Omissions Flashcards
Lecture notes:
Omissions.
Black letter law → Fundamental rules of the law.
Starting off with general principles.
What we will look at in this topic:
•Introduction and overview of omissions
•Why we are reluctant to criminalise omissions – the rationale behind this area of the law
•A brief introduction to family violence (to assist you in understanding the failure to protect cases)
•The duties – duties based on relationship
•The duties – duties based on dangerous activities, things or a relationship with the harm
•Breaching the duties – standards of care
•Common crimes which can be based on omission
First Overview of how omissions work
Then the rationale behind the law. → helps to understand the law if you know the reasoning behind it.
Then a brief introduction to family violence → many cases involving vulnerable adults or children take place in the context of family violence. For example → failure to protect cases.
Then duties. → First duties as to particular relationship with someone.
Then duties based on the fact you are engaged in dangerous activity or when you have a particular relationship with the harm.
Then what standard is required to breach the duties → Can’t just have a duty you have to breach it.
Standard required to have a duty breached.
Then some crimes which typically are based on omissions. → range of them.
Introduction and overview:
Big picture view:
Intro and overview.
Crimes are generally based on actions:
•Usually before a person can be liable for a crime they must have performed an action in a way that satisfies the actus reus for an offence (with the proscribed state of mind).
•Omissions - that is, failures to act - are an exception to this.
Generally crimes are based on actions → things that people have done.
The action has to fit within the actus reus for a particular offence.
Can’t be criminally liable for things you haven’t done.
Generally actions you have taken and are not when you do nothing.
Criminal liability based on holding liable for actions taken not when doing nothing..
When speaking about omissions it is an exception to this general rule → hold liable for not doing anything.
The general principle:
We only criminalise failures to act when —>
There is a legal duty to act (or act in a certain way)
The person does not act (or act in the specified way)
The failure to act forms part of a crime
—>
One cannot be criminally responsible for doing nothing unless one has a specific legal duty to do something
—>
See R v Chilton (2005) 22 CRNZ 686 the “fundamental principle” is “that an omission cannot be operative at law unless there is a corresponding duty to act” (page 699)
To hold someone liable for doing nothing → have to find they have an obligation to do something that they breached.
Have to find → legal obligation to act and they didn’t act. —> and failure to do this satisfies an actus reus for a crime.
Case of Chilton → Court said the fundamental principle is that an omission cannot be operative at law unless there is a corresponding duty to act.
Only way you can hold people accountable is if they had a legal obligation to do something for omissions. Because of general rule that you criminalise people only for doing things/actions.
General sorts of duties at criminal law:
Duties arising out of a specific relationship to the victim: ss 151-152, Crimes Act 1961
Duties imposed on people assuming particular responsibilities for dangerous things or activities: ss 155-157, Crimes Act 1961
Duties imposed on people having a particular relationship with the harm: Common law ( R v Lunt [2004] 1 NZLR 498)
Generally three sorts of duties that are imposed in the criminal law → the ones that the cases are based on.
First → duties that arise arise out of having some kind of relationship with the victim → Special relationship which gave you an obligation to do something.
The two that exist in the Crimes Act are:
One: when you are a parent of a child → as a parent you have obligations towards a child when they are below a certain age, and you have obligations because the child is helpless and dependant on you.
And: When you are talking about a vulnerable adult who cant look after themselves and you have assumed some caregiving relationship with them → can give rise to obligations.
Also in the Crimes Act → you can also have an obligation to act when you undertake certain sorts of dangerous activities which could cause danger to someone else’s life.
Those duties set out in S155 to 157 of the Crimes Act.
And also common law duties → Section 9 of the Crimes Act says you cant be convicted of a common law crime.
So before you convict, find a legislative offence in an NZ act → But Lunt said that duties are not crimes.
Duties are not crimes → so they still survive in common law.
So can still find common law duties. → might not find duties in crimes act buy may find duty in the case law.
Section 9 of the Crimes Act does not apply to duties.
Duty → just beginning of establishing that failure to do something registered legally.
Then have to go on and prove a crime.
Where do duties to act come from?
•Contract
•Voluntary agreement
•Law
•Legislation
•Case law
They come from → mostly come from the Crimes Act.
Some come from the common law. → Some are common law based.
Some duties arise automatically → for example if you have a child, you are automatically by law given those obligations to your child, just by virtue of having this relationship, by virtue of being a parent.
Some arise by contract or voluntary agreement.
Vulnerable adults → Don’t automatically have a duty to your parent just because they are vulnerable, you have to assume an obligation to care for that person, even if its your parent, before the duty arises.
Some duties are based on you undertaking a certain relationship or obligation.
How do we justify imposing these duties to act?
The duties in NZ arise because:
•The person has entered the relationship or undertaken the activity and therefore is put on notice of their responsibility.
•There is a risk to someone else.
•
Rationale for not holding people accountable for doing nothing generally. → But exceptions to that rule and justification for duties is:
There is a serious risk to someone else,
And the person → The defendant has entered a certain sort of relationship or undertaken a certain activity and is therefore put on notice that they have obligations and that there is a risk to someone else.
Not just wandering around in the world and then a random obligation to do something. They are put on notice.
There is no general duty to be a good samaritan for example.
Important!
•For criminal liability it is never enough to prove an omission. The omission must also form part of the actus reus for a crime in which all of the other actus reus and mens rea elements have also been met on the facts.
•Must be a duty
•Must be a breach of the duty
•That breach must form part of the actus reus for a crime
•All of the other elements of the crime must be satisfied
An important thing to notice →
Not enough for criminal liability just to prove that there is a duty to act and that there is a breach of that duty.
After that breach of duty is found → once you have proven that they have breached an obligation so their failure to do something registers. → Must then go on to prove that that omission satisfied the actus reus components for a crime that the other actus reus components for that crime were satisfied and the offender had the relevant mens rea.
Have to have duty, breach of duty, breach forms part of actus reus, and all other elements of crime were satisfied.
Just because failure to act → Does not make them criminally liable automatically → But there are always exceptions.
Exceptions…
•There are some crimes that both create a duty to act and a crime in one:
•Eg failure to take a breath test
•Eg s 195A
There are exceptions to this.
A Few crimes which both create a duty to act and criminalise it in one piece of legislation.
For example failure to take a breath test.
That offence failure, also creates an obligation if requested to provide a breath test to cooperate.
Section 195A → Another example of creating an obligation to act, and criminalises a failure to act in one piece of legislation.
But generally sections 151 to 157 → create duties with no offence attached to them and you then once proven breach of duty must fit it into legal offence.
Section 145, Criminal Nuisance:
(1) 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 or she knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.
(2) Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding 1 year.
Example of an offence where → it is quite clear from the terms of the offence that an omission is criminalised.
Section 145 Criminal Nuisance → Creates a minor offence (max penalty of 1 year).
And subsection 1 creates the offence → everyone commits criminal nuisance who does any unlawful act → or omits to discharge any legal duties.
An act or omission that he or she knew would endanger the lives safety or health of the public, or of any individual. → Breach a duty knowing you are running a risk to lives safety or health, public or individual. (subsection 1).
Clear omission can be a criminal nuisance.
Unlawful act → something that is prohibited by law
Section 2 defines “assault”:
•assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning
Some offences may not be able to be committed by omission.
Argument about whether assault can be commited by omission.
Assault → physical contact without consent, or threatening to make conatact without consent, knowing you dont have consent.
Assault defined in s2 of Crimes Act → Assault means the act of intentionally applying to attempting to apply force to the person directly or indirectly, or threatening by act or gesture to apply such force.
If person making threat has or causes the other to believe on reasonable grounds that he has present ability to effect his or her purpose.
Argument as to whether can commit assault by an omission → for example legal duty to stop something contacting someones body without permission, could it be an assault?
Some say no → legislation clearly requires an act, clear you cannot have by an omission.
Others have argued → interpret legislation in the context, in some legislative context act could mean act or omission.
But we dont know what the answer is to this question.
Duties are inculpatory not exculpatory:
Section 150A, sections 155-157
R v Falls Unreported Supreme Court of Queensland, 3 June 2010
Another important thing to note.
Duties are inculpatory not exculpatory.
Inculpatory → Can use a duty to make someone liable but can’t use a duty as an defence to argue that even though they have committed offence they are not liable.
Can bring someone into the criminal law it cant take someone out of the criminal law.
Inculpatory → bring them in..
Exculpatory → Act as a defence to take them out (duties to act cannot do this).
This point was made in the Queensland case of Falls (Aus)
In this case the defendant had killed her violent partner. She ground sleeping pills into his curried prawns.
Knew kids don’t like curried prawns so he would be the only one eating the meal.
Man passed out then shot him point blank in the head.
She then disposed of his body and pretended he had gone missing
You would think she would be convicted of homicide.
But she was completely acquitted on the basis of self defence.
At the time he was threatening her → long history of horrific violence by him.
But man also threatening to kill one of their kids and that was the trigerring point for her.
Was psychologically torturing her by taking her to gravesites and made her pull names out of hat of children, and youngest son come out of the hat. And said he would kill him on her mothers birthday to ruin mothers and her life.
So her Counsel tried to argue that because she had a duty to her child that could be a defence to the charge of homicide of her partner.
Because he was threatening her child. She had an obligation/duty to protect her child from injury.
So therefore the duty could be argued as the defence.
Justice Applegarth said No → duty to protect child was inculpatory if she breached it she could come into the criminal law. But NOT an independent defence.
But she went on and successfully argued in front of the jury the defence of self defence.
Unusual because victims in these circumstances are not generally successful with self defence.
But can also see when you look at the wording of the offences which create the duties → that the provisions are inculpatory.
For example section 150A → which applies to all legal duties set out in sections 151 to 157 of the Crimes Act.
Sets out the standard of care the person must fail before they can be held criminally responsible for omitting to discharge or perform a duty → making it clear that the duties are about making people criminally responsible not providing defences from criminal responsibility.
And also references in section 155 to 157 to a person being criminally responsible for the consequences of breaching a duty.
No language of justification or excuse → suggesting that they don’t create defences.
The rationale underlying omissions liability:
•Are people who do nothing to prevent harm, less culpable than people who do actions that cause harm? (Non-savers versus killers)
Now the rationale which underpins this area of law.
Why don’t we hold people liable for doing nothing?
Why do we insist that they have to do something to make them criminal → with the exceptions above of course.
Some people think there is a moral difference between doing something that harms someone and not doing something → just failing to stop someone being harmed.
For example → There is a perception that people who do nothing to save a child from drowning, and they do nothing → Some people suggest that this is not the same thing as deliberately drowning the child.
Non savers vs killers.
Stephen, history of criminal law in England:
•“A number of people who stand around a shallow pond in which a child is drowning and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.”
Notion that there is a fundamental moral distinction between someone who causes something to happen and someone who just stands by passively and observes it without stopping it.
Famous Quote from Stephen → a number of people who stand and let the child drown in a pond without taking the trouble to ascertain the depth of the pond are no doubt shameful cowards but can be hardly said to have killed the child.
Underpinning the perception is this idea that has segued into a different era of time.
Nowadays we think if someone has done something wrong there should be a criminal offence.
But when Stephen was writing there was a sense that we reserve the criminal law for our most serious social harms. Did not reserve them for lesser social harms.
Was our really serious accountability measure.
Many harms that we don’t criminalise, infidelity, lying in certain situations, selling people cigarettes, alcohol.
Lots of harms are allowed. → lots of things morally wrong but we won’t criminalise them.
There was an era which we thought things morally wrong but wont criminalise them. → this thinking informs them.
Moral distinctions. Would morally condemn you if stand around pond watching child drown → But are you criminally accountable for what happened?
You have no obligation, assuming that the child is not yours, if child is yours you have obligation.
Moral difference between doing nothing, and being the cause of the harm.
Second justification for making distinction between doing something and doing nothing is below.
Criminalising doing nothing:
•Constrains individual autonomy and freedom
•Is intrusive
•Potentially very broad scope
•Criminalising an omission is ordering someone to act on pain of onerous criminal consequences.
•At any one moment I am not doing 100,000 things but probably only doing one or two things.
•Libertarian notions of the social contract: give up your right to predate on other people but still sovereign in your own private sphere.
Justification for making distinctions.
The idea that if we start criminalising omissions we are making inroads into peoples autonomy as human beings. → That we all have individual choice and autonomy, and criminalising doing nothing is incredibly intrusive on that.
Makes the scope of criminal liability exceptionally wide in a way that criminalising actions does not.
Because of the inherent difference between doing something versus doing nothing.
When actions are criminalised → everyone is put on notice that you are not allowed to do those actions, you can do everything else in the world just not those actions.
So have a huge realm of things you can still do → freedom.
Entitled to act in any other manner, so that narrows peoples options down only in a very general and residual manner → leaving them with a huge amount of freedom.
BY contrast when criminalising omissions → a person is obligated to act in a particular way
Must do that action on pain of criminal consequences → and that may reduce a persons options to one, a requirement to perform a certain act now.
So far more intrusive on a persons autonomy and freedom.
Furthermore, at any point in time a person is not doing thousands of things, but only one thing they are doing. Doing this now → 1 million other things i’m not doing.
So scope for expanding criminal liability with all its punitive consequences is far broader once omissions start to be criminalised.
Concepts of autonomy and individual freedom → Core rights, principles, and values in a libertarian democracy → So we try and protect them.
For example outrage about compulsory vaccinations → reflection of how much we value individual choices and freedoms, and how much we resent giving that up for the well-being of other people.
Brookebanks → draw on both these reasons, limited causal responsibility for the wrong, and enhanced intrusion into personal autonomy.
When they say wholesale liability for omissions would force us to constantly interrupt our own actions and plans in order to prevent outcomes that are brought about by others.
To become in effect our brothers keepers.
They argue → if we criminalise omissions we are really not recognising the fact that people are entitled to act in their own self interest → not obliged to act in the interests of others.
Core part of this idea of autonomy and freedom which is so important.
Some argue that society is based on an implicit social contract, not something we overtly negotiate but a famous justification for society → we become part of society and give up certain freedoms in exchange for being provided a space of safety and autonomy from being intruded upon by others.
Give up the right to predate on others, but in return we are provided protection from people predating on our self interests.
But it is a vision of freedom → im obliged not to do certain things that hurt other people, but in exchange I have my sovereign little space where i can be whoever i want no body can intrude on it, and i can be as selfish as i want.
As long as im not doing the actions that hurt other people → I am still my sovereign individual.
Andrew Ashworth:
•“whereas the criminalisation of wrongful acts narrows people’s options only in a general and residual manner, leaving a large area of freedom of action, the criminalisation of omissions may reduce a person’s options to one – a requirement to perform a certain action now – and is thus far more intrusive upon individual autonomy and freedom than is the prohibition of acts’”.
Andrew Ashworth → criminalising wrongful acts narrows peoples options only in general, omissions reduce a persons options to one, and thus more intrusive on individual autonomy and freedom than is the prohibition of acts.
BUT….. Below
But…..
•Most duties are conditional and of temporary duration (in contrast to prohibitions on positive actions which always apply).
Provide some caution around the above idea.
Most duties are very conditional, and are of temporary duration.
In contrast prohibitions on positive actions always apply.
So saying distinction isnt as sharp as we think.
For example obligation to child if parent are only obligations to act while i have relationship with dependent child and only to avoid harm to that child → can do anything else i want.
As soon as child is grown up there are no further obligations.
So not like this is a truly onerous intrusion on my freedom.
On the other hand, i have an obligation not to assault anybody forever.
Ashworth:
•The “case for omissions liability is strong where life or another fundamental interest is at stake; where someone has the opportunity and capacity to protect those interests; where protecting those interests is urgent; and where taking action will not sacrifice more important interests.”
So he is saying that the intrusion is potentially not as much as an intrusion as people make out.
Even if it is an intrusion, there may be counter reasons for nonetheless criminalising failures to act even if they are intrusions on a person’s personal freedom.
Argues that the case for omissions liability is particularly strong where life or another fundamental interest is at stake.
Where someone has the opportunity or capacity to protect those interests.
Where protecting those interests is urgent.
And where taking actions will not sacrifice more important interests.
Even if criminalising omissions is an intrusion there may be good reasons for intruding on personal autonomy → for example to protect other peoples lives for example.
For example also → Went into decision to force people to do vaccinations → We have obligations to do something sometImes to preserve other peoples lives, what we do has an impact on other maybe more significant interests.
The line between actions and failures to act → when you read all this rationale you think it’s quite rigid.
In actuality when you look at the duties the lines between what are actions and what are failures to act get more blurry in real life.
Some things can be both unlawful acts and failures to act.
There’s an overlap → particularly when you look at the duties that are set out in sections 155 to 157 → duties around dangerous activities.
You have an obligation if you do a dangerous activity. Example might be driving a car → a dangerous thing.
When driving, have an obligation to take reasonable steps to drive in such a way that doesn’t threaten other people’s lives.
That is also potentially negligent driving → which is an act.
So some of the duties are really not obligations to do something where you are doing nothing. Obligations where you have already taken an action, just obligations to take that action in a careful manner.
So those could be characterised as failing to be careful or acting carelessly.
So the line between the two is a little bit blurry in respect of different kinds of duties.
A duty of easy rescue?
Some people think its a bit disgusting that the duties are so narrow. → they think we should expand them and have a more caring society.
Where you do have obligations to act for other people.
Debate around this.
We don’t have a duty that you are obliged to rescue someone just because you easily could.
Most people on the other hand if they can easily rescue another they instinctively will.
People can be incredibly heroic acting in the interests of perfect strangers who are in danger.
The concern about expanding the duty to wide → criminalising people if they dont act in this heroic way is how far these obligations may go.
For example people who live comfortable lives, we have more money than we need for necessities, would we be obliged to give money away to those who don’t have enough to live on.
IF you expanded the obligation to rescue other people, it may extend into other areas that it currently doesn’t.
So don’t have a duty to be a good samaritan at this point → can be as selfish as you want with your money for example.
And if you don’t have a particular relationship with somebody that you see drowning you can stand by and watch them drown even if you are a perfectly good swimmer and you can rescue them.
As long as you don’t have a special relationship with them that obliges you to act.
Northern territory criminal code:
155 Failure to rescue, provide help, &c.
•Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of an offence and is liable to imprisonment for 7 years.
There are some jurisdictions that do have duties of easy rescue → Northern territory.
Contained in section 155 of the northern Territory Criminal Code. → provides that any person who been able to provide rescue, resuscitation medical treatment, first aid or secure…..
If you find someone who you could easily be rescued and life is in danger and you dont in northern territory they have criminalised a failure to do that.
In NZ we have NOT.
Specific duties in the Crimes Act:
Correct and up to date way of correcting partner violence. ⇒ Some specific duties in the crimes act.
General Obligations to the act: The Crimes Act 1961:
Duties arising out of a specific relationship to the victim.
Duties imposed on people assuming particular responsibilities for dangerous things or activities.
Duties imposed on people having a particular relationship with the harm (common law?).
Three kinds of duties.
Duties arising out of a specific relationship with the victim.
Duties imposed on people assuming particular responsibilities for dangerous things.
And common law duties → imposed on people having a particular relationship with the harm.
We are going to start with the first type of duty → Arising out of a special relationship with the victim Below…
Duties based on a special relationship:
A Special relationship with the victim:
•If you take charge of a vulnerable adult you are under a duty to provide them with the necessaries of life (s 151). You are also under a duty to “take reasonable steps” to protect them “from injury.”
•If you are the parent or guardian of a child you have an obligation to provide them with the necessaries of life (s 152). You are also under a duty to “take reasonable steps” to protect them “from injury.”
There are two of these.
The first can be found in section 151 → if you take charge of a vulnerable adult, you are under a duty to provide them with necessaries of life, and also take reasonable steps to protect them from injury. → This is the first duty under section 151.
The second duty is in 152 → If you are the parent or guardian of a child you have an obligation to provide them with necessaries of life, and also under a duty to take reasonable steps to protect them from injury.
These two both follow a similar structure.
Both (special relationship duties) follow a similar structure:
(1) Establish the relevant relationship;
(2) This triggers duties to (a) “provide necessaries” and (b) take “reasonable steps” to protect “from injury”.
These duties both follow a similar structure.
First have to establish the relevant relationship.
Then that triggers two duties → 1. to provide necessities, and 2. to take reasonable steps to protect from injury.
Caregiver/vulnerable adult:
“151(1) Everyone who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty –
(a)To provide that person with necessaries; and
(b)To take reasonable steps to protect that person from injury.”
And you can look in section 151 → This is the wording of the section.
Parent/child relationship:
Section 152: “Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
•(a) to provide that child with necessaries; and
•“(b) to take reasonable steps to protect that child from injury.”
And 152 → section that creates the parent/child relationship duty.
Talks about everyone being a parent or person in place of a parent who has the actual care or charge of a child under the age of 18 years.
And that is enough to trigger this duty.
Vulnerable adult: defined in S 2:
Means a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.
Start firstly with section 151.
We have to look at the definition of who a vulnerable adult is.
That is contained in section 2 of the Crimes Act → And it means a person unable by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself of herself from the care or charge of another person.
So if we combine these two things.
Section 151: Duty arises when:
•A person has actual care or charge of a person
•That person is unable to provide themselves with necessaries
•That person is unable to withdraw themselves from the care or charge of another person
When a person (triggered when) a person has actual care or charge -
That person is unable to provide themselves with necessaries ⇒ cant provide themselves with the neccessarties of life,
Cannot withdraw themselves from the care or charge of another person, (unable to withdraw themselves). ⇒ Definition includes, unwell, old, mental impairment, and physical, detained, definition is open ended.
So if we combine the those two things 151 and that definition of vulnerable adult in section 2:
We can see the duty in 151 arises or is triggered, when a person:
Has actual care or charge of a person → first thing you have to prove.
Secondly → That person is unable to provide themselves with necessaries, → cant provide themselves with the necessaries of life.
And they cannot withdraw themselves from the care and charge of that other person. So stuck in care or charge and cant look after themselves → Third thing.
The Definition of vulnerable adult includes those who are dependant on others because they are unwell → because of mental or physical impairment, old, incarcerated or other form of detention.
BUT → The definition is open ended.
For example in R v Khan
R v Khan [2009]:
•Vulnerable because of serious physical injuries
•The court did not rule out qualification on the basis of being young, isolated in a foreign country, without language skills and dependent
•State of vulnerability does not need to be longstanding or permanent
In the English case of R v Khan →
The victim was a 19 year old foreign national who was subject to serious violence from her partner in England.
Was in England because of an arranged marriage, and spoke no english, had no friends and had virtually never left the house.
The Court held that she was a vulnerable adult once she had been attacked by her husband and had serious physical injury.
WAs so bad that she couldn’t move or walk without being in pain —> fat had degloved from her bones.
Badly assaulted → So at that point the Court said she was a vulnerable adult.
Too much physical pain to help herself.
But the Court did not rule out the fact that she might have been a vulnerable adult for all the other reasons as well.
That she was young, totally isolated, she didn’t know anyone, in a foreign country, she didn’t speak the language, and she was completely dependent on the person abusing her.
Court made the point → that you can be a vulnerable adult even if your condition of vulnerability is only temporary even if you are going to completely recover.
So your condition of vulnerability → does not need to be long standing or permanent according to Khan → That is not a legal requirement.
The second thing which must be established is that the person has the care or charge of the vulnerable adult.
And that phrase → Care or charge is not defined in the Crimes Act.
But it is clear from the case law that charge is equated with control.
In the case of the R v Proude below.
R v Proude:
•“’Charge’ is a broad concept. It depends on the fact of control not how that fact came to be. It can be relevant that it arises by contract or by law, and that the one said to be in charge is in receipt of the social welfare benefit of the helpless person, but these are not essential.”
In the Case of R v Proude → court said that charge is a broad concept.
Depends on the fact of control, not how that control came to be.
Went on to say that it can be relevant that it arises by contract or by law. And that the one said to be in charge is in receipt of the social welfare benefit of the helpless person but these are not essential.
Unlike the parent/child relationship which is triggered as soon as you have a child, this isn’t.
Have to demonstrate that you have assumed the care or charge, assumed the control or charge of someone else.
Not automatic just because you have a familial relationship with the vulnerable adult.
Many of the cases in which people are charged do have a family relationship and living together → but that is not necessary.
The duty has been held to arise in cases where people are complete strangers in a one off encounter.
Section 151 → refers to the actual care or charge of the vulnerable adult.
Care is really an inquiry into not whether you have control → but are you taking some practical responsibility for providing the things essential for victims health comfort and functioning.
Charge → do you have control over those things.
Care → are you taking practical responsibility for those things?
Section 151 → refers to actual care or charge → So concerned with not the formal arrangements but the practical realities of what is happening in the person’s life.
So there have been factors which have been significant in the case law.
“Assumed the actual care or charge”:
Significant factors:
-Has the defendant contributed to the victim’s vulnerability?
-Have they taken actions that indicate that they are assuming responsibility for the victim?
-Is the victim isolated from other potential sources of help?
One is whether the defendant has contributed to the victim’s vulnerability. → played role in victim being vulnerable
Another is whether they have taken actions that indicate that they are taking responsibility for the victim.
Have they done certain things which indicate they are assuming the care of the victim?
And whether the victim is isolated from other potential sources of health.
That is relevant as well. → especially in one of cases between strangers → becomes significant.
Proude and Tina Kirie case → involving two people and a vulnerable victim, she was an adult but she had the intellectual health of a child.
And so the couple were both charged.
Vulnerable adult → Had been badly beaten then left on bathroom floor and she slowly died, and they hadn’t gotten her medical assistance.
Evidence that they tried to feed her, but they just let her lay completely incapacitated on the bathroom floor until she died from her injuries.
The woman → who was drawing social welfare benefits → in recognition of the fact that she was the caregiver.
Clearly had the actual care and charge.
Case was litigated around her partner who was also living with her and this vulnerable adult, did he have the actual care or charge?
His lawyers argued that he didn’t → His wife did, he didn’t.
He was held to have the actual care or charge → because living with person who was drawing the social welfare benefits. He had cooked meals for vulnerable person, she called him dad.
There was some evidence of him caring for her.
And he had been involved in stopping her family from having visits with her.
In which case they would have seen what a state she was in.
So he had done something towards isolating her, so it was held yes he did have the actual care or charge.
But this is very much a FACTUAL inquiry.
Living together in an ongoing relationship:
In the older case law the duty is usually found:
•In relation to a blood relative
•Where you are living together in an ongoing relationship
•Where you have done something to assume responsibility
•R v Instan [1893] 1 QB 450
•R v Stone and Dobinson [1977] 1 QB 354
•R v Taylor [2017] NZCA 574
Most of the cases involve people who are related to each other in some way, living together in an ongoing relationship.
Sometimes that relationship of interdependency is enough.
And sometimes you can spell out actions of caring which indicate that the person has assumed responsibility in providing necessaries.
