JF v New Zealand Police [2014] NZHC 547 (24 March 2014)

Last Updated: 31 March 2014

PERMANENT SUPPRESSION ORDER PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPLICANT PROHIBITED UNDER S

_{200(2)(F) CRIMINAL PROCEDURE ACT 2011.}

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000045 [2014] NZHC 547

BETWEEN JF Applicant

AND NEW ZEALAND POLICE Respondent

On the Papers

Appearances: T Singh for Appellant

RB Anandale for Respondent

Judgment: 24 March 2014

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 24 March 2014 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

_{Registrar/Deputy Registrar}

JF v NEW ZEALAND POLICE [2014] NZHC 547 [24 March 2014]

Introduction and result

[1] On 21 October 2013 I issued a judgment¹ in which I upheld the applicant’s conviction on a charge that, being a person who had actual care of a person under the age of 18 years, she omitted to take reasonable steps to protect that child from injury, that being a major departure from the standard of care to be expected of a reasonable person.²

[2] On 7 November 2013 the applicant filed a notice of application for leave to appeal to the Court of Appeal by way of case stated on a question of law.³ Through a regrettable oversight in the Registry of the High Court at Hamilton, the application was not drawn to my attention until 19 March 2014.

[3] Having examined the grounds of appeal and the proposed questions of law in respect of which leave to appeal is sought, I have concluded that the application should be dismissed without calling on the respondent to make submissions. I am satisfied that no appealable question of law arises from the judgment. My reasons follow.

Facts found to be proved in District Court

[4] It is necessary to describe briefly the facts as found by Judge Tompkins in the decision from which the appeal was brought.

[5] At about 10:45 pm on 15 August 2012, a car driven by the applicant crashed into a give way sign at the end of Holland Road near Ruakura, east of Hamilton. The applicant had failed to take a moderate bend in Ruakura Road, passed through a “T” intersection, crossed over the centre line and hit the sign. The applicant’s daughter, A, was restrained by a conventional seatbelt in the front passenger seat of the vehicle. A was not injured in the crash. On the back seat of the applicant’s vehicle there was a child’s booster seat which was not being used at the time of the

_accident.

¹ _{JF v NZ Police [2013] NZHC 2729.}

² _{Crimes Act 1961, s 195(1) and (2)(a).}

³ Summary Proceedings Act 1957, s 144.

[6] A Police car happened to be parked nearby and the officers in the car witnessed the crash. An evidential breath test was administered and the applicant was found to be driving with 928 micrograms of alcohol per litre of breath, some

528 micrograms above the legal limit.

[7] The applicant had been drinking with friends earlier in the evening and it was agreed that the applicant and her infant daughter should stay the night at the home of one of her friends. The Judge held that she then proceeded to get drunk but the evening was interrupted by the arrival of a patched gang member, the partner of the applicant’s friend, who started yelling and being aggressive. The applicant quickly left the house with her daughter whom she placed in the front passenger seat and fastened the seatbelt over her. The applicant claimed she became lost and that there was nowhere for her to pull over and use her smartphone to ascertain where she was or to put her daughter into the child’s car seat in the back.

The hearing in the District Court

[8] It was accepted at the hearing of the appeal that the applicant and her counsel had not been misled as to the essential nature of the prosecution case. It had been identified prior to the District Court hearing that a course of conduct had been established that arguably amounted to a breach of the applicant’s duty under s 152 of the Crimes Act 1961 to take reasonable steps to protect her daughter from injury. The outcome of the appeal turned, therefore, on whether Judge Tompkins was justified in finding:

(a) that it had been established beyond reasonable doubt that the appellant’s actions were likely to cause suffering, injury or adverse effects to the health of her daughter; and

(b) that the act or acts relied upon to found the charge represented “a

major departure from the standard of care to be expected of a reasonable person”.⁴

⁴ Crimes Act 1961, s 195.

[9] In dismissing the appeal, I held that whether the applicant’s acts were likely to cause injury was a question of fact and that it was not necessary for the prosecution to prove that actual injury arose. ⁵ I concluded that the combination of the applicant’s level of intoxication, her manner of driving, and the manner in which her child was restrained created a real or substantial risk of injury.

