R v Gavin [2015] NZHC 2806 (12 November 2015)

Last Updated: 7 August 2017

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT JC PURSUANT TO SECTION 200 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-000035 [2015] NZHC 2806

THE QUEEN

v

DANIEL GAVIN SAMUEL HAWKINS JC

Hearing:	21 October 2015
Counsel:	J M Marinovich for Crown K R Pascoe for Mr Gavin S W Hughes QC for Mr Hawkins P J Mooney for Mr C
Judgment:	12 November 2015

RESERVED JUDGMENT OF DOBSON J (Section 147 application; continued name suppression)

R v GAVIN [2015] NZHC 2806 [12 November 2015]

[1] The defendants are charged with manslaughter. This judgment deals with two pre-trial applications.

[2] The first was an application under s 147 of the Criminal Procedure Act 2011 for discharge of the defendants on the basis that a properly instructed jury could not find the defendants guilty of manslaughter on the evidence that it is proposed will be adduced.

[3] The second is an application on behalf of the defendant, Mr C, for continuation of interim name suppression that has applied to him, up until now.

Factual background

[4] The factual circumstances in which the offending is alleged to have occurred are within a relatively narrow compass and, at least at this stage, counsel are agreed that there is likely to be relatively little dispute as to what occurred.

[5] On a dark night in August 2014, on which heavy rain and winds were likely to have reduced visibility, the Crown alleges that the three defendants interfered with four large road-works barriers. The barriers were partially on, or adjacent to, the main highway through Normanby that links New Plymouth with Hawera.

[6] Between 10.30 pm and 11 pm on that night, two of the defendants (Messrs Hawkins and C) got out of the vehicle in which they were travelling and moved the barriers so as to block both northbound and southbound lanes of the highway. The driver, Mr Gavin, remained in the vehicle. Having done that, the defendants left the scene.

[7] Shortly after that, whilst driving home, the victim hit the barriers that had been placed in the southbound lane of the highway. She stopped, activated the hazard lights in her vehicle and got out to move the barriers off the road. Before she had finished, another driver stopped to help. Tragically, whilst the victim was moving one of the barriers, she was struck by another vehicle travelling north on the highway. She died shortly thereafter.

[8] The three defendants have been jointly charged with manslaughter. The charge is brought pursuant to ss 171, 160(2)(a), 177 and 66(1) of the Crimes Act

1961. The charge is that the defendants caused the death of the victim by an unlawful act, namely endangering transport, and thereby committed manslaughter.

[9] The Crown’s case relies on the definition of “endangering transport” in s 270 of the Crimes Act. That provision contains the following definition:

270 Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding

14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,—

(a) interferes with any transport facility; or

(b) does anything to any transport facility that is likely to cause danger to persons or property.

(2) For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.

The test under s 147

[10] Section 147 of the Criminal Procedure Act is the successor to s 347 of the Crimes Act and the approach adopted under the former section is appropriately applied to the present application. The authorities contemplate that a relatively high threshold has to be made out before a discharge can be justified. As the Court of Appeal has observed:¹

• if the evidence is sufficient in law, if accepted, to prove the case, the judge should leave the case to the jury and not withdraw on evidentiary grounds;

• the constitutional divide between trial judge (law) and jury (fact)

mandates that trial judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not

¹ Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10], [14].

reasonably convict, or any such conviction would not be supported by evidence.

[11] In essence, unless I am satisfied it will be unsafe to leave the issue to the jury, and assuming there is a reasonable basis on which a properly directed jury could find that the elements of the charge are made out, the determination of the charge is to be left to the jury.

Grounds for the application

[12] Mr Mooney, for Mr C, advanced the argument in support of the application. Counsel for the other defendants supported the argument on the grounds raised, but did not advance any additional submissions.

[13] Two grounds for the application were advanced.

Definition of “transport facility”

[14] The first ground can be dealt with quite shortly. Mr Mooney’s analysis was that the charge must have been framed on the basis that the victim’s car was the “transport facility” that the defendants were alleged to have interfered with. Given the absence of any evidence that there was any physical contact between the defendants and the victim’s car (it being common ground that they had left the scene before the victim arrived), Mr Mooney argued that the Crown would be unable to make out that there had been any interference with a relevant “transport facility”.

[15] Mr Marinovich indicated that the Crown case would be that the road onto which the defendants moved the barriers constituted a “transport facility” for the purposes of s 270 of the Crimes Act. He argued that it comes within “... any property used in connection with the transport of persons or goods;”.

[16] I am satisfied that both on the natural and ordinary meaning of this component of the definition, and when applying a purposive approach to the crime of endangering transport created by s 270, a public road such as the highway on

which the defendants are alleged to have left obstructions comes within the scope of

“transport facility” for the purposes of that section.

