SAMI v R [2019] NZCA 340

SAMI v R [2019] NZCA 340 [29 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA735/2017[2019] NZCA 340BETWEEN SHAYAL UPASHNA SAMIAppellantAND THE QUEENRespondentHearing: 4 April 2019Court: Williams, Simon France and Toogood JJCounsel: J H M Eaton QC and H C Coutts for AppellantK S Grau and K L Kensington for RespondentJudgment: 29 July 2019 at 2.00 pmJUDGMENT OF THE COURTA The application to adduce further evidence on the appeal is declined.B The appeal against conviction is dismissed.C The appeal against sentence is allowed. The sentence of five years'imprisonment is quashed and in its place we impose a sentence of fouryears and six months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] The appellant, Ms Sami, was charged with the murder of a one-year-old childin her care. She was convicted of manslaughter and sentenced to five years'imprisonment.1 Ms Sami appeals both conviction and sentence.Facts[2] Ms Sami was at the time an 18-year-old Fijian Indian who had recently cometo New Zealand with her husband. At the time of the incident, Ms Sami wasfive months pregnant.2 Ms Sami had obtained work caring for the young child whilethe child's father worked. The caregiving was seven to 10 hours a day, five to six daysa week. Ms Sami had previously cared for her two young nephews in Fiji.[3] On 6 January 2015, while in Ms Sami's care, the child suffered head injuriesthat were to prove fatal. Ms Sami said she had left the child sleeping on the couchwhile she was in the kitchen preparing dinner. She heard a thud and went intothe lounge to find the child on the floor, plainly unwell. Ms Sami carried the childoutside where she was seen in a distressed state by a neighbour who drove them tothe hospital. It seems Ms Sami tried mouth to mouth resuscitation in the car onthe way. At the hospital CPR was given to the child and an oxygen mask placed onthe child's face.[4] The child had two separate skull fractures, retinal haemorrhaging, and whatwas described as symmetrical bruising to each side of her face. There was alsobruising to her ears, under her chin, and on her forehead.[5] The Crown case is captured by the opening words of Crown counsel's closingaddress:[The child] died from a violent assault by the defendant on the 6th ofJanuary 2015. The defendant grasped her by the face causing multiple bruisesto her cheeks, to her forehead and to her ears. The defendant slammed[the child's] head into a hard surface causing the fatal injuries that were laterreported. The defendant, the Crown says, simply snapped that day.The evidence for you, the jury, as to how you can be sure that that is what1 R v Sami [2017] NZHC 3159. The trial commenced 30 October 2017. Sentencing was on15 December 2017.2 We note that the evidence varies as to whether Ms Sami was four or five months pregnant. Nothingturns on this matter.happened rather than a tragic and extremely rare accident by falling, well thatevidence the Crown says is in the photos of [the child's] face. It's here.It's here. It's here and it's here. The multitude of bruises across her face,across her neck and ears, some of which appear to resemble the grasp of anadult hand. There [is] the evidence that [the child] was assaulted that day andthere [is] the evidence that her death was not the result of a fall.[6] The defence was that the Crown could not eliminate the possibility ofthe fractures being the result of a fall from the couch. It was common ground that ifthe child rolled off the couch onto the carpeted floor, the forces involved could notcause the head injuries. However, if she had pulled herself upright and then fallenfrom that height the relevant experts accepted it was a possible cause, albeit it wouldbe a rare outcome given the comparatively low height still involved. However, asnoted weight was placed on the facial bruises as a route to eliminating a fall asa reasonable possibility. The unexpected amount of retinal haemorrhaging if a fallwere the cause was also relied upon.[7] The defence suggested medical treatment to the child, in particularthe resuscitation efforts, could account for the facial bruising. The experts weredivided on this, and the topic is the subject of an application by the appellant tointroduce further expert evidence on the appeal.Grounds of appeal[8] The primary challenge is to the lack of "essential balance" in the summing-upbut there is a prior related point. It has been noted that the incidence of fatal headinjuries from this type of low fall (assuming the child was standing) is rare.During evidence some statistics emerged, the most prominent of which was "one intwo million" for such outcomes. Mr Eaton QC for the appellant submits this figure ismeaningless, was wrongly called in aid by the Crown in its closing, and was notproperly dealt with by Dunningham J.[9] Other complaints about the summing up-include:(a) an improper reliance by the Crown, not corrected, on common senseand life experience when in truth it was a contest of experts; and(b) inadequate assistance from the Judge on the expert evidence includingthe failure to warn of the dangers of a Crown case built solely on expertevidence, inadequate direction on the importance of impartiality andindependence with particular focus on one prosecution expert witness,and the need for a more tailored direction on the large amount ofevidence.[10] The defence submits these factors have led to a miscarriage of justice.[11] The second ground of appeal is that new evidence has become available sincetrial. This evidence is from Dr Hood, a forensic pathologist based in New Jersey.The evidence supports the defence case that the facial bruising could have been causedby medical procedures especially during the attempted resuscitation of the child.