Woodcock v R

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 28 October 2010
• Neutral Citation: [2010] NZCA 489
• Docket Number: CA733/2009
• Court: Court of Appeal
• Date: 28 October 2010

BETWEEN

Joshua Chris Woodcock

Appellant

and

The Queen

Respondent

[2010] NZCA 489

Court:

Chambers, Arnold and Harrison JJ

CA733/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and sentencing — appellant convicted of causing grievous bodily harm, assault of a child, willful neglect and the manslaughter of his 3 month old daughter and sentenced to 12 years' imprisonment — appellant convicted by majority verdict under s29C Crimes Act (criminal cases) — whether the trial Judge's summing up directions regarding the possibility of majority verdict were premature and contributed to the verdict — whether the Judge erred in referring to the number required for a majority verdict — whether a Papadopoulos direction should have been given instead — whether the starting point of the sentence was too high — whether the final sentence was manifestly excessive.

Counsel:

W C Pyke and J P Temm for Appellant

M F Laracy and H R B Stallard for Respondent

The appeal against conviction and sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1 Joshua Woodcock appeals against his conviction following trial by a jury in the High Court at Rotorua in September 2009 on charges of manslaughter, causing grievous bodily harm with intent to cause grievous bodily harm, assault of a child and wilful neglect. Mr Woodcock also appeals against his sentence of 12 years imprisonment. 1

2 Mr Woodcock's notice of appeal raised a number of challenges to his conviction. However, in this Court his counsel, Mr Pyke, limited oral argument to the single ground of whether the trial Judge misdirected the jury on its power to return majority verdicts. Mr Pyke did not address argument on the remaining grounds of appeal and we are satisfied they are without merit.

3 Mr Woodcock maintains his appeal against sentence, which we will address separately.

Facts

4 Mr Woodcock was the father of Sarah Woodcock-Haddock. She died in March 2005 when she was a little over three months old. Her death was caused by a brain haemorrhage resulting from a four centimetre skull fracture. The likely originating cause was her head's sudden impact with a board or padded area such as carpet; and the likely site of impact was at the back of the head somewhere behind the ear.

5 According to a pathologist called by the prosecution, very considerable force is needed to fracture the skull of a young child. The fatal injury, which could not have been accidental, was inflicted about 12 hours before Sarah died. It was common ground at trial that the perpetrator could only have been her father or her mother, Ms Jaymie Haddock. The couple were then living together in a rental property in Putaruru with their two older sons.

6 A post-mortem conducted following Sarah's death disclosed the existence of other substantial injuries. She had suffered eight rib fractures and a haemorrhage in her left chest wall, most likely caused by an adult leaning on her chest with the knee slipping downwards and tearing tissue under the skin. She had suffered a tear to the upper fremulum in her mouth about four to seven days before death. She presented with bruises to her jaw and neck, most likely caused by applying force from fingers or knuckles within two to five days before death. Finally, within that same period, she had suffered four bruises to her chest and her thymus gland, an organ positioned in the upper chest behind the sternum. The level of force required to cause these bruises was the same as that required to cause equivalent bruising in an adult.

7 When interviewed by a police officer, Mr Woodcock admitted that he had seen bruises on Sarah when bathing her. His statements to the officer could be construed as an admission that he had struck her. But he denied ever inflicting harm intentionally. Significantly, also, he doubted that Ms Haddock could have been involved in injuring Sarah.

8 Mr Woodcock was a good father to the two older children. Initially he had been a good parent to Sarah too, at least until the last week or two of her life. On the Crown case, Mr Woodcock then began the chain of abuse which led to his daughter's death. At trial he did not challenge the medical evidence about Sarah's injuries. His defence, run by Mr Temm, was that the jury could not be sure that he was responsible because it could not exclude Ms Haddock.

9 Ms Haddock had been convicted at an earlier trial on one charge of wilful neglect arising from the delay in seeking medical assistance for Sarah following her fatal injury. She was sentenced to a term of two and a half years imprisonment. She gave evidence for the Crown at Mr Woodcock's trial.

