Pickering v R

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 19 July 2012
• Neutral Citation: [2012] NZCA 311
• Docket Number: CA546/2010
• Court: Court of Appeal
• Date: 19 July 2012

BETWEEN

Patricia Pickering

Appellant

and

The Queen

Respondent

[2012] NZCA 311

Court:

Glazebrook, Ellen France and Stevens JJ

CA546/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

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

Counsel:

F P Hogan for Appellant

M J Lillico and S F Petricevic for Respondent

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

• B The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
Introduction	[1]
Factual background	[4]
The High Court trials	[6]
First ground — discharge of first jury	[10]
Circumstances leading to application for discharge	[10]
Ruling on Crown application for discharge	[13]
Submissions on appeal	[17]
Our evaluation	[19]
Second ground — decisions on defence applications under ss 345 and 347	[27]
The statutory provisions relied on	[30]
Jurisdiction	[32]
The Judge's ruling under s 345	[39]
Our evaluation	[42]
The Judge's ruling under s 347	[45]
Our evaluation	[46]
Third ground — prosecutor's breach of “undertaking”	[48]
Competing submissions	[55]
Our evaluation	[59]
Fourth ground — admission of evidence of scars and old injuries	[61]
The Vuletic evidence	[63]
The Judge's ruling	[69]
Submissions on appeal	[74]
Our evaluation	[76]
Consequences of the appellant's discharge on count 2	[83]
(a) The decision to discharge	[84]
(b) Events between discharge and summing up	[89]
(c) Summing up	[92]
(d) The competing submissions	[93]
(e) Our evaluation	[97]
Fifth ground — partisan evidence by Dr Christian	[104]
Dr Christian's evidence	[104]
Submissions on appeal	[106]
Our evaluation	[108]
Sixth ground — alleged errors in summing up	[115]
Circumstantial evidence/inferences	[116]
Onus and standard of proof	[123]
Dr Squier's evidence	[126]
Irreconcilable conflict in Crown case	[133]
Further observations on summing up	[139]
Seventh ground — alleged prosecution misconduct	[143]
Cream Tuesday	[144]
Calling of Zane Wright	[150]
Evidence of Ms Cooper	[156]
Eighth ground — alleged misconduct in Crown closing	[160]
Speculation	[161]
Sarcastic, emotive and inflammatory language	[164]
Ninth ground — fresh evidence	[177]
The applicable principles	[183]
Respondent's position	[187]
Our evaluation	[188]
Result	[191]

Introduction

1 On 18 April 2008, three-year-old Dylan Rimoni died as a result of traumatic brain injuries. Following a trial before Wylie J and a jury in the High Court at Auckland, the appellant, Patricia Pickering, was convicted of Dylan's murder. The appellant appeals against that conviction. The trial was the third attempt to try the appellant on a four count indictment, including the murder charge.

2 The appellant advances nine grounds of appeal as follows: 1

• (a) The Judge was wrong to discharge the first jury under s 22 of the Juries Act 1981.

• (b) Given the state of the prosecution evidence prior to the commencement of the second trial, the Judge ought to have quashed the murder charge under s 345 of the Crimes Act 1961 or discharged the appellant on that charge under s 347 of the Crimes Act.

• (c) The prosecutor failed in his opening address at the third trial to abide by an undertaking given when the second jury was discharged.

• (d) The evidence of old scars and head injuries was improperly admitted and, if properly admitted, was the subject of an erroneous propensity direction by the Judge.

• (e) One of the Crown expert witnesses, Dr Christian, gave partisan evidence resulting in a miscarriage of justice.

• (f) The Judge's summing up contained various errors which either individually or collectively resulted in a miscarriage of justice.

• (g) The police officers investigating the case were guilty of misconduct during the process of interviewing witnesses, resulting in a miscarriage of justice.

• (h) The prosecutor was guilty of misconduct in the course of his closing address.

• (i) The appellant applied for leave to adduce fresh evidence to be considered on appeal, such evidence comprising a report from Dr Lammie of the Department of Pathology, Cardiff University.