[12] Concerning sentence, it is submitted that the starting point of seven years'imprisonment was too high, and insufficient credit for mitigating factors was given.The summing-upThe improper use of statistics[13] This appeal ground focuses on four items of statistical information thatemerged in the evidence. Three are sourced in the evidence of Dr Christian, who isthe expert concerning whom Mr Eaton submits there are impartiality concerns.Dr Christian at various points testified that:(a) in a recent study of over 2,100 children under four years of age withbruising, "zero" of the 2,100 children had soft tissue bruising to bothcheeks as a result of accidental trauma;(b) a recent study of 42,000 children presenting with head trauma showedonly one per cent of those who had fractured skulls had basilar skullfractures such as the child had here; and(c) it had been estimated that in relation to children involved in falls fromless than 1.5 metres, only one in two million results in a fatality.3To these can be added the evidence of Dr Vincent who observed that retinalhaemorrhaging occurred in only three per cent of cases involving low falls, and eventhen not usually displaying this extent of haemorrhaging.[14] Care is needed with such statistics. They have a general usefulness asa diagnostic tool in that they alert an investigator or analyst to the need to considerother options. But in a trial setting they can be misused. As Mr Eaton suggests,the one in two million chance of a low fall being fatal must not become a one in twomillion chance that the appellant is not guilty.[15] To take the present case, and assuming the statistic to be valid, the informationon its own does not assist. The jury is not informed of the circumstances of the onetheoretical case in two million, and what it might involve; there is no material on whatsort of sample produces this statistic and what number of such fatalities there mightstill actually be. Nor does it mean there cannot be more than one such fatality withina short timeframe. Further, presentation of a statistic like this can be unbalancedbecause contrary analyses are not presented. What are the comparable odds thata happy,4 18-year-old woman, with no history of offending or violence and witha history of being a loving and good child carer, without apparent reason would graba young child by her face and hit her head twice onto a hard surface. As has beennoted elsewhere, if this exercise were done, similar odds pointing to the appellantbeing not guilty may well emerge.5 And equally, the likely large statistic that didemerge would not mean it did not happen in this case. Just as the rarity of a low fallcausing death does not mean it did not happen here.3 This "one in two million" statistic was not explicitly repeated in the summing-up, howeverDunningham J noted that the Crown witnesses say that the "remote possibility" of the defencecase "is supported by the statistics of fatalities from low level falls which show they are "extremelyrare" or very uncommon".4 The Crown advanced a submission, based on the information outlined in [2], that the appellantmay have been stressed by her circumstances, but the evidence on the point is that she was content.5 Susan Glazebrook, Judge of the Supreme Court of New Zealand "Miscarriage by Expert" (paperpresented to the Commonwealth Magistrates' and Judges' Association Triennial Conference,Wellington, 17 September 2015).[16] It is therefore of some concern that the prosecutor in closing positedthe question:So just as a general submission to you how do you approach the evidence?You've heard eight days of very complex evidence and you've heard, ofcourse, as I've just said about the possibility, although rare, of a fall likethe fall that the defence suggest [the child] might have had leading to fatalinjuries. How do you go about deciding whether those fatal injuries arethe one in two million kind of accident that Dr Christian referred to, or, asthe Crown says, inflicted.(Emphasis added.)It is fair to observe other references within the closing emphasised that the utility ofsuch figures lay solely in identifying the rarity or otherwise of outcomes.And the question itself focuses on the causes of the injury rather than verdict.[17] Within the summing-up, when addressing the possibility of a fall as the sourceof the injuries, the Judge summarised the competing cases but did not go beyond that.It is helpful on this aspect to set out the direction on the issue of whether it might havebeen a fall. The preceding sentence to this extract notes that the Crown experts hadconcluded it was a remote possibility that a fall, whether from lying, sitting orstanding, could cause the injuries. The summing-up continued:[61] The Crown witnesses, say that this is supported by the statistics offatalities from low level falls which show they are "extremely rare" or veryuncommon. As Dr Christian's and other doctors' clinical experience thatthe head injuries seen are not consistent with the injuries that are usually seenas resulting from low level falls.[62] There are, of course, all those academic papers you heard about whichrecord the kind of injuries seen in witnessed cases of low level falls, where weknow they are not deliberately inflicted injuries and they rarely lead tothe kind of injuries we have seen here.[63] The extremely low incidence of fractures to the particular area ofthe skull which was damaged in this fall. Dr Christian cited a study of 42,000children who come to hospital with head trauma. Where those children hadfractured their skulls only one per cent had, what she called basular fractures,and only some of those fractures were of the occipital bone which is the onethat was damaged here.