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 the house in the defendant’s vehicle, but rather the friend drove.  At [JF’s] insistence, they stopped to buy some vodka because, as the defendant said  in  her  evidence  at  the  defended  hearing,  she  was  anticipating  a “relatively big night”.  The plan was that the defendant’s daughter would be put to sleep at the second friend’s house.   Upon arrival the defendant’s sleeping daughter was carried inside, where she continued sleeping.  Under cross-examination the defendant accepted that her intention at the second friend’s house was to get drunk.  She proceeded to do just that.

[7]       In her evidence she described how, a couple of hours later, the three women  heard  a  car  pull  up,  and  a  patched  gang  member  entered  the premises.  He was the partner of the second friend.  He started yelling and verbally abusing his partner.   Because, [JF]  said, of some past experience with gang members, [JF]  panicked and although she knew she was “really drunk”, and when she thought she would not be noticed, she picked up her daughter, exited the house, put her daughter down into the front passengers seat and fastened the seat belt over her, drove down the somewhat lengthy drive of the property with her headlights off.   She set off to try to drive home, although she accepted that she did not really know where she was.

[7]      As it turned out, the gang member ceased yelling and being aggressive after only several minutes but by that time the appellant had fled the address.   Under cross-examination, the appellant claimed that although she drove for ages after leaving the address, she was effectively lost.  She claimed, however, that there was nowhere for her to pull over and use her smartphone to ascertain where she was or to put her daughter into the child’s car seat.  When she talked to the Police following the accident, she neither told the officers anything about the amount of vodka she had consumed nor did she mention that she had left her friend back at the address with an aggressive gang member.

[8]      After considering this factual background, the Judge noted that the Police were required to prove beyond reasonable doubt that the appellant omitted to discharge a legal duty, the omission of which was likely to cause injury, where that omission was “a major departure from the standard of care to be expected of a

reasonable person”.2

[9]      The Judge was satisfied the Police had proved the requisite elements beyond reasonable doubt.   He noted that the relevant factors started before the appellant crashed her car; she had chosen to consume a considerable quantity of alcohol over an  extended  period  that  evening  and  she  then  decided  to  drive  from  the  rural property without telling anyone and knowing she was drunk.   The Judge did not accept the appellant’s evidence that there was nowhere for her to pull over and put her daughter into the car seat.  Judge Tompkins noted that the appellant then crashed before lying to the Police about the events of the night in question.

[10]     The Judge concluded:

[30]     The cumulative effect of all of the above establishes beyond a reasonable [doubt] ... both that the defendant engaged in a course of conduct which was a major departure from the standard of care to be expected of a reasonable person – in essence she failed to properly secure her vulnerable child as a passenger in the vehicle, she drove whilst very drunk, and she crashed her car – where that course of conduct represented a real and substantial risk that her daughter would suffer significant injury as a result of a car crash.

[11]     Judge Tompkins considered that there was clearly a risk the appellant would crash, as evidenced by the fact that she did crash.  He also said that given that a crash was likely, there was an equally high risk the appellant’s daughter would be injured. Thirdly, the Judge noted that the lawful duty to place a child under five in an approved child restraint is founded on the fact that children under that age are inadequately restrained by standard seat belts, especially in the front passenger seat

of a moving vehicle that crashes.

2 At [14].

[12]     Section 195 of the Crimes Act 1961 provides:

195     Ill-treatment or neglect of child or vulnerable adult

(1)      Every one is liable to imprisonment for a term not exceeding

10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform  the  legal  duty,  is  a  major  departure  from  the standard of care to be expected of a reasonable person.

(2)      The persons are—

(a)       a person who has actual care or charge of the victim;

or

(b)      a  person  who  is  a  staff  member  of  any  hospital, institution, or residence where the victim resides.

(3)      For the purposes of this section and section 195A, a child is a person under the age of 18 years.

[13]     As described  in s 195(1), the offence of ill treatment or neglect may be committed because of the intentional engagement in certain conduct or through an omission to discharge or perform a legal duty.   Whether the offence is alleged to have occurred by way of a course of conduct or by the breach of a legal duty, the conduct or the omission must be proved to be “likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability” to the victim, and to amount to a major departure from the standard of care to be expected of a reasonable person.  It is clear by the reference to “a major departure” from a reasonable standard of care that Parliament intended that prosecutions under the section should be confined to serious cases and not be resorted to in respect of every occasion upon which a person responsible for the care of a child or vulnerable adult fails to exercise a reasonable standard of care.

[14]     Reference to the genesis of the amendment to s 195 which came into force in

March 2012 and was operative at the time of the offending provides some assistance

to  understanding  the  necessary  ingredients  for  a  conviction  under  the  section,

particularly the meaning of the expression “major departure.”

[15]     Section 195 was amended with effect from 19 March 2012 by the Crimes Amendment Act (No 3) 2011, which largely implemented the recommendations of the Law Commission.3  This amendment meant that s 195 replaced the previous offence of cruelty to a child under 16 by raising the age limit to 18; broadening the scope of the offence to include vulnerable adults; and substituting an objective gross negligence test of liability for the previous requirement that ill-treatment or neglect be “wilful”.

[16]     The Law Commission said:4

Section 195 is generally charged in situations where there is a pattern of such behaviour over a period of time, so that there is more than one instance of ill treatment or wilful neglect. However, this is not always the case, and it is possible to charge a single instance of assault under section 195. The Court of Appeal has held that the particular form that ill treatment or neglect takes is not an ingredient in the offence.

[17]     As to the substitution of a “major departure” test, the Law Commission said:5

The Court of Appeal has held [in relation to s 195 as then worded] that “wilfully” requires ill treatment to have been inflicted deliberately, with a conscious appreciation that it was likely to cause unnecessary suffering. Neglect, too, will only be regarded as “wilful” where it is deliberate. These are subjective tests: they require the defendant’s state of mind to be proved. In practice, this means that ignorance or thoughtlessness is a defence. We recommend that any reference to “wilfully” should be removed from section

195. Instead we are proposing a “gross negligence” test. This would require the jury only to be satisfied that the conduct alleged was a major departure from the standard of care to be expected of a reasonable person: ignorance or thoughtlessness would no longer absolve a defendant from liability.

The basis for the charge against the appellant

[18]     The appellant was charged under the second limb of s 195(1), that of omitting to discharge a legal duty.   The information containing the charge alleged that the

appellant “being a person who has actual care or charge of [A] being a person under

3      Law Commission Review of Part 8 of the Crimes Act: Crimes Against the Person (NZLC R111,

2009) at Chapter 5.

4      Ibid, at 5.13.

5      Ibid, at 5.17.

the age of 18 years omitted to discharge a legal duty namely to take reasonable steps to protect that child from injury to [A] and is a major departure from the standard of care to be expected of a reasonable person.”

[19]     No point was taken at the hearing in the District Court, nor on appeal, that the information may not have fully disclosed an offence in that, while referring to the omission to discharge a legal duty and to a major departure from a reasonable standard of care, the allegation omitted to identify that the omission needed to be one “likely to cause injury” to the victim.  It was not suggested that Judge Tompkins did not appreciate that proof of the risk of harm was required.

[20]     A reading of the District Court judgment indicates that the Judge approached the case on the basis that the evidence would have fitted more comfortably with an allegation that the appellant had engaged in a course of conduct in breach of the section  rather  than  that  she  omitted  to  discharge  a  legal  duty.   At  [24]  of  the judgment, Judge Tompkins said:

With respect to Mr Singh, in my view it is in this case abundantly clear that [the appellant] has engaged in a course of conduct, and omitted to perform a legal duty ....

[21]     Further, at [30], he said:

The cumulative effect of all of the above establishes beyond a reasonable [doubt] ... that the defendant engaged in a course of conduct which was a major departure from the standard of care to be expected of a reasonable person – in essence she failed to properly secure her vulnerable child as a passenger in the vehicle, she drove whilst very drunk, and she crashed her car – where that course of conduct represented a real and substantial risk that her daughter would suffer significant injury as the result of a car crash.

[22]     The Judge may have been led down the path of emphasising the course of conduct rather than the omission to perform a legal duty by a concession made by defence counsel.  In written submissions filed prior to the hearing, defence counsel acknowledged that the reference in the second limb of s 195(1) to an “omission to perform a statutory duty” was to bring within the scope of the offence the extended statutory duty contained in s 152 of the Crimes Act, which came into force at the same time as the amendment to s 195.

[23]     Section 152 provides:

152Duty of parent or guardian to provide necessaries and protect from injury

Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—

(a)       to provide that child with necessaries; and

(b)       to take reasonable steps to protect that child from injury

[24]     Having observed that the duty under s 152 applied, defence counsel conceded that it might be argued that the appellant had failed to provide her daughter with necessaries by not restraining her in an approved child restraint and that failing to provide that necessary was a failure to take a reasonable step to protect the child from injury.   It was conceded also that it might be argued that the appellant, by driving with excess breath alcohol, did not take reasonable steps to protect her daughter from injury.   Further, it was suggested that the appellant’s behaviour in driving while intoxicated and failing to place her daughter in an approved restraint might be viewed as a “course of conduct”, the submissions conceding further that because the precise  nature of the conduct  or omission  said to  constitute the ill treatment was not an element of the offence, there was no requirement that there be separate counts for allegations of commission from those underpinned by allegations

of omission.6

[25]     This concession and approach was noted by Judge Tompkins, although not quoted wholly accurately, in these terms:7

Mr Singh accepted that the defendant’s failure to place her daughter into an approved child restraint, and then driving her vehicle whilst intoxicated, constituted “conduct” and “the omission to perform a legal duty” (because failing to place her daughter into an available approved child restraint is an infringement contrary to [r 7.6] of the Land Transport (Road User) Rules

2004).

6      R v Mead [2002] 1 NZLR 594 at [70].

7      At [16] of the reserved judgment. The inaccuracy is the reference to the legal duty having arisen under 7.6 of the Land Transport (Road User) Rule 2004.  The concession by defence counsel, as discussed at [22], was that the duty alleged to have been breached was the duty under s 152 of the Crimes Act 1961.

[26]     It is not suggested, therefore, that the appellant and her counsel had been misled as to the essential nature of the prosecution case.  It had been identified prior to the hearing that a combination of factors establishing a course of conduct arguably amounted to a breach of duty under s 152 of the Crimes Act, and which of the appellant’s actions on the evening in question formed the basis of the allegations. Furthermore, as Mr Singh properly acknowledged on appeal, it would have been open to the prosecution to have sought an amendment of the information if it was required to indicate in a formal way that it was relying on both limbs of the section in combination or as alternatives.

The issues in the District Court

[27]   The defended hearing proceeded on the basis that proof of the factual circumstances described in the judgment (which were not seriously in dispute) was capable of amounting to either or both of the limbs of commission and omission described in the section.  It was accepted also that the real questions in dispute in the prosecution were whether it had been established beyond reasonable doubt that the appellant’s actions were likely to cause suffering, injury or adverse effects to the health of the appellant’s daughter, and further whether the act or acts relied upon to found the charge represented “a major departure from the standard of care to be expected of a reasonable person”.

Further analysis of the District Court’s decision

[28]     The outcome of the appeal turns, therefore, on whether Judge Tompkins was justified in finding both of those elements proved to the required standard.

[29]     In determining that there was proof beyond reasonable doubt that the conduct and/or  omission  relied  upon  was  likely to  cause harm,  the Judge identified  the cumulative effect of the following facts which he found to be proved:

(a)      The  appellant  had  chosen  to  consume  a  considerable  quantity  of alcohol over an extended period that evening, both at her own house and subsequently at the friend’s rural property.

(b)The appellant made a precipitous and, as it turned out, unnecessary decision to drive from the rural property without telling anyone, knowing she was very drunk.

(c)      Having driven away from the property, in circumstances where the Judge did not accept that there was nowhere to stop to move the child from the front seat into the car restraint in the back seat, the appellant carried on driving without any clear idea of where she was in circumstances where she did not know the roads.

(d)The appellant drove in such a way as to fail to take a moderate bend, crashing her car after driving through a “T” intersection, crossing the centre line, striking a road sign, and coming to rest in a roadside ditch just sort of an uncontrolled railway crossing.

[30]     After describing these factors, the Judge went on to note that the appellant lied to Police about the quantity of alcohol she had consumed, and where she was heading, and that she failed to tell the Police at that time what she maintained in evidence was that there had been serious threatening circumstances back at the house she had just left “where she had abandoned her friend.”   I do not read these observations as going to conduct the cumulative effect of which was to create a risk of harm to the appellant’s child or to amount to a breach of any duty.  They indicate, however, that the Judge had reservations about the appellant’s explanations for her conduct.

[31]     I turn to consider whether the ingredients of the offence were made out.

[32]     Given the way in which the prosecution  approached the case, and given defence counsel’s concession that it was open to the informant to rely on a course of conduct as amounting to breach of the duty to take reasonable steps to protect the appellant’s daughter from injury, it is  appropriate to regard the two  matters the prosecution was required to establish beyond reasonable doubt as being:

(a)       first, that it was likely that injury to A would result as a consequence

of the appellant’s actions; and

(b)      second, that the appellant’s actions amounted to “a major departure”

from the standard of care expected of a reasonable person.

Was the appellant’s conduct likely to cause injury to A?

[33]     Considering the first question, the word “likely” means such as might well happen; it connotes a real or substantial risk, rather than requiring any assessment or balancing of the probabilities.8    The prosecution case focused on the risk of injury.

“Injury” is defined in the Crimes Act as meaning “to cause actual bodily harm”.9

Whether the appellant’s acts were likely to cause injury is a question of fact and it is

not necessary for the prosecution to prove that actual injury arose.10

[34]     Judge Tompkins held that the risk of harm to the appellant’s child was caused by a combination of her intoxication, the manner of driving, and the placement of the child in the front seat rather than the booster seat in the rear.   It was said by the appellant in evidence that at the time of the alleged offence her daughter was only two months shy of her fifth birthday and that she was a tall child.  The prosecution did not call evidence as to the relative effectiveness of the front passenger seatbelt and the rear child booster seat in minimising the risk of injury for this child. Nevertheless, it is a reasonable inference from the obligation under r 7.6 of the Land Transport (Road User) Rules 2004 to ensure that the appellant’s daughter, being under the age of 5 years, was properly restrained by an approved child restraint appropriate for the child that the risk of injury was increased by the failure to comply.  The objective of the rule as described in Schedule 1 is to promote the safe and efficient operation of roads.   Further, although not directly relevant to the decision, the amendment of r 7.6 from 1 November 2013 to increase the maximum

age for its application from 5 years to 7 years11  supports the view that the use of

adult restraints for young children is regarded as an inadequate safety measure.

8      R v Hende [1996] 1 NZLR 153, at 156.

9      Crimes Act 1961, s 2.

10     R v Hende, above n 8 at 156-157.

11     Land Transport (Road User) Amendment Rule (No 2) 2013 (SR 2013/278), cl 7(2).

[35]     I agree, therefore, with the conclusion reached by the District Court Judge that the combination of the appellant’s level of intoxication, her manner of driving, and  the manner  in  which  the  appellant’s  child  was  restrained  created  a  real  or substantial risk of injury.

Was the appellant’s conduct a major departure from reasonable standards?

[36]     Some assistance as to the meaning of the term “major departure”, which also appears in s 150A of the Crimes Act, can be obtained from the discussion of that term in the context of the degree or extent of negligence required to constitute manslaughter under s 160(2)(b) of the Crimes Act.

[37]     In R v McKie, William Young J noted:12

Although there is no single form of words employed by High Court judges in New Zealand when summing up to juries on the application of s 150A, my impression is that juries are given guidance as to what amounts to a “major departure” by reference to concepts which were acted on in Adomako. In other words, judges are likely to refer to the concept of gross negligence and tell jurors that they should only convict if satisfied that, having regard to the risk of death involved, the conduct of the accused was so bad as to amount, in the judgment of the jury, to a crime.

[38]     The reference to R v Adomako refers to the judgment of the House of Lords in the leading decision in the United Kingdom.13  In that case, Lord Mackay, with whom the other Lords agreed, said:14

... in my opinion the ordinary principles of the law of negligence apply to ascertain  whether  or  not  the  victim  has  died.  If  such  breach  of  duty  is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct

departed from the proper standard of care incumbent upon him, involving as it

12     R v McKie HC Dunedin T13/00, 31 July 2000.

13     R v Adomako [1994] 3 All ER 79 (HL).

14     At 86 – 87.

must have done a risk of death to the patient, was such that it should be judged criminal.

[39]    The approach to determining whether the conduct amounts to a “major departure” is therefore a two-step process. The first step is to consider whether there has been a departure from the standard of care expected from a reasonable person. But this in itself is not sufficient15 and the second step is to consider whether such a departure was “major” by reference to community standards. In determining the second step, the seriousness of the appellant’s breach of duty and the circumstances in which the appellant was in when it occurred are highly relevant and, when looked at as a whole, the conduct must be so bad as to justifiably be considered criminal.

[40]     It was not argued in the District Court, or on appeal, that the appellant’s actions did not amount to a departure from the standard of care expected of a reasonable person; that much was inherent in the pre-trial concessions made by defence counsel.   What was disputed, however, was whether the departure in the present case amounted to a “major” departure.

[41]     The circumstances of the breach involved the appellant driving at night in a rural area with which she was not familiar while she had a breath/alcohol level of more than twice the legal limit.  Driving with a young child in the vehicle in those circumstances is bad enough; doing so when the child was not properly restrained exacerbates the risk of injury.  It is significant factor that once the appellant had fled the address and removed the child and herself from any immediate harm caused by the unwelcome visitors, she failed to pull over and wait until she was fit to drive on. Nor did she move A to where she could at least be properly restrained in the car seat which was in the back of the vehicle.  I do not accept that there was nowhere for the appellant to pull over; it was a rural area and it would have been perfectly feasible to

stop on the verge of the road.

15     See for example R v Powell [2002] 1 NZLR 666 (CA) where, at [7], the Court of Appeal said that a jury direction that “careless driving is nothing more, nothing less, than failing to exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances” was “considerably below” the major departure test.

The combination of the circumstances referred to satisfies me that the appellant’s conduct amounted to a major departure from the standard of care to be expected of a reasonable person, and that that warrants a criminal sanction.

Result

[42]     I agree with Judge Tompkins that the elements of the offence were properly made out and I dismiss the appeal against conviction accordingly.

..............................

Toogood J