R v JM - [2010] ACTSC 35

R v JM
[2010] ACTSC 35 (21 APRIL 2010)

CRIMINAL LAW – Child neglect – s 39(1)(b), Crimes Act 1900 (ACT).
CRIMINAL LAW – Application, no evidence to justify a conviction – “no case to answer” – prosecution to prove mens rea beyond reasonable doubt.
CRIMINAL LAW – Elements of the offence – existence of mens rea in offence – fact legislature has made conduct a criminal offence provides some implication about the mental element of the conduct proscribed.
CRIMINAL LAW - Elements of the offence – Child neglect – s 39(1)(b), Crimes Act 1900 (ACT) - actus reas, does not require actual harm or injury to child, it requires a failure to provide proper lodging, food, clothing or nursing and necessary medical or dental care – mens rea, intention or reckless conduct in alleged neglect.
CRIMINAL LAW – Elements of the offence - Child neglect – s 39(1)(b), Crimes Act 1900 (ACT) – proving mens rea – inferences drawn from evidence.

Crimes Act 1900 (ACT), s 39(1)(b)
Children and Young People Act 1999 (ACT), part 7.3
Work Safety Act 2008 (ACT)
Child Services Act 1986 (ACT), s 139(1)

Doney v the Queen (1990) 171 CLR 207
R v Galbraith [1981] 1 WLR 1039
R v Bilich (1984) 36 SASR 321
Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
Harce (1986) 22 A Crim R 299
Director of Public Prosecutions v Bradley (2009) 3 ACTLR 159
R v Fischetti [2003] ACTCA 5
R v Davis (1917) 40 OLR 352
R v Senior [1899] 1 QB 283
R v Hayles [1969] 1 QB 364
R v Shepherd [1981] AC 398
R v C M (2005) 152 A Crim R 455
Attorney – General’s Reference (No 3 of 1987) (1987) 57 SASR 1

EX TEMPORE JUDGMENT

No. SCC 482 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 21 April 2010

IN THE SUPREME COURT OF THE )
) No. SCC 482 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R

v

JM

ORDER

Judge:  Refshauge J
Date:  14 April 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application made by Ms Boss on 13 April 2010 that there was no evidence to justify a conviction is dismissed.

The accused has been charged with four counts of an offence against s 39(1)(b) of the Crimes Act 1900 (ACT) which provides:
(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 two years or both.
At the date of each count, namely 22 June 2008, JM had four children in her care or for whom she had parental responsibility. Thus, each of the four counts referred to each one of the four children aged between five and 13 years old at the relevant time.
The prosecution has now closed its case and Ms B Boss, counsel for JM, has applied for an acquittal on the ground that there is no case to answer.
The evidence.
The evidence was that the children of JM had been subject to a care order, apparently made under part 7.3 of the Children and Young People Act 1999 (ACT). This order expired on approximately 16 May 2008.
Whilst that ended the obligations of the Care and Protection Group in the Office for Children Youth and Community Support in the Department of Disability, Housing and Community Services (Care and Protection), it did not end their involvement. During the currency of these orders, the relevant Chief Executive of the department had a supervisory role to ensure that the children were safe and stable at home, through visits to the home or school by the delegated case worker to ensure that all was satisfactory and that JM was coping well with looking after the children.
Positive reports were received and the decision apparently made not to seek a continuation of the existing or a further care order.
After the expiry of the order it was standard operational procedure for officers of Care and Protection to maintain a level of involvement with the family for about six months. This is to ensure that all issues have been resolved and that the family is coping well. Arrangements can also be made for referral to other services to assist or to support the family. In this case, these involved the schools at which the children attended, Menslink, Marymead and Winnunga Nimmityjah Aboriginal Health Service.
Under this procedure, and as a result of a report received at Care and Protection of instability in the family, two officers of that agency visited the home of JM in Ainslie on 2 June 2008 to conduct what was known as an appraisal.
They attended at 9.30 am, but for reasons not presently relevant returned at about 11 am. JM was not there, but another woman, MC, was present. MC told the officers that JM was “quite fragile” and feared she may have to be hospitalised. JM returned a short time later and the workers entered the house.
JM was initially unreceptive, perhaps even hostile. This was not entirely unexpected or an uncommon experience for such workers who are seen as those who remove children from their mothers and interfere in the lives of families with whom they interact. In any event, the workers were shown into the front room called “the lounge room” in these proceedings.

