The Queen v Andersen
[2004] NZCA 238
•22 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA367/03
THE QUEEN
v
ASTRID CHRISTINE ANDERSEN
Hearing:12 May and 26 August 2004
Coram:Glazebrook J
William Young J
O'Regan JAppearances: F B Barton and S M Grieve for Appellant
B M Stanaway and M N Zarifeh for Crown
Judgment:22 September 2004
JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J
Table of Contents PARAGRAPH NUMBER Introduction [1] What the Crown alleged against the appellant [5] Overview of the appeal [17] The mens rea issue The approach of Judge Abbott [21] The Crown argument in this Court [27] Support for the view that s 145 creates a crime of
negligence[40] The legislative history [44] The authorities [49] Evaluation [55] Acquittal or new trial? [62] Application of s 150A [63] Other grounds of appeal General [67] Was Le Race “anything whatever” for the
purposes of s 156?
[69] Evidence as to Mrs Caldwell’s pregnancy at the
time of her death.[72] The overall conduct of the trial. [80] The answers and directions given in response to
questions from the jury when the jury was
deliberating[90] Result [99] Introduction
[1] The appellant, through her company (The Events Company Ltd) organises an annual cycling event known as Le Race. The participants (some of whom compete in teams) cycle between Cathedral Square in Christchurch and Akaroa. The route takes them south along Colombo Street, up Dyers Pass Road to the Sign of the Kiwi, along the Summit Road to Gebbies Pass, from there, via State Highway 75, to Hill Top, then along the Summit Road towards Akaroa until that road rejoins State Highway 75 just before Akaroa and then down to Akaroa.
[2] The 2001 event took place on 31 March 2001. One of the participants was Mrs Vanessa Caldwell. She was a member of a team and her role was to complete the fourth and final leg which started at Hill Top. In the course of this leg, Mrs Caldwell over-took another cyclist as she was approaching a blind corner just before the Le Bons Bay turn-off. She crossed the centre line and collided with an oncoming car. Mrs Caldwell died as a result.
[3] Arising out these events, the appellant was tried before Judge Abbott and a jury in the District Court at Christchurch on a charge of criminal nuisance. After a lengthy trial the jury found her guilty. She was subsequently fined $10,000.
[4] She now appeals against conviction.
What the Crown alleged against the appellant
[5] The count on which the appellant was tried was expressed in these terms:
THE CROWN SOLICITOR AT CHRISTCHURCH CHARGES that ASTRID CHRISTINE ANDERSEN on or about 31 March 2001 at Christchurch and Banks Peninsula did commit criminal nuisance, in that being the person who was in charge of the Le Race 2001 cycle race, she omitted to discharge her legal duty to take reasonable precautions against, and use reasonable care to avoid, endangering human life, such an omission being one that she knew would endanger the lives or safety of the public or any individual.
[6] This count was based on s 145 of the Crimes Act 1961 which provides:
145 Criminal nuisance
(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.
(2) Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding one year.
[7] Although the count does not refer expressly to s 156 of the Crimes Act, it is common ground that in the District Court, the Crown was relying on the legal duty created by that section. That section provides:
156 Duty of persons in charge of dangerous things
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
[8] The Crown case was that the material which the appellant made available to the participants, both in writing and in a pre‑event oral briefing, did not make it clear that the portion of the Summit Road on which the accident occurred was not closed to traffic.
[9] A possible (although not the only) explanation for Mrs Caldwell’s position on the road immediately prior to the accident was a belief on her part that the portion of the Summit Road on which she was riding was closed to other traffic. A number of other people who participated in Le Race 2001 gave evidence that this was their impression.
[10] The key, although not necessarily the only factor, leading to this misunderstanding is the way in which an information sheet about the event was expressed. This was, relevantly, in these terms:
Welcome to Le Race 2001
Everyone please read this carefully. Please pass this information on to your support vehicle. Team Captains pass this information on to the rest of your team. Remember there are to be no support vehicles on The Summit Road – this is for cyclists safety.
The Start Procedure:
Please make sure you are in Cathedral Square by 7.30am.
We are having a mass start the safety rules for this are as follows:
· Those intending to do the course in under three hours are to be in the front of the group, those intending to take 6 hours or more at the back of the group. The rest in between. Please position yourself according to the signage in the start area
· We will proceed down Colombo Street at a leisurely pace (15‑20km). You are to stay in position – anyone passing the lead car will be instantly disqualified!
· When you cycle down Colombo Street – please do not cycle more that six abreast. We have arranged for a green wave – so you will not have to stop at the traffic lights.
· Be aware that every now and then there are concrete islands in the middle of Colombo street – they are nasty – STAY LEFT
· As the lead car nears the end of Colombo Street it will speed up spreading the group before you get to Dyers Pass Road.
· On the rest of the course you must obey the road code. Do NOT go over the centre line.
No Sneaky Cyclists Allowed
Last year we had a few cyclists who took part who had not officially entered, and we ended up providing both mechanical support first aid to some who had not entered. This means we are not able to support the official Le Racers. And isn’t it interesting that those who didn’t enter and received mechanical support also didn’t drop in the money to John Bull for the parts they received. This year only those who have officially entered will be able to take part.
We have an official road closure on the Summit Road – The “Le Race Check Point” only those cyclists who have officially entered Le Race and are wearing their race numbers and their Le Race Sticker on their helmet will be let through. If there is one rogue cyclist in a bunch – the whole bunch will be stopped!! So make sure everyone in your bunch is officially entered.
…
[11] As our description of the course indicated, participants were to travel along two roads which are both known as “the Summit Road”. The “official road closure on the Summit Road” referred to in the information sheet was a checkpoint between the Sign of the Kiwi and Gebbies Pass, ie on the “first” Summit Road. While technically a road closure for the purposes of the Local Government Act, this checkpoint did not prevent other traffic using that portion of the Summit Road. It was simply a mechanism for ensuring that all cyclists were bona fide participants.
