothing Mrs Li could have done to prevent death occurringas Mr 'Epenisa would have succumbed to infection rapidly.[46] Mr Ryan submitted that having regard to Mr Peat's expertise, and the relativelack of expertise of Dr Glengarry in relation to pressure sores, the jury was effectivelyrequired to accept Mr Peat's evidence. That evidence meant that the jury could nothave reasonably answered yes to two of the questions in the question trail provided bythe Judge. Those questions were whether the jury was sure that:(a) Mrs Li's failure to provide Mr 'Epenisa with necessaries and/or to takereasonable steps to protect him from injury was, in the circumstances,a major departure from the standard of care expected of a reasonableperson?(b) Mrs Li's failure to provide Mr 'Epenisa with necessaries and/or to takereasonable steps to protect him from injury caused Mr 'Epenisa'sdeath?[47] Mr Ryan accepted that the standard direction relating to expert evidence hadbeen given to the jury in this case:In assessing the opinions expressed by the experts, you must have regard totheir qualifications and experience remember this is a trial by jury, not atrial by experts. It is for you to decide how much weight or importance yougive to the opinions, or indeed, whether you accept the experts' opinions at allin the context of all the evidence you have heard.[48] In this case, Mr Ryan submitted, a reasonable jury should not have disregardedMr Peat's evidence. However it must have done so. This rendered the verdictunreasonable on the grounds that it could not be supported having regard to theevidence.Discussion[49] There are two main difficulties with the basis on which this appeal has beenadvanced.[50] The first is that it was open to the jury to answer the questions set out at [46]above, and reach a guilty verdict, even if they accepted the evidence of Mr Peat thatin this case the pressure sores could have appeared and caused Mr 'Epenisa's deathwithin a period as short as 10 hours. The Crown case was not dependent on the juryfinding that Mrs Li was aware of the pressure sores, and had had sufficient time afterthey appeared to take action to seek medical attention and prevent the sores fromworsening and causing her husband's death. Rather, the Crown's case was that Mrs Lifailed to provide Mr 'Epenisa with necessaries and/or to take reasonable steps toprotect him from injury over a period of some months. Her failure to care for himextended to allowing, and not alleviating, the conditions that enabled the pressuresores to develop in the first place and to progress swiftly. Her failures related to theinadequate conditions in which Mr 'Epenisa was living, and the inadequate hygieneand medical care that he was receiving.[51] Put another way, there is no inconsistency between Mr Peat's evidence, evenat its highest, and the verdict arrived at by the jury.[52] The second difficulty with the basis on which the appeal was advanced is thatit was well open to the jury not to accept that the pressure sores had developed in aslittle as 10 hours in this case. [Redacted]. Mr Peat's view about the theoreticalminimum period for pressure sores to develop could well have been seen by the juryas inapplicable in this case, in particular in light of Mr Peat's acceptance ofDr Glengarry's statement that in her histological findings she could see inflammationof some days' duration and tissue death.6[53] As Mr Ryan acknowledged, the Judge gave the usual direction that the trialwas a trial by jury, not a trial by expert. It was for the jury to decide how much weightor importance they gave to the opinions of the experts, in the context of all of the6 See [31](k)] above.evidence they had heard. It was open to the jury to conclude that on all the evidencethey heard, they were satisfied beyond reasonable doubt that the pressure sores haddeveloped over an appreciably longer period in the present case than Mr Peat'sminimum of 10 hours, and that Mrs Li was aware of those sores in time to take actionbefore they became infected.[54] These reasons, taken individually and together, confirm that the jury's verdictwas not unreasonable. The jury could reasonably have been satisfied to the requiredstandard that Mrs Li was guilty of the charge on which she was convicted.Result[55] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent