Lawyers say the case of a man charged with careless driving causing the death of his pregnant wife's baby could be the first of its kind in New Zealand.
Police yesterday confirmed to The Dominion Post that a charge of careless driving causing death was one of the charges levelled against a man after a two-car collision at an intersection in Newtown last June.
The man's 40-year-old wife was a passenger in his car, and lost her baby after an emergency caesarean section in Wellington Hospital following the crash.
Legal experts said yesterday there had previously been charges brought over the intentional killing of unborn children under the Crimes Act, but they were unaware of any cases where someone had been charged with causing the death of an unborn baby under the Land Transport Act.
Lawyer Michael Bott also said the charge seemed "heavy" given the circumstances.
"One feels a profound sense of sorrow [for these people]. I imagine they are going through a very, very traumatic experience.
"To lay that sort of charge would be very distressing for them. [We are all] flesh and blood, we make mistakes sometimes and it's appropriate to exercise compassion. I just hope police have dealt with this appropriately."
Detective Inspector Paul Basham yesterday confirmed the man would face a charge of careless driving causing death, and two charges of careless driving causing injury when he appeared in Wellington District Court today.
Each charge carries a maximum penalty of three months in prison or a fine of up to $4500.
A compulsory disqualification of at least six months would also apply.
Mr Basham has previously said the decision to lay the charges was not taken lightly and the police investigation had been the subject of an independent legal review.
Victoria University criminal law specialist Associate Professor Elisabeth McDonald said she was unable to find a record of a similar case.
"It could well be a test case because it probably happens so infrequently," she said.
To be found guilty of careless driving causing death the Crown had to prove the driver's actions caused the death of "another person".
It was unclear whether a 31-week-old foetus fulfilled the legal definition of "another person", she said.
"There doesn't seem to be a real case that has defined what another person means for the particular provision in the Land Transport Act.
"The police will have to prove the causation test is satisfied - in other words, the child would not have died but for the accident."
At 31 weeks, a pregnant woman would be about nine weeks from giving birth.
Midwife Cheryl Benn, co-author of The New Zealand Pregnancy Book, said in general babies could survive outside their mother from about 24 weeks with neonatal support, though a baby was considered premature if born before spending 37 weeks in the womb.
Law Society president Jonathan Temm said he had not heard of a similar case in his 20 years in the profession.
"It's an unusual point, but if the child was alive at the time of caesarean it's not the death of an unborn child, it's the death of a child who had been born by caesarean section."
Despite the legal issues there was also an element of "human tragedy" to the case, he said.
"Imagine being charged with the death of your own child. It's a horrendous thing for any person to face."
Internationally, similar cases are also difficult to find.
In New South Wales in 2010 there were calls for a review of laws governing the death of unborn children after a pregnant woman lost her baby when she was hit by a motorist. A judicial review found no need to make legislative changes.
- ? Fairfax NZ News
Source: http://www.stuff.co.nz/national/crime/8155986/Death-of-baby-becomes-test-case
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