Monday, March 13, 2006

Chris Gallavin: When feelings are irrelevant

Criminals, those shifty and malicious people who wait in eager anticipation for their next victim, or those whose behaviour falls below the standard that can be expected of responsible citizens? While both definitions are correct it is the former definition that appears to have caught the imagination of the public, and defence council, in light of the Vanner prosecution.

The horrific events that led to the death of little Molly Vanner can only be described as tragic. However, in allowing a 4-year-old child to ride a 368kg quad bike, the issue of gross negligence is legitimately raised.

When considering whether a charge of manslaughter has been made out, the issue of grief or emotional distress is largely irrelevant. This position may appear heartless, or inconsiderate, but it represents a fundamental tenet of our criminal justice system, equality under the law. That is not to say that the circumstances surrounding a case ought not to be considered by a prosecutor when deciding whether to instigate an investigation. But, by and large, grief ought to be left to a judge when sentencing.

Comments associated with the Vanner case represent a troubling lack of appreciation on behalf of the public. Mr Vanner's sister has been reported as saying, "Thank God it's come out on the right side. My brother's not a criminal."

The defence case has been described as an "impassioned plea". Further, council for the defence, Susan Hughes, has been quoted as saying to the jury that, "The Vanners have paid the ultimate price for that mistake. That does not make Gavin Vanner a criminal", and "Molly is his precious eldest daughter. To suggest that this man would deliberately risk the life, safety or health of his daughter simply beggars belief."

I do not suggest that Ms Hughes in some way operated outside the law. Neither do I suggest that Mr Vanner was improperly acquitted. By all accounts Ms Hughes performed admirably as a very competent defence council within our adversarial system.

Further, it is for the trial judge to correct anything said in a closing address that he or she believes has left the jury mistaken as to the law.

What I do take exception to is the suggestion that, first, the case was incorrectly brought before the courts, and second that Mr Vanner was not a "criminal" merely by the fact that the events were an "accident" and therefore lacked intention.

The case was an appropriate one to bring to court and it was appropriate for the prosecution to emphasise that the family's grief was not the issue. Serious crime can be committed where there is no direct intention or even recklessness. If, for example, I were to ride a jetski at speed around a busy beach and in the process hit and kill a swimmer and I could show that I had not foreseen a risk (recklessness), then I could still be found guilty of manslaughter if my conduct could have been viewed as a substantial departure from that which is expected of a reasonable citizen (gross negligence).

Few people would have a difficulty with that. Should my culpability be based upon the fact of whether I knew the victim? No. We do not, in this country, have a system where the police act as judge and jury and I certainly hope it stays that way.

Debate is always healthy within a society.

The Vanner case may give rise to important discussion over the notion of reasonable conduct. However, ill-informed criticism of the decision to bring the case before the courts or inappropriate consideration of details that are appropriately relevant to sentencing only, and not conviction, represents at best, gross ignorance of our utilitarian criminal justice system and at worst exposes the frailties of our jury-based system.

* Dr Chris Gallavin is a lecturer in law, School of Law, University of Canterbury.

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