Applicants S134-2002, Ex parte Re MIMIA, Plaintiff S157-02 v The Commonwealth

[2002] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 2001

B e t w e e n -

PETER NIELSEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B24 of 2001

B e t w e e n -

MARGARET ANN NIELSEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 3.23 PM

Copyright in the High Court of Australia

__________________

MR A.J. KIMMINS:   May it please the Court, I appear on behalf of the applicants with my learned friend, MR A.N.S. SKOIEN.  (instructed by Ryan & Bosscher Lawyers)

MS L.J. CLARE:   May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Kimmins.

MR KIMMINS:   If it please the Court.  The basis upon which special leave is sought in the instant case was not argued before the Court of Appeal.  Effectively, we would be relying upon the decision of this Court in Crampton v The Queen and suggesting that the submissions that we intend to make will be sufficient to establish that there will be a substantial and grave injustice if special leave was not granted.

Could I take the Court firstly to page 2 of the record book which, in fact, contains a copy of the indictment upon which the applicants were tried.  The charge itself, in the fourth line from the bottom, indicated that the two applicants were being:

charged with the duty of providing for Louiene Wilson the necessaries of life, without lawful excuse failed to do so, whereby the health of Louiene Wilson was likely to be permanently injured.

It appears from the margin on the indictment that the two sections of the Queensland Criminal Code, upon which the prosecution relied, was section 285 and section 324. Section 285 of the Criminal Code provided the relevant duty.  A copy of that particular section is contained in the decision of Mr Justice Ambrose in the Court of

Appeal, which can be found at page 52 of the record book. It is to be noted that there was an omission so far as the replication of section 285. The third line from the bottom reads:

any consequences which –

and then should be a word “result” after that, “which result” –

to the life or health of the other person –

So far as section 285 is concerned, in two particular areas reference to “the necessaries of life” are contained or references are contained in two places. Fourth line down from the start of the section refers to “the necessaries of life” and then four lines from the bottom, the second reference to “the necessaries of life” are referred thereto.

Section 285 is contained in Chapter 27 of the Criminal Code.  The heading of Chapter 27 provides:

Duties Relating to the Preservation of Human Life

It would seem, we would submit, that section 285 actually provides the duty, in the first part of it, and then refers to subsequent “consequences” which are outlined in the three lines towards the bottom of the section itself.

Section 324, which appears above at page 52 of the record, uses the same phrase in the second line “the necessaries of life”.  Towards the end of the section, the legislature has provided for the consequences of a failure for the person who has the duty to provide the necessaries of life and what the consequences are.  It seems, we would submit, that section 324 and 285 basically are in the same form.  Both of them speak of “the necessaries of life” at the start of it and provide references to “the necessaries of life” and both of them then refer to the consequences of failing to undertake the duty as such.  It is submitted that where the phrase “the necessaries of life” appear in both of the sections that the same meaning should be given to both of them.

What are “the necessaries of life”?  The Criminal Code of Queensland does not provide any definition of “the necessaries of life”.  It is effectively to authority that we turn.  In an older Canadian decision of Brooks (1902) 5 Can Crim Cas 372, the court noted ‑ and it is recorded in the headnote, and I am looking at paragraphs 3 and 4 of the headnote in Brooks’ Case, that:

The Part headings of the Criminal Code have the same effect as preambles to statutes, and the heading “Duties tending to the preservation of life” . . . is to be regarded in the construction of the Code sections contained in that Part.

I stop at this stage to point out that the exact same chapter heading is in Chapter 27, in which section 285 is contained. The court then continued, and I am looking at paragraph 4 in the headnote:

The terms “necessaries of life” and “necessaries” in section 209 and 210 mean such necessaries as tend to preserve life.

The case itself does not set out section 209 and 210 of the Canadian Criminal Code, but a subsequent decision ‑ ‑ ‑

CALLINAN J:   Mr Kimmins, in this case was it not the fact that the applicants denied to the young woman hygiene, medication, adequate clothing and bedding and exercise.

GUMMOW J:   And food.

CALLINAN J:   And food.

MR KIMMINS:   They are all matters that have been particularised as such.

CALLINAN J:   Well they are all necessaries of life.