The general description of the room by both workers was that it was “generally clean and tidy”, “acceptable…quite reasonable condition”. JM’s hostility moderated and she did engage with the workers. She described a safety plan for herself and the children. The workers sought access to the rest of the house and eventually JM agreed, but on condition that no photographs were taken.
The purpose of that condition was unclear, but it may be because she was conscious of the state of the house and the view that the workers and others would have of it. Workers agreed to the condition and walked into the dining room. It was in something of a state of disarray: there was washing, some dirty and some clean, and two chairs on the table. Other washing was piled up in the room and a lot of toys. Access to the outside was restricted.
MC was in the kitchen, apparently cleaning it. It was generally tidy. The workers went to the bathrooms which were generally clear and clean though there was dirty water in the bath. The laundry was full of clothes and it was not easy to open the door as a result. The pile was such as to obstruct access to the outside which was through the other door to the laundry.
The workers looked through the bedrooms. They were messy with clothes and toys about, making it difficult to access some of them. One bedroom had been used by a lodger and was in a bad state. JM was angry about it for some reason. There were ashtrays with used cigarette butts, empty beer bottles and general mess in the room. The workers emphasised the need to clean up as the obstruction to exits was hazardous. They also spoke to MC who was temporarily living there to support JM and assist in cleaning up. The workers explained that they would have to return later and then left.
At about 6.10 pm on 9 June 2008, two Australian Federal Police (AFP) constables attended at the premises in response to a call about a possible burglary. They were met by one of the children, but, shortly after, JM arrived with one of the other children and took them into the lounge room. They described it as in a reasonable state of cleanliness and tidiness.
JM stated that she suspected a burglary had occurred with entry though the back door of the house. The constables were taken to that area. They observed that the house was very untidy or in “disarray”. There were clothes and personal items scattered throughout the floor and on the tables and benches. It appeared as if it had been ransacked and was inconsistent with what they had seen in the lounge room.
The kitchen had crockery and foodstuff scattered throughout. The bedroom was also described as in disarray. The laundry was full of clothes. Indeed, the constables were unable to ascertain where entry had been gained because of the amount of clothing and debris blocking access to the door. JM said the house had been cleaner that morning before she left.
The constables took photographs. The photograph of the laundry showed what appeared to be a crack in the door jamb. Clothes were to be seen piled high on the washing machine and on the floor in a pile against the door and as high as the washing machine.
The constables were shown into the master bedroom, from where JM thought items had been stolen. The bedroom was accessed with difficulty and only by climbing over a pile of clothes.

