R v Conlon - [2022] SADC 145

District Court of South Australia
(Criminal)
R v CONLON
Criminal Trial by Judge Alone
[2022] SADC 145
Reasons for the Verdict of her Honour Judge Davison
12 December 2022
criminal law -
Defendant charged with Criminal Neglect of her 3-year-old daughter. On 22 April 2019 the child consumed methamphetamine and suffered severe adverse effects.
However, the prosecution was unable to prove the circumstances in which the child had access to the methamphetamine. The prosecution was unable to prove the essential elements of the charged offence.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 14; Children and Young People (Safety) Act 2017 (SA) s 41, referred to.
Nguyen v The Queen (2020) 94 ALJR 686; Weetra v The Queen (2010) 108 SASR 232; R v Allen (2011) 109 SASR 396; Barca v The Queen (1975) 133 CLR 82; R v Baden-Clay (2016) 258 CLR 308; R v Hillier (2007) 228 CLR 618; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Ratten v The Queen (1971) 45 ALJR 692; Bristow v The Queen (2020) 137 SASR 449, considered.

R v CONLON
[2022] SADC 145
Criminal

At about 1:45am on 23 April 2019, a three-year-old girl presented to the Murray Bridge Hospital with her mother and her mother’s ex-partner.
On initial examination, the child was found to be very hyperactive, rocking back and forth, wriggling, babbling and unable to sit still. She had an elevated heart rate of 160, but a normal respiratory rate in the thirties, normal oxygen saturation levels and a normal temperature. She had large pupils of 6 millimetres that constricted to 2 ml when light was used, which is a normal reflex. Her oxygen saturations were difficult to obtain due to her hyperactivity. A urine drug screen was conducted due to her presentation. That test was positive for methylamphetamine.
The child was subsequently transferred to the Women’s and Children’s Hospital (‘WCH’). A blood sample was collected at 4:15pm on the same day. The analysis of that sample revealed the presence of methylamphetamine, with a concentration of 0.17 mg/L.
There is, in this case no dispute that the child had consumed, probably orally, methylamphetamine, in all likelihood late on the evening of 22 April 2019. At that time, the child was in the care of her mother, the accused.
On 27 June 2019, the accused was interviewed by the police and reported for the offence of criminal neglect. She was subsequently charged with that offence and has pleaded not guilty. She has elected for trial by judge alone.
The Information that was initially presented, charged her with the offence on 23 April 2019. The Information was subsequently amended to on or about the 22 April 2019.
Statement of Offence
Criminal Neglect. (Section 14(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bianca Jean Conlon on or about the 22^nd day of April 2019 at Murray Bridge East, had a duty of care to a child, namely [ABC], when the child suffered harm as a result of an act and Bianca Jean Conlon was, or ought to have been, aware that there was an appreciable risk that harm would be caused to [ABC] by the act and failed to take steps that she could reasonably be expected to have taken in the circumstances, to protect [ABC] from harm and her failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
This is a charge pursuant to s 14 of the Criminal Law Consolidation Act 1935 (SA):
13B—Interpretation
(1)In this Division—
act includes—
(a)     an omission; and
(b)     a course of conduct;
child means a person under 16 years of age;
cognitive impairment includes—
(a)     a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);
(b)     an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);
(c)     a mental illness;
vulnerable adult means a person aged 16 years or above who is significantly impaired through physical disability, cognitive impairment, illness or infirmity.
(2)Subject to subsection (3), in this Division the following terms and phrases have the same meaning as in Division 7A:
(a)     cause;
(b)     harm.
(3)For the purposes of this Division, a reference to harm will be taken to include detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent).
(4)For the purposes of this Division, a defendant has a duty of care to a victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim’s care.
14—Criminal neglect
(1)A person (the defendant) is guilty of the offence of criminal neglect if—
(a)     a child or a vulnerable adult (the victim) dies or suffers harm as a result of an act; and
(b)     the defendant had, at the time of the act, a duty of care to the victim; and
(c)     the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by the act; and
(d)     the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
General Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of her guilt. In these reasons, if I use the words ‘proved, established or satisfied’ then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed to be innocent of the charge unless and until the evidence that I accept, satisfies me of each and every element of the offence.
I must assess each of the witnesses as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or part of a witness’s evidence. In this case, a number of statements of witnesses were tendered by consent. I must still consider each of these statements and determine whether I accept the assertions made in them.
The accused did not give evidence. That was her right. I cannot and do not draw any adverse inference against her or the case she presents for declining to give evidence. The accused participated in a record of interview. This interview was tendered by the prosecution. The prosecution relies on some parts of the interview and the defence rely on other parts. I may accept some parts of what the accused has said and reject other parts. Some parts of the interview, the prosecution suggest are exculpatory or lies. I must assess this evidence. It is for me to give such weight to the statements as I consider to be appropriate. I bear in mind that these statements do not have the status of sworn evidence that has been tested by cross‑examination and I may give the exculpatory statements, if I find them to be so, less weight than statements against interest.[1]
[1] Nguyen v The Queen (2020) 94 ALJR 686; Weetra v The Queen (2010) 108 SASR 232; R v Allen (2011) 109 SASR 396.
The accused does not carry any onus of proof and to the extent that she may have put forward a defence, does not have to prove it.
This is a circumstantial case. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen,[2] Gibbs, Steven and Mason JJ said:
[2] (1975) 133 CLR 82, 104.
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v. The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v. The Queen; see also Thomas v. The Queen.
[footnotes omitted]
In R v Baden-Clay,[3] the court observed that for an inference to be reasonable it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’. Further, it observed that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.[4]
[3] (2016) 258 CLR 308, 324.
[4] R v Hillier (2007) 228 CLR 618, 637.
The prosecution lead evidence from Joshua Davies as to words said by the child. The child was not called to give evidence. This evidence was said to be admissible as res gestae that has more recently been called integral narrative.
As was said in Subramaniam v Public Prosecutor by the Privy Council:
Evidence of a statement to a witness by a person who was not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.[5]
[5] [1956] 1 WLR 965, 970.
In Ratten v The Queen[6] Lord Wilberforce elaborated on this fundamental rule saying:
[6] (1971) 45 ALJR 692.
The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on “testimonially”, i.e., as establishing some fact narrated by the words.
The test for the admissibility of words spoken in this way when used for a testimonial purpose was most recently discussed in Bristow v The Queen.[7] Kourakis CJ considered that the test appeared to be a combination of:
·a finding of reliability;
·a requirement for a strongly causal connection between the events and the utterance; and
·a discretion to exclude the evidence if the admission of the statement may lead to forensic unfairness.
The words that were relied upon in this case by the prosecution were the child ‘saying something about drinking dirty water’.[8] This was initially relied upon by the prosecution of being evidence from which an inference could be drawn that the child had consumed methylamphetamine by drinking dirty bong water or the like. As it transpired, little weight was placed upon this by the prosecution, as there was no bong with dirty water. No bong was identified for the use of methylamphetamine nor was one that was located, tested for the presence of methylamphetamine.
