Police v MN

[2024] ACTMC 11

MAGISTRATES’ COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v MN

Citation: 

[2024] ACTMC 11

Hearing Dates: 

25 March 2024 and 26 March 2024

Decision Date: 

15 April 2024

Before:

Magistrate Burt

Decision: 

I find the Defendant not guilty of the offence charged.

Catchwords: 

CRIMINAL LAW – NEGLECT – elements of an offence of neglect pursuant to s. 39 of the Crimes Act 1900- very cluttered environment- proper or adequate care in the circumstances –omissions by both husband and wife - recklessness.

Legislation Cited: 

Crimes Act 1900 (ACT)

Children and Community Services Act 2004 (WA)

Children and Young People Act 2008 (ACT)

Children, Youth and Families Act 2005 (VIC)

Children, Young Persons and Their Families Act 1997 (TAS)

Children and Young Persons (Care and Protection)Act 1998 (NSW)

Criminal Code Act 1899 (QLD)

Criminal Code 2002 (ACT)

Criminal Code Act 1995 (Cth)

Criminal Code 1983 (NT)

Criminal Law Consolidation Act 1935 (SA)

Evidence Act 2011 (ACT)

Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Magistrates Court Act 1930 (ACT)

Cases Cited: 

Texts Cited:

Gibbons v Perkins [2021] ACTSC 254

Hann v Director of Public Prosecutions (Cth) [2004] SASC 86

Mahmood v Western Australia [2008] HCA 1; 232 CLR 397

R v Atai [2021] ACTSC 157

R v CM [2005] ACTSC 21

R v DM [2010] ACTSC 137

R v JM [2010] ACTSC 35

R v JM (No 2) [2011] ACTSC 60

R v Senior [1898] 1 QB 283

Family Violence – A National Legal Response (ALRC Report 114)

Parties: 

Paul Calatzis (Informant)

MN ( Defendant)

Representation: 

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Defendants)

File Numbers:

CC 9231 of 2022

MAGISTRATE BURT:

Introduction

1․ On 25 and 26 March 2024, the defendant appeared at a hearing in the Magistrates Court of the ACT. On the first morning of the hearing, the defendant plead guilty to a separate and distinct charge of assault. That plea is irrelevant to my determination of the charge of neglect.

2․ The prosecution case is that on 15 August 2022, the defendant’s house had a ‘lack of cleanliness’ and that this constitutes ‘neglect’ contrary to s 39 of the Crimes Act 1900 (ACT). The charge relates to the defendant’s daughter who I will refer to as EK. EK was 8 years old at the time of the offence. There were two other children living in the house at the time of the offence, but the prosecution charge only relates to EK.

Non-publication

3․ The child witness’ identity has previously been suppressed by this Court. Given that this proceeding relates to a child complainant and an allegation of neglect, pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), I order that the names of the witnesses, including the accused, should not be published in the interests of the administration of justice. I note that s 111(5) of Evidence (Miscellaneous Provisions) Act 1991 (ACT) forbids references or allusions which may disclose a witness’ identity. If the names of the other witnesses who are family members of EK are published, her anonymity will not be preserved. Further, in the hearing there was evidence of EK’s contact with the Child and Youth Protection Service (‘CYPS’). Consequently, it is likely s 712A of the Criminal Code 2002 (ACT) prohibits the publication of the child or family member’s identity, even in the absence of my order.

Questions for determination

4․     Ultimately, as I explain below, I am not satisfied that the house had a ‘lack of cleanliness’ but I am satisfied that it was very cluttered. There are several questions for determination in establishing the charge of neglect:

(a)The main question for determination is whether the defendant’s conduct, in providing a very cluttered environment for EK constitutes ‘neglect’ for the purpose of s 39 of the Crimes Act 1900 (ACT).

(b)Further, there is an issue of whether the defendant’s omissions, as opposed to her then husband’s, accounted for the very cluttered environment.

(c)There is also a question about whether in the particular circumstances and with the means available to the defendant the state of the house constituted neglect.

(d)Finally, there is a question of whether the defendant had the relevant state of mind, that being either recklessness, or intention to undertake the conduct which amounts to neglect.

Directions

5․     In determining this charge, I give myself the following directions.

6․     A critical part of the criminal justice system is the presumption of innocence. The burden or obligation to prove the guilt of the defendant is placed squarely on the prosecution. That burden rests upon the prosecution in respect of every element or essential fact that makes up the offence charged. In this case, that burden never shifts to the defendant. There is no obligation on a defendant to prove any fact or issue that is in dispute. It is not for the defendant to prove their innocence but for the prosecution to prove their guilt.

7․     The standard of proof required in this matter is ‘beyond reasonable doubt’. To find the defendant guilty, it is not enough for me to have some preference for the prosecution evidence. The prosecution is not required to prove every single fact beyond reasonable doubt that is in dispute, but only the elements of the charge.

8․     I must have regard only to the evidence in this case. I may accept the evidence in part or in full. I can appraise the evidence of each witness and accept some, all or none of their evidence. I do not have to wholly accept or reject the evidence of a witness. I can accept the parts of evidence which I assess ought to be accepted and reject other evidence. That applies to any evidence called by the defendant, and to prosecution witnesses.

9․     Where a defendant gives evidence, as occurred in this case, that evidence should not be subject to any greater scrutiny because it is the evidence of a person accused of an offence. I am free to accept some, all or none of that evidence. The fact the defendant has given evidence and relies on an account given in an interview by police does not alter the burden of proof. The defendant does not have to prove that their version is true.

10․    Even if the evidence relied upon by the defendant is not positively believed, I must not convict if that evidence gives rise to a reasonable doubt about guilt. So, if I believe the defendant’s evidence then it follows that I must acquit. If I find difficulty in accepting the defendant’s evidence, but think it might be true, then I must acquit. But if I do not believe the defendant’s evidence, then I should put that evidence to one side and still ask myself whether the prosecution, upon the basis of evidence that I do accept, has proved the defendant’s guilt beyond reasonable doubt?

11․    My role involves determining the facts and determining whether the relevant elements are established. I must bring an open and unbiased mind to the evidence as discussed in R v DM [2010] ACTSC 137 at [18]. I must consider the facts logically and rationally. I must reach a decision free of ‘partiality, prejudice, favour or ill will.’[1]

[1] R v Atai [2021] ACTSC 157 per Mossop J at [9]

12․    In Gibbons v Perkins [2021] ACTSC 254 Mossop J observed:

Finders of fact need to decide how humans are likely to have behaved. Assessments of human behaviour in the social context at issue in any particular case are obviously fundamental to the fact-finding process: see generally Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91 at [133]- [137]. In that process, it is entirely appropriate for the finder of fact to have regard to what they perceived to be “the apparent logic of events”: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [31].

Evidence at hearing

13․    An annexure to this decision contains a more detailed recitation of the facts. In summary, on 18 August 2022, the Australian Federal Police (‘AFP’) took the ‘Body Worn Camera’ footage of the defendant’s home. It depicts a very cluttered environment. Most surfaces are covered with clutter. Clutter obstructs the benchtop and ready access to some parts of the home. It depicts mould in a baking dish on the stove top, chicken bones and bags of rubbish on the kitchen floor, and numerous bottles of baby formula on the bench.

14․    A witness from CYPS, Hannah Siiteri (‘Siiteri’) also made observations of the state of the house on 18 August 2022 and these were consistent with the footage from the day. The AFP informant, Senior Constable Calatzis (‘Calatzis’) also gave evidence about the home.

15․    The only evidence about observations about the state of the house on the charge date, 15 August 2022, was given by EK herself. EK gave evidence that parts of the house were messy and parts were clean.

16․    At the hearing, the defendant and her former husband, CH, gave evidence about the defendant’s state of health and capacity to attend to household tasks at and around 15 August 2022. CH gave evidence that at the time of the AFP attendance, the defendant was responsible for cleaning in the house at that time. CH gave evidence that the defendant had capacity to clean and had recovered from her C-section. Later in this decision, CH’s credibility will be considered.

17․    The defendant gave evidence that at the time the AFP attended, she was caring for a three-month old newborn, a 15-month-old toddler and EK. She gave evidence she had undergone a C-section for the birth of the youngest baby. This was her first C-section and she described it as “major surgery.” After the C-section, she was restricted in terms of her ability to attend to the housework. The C-section had a considerable physical impact on her, and it appears she was in significant pain. She had urinary and faecal incontinence at the time and into 2023. She was herself, wearing nappies and engaging in exercises to strengthen herself. She had ongoing neurological impacts because of complications from her C-section including impediments of her ability to walk and neurological pain. She was prescribed an anti-depressant and treated for bipolar. She describes that at the time after the birth and before the AFP attendance, she was only able to get up to clean for about ten minutes at a time without needing to rest. She was prescribed two types of pain medication, some of which was administered when her pain was too great.

The offence of neglect

18․ Section 39 of the Crimes Act 1900 (ACT) (‘the Act’) provides:

Neglect etc of children

(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.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

(2)     A person is not guilty of an offence referred to in subsection (1) (b) by reason only of failing to provide a thing for a child if the person did not provide the thing because he or she could not afford to do so.

19․ Parental responsibility is defined in s 39(6) of the Act as a person who has ‘all the duties, powers, responsibilities and authority parents ordinarily have by law in relation to their children.”

20․    The prosecution provided an ‘aide memoire’ which sets out the elements of the offence of neglect. The defendant agreed that this document reflected the relevant elements which the prosecution must prove. The prosecution elements are:

(a)The Defendant;

(b)Neglects;

(c)A Child;

(d)Who is in the person’s custody;

(e)Defendant intends to undertake the conduct amounting to neglect or defendant is reckless that undertaking that conduct would amount to neglect.