[64] There is also the fact that Dr Sage and Dr Christian consider there aretwo separate areas of subdural haemorrhaging, which means there are twopoints of impact. They are also on different planes of the scalp. This is animportant consideration in deciding whether the injuries were sustained froma single fall.[65] Now the defence says, first, these population studies need to be treatedwith care. You do not have the details about the circumstances of the fall, orhow the falls came to be classified as accidental falls or otherwise. In anyevent, such studies do not help us deciding exactly what happens in any oneparticular case. Although rare, fatal injuries have been known to result fromfalls of less than 1.5 metres and you need to consider the possibility that thisis one of those cases.[66] The bio-engineering evidence demonstrates the forces are sufficientin falls of this height to fracture the skull of an infant, and that is whetherthe infant falls from a sitting or standing position on the couch. Indeed thoseforces are quite significant with the child's head hitting the floor at between14 and 21 kilometres per hour if the fall is not broken.[18] Moving from the skull fractures to retinal haemorrhaging, Dunningham J notedthat Dr Vincent said it was only in a low number, perhaps three per cent, where suchhaemorrhaging would result from a low fall, and within that a far smaller numberwould cause this extent of haemorrhaging. It was then noted the defence cited otherstudies that disputed it was so uncommon and submitted examples of short falls whereretinal haemorrhaging has resulted. It was submitted to therefore be wrong toconclude that the level of haemorrhaging seen here must indicate deliberate inflictedinjury. It was the degree of force that causes the haemorrhaging and the statistics usedby the prosecution tell nothing of the source of that force.[19] Again, on the topic of bruising, the study of 2,000 children was referred to, aswas the rarity of the bruising to the ears. It is noted that the defence expert acceptedthat this particular bruising was hard to explain in the absence of an assault.[20] Reviewing the closing addresses, and the summing-up, we have concludedthe risk of the jury misusing the statistics is not established. The clear overall importis on the rarity of various individual conditions found here being the product of a lowfall. In this case there did have to be a coincidence of at least two rare events forthe reasonable possibility of a non-assaultive explanation to remain credible.The unlikelihood of this explanation was the use made of the statistics, but withina context where it was acknowledged they did not of themselves mean it could not besuch a rare event. The statistics themselves were not dwelt upon.[21] Nor do we consider the summing-up generally on this topic gives rise to anerror. Mr Eaton submitted that the Judge downplayed the criticisms of the defenceexpert and failed to instruct the jury on the perils of these figures. The Judge'streatment of the topic of skull fractures was consistent with the treatment of allthe main issues — the competing propositions were put evenly and accurately withlittle gloss or addition from the Court.[22] There is always scope for different approaches, and some judges may havesought to include more of their own input, but we do not accept the criticism ofpopulation based studies was incorrectly put nor has a miscarriage arisen fromthe failure of the Judge to say more. The evidence itself was not complex norparticularly in dispute. The experts agreed at least that a fall was a theoretical causeof the fractures but was a most unlikely explanation. There was probably moreambivalence over accepting that anything other than an adult hand could have causedthe bruising, but again it was acknowledged to be possible. The relevant Crownexperts again thought medical intervention to be an unlikely cause, and also anincomplete explanation for all the bruising.[23] Notwithstanding a lot of expert evidence, the ultimate issue was relativelystraight-forward and not particularly influenced by the detail of that evidence. It wasnot a case where the Judge had to provide extra assistance concerning the expertevidence to ensure a fair trial. It was open to the jury to give weight to defence expertDr Donald's response when asked about bruising to the child's ears and forehead.He admitted that such bruising was not explained by injury caused by resuscitation.He also accepted that when he prepared his report he had not focussed on the injuries.These concessions may well have been seen by the jury as very significant.[24] We take the opportunity, however, to emphasise the need for caution in thisarea. If statistics emerge in evidence, care must be taken to make clear what theiralleged relevance to the case is and what the limits of them are. They should not bea headline in any closing address.The relevance of common sense and life experience[25] The second issue concerning conviction is what is said to be the Crown'sincorrect reliance on common sense and life experience, and the failure of the Judgein summing up to correct this. The mischief, it is submitted, is that the jury may haverelied on their own experience in relation to children and short falls, thereby puttingto one side the expert evidence that fatal injuries can occur from such a fall. Mr Eatonput it this way: "[e]xtraordinary events are not ones that can be fairly or reasonablyassessed by reference to common sense."