IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2019-088-002642
[2021] NZHC 301
THE QUEEN v
OSANA SIALEIPATA
Hearing: 9-12 and 15-17 February 2021 Appearances:
M B Smith and C Taylor for the Crown W McKean and N Dore for the Defendant
Verdicts and Reasons:
26 February 2021
Reissued:
12 August 2021
REASONS FOR VERDICTS OF VAN BOHEMEN J
This judgment was delivered by me on 26 February 2021 and
re-delivered by me on 12 August 2021 in accordance with Criminal Procedure Rules 2012, r 1.6.
Solicitors/Counsel:
Crown Solicitor, Whangarei
Webb Ross McNab Kilpatrick Limited, Whangarei
R v SIALEIPATA [2021] NZHC 301 [26 February 2021]
Introduction
[1] Osana Sialeipata faced six charges following the death of her five-month old child, Hezekiah Carpenter, on 22 August 2019:
Charge 1: Assault with a weapon,1 namely that Ms Sialeipata hit Hezekiah with a shower head on 22 August 2019.
Charge 2:Ill-treatment or neglect of a child,2 namely that between 13 June 2019 and 21 August 2019 Ms Sialeipata intentionally engaged in conduct likely to cause suffering or injury to Hezekiah, being conduct which was a major departure from the standard of care to be expected of a reasonable person.
Particulars: Physical ill-treatment.
Charge 3:Ill-treatment or neglect of a child,3 namely that between 13 June 2019 and 21 August 2019 Ms Sialeipata intentionally engaged in conduct likely to cause suffering or injury to Hezekiah, being conduct which was a major departure from the standard of care to be expected of a reasonable person.
Particulars: Conduct which impeded Hezekiah’s breathing.
Charge 4:Administering class C controlled drug to a person under 18 years of age,4 namely that Ms Sialeipata administered cannabis to Hezekiah.
Charge 5:Ill-treatment or neglect of a child,5 namely that between 13 June 2019 and 21 August 2019 Ms Sialeipata intentionally engaged in conduct likely to cause suffering or injury to Hezekiah, being conduct which
1 Crimes Act 1961, s 202C.
2 Crimes Act, s 195.
3 Crimes Act, s 195.
4 Misuse of Drugs Act 1975, s 6(1)(d).
5 Crimes Act, s 195.
was a major departure from the standard of care to be expected of a reasonable person.
Particulars: Giving Hezekiah alcohol.
Charge 6:Ill-treatment or neglect of a child,6 namely that between 13 June 2019 and 21 August 2019 Ms Sialeipata failed to perform a legal duty, the omission of which was likely to cause suffering or injury to Hezekiah and the omission to perform the legal duty was a major departure from the standard of care to be expected of a reasonable person.
Particulars: Legal duty as a parent to take reasonable steps to protect Hezekiah from injury.7
[2] Ms Sialeipata pleaded not guilty to all the charges. She said that she committed none of the acts alleged in Charges 1 – 5 and that she did not fail in her duty as a parent as alleged in Charge 6.
[3]Ms Sialeipata elected trial by Judge alone.
[4] For the reasons that follow, on 25 November 2021 I found Ms Sialeipata guilty on Charges 1 and 6 and not guilty on Charges 2 to 5.
Onus and standard of proof
[5] The Crown bears the onus of proving each element of each charge beyond reasonable doubt. That is a high standard and will be met only if, after careful and impartial consideration of all the evidence, I am sure of Ms Sialeipata’s guilt.
[6] Ms Sialeipata enjoys the presumption of innocence. This means she is presumed innocent unless and until the Crown has proved guilt beyond reasonable doubt. Ms Sialeipata bears no onus to give evidence or prove anything in relation to
6 Crimes Act, s 195.
7 Crimes Act, s 152.
any of the charges. Ms Sialeipata elected to give evidence but in giving evidence assumed no onus to prove anything.
[7] Ms Sialeipata gave a written statement to the Police on 22 August 2019, the night Hezekiah died, and was interviewed on video by the Police on 10 September 2019. During that time, Fabrice Carpenter, Ms Sialeipata’s husband and Hezekiah’s father, had been charged with assault, and then the murder, of Hezekiah. On those two occasions, Ms Sialeipata made statements as a potential witness. She was not given the warning under the New Zealand Bill of Rights Act 1990 that is administered to persons suspected of having committed an offence, namely that they have the right to silence and that anything that they do say may be used as evidence against them, and the right to consult a lawyer.
[8] On 14 September 2019, Ms Sialeipata was interviewed by the Police on video a second time. On that occasion, Ms Sialeipata was interviewed as a potential suspect in Hezekiah’s death and was given the standard warning. This Court has confirmed the adequacy of that warning.8 The account Ms Sialeipata gave in this interview varied markedly from the accounts given in the earlier two interviews.
[9]On 16 September 2019, Ms Sialeipata was charged with murder.
[10] Following a further medical opinion about the cause of Hezekiah’s death, the present charges were laid and the murder charge against Ms Sialeipata was withdrawn. Of the present charges, only the first charge relates to events on the night Hezekiah died. The other five charges relate to conduct alleged to have occurred prior to that night.
[11] Much of the case against Ms Sialeipata is based on what she said in the three Police interviews and on what she is said to have told Michaella and Alan Messenger, with whom Ms Sialeipata and Ms Sialeipata’s then two-year old daughter, stayed after Hezekiah’s death.
8 In R v Sialeipata [2020] NZHC 3223 at [42], Wylie J held that Ms Sialeipata was properly advised of her rights, that she understood them and that she waived them, and that the third interview was not improperly obtained and was admissible.
Undisputed evidence
[12] The charges against Ms Sialeipata were laid as a result of a Police investigation which followed the death of Hezekiah Carpenter on 22 August 2019. The circumstances that led to that investigation are not in dispute. I set those out by way of background. I also set out the medical evidence of injuries to Hezekiah, which is also not in dispute. I record Ms Sialeipata’s personal circumstances as they bear on the assessment I must make of Ms Sialeipata’s evidence.
[13] The summary below is taken from the evidence of Corey Matchett, a senior station officer with the New Zealand Fire Service; Caroline Davis, a paramedic with St John Ambulance; Police officers Detective Jason Hill, Detective Jade Henry, Detective Fiao’o Faamausili, Detective Sergeant Michelle Harris, and Detective Sergeant David Hamilton; Dr Simon Stables, the pathologist at Auckland Hospital who performed a post mortem examination on Hezekiah; Dr Helen Poulsen, a toxicologist at the Institute of Environmental Science and Research (ESR); a Plunket nurse who had visited Ms Sialeipata and Hezekiah when Hezekiah was three months’s old; Michaella Messenger; and the defendant, Ms Sialeipata. It also draws on the witness statement of Alan Messenger, who was not available to give evidence and so was not subject to cross-examination, to the extent that that statement is confirmed by or consistent with other evidence.
Emergency services called to residence
[14] On the evening of 22 August 2019, emergency services attended the home of Mr Carpenter, Ms Sialeipata and their two young children in Raumunga, a suburb of Whangārei, in response to a Code Purple call-out. Code Purple signifies an immediately life-threatening event.
[15] Mr Matchett and Ms Davis were the first to arrive. They found Hezekiah lying naked and apparently lifeless on the floor outside the shower in a room at the back, with Mr Carpenter crouched over him. Ms Davis applied standard resuscitation techniques for half an hour but was unable to revive Hezekiah.
[16] Mr Carpenter told Mr Matchett he had struck the baby on the chest, or words to that effect, and made a slapping gesture with his hand to his upper chest. Mr Carpenter was taken to the Whangārei Police station later than night where he made a statement. Mr Carpenter was charged with assault on a child.
Ms Messenger arrives to support
[17] At some point in the evening, Ms Messenger arrived at the Raumunga address. She had been telephoned by Mr Carpenter’s mother, Babette Osborne, who was in Bali with her husband, Adrian Osborne. Ms Osborne had asked Ms Messenger to support the Carpenter family.
[18] Ms Messenger accompanied Ms Sialeipata and her daughter to the Whangārei Police station where Ms Sialeipata made her first statement to Detective Jade Henry. Ms Messenger was not in the room while the interview was being conducted.
First Police interview
[19] The first Police interview was conducted by Detective Henry who wrote down what Ms Sialeipata told her. The interview was not recorded on digital video disc (DVD). The interview was in English, which is not Ms Sialeipata’s first language. Ms Sialeipata reviewed what Detective Henry had written and made some amendments to the statement and confirmed its truth and accuracy.
[20] The interview focused on what had happened at the Raumunga address on 22 August 2019. Ms Sialeipata said that Hezekiah had experienced breathing difficulties after Mr Carpenter had delivered one or more blows to his chest and that Ms Sialeipata and Mr Carpenter had been unable to resuscitate Hezekiah.
Ms Sialeipata and others stay at Messenger home
[21] At the conclusion of the Police interview in the early hours of 23 August 2019, the Police offered to arrange a hotel room for Ms Sialeipata and her daughter. However, Ms Messenger persuaded Ms Sialeipata that she and her daughter should stay with Ms Messenger and her husband at their property at Maungatapere, about 11 kilometres from Whangārei.
[22] Ms Sialeipata and her daughter stayed with the Messengers for the next 23 days, either at their home in Maungatapere or at a beach house of a family friend at Ōakura.
[23] Prior to Hezekiah’s death, Ms Sialeipata had not known the Messengers. Even so, Ms Sialeipata called Ms Messenger “Aunty” during her time with them. It is relevant to note that Ms Messenger was away from the Messenger home for much of the week of 26 August 2019 but returned by Sunday, 1 September 2019.
[24] Ms Osborne and her husband, Adrian Osborne, who is not Mr Carpenter’s father, flew in from Bali on 24 August 2019. The Osbornes also stayed with the Messengers and Ms Sialeipata over the next three weeks. Ms Sialeipata called Ms Osborne and Mr Osborne “Mum” and “Dad.”
[25] Ms Sialeipata’s twin sister, Aleluia (Luia), flew in from Australia on 31 August 2019. She stayed with the Messengers for approximately a week and returned to Australia on 8 September 2019, after Hezekiah had been buried.
Police seek a further interview of Ms Sialeipata
[26] On 28 August 2019, Detective Sergeant Wilkinson and Detective Henry visited the Messenger residence to take a further statement from Ms Sialeipata. They were met by Mr Messenger who, after consulting Ms Sialeipata, told the Police officers Ms Sialeipata did not want to talk to them. However, Ms Sialeipata then joined the conversation and told the Police officers she would make a statement at a later date.
[27] Ms Sialeipata told the Police officers that she struggled sometimes to put what she was thinking into words and advised that Samoan was easier for her. Ms Sialeipata was told she would have the opportunity to give the interview in Samoan if she wished.
