Outrage as father walks free

By MONIQUE DEVEREUX and LOUISA CLEAVE

The decision by a jury to acquit a man of murdering his severely brain-damaged baby has angered child advocacy groups.

The jury took 47 minutes to find the 34-year-old not guilty of murder, and then not guilty of the alternative charge of manslaughter, in the High Court at Nelson yesterday.

The verdict clearly shocked the man, his family and his lawyer.

His wife gasped loudly and collapsed sobbing into her mother's lap as the foreman gave the second not guilty verdict. Defence lawyer Greg King buried his head in his hands.

A law lecturer, Scott Optican, last night said the jury appeared to have opted for "jury nullification", an American term for sympathetic juries that acquit out of mercy a person they believe is guilty.

The man had been accused of murdering his baby on May 14 this year, the same day he and his wife discovered their five-month-old daughter had lissencephaly - an incurable profound brain disorder that would have rendered her almost a vegetable for the rest of her life.

The man was found soon after midnight on May 15 lying under bushes on the footpath near his home. He was clutching the dead child in his arms.

He told police: "I've killed her. I've killed her. She's dead. I'm guilty."

The Commissioner for Children's Office said the verdict gave a "clear statement children with disabilities are not OK and don't have the right to life".

"We're concerned it would [set a precedent]," said advocacy manager Trish Grant.

She said the case could be compared with that of Janine Albury-Thompson, who killed her autistic and often violent 17-year-old daughter, Casey, in 1997.

Albury-Thompson was found guilty of manslaughter and sentenced to four years in prison.

"We're quite surprised the manslaughter verdict was not a result [in this case]. The legal defence really ... played upon the jury's emotions."

The chief executive of CCS, Viv Maidaborn, said it was the wrong verdict. People would be "outraged" at the verdict if the child had not been disabled, she said.

"The jury could only reach the verdict it did because it wasn't able to value the life of the baby."

Ms Maidaborn said the decision to acquit sent a strong signal to society that discriminating against people with disability was acceptable, "to the extent of murder".

But Mr King, defence counsel for the man who has name suppression, said the decision to acquit did not set any precedent.

"The jury made their decision, as I said to them, on this man, on this charge, in this case. It doesn't set a precedent or a lowering of standards or anything like that," he said.

Mr King had told the jury of eight women and four men the couple suffered "psychological torture" during the three months of tests and waiting for appointments before being given the diagnosis on the baby.

When formally interviewed by police, the man described how earlier in the evening he had taken a handful of pills and drunk two glasses of straight whisky before picking up his daughter and covering her mouth and nostrils with her hand.

But the pathologist who gave evidence in the case, Martin Sage, said he could not find any clear evidence of suffocation, although he accepted it could have occurred.

There was some damage to one of the baby's lungs but he said it was "insufficient to cause death".

In his final submissions Mr King asked the jurors to consider Mr Sage's evidence, questioning if that meant they could be certain, beyond reasonable doubt, that the baby's father caused her death.

After the verdict was delivered the man's wife ran from the public gallery to hug her husband.

Yesterday was the first time she had been in court during the trial, apart from when she was called to give evidence.

The large group of family members all cried and hugged one another. The man's father began telephoning other family and friends to deliver the news.

The acquitted man declined to speak to the media, except to say he was relieved.

Mr King said his client was "elated" and that he himself was "in shock".

"It was a unique case and that was recognised obviously by the jury. I was hoping for an acquittal.

"Obviously it's been a very difficult process for the whole family. What they've been through is just a living hell and the court process hasn't helped that at all.

"The whole combination of their daughter's illness and the way that they learned about that - it was an enormously stressful time.

"How they've got through it is frankly beyond me."

Mr King has made an application to the court to permanently suppress his client's name and any identifying features. It is being opposed by TV One and TV3 and a hearing will be held at a later date.

Mr King said his client would now spend some time coming to terms with what had happened.

"They've got some grieving to do and some things to put behind them and they just hope that they can go on and resume their normal happy lives. He's a wonderful man and she's a wonderful lady. They're a wonderful couple," he said.

"I hope that the public can accept the verdict and allow these people to get on with their lives."

Mr Optican, a senior lecturer in law at the University of Auckland, said it was clear the man had intended to kill the child and had told the police that he did.

A more "legally rational resolution" would have been a guilty verdict "of some type of homicide", he said.

"And then we could have sorted out moral considerations at sentencing."

The verdict appeared to be "jury nullification".

"There are cases like this where a community sense of justice doesn't necessarily accord with the law because they sympathise greatly with the defendant," said Mr Optican.

The jury was supposed to "represent the collective conscience of the community".

"When the jury exercises its role as a collective conscience it will often temper the law with mercy, and it seems to be exactly what they did in this case."