MR KIMMINS:   Our submission is that the ‑ ‑ ‑

CALLINAN J:   Or their absence would certainly endanger health and endanger life.

MR KIMMINS:   Well that is the point that we raise at this stage on the appeal and I will go straight to that.  What we submit is that “the necessaries of life” effectively should have been defined as things which tend to preserve life.  The Court of Appeal and also the judge at first instance directed the jury that they referred to things that tended to preserve life or preserve health, and that is the point that we raise effectively, that the authority, over a century, seems to be that so far as “the necessaries of life” are concerned, they relate to the question of preservation of life.

GUMMOW J:   But food is part of that.

MR KIMMINS:   I understand that, your Honour.  In this particular case there were two areas that were particularised by the prosecution.  They were the question of failure to provide adequate food and also the failure to provide the anti-psychotic medication.  On the definition that we have suggested, authorities would seem to show the anti-psychotic medication would not have been a necessary of life.  That would then leave the question of the adequacy ‑ ‑ ‑

GUMMOW J:   Yes, but it makes it an unsuitable occasion to get into these matters, does it not, as Ms Clare points out in 1.3 of her submissions on page 74.

MR KIMMINS:   We submit that if the anti-psychotic medication does not meet the definition of being a “necessary of life”, then that is left to one side.  That leaves the question of the food and we would submit that the jury was wrongly directed, so far as that was concerned.

CALLINAN J:   Well Justice Williams said:

Without the medication Louiene’s health was likely to be permanently injured in the sense that her mental health would deteriorate to an extent where it became irreversible.

Now, if she could not care for herself because she was not getting the medication, then there was obviously – not that I suggest that this is necessarily the test – then a risk to her life.  She could not care for herself, that seems to be plain.

MR KIMMINS:   Yes, your Honour.  The only reference to the question of dying that was raised throughout the course of the trial was referred to by the learned trial judge in his summing up where he quoted a passage from the doctor who testified and that was at the bottom of page 35 of the record book and over to page 36.  More so it is actually at page 36 of the record book about lines 8 to 10.

CALLINAN J:   People do not have to be in, I would not have thought, imminent danger of dying by reason of a deprivation of something for the operation of the section to be invoked.

MR KIMMINS:   No, I accept that, your Honour. What we would submit is that for the section, a reading of 285 and 324 together, is that where there is a duty to provide “the necessaries of life”, ie things which tend to preserve life, and those things are not provided, well then the consequences referred to in section 324, if they come into play, well then the person is guilty of the criminal offence. It is really as to what the interpretation of “the necessaries of life” are and whether the phrase, as used in section 324 bears the same meaning as has been consistently, we would submit, found so far as the same phrase in section 285.

At record 36, as I said at lines 8 to 10, his Honour quoting from Dr Gynther’s evidence, it seems to be the only reference to the possibility of dying where there are a number of matters which were added together, that is, the “emaciated condition” of Louiene on admission together with the factor of the faeces and also the question of infections.  So at no stage, we would submit, in the evidence which was adduced at trial, was there any one single statement from a medical practitioner or an expert as such to have indicated that the failure to provide the anti-psychotic medication could have led to a situation that would have shortened her life and the same with the food.

GUMMOW J:   What was your clients’ defence.

MR KIMMINS:   They denied basically, your Honour, that a number of the observations that were made by persons at the time that Louiene was taken in to care was correct and also they submitted that they had provided for her as best they possibly could.  At page 36 of the record, his Honour, when summing up certain matters dealing with ‑ ‑ ‑

GUMMOW J:   But she had not been given the medication?

MR KIMMINS:   No, that is correct.

GUMMOW J:   What was the reason advanced for not giving her the medication?

MR KIMMINS:   The last time that she was actually prescribed the medication was in 1993 when she was last in care, but it seems between 1993 and 1998 there was no observation by any mental health practitioner of her at all.  So for a period of some five years she was living with one or both of the applicants.  The charge itself dealt with a period of seven months prior to when the police arrived and that was between 31 December 1997 and 26 August 1998.  It seems that the medication that she was prescribed in 1993, when she was discharged from hospital, was found not to be suitable when she was admitted on this occasion and other prescription drugs were prescribed for her.