21․    The issues in contention in this matter are (b) and (e). There is no issue about the identity of the defendant and there is no issue as to EK being a child. Nor is there any dispute that EK was in the defendant’s custody.

Establishing neglect for the purpose of s 39

22․    In R v CM [2005] ACTSC 21 (‘CM’), Crispin J observed that (at [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…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.

23․    In CM, Crispin J concludes, at [23] ‘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.’ Essentially, the prosecution contend that the defendant failed to provide adequate or proper lodging and thereby neglected her.

24․    In R v JM (No 2) [2011] ACTSC 60, Refshauge J determined the principles to be applied in determining a charge of neglect pursuant to s 39 of the Crimes Act 1900:

The principles I there found, and which I apply here, were:

(a) Neglect means, in my view, what Lord Russell CJ defined it to mean in R v Senior [1899] 1 QB 283 (at 291):

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 – that is, in such a case as the present, provided the parent had such means as would enable him to take the necessary steps. I agree with the statement in the summing-up, that the standard of neglect varied as time went on, and that many things might be legitimately looked upon as evidence of neglect in one generation, which would not have been thought so in a preceding generation, and that regard must be had to the habits and thoughts of the time.

(b) The offence does not require actual injury or harm to the child but proof that the care was less than proper or adequate in the circumstances.

(c) The prosecution must prove that the failure to provide less than reasonable care was intentional or reckless.

Complex interaction between criminal law and protective legislation

25․    Neglect, as prescribed by the Crimes Act 1900 (ACT) is drafted in general terms. Unlike in the related child protection legislation, neglect is not defined in the Crimes Act 1900 (ACT) itself.

26․    According to the Australian Law Reform Commission (‘ALRC’) report ‘Family Violence – A National Legal Response’[2] there is a complex relationship between the criminal law and the issues of care and protection which arise when there are allegations of neglect. The ALRC dealt with this topic, in its report, at 20.27:

[2]  Family Violence – A National Legal Response (ALRC Report 114) / 20. Family Violence, Child Protection And The Criminal Law / Criminal Offences Relating To Child Protection

As discussed previously, there is a fundamental distinction between criminal law, on the one hand, and civil law—child protection and family violence legislation—on the other hand. The former looks to past behaviour, with a focus on punishment of the offender and retribution for the victim, while child protection and family violence legislation are forward-looking. Their common and principal objective is to protect and secure the future welfare of those who are at risk of harm caused by family violence—typically by imposing conditions that regulate the behaviour and movements of those who have committed family violence.

27․    The ALRC report explains the role of specific offences in the criminal law. At [20.10] the report states:

The creation of specific offences recognises that the criminal law has an important role to play in child abuse and neglect, on the basis that a function of the criminal justice system is to define acceptable standards of behaviour. Prosecution of an offender when those standards are breached sends a clear message to the community, denounces abusive or neglectful conduct, punishes the offender and acts as both a specific and general deterrent, to prevent the offender and others from committing or recommitting the same offence. The importance of the criminal law in labelling child abuse and neglect as unacceptable and a violation of children’s rights was emphasised in a number of submissions to this Inquiry.

28․    The ALRC considered various submissions about the appropriateness of proceeding with criminal charges of neglect, as opposed to referring the matter to the relevant child protection authorities. Victoria and Tasmania were the only states to comment about the prevalence of charges for criminal neglect. It was noted that criminal prosecutions for neglect were rare.[3] Helpfully, the prosecutor in this matter had also made enquiries about the prevalence of prosecutions for neglect in the Australian Capital Territory. Prosecutions in this jurisdiction are also rare.

[3] ALRC report 114 at 20.30 and 20.31.

29․    Although the Crimes Act 1900 (ACT) does not define ‘neglect.’ For the purpose of determining whether protective orders should be made in relation to a child, the Children and Young People Act 2008 (ACT) provides a definition at s 343:

neglect, of a child or young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person. 

30․ In the ‘child protection’ jurisdiction, a yardstick for what constitutes neglect is established. Further, section 334 of the Children and Young People Act 2008 (ACT) is titled, and answers the question “[w]hen are children and young people at risk of abuse or neglect?” The answer includes where “on the balance of probabilities there is a significant risk of the child or young person being abused or neglected.” Several examples are provided in that section to understand possible circumstances that would constitute neglect.

31․    The legislative test for neglect in the child protection legislation requires an assessment of whether the failure to provide a necessity of life has caused or is causing significant harm. Such a “yardstick” is not an express part of the statutory definition of neglect as defined in the Crimes Act 1900 (ACT).

No necessity to establish actual harm to establish an offence of neglect

32․    In R v JM [2010] ACTSC 35 Refshauge J considered whether the prosecution must establish harm or injury to prove the offence of neglect.

33․    His Honour considered a Canadian case where it was determined that to establish neglect, the prosecution must prove “there was actual injury to the child” [at 55]. He also considered a case from the United Kingdom where [at 58]:

the relevant UK statute makes it an offence if a person who has custody of a child under the age of 16 years, “wilfully assaults, ill-treats, neglects, abandons or exposes him or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause him unnecessary suffering or injury to health.

34․    In R v JM [2010] ACTSC 35, Refshauge J states, at [69]:

I am satisfied that neglect in s 39(1)(b) of the Crimes Act 1900 (ACT) does not require actual harm or injury to be caused so long as there is a failure to provide adequate or proper lodging, food or clothing or nursing, medical or dental care.

35․ In the ACT, to establish neglect, the prosecution does not need to establish actual harm or injury. The words of the offence provision do not expressly provide a “yardstick” of actual harm or even likelihood or risk of harm. A survey of similar offences in each other jurisdiction around Australia reveals that to prove criminal neglect, the prosecution must establish, variously, that harm is actually caused, or there is an injury, or there is a likelihood of harm or significant harm, or that a child’s development is significantly damaged.[4]

[4] Children and Community Services Act 2004 (WA) s 101. ‘Harm’ is defined as any detrimental effect of a significant nature on the child’s wellbeing: s 28(1); Children, Youth and Families Act 2005 (Vic) s 493; Children, Young Persons and Their Families Act 1997 (Tas) s 91(1); Children and Young Persons (Care and Protection) Act 1998 (NSW) s 227; Criminal Code Act 1899 (Qld) s 364; Criminal Law Consolidation Act 1935 (SA) s 14; Criminal Code 1983 (NT) s 184

An assessment of the risk of harm to the child is inherent in the approach of Refshauge J in JM [No.2]

36․    In R v JM [No. 2] [2011] ACTSC 60 (‘JM [No. 2]’) it was alleged JM neglected her children because of a want of proper and appropriate accommodation for them. Refshauge J considered whether the children were being properly and adequately cared for and whether there were risks that the children would be harmed.

37․    The prosecution of JM related to a period when there was a concern expressed by Child Protective Services (CPS) at the time of a “deteriorating home environment” (at [29]). The prosecutor submitted that “the children were put at risk and it did not amount to a safe and adequate home.” There were health issues and safety issues in the home. It was observed that the house was messy and “it was difficult to gain access to the room and impossible to walk across the floor without walking on things” (at [29]). CPS later expressed concerns regarding mouldy food and a dirty floor. There were ‘trip and fall’ hazards and a potential fire hazard (at [32]) There were hinderances to access and egress. Sharp knives were accessible to the children. There was an opened dog food can leaving a “very serrated and dangerous edge.” There was vomit in the kitchen sink and faeces in the bathroom. There was a bottle of cloudy ammonia without the lid on and which was accessible to the children. On another visit there were concerns expressed about a suffocating odour and putridity. There was visible mould and a smell of vomit. Further, “there was no ready access to running water, clean toilet facilities, clean shower facilities or safe sleeping arrangements.” On a later visit, there was evidence that JM had left her four children aged 5, 7, 10 and 13 at the residence alone.

38․    Refshauge J was satisfied that the “condition of the house of that evening was such that I could find it amounted to neglect of the children” [at 113]. His Honour states “[i]n the first place, that JM left the children in a house for over an hour and a half, could well amount to neglect in itself, given the clear risks to their safety and hygiene that it provided.” He was concerned that “for there to be food on the floor near or next to the dog faeces is an obvious risk with small children.” He referred to the serrated top of the dog food tin and ammonia as “accidents waiting to happen.” He observed “[o]ne or two may be excusable with the ordinary vicissitudes of life and carelessness but together they form a strong and clear pattern of risk that amounts to neglect.” His Honour was concerned about “obstructed access and egress” from the house itself and from the rooms in event of an emergency. He observed there was food outside its use by date and an absence of nutritious food.

39․In this matter, the prosecution submitted that to establish neglect there must be a “possibility” or “anticipation” of harm established. The prosecution position reflects the fact that is not the condition of the house, per se, which brings the matter before the Court. It is the impact of the condition of the house on the child.  As Crispin J observed in CM the offence provision does not expressly criminalise specific aspects of proper care of a child. It does not state, for example, that a failure to provide proper or adequate accommodation is a criminal offence. Instead, it is in the effect on the child, that is because of the child’s ‘neglect’ that criminal culpability arises. This case brings this issue into sharp relief because the prosecution has not, as part of their case, asserted any particular risk of harm that was suffered by EK other than the ‘lack of cleanliness’.

40․The approach of the authorities, which is consistent with the prosecution position in the hearing is that there is a ‘yardstick’ for what constitutes neglect which relates to the potential harm experienced by the child. The prosecution contend that it is the possibility or anticipation of harm which must be established. In my view, this sets the bar too low, and is not consistent with Refshauge J’s approach in JM.

41․In my view, an analysis of Refshauge J’s decision in JM is that to prove neglect the prosecution is required to establish real risks, or risks of significant harm. His analysis looks at the situation overall in the home, indicating that some level of risk is tolerable, but in those circumstances given the nature of the risks to the children, the risks were unacceptable and constituted neglect.

42․In my view, after attempting to understand the approach in the authorities, and notwithstanding the lack of specific reference in the legislation to any “yardstick”, the prosecution must establish a real risk of harm to establish criminal neglect.  Further, an assessment of whether there is a real risk of harm requires an assessment of the likelihood of any risks arising and the gravity of the consequence should the risk arise.

Defence submissions

43․    The defence position is that I cannot be satisfied that the ‘lack of cleanliness’ in the house on 15 August 2022 constituted neglect. Further and in the alternative, it is submitted that I cannot be satisfied that it was the omissions of the defendant that constituted neglect. The defendant argued that the duty of the parents to clean the house was a duty owed by both parents, and I could not be satisfied that the defendant’s omissions, as opposed to her husband’s, were the omissions which constituted neglect. Finally, the defence argue that I could not be satisfied as to mens rea specifically of the defendant’s “recklessness”.

Factual findings about the state of house on 15 August 2022

44․    As described the only direct evidence of the state of the house on 15 August 2022 was given by the child witness, EK. I have reservations about her evidence given her young age combined with the period elapsed since the observations and the fact that the evidence was about detailed observations about mundane aspects of the home environment. Her evidence essentially was that parts of the house were messy (her bed, her younger brother’s toys etc) and parts were clean. Other parts, in particular the walls and floor of the kitchen were clean. EK appeared untroubled by the state of the house.

45․    The prosecution asks me to infer, from my own life experience and common sense, that the state of the house on 15 August was unclean. I am prepared to accept that the house would have been very cluttered. The prosecutor submitted to me that the visible build-up of clutter would have occurred over months. I accept that is so.

46․    However, I cannot accept that the house was necessarily unclean in the sense of unhygienic on 15 August 2022. Although there appeared to be mould in a dish on the benchtop on 18 August 2022, I cannot be satisfied that the mould was present on 15 August 2022. No expert evidence was called about how long it takes mould to grown on a dish of old pasta (which appeared to have meat in it). Although Calatzis appears to have some training about mould, he did not express an opinion about how many days mould might have been present on the dish.

47․    I note that in the interview, the defendant stated that on 18 August 2022 she had been out all day with appointments for the children. I could not exclude the hypothesis that the mould had not grown on the dish that day, the 18 August 2022, or the day before.

48․    Even if I was satisfied that the mould was present on the 15 August 2022, I am not convinced this posed a sufficient risk to EK to constitute neglect. As a matter of common knowledge, mould spores represent a danger of some kind to the safety of the child. But the likelihood of the child being harmed by the presence of mould spores on one day appears remote. Further, it may be that if a child ate mouldy food it would create a risk of them developing some kind of short-term illness. The dish was placed on a fry pan on the back burners of the stove top. It was, in my view, likely to be inaccessible to EK. In these circumstances, the risk posed to EK from mould spores does not amount to such a risk that I could find the charge of neglect proved.

49․    Similarly, I cannot be satisfied that the chicken bones and rubbish were on the kitchen floor on 15 August 2022. EK gave evidence the floor was clean on 15 August 2022 and the defendant acknowledged that when the AFP arrived that she had not had time that day to clean up. The bones on the kitchen floor were gnawed of meat. Even if the bones were present, in my view the chance of EK having any adverse impact from those bones was very remote. I cannot be satisfied that these bones represented any real risk or danger to EK.

50․    On 18 August 2022, Siiteri thought she stepped on a piece of chicken skin in the lounge room. Siiteri did not appear to be sufficiently certain of this observation for it to warrant further consideration.

51․    Further, I have no evidence the bottles of baby formula were present on 15 August 2022. During the interview, and the hearing, much was made of the number of bottles that were present. It was also suggested that the formula was old. It did appear that the formula was of varying colours. Ultimately, given the number of feeds that the baby and the 15-month-old had during the day, these bottles may well have built up over a period of 24 hours. I do not consider the presence of the bottles to pose any risk to EK, who was certainly not bottle fed, and who made her own lunch to take to school that day.

52․ Even if I was satisfied that the dish of mouldy pasta was present on the 15 August 2022, and the chicken bones were on the floor, the cumulative risks posed by those items were not significant enough risks that I would be satisfied that their presence, even when combined with the clutter discussed below, met the threshold for neglect for the purpose of s 39 of the Crimes Act 1900 (ACT).

53․    In all the circumstances, I can only be satisfied that the house was very cluttered on 15 August 2022. I will consider below, whether that very cluttered environment constituted neglect in and of itself.

CYPS involvement

54․    Given the state of the house, CYPS were of the view that the house ought to be improved. As of 18 August 2022, this process occurred on a voluntary basis, with the defendant agreeing to attend to the house while the children stayed with a neighbour. There was no resort to the child protection legislation. I note in R v JM (No 2) [2011] ACTSC 60 the state of the house part way through the charge period also did not require emergency action to remove the children.

55․    The fact that CYPS did not act to compel protection of the children by Court order, does not preclude the prosecution bringing a criminal charge, especially where the test to be applied is a different statutory test. CYPS’ view does not affect my determination of the charge. In my view, their opinion does not bind me to make any particular determination about whether criminal neglect is established. However, it would produce a perverse outcome that if I were to find the charge proven, based on similar facts, there was no intervention under the child protection legislation.

Neglect based on a very cluttered environment

56․    Neglect is charged here in the absence of an articulated risk of harm to the child. It is based solely on the “lack of cleanliness.”  As I have found, I cannot find the house was in an unhygienic state given the evidence before me. In my view, I can be satisfied the home was very cluttered on 15 August 2022.

57․    In the absence of the prosecution articulating particular risks to EK arising from the very cluttered home, I can approach the matter with common sense and life experience. This clutter may well have caused day-to-day impediments for those who lived in the environment. There may have been an increased risk something would fall off the surfaces. This may have resulted in pain. There was not space for EK to easily draw or write without first clearing space. This may have impeded development.

58․    Although the house was very cluttered, most areas remained accessible. The exception to this was the parents’ bedroom, access to which was partially obstructed. According to EK, the kitchen floor was clear. The hallway was still accessible. There was some floor space in the children’s rooms. The dining table, while messy and cluttered was still, it appeared, being used for mealtimes.

59․    If there was a fire, the house may pose a greater risk of quickly burning because of the density of items. The defendant’s bedroom might have been difficult to exit quickly, and there may have been a delay in attending to the children in the event of an emergency because of having to climb over clutter in the defendant’s room. For these reasons, the environment needed to be rectified and was not appropriate for a child on an ongoing basis.

60․    However ultimately, although the consequences of the risks were potentially grave, given the very low, and speculative likelihood of the risks arising, I am not satisfied that the state of the house constituted neglect. There was some possibility of harm, but in my view, it was a remote possibility of harm on 15 August 2022.

61․    If a child was subject to these risks for a prolonged period, or if there were proven impacts on the particular child, psychologically or emotionally, then at some point such a cluttered environment may pose a risk of harm to the child. But in my view, exposing a child to a very cluttered environment on one day does not amount to a want of reasonable care by way of a failure to provide appropriate lodging. The risk of harm to EK is speculative and too remote to amount to a real risk of harm. I note in JM (No. 2) there was evidence of persistent risks in the home environment over about 3 weeks and real risks to the safety of the children.

62․    Notwithstanding my conclusion that the very cluttered state did not pose a real risk of harm to EK, consideration of the defendant’s responsibility for the omissions which resulted in the state of the house, and consideration of her means and circumstances are alternate reasons why I cannot be satisfied, beyond a reasonable doubt, she neglected EK.

Credibility of the defendant and record of interview

63․    The defendant gave an account that she had extremely limited capacity to address the clutter in the home, and that she was jointly responsible with her uncharged husband for the cleaning of the house.

64․    Generally, I found the evidence of the defendant credible, cogent and consistent. She described in detail her experience after her C-section. She did not produce medical evidence which corroborated her medical condition but she was cross examined in the hearing.

65․    The prosecutor raised an issue about the credibility of the defendant because of a failure to provide information about her medication to the AFP on 18 August 2022. The defendant was asked about a series of questions from the record of interview, which were:

Q 80: Yeah. Have you had any dealings with police of investigating officials in the last 48 hours? A: No …

Q 82: Have you consumed any drugs recently? A: No

Q 83: Have you consumed any medication recently? A: Um, I take my normal medication

Q 84: Yeah. And how does that make you feel? A: My normal medication?

Q 85: Yeah. A: Ah, it just helps for me, like- you know, it’s fine. I get it prescribed by the doctor and stuff.

Q 86:  Yeah. Do you feel well enough to participate in this interview? A: Um, yes.

66․    The prosecutor submitted that the level of detail provided in the hearing was greater than given to the Police, especially in relation to whether it impacted on her capacity to be interviewed. The prosecutor suggested this was indicative of an attempt to conceal the truth, or unwillingness to give the Police the full information on 18 August 2022. The prosecutor submitted this was relevant to my assessment of whether the defendant was a witness of credit, and what her state of mind was at the time of the offence.

67․    I accept that the defendant provided more detail to the Court about her medical issues during the hearing in examination-in-chief, than was provided in the defendant’s interview. However, she was never explicitly asked questions about exactly what medication she was on, and what that medication was prescribed for, and she was otherwise candid. The relevance of her medical issues and medication was never linked to the issue of neglect during the AFP interview.

68․    Given the circumstances of the interview, I am not troubled by the defendant failing to provide greater detail about her medical issues on 18 August 2022. Although she was informed that she was being interviewed for an assault, and cautioned, she was not told about the neglect allegation until about the thirty-fourth minute of the interview. She had, by that time, been questioned extensively about the state of the house.  It is my view that the defendant would have been confused by, if not distrustful of the police after they questioned her extensively about neglect before informing her of that charge. Calatzis appeared to be in possession of a document produced by EK at the outset of the interview. I infer from this that it was not a surprise to the AFP that ‘neglect’ was an issue in the interview and no explanation is provided as to why she was not informed of that charge at the outset. The conduct of the interview in this way eroded her ‘right to silence’ in relation to the charge of neglect and provided a problematic environment for her to give a full, truthful account.