[12] The Crown case was that, in context, the reference in the information sheet to “an official road closure on the Summit Road” was capable of being interpreted as meaning that the Summit Road on which the accident occurred (ie the “second” Summit Road) was closed in the sense that no other traffic would be permitted on the road and thus could have induced participants to think that it was safe to use the whole road and not keep to the left.
[13] The Crown case was not confined to possible ambiguities in the information sheet. There were also complaints about the pre-event oral briefing.
[14] The broader context the Crown relied on was that cyclists participating in such an event have a tendency to bunch (and thus to cross the centre line) and that, in any event, a competitive environment encourages participants to stray from the correct side of the road, either to cut a corner or for overtaking purposes.
[15] Overall, the Crown argument was that the appellant ought to have taken decisive steps to bring home to participants the reality that, over the whole course, there would be oncoming traffic and the steps to this end which she took were inadequate.
[16] To tie this back into the statutory language used in ss 156 and 145 of the Crimes Act, the elements in the Crown case were:
(a)The appellant was in charge of the Le Race 2001 event.
(b)Le Race was, for the purposes of s 156, “anything whatever”.
(c)In the absence of precaution or care, Le Race 2001 had the potential to endanger human life.
(d)The appellant therefore had an obligation under s 156 to take reasonable precautions against, and use reasonable care to avoid, danger to human life.
(e)She omitted to take such precautions in that she failed to take adequate steps to warn participants of the risks posed by oncoming traffic and of the consequent necessity to keep to the left.
(f)She knew her omission would endanger the lives or safety of the public or any individual.
Overview of the appeal
[17] The appeal (which is confined to conviction) was initially advanced on the basis of a multiplicity of contentions which seem to us to fall generally under four broad contentions:
(a)Judge Abbott wrongly concluded in a pre-trial ruling and later summed up on the basis that the race was “anything whatever” for the purposes of s 156.
(b)Evidence as to Mrs Caldwell’s pregnancy at the time of her death was wrongly admitted.
(c)The Judge’s overall conduct of the trial was unfair.
(d)The Judge gave inappropriate answers and directions in response to questions from the jury when the jury was deliberating.
[18] We will address each of these contentions in this judgment. But before we do so, we will address what we see as the fundamental problem with the conviction. This relates to the mens rea component in s 145. This issue involves subtle arguments which we will discuss in some detail shortly. For present purposes, it is sufficient, if perhaps a little simplistic, to treat the issue as coming down to whether the mens rea required to be established involves negligence or must extend to recklessness.
[19] Before trial, Mr Barton argued that the Crown could not secure a conviction against the appellant without proving recklessness and that, as this could not be established, the appellant ought to be discharged under s 347 of the Crimes Act. This argument was rejected by Judge Abbott in terms which we will set out shortly and he summed up to the jury essentially on the basis that all that the Crown was required to prove was negligence.
[20] Mr Barton did not initially seek to re-argue this question in this Court. However, after some prompting from the bench, he elected to do so. This necessitated an adjournment to give the Crown a fair opportunity to respond to the point and a resumption of the hearing on 26 August 2004.
The mens rea issue
The approach of Judge Abbott
[21] It will be recalled that s 145 requires proof that the omission relied upon by the prosecution was one which the defendant “knew would endanger” life.
[22] The Judge summed up on the elements of the offence in these terms:
[99] The first element which the Crown must prove is that Ms Andersen was the person who was in charge of the Le Race 2001 cycling event.
[100] Although in his final address yesterday Mr Barton noted that the legal entity which organised Le Race 2001 was in fact a private company named The Events Company Ltd, it appears that the defence does not in fact challenge the assertion by the Crown that Ms Andersen was the person who was in charge of the event. On that basis, it is unnecessary for me to say any more about the first element.
[101] The second element which the Crown must prove is that, as the person who was in charge of Le Race 2001, Ms Andersen failed to take reasonable precautions against, and to use reasonable care to avoid, danger to human life in respect of the planning and/or the management of the event.
[102] This is the crucial element in the context of this trial, and I shall return to it again shortly.
[103] However, the essence of the Crown case is that Ms Andersen failed to take reasonable precautions against, and to use reasonable care to avoid, danger to human life in respect of the planning and/or the management of Le Race 2001 by failing to ensure that the information which was provided to entrants in the event regarding the status of Summit Road was clear and unambiguous.
[104] The third element which the Crown must prove is that the omission in question was an omission which Ms Andersen knew would endanger the lives or safety of the public or the life or safety of any individual.
[105] In the context of a charge which relates to an offence which involves proof of negligence, as opposed to proof of an intentional act or even a reckless act, the concept of knowledge is of course not an easy concept to grasp.
[106] However, as a matter of law, knowledge in this context simply means that, if Ms Andersen had turned her mind to the alleged omission in question, she would have known that it would endanger life or safety.
[107] While it is of course a matter for you, and I emphasise that, I suggest that proof of this element may not cause you any difficulty.
[108] That is because, as is apparent from the hazard identification sheets which formed part of the health and safety plan for Le Race 2001, Ms Andersen herself identified cyclists getting the wrong information and two-way traffic on narrow sections of the course as two of the particular potential hazards in respect of the running of the event.
[109] It would therefore be open to you to draw the inference that, if Ms Andersen had realised that entrants in Le Race 2001 might reasonably infer from the pre-race information, and from what occurred during the event, that the Summit Road was closed, thereby leading them to believe that they need not keep to the left, that would cause danger to them.
[110] As I indicated a few moments ago, I suggest that the crucial issue in the trial relates to the second element of the offence which is the subject of the charge.
(Emphasis added)
[23] What the Judge meant in the passage set out in para [106] of the summing‑up is not entirely clear. So it is appropriate to refer also to the manner in which the Judge, later in his summing up, summarised the Crown contention on this point:
[266] Seventhly, it is clear from Ms Andersen’s own hazard identification documentation that she had identified the possibility of cyclists getting the wrong information as a potential hazard, from which it is reasonable to infer that, if she had turned her mind to the issue, she would have known that cyclists not being given clear information regarding the status of the Summit Road would endanger their safety.