In any event, I consider that this evidence is inadmissible as part of the integral narrative of this case. As the findings of fact reveal, at the time it was said the child uttered these words, the child had consumed methylamphetamine. She was not rationale or coherent and her statements at that stage cannot be regarded as being reliable evidence from which to draw any inference.
[7] (2020) 137 SASR 449.
[8] TT42.
The elements of the offence of criminal neglect are as follows:[9]
[9] Criminal Law Consolidation Act (SA) s 14(1).
1.There is an act that causes a child to suffer harm. An act includes an omission and a course of conduct.
Harm means physical or mental harm (whether it be temporary or permanent). Harm includes unconsciousness, pain, disfigurement or infection and harm and will also be taken to include detriment caused to the physical, mental or emotional wellbeing or development of a child.
Cause is defined as: a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm. The definition in Division 7A of Criminal Law Consolidation Act includes an extended definition:
If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident or together constitute a single course of conduct. A person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.
In the opening remarks by the prosecutor, she particularised the act that caused harm to the child to be:[10]
There is, essentially, two parts of the accused’s actions or conduct I would say on this particular occasion. The act is introducing a dangerous substance, being the methamphetamine, or allowing it to be introduced into her home and leaving it in a location easily accessible by the complainant. In that itself there is somewhat of an act and an omission which is, on the prosecution case, the methamphetamine has been introduced into the home by the accused or allowed by the accused and that it has been left out in a manner that has allowed a three-year-old child to have access to the methamphetamine.
On the case to answer submissions, the prosecutor made the following submissions:[11]
The lack of reference to it needing to be the accused’s act in relation to that second element, in my submission, needs to be read at its widest, it’s that harm was caused by an act and, as I said, we know that ‘act’ has been defined quite broadly.
The way in which the prosecution case now coming to a close we can particularise this particular act is that the accused failed to adequately supervise the complainant, on her own admissions, for a period of somewhere between 45 minutes to two hours, in circumstances where methamphetamine was allowed to be within access of the three-year-old complainant and as a result of the failure to supervise the complainant, the complainant has ingested the methamphetamine.
In her final address, the prosecutor particularised the act as:[12]
As I’ve previously outlined, the act is particularised as the accused failing to adequately supervise the complainant in circumstances where methamphetamine was allowed to be accessible by the three-year-old complainant and as a result of the failure to supervise the complainant the complainant ingested methamphetamine.
It’s clear that it’s not the prosecution case that there was any positive act on the accused that led to the complainant ingesting the methamphetamine, it’s a failure to supervise her own circumstances where the methamphetamine was present and accessible to the child.
[10] TT30.
[11] TT170.
[12] TT182.
2.The second element of the offence is that at the time of the act the accused had a duty of care to the victim. There is no dispute in this case that the accused had a duty of care to the child. The victim is her child and was in her care at the relevant time.
3.The third element is that the defendant was or ought to have been aware that there was an appreciable risk that harm would be caused by the act.
4.The fourth element is that the defendant failed to take steps that she could reasonably be expected to have taken in the circumstances to protect the victim from harm.
5.The fifth element is that the failure to take those steps was, in the circumstances, so serious that a criminal sanction is warranted.
In this case, there was no dispute that the child consumed methylamphetamine, probably late in the evening of 22 April 2019. There was no dispute that harm had been caused to her as a result of consuming the methylamphetamine. There was no dispute that the child was in the care of the accused at the relevant time. The dispute in this case related to how the child consumed methylamphetamine, in what circumstances the methylamphetamine was consumed and whether or not it had been proven that the accused was or ought to have been aware that there was an appreciable risk that harm would be caused, and whether she had failed to take steps that could have reasonably been expected to be taken in these circumstances to protect the victim from harm.
The Evidence
At about 12:11am on 23 April 2019, the accused sent a text message to her friend TC saying, ‘T is asleep and [the child] is wide awake talking nonstop LOL.’ Her friend TC replied ‘awh.’[13] The accused then sent TC a video of the child which was 52 seconds in length. That video was not available as evidence, however a video taken a short time later was tendered. That video showed the child sitting on a sofa, repeating herself and talking nonsense.[14]
[13] Exhibit P1.
[14] Exhibit P2.
TC gave evidence that in 2019 she was residing in Murray Bridge. At the time she knew a person by the name of Joshua Davies. She had known him since she was little. She came to know the accused through Joshua Davies. At that stage, the accused and Joshua Davies were in a relationship. She said their relationship finished in April 2019.[15] Joshua Davies then moved in with her, because the accused was renting his parents’ place in Murray Bridge.
[15] TT58.
On the evening of 22 April 2019, TC said she was at home. She had an argument with her partner. She then went to her friend Tim’s place at about midnight. When she left to go to Tim’s house Joshua Davies was at her house. She was driven by her friend, Bonnie, to Tim’s house. She was there when she received the text messages and the video from the accused. TC gave evidence that she knew a person, T. At the time of 22‑23 April 2019, T was living with his parents at Walkers Flat or somewhere there. She did not explain how she knew that.
TC gave evidence that in the text messages contained within Exhibit P1, the accused asked her to come to her house. TC then rang her friend to come and pick her up from Tim’s house and take her to the accused’s house. She said that she went home first. She showed Joshua Davies the messages. They both went to the accused’s house with Bonnie driving them. Bonnie did not go inside the house.
TC and Joshua Davies went into the lounge room and saw the child rocking and talking non-stop to herself.[16] TC spoke to the accused about what was happening:[17]
[16] TT67.
[17] TT67-8.
QDid you have any conversation with [the accused] about what was going on.
AYeah.
QWhat was that.
AI asked her if she could have gotten into anything because I had seen that there was a drink on the table and I knew that [the accused] had been drinking that day.
QYou said a drink on the table. What did the drink look like.
AIt was a glass full of Fanta and what I assume would have been vodka.
QYou assumed vodka, is that what you said.
AYeah.
QSo you asked [the accused] if she could have gotten into anything and you’d seen this glass, what did [the accused] say in return.
AShe said she didn’t know.
TC gave evidence that she did not see a bong at the house on that occasion. She was aware that the accused had previously used methylamphetamine in the past and used a bong or a pipe. She asked the accused whether the child could have found the bong and was told that the accused could not find it. TC said she persuaded the accused to take the child to the hospital. The accused was worried about going to the hospital because she did not want her child to be taken by Department of Child Protection (DCP). She gave evidence that the accused’s demeanour was quiet. She was whispering, soft and crying at that time. The accused was holding the child, cuddling her, and telling her it was going to be okay.[18]
[18] TT71.