[28] Later the same day, after giving Mr Messenger what he said was the first account from Ms Sialeipata of what had happened on the night of 22 August 2019, Ms Sialeipata told Mr Messenger she would like to talk to the Police that day after all. Mr Messenger called Ms Messenger, who was in Christchurch, to let her know what
Ms Sialeipata had said. Mr Messenger then called Sergeant Wilkinson and told him Ms Sialeipata wanted to make a statement.
[29] Sergeant Wilkinson and Detective Henry returned to the Messenger residence that afternoon and began to take a further statement from Ms Sialeipata. Shortly after the interview began, Mr Osborne telephoned Mr Messenger and asked him to tell Ms Sialeipata not to talk to the Police and said that Mr Carpenter’s lawyers had advised against it. Mr Messenger relayed this information to Ms Sialeipata and told Sergeant Wilkinson that Ms Sialeipata would not be giving a statement. Ms Sialeipata said that about this time she received a text message from Ms Osborne telling Ms Sialeipata not to talk to the Police.
Post mortem examination; initial opinion on cause of death
[30] Dr Stables undertook a post mortem examination of Hezekiah on 25 August 2019. A Computer Tomography (CT) scan and x-rays were conducted on Hezekiah’s body. Samples of Hezekiah’s blood, liver and stomach contents were sent to ESR for analysis.
[31] There were also multiple injuries to Hezekiah’s body including a skull fracture and a number of rib fractures, as well as significant bruising to Hezekiah’s head and to other parts of his body.
[32] Dr Stables reached the initial option that Hezekiah’s death was due to brain swelling caused by blunt force trauma associated with the skull fracture and bleeding under the skull of the brain. Dr Stables forwarded this opinion to the Police some days after completion of the examination. Dr Stables also sought a further opinion on the cause of death.
Fabrice Carpenter charged with murder
[33] Following the Police receipt of Dr Stables’ opinion, Mr Carpenter was charged with murder.
[34] At a date not disclosed in evidence, Sergeant Hamilton, the Deputy Officer in Charge of the investigation into Hezekiah’s death, met with the Messengers and the Osbornes and told them that the suspected cause of Hezekiah’s death was that Hezekiah had been hit on the head by an object that had caused the skull fracture.
[35] Ms Sialeipata was not present at that meeting and did not meet separately with Sergeant Hamilton.
Second Police interview
[36] On 10 September 2019, Ms Sialeipata had a second interview with the Police. The interview was held at the 1-2-3 Centre in Whangārei and was recorded on DVD. The interview was conducted by Detective Faamausili, with Detective Henry monitoring the interview from another room. Ms Messenger was present in the interview as a support person. Ms Messenger had made that arrangement with Sergeant Hamilton, whom Ms Messenger knew personally. Ms Messenger insisted on being present, despite being told by Detective Henry that the presence of support persons was not customary at such interviews.
[37] Although Detective Faamausili and Ms Sialeipata conversed in Samoan before the interview began, the interview was conducted in English. Detective Faamausili said Ms Sialeipata was comfortable in English. Ms Sialeipata did not insist on the interview being conducted in Samoan. She said she realised the Police considered she would be all right in English and she was aware Ms Messenger would not be able to follow if the interview was in Samoan.
[38] In this interview, Ms Sialeipata gave an account of alleged abusive behaviour by Mr Carpenter to Hezekiah from the time Hezekiah was four months old. She also gave a more extensive account of what had happened on 22 August 2019. The latter account was generally consistent with that in her first interview.
[39] In this interview, Ms Sialeipata was told by Detective Faamausili that the preliminary cause of death was a skull fracture caused by an object, that is by Hezekiah’s head hitting something.
Messenger household goes to Ōakura Beach
[40] On Thursday, 12 September 2019, the Messenger household went to stay at the house at Ōakura Beach. That day, Mr Osborne visited Mr Carpenter in prison.
[41] The following day, 13 September 2019, Ms Sialeipata and Ms Messenger took Ms Sialeipata’s daughter to Whangārei hospital for a skeletal check. The same day, Ms Osborne and Mr Osborne visited Mr Carpenter in prison.
[42] There is conflicting evidence about what happened that evening, but it is clear that tensions among the adults of the household increased following the two prison visits. The following day, 14 September 2019, Ms Osborne and Mr Osborne left Ōakura. Mr Messenger told Ms Sialeipata that Ms Osborne believed Ms Sialeipata had not told the full story of what had happened on 22 August 2019.
[43] Later in the morning of 14 September 2019, Ms Sialeipata told Ms Messenger she wanted to hand herself in to the Police. Ms Messenger took Ms Sialeipata upstairs and asked her to explain. Mr Messenger was present. Ms Sialeipata told the Messengers that she had hit Hezekiah on the head with the shower head when she had showered Hezekiah and her daughter on the evening of 22 August 2019. Whether Ms Sialeipata said more than that is in dispute.
[44] Ms Messenger contacted Sergeant Hamilton by text and telephone to tell him of Ms Sialeipata’s admission. Initially, the Sergeant, who was on leave, suggested they make arrangements to meet the following day. Ms Messenger pressed for action that day and referred to the strains on the Osbornes, whose son was in jail.
[45] The Messengers, Ms Sialeipata and her daughter went back to the Messenger residence at Maungatapere to await further word. Along the way, they met the Osbornes who had been told of Ms Sialeipata’s admission. Later that day, the Messengers, Ms Sialeipata and her daughter travelled to the Whangārei Police station.
Third Police interview
[46] The third Police interview was conducted by Detective Sergeant Michelle Harris, who had had no prior involvement with the investigation into Hezekiah’s death.
[47] The interview was conducted at the Whangārei Police station and was recorded by DVD. No-one else was present in the interview room. Before the formal interview began, Sergeant Harris advised Ms Sialeipata of her rights under the New Zealand Bill of Rights Act and asked if Ms Sialeipata had understood. Ms Sialeipata said, “Yes, I am looking forward to telling my truth.”
[48] In this interview, Ms Sialeipata said that everything she had said about Mr Carpenter Fabrice was the reverse and that she had hit Hezekiah on the head with the shower head when she had been showering Hezekiah and her daughter after dinner on the night of 22 August 2019.
[49]Following the interview, Ms Sialeipata was taken into custody.
Subsequent developments
[50] On 15 December 2019, the Police seized the shower head from the Raumunga address.
[51]On 16 September 2019, Ms Sialeipata was charged with murder.
[52] On 17 September 2019, the murder charge against Mr Carpenter was withdrawn. Mr Carpenter subsequently pleaded guilty to assault of a child by striking Hezekiah’s chest three times with a closed fist and was dealt with by the Court.
[53] In July 2020, Dr Stables received a report from a specialist neuropathologist who considered that the changes in Hezekiah’s brain had been caused by Hezekiah’s heart stopping after trauma and that trauma to Hezekiah’s chest had caused his heart to go into an abnormal rhythm and then to stop. That is, trauma to Hezekiah’s chest and not a blow to the head had caused Hezekiah’s death.
[54]On 13 November 2020, the current charges were laid.
[55] On 18 December 2020, the murder charge against Ms Sialeipata was withdrawn.
Medical evidence
[56] Dr Stables’ evidence was that Hezekiah had been a healthy child, although a microscopic examination of Hezekiah’s heart indicated that Hezekiah may have had a viral infection known as myocarditis. Dr Stables said Hezekiah had a number of injuries as follows:
(a)Multiple bruises to the forehead which Dr Stables considered had been caused by blunt force trauma in more than one event, probably about two days prior to Hezekiah’s death;
(b)Two separate bruises on the left temple caused by one or two blunt force traumas, that may have occurred less than a day prior to Hezekiah’s death;
(c)Parallel bruises on the left cheek, one in an inverted L configuration, caused by one or two blunt force traumas;
(d)Multiple areas of bruising to the scalp: a bruise on the upper part of the left side left side, a cluster of bruises just behind the left ear; a bruise on the back of the left side of the head; a small cluster of bruising and a separate bruise on the right side of the head;
(e)A skull fracture with a roughly circular shape, approximately 1.5 by 1.8 centimetres and slightly depressed, caused by blunt force trauma of moderate to severe force, which was not recent and not acute and probably occurred between two to four weeks prior to Hezekiah’s death;
(f)Evidence of fresh bleeding just under the fracture, which suggested there was possibly another episode of trauma caused by a separate more
recent trauma, probably occurring at around the time of Hezekiah’s death;
(g)Multiple rib fractures: four on the right side of the chest with evidence of healing around them; and evidence of healing fractures to seven ribs on the left side of the front of the chest and six ribs on the right side of the front of the chest where the bone meets cartilage; and
(h)Bruising to the right foot.
[57] The CT scan also showed a fracture to the base of the thumb on the left hand which was not identified in the physical examination.
[58] Dr Poulsen said no alcohol had been detected in Hezekiah’s blood. However, tetrahydrocannabinol or THC had been detected in the blood as well as THC-acid, a metabolite of THC.
[59] There was not enough blood available to determine an accurate level of THC but it was at least 20 micrograms per litre. Dr Poulsen noted that, for comparison purposes, a blood level of 20 micrograms per litre in a sample of blood from a living adult would be consistent with smoking the equivalent of a single cannabis cigarette within about one hour of the sample being taken.
Ms Sialeipata’s personal circumstances
[60] Ms Sialeipata is 32 years old. She was born in Samoa to two Samoan parents. She has a number of siblings, including her twin sister, Luia, with whom she grew up. For the first 14 years of her life, Ms Sialeipata spoke and was educated in Samoan.
[61] In 2004, Ms Sialeipata and Luia moved to Australia and, at a certain point, commenced working. Ms Sialeipata met Mr Carpenter at the meat factory where they both worked. Mr Carpenter, who is a New Zealand citizen, and Ms Sialeipata married in 2009. They were both around 20 years old.
[62] In 2015, Mr Carpenter was deported to New Zealand from Australia and Ms Sialeipata came with him. They stayed initially in Auckland.
[63]Your daughter was born in Auckland in 2017.
[64] Three weeks after your daughter’s birth, the family moved to Whangārei where Mr Carpenter has family. They stayed initially with one of Mr Carpenter’s uncles and then moved into the Raumunga address.
[65]Hezekiah was born in Whangārei on 13 March 2019.
[66] Ms Sialeipata has no family in Whangārei. She has not worked while living in Whangārei. Mr Carpenter worked for three days a week in traffic management. He also began a course to train to be a mechanic.
The Police interviews given by Ms Sialeipata
First Police interview: 22 August 2019
[67] In the statement taken at this interview on the night Hezekiah died, Ms Sialeipata described the activities of herself, Mr Carpenter, her daughter and Hezekiah that day.