[26] It is appropriate to cite the two passages from the Crown closing where the useof common sense was discussed:I want to say something now about inferences because much of the Crowncase relies on inferences. There were only two people present at the WorcesterStreet flat when [the child] was fatally injured. One of course is no longerwith us and the other, the Crown says, is not being truthful to you as to whathappened. There were no eye witnesses to the injury and we have to look atother evidence to inform us as to what happened. My friend makes much ofthis and says the Crown relies solely on the medical evidence, solely onthe evidence of people who were not there. Be careful in accepting thissubmission that the entire Crown case is based around the experts because thatis not the case at all. The Crown case is based largely on a healthy dose ofcommon sense and ordinary life experience because the Crown says you, asmembers of the community, as parents, grandparents, siblings, aunts anduncles, will know how it is that toddlers develop and how it is that toddlersfall. You've heard the evidence of how unlikely it would be that an accidentlike this might lead to fatal injuries and that might well have resonated withyou. It may well be that when you looked at photos of the sofa and heardthe injuries sustained by [the child] when you began this case, you weresceptical about the explanation the defendant gave. Well the Crown says inthis case the science supports your scepticism. It doesn't make sense in ourlife experience and it doesn't make sense to the medical experts either.But it is important, and again Her Honour will remind you when she sums up,that you're the deciders of the facts in this trial and, in particular, the Crownemphasises in a case like this the really important thing for you to bring toyour deliberations is your common sense and your life experience. They areinvaluable in deciding a case like this based on some very complicatedevidence and also some very ordinary evidence that you will all haveexperience of as just members of a family and members of a community.[27] Mr Eaton also refers to a further passage:I want to say something now about the Crown case and I've said in my openingremarks about the amount of medical evidence you've heard and I've stressedthe importance of common sense in your life experience. Here the Crown saysthe science supports common sense. As I said in my opening remarks whenyou were provided with the background information of how [the child] diedand you were shown those photos of the bruises on her face, on her ear, on herforehead and under her chin, and you were told of the variety of the headtrauma she suffered – bilateral fractures, two subdural haemorrhages –I suspect when you looked at the photos of the sofa and of the lounge carpetyour initial assessment would have been no this is no accident, children don'tsustain injuries like that from a fall, and you would have based that on yourexperiences as family members and that is supported by Dr Townend andDr Christian, Dr Christian treating thousands of children at the Children'sHospital of Philadelphia. She told us, and it's our life experience too, toddlersfall all the time with no significant injury whatsoever.[28] It is to be noted that immediately following that passage, and indeed alsoshortly before it, the Crown stated clearly that it accepted that a short fall couldpossibly cause the injuries, albeit in the rarest of situations.[29] In the summing-up the Judge observed:[31] Now in approaching this task of assessing the evidence, I am askingyou to bring your knowledge and experience of the world, your knowledgeand experience of people and of human nature. You are a jury of 11 peoplefrom different backgrounds, a mix of men and woman, different ages, differentexperiences. And what we find is that when members of the jury pool theircombined wisdom, and listen to the views of one another, that invariably a jurysuch as yours is ideally placed to reach a verdict in trials such as this.[30] We reject this ground of appeal. Juries are constantly told that a trial is nota battle of experts and it is for them to decide the facts and what happened.Their advantage, it is said, is the collective pooling of the experiences of 12 membersof the community — indeed, the advantages are those expressed by Dunningham J inthe passage just cited.[31] It is unclear to us what contrary direction might be given — that when it comesto deciding which view of the experts they prefer, the jury should put to one side theirlife experience of the context in which the injuries occurred? That would be incorrect,and contrary to why the case is submitted to 12 members of the community. The juryhave been told not to speculate, to draw only reasonably available inferences, and tomeasure the expert evidence against a series of listed considerations. Having donethat, all that is then left is to place that competing evidence within the context ofthe whole case and reach a view. The issue here is whether the collective factsexcluded as a reasonable possibility that a fall caused the child's death. Where lifeexperience assisted in determining any of the "strands of the rope", the jury is entitledto use it.[32] Nor do we see error in the Crown closing. The prosecution's trial task was toremove as a reasonable option the possibility that a combination of events, rare inthemselves, had come together to cause the injuries. In doing so the Crown could notplace the case higher than the evidence allowed — these rare events, namely the lowfall causing fatal injuries and resuscitation causing the bruising, could not be dismissedas fanciful, and the Crown did not do that. However, the Crown was entitled to pointto the circumstantial evidence, as it does throughout the closing, and ask the jury tobring all that together, in combination with the medical evidence, to produce what itsubmits is the common sense answer to the charge.