The three of them drove in the accused’s car, with the child, to the hospital. TC was driving. When they arrived, TC remained in the waiting room for about 40 minutes to an hour. She saw the accused and the child after about 15 minutes and then decided to leave the hospital. She went back to her own home. Not long after that, Joshua Davies arrived, having walked back from the hospital. She gave evidence that Joshua Davies remained at home after that.
When she was cross-examined, she said she was not aware of T being in the bedroom at the time she went to the accused’s house but was subsequently told he was there. She did not go into any other areas in the house.
TC was cross-examined about the timeline of events. She said she got to her friend Tim’s at about midnight. She received the text message at about 12:11am. She then rang her friend to come and pick her up. She initially thought that her friend arrived about 10 to 15 minutes later. It was put to her that she had given a statement on 29 September 2022, in which she said that her friend arrived about 30 minutes after she called her to take her home. She then conceded it was possible that she could have been at Tim’s house for more than half an hour. She conceded it would have been about one o’clock when she got to her own house, where she then showed the video to Joshua Davies and then another 10 minutes or so before they arrived at the accused’s house. She conceded that it was possible that Joshua Davies had left her house later in the day at about lunch time or early afternoon and that there was a period of time after which she left her own house to go to Tim’s house when Joshua Davies had been left at home on his own.
Joshua Davies gave evidence. He said he knew the accused because he had dated her for a short time. The accused, he said, lived in a house that his mother and father own. After he and the accused broke up, he went to live at TC’s house.
He was aware that the accused had a daughter and recalled an incident where her daughter was taken to hospital in 2019. At the time he was living at TC’s house. He became aware of a message that the accused had sent to TC. TC showed him a video of the child rocking backwards and forwards on the couch at the accused’s address. After TC showed him the video, he and TC drove to the accused’s address. When they arrived, the child was still rocking backwards and forwards and mumbling. She was on the couch. She was cold and her pupils were quite large. He said he did not see anyone else at the house.[19] He said the child was mumbling nonsense, saying ‘something about drinking dirty water’.[20] He said it was his decision to take the child to the hospital. The accused said that DCP would take [the child] away and was yelling and screaming but he cannot remember what she was saying. He said TC drove to the hospital. When they arrived, he, the accused and the child went in. He does not recall speaking to a nurse or medical staff. He left and walked back to TC’s house. He recalled a doctor being present and taking some tests including a urine test and he thought a blood test.
[19] TT42.
[20] Ibid.
He gave evidence that he had been at TC’s house during the day and the night. He said that the last time he had been to the accused’s house was about a month before. He gave evidence that he had not spoken to anybody from DCP about the matter, and that he did not tell anyone that the methylamphetamine [the child consumed] was his.
When he was cross-examined, he said he could not remember how long he and the accused had not been in a relationship. He did not remember TC going to Tim’s place on this evening. He did not recall Bonnie bringing her back from Tim’s place. He did not recall being alone at TC’s house. He said Bonnie did not drive him and TC to the accused’s house. He said he does not remember seeing Bonnie at all that night. He said despite the fact he saw the messages that are now contained in P1, he did not recall reading the message that said ‘T is asleep and [the child] is wide awake talking non-stop’. He said he did not look in any other rooms at the accused’s house when he went there. He did not check whether T was still there. He conceded that T could have been in a bedroom or another room, but he did not see him.
Joshua Davies said TC did not go into the hospital at all but that she dropped them off and left. He denied that he went to the accused’s address again that afternoon. He denied he spoke to a police officer at that address. He denied he had any conversation with a lady from DCP.[21] In particular, he denied that he spoke to a lady from DCP where he introduced himself as Josh and told that lady that he had left his backpack with a drink that was mixed with methylamphetamine at the accused’s house. He was asked about the person ‘T’. He said that T was dating the accused at some stage but he was not sure whether that was before 22 April 2019.
[21] TT54.
An Investigator from Murray Bridge Criminal Investigation Branch, Detective Corfield, gave evidence that on 23of April 2019, she attended the accused’s house in Murray Bridge at 12:36pm. She was aware that the child had been taken to hospital as a result of ingesting drugs. She was in company with two other police officers and there were two uniformed police officers also present. She conducted a walkthrough of the premises.[22] At the premises she identified a young male who was asleep in the bed at the house. His name was T. She could not recall any conversation with him.
[22] Exhibit P3.
While she was at the premises, a male by the name of Joshua Davies arrived. She spoke to him. She recalled him asking about the child because he told her that he had attended to take her to hospital. She said he was reluctant to talk to her.
She gave evidence that several photographs were taken by a Crime Scene Investigator who attended. These photographs were tendered.[23] On the walkthrough there appeared to be a bong located on a shelf in the laundry. That bong was subsequently moved by the police and placed on the kitchen bench and photographed there. There is an agreed fact that the bong was subsequently removed from the premises. It was not analysed and was subsequently destroyed by the police.
[23] Exhibit P4.
An ice pipe was seized from a drawer in the bedroom. It does not appear that this item was analysed.
Medical Evidence
Dr Megan Wilde was called to give evidence. She was the doctor who examined the child at the Murray Bridge Hospital in the early hours of 23 April 2019. She said that on her initial attendance the child’s mother was not present. She initially spoke with the mother’s the ex-partner. She did not record his name. She then spoke with the accused. The accused provided a history that included that she had been to a friend’s house that evening, having a few drinks. The accused said that there had been no drugs present except some THC for smoking. Dr Wilde said it was likely she asked the accused whether there were any medications available in the house and the response was that all medicines were locked up. The accused stated that the children were left to sleep on the couch while the adults were socialising and when she checked on her child, she found her to be rocking backwards and forwards and saying the same things again and again. When she asked her child what had happened the child said she had drunk some Fanta.[24]
[24] TT102.
Upon examination, Dr Wilde found the child to be very hyperactive, rocking backwards and forwards, wriggling a lot, babbling and unable to sit still. The child had an elevated heart rate, a normal temperature and normal reflexes. It was difficult to obtain a heart rate or oxygen saturations due to the child’s hyperactivity. She formed the impression that the child was intoxicated due to her abnormal behaviour and therefore conducted a urine drug screen. That screen was positive for methylamphetamine and amphetamine. As a result of the presence of illicit substances and the young age of the child, she contacted the Poisons Hotline and spoke to DCP.
A decision was made to transfer the child to the WCH so that the child could be in a tertiary paediatric specialist centre. She advised the accused that a decision had been made to transfer the child to the WCH. The accused became distressed by that information and initially refused the transfer stating she was scared of Adelaide and did not want to go to Adelaide.
Dr Wilde expressed concerns that the accused appeared intoxicated or may have been intoxicated and she did not think it was a good idea for her to drive. There was a subsequent agreement that the accused and her daughter would be transferred to the WCH by the South Australia Ambulance Service (‘SAAS’).