[68] Ms Sialeipata said that after dinner, she had a shower with the two children and dressed them. After the shower the family had been together in the living room. She said Hezekiah started crying as she was carrying him around. She gave Hezekiah to Mr Carpenter, who was sitting on the couch, to try and settle Hezekiah and get him to stop crying.
[69] Mr Carpenter cradled Hezekiah in his arms and had hit Hezekiah on the chest to try to shock him to stop crying. Ms Sialeipata said she had not really been paying attention but had heard a burp noise that she had not heard before. She said Mr Carpenter had been too rough and it was too hard. She said Mr Carpenter told her he had hit the baby in the middle of the chest area. She did not know if he showed her an open or a closed fist.
[70] Ms Sialeipata said she had taken Hezekiah from Mr Carpenter, that Hezekiah was not breathing properly and that she had tried to revive him by tapping his face and then putting him in the shower after turning the water to warm and stripping off Hezekiah’s clothes and nappy. Hezekiah was not breathing, and Mr Carpenter had then got into the shower with Hezekiah and started mouth to mouth resuscitation. He had also told Ms Sialeipata to call the ambulance.
[71] Ms Sialeipata said Hezekiah had a bruise on his forehead. She said that had happened the previous day when he was in a toy wooden chair with wheels. She said her daughter had been pushing him and he had fallen out and hit his head.
Second Police interview: 10 September 2019
[72] Shortly after the interview began, Detective Faamausili asked Ms Sialeipata to tell her what happened on 22 August 2019, from the morning through to the night time. In response, Ms Sialeipata said she wanted to go back a bit more, to when Hezekiah was four months old when, she said, Mr Carpenter had begun doing a routine or workout with Hezekiah. She said witnessing “all that” broke her heart but she could not do anything about it.
[73] Ms Sialeipata said her relationship with Mr Carpenter had become increasingly worse as he had become addicted to drugs which he took each day to be calm and to relax. Ms Sialeipata said Hezekiah was scared of Mr Carpenter, who would hurt him when doing the workouts, and that Hezekiah would cry and that she lived in fear.
[74] Ms Sialeipata gave an account of things she said Mr Carpenter did to Hezekiah. These included:
(a)Lying on top of Hezekiah and crushing him down until he ran out of breath;
(b)Putting his hands arounds Hezekiah’s neck and choking him until he ran out of breath, then dropping Hezekiah on the floor and smacking him to bring him around;
(c)Holding Hezekiah face outwards and squeezing his chest hard;
(d)Throwing Hezekiah in the air, sometimes hitting his head on the ceiling;
(e)Punching Hezekiah like a boxing bag;
(f)Punching Hezekiah’s backside while Hezekiah lay on his belly on the ground to the point that Hezekiah’s head hit the television cabinet;
(g)Knocking his closed fist on Hezekiah’s head; and
(h)Biting Hezekiah’s feet.
[75] Ms Sialeipata gave a more extensive account of what had happened on 22 August 2019, including the amount of time Mr Carpenter had spent playing Xbox while Ms Sialeipata had cared for the children and prepared food for the family.
[76] Ms Sialeipata said she had showered with her daughter and Hezekiah after a family dinner of fish and chips but did not say that anything untoward had happened while they were being showered. The family had been together in the living room and Ms Sialeipata had handed Hezekiah to Mr Carpenter and had started watching television.
[77] Ms Sialeipata said that when she passed Hezekiah to Mr Carpenter he was crying “… because he know that every time I give him to Fabrice he always cry because he’s, he’s scared. He’s always scared of his father.”
[78] Ms Sialeipata said she had not been paying attention to Mr Carpenter but out of the corner of her eye she saw Mr Carpenter hit Hezekiah really hard on the chest. Ms Sialeipata had asked Mr Carpenter what had happened, and he had told her what he had been doing.
[79] Ms Sialeipata saw that Hezekiah was having difficulty breathing and had asked Mr Carpenter to pass Hezekiah to her. She could feel Hezekiah’s body was different and was fighting for breath. Mr Carpenter asked Ms Sialeipata to pass Hezekiah back
to him and told her to run a cold shower, which she did. She then stripped off Hezekiah’s clothes and nappy and got into the shower with him. Mr Carpenter then took off his clothes and took Hezekiah and told Ms Sialeipata to call the Ambulance.
[80] Ms Sialeipata responded to questions from Detective Faamausili about the alleged abuse of Hezekiah by Mr Carpenter and about the injuries to Hezekiah that had been identified in the post mortem examination, including the skull fracture, which, Detective Faamausili told Ms Sialeipata, had been identified as the preliminary cause of death. Ms Sialeipata suggested the fracture may have happened when Mr Carpenter had thrown Hezekiah into the air and he had hit the ceiling or when Hezekiah had hit the television cabinet after being punched while on the floor.
[81] Towards the conclusion of the interview, Ms Sialeipata said Mr Carpenter used to exhale cannabis smoke into Hezekiah’s mouth to stop him crying and put him to sleep. She also said Mr Carpenter had given Hezekiah cider to drink and, on one night, had given him half a cup of cider to drink.
Third Police interview: 14 September 2019
[82] In the third interview and in response to Sergeant Harris’s question as to what she had said to the Messengers at Ōakura that day, Ms Sialeipata said she had had a deep feeling inside her that was weighing her down, so she had decided to ask Ms Messenger what she had to do to turn herself in. She had then gone upstairs with Ms Messenger and said to both the Messengers, “Everything I said about Fabrice is reverse. Everything that I said about, that was all my doing.”
[83] Ms Sialeipata said that when the Messengers had asked what had caused Hezekiah’s death, she told them that she had taken the children into the shower, that she had had the shower head in her hand, that she was holding Hezekiah who was crying and she had said she had told the Messengers that she had “… just smack his head with the shower, you know.” She demonstrated her actions to Sergeant Harris with two downward motions of her right arm.
[84] Ms Sialeipata said she had been feeling jealous of Mr Carpenter and was not getting support from him and that she had taken out her anger on Hezekiah who looked
just like his father. She also referred to strains in her relationship with Mr Carpenter when they had been in Australia and that she had cheated on Mr Carpenter. She said she had killed their boy and there was no love in her relationship with Hezekiah.
[85] As Sergeant Harris’s request, Ms Sialeipata recounted the events of 22 August 2019. That account was generally consistent with the accounts given in the earlier interviews although with some variations.
[86] Ms Sialeipata gave a slightly fuller account of what had happened when she had showered the children after dinner. She said she had been angry with Mr Carpenter for playing his game most of the day when she took the children into the shower. She said she had been using the shower head to play water over Hezekiah. When he had cried, she had hit him with shower head and told him to stop crying. Again, she demonstrated two downward movements of her right hand from her elbow. She had then dried and dressed the children and put them in the living room. She said she had been feeling tired and angry. She had been walking with Hezekiah in her arms trying to put him to sleep. He was “not crying but … making that tired noise” and she had given him to Mr Carpenter who was sitting on the couch.
[87] Again, Ms Sialeipata said she had not been paying attention after she had handed Hezekiah to Mr Carpenter but did not say she saw Mr Carpenter do anything. She did say, however, that she heard a burp and said to MrCarpenter, “what the heck.” She said she had taken Hezekiah from Mr Carpenter, that Hezekiah’s body was “not the same”, that she had handed Hezekiah back to Mr Carpenter who had tried to revive Hezekiah by smacking his face. At Mr Carpenter’s direction, she had run a cold shower. She had stripped off Hezekiah’s nappy and clothes and had taken him into the shower and had then handed him over to Mr Carpenter and had called the Ambulance.
[88] Later in the interview, Ms Sialeipata gave a more detailed but largely consistent account of what had happened after she had showered the children and handed Hezekiah to Mr Carpenter. Ms Sialeipata said she did not know what happened when Mr Carpenter had Hezekiah in his arms but she did know that Mr Carpenter had done something to stop Hezekiah crying. She referred to the burp noise which had got her attention. At Mr Carpenter’s direction she had put on the cold shower and had put
Hezekiah under the shower but had put the water on Hezekiah’s chest because she did not know if it was a good idea to have cold water on his head.
[89] At Sergeant Harris’s request, Ms Sialeipata gave three further accounts of what had happened when she had showered the two children after dinner. In these accounts, Ms Sialeipata said Hezekiah had started crying after she had knocked the shower mixer with her elbow which had caused the water to turn cold. She had turned the water back to warm and had told Hezekiah to stop crying. As Ms Sialeipata was giving these accounts, she showed a number of downward motions of her arm from the elbow but she also showed more a shorter tapping motion.
[90] Ms Sialeipata told Sergeant Harris she had hit Hezekiah about four times on the back of his head with the back of the shower head but said it was a tapping action. She said after the shower, Hezekiah had been making a humming noise, as if he was close to “passing out.” She also said her action was like knocking on a door. When told by Sergeant Harris that there would have had to have been a blow of some force to have caused the skull fracture, Ms Sialeipata said that the last hit was a bit too much pressure on Hezekiah and was just like a proper hit rather than the tap at the start.
[91] Sergeant Harris asked Ms Sialeipata about how she had been feeling the day Hezekiah had died and about her relationship with Mr Carpenter. Ms Sialeipata said she had been exhausted, tired, and had just wanted to relax, and that Mr Carpenter had played his game and smoked “weed” all day and had been no help with the children. Even so, she said that her relationship with Mr Carpenter was good. She had found it hard at times when she was tired with caring for the children and did not ask for help, but the relationship had got better when they had moved to New Zealand and “left everything behind.”
[92] Ms Sialeipata had said Mr Carpenter had been doing well with his training to be an engineer mechanic and had been happy. She acknowledged getting angry when tired, and feeling like she had not achieved much other than looking after the children. She said she was jealous that Mr Carpenter was getting smarter and she was not.
[93] Sergeant Harris asked Ms Sialeipata how she had taken out her jealous feelings on Hezekiah. Ms Sialeipata said she loved her son, but he looked just like his father and at times Hezekiah looked at her as if he understood her and that she would talk to him as if she was talking to Mr Carpenter, even though she hardly shared her thoughts with Mr Carpenter. Sometimes she would get angry at Hezekiah because of Mr Carpenter and she would play rough with Hezekiah.
[94] When asked to explain what she would do with Hezekiah, Ms Sialeipata said when she was tired she would give him a “cone” to make him tired and fall asleep and to get him “stoned”. Other examples were biting Hezekiah’s feet, throwing him around trying to scare him and shaking him. She added that sometimes, “like most of the time,” she played with him like mums play with their kids – tickling him, biting his nose, having his hand in her mouth, pretending to eat him up, using her lips. Ms Sialeipata said sometimes her daughter would copy her and would bite Hezekiah’s body, face and hands.
