R v Kuka Ca

• Jurisdiction: New Zealand
• Judge: Robertson J
• Judgment Date: 08 December 2009
• Neutral Citation: [2009] NZCA 572
• Docket Number: CA175/2009
• Court: Court of Appeal
• Date: 08 December 2009

The Queen

and

Lisa Kuka

[2009] NZCA 572

Court:

Hammond, Robertson and Ellen France JJ

CA175/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and sentence for manslaughter — omission to provide necessaries and failure to protect child from violence — standard required for causation

Counsel:

M F Tuilotolava for Appellant

C L Mander for Crown

The appeals against conviction and sentence are dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Robertson J)

Table of Contents

	Para No
Introduction	[1]
Factual circumstances	[3]
Misdirection on the elements	[11]
Count 3: failure to provide medical attention, thereby causingNia's death	[12]
The level of causation required	[15]
The evidence in the present case	[34]
THE NATURE OF NIA'S INJURIES	[35]
WHAT SYMPTOMS MIGHT A CHILD INJURED LIKE NIA HAVE PRESENTED WITH?	[36]
THE TIMING OF MEDICAL TREATMENT	[37]
THE TRAJECTORY OF NIA'S INJURIES	[39]
DR KELLY'S VIEW ON THE CAUSAL LINK BETWEEN MS KUKA'S OMISSION AND NIA'S DEATH	[41]
The evidence in the present case: Dr Stables	[43]
CAUSE OF DEATH	[45]
THE TRAJECTORY OF NIA'S INJURIES	[46]
Applying the test to the evidence in this case	[48]
Count 4: failure to protect Nia from violence, thereby causing her death	[56]
Was there enough in the evidence for the jury to draw a supportable inference of knowledge?	[72]
Further challenges	[77]
Fairness of summing up	[85]
Result on conviction appeals	[91]
Appeal against sentence	[92]

Introduction

1 Lisa Kuka was convicted of two counts of manslaughter, one alleging an omission to provide the necessities of life thereby causing death, and the other of failing to protect a child from violence thereby causing death.

2 Ms Kuka was sentenced to an effective term of nine years' imprisonment. She appeals against both conviction and sentence.

Factual circumstances

3 The appellant was the mother of Nia Glassie who died on 3 August 2007 as a result of injuries she had sustained.

4 Ms Kuka and four other adults were jointly tried before Potter J and a jury on a number of offences alleging criminal acts and omissions leading to Nia's death. The period of offending covered by the charges was 21 May 2007 to 22 July 2007. Over that period Nia and her two older sisters were living with Ms Kuka at an address in Rotorua. Also living at the address were Wiremu Curtis (Ms Kuka's partner), Michael Curtis (Wiremu Curtis's older brother), Oriwa Kemp (Michael Curtis's partner), and Tahlia Curtis (the young daughter of Michael Curtis and Oriwa Kemp). The fifth accused, Michael Pearson, lived at a different address. Ms Kuka's partner (Wiremu Curtis) and his brother (Michael Curtis) were convicted of Nia Glassie's murder, and the other adults also faced charges with regard to the abuse of Nia and her two elder sisters.

5 There was no question that Ms Kuka herself had been involved personally in the persistent and violent abuse of Nia, which the Judge at sentencing summarised as:6

• (a) Wiremu Curtis, his brother Michael, and Mr Pearson performed “wrestling moves” on her;

• (b) she was shoved, naked, into a sandpit and into a broken couch;

• (c) she had balls and other objects thrown at her;

• (d) she was punched and kicked;

• (e) she was given cold bath/s;

• (f) she was hit by Tahlia Kemp at the direction of Oriwa Kemp;

• (g) she was put in a hole in a fence outside where there was accumulated rubbish; and

• (h) she was forced to wear soiled clothing.

6 There were, in addition, two acts of violence that formed counts of their own:

• (a) The “clothesline incident”, which involved Wiremu and Michael Curtis, and Oriwa Kemp: Nia was placed on the wires of the clothesline by Michael Curtis, who then spun the clothesline around fast until she fell to the ground crying and screaming. This was repeated, and only stopped when a neighbour stepped in.

• (b) The “dryer incident”, which involved Wiremu and Michael Curtis, and Michael Pearson: Nia was pushed into the clothes dryer, crying and screaming. The dryer was turned on so that it revolved until Nia kicked open the door. Nia's two sisters witnessed this incident.