A forensic medical assessment was conducted on 24 April 2019. An affidavit from Dr Noori with two annexures, (the report prepared by DCP and Dr Noori’s CV) were tendered as Exhibit P9. He was not called to give evidence.
Dr Noori was asked if a delay of one and half hours in seeking medical attention had resulted in further harm to the child. He responded saying that that period of time would not have reduced the duration of the intoxication symptoms. Even if the child had presented within half an hour of ingestion of methylamphetamine, the total duration of her being symptomatic with methylamphetamine ingestion would still be the same. He could not comment on the quantity of the methylamphetamine ingested to cause the child’s symptoms, however said it would have been a significant amount to have caused her to remain symptomatic for 48 hours in hospital.
A toxicology report was tendered in respect of blood that was taken at 16:15 hours on 23 April 2019. The blood contained 0.17 mg/L of methylamphetamine and approximately 0.063 mg/L of amphetamine. It also contained other substances attributable to medical intervention. Alcohol was not detected in the blood sample collected.[25]
[25] Exhibit P10.
A hair drug test was conducted in respect of the accused. Exhibit P11, reported the results of that testing. A hair sample had been collected from her on 13 May 2019.
Professor Jason White provided an affidavit dated 8 April 2021, Exhibit P12 and a subsequent affidavit dated 1 October 2021, Exhibit P13. He was not called to give evidence.
In Exhibit P12, Professor White outlines the toxicology results, and the hair sample results. He opines that it is most likely the child ingested the methylamphetamine orally. He goes on to say, for oral administration the peak effects and the peak concentration occur about 3 hours after ingestion. The duration of the effect is commonly around six hours but may be longer in the case of an overdose.
Professor White said:[26]
[26] Exhibit P12.
From the blood sample collected 14.5 hours after [the child’s] presentation at the Murray Bridge Hospital her blood methylamphetamine concentration was 0.17 mg/L. It is not known when [the child] consumed the drug, but it is likely to have been well before the time of presentation at the hospital as she was already exhibiting pronounced signs of intoxication at the time of presentation. In addition, the video of her taken at around midnight shows that she was exhibiting strong symptoms of methylamphetamine intoxication at this time. Assuming she consumed the drug orally, consumption would have been expected to have occurred at least an hour prior to midnight.
Thus, from the time of presentation to the time of blood sample collection, the concentration in [the child’s] blood would have been falling for all or almost all of the time. Assuming that the concentration of the drug was falling over the whole of that time, and using an average half-life of methylamphetamine of 10 hours, the likely concentration of the drug at the time of her presentation to hospital is 0.46 mg/L.
For comparison, when methylamphetamine is used therapeutically in children, the concentration range is 0.02 – 0.05 mg/L. In adult recreational methylamphetamine users, concentrations of methylamphetamine are usually much higher in the first six hours after taking the drug (most commonly in the range 0.1 to 0.5 mg/L). Heavier users may reach higher concentrations, while occasional users may only reach concentrations less than 0.1 mg/L. In studies of heavy methylamphetamine users, doses that produce peak concentrations around 0.1 mg/L increase heart rate by approximately 25 beats per minute and are rated as producing an average level of intoxication (approximately 40-50 on a 0 to 100 scale).
Professor White reports these adverse effects include agitation, rapid speech, impaired concentration, confused thinking, obsessive behaviour including repetitive behaviour, impaired coordination, and an apparently irrational and erratic behaviour. It goes on to say that it can also produce psychotic effects. These almost always include paranoia that may manifest an intense irrational fear and may produce hallucinations and delusions. Other effects include blurred vision, dizziness, nausea, and appetite suppression. There are also physical effects of the drug including increased heart rate, blood pressure, body temperature, sweating, rapid breathing, dilated pupils, muscle tension that may manifest jaw clenching, jaw grinding and/or tremor.
Professor White said that from case reports of children, who have experienced adverse effects of methylamphetamine in the context of admission to hospital, the most common effects of the drug are agitation, irritability, increased heart rate and vomiting. During the latter part of an episode of methylamphetamine intoxication, the effects change significantly, and the effected person will begin to feel fatigue that may be apparent in their appearance and behaviour.
The observations made of the child, both at the Murray Bridge and Women’s and Children’s Hospitals, are consistent with these signs and symptoms including agitation and hyperactivity, confusion, rapid speech, reparative stereotyped behaviour, hallucinations associated with irrational fears, elevated heart rate and sweating.
He went on to consider the hair analysis and concluded that the hair sample taken from the child contained the drug methylamphetamine in all segments at very high concentrations, normally a drug such as methylamphetamine is present in hair only in the segment corresponding to the time of ingestion. Consequently, it would be expected that the methylamphetamine would have been present in the first segment. While the concentration was highest in that segment, it was also present at significant concentration in other segments. There are several possible explanations for this, he opines.
Firstly, the drug may have entered the hair from sweat that contacted the full 12 cm length of hair. He noted that the child was sweating excessively, and this may have contributed to drug movement from sweat into the hair. He said any rubbing of her hair by hands touching her hair or head, movement on a pillow for example, could have facilitated the transmission.
Secondly, there may have been other instances of ingestion of methylamphetamine by the child. This may have resulted from her being in a house where the substance was consumed leading to inhalation, it may also have resulted from a drug being present and the child touching that drug and then ingesting the drug by placing her fingers to her mouth. It may also be that the hair of very young children is more permeable than that of adults.
His opinion is that it is highly likely some of the methylamphetamine present in the hair of the child was due to exposure to methylamphetamine and accidental ingestion in her home environment over a period of months. However, he notes that concentrations in her hair are higher than that normally found from such passive exposure, and it is likely the role of sweat containing methylamphetamine and amphetamine also contributed to the high concentrations of the substances across the length of her hair.
In respect to the sample collected from the accused on 13 May 2019, Professor White noted that the hair sample contained the drug methylamphetamine and that the concentration of the drug in the hair sample can be used as an indicator of the likely amount of drug used by the accused. Based on the results of various studies, he concluded that the concentrations in the sample are consistent with a level of use of methylamphetamine that is found in people who seek treatment for methylamphetamine dependence. Such people, he says, may be daily or near daily users of the drug and may engage in binge use of methylamphetamine from time to time. He said the drug can enter the hair externally through exposure when the drug is vapourised or smoked. Another environmental source may be the handling of the drug or touching surfaces contaminated with the drug followed by touching of the hair.
Professor White concludes, based on the comparison of the results of the hair analysis with results known from methylamphetamine users and people exposed inadvertently to methylamphetamine, that in his opinion it is unlikely that the accused’s results are due to passive exposure to methylamphetamine in her environment. In his opinion, the results from the analysis of the hair sample from the accused show that that she consumed a relatively large amount of methylamphetamine in the period from approximately mid-January to mid-May 2019. The concentration level during that period is consistent with a person who used the drug frequently and is considered to be dependent upon it, however, it cannot be stated with certainty that she was using the drug at such a high level in the final month of that period, being from mid-April to mid-May. The concentration could have resulted from use in the period prior to mid-April.[27]
[27] Exhibit P13(8).