[95] Ms Sialeipata said she had done the rough stuff to Hezekiah most days since he turned four months old.
[96] When asked about bruises to Hezekiah’s body, Ms Sialeipata said the bruise to Hezekiah’s forehead and nose had happened a couple of days before Hezekiah had died when she had left Hezekiah in her daughter’s wooden wheel chair while she had rushed to the toilet. Her daughter had pushed the chair but its wheels had caught in a tea towel and Hezekiah had fallen out and landed on his face. Ms Sialeipata also said the bruising on Hezekiah’s cheek were teeth marks from a bite by her daughter, that the bruise on Hezekiah’s foot was where she had bitten him, and that bruises around Hezekiah’s ribs had come from her tickling him too roughly.
[97] Towards the end of the interview, Sergeant Harris referred to the second Police interview and asked Ms Sialeipata if she wanted to talk about how her account of what Mr Carpenter had done to Hezekiah had changed. Ms Sialeipata said, “… like I say, everything I said about Fabrice is the, you know, the reverse, it’s all my doing.” Sergeant Harris then asked Ms Sialeipata about specific instances based on the notes of the second interview.
[98] When asked about lying on top of Hezekiah and crushing him down, Ms Sialeipata said the only thing Mr Carpenter “was doing” to Hezekiah was when, as Ms Sialeipata demonstrated, Mr Carpenter would hold Hezekiah facing outwards and would wrap his arms around him, and that one day when he was doing that, she remembered him saying he heard a crack from Hezekiah’s body.
[99] Ms Sialeipata said the choking was not part of it and she had made that up, but that the punching on the bum and lying on top of Hezekiah while talking to him had happened. She said she had punched him on the bum, on his nappy, when he was having tummy time, and he would slide and hit the carpet. She showed how she would stretch Hezekiah’s legs in and out while giving him a work out, but that she did not know at the time it was hurting Hezekiah. She also spoke about crawling on top of Hezekiah when he was on the floor and joking with him and throwing him up and catching him. She said one time his head had hit the roof and he did not cry. She also said she would throw Hezekiah onto a mattress, that it was fun and that her daughter would sometimes join in by jumping onto the mattress and tossing pillows.
[100] Ms Sialeipata said she would not do anything rough with her daughter except give her a little smack to her hands or her bum. She admitted to getting angry one time to the point of tears and that she knew she was too rough with her children sometimes, especially Hezekiah, but that she had never hurt her daughter that bad.
[101] At the conclusion of the interview, Sergeant Harris asked Ms Sialeipata to explain what she had meant when she had spoken of the weight of everything getting to her. Ms Sialeipata responded as follows:
I just um, you know I was just um, the night when I, when they brought me here, they, I told them you know like what happened. And then, um, after that you know I, you know I was just, have all this confusion feeling and it just, just wasn’t sure. Like I, you know just like, trying to see you know the whole picture here.
Then um, and I can still feel that there is something, you know, there you know. That, when after I, every time when I say something to someone, you know I thought that was it but then you know I can still feel it in my gut that it is, you know. And you know, I try to remember and trying to pick up all the pieces, you know, and all the memories we have with our kids. And trying to, you know, put every pictures together, you know.
Because, and then um when I heard that you know, um, what actually killed him that’s you know and then that’s is, it scare me because um, I knew what would happen there but I was too scared to, you know, turn myself in. Didn’t want to lose my um, my um daughter. I was just trying to, you know, move forward. And then um every day when I trying to move forward and trying to go, you know, think ahead what’s, you know, what I want like for the best for her. It feels like it’s, you know, chasing me. It’s you know, weighing me down. …
Consideration of the charges
[102] Before considering the evidence as it relates to the individual charges, it is important to record that the task for the Court is not to decide whether Mr Carpenter or Ms Sialeipata was the perpetrator of the injuries suffered by Hezekiah. Mr Carpenter is not before the Court. My task is to decide whether I am sure that Ms Sialeipata committed the offences with which she has been charged. In making those decisions, I must assess Ms Sialeipata’s credibility, having regard to her own evidence and the evidence of other witnesses.
[103] I also record that Ms Sialeipata acknowledged in cross examination that she has changed her story over the course of the three interviews and has said that she had made some things up, particularly in the second and third interviews. That is, she lied in some aspects of those interviews.
[104] Ms Sialeipata’s evidence before the Court was generally consistent with the first interview, which was short and focused on events at the end of the evening of 22 August 2019. Ms Sialeipata’s evidence in Court was also consistent with a considerable part of the second Police interview, even though she accepted in Court that some parts of that interview were not true.
[105] Ms Sialeipata’s evidence in Court diverged most significantly from what she said in the third interview. There are aspects of that interview, however, that are also consistent with the first interview and with the second interview, as well as with Ms Sialeipata’s evidence in Court. Most notably, Ms Sialeipata said in all three interviews that Mr Carpenter hit Hezekiah hard on the chest the night Hezekiah died. This has been corroborated by Mr Carpenter’s guilty plea to the charge of assault on a child using a closed fist. Secondly, even in the third interview when Ms Sialeipata purported to take on responsibility for all the behaviour she alleged Mr Carpenter had
undertaken towards Hezekiah, she still said that Mr Carpenter used to wrap his arms around Hezekiah and that one day when he was doing that, she remembered him saying he heard a crack from Hezekiah’s body. While that account is not consistent with other accounts when Ms Sialeipata said she heard the crack herself, the essential allegation that Mr Carpenter engaged in an activity that caused the cracking sound is consistent across all three interviews and in her evidence in Court.
[106] For these reasons, in assessing the evidence, I have not assumed that all of what Ms Sialeipata said on one occasion was false and unreliable or that all of what she said on another occasion was accurate and reliable. I consider that on some occasions, Ms Sialeipata was giving what she considered to be an accurate account and that on others she made things up or embellished her account. The challenge for the Court has been in determining which aspects of her interviews and of her evidence are reliable. In that regard and in accordance with s 124(4) of the Evidence Act 2006, I must have regard to the reality that people lie for various reasons and that I should not necessarily conclude that, just because Ms Sialeipata lied with respect to some matters, she is guilty of the offences with which she has been charged.
[107] I have also taken into account that in assessing the reliability of and weight to be given to Ms Sialeipata’s evidence, I must be cautious if her evidence is the only evidence against Ms Sialeipata.
[108] In addition, I have taken into account the fact that, although Ms Sialeipata has been living in predominantly English-speaking environments for at least the last 12 years, English is her second language and she sometimes struggles to understand what is said in English and to express herself in English. I have also taken into account the fact that Ms Sialeipata gave some of her evidence in Samoan and through an interpreter, and that she followed the trial with the assistance of a communications assistant.
Charge 1: Assault
[109] Section 202C of the Crimes Act provides that a person is liable to imprisonment for a term not exceeding 5 years who:
(a)in assaulting any person uses any thing as a weapon; or
(b)while assaulting any person, has any thing with him or her in circumstances that prima facie show an intention to use it as a weapon.
[110]Section 2 of the Crimes Act defines “assault” to mean:
the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose;
[111]In Ah-Chong v R, the Supreme Court stated:9
In general, assault requires two intentional elements. First, the application of force must be intentional — an accidental or unintended application of force is not sufficient. Second, the person applying force must appreciate that the victim does not consent to the application of force, or at least be reckless as to that. This second requirement arises where the victim's consent to the application of force is a defence, so that there is no assault.
[112] The Crown submits that this charge is proven on the evidence of Dr Stables, Ms Messenger and the third interview of Ms Sialeipata.
[113] Ms Sialeipata said in evidence that, despite what she said in the third interview, she had never hit Hezekiah on the head with the shower head. She said she had made up the story of hitting Hezekiah on the head while in the shower as a result of the pressure she had felt from the Osbornes and the Messengers and because she was exhausted and could not bear how the Osbornes and the Messengers were looking at her.
Dr Stables’ evidence
[114] Dr Stables’ evidence was that the fracture to Hezekiah’s skull occurred between two to four weeks prior to Hezekiah’s death. Dr Stables was cautious about whether the bleeding below the fracture was caused by a second episode of trauma. After describing the swelling to the brain, Dr Stables said:
The only other significant internal finding was in fact just under this fracture there was some fresh bleeding which suggests that while we have a healing
9 Ah-Chong v R [2015] NZSC 83, [2016] 1 NZLR 445 at [40].
skull fracture, there’s possibly another episode of trauma on top of that which has caused those blood vessels in that region to bleed, so there’s been two episodes of trauma to that same region, one to cause the blood fracture and then one later at some other time, probably around this time of death, which has caused a little bit of bleeding there.
[115]Later, in response to a question from Mr Smith, Dr Stables says:
The further bleeding, well, as its healing, you get new blood vessels forming, and they’re quite delicate, and I think with another episode of trauma to that same region, those delicate blood vessels have now ruptured, …
[116] Of themselves, those statements do not provide a strong basis for concluding that there was another episode of trauma, or that, if there had been such an episode, it was caused by a blow from the shower head.
[117] One of Ms Sialeipata’s allegations in the second Police interview was that Mr Carpenter used to hit Hezekiah on the head with a closed fist. She repeated this allegation in her evidence to the Court. When being cross-examined by Mr Smith, Ms Sialeipata again said there were times when Mr Carpenter had knocked on Hezekiah’s head with his closed fist, using his finger joints.
[118] Given that evidence, if there was a second episode of trauma, there is at least one other possible cause of the fresh bleeding to Hezekiah’s skull under the fracture.
Ms Messenger’s evidence
[119] Ms Messenger’s evidence on this point is limited to the morning of 14 September 2019 when Ms Sialeipata talked to the Messengers in the lounge of the Ōakura beach house after Ms Sialeipata had told Ms Messenger she wanted to hand herself in to the Police. In response to Ms Messenger’s question, “So how did you do it?”, Ms Sialeipata said she had hit the baby on the head with “the shower thing.”
[120] While Ms Sialeipata’s statement is an admission against interest, the reliability of the statement to the Messengers depends on the reliability of Ms Sialeipata’s own evidence, as given later that day in her interview with Sergeant Harris.
Ms Sialeipata’s third Police interview
[121] Ms Sialeipata said a number of times in the third Police interview that she had hit Hezekiah on the back of the head with the shower head. However, even though the reason for the third interview was that Ms Sialeipata wanted to hand herself in and that the focus of interest at the time of the interview was on the cause of the fracture to Hezekiah’s skull, Ms Sialeipata was initially reticent in offering details of the alleged incident.