69․    Further, the defendant did not have a proper opportunity to seek legal advice about the charge of neglect before she was interviewed about it. The defendant was advised she could obtain legal representation when she was advised the interview was about the assault, and that she was informed these were “ongoing rights”. However, because she was questioned about neglect before she was aware of the potential charge, the defendant did not have a proper opportunity to speak to a lawyer about that charge. She may not have understood the relevance of her capacity to clean, and arrangements in the home given this lack of opportunity to seek advice. I note the defendant was a person with very limited prior contact with Police.

70․    Further, during the police interview, Calatzis briefly discussed his own personal circumstances at home. This may also have had an impact on the information provided by the defendant in the interview. This may have affected her candour as there was an implicit personal comparison with the police officer’s circumstances.

71․    Given the issues with the interview, I am not concerned by the fact that the defendant did not provide a more detailed medical history to the AFP. I reject the proposition that the defendant was attempting to conceal the truth or failing to provide a full account to the Police. Rather, I found her credible and she provided a detailed, plausible account.

Was it the omissions of the defendant that created the cluttered environment?

72․    Two married adults were residing in the home and only one adult is charged with neglecting EK. CH and the defendant shared responsibility for the household. It appears CH, was not interviewed, but he gave a statement to the AFP. Calatzis’ understanding was that in that statement, CH did not assume responsibility for cleaning and he was working full time. However, in interview with the defendant, the AFP did not explicitly investigate the shared responsibilities in the home, CH’s capacity to clean after work hours or what the arrangement was between the two adults in the house about cleaning.

73․    The mere fact of the working arrangements did not provide the full picture as to who was responsible for cleaning. The defendant, while not working, was caring for three children. CH and the defendant gave evidence that about a week before the AFP attendance, CH had been home full time for a period between May and August on parental leave to assist with home responsibilities.

74․    CH gave evidence it was the defendant who was responsible for cleaning in the house. I did not find CH to be an impressive witness. He was asked on numerous occasions about whether the defendant had any health complications after the birth of the baby, he unequivocally denied any complications repeatedly. It was only when he was asked the last question in re-examination that he explained the defendant had urinary and faecal incontinence after the birth. Also, the fact that he was adamant there were no restrictions placed on the defendant after her C-section, which I find as a matter of common life experience would have been imposed, either calls into question his credibility, or his awareness of the restrictions placed on the defendant. His evidence tended to downplay the experience of the defendant after the birth of the baby. His account was inconsistent with her account. I prefer her account of her own health issues, given the issues I had with his evidence and her own account. I found EK credible, and she provided a logical and coherent account of the circumstances in the house at the time.

75․    CH provided an account that as at the time he returned to work, the defendant assumed responsibility for cleaning the house. This was, of course, only a week or so before the AFP attended. I have accepted, as the prosecution contend, that the clutter in the house had built up over months. Even if I accept CH’s version that for a week the defendant had been solely responsible for cleaning, it is unrealistic to expect that on top of her care obligations to the children, she could have made any real inroads into addressing the clutter in the house.

76․    Certainly, for the period of time immediately prior to the birth of the baby and in at least the six weeks after the birth, the defendant would have been extremely limited in terms of her ability to “de-clutter” the home because of her role attending to three young children in circumstances where she had significant health issues of her own.

77․    In determining this matter, I must be satisfied that it was the omissions of the defendant, which constitute neglect. In circumstances where there were omissions from another person, CH, which contributed to the state of the house, I must be careful attributing any want of proper and adequate care to the defendant. It appears to me that in the circumstances, over the prior, say 14 weeks, CH had a much greater capacity to attend to the “de-cluttering” of house. In those circumstances I cannot be satisfied that it was the defendant’s omissions which resulted in the state of the house.

EK’s overall care

78․    It is, in my view, also relevant to consider the overall circumstances to determine whether there was a want of reasonable care, or a failure to provide reasonable care of EK. In my view, the question of whether the child was provided ‘reasonable care’ can involve a broader consideration of the overall circumstances of the child. It may still be that in circumstances where one aspect of care is wanting, neglect could still be established, for example if a child was not provided educational opportunities or medical treatment.[5] But it is relevant to consider other aspects of the children’s care because it was, in part, by virtue of the time she spent attending to the children that she had limited capacity to attend to the clutter. The other aspects of care provided to the children are also relevant to whether in the overall circumstances the failure to declutter the home amounted to neglect.

[5] For example in R v Senior [1898] 1 QB 283 the father was “proved to be an affectionate parent, and was willing to do all things for the benefit of the child, except [provide medical attention on religious grounds].”

79․    I note that in this case, outside of evidence about the state of the house, there was other evidence of appropriate care.[6] The child was dressed and had breakfast. Her mother made sure she ate breakfast and had her food for school.[7] She had taken the child to school. The child made her own lunch. The defendant “made sure she had her fruit cup”[8] and gave her daughter a spoon.[9] She made sure she had her medication.[10]

[6] Ibid Q and A No 103-104

[7] Ibid Q and A No 124 and 130

[8] Ibid Q and A No 119

[9] Ibid Q and A No 121

[10] Ibid Q and A No 123 and 129

80․    In the interview there was a discussion about the difficulty the defendant has in getting her daughter to brush her teeth “because of her ADHD.”[11] The defendant expressed her frustration trying to get her daughter to brush her teeth.[12] She explained that she has a “star award chart on the fridge” and that when enough stars are earned then they have a movie night to incentivise her daughter to care for her teeth.[13]

[11] Ibid Q and A No 137

[12] Ibid Q and A No 256 onwards

[13] Ibid Q and A No 259-260

81․    The defendant gave detailed evidence about the amount of formula she gave both younger boys.[14]  She explains that she sees the Maternal and Child Health Nurse (MACH) in relation to the youngest baby’s weight.[15]  She explains that the baby was breastfed and that he was not gaining weight sufficiently.[16] The defendant was attending appointments and working with the MACH nurses to monitor the baby’s weight. She was following advice. She appeared to be connected with Uniting Care. She also attended appointments or activities for the older two children.   

[14] Ibid Q and A No 216-233

[15] Ibid Q and A No 222

[16] Ibid Q and A No 241

82․    Overall, it appears from the evidence that the defendant was actively attending to her children and was mindful of the additional support they required. It is relevant to an assessment of her capacity to attend to the de-cluttering at a faster rate because at this time, she was, in fact, busy with the day-to-day tasks of parenting.  This is especially so given the special needs of the children, which required her to attend specific appointments for them. These special appointments were part of what reduced her capacity to declutter.

Did the omissions of the defendant rise to the level of neglect in the circumstances?

83․    Even if I am wrong to construe the offence of “neglect” as requiring some real risk, or likely harm to a child, and therefore to analyse neglect in a cluttered environment on that basis, in my view the authorities consider neglect in the context of particular circumstances, and the means of the parent. EK was an adult in the home and over time she necessarily had some responsibility for the state of the home. In JM [No. 2], in discussing neglect, there is emphasis on what a reasonable parent would do “in the ordinary experience of mankind.” There is also recognition that a want of proper and adequate care requires proof that in the circumstances the care was wanting. Further, in R v Senior [1898] 1 QB 283 there is a recognition that the standard of reasonable parents is expected “provided the parent had such means as would enable him to take the necessary steps” [at 291].  

84․ Although the house was very cluttered, this must be understood in the context of her means. The defendant was caring for three children in public housing. She was residing in a two-bedroom home and every second week there were five people living in the house. This was necessarily a crowded environment, especially given children require items for their care, from clothing to toys to equipment. S 39(2) of the Crimes Act 1900 (ACT) provides a defence if a person “did not provide the thing because she could not afford to.”

85․    Although the defendant was engaged with Uniting, I was not provided with any evidence about their role or support in relation to the house at this time. The defendant’s then husband indicated that he had previously worked with Uniting on the state of the house. It appears that the family needed support to attend to the state of the house, there was no evidence about Uniting’s role as of 15 August 2022.

86․ As is recognised in the authorities about neglect, the standard for what constitutes neglect may change over time. The case law also recognises that a person should not be penalised if taking action is beyond their means. Hoarding is a social phenomenon. To “de-clutter” homes people need to have the capacity to allocate time to the process. The defendant’s family appears to be one where both parents had some work commitments. As a general proposition, an increasing number of families now have two working parents,[17] and so necessarily time and attention of parents for the children and household is scarcer than in previous generations.

[17] See Australian Institute of Family Studies, “Employment patterns and trends for families with children” accessed on 13^th April 2024 at 6:41pm am satisfied having heard the evidence of the defendant, that she had very limited capacity to attend to the issue of the household clutter. I am satisfied that she was attending to the cluttered house as well as she possibly could in the circumstances. I have had no evidence about how the clutter built up in the home. I am satisfied that for, at least 14 weeks before the AFP attended the house, the defendant did not have any meaningful capacity to address the issue of household clutter. No doubt attending to a sleepless newborn with reflux consumed much of her time and energy, let alone the 15-month-old and eight-year-old child. I note that she was recovering from a C-section, and that she had unusual neurological impacts from that procedure. Although each situation is different, I cannot be satisfied beyond a reasonable doubt that EK was neglected by the defendant on 15 August 2022 in these circumstances and with the means available to her. 

Can the prosecution establish that the defendant was reckless?

88․    In R v JM [2010] ACTSC 35 Refshauge J states (at [70]):

The more significant issue is the mental element often called mens rea which is to be proved: As Lord Diplock noted in R v Shepherd,

The notion of a mental element in relation to omissions or failures can be obscure and problematic.

