The Queen v Hamer
[2004] NZCA 222
•13 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA19/04
THE QUEEN
v
IAN HAMER
Hearing:6 July 2004
Coram:McGrath J
Hammond J
O'Regan JAppearances: G J King for Appellant
J C Pike for Crown
Judgment:13 September 2004
JUDGMENT OF THE COURT DELIVERED BY O’REGAN J
[1] Mr Hamer was convicted after a jury trial on one charge of manslaughter. The trial Judge, Harrison J, sentenced him to ten years imprisonment with a minimum non-parole period of five years.
[2] Mr Hamer appeals to this Court against both his conviction and the sentence.
The charge
[3] Mr Hamer was charged under ss150A, 151, 158, 160(2)(d), 171 and 177 of the Crimes Act 1961. The victim was Hasnah Hamer, Mr Hamer’s wife. The charge against Mr Hamer was that: “between 8 February 2002 and 9 February 2002 at Tauranga having charge of HASNAH HAMER who was unable by sickness to withdraw herself from such charge and unable to provide herself with the necessaries of life [he] omitted without lawful excuse to undertake his legal duty to supply her with the necessaries of life, such omission causing her death, and thereby committed manslaughter”.
The events of 8-9 February 2002
[4] There was evidence that there had been arguments between Mr and Mrs Hamer in the period leading up to the night of 8 February 2002. The principal cause seemed to be the fact that Mrs Hamer had revealed to Mr Hamer that she had remained married to another man at the time that she married Mr Hamer in September 2001. Mrs Hamer was a Malaysian citizen and her immigration status depended on the marriage to Mr Hamer. The couple had argued on the evening of 8 February 2002.
[5] Around 1.00am on 9 February 2002, Mrs Hamer consumed between 100 and 150 mgs of Mr Hamer’s methadone. Mr Hamer’s evidence was that she had done this voluntarily as a way of proving her love for him. The Court was told that, for a non-tolerant user of methadone, approximately 50 mgs can be a fatal dose.
[6] Mr Hamer had the methadone because he was a prescribed user of that drug. He had previously been addicted to opium, and was on a methadone programme to combat his drug addiction. At the time of these events, he was taking approximately 190 mgs of methadone daily. He picked up his methadone from a pharmacy on a three times per week basis, which was why there was methadone at hand when the incident occurred. Mr Hamer was also taking other prescribed drugs, namely rivotril and ritalin, and had been diagnosed as suffering from depression.
[7] Mr Hamer summoned an ambulance for Mrs Hamer at around 6.30 pm on 9 February 2002, which was about 17 and a half hours after she had consumed the methadone. The only eye witness to the events that occurred during those 17 and a half hours was Mr Hamer himself: a statement made by Mrs Hamer before her death as to the circumstances of her consuming methadone (which she subsequently retracted) was ruled inadmissible by this Court in R v Hamer CA196/03 7 August 2003. Mr Hamer said that he was aware of the serious consequences of the consumption by Mrs Hamer of such a large dose of methadone, and had told her to induce vomiting. He thought that she had done so. He had intended to keep her under surveillance, but had fallen asleep and had woken at 1.00pm on 9 February 2002. He told the Court that she was then in a deep sleep but that her breathing was okay. He denied that she was cyanosed and had laboured breathing at that time, contrary to what he had said on a previous occasion. Cyanosed means blue around the lips, which is an indicator of oxygen depravation.
[8] Mr Hamer said he then dozed off until about 4.00pm, and when he woke at that time he noticed that Mrs Hamer had cyanosed lips, and he was concerned about her laboured breathing. He said he then went on to the internet to get information about methods of treating a methadone overdose: the evidence was that that occurred at about 5.00pm. He had omitted to refer to having done this in his initial police interview, and had initially denied it when it was put to him at his second police interview. He also said that he propped her up with pillows at around 5.00pm. Eventually he called the ambulance about 6.30pm.
[9] On arrival, the ambulance officer found Mrs Hamer naked, but for a sheet over the lower part of her legs, on the bed. She was at that stage propped up by a number of pillows which Mr Hamer had placed behind her head, causing her airways to be partially blocked. She was very cold and deeply unconscious. She was immediately taken to hospital.
