Police were unable to use privileged evidence to prosecute a Taranaki father for murder after he smothered his 2-year-old daughter with a pillow.
Philip Murray Kinraid was eventually convicted for the manslaughter of Esme Claire Kinraid, but only after a judge ruled evidence introduced by the Crown was inadmissible, a Supreme Court judgment released today reads.
In November 2016, Kinraid, a chemical engineer, pleaded guilty to the manslaughter of the toddler at their Hawera home on June 26, 2015.
The father of two was putting his children, including a crying Esme, to bed and wrapped his daughter in a blanket.
However, Esme kicked it off, which led to the burly man flipping the toddler over and placing her face down on a pillow. He then pressed down on the back of Esme's head with his arm.
On February 22 last year, Justice Rebecca Ellis sentenced him in the High Court at New Plymouth to four years and three months' imprisonment.
Kinraid appealed his sentence in the Court of Appeal, claiming it was "manifestly excessive", but the appeal was dismissed.
The Court of Appeal also declined to suppress that Kinraid had been charged with murder before his guilty plea, saying it would not cause "extreme hardship". But Kinraid applied successfully for an interim suppression of those facts pending a second appeal to the Supreme Court.
However, in a judgment dated December 21 last year, the Supreme Court dismissed Kinraid's application to appeal - allowing publication of the murder charge and that the evidence linked to the charge was inadmissible.
The Crown wished to prosecute Kinraid for murder after police obtained evidence. However, Kinraid challenged the admissibility of the evidence, and the High Court excluded it on the basis that privilege applied.
A court order prevents the Herald from publishing specific details of the evidence. It is understood the Crown was relying heavily on it to prove the murder charge.
In attempting to keep the murder charge secret, Kinraid had sought to challenge the way the Court of Appeal dealt with various contextual matters.
If those matters had been viewed properly, he argued through his counsel Paul Keegan, the Court of Appeal would have concluded that the threshold for suppression was met.
Kinraid further argued that insufficient weight has been given to the nature of the murder charge, that the victim was Kinraid's daughter, and about the effect media publication would have on Kinraid and his family.
He also said that the murder charge should never have been laid.
However, Chief Justice Dame Sian Elias, and Justices Susan Glazebrook and Ellen France ruled: "We do not consider the criteria for leave are met. The facts were carefully analysed by the Court of Appeal and no challenge is made to the principles applied. No question of general or public importance is raised and there is no appearance of a miscarriage of justice."
At Kinraid's sentencing, the court heard how Esme began "squirming, making noises, inhaling and exhaling while she screamed" as her father pressed down on her.
After suffocating Esme, Kinraid left for work and later told police it appeared his daughter was breathing normally.
He returned to watch videos with his partner, but when he checked on his children he found Esme "unnaturally stiff" and colourless.
"You turned her over and noticed one of her eyes was half open," Justice Ellis said.
After attempting to perform CPR on his daughter, Kinraid rang 111.
"I think I may have killed my daughter," Kinraid told the operator.
Crown prosecutor Justin Marinovich told the court: "The horror that Esme must've felt in the last minutes of her life when her face was held into the pillow and her life taken away ... there is no doubt in her last minutes she experienced true horror."
Justice Ellis said the cause of Esme's death was a "fatal neck compression" and that the toddler had "no chance of escape".
"Esme is dead, her life and her future were taken away in an instant," the judge said.