89․    Both parties accepted that the mens rea for the offence of neglect was either intention or recklessness. There is no direct evidence of intention and I cannot infer it existed. The real question is about recklessness. The defendant relied on Hann v Director of Public Prosecutions (Cth) [2004] SASC 86 at [26], by analogy with the Criminal Code Act 1995 (Cth), where Gray J stated “[i]n order to establish recklessness under the Criminal Code it must also be shown that the defendant was aware of the substantial risk. Conscious awareness of risk is required; it is not enough to show that the risk was obvious or well known” (emphasis in original). In that case Gray J states that being aware of the substantial risk means that the defendant “was actually aware of the real and substantial possibility” of the risk eventuating.

90․    There are aspects of the evidence which indicate an awareness by the defendant about the unacceptable nature of the house. She is apologetic to the AFP about the state of the house. Also, she had previously spoken to CYPS about the need to de-clutter. These common, polite statements about the state of the house have little probative value in relation to the question of whether the defendant was reckless as to the neglect of EK.

91․    For the prosecution to establish recklessness in relation to criminal neglect, they must prove that the defendant was aware of the real and substantial possibility that by virtue of her omissions (to declutter) she was neglecting EK. Her state of mind appeared to be that she was starting to declutter the home. Her discussions with CYPS appear to be general, and not related to any particular risks or harm to EK. In the police interview, the defendant said “[w]e run late almost every day because I don’t have, like, you know, three arms and four legs. I don’t have, like – I can only do so much.”[18]

[18] Ibid Q and A No 134

92․    The defendant gave evidence that she was aware of the need to clean the home and had been taking steps to address the risks. She was divesting herself of items and appeared conscious of not acquiring new items. She gave evidence she was cleaning when she was able to attend to the house. I note the family had a connection with a support agency, Uniting, but it appears she required significant additional support to manage her physical and mental health needs in the context of her then husband’s return to work.

93․    I am not satisfied the defendant was aware of a substantial risk she was neglecting EK. The defendant appears to be preoccupied with caring for the children and managing her health issues. I am not satisfied beyond a reasonable doubt that the defendant was aware of a substantial risk that she was providing inadequate housing and neglecting EK.

Importance of carefully considering the prosecution of neglect offence

94․    I conclude with some comments which are not strictly necessary for the determination of these proceedings. It appears that the Director of Public Prosecutions was involved with this matter at the time of the decision to lay the charge of criminal neglect.[19] Such prosecutions appear to be very rare in this jurisdiction and others. There is a significant complexity in determining an allegation of neglect in circumstances where many cases come to the Children’s Court daily for the making of orders because of concerns relating to harm of children. Also, the fact that a criminal charge is laid and proceeded with may impact on the parenting of the child. For the matter to proceed appropriately at court, intermediaries were appointed for two witnesses in these proceedings pursuant to Chapter 1B of the Evidence (Miscellaneous Provisions) Act1991 (ACT).

[19] The procedural history of this matter reveals that the defendant was initially charged with two counts of assault on the 18 August 2022. At a mention hearing a month later, on 20 September 2022, a charge of neglect was brought against the defendant.

95․ The running of this prosecution necessitated, in the view of the parties, a ten-year-old child, EK, giving evidence in criminal proceedings against her mother, in circumstances where she could not avail herself of s 18 of the Evidence Act 2011 (ACT).

96․    Prior to the hearing, EK had been interviewed by Police in relation to the charges of assault. In that ‘evidence-in-chief interview’ she was not asked specific questions about the charge of neglect. Neither the defence, nor prosecution were aware of the child’s evidence on the first day of this hearing. Although the prosecutor did not know what the witness EK would say that was relevant to the question of neglect, his view was that her evidence could go to the state of the house on 15 August 2022 (the charge date) as compared with the 18 August 2022 (the date on which the Police filmed the house). The prosecutor, undoubtedly conscious of Mahmood v Western Australia (2008) 232 CLR 397 (at [27]), determined that EK was a witness who might have been expected to be called by the prosecution as she was living at the house at the time of the charge.

97․ Section 18 of the Evidence Act 2011 (ACT) provides that a person required to give evidence against their “parent” may object to giving that evidence. The Court is then called on to consider the “likelihood” of harm that would be caused “directly or indirectly” to the relationship (s 18(6)(a)) and whether the nature and extent of the harm outweighs the desirability of the evidence being given (s 18(6)(b)).

98․ In this case, s 19 of the Evidence Act 2011 (ACT) applied to EK. Section 19 provides:

Section 18 does not apply in a proceeding for an offence against or mentioned in the following provisions:

(a)an offence against the Crimes Act 1900, parts 2 to 5, that is an offence against a person under 16 years old….

(c)      an offence if the conduct making up the offence is family violence under the Family Violence Act 2016.

99․ An offence contrary to s 39 of the Crimes Act 1900 is an offence referred to in s 19(a) of the Evidence Act as it is situated in Part 2 of the Crimes Act 1900 (ACT). This means that, in this proceeding, EK cannot object to giving evidence because of a likelihood of harm to the relationship.[20] EK cannot be excused from giving evidence against her mother, even if she was concerned about likelihood of harm to their relationship.

[20] See also R v YL [2004] ACTSC 115 and cf R v Wright[2004] ACTSC 83. I note the NT and NSW have provisions equivalent to s 19 of the Evidence Act 2008. In NSW, section 279 of the Criminal Procedure Act 1986 provides, however, that the court may excuse a person from giving evidence against a family member in certain circumstances including where “it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give the evidence, or there is other evidence available to establish those facts” (s 279(4)(b)) and the charge is of a minor nature (s 279(4)(c)) and the application to be excused by the family member is made “freely and independently” (s 279(4)(a)).

100․ Although s 19 of the Evidence Act 2011 is, no doubt, in place for public policy reasons, it may still be that the giving of that evidence does, in fact, 'cause harm’ to the relationship as contemplated by s 18. Further, exposure of the child to the Court processes may also affect the child adversely at the time, and as they mature and reflect on their involvement in the process.

101․    EK gave evidence remotely and with considerable support. Nonetheless, it has been observed that child complainants can find the process of giving evidence stressful and embarrassing. There have been documented psychological impacts on children after giving evidence.[21]

[21] The Australasian Institute of Judicial Administration Incorporated, Bench Book for Children Giving Evidence In Australian Courts, Updated March 2020, p. 26

102․    Further, I note that the defendant gave evidence in this proceeding. To answer the charge, the defendant gave detailed evidence about her physical and mental health. The defendant had experienced a traumatic and undignified period around the time of the birth of her youngest son and was called to account for the state of her home and health in a public courtroom environment.

103․    Criminal neglect matters are complex and the protective needs of children are very important considerations. Children are vulnerable and should be cared for in appropriate environments which allow them to develop and live safely. The laying of a criminal charge in such cases may be a tool to communicate denunciation and deter offenders. However, in my opinion, in the prosecution of such matters, there should be close consideration of the prosecution policy to achieve consistency in the type of cases in which a defendant faces criminal prosecution and sanction.

104․    I find the Defendant not guilty of the offence charged.

I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the decision of her Honour Magistrate Burt.

Associate: Samuel Collett

Date: 12.06.2024

Annexure: Detailed summary of evidence

Evidence of EK

1․     EK gave evidence that on 15 August 2022, her bedroom was messy. She said her clothes were on the floor “a little bit” and her brother’s clothes were on the floor also. She said the fact that her brother’s clothes were on the floor was “like a little bit more normal”.

2․     EK gave evidence that her room had some wardrobes for clothes and little things, like toys, and that the wardrobe was clean.

3․     EK gave evidence that she could remember the state of her room that day (though she did not explain how or why). She confirmed her wardrobe was “very clean.” Her younger brother’s toys were where he left them. She also explained she had breakfast the morning of 15 August 2022 and then got dressed.

4․     EK was asked about the state of her bed. She gave evidence her bed was “messy” as her blankets were “just like at the end of the bed like normal.” EK continued that the walls were white and they were clean.

5․     EK said she then went to the kitchen to make her sandwich. When asked whether the kitchen was “messy or clean”, she said it was “in the middle.” She said the floors of the kitchen were “very clean.” When asked what “very clean” meant she said that “meant like nothing was like on the floor.” She said she did not remember what was on the counter but she saw her Ritalin, which was in a bottle that had its cap on it.

6․     In relation to the dining room, she said the dining room table was messy and there was “random stuff” on the top of it. There were “some bowls” on it, and she could not recall the state of the dining room floor.

Assessment of EK

7․     EK was ten years old at the time she gave evidence. She was asked to recall details about the state of the house on a particular date, more than 18 months beforehand. EK gave evidence about the state of the house on 15 August 2022. She was directed to that date by the prosecutor. She was not asked whether there was anything which caused her to be able to remember that date, which was, at the time of hearing, some 17 months prior. She was asked very specific questions about the house, including, effectively, about when her mother had last swept the floor before the 15 August 2022.

8․     As a matter of common sense, it would seem unlikely that a child could remember such details of the house on a particular day unless there was something exceptional about the day such that the question of the state of the house stood out in her mind. Overall, EK appeared to be untroubled by the state of the house.

Evidence of Senior Constable Calatzis

9․     Senior Constable Calatzis (‘Calatzis’) of the Australian Federal Police (‘AFP’) gave evidence that he attended the defendant’s address on 18 August 2022. During that visit, he offered the defendant a record of interview. Calatzis gave evidence that Detective Sergeant Mick Woodburns’ body worn camera captured the interview.

Record of interview

10․    The defendant was interviewed at her home by Calatzis of the Australian Federal Police. Also present were Detective Sergeant Mick Woodburn, Hannah Siiteri and Tiana Leonard of CYPS.