[10] Mrs Hamer spent about 3 weeks in hospital, initially in Tauranga and then in Hamilton. She discharged herself on 1 March 2002 and resumed living with Mr Hamer. However, she had to be readmitted to hospital on 4 March 2002 and her condition then deteriorated: she had severe brain damage resulting from oxygen deprivation as a consequence of her methadone ingestion. On 13 May 2002, Mrs Hamer was transferred to a hospital in Malaysia. She died there on 1 June 2002.
[11] In evidence, Mr Hamer accepted that he had omitted to tell the ambulance officer and the doctor who treated Mrs Hamer on her admission to hospital about Mrs Hamer having vomited up any methadone. He accepted that he knew that narcane was an antagonist or antidote for methadone (Mr Hamer had trained as a nurse, though he was not working in that capacity at the time of the incident).
[12] Mr Hamer said he did not know if he had consumed methadone prior to the events occurring, but said he presumed he had done so. He said in evidence that his judgement was blurred “on taking it [methadone]”. He accepted that he had not taken ritalin at the relevant time. The evidence of the ambulance officer who attended the scene was that Mr Hamer appeared alert at that time. The evidence of Mr Hamer’s GP was that a patient on the methadone programme taking an adequate dose to prevent withdrawal symptoms, but not a high enough dose to cause intoxication, would not suffer a lot of drowsiness and sedation if he or she was methadone tolerant.
Grounds of appeal against conviction
[13] Counsel for Mr Hamer, Mr King (who was not Mr Hamer’s trial counsel), submitted that a miscarriage of justice had occurred by reason of all or any of the following matters:
(a) The trial Judge misdirected the jury regarding the elements of the charge of manslaughter. In particular the Judge ruled that the test as to what amounted to a “major departure” under s150A was a purely objective test and the appellant’s state of mind was immaterial;
(b) The Judge unfairly and unjustifiably allowed the Crown to allege that the appellant’s conduct was a wilful omission;
(c) The Judge unfairly precluded the defence from advancing the appellant’s state of mind or personal characteristics as a defence to the suggestion that his omission amounted to a major departure in the circumstances of the particular case;
(d) The Judge failed to properly or adequately put the defence case to the jury in a summing up.
Relevant provisions
[14] The provisions which must be interpreted for the purposes of this appeal are ss150A and 151(1) of the Crimes Act. The text of these provisions is as follows:
150A Standard of care required of persons under legal duties
(1) This section applies in respect of the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157.
(2) For the purposes of this Part, a person is criminally responsible for—
(a)Omitting to discharge or perform a legal duty to which this section applies; or
(b)Neglecting a legal duty to which this section applies—
only if in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.
151Duty to provide the necessaries of life
(1) Every one who has charge of any other person unable, by reason of detention, age, sickness, insanity, or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract or is imposed upon him by law or by reason of his unlawful act or otherwise howsoever) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused, or if his life is endangered or his health permanently injured, by such omission.
Single issue at the trial
[15] By agreement with both counsel, Harrison J circulated to the jury a sheet headed “issues for jury” prior to the closing addresses of counsel. This document set out six questions, but the first five were all answered “yes” because of concessions which had been made in the course of the trial. This meant that the jury could take the following five propositions as proven, before turning to the only issue they needed to determine:
(a) Mrs Hamer was in Mr Hamer’s charge on 9 February 2002 and unable, by reason of sickness, to withdraw herself from such charge;
(b) Mr Hamer owed Mrs Hamer a duty to provide her with the necessaries of life, namely medical attention;
(c) Mr Hamer omitted or failed to provide Mrs Hamer with the necessaries of life;
(d) Mr Hamer’s omission was without lawful excuse (without an excuse of a lawful nature);
(e) Mr Hamer’s omission played a significant part and thus caused Mrs Hamer’s death.
[16] The question which remained for the jury was:
Was [Mr Hamer’s] omission a major departure from the standard of care expected from a reasonable person in those circumstances (i.e. was it such a gross or substantial degree of negligence to justify making him criminally responsible for what occurred)?
[17] The “issues sheet” told the jury that if they answered this question in the affirmative then the verdict would be guilty, and if they answered it in the negative Mr Hamer would be acquitted.