The Constables had no recollection of seeing any pets. The constables saw the children and said that there was nothing untoward about them and nothing specifically drew their attention to them.
On 10 June 2008, two other AFP constables and a sergeant attended the house. They were met by JM and went into the lounge room. They observed that the room was relatively clear and the floor free of clutter. One of the children was asleep on a couch. JM said that the child was sick.
There was a conversation about getting a mobile phone from the kitchen. One of the constables went with JM and described what happened was follows.
What did [JM] then do?---She escorted me into a door which was off the lounge into a hallway. The rest of the house was kept dark so I couldn’t see the rooms. She went up to her room on the left, which was the kitchen, and I stopped because there was a pile of rubbish or clothes on the floor - I couldn’t tell, because it was dark - which was about a foot high and I would have had to step over it. She then hesitated and turned around and said the phone wasn’t in the kitchen and escorted me back out to the lounge room.
Now, what was her demeanour when you said she escorted you out?---She was quite agitated. She didn’t want me in there for any longer than I had to be.
The constable said also that he saw a table further up with a silhouette of a lot of rubbish on it. He did not go anywhere else in the house and the other police officers did not go beyond the lounge room. The constable also said he had some concerns about the welfare of the children because of the sick child and the condition of the house. As a result, he filed a report with Care and Protection suggesting that the children were not being cared for adequately.
At about 4 pm on 13 June 2008, two AFP constables, including one who had attended on 9 June 2008, attended at the premises in response to a complaint about another possible burglary. They went into the lounge room. The four children, the subject of the counts on the indictment, were there watching television. The constable who had been there before described the lounge room as in the same condition as before.
The constables were then taken through the kitchen/dining room area to one of the bedrooms. They noticed crockery, pots and pans and cutlery on the kitchen benches. In most rooms, except the lounge room, they saw piles of clothing. The bedroom was not the master bedroom that the constable had previously entered. There was “a massive amount of clothing in the room and other items.” It made it difficult to open the door. They were shown a broken window and later went outside. They saw that most of the glass was outside in the yard.
The constable was asked to look at some photographs taken on 26 June 2008. He said the state of the kitchen shown in some of the photographs was the same when he saw it on 9 and 13 June 2008. He was also shown photographs of the dining room and it again appeared to be in the same condition as he had seen it before. Photographs of the bedroom he entered on 13 June 2008 depicted the state in which he had seen it on that day. He also identified photographs of the lounge room as being similar to the state in which he had seen it previously. He was shown photographs taken in the same series showing the laundry and said it showed the same state as on the days he saw it.
As mentioned earlier, the workers from Care and Protection had advised that they would return to the premises, and they did so on 18 June 2008. JM met them and took them to the lounge room. She was quite agitated and, in the words of one of the workers, did not “engage” with them at all during this interview. She was agitated, angry and unreceptive. The room, however, was much as it had been at the earlier visit.
JM told them that she intended leaving the ACT and a brother from Queensland, whose name she declined to give them, was coming to Canberra that day to collect her and pack up the house and take the children to live with him in Queensland. She did not appear interested in referrals to community support facilities in Queensland. The workers sought access to the house by JM, but JM adamantly refused to permit it. She did permit them to speak to one of the children, but the child was not particularly responsive, and they did not persist.
The workers were told that MC had left and returned home to Belconnen. They discussed support through Marymead, but JM was not keen to pursue that option. She had, however, accessed Winnunga Nimmityjah Aboriginal Health Service on her own initiative and attempted to contact Menslink for her elder son.
On 22 June 2008, a number of members of the AFP attended the premises at 9.30 pm. JM had left there at 8 pm. The four children were by themselves in the premises. Police had a conversation with the two older children. The police then made contact with Care and Protection. Attempts were made to contact JM, but she terminated a call to her mobile phone and then turned it off. Police left a message on her voice mail.
