Pickering v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeStevens J
Judgment Date19 July 2012
Neutral Citation[2012] NZCA 311
Date19 July 2012
Docket NumberCA546/2010

[2012] NZCA 311



Glazebrook, Ellen France and Stevens JJ


Patricia Pickering
The Queen

F P Hogan for Appellant

M J Lillico and S F Petricevic for Respondent

Appeal against conviction for the murder of a three-year-old child — appellant was main caregiver — child died as result of traumatic brain injuries — appellant convicted of murder on third attempt to try her on charges — appellant discharged on one count of causing grievous bodily harm — first jury discharged when forensic neuropathologist unable to continue as a witness due to unexpected serious medical condition — jury discharged in second trial following problem with juror — nine grounds of appeal were advanced relating to discharge of jury; admissibility and state of evidence and witnesses; misconduct of prosecution; and errors in Judge's summing up — whether any of the appeal grounds were made out and a miscarriage of justice had resulted

At issue was whether any of the appeal grounds were made out and a miscarriage of justice had resulted.

Held: (1) Discharge of first jury under s22 JA: Events surrounding Dr B's critical and acute condition, and the resulting incapacity gave rise to a mishap of the type described by the Supreme Court in Buddle v R (where words “casualty or emergency” considered). The unexpected incapacity of an important expert witness on a live trial issue, in circumstances where no short term replacement was available in NZ meant that something had gone wrong with or affecting the trial process. There was no dispute as to the unique nature of Dr B's forensic medical expertise and in the circumstances, an adjournment of the trial for a short period was not realistic.

Dr B's incapacity was unforeseeable. There was no evidence to support the proposition that the symptoms Dr B had exhibited previously would make an indefinite incapacity likely to appear during the trial. Even if Dr B's employer had known of potential difficulties there was no obligation to advise the Crown Solicitor in the circumstances. Further, there was no evidential foundation to support any obligation on Dr B herself as a professional expert witness to tell the Crown about her incapacity. First ground of appeal failed.

(2) Decisions on defence applications under s345 Crimes Act 1961 (“CA”) (presenting indictment) and s347 CA (power to discharge accused): Between the first and second trial the Crown sought to instruct a substitute neuropathologist (“Dr S”). The prosecutor was directed to provide defence counsel with a copy of Dr S's report as soon as practicable but it was not received before the second trial commenced. There was clear authority in the Court of Appeal suggesting that there was no right of appeal to the Court of Appeal with respect to a refusal to grant a discharge under s347 and the same applied to s345.

Under s345 CA an accused might apply to the Court for an order quashing an indictment where the Court was satisfied that the indictment was not founded on the evidence disclosed in the depositions hearing ( Palu v District Court at Wellington). The question was whether there was evidence upon which the jury properly directed could convict the accused on the charges in the indictment ( Parris v Attorney-General). The depositions evidence of the other witnesses amply met the test in Parris. The Judge's approach of excluding Dr B's evidence from his consideration, notwithstanding that it was contained in the depositions, was if anything generous to the defence. Consideration under s347 CA was not confined to depositions evidence. There was no error in the Judge's reasoning and in the circumstances an application under s347 was likely to be decided in the same manner as the application for discharge under s347. The second ground of appeal failed.

(3) Change in opening statement by Crown: In his opening statement to the jury in the third trial the prosecutor changed from the second trial what he contended had been said by P to a doctor at the hospital on the day D was admitted relating to an incident where D may have fallen from a trampoline. The Judge refused to direct the Crown to amend its opening address and was correct to do so. The change in the Crown's opening did not result in a miscarriage of justice and was not a material change. The issue of materiality was informed by the fact that what counsel said was submission only and the jury was directed by the Judge to determine the case based on the evidence, not on counsel's submission. The third ground of appeal failed.

(4) Evidence of old injuries: The evidence of the post mortem findings relating to old injuries was admitted as propensity evidence, and was properly admitted as such. The Crown's agreement not to lead 13 items of that evidence at the first trial was not decisive and the prosecutor was not estopped from calling the evidence (in different circumstances).