11․    The admissibility of the interview was not disputed by the defendant. It was led in evidence by the prosecutor without objection.

12․    In the interview, it is apparent that Calatzis had previously spoken to the defendant by phone. No further detail of that conversation was adduced in this hearing.

13․    At the commencement of the interview, the defendant apologises to the officers stating “[S]orry, My house is a bit messy…expected, um, people to come in. Yeah. Sorry. No.”[22]

[22] Q and A No 5, Transcript of AFP Record of Interview, Thursday 18 August 2022 at 3:13pm, MFI 1

14․    Calatzis explains that the conversation will be recorded on body-worn cameras. The defendant later states “[S]orry. It’s – I haven’t done the dishes today.”[23]

[23] Ibid Q and A No 10

15․    At the beginning of the interview, it appears that the parties are having trouble finding suitable places to sit because of the ‘clutter’ on the dining room table.

16․    Calatzis then indicated that his intention is to interview the defendant in relation to an allegation of assault. He says “I want to offer you a change to interview for that offence. It will be a criminal interview with rights…”[24]  Calatzis later says “So- I’m investigating an assault”[25]  “where I suspect you to be the offender.”[26]  Calatzis later says “I’m here today to talk to you about an allegation that you…did commit a common assault.” [27]

[24] Ibid Q and A no 17

[25] Ibid Q and A no 21

[26] Ibid Q and A no 23

[27] Ibid Q and A no 42

17․    The defendant was given the opportunity to speak to a lawyer, and she indicated she would like to speak to a lawyer.[28]  The interview was then suspended, for that purpose. Calatzis told the defendant that she could speak to a lawyer, and he said “[t]hese are ongoing rights. If you want to exercise them at any time, please tell us and we can facilitate that.”[29] 

[28] Ibid Q and A no 53-72

[29] Ibid Q and A no 93

18․    The defendant indicated that in the morning she usually “takes care of, like, the boys. Dress change them.”[30]

[30] Ibid Q and A no 103

19․    There are then five questions of direct relevance to the assault.[31] 

[31] Ibid Q and A no 141-145

20․    The questions asked in the interview then relate to the cleanliness of, and clutter in the home. Questions 146 to question 228 relate to the state of the house. This line of questioning starts with Calatzis telling the defendant about a picture drawn by her daughter which depicts “a lot of clutter.”[32] This document was in the possession of Calatzis before the interview commenced.

[32] Ibid Q and A no 146-147

21․    During that questioning the defendant says:

(a)    That whenever she has a spare moment is when she cleans;[33]

[33] Ibid Q and A no 143

(b)    That she swept the floors two days ago;[34]

[34] Ibid Q and A no 156

(c)    That the dining room table contains dishes from the food they have been eating over the last couple of days;[35]

[35] Ibid Q and A no 158-159

(d)    The dishwasher was full of clean dishes that hadn’t been put away yet;[36]

[36] Ibid Q and A no 161-163

(e)    That she last cleaned the kitchen on the weekend (it was Thursday at the time of the interview);[37]

[37] Ibid Q and A no 167

(f)    There was rubbish on the kitchen floor;[38]

[38] Ibid Q and A no 173

(g)    There were chicken bones which had fallen onto the floor;[39]

[39] Ibid Q and A no 174

(h)    She explains that her children are 8 years old, 15 months old and 3 months old.[40] She had a Caesarean section (C-section) for the birth of her youngest son. 

[40] Ibid Q and A no 184 - 190

22․    It appears from the footage that there is mould growing in a baking dish which appears to contain leftover pasta and is top of the stove top, on top of another dish.[41] 

[41] Ibid Q and A no 117 - 183

23․    When the defendant is asked to identify the mould in a dish on the bench she said, “I don’t know how that’s relevant right now.”[42]  I note that at this point in the interview, despite questioning about the state of the house, she had not been told by the AFP that she was being interviewed for neglect.

[42] Ibid Q and A no 183

24․    At question 191, Calatzis says “[Y]eah, like OK. I’ll put to you that- the allegation that you have neglected your children by keeping them in this environment. Is there anything you’d like to say?” The defendant responds “[l]ike, you said before that this is to do with EK.”[43] Calatzis states “[b]ecause there’s mould growing on the oven, and there’s chicken bones on the floor and every surface is covered in clutter.”[44]

[43] Ibid Q and A no 191

[44] Ibid Q and A no 191

25․    There is then a portion of the interview where the defendant asks Calatzis about whether he has children, and what the work arrangements are in his house. He discloses his own personal circumstances at home. Calatzis tells the defendant that he works full time, he is asked about his wife and confirms his wife also works full time.

26․    Calatzis then asks about the bottles within the kitchen. He counts the bottles that are visible at 15 bottles, in the sink, on the bench and on the dining room table.[45]   She responds that the two younger children, aged 3 months and 15 months both take bottles.[46]  She says these bottles were “all from today.”[47]  She is asked about the dose of formula and whether the children eat solid food.

[45] Ibid Q and A no 210

[46] Ibid Q and A no 134

[47] Ibid Q and A no 207 and 211

27․    Calatzis comments that “[t]hat’s a lot of formula to consume in one day.”[48]  The defendant explains that the Maternal and Child Health Nurse is involved in his care and that he is “only 5.6 kilos.”[49] Calatzis then asks whether she has anything written down saying that the baby should consume that amount of formula and the defendant’s blue book is consulted.[50]

[48] Ibid Q and A no 232

[49] Ibid Q and A no 233

[50] Ibid Q and A no 238 onwards

28․    The defendant explains that the premises is a “two- bedroom” house.[51] Calatzis asks to see the other room, which the defendant refers to as her “personal room” and says the kids do not sleep there.[52] 

[51] Ibid Q and A no 246

[52] Ibid Q and A no 250 and 247

29․    This room is visible on the body worn camera and is verycluttered. The floor is obscured by piles such that to enter the room it would be necessary to walk on piles of clothes.

30․    When the defendant is asked “[d]o you think this household is safe for the three children?” she responds “I just don’t have, like, enough arms and everything. And the fact that I have a small house with three kids, you know, I can only live within my means.”[53]

[53] Ibid Q and A no 261

31․    The defendant explains that she works about “10 hours a month.”[54]  She is asked “[s]o what do you do with the rest of your time?”[55]  The defendant explains she takes care of her children, and that she goes to a lot of appointments. She says “[I] [t]end to their needs. So if they need a shower, I shower them because we don’t have a bath. Feed them. I change them. Put them to bed… day to day activities with them.”[56]

[54] Ibid Q and A no 266 and 267

[55] Ibid Q and A no 269

[56] Ibid Q and A No 269-271

32․    In relation to cleaning, the defendant explains:[57]

[57] Ibid Q and A No 273-274

Cleaning doesn’t always- like, usually, I can start to clean when my partner gets home--- …because when you have two children that hang off you- they’re very clingy- it’s hard to put dishes in the dishwasher….Usually, the dishes are done, but lately, because we’ve been rundown.

33․    She continues to explain that regarding the dishwasher “it’s, we just literally haven’t had the chance yet.”[58] She continues “I have been trying.” She states that CYPS had said that her home had clutter and says “but they understand that it’s- I live in a very small house and it’s very hard…to have things for the kids because the house is not very large. I live in a very small area.”

[58] Ibid Q and A No 276

34․    The defendant was asked “[h]ave you ever told CYPS that you’re going to clean the house?” She said “[y]eah but I have cleaned the house. It’s just, today, you’ve come unannounced, so it’s not like I had a chance to. And I’ve been out all day with appointments and stuff. So, it’s not like I had a chance to even be at home for an hour today, so.”

35․    Detective Sergeant Woodburn says to the defendant “I’ve got concerns about the health and safety of your kids living in this state.” The defendant states “we’re in the beginning of doing all that stuff and so I guess we haven’t’ had a chance to…” The defendant stated that 12 months earlier she had received some outside assistance to clean the house.

36․    At the end of the interview, there is a conversation between Hannah Siiteri (CYPS) and the defendant. During this part of the recording, Siiteri states that she does not think the home is safe for the younger two children. Siiteri makes clear that she is not formally removing the children. The defendant is remanded into custody.

Continuation of evidence of Senior Constable Calatzis after the interview

37․    Calatizis gave evidence that he had asked the defendant questions about the number of baby bottles he could see, and that the reason for that line of questioning was to bolster that it was weeks or months of clutter, rather than clutter that had built up over a short time.

38․    Calatzis gave evidence that he saw the defendant’s ‘blue book’ (a book provided by the Maternal and Child Health Nurses (‘MACH’) to provide information about the baby and track its development) and that there was nothing he saw about the recommended formula for the child being 240 millilitres a day. He conceded in cross-examination that he could not exclude the possibility that the defendant was told to give the baby ten bottles of formula a day.

39․    Calatizis gave evidence that the defendant lived at the address with her partner. He was asked about whether he enquired about the “division of labour in the household” (cooking, cleaning, the chores). He said that in the interview he was told the defendant worked 10 hours a month and the defendant’s partner “was working closer to a more full-time workload.” Calatizis gave evidence that he did not ask about the division of labour, but he asked about who had more time available. Calatzis stated that he asked questions about the “arrangements” in the home and none of those questions lead to an answer [about who was responsible for what aspects of the running of the house]. Calatzis did not interview the defendant’s partner and could not remember whether the defendant’s partner was questioned about the division of labour. Later, Calatizis said that a person who was working full time, still had capacity to clean a house, but had a “reduced capacity.”

40․ Calatizis explained that he had not attended the house three days prior to the 18 August 2022, on the date of the charge, 15 August 2022. But he said “I’ve been attending houses in the ACT for 10 years. I can tell how much rubbish has been built up”

41․    Calatzis was asked about items on the floor of the kitchen, which included chicken bones, he said “I can see that it wasn’t fresh chicken. It was decaying chicken.” He was asked whether he could exclude the possibility that the chicken had fallen onto the floor earlier in the morning and he said “well then you would have a situation where there was chicken on a counter and chicken on a floor.” Calatzis conceded that it was possible that the chicken bones were not on the floor the day before he attended (ie the 17 August 2022).