The police then entered the premises at about 10 pm to check on the welfare of the children and to check that JM was not in fact there. Four children were in the lounge room described as “huddled together” under a blanket watching television. The carpet appeared dirty and stained and there were food scraps, empty food packaging, rubbish and some clothes scattered across the floor and on the furniture. There were two small dogs in the room. They were white but appeared to have dirty coats and paws. Police formed the view that the room was unsanitary, particularly with the presence of stale and rotting food.
Police officers then entered the other rooms of the house. The master bedroom was full of clothes and rubbish, which was on the floor and on furniture. The bed was “submerged” in rubbish and clothes while the large wardrobe appeared to be empty.
In the kitchen/dining room area, the floor was covered in linoleum. Police officers noted that it was sticky underfoot, stained with dog faeces and stale food and heavily cluttered with rubbish, which included cans that had been opened, leaving jagged edges, rotting food and large amounts of clothing. Access to the kitchen was limited and problematic because of the rubbish. The kitchen bench tops were stained with old food residue, spattered oils and dried liquids. A large number of uncleaned crockery, cutlery, cooking utensils and decaying food and empty food containers cluttered the benches. Access to the water taps was all but impossible. Knives, scissors and other sharp implements were also scattered about the bench tops. The cupboards were bare and a small amount of food, not including bread, milk or eggs was in the pantry. Police officers noted a strong smell of decaying food, stale milk and animal odour.
The dining room was in a similar state, with uncleaned dishes on the table, large knives and a crudely opened can of dog food with the jagged edges. The floor had smears of dog faeces and droppings were evident, too. A couch was piled high with clothes and rubbish. The door from the dining room to the exterior was blocked by rubbish and clothing, which a police officer considered a fire hazard.
On the floor of the shower unit, just up the hall from the dining room, were dog faeces. In the bathroom next door, the shower screen had been shattered. Access to the rooms was obstructed by chairs. The basin had what appeared to be dried vomit in it, blocking the plug hole. Further down the hall were four further bedrooms. The first appeared to be in a relatively orderly state. There were similar stains on the carpet to those seen in the dining room. Clothes were piled around and particularly around and over the heater in the room. The clothes were dirty and the bed sheets thin and stained.
In the next bedroom entered, a large amount of clothing, toys and rubbish prevented access to the room, but through the partly opened door, the condition of the room could be seen. No bed could be seen. The floor was unable to be seen because of the large amount of clothing, rubbish, toys and furniture items on it. The room was considered as uninhabitable and a significant fire risk.
The second bedroom on the left of the hallway had no furniture except for a book case. The carpet was stained and there was decaying food on the floor. The fourth bedroom was difficult to access because of clothing and rubbish piled against the door. There was a steel bunk with two beds and the floor was largely visible. The bed linen was dirty and stained. Stale food and beverage items were on a chest of drawers.
The laundry was cluttered with rubbish, old suitcases and washing baskets. A number of liquids were stored at a height accessible to the children and, in particular, a bottle of cloudy ammonia was open on the dryer. The rear door was obstructed and inaccessible, thus useless as an exit for anyone in the house, especially in the case of emergency.
Alternative arrangements were made for the care of the children. Attempts were made a few days later to contact JM, and she was located on 25 June 2008 and arrested. She was interviewed but made no admissions. Later, a static guard was placed at the premises.
On 26 June 2008, police returned to the premises and a video was made of the state of the premises and a series of photographs were taken. These were tendered. They showed the premises in the condition described above.
It was worth noting one incident. When the stove was opened, a pan was discovered which had growth, likely mould, on it and the stench that it gave off caused discomfort to the police officers present, one actually dry retching.
Clearly, the premises were in a dangerous and unsanitary condition and did not portray a condition which was suitable for children, especially young children, being left there without a responsible adult to supervise them.
The photographs were shown to a number of witnesses, including one of the case workers who had attended the premises on 23 June 2008. All stated the photographs showed the premises as they had seen it on 22 and 23 June 2008, as the case may be. The Care and Protection worker described the premises disclosing risks for the children, the kitchen being unsuitable for food preparation and a cause for concern.