The Judge’s ruling
[18] The Judge also made a ruling on certain legal points during the trial. The two matters at issue which are dealt with in that ruling were the relevance of Mr Hamer’s personal characteristics and the relevance of Mr Hamer’s state of mind to the issue of whether there was a major departure from the standard of care expected of a reasonable person (s150A).
Personal characteristics
[19] Mr Hamer’s trial counsel had submitted that the reference to “the circumstances of a particular case” in s150A extended to Mr Hamer’s personal characteristics, particularly his methadone addiction and his depression. She argued that, while there was an objective test to be applied by the jury, the jury needed to superimpose on the reasonable person the characteristics of this particular individual (“determine reasonableness through Mr Hamer’s lenses”).
[20] The Judge rejected this submission. He referred to the well known decision in R v Adomako [1995] 1 AC 171 and concluded that there was no scope “to engraft onto the circumstances inclusion of the offender’s personal characteristics”. The Judge observed that, otherwise, the objective test would be qualified out of existence or converted into a truly subjective measure.
State of mind
[21] The second question related to the extent to which evidence of Mr Hamer’s intentional or deliberate wrongdoing was relevant. The Crown prosecutor submitted that evidence of Mr Hamer’s recklessness was material to measuring whether his departure from the standard duty of care was major. The Crown’s case was that Mr Hamer had wilfully or deliberately refrained from calling for assistance until too late, and that he had acted with the same state of mind when he placed pillows behind Mrs Hamer’s head, which caused the blocking of her airways.
[22] The Judge ruled that evidence of Mr Hamer’s deliberate conduct was material to the jury’s consideration of criminal responsibility because the more gross or extreme his conduct was, the more likely it was that the jury would find a major departure from the reasonable standard of care. He ruled that Mr Hamer’s medical knowledge and experience was relevant in that context because it would assist in determining whether he actually foresaw the risks run, for example in failing to call for assistance immediately after observing that Mrs Hamer had cyanosed lips. Similarly he ruled that the evidence of Mr Hamer having placed pillows behind Mrs Hamer’s head could be evidence of a wilful decision to expose her to further harm rather than seek assistance.
Grounds of appeal
[23] We now turn to the four grounds of the appeal against conviction and deal with them in the order set out in para [13] above.
First ground of appeal: Objective test
[24] Mr King submitted that the Judge wrongly determined that there was an objective test for determining whether an omission to discharge a legal duty or a neglect of a legal duty was a major departure from the standard of care expected of a reasonable person to whom the legal duty applied. He placed particular reliance on the use of the words “in the circumstances of the particular case” in s150A. He said that the Judge, by adopting a wholly objective approach, misdirected the jury. He said the jury ought to have considered the case from the eyes of the appellant, having regard to his actual state of mind as influenced by all factors including his own drug addiction and his depression. He said that Mr Hamer believed that, because Mrs Hamer had vomited up the dose, the methadone she had taken would not be lethal.
[25] Mr King drew a parallel between the reference to “circumstances of the particular case” in s150A, and the test for self defence in s48 of the Crimes Act, which requires consideration on a hybrid subjective/objective basis. He said that the proper approach to the “major departure” test is to first determine all the reasons behind or underlying the breach or omission, and then decide whether or not, in those particular circumstances, the breach was so serious to justify criminal responsibility.
[26] In our view the parallel between s150A and s48 is misguided. Section 48 clearly directs the mind towards a subjective test because it refers to “the circumstances as [the accused] believes them to be” which is obviously a subjective element. There is no similar subjective wording in s150A.
[27] Section 150A was inserted into the Crimes Act by s2 of the Crimes Amendment Act 1997, which implemented the recommendations in the report of Sir Duncan McMullin to the Minister of Justice on ss155 and 156 of the Crimes Act 1961, Wellington 1995. The report dealt with concerns that the standard of negligence which the Crown was required to prove for a manslaughter conviction under s155 or s156 was ordinary causative negligence, rather than gross or culpable negligence. The report recommended adopting the United Kingdom standard of gross negligence, and s150A was the legislative response to that recommendation.