[24] In summing up in this way, the Judge did not follow the literal words of the section. On the face of it, s 145 required the Crown to show that the appellant actually knew that her omission would be dangerous. The Judge held that there was no need for the Crown to prove that the appellant was aware of what was alleged by the Crown to be the relevant omission (the ambiguity in the information provided to participants) and knew that this omission would endanger the safety of participants. He rather saw the issue of knowledge as relating to the more general, abstract and, from the appellant’s viewpoint, hypothetical question whether the appellant recognised that a failure to give clear information would be dangerous. Further, he treated this issue as turning not on what the appellant actually knew but rather what she would have recognised if she had turned her mind to it. The Judge’s reference to what the appellant would have appreciated if she had turned her mind to it involves a test which is not materially different from, and thus in effect, a “knew or ought to have known” approach. Broadly, the Judge invited the jury to convict if satisfied that the appellant was negligent.
[25] As we have indicated, Mr Barton for the appellant had unsuccessfully argued before trial that s 145 required proof of recklessness. The rejection of this argument came in a ruling delivered by Judge Abbott on 19 May 2003. To understand why Judge Abbott summed up in the manner just indicated, it is necessary to refer back to what he said in this ruling:
[136] As it relates to Ms Andersen, the third element of the offence of criminal nuisance is that she knew that her failure to discharge her legal duty in respect of the safety precautions would endanger the lives or safety of the public or any individual.
[137] As will be apparent, the concept of knowledge in the context of issues of negligence or breach of duty has some inherent difficulties. If a person knows that his or her conduct is likely to cause danger to others, and if he or she then decides to proceed with that conduct, the law categorises that state of mind as recklessness. If a person commits a particular act, intending that a certain outcome should follow from that act, the act is committed intentionally.
[138] These difficulties were discussed by Gendall J in Police v TelstraSaturn Ltd (High Court, Wellington, AP 86/02, 31 May 2002), as follows (paragraphs [14]-[15]):
“[14] Beyond doubt in order to sustain a conviction under s 145 of the Crimes Act 1961 those who omit to discharge a legal duty must know that such omission would endanger the lives, safety or health of the public or of any individual. In most situations that will require the drawing of inferences from the proven facts. The issue is not whether a person ‘ought’ to have known that their acts or omissions would have endangered public safety but whether they must have known that to be the case. Such is apparent from the decision of the Court of Appeal in R v Turner (1995) 13 CRNZ 142. Logically there may be some difficulty in understanding how, if someone breaches a legal duty through omission so that they do not know what they do, it could be said that they knew that such omission would endanger the safety of the public? Yet, in the end the question really must be: if someone omits to perform a legal duty in such circumstance, must they have known that such failure, if they had turned their minds to it, would endanger the public. Those are matters of fact and inference to be drawn from all factors such as:
(a)the type and nature of the dangerous object or thing under the charge of control of that person; and
(b) the circumstances of the omission and its nature;
(c) the danger causatively created by it;
(d)the proper inferences to be drawn from all the surrounding circumstances.
[15] If the omission is such that the person must have known that it would endanger the lives or safety of others then it falls within s 145. But it is always a question of degree and assessment of all the factual circumstances of an individual case.”
[139] In his submissions Mr Barton said (paragraphs 50-51):
“50. The defence position is that the Crown is unable to establish the requisite knowledge. In the current circumstances, having regard to the unpredictable nature of a sporting event such as this, with so many variable factors which can impact on the safety of the participants, it is not possible to say that Ms Andersen must have known that in organising the event, she omitted to take all reasonable steps to ensure safety. The evidence shows that there was a major emphasis on safety, both in the pre-race information and at the briefing. All witnesses acknowledged that they were instructed to obey the road rules and keep left.
51. The evidence clearly does not support a contention that Ms Andersen knew that she had omitted to take some reasonable step or reasonable precaution and, furthermore, that such omission had caused danger to the public. If there was some confusion in the minds of some competitors regarding the status of the roads, Ms Andersen was unaware of this. Accordingly, she cannot be said to have known that the information provided could have endangered the safety of the participants.”
[140] However, the issue is not whether Ms Andersen must have known that in organising Le Race, she omitted to take all reasonable steps to ensure the safety of participants. As Gendall J said in TelstraSaturn (in particular in paragraph [9]), the issue is not whether a person must have known that he or she omitted to take all reasonable steps to ensure the safety of the public or any person but whether, if he or she had turned his or her mind to it, the person must have known that his or her acts or omissions could have resulted in danger to the public or to any person. In other words, Mr Barton stated the test incorrectly, except in the final sentence of paragraph 51.
[141] If the correct test is applied, in my view there is evidence from which a jury could infer that Ms Andersen must have known that any omission on her part in respect of safety issues could cause danger to participants in Le Race.
[26] As we will indicate shortly, there was some progression in Judge Abbott’s approach to the case between his pre-trial ruling and the summing up. But is fair to say that his general approach throughout was that s 145 creates a crime of negligence rather than recklessness.
The Crown argument in this Court
[27] In this Court Mr Zarifeh for the Crown argued for an approach which differed slightly from that taken by the Judge.
[28] Mr Zarifeh accepted that the word “knew” which appeared in s 145 could not be ignored. He also accepted that it could not mean “knew or ought to have known”. While not enthusiastic about abandoning the Judge’s “would have known if she had turned her mind to it” approach, he accepted that there were difficulties reconciling it with the language used in the section.
[29] His core contention was that all the Crown had to show was that the omission in question fell broadly into a class of possible omissions which had been recognised by the appellant as likely to cause danger were they to occur. To put this another way, it was enough for the Crown to prove that the appellant recognised that if she gave ambiguous information to participants, that would give rise to danger.
