R v Cm [2005] ACTSC 21 (9 March 2005)

Last Updated: 11 May 2005

R v CM [2005] ACTSC 21 (9 MARCH 2005)

EX TEMPORE JUDGMENT

Crimes Act 1900 (ACT), s 39, formerly s 37A

Children and Young People (Consequential Amendments) Act 1999 (ACT)

Children and Young People Act 1999 (ACT), s 151

Children and Young People (Consequential Amendments) Bill 1999 (ACT)

Children's Services Act 1986 (ACT), s 139

Child Welfare Act 1939 (NSW)

R v Sheppard [1980] 3 All ER 899

Beard v R (1987) 85 Cr App Rep 395

Alvin Herman Gerald (1988) 9 Cr App R (S) 425

No. SCC 103 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 9 March 2005

IN THE SUPREME COURT OF THE )

) No. SCC 103 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

CM

ORDER

Judge: Crispin J

Date: 9 March 2005

Place: Canberra

THE COURT DIRECTS THAT:

1. a verdict of acquittal be entered.

1. Ladies and gentlemen, what has occurred during your absence and resulted in such an enormous delay today is that at the close of the Crown case Mr Sabharwal, counsel for the accused, has asked for what is referred to by lawyers as a directed verdict of acquittal.

2. As I explained to you at the start of the case, there is a division of responsibility between a jury and the presiding judge. Questions of fact are exclusively within the jury's province. Questions of law are exclusively within the judge's province. That means that in any given case, if there is some evidence as to facts which would satisfy each element of the offence, then it is entirely a matter for the jury to determine whether that evidence should be accepted and hence, ultimately, entirely a matter for the jury to determine whether they are satisfied beyond reasonable doubt as to the commission of the offence or not.

3. On the other hand, a question as to whether there is any evidence which, if accepted, could prove one or more of the elements of the charge is a question of law, and that is a question that I have to decide. If the presiding judge decides that there is no evidence which, even if accepted, would prove one of the elements of the offence, then the appropriate course is for the judge to intervene and direct a verdict of acquittal. Otherwise it would result in a monumental waste of time. To take an obvious example, there would be no use sending a jury out to consider evidence in a murder trial if there was no evidence at all that the alleged victim was dead.

4. Now, that is essentially the submission that has been put forward in this case and, for reasons that I will come to in a moment, I accede to Mr Sabharwal's submission. I find that there is no evidence which would be capable, even if accepted, of constituting `neglect' under the Children and Young People Act 1999 (ACT). Accordingly, I direct a verdict of acquittal.

5. It is, I think, appropriate that I give reasons while you are still here. I have an obligation to give reasons, in any event, but you are probably entitled to know why I have reached that decision.

6. The Crown, as you will recall, alleged, in essence, that the accused, who is the mother of the child, had placed him in the bath to wash him but that the water had been too hot and as a consequence he had been scalded. Sadly, this resulted in extremely severe burns. That gravamen of the Crown case was described by the learned Crown prosecutor in the following passage in her opening address:

The Crown says you will be able to conclude beyond reasonable doubt that his injuries could only have occurred by the infant being immersed in hot water. That is, that someone placed him in it, most likely in the bath, a bath that had most likely already been run, that that person was his mother, the accused. And the Crown says when you conclude beyond reasonable doubt that [CM] put her son in the water, probably with no other intention than that of a busy mum trying to frantically organise her family and get her kids bathed, that by putting her son into the water that was so hot to cause these very serious burns, that was an act of neglect. That she was neglectful in placing her son in the water without having safely ensured that the temperature of that water was appropriate for the bathing of her 17 month old son.

7. It should be noted that the accused has given alternative explanations for the injuries, suggesting that the child may have climbed onto an adjoining vanity basin or kitchen sink or turned on a hot tape. However, the Crown adduced expert medical evidence which, if accepted by the jury, would have been capable of refuting these explanations. In any event, for present purposes it is appropriate to presume that the factual allegations relied upon by the Crown can be established.

8. The offence is charged under s 39 of the Crimes Act 1900 (ACT), the relevant portion of which provides that:

(1) A person must not -

(a) ill-treat or abuse a child who is in the person's care; or

(b) neglect a child for whom he or she is caring or has parental responsibility.

9. The crucial questions that arise for determination on the application are:

(a) what does the term "neglect" mean in the context of this section? and

(b) what mental element is required for the commission of the offence?

10. The Crown prosecutor submitted that the meaning of the word `"neglect' in this context is wide enough to embrace negligent acts or omissions, though she conceded that the degree of negligence would have to be sufficient to satisfy the standard set in relation to other criminal offences, such as manslaughter by negligence.

11. She relied heavily upon a decision of The House of Lords in R v Sheppard [1980] 3 All ER 899. I will not take you to all of the passages in that judgment to which the learned Crown prosecutor referred but, I should mention that Lord Diplock referred to an earlier decision of Lord Russell decided in 1899, in which his Lordship said:

Neglect is the want of reasonable care - that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind.