It was appropriate to analyse the admissibility of the evidence with regard to s43 Evidence Act 2006 (“EA”) (propensity evidence offered by prosecution about defendants) and the correct approach to propensity evidence was set out in Mahomed v R (Supreme Court). There was no error in the Judge's assessment of the probative value of the evidence under s43(4) and the evidence was also admissible under s7 EA (fundamental principle that relevant evidence admissible).

was discharged on count 2, which related to the first head injury, at a late stage of the third trial. After the discharge there was no formal ruling on the evidence that had been led in relation to the charge but in the circumstances this was not a serious error. It was inevitable that the evidence of the head injuries would be available as admissible evidence. The fact that the evidence was originally led in respect of count 2 did not affect its admissibility ( Fenemor v R). There was no error in the Judge's direction on propensity. The seven step guide for a propensity direction, set out in Stewart v R, was not intended to be applied formulaically. The forth ground of appeal failed.

(5) Giving of partisan evidence by Crown witness: The fifth ground of appeal that a Crown witness did not qualify as an expert and she gave partisan evidence resulting in miscarriage of justice. This ground also failed. The witness in question (“Dr C”) was an extremely well qualified expert witness. While Dr C's expertise did not extend to all medical evidence, her evidence at trial did not cross that boundary. None of the statements identified could be said to touch on a subject so technical that it fell outside Dr C's expertise. Nor were any of her answers particularly partisan. If she had revered to factual matters not established by the evidence, defence counsel could and should have raised it immediately by challenge in cross-examination. Even if Dr C's evidence had overstepped her expertise, the detailed and thorough direction given by the Judge on expert evidence would have been sufficient to remedy the situation. There had been no resulting miscarriage of justice.

(6) With regard to the various errors alleged in the Judge's summing up, when they were viewed in context there was no error and his directions were clear and comprehensive, meeting the standards required by R v Shipton. The sixth ground of appeal failed.

(7) Prosecution misconduct in relation to certain witnesses: where the issues related to questions of credibility and reliability of witnesses at the trial there was no merit to the contentions. Matters of credibility and reliability were for the jury. The issues relied on had been thoroughly examined at trial and the Judge's summary of the issue as part of his summing up was not challenged.

There was no unfairness in the prosecution declining to call a particular witness. The witness was in fact called and there was a full opportunity to cross-examine him. Had any new material arisen for which additional cross-examination of other witnesses was required, an application for those witnesses to be recalled could have been made. The seventh ground of appeal failed.

(8) Misconduct in Crown's closing: Even if the prosecutor's closing address invited the jury to engage in impermissible speculation, any concerns were covered by the Judge's direction in a number of respects. The Judge gave the jury a direction, in the context of inferences and circumstantial evidence, not to speculate on two occasions. The Judge's directions individually and cumulatively were sufficient to prevent the jury engaging in speculative reasoning. The prosecutor's closing address in general complied with the principles in R v Hodges. Where it did not, if there was any prospect that the jury might have been influenced by the emotive or sarcastic language used, that concern was adequately met by the Judge's directions which focussed the minds of the jurors on the factual issues they had to decide. The eighth ground of appeal failed.

(9) Fresh evidence: The fresh evidence that was sought to be adduced was not admissible. There was only a minor distinction with evidence that had been presented and the “fresh” evidence was not of such a nature that might reasonably have led the jury to return a different verdict. The application for leave to adduce further evidence was dismissed.

Appeal dismissed.

  • A The application for leave to adduce further evidence is refused.

  • B The appeal is dismissed.



(Given by Stevens J)

Table of Contents

Para No



Factual background


The High Court trials


First ground — discharge of first jury


Circumstances leading to application for discharge


Ruling on Crown application for discharge


Submissions on appeal


Our evaluation


Second ground — decisions on...

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5 cases
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    • Court of Appeal
    • 1 December 2016
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    .... 20 R v Reihana CA350/00 , 22 March 2001 at [22]. 21R v H CA241/04, 26 November 2004. 22R v Martin [2007] NZCA 386. 23 Most recently in Pickering v R [2012] NZCA 311, [2012] 3 NZLR 24R v MacDonald [2009] NZCA 428, (2009) 24 CRNZ 785 at [30]. 25 At [34]. 26 Chanel Ashford and Henare Angell.......
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