Churchward v R Coa

• Jurisdiction: New Zealand
• Judge: Glazebrook J
• Judgment Date: 19 October 2011
• Neutral Citation: [2011] NZCA 531
• Docket Number: CA610/2010
• Court: Court of Appeal
• Date: 19 October 2011

[2011] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Ellen France and Harrison JJ

CA610/2010

BETWEEN

Courtney Pauline Churchward

Appellant

and

The Queen

Respondent

Counsel:

C J Tennet for Appellant

R J Collins and D J McWilliam for Respondent

Appeal against conviction and sentence — appellant was convicted of murder or elderly frail man — sentenced to life imprisonment with a minimum period of imprisonment (“MPI”) of 17 years — appellant was 17 years old at time of offence and had mental health issues — whether judge should have given jury direction on appellant's youth and impact of it on her intent to commit offence — whether C's veracity questioned without proper notice of intent to do so — whether presumption of 17 years MPI was displaced by youth and mental health issues — effect of adolescent brain development.

• A The application for an extension of time within which to appeal is granted.

• B The application to adduce further evidence is granted.

• C The appeal against conviction is dismissed.

• D The appeal against sentence is allowed in part. The minimum period of imprisonment is reduced to one of 13 years.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

	Para No
Introduction	[1]
Background	[5]
Appeal against conviction	[8]
Directions on youth	[8]
Actions of counsel for co-accused	[15]
Failure to comment on Ms Te Wini not giving evidence	[18]
Failure to highlight	[20]
ailure to comment on Crown theory	[26]
Conclusion on conviction appeal	[28]
Appeal against sentence	[29]
New evidence	[30]
Ms Churchward's background	[31]
Experts' opinions	[38]
Adolescent brain development	[50]
Sentencing remarks of Venning J	[56]
Life imprisonment	[63]
Minimum period of imprisonment: submissions	[66]
Minimum period of imprisonment: the principles	[74]
Effect of youth	[76]
Effect of mental health issues	[93]
Our comments on the Crown's submissions	[94]
Application of principles to Ms Churchward	[100]
Conclusion on sentence appeal	[104]
Result	[109]

Introduction

1 Ms Churchward and her cousin Ms Te Wini were convicted in November 2009 after a jury trial of the murder of Mr John Alan Rowe. At the time of Mr Rowe's death in November 2008, Ms Te Wini was 14 years old and Ms Churchward was 17.

2 Venning J, who was the trial Judge, sentenced Ms Churchward (and Ms Te Wini) to life imprisonment with a minimum period of imprisonment of 17 years. 1

3 Ms Te Wini's appeal against conviction has been allowed and a retrial has been ordered for her. 2

4 Ms Churchward seeks an extension of time to appeal against her conviction

and sentence. The extension of time is not opposed and has been adequately explained in an affidavit by Ms Churchward. The extension of time is granted

Background

5 On the evening of 24 November 2008, Mr Rowe, a 78 year old pensioner, was beaten in his bed with a wooden walking staff and a wooden rod. The assault caused massive head injuries and blood loss which resulted in respiratory failure leading to eventual, but not immediate, death. 3

6 The Crown case was that Ms Churchward and Ms Te Wini killed Mr Rowe and that they intended to cause his death. Alternatively, the Crown submitted that both girls intended to cause Mr Rowe bodily injury, that they knew this was likely to cause death, and that they were reckless as to whether or not death ensued. 4

7 Ms Churchward's trial strategy was to admit culpable homicide but deny foreseeability of death. She did this by asserting in evidence that she intended to knock out Mr Rowe, but that, on account of her own experience of being knocked out, did not believe Mr Rowe would come to lasting harm. The issue for the jury with respect to Ms Churchward was therefore whether or not she intended to kill or knew that death was likely to ensue.

Appeal against conviction

Directions on youth

8 Ms Churchward's first submission on her conviction appeal is that Venning J erred by not directing on the relevance of youth to the question of intent.

9 On appeal, Ms Churchward seeks leave to adduce evidence from Dr Chaplow in support of this ground. 5 In his report attached to his affidavit, Dr Chaplow surveys the leading literature on the development of the adolescent brain. 6

10 As the Crown points out, Dr Chaplow's report is a rather double-edged sword for Ms Churchward. On the one hand, it does point to difficulties that adolescents may face in “hot” (or real life) situations with understanding likely consequences and making good decisions.