Majority verdicts

10 The principal issue at trial, assuming that Mr Woodcock struck the fatal blow, was whether he was guilty of Sarah's murder. The jury acquitted him on this charge but, by a majority of 11 to one, convicted him of manslaughter. It also returned majority guilty verdicts of 11 to one on four of the other charges. It was unanimous in its verdict of guilty on the final charge of wilful neglect.

11 The existence of the majority verdicts and two relevant directions given by the trial Judge, Wylie J, provide the grounds for Mr Woodcock's appeal.

12 Before 29 June 2009 the law required that all verdicts returned by juries sitting in criminal trials be unanimous. The enactment of s 29C of the Juries Act 1981, 2 which came into force on that date, brought about a significant change in the administration of criminal justice by allowing for majority verdicts in certain specified circumstances as follows:

Criminal cases

• (1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by all except 1 of them.

• (2) The Court may accept a majority verdict in a criminal case if—

  • (a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and

  • (b) the jurors have not reached a unanimous verdict; and

  • (c) the foreperson of the jury has stated in open Court—

    • (i) that there is no probability of the jury reaching a unanimous verdict; and

    • (ii) that the jury has reached a majority verdict; and

  • (d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial.

• (3) If the case involves 2 or more charges, or 2 or more persons charged, the Court may accept a majority verdict in relation to 1 or some of the charges or persons charged, in which case nothing in this section applies to the other charges or the other persons charged.

• (4) Nothing in this section—

  • (a) prevents the Court from taking a poll of the jury; or

  • (b) affects section 339 of the Crimes Act 1961 (which relates to criminal cases where part of the charge is proved).

• (5) If, in terms of section 339 of the Crimes Act 1961, the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the Court may accept a majority verdict on the crime charged instead of a unanimous verdict on the included crime.

13 Both Mr Pyke and Ms Laracy, who appeared for the Crown, accept that s 29C maintains the primacy of a unanimous verdict. The exceptional nature of a majority verdict is affirmed by the trial Judge's residual discretion as to its

acceptance, to be exercised only after satisfaction of four statutory preconditions. The first three are of a factual nature. The fourth requires a judicial evaluation, not of the reasonableness or otherwise of the verdict, but of the length of the deliberation process having regard to the nature and complexity of the trial. In practice, that evaluation will be made prior to satisfaction of the third precondition; that is, before the jury foreperson has made his or her statement in open court, but after the foreperson has confirmed to the Judge both that there is no probability of the jury reaching a unanimous verdict and that it has reached a majority verdict

14 Mr Pyke submits that Wylie J erred in two material respects when directing the jury on majority verdicts. His written submissions filed in support of Mr Woodcock's appeal extensively reviewed authorities on English and Australian legislation allowing for majority verdicts. However, we are not satisfied that they assist in determining this appeal. That is because the terms of s 29C are a self- contained code differing materially from legislation elsewhere. We propose to determine Mr Woodcock's appeal primarily by reference to that statutory provision.

Conviction

(1) Summing up

15 Mr Pyke's first challenge is to these passages from Wylie J's summing up to the jury on the morning of 14 September 2009, following one week of evidence and addresses:

• [166] The law requires you to try and reach a unanimous verdict on each charge. Unanimous means that you must all be agreed on the verdict, whether it is guilty or not guilty. As I have already pointed out to you, you can reach different verdicts on different charges.

• [167] You probably know that it is sometimes possible to bring in a majority verdict. That can only happen if various circumstances exist which will not arise for some time. If and when that time arises, I will explain it further. You should be aware that a majority verdict, if we get to that point, will require at least 11 of you to agree.

• [168] How you carry out your deliberations and how much time you need is entirely a matter for you. I would simply say that there is no rush. It may be you reach your conclusions in a short period of time. On the other hand there are some complex matters in this case and it may take you a while. Your deliberations should take into account that your verdicts are important both to the accused and to the Crown. It...