Woodcock v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date28 Oct 2010
Neutral Citation[2010] NZCA 489
Docket NumberCA733/2009

[2010] NZCA 489

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Chambers, Arnold and Harrison JJ

CA733/2009

BETWEEN
Joshua Chris Woodcock
Appellant
and
The Queen
Respondent
Counsel:

W C Pyke and J P Temm for Appellant

M F Laracy and H R B Stallard for Respondent

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.

The issues on appeal were: whether the trial Judge's summing up which mentioned the possibility of a majority verdict was premature and should not have referred to the number required for a majority verdict; whether a Papadopoulos direction should have been given; whether the starting point of the sentence was too high in that the trial judge had taken into account the child's injury's in calculating the base starting point and again when adjusting upwards.

Held: In the absence of a statutory prohibition, provision of a brief and accurate summary of the law on a subject central to the jury's deliberative process was a matter solely within the judge's discretion. The trial judge had opened the summing up with a simple and unambiguous direction to the jury to attempt to reach a unanimous verdict on each charge. The trial judge had independently emphasised the requirement for unanimity and then had moved logically to the possibility of the jury returning a majority verdict and its constitution. His observation that the jury was probably aware of the possibility of returning a majority verdict recognised that s29C CA had been enacted amidst public debate. By that means the Judge was pre-empting a risk of the jury proceeding from the outset on a legal misunderstanding. The Judge could not be criticised for identifying the number of jurors necessary to constitute a majority verdict; that if anything supported the unanimity direction by signalling to the jury the numerically limited nature of the majority exception.

The submission that the trial judge should have given a Papadopoulos direction was misconceived, especially since neither counsel had sought one. A Papadopoulos direction was to deal with the situation where the jury communicated to the Judge its inability to reach a verdict recognised by law and was designed to avoid a hung jury and retrial. A Papadopoulos direction would have been confusing and superfluous and in this case the jury had expressly communicated its ability to reach lawful verdicts subject only to the qualification that were of a majority nature.

The trial judge had not erred in a reviewable sense in exercising his discretion to accept the jury's majority verdicts.

A starting point of 11 years' imprisonment had been adopted as a starting point on the lead charge of manslaughter with an upward adjustment of 18 months to take account of the additional offending. A credit of 6 months was given for W's previous good record and his age at the time of offending, the final sentence being 12 years imprisonment. Even if the trial judge had double counted the child's injuries in the base starting point and upwards adjustment, the issue was whether the final sentence was manifestly excessive regardless of its composition.

Previous authorities justified a starting point of 10 years' imprisonment for the manslaughter charge but given the vulnerability of the victim who was 3 months old, the related offending and the sustained course of violence which eventually led to his daughter's death the starting point of 12.5 years was reasonable even if the trial judge had double counted the aggravating features.

Appeal against conviction and sentence dismissed.

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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—

    • ...

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