[122] The first time Ms Sialeipata described the incident, as she had told it to the Messengers, she said that she had smacked Hezekiah on the head with “the shower” and demonstrated this by two downward actions of her right hand. During this account and in the second account, Ms Sialeipata demonstrated a full movement of her arm from the elbow. However, as she was asked further questions by Sergeant Harris, Ms Sialeipata showed a much shorter action, with the movement being principally from her wrist in a tapping motion. She accompanied that action with a demonstration of having a conversation with Hezekiah as she chided him for still crying even though she had warmed the water. These later accounts appeared more realistic than the rather spare accounts Ms Sialeipata gave earlier in the interview.
[123] Taken on its own, on the key question of what happened in the shower, the third Police interview shows behaviour that is consistent with a young tired mother being unnecessarily rough with her child but not hitting him with the kind of force that would have endangered his life. Even Ms Sialeipata’s admission that the fourth blow was “a proper hit” falls some way short of indicating that the blow would have cracked Hezekiah’s skull or endangered his life.
[124] When Ms Sialeipata gave this interview, she and the Police (as well as the Osbornes and the Messengers) had understood that Hezekiah had died as a result of Hezekiah’s head being hit by an object, whether as a blow to the head or the head otherwise coming into contact with an object. I consider it is likely that in her initial accounts to Sergeant Harris Ms Sialeipata tailored her story to fit with that incorrect understanding.
[125] However, in her evidence in Court Ms Sialeipata denied ever hitting Hezekiah on the head and says she only admitted hitting Hezekiah because of the pressure exerted on her by the Osbornes and the Messengers.
[126] Mr McKean submitted that the Messengers and Osbornes were controlling. Mr Smith submitted that Ms Messenger, in particular, was supportive. I do not consider that the two submissions are mutually exclusive.
[127] I accept that the intentions of the Messengers to support Ms Sialeipata and her daughter after Hezekiah’s death were genuine. However, it must have been very difficult and uncomfortable for Ms Sialeipata to be in reasonably remote locations, at Maungatapere and Ōakura, where her only companions were the mother and step father of her husband, who was suspected of having killed their child, and the good friend of the mother, and that good friend’s husband. In addition, two of those people were essentially unknown to Ms Sialeipata, she had no family or friends living in the vicinity and her twin sister was able to stay only a week.
[128] That difficulty and discomfort would have been exacerbated by the determination of the Osbornes and the Messengers to find reasons for defending Mr Carpenter, as Ms Messenger said in her evidence.
[129] Another consideration that would have added to Ms Sialeipata’s difficulty and discomfort is the apparent assumption on the part of the Osbornes and Messengers that they had the right and responsibility to make decisions about the future of Ms Sialeipata and her daughter. Ms Messenger referred a number of times in her evidence to the decisions that the Osbornes and the Messenger were making or planning to make on behalf of Ms Sialeipata and her daughter.
[130]For example, when being cross-examined, Ms Messenger said:
… our goal was to make a plan for [redacted] and [Ms Sialeipata] and this just changed that plan. We had a pretty good plan in place by then.
[131] The “this” to which Ms Messenger was referring was the difference in the accounts of Mr Carpenter and Ms Sialeipata over what happened on 22 August 2019.
[132] It is also clear from Ms Messenger’s evidence that she has strong views about what had happened to Hezekiah, when it happened and who was responsible, even though she had had nothing to do with the parties at the time of the events in question. This was particularly apparent in Ms Messenger’s insistence on a number of occasions that the ill-treatment of Hezekiah had started when he was eight weeks old and not at four months as Ms Sialeipata said consistently in her Police interviews and in her evidence.
[133] By the time the Messenger household had gone to Ōakura, Ms Sialeipata had given her second Police interview and the Osbornes and the Messengers had been told by Sergeant Hamilton that the suspected cause of death was a blow to Hezekiah’s head. Whatever the sequence of those two events, it is clear that by the time they were all in Ōakura, the Osbornes and the Messengers were focused on apparent discrepancies between the accounts of Mr Carpenter and Ms Sialeipata as to what happened on 22 August 2019.
[134] It is apparent that the accounts that Mr Carpenter gave to Mr Osborne on 12 September 2019 and to Mr and Mrs Osborne on 13 September 2019 were different from the account that Ms Sialeipata had given to some of the Messenger household previously and to the Police at the second Police interview.
[135] In cross-examination, Ms Messenger said the two “stories” of Mr Carpenter and Ms Sialeipata “were not quite the same, but about the same thing.” Later, Ms Messenger said:
… we still had all these unknowns and all this cast doubt on both of them and on each other, and we really wanted to find out why and how this baby died because otherwise we can’t get on with our grieving and that still wasn’t very clear at this point how he died, and we did not blame [Ms Sialeipata] for his death because we did not know how this baby died at this point, we just knew there was a piece of the puzzle missing.
[136]In his witness statement, Mr Messenger said:
Then [Mr and Mrs Osborne] have got very heated saying things like … all we want to do is find out what the truth is.
[137] The focus of the Osbornes and the Messengers was apparent. Mr Carpenter had admitted hitting Hezekiah on the chest; he had not admitted hitting him on the head. Nor was it alleged by Ms Sialeipata, who was the only other adult present, that Mr Carpenter had hit Hezekiah on the head. In those circumstances, it is unsurprising that the Osbornes and the Messengers were questioning Ms Sialeipata’s account.
[138] I am satisfied that by the time the Messenger household was at Ōakura, Ms Sialeipata would have been under considerable pressure and suspicion. That pressure was on top of the stress that Ms Sialeipata would have been under following the death of Hezekiah and the arrest of Mr Carpenter. I accept that that pressure and stress would have motivated Ms Sialeipata to look for a way to extricate herself from the situation she was in.
[139] I am not persuaded, however, that Ms Sialeipata would have fabricated the story of hitting Hezekiah with the shower head if there had been no factual basis for that story. It strains credulity to accept that she would have confessed to having struck her son on the head at a time when she knew the Police believed that Hezekiah had died as a result of a blow or other trauma to his head. However pressured and stressed Ms Sialeipata was, she knew that such a confession would lead to her arrest and likely imprisonment, and her separation from her daughter. I accept Ms Messenger’s evidence, that prior to coming into the Whangārei Police Station on 14 September 2019 for the third Police interview, Ms Sialeipata had put her affairs in order in anticipation of being arrested.
[140] For these reasons, I am satisfied that the only credible explanation for Ms Sialeipata’s admissions to the Messengers and to the Police on 14 September 2019 that she had hit Hezekiah on the head with the shower head was that she had indeed done just that.
[141] In making those admissions, Ms Sialeipata also believed she was admitting to having killed Hezekiah. She said three times in the third Police interview that she had killed her son. It was 10 months later that the second opinion on the cause of death concluded that trauma to the chest and not a blow to the head had caused Hezekiah’s death. To that extent, Ms Sialeipata had confessed to a crime she did not commit. I
consider she did so because she believed that a blow from the shower head was the only explanation that fitted what was then understood to be the medical evidence.
[142] Having heard the evidence and, in particular, having reviewed the video of the third Police interview, therefore, I am sure that Ms Sialeipata did hit Hezekiah with the shower head when they were in the shower on the evening of 22 August 2019. I am far from sure, however, that she did so with any intention to hurt Hezekiah. I consider that Ms Sialeipata’s later accounts to Sergeant Harris are likely to be a more accurate account of what took place when Ms Sialeipata was in the shower with Hezekiah – that she tapped him on the head with the shower head in a rough but reproving way.
[143] Because I am sure that Ms Sialeipata did tap Hezekiah on the head with the shower head, I must find Ms Sialeipata guilty of assault with a weapon. Even if I am not satisfied that Ms Sialeipata intended to hurt Hezekiah, that does not negate the charge. Section 202C of the Crimes Act requires only that an object is intentionally used to apply force to another person.10 As is well accepted, even the lightest of touches can constitute an application of force and, thus, assault. 11 Here, s 202C was plainly met when the shower head was used by Ms Sialeipata to tap Hezekiah – a five- month old baby – on the head.
[144]For these reasons, I find Ms Sialeipata guilty on Charge 1.
Charge 2: Ill-treatment or neglect of a child by physical ill-treatment
[145] Section 195 of the Crimes Act, which is the basis of Charges 2, 3, 5 and 6, provides:
(1)Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to
10 See Henare v Police HC Palmerston North CRI-2006-454-34, 12 December 2006 at [32],which accepted that a washing basket qualified as a weapon for the purposes of this section.
11 Police v Bannin [1991] 2 NZLR 237 (HC), (1991) 7 CRNZ 55 at 244; and Police v Raponi (1989) 5 CRNZ 291 (HC) at 296.
perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
(2)The persons are—
(a)a person who has actual care or charge of the victim; or
(b)a person who is a staff member of any hospital, institution, or residence where the victim resides.
(3)For the purposes of this section and section 195A, a child is a person under the age of 18 years.
[146] The ill-treatment on which the Crown relies for the second charge is that Ms Sialeipata:
(a)Ground her fists into Hezekiah’s sides;
(b)Lay on top of Hezekiah and crushed him down;
(c)Threw Hezekiah into the air so that his head hit the ceiling;
(d)Hit Hezekiah in the head;
(e)Bit Hezekiah;
(f)Punched Hezekiah in the bottom with sufficient force to shunt him along the floor into objects; and
(g)Shook Hezekiah.
[147] It was not argued that these actions were not conduct likely to cause suffering, injury, adverse effects to Hezekiah’s health or that such conduct was a major departure from the standard of care to be expected of a reasonable person. The essential question was whether Ms Sialeipata engaged in such conduct.
[148] The Crown case under this charge and under Charge 3 is that Ms Sialeipata was the one who carried out the actions that caused injury to Hezekiah. The Crown did not allege under these charges that Ms Sialeipata was a knowing participant in actions by Mr Carpenter by failing to take steps to intervene.
[149] The medical evidence shows that Hezekiah had multiple injuries and bruises that could have been caused by some or all of the alleged actions. It is not necessary, however, to correlate those alleged actions to the injuries and bruises. In her evidence, Ms Sialeipata accepted that Hezekiah had:
(a)Had fists ground into his sides;
(b)Been crushed down by a parent lying on top of him;
(c)Been thrown into the air so that his head hit the ceiling;
(d)Been hit in the head;
(e)Been punched in the bottom so that he hit the television cabinet; and
(f)Been shaken.
[150] In the second Police interview and in her evidence before the Court, Ms Sialeipata said that these actions had been performed by Mr Carpenter. However, Ms Messenger’s evidence is that Ms Sialeipata told her that she had been the one who had done all these things to Hezekiah. In the third Police interview, Ms Sialeipata said or implied that she had been the one who did these things. In her evidence, Ms Sialeipata denied that she had done anything to injure Hezekiah.
[151] For completeness, I note that in her evidence Ms Sialeipata accepted that she had lain in top of Hezekiah while he lay on the floor, that she had thrown Hezekiah in the air, and that she had tickled his sides. However, Ms Sialeipata also said she had supported her own weight while she talked to him while he was underneath her, that Hezekiah had not hit the ceiling when she had thrown him in the air, and that she had not bruised his sides when tickling him.
