Police v Beck [2016] NZDC 15035 (17 August 2016)

Last Updated: 12 January 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT PORIRUA

CRI-2016-091-000539 [2016] NZDC 15035

NEW ZEALAND POLICE

Prosecutor

v

REMY BECK

_Defendant

Hearing:	4 August 2016
Appearances:	Ms Thistoll for the Defendant Ms Garlick for the Prosecutor
Decision:	17 August 2016

RESERVE DECISION OF JUDGE JAR JOHNSTON

(Pre-Trial Application - s 147 application of the Criminal Procedure Act)

[1] Mr Beck faces a total of four charges but for the purposes of this pre-trial application it is the lead charge only that was the subject of the application pursuant to s 147 of the Criminal Procedure Act.

[2] That lead charge (CRN16091000722) alleges that on the 4th day of March

2016, at Porirua, being a person who has actual care of Sullivan Beck being a person under the age of 18 years, intentionally engaged in conduct, namely using methamphetamine, suffering namely Sullivan Beck adverse effects to health, namely psychological abuse to Sullivan Beck and the conduct engaged in namely delirium and dropping Sullivan whilst holding him, is a major departure of the standard of care to be expected of a reasonable person. The offence is pursuant to the Crimes Act 1961 s 195(1) and (2)(a). The maximum penalty is 10 years imprisonment.

[3] Viva voce evidence was called by the police. I heard from Constable Giulia Boffa and from Sergeant Wynand Van Leeuwen. An agreed brief of evidence was handed up from Suzy Gunne.

The result

[4] Pursuant to s147, the court may dismiss a charge for which the trial procedure is the judge-alone procedure, if it is satisfied that there is no case to answer.

[5] The decision to dismiss a charge must be given in open court. In Auckland City Council v Jenkins [1981] 2 NZLR 363 at page 365 a submission that there is no case to answer can be made and upheld when:

• There has been no evidence to prove an essential element in the alleged offence;
  

[6] The decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.

[7] Taking all matters into consideration and for the reasons set out below I find that there is a case to answer.

Reasons

The Evidence

[8] Viva voce evidence was given first by Constable Giulia Boffa who was first to attend at the defendant’s address. She attended on the 4 March 2016 at 6:30pm and initially observed the defendant who was with two others. She initially observed, after asking what the matter was, that the defendant was not communicating. The defendant then was constantly asking for help yet according to the Constable seemed “really out of it”. At the same time she gave evidence that she could hear a child crying and saw the child. She estimated the age of the child to be between one and two years old and was wearing just a nappy and nothing on the top

half crying his eyes out. She also gave evidence that the child had walked down the pathway from what turned out to be the defendant’s house towards the road where the defendant was with her and two others. She did not know that the child was unattended at that point and was later to ascertain that there were no other adults in the house. She continued to try and communicate with the defendant but he was not talking to her and initially was still in a distressed state. The only thing he kept saying at the early stages was “help me”. She followed him into his address and at that stage, particularly when Sergeant Van Leeuwen arrived, the defendant seemed calm enough to give her his details. At that time she observed the defendant was pacing and holding the child and at that point became “euphoric”. He was happy and smiling but was not steady on his feet. According to the Constable he seemed quite strange, was moving around and he was holding the child “quite loosely in his arm”. She could not recall whether it was his left arm or right arm. As the defendant walked towards the child he continued to cry and walked towards the back of the address. The Constable also asked him to put the baby down but he ignored her. She asked him if it was his child and he gave a name which she now knows to be incorrect. She asked the defendant if he knew the age of the child and at that stage his demeanour changed. He could not recall the child’s date of birth. There were then long pauses and confusion and just a “glazed look on his face”. The defendant still had the child in his arm and spun backwards into the kitchen door.

[9] Constable Boffa gave evidence that she was concerned for the child and she moved forward because of that concern. The defendant then grabbed her arm. According to her it “seemed like he was out of it”. The Sergeant told him not to touch Constable Boffa and the defendant apologised and moved backwards immediately. At this stage according to Constable Boffa the defendant was unsteady on his feet, he stumbled, lost his grip on the child and dropped him “bum first onto the kitchen table”. The baby started to ball its eyes out. Constable Boffa then grabbed the child and held him to settle him. The defendant was asked to go outside and he did. During the course of stumbling and dropping the child the defendant accidently knocked over a chair that he was trying to hold himself up on. The child fell not very far, on clarification somewhere between 30cm and 50cm. No injuries were ascertained. The mother arrived at the address after being contacted at 7:18pm.

