POLICE INQUIRY: Baby in car mum could face manslaughter charge

Crown Law will consider trying mother for manslaughter.

A SURGEON whose infant son died after she left him in a hot car in a hospital carpark could be charged with manslaughter.

Whanganui police have been conducting a homicide inquiry in to the January 16 death of 16-month-old Mace Caldwell.

The inquiry was completed this week and the file is now with the Crown Solicitor for a legal opinion as to whether to charge the mother.

The woman told police she forgot she had Mace with her while driving the 11km from her home to his daycare. Instead of dropping him at the daycare she went directly to Whanganui Hospital, where she works, leaving the infant strapped in his car seat in the back seat of her closed up and locked car. Mace was found dead eight hours later. The temperature had reached about 25C.

Former Wanganui mayor and former Whanganui District Health Board member Michael Laws welcomed news of a possible prosecution. He was the first person to report on Mace’s death, posting a message on his Facebook page after police had kept the matter secret.

‘‘New Zealand has a very cavalier attitude to child death and that there has been a view that the death of children as an accident is regrettable but noncriminal,’’ he said.

‘‘If charges of manslaughter are applied in this and similar cases it at least sends a message that a child’s life is worth something. At the moment the law and the way it is applied sometimes tends to suggest the opposite.’’

Lawyers said Mace’s death would be a difficult case. ‘‘A child is dead and that is the bottom line – it is a form of homicide,’’ Auckland University’s Bill Hodge said.

When a person was totally dependent on care, be they an infant, elderly or infirm, and that person died because of negligence ‘‘it is homicide and you need to look at whether the negligence is sufficiently great to warrant the severity and the heavy weight of criminal prosecution for that homicide’’.

By law a parent is required to provide the necessaries of life and to protect a child from injury.

A manslaughter charge could be laid, under section 16( b) of the Crimes Act against a parent who failed in that duty, according to Professor Kevin Dawkins of the University of Otago law faculty.

‘‘Homicide is culpable when it consists of killing a person by an omission to perform any legal duty,’’ he said.

Hawkins said for a manslaughter prosecution to succeed ‘‘there must be a departure from the standard of care expected of a reasonable person in the circumstances. It needs to be a major departure, gross negligence.

‘‘ In general terms, if a parent leaves a child in a car for a long time, probably thought she had dropped him off at a daycare centre . . . that is by the standards of ordinary reasonable people, negligence.

‘‘If this woman was under stress, tired, forgot, I don’t think that is an excuse the law would countenance.’’

If a prosecution was brought the jury would, he said, have to be satisfied the person charged had made a major departure from the standard of care expected of a parent.

Hodge said the decision whether to prosecute was a tough one. Police, he said, would now have all the details and this would include information not in the public domain. A number of factors would come in to play. If, for example, the mother had a history of forgetting her son was in the car ‘‘that would certainly be of great interest to the legal advisers who are considering whether or not the Crown resources should be spent on prosecuting this person who is no doubt still grieving’’.

There are legal precedents for manslaughter prosecution of parents who have been negligent.

The officer in charge of the Whanganui case, Detective Inspector Dave Kirby, oversaw the investigation and prosecution for manslaughter of a Whanganui woman who left her 22-month old daughter who drowned in the family swimming pool in the care of older siblings while she briefly went inside to change a baby’s nappy. The siblings, aged 11 and 12, both had life saving training. The mother was discharged without conviction.

Kirby has refused to talk to the media about the current case and, in contravention of police policy, did not release details of the death till five days after the event.

In 2011 a father was charged with manslaughter after his son, 3, drowned when trapped in a van that rolled in to a lake. The father had forgotten to put the handbrake on. He was discharged without conviction. Also in 2011 police in Taupo decided not to charge a father who had run over and killed his son, 3, while backing down a driveway.

A child is dead and that is the bottom line – it is a form of homicide. Professor Bill Hodge