And usually in these cases, the victim is isolated and unable to get help from anyone else.
R v Instan → older case
Where a woman was living with her aunty, who was providing all of the costs of living together, aunty was providing house and all the food.
So had an independent relationship.
Aunty became unwell and became bedridden and slowly died with the niece doing absolutely nothing to reach out and get her help.
That was enough to hold that the niece owed a duty of care to her aunty and had failed to do anything.
So blood relationship and there was a relationship of interdependence there.
R v Stone and Dobinson → Case where couple invited his sister to come and visit him.
The sister was very mentally unwell, anorexia and various other things.
And she became bedridden and just died from starvation.
And it was held that they had chosen to undertake her care.
Him because he had invited her to come live with him.
Wife because she had gone and got medical assistance at one point and had done some things to indicate he was assuming responsibility for her.
The case of Taylor → more recent NZ decision.
Where a daughter was held to have a duty under section 151 for her elderly mother
a duty to provide her elderly mother with the necessaries of life
namely adequate nourishment, hydration, medical care, and hygiene.
And she was living with her mum, and had direct day to day responsibility for her mother.
And at one point she just discontinued looking after her mother
Mother had suffered 14 fractures to her ribs, possibly because of falls, leaving her in severe pain and unable to move.
And she was put to bed, forced to urinate and defecate in her bed and just lie there, and she eventually died of no hydration, and malnutrition.
Sentencing judge commented that → she was elderly immobile, in serious pain, cut off from any external assistance beyond her daughter and her flatmates.
And therefore the daughter had the actual care and charge of her.
R v Hamer (talis):
•R v Hamer (talis): Husband and wife. She took a dangerous dose of his methadone. He was held to have the “charge” of a vulnerable adult. By failing to summon medical care he had failed to provide her with the necessaries.
R v Hamer →
In this case a husband was held to have actual care and charge of his wife.
So they had basically had a fight.
And he was on Methadone.
And she went and ingested a dangerous dosage of his methadone.
And then she became unconscious.
And he didn’t call medical care until sixteen hours later.
Court accepted that he had the actual care or charge of her once she became unconscious in the home.
And of course by failing to get medical care he had failed to provide her with the necessaries.
Not the relationship of husband and wife would have given them that obligation.
But it probably was part, relationship of interdependence, they were living together.
She was isolated from anyone else, she was in the marital home.
And she had ingested his methadone.
To his knowledge.
So that combination of things had given him the actual care and charge of her.
So could suggest the relationship of interdependence, living together, she was isolated in the home, and aspect of him having some relationship with the harm.
Because it was his methadone and he knew that she had ingested a dangerous dose.
One of the things you should note → is that you don’t have to be the only person who is providing care (person with actual care or charge) to be liable.
In many of these cases there were multiple people held liable in Hamer it was only one person (the husband).
In Taylor case → it was the daughter and flatmates who were held to have actual care or charge.
So don’t have to have exclusive care or charge to have actual care or charge.
The case of Kuka → case where Court made it very clear that control can be exercised jointly and the fact that you have joint control does not mean that you are not liable for providing the necessaries.
Victims can still be considered isolated if there are multiple people who have care or charge and none of them do anything.
Extended to a one off encounter with a total stranger in Taktak (1988):
Extended to a one off encounter with a total stranger in Taktak (1988) 14 NSWLR 226
•Voluntarily assumed the care of the victim
•She was helpless and he secluded her so that others could not help her
•
R v Rao [1999] ACTSC 132
One of the things which is interesting is that this duty has been extended beyond these scenarios.
To situations where a person has a one off engagement with a complete stranger and is nonetheless held to have a duty to that stranger.
And is nonetheless held to have a duty to that stranger.
And the leading case in this was.
The Australian Case of TakTak →
Case where a guy sourced sex workers for a party for someone that he knew was holding.
Asked for sex workers for a party, and went and sourced them for someone he knew was holding this party.
Asked can you find sex workers to come to this party?
And so he engaged two women’s services and took them to this event.
And then he received a phone call from the event manager to come and pick up one of the women.
And went to the venue (hotel), and he found this woman in the foyer.
And she was unconscious and moaning.
And the man took her back to the place of his friend, the guy who had engaged him to get these women’s services.
And he put her on a bed.
He was an addict himself, he realised she overdosed and thought she would be ok.
But she wasn’t, she died.
He never called in medical help.
Calling medical help → is a necessary if someone needs it.
Question was did he owe her a duty?
Clearly she was a vulnerable adult, she was unconcious and overdosed.
He was a total stranger. First time he met her was this interaction.
The Court held that because he had voluntarily assumed the care of her, and secluded her from other people so as to prevent them from giving her aid, he had.
Had he just shown up to the foyer seen her and said he didn’t want to be involved. He would not have assumed any duty of care for her.
It was the fact that he took her out of the foyer where someone else could help her so nobody else could help her, then he had complete control over her care.
And that meant he had an obligation to provide her with the necessaries of life.
He assumed actual care or charge voluntarily because of his behaviour.
In R v Rao → A man was in a relationship with a mentally unwell and very romantic partner.
Who was going about telling everyone that she was going to kill him.
And all of his friends got worried about him and his safety.
The woman’s close friend’s assured his friends that he wasn’t really at risk.
That turned out to be incorrect.
She was incredibly mentally unwell, and she , in fact killed him.
Question was → had best friend of girl assumed a duty of care to him by stopping his friends to take action they might have taken to protect him.
The Court said no → Going too far.
They said this would involve the unpalatable consequence that a good samaritan whose well intentioned endeavours were not maintained might be convicted of manslaughter whilst those who passed by on the other side of the road would be absolved of criminal responsibility.
Expressly because they lacked the decency to make any attempt to save the person.
It said that the case of TakTak and the line of cases it extended → implied a duty to someone not merely because they are helpless but because those who have taken into their homes or hospitals have essentially secluded them from others.
The person who walks by on the other side of the road does not make the plight of the injured person any worse.
Someone who takes a person into premises in which the general public is denied access prevents others from helping.
It is only in those circumstances that the position of the good samaritan may be more legally precarious than that of a person who callously passes by.
So in the Rao case what mattered to the Court was that her best friend had not secluded the victim from other people.
They said it would involve a most radical change to the law to hold that one person might assume a duty of care towards another merely by reassuring his or her friends that they need not be concerned by some perceived risk to their safety.
Taking things too far.
Parent/Child Relationship:
Section 152:
“Everyone who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury.”
The other special relationship duty.
Section 152: The duty arises when:
•The accused is a parent or person in place of a parent
•The child is under the age of 18 years
•The child is in his/her actual care or charge
•Whether the child is helpless or not
•
•Court in R v Lunt [2004] 1 NZLR 498 inclined to think that the common law duty to protect extended to someone in loco parentis but did not express a concluded view.
The triggering factors for this are that:
The accused is a parent or person in place of parent.
Child is under the age of 18.
The child is in his/her actual care or charge → Important, not just have a child somewhere, have a child and that child is in your care or charge.
And whether the child is helpless or not.
At some point somebody under 18 cannot be helpless, you still nonetheless have a duty.
One of the questions that arises in relation to this duty is → who is the person in place of a parent?
In section 152 title → it suggests that it must be a person that is a guardian.
It says the duty of parent or guardian to provide necessaries and protect from injury.
And a guardian is a person who is invested with the legal responsibility of a parent formally.
So both parents’ biological parents are generally legal guardians.
And legal guardians have a right to make all the big picture decisions about a child’s life.
The question is whether a person in place of a parent has to be a person who is a formal legal guardian?
So if the child for example does not have parents, you might appoint a guardian to look after them in place of their parent, does that have to be a formal arrangement?
If that is the case the only people with duties to the child would be people who have formal parental roles in relation to that child. And the child’s care or charge
But the Case of Lunt → Lunt seemed to think that the duty to protect (this was the version of the duty that was at the common law before 152 was reformed), they thought the duty extended to people who were in loco parentis.
Loco Parentis → includes people who informally replace the parent at a point in time.
So those people would include people like the kindergarten teacher that you leave your baby in the care of. While you are not around.
They are not the formal guardian of that child but are in loco parentis.
They have assumed parental responsibility on your behalf.
Could be teacher, babysitter → loco parentis.
One unresolved issue as to section 152 —> is whether you have to have a formal guardian relationship.
Lunt → suggests No you don’t have to have a formal guardian relationship.
Lunt → suggests that the kindergarten teacher is stepping into that role or babysitter through loco parentis.
Second lecture on omissions:
What is a person in place of a parent?, actually a patent a person formally put infront of the law, or someone who is loco parentis (formally in place, kindergarten teacher, nanny, babysitter, loco parentis), loco parentis not solved in law, but Lunt said it could not extend to the informal ⇒ CA thought they could be in loco parentis. Lunt decided that necessaries of life was confined to goods and services necessary to sustain life.
What we are discussing in omissions.
When doing nothing simply registers for the criminal law as something.
That doesn’t mean that a person is criminally liable if we can establish an omission but you can then use that omission as a basis for criminal liability.
Providing you can prove the other elements.
Three categories of duty.
Duties you owe because of a special relationship. → vulnerable adult duty owed (151) . And duty that a person or person in place of a parent owes to a child under 18 (152)
And one of the issues in 152 → is what do we mean by a person in place of a parent?
Do we mean a person who is actually a parent or formally put by the law as a legal guardian.
Or someone who is in loco parentis → for example a kindergarten teacher, nanny, babysitter.
Not an issue that has been resolved in the law.
BUT the case of Lunt (CA) obiter → The Court of Appeal expressed the opinion, without deciding that it extends to the informal caregivers of a child.
In that instance → the flatmates who had stepped in to care for the child because she was in a state, and she decided not to care for the child anymore.
And CA in obiter thought she could have been loco parentis.
The nature of the duty triggered:
•R v Lunt: The phrase “necessaries of life” = provision of “goods and services (food, clothing, housing and medical care) necessary to sustain life”. It does not include protection from harm from others.
•A common law duty to take reasonable steps to protect the child from the illegal violence of someone else when that violence is either foreseen or reasonably forseeable. Duty survives s 9.
•Common law duty attracted the need for gross negligence outlined in s150A
•Since Lunt was decided sections 151 and 152 were reformed and there is now a specific duty to “take reasonable steps” to protect “from injury”.
The other thing that Lunt Decided was that.
Necessaries of life → were confined to the provision of goods and services necessary to sustain life. → so food, clothing, housing, medical care.
So necessaries → are goods and services required to sustain life.
Court thought In Lunt that necessaries did not include protection of harm from other people
Court of Appeal → looked at case law in different context, not criminal law.
Went on to hold → that there was a common law duty if child was being targeted the illegal violence of someone else, there was a common law duty to protect that child.
That lay on the parent or person in place of the parent.
When that violence was either foreseen by the caregiver or was reasonably foreseeable.
The Court of Appeal said → the common law duty survives section 9.
Lunt → Can still be liable for a common law duty → dont have to find duty in legislation.
Section 9 → Says cant be convicted of a common law offence.
The Court of Appeal said → Duties are not offences.
Common law DUTIES survive.
And if talking about common law duty → the Court thought you require gross negligence for a breach.
Since Lunt was decided.
The case of R v Q → Mother was breastfeeding child but had consumed methadone, zoplocone, and alcohol.
Is she providing child with necessaries? CA said yes providing breastmilk.
Question in that case was whether protecting child from harm → Which is a separate duty according to Lunt.
Lunt remains useful:
•For the obiter remarks about who might be in loco parentis.
•Because the court was clear that there are additional common law duties not set out in the statute.
Since Lunt was decided.
Sections 151 and 152 have been reformed.
And now specific duty to take reasonable steps to protect the child or the vulnerable adult from injury.
Legislature intervened after Lunt and extended the obligations.
Nonetheless Lunt remins useful.
Obiter remarks still helpful → best we have in terms of determining whether informal guardians can be caregivers for section 152.
And authority that common law DUTIES still survive.
But despite the common law duties surviving, hard to find case where Court relies on common law duty, or prosecuted based on common law duty, havent really been applied in practice.
Possibly because statutory duties are very broad. → applied in most circumstances where needed to prosecute.
Injury:
•“Injury” includes potential harm from any source
•No injury necessary, so long as risk of injury is “likely”: JF v Police
•Does the accused need to be personally aware of the need or risk? (Queen v Kuka; Queen v Filimoehala)
So you have a duty to take reasonable steps to protect a child or a vulnerable adult from injury.
What do we mean by Injury?
Injury means → Actual bodily harm, not totally minimal harm, but not serious harm.
Normative judgement above → Not trivial but not so serious to amount to injury,
There are issues that flow on from having two separate duties → Duty to provide necessaries and duty to protect from injury (in section 151, and section 152).
And one of them is → you can be guilty of killing your child twice.
And there is case law on this.
For example → Case of Wikita → two cases of manslaughter even though the child died once.
And for example Kuka.
So you can cause the child for breaching providing necessaries, and cause the death by failing to protect from injury.
Disadvantage of duty is → can have two manslaughter convictions even though only one death.
But if Lunt had held → That necessaries → includes protection from injury → we would not have that problem necessarily.
Basically when Lunt → laid down the duty to protect from injury (which was included in necessaries. It was quite a narrow duty.
Confined to a situation where someone was targeting the child for illegal violence → and the defendant knew that or knew enough to know that if they were being reasonable.
When the legislature added in duty to protect injury → They did not narrow it in the way that Lunt did.
So the legislative provision is very broad.
So its the duty to protect child from harm → does not have to be serious harm (according to section 152).