42․    It was put to Calatzis that he did not know when the items on the floor were put there, and he said, in essence, “it’s more than a single day’s worth.”

43․    Calatzis was asked whether he considered charging the defendant’s partner, CH with an offence of neglecting a child. He was asked about how he excluded the possibility that the state of the house was because CH had not done something. Calatzis said “I don’t think it was a case of breaking it down to an individual item. It was generally the state of the house was unacceptable.” He was asked questions about how he ascertained which of the defendant and her partner was responsible for clearing the house. Calatzis gave evidence that he discussed the possibility of charging CH with his team leader, he said “I thought about then then we worked out the breakdown in terms of who had capacity if he didn’t.” Calatzis explained that if he had charged CH, “it wouldn’t be a case of charging either or, it would be in addition to. So [the defendant] would still be brought to court with charge of neglect, but in addition to. Not one or the other.” His explanation of why he chose to charge the defendant, not her partner, was because of his view that her partner had reduced capacity due to his full time work. Calatzis conceded he did not know the exact capacity of CH to clean the house.

44․    Calatzis was cross examined about how he ascertained that CH had reduced capacity and he said “well, if he had equal responsibility for daily tasks like caring for the children, food, shower- that- and in addition to cleaning.” It was put to Calatzis that he did not investigate whether the arrangement was for equal sharing of tasks. Calatzis agreed that this was a fair assessment, though noted that he did consider charging CH.

45․    It was suggested to Calatzis that CH was the person with primary responsibility for cleaning.  Calatzis explained that he was not sure whether he or Mick Woodburn took CH’s statement but that “[t]here was nothing within that statement about him taking responsibility.” He stated further that when he interviewed the defendant “it wasn’t indicated that CH was the primary cleaner, and none of the answers lead to that.”

46․    Calatizis was asked about his knowledge of the defendant’s medical conditions, and he said he had a vague recollection of discussing mental health.

Body worn Camera footage

47․    Aside from the interview, during the BWC footage the home is visible. It is very cluttered. It is cluttered to the point that there is little clear space on the kitchen bench and dining table. Items on the kitchen bench were generally accessible, such as the toaster. Household items were placed on the top of nearly every surface, such that clutter was present and built up on the walls. The floors were largely obscured by clutter, except in the kitchen and hallway where they were partially obscured. There was rubbish observable in piles on the kitchen floor, and what looked like gnawed chicken bones on the floor. There was mould observable in a pasta dish, placed high up on the bench.

Evidence of Child Protection Worker, Hannah Siiteri

48․    Hannah Siiteri (‘Siiteri’) gave evidence on the second day of hearing in this matter on 26 March 2024.

49․    At the time Calatzis interviewed the defendant, Ms Siiteri was present. She introduced herself to the defendant on the 18 August 2022.[59] She explains that there had been an “appraisal” with another CYPS worker Dana. That the appraisal has been “closed.”

[59] Q and A No 28-34, Transcript of AFP Record of Interview, Thursday 18 August 2022 at 3:13pm,

50․    In evidence, Siiteri gave evidence that she was employed by Child and Youth Protection Services (‘CYPS’). She is a qualified social worker who had been working for the at CYPS since late 2020.

51․    Siiteri gave evidence that she had attended the house on 18 August 2022 with the AFP. She recalled that as she entered, the initial hallway was clearer but at the end of the hallway there was a lot more clutter filling the space. She said:

I recall seeing items coming in off the walls almost in a layering manner of clutter. That’s something that’s often associated with hoarding and I would say that house constituted that, upon reflection.

52․    Siiteri described the house. She said the countertops were covered with different items. There was very little room on the countertops and she had to make way to have a seat. She saw “numerous baby bottles with formula… of varying different colourations which to me identifies that they had been there for some period of time and would have been unfit for consumption at that time as well.” I note an objection was raised about this witnesses ability to opine about the fitness of the formula. In my view the fitness of the formula for human consumption was outside her relevant area expertise.

53․    Siiteri continued, she needed to clear away clutter with her feet to access the couch and sit down. She stepped on “what I believe was a piece of chicken skin on the floor.”

54․    Siiteri states that:

There was a lot of clutter within the household and I… say it would have been limited the room for a young child to be able to crawl in a safe manner as well without raising hygiene concerns and such…

55․    Siiteri was concerned a toddler could not fall safety in the home environment. She described the dining space adjoining the kitchen as “extraordinarily cluttered from each wall moving inward.” In the centre of the room there was a “large array of items on the floor and also other bits of furniture as well, covering that furniture.”

56․    In terms of general CYPS procedure, Siiteri says:

When we do visit homes if they are identified to be in a state of hygienic concern, concern where mobility and activities of that child are limited we normally provide the parent with the opportunity to work with supports to address those concerns. .. dependant on the needs of that family… we would offer normally a short period of time for that house and home environment to be rectified to a state that it is appropriate for children to reside there. That may include skip bins working with services and having those supports to do so because it is normally a large task.

57․    She continued to explain that usually after time and supports, “hopefully… the home condition is one that’s appropriate for children to reside it. It may not be perfect, we do not aim for perfect, but safe for children to reside within and not limited within the activated within. If that does not occur, it may be …that… those children are to reside in a safe place.”

58․    She explains that if a house does not become safe, CYPS has conversations with the family and “appropriate measures are taken from there.” Appropriate measures include CYPS seeking court orders, or the children being removed.

59․    Siiteri made it clear she was not, in fact, the primary case manager for the family. She explained that to her best recollection after CYPS attended the house, they explored voluntary placement of the two younger children with a suitable neighbour. The defendant cleaned the house with support services, in particular Uniting Child and Family Services in the intensive program.

60․    Siiteri gave evidence of the legislative scheme under which she acts in her role. She explained various aspects and said that “support-wise, we like to support families as much as we possibly can within that preservation space, prior to things escalating.” She explains that CYPS engages in a risk assessment to determine whether they get involved with a family, that assessment includes examination of a child’s vulnerability and their developmental stage.

61․    Siiteri’s evidence was that there was consideration of s 345 of the Children and Young Person Act 2008 (ACT)[60] but a “support response, from [her] recollection was deemed appropriate.” She later said that “emergency action may have followed if the home condition wasn’t rectified.”

[60] This provision requires that certain criteria are met including that a child has been, is being or there is a risk of the child being abused or neglected and that no one with parental responsibility is willing and able to protect the child.

62․    Siiteri conceded in cross-examination that she could not recall attending the house prior to 18 August 2022.

Evidence of CH

63․ CH gave evidence after he had the opportunity to obtain independent legal advice about the privilege against self-incrimination in section 128 of the Evidence Act 2011 (ACT).

64․    CH gave evidence that in August 2022 the defendant was his wife. They lived with three children at the house one week, and two children the next week, on a rotating basis. The oldest child, EK, was on a ‘week on, week off’ arrangement with her father.

65․    CH was asked about the 15 August 2022, in relation to the state of cleanliness of the house. He said “[i]t wasn’t very clean, but I was heading off to work…” I note that the date was not put in any context for the witness. CH stated that ‘there was just a lot of clutter in the house.”

66․    When asked about an agreement between the defendant and himself about how often they would clean the house. He said:

It was just a verbal agreement. It was mostly while she was the stay-at-home-mum, she would try and do the household cleaning and then after I finished work, I would come home and attend to what I needed to.

67․    CH was aware the defendant had a job at the time. The defendant would work evening hours at work and the majority of the defendant’s time was at home.

68․    He confirmed that the younger two children were ‘just over a year’ and ‘three months’ old at the time of the AFP attendance.

69․    CH was questioned about the feeding of the younger two boys. The older of the boys had a mix of formula and food. He had two different types of bottle- 240 ml and 320 ml. Of the older boy he said “[he] would mostly have some during the day, but I wasn’t aware what he would have, mostly.” He thought ‘potentially’ he would have five bottles.

70․    CH was asked about the younger boy, a baby. CH confirmed that the baby did not eat solid food. When asked how much formula the baby would have, he said “[i]t’d depend because he had severe reflux.” He explained that the baby was unable to “take a lot of food” and that this resulted in “dramatic weight loss” He said:

It was a really hard struggle during that time period. He was vomiting a lot which resulted in a lot of changes [of clothes].

71․    CH said he would feed the baby a maximum of three times but that mostly the defendant would take care of feeding. He said he would have “anywhere from four to six, or if he had a severe day” maybe he could have 10 bottles.

72․    CH said that the baby was having health issues and this was quite stressful, and involved time and effort from both parents. He said “we were working close- quite closely with the Maternal and Children’s Health Services (‘MACH’) nurses at the time and CYPS.” Further he said “the appointments were done between the mother and the child. It really doesn’t involve the father. MACH nurses, the only way we were working closely with them, in my-my position was following their advice.”

73․    CH confirmed he took paternity leave during the time just prior to the AFP attending. He was working in childcare as a cook but he took paternity leave the week before the baby was born “when we had organised… when the C-section was to be done.”

74․    CH was asked whether the defendant had health complications after the birth of the baby. At first he said she did “not so much.” Then he said, “I wasn’t aware of the full extent.”

75․    CH received parental leave payments from Centrelink and the defendant suggested that CH might become her carer for Centrelink but he was waiting on documentation from a doctor to say whether she needed care. CH disagreed that the defendant was “quite debilitated” following the baby’s birth.