[28] The UK test had been clearly stated in R v Adomako. In that case Lord Mackay of Clashfern LC summarised the test (at 187) as follows:
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 must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
[29] The Adomako test was considered by the English Court of Appeal, Criminal Division, in Attorney-General’s Reference (No.2 of 1999) [2000] 3 All ER 182. In that case, the Court of Appeal said that a defendant could be properly convicted of manslaughter by gross negligence in the absence of evidence of the defendant’s state of mind, but added (at 186) that there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct. The Court of Appeal confirmed that the Adomako test was objective, but said that a defendant who was reckless as defined in R v Stone, R v Dobinson [1977] QB 354 may be more readily found to be grossly negligent to a criminal degree. The test of recklessness in R v Stone, R v Dobinson was that the accused was “indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it” (at 363).
[30] We have found some assistance in determining the objective/subjective issue from the decision of the Supreme Court of Canada in R v Creighton (1993) 105 DLR (4th) 632. That case concerned a charge of manslaughter by means of an unlawful act, where the unlawful act was the accused’s injecting another person with an unlawful narcotic. The deceased’s adverse reaction to this was immediate, but the accused did not summon assistance and left the scene. The deceased had consented to the injection of the narcotic. The accused had been convicted of manslaughter on the basis either that the victim’s death was the direct consequence of an unlawful act (trafficking in narcotics) or, in the alternative, manslaughter through criminal negligence. The Court of Appeal of Ontario had dismissed an appeal based on the proposition that the common law definition of unlawful act manslaughter was unconstitutional under s7 of the Canadian Charter of Rights and Freedoms.
[31] The Supreme Court was required to determine whether the requirement of the offence that there be objective foreseeability of the risk of bodily harm arising from the unlawful act imposed an objective test or a partly objective and partly subjective test. McLachlin J, giving the lead judgment for the majority, found that the test was an objective test, and that the imposition of criminal liability in such circumstances did not violate the Charter. She disagreed with the view expressed by Lamer CJC that educational, experiential and habitual factors personal to the accused could be taken into account: rather, she said there was a single uniform legal standard of care for such offences, subject only to one exception. That exception was incapacity to appreciate the nature and quality or the consequences of his or her acts.
[32] Although Creighton dealt with unlawful act manslaughter, (and the Court did not find it necessary to deal with the alternative basis of liability, namely criminal negligence), the comments about the legal standard of care are of general application and much of the analysis specifically refers to criminal negligence manslaughter. At 677, McLachlin J referred to the objective standard for criminal negligence manslaughter, and commented:
Without a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialised.
Mental disabilities short of incapacity generally do not suffice to negative criminal liability for criminal negligence.
[33] Later, at 678 she said:
The matter may be looked at in this way. The legal standard of care is always the same – what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.
[34] Later, at 679 she said:
A person may fail to meet the elevated de facto standard of care in either of two ways. First, the person may undertake an activity requiring special care when he or she is not qualified to give that care. Absent special excuses like necessity, this may constitute culpable negligence. An untrained person undertaking brain surgery might violate the standard in this way. Secondly, a person who is qualified may negligently fail to exercise the special care required by the activity. A brain surgeon performing surgery in a grossly negligent way might violate the standard in this second way. The standard is the same, although the means by which it is breached may differ.
[35] The minority view in the Creighton case, which is set out in the judgment of Lamer CJC, was that, when assessing whether a reasonable person would have foreseen that the unlawful act committed by them would give rise to a risk of death, “the reasonable person is constructed to account for the accused’s particular capacities and resulting inability to perceive and address certain risks.” (at 648). The Chief Justice said that this was not a subjective test, and continued (at 649): “if a reasonable person with the frailties of the accused would nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the accused must be convicted”.
[36] The Chief Justice excluded from the human frailties which were to be grafted on to the objective test, matters such as intoxication or impairment through drug use occurring as a result of voluntary consumption, but did include matters such as illiteracy (in circumstances where a hazardous substance was identifiable only by label) or reduced vision. He said it was important that the frailty was one which the accused could not control.
[37] In our view, the test which must be applied in determining whether an accused has been negligent, and whether the negligence has been a major departure is, in both cases, an objective test. In that respect, the law in New Zealand is, in our view, similar to that outlined by McLachlin J in the Creighton decision. The issue which the jury had to determine was whether Mr Hamer’s conduct after his wife had ingested methadone fell below the standard expected of a reasonable person in those circumstances, and, if so, whether his neglect to take action to care for her was a major departure from the standard of care expected of a reasonable person faced with those circumstances. It would not have been proper to engraft onto this “reasonable person” the personal characteristics of Mr Hamer to which Mr King referred, unless there were personal characteristics which made Mr Hamer incapable of appreciating the nature and quality or the consequences of his acts or omissions. There was no suggestion that Mr Hamer's personal characteristics were of that nature. This is not a case where a combined subjective/objective test applies.