Rikki Morland gave evidence. Whilst at the WCH, Ms Moreland spoke to the accused. Ms Moreland was employed by the DCP and in April 2019 was a Senior Practitioner. She became involved in this matter as a result of a notification to the Child Abuse Reporting Line (‘CARL’) and as a result attended at the WCH with another social worker from DCP.[28]
[28] TT111.
Ms Moreland gave evidence that at the time she spoke to the accused, the accused was wearing a fluoro pink work shirt, pyjama pants and slippers. The accused said that she had been wearing these when she went to the barbeque. Ms Moreland had a conversation with the accused in relation to concerns that had been raised with DCP about the child’s presentation and ingestion of substances.
The accused advised her that she had left the child in a lounge room with two other children at about nine o’clock at night and set them up in front of a movie. At about 11 o’clock had returned to check on them at which point she noticed the child was acting strangely and the other two children were asleep. Although she did not give a location, she said this was at a friend’s house and it was referred to as a barbeque. The accused said she consumed a few drinks of vodka and soft drink and believed the child had consumed some of what she had left on a coffee table. She said she spoke to friends at the barbeque, and they said not to worry, ‘she will be fine’. However, after some time she noticed the child’s lips were turning blue and described her as frothing at the mouth. She organised for her partner’s sister, Ms Moreland thought, to come pick them up and take them to the hospital.
At this point in the evidence, it was evident that Ms Moreland, although she had made notes, was not referring to those notes as she did not have them with her. She was then given an opportunity to obtain her notes to ensure that she gave accurate evidence.
When Ms Moreland had her notes, she reiterated that the accused had told her she was at a friend’s house having a barbeque when she first observed the child behaving in this way. The accused told Ms Moreland that she arrived at the barbeque at about nine o’clock with a small handful of people. She did not want to mention any names, however she did mention the name of Damien and his partner, Alison, being present.

During the conversation Ms Moreland requested that the accused participate in an oral drug swipe test. The accused declined, saying she had used marijuana several days prior and she was concerned as people she had known, who had tested positive for marijuana had had their children removed. She did not want to be subjected to the same situation. The accused was then advised by Ms Moreland that her refusal to participate in the drug screen would be viewed as a positive test and the outcome would be the same as if she had produced a positive screen.
The accused then advised Ms Moreland that she had received a text message from a friend indicating that he had left a drink bottle in the same room as the child, and that might provide the explanation as to how the child had consumed methylamphetamine. Shortly after that, Ms Moreland was presented with a mobile phone by the accused. The person on that phone identified himself as Joshua and gave the same story.
Ms Moreland then told the accused that as a consequence of the child’s presentation, the fact that the accused had gone to the party and left the child unsupervised, that the child had been able to access the drinks, that she had been associating with people who had been using methylamphetamine that she had not been forthright with information and had declined to participate in a drug test, it meant they would remove the child pursuant to s 41 of the Child and Young People Safety Act (SA). Ms Moreland then took the child into the care of DCP.
Ms Moreland also gave evidence in relation to the observations that she made of the child.[29]
[29] TT124-5.
ASo the child was, I guess - it was quite confronting to see a three-year-old little girl who was very clearly affected by substances in her system, she was pinching at her skin and making it red and almost bleeding in certain parts and bruising herself, she was hitting herself in her head and she was not able to regulate any of other emotions at all. She was at times seeking the accused out by going close to her and being in her presence and then hitting at the accused and then leaving and she didn’t know what she wanted. She wanted food but then didn’t want to eat the food, she had some toys but she didn’t want to play with the toys, she had several hallucinations where she talked about seeing spiders and snakes and fire within the room and she was very fearful of all of those things and became hysterical at times. Whilst the accused was in the room the child was more heightened than after the accused had left and then the worker was able to sit - so the other worker that was present with me was able to sit with her and attempt to calm her and soothe her a little bit. That she was able to sit at that point in time, prior to that she wouldn't sit at all for any length of time for more than several seconds. She would scoop back in the bed almost screaming with fear about seeing these hallucinations within the room. We did our best to try and console her around that it wasn’t real and that she was safe and that she was okay.
XN
QThese hallucinations that you’ve described, did they occur for the duration for the one and a half hours you were there.
AYes, they were present for the entire time. I believe they lasted for several hours post our leaving as well.
QWhilst you were having a conversation with the accused how did you observe her demeanour to be.
AShe was very - I guess she attempted to be calm, she didn’t present as particularly concerned or worried about the child’s presentation and a bit dismissive of the whole situation. The most animated, I guess, we saw her at that time or emotional was when we told her that she couldn’t stay at the hospital with the child and that she was required to leave and that’s when she became quite angry and upset and she left in quite a huff from the hospital.
Police Interview
On 27 June 2019, the accused was interviewed by the police. She was advised the police were asking questions in relation to criminal neglect involving a child. The accused was asked to tell the police what she had observed, she said the following.[30]
[30] Exhibit MFIP7.
QAlright? So what can you tell me about that?
AUm, so I am fully responsible for my daughter – I know this – um, and I went to a barbecue where I drank, and pretty much I wasn’t watching my daughter. I wasn’t keeping an eye on her the whole time. Um, er, there was at least, over a 45 minute period where I didn’t even check on her – know this – and I went and checked on her. She was fine on the lounge. Um, I then had left my vodka in that room as well, um, like, on the, on the coffee table. I’ve left the room. I’ve come back about 45 minutes later to, well, half an hour later to see if the kids are quiet, or tired, or [indistinct] sleep, and my daughter was acting funny. That’s when I noticed something was wrong and I just said to her, I noticed my drink as also empty …
QYeah.
A… so I’ve said to her, ‘Bub, have you touched Mum’s drink’, and, like, the drink, and she said, yeah, she drank it, tasted yucky and then she also told me that she drank something else and it tasted yucky. So I then, ‘cause I’d been drinking I didn’t have my car. I rang my friend and waited for her to come and pick us up and take us to the hospital. When we got to the hospital I said, ‘I think my daughter’s had drugs’, just feel like that she was non-stop moving saying, ‘I just want to talk, Mum, I just want to talk.’ And I asked them to drug test her, and that’s how it went, about.[31]
[31] Exhibit MFIP7, 4.
…
QAre you … Okay, where did this take place?
ASo this took place at … I don’t even know the person, I just know the name is Damien – It was through Pommy’s friends – for a barbecue for, you know. Um, Pommy pretty much tried to say that it was his, afterwards he told me at the hospital that was his drugs that he’d left in his [bag with a] drink. Er, my daughter, when I asked her, ‘Did you drink the drink?’ she said, ‘Year, it tasted yucky mum, that’s why I drank your drink.