[33] Finally, we observe many similar issues to those advanced in this appeal wereconsidered in [AD] v R.6 There also a key trial issue was whether a fall may havecaused the head injuries. The appeal focused on the acknowledgement by someexperts it was possible but unlikely. The recognition by experts that a fall could notbe eliminated as the cause was submitted on appeal to mandate an acquittal.This Court observed:[24] The jury's inquiry into the question of causation was, as in all areasof the law, of an intensely factual nature. The opinions of medicalprofessionals were admissible because the Judge was satisfied they werelikely to be substantially helpful to the jury — the fact-finder. However, weemphasise now, as we shall again, that those opinions were, as the lawexpressly provides, given to assist the jury in ascertaining a fact that was ofconsequence in the proceeding — namely, whether [AD] caused [M]'sinjuries. Ascertaining that fact was the function of the jury, not of the experts.[29] We repeat that the expert evidence was directly relevant to but notdecisive of whether [M]'s injuries were caused deliberately; it was for the juryto determine on all the evidence judged against its own collective lifeexperiences and evaluative skills whether [AD]'s explanation might possiblyraise a reasonable doubt.(Footnotes omitted.)[34] We endorse these comments which accurately capture the respective roles ofwitness and a trier of fact. We see no risk here that the jury would have ignoredthe common evidence of all experts that the possibility a short fall was the cause couldnot be excluded by the medical evidence.6 [AD] v R [2014] NZCA 223.Inadequate assistance from the Judge on certain matters[35] The next submission under the miscarriage of justice ground of appeal is thatthe Judge failed to direct the jury adequately in relation to the expert evidence, and inparticular failed to adequately warn the jury of the need for special care whena prosecution case relies totally on expert opinion, to give a tailored direction inrelation to the assessment of objectivity and independence of expert witnesses, and towarn the jury of the danger in relying on post mortem photographs. The first of thesecomplaints has been addressed in the previous sections on reliance on statisticalevidence and the application of common sense, and the last of these complaints willbe addressed in the overall balance of the summing-up in the following section.That leaves the complaint about the need for a tailored direction in relation to assessingthe objectivity and impartiality of the Crown expert witnesses.[36] Mr Eaton submits Dr Christian displayed a lack of impartiality and thatthe summing-up provided inadequate direction on the importance of independence andobjectivity, and the care that should be taken with evidence given by an expert whodisplays this fault. It is accepted that the direction that was given would suffice fornormal purposes, but more was needed here.[37] By way of background Mr Eaton submits that the Crown witnesses formedtheir initial opinion on a misunderstanding, namely that the appellant had said the childhad rolled off the couch. Although they later assessed a standing fall option, Mr Eatonsubmits the difficulty is that entrenched views were already in place.[38] Concerning Dr Christian, it is submitted first that she is an expert whoeffectively only works for the prosecution. Particular focus is placed on an inquiryDr Christian made shortly after being briefed. Recalling that the appellant'sexplanation was that she was preparing dinner and heard a thud, Dr Christian askeda police officer whether there was any evidence that the appellant was in the middleof preparing a meal. This is said to be a plain example of the witness turning detectiveand showing an interest in attacking the appellant's credibility rather than looking onlyat her area of expertise. It displays, it is submitted, the witness' true colours and hencea stronger direction was needed.[39] The general instructions to the jury were in this form:[26] In assessing the evidence given by expert witnesses and consideringthe opinions that they have given, you must of course have regard tothe qualifications and experience of each of them, but it is important to realisethat this is trial by jury and not trial by experts. You have heard from someextremely well-qualified people for both sides in this case and you will needto consider more than just their qualifications and experience in deciding whatweight or importance you place on their evidence or their opinions, andindeed, whether you accept their evidence and opinions at all. Some ofthe things you should consider are:(a) Have they been objective?(b) Have they taken appropriate account of research?(c) Have they confined themselves to their areas of expertise?(d) Have they considered all relevant factors?(e) Are their explanations logical, making it clear to you exactlyhow and why they reached their conclusions?(f) Do those conclusions strike you as balanced conclusionsbased on that person's experience, knowledge andthe physical evidence in this case?[27] You will also have noted that in giving their expert opinions,the experts have had to base their opinions on certain facts that they haveassumed to be correct. Whether you yourselves find those facts to be correctis an entirely different issue. If you find the facts to be different from thosethat the experts have relied on to give their opinions, or you do not considerthere is a factual basis for their opinion, then their opinions are not opinionson the facts relevant to your findings. It is important that you consider thatpossibility.[28] You should also note that they might be assessing only one aspect ofthe evidence because that is their area of expertise, for example, retinalhaemorrhaging or bio-mechanics. You are still going to have to look at allthe evidence in totality before coming to your decision.