[30] For ease of reference we will refer to the Judge’s approach as involving “simple negligence” and Mr Zarifeh’s approach as “negligence plus”. Mr Zarifeh’s position broadly was that it did not matter that the Judge had put the case to the jury on a simple negligence basis because, on the facts (which are referred to in para [108] of the summing up, set out in para [22] above) it is clear that the appellant had all the knowledge which was required to satisfy the negligence plus test.
[31] As just indicated, the evidence showed that the appellant had specifically turned her mind to safety problems which might result from participants receiving incorrect information. Mr Zarifeh would have preferred to focus the knowledge requirement on this feature of the case rather than the more general consideration that the appellant could fairly be taken to have known that a failure to take proper precautions in the organisation of Le Race 2001 would result in danger.
[32] Interestingly there was something of a progression on this point in the approach of Judge Abbott to the case. In his pre-trial ruling, he saw the knowledge requirement (qualified by his “or would have known if she had turned her mind to it” gloss) as focused on the general awareness of the appellant that a failure to take adequate care would result in danger, see para [141] of his May 2003 ruling, set out above in para [25]. In his summing up, the Judge focused on an apparently narrower question - what the appellant would have appreciated if she had turned her mind to the “alleged omission”, namely risks associated with cyclists “not being given clear information”, see para [266] of his summing up, referred to in para [23] above.
[33] The argument urged on us by Mr Zarifeh and the shift in emphasis which occurred in the Judge’s overall approach to the case might be thought to reflect an unarticulated uneasiness with the proposition that the word “knew” can fairly be construed simply as awareness (actual or deemed) of the underlying facts and risks which gave rise to the duty of care. In that context it is understandable that both the Judge and Mr Zarifeh should attempt to identify something more specific as the focus of the relevant inquiry.
[34] This search for specificity, understandable though it is, seems to us to be illusory.
[35] There was only one relevant duty under s 156, namely a duty “to take reasonable precautions against and use reasonable care to avoid” danger to human life. There were not separate and independent duties to take reasonable care to ensure that cyclists did not cross the centre line or to give unambiguous instructions to participants. Rather, failing to take proper care in those respects were simply two of the innumerable respects in which the general duty might have been breached. In that context there is no obvious reason why criminal liability should turn on whether particular omissions alleged by the Crown fall naturally within some broad category of risk, albeit one recognised by the defendant, where that broad category of risk is merely a subset of the general potential for risk which gives rise to the underlying duty.
[36] The difficulties with such an approach are highlighted by the facts of the present case.
[37] On the “ordinary” meaning of the information sheet (see para [10] above), the appellant was not asserting that the Summit Road would be closed to on-coming traffic. Further she gave unequivocal instructions to comply with the Road Code and not cross the centre-line. Where the Crown case was at its strongest was in its contention that the appellant did not do enough to dispel the natural tendency of cyclists to use the entire road and that in this special context what might otherwise be regarded as clear instructions might be misinterpreted. It is not self-evident that any fault on the part of the appellant (if there was any fault in this respect) fell broadly into a class of possible omissions which had been recognised by her as likely to cause danger were they to occur. And, in any event, an inquiry whether there had been such recognition on her part is unrelated to any sensible assessment of the culpability of the appellant’s behaviour. Indeed, if the law were as Mr Zarifeh contends, it would provide a perverse incentive not to engage in careful pre-event risk analysis. This is because the more extensive such analysis, the more likely it is that any omission would be referable to a broad category of risk which had been recognised by the organiser.
[38] Since Mr Zarifeh has always recognised that the Crown could not show that the appellant “knew” that she had breached the underlying duty, it seems to us that his case must logically depend on the proposition that it was enough to show that she knew generally that failure to take appropriate precautions would result in danger.
[39] It follows that there is not much difference between the simple negligence approach favoured by the Judge and the negligence plus approach favoured by Mr Zarifeh. In virtually any case in which s 145 is invoked in respect of an alleged omission, the defendant will have appreciated that the activity in question had the potential to cause danger and will thus have appreciated, at least as an abstract proposition, that a failure to take reasonable precautions would give rise to danger. This is because the circumstances which give rise to the underlying duty of care will almost always be obvious to the person who is subject to that duty of care. Only a defendant who was oblivious to the underlying risk associated with his or her activities would be guilty on the Judge’s simple negligence approach and not guilty on Mr Zarifeh’s negligence plus approach.
Support for the view that s 145 creates a crime of negligence
[40] The view that s 145 creates a crime of negligence is not unorthodox.
[41] The commentary on s 145 in Adams on Criminal Law notes:
… In contrast to section 167(b) … , it seems probable that it is unnecessary for the accused to be consciously aware that danger to life or health had arisen if the accused knew that an act or omission of the relevant type would create such danger. Such knowledge will often be readily inferred when the danger is obvious, but “knowledge or deemed knowledge” does not suffice: compare Police v Tolhurst [1998] DCR 815, 823. In Police v TelstraSaturn Ltd … , the Court noted the logical problem involved in proving that someone who breaches a legal duty through omission, not realising their failure, nevertheless “knew” that the omission would endanger the public. In this context the test was described as being “must they have known that such failure, if they had turned their minds to it, would endanger the public” (para 14).
[42] Sir Duncan McMullin in his report of 5 September 1995 to the Minister of Justice on ss 155 and 156 of the Crimes Act 1961 (in which he recommended that the major departure test now found in s 150A of the Act should apply to s 145) plainly proceeded on the basis that s 145 created a crime of negligence. Further, Parliament, which accepted all of Sir Duncan’s other recommendations, decided not to apply the major departure test to s 145 because it thought it best to leave that section as creating a crime of negligence. This is apparent from the report of the Justice and Law Reform Select Committee of 24 October 1997 on the bill which result in the enactment of s 150A.
[43] So in treating s 145 as a crime of negligence rather than recklessness, Judge Abbott was in good company.