[10] Sergeant Van Leeuwen’s evidence was consistent with Constable Boffa in most respects. According to Sergeant Van Leeuwen he and Constable Boffa were trying to get the defendant to put the baby down because he was unsteady on his feet and had a glazed look in his eyes. In their view the child could be at risk so their goal was to take the child off the defendant. The Sergeant confirmed that there was no one else at the address and whilst they were searching it they noticed the defendant continued to be unsteady on his feet. He also had difficulty providing details. According to the Sergeant his carriage of the child became looser. The child didn’t seem upset but the defendant’s carriage seemed very loose.

[11] The Sergeant, who knew the defendant, found his behaviour to be erratic. He was hysterical and laughing then moved to crying then to being glazed over and with no expression. He reaffirmed that their goal was to remove the child from the defendant and it was when they were trying to negotiate this that the defendant “inadvertently dropped the baby”.

[12] Luckily he was above a table and it was a little drop with no harm to the “baby”. Immediately before this it appeared that things “weren’t clicking” the defendant didn’t want to pass over the child and he was “moving jerkily” and “lost grip of the child”. The child fell, according to the Sergeant “lucky to be 50cm” and once the child’s bottom hit the table the Sergeant moved in to direct the defendant out of the kitchen. Another staff member took the defendant outside. He described the defendant’s behaviour in the house as being not a normal expression of the defendant and according to the Sergeant was to the extreme for the defendant. The Sergeant was concerned about the defendant’s behaviour. Under cross-examination the Sergeant confirmed that the defendant is normally quite animated but agreed he was more animated than normal on this occasion. He accepted that it was possible that if the baby put its legs down it could reach the table. He confirmed that the baby had been crying previously but not when he was there. The baby did however cry when landing on its bottom and then when picked up by the police officer. The Sergeant agreed that yes, otherwise, the baby was fine being with its dad.

[13] The brief of evidence handed up by consent was for Suzy Gunne. She is the mother of the victim and confirmed that he was Sullivan Beck and was one year old

in March of this year. Her brief also confirmed that the defendant is the father of the victim. Her evidence was that when she left the address on Friday 4 March 2016 to go to work in Wellington that the child was in bed asleep and that the defendant was sober. She confirmed that after a telephone call from police she returned to her home arriving there about 7:20pm.

[14] No evidence was called by or for the defence.

The Law

[15] Section 195 of the Crimes Act is headed ill treatment or neglect of child or vulnerable adult. The section provides as follows:

(1) Every one is liable for imprisonment for a term not exceeding 10 years who, being a person described in subsection (2) intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effect to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.

(2) The persons are:

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

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

[16] There are five essential elements of the charge which must be proven by the police beyond a reasonable doubt. The elements are:

(1) The defendant is a person having the actual care or charge of the victim. This was not disputed.

(2) The victim is a child. This was not disputed.

(3) The defendant intentionally engaged in conduct namely using methamphetamine.

(4) That the conduct referred to is likely to cause suffering, injury, adverse effects to health or any mental disorder or disability to a child.

(5) That the conduct must be a major departure from the standard of care to be expected of a reasonable person.

The Third Element

[17] It is noted at this point that the police have applied to amend the word “methamphetamine” in the charging document for “using drugs or alcohol”. This is opposed by the defendant.

[18] According to Ms Thistoll the police have not been able to establish that the defendant intentionally engaged in methamphetamine use as there is no evidence in this regard. Further she submits that there was no evidence about use of drugs or alcohol in the evidence presented by the police for the purposes of this pre-trial application. Accordingly Ms Thistoll has not canvassed the amendment issue because in her submission, even if the allegation is that he was under the influence of drugs or alcohol, this element has not been made out. I will return to the request for an amendment later.

[19] In response Ms Garlick relies upon the strange behaviour of the defendant at the time of the police arrival. The evidence before me was that the defendant presented in such a way that he was struggling to walk, or was stumbling, had significant mood swings from initially crying to laughing hysterically which made it clear from his behaviour that he was “high” or “out of it”. This was apparent from when the defendant was first located outside the address on the street.

[20] The Crown also raised the issue that they were not sure why the pre-trial application for one of the four charges was being heard and determined before testing of the substances located at the address have been completed. The other charges faced by the defendant include possession of methamphetamine and

possession of cannabis however these will not be determined until the results of testing, which is being undertaken, are confirmed in due course.

[21] In the Crown’s submission there had been some taking of illegal substances and that was clearly evident by the defendant’s demeanour and conduct. According to the Crown the defendant was in sole custody of the child at the relevant time and he has taken a substance which has strongly impacted on him.

The Fourth Element

[22] The fourth element is that the conduct referred to is likely to cause suffering, injury, adverse effects to health or any mental disorder or disability to a child.

[23] Whilst the Crown concedes that the charge is expressed in a “clumsy” way it is submitted that the defendant’s conduct has been in such a way as to cause harm to the child. In particular the defendant who was in the sole charge of the child:

(a) Left the address.

(b) Left the child unattended.