And does not need to be harm that has been inflicted by another person, for example can be preventing the child from harming themselves.
Can come from human or non human sources.
So duty is broad → the duty to minimise any predictable harms that could occur in the future from any activity undertaken by the child or anyone else in proximity to the child.
If a person prosecuted then jury has to decide what the risk tolerance is → people have different risk tolerances.
Some people have high risk tolerance.
Also issues about what risk threshold and parenting standards → so broad duty.
And rely effectively when you have an enormous duty that could encompass anyone, just rely on the police to determine who they are going to prosecute.
Most parents have lapses where they do certain things, parents with low risk threshold may jury and judge them for a breach.
It is worth noting that → there is no obligation when a person has breached an obligation to prove that the children were injured.
The question is whether the parents failed to take reasonable steps in relation to a likely injury.
This does require a high risk of injury. → normative judgement.
In other words a high chance that risk will eventuate → so not going to prosecute parents when there is a low chance of risk.
Can argue that this standard was not met in the case of JF v Police.
This case → in which the mother has been at a friend’s house planned to have adult times together, parents socialising with alcohol.
So she went to friends house, put kids in bed at friends house, and having some time as adults, she was drinking.
And partner was in relationship with a gang member.
And he came home in an aggressive mood. And became scary for her.
She fled the house.
Her child was asleep so instead of putting her child seat which may have risked waking her up.
She instead layed her down and put the adult seat belt around her.
So didn’t put her in child restraint.
Drove off, got lost, did a u turn.
Not familiar with the place.
And she was stopped by police.
Convicted under section 195 → on the basis of a breach of 152.
You could have argued that → the standard of likely or probable which requires a high chance of the harm/risk eventuating was not met on that set of facts.
Showing there is a heightened risk is not the same thing as showing that a harm is probable or likely.
Does the defendant have to be aware of a risk?
The answer is that they need to be aware of facts that would suggest to a reasonable person that there is a risk.
Cases in which the parent/child duty has been applied:
•Failure to obtain medical treatment
•Failure to protect from assault
•Negligent parenting practices: leaving a child in a bath, exposing a child to methamphetamine, unsafe sleeping conditions, failure to use proper child restraints etc
Cases where section 152 duty has been applied.
Failure to get medical treatment
Failure to protect from assault.
Parent leaving child in bath.
Exposing child to methamphetamine by living in a place where meth is manufactured
Unsafe sleeping conditions.
Failure to use proper child restraints when driving → JF v Police.
Failure to obtain medical treatment:
•Liam Williams-Holloway
•R v Laufau HC Auckland, 2 October 2000
•R v Moorhead HC Auckland, 13 June 2002
Long history of failure to obtain medical treatment.
Some cases are controversial.
For example R v Laufau in 2000.
Many thought the parents should not be prosecuted.
Case involved an older child → teenager.
And he had been diagnosed with cancer.
He had a tumour on his leg.
And he didn’t want to get medical treatment.
The parents were told he would die without treatment but the treatment did not have a 100% chance of success.
The kid was terrified of treatment; he thought he might lose his leg.
And he was so freaked out that he threatened to jump out of the car if the parents had tried to take him into the hospital.
And parents thought he was old enough to make his own decisions so they didn’t.
Didn’t want to put him through something which he indicated would be very traumatic for him.
So he died at age 13 of this tumour.
And parents were also devoutly religious. → Parents thought their would be a divine intervention if that is god’s will.
Willin got submit to gods will.
These parents were charged with manslaughter and criminal endangerment.
And they were found guilty of the latter (criminal endangerment).
Presumably because the jury didn’t find that the parents decision had caused death because treatment wasn’t 100% likely to be successful.
So even if they had got treatment, the child still might have died → so not convicted of manslaughter.
But were guilty of criminal endangerment.
And they were given a suspended sentence → on the basis that they were loving good parents and they had other kids to look after.
Another case is the Moorhead case in 2002. → less controversial.
A couple who had a baby who was born healthy and thriving but
in six months after born, the baby was in a terrible state.
And parents were extremely religious and were practising alternative treatments.
But at some point after they had been to see the doctor but not in the course of their engagement with the medical practitioners…
The doctors realised that the issue was quite simple.
Her mother was a vegan, and her breast milk didn’t contain essential nutrients that the child needed.
A simple injection would have fixed the problem
But the parents went into hiding → because they were extremely religious.
And the child died at six months.
And right up to the point of death this could have been easily corrected.
And they were convicted of failing in their duty as parents to provide their child with the necessaries of life and convicted of manslaughter.
They were given a sentence of imprisonment → Because judge took a very dim view of their behaviour.
She was actually pregnant at sentencing which the Court thought exacerbated their behaviour.
And they were not remorseful. → they said they’d do the same thing again.
Very religious.
They said it was god’s will.
Failure to protect from assault: EG WIKITA [1993] 2 NZLR 424:
Case of Witika
Case of Wikita.
Regularly have cases like Wikita.
R v Wikita [1993] 2 NZLR 424:
Facts
•Witika was Delcelia’s mother; Smith was her de facto step-father
•Delcelia suffered horrific abuse over a significant period of time
•Final act that killed her was a blow to the abdomen that caused peritonitis
•On the day Delcelia died, Witika left her on her bed at 10am. When she came back at 5.30pm, Delcelia was dead
•It was unclear whether Witika or Smith had delivered the blow that killed Delcelia
•Witika had been subjected to severe abuse from Smith
Case from 2018 were parents were cahrged with gross neglect in relation to 3 of their kids, father was gang member who was toxic and controlling, threatened to chop 9 year old tongue, mother was vulnerable adult, raped at 15 for child, met cmet father at 17 who had gotten her onto meth, and got her a discount of 6 months, nothing excused mtoehr for what they had done, not taking entrapment into account.
•Both Smith and Witika were charged with
•Offences to do with the ill treatment of Delcelia
•Manslaughter by an unlawful act (hitting Delcelia)
•Manslaughter by omission (failure to get medical help)
•In respect of the charge of manslaughter by an unlawful act, Smith and Witika were charged as
•The principal (ie the person who carried out the act); or alternatively as
•A party to the offending (abetting/encouraging the offending)
•Both Smith and Witika had a duty to protect Delcelia from foreseeable illegal violence
•They failed to protect her from the foreseeable illegal violence
•That failure to act amounted to abetting the act when combined with an intention to encourage the crime
•The intention to encourage the crime could be inferred from the fact that the person did not seek help when they could have – they did not go next door to see a neighbour or phone the police
R v Wikita [1993] 2 NZLR 424:
Facts
•Witika was Delcelia’s mother; Smith was her de facto step-father
•Delcelia suffered horrific abuse over a significant period of time
•Final act that killed her was a blow to the abdomen that caused peritonitis
•On the day Delcelia died, Witika left her on her bed at 10am. When she came back at 5.30pm, Delcelia was dead
•It was unclear whether Witika or Smith had delivered the blow that killed Delcelia
•Witika had been subjected to severe abuse from Smith
Case from 2018 were parents were cahrged with gross neglect in relation to 3 of their kids, father was gang member who was toxic and controlling, threatened to chop 9 year old tongue, mother was vulnerable adult, raped at 15 for child, met cmet father at 17 who had gotten her onto meth, and got her a discount of 6 months, nothing excused mtoehr for what they had done, not taking entrapment into account.
•Both Smith and Witika were charged with
•Offences to do with the ill treatment of Delcelia
•Manslaughter by an unlawful act (hitting Delcelia)
•Manslaughter by omission (failure to get medical help)
•In respect of the charge of manslaughter by an unlawful act, Smith and Witika were charged as
•The principal (ie the person who carried out the act); or alternatively as
•A party to the offending (abetting/encouraging the offending)
•Both Smith and Witika had a duty to protect Delcelia from foreseeable illegal violence
•They failed to protect her from the foreseeable illegal violence
•That failure to act amounted to abetting the act when combined with an intention to encourage the crime
•The intention to encourage the crime could be inferred from the fact that the person did not seek help when they could have – they did not go next door to see a neighbour or phone the police
R v Wikita:
“Now, if either the mother or the de facto father … each being a person having the custody and control of the child and being responsible for its care and safety and well-being had knowledge of the propensity or the tendency of the other of them to commit any of the violent acts complained of and had knowledge of the risk that further such acts might be committed and if having the ability to do so she or he failed to take appropriate, reasonable steps to ensure that the other of them was deprived of the opportunity to continue those acts or to repeat them, intending by such failure to encourage those acts, then she or he is abetting those acts and is guilty as a party if the other party has been encouraged in that way.”
R v Wikita: What is the model of family violence The Court is using?
“Now, if the opportunity presents itself to that person to take steps to prevent the wrongdoing of the other, if there is a failure to remove the child from the dangerous environment or to call for help when it is open to the accused whom it is sought to make a party to do so, then the offence is complete at that point. For example, if the other party, the wrongdoer is away from the house, there is nothing to prevent the person sought to be made a party picking up the child and going for help next door, to the police, wherever, going next door and using the telephone and the intention to encourage the continuation of the wrongdoing might be inferred from the failure to take steps at that point…”
June 2018: Gross Neglect of 3 Kids:
•Father – 3 years 10 months
•Mother – 3 years 4 months
Father was a gang member who was “toxic”, “brutal” and “controlling” towards mother and kids – threatened to chop out 9 year olds tongue.
Mother was in state care at 12. Was raped and gave birth to first child at 15 (child now 9). At 17 met father who had gotten her addicted to methamphetamine. Sentencing judge: nothing “excused” what mother had done.
Case from 2018 where parents were charged with gross neglect in relation to three of their kids.
The father was a gang member who was toxic, brutal, and controlling towards the mother and the kids → words of the judge
Threatened to chop out the nine year old’s tongue For example.
And mother was a vulnerable adult.
She had been in state care at 12.
She was raped and gave birth to the nine year old when she was 15.
At 17 she met the father who had gotten her deliberately addicted to Methamphetamine. → not uncommon.
Makes partner very vulnerable if you are their main supply (of meth).
And that have the mother a sentencing discount of six months.
The sentencing judge said nothing excused the mother for what she had done.
Not taking entrapment view of the circumstance that the mother was in.
Nikitalove Tekotia: Manslaughter for failing to protect: Sentenced 2 March 2024 to 12 months home detention
Tyson brown: Murder: Life with 15 years minimum non-parole
Nicer judgement.
Recent and more compassionate judgement.
Tekotia was convicted of manslaughter for failing to protect her baby from her violent partner.
And on the basis of a breach of s 152 of the CA. → sentenced to 12 months home detention.
Her partner was convicted of murder and sentenced to life with 15 years minimum non parole period.
Failure to provide safe sleeping conditions:
Two manslaughter convictions:
-Mother who was sleeping with her baby in the car outside her sister’s house because she had been punched in the head by her partner. She had been drinking and accidentally smothered her baby. R v Tukiwaho (2012)
-Mother who slept with her baby after her partner had gotten up in the night and put the baby on her breast. They were sleeping at a friends place because they had been drinking and could not drive home and get the safe sleeping pod. R v Tuheke (2014)
A further charge in 2016 in respect of a Taranaki woman who smothered her six week old baby whilst breast feeding. She had a history of alcohol and drug addiction and was in the early stages of pneumonia.
Many cases/prosecutions for providing unsafe sleeping conditions to children.
We haven’t had these so much in recent times, → prosecution potentially backed off on convicting people.
If dealing with family that doesn’t trust agencies, and trying to encourage safe sleeping practices by giving those families PP pods.
Discovered that co-sleeping is a symptom of sudden infant death syndrome.
But a lot of families cant not sleep with kids, they dont have facilites or not culturally appropriate not to.
So Medical professionals developed PPE pods which are little baskets that you cna have in your bed.
And you put the baby in the basket and can co sleep with the baby safely.
The problem is if you prosecute parents for not using sleeping pods, can be problematic.
There were two manslaughter cases based on failing to provide children with safe sleeping conditions.
R v Tookie Waho was the first one.
This is the prosecution of a mother who was sleeping with her baby in the car outside her sister’s house.
She had arrived there, it was late and dark and everyone was asleep so she didn’t feel safe to go in.
And left her house because partner had punched her in the face and she had been drinking.
She had a history of alcoholism
At some point because it was cold she brought her baby in to sleep with her and she accidentally smothered her baby.
She was charged with manslaughter.
Another case R v Tuheke.
Mother’s partner got up at the middle of the night.
Sleeping at a friend’s place.
Partner got up and put the baby on her breast.
Left the PPE pod back at home.
So there was a prosecution and conviction for manslaughter.
And there was a further charge in 2016.
This became the case of R v Q.
Where a Taranaki Woman smothered her six month old baby while breastfeeding.
So she was a person with a history of alcohol and drug addiction which she had been open with to her plunket providers.
And so they put her on methadone → They thought that was the safest to wean her off the addiction.
Safest pathway for the baby → the doctors thought.
She had also taken sleeping pills to try and sleep.
She couldn’t sleep through the night.
And she took a little bit of alcohol.
And she was in the early stages of pneumonia → so she was very sick.
She was convicted and this conviction was overturned by the Court of Appeal.
On the basis that the jury had to be informed that the things that she had done wrong were gross breaches.
Criminal breaches of her duty and that they played a causal role in her death.
And the jury had not been told that they had to disregard the methadone
and had to be assured that she hadn’t fallen asleep because she was severely unwell.
Testimony also from a paediatrician to the effect that this was a woman who had a history of managing very difficult life circumstances with alcohol.