QOkay. Where about was this party? Was it in, in Murray Bridge?
AYeah, yeah.
QWhat part of town, east side, west side?
AIt’s east side, yeah, yeah
QEast side?
AI couldn’t, I was drunk. Fuck, I couldn’t even tell you where I took us, you know. Um, I’d never met the person before either.
QHow many people were there?
AUm, about 6 adults. There was 3 children…
QYeah.
A… including my daughter. They also had 2 girls
QWho else was there? Can you name them?
AI don’t know any of them. I just remember Damien being the person. I don’t remember what his missus was name, and I don’t remember the couple of other adults that were there, and who they were.[32]
[32] Ibid 6-7.
During the course of the interview, the accused also acknowledged that she had used methylamphetamine in her house over a period of time. She said that she smoked it in her own room with the door closed. She admitted that she had been taking drugs between February and April 2019. She said she smoked about half a gram a week and that people who came to the house “shouted” her as well so there might be a few more points that she smoked. She said she has not touched drugs since April and she has passed every random drug test. She said that she was on the SMART Recovery Program at the time of the interview.
The accused did not give or call evidence.
Addresses
Ms Andersen addressed on behalf of the prosecution. She submitted that there were a number of matters not in contention. These included, that the child had consumed methylamphetamine, that it had a severe effect on her and thereby caused her harm. It was also not in contention that the accused owed the child a duty of care. Ms Andersen submitted the following:[33]
[33] TT186.
So if we work back from that core, perhaps undisputed matter, we’re left with a situation where a young three-year-old child has ingested methamphetamine, whilst she is in the care of the accused, and this has occurred at the family home that the accused and the child were residing at the time and it was just the two of those people residing there at the time, and I’ll come to that in a moment, as to why your Honour could reject any suggestion that there might have been another person there.
In that situation, when we come to consider being at the home where the accused is the primary care giver of the complainant, a failure to supervise the child in the circumstances where there’s methamphetamine is the act that’s given rise to the harm. Now, of course we can’t say either the exact amount of time, we don’t have that evidence available but in my submission there’s an inference that there must have been some sort of instance where the child has accessed the methamphetamine and it’s not the prosecution case that it was a positive act that has occurred to - for example, the accused has provided the methamphetamine to the child, that’s clearly not the prosecution case. So in the absence of that we’re talking about a situation where the child has been able to access the methamphetamine and that must have been done in circumstances where she wasn’t properly supervised and wasn’t properly protected from having access to the methamphetamine that was present.
Further, it was put that I should reject the version given by the accused that she had been at a barbeque that night. It was submitted that this could be excluded by looking at the text messages[34] where there had been no mention of the barbeque by the accused, when TC and Joshua Davies attended the accused’s home there was no suggestion of any other address and the video that was sent by the accused to TC shows the complainant rocking back and forth on the couch at the accused’s home. This couch is clearly recognisable in the walk-through video[35] and there was evidence from Joshua Davies that he recognised the couch as being the one in the accused’s premises.
[34] Exhibit P1.
[35] Exhibit P3.
The prosecution suggest that the barbeque story is a lie and this is relevant to the credibility of the accused in respect of other assertions in the record of interview. Ms Andersen submitted this was in particular relevant to the assertion that it was Joshua Davies who left the backpack containing methylamphetamine in a bottle in the lounge room.
It is submitted that consistent with Professor White’s evidence the ingestion occurred at least an hour prior to midnight and this is at a time that it was not possible for Joshua Davies to be at the complainant’s house or at a barbeque. Further it was submitted that the accused had concocted the story about Joshua Davies and also facilitated the making of a telephone call by a person who falsely claimed they were Joshua to Ms Moreland whilst at the WCH. It was submitted that there is no scenario open, on the evidence that has been presented, that the methylamphetamine was consumed by the child from a bottle within Joshua Davies’ backpack.
It was also suggested that I may reject any submission that the person T was present at the accused’s home at the time of the ingestion. TC denied that the accused and T were in a relationship at that time but did say they started a romantic relationship sometime after that. It was suggested that the text message that the accused sent saying ‘T is asleep and the child is wide awake talking non‑stop LOL’ is not proof that T was present at the house although it was accepted that T was present at the house when the police arrived just after midday on 23 April 2019 asleep in the main bedroom.
It was submitted that the accused had admitted she had access to a large amount of methylamphetamine in the time preceding 22 April 2019 and had possessed methylamphetamine in the house while the child was present. The admission in relation to the use of methylamphetamine located in the house, the presence of the bong found in the laundry and the ice pipe located in the bottom drawer in the bedroom provided proof, in conjunction with the evidence of TC that she had previously seen the accused smoking methylamphetamine from a bong is highly probative of an inference that the accused had continued to use these implements in her house to consume methylamphetamine.
The opinion of Professor White supported an inference that the accused had used a significant amount of methylamphetamine in the period leading up to 23 April although he could not say whether she had consumed it in the two weeks prior to 23 April. The toxicology results in respect of the child’s hair are indicative of the child’s exposure to methylamphetamine over the period of 12 months prior. It was not suggested in this case that there was a course of conduct that resulted in the exposure to methylamphetamine that was said to constitute the act in relation to this case.
It was initially submitted by Ms Andersen that the failure to undertake the drug swipe test that was required by Ms Moreland at the WCH could constitute post offence conduct that evidenced the accused’s guilt in relation to the charged offence. She did not however, press that submission.
Ms Andersen submitted that each occasion the accused had said she was at a barbeque earlier in the night constituted a lie and further that was relevant to an assessment of the credibility of the accused. It was submitted to me that when all the inferences were taken at their highest, I could conclude that the accused either introduced methylamphetamine into her own home or was aware that it was present and therefore ought to be aware of the risk of harm to the child. It was submitted the accused was aware that her child had a tendency to touch everything and climb on everything, and that demonstrated an awareness on her part of the need for extra vigilance in the house. It was submitted that this proved that she ought to have been aware of the appreciable risk of harm and that she failed to take steps to protect the child from harm when she introduced or allowed methylamphetamine to be introduced into her house and left in a place or places accessible to the complainant.
Further it was suggested when Joshua Davies gave evidence that the child said something about ‘drinking dirty water’[36] that this could be used as part of the integral narrative, as a statement that was made contemporaneously to the ingestion of methylamphetamine and I could use it for the truth of the assertion. That is that the child consumed dirty water. Exactly where or what that dirty water was, was not made clear. It was submitted that there was sufficient evidence to find the accused guilty of the charged offence.
[36] TT42.
Mr Charman addressed on behalf of the accused. He conceded that she had a duty of care and that the child suffered harm as a result of consuming methylamphetamine but submitted that the prosecution case fell far short of proving the necessary elements of the offence, in particular that the accused was or ought to have been aware of the appreciable risk of the child consuming methylamphetamine and failed to take steps to protect the child from harm.