The Plunket nurse visit in June 2013
[152] The Plunket nurse said that when she called at the Raumunga address on 13 June 2019, Hezekiah was happy and content and that, although he had some
bruising on one cheek and in the area of his upper thigh, he appeared to be content with lots of smiles. The Plunket nurse also recalled that she had told other Plunket staff after the visit that she had observed eye contact, smiles and cooing at the baby which were all positive things.
[153] While the Police charges relate to events that took place after that visit, the fact Hezekiah was happy and healthy in mid-June 2013 when he was three months’ old indicates that Ms Messenger’s insistence that the ill-treatment began when Hezekiah was eight weeks old must be treated with considerable caution.
What Ms Sialeipata was saying to others and to the Police prior to 14 September 2019
[154] In the first Police interview on 22 August 2019, Ms Sialeipata did not make any reference to ill-treatment of Hezekiah other than describing the blows to Hezekiah’s chest that were delivered by Mr Carpenter, who subsequently pleaded guilty to and was convicted of assault with a closed fist. Mr Carpenter’s plea and conviction also establish that at least one of Hezekiah’s parents was capable of ill- treating their infant son.
[155] On 29 August 2019, Ms Sialeipata talked to Mr Messenger about what happened on 22 August 2019. She did not refer to earlier incidents of ill-treatment but, according to Mr Messenger’s witness statement, had said something about trying to put Hezekiah under a cold shower to revive him “because it had worked before.” In her evidence, Ms Sialeipata denies ever putting Hezekiah under a cold shower before that night. As already discussed, it is difficult to assess the reliability of Mr Messenger’s witness statement and the weight to be given to it.
[156] Ms Messenger and Ms Sialeipata both said that at some point in the week of 2 September, Ms Sialeipata told Mr Osborne, Ms Messenger and Luia about the workouts Mr Carpenter had given to Hezekiah to make the baby strong. In her evidence, Ms Messenger says Ms Sialeipata talked about times that Mr Carpenter had pushed his fists into the side of Hezekiah’s ribs and hearing the ribs break.
[157] In the second Police interview, Ms Sialeipata also said that Mr Carpenter had lain on top of Hezekiah and crushed him down, had thrown Hezekiah into the air and
had hit his head on the ceiling, had hit Hezekiah’s head with his knuckles, had punched Hezekiah’s backside and propelled him into the television cabinet and had bitten Hezekiah’s feet. In cross examination, Ms Messenger said that what Ms Sialeipata had said in that second Police interview, which she attended, “was exactly what [Mr Osborne] and me and Luia listened to on Monday or Tuesday night.”
[158] It is clear, therefore, that the account that Ms Sialeipata gave to others and to the Police up until the third Police interview was generally consistent and placed responsibility for the physical ill-treatment of Hezekiah on Mr Carpenter.
[159] There is no suggestion in the evidence that up until 14 September 2019, the Messengers and the Osbornes disbelieved most of Ms Sialeipata’s account, even though the Osbornes had met with Mr Carpenter on 12 and 13 September 2019 while the Messenger household was based in Ōakura. In Ms Dore’s cross examination of Ms Messenger, the following exchange took place regarding the discussions that the Osbornes and the Messengers had had at Ōakura:
Q.And there was a comparison between what [Mr Carpenter] had said to his stepfather [Mr Osborne] and what [Ms Sialeipata] had been telling the rest of you.
A.Um, not everything, just a couple of incidences, un where the story was just slightly different. Can I make an example?
Q.Well, there’s [Mr Osborne] you said was casting doubt on what Ms Sialeipata had been telling.
A. The two stories were not quite the same, but about the same thing.
[160] As already discussed, the focus of interest at that time was on who was responsible for Hezekiah’s death given the then current understanding that the cause of death was trauma to Hezekiah’s head. That was the “piece of the puzzle missing” as described by Ms Messenger. However, I consider it is highly unlikely that Ms Messenger would have described the accounts of Mr Carpenter and Ms Sialeipata as being “slightly different” and “not quite the same” if Mr Carpenter had been saying to the Osbornes that Ms Sialeipata was responsible for the injuries to Hezekiah while Ms Sialeipata was telling the Messengers and the Osbornes that Mr Carpenter was responsible for those injuries.
[161] My conclusion, therefore, is that the accounts of Mr Carpenter and Ms Sialeipata, in as much as they addressed issues other than the cause of death, were not substantially different. That is, Mr Carpenter had not denied performing workouts on Hezekiah or being responsible for the injuries suffered by Hezekiah. I reach that conclusion notwithstanding Ms Sialeipata’s admission in the third Police interview and in her evidence that she had fabricated some aspects of her account in the second Police interview.
What Ms Sialeipata said to the Police on 14 September 2019
[162] In her third interview, Ms Sialeipata took general responsibility for all the things she had said Mr Carpenter had done to Hezekiah (“everything I said about Fabrice was reverse”). Early in the interview, she also took specific responsibility for some of the actions previously attributed to Mr Carpenter, notably biting Hezekiah’s feet, throwing him around and shaking him. However, it was notable that, after describing and demonstrating those actions, the tone and character of Ms Sialeipata’s account changed. She said that, most of the time she did what most mums do to their kids: tickling him, biting his nose, putting his hand in her mouth and telling him she was going to eat him up because he was “yummy.” This was not an account of someone who regularly ill-treated her infant child.
[163] Later in the interview, the tone changed again as Ms Sialeipata said she had done rough stuff to Hezekiah almost every day, and she had done it because she was jealous of Mr Carpenter. However, further along in the interview, and even after saying again that everything she had said about Mr Carpenter was the reverse and had been all her doing, when asked to explain what Mr Carpenter had done to Hezekiah, Ms Sialeipata had demonstrated Mr Carpenter wrapping his arms around Hezekiah and had said she remembered him telling her that he had heard a crack from Hezekiah’s body.
[164] This is different from the account in the second Police interview where Ms Sialeipata said she heard a crack after Mr Carpenter had dug his knuckles into Hezekiah’s side. In her evidence, however, Ms Sialeipata said there were two occasions where she heard such a crack or a snap – once when Mr Carpenter had
wrapped his arms around Hezekiah and once when he had dug his knuckles into Hezekiah’s side. For present purposes, the significant point is that Ms Sialeipata still attributed responsibility for the incident to Mr Carpenter, even as she purported to take responsibility for everything that had happened to Hezekiah.
[165] It is also significant that when Ms Sialeipata described her punching Hezekiah in the backside, she said she had punched the nappy and he had slid and hit the carpet. She did not say he hit the television. Also, when describing crawling over Hezekiah while he was lying on the floor and when throwing him in the air, Ms Sialeipata described rough but playful treatment and said she did not do it out of anger. I accept Mr McKean’s submission in closing that these admissions are more consistent with Ms Sialeipata playing with Hezekiah without an intent to apply force.
[166] In addition, and as Mr McKean submitted, it is significant that in the third Police interview Ms Sialeipata did not say she saw Mr Carpenter hit Hezekiah in the chest on the evening of 22 August 2019 or that Mr Carpenter had then showed her what he had done, even though she gave two accounts of those events during the interview. Those are significant omissions, given that the breathing difficulties that led to Hezekiah’s death began while he was in Mr Carpenter’s arms and given that Mr Carpenter later pleaded guilty to assaulting Hezekiah by hitting him in the chest. I infer that these omissions were deliberate and part of Ms Sialeipata’s taking responsibility for Hezekiah’s death even when she would have known Mr Carpenter’s actions had been at least partly responsible for what happened that night.
[167] In her evidence in Court, Ms Sialeipata denied doing any of the rough things to Hezekiah for which she had accepted responsibility in the third Police interview. She said she had taken on that responsibility because her head was all over the place and she thought she should give people what they wanted to hear. She maintained that position consistently through cross-examination, accepting that Hezekiah had been ill- treated in the ways the Crown alleged but denying that she was the one who had delivered the ill-treatment.
[168] As I have already found, Ms Sialeipata was under considerable pressure and stress when she gave the third Police interview. However, unlike Ms Sialeipata’s
admission regarding the shower head, Ms Sialeipata’s acceptance of responsibility for the earlier injuries to Hezekiah was not needed to fill in any missing piece of the puzzle. It would have been quite possible for Ms Sialeipata to have admitted hitting Hezekiah with the shower head without taking responsibility for actions that caused the other injuries. To that extent, Ms Sialeipata’s acceptance of that responsibility suggests her admission can be regarded as reliable and credible.
[169] At the same time, it is also possible and credible that, having accepted that she must have been responsible for Hezekiah’s death because she hit him with the shower head, Ms Sialeipata decided she should also accept responsibility for those other actions, even if she did not commit all or any of them. Ms Sialeipata’s omission of Mr Carpenter’s actions prior to Hezekiah’s death from her account adds further credence to this analysis. Ms Sialeipata may have taken on this responsibility for a number of reasons. These include:
(a)The pressure and stress already referred to;
(b)Feelings of guilt that her son had died and she may have been the one who killed him;
(c)Feelings of guilt that she may have been too rough with Hezekiah even if she had not killed him or caused the injuries and bruising;
(d)Feelings of guilt that she had allowed Hezekiah to get seriously hurt, even if she was not the one who had inflicted the injuries;
(e)Feelings of guilt over what had happened in Australia;
(f)A concern that if she was going to jail because she had killed Hezekiah, there would be no-one to care for her daughter if Mr Carpenter were imprisoned for causing the other injuries to their son.
[170] The Court cannot look into Ms Sialeipata’s mind to determine whether any or all of those considerations were motivating Ms Sialeipata, although the concluding section of the third Police interview suggests that Ms Sialeipata’s fear of losing her
daughter was one consideration. However, because there is a real possibility that one or more of these considerations were the reason for Ms Sialeipata taking on responsibility for actions that she did not commit, I am left in considerable doubt as to the reliability of the admissions Ms Sialeipata made in the third Police interview. Ms Sialeipata may well have been unnecessarily rough with Hezekiah and she may have performed some of the actions alleged under Charge 2. However, I consider that is at least as likely that Mr Carpenter performed those actions as alleged by Ms Sialeipata in accounts that were not challenged in this respect by those who were hearing Mr Carpenter’s account of events at that time.
[171]Accordingly, I find Ms Sialeipata not guilty on Charge 2.