3 We will address each of these grounds in turn. We begin with an outline of the broad factual background. But in order to understand the nature of some of the challenges it will be necessary to expand on the trial dynamics, the reasons for requiring three trials and the context relative to particular points.

Factual background

4 Dylan went to live with the appellant and her partner Douglas Hoeta shortly after his second birthday because his mother could no longer care for him. The appellant was his main caregiver because Mr Hoeta was often absent from the house where they lived together. On 16 April 2008 at 12:20 am the appellant called 111 and stated that Dylan was having trouble breathing and was not responsive. Dylan died in hospital as a result of traumatic brain injury on 18 April. A post mortem revealed a number of other injuries including old brain injuries, a healing rib fracture, bruises and scars.

5 The appellant was charged with murder, assault on a child and causing grievous bodily harm with intent to cause grievous bodily harm (two counts). The murder charge (count 4) related to the events of 15-16 April 2008. The assault charge (count 1) was based on a separate incident in which a neighbour observed the appellant throwing Dylan to the floor. The grievous bodily harm charges (counts 2 and 3) related to the rib fracture and an older serious head injury, described in the indictment as the first head injury.

The High Court trials

6 The first trial commenced before Wylie J and a jury in the High Court in Auckland on 22 February 2010. For reasons we will later describe the original jury was discharged on 17 March and the trial was postponed until May. The second trial commenced before Wylie J and a jury on 4 May 2010. Following a problem with a juror early in the second trial, that jury was discharged. 2 The third jury was empanelled on 6 May 2010. During the third trial the appellant was discharged under s 347 of the Crimes Act on count 2 (the first of the grievous bodily harm charges). The appellant was ultimately found guilty of murder but not guilty of the assault and the remaining grievous bodily harm charge.

7 According to the prosecutor's opening, the Crown case was that Dylan sustained the fatal head injury immediately prior to his death, and that that injury was inflicted by the appellant. The Crown suggested that the injury was caused “by slamming his body, his head, against the wall, the floor, the door, something hard to cause such injury to his brain that he never recovered”. The Crown case was based on the evidence of Ms Pickering's neighbours (who heard screaming both on the night of 15 April and in the weeks preceding that evening), evidence of the injury to Dylan's brain, evidence of past injuries, and evidence of medical experts who suggested that the injury sustained by Dylan would have led to his immediate collapse. 3

8 The defence case focussed on challenging the reliability of the neighbours' accounts and suggesting alternative explanations for Dylan's past injuries. In particular, the defence suggested that Dylan's fatal head injury could have been sustained several days earlier when Dylan fell from a trampoline. This theory was based on the possibility of Dylan experiencing a “lucid period” during which no serious symptoms of his head injury were apparent. 4 The appellant was interviewed by police in an interview recorded on videotape. The appellant did not give evidence at her trial.

9 Given the nature of the cases for the Crown and the defence, expert medical evidence was an important feature of the trial. For summary purposes, it is sufficient to note that the important Crown experts were Dr Christian (paediatrician), Dr Smith (neuropathologist) and Dr Vuletic (the pathologist who carried out the post-mortem on Dylan). Other Crown experts of less relevance to this appeal included Dr Campanella (paediatrician) and Dr Lee (neuroradiologist). The most important defence expert was Dr Squier (neuropathologist).

First ground — discharge of first jury

Circumstances leading to application for discharge

10 At the depositions the Crown called evidence from a forensic neuropathologist, Dr B. 5 It was expected that Dr B would give evidence for the Crown in the week commencing 15 March 2010. On 12 March 2010 Dr B was diagnosed with an acute medical condition. As a result of that illness she was unable to continue as a witness. The Crown accepted that it was necessary to secure a replacement forensic neuropathologist to give evidence similar to that given by Dr B in her deposition.

11 To provide context to the above, two forensic neuropathologists instructed by the defence, Drs Waney Squier and Helen Whitwell, met...