So I had a high threshold. → So the alcohol (small amount) was unlikely to have affected her much. —> Can develop a tolerance.
So the CA overturned the conviction on the basis that the jury had not been properly instructed.
They needed to find that the things that were a breach of her parental duty amounted to gross negligence and had caused the death.
And they had not been instructed accordingly.
Criminal Nuisance:
•2013: 10 week old baby placed in the bed of his drunk mother (Sybil Harrison 37) by her partner (Elray Marsh 31) when he went to work. Pleaded guilty to criminal nuisance. They had lost a baby girl to SUDI the year before.
•2014: A woman appeared in the Whanganui DC charged with failing to provide the necessities of life after she fell asleep whilst breastfeeding and woke to find her baby dead: Acquitted.
•2015 27 year old woman convicted of criminal nuisance in Hastings after her baby son (her third baby) died sleeping in her bed. She had been warned by health professionals “more than a dozen times about the dangers of sleeping with an infant” and supplied with a Pepi-Pod.
There are also cases where failure to provide safe sleeping conditions in regard to s152 → have formed the basis for prosecutions for criminal nuisance.
Sometimes when babies have died → But also in circumstances where it is not clear that the breach has caused the death.
Criminal Nuisance → Is just doing something that has a risk.
So there were a series of prosecutions for Criminal nuisance for not providing correct sleeping conditions in 2013, 2014, and 2015.
Some examples above.
Failure to use a child restraint:
•JF v Police: Fled her friend’s house after her friend’s patched gang partner arrived and began to be aggressive. She had been drinking. She failed to put her sleeping child in the child restraint – instead buckled her into the adult safety belt.
•Conviction under s 195 (on the basis of a
breach of s 152).
JF v Police – Failure to use a child restraint.
There have been prosecutions for leaving a child home alone, overnight or over the course of day, or days to work or socialise.
There is also an offence under section 10 of the Summary Offences Act 1981.
Which creates the offence of being a parent with the care of a child under 14 years who leaves that without making reasonable provision for the supervision and care of the child for a time that is unreasonable.
Or under conditions that are unreasonable.
So the prosecution has a choice under the Summary Offences provision or section 152.
And it will go for 152 → when it considers that the circumstances are more serious and warrant a prosecution under the Crimes Act rather than the Summary Offences Act.
Leaving a toddler in a car: R v X:
•Whanganui health professional (35) plead guilty to the manslaughter of her 16 month old baby after she forgot to drop him off at creche and left him in the car. Discharged without conviction: “Forgotten baby syndrome”
Controversial Decision
R v X.
Case where a mother was charged.
Was a medical professional.
Suffering from extreme deprivation, she had a newborn, young baby.
And was also a doctor, or other health professional. → She retained name suppression.
Usually her husband dropped her son off at daycare.
And on this particular day, she was supposed to drop her son off
And she went into automatic pilot → a state of disassociation → and forgot he was in the car.
Got to the hospital → Went into work mode
And got a call from the daycare → At about 3:00pm asking why your son is not with us.
Remembered that she had her son → At that point her baby had died from heatstroke and dehydration in his car seat at the car park.
The car park was isolated, so nobody had heard him.
And she was prosecuted and plead guilty.
And was given a discharge without conviction.
On the basis that she had forgotten baby syndrome.
Convictions where little condemnation of underlying behaviour:
Discharges without conviction in R v Nagle; R v X; R v Mataafi and R v Illston.
Eg Nagle [2013] NZHC 2532: 47 year old experienced mother did not realise that her child was premature and had health complications – home birth, not incubated and died of infection.
•“In my view the impact of a conviction for manslaughter will indeed be out of all proportion to the gravity of your offending. It will fail to carry the correct message – that you are a loving mum who made a terrible mistake. And it will lead to your family being shunned, criticised and stigmatised.”
Cases which potentially shouldn’t have been prosecuted.
Many of these cases → parents pleaded guilty.
Large incentive to plead guilty in these cases → Parents feel horrendously guilty.
Child has died.
And pleading guilty will lead to more compassionate outcome at sentencing.
All cases where parents plead guilty (above).
And they were then given a discharge without conviction. → Meaning they weren’t even convicted → Sentencing option
If we are supposed to be prosecuting only in cases of gross negligence → Egregious moral wrong. → Hard to convict these parents.
Even on the basis of a guilty plea.
As discharge without conviction indicates that there is no egregious moral wrong.
Two of these cases were drowning cases.
And one of these Cases Nagle → Involved an experienced mother, had a baby,
Homebirthed that baby as she did with all her others.
Looked after her like she did all the others.
Did not realise that her baby was premature → miscalculated the dates.
And had health complications → and died of infection.
Duties imposed on people assuming particular responsibilities for dangerous things or activities.
(Introduction)
Next set of obligations → duties that arise by virtue of undertaking certain activities.
Duties imposed on people assuming particular responsibilities for dangerous things or activities.
And the rationale for these duties is a little bit different from the special relationship duties.
It is not that you have entered into a particular relationship with a vulnerable person or a particular type of relationship of responsibility.
It is that you have assumed responsibility for an activity or thing → that might cause danger to another persons life.
So put on notice that you have to be careful.
Duties that arise because of undertaking certain activities that may be dangerous to life:
Being in charge of dangerous things or doing dangerous acts:
•s155 undertaking acts that are dangerous to life
•s156 being in charge of dangerous things
•s157 undertaking to do something that prevents danger to life
The first duty is in section 155.
These duties are in 155 to 157.
Section 155 of The Crimes Act 1961:
•“Everyone who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.”
So 155 provides that everyone who provides, except in case of necessity, to administer surgical or medical treatment, or to do any other lawful act,
The doing of which is or may be dangerous to life.
Is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act
And is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
Section 155 Broken Down:
•Except in case of necessity (R v Yogasakaran [1990] 1 NZLR 399)
•If:
•you undertake to administer surgical or medical treatment; or
•you do any other lawful act which may be dangerous to life (R v Myatt [1991] 1 NZLR 674)
•Then you’re under a legal duty to have and to use reasonable knowledge, skill and care when doing that act
•And you’ll be criminally responsible if you fail without lawful excuse to discharge the duty (so long as you meet the other requirements for an offence)
Broken down into different elements.
Except in case of necessity → put on notice that there is a necessity defence.
If you undertake to administer surgical or medical treatment, or any other lawful act which may be dangerous to life → all doing things which are perfectly legal → but they carry this RISK to life.
Then you are under a legal duty to have and use reasonable knowledge, skill or care when you are doing that act →
And you will be criminally responsible if you fail without lawful excuse → to discharge the duty.
So there is also a lawful excuse defence.
So long as you meet the other requirements of an offence.
Section 155 → Requires that the activity IS or MAY be dangerous to life before the duty is triggered.
the case of R v Myatt → It was said that the section therefore only covers activities that have a reasonable possibility of death resulting if care isn’t executed.
So in other words → the risk that you are going to cause harm to other people is not enough to trigger the duty → There has to be a risk to life.
But it doesn’t have to be a high risk → The section does not say that it has to be a likely risk.
Normative judgement → a possibility is less than a probability.
Probability → means likely to happen
Possibility → a risk but not a completely remote risk, but not necessarily likely to happen.
So in 155 → a reasonable possibility is required.
And that will be a factual judgement for the jury. → so not something that is totally remote, a reasonable possibility.
Several defences built into 155 →
lawful excuse defence.
Justice Thomas → in Auckland Area Health Board v AG → said that this doesn’t have any defined meaning.
Each case has to be examined on the individual facts in order to determine whether there is a lawful excuse.
Pretty open ended defence.
Auckland area health Board v AG → Case where the issue was could you withdraw medical life support from a patient.
Who suffered from Gullian-barre syndrome → So stuck in his body, and breakdown between brain and body.
So couldn’t move his body → and he was on artificial breathing, because brain couldn’t even instruct his body to breathe.
Question was could you withdraw that support (life support)?
And JUstice Thomas said → a lawful excuse, so even if withdrawing the support was a breach of the duty → There was a lawful excuse if withdrawing the support met the standards of good medical practice.
IF medical profession thought withdrawing the life support was a good thing to do. → then it would be a lawful excuse.
The other Defence is the Defence of necessity → or emergency circumstances.
For example after the earthquake, somebody’s leg is trapped and has to be amputated before the building collapse →
you are not going to be held to the same standards as if you were in an operating theatre under normal medical conditions.
Emergency Circumstances → And different standards apply → And can raise defence of necessity as a Defence.
But in the case of Yogasakkaran → The Court rejected the idea that necessity covered a situation where an anaesthetist was acting in haste during an operation.
President Cooke in this case → The exception for necessity is plainly intended to cover the case of persons unqualified or insufficiently qualified who in emergencies undertake surgical or medical treatment or the like.
It is intended to emancipate a professional medical practitioner from the exercise of reasonable professional care and skill in an emergency.
Instant decisions may have to be taken in any emergency → that must be a major factor that has to be kept prominently in the mind in determining whether there has been a failure to live up to the appropriate medical standard.
Yogasakaran → case where an anaesthetist in a situation where things were happening to the patient and had to respond quickly.
Went to draw to get out a particular drug to inject to the patient.
Unbeknownst to them, somebody who had stocked the operating theatre had put the wrong drug in the drawer.
And so they injected the wrong drug into the patient in the heat of the moment.
He didn’t look at it, just grabbed it out of the drawer and injected it into the patient.
Anaesthetist → hard profession, have to act under split second, lots of pressure.
Tragic case → In Yogasakaran → the man never practised again.
And it only came to the attention of the authorities → Because he himself was an ethical practitioner.
He was devastated by the death of his patient.
And was thinking back about what he did wrong and went back into the operating theatre and searched the rubbish bin found the syringe that he had injected (drug).
And realised and went and alerted the authorities
when you are a part of a complex system → the idea is to improve the system, so people stocking the drawers more carefully next time, whilst you don’t make the same mistake again.
He was prosecuted.
The Court said → you are anaesthetist, you have to be held to proper professional standards.
The defence of necessity is not designed to exonerate the professional in professional circumstances.
Section 156:
“Everyone 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.”
Everyone 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 precautions against and use reasonable care to avoid such danger
And is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
Like 155
The thing that is in your charge or under your control → has to be potentially dangerous to life to trigger the duty.
May endanger life → no requirement that there be a significant risk that life be endangered, just a reasonable possibility.
Similar to 155.
Section 156 → covers a wide range of things → anything whatever that carries this kind of risk.
CA says that this is → an extraordinary breadth of language.
So it includes things that are not dangerous in and of themselves and are only dangerous when used in a certain kind of way → operated in a particular fashion.
Duty has been applied to → driving cars, aircrafts, trains, boats, jet skis, farm bikes, firearms, a bridge swinging operation, a fish packing factory, a trench (being excavated, oblong hole in ground), swimming pools, baths.
It even has been held that the word → anything whatever should not be interpreted narrowly and should extend to non-physical things like events.
For example in the case of Anderson → there was a cycling event that the defendant had organised.
What she hadn’t done in organising this event → parts of the circuit that cyclers were going around had not been closed off to cars.
So cyclists were cycling on roads that cars were also driving on.
But that hadn’t been clear to the cyclists. → They thought all the roads had been closed off.
And the Court in that case → was ok with the cycling event being a thing which is potentially dangerous to life if reasonable care was not excercised.
R v Mwai [1995] 3 NZLR 149:
•Accused was HIV positive
•Dangerous thing = seminal fluid infected with HIV virus
•Held to owe a duty to take reasonable care of his seminal fluid
•Failure to disclose to his sexual partners his HIV status or wear a condom was breach of duty
In R v Mwai → the accused who was HIV positive was held to owe a duty to take reasonable care in respect of his seminal fluid.
Because it was infected with a deadly disease → HIV.
Court commented → there was no reason to limit section 156 → by excluding a part of the bodily makeup of a person that otherwise met the definition.
So bodily fluids → could be things that might be dangerous to life if you don’t exercise reasonable care
So failure to wear a condom was a breach of the defendant’s duty to take reasonable care to avoid a danger to life.
There have been other cases since Mwai → and medical advances since Mwai.
Case in the district Court → case called Daily → where it was held that the risk of infection if you are having oral sex is so low that it doesn’t even register a duty.
So risk of danger to life is so insignificant.
Case of Fili Tonga → Court thought you might potentially be able to lower your viral load using some of the drugs available.
So sex might no longer carry a risk to life → and if that was the case then you wouldn’t necessarily need to use a condom.
But each case goes to the jury → who decides whether there is a risk to life that meets the criteria that triggers the duty.
And will also decide if you are in breach of that duty.
Parents in charge of dangerous things like vehicles, swimming pools, and baths have been charged with manslaughter by omission on the basis of section 156 as well.
R v Vanner HC New Plymouth, 21 February 2006:
•V charged with manslaughter on the basis of s 156 omission
•4 year old daughter drove his quad bike, lost control and was crushed
•Found not guilty
R v Vanner →
A father was charged with manslaughter on the basis of section 156.
Had little daughter on the back of a farm bike doing various work.
And got a phone call about concrete.
And was on the phone distracted.
And his four year old daughter saw her moment to help dad.
Jumped on the seat of the farm bike, drove down the paddock, overturned the bike on herself and killed herself.
So he said he broke his own heart.
He was prosecuted → and was basically acquitted by the jury.
Challenging case → because all manufacturers instructions said you shouldn’t have kids on farm bikes.
So trying to argue that you are not criminally negligent when everything says do not have kids on it (professional body’s say this).
Challenging for defence counsel.
