v v R HC New Plymouth CRI 2005-021-191

[2006] NZHC 854

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2005-021-00191

BETWEEN  V

Applicant

AND  THE QUEEN Respondent

Counsel:        SW Hughes for Applicant

CE Clarke for Respondent

Judgment:      21 July 2006

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on [       ] at [       am/pm], pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

V V R HC NWP CRI 2005-021-00191  21 July 2006

Solicitors:           Govett Quilliam, Private Bag 2013, New Plymouth for Applicant

Auld Brewer Mazengarb & McEwen, P O Box 738, New Plymouth for Crown

Introduction

[1] On 9 March 2006 Gavin V was found not guilty by a jury on alternative charges of manslaughter and criminal nuisance. He now applies, under the Costs in Criminal Cases Act 1967, for a contribution to his legal costs.

[2]      The charges were brought following the death of Mr V  ’s four year old daughter, Molly, after the all-terrain vehicle (ATV, commonly known as a farm bike) she was riding rolled and fell on her.  She had been helping her father round up the cows on the family farm at Patea, Taranaki.  She had been riding on the back of Mr V  ’s farm bike when they entered the paddock where the cows were grazing. Mr V   got off the bike to make a call on his cellphone.  He agreed to Molly’s request to ride the bike around the cows.  She lost control and sustained fatal head injuries in the accident.

Basis of application

[3] The application is governed by s 5 of the Costs in Criminal Cases Act which provides as follows:

5        Costs of successful defendant

(1)       Where  any  defendant  is  acquitted  of  an  offence  or  where  the information   charging   him   with   an   offence   is   dismissed   or withdrawn, whether upon the merits or otherwise, or where he is discharged under [section 167] of the Summary Proceedings  Act

1957 the Court may, subject to any regulations made under this Act,

order  that  he be paid such sum as  it  thinks  just  and  reasonable towards the costs of his defence.

(2)       Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—

(a)       Whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b)      Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c)       Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d)       Whether  generally  the investigation  into  the  offence  was conducted in a reasonable and proper manner:

(e)       Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point:

(f)       Whether   the   information   was   dismissed   because   the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g)       Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

(3)       There shall be no presumption for or against the granting of costs in any case.

(4)       No defendant shall be granted costs under this section by reason only of the fact  that  he has  been acquitted or  discharged or  that  any information charging him with an offence has been dismissed or withdrawn.

(5)       No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[4]      Mr V   accepts that the prosecution was initiated in good faith.  However, he asserts that the prosecution should not have proceeded after the defence disclosed its case and the evidence it would be relying on, and the prosecution elected not to respond with evidence which would meet the defence case.  In order to explain the argument, it is necessary to say something about the legal elements of the charges faced by Mr V  .

The charges - issues arising

[5]      The charge of manslaughter alleged that Molly died as a result of an unlawful act committed by Mr V  .  If established, that is manslaughter under s 160 of the

Crimes Act 1961 (the Act).  The unlawful act relied on was Mr V  ’s failure to observe the legal duty in s 156 of the Act which provides:

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.

The Crown case was that the farm bike could endanger human life and Mr V   failed to take reasonable precautions against and to use reasonable care to avoid such danger.

[6]      The failure to observe that duty was also relied on by the Crown for the purpose of the alternative charge of criminal nuisance.   That crime is set out in s 145(1) of the Act which provides:

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.

[7]      In determining whether, for the purpose of the manslaughter charge, there was an omission to discharge the  legal duty, s 150A(2) of the  Act  applied.    It provides:

(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.]

[8]      I ruled in the course of the trial that s 150A(2) did not apply to the charge of criminal nuisance.   The Crown did not therefore have to prove a major departure from the applicable standard of care for the purpose of that charge.

[9]      The issues which accordingly arose for determination at trial were, in relation to the charge of manslaughter, whether Mr V  ’s conduct:

a)        Was a major departure from the standard of care expected from a reasonable person in the circumstances in which he was in; and

b)       Was a substantial and operative cause of Molly’s death. In relation to the charge of criminal nuisance, the issues were whether:

a)        Mr V   failed to observe the standard of care expected from a reasonable person in the circumstances in which he was in.

b)        He knew that in allowing Molly to ride the ATV on her own, he would endanger her life, safety or health.

[10]     Common to  both charges was the need to  establish the standard of care expected from a reasonable person in the circumstances in which Mr V   was in immediately before the accident.   The jury would then need to consider, for the purpose of the manslaughter charge, whether there had been a major departure from that standard which caused Molly’s death.  If there had not been such a departure, for the purpose of the criminal nuisance charge, the jury would have to decide whether there had been a simple failure to observe the standard of care and knowledge that the failure would endanger the life, safety or health of the rider.

Prosecution evidence

[11]     For the purpose of establishing the duty of care, the Crown called evidence of the manufacturer’s instructions and recommendations and of safety guidelines promulgated by the farming industry and interested bodies such as the Accident Compensation Corporation and Department of Health and Safety.   Before trial the defence objected to this evidence being called.  Ms Hughes argued that the evidence was of an advisory nature and did not establish the standard of care to be expected of

a reasonable farmer in the position of the accused.   She submitted that required evidence of what farmers actually do.