[38] Accordingly we agree with Harrison J’s ruling on this aspect, and therefore reject the first ground of appeal.
[39] We are aware that some commentators have expressed concern about the application of a wholly objective test in unusual cases of disability. An example would be a case where the accused person was blind or wheelchair-bound, and so unable to turn off a switch which would have prevented an electrocution. We have not had to address the treatment of such situations in this case. We reserve the Court’s position on those matters.
Second ground of appeal: Wilful omission
[40] Mr King argued that the Judge ought not to have permitted the Crown to argue that Mr Hamer’s conduct involved certain wilful actions or omissions, particularly his refraining from calling an ambulance until too late, and his placing pillows behind Mrs Hamer’s head, thereby blocking her airways.
[41] This aspect was also dealt with in the ruling, and the Judge accepted that wilfulness could be relevant on the basis that the more gross or extreme the conduct, the more likely the jury would be to find a major departure from a reasonable standard of care.
[42] To the extent that this ground of appeal is a suggestion that the Judge ought to have directed the manner in which the Crown conducted its case, we do not think it has any substance. In the absence of prosecutorial unfairness, there was no basis for the Judge to direct the Crown on the way in which it should pursue the case.
[43] In the decision of the English Court of Appeal in the Adomako case (reported as R v Prentice [1994] QB 302), Lord Taylor of Gosforth CJ set out a helpful summary of the law (to which the Judge referred in his ruling in the present case) at 322-223. He said:
Accordingly, except in motor manslaughter, the ingredients of involuntary manslaughter by breach of duty which need to be proved are (1) the existence of the duty; (2) a breach of the duty causing death; (3) gross negligence which the jury consider justifies a criminal conviction.
The range of possible duties, breaches and surrounding circumstances is so varied that it is not possible to prescribe a standard jury direction appropriate in all cases. The judge should tailor his summing up to the specific circumstances of the particular case. However, in accordance with the authorities reviewed above and without purporting to give an exhaustive definition, we consider proof of any of the following states of mind in the defendant may properly lead a jury to make a finding of gross negligence: (a) indifference to an obvious risk of injury to health: (b) actual foresight of the risk coupled with the determination nevertheless to run it; (c) an appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction; (d) inattention or failure to advert to a serious risk which goes beyond “mere inadvertence” in respect of an obvious and important matter which the defendant’s duty demanded he should address.
[44] The Judge said that evidence of wilfulness would go to Mr Hamer’s actual foresight of the risk referred to in paragraph (b) in Lord Taylor’s formulation. We agree with that assessment.
[45] We are satisfied that there was no basis for the Judge to direct the prosecutor not to pursue the wilfulness argument, and this ground of appeal therefore fails.
Third ground of appeal: Appellant’s state of mind or personal characteristics
[46] Mr King said that the Judge had unfairly precluded the defence from advancing the appellant’s state of mind or personal characteristics as a defence to the suggestion that his omission amounted to a major departure in the circumstances of the particular case. To the extent that this argument depends on an engrafting of subjective elements on to the objective test for the determination of negligence and a major departure from the standard of the reasonable person, we reject it for the reasons we have already given.
[47] However, the argument was expanded to an argument that there had been an inconsistent approach taken to the issue of the personal characteristics of Mr Hamer. While the Judge had said that Mr Hamer’s knowledge from his nursing training and his knowledge of drugs from his addiction were relevant to the wilfulness point, he did not balance those factors with a consideration of personal characteristics which favoured the defence. Mr King said “the defence was precluded from putting forward the argument that due to his own drug addiction and its consequence upon him and his depressive state… his actions were not so unreasonable as to amount to a major departure in those particular circumstances”.