It was submitted that this is a clear case in which the prosecution has failed to prove the foundational facts from which reasonable inferences can be drawn. It was submitted it is for the prosecution to prove and be very clear about where they say the accused was on that evening and how that is connected to where the child was. It was submitted that in order to exclude the possibility that the accused was not at a barbeque prior to returning to her home, where she was collected by TC and Joshua Davies, would require some evidence that she was not there and there is no evidence to that effect.
The timeframe as suggested and accepted by Professor White does not shed light on where she was when the child consumed the methylamphetamine. It is not inconsistent with anything that the accused said in relation to that. It was submitted that the prosecution had failed to identify what the act was, who committed the act, how the child got access to methylamphetamine, who might have put it there and most importantly, why or how the accused ought to have known or been aware that there was an appreciable risk that harm could be caused by someone else leaving methylamphetamine somewhere at the home in circumstances where that cannot be identified.
Mr Charman reminded me that there was no methylamphetamine located at the accused’s premises when it was searched and there was no testing of any items that were removed from her house. There was no evidence that the bong located in the laundry had been used for the ingestion of methylamphetamine and no evidence that any other item had been used for the ingestion of methylamphetamine by any person whatsoever.
It was submitted that Joshua Davies was fabricating almost every piece of evidence he gave. The defence did not dispute that he recognised the child on the couch at the accused’s home. Joshua Davies had said that it was TC who drove them from their home to the accused’s home. However, this was disputed by TC who said Bonnie had driven them. Furthermore, Joshua Davies had been untruthful when saying he was unaware of another person at the house. There was evidence that T was in the bed asleep in the home when the police attended the next day. There was no evidence that the accused had gone home from the hospital; indeed, that was highly unlikely. Any evidence that T was residing with his parents was unsupported by any fact or given any context. It was submitted that the very presence of T raises the possibility that he may have been involved in obtaining methylamphetamine and leaving it where the child could get access to it without any knowledge on the part of the accused. There was no evidence from T.
Joshua Davies was also inconsistent in relation to the behaviour of the accused. Joshua Davies’ evidence was at odds with the evidence of TC as to the accused’s demeanour. The denial by Joshua Davies that he spoke to the police at the accused’s home the following day must be rejected as Detective Corfield had clearly spoken to him at the accused’s house on that day.
The suggestion that Joshua Davies had not spoken to Ms Moreland must similarly be rejected. It was submitted that it was fanciful to suggest that someone who had knowledge of the issues calling themselves Joshua, was talking to Ms Moreland and that person was not Joshua Davies. It was submitted that there was a very clear inference that it was Joshua Davies who was talking to Ms Moreland making it clear to her that he was the person who had left the bottle in the backpack. Whether this was true or not, at the end of the day it is consistent with the innocence of the accused unless the prosecution can say that she knew that he might go there, take a backpack with a bottle of methylamphetamine and leave it where the child could have access to it.
Mr Charman said he accepted that the prosecution is not suggesting that this was true but Joshua Davies’ denials of it should not lead to a rejection of it as a reasonable hypothesis in the circumstances. It was submitted the prosecution in this matter had suggested that it was for the accused to prove her innocence rather than the prosecution having to prove the elements of the offence. It was submitted that the charge was not proven beyond reasonable doubt.
Assessment of Witnesses
Joshua Davies was called by the prosecution to give evidence. His evidence was unsatisfactory. He claimed to have little recall about important matters. He was contradicted by other witnesses and generally unhelpful. In making these assessments I have borne in mind that he has personal issues that may have contributed to the less than satisfactory evidence he provided. I find that he was not a reliable witness nor a credible witness in many respects. This is not to say that he did not have genuine concern for the welfare of the child. His conversation with the doctor at the Murray Bridge Hospital demonstrates that he did have an awareness of the issues and a genuine concern. He, however, was not truthful with the doctor in relation to his knowledge of the accused’s drug habits. I find he was not truthful when he said he did not speak with a police officer at the accused’s home on 23 April 2019. Nor was he truthful when he said he did not speak to a DCP worker on the same day.

TC attempted to give honest evidence. However, she was unreliable in relation to the time frames as to when incidents occurred nor was she reliable in respect of the movements of Joshua Davies at various times. I do not think she was attempting to mislead the Court but due to a lack of memory as to the precise details of events that occurred over three years ago, she was not able to recount a reliable version of events.
I accept the evidence that was given by Dr Wilde and Ms Morland. I find both to be credible and reliable witnesses. I was assisted to a significant extent by contemporaneous notes that had been made by them.
I accept the material contained in the affidavits tendered from Dr Noori and Professor White. I also accept the material in relation to the toxicology testing and results that were tendered.
Findings of Fact
I make findings of fact as follows:
·Late in the evening of 22 April 2019, the child consumed a quantity of methylamphetamine. This was probably consumed orally. The child was filmed by the accused exhibiting symptoms of intoxication at about 12:11am on 23 April 2019.
·When she was filmed. the child was at her own home in Murray Bridge. I am satisfied of this as a result of comparing the photographs of the interior of the home and the images on the walk-through video.
·I am satisfied that the child was admitted to the Murray Bridge Hospital at about 1:45am on 23 April 2019 and her urine sample tested positive for the presence of methylamphetamine.
·At 4:15pm on 23 April 2019, a blood sample was taken from the complainant. Toxicology results show that methylamphetamine and amphetamine were present in the sample.
·I accept the opinion of Professor White that both the behaviour exhibited by the child and the results of the toxicology tests confirm the presence of methylamphetamine and that it is likely that the child consumed the drug well before her presentation to the Murray Bridge Hospital.
·That at the time the video was taken at 12:11am the child was already exhibiting strong symptoms of methylamphetamine intoxication. I am satisfied that the child consumed the drug orally at least an hour before the video was taken.
·I am satisfied that the accused, at the time the methylamphetamine was consumed by the child, had a duty of care to her, being her mother and having parental responsibility for her at that time.
·There is uncertainty as to where the child was at the time she consumed the methylamphetamine. At all stages, when the accused was questioned as to her movements on the evening of 22 April 2019, she said that she had been at a barbeque with a number of other adults. She said her child, along with other children, were left in the lounge room of another person’s house with limited supervision. There was no evidence presented by the prosecution in relation to the barbeque. Although the prosecution submit that this was a lie and the accused and the child were not at the barbeque, there is no basis in the evidence to make such a finding. It is to be observed that at all stages the accused gave a relatively consistent version of her movements on that night.
·There was no evidence presented in Court of any investigation in respect of the barbeque, although the accused nominated the names of some of those at the party and they seemed to be known to the police and to the social worker who attended at the WCH, Ms Moreland.
·I cannot exclude as a reasonable possibility that the accused did attend the BBQ with her child and was there for some hours on the evening of 22 April 2019. It is unclear how the accused returned to her own home with her child after the BBQ but there is evidence that she has a car.