At record 36 underneath the reference that I have made before from where his Honour is quoting from the evidence of the doctor, his Honour summarises some of the factors that were brought out in cross‑examination by counsel at first instance.  Between lines 20 and 30:

Mr Farr asked about the withdrawal of medication and the doctor said there would be not a sudden, but a gradual deterioration that might be expected to occur after the withdrawal of medication.  He agreed with Mr Farr that the papers showed that the complainant had shown in the past an unwillingness to eat.

So she herself had been ‑ ‑ ‑

GUMMOW J:   Was there any further medical advice sought over this period?

MR KIMMINS:   There is no evidence in relation to that, your Honour.  Probably the Queensland decision, where reference was made to Brooks’ Case, was a decision of McDonald & McDonald (1904) St R Qd 151. That dealt with two persons who were eventually convicted of the offence of murder. A question arose as to what duty the applicants did in fact have so far as the relevant child was concerned. Reference was made to section 285 throughout the decision of the court. I take the Court to page 178 in the decision of Mr Justice Chubb, at approximately line 40, second paragraph from the end, where his Honour referred to:

Now as to medical aid.  Is that a necessary of life?

It then refers to an English decision of Senior and then follows up with the decision in Brooks, which is the decision that I referred the Court to at the start of my submissions, referring to:

such necessaries as tend to preserve life.

His Honour then went on to talk about their:

medical aid and remedies promptly applied and administered, do tend to, in many cases, prolong, if not altogether preserve life.

Further, about six lines from the bottom of that page, his Honour is referring to a doctor, Dr Hewer, who stated that:

if the witness, (Dr Hewer), had been called in two or three months before death; that treatment by a competent person would have prolonged life.

GUMMOW J:   Now these convictions were affirmed, I see.

MR KIMMINS:   They were, your Honour.  The reason I take the Court to that is Mr Justice Chubb there accepted for that particular case what was decided by the Canadian Court of Appeal in Brooks as to the meaning of “the necessaries of life” extending only to preserving life.

GUMMOW J:   It depends what you mean by “preserve”, of course.

MR KIMMINS:   Well, his Honour also used the word “prolonged” there.

GUMMOW J:   Yes, I see that.

MR KIMMINS:   “Prolonged, if not altogether preserved”.  So even if one added both together the definition of “the necessaries of life” should have been that it was a thing which tended to prolong or preserve life, which is different from what was directed in the instant case.  In the instant case the relevant direction that his Honour made was at page 21 of the record book about line 19, where he started off:

Now, what are the necessaries of life?  Well they are such things as tend to preserve one’s life or one’s health.

The reference that his Honour made there to what are “the necessaries of life”‑ his Honour then continued down talking about “a bad cold” and something “transient”.

CALLINAN J:   What do you say, precisely, is the error in the summing up?  What was the misdirection, if any, that you say his Honour gave?

MR KIMMINS:   What I took the Court to there, the reference to one’s health; that it should have been to a thing which tended to preserve one’s life, and that was the necessary of life.

CALLINAN J:   Well that is what good health does, it preserves life.

MR KIMMINS:   Well it depends.  So far as the question of the anti‑psychotic medication as to whether that could be said to be a thing that tended to preserve life or prolong life, as such, in itself.

CALLINAN J:   I would not have thought there could be any doubt about it, Mr Kimmins.  A schizophrenic person unable to care for herself, to deprive her of the medication would inevitably have endangered her life.  Even the most elementary knowledge of schizophrenia would tell you that.

MR KIMMINS:   We would, in the circumstances, submit that the jury was wrongly directed, as it was, in the sentence that I took the Court to, where a lesser standard, we would submit, was placed before them as being the test for “necessary of life” and, as such, there was a misdirection by his Honour to the jury when he allowed them to consider, even if they found that the relevant factors they had to consider particularised matters, they had to consider ‑ or preserved one’s health, then we would submit that in the circumstances that would be a misdirection and it would be a lower standard than has been accepted over the past century as to what a

“necessary of life” was.  I do not know whether I can advance that any further.

GUMMOW J:   Yes, thank you. 

In this matter we are satisfied that there was no misdirection and, accordingly, any further appeal to this Court would have no prospect of success.  Accordingly, the application is refused.

AT 3.43 PM THE MATTERS WERE CONCLUDED