[48] That argument again attempts to overlay the objective test with subjective elements, which, in our view, is not permissible in interpreting the major departure point. However, those matters may have been relevant if the Crown had been required to prove wilfulness or intention as an ingredient of the offence. In this case, while it was put on the basis that the Crown alleged that Mr Hamer had wilfully or deliberately omitted to summon an ambulance and had wilfully or deliberately sat Mrs Hamer up with pillows behind her in a way which partially blocked her airways, the Crown did not need to prove either of those elements in order to establish his guilt. The question is, however, having set out to do so, was it then incumbent on the Judge to allow the jury to take into account all elements which would have gone to the question of wilful or deliberate action, including Mr Hamer’s own characteristics?
[49] Mr Pike argued that there was no evidential foundation for the submission made by Mr King. He pointed out that Mr Hamer’s own evidence indicated that:
(a)He was aware of the danger to Mrs Hamer from consuming such a large quantity of methadone;
(b)He intended to stay awake to observe her;
(c)He knew about narcane as an antidote or antagonist;
(d) Once he woke up on 9 February, he was aware of her condition and described it at the time in medical terms (“cyanosed”, “laboured breathing” – these two expressions were both noted by the doctor at the time of the discussion with Mr Hamer when Mrs Hamer was admitted to hospital); and
(e) He was quite capable of using his computer and visiting internet sites after he awoke at 4.00pm and before he summoned the ambulance at around 6.30pm.
[50] Mr Pike said these matters illustrated that, even if Mr Hamer’s drug addiction and depression had been allowed to be considered in the context of the decision of whether his behaviour was a major departure from the standard expected of a reasonable man, the outcome could have been no different.
[51] In our view the Crown was entitled to place before the jury the proposition that Mr Hamer knew the risk that he was taking and knowingly decided to run that risk. In our view it was relevant to that issue that Mr Hamer had some medical knowledge and some knowledge of drugs. But that was not a significant issue in the context of the trial as a whole because Mr Hamer himself acknowledged that he ought to have summoned help at the outset, given the situation that arose, but failed to do so.
[52] The defence case was that Mr Hamer had been negligent in not calling for help for Mrs Hamer, but that Mr Hamer had made a series of mistakes, and had called the ambulance as soon as he realised the gravity of Mrs Hamer’s condition. That placed in issue his personal knowledge of the risk faced by his wife after the methadone ingestion and through the 17 hour period until the ambulance was called. Evidence of his medical training and knowledge of drugs was relevant to that issue.
[53] The mistake defence was hard to reconcile with the concession that there was no lawful excuse for Mr Hamer’s conduct. In R v Burney [1958] NZLR 745 at 753, North J said:
We think it is sufficient if it is shown that the accused was negligent in the omission of the duty. In our opinion the proper construction of the section is that, once the necessary ingredients of the offence were established, criminal responsibility attached unless the appellant exculpated herself by showing there was a lawful excuse for the omission or neglect of the duty.
[54] Given the objective test for the determination of negligence (including whether there was a “major departure”), explanations for an accused’s conduct based on personal characteristics would appear to be more logically directed to the “lawful excuse” element of s151, rather than to the issues of negligence or major departure. The concession that there was no lawful excuse was realistic in this case, however. Once mistake was raised as a basis for an argument that there was no major departure, the accused’s medical knowledge and familiarity with drugs were relevant factors in the jury’s deliberation.
[55] In any event, we do not think that the Judge’s ruling was, in the context of the case, an unfair one. Just as in the Adomako case, the jury was asked to consider the reasonable care standard as against the standard of the reasonably skilled doctor, similarly in this case the jury was asked to determine the case on the basis of a reasonable person with Mr Hamer’s knowledge.
[56] We accept that, if it were necessary for the Crown to prove as an ingredient of the offence that Mr Hamer had acted wilfully or deliberately, then any personal characteristics which were relevant to the determination of wilfulness or intention would have to have been before the jury. Since the Crown alleged wilfulness, such characteristics became relevant in this case too, but only in relation to that issue. As the Judge found, such characteristics were not relevant to the negligence and major departure issues which the Crown did have to prove as ingredients of the offence.
