R v Milton [2014] NZHC 778 (15 April 2014)

Last Updated: 1 May 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-025-001947 [2014] NZHC 778

THE QUEEN

v

_{SUCHARITTA MILTON}

Hearing:	(on the papers)
Appearances:	M-J Thomas for the Crown T W Fournier for the Defendant
Judgment:	15 April 2014

_{JUDGMENT OF PANCKHURST J}

Background

[1] Prior to the hearing on 26 March 2014 to determine whether Mrs Milton was legally insane when she harmed her daughter,¹ the Crown applied to amend the

_{charge of attempted murder to attempted infanticide.}²

_{The timing of the application}

was belated and unfortunate. Immediately before the hearing I conferred with counsel in chambers and indicated that I was not satisfied that an offence of

_{attempted infanticide existed and that this question required due consideration.}

[2] Two psychiatrists were about to give evidence by audiovisual link concerning Mrs Milton’s mental capacity at the relevant time. Mrs Milton, and her family, were anxious for the hearing to be completed that morning. Mr Fournier indicated that his client preferred that the hearing proceed, rather than that there be a delay to enable

_{the amendment application to be argued and ruled upon.}

¹ _{R v Milton [2014] NZHC 605.}

² _{Pursuant to s 133(1) Criminal Procedure Act 2011.}

R v MILTON [2014] NZHC 778 [15 April 2014]

[3] The hearing proceeded and in the course of my making a finding of insanity I referred to the amendment application and noted that it was reserved for further consideration. Accordingly, this judgment deals with the reserved application.

An apparent problem

[4] Section 178 of the Crimes Act 1961 relevantly defines infanticide in this way:

(1) Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

(2) Where upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 10 years there is evidence that would support a verdict of infanticide, the jury may return such a verdict instead of a verdict of murder or manslaughter, and the defendant shall be liable accordingly. Subsection (2) of section 339 shall be read subject to the provisions of this subsection, but nothing in this subsection shall affect the power of the jury under that section to return a verdict of manslaughter.

(3) Where upon the trial of a woman for infanticide, or for the murder or manslaughter of any child of hers under the age of 10 years, the jury are of opinion that at the time of the alleged offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she was insane, the jury shall return a special verdict of acquittal on account of insanity caused by childbirth. (emphasis added)

[5] The highlighted opening words of s 178(1) suggest that infanticide is confined to circumstances where the death of the child has occurred. The inclination to read the section in this way is strengthened upon reading subs (2), whereby infanticide is treated as an included offence to a charge of murder or manslaughter. Likewise, subs (3) provides that a mother charged with murder, manslaughter or

_{infanticide may be acquitted on account of insanity if the balance of her mind was}

_{disturbed to the requisite extent.}³

_{Hence, it may be said s 178 is drafted to suggest}

that infanticide is confined to situations where death has resulted.

[6] In R v Sutherland⁴ Heath J said as much when responding to a submission that a sentencing should proceed as if an offence of causing grievous bodily harm had a reduced maximum penalty because the defendant’s mind was disturbed at the

_{time. He said:}

... there is no defence or partial defence equivalent to infanticide when death does not result. It is not open for Courts to create offences nor indeed to create partial defences. The provisions of the Crimes Act that operate to codify our criminal law prevent the Courts from taking on that role.

This, I must say, was my impression as well when I declined to amend the charge on the morning of the hearing without proper argument.

_{But, does the drafting of s 178 exclude attempted infanticide?}

_{[7] Ms Thomas made the amendment application in reliance upon R v L.}⁵

_{In that}

case Fogarty J acceded to an application to amend a charge of attempted murder to one of attempted infanticide. He noted at the outset that s 178 performed a dual role, in that it both defined when a defence of a disturbed mind attributable to the effects of child birth was available, and created the offence of infanticide. Then, by reference to the attempts section in the Crimes Act, s 72, Fogarty J reasoned that

_{there was no reason for finding that an offence of attempted infanticide did not exist.}

[8] Fogarty J referred to two previous cases in which attempted infanticide had been recognised as an offence in New Zealand. In R v O’Callaghan⁶ the defendant was charged with attempted murder of her infant child and, in the alternative, injuring in circumstances that if death had resulted she would have been guilty of manslaughter. Quilliam J accepted that a verdict of attempted infanticide was available in relation to the attempted murder charge if the medical evidence

supported the special defence. The Judge reasoned that if the defendant’s mind was disturbed by reason of her having given birth, then the defence should be available regardless that the defendant had not succeeded in causing the death of her child. It made no sense that a disturbed defendant who intended to cause the death of her

_{child, but failed to do so, should be denied the benefit of a verdict of attempted}

⁴ _{R v Sutherland (2005) 22 CRNZ 126 (HC).}

⁵ _{R v L HC Invercargill CRI-2009-025-329, 24 November 2009.}

⁶R v O’Callaghan (1984) 1 CRNZ 185 (HC).

infanticide, whereas had the child died infanticide would have been available. A

similar approach was taken in another case, R v Patterson.⁷

[9] Fogarty J in R v L also considered the infanticide provisions in the United Kingdom and cases decided both there and in Hong Kong, before reaching the conclusion that attempted infanticide should be recognised as an offence. He concluded that the general law relating to attempts could be coherently and sensibly applied to infanticide, reading ss 178 and 72 together, and that the absence of express reference to attempted infanticide in the Crimes Act was of no moment.