·The police attended the accused’s home at about 12:36pm on 23 April 2019. At that time the accused was at the WCH in Adelaide. There is no evidence that she had returned to her home after she had left in the early hours of the morning to take her child to the Murray Bridge Hospital.
·At the time she took her child to the hospital she was in the company of TC and Joshua Davies. There was no evidence from TC or Joshua Davies in relation to the presence of methylamphetamine in the home when they attended in the early hours of the morning.
·Although the police searched the premises looking for drugs and implements for the consumption of drugs there was no evidence that they located any controlled substances.
·Police located a bong that was on a shelf in the laundry separate from the lounge room area and out of reach of a child. They located an ice pipe in a drawer in the master bedroom. Neither of these items were tested for the presence of methylamphetamine.
·I accept based on the admissions of the accused and the results of hair sample, that she had used methylamphetamine on a regular basis in the home and on occasions the child was present. There is no evidence that she consumed methylamphetamine on the evening of 22 April 2019 either at her home or at the BBQ.
·When the police attended the accused’s premises on 23 April 2019 at about 12:36pm, the person T was asleep in her bed. When the accused sent a message to TC, at about 12:11am on 23 April 2019, she referred to the same person and said he was asleep. T was not called as a witness. I find that there is a reasonable possibility that T was present at the accused’s house at the time she took the video of her child and when she sent the text message saying he is asleep. There is a reasonable possibility that he remained at the house when she left with her child to go to the Murray Bridge Hospital and while she was at the WCH, until he was discovered by the police at about 12:36pm on 23 April 2019. There is no evidence before me as to whether T is or is not a user of methylamphetamine or whether he had methylamphetamine on him on this occasion.
Discussion
This trial was conducted on a very narrow basis by the prosecution with a view to excluding the possibility of the ingestion having occurred anywhere other than at the child’s home. However, they failed to adduce any evidence that rebutted the consistent version given by the accused of her attendance at another premises. Nobody who had been identified by the accused as being at the barbeque and appeared to be known to the police was called to give evidence. There was no evidence that suggested the barbeque had not occurred or that the accused had not been to the barbeque. There was no evidence from the person called T.
There is ample evidence that the accused was a user of methylamphetamine in the lead up to 22 April 2019. She admitted it. The hair sample results support it. She had been consuming it while her child was in close proximity. In all likelihood the child had been exposed to it on many occasions, when the accused was consuming it. The child’s hair sample supports such a finding.
However, the event that occurred on 22 April 2019 was not the result of passive ingestion by the child nor was it an accumulation of the substance in her system.
This trial has been conducted by the prosecution on the basis that the ingestion of the drug by the child occurred at the child’s house, when the child obtained access to methamphetamine whilst unsupervised. There was no evidence that the police located any methamphetamine at the house. There was no evidence that the accused had cleaned up or disposed of the drug. There was evidence of another person being at the house asleep in the bed when the police arrived and an inference to be drawn, he had been there when the video was taken. There was no evidence from him or about him, in the sense of his drug taking or otherwise. There was no testing or analysis of the implements taken from the house.
Whilst I accept that the child consumed methylamphetamine, probably orally and probably a relatively large quantity, there is no evidence as to where the child was at the time when that occurred. Although the video was taken at the accused’s home, I cannot, on the evidence that has been presented in this trial, find that the child consumed the methylamphetamine in her home. She may have been at the barbeque in the room with the other children when she did so. I cannot conclude that the accused lied to the police about her movements on the evening of 22 April 2019. There is simply no basis to do so. I cannot exclude as a reasonable possibility that the accused and the child were at the barbeque when the child consumed the drug and they returned home after that.
If this is so, then I must assess whether the defendant was or ought to have been aware that there was an appreciable risk that harm would be caused to the victim by the consumption of methylamphetamine. The only evidence I have before me in relation to this comes from the accused’s interview with the police. There is no evidence that she knew anyone at that barbeque was consuming methylamphetamine nor that methylamphetamine may have been accessible to the child at any stage. There are no proven facts from which I could draw an inference as to this element of the charge.
The prosecution therefore has not proven beyond reasonable doubt that the accused was or ought to have been aware of the appreciable risk of harm to the child. If that is so, then the prosecution has clearly not proven beyond reasonable doubt that she failed to take steps that she could reasonably have been expected to take in the circumstances to protect the child from harm.
I accept that on her own version she left the child unattended in the lounge room for some time. The child however was three years old. The child was mobile. The accused remained at the premises. There is no suggestion that the child was unable to speak to the accused or get her attention if she was needed to do so. There were other children present. There is no evidence of methylamphetamine being available at the premises. Although some may be critical of the accused for having allowed her child to remain in that situation for some time unsupervised it could not be regarded as being so unusual as to give rise to any criminal sanctions.
Even if the child consumed the methylamphetamine at her own home, I have been presented with no evidence as to how it was accessible to her. The police did not locate any of the drug at the home. There is no evidence that the accused disposed of the drug. There was no evidence as to whether T may have left the drugs in a position that the child could gain access to them.
There was evidence that Joshua Davies may have left a backpack with a bottle that contained methylamphetamine at the premises. There remained an uncertainty whether this was the premises where the BBQ was or the accused’s home. He denied this and no backpack was located by the police.
In the circumstances, that being so many possibilities arise in relation to this case, it could not be said that the prosecution have proved beyond reasonable doubt, that the accused was or ought to have been aware of the appreciable risk that harm would be caused to the child by the act and that she failed to take steps that she could reasonably be expected to have taken in the circumstances to protect the child from harm.
There is no evidence that she left methylamphetamine where it was accessible to the child or that she failed to adequately supervise her child in the circumstances that enabled her child to consume methylamphetamine when there was an appreciable risk of that having occurred.
There is no doubt that the child consumed methylamphetamine and in a quantity that caused her to suffer significant symptoms. These symptoms include agitation, hyperactivity, babbling, hallucinations, vomiting and other effects that lasted for about 48 hours. The impact on the child was significant. The impact on those who witnessed it was also significant. However, the fact that the child consumed it and the fact that her mother had a duty of care for her at that time does not mean that the prosecution, in this case, have proved the elements of the offence of criminal neglect.
In order to prove the charge of criminal neglect, the prosecution need to prove the following:
·that the child suffered harm as a result of an act;
·that the accused at the time of the act had a duty of care for the victim;
·that the accused was or ought to have been aware there was an appreciable risk that harm would be caused to the victim by the act;
·that the accused failed to take steps that she could reasonably be expected to have taken in the circumstances to protect the child from harm; and
·that her failure to do so was in the circumstances so serious that a criminal penalty was warranted.
On the evidence before me, I find that the prosecution has failed to discharge the onus in respect of elements 3, 4 and 5.[37] The accused is not guilty of the charged offence.
[37] See elements of offence in [21].