Charge 3: Ill-treatment or neglect of a child by impeding breathing
[172]The evidence on which the Crown relies for the third charge is:
(a)Ms Messenger’s evidence that Ms Sialeipata told her that:
(i)She and Mr Carpenter had squeezed Hezekiah so hard he would stop breathing;
(ii)After Mr Carpenter had held Hezekiah so tightly that he had turned blue and stopped breathing, Ms Sialeipata and Mr Carpenter had put Hezekiah under a cold shower or slapped him to bring him back;
(iii)Ms Sialeipata had hurt Hezekiah’s ribs with her fist and stopped her breathing;
(b)Ms Sialeipata’s second Police interview in which she said:
(i)Mr Carpenter had placed his hands around Hezekiah’s throat and squeezed until Hezekiah’s face turned purple and red, and Mr Carpenter had dropped him to the floor and smacked his face to bring him back;
(ii)Mr Carpenter had lain on top of Hezekiah or had sat Hezekiah in his lap, facing forward and had squeezed Hezekiah around the chest;
(c)Mr Messenger’s witness statement in which he said Ms Sialeipata and Mr Carpenter had put Hezekiah under a cold shower to revive him on the night of 22 August 2019 because it had worked before.
[173] Ms Messenger’s evidence that Ms Sialeipata had told her that there were times when “they”, that is Mr Carpenter and Ms Sialeipata, had squeezed the baby so hard he would stop breathing is not consistent with Ms Messenger’s witness statement of 14 September 2019 in which she says it was Mr Carpenter who had squeezed Hezekiah. It is also relevant that Ms Messenger appears to have taken no issue with Ms Sialeipata’s account in the second Police interview in which Ms Sialeipata had said Mr Carpenter had squeezed Hezekiah. Yet, according to Ms Messenger, the conversation in which Ms Sialeipata said these things took place early in the week after she had returned to Maungatapere, well before the second Police interview. Given Ms Messenger’s close involvement in Ms Sialeipata’s situation and what had happened to Hezekiah, it is unlikely Ms Messenger would have allowed such a significant discrepancy between Ms Sialeipata’s accounts to have passed unremarked. That is particularly so when, as Ms Messenger acknowledged in cross-examination, Ms Messenger discussed what happened at the interview with Mr Osborne.
[174] For these reasons, I have concluded that Ms Messenger’s evidence in this respect and in other respects as discussed below is not reliable. I am not saying Ms Messenger is dishonest. I consider that Ms Messenger’s recollections may have been influenced by her strong views on Ms Sialeipata’s responsibility for the injuries suffered by Hezekiah. It is also relevant that, as Ms Messenger acknowledged, she, Mr Messenger and the Osbornes, spent a lot of time over the two weeks prior to 14 September in discussions “processing” what had happened. I consider it a real possibility that Ms Messenger’s memory has been influenced by what was said in those discussions, which did not involve Ms Sialeipata.
[175] For the same reasons, I do not accept Ms Messenger’s statement that Ms Sialeipata hurt Hezekiah with her fist to the point that Hezekiah stopped breathing. Even if Ms Sialeipata had dug her fist into Hezekiah’s ribs – which Ms Sialeipata denies – there is no evidence that a dig to the ribs, however painful, would stop Hezekiah’s breathing. I consider it likely that Ms Messenger has conflated two aspects of Ms Sialeipata’s account and that this aspect of Ms Messenger’s evidence is also not reliable.
[176] Ms Sialeipata’s second Police interview alleged that Mr Carpenter impeded Hezekiah’s breathing by putting his hands around his neck, lying on top of him and by squeezing him. In her third Police interview and in her evidence in Court, Ms Sialeipata resiled from the allegation that Mr Carpenter had put his hands around Hezekiah’s neck. Despite some interpretation difficulties, I am satisfied that Ms Sialeipata’s evidence was that she had initially thought Mr Carpenter must have tried to strangle Hezekiah when she came upon them one day and Mr Carpenter had dropped Hezekiah to the floor and had had to revive Hezekiah but, on reflection, she recognised that she had not seen Mr Carpenter’s hands around Hezekiah’s neck. Those aspects of Ms Sialeipata’s evidence were not challenged in cross-examination. For these reasons, the evidence does not establish that Mr Carpenter tried to strangle Hezekiah. It follows that Ms Sialeipata’s acceptance of responsibility for Mr Carpenter’s actions cannot include alleged strangulation.
[177] In her third Police interview, Ms Sialeipata demonstrated Mr Carpenter squeezing Hezekiah around the chest, even in the context of accepting responsibility for the actions of Mr Carpenter. It follows that Ms Sialeipata’s acceptance of responsibility cannot include the alleged squeezing.
[178] The only allegation left under this charge is that of lying on top of Hezekiah. Given Ms Sialeipata’s account in the third Police interview of crawling over Hezekiah in a somewhat playful manner and her insistence in her evidence in Court that she had never put her weight onto Hezekiah, I do not consider that the evidence establishes that Ms Sialeipata ill-treated Hezekiah by impeding his breathing.
[179]For these reasons, I find Ms Sialeipata not guilty on Charge 3.
Charge 4: Administering cannabis to Hezekiah
[180] The medical evidence establishes that cannabis was administered to Hezekiah at some point before he died but there is no evidence about when or how that took place.
[181] Rather, the case for the Crown is based on what Ms Messenger said Ms Sialeipata told her, namely that she and Mr Carpenter had sometimes given cannabis to Hezekiah, and on Ms Sialeipata’s third Police interview in which she said she had given a “cone” to Hezekiah to put him to sleep and get him “stoned.”
[182] In her evidence, Ms Sialeipata said she spoke only to Mr Osborne about Hezekiah being given to cannabis and that she had spoken only about Mr Carpenter breathing cannabis smoke over Hezekiah. In cross-examination, Ms Messenger insisted that she was present at the conversation with Mr Osborne and that Ms Sialeipata had shown her how “they” did it.
[183] As discussed above, I have concerns about the reliability of Ms Messenger’s evidence on this point. Ms Messenger said that the conversation with Mr Osborne and Ms Sialeipata took place early in the week after she had been away, that is, at around 2 or 3 September 2019. Yet, Ms Messenger appears not to have taken any issue with the account Ms Sialeipata gave at the second Police interview on 10 September 2019, in which Ms Sialeipata put sole responsibility for blowing cannabis smoke over Hezekiah on Mr Carpenter. Again, it would seem unlikely that Ms Messenger would have let such a discrepancy pass unremarked. For these reasons, I do not consider Ms Messenger’s evidence provides an adequate basis for concluding that Ms Sialeipata administered cannabis to Hezekiah.
[184] In the third Police interview, Ms Sialeipata accepted responsibility for everything she had said in the second Police interview that Mr Carpenter had done. However, and as already discussed, despite the generality of that acceptance, it is clear, even from the third interview, that Ms Sialeipata continued to assert that Mr Carpenter had undertaken at least some of those actions. For that reason, I do not accept that the general acceptance of responsibility, of itself, is a sufficient basis for concluding that Ms Sialeipata administered cannabis to Hezekiah.
[185] Ms Sialeipata’s statement in the third Police interview that she would “just give” Hezekiah a cone is peculiar. Detective Hamilton explained in his evidence that a “cone” is a tube by which cannabis is inhaled to increase its effect. It would seem unlikely that Ms Sialeipata would have put a cone over Hezekiah’s face to increase his intake of cannabis smoke. When asked by Mr Smith what she meant by using that term, Ms Sialeipata said it meant giving Hezekiah “weed”. She went on to say she had never given her son a cone or had blown weed over his face.
[186] Ms Sialeipata said she in evidence that she had said these words because it had got to the point where she did not really care and was saying things just to get away from the family. Ms Sialeipata’s statement about giving Hezekiah a “cone” has that kind of reckless quality. It stands in some contrast to the gravity and consistency of Ms Sialeipata’s statements in evidence that she never gave cannabis to Hezekiah.
[187] I am left with real doubt about the evidence advanced to support this charge. Ms Sialeipata acknowledged using cannabis herself, but she also said Mr Carpenter was a much more frequent user. Other than those statements and the evidence of hash oil having been heated on a knife in the kitchen on the night Hezekiah, there is no evidence of the frequency with which Ms Sialeipata used cannabis. It is quite possible that Ms Sialeipata, as well as Mr Carpenter, used to blow cannabis smoke over Hezekiah, particularly if she was as tired from caring for the children and as frustrated with Mr Carpenter as Ms Sialeipata said she was in the third Police interview. But it is also possible that, if Mr Carpenter, was the regular user as she claimed, that he was the one who gave cannabis to Hezekiah.
[188] In the absence of further evidence, I cannot be sure. For these reasons, I find Ms Sialeipata not guilty on Charge 4.
Charge 5: Ill-treatment or neglect of a child by giving Hezekiah alcohol
[189] Ms Sialeipata does not admit specifically giving alcohol to Hezekiah in any of the Police interviews. The only statements of Ms Sialeipata in those interviews that bear on this charge are the occasions when she accepts general responsibility for everything she had said in the second Police interview that Mr Carpenter had done. For the reasons already discussed, I do not accept that the general acceptance of
responsibility, of itself, is a sufficient basis for concluding that Ms Sialeipata undertook any of those actions.
[190] The primary evidence against Ms Sialeipata is again from Ms Messenger who insisted that Ms Sialeipata told her and Mr Osborne that “they”, Mr Carpenter and Ms Sialeipata, gave alcohol to Hezekiah. However, Ms Messenger’s evidence on this matter is part of the same section of evidence that I have held to be unreliable. In addition, in cross-examination, Ms Messenger insisted that she had told Mr Messenger that Ms Sialeipata had told her that cider had been put in Hezekiah’s bottle. She also said she would not have told Mr Messenger that Ms Sialeipata had told her they had dribbled cider into Hezekiah’s mouth. Yet Mr Messenger’s witness statement of 14 September 2019 states that that is what Ms Messenger told him. This confirms my doubts about some of Ms Messenger’s evidence.
[191]For these reasons, I find Ms Sialeipata not guilty on Charge 5.
Charge 6: Ill-treatment or neglect of a child by failing to perform a legal duty as a parent to take reasonable steps to protect Hezekiah from injury
[192] Mr Smith advised that the Crown would not seek a verdict on Charge 6 if the Court had found all the other charges proved. Because I have found Ms Sialeipata not guilty on Charges 2 to 5, I must consider Charge 6.
The Crown case and the defence response
[193] Mr Smith submits that if the Court finds that Mr Carpenter rather than Ms Sialeipata was ill-treating Hezekiah, as Ms Sialeipata alleged in the second Police interview, Ms Sialeipata clearly knew what was happening and failed to take steps to protect Hezekiah.
[194] Mr McKean submits that it would be difficult to return a guilty verdict on Charge 6 if the Court is not satisfied that the Crown had not proved Charges 1 to 5 because, to have reached that decision, the Court would have had to have concluded that Ms Sialeipata’s admissions were not reliable enough to have convicted her and so
the Court could not say that the Crown had proven beyond reasonable doubt that Mr Carpenter had done these things based on Ms Sialeipata’s admissions.