11 On the other hand, it also says that adolescents are “less inclined to assign weight to consequences over the immediate risks and thrill of the current challenge”. The report says that, while adolescents are not less knowledgeable about risks, they attach different values to rewards that risk-taking provides. In addition, adolescents have a diminished ability to control impulsivity, have less future orientation than adults and are more subject to peer influences.

12 As a general rule, we accept that it would be preferable for judges to draw the jury's attention to an accused's youth and the effect this may have had on intent. However, the jury were well aware of Ms Churchward's youth and her trial counsel had specifically drawn attention to it in closing. Her trial counsel reminded the jury that Ms Churchward was a “young girl” and that they needed to be sure that, within her “young mind”, she had developed the requisite intent. We therefore do not consider that the absence of a direction on youth has caused a miscarriage.

13 In any event, in Ms Churchward's case, the defence position was that she did foresee the consequence of her actions: it was to knock Mr Rowe out and, on the basis of Ms Churchward's own experiences (of which corroborating evidence was called), 7 this should not have caused any long term adverse consequences for Mr Rowe.

14 This ground of appeal fails.

Actions of counsel for co-accused

15 The next ground of appeal is that there was a breach of s 39 of the Evidence Act 2006. It is submitted that Ms Churchward's veracity was to be questioned in cross-examination on behalf of Ms Te Wini and that proper notice was not given.

16 This ground of appeal is not sustainable. Ms Churchward's trial counsel, Mr Mabey QC, filed a memorandum saying that, while he received no formal notice, he was in no way disadvantaged or taken by surprise by the cross-examination of Ms Churchward. He had had discussions with Ms Te Wini's trial counsel throughout the preparation for the trial and was well aware of Ms Te Wini's defence. The thrust of the likely cross-examination of Ms Churchward was obvious to him and explained to Ms Churchward before she gave evidence.

17 In any event, as pointed out by the Crown, given that Ms Churchward had conceded that she had caused Mr Rowe's death, Ms Te Wini's counsel's actions could only have impacted on Ms Churchward's trial if those actions went to the level of harm Ms Churchward intended or her appreciation of the risk of death. None of the matters of which complaint is now made go to those issues.

Failure to comment on Ms Te Wini not giving evidence

18 It is submitted that, in the particular circumstances of this case, the Judge should have commented on Ms Te Wini's failure to give evidence. 8

19 We reject this submission. Judges rarely comment on a failure to give evidence and there is nothing that suggests this case should be one of those rare cases where comment might be made.

Failure to highlight

20 The next submission is that the Judge should have highlighted, throughout the summing up, that a co-accused's statements are not admissible against the other accused.

21 We do not accept this submission. The jury was well aware that the statements of each accused were not admissible in relation to each other. The Judge made this clear in his summing up:

[32] I remind you that Ms Churchward's statement made in the absence of Ms Te Wini is not evidence against Ms Te Wini. You must disregard Ms Churchward's statement when you are considering the case against Ms Te Wini and for that matter the statements attributed to Ms Te Wini about Ms Churchward by [her then boyfriend] when giving his evidence and in the intercepts are not evidence against Ms Churchward for the same reasons.

22 A related submission is that the Judge failed to highlight the submissions for Ms Te Wini that were not based on the evidence or not put to Ms Churchward.

23 We do not necessarily accept that all the comments highlighted by Mr Tennet had no evidential foundation. For example, Mr Tennet complains that reliance was placed on “self serving” statements made by Ms Te Wini in the course of intercepted conversations between Ms Te Wini and her then boyfriend and her mother. Those conversations were, however, produced in evidence in their entirety. Further, the comments were made in circumstances where Ms Te Wini was not aware she was being recorded.

24 In any event, the jury was aware that they were not to treat counsel's submissions as evidence. In his summing up, the Judge said:

[6] … You apply your view of the evidence, not [counsel's]. What you heard from them was of course their submissions about the evidence, but it is not evidence and it is for you to decide what you make of the evidence at the end of the day.

25 Finally, none of the matters Mr Tennet complains of go to the only issue in Ms Churchward's trial, her intent. 9

Failure to comment on Crown theory

26 The next submission is that the Judge failed to direct the jury that the Crown's submission, that Ms Churchward had pursued Mr Rowe as he moved down the bed, was merely a theory.

27 The...