[57] As we have found personal characteristics were relevant to the Crown’s allegations of wilfulness we disagree with the Judge’s ruling that evidence of such matters was not relevant at the trial. However, the jury heard Mr Hamer’s evidence that, during the 8/9 February period, his judgment was blurred on taking methadone and that he thought Mrs Hamer had vomited up the methadone. They also heard evidence from Mr Hamer’s doctor that Mr Hamer was addicted to methadone, was also being treated for attention deficit hyperactivity disorder and chronic depression, and that one of the symptoms of his depression was tiredness. So all the personal characteristics referred to by Mr King were before the jury. Mr King did not point to any other matters on which evidence would have been adduced if the Judge’s ruling had gone the other way. Given that this evidence was before the jury despite the Judge’s ruling and that the wilfulness issue was not an essential element of the Crown case, we do not think the Judge’s ruling has led to a miscarriage of justice. We say that against the background of the very strong Crown case that Mr Hamer’s conduct, measured objectively, was a major departure from the reasonable person standard.
Fourth ground of appeal: misdirection
[58] Mr King said that the Judge had materially misdirected the jury as regards the test for criminal negligence and failed to put the appellant’s case to the jury fairly.
[59] As to the first aspect, we are satisfied that the Judge properly outlined to the jury the legal test. The decision tree which he provided to the jury, with six questions, the first five of which were answered “yes”, meant that the jury were very properly apprised of the only issue on which they needed to make a decision. The question for determination was worded in a way which was consistent with the formulation of the Lord Chancellor in Adomako. The Judge repeated that wording in essentially the same form in para 32 of the summing up. His elaboration on it was appropriate.
[60] Mr King further argued that the Judge had failed to put to the jury the defence case that Mr Hamer had been mistaken and that this was why he did not call the ambulance. He accepted that the Judge had specifically reported the submission on the part of defence counsel in his summing up in these terms: “[Mr Hamer’s counsel], on the other hand, says that this was all a series of mistakes, that Mr Hamer loved his wife and would never willingly have placed her in this position. Again it is for you to decide this issue”. But he said that this had been undermined by a comment in the previous paragraph which referred to an earlier defence submission that as soon as Mr Hamer realised the gravity of his wife’s condition he called the ambulance. The Judge told the jury it was for them to decide whether that was correct and then added: “but even if he was correct, it does not in any way operate to exonerate him. That is not the issue. The issue is what a reasonable person would regard as a major departure from the appropriate standard in these circumstances”.
[61] We do not accept Mr King’s submission that this amounted to a misdirection. The direction to the jury to direct their minds to the standards of the reasonable person was correct. And it is clear that the defence contention that it was all a series of mistakes was a matter which was explicitly left to the jury for them to decide. Accordingly, we reject this ground of appeal also.
Conclusion: appeal against conviction
[62] As all of the grounds for appeal fail, we dismiss the appeal against conviction.
Appeal against sentence
[63] Mr King submitted that the sentence of ten years imprisonment was manifestly excessive and that this was exacerbated by the imposition of a minimum non-parole period of five years. He said that it was inappropriate for a minimum non-parole period to have been applied to this case at all.
[64] Mr King argued that:
(a) The Judge took the most unfavourable view of the facts that was possible, in circumstances where the facts were disputed;
(b)The sentence is out of line with comparable cases.
Factual findings
[65] Mr King provided us with a copy of the submissions made on the sentencing by trial counsel, which he adopted for the purposes of the appeal. He referred us to trial counsel’s submissions on aspects of the facts which were subject to dispute. These were:
(a) Whether Mr Hamer had noticed that Mrs Hamer had cyanosis and laboured breathing at 1.00pm on 9 February or at 4.00pm;
(b) The length of time that Mrs Hamer had been in the propped up position which was said to have led to blocking of her airways; and
(c) Whether Mr Hamer’s actions and omissions were well intentioned though negligent, or whether he acted with consciousness, aware of the risk to his wife and deliberate and wanton indifference to her well being.
