JF v Police - [2013] NZHC 2729

PERMANENT SUPPRESSION ORDER SUPPRESSING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF THE APPELLANT PROHIBITED UNDER S 200(2)F) CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-416-45 [2013] NZHC 2729

BETWEEN JF Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 October 2013

Appearances: T Singh for Appellant
RB Anandale for Respondent

Judgment: 21 October 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 21 October 2013 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

JF v NEW ZEALAND POLICE [2013] NZHC 2729 [21 October 2013]

[1] At about 10:45 pm on 15 August 2012, a car driven by the appellant crashed into a give way sign at the end of Holland Road near Ruakura, east of Hamilton. The appellant had failed to take a moderate bend in Ruakura Road, passed through a “T” intersection, crossed over the centre line and hit the sign. The appellant’s daughter, A, was restrained by a conventional seatbelt in the front passenger seat of the vehicle. A was not injured in the crash. There was a child’s booster seat on the back seat of the appellant’s vehicle which was not being used at the time of the accident.

[2] A Police car happened to be parked nearby and officers in the car witnessed the crash. The Police officers considered the appellant showed signs of recent consumption of alcohol and an evidential breath test found her to be driving with
928 micrograms of alcohol per litre of breath, some 528 micrograms above the legal limit.

[3] The appellant was charged with careless driving and driving with excess breath alcohol. She pleaded guilty to those charges and was sentenced to six months’ supervision and disqualified from driving for ten months.

[4] The appellant was also charged with one count of being a person who had actual care of A, a person under the age of 18 years, who omitted to take reasonable steps to protect that child from injury, that being a major departure from the standard of care to be expected of a reasonable person.1

[5] After a defended hearing before Judge Arthur Tompkins in the District Court at Hamilton, the appellant was convicted and sentenced to 150 hours’ community work in addition to the sentences imposed on the other charges. She now appeals
that conviction.

1 Crimes Act 1961, s 195(1) and (2)(a).

[6] More information about the evidential background to the alleged offending is necessary to understand the issues and how the Judge resolved them. The additional facts were summarised by Judge Tompkins as follows:

[6] Early that same night [JF] had been drinking with a friend at a different address, with their respective children also in the house. Following a shared birthday dinner, they had had a bottle of wine. Subsequently the decision was taken to drive to another address, in a rural area east of Hamilton. Because of the amount of alcohol she had consumed, [JF] did not drive to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JF v Police

Details

AGLC: JF v Police [2013] NZHC 2729
Case: [2013] NZHC 2729
Decision Date: 21 October 2013

CaseChat Overview and Summary

In JF v Police, the High Court of New Zealand reviewed the conviction of the appellant for neglecting her child, in violation of Section 195 of the Crimes Act 1961. The appellant had driven while intoxicated with her young daughter in the car, failing to secure the child in an appropriate restraint. The court considered whether the appellant's actions constituted a major departure from the standard of care expected of a reasonable person and whether those actions were likely to cause injury to the child. The court found that the appellant's decision to drive while heavily intoxicated, the manner of her driving, and the failure to properly restrain the child in the front seat, instead of the booster seat in the back, created a real risk of injury. The court concluded that these actions amounted to a major departure from the standard of care and dismissed the appeal against conviction.

Orders