R v CM - [2005] ACTSC 21

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

EX TEMPORE JUDGMENT

Crimes Act 1900 (ACT), s 39, formerly s 37A
Children and Young People (Consequential Amendments) Act 1999 (ACT)
Children and Young People Act 1999 (ACT), s 151
Children and Young People (Consequential Amendments) Bill 1999 (ACT)
Children’s Services Act 1986 (ACT), s 139
Child Welfare Act 1939 (NSW)

R v Sheppard [1980] 3 All ER 899

Beard v R (1987) 85 Cr App Rep 395
Alvin Herman Gerald (1988) 9 Cr App R (S) 425

No. SCC 103 of 2004

Judge: Crispin J
Supreme Court of the ACT

Date: 9 March 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCC 103 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
CM

ORDER

Judge:  Crispin J
Date:  9 March 2005
Place:  Canberra

THE COURT DIRECTS THAT:

a verdict of acquittal be entered.

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

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

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

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

It is, I think, appropriate that I give reasons while…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v CM

Details

AGLC: R v CM [2005] ACTSC 21
Case: [2005] ACTSC 21
Decision Date

CaseChat Overview and Summary

In the case of R v CM, the defendant was charged with neglecting her child by placing him in hot water, resulting in severe burns. The Supreme Court of the Australian Capital Territory was tasked with determining whether the evidence was sufficient to establish the offence of neglect under section 39 of the Crimes Act 1900 (ACT). The court had to interpret the meaning of 'neglect' within the context of the statute and determine the required mental element for the offence. The Crown argued that neglect could encompass negligent acts or omissions, provided the degree of negligence was sufficient to meet the standard for criminal offences.

The court found that 'neglect' in the context of the statute should be construed as a failure to provide a child with necessities of life, such as adequate lodging, food, clothing, or medical care, which has caused or is likely to cause significant harm to the child's well-being or development. The court reasoned that the term 'neglect', when used in the statute, did not extend to mere mistakes, even if negligent. There was no evidence that the accused had consciously failed to care for her child, but rather made a tragic mistake in not checking the water temperature. Consequently, the court directed a verdict of acquittal, as there was no evidence that could prove the offence of neglect beyond reasonable doubt.

The court highlighted the importance of considering the legislative history and context when interpreting statutory language. It concluded that the term 'neglect', as used in the Crimes Act, did not include negligent mistakes but rather implied a serious and conscious failure to provide for the child's needs. As such, the court found that the charge against the accused was unsustainable. The trial was concluded, and the jury was discharged.

Orders