The legislative history
[44] The precursors to s 145 in the Criminal Code Act 1893 and the Crimes Act 1908 did not contain a knowledge component. Sections 158 and 159 of the Crimes Act 1908 provided:
158 Common nuisance defined
A common nuisance is an unlawful act or an omission to discharge a legal duty, such act or omission being one which endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty’s subjects.
159Common nuisances that are criminal
Every one is liable to one year’s imprisonment who commits any common nuisance which endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual.
[45] There are a number of differences between these provisions and the current legislation. Section 158 of the 1908 Act was reasonably closely aligned with the civil concept of public nuisance (and certainly more so than s 145 of the 1961 Act). Section 159 of the 1908 Act did not criminalise common nuisances which merely exposed individuals (as opposed to the public) to danger. In this respect the position is now different under s 145. But most importantly for present purposes, no specific mens rea was prescribed by s 159 of the 1908 Act. In this respect the change in language between the 1908 legislation and s 145 might be thought to have been intended to limit the scope of the offence.
[46] A simple negligence approach would have been appropriate under ss 158 and 159 of the Crimes Act 1908. Its continuing application depends on the assumption that the wording adopted in 1961 was not intended to change the basis upon which liability could be imposed. This does not seem likely and indeed becomes even more improbable when the relevant parliamentary history is considered.
[47] In the Crimes Bill which became the Crimes Act 1961, the precursor to what is now s 145 had the words “or ought to have known” after the words “knew”. These words were removed at the same time in the Parliamentary process as the same words were removed from what is now s 167(d). These changes to the Crimes Bill were a reaction to the implications of the decision of the House of Lords in Director of Prosecutions v Smith [1961] AC 290. In that case, the House of Lords held that the trial Judge had been right to leave it to the jury to convict the defendant of capital murder on the basis that he ought to have realised (ie a reasonable person would have realised) that his actions (driving off in a car with a police man trying to stop him) would have been likely to cause grievous bodily to the police officer. This case was very controversial (because it permitted conviction for murder where the defendant had only been negligent) and our Parliament was anxious to avoid the possibility of similar convictions occurring in New Zealand. Section 167(d) is one of the provisions which defines the circumstances in which a person can be convicted of murder. As a result of the amendment which was made to the bill, this particular provision only applies if the offender was reckless. So this linkage between ss 145 and 167(d) is consistent with the view that the legislature in 1961 intended that s 145 create an offence of recklessness.
[48] We accept that the Parliamentary history includes what happened in 1997, when Parliament amended the Crimes Act to insert s 150A. As indicated, Parliament then acted on the assumption that s 145 created a crime of negligence. It is worth noting, however, that this assumption was, at the time, labelled “a false premise” and described as “quite wrong”, see Kevin Dawkins “Medical Manslaughter” [1997] NZLJ 393 at 395.
The authorities
[49] With the exception of TelstraSaturn, there is no warrant in any of the earlier decisions which have considered s 145 for treating it as a negligence as opposed to a recklessness offence.
[50] R v Turner (1995) 13 CRNZ 142 is the only case in which the point has been addressed in this Court. There a prosecution for criminal nuisance was brought against the managing director and general manager of a mussel processing facility associated with a failure to take appropriate precautions to prevent listeria contamination (referred to in the judgment as “LM”). They were convicted following a trial before a Judge alone and appealed on a number of grounds. One was associated with the question of the appellants’ knowledge. This argument was addressed by this Court in this way at 158-159:
The Judge … held that in terms of s 156, the appellants failed to take reasonable precautions against and use reasonable care to avoid the danger to life which would result if product containing LM reached consumers. He found that it had accordingly been proved in terms of s 145 of the Act that each accused had omitted to discharge a legal duty. Each knew that LM in the mussel product would endanger the life, safety, or health of consumers.
Mr Panckhurst submitted that that finding did not address what he contended was the essential issue namely did the appellants know that one or more of the established omissions would endanger life. … It is apparent from the conclusions reached earlier it is sufficient if the Crown proved that each appellant knew that the omission would materially add to the risk of the consumer being infected as a result of LM in the mussels. There was, in our view, evidence upon which the Judge could conclude that appellants' omissions were such that they must have known that they would result in a risk of LM contamination, which would result in a risk of danger to human life, safety or health.
[51] We observe that there is nothing in that passage to suggest that anything short of full knowledge of a recognised breach of duty suffices for the purposes of s 145. The Court would appear to have found the appellants to be culpable because it could be inferred from the evidence that they knew that their actual omission would give rise to a risk of listeria contamination which in turn would give rise to danger. There are references in the judgment which might be thought to denote a negligence standard but they are, with one possible exception (at 150) addressed to a different issue, namely whether there was, in that case, a breach of s 156. Certainly the overall drift of the judgment is that the standard is not simple negligence.
[52] The same approach was taken by Doogue J in R v Tranz Rail Ltd (High Court, Wellington Registry, T1/96, 15 February 1996) when he discharged Tranz Rail Ltd under s 347 of the Crimes Act in relation to a count laid under s 145. There the Crown could not prove a breach of duty so the issue we are addressing did not directly arise. The Judge, however, plainly thought that actual knowledge that he alleged omission would endanger life was required, see his remarks at pp 14-15:
I have some difficulty with the concept that knowledge for the purposes of s 145 of the Act can be inferred because the danger resulting from someone falling off a train is obvious. The section creates a criminal offence. … Unless the accused is shown to have knowledge that the omission relied upon by the Crown would endanger someone, where is the offence?
[53] We agree that the passage in the judgment of Gendall J in TelstraSaturn is well open to the interpretation placed on it by Judge Abbott (and indeed by the authors of Adams on Criminal Law). However, we are not sure that Gendall J intended what he said to be taken in that way. Gendall J had before him an appeal by way of case stated from the District Court judgment dismissing an information laid under s 145 against TelstraSaturn Ltd because the Judge “had a reasonable doubt that [TelstraSaturn] had the requisite knowledge to establish the offence”. In his judgment Gendall J made it clear that it was not sufficient to obtain a conviction under s 145 to show that the defendant “ought to have known” that his or her acts or omissions caused a danger. Rather, there was a requirement to prove that they “must” have known that. In the end, the Judge upheld the decision of the District Court Judge.