Defence counsel had a huge amount of the farming community to show up and give testimony in Court to say that they had their kids on their farm bikes.
They said they know it’s not perfect, we are doing the best we can and this is the reality of life.
And so the defence counsel was able to build an evidence base → that this was actually common practice in the farming community.
Can potentially do the same with co-sleeping cases for parental negligence.
As many New Zealand parents co sleep with their kids.
R v Crossan HC Invercargill, 28 August 1998:
•Do not have to have exclusive control of the dangerous thing
•See also R v Turner [1995] 13 CRNZ 142.
Note → that you don’t have to have exclusive control of the dangerous thing.
The authority for this is R v Crossan → case with the fish packing factory —> there can be multiple people → the same as other duties.
Section 157:
“Everyone who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.”
The final duty with respect to dangerous things.
The duty in section 157 → which says that
Everyone who undertakes to do any act
The omissions to do which
Is or may be dangerous to life
Is under a legal duty to do that act
And criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
Like sections 155 and 156 → There is this lawful excuse duty.
155 → only one that also has the Defence of Necessity excuse/defence
But you may be able to fit a necessity defence into a lawful excuse.
So like those other duties → there has to be a reasonable possibility that a failure to satisfy an undertaking to act will endanger someone’s life.
Examples of this → are things were a person is employed to manage a machine to haul miners up to the surface of the Earth, and they are trained to manage that machine and they leave that machine in the care of someone incompetent without authorisation.
So they have been employed to do something to protect people, and they breach that obligation.
Or a person who agrees to remove a crane from a road but fails to do so.
So you have to give some kind of undertaking or have some obligation to act → and failure to act risks life.
A Duty based on a particular relationship with the harm:
A common law duty?
•A duty to take reasonable steps to minimise a danger that you have created once you become aware (or ought to have known) what you have done:
•R v Miller [1983] 2 AC 161
•R v Evans [2009] EWCA Crim 650
•R v Wacker [2003] 4 All ER 295
Third and final duty that can lie on the defendant.
And this is a duty that arises at common law.
Lunt → Made clear that common law duties still apply in NZ.
But there aren’t many cases in which the Courts have relied on this common law DUTY.
Because → our statutory duties are likely comprehensive enough to always be available in circumstances where this duty would apply and people want to prosecute.
Alot of the English law still exists at common law.
We codified the English common law in the Crimes Act.
So we dont need to look to the common law as much as the English do.
There is a line of English authority which suggests that a person is under duty to take reasonable steps → to avoid or minimise a danger that they have created.
Once they become aware that they’ve created this danger → and the basis of that liability is their relationship with the harm.
They have caused the harm and become aware of that → so they are under obligation to undo what they can reasonably undo.
Duty → typically arises in situations where the accused has brought about the harmful consequence which might constitute the actus reus for a crime by mistake.
So cant be held liable for it.
And then they realise what they have done, but they just really don’t do enough.
Later cases in the English Common law have raised the duty might be triggered
where the defendant ought to have known of harm (so don’t know personally)
And they’re not the sole cause of the harm. → but have simply contributed to it.
The leading case on this is R v Miller → person squatting in unoccupied house
And they fell asleep on a mattress with a lit cigarette in their hand →
Woke up, realised that the mattress was on fire and made no attempt to put it out,
And just stumbled into the next room and fell asleep on another mattress.
And it was held → that the defendant could be guilty of damaging property by fire on the basis of an obligation to take measures that lie within one’s power
To counteract a danger that one has oneself created.
So he could be guilty of this offence by an omission → because of this duty to undo harm once created that arose.
In the case of R v Wacker.
A lorry driver → Was people smuggling.
So driving people across the border.
He was driving a truck which looked like it was carrying tomatoes.
But it in fact had 60 illegal immigrants in the back.
And he basically went on the ferry and there was a lot of security guards around.
So he closed the vent that was letting air into the truck → because he didn’t want the security guard to hear the whispering or the voices.
And of those 60 → 58 died of oxygen deprivation.
And the Court said → he owed a duty to take reasonable steps to preserve their lives.
And that duty arose when he voluntarily closed the vent → he at that point assumed a duty of care to his passengers.
Because he was aware that no one’s actions other than his would realistically prevent them from suffocating to death.
The case of R v Evans [2009] → extended the duty in ways that some may think are too expansive.
Gemma Evans → supplied her younger sister with heroin.
Her younger sister → had been clean for a while → been in rehab/prison for a while.
She had gotten clean.
Common mistake that people who are addicted make, is they get clean → and they come to use and don’t realise that they’ve lost their tolerance.
So her younger sister → Overdosed.
Took too much → her tolerance had decreased.
So Gemma Evans and their mum → did not summon medical care.
Instead they put her in a recovery position and slept with her in the same room.
Younger sister passed away.
The mum may have had a duty as a parent.
But the question was → was the sister liable?
The Court said → where a person has created or contributed to the creation of a state of affairs.
Which he knows or ought reasonably to know has become life threatening
A consequent duty on him to act → by taking reasonable steps to save the life of another will normally arise.
In this instance → it was supplying her sister with heroin → and knowing that she had overdosed → and that she believed she was responsible for her sister’s care and did some things
To indicate an assumption of responsibility for care.
The combination of those things meant she had this legal obligation.
But it does extend the duty because she hadn’t caused the situation.’
Law on Causation → if you supply someone with heroin and they choose to take it as an adult → they are the cause, you haven’t necessarily caused the overdose in that sense.
The Court → Said it was enough if you had contributed to, you didn’t have to have caused it.
And can be guilty even if you didn’t know there was a risk as long as you ought to have known.
That you’d created harm.
This duty has been applied in Australia in the case of R v Tabor → the fact situation where a man has bound and gagged an old lady who was already in the house and abandoned her.
Made one call to accident and emergency.
And that was a duty that you could apply in that case. → although in New Zealand there are other statutory duties that work.
In the case of R v Rao → the judges expressed caution about accepting particularly in homicide cases
The general principle that a person who does any act which has the effect of creating danger for any other person
Ipso facto acquires a duty to intervene to protect that person.
The judges were uncomfortable with that → Said that it is really potentially stretching liability too far.
Particularly if you are responsible in situations where you didn’t cause the harm you just made some contribution to the harm.
Standards of care: Determine whether the defendant has breached their duty on the facts:
Look at the standard of care.
So let’s assume we have found a duty triggered → we know what obligations lie on the defendant.
The question then is whether they have breached those obligations?
And we are talking about negligence here because all of the obligations → have to take → reasonable steps or reasonable care.
So that is a standard of negligence → we are measuring the defendant against the hypothetical reasonable person in their circumstances.
A negligence standard.
The question is → what standard is the accused held to?
Recap:
•Three types of duties
•Special relationship – ss 151-152
•Activities or things dangerous to life – s 155-157
•A relationship to the harm – common law
Relationship duties - SS 151 - 152:
Trigger
•Have the actual care or charge of a vulnerable adult or
•Being a “parent or person in place of a parent,” have the actual care or charge of a child under 18
Duty
•To provide necessities (food, shelter, clothing, medical care) or take reasonable steps to prevent injury
Activities or things which may be dangerous to life - SS 155 - 157:
Trigger
•Do an act which may be dangerous to life (including medical treatment) (s 155)
•Have something under your control which might be dangerous to life (s 156)
•Have agreed to do something that will avoid danger to life (s 157)
Duty
•Use reasonable knowledge skill and care (s 155)
•Exercise reasonable precaution and care to avoid danger (s 156)
•Do the act that you agreed to do (s 157)
Relationship with the harm (common law):
Trigger
You have created (or contributed to: Evans [2009] EWCA Crim 650) a danger (life threatening: Evans [2009] EWCA Crim 650, but see Miller [1983] 2 AC 161)
Duty
To take reasonable steps to minimize that danger
Standard of care:
•The duty, once triggered, is a standard of negligence. The defendant’s behaviour is measured against what would be expected of a reasonable person undertaking the relevant activity, being in control of the relevant thing or assuming the relevant type of caregiving relationship
Reasonable person undertaking that activity, or assuming relevant type of (caregiver parent, etc), assume what the reasobbale person would do.
The law is
That once a duty has been triggered → the defendants behaviour has to be measured against what would be expected of a reasonable person undertaking the relevant activity
For example driving a car → reasonable driver.
Or assuming the relevant type of caregiving relationship → reasonable parent/caregiver.
R v Myatt [1991] 1 NZLR 674:
•If you are undertaking a professional task you are obliged to meet the ordinary standards of the profession. If you have more expertise you are not held to a higher standard.
•A person undertaking to administer medical treatment is under a legal duty to exercise the reasonable knowledge, skill and care called for from a medical practitioner holding him or herself out as undertaking that kind of treatment
R v Myatt → Was a case looking at issue of standard of care.
Case involving person who was driving a boat.
So the standard was → a reasonable boat operator
In this case he was driving at huge speed, and passed another boat
Breached the regulations of how you are meant to be operating your vehicle on the water
And the issue was → whether he had breached the duty under 155 → you are in charge of a boat.
Standard was the reasonable boat operator.
And the Court said → If the activity is a professional activity such as provision of a certain kind of medical care,
The standard then would be that of a reasonable professional → Holding out themselves as offering that kind of treatment.
So the ordinary/reasonable standards of the profession you are practising.
For lawyers it would be → the standard of the reasonable lawyer.
For example the cases have applied → standard of a reasonable foreman for a building site, a reasonable drainage contractor, a reasonable police officer armed with a gun and entitled to arrest
Reasonable train driver.
If non professional activity → Then it is the standard of somebody undertaking that non professional activity.
The standard for both professional and non professional activities is not elevated because an individual has a specific qualification.
So if you are a GP and you have gone and done extra special training and you are particularly qualified → you are not held to an elevated standard → you are held to the standard of an ordinary GP for example.
In Myatt → it was held that the standard of care is not raised by the fact that the defendant happens to have special skills → or additional qualifications.
Section 150A:
(2) For the purposes of this Part, a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, to which this section applies only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act. [emphasis added]
For the purposes of this Part
A person is criminally responsible for omitting to discharge or perform a legal duty
Or performing an unlawful act,
To which this section applies only if
In the circumstances,
The omission or unlawful act is a MAJOR DEPARTURE
From the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
Background: R v Yogasakaran [1990] 1 NZLR 399:
•Y was an anaethesist who used wrong drug out of right drawer during emergency
•Patient died
•Convicted of manslaughter under s155
•Appeal on conviction dismissed on the basis that the words of s 155 only required civil negligence
•Held: “The practice of reasonably skilled and careful anaesthetists would be to make at least a quick check of the labelling or packaging on the drug to be injected.”
150A → overturns the previous line of NZ authority →
In which it was held that if the duty is created by statute → and the statute only refers to negligence
So falling short of the standards of a reasonable person (negligence)
Then ORDINARY CIVIL negligence is enough to to breach the duty
So there was a line of New Zealand authority looking at sections 155 and 156.
Saying because those talk about falling short of the standards of a reasonable person
We’re only talking about CIVIL NEGLIGENCE
Normally in criminal law we are talking about criminal negligence
Criminal negligence → something really bad because what we are saying is your behaviour so egregious that we are going to attach the label criminal to it.
Civil negligence → is just reserved for where you are divvying up resources between private individuals and figuring out who was the person who had a lapse in judgement here or was at fault.
Totally different set of circumstances.
But because when the legislature enacted these duties → in some of them they appeared to use language which was synonymous with civil liability.
And the Court said → the legislature has overturned the presumption in common law that we would be looking at criminal liability.
The main case which affirmed this line of authority was → Yogasakkaran
Where this anaesthetist who was doing a surgery made a mistake
Kind of an understandable mistake, they are in the heat of the moment
Went to the correct draw → pulled out the wrong drug, just in the heat of the moment
Didn’t check the packet and → injected the drug into the person
And was held to the standard of a medical professional
And was held to the standards of civil negligence essentially.
Was held that the practice of reasonably skilled and careful anaesthetist’s → would be at least to make a quick check of the labelling or packaging of the drug to be injected.
That is true → but the question is → is it a major departure?
Whether it goes beyond what we would expect in those circumstances.
A Lot of the medical profession were horrified by this judgement
It ruined Dr yogasakkran’s life → he never practised again.
And so there was this huge move for reform →
which is why we had section 150A enacted.
The medical profession thought → a certain degree of human error is normal
So you should deal with that through the civil system
So the victims family should prosecute Dr Yogasakaran and be entitled to compensation
But really should he be judged as criminal?
Through the criminal Courts
People argued → if you punish people like Dr Yogasakkaran then you never have an improved system
People practising really defensively,
If they make a mistake they will cover it up
Because the consequences are terrible
So not going to have system improvement
R v Burney [1959] NZLR 745:
•Sections 151 and 152 did not specify the standard of care to be applied (at the time). In the absence of statutory language lowering the standard of care the ordinary common law position is applicable and criminal rather than civil negligence is required.
The position was different for 151 and 152 → at the time of Yogasakaran
Because those provisions did not specify a civil standard of negligence
So the case of R v Burney said →
If the provision does not overturn the common law, then the normal assumption is we are talking about criminal negligence
Or gross negligence, wicked negligence, something worse than the ordinary run of carelessness.
Section 150A:
(Second slide)
•Applies to the legal duties specified in ss 151-157.
•Applies to any unlawful act referred to in s 160 where the unlawful act requires proof of negligence or is a strict or absolute liability offence.
So Yogasakaran → basically now sets the threshold standard for all the duty provisions.
So section 150A → has overturned Yogasakaran.
So it applies both to the legal duties specified in sections 151 to 157.