[29] Now, in closings you heard some quite trenchant criticism of eachside's expert witnesses. That is not unexpected given the importance ofthe expert evidence in this case. However, it is your assessment, notthe lawyers, that counts. You should consider those criticisms but reach yourown views on whether they are fair criticisms which warrant you putting lessweight on that person's evidence as presented in this Courtroom, or not.[40] Thereafter, as noted, the evidence of any expert was raised, if at all, in relationto a particular topic.[41] We do not consider more was needed. Dr Christian was cross-examined byMr Eaton about the question described above. She explained it was just part ofobtaining the case history and could see no other significance in it. The evidence onthis topic obviously did not cause the Judge concern such that the Judge felt itnecessary to direct specifically on the matter. Based on the written record, we see noreason to take a different view or assess the lack of direction as an error. We accept itwas an odd question to ask but Dr Christian explained herself and the matter was therebefore the jury, having been addressed further by counsel in closing. We also observethat to balance matters similar criticisms would have been required in relation toDr Donald who spoke of his initial report being intentionally "provocative" and in thatreport appeared willing to ignore evidence of bruising not explained by his theory.Again, we consider these issues were before the jury and the Judge was not requiredto further rehearse them or give specific warnings.The balance of the summing-up[42] We do not accept the summing-up was unbalanced or inadequately putthe defence case. It is fair to say the summing-up proffered no support, express orimplicit, for the defence arguments but it identified them clearly. It is possible to takedifferent views about the strength of the respective cases, and we consider the Judgefairly put both sides. To the extent the submission of "unbalanced" suggeststhe summing-up favours the prosecution, we do not read it that way.The application to adduce further evidence[43] The presence and pattern of the facial bruises was undoubtedly a keycomponent of the Crown case. The bruises had, to experienced pathologists, the lookof marks made by an adult hand or hands gripping the young child's face. As notedthe alternative explanation that emerged was that the placing of a mask on the childwhen first admitted to hospital or the resuscitation process generally may have beenthe cause.[44] The doctor in charge of this process, Dr Richards, stated:17. After I had intubated the child and handed over the care tothe Paediatric Anaesthetist, I noticed some marks on the left hand sideof the child's face which were in a U shaped or V shaped pattern.I hadn't noticed that when the child came in, however I was standingat the child's head end the whole time, and I didn't even realise it wasa female child to start with because she had a nappy on.18. Several of the nurses also noted the bruising. I was not sure whetherthe bruising may have been caused in part by me holding the oxygenmask onto the child's face, but I did not exert undue pressure, andI think that would be unlikely.19. Only a small amount of pressure is needed to hold the oxygen maskon the patient. Unless the patient had a bleeding disorder it would bevery unlikely that we could cause bruising by doing that.20. The other procedure I performed was to intubate the patient. I didn'tneed to tilt her head much in order to intubate her.21. The process I use is to use my right hand to hold her forehead; puta laryngoscope into the mouth, suction and then have a look and insertthe tube into the trachea.22. I would not need to touch the side of the patients face when intubating.23. I had an assistant passing me equipment but I was the only persontouching her head.24. The U shaped mark I observed on the side of her face was a brownishblue colour and approximately a centimetre in width. It was consistentwith somebody holding her face from a frontal position andthe U shape matching the line of a person's right hand running fromthe fore finger through to the thumb.[45] Using a mannequin in court, the doctor had shown how the masking occurs,and the lightness of the pressure. It can be noted that in paragraph 19 of this extractthe doctor refers to the unlikelihood of the mask causing the bruising unless the patienthad a bleeding disorder. Other evidence at trial suggests that the child did have sucha disorder because of the head injury, thereby making her more susceptible to bruising.However, a specialist, Dr Townend, explained this condition corrected itself quickly.Further, if the blood disorder was to be seen as an explanation for the facial bruises,one would expect equivalent bruising where other pressure had been applied, such asthe chest compression. The uncontested evidence was that chest compressions wereadministered for 15 minutes before the child's heart resumed beating.Such compressions are generally administered continuously at a rate of 100–120 perminute suggesting at least 1500 compressions to the child's sternum. There was nosign of bruising at that site.[46] The fresh evidence sought to be admitted on appeal consists of two affidavitsfrom Dr Hood, a forensic pathologist based in the United States of America.The Crown sought a reply from Dr Sage to the original affidavit, and Dr Hoodresponded to that with a second affidavit. His evidence addresses the topics ofthe skull fractures, the retinal haemorrhaging and the facial bruising. However, it wasthe last of these topics on which Mr Eaton placed most reliance in support ofadmissibility and its helpfulness to the appeal.