The other worker was shown photographs of the house taken by AFP officers on 26 June 2008 and was asked to identify concerns about certain matters from his perspective as an experienced child care officer. These included:
·the general state of the kitchen showed dangers of tripping over the items on the floor, bacterial infection and a chair which might allow a small child to access the sink or the stove;
·the contents of items in the kitchen had been left in a state where they became unsanitary, risking the cooking of food with them, or in their vicinity;
·a number of large knives left accessible to young children where they could be cut or injured;
·cans opened and left with jagged edges which could injure children;
·foodstuffs in the refrigerator where use-by dates had well expired;
·half-eaten food and scraps of food lying around where children could eat them, providing a health hazard, some on the unclean floor;
·dog faeces in the dining room and shower, which was unsanitary;
·dried vomit in the bathroom wash basin;
·broken glass shower screen, no toilet paper in the toilet, access to chemicals, especially the open bottle of cloudy ammonia, which was a hazard to the children who may ingest it.
The application.

Ms Boss, who appeared for JM, applied for a verdict by direction on the ground that there was no evidence that would justify a conviction, commonly referred to “no case to answer.”
She submitted that there was no evidence that would satisfy the requirement that the prosecution had to prove JM’s mens rea beyond reasonable doubt. She submitted that the evidence that JM was not coping, that she had sought and gained assistance from MC, that she had sought help from agencies such as Winnunga Nimmityjah and that her family were coming to assist her, were all contra-indications to the relevant mental element and had not been negatived.
Mr Todd, who appeared for the prosecution, submitted that the test was not that such inferences had to be negatived, but that such inferences had to be ignored at this stage and the evidence tested on the basis of available inferences in favour of the Crown case. If there were such inferences, the application could not succeed.
The High Court has established the appropriate test in such an application. In Doney v the Queen (1990) 171 CLR 207, the court considered the UK formulation of the test in R v Galbraith [1981] 1 WLR 1039 (at 1042) and modified it somewhat. The court said (at 214-215):
It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there was a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
This is the test I must apply. I cannot accede to the application merely because I consider that a verdict of guilty would be unsafe or unsatisfactory.
The evidence of the prosecution is to be taken at its highest and the test is whether on that evidence, the accused could be convicted. As King CJ said in R v Bilick (1984) 36 SASR 321 (at 335):
The question of law is whether on the evidence as it stands, the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it capable of producing in the minds of reasonable jury satisfaction beyond reasonable doubt.
The same test is to be applied in deciding a submission of no case to answer and a case depending upon circumstantial evidence as in the case depending on direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus, and that evidence is capable of supporting an inference of mens rea there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Counsel in which direct “evidence” is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case of the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused? That, as it seems to me was the question which the learned trial judge was required to answer in deciding on submission of no case to answer.
Particularly relevant to this case is his Honour’s expansion on this consideration in Question of Law Reserved on Acquittal (number 2 of 1993) (1993) 61 SASR 1 where (at 5). His Honour said:
It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that a jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilt he might be set aside by the Court of Criminal Appeal as unsafe. Neither it is any part of his function to decide whether any possible hypothesis consistent with innocent are reasonably open on the evidence, (Attorney-General’sReference (No 1 of 1983) [1983] 2 VR 410; Thorpe v Abbotto (1992) 26 ALD 668; 106 ALR 239. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as no reasonably open on the evidence.

See also Haas (1986) 22 A Crim R 299 where (at 304) Hunt J said:

The following propositions may be gleaned from the authorities. The evidence in support of the Crown case, and the inferences available from that evidence, must be taken as having been accepted by the jury without contradiction, qualification or explanation for the purposes of deciding the no case to answer application Jayasena [1970] AC 618 at 624. Similarly, the evidence in support of the case of the accused - using the “case” in a loose sense - must be taken as having been rejected by the jury: Rothery (1925) 25 SR (NSW) 451 at 461 and Towers at 5-6. As the Crown case depends upon inference, the facts from which those inferences may be drawn must be capable of being accepted by the jury beyond reasonable doubt: Chamberlain’s case at 536, 570, 599. The evidence will be held to be capable of establishing the guilt of the accused only if it is capable of establishing each element of the Crown case beyond reasonable doubt: May v O’Sullivan (1955) 92 CLR 654 at 658 and Plomp’s case at 247. The same test is applied on a no case to answer application: Haw Tua Tau v Public Prosecutor [1982] AC 136 at 152

This is the proper test to take in this Territory: Director of Public Prosecutions v Bradley (2009) 3 ACTLR 159; R v Fischetti [2003] ACTCA 5 (at 37)
The offence
The question then arises as to the elements of the offence and the necessary mens rea which should accompany any physical act. Ms Boss pointed out that in the visits prior to 22 June 2008 most of the police and Care and Protection workers had expressed no concern about the children or their apparent health and wellbeing.
One of the constables who attended the premises on 10 June 2008 did have a concern about the adequacy of care and made a report to Care and Protection. It is true that the children were seen by at least one of the Care and Protection workers coming home from school on18 June 2008 and they were neat and tidy in school uniforms.
There was no evidence adduced to suggest that as at 22 June 2008 the condition in the house had caused any actual injury or impairment to the children’s health or wellbeing. It does not seem to me that it is an element of the offence that injury had to be actually caused to the children before the offence can be made out.
It is true that in R v Davis (1917) 40 OLR 352 the Ontario Supreme Court did hold that, in respect of a charge that by reason of negligent, cruelty or depravity, the accused had caused the home of a child to be an unfit place for a child under that statute there concerned it had to be shown, “there was actual injury to the child” (at 354).
The context there, however, was that the accused had committed adultery while the child was in the house but asleep. It seems to me that what was there in issue was that the sleeping child could not be affected by the conduct and so was not relevantly “injured.” There was, however, no reasoning in the case to support the conclusion. In any event I do not consider that there is any principle in that case which assists my deliberation.
A number of UK cases have considered the issue. There the statute is in different terms and so one must be careful about the way in which decisions and principles, based on different concepts, are applied to the statute I have to consider.
Importantly, 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.”