12. Lord Diplock went on to say that the word `neglect' was quite general, qualified only by the requirement that it must be in such a manner as to be likely to cause the child unnecessary suffering or injury to health. He added that one could not quarrel with the statement that neglect was the want of reasonable care, if all that meant was that a reasonable parent who was mindful of the physical welfare of his child and possessed knowledge of all the relevant facts would have taken steps that the accused omitted to take to avoid the risk of unnecessary suffering by the child or injury to his health.

13. His Lordship added, however, that the danger of the statement is that it invites confusion between, on the one hand, neglect and on the other hand, negligence and that the test calls for consideration, not of what steps should have been taken for that purpose in the light of the facts as they actually were, but of what steps would have been appropriate in the light of those facts only which the accused parent either knew at the time of the omission to take them, or would have ascertained if he had been as mindful of the welfare of his child as a reasonable parent would have been.

14. The Crown also referred to a decision of the English Court of Appeal Beard v R (1987) 85 Cr App Rep 395, in which the Court of Appeal was concerned with an incident in which a child was injured by a violent man in the presence of the mother, and the court observed that there was a duty to intervene. The incident imposed obligations on the mother to actively endeavour to bring the ill-treatment to an end and to call for assistance, if necessary, and report the matter to a person in authority, and then to take steps to ensure that the child was no longer exposed to the repetition of ill-treatment by the father. If there was a failure to fulfil such an obligation, the mother might be found to have neglected the child.

15. The point that the learned Crown prosecutor drew from that decision is that neglect need not necessarily persist over a long period of time, if the need is sufficiently urgent. For present purposes I accept that principle. However, I am obliged to construe, not merely the word `neglect' in the abstract, but the meaning of the word as it appears in s 39 of the Crimes Act which is the section that creates the offence.

16. The Crimes Act contains no definition of the word `neglect' and there is nothing in the ensuing words of the section to clarify its meaning. I will not mention all of the authorities to which I have been referred by counsel because the meaning is often dependant upon the context in which the word is used, and there can be an obvious difference between the meaning of statutory provisions dealing with neglect to do a specified act or acts, and neglect of a person.

17. Section 39 does not specify any particular class of acts that a person must neglect to do, if the offence created by that section is to be committed. Accordingly, one must seek to deduce the intention of the legislature by reference to matters such as the legislative history, the usual meaning of the word and the context in which it appears in the section.

18. I will begin by referring briefly to the legislative history. Section 39, which was formerly s 37A until the Crimes Act was renumbered, was amended to its current form by the Children and Young People (Consequential Amendments) Act 1999 (ACT). That Act was passed in conjunction with the Children and Young People Act 1999 (ACT), which did contain a definition of the word `neglect'. Section 151(2) provided that:

In this chapter:

neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life that has caused, is causing or is likely to cause the child or young person significant harm to his or her well being or development.

Examples of necessities of life

Food, shelter, clothing and medical care.

19. Mr Sabharwal submitted that this contemporaneously enacted provision was of some guidance to the construction of the word `neglect' in s 39. However, the definition was contained in chpt 7, which is concerned with children in need of care and protection, and a similar provision has not been imported into the Crimes Act. It is, at least theoretically, possible that the legislature chose to use the same word to convey different meanings in the two Acts. Indeed, the Crown prosecutor submitted that the failure to import this definition into the Crimes Act suggested that it had had such an intention. In my opinion, the competing arguments relating to this provision are of little weight.

20. A more important consideration is that the Explanatory Memorandum of the Children and Young People (Consequential Amendments) Bill 1999 (ACT) explained that the amendment effected by the introduction of s 37A was consequential upon a rationalisation of criminal offence provisions, and that s 37A was a restatement in clearer terms of what was previously contained in s 139(1)-(4) of the Children's Services Act 1986 (ACT).

21. Subsection 139(1) which corresponds to s 39(1) of the Crimes Act, was then in the following terms:

A person shall not -

(a) ill-treat a child who is in the person's custody or under the person's temporary control; or

(b) fail, otherwise than for financial reasons, to provide adequate and proper lodging, food or clothing, or nursing, medical or dental care and attention, for a child who is in the person's custody.

22. It may be noted that s 139(1)(a) contains substantially the same provision as that now contained in s 39(1)(a) of the Crimes Act. What is significant is par (b) since, as I have mentioned, the Explanatory Memorandum said that the provision in s 39 of the Crimes Act, under which the accused has been charged, was intended to be a restatement of that provision.