But it also applies to any unlawful act → that constitutes a culpable homicide in section 160
Because the unlawful act requires proof of negligence or if it is a strict or absolute liability offence.
So it is extended as well → to unlawful acts.
The reason for that is → you can have things which are both omissions and unlawful acts.
For example dangerous driving → could be a driving offence ( the act of driving negligently)
Or it could be an omission under section 156 → failing to take reasonable precautions while having the charge and control of a car which is a dangerous thing.
So the same duty applies to both.
R v Spencer, CA, 5 April 2001, at [10]:
•Did the defendant omit to take reasonable precautions or use reasonable care to avoid a danger to life?
•Was that omission a major departure from the standard of care expected of a reasonable person in those circumstances?
The question you will be asking yourself under this provision is →
Did the defendant fail to take reasonable precautions or use reasonable care.
And secondly → Was that failure a major departure from the standard of care we would expect from a reasonable person in those circumstances.
So firstly → was it negligent.
And secondly if it is negligent → is it criminally negligent?
Those are the two questions under this section.
R v Hamer (Talis):
•Husband and wife – she ingested a dangerous dose of methadone prescribed for him
•He did not call an ambulance for 17 hours and, when they arrived, she had been propped with her airways obstructed
•He was a methadone addict suffering depression, with ADHD, who was tired and intoxicated. He was also a registered nurse with experience in intensive care. He said he believed that his wife had vomited up the methadone she had taken.
•Evidence of subjective recklessness by the defendant (knowing the risks he was running in not getting medical care) was relevant to whether his behaviour was grossly negligent or a major departure (following Lord Taylor in Adomoko [1995] AC 171, at 185).
•Section 150A sets out an objective test – it is not proper to graft onto the reasonable person test the defendant’s personal characteristics.
There is a very interesting decision in the case of Hamer.
Hamer is our Court of Appeal decision.
Case with a husband and wife.
They had an argument
He was on methadone
She went and took a dangerous dose of his methadone.
And he knew about the fact that she did this.
But he didn’t call an ambulance for 17 hours.
And when they arrived they found that she had been propped in such a way that she couldn’t breathe properly.
She did not die immediately but over the next couple of weeks → she died because of the complications that had arisen from that.
The husband was a methadone addict → he was suffering from depression, he had ADHD.
He was tired, intoxicated
But he was also a registered nurse with experience in intensive care
So that alerted the prosecution that he should have known better than to place her in the position that she was.
He said he believed that she vomited up the methadone that she’d taken.
The Court of Appeal → was looking at whether or not he had breached his duty.
And it was a duty under s151 → Caregiver for a vulnerable adult.
So that duty was triggered → by the marital relationship, the codependency, living together, and the fact that he knew that she had ingested his drug.
And the Court said two things →
The first thing it said was that → we are applying an objective standard NOT applying a subjective standard.
Not proper to graft on to the reasonable person the defendant’s personal characteristics.
So we are talking about a reasonable person → Who is not depressed, who is not addicted, does not have a background in intensive care, nursing and so on. (OBJECTIVE).
It is a reasonable husband in that situation knowing what he knows.
So it is an objective test.
And the Court went on to say secondly →
And potentially were following English authority which has very different ideas around mens rea.
And at one point the English courts had collapsed recklessness → Which is a subjective test and negligence which is an objective test.
We have never done that in NZ.
And potentially the CA was looking at English authority → and went a bit awry from what is expected in the NZ jurisdiction.
Because as well as holding that it was an objective standard → So it was the reasonable person without the accused subjective attributes.
They went on to hold that subjective recklessness by the defendant → was relevant TO whether there was a reasonable departure from the standards of care expected of a reasonable person.
And in deciding whether he was subjectively reckless → The Court took into account → who he was, because you don’t know what was going on in someones head but have to infer
What was going on based on → the circumstances, who they were, things that they said and did.
So they inferred.
So you could infer for example → based on his background → as an intensive care nurse that propping her in that position was not good.
That he knew he was risking her life.
And he knew that by not calling the ambulance for 17 hours.
And so the Court thought if → you were negligent (objective) and you actually, in addition, knew what you were doing (recklessness subjective) → then that was evidence that there was a major departure form the standard of care expected of a reasonable person.
Awkward conflation of subjective and objective standards. Negligence (objective) to figure out initial negligence in respect of breach of duty, but to figure out whether it was a major departure from what was expected use recklessness, subjective test. → Considering personal characteristics.
It comes across that you can → disregard personal characteristics for the purposes of lowering liability, but you can take them into account for the purposes of elevating liability.
Negligence is a circumstantial enquiry:
The hypothetical reasonable person must be placed in the defendant’s circumstances (the defendant’s knowledge but not opinion of their circumstances is relevant). R v Gedson HC Rotorua, 4 December 1997, at 10:
•“for this purpose one must imagine a reasonable person placed in the shoes of the accused, facing the situation as it appeared to the accused. Consequently what is reasonable must be judged in light of all the circumstances as they appeared to the accused at the time.”
Negligence → is always a circumstantial inquiry.
So that means we have to put the reasonable person in the defendant’s circumstances.
And the case of R v Gedson →
The High Court said → that what you do is you place the reasonable person in the shoes of the accused
Knowing what the accused knows about these circumstances, but not having the opinions that the accused may have about these circumstances.
Gedson was a case where a person replaced the blades on a helicopter
And clearly, if you don’t do that properly there’s risk to someone’s life
If a helicopter comes out of the sky for example
What he did was he replaced those blades with blades that were not recommended by the manufacturer.
So the question is → you put the reasonable person in the shoes of the accused.
Did they know that these blades didnt come from the manufacturer? Or weren’t recommended by the manufacturer?
So they’re in the circumstances that as they appear to the accused.
So the reasonable person has the knowledge of the circumstances that the accused has → but NOT the accused opinion.
So if the accused knows that they don’t come from the manufacturer, but thinks they are just as good as the official ones → that is a personal opinion that you DISREGARD.
It is fair to place the reasonable person in the circumstances they appear to the accused because
We are judging what would have been the thing that we expect the accused to do.
We are not putting them in circumstances they are not in → We are judging them for their morality.
How did things appear to them? And in the context of how things appeared to them was that ok? What they did
Did they fall short of what we would expect from them?
R v Khan [2009] 1 CR APP R 28 370, AT 381:
“In the present case, for example, if either of the female appellants had herself been subjected by [the perpetrator] to serious violence of the kind which engulfed [the deceased victim], the jury might have concluded that it would not have been reasonable to expect her to take any protective steps, or that any protective steps she might have taken, even if relatively minor, and although in the end unsuccessful to save the deceased, were reasonable in the circumstances.”
Did they fall short of what we expect from them? And the reasonable person put in the circumstances of the defendant but not the opinions.
What that means, for example if the accused is in violent circumstances.
Say they are the adult victim of the perpetrator who is also targeting their child for example
Their experiences of violence are part of the circumstances that the reasonable person is put in.
The authority for that is R v Khan →
This was a case involving horrible violence, extreme physical violence by a man towards his wife
And the issue was the liability of his sisters and mother who lived with them
And the Court said → in the present case
If either of the female appellants had herself been subjected by the perpetrator to serious violence of the kind which engulfed the victim
The jury might have concluded that it wouldn’t have been reasonable to expect her to take any protective steps
Or that any protective steps she might have taken, even if relatively minor and although in the end unsuccessful to save the deceased were reasonable in the circumstances
In other words → if you are being subject to violence, that violence is part of the circumstances that we put the reasonable person into
We judge what would have been reasonable if the reasonable person was being victimised as well → What would we socially expect them to do?
The reasonable person standard → is just our standard of what we socially expect, what we expect people in society to do in those circumstances.
But of course → the reasonable person isn’t modified by the defendant’s personal characteristics.
That becomes difficult → because if you were a person who has been subject to violence for 15 years, that is obviously going to affect you as a person → You may develop mental health issues in consequence
However, those are disregarded.
Tricky line → The reasonable person doesn’t have the defendant’s addiction or mental health issues, or their sleep deprivation, or educational, experiential or habitual factors which are personal to the accused.
But they are placed in the accused circumstances.
The reasonable person is unmodified by the defendant’s personal characteristics:
R v Hamer (talis):
•“It was not proper to engraft onto this ‘reasonable person’ the personal characteristics of [the defendant]… This is not a case where a combined objective/subjective test applies.”
The reasonable person does not have the defendant’s addiction or mental health issues or their sleep deprivation or any “educational, experiential and habitual factors personal to the accused.”
But of course → the reasonable person isn’t modified by the defendant’s personal characteristics.
That becomes difficult → because if you were a person who has been subject to violence for 15 years, that is obviously going to affect you as a person → You may develop mental health issues in consequence
However, those are disregarded.
Tricky line → The reasonable person doesn’t have the defendant’s addiction or mental health issues, or their sleep deprivation, or educational, experiential or habitual factors which are personal to the accused.
But they are placed in the accused circumstances.
What are the circumstances in which the reasonable person is placed and what are personal characteristics that the reasonable person does not have?
•Personal characteristics: mental health, addiction, experiences of childhood abuse, age (?)
•Circumstances: abuse that the perpetrator is directing at the defendant (Khan)
In relation to the task of parenting – are these personal or circumstantial?: Financial circumstances (ability to pay for childcare, accommodation etc), employment, number and age of children, level of support from extended family, amount of sleep that they are getting?
Tricky questions to be asked.
So when do your circumstances become personal characteristics for example?
There are also lines of authority in other jurisdictions → where the Courts have said that things like age should modify the reasonable person standard.
Because it is normal for people of a certain age → Say for example 18 years old to have different risk calculus and ways of acting than it is for a person who is 40.
And perfectly normal to be human and be 18 and have a different sort of set of standards and perceptions about the world compared to a 40 year old.
And so some people argue that the reasonable person has to be the same age as the accused → otherwise it’s grossly unfair and that the standard should be what we would expect of reasonable 18 year old in those circumstances for example
Not the reasonable 40 year old.
One of these cases where parent was held liable → it was in relation to a 17 year old kid who had five children under the age of five
So started having babies way younger than even the statutory age of consent
And what you’d expect of a 17 year old as a parent would be quite different from what in those circumstances compared to what you might expect of someone more mature.
So there are disputes around how we should apply these.
Must the defendant subjectively know enough about the facts to trigger a duty?
•Would the defendant in Hamer have a duty if they did not know that their wife had overdosed on methadone?
•Likely that they must at least personally know enough about the facts to suggest to a reasonable person that there was a need for action.
•Should these facts have resulted in a conviction?: R v X [2015] NZHC 1244; R v Nagle [2013] NZHC 2532
The other issue is
Whether the defendant has to subjectively know enough about the facts to trigger a duty.
And it is likely that they must at least personally know enough about the facts to
suggest to a reasonable person in their circumstances that there was a need for action.
So they don’t have to personally realise for example that there was a risk.
But they have to know enough about the circumstances that a reasonable person in their shoes would have realised there was a risk.
If that is the case then potentially a lot of the cases may seem like they did not deserve a conviction.
For example R v X → the decision may have been wrong’
The defendant in that case → because they had forgotten they had their son in their car → they didn’t know enough at the time that they breached their duty to even trigger a duty.
Can potentially even say the same about the Nagle decision.
Common offences that can be based on omissions:
Common offences that can be based on omissions,
Common/likely offences that omissions can be used to prosecute.
Important!
•For criminal liability it is not enough to prove an omission. The omission must also form part of the actus reus for a crime in which all of the other actus reus and mens rea elements have also been met on the facts.
Not enough for criminal liability that you have just proven to have breached the duty.
You then have to prove that the other elements of an offence are satisfied.
S 195: ill-treatment or neglect:
(1) Every one is liable to 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 effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
Commonly used for parents or caregivers, ill treatment or neglect: reformed recently, ss1 says everyone liable not exceeding 10 years for being a person being described in ss2, omits to perform legal duty, establish omission, the omission of which is likely to cause suffering injury, adverse affect to health, to a child, if the conduct is a major departure from the standard of a reasonable person. Duty breached under 151 or 152 to a major standard (criminal standard), and have to prove risk, suffering, injury, or disability to the vulnerable victim.
Prove breach and risk, may not have to prove that risk eventuates, has to be likely however, (so high standard)
(2) The persons are—
•(a) a person who has actual care or charge of the victim; or
•(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.
This one is very commonly used for parents or caregivers.
Section 195 → Which creates the offence of ill treatment or neglect.
Has been reformed in recent years. → at similar times t when section 151 and 152 were reformed.
Subsection 1 says →
everyone is liable to imprisonment for a term not exceeding ten years
Who being a person described in subsection (2), → so have to have a particular status
Intentionally engages in conduct that,
Or omits to discharge or perform any legal duty → so it can be based on an omission. → establish an omission then prove other elements of this offence
The omission of which, is
Likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability
To a child or a vulnerable adult (the victim)
If the conduct engaged in, or the omission to perform the legal duty
Is a major departure from the standard of care to be expected of a reasonable person.
So basically what you have to establish is an omission
A duty is breached under 151 or 152
To a major standard → criminal standard of negligence
And you have to prove this risk → that it is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable victim
So in other words —> you prove an omission and a breach, and then you have to prove this risk
That it carried this risk
It doesn’t look like you have to prove that the risk actually eventuates.
It does however have to be likely → which means probable → Which means a high standard of this risk.
Subsection (2) → have to prove that the victim is one these people
A person who has the actual care or charge of the victim → Satisfied in most cases of 151 or 152, because that is the criteria for triggering the duty
Or a person who is a staff member of any hospital, institution, or residence where the victim resides.