[10] After discussing the applicable legal principles, which were not in dispute in the District Court or on appeal, I noted that it was not argued on behalf of the applicant that her actions as described above did not amount to a departure from the standard of care of a reasonable person. What was in issue at the defended hearing and on appeal was whether the departure in the present case amounted to a “major” departure.

[11] I observed that the District Court Judge had held that the risk of harm to the applicant’s child was caused by a combination of her intoxication, the manner of driving, and the placement of the child in the front seat rather than in the booster seat in the rear. It had been said by the applicant in evidence that at the time of the alleged offence her daughter was only two months shy of her fifth birthday and that she was a tall child. I noted that the prosecution had not called evidence as to the relative effectiveness of the front passenger seatbelt and the rear child booster seat in minimising the risk of injury for this child.

[12] However, the applicant was obligated under cl 7.6 of the Land Transport (Road User) Rule 2004 to ensure that her daughter, being under the age of five years, was properly restrained by an approved child restraint appropriate for the child. I considered it was reasonable to infer from this obligation that the risk of injury was increased by the failure to comply with it. I said the objective of the rule as described in sch 1 is to promote the safe and efficient operation of roads. Although I acknowledged it was not directly relevant to the decision, I held that the amendment of cl 7.6 from 1 November 2013 to increase the maximum age for its application

from five years to seven years⁶ supports the view that the use of adult restraints for

_{young children is regarded as an inadequate safety measure.}

⁵ _{JF v NZ Police, at [33].}

⁶ Land Transport (Road User) Amendment Rule (No 2) 2013, cl 7(2).

[13] I held:

[41] The circumstances of the breach involved the appellant driving at night in a rural area with which she was not familiar while she had a breath/alcohol level of more than twice the legal limit. Driving with a young child in the vehicle in those circumstances is bad enough; doing so when the child was not properly restrained exacerbates the risk of injury. It is a significant factor that once the appellant had fled the address and removed the child and herself from any immediate harm caused by the unwelcome visitors, she failed to pull over and wait until she was fit to drive on. Nor did she move A to where she could at least be properly restrained in the car seat which was in the back of the vehicle. I do not accept that there was nowhere for the appellant to pull over; it was a rural area and it would have been perfectly feasible to stop on the verge of the road. The combination of the circumstances referred to satisfies me that the appellant’s conduct amounted to a major departure from the standard of care to be expected of a reasonable person, and that that warrants a criminal sanction.

The proposed questions of law

[14] In the application, the applicant proposes that the following questions should be stated for the opinion of the Court of Appeal:

(a) Was the Court entitled in law to conclude that the applicant had, by driving whilst intoxicated, and in a manner that was, at worst, careless, intentionally engaged in conduct or omitted to discharge a legal duty that was likely to cause injury to the child? If the answer is “no”, then;

(b) Was the Court correct to rely upon the fact that it is an offence to fail to ensure that a child under the age of five is properly restrained in an approved child restraint to conclude that the applicant’s failure to restrain her child in an approved child restraint increased the risk of injury to one that was real and substantial when there was no evidence of the relevant effectiveness of the adult front passenger seatbelt compared to the approved booster seat?

(c) Was the Court correct in finding that the combination of circumstances referred to in the judgment at [41] reached the legal

threshold to amount to a major departure from the standard of care to be expected from a reasonable person?

[15] Section 144 of the Summary Proceedings Act 1957 is no longer in force but it governed appeals at the time of the relevant events and therefore applies.

[16] The section provided that appeals to the Court of Appeal by way of case stated may be made only with the leave of the High Court. By virtue of s 144(2) of the Act, a party desiring to appeal must satisfy the High Court that the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[17] The application falls at the first hurdle in that the proposed appeal does not involve any question of law. The questions proposed by the applicant are questions involving the application of established legal principles to facts which were proved or inferred from proved facts.

[18] Further, the questions proposed by the applicant do not involve matters of general or public importance and there is no other reason, in my view, why the questions ought to be submitted to the Court of Appeal for decision.

[19] Accordingly, I dismiss the application.