No sufficient causal nexus

[17] The second ground for the application, being the one pressed most strongly by Mr Mooney, was that there was a sufficient break in the causative chain of events between the defendants placing the barriers across the roadway and the victim being struck by another car and killed, that the defendants’ conduct could not satisfy the jury that their conduct was an operating and substantial cause of death.²

[18] The approach to such applications relying on an alleged lack of causal connection was summarised by Randerson J in Vaughan v R, where the application was brought under the predecessor of s 147:³

...While causation is a question of fact for the jury (R v Storey [193l] NZLR

417), it is nevertheless susceptible to an application under s 347 in proper cases. The general principle is that the conduct of the accused must be an

operating and substantial cause of death: R v Myatt [1991] 1 NZLR 674,

682-683 and R v McKinnon [1980] NZCA 22; [1980] 2 NZLR 31, 37. A contributing cause may be a substantial cause even though it is not the main cause. However, it

must be something more than a minimal or insignificant cause: R v Cheshire

[1991] 1 WLR 844. Contributory negligence by the victim is not a defence:

R v Storey (supra at pp 444 and 447).

[19] In Vaughan, the defendant was the director of a company which had designed, manufactured and installed a lift in what turned out to be a negligent way. The deceased was an electrician who had been asked to undertake repair work on the lift. He was instructed to place a secure rack under the lift to avoid it falling whilst he was under it, and not to get under the lift without the rack in place. However, the deceased removed the rack, the lift fell whilst he was under it and he was crushed to death. It was argued for the defendant that there had been an intervening act by the deceased which meant that causation could not be established. Randerson J dismissed the application for discharge, concluding that a jury could properly find

_{the defendant guilty on the evidence.}

² _{R v Myatt [1991] 1 NZLR 674 (CA).}

³ Vaughan v R HC Auckland T121/98, 10 August 1998 at 6.

[20] Here, Mr Mooney argued that the cause of death was the manner in which the vehicle that struck the victim was being driven that caused its driver to be unable to avoid her. That driver subsequently pleaded guilty to careless use of a motor vehicle causing death. That recognition of a want of care on his part was arguably too remote from the defendants’ conduct in placing the barriers on the road for a jury to find their conduct to be an operating and substantial cause of death. Put another way, the presence on the road of a careless driver when the victim was removing the barriers was an intervening act that broke the chain of causation between the defendants putting the barriers on the road, and the victim being killed in the course of removing them.

[21] A case with certain factual similarities is R v Fleeting.⁴ In that case, the defendant had pushed the deceased in the course of an argument whilst the deceased was waiting in line for a taxi. The deceased fell onto the road and shortly after was run over by a passing car, the driver of which was drunk. The Judge dismissed an application for discharge, on the basis that it was for the jury to decide whether the defendant’s act had sufficiently expired before the deceased was run over by the drunk driver.

[22] I have come to the same view here. A sufficient causative link is quintessentially a jury question, depending on the view that a properly directed jury comes to on all the evidence before it. On the summary of the factual position assumed by both prosecution and defence for the present argument, there are reasonable prospects for the jury to find either way. Determining causation on the facts in this case should certainly be left to a jury. Accordingly, the application for discharge under s 147 is dismissed.

Continued name suppression

[23] Mr C was granted interim name suppression on 3 July 2015, on the basis that his entitlement to it would need to be reviewed at the next call. At the time of the alleged offending, and during the first Police interviews, Mr C was still 16 years old. He was 17 at the time he was charged, and had turned 18 shortly before the hearing

before me. Mr Mooney cites an earlier suicide attempt and an indication of lack of maturity, plus the fact that he is not living at home and therefore lacks the support of constant contact with his immediate family. Thomas J granted interim name suppression because of his age, which meant that normally he would have appeared in the Youth Court where automatic name suppression would have applied. Thomas J cited the United Nations Convention on the Rights of the Child 1989, to which New Zealand is a party, and which defines a child as being any person under the age of 18.

[24] If name suppression is to be continued, I need to be satisfied that publication of his name is likely to cause extreme hardship to Mr C, or any person connected with him.⁵

[25] Mr C, his mother and his girlfriend, with whom he shares a flat in Hawera, all completed affidavits in support of the application for continued name suppression. The impression from those affidavits is that the “suicide attempt” amounted to talk of suicide in a period when Mr C was very depressed. There is no evidence suggesting he took any physical steps to endanger his own life. All three affidavits acknowledge that he is dealing better with his own mental outlook than he was, and he has obtained temporary employment. All three affidavits refer to anxiety and pressure in dealing with this charge against him, and in particular in preparing for any court appearances.

[26] The Crown opposed continued name suppression because the presumption of openness in reporting is not relevantly outweighed by evidence that makes out the likelihood of extreme hardship. If Mr C were an adult, there would be no prospect of the evidence making out the likelihood of extreme hardship. However, I agree with Thomas J that the assessment must take account of his youth, and the materially greater pressure that publicity of the charge would create for him. I accept it would be likely to impact on his mental health and, equally importantly, create a real risk that he will be unable to provide full instructions to counsel and cope with the course of the trial on this serious charge.

[27] I am satisfied that, until the trial is over, these influences of his relative youth and fragile mental health are likely to cause extreme hardship if name suppression is lifted. I accordingly order that name suppression is to continue until the conclusion of the trial, at which time it is to be reviewed.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth

Nicholsons, New Plymouth for Mr Gavin

Mooney & Webb, New Plymouth for Mr C

Counsel:

S W Hughes QC for Mr Hawkins