Court hears Nia murder appeal

The Court of Appeal has reserved its decision over an appeal by Wiremu Curtis, one of two brothers found guilty of murdering Rotorua toddler Nia Glassie.

Curtis and his former partner, Nia's mother Lisa Kuka, have appealed their convictions, saying the jury should have been offered a second option of neglect rather than manslaughter.

Curtis was sentenced in the High Court at Rotorua in February to life imprisonment, with a minimum non-parole period of 17-1/2 years, for the August 2007 murder of the three-year-old.

During the trial the court heard how Nia suffered months of misery. She was dropped on her head, put in a clothes dryer which was turned on, had wrestling moves performed on her and was flung off a clothesline before her short life ended at Starship Hospital in August 2007.

Prosecutors said the fatal blow was a kick delivered by one of the Curtis brothers.

However, insufficient emphasis had been placed on the limited mental capacity of Wiremu Curtis, and whether he had "conscious appreciation" that his actions could lead to death, his lawyer Craig Horsley told the Court of Appeal in Wellington today.

During the original trial the jury was told Curtis had a mental age of up to five years below his peers. He was aged 19 when sentenced and his brother Michael was aged 22 and also jailed for life on a similar charge.

When Justice Grant Hammond asked why this defence had not been introduced from the beginning, Mr Horsley said the admittedly "slim" evidence had emerged during the trial when Curtis' mother described him as "a simple boy".

Mr Horsley suggested the ongoing abuse Nia was subjected to in their house had "desensitised" Curtis, as there had been to that point no long term consequences.

"Why should he think the kick to the child's head should be any different?"

Mr Horsley acknowledged it was "an unattractive proposition".

Justice Hammond said that despite Curtis' illiteracy and lack of schooling, there was no evidence showing an inability to comprehend his actions.

During the trial Mr Horsley maintained Curtis was not responsible for the kick which was believed to have caused Nia's death.

"When a trial tactic is taken (and fails) you can't come back and find another tactic," Justice Bruce Robertson said.

Crown prosecutor Cameron Mander said there was no doubt Curtis lacked academic ability but sentencing notes indicated he had excellent social skills.

He said there was an inconsistency in the approach taken for the appeal compared with that of the trial.

The court reserved its decision.

The appeal by Kuka, aged 35 when she was sentenced to nine years jail for manslaughter, was also heard today.

The charges related to a lack of protection and her failure to seek medical help for her critically injured daughter.

Kuka's lawyer Mene Tuilotolava said the jury should have been offered a second option of neglect rather than manslaughter due to the "high emotion and high profile" of Nia's death.

"Just having one option for the jury left it in a corner."

Justice Hammond said it was up to the crown to decide what charges would be laid.

"The crown run the risk that they may get no conviction because they have shot high," Justice Robertson said.

He said the jury must have been satisfied there was sufficient evidence of manslaughter otherwise they would not have convicted Kuka.

Justice Hammond said the issue of a second option had been raised during the trial and dismissed by Justice Judith Potter.

Kuka's appeal is proceeding.

- NZPA