[12]     In my judgment of 23 February (R v V   HC NWP CRI2005-021-001091) I held the evidence to be relevant and admissible.  I said:

[19]     There is no doubt that the disputed evidence is directly relevant to determining the applicable standard of care.  If defence concerns can be met, the evidence is admissible.  The use of ATVs is outside the normal range of human experience.  The jury will not be able to properly consider the issues without appropriate evidence as to the dangers they pose and the means by which those dangers can be and are met.  That should include evidence of what the industry itself and those with an interest  in  maintaining safety standards consider to be best practice.   Undoubtedly it should also include the  manufacturer’s  instruction  and  recommendations,  particularly  if  it  is open to the jury to infer that they came to the notice of Mr V  .

[20]      I  readily  acknowledge  that  the  jury  should  not  consider   the guidelines  and  recommended  standards  in  isolation.    Evidence  of  what occurs in practice is also relevant.   The jury is free to come to its own assessment of how the duty should be discharged.   It is entitled to have regard to practical considerations and industry practice, as well as industry standards, in doing so.  It is not bound to conclude that guidelines for best practice establish the legal standard.

[21]     I doubt that the absence of evidence of actual experience on farms would be a sufficient reason to exclude the disputed evidence, although it could well raise difficulties for the Crown in a challenge to the adequacy of its case.  A deficiency in one part of the Crown case cannot be a reason to exclude evidence relevant to another part.  However, I need not explore this point further as there is prosecution evidence which bears directly on the practice of farmers, and there is nothing to stop the defence from adding to it.

[13]     At trial the Crown adduced the evidence of the manufacturer’s instructions and  industry safety guidelines for the operation of ATV’s.    Several prosecution witnesses were able to say something about the general practice of farmers but it was the defence which introduced most of the evidence as to the standards generally observed by farmers.

The case for costs

[14]     For Mr V   it is submitted that the Crown should not simply have relied on manufacturers and industry standards to establish the duty of care.  The thrust of Ms Hughes’ argument is that the evidence of what farmers actually did – which

tended to show that ignorance of or non-compliance with the standards were widespread – should have determined the applicable standard of care. It is argued that the Crown should have investigated the actual practice of farmers and, had it done so, the prosecution would not have proceeded. In terms of s 5(2) it is submitted that:

•The prosecution did not proceed in good faith after it was made clear the defence would, if necessary, call evidence of farming practices and standards (subpara (a)).

•The prosecution had insufficient evidence of the relevant standards to support a conviction (subpara (b)).

•The Crown failed to properly investigate issues raised by Mr V   in the course of an application for discharge under s 347 of the Act (subpara (c)).

•      The  investigation was not  conducted in  a  reasonable  and  proper  manner

(subpara (d)).

•The jury’s verdicts were based on evidence called by the defence which established that Mr V   was not guilty (subparas (e) and (f)).

•      Mr V   cooperated fully with the police (subpara (g)).

Decision

[15]     The  arguments  put  forward  on  behalf  of  Mr  V    are  not  materially different from those advanced by Ms Hughes in support of the pre-trial application for a discharge under s 347 of the Act.   She argued that the evidence which the Crown proposed to adduce did not establish the relevant standard of care or that there had been a departure from the standard of care for the purpose of either of the charges.  In my judgment of 23 February 2006 I rejected the application for reasons which are equally applicable to the present application.

[16]     Evidence of the standards promulgated by manufacturers and other interested groups must be the starting point for establishing the applicable standard of care. They may be seen as articulating what is theoretically desirable and achievable.   I consider the Crown was fully entitled to put the standards forward as establishing the relevant  duty of care while acknowledging that they may  not  coincide with the practical realities.  Indeed, the evidence of a police officer with special expertise in accident investigations, called by the Crown, was to the effect that industry and safety standards and manufacturers’ recommendations were widely disregarded by farmers, at least in some of the respects relevant to the case.

[17]     I am also  satisfied that the evidence relied on by the Crown could have entitled the jury, depending on the standard of care it adopted, to determine that there had been a departure from the relevant standard or knowledge that the breach would be dangerous.  Such assessments have been described as “supremely a jury question” (R v Adomako [1995] AC 171 at 187) and involve “a value judgment” on which there can be legitimate scope for disagreement and which the legislature has left to juries and not judges to decide: R v McKie (unreported, HC DUN T13/00 31 July

2000 William Young J).

[18]     The  defence  evidence  may  well  have  helped  the  jury  to  decide  the appropriate duty of care was less than the standard advocated in the safety guidelines relied on by the Crown and to conclude that  Mr V   had  not departed to a material extent from the relevant standard.  It does not follow that it would not have been open to the jury to take a different view on both key issues on the basis of the prosecution evidence.

[19]     In  my  view,  the  prosecution acted  in good  faith  and  with  propriety and responsibility throughout.   There was nothing  in the  police  investigation  or  the conduct of the prosecution with which I would find fault.   There was sufficient evidence to go to the jury.  Its verdicts do not suggest otherwise.  They simply show that jurors were not satisfied that Mr V   had departed from the relevant standard (whatever that was) to the degree and with the state of mind required by law.

Result

[20] For these reasons, I am satisfied that there is no basis on which I could make an award of costs under the Costs in Criminal Cases Act 1967. The application is accordingly declined.