[47] Concerning bruising, Dr Hood comments first on the concept of resuscitationefforts being the cause. It will be recalled Dr Sage, perhaps New Zealand's mostexperienced pathologist, and Dr Christian had both said they had never seenresuscitation cause this type of bruising. However, they accepted the possibility.By contrast Dr Hood would say bruising is frequently seen as a product ofmanipulation during resuscitation efforts, and he had seen them produced bythe application and removal of tape. Dr Hood further said that such bruising,especially in the case of patients with pre-terminal coagulopathy (the blood disordercaused by the head injuries), is so common that "most forensic pathologists accept itas sufficiently well established" as to not need published work to demonstrate it.However, at least one text had noted it,7 and one article had published images.8[48] The second aspect of Dr Hood's opinion was that he considered if the appellanthad caused the bruising it would have been more prominent earlier than it seeminglyemerged.[49] Dr Sage accepted the point concerning tape, but said it left abrasions ratherthan bruising. Dr Hood in his reply accepted this was more commonly so. Likewise,Dr Sage analysed the article entry which discussed facial injuries resulting fromresuscitation and considered it also appeared to be addressing abrasions rather thanbruising, and certainly not the present pattern of bruising. Dr Hood accepted this wasso. Dr Sage repeated his evidence that it was the placement of all the bruising and7 Werner Spitz, Daniel Spitz and Russel Fisher (eds) Spitz and Fisher's Medicolegal Investigationof Death: Guidelines for the Application of Pathology to Crime Investigation (3rd ed, Charles CThomas Publisher, Springfield (IL), 1993).8 JA Kaplan and RM Fossum "Patterns of facial resuscitation injury in infancy" (1994) 15(3)The American Journal of Forensic Medicine and Pathology 187.the pattern that underlay his evidence. None of Dr Hood's evidence, originally or inreply, addressed that.[50] The starting point for the admissibility of fresh evidence on appeal isLundy v R.9 Mr Eaton cites the following passage which we accept sets outthe approach:[120] The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible,the question then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence.If the evidence is both credible and fresh, it should generally be admittedunless the court is satisfied at that stage that, if admitted, it would have noeffect on the safety of the conviction. If the evidence is credible but not fresh,the court should assess its strength and its potential impact on the safety ofthe conviction. If it considers that there is a risk of a miscarriage of justice ifthe evidence is excluded, it should be admitted, notwithstanding thatthe evidence is not fresh.[51] The shift effected by Lundy is to place more weight on cogency with lessemphasis accorded to freshness. It is apparent, however, that if the evidence is notfresh, it needs to point to a risk of miscarriage in order to merit admission.[52] We turn first to cogency under which we consider the merit of the evidence initself and in the context of the trial. In regard to this latter point, it is not clearthe extent to which Dr Hood's evidence is informed by the trial evidence. Two aspectsillustrate this. First, in relation to the head injuries, Dr Hood notes many of the reportsproceed on the premise that the fall option is the young child rolling off the couch.There is no reference by Dr Hood to the extensive trial focus on this, and the opinionsbased on a standing fall. Second, Dr Hood neither comments on the significance ofthe pattern of the bruising, nor how resuscitation would explain all the bruising.These aspects considerably undermine the cogency of the evidence.[53] Dr Hood's description of what commonly causes bruising seems tocontemplate facial manipulation. Again, there is no identification by Dr Hood of anyevidence to suggest that has occurred in this case. It may be the evidence is there, but9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.it is not apparent in the passage cited earlier from Dr Richards,10 and we have nototherwise been directed to any relevant material. It is another example wherethe generality of the proposed evidence, without any referencing to the actual trialevidence, significantly undermines its utility.[54] On the point of bruising being more common than Drs Sage or Christianacknowledged, the evidence takes one nowhere. Dr Hood says he has seen it and it isso common no-one bothers to record it in the literature. By contrast Drs Sage andChristian say they have not seen it, and no one doubts Dr Sage's opportunity to haveseen it over what has been a long career. The evidence of Drs Sage and Christianwould not change in the face of this "new evidence" — they acknowledged it possiblebut personally had not seen it.11 Dr Hood would seem to offer just another contraryview, similar to that provided by Dr Donald, namely that it does happen.[55] We accordingly consider the evidence does not satisfy the first inquiry ofcogency. In the context of the trial it is at best just another opinion on matters wellcanvassed. Further, as it presently stands it does not actually address the trial evidence.This means it does not address the specifics of the bruising in a way that makes ithelpful evidence. For completeness, we observe on the other topics it is also at bestjust another opinion, and on the fractures appears to misunderstand the scope ofthe contrary evidence. To the extent it asserts the fractures could be caused bya standing low fall, this was a common position accepted at trial.