[195]I do not accept the propositions in either submission.
[196] As stated at [102], the Court’s task has not been to find whether Ms Sialeipata or Mr Carpenter perpetrated the injuries suffered by Hezekiah. The fact that I have not been sure that Ms Sialeipata committed the offences under Charges 2 to 5 does not mean I have found that Mr Carpenter perpetrated the injuries suffered by Hezekiah. As I said earlier, Mr Carpenter was not before the Court.
[197] In M(CA559/2015) v R,12 the Court of Appeal considered the legislative purpose of the amendments made in 2011 to ss 152 and 195 of the Crimes Act following a review by the New Zealand Law Commission which dealt with, among other things, the ill-treatment or neglect of children and vulnerable victims. While the case was an appeal against sentence, the Court of Appeal made observations of general application. The Court of Appeal stated:
[31] We consider it is abundantly clear that the recent amendments to s 195 reflected Parliament’s concern to protect children from child neglect and non- accidental death. The amended section was intended to achieve four principal objectives. First, to make it an offence to engage in conduct likely to cause suffering, injury, adverse effects to health or any mental disorder or disability to a child or vulnerable adult. Second, to impose criminal sanctions as well on parents or other persons who have the care or charge of a child or vulnerable adult who omit to discharge or perform their legal duties towards the child or vulnerable adult. Third, to remove the requirement to prove the conduct or omission was wilful. Rather, the new section imposes what the Law Commission described as a gross negligence test. This is expressed in the statute as a major departure from the standard of care to be expected of a reasonable person. …
…
[33 There are cases, of which this is one, where it is not possible to prove to the criminal standard who is responsible for a child’s injuries. In such cases, the protective purpose may be achieved by prosecuting those who are responsible for the child’s care.
[198] It is clear, therefore, that, in a situation where a child is in the care of two parents, it is not necessary for the Court to have found that either parent was
12 M (CA559/2015) v R [2016] NZCA 53.
responsible for causing injuries to the child for a prosecution to proceed under ss 152 and 195.
Sections 195 and 152 of the Crimes Act
[199] Section 195 of the Crimes Act is set out at [145]. Under the section, a parent commits an offence if they omit to perform a legal duty, the omission of which is likely to cause suffering, injury or adverse effects to their child if the omission to perform the legal duty is a major departure from the standard of care to be expected of a reasonable person.
[200] Section 152(b) of the Crimes Act provides that every person who is a parent is under a legal duty to take reasonable steps to protect that child from injury. However, s 150A of the Crimes Act provides that a parent is criminally responsible for omitting to discharge this duty only if, in the circumstances, the omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies.
[201] Considering the three sections together, therefore, Ms Sialeipata will be liable under s 195 if:
(a)She failed to perform her legal duty to protect Hezekiah from injury; and
(b)That failure to perform her legal duty was a major departure from the standard of care to be expected of a reasonable person;
(c)That failure to perform her legal duty was likely to cause Hezekiah suffering, injury or adverse effects.
[202] In the present case, there is no doubt that Hezekiah was injured, as evidenced by the fractured skull, the broken ribs and the bruises identified in the medical evidence. It is also clear that those injuries were inflicted while Ms Sialeipata and Mr Carpenter were responsible for Hezekiah’s care.
[203] Some of the injuries may have been caused by events that a reasonable parent may not have foreseen. Examples are the bruising on Hezekiah’s cheek, which may have been caused by a bite from her daughter, and the bruising on Hezekiah’s forehead and other parts of his head which may have been caused by falls from the toy wheel chair, or from his pram, or from the deck outside the front door, or by Hezekiah’s head colliding with the kitchen table while he was in his walker. I am satisfied that the failure to protect Hezekiah from those injuries is not a major departure from the standard of care to be expected of a reasonable person. It follows that Ms Sialeipata bears no criminal responsibility in respect of those injuries.
[204] The fractures to Hezekiah’s skull and to his ribs are of a different order. They must have been the result of the application of considerable force and that must have occurred while Hezekiah was in the care of his parents, in particular Ms Sialeipata who was with Hezekiah almost all the time.
[205] While the extent of those injuries may not have been known to Ms Sialeipata, the behaviours that are likely to have led to those injuries were known to Ms Sialeipata as she accepted in cross-examination, whether they were performed by Mr Carpenter or Ms Sialeipata. I refer, in particular, to the squeezing of Hezekiah and the digging of a fist into Hezekiah’s ribs to the point that Ms Sialeipata says she heard audible cracks. In addition, there was the throwing of Hezekiah in the air so that he hit the ceiling and the punching Hezekiah’s backside so that he was propelled across the floor and hit the television cabinet – both of which Ms Sialeipata acknowledged in cross examination did happen.
[206] While the precise timing of these episodes of violence towards Hezekiah were not established on the evidence, it is clear from Ms Sialeipata’s evidence and from the medical evidence that they occurred over a period of time. Dr Stables dated the skull fracture as having occurred between two and four weeks before death and the rib fractures as having occurred two weeks or more before death.
[207] In cross-examination, Ms Sialeipata said she and Mr Carpenter did not know at the time that Hezekiah had fractures. However, she accepted that she knew before the medical evidence that Hezekiah had been hurt and that that hurt had happened
when Hezekiah was living with her and her family. Mr McKean submits that as far as Ms Sialeipata being aware of the extent of the injuries, the only evidence of visible injury was small bruises to Hezekiah’s body, and that, even though Ms Sialeipata said she had heard a sound when Mr Carpenter was squeezing the baby, there was no evidence that Ms Sialeipata was aware Hezekiah had broken ribs or a fractured skull.
[208] I accept that there is no evidence that Ms Sialeipata was aware of the fractured skull. I do not accept there is no evidence that she was aware of fractured ribs. In her evidence, Ms Sialeipata said she heard a crack or a snap on two occasions – once when Mr Carpenter squeezed Hezekiah and once when Mr Carpenter dug his fists into Hezekiah. When a noise like that comes from the body of a four or five-month old baby, that is evidence to a reasonable person that something serious has gone wrong, whether or not Ms Sialeipata considered the possibility of fractured ribs.
[209] Ms Sialeipata did not seek medical assistance and took no steps to remove Hezekiah from a situation where he might be subject to further such injuries. This was not a case of one or two ribs being fractured. Dr Stables’ evidence was that four ribs on the right side of the chest, seven ribs on the left side of the front of the chest and six ribs on the right side of the front of the chest were fractured. In all cases, the fractures showed evidence of healing, which means they occurred some period before Hezekiah’s death and could not have been the result of the efforts to resuscitate Hezekiah on the night of 22 August 2019.
[210] Mr McKean submits that the Crown has not proved beyond reasonable doubt that Ms Sialeipata omitted to perform her duty to protect Hezekiah or that whatever she did not do was a major departure from the standard of care of a reasonable person. He also submits that there is evidence that in Samoan culture a woman is required to show respect for her husband and evidence that Ms Sialeipata feared Mr Carpenter, and that this may explain her reaction to Mr Carpenter’s actions.
[211] I do not accept the first proposition. I am satisfied that the evidence establishes beyond reasonable doubt that Ms Sialeipata knew Hezekiah had suffered significant injuries, even if she did not know their precise nature and extent. In the case of the rib fractures, she knew of the actions that probably caused them. I accept that
Ms Sialeipata said that she used to take Hezekiah away from Mr Carpenter when episodes like this occurred, but she did not seek medical help or help from anyone else, even though Mr Carpenter was absent from the house for extended periods at work or on his course. Indeed, Ms Sialeipata continued to give Hezekiah to Mr Carpenter to care for, as happened on the night Hezekiah died.
[212] I accept that cultural factors may have been a factor. I also accept that Ms Sialeipata’s social isolation in Whangarei may also have been a factor. The evidence of the situation at home, however, is equivocal.
[213] Nonetheless, as the Court of Appeal said in R v Hamer,13 and reaffirmed in Q v R, 14 the test in s 150 is objective. It is whether a person has fallen below the standard of care of a reasonable person with respect to the legal duty at issue, and whether that failure was a major departure from that standard. In Q v R, the Court of Appeal went on to say that a person’s state of mind may be relevant to the grossness or criminality of the conduct, and that a defendant who is reckless, that is indifferent to an obvious risk of injury to health or actually to have foreseen the risk but determined to run the risk nevertheless, is more readily found to be grossly negligent to a criminal degree.15
[214] I am satisfied beyond reasonable doubt that in not seeking medical or other help and in not seeking to remove Hezekiah from the risk of further injury, Ms Sialeipata fell below the standard of care of a reasonable person who has a duty to protect her child from injury. It follows that Ms Sialeipata failed to perform her legal duty. I am also satisfied that Ms Sialeipata’s failure to perform her duty was a major departure from that standard and that Ms Sialeipata’s failure to perform her duty was intentional and not accidental, in the sense discussed by the Court of Appeal in R v Bentley.16 I am also satisfied that Ms Sialeipata’s failure to perform her duty was likely to cause Hezekiah suffering, injury or adverse effects.
[215]For these reasons, I find Ms Sialeipata guilty on Charge 6.
13 R v Hamer [2005] 2 NZLR 81 (CA)
14 Q (CA418/16) v R [2017] NZCA 185 at [25].
15 Ibid.
16 R v Bentley [2018] NZCA 371 at [19].
[216] I have excluded the administering of cannabis and alcohol from consideration under this charge because there was no evidence of whether those actions would have been likely to cause Hezekiah suffering, injury or adverse effects.
G J van Bohemen J
- AGLC
- R v Sialeipata [2021] NZHC 301
- Case
- [2021] NZHC 301
- Decision Date
CaseChat Overview and Summary
The court found Sialeipata guilty of Charges 1 (assault with a weapon) and 6 (ill-treatment or neglect of a child by failing to perform a legal duty as a parent to take reasonable steps to protect Hezekiah from injury). The court found her not guilty of Charges 2 to 5. The court's reasoning was based on the evidence presented, including the medical evidence of injuries to Hezekiah, the police interviews with Sialeipata, and the testimonies of other witnesses. The court concluded that Sialeipata had indeed hit Hezekiah with the shower head, but there was insufficient evidence to prove she was responsible for the other alleged ill-treatments. The court also found that Sialeipata failed to protect Hezekiah from further injury, as she did not seek medical assistance or remove him from the situation despite being aware of the significant injuries he had suffered.
The final orders of the court were that Sialeipata was found guilty of Charges 1 and 6 and not guilty of Charges 2 to 5. The court did not seek a verdict on Charge 6 if all the other charges were found proved, as Sialeipata was not guilty on Charges 2 to 5.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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