[54] In the end, what Gendall J meant in TelstraSaturn is not decisive as his judgment is not binding on us.
Evaluation
[55] Against that background, we think s 145 should be regarded as creating an offence of recklessness.
[56] The Judge’s simple negligence approach means that the word “knew” must be construed so as to permit conviction of a defendant whose actual knowledge had not been proved. This seems to us to be both generally inappropriate in the context of a criminal statute and, more particularly, inconsistent with the plain language of the section and the relevant legislative and Parliamentary history.
[57] On Mr Zarifeh’s negligence plus approach what the defendant must be proved to have known is not that his or her omission would be dangerous but simply the abstract fact that if he or she were to breach the relevant duty in some way, that would or might be dangerous. That is not consistent with the plain language of the section. Further, because it would be in practice so similar to the simple negligence approach it is not consistent with the relevant legislative and Parliamentary history of s 145.
[58] It is also worth noting that s 145 is not confined in its operation to omissions. A person who commits an unlawful act can also be prosecuted provided he or she “knew” that this “act” would be dangerous. We cannot see any credible argument for treating liability in such a case as turning on negligence. Since liability under s 145 in relation to unlawful acts requires actual awareness of danger associated with that act and thus recklessness, it would be incongruous to construe the section as imposing liability for negligence in the case of omissions.
[59] If it be the case (as we think it is) that s 145 was intended to create a crime of recklessness rather than negligence, the fact that in 1997 Parliament, when it enacted s 150A of the Crimes Act, proceeded on an incorrect assumption as to the scope of s 145 did not serve to change the scope of the offence, see for instance R v Henderson [1990] 3 NZLR 174 at 180-181. What individual members of Parliament or officials thought in 1997 cannot be properly regarded as over-riding the actual intention of Parliament in 1961 when s 145 was introduced – an intention which we extract from the plain language of the section and its legislative and Parliamentary history.
[60] Further, we do not have any particular difficulty with the concept of a reckless breach of duty. A breach of the duties (providing it is within s 150A) created by ss 151-157 is culpable homicide for the purposes of s 160 of the Crimes Act. A person who breaches such a duty with the intention of killing another is guilty of murder, see s 167 of the Crimes Act. For a situation in which such a charge might succeed, see R v Lawford (1993) 69 A Crim R 115.
[61] It follows that the jury was misdirected by the Judge on this key issue in the case. The appeal must accordingly be allowed.
Acquittal or new trial?
[62] Mr Zarifeh accepted, realistically, that the Crown could not prove that the appellant had actual knowledge that she had given participants unclear and ambiguous information as to the necessity to keep to the left which had the potential to endanger life. It follows that there is no point in directing a new trial.
Application of s 150A
[63] On the approach which we have adopted, it is not necessary for us to consider whether the major departure test introduced by s 150A of the Crimes Act applies where a breach of the duties imposed under Part 8 of the Crimes Act (ie under ss 151- 157) is relied on in relation to a charge laid under s 145. This is not an easy point and it is appropriate for us to mention some of the difficulties.
[64] It is undeniable that Parliament did not intend s 150A to be applied in s 145 cases. Parliament might be thought to have given effect to this intention by s 150A(2) which provides that the limitation on criminal responsibility introduced by that section was only “for the purposes of this Part”. Section 150A is in Part 8 of the Act and s 145 is in Part 7. Section 156 which was relied on by the Crown against the appellant is in Part 8 but that section does not itself create an offence.
[65] On the other hand, it might be thought at least arguable that a prosecution under s 145 which depends upon an alleged breach of the ss 151-157 duties is subject to s 150A.
[66] Our conclusion that s 145 creates an offence of recklessness means that in most cases it will be irrelevant whether s 150A applies or not. Usually proof of the recklessness which is required to establish an offence under s 145 would also establish that there was a major departure from the underlying duty of care. It is, however, not inconceivable that a jury might take the view that a subjective appreciation by a defendant that a particular duty had been breached and that there was a consequential risk to life or limb did not imply a major departure, at least in cases where the defendant may have seen that risk as unlikely to crystallise in actual harm. So the point is not necessarily of academic interest only. It is, however, appropriately left for another day.
Other grounds of appeal
General
[67] Although our conclusions on the mens rea issue are sufficient to determine the appeal, it is appropriate for us to address, at least briefly, the other grounds of appeal.
[68] So in this section of the judgment we address the various complaints made by Mr Barton for the appellant which initially formed the basis of the appeal.
Was Le Race “anything whatever” for the purposes of s 156?
[69] Mr Barton argued that Le Race 2001 was not “anything whatever, whether animate or inanimate” for the purposes of s 156 of the Crimes Act. This submission was advanced to the Judge at the pre-trial hearing and rejected by him in his ruling of 19 May 2003.
[70] A not entirely dissimilar argument was raised in Turner which, for these purposes, was a similar case. This is because the Crown allegations in Turner related not so much to the use of tangible property (the factory, the associated plant, and the raw material) or the actions of the individual employees but rather to the responsibility of the appellants for the processing activity which occurred. In the present case, the appellant was plainly in charge of the processes associated with Le Race 2001 even though she was not in a position to dictate absolutely the conduct of the participants and what they did with their bicycles. The omissions alleged by the Crown related to aspects of Le Race which were plainly under her control, that is, the information which was given to participants. Given the extraordinary breadth of the language used (“anything whatever”) we see Le Race as within the scope of the section.