(c) Whilst the defendant was out on the street, the child, who could walk, managed to walk along the front path and towards the road. It is noted there was no gate preventing the child from accessing the road although fortunately, the child did not do so.

(d) That two police officers observed the defendant holding the child

“loosely” with one arm.

(e) That whilst holding the child, the defendant was stumbling and the child’s legs were dangling to such an extent that both police officers were concerned about the child’s wellbeing.

(f) In the context of holding the child he was unsteady on his feet and looked ready to drop the child at any stage.

(g) In all of the above aspects, the police in attendance were of the view that it looked likely that the defendant would cause harm to the child.

[24] According to the Police, it was fortuitous that when the defendant dropped the child, that the table was there and the child did not fall further. The police’s submission essentially is that the defendant’s conduct was likely to cause harm to the child.

[25] The defence view is that “likely” needs to be real and substantive risk and that the evidence presented does not meet that criteria.

[26] The defence submission is that what occurred may have amounted to bad parenting but it was at a low or ordinary level and that it doesn’t meet the criteria for this element. The defence went further to say that the information referred to “adverse effects to the health” of the child and in particular an allegation of “psychological abuse” which it is submitted have not been made out.

[27] Ms Thistoll submitted that this aspect needed to be looked at in the context of the other aspects in s 195 namely suffering, injury, adverse effects to health or any mental disorder or disability. In Ms Thistoll’s submission there was no evidence that the child was psychologically abused being dropped 30cm on to the kitchen table. In her submission the level of psychological abuse in order to meet the s 195 requirements has to be at a much higher level. It needs to be a lot more than just negligence and she referred to psychological or abuse over time or alternatively an example of scolding a baby in hot bath water.

[28] The Police also referred to the commentary in Adams in respect of s 195 and that the section now comes with a full range of harms through to serious injury and death. According to the Police the defendant’s conduct was a major departure from the standard of care required of a parent, that stress was suffered by the child, the harm is that he was left unattended and nearly made it onto the road, he was being held loosely by the defendant who was very unsteady on his feet and ultimately lead to the child being dropped. The Crown view is that there has been sufficient harm as a foundation for the element.

The Fifth Element

[29] The fifth or final element is that the conduct must be a major departure from the standard of care to be expected of a reasonable person. This is divided into two parts. First was there a departure, and second was it major.

[30] According to the Crown the taking of drugs or substances is a major departure from the reasonable standard of care for somebody having in this instance sole charge of the child whilst the mother was at work. The Crown also submitted that it is major in the sense that the degree to which the defendant was affected by drugs included:

• His behaviour and demeanour.

• He could not remember how old his child was.

• He gave the wrong name for the child.

• He was initially found out on the road which meant that his child was unattended.
  

• He wouldn’t give the child over to the police.

• He ended up dropping the child.

[31] Again the Crown submits that the circumstances do constitute a case to answer as together they constitute a major departure from the standard of care to be expected of a reasonable person.

[32] Ms Thistoll for the defendant submitted that the major departure from the standard of care expected for s 195 needs to be a “gross departure” or “gross negligence”. The Crown had not proved that ingredient either. Whilst it might have established or be an example of not good parenting it does not meet the test for a major departure from the standard of care to be expected of a reasonable person.

[33] Ms Thistoll submitted that a fact finder could easily find that there is no case to answer with this charge. Essentially what the case boils down to, she submits, is a little kiddie looking for his dad. He found his dad who was carried by the dad albeit lightly. The child cried when he fell onto the table a short distance. The child then cried again when he was picked up by a stranger police officer until his mother arrived. It was also significant, she submitted, that no further action was deemed appropriate or necessary by the police such as notifying CYF’s or some type of follow up that one would ordinarily expect if the police had major concerns about the standard of care. There has to be a gross departure and that is not the case here.

[34] Ms Thistoll also referred to The Queen v Powell Court of Appeal 192/01

Court of Appeal 202/01 which is a vehicular manslaughter case providing some commentary regarding about what gross negligence amounts to as opposed to ordinary negligence.

Outcome

[35] Having considered all matters including the evidence and helpful oral submissions of counsel in respect of the elements, I find that there is a case to answer. I do comment however that my finding is only by the narrowest of margins. Whilst it is sufficient for the matter to proceed to a trial it is another question whether the police will be able to establish the essential ingredients of the charge beyond a reasonable doubt. That is of course a matter for the trial.

[36] I also think it appropriate to amend the information as requested by the police. The charging document will accordingly be amended by deleting the word “methamphetamine” and substituting “drugs or alcohol”. That amendment is to be made in the presence of the defendant.

[37] Accordingly, the matter should be set down for a further Case Review Hearing to enable the amendment to be considered, discussions to occur and the setting of a JAT date.

JAR Johnston

District Court Judge