7 The fatal incident of abuse involving Nia occurred on 20 July 2007. Potter J recorded in her sentencing notes:

• [18] I find that during the week prior to 20 July 2007 the violence and abuse towards Nia escalated rather than commenced. The incidents of abuse described in evidence might have been regarded by the perpetrators as being for their amusement, such as the drier incident and the clothesline incident which apparently started as a game, but it was certainly not a game as far as Nia was concerned, as witnessed by Mr Simiona [a neighbour witness] from the rear of the property. Nia suffered from this regular abuse and it is little wonder that her anguished cries resulted. But as one of her sisters described, she learned to contain her crying, because if she had failed to do so she would be further punished for her crying.

• [19] On Friday 20 July 2007, the household was preparing for Michael Curtis's 21st birthday to be celebrated the following day. Numerous people came to the house to bring food and to provide assistance. They all left by 7 p.m. From that time the only people present were Michael Curtis, Wiremu Curtis and Jess, Esther and Nia. Lisa Kuka came home earlier from work than she usually did. She had to return her brother's car to his address out towards the Rotorua Airport. She called in at 13D Frank Street to enlist the help of Oriwa Kemp to follow her in the truck and to drive her back after she left the car at her brother's. She took Jessie with her but declined Nia's request to also come. She left Nia behind with Esther to look after her. She was not gone very long, but during her absence Esther saw her little sister Nia suffer the kicks in the head which would result in her death. She described the kicks delivered by Michael Curtis and Wiremu Curtis as being “as hard as rock”. They were such that Nia lost consciousness which she never fully regained.

• [20] Shortly after Jessie returned with her mother and Oriwa Kemp in the truck around 8 p.m., she prepared to go to bed. Nia and Esther occupied the same bed, Nia in the middle, the older girls on one side of her. Jessie described in evidence how Nia was asleep in the position which she, Jessie, usually occupied by the wall. She had to move Nia before she could get into bed in her usual place. She found that Nia had wet the bed. This was very unusual because Nia was toilet trained and did not wet the bed. Jessie reported this situation to her mother. Her mother then picked Nia up and bathed her. Jessie and Esther watched. Nia did not wake up despite efforts of Lisa Kuka to arouse her by putting water on her face and head. Nia was returned to bed. Jessie and Esther also went to bed.

• [21] The jury by their verdict of manslaughter against Lisa Kuka for failing to obtain timely medical assistance for Nia, seemingly rejected the version of events told to the Police by Lisa Kuka, that it was 4 a.m. the next morning, Saturday, when Nia wet the bed and she gave her a bath. Jessie's evidence on the timing of the incident was clear, and consistent with the logical course of events. It is entirely explicable that when Jessie tried to go to bed and found Nia in her, Jessie's, usual position and having wet the bed, that she should at that point, report the matter to her mother. That is my finding based on Jessie's evidence, which I accept.

8 Nia was eventually taken to Rotorua Hospital on the morning of Sunday 22 July at the instigation of Ms Kuka's sister, Louise Kuka, who was concerned at Nia's physical state. At sentencing Potter J recorded:

• [23] On Saturday evening, Louise Kuka, Michael Pearson's mother and a sister of Lisa Kuka, took the girls to her home. Nia did not wake. At about 6 a.m. the next morning Louise Kuka was awoken by Jessie. Concerned at the state of Nia who was fitting and frothing at the mouth, with her arms floppy, Louise Kuka told Lisa Kuka that she was going to take Nia to Rotorua Hospital. The hospital records record Nia as having been admitted at 8.45 a.m. Both Louise and Lisa Kuka went to Rotorua Hospital with Nia.

9 Lisa Kuka submits that there was a miscarriage of justice because the jury's verdicts were unreasonable and could not be supported having regard to the evidence. There was additional concern about the absence of an alternative count to count 3 and in an alleged failure to adequately put the defence case to the jury.

10 The appeal against sentence is on the basis that it was excessive in all the circumstances.

Misdirection on the elements

11 When stripped to their essentials, the major challenges to the conviction for the two counts of manslaughter boil down to:

• (a) whether the expert medical evidence, led in respect of count 3, established to the required criminal standard that Ms Kuka's failure to seek medical attention for Nia was a substantive and operative cause of Nia's death; and

• (b) whether the evidence led in respect of count 4 proved to the required criminal standard that Ms Kuka knew, prior to Nia's lapse into a coma, that Nia was being subjected to violence.

Count 3: failure to provide medical attention, thereby causing Nia's death

12 In her summing up the Judge explained to the jury the elements of count 3:

• [117] Dealing first with Count 3. The essential elements the Crown must prove are:

  • (a) That Lisa Kuka failed without lawful excuse to perform a legal duty as the parent of Nia to provide necessaries for her. Necessaries being medical care or treatment in this case. Accordingly the Crown must prove that Lisa Kuka failed to provide medical care or treatment for Nia.

  • (b) That Lisa Kuka's failure was a...