[71] Mr Barton treated his argument as involving a major question of principle and sought a narrow interpretation of s 156 on the basis the Court should be slow to allow the criminal law to encroach into this area of human activity. But, if it were not for s 156, the Crown would have been in a position to rely on s 155 (on the basis that the appellant had undertaken to do a lawful act, namely the organisation of a mass participation cycle event, the doing of which might be dangerous to life or a common law duty of care). Had the Crown relied on either s 155 or a common law duty of care, there would have been no appreciable difference in the way in which the trial was conducted. Accordingly we see no major point of principle involved in this argument. One way or another, people who organise mass participation cycle events are subject to the reach of the criminal law. Of course, on the basis of the views which we have already expressed, criminal liability rests in concepts of recklessness rather than negligence, at least where s 145 of the Crimes Act is invoked.
Evidence as to Mrs Caldwell’s pregnancy at the time of her death.
[72] At trial the Crown led evidence that Mrs Caldwell was pregnant at the time of her death. The relevance according to the Crown was that a pregnant woman is not likely to engage deliberately in risk-taking behaviour. In turn this was said to be consistent with the Crown theory that Mrs Caldwell was under the impression that the Summit Road was closed to motor vehicles.
[73] The Judge admitted this evidence over the objection of the appellant’s counsel and he gave his reasons for this in his pre-trial ruling. Essentially he regarded the evidence as being relevant for the reason advanced by the Crown. He took the view that the pregnancy evidence added comparatively little to the likely emotional response of the jury to Mrs Caldwell’s death. He noted that appropriate directions would be given.
[74] In his summing-up the Judge directed in what we regard as an orthodox way on the necessity for the jury to act dispassionately. He did so in a way which referred specifically to the features of the case which were likely to evoke emotional responses. He was criticised for this too by Mr Barton, but this is just a matter of judicial style – some Judges prefer to square up to what they are concerned that jurors may be thinking while others think it better to direct in more general terms. The Judge also directed the jury as to the limited relevance of the evidence of Mrs Caldwell’s pregnancy.
[75] The Crown case did not stand or fall on Mrs Caldwell’s state of mind as to whether the Summit Road was closed. There was evidence that other participants in the event had misinterpreted the instructions. As well, it is not a self‑evident proposition that a woman who is pregnant will necessarily be risk‑averse. Further, Mrs Caldwell may well simply have misjudged the situation and thought that she had time to complete her overtaking manoeuvre and return to her correct side of the road well before there could be any risk of collision with a car coming around the blind corner.
[76] Against that background, the evidence of Mrs Caldwell’s pregnancy was not highly relevant.
[77] That said, one of the issues the jury was likely to consider was whether Mrs Caldwell had acted recklessly. Jurors are expected to draw on their commonsense and experience of life. A jury might well think that a pregnant woman is less likely than a woman who is not pregnant to engage in risk‑taking behaviour. This is arguably part of the common experience upon which jurors are expected to draw.
[78] Further, the death of Mrs Caldwell was itself so tragic an event that it is difficult to see the additional factor that she was pregnant as adding appreciably to the risk of an emotional response to the jury. Courts act on the assumption (which jury research shows is largely correct) that juries take on board and act in accordance with judicial directions to act dispassionately.
[79] Accordingly, we see no error in approach on the part of the Judge on this issue.
The overall conduct of the trial
[80] Mr Barton advanced a litany of complaints as to the conduct of the trial. These complaints even extended to interaction between the Judge and an expert witness called by the Crown which occurred in the absence of the jury and remarks made by the Judge when imposing a sentence. Neither could have had any influence on the jury’s verdict.
[81] Against the background of complaints made by Mr Barton we think it right to say that we are of the view that the Judge conducted the case in a completely professional and orthodox way.
[82] There is only one complaint made by Mr Barton which we regard as warranting particular discussion.
[83] One of the Crown witnesses was Mrs Caldwell’s father-in-law, Mr Bernard Caldwell. In his evidence he said that prior to the race, on what he thought was 18 March, he had discussed with Vanessa Caldwell her intention to participate in Le Race. In the course of his evidence about this discussion he said:
… Vanessa told me three or four times during that conversation the road was to be closed. Now, where she got that from I don’t know but as our conversation ended and after Graham [Mrs Caldwell’s husband] and my wife had moved out to the barbecue, she reached down at the end of the sofa, or couch, and came up with a piece of paper that looked as though it had two paragraphs on it. Whether it was her finger or just my interest, um, all I can remember from it was that it said there would be a road closure on the Summit Road and given that she was riding the last section into Akaroa I assumed that, um, the organisers had gone through the formal processes and were going to close that road to Akaroa.
[84] A little further on there were the following exchanges between him and the prosecutor:
Q. Did you get to look at the whole of that piece of paper.
A. No, but I assumed that I had after the race in which she was killed because I was given a flyer by another competitor and the first line of one section headed “sneaky cyclists”, said there would be a road closure on the Summit Road.
Mr Caldwell was then taken to the “Welcome to Le Race 2001” document to which we have earlier referred. The drift of his evidence which followed was to suggest that the piece of paper Mrs Caldwell had was the “Welcome to Le Race 2001” document.
[85] To say the least, there were difficulties with this evidence. The only document associated with Le Race 2001 which mentioned a road closure was the “Welcome to Le Race 2001” information sheet to which we have referred. Mr Caldwell was confident that the discussion had taken place on 18 March 2001 although he was prepared to concede the possibility that it may have taken place on 25 March (the next Sunday). Evidence showed that it would not have been possible for Mrs Caldwell to have taken possession of that document as early as 25 March.
[86] The logical corollary of all of this is that Mr Caldwell’s evidence on this point could not have been correct. When, however, Mr Barton put this to Mr Caldwell, Mr Caldwell responded angrily:
Are you telling me I’m lying. I spent 35 years around courts. I’m well aware of what you’re trying to throw at me. I am telling you what happened and I am conceding your possibilities. I have no idea what she showed me, where it come from or anything else. I don’t like your suggestion one bit because there’s no foundation in fact.