23. Whilst the reference to the restatement being in `clearer terms' obviously reflected some optimism, I do not see how I could simply ignore the stated intention that s 39 be a restatement of what was previously contained in s 139(1)-(4) of the Children's Services Act. Construed in that manner, the word `neglect' must be taken to mean neglect by failing to provide adequate and proper lodging, food or clothing or nursing, medical or dental care and attention for the child in question.

24. The concept of a neglected child has sometimes been given a broader meaning. For example, in the Child Welfare Act 1939 (NSW), a child was so described if he lived in a brothel or his parents were drunkards. However, I am unaware of any statute in which the term has ever extended to a child who was merely the victim of an accident.

25. A construction of the word as meaning a failure to care for the child by the provision of necessities of life, rather than the making of a mistake, even a serious or negligent one, in the provision of such care would also accord with the usual meaning of `neglect' and the phrase `neglected child'. In ordinary English usage, children injured in car accidents are not regarded as neglected children, even when the accidents are attributed to the negligence of their parents.

26. There is nothing about the context in which the word is used in s 39 to suggest a different construction. Indeed, the fact that the other formulations of the offence thereby created relate to ill-treatment and abuse might tend to suggest that neglect would have to involve a somewhat similar level of culpability, and that would, in turn, suggest what was contemplated was a serious and conscious failure to provide for the child's needs.

27. In the present case, there is no evidence of neglect in that sense and, if for this reason alone, the charge against the accused is unsustainable. This is not a case like the English case of Alvin Herman Gerald (1988) 9 Cr App R (S) 425 in which the neglect consisted of a week's delay in obtaining medical treatment for a little boy who had been injured in a somewhat similar manner and suffered similar scalds. Here the evidence suggests only that the mother made a mistake by putting her son into water that was too hot. It was a tragic mistake but, even if it was made negligently, it could not constitute `neglect', in my opinion, in the sense in which the word is used in s 39 of the Crimes Act.

28. A further impediment in the Crown case is presented by the answer to the second question. As Higgins J, (as he then was), said, albeit in the context of a statutory provision dealing with neglect of animals rather than neglect of children, the concept of neglect involves a conscious failure. Again, that construction accords with the usual meaning of the word. Few people would think that parents have neglected their children by failing to inoculate them against illnesses they did not know existed, or by overlooking some danger whilst, at the same time, conscientiously attempting to care for them.

29. The Crown submitted that the absence of the adjective `wilful' which preceded the word `neglect' in the English provision which was the subject of the decision of the House of Lords in R v Sheppard, suggested that the legislature had not intended that the scope of s 39 be similarly constrained. I am unable to accept this submission. It is always dangerous to infer distinctions in meaning from differences in the phraseology of statutes enacted in different jurisdictions, let alone different countries and adjectives such as `wilful' are sometimes included in order to avoid any conceivable ambiguity, rather than because members of the Parliament in question would otherwise have construed the relevant term differently, if not so qualified.

30. In the present case, there is evidence upon which it could be open to a jury to find that the accused made a terrible mistake by immersing a child into hot water and that she had failed to check the temperature before doing so. There is also evidence that various explanations she gave were untrue. However, there is no evidence that she failed to care for the child in any manner that could constitute `neglect' for the purposes of the Act, or that her conduct reflected any conscious failure to care for the child. Accordingly, there are no questions of fact for the jury to determine that, if resolved in the Crown's favour, could establish the offence charged. It is for those reasons that I direct that a verdict of acquittal be entered.

31. Ladies and gentlemen, you may think that the proceedings have been something of a waste of your time. I am sorry if you are left with that impression, but it sometimes happens in a trial. The answer to the question, `Why can't these issues be sorted out first?', is that very often the ultimate resolution of them will depend precisely on the facts. Until you know just what the evidence is, it is very hard to know how the principles are going to be applied to them, at least with sufficient confidence to enable one to make a decision in a case as important as this one.

32. The community is in your debt. Thank you for the attention you have given to the matter, but the trial is now at an end and you are free to leave.

JURY DISCHARGED

33. HIS HONOUR: CM please stand, judges sometimes take the liberty of offering advice, even when it is not required. I am sure you do not need me to advise you to be more careful in the future. You have no doubt given yourself that advice on thousands of occasions, but there is another matter. This little boy is going to be your son for a very long time. You are going to have to somehow or other cope with the grief and the trauma of what you have done so that it does not create emotional problems between you and your little boy in the future. If you have difficulty doing that you will need to get some counselling.

34. THE ACCUSED: Yes, your Honour.

35. HIS HONOUR: Because it is important that you be able to forgive yourself for what you have done and move on.

36. THE ACCUSED: I know and it will be hard.

37. HIS HONOUR: All right.

38. MR SABHARWAL: To be discharged, your Honour?

39. HIS HONOUR: Yes, the accused will be discharged.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 30 March 2005

Counsel for the prosecution: Ms P de Veau

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: ACT Legal Aid

Date of hearing: 9 March 2005

Date of judgment: 9 March 2005