Analysis

[10] I now accept that there is an offence of attempted infanticide and that the Crown’s application to amend the charge of attempted murder is appropriate. The reasons which support this conclusion can be stated quite succinctly.

[11] The first proposition is that the scheme of the Crimes Act is to define substantive offences, but provide for attempts to commit such offences through a separate attempt provision. That is s 72(1), which relevantly provides:

Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

[12] The remaining two subsections provide that whether an act or omission is mere preparation, or an act of commission, is a question of law; and to be determined by asking if the act or omission was sufficiently immediate or proximate to the intended offence.

[13] Secondly, in a limited number of instances the Crimes Act does refer to attempts, but this is in the context of penalty. Section 311 provides a general penalty for attempts. The maximum is defined by reference to the maximum punishment for the full offence. Where the maximum penalty is life imprisonment, an attempt to commit that offence carries a 10 year maximum. Otherwise, the maximum penalty

is half that prescribed for the full offence. But, some attempts have a specific

_{prescribed maximum penalty. For example, attempted murder carries a maximum}

_{penalty of 14 years’ imprisonment.}⁸

_{But these special penalty provisions aside, the}

_{scheme of the Act remains as in proposition one.}

[14] Thirdly, however, some offences on account of their nature cannot be attempted. Fogarty J recognised this in R v L. He used the example of manslaughter. By definition manslaughter covers unintended deaths. The fact of a death caused by the defendant in culpable (blameworthy) circumstances must be established, but not an intent to cause death. And, because attempts are defined by reference to “an intent to commit [the full] offence”, there is no such offence as attempted

_{manslaughter, at least in New Zealand.}

[15] The fourth proposition concerns intent – whether the intent required is of such a nature that a person can attempt to commit the offence. The elements of infanticide are spelt out in s 178(1). The defendant must cause the death of her child, in a manner that amounts to culpable homicide and it must be shown her mind was disturbed by reason of childbirth or lactation such that she should not be held fully responsible. The required intent is identified in the highlighted worlds. For a death to amount to culpable homicide the defendant must have acted with a murderous intent as defined in s 167(a) to (d), or must have caused the death by an unlawful act or by omitting to perform a legal duty as defined in s 160(2)(a) and (b). In the former situation the killing would be murder, and in the latter manslaughter, but for the fact of the defendant’s disturbed mind. This illustrates that infanticide is a third form of culpable homicide, being either murder or manslaughter, but for the defendant’s diminished responsibility.

[16] But, it also reveals a possible flaw in the process of reasoning. Proposition three involves recognition that some offences cannot be attempted – manslaughter being a prime example. Yet, at this point in the reasoning process one must confront the reality that s 178 creates the partial defence of infanticide in the very context of murder and manslaughter.

[17] This is not a happy reality for adherents to the attempted infanticide approach. Professor Dawkins in an article supportive of R v L broached the problem in this manner: ⁹

In reality, attempted infanticide is most likely to be limited to intended acts, and perhaps omissions, that would have amounted to manslaughter under s

160(2)(a) or (b) of the Crimes Act, had death occurred, and to acts that

would otherwise have been murder under s 167(a) or (b) of the Crimes Act. (emphasis added)

Without more, the authors then moved to an analysis of relevant cases decided in

New Zealand and elsewhere.

[18] To my mind it is unlikely that Parliament had the concept of attempted infanticide in mind in enacting s 178, when culpable homicide includes manslaughter which by definition cannot be attempted. On the other hand, there is no such problem with murder. Attempted murder is a well-recognised offence.

[19] Perhaps, however, it is more realistic to acknowledge that Parliament probably had no discernible intention concerning the concept of attempted infanticide when the new section was introduced in 1961. What is clearly discernible is the purpose of the section; to ameliorate the harshness of a murder or manslaughter verdict when there is evidence that the defendant mother’s mind was disturbed by the effects of childbirth. With this in mind, I consider it is appropriate to grant the amendment application and substitute attempted infanticide for the previous charge of attempted murder. To do so is in keeping with the purpose, or objective, of the enactment of s 178. The circumstance that there is no offence of attempted manslaughter, and therefore no scope to substitute attempted infanticide in relation to the second form of culpable homicide does not, I think, render the present amendment inappropriate.

Result

[20] For these reasons I grant the amendment application and amend the charge to one of attempted infanticide pursuant to s 133(1) of the Criminal Procedure Act

⁹ Kevin Dawkins and Margaret Briggs “Criminal Law” [2010] 4 New Zealand Law Revue 761 at 765-

766.

2011. The verdict of not guilty on account of insanity applies to the charge as amended.

Solicitors:

Preston Russell Law, Invercargill

T Fournier, Barrister, Christchurch