If you are relying on an omission under 151 or 152 → you also must establish subsection (a) or you won’t have a duty.
10 years max:
•Actual care or charge of a child or vulnerable adult OR a “staff member” of a “hospital, institution or residence” where the victim resides
•Intentional conduct or the breach of a legal duty
•Conduct or breach is likely to cause suffering, injury, adverse effects to health or any mental disorder or disability
•A major departure from the standard of care to be expected of a reasonable person
Actual care or charge of vulnerable adult or in hospital where they reside, breach of legal duty, must prove all elements of 151 and 152, the conduct or breach must be likely to cause suffering injury, or disability, and major departure, already proved a major departure under section 151 (a).
•Is injury necessary?
•Are all staff employed by an enterprise which provides accommodation to vulnerable adults liable?
•Is risk judged subjectively or objectively?
These are the requirements of the provision → s195
You have the actual care or charge of a or vulnerable adult or
A staff member of a hospital, institution or residence where the victim resides
You engage in intentional conduct or
The breach of a legal duty → you must in this prove all the elements of 151 and 152
So that the duty is triggered, it is breached, and its breached to a criminal standard
The conduct or the breach must be likely to cause suffering, injury, adverse effects to health or any mental disorder or disability
And there is a major departure from the standard of care to be expected of a reasonable person.
That is redundant in relation to a breach → because you will already have proved a breach of major departure under section 150A.
DO YOU HAVE TO PROVE INJURY?
No → You just have to prove the risk
Are all staff employed by an enterprise which provides accommodation to vulnerable adults liable?
They have to be a staff member under section 195 (2) (b) → what does that mean?
There are questions as to whether you could be a contractor → could you be for example an independent contractor who is doing cleaning?
If you are going to be relying on a breach of duty → then you are going to have to prove that it’s more than just being a staff member, that you’re actually a caregiver in some way.
You can be a staff member if you are talking about actions, not breaches of duty, because breaches presuppose that → You have to have care or control.
So actions that amount to criminal negligence if you are a staff member might also fall under 195.
Is the risk judged subjectively or objectively?
That is whether the defendant thinks they are risking these things or whether we judge that these things are being risked.
The answer is from the provision of s195 → that the risks are judged objectively
It just says the question is whether your breach is likely to cause these things
It does not say the defendant knew or thought that it was possible that these thing were being risked → its says that these things are likely.
But when you look at the things being risks → likely is a high standard → meaning probable
When you look at the things being risked they are not really serious things in the sense that they are not in the same category → as death or serious injury → just suffering
So that could mean emotional suffering, injury, which just means → not totally trivial but not serious harm.
Adverse effects to health. → So that’s a very commonly used provision when we’re talking about omissions.
S 195A: Failure to protect:
…a person described in subsection (2), [who] has frequent contact with a child or vulnerable adult (the victim) and—
(a)knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of—
(i)an unlawful act by another person; or
(ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and
(b) fails to take reasonable steps to protect the victim from that risk.
Section 195A → this is interesting because it’s a provision that both creates a duty and then criminalises it.
So it both creates an omission and then creates a criminal offence at the same time.
So when we look at 151 to 157 → They create duties but they don’t criminalise them → you have to prove a duty, breach it, then you have to find an offence.
195A → does both → it creates a duty then it criminalises it → so don’t have to go and find the offence, can look at the same provision.
It was a provision that was enacted after the Kahui twins case.
Who died while they were in the care of their father.
And he was prosecuted → and the defence counsel used a clever tactic which worked
The tactic was to → blame the mother → even though she wasn’t anywhere near the premises.
And he was acquitted.
So in response s195A was enacted.
And it provides that a person described in subsection (2) →
Who has frequent contact with a child or vulnerable adult → the victim
And (a) knows that the victim is at risk of death, grevious bodily harm or sexual assault → very serious things that you know the victim is ar risk of, not talking about suffering we are talking about death.
Serious physical harm, or sexual violence —> so they know that the victim is at risk of these really serious things as a result of either an unlawful act by someone else or an omission.
Omission → failure by someone to discharge or perform a legal duty, if the omission is a major departure from the standard of care expected of a reasonable person.
And they have this personal knowledge → not an objective standard
Did the defendant have this personal knowledge of this high risk → this risk of serious harm from someone else.
And they failed to take reasonable steps to protect the victim from risk.
The language → it doesn’t say that their failure was a major departure in this part.
(2) The persons are—
(a)a member of the same household as the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.
And in subsection (2) → the persons are
A member of the same household as the victim; or
A person who is a staff member of any hospital, institution, or residence where the victim resides.
This is a duty where you don’t have responsibility to the victim based on your particular relationship with them →
You are just living in a household where you know the victim is being targeted by someone else.
So it creates a duty → For those who share a household.
With a vulnerable adult or child who’s been targeted by someone else.
Max of 10 years:
•Defendant over 18
•Is a member of same household as the victim (or a staff member…)
•Has frequent contact with victim
•Knows the victim is at risk of death, GBH or sexual assault as a result of an unlawful act or omission by another person (omission must be a major departure)
•Fails to take reasonable steps to protect the victim from that risk
This is what we require for section 195A
The defendant has to be over 18 → not an obligation that applies to kids in the household, only adults.
They have to be a member of the same household as the victim → or a staff member of the institution where the victim resides.
They have to have frequent contact with the victim → you could be a member of the household and hardly see the victim → the duty would not apply to you.
Then you have to know → subjective → know that the victim is at risk of these really serious things → such as death, grievous bodily harm, or sexual assault as the result of someone else either deliberately hurting that victim or
Failing in their obligations to that victim
For example being a mother who is failing in their obligation to their child.
And you fail to take reasonable steps to protect that victim from risk.
(4) For the purposes of this section,—
(a) a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household:
(b) where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault.
Subsection (4) → says essentially that even if you don’t live in that household →
If you are sufficiently connected with the household that it’s reasonable to regard you as a member of the household the duty applies to you.
For example → you don’t live there but hanging out there all the time → could be considered a member of the household for the purposes of this section.
And if the victim resides in different households → for example some time in mums household and sometimes in dad’s household
The household refers to the household in which the victim was living at the time that they were at this risk of being targeted.
When duty arises/ Offence occurs:
(For section 195A)
•Under s 195A the offender has to be personally aware of a risk to the victim
•The failure to take reasonable steps does not need to be a major departure
•There is no requirement that the harm eventuate in fact
•The person threatening the victim does not have to be from the same household (the offender does)
•The harm has to be serious (death, GBH or sexual violation) but the risk of it occurring does not have to be high
Can break down section 195A
The offender has to be personally aware of the risk → that is a subjective test.
But note → that their failure to take reasonable steps does not have to be criminal negligence
Because of the wording → it just looks like civil negligence
Have the line of case law → including yogasakaran → if the legislature uses civil negligence type words it is just civil negligence
There is no requirement that the harm eventuate in fact.
You are liable just if you know of this risk
The person threatening the victim → does not have to be from the same household → the offender does.
The harm has to be serious → the harm → it has to be death, GBH, or sexual violation
But the risk of it occurring does not need to be high → so we are not requiring a probable risk for example.
Third lecture start:
Omissions → cant be guilty of a criminal offence for nothing unless you had an obligation to do something.
Law just registering sorts of situations where your doing nothing registers as something
Because you have an obligation to do something or to do what you did differently.
And so the duties in the crimes act → 151 to 157
And how you breach that duty and the standard to breach
Breach → when you don’t behave as a reasonable person in that particular role with that duty.
→ not the reasonable burglar → it is the reasonable caregiver → if you are held to have assumed a caregiving role in relation to a vulnerable adult.
A reasonable person → with that obligation → in the circumstances as they were known to the defendant. → but free of any wrong opinions you have about your circumstances
To have committed an omission under s 150A → the standard is not just that you have not behaved as a reasonable person → because its human to make mistakes.
But that your failure is a MAJOR DEPARTURE → from what we would expect.
So not just civil negligence it’s criminal negligence, egregious, wicked → through Crimes Act s150A which overturned Yogasakaran
150A → was a response to how judges had interpreted some of the duties which expressly talked about falling short of the standards of reasonable care
And didn’t say in the case law that it had to be a major falling short of the standards of reasonable care.
What that case law said was → ordinarily in the criminal law we would require criminal negligence, but the legislature has overturned that by the wording they have used in the statute and interpreting it to apply civil negligence.
So 150A was enacted → to overturn that interpretation of the statute and make the requirement criminal negligence
And the drive for 150A was the medical profession → because they felt that the standards in yogasakaran were unreasonable → Standards had become unreasonable for members of that profession and others.
And then → some of the sorts of criminal offences that can fit an omission into
Because proving an omission is not enough → have to go an prove all the other elements of an offence
All proving an omission does is register that doing nothing counts in the criminal law
We then have to go and fit it into a criminal offence.
Back to section 195A: failure to protect
And offences which are typically charged → such as
Section 195 → very common if talking about neglect of child or vulnerable adult → generally the one that will be charged.
Section 195A → this actually extends the duties and criminalises them
Most of the duty provisions → only create duties → which can then be fitted into another offence
Section 195 → Creates a duty and criminalises it
Extension of the duties.
So normally for example if you live in a household and there is a child or vulnerable adult in that household
If you are not personally a parent or caregiver you would have no obligation to that child
This extends those duties → so that if you are in a household and you have regular contact or frequent contact with that victim
And you know that someone else is targeting that victim or severely neglecting that victim
Then you have an obligation to take reasonable steps to protect that victim
So it extends it to people who share a household and are in frequent contact.
And have to navigate when applying the law carefully → the specific recipe that you are applying:
So under this provision →
you have to be personally aware
Of a VERY serious risk → death, GBH, or sexual violation
But it doesnt need to be a high risk → it’s a very serious risk, could be a low risk, have to be personally aware of that
And fail to take reasonable steps in response to it
But on the clear wording of the provision → in the case law in Yogasakaran prior to 150A → that failure to take reasonable steps doesn’t need to be a major departure
It just looks like civil negligence → As the wording of the statute does not specify that it has to be a major departure in S195A
Section 145:
•“Everyone 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.”
Another provision that can be used to fit an omission into
Section 145 →
Not a serious offence → maximum penalty of only one year.
The offence of criminal nuisance
But it doesn’t require much more than an omission
Section 145 → everyone commits a 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
So basically → all you need to prove is an omission
And recklessness mens rea (which he knew) in relation to one of these things
Don’t need to prove that there was any harm
Just need to prove that the person committed the beach of duty
KNOWING that THEY were risking either the public or an individual
And not necessarily a serious risk → life is serious, but safety or health isn’t necessarily a terrible harm
So just some form of negative impact on someones safety or health that your are risking → it does not have to eventuate.
S145:
•Commit an unlawful act or omission
•Know that the act or omission creates a risk
•Know the risk is to life, safety or health (of the public or an individual)
•
•
•Breach may not need to be a “major departure” R v Vanner
What is interesting about 145 → and what is not resolved is
Whether the standard of MAJOR DEPARTURE → Is required for 145
And there is a little bit of case law saying that → We dont know the answer to this question
That maybe we don’t require a major departure → in terms of the breach of the duty
In other words we don’t require criminal negligence for 145.
So that possibility is raised in the case of Vanner
And also in the case of Anderson
Where the Court of appeal left the issue open → but they thought sort of that a major departure wasn’t required
So it hasn’t been decided whether it has to be a major departure.
150A Standard of care applicable to persons under legal duties…
(1) This section applies in respect of—
(a) the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157…
(2) For the purposes of this Part, a person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, to which this section applies only if, in the circumstances, the omission or unlawful act is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
Why do we have this ambiguity in that case law in relation to 145?
It is because section 145 is in a different part of the crimes act that section 150A
And section 150A says →
This section applies in respect of the legal duties specified → then sets out the duty provisions
And subsection 2 says → for the purposes of this part → the standard of care is criminal negligence
Can run two arguments with this
One is that the section 150A → which raises the standard of care applies to all of the duties set out in 151 to 157
Because they are all in the same part
And section 1 clearly says the section applies to those duties
So the first argument would be → to prove a breach of the duty → you have to apply 150A
Even if the offence you then apply the omission within is in another part of the Crimes Act.
The second argument → section 150A which raises the standard of care only applies to offences in part 8 of the Crimes Act
Section 145 → is in part 7 of the Crimes Act
And you could legitimately interpret this provision either way.
So that issue is not resolved.
Two Interpretations…
1.Section 150A (which raises the standard of care) applies to all of the duties set out in ss 151-157 – regardless of what legal offence they form a part of.
2.Section 150A (which raises the standard of care) only applies to offences in Part 8 of the Crimes Act (s 145 is in Part 7)
160 Culpable Homicide:
(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person—
(a) by an unlawful act; or
(b) by an omission without lawful excuse to perform or observe any legal duty; or
(c) by both combined; or…
You can base a murder or manslaughter conviction on an omission → a failure to act
As seen in the cases of Wikita for example
To demonstrate murder or manslaughter → they are both forms of homicide.
To demonstrate or prove either of them → you first have to prove a culpable homicide
And culpable homicide is defined in section 160 (2) (b) → to mean a death that is caused by an omission
So if you fail to get your child medical care and the medical care could have saved the child’s life
Then your omission has caused the child’s death
If you have an obligation to protect your child from someone you know is hurting your child and you fail to satisfy that duty
And that person kills your child
Then you can be convicted of manslaughter
Or murder if you have the mens rea → but generally most people in this situation don’t.