[66] In his sentencing remarks, Harrison J dealt with a number of aspects of the case which were in dispute. He accepted trial counsel’s submission that, before taking any matter into account as an aggravating effect, it was necessary for him to be satisfied that the Crown had proven that matter beyond reasonable doubt (s24(2)(c) of the Sentencing Act 2002). Having heard the evidence presented during the trial, Harrison J said it was unnecessary for him to hear further evidence at sentencing, and that he was able to make findings on the basis of the evidence led at the trial. He then made a number of findings adverse to Mr Hamer. There were:
(a) He did not accept that Mr Hamer had fallen asleep for some 12 hours after Mrs Hamer had consumed the overdose of methadone;
(b) He was satisfied that no later than 1.00pm Mr Hamer had noted that Mrs Hamer was suffering from cyanosis;
(c) He did not accept Mr Hamer’s explanation that he had propped up Mrs Hamer with pillows at about 5.00pm, but found that this occurred after Mr Hamer noted cyanosis, which was at about 1.00pm;
(d) He was satisfied that the prolonged failure to call an ambulance was not only grossly negligent but was deliberate;
(e) He was satisfied that the placement of pillows behind Mrs Hamer’s head was a deliberate step, taken with the knowledge that it would aggravate the brain damage she may have suffered, and that it had that effect;
(f) He did not accept that Mr Hamer was genuinely ignorant about the degree of peril to Mrs Hamer, but rather was satisfied that he knew of her dire medical condition and knew that the longer he waited the more likely it was that she would deteriorate and die;
(g) He did not accept that Mr Hamer could blame his medication for what happened.
[67] We do not accept that there is any basis for criticism of the trial Judge in making these findings, based on the evidence which he heard at the trial. They were all findings of fact which were available on the evidence he had heard at the trial. In some cases they reflected the Judge’s assessment of Mr Hamer’s credibility. The Judge said he was unable to accept much of what Mr Hamer had said. Again, he was well placed to make that assessment.
Other cases
[68] Mr King also argued that the sentence was out of line with other cases. He referred to the sentence imposed by Harrison J in R v Moorhead HC AK T011974 13 June 2003. In that case, Harrison J imposed a sentence of imprisonment of five years upon a husband and wife who had removed a small child from medical care where his vitamin B efficiency could easily have been cured, and hid him from authorities. Mr King also referred us to the decision of the Court of Appeal (Criminal Division) in England in R v Sinclair, Johnson and Smith [1998] EWCA Crim 2590 21 August 1998. In that case sentences imposed for the manslaughter by criminal negligence of three drug addicts who had allowed another person to inject himself with methadone and had taken 16 hours to summon assistance for him after he became deeply unconscious ranged between three years three months and four years imprisonment.
[69] Both of those authorities were cited to Harrison J, who fairly summarised the facts of those cases. Harrison J considered that the present case was much more extreme, given the aggravating factors to which reference has already been made. He therefore took a starting point of ten years imprisonment, before turning his attention to mitigating factors.
[70] Harrison J found that there were no mitigating factors in the present case. Mr Hamer’s counsel had suggested that his remorse was a mitigating factor, as was the possibility that his own medical condition and use of prescribed medication may have impaired his decision making ability. The Judge did not accept that either of these factors were present, and the probation report certainly gave no grounds for finding that there was remorse on Mr Hamer’s part: on the contrary, the probation officer referred to Mr Hamer presenting himself as a victim, and his needing to make a cognitive shift from avoidance and denial to admitting culpability. The Judge rejected the submission that Mr Hamer’s own prescribed medication or medical difficulties could have impaired his judgement, and again, there is no basis for this Court to take a different view.
Sentence
[71] Accordingly the Judge imposed a sentence of ten years imprisonment.
[72] Having regard to the very significant aggravating features which the Judge found applied in this case, and the lack of any mitigating features, the sentence cannot be said to be manifestly excessive. It is clearly near the top of the available range, but in our view it falls within the range of sentences which were available for the somewhat extreme circumstances of this case.
Minimum non-parole period
[73] Mr King also argued that the Judge was wrong to impose a minimum non-parole period in this case. Mr King argued, as trial counsel had argued at sentencing, that the imposition of a minimum non-parole period would amount to double counting of the aggravating features of the case. He said that the sentence of ten years imprisonment was a severe sentence, expressly reflecting the aggravating factors, and that these should not have been reapplied to justify the imposition of a minimum non-parole period.
[74] For the Crown, Mr Pike said the minimum non-parole period did no more than reflect the necessary punitive element of the sentence.
[75] There is nothing in this ground of appeal. The Judge’s decision in relation to the minimum non-parole period was an orthodox application of the principles outlined by this Court in R v Brown [2002] 3 NZLR 670. We are not prepared to interfere with the Judge’s assessment in this case.
[76] The appeal against sentence therefore fails.
Result
[77] Mr Hamer’s appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington
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