[87] When the Judge came to sum up on Mr Caldwell’s evidence, this is what he said:
[189] … you will remember that Mr Bernard Caldwell was in effect challenged by Mr Barton regarding his evidence that Mrs Caldwell showed him a document about two weeks prior to Le Race in which it was stated that the Summit Road would be closed for the event. In his final address to you yesterday Mr Barton suggested that Mr Caldwell may have confused issues of timing and knowledge in an understandable state of grief following the accident, which suggests that the challenge to his evidence may relate more to the reliability of his recollection than to his honesty.
[190] It is of course for you to decide whether you should accept Mr Caldwell’s evidence regarding his conversation with his daughter-in-law, and I do not intend to comment on that issue further.
[88] Issues of credibility are for the jury and not for the Judge. But to leave in the ring in an unqualified way evidence which appears to be plainly wrong carries the risk of misleading the jury. The Judge should, we think, have made clear to the jury just what the problems were with Mr Caldwell’s evidence.
[89] As it turns out, nothing much turns on this issue. The pattern of jury questions to which we are about to refer shows the jury approached the question of ambiguity on a basis which did not depend primarily on the evidence of Mr Caldwell. In any event, as already indicated, the Crown case did not stand or fall on the basis of Mrs Caldwell’s personal beliefs as to whether the Summit Road was closed.
The answers and directions given in response to questions from the jury when the jury was deliberating.
[90] The Judge summed up on Thursday 7 August 2003. At the conclusion of the summing-up the jury began their deliberations.
[91] On the evening of 8 August the Judge gave the jury a Papadopolous direction following an indication that the jury considered they would not be able to agree on a verdict. The Judge then invited the jury to tell him if there was any particular issue which was causing them difficulty on the basis that he might be able to assist them with such an issue.
[92] Approximately an hour later the jury put a question in these terms:
We agree that the ‘Welcome to Le Race 2001’ document … is open to different interpretation by the cyclists and also agree the document is part of the planning for management of the event. Do the contents of the document indicate a failure by the accused to take reasonable precautions and to use reasonable care to avoid danger to human life bearing in mind the reasonable precautions taken in the management of the event and the personal responsibilities required of cyclists?
[93] The Judge responded to this question the next morning, ie on 9 August and thus on the third day of the jury’s deliberations:
[6] If you are satisfied that the “Welcome to Le Race 2001” document … was open to different interpretations by the cyclists who participated in the event, you would be entitled to conclude that the ambiguity in that document constituted a failure by the accused to take reasonable precautions against and to use reasonable care to avoid danger to human life in respect of the planning of Le Race 2001.
[7] Whether you are satisfied beyond reasonable doubt of that conclusion is a decision which only you, as the judges of the facts, can make.
[8] If you are satisfied of that conclusion, and if you are satisfied of proof of the first and third elements of the offence, as set forth on page 2 of the preliminary memorandum, you must find Ms Andersen guilty.
[9] If you are not satisfied of that conclusion, you must find Ms Andersen not guilty.
[10] If you are satisfied beyond reasonable doubt that the ambiguity in the “Welcome to Le Race 2001” document constituted a failure by the accused to take reasonable precautions against and to use reasonable care to avoid danger to human life in respect of the planning of Le Race 2001, neither a conclusion that in other respects reasonable precautions were taken in the management of the event nor the issue of the personal responsibilities which were required of the cyclists would affect the verdict.
[94] An hour later the jury responded to the Judge’s direction with a further question in these terms:
Did those cyclists who gave evidence on their interpretation of ‘Welcome to Le Race 2001’ … and who subsequently, on cross‑examination, agreed that there could be another interpretation, have reasonable grounds for their perceptions as to the road closure?
[95] The Judge responded in this way:
[3] This question can only be answered by you.
[4] However, in the question which you asked last night you said, and I quote, “We agree that the ‘Welcome to Le Race 2001’ document … is open to different interpretations by the cyclists”.
[5] That statement indicates to me that you are satisfied that, on a reasonable and objective interpretation of the “Welcome to Le Race 2001” letter, it was ambiguous.
[6] It therefore appears to me that you have already answered this question and that your answer to it is “yes”. However, I repeat that the question can only be answered by you.
[96] The verdict came soon after this direction.
[97] Mr Barton made a number of complaints about the directions given by the Judge and we are satisfied that his complaints have merit:
(a)Even on the Judge’s formulation of what was required to establish guilt, a conclusion by the jury that there was ambiguity would not, in itself, necessarily warrant a finding of guilt. The Judge’s directions did not make that clear.
(b)The conclusion of the jury as expressed in the first question that the Welcome to Le Race 2001 document was “open to different interpretation” was qualified by the reference to “reasonable precautions taken in the management of the event and the personal responsibility required of cyclists”. That one document produced by the appellant (albeit one of grave importance in the context of the case as a whole) was “open to different interpretation” would not, in itself, be tantamount to a finding of a breach of s 156, this given inter alia what might fairly be expected of cyclists given their “personal responsibility”. The drift of what the Judge said in response to the two questions was, however, to the contrary.
(c)The way in which the second question is expressed at least raised the possibility that the jury was by then no longer agreed that the relevant document was “open to different interpretation”. The Judge’s response to the second question in effect built on the first question as if it were a finding of the jury.
[98] At best for the Crown, this was a closely balanced case. On an ordinary reading of the document, it is hard to extract from the reference to the check point on Summit Road an indication that both sections of the Summit Road traversed by the event would be closed to oncoming traffic. Further, the “Welcome to Le Race 2001” document required participants not to go over the centre-line. The length of the deliberations on the part of the jury and the questions which they asked indicate that the jury saw the case as difficult. In that context, we think that the way in which the questions were responded to by the Judge would have warranted allowing the appeal albeit, of course, that if the appeal had been allowed only on this ground, we would have directed a new trial.
Result
[99] For the reasons given, the appeal is allowed and the appellant’s conviction is quashed. We direct that a judgment and verdict of acquittal be entered.
Solicitors:
Anderson Lloyd Caudwell, Dunedin for Appellant
Crown Solicitor’s Office, Christchurch
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