76․    He was asked whether she had a vaginal hernia and he said he was not aware of one. He said that after six weeks she was recovered and “quite agile.” CH disagreed that he was primary responsible for cleaning. He said that when he was on parental leave he was at home to a greater degree and had the opportunity to clean and had been cleaning. When asked whether the defendant was dealing with a small three-month-old baby, he said that was “not by herself.” He disagreed that the defendant was primarily responsible for looking after the children and he disagreed that he was primarily responsible for cleaning the house.

77․    In relation to cleaning once CH had returned to work a week earlier he said “as soon as I returned back to work, she was to continue the cleaning of the house and she agreed to that.” He said “[w]e have a dishwasher. We have everything. I made sure I’d done everything she needed to keep that house clean.”

78․    CH disagreed that the defendant had limits on which she could lift and do after the Caserian section. It was suggested to him that because of the limitations placed on her after the surgery and the complications it was primarily his responsibility to manage the household. He disagreed.

79․    It was suggested that that the state of the house was because he had not followed through on his agreement to clean the house, and he “solemnly disagreed.” He said “I had worked with Uniting and had arranged for them to also help clean the house up on multiple occasions. I’d taken every step possible to keep that house in clean condition.”

80․    In re-examination, CH said that after the birth of the youngest baby he had been to most of the doctor’s appointments with the defendant. He was asked whether he was “aware of any complications arising from the C-section”, he said “None.” He was asked whether the defendant every told him about any complications that arose later, he said “No.” The prosecutor continued “[i]n any of those doctor’s appointments, was any indication made to you or Ms Johnson that you heard about complications arising from the pregnancy or birth?” He answered “[t]he only ones she was made aware of was incontinence. So she had some issues with her bowel and urinary.” He continued “[b]ut that was about it.” He continued that “[t]hey were attending to that with physio.” Adding, “she was asked to do kegels which I’m not understanding what that is fully.”

Assessment of CH

81․    CH gave evidence about the arrangements in the home, including that he was on parental leave for a period of about three and a half months, up until the week before the AFP arrived. He gave evidence that the defendant did not have any restrictions after the C-section, which I find to be implausible. He was either unaware of the restrictions imposed after the C-section, or untruthful in his evidence to the Court. I am concerned that despite many questions about any complications for the defendant after the birth, it was only at the tail end of re-examination, when the prosecutor was essentially confirming his evidence, that he explained the defendant had urinary and faecal incontinence. But for that extensive re-examination, the evidence he gave would have been that she did not have any complications after birth. I do not accept he was being candid in his evidence. Further, he appeared to be unaware of the complication, described by the defendant as a space in her spine. My strong impression was that this witness, despite living with the defendant, was unaware of the health issues which the defendant had at the time. His lack of candour, and lack of knowledge causes me to be sceptical of his evidence that the defendant was “agile” after she could drive again. I reject that evidence.

Evidence of the defendant

82․    The defendant gave evidence that she had three children at the time the AFP attended her house. She had lived at the house since 18 December 2019. The youngest child, the baby was born on 6 May 2022.

83․    She said that she had to have a C-section in relation to the birth of her third baby because of her health issues. She had not had a C-section before. She gave evidence that she could not move her legs in the days after the C-section. She said she “basically wore nappies” and was “pretty incontinent”, saying “I had had no control of my bowels so it was pretty sad.” She said she had trouble moving her legs, and was affected like this for about 12 weeks.

84․    She said “even with physio it was just a little bit everyday but the issue that I had is that I had neurological issues that- I couldn’t tell my legs to move.” She was in hospital for five days initially. She said when she got home she “couldn’t even move myself to go to the toilet so I had to have help to like remove the nappies and stuff for myself.” She said she continued to wear nappies into 2023.

85․    The defendant gave evidence that she was not allowed to drive until the baby was about eight weeks old, but that even when she could her driving was “very limited.”

86․    During the time CH was at home (until about a week before the Police arrived) the defendant said they shared the caring of the children. CH was on parental leave from “the end of April and he went back just about early August.”

87․    She explains that wasn’t allowed to lift anything over five kilos so she could not hold her one-year old son after her C-section. She explained the doctors had told her she was not allowed to lift so she did not break her stitches. In relation to the restrictions, she said “basically they told Mr CH to help-to take care of the children because I wouldn’t be able to for an extended period of time which is why he took parental leave.”

88․    The defendant said that there was a “very slow improvement” in her condition after the birth of the baby. She was able to take care of all the children by early August. In relation to discussions about the housework she said CH “was still expected to like help upkeep the household as arranged.” She continued:

Because I had stitches and because I had a C-section, I had major surgery, [CH] had to pull his weight to help keep the house clean as well. It wasn’t just my responsibility as I was incapacitated to do so…It’s a partnership. We’re together so he was, you know, it’s meant to be when I can’t do something, he’s meant to help out. That’s what partners are supposed to do for each other.

89․    The defendant said “[CH] agreed… that he would help with the household chores after he would get home from work.”

90․    In terms of her capacity to clean, the defendant was asked:

And in terms of the level of cleaning that you were doing, what were you attempting to do?---I tried to clean as much as I could.  I can do 10-minute intervals at a time, basically because of the complications of having major abdominal surgery.  I was on a lot of medication at the time so that also made me really drowsy so – and obviously I didn't want to be in pain, so I had a lot of pain medication from – prescribed by the doctors.

So you spoke about 10 minutes just before, was that 10 minutes of cleaning you're referring to?---Yes.  10 minutes of cleaning that I was able to do before I got too unwell and then I had to just take a break.

And how long would you take a break for?---I would take a break for as long as I needed and then I would get back up and try it again.  But a lot of the time, I had the children so if they need – their needs, I would go to them.  So cleaning wasn't the top of the list.  It was changing nappies.  It was feeding them.  Especially because I had two younger children at the time.

91․    She explained the middle child, the one-year old, would go to childcare two or three days a week.

92․    The defendant explained that the baby was “very sick.” She continue that he would “need multiple outfit changes… and depends if he threw most of his bottle, he’d get hungry half an hour later…if he didn’t keep his food down.” She said “that child did not sleep. He’d wake me multiple times a night from changing him to feeding him. I had to rock him to sleep. He would not sleep unless I rocked him to sleep. I was exhausted.”

93․    The defendant explained that she would try to sleep in the daytime when the baby slept. She said the baby was waking at 2am, 4am and 6am, reiterating “that child did not sleep.” She said at 6am she would put the baby in a carrier “so I could, like, attend to the other children.”

94․    The defendant stated that the baby was not well at birth and was underweight, being in the 15^th percentile. She said that she was advised by the MACH nurses that she would feed the baby again, if he didn’t keep one feed down. She was told she could feed him half an hour later, as “it would be like he would miss a feed if he had had the severe reflux. We had colic bottles to try and help reduce the reflux. He was on medication to reduce the reflux as well.” The defendant said that each day the baby could have up to eight bottles, depending as he was a “very spewy baby.”

95․    She said that the next oldest child, the one year old, also had bottles. She perceived he was jealous of the baby so would give him a bottle with water when the three-month-old had a bottle as they were trying to reduce his formula feeds to nighttime feeds.

96․    In August 2022, the defendant explained her stitches had healed but she was still on pain medication. She said she was “literally running after…three children.” She said “by the time the morning even started, I was already exhausted. I barely had time to sleep so a lot of the time when [CH] came home from work I said to my then partner “I really need to nap, like, I haven’t slept. Sleeping on a couple of hours in intervals does not do your body any good.”

97․    The defendant explained that when the AFP attended “[t]hat’s the day I got arrested for the first time in my life.”

98․    On 18 August 2022, she said the state of the house was untidy because she had appointments for the two younger children. She also had a particular program for EK to attend.

99․    The defendant was taking a variety of prescribed medication. She was prescribed Endone, as a pain reliever. This affected her and make her drowsy. This medication was administered as a “PRN.” She gave evidence that she had not taken it that particular day. She took this medication as “some days the pain is extreme that you have to be able to take Endone just so I can actually function as a human being.” She was also prescribed Gabapentin for “neuropathic pain” which had various side effects, including nausea. She also took an anti-nausea medication. The defendant was also taking medication for bi-polar and an anti-depressant. She explained that for her, “mental health issues can come arising from taking medications like those. Like delirium, hallucinations, yes.” She also took folate. All these medications were prescribed by a doctor.

100․    I note that the details of these medications were not provided to the AFP on the 18 August 2022. During the cross-examination, the defendant was asked whether, when she spoke to the AFP at her house on 18 August 2022, she knew something serious was happening. In discussions with the prosecutor about the relevance of this question, the prosecutor said “I’m going to ask questions about the interview itself and why at question 80 there isn’t this explanation of the drugs that she’s on at the time and whether that would affect her ability to give an interview at the time. I am going to submit at the end of this that it is indicative of an attempt to conceal the truth or not give the police the full information.” This, it was submitted, went to whether she was a witness of credit and whether the defendant was “telling the full truth.”

101․    The defendant said that as a result of the C-section “I have a complication where I have a space in my back, so I have this for life now.” She explained generally that “when you have a spinal tap, some complications for women… you create a permanent space in your back if it didn’t go well and that space doesn’t go away. You’ve now – it’s kind of like, you’re now disabled from that.” As a result of this, the defendant said she had been advised she was now at greater risk of Parkinson’s disease, or other neurological conditions.

102․    The defendant confirmed that CYPS had spoken to her before 18 August 2022. CYPS had raised an issue about the state of house, the defendant states “[i]t’s not the only issue that they were raising at the time.” She said that they asked for the house to be “decluttered.” The conversation with CYPS about the clutter was less than a month prior. She said that since that time she had given “away a lot of things to charity.” She said that she had been doing this “[m]ultiple times in a week.” She was trying to “[s]ell, dispose of, donation was just one of the many ways…” She said she had started trying to remove items from the home before CYPS spoke to her and that she was not buying any new items, only food and nappies.