A man who murdered his girlfriend’s 2-year-old daughter - beating Arapera Fia so savagely inside the South Auckland home where they were in lockdown for Covid-19 together that authorities found her covered from head to toe in bruises - has lost his bid for a retrial.

Jurors in the High Court at Auckland found Tyson Brown, now 23, guilty of murder in March last year. Justice David Johnstone sentenced him two months later to life imprisonment, with a stipulation he serve at least 15 years before he can apply for parole.

During a hearing last month before the Court of Appeal in Auckland, Brown’s new lawyer argued there had been a miscarriage of justice because the judge had not given jurors an “unreliability direction” regarding testimony from the child’s mother, Nikitalove Tekotia, prior to their deliberations. The law states that a judge may warn the jury to be cautious if testimony is found to have come from “a witness who may have a motive to give false evidence that is prejudicial to a defendant”.

Tekotia is currently serving a sentence of home detention for manslaughter, a charge that reflected her failure to protect her daughter in the days and hours leading up to the fatal beating on October 31, 2021. She pleaded guilty just days before she was set to go on trial beside Brown.

During the trial, prosecutors called multiple witnesses who reported strange goings-on inside the Weymouth home.

A neighbour recalled often hearing a male yelling at a child and a couple who lived in a sleepout on the same property as Arapera testified that they also would hear Brown yelling accompanied by banging noises and the child crying. On the day of Arapera’s death, the couple referred to Brown’s banging repeatedly in text messages.

Prosecutors also pointed to testimony from a former friend of Brown’s who described a conversation a month before Arapera’s death in which he recalled the defendant demonstrating a forceful MMA-style kick while bragging about how he disciplined the child.

During three days in the witness box, the child’s mother repeatedly insisted that she wasn’t responsible for the injuries. On the morning after the child’s death, as she and Brown were sent to the same MIQ room, she said the defendant told her that he had shaken Arapera out of frustration before paramedics arrived. Brown declined to testify during the trial but his lawyers insisted that it was Tekotia who “snapped” amid the stress of Auckland’s 2021 Covid-19 lockdown, inflicting the fatal head injuries within minutes of learning she had tested positive for the virus.

Jurors in the High Court at Auckland found Tyson Brown guilty last year of 2-year-old Arapera Fia's murder. Photo / Jason Oxenham

During the Court of Appeal hearing last month before Justices Murray Gilbert, Christian Whata and Peter Churchman, new defence lawyer Steven Lack argued that the mother had a motive to give false evidence - to avoid being charged with murder instead of manslaughter.

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“Mr Brown submits that the credibility or otherwise of Ms T’s evidence was central to the appellant’s defence at trial, as her denial of responsibility for the fatal assaults was tantamount to direct evidence that the appellant was responsible,” Justice Churchman wrote for the panel in the nine-page appeal judgment, which was released today.

The Crown argued that a warning was not required because Tekotia’s testimony was “riddled with lies” and not ultimately helpful to the prosecution. Prosecutors did not rely on her testimony “in any meaningful sense” other than to verify independent evidence, it was argued. In addition, the Crown said, Brown’s former lawyer never sought a reliability warning at trial.

Arapera Fia was beaten to death inside her South Auckland home on October 31, 2021.

Brown’s new lawyer argued that the Crown did rely on Tekotia’s evidence during the “critical time period” when Arapera would have suffered the fatal blows, but the Court of Appeal dismissed that assertion as “a mischaracterisation of the Crown case”.

“A number of aspects of Ms T’s evidence at the trial were actually favourable to Mr Brown and, defence counsel, in closing to the jury, asked them to accept those aspects of Ms T’s evidence that supported Mr Brown’s defence,” Justice Churchman wrote. “An objective assessment of Ms T’s evidence is that it did not materially advance the Crown case but rather, in a number of respects contradicted not only that case but the basis of which Ms T had pleaded guilty to the manslaughter charge.”

While summing up the case to jurors, Justice Johnstone “dealt with the concepts of credibility and reliability in a general sense”, the appellate judges also noted.

Nikitalove Tekotia appears in the High Court at Auckland in February 2024 to be sentenced for the manslaughter of her 2-year-old daughter, Arapera Fia, who she failed to protect from abuse. Photo / Michael Craig

“The judge also specifically referred to the Crown not relying on Ms T being a truthful witness and even going so far as to suggest that Ms T’s evidence might be so unreliable that the jury might choose to put it to one side,” the judgment noted.

“It is unsurprising that the judge chose not to give a reliability direction. It may well have distracted the jury and also may well have undermined the defence case by affecting the willingness of the jury to accept those parts of Ms T’s evidence that supported the defence.”

Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.

The article was originally published on NZ Herald, here