[56] Given this conclusion it is unnecessary to go into detail about freshness.We understand the appellant to accept it is not fresh albeit there is an explanation forwhy it was not called, which was that the defence had briefed another overseas expertwho, once here, conducted himself in a way that caused the defence to lose confidencein the witness to the extent he was not called. This circumstance could be the basisfor a generous conclusion of freshness but for the fact that the evidence that witnesswas going to give on the bruising was not the same at all as Dr Hood's. That witnesshad a completely different theory about the possible cause, a theory not advanced at10 Above at [44].11 Dr Sage's position at a retrial is perhaps not certain. His concession was based on articles put tohim at trial he had not previously seen nor had a chance to consider in any depth. His evidenceon the appeal suggests he now doubts they stand for the proposition relied upon.all now. Nor do we accept the significance of the bruising as a trial issue became moreobvious at trial. It was there from the outset and indeed the discarded defence witnesswas briefed to address it.[57] For these reasons we decline leave to adduce further evidence on the appeal.[58] Before leaving the topic of bruising we observe it was not wholly a contest ofexperts. The child's father had seen a mark on the child's cheek the evening priorwhich he put down to an insect bite but had been intending to raise the topic withthe appellant. The witness who drove the appellant and the child to the hospital saidhe saw "darker spots" on the face prior to the child being handed over into hospitalcare. This was of course challenged but the evidence was there to provide support tothe conclusions of the prosecution experts.[59] None of the grounds of appeal having succeeded, we dismiss the convictionappeal.Sentence appeal[60] Based on the authority of R v Pene the Judge took a starting point of sevenyears' imprisonment.12 This was reduced by two years to reflect age, previous goodcharacter and restrictive bail conditions.13 No further discount was given forthe difficulty jail would present, or the likelihood of deportation upon release.[61] At the time of the offence the appellant was five months pregnant. She hada baby girl while on bail awaiting trial. The Court is advised the child is now in Fijiwith her husband's parents. Her husband has remained in New Zealand to support herduring the sentence.[62] R v Pene involved a case where a foster mother had hit a baby hard on the headthree or four times in the night and also shaken the child.14 The charge wasmanslaughter.15 The matter came before this Court as a Solicitor-General appeal12 R v Sami, above n 1, at [25], citing R v Pene [2010] NZCA 387.13 At [32].14 R v Pene, above n 12, at [1].15 At [2].which challenged a starting point of four years' imprisonment. The Court revieweda number of cases and identified a range of five to seven years' imprisonment.16[63] We have considered the appellant's submissions but cannot agree a startingpoint below the top of the range was available. The jury verdict necessarily involvesthe rejection of a fall and the acceptance of inflicted injury. On the evidence no otherpicture can emerge than that suggested by the medical evidence — the face grippedby the appellant's hand and the head hit into a hard surface. Manslaughter wasa merciful verdict.[64] Faced with this Dunningham J concluded the jury had decided there was nointent to inflict serious injury and the injury was the product of a momentary loss ofcontrol.17 On appeal we are not in a position to differ but again note the appellant hasreceived the benefit of a very slim doubt. What can be said is that there was anextraordinary degree of recklessness given the nature of the violence and the completevulnerability of the child. It is difficult to imagine that anyone could not appreciatethe risks involved in hitting the child's head in this way onto a hard surface. In whatwas a case very close to murder we consider seven years is by no means excessive.[65] We turn then to the discounts with the primary focus of the appeal being onthe lack of discrete credit for the impact jail will have, and the inevitability ofdeportation. It is noted that the appellant is separated from her young child, ina foreign country, is still only a young person who has English as a second language.[66] The impact of these factors was recently discussed in Gao v R, in the contextof drug offending.18 It is recognised these are factors that can impact and are capableof recognition in the appropriate case. A difference here from the drug context isthe absence of a general deterrence concern. Drug importation is routinely effectedthrough the use of foreign nationals as "mules". This makes it difficult to significantlyalter what are meant to be deterrent sentences on the basis that the offender is a foreign16 At [11].17 R v Sami, above n 1, at [25].18 Gao v R [2018] NZCA 69 at [18]–[24].national. By contrast, here there is little obvious need for personal deterrence, andgeneral concerns about child abuse are sufficiently reflected in the starting point.[67] We consider Ms Sami did present a distinctive combination of factors thatmerited recognition — the fact of separation from a very young child, the fact thatEnglish is not her first language, her youth and her family being in Fiji. We recogniseshe is not without support in New Zealand, and that perhaps it was to be her permanenthome, but this package of factors leads us to consider further credit was appropriate.[68] In the circumstances we reduce the sentence by a further six months, leavinga final sentence of four years and six months' imprisonment. Anything less would beinadequate to reflect the nature of the offence.Conclusion[69] The application to adduce further evidence on the appeal is declined.[70] The appeal against conviction is dismissed.[71] The appeal against sentence is allowed. The sentence of five years'imprisonment is quashed and in its place we impose a sentence of four years andsix months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent