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R v Tooman

R v Tooman

Case [2020] NZHC 469 11 March 2020

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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANT AND PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-001500

[2020] NZHC 469

BETWEEN THE QUEEN

AND

SHANA TOOMAN

Defendant

Hearing: 24 February – 9 March 2020

Appearances:

J Rhodes and A Al-Janabi for the Crown

M Allen and A Cranstoun for the Defendant

Judgment:

11 March 2020

ORAL VERDICT OF HINTON J

Solicitors/Counsel:
Kayes Fletcher Walker Ltd, Manukau Public Defence Service, Manukau

R v TOOMAN [2020] NZHC 469 [11 March 2020]

Introduction

[1] Ms Shana Tooman has been charged with causing GBH with intent to cause GBH to [the complainant], her infant daughter.1 The trial of the charge has taken place before me without a jury, with evidence called between 24 February and 4 March 2020 and closing submissions on Monday 9 March 2020. While initially Ms Tooman had elected trial by jury, I gave her leave to change that election on 17 February 2020.2

[2] The charge arises out of events said by the Crown to have taken place at Ms Tooman’s home address in [suburb] on 11 July 2017. At that time, [the complainant] was about six months old but was born almost four months prematurely in January 2017 so her corrected age at the time of the incident was 10 weeks.3

[3] Having sat and listened to the evidence and weighed it up carefully, I now proceed to give my verdict.

Elements of the Charge

[4]The Crown bears the onus of proving beyond a reasonable doubt that:4

(a)on 11 July 2017, at her home address in [suburb], [the complainant] suffered grievous bodily harm (GBH), that is really serious hurt or harm;5

(b)Ms Tooman caused that harm; and

(c)at the time she caused [the complainant] that harm, Ms Tooman had intended to cause that harm.

[5] As to the third element, it is not sufficient for the Crown to prove only that, at the material time, Ms Tooman foresaw that really serious bodily injury might have

1      Crimes Act 1961, s 188(1).
2      Criminal Procedure Act 2011, s 53.
3      Notes of Evidence at 78.
4      Crimes Act 1961, s 188(1).
5      Filitonga v R [2017] NZCA 492 at [27]-[29].

resulted.6 Rather, the Crown must prove beyond a reasonable doubt that, at the time the harm to [the complainant] occurred, Ms Tooman had intended to cause her GBH.7 That is, that she had decided, in causing [the complainant] harm, to bring about that harm.8 This is distinct, also, from the question of whether the harm inflicted amounted to GBH.9

[6] Equally, the Court of Appeal has accepted, and the Crown relies on the fact, that a defendant can properly be inferred…

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 R v Tooman

Details

AGLC: R v Tooman [2020] NZHC 469
Case: [2020] NZHC 469
Decision Date: 11 March 2020

CaseChat Overview and Summary

Shana Tooman was convicted of causing grievous bodily harm with intent to cause grievous bodily harm to her infant daughter. The defendant had taken the infant to hospital after claiming the infant had choked on her saliva and stopped breathing. Medical evidence established the infant had suffered severe and multiple injuries including fractures, internal bleeding, and brain damage, which could not have been caused by the defendant’s account of events. The defendant’s text messages prior to the incident, which indicated a propensity to harm the infant, were admitted as evidence and were considered in convicting the defendant. The defendant was found guilty on all elements of the charge.

Orders