The most considered situation is where the children has fallen ill (R v Senior [1899] 1 QB 283) or been in an accident (R v Hayles [1969] 1 QB 364), where medical treatment has not been sought expeditiously or at all and the child has died. Obviously, the injury there, being the death of the child, was evidence of the criminal nature that the failure to seek medical assistance was neglectful.
In R v Shepherd [1981] AC 398, however, the House of Lords, though also dealing with a child who had died from an illness when timely medical treatment had not been obtained, did not, in any of the speeches of their Lordships in the majority, suggest that actual injury was an essential element where neglect was at issue.
Thus, Lord Diplock said (at 406)
The word ‘neglects’ was quite general, qualified only by the requirement that it must be in such a manner as to be likely to cause the child unnecessary suffering or injury to health. One cannot quarrel with Lord Russell’s statement that, “Neglect is the want of reasonable care” if all that means is that a reasonable parent who was mindful of the physical welfare of this child and possessed of knowledge of all the relevant facts would have taken steps that the accused omitted to take, to avoid the risk of unnecessary suffering by a child or injury to his health.
His Lordship noted there the danger that this invites confusion with negligence and this is an important matter for care must be taken not to confuse the two concepts.
Lord Keith of Kinkel also made the important point (at 417-418) that subsequent injury or impairment did not prove neglect for a person with parental responsibility who may take all reasonable care, but nevertheless, the child might suffer further injury to his or her health. His Lordship considered that neglect could occur where the person with parental responsibility perceived the need and deliberately did nothing, was negligent or was blameless because he or she did not perceive the need which ought to have been perceived by a reasonable parent. The qualification “wilfully” meant, however, that only deliberate or reckless neglect was punishable.
The only consideration of the provision under which JM is being prosecuted is in R v C M (2005) 152 A Crim R 455. In that case little attention is given to the actus reus of the offence. His Honour held, however, that the terms of the section which this provision replaced could be used as a guide to the meaning of neglect but the explanatory memorandum stated that the present provision was, “A restatement in clearer terms,” of the previous provision.
Relevantly, that provision was s 139(1) of the Child Services Act 1986 (ACT) which was as follows:
A person shall not,
(a) ill-treat a child who is in the person’s custody or under a person’s temporary control or,
(b) fail otherwise than for financial reasons to provide adequate and proper lodging, food or clothing or nursing, medical or dental care and attention for a child who is in the person’s custody.
It seems to me that his Honour was, with respect, correct in requiring a reference to s 139(1)(b) to understand the meaning of neglect. I also take into account that unlike the UK provision, the use of “ill-treat” is separately specified in this section and appears to create separate offences (cf R v Hayles).
It further seems to me that it is unlikely that in a protective provision such as this, the legislature would not expect the offence to await injury to a child where the care was less than proper or adequate. That some crimes can and should only be punished where they have resulted in injury is by no means universal.
Offences such as threat to kill are examples, as are offences such as failing to comply with duties such as to maintain premises in a condition that is consistent with work safety under the Work Safety Act 2008 (ACT) where there are different offences for failure which expose to risk of harm and for failures which cause harm.
Accordingly, 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.
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.
In R v CM, Crispin J held that, despite the absence of the word “wilfully” in the ACT offence and its presence in the UK offences, it should not be held that there is no relevant mental element and that the offence is one of strict liability. I accept that no inference can be drawn from the semantic differences between the two statutes.
As Lord Edmund-Davies said in R v Shepherd (at 411)
Recognition that the necessity of establishing mens rea may (in some types of cases) be properly dispensed with does not lessen the cogency of the oft - ignored warning of Brett MR that
It is contrary to the whole established law of England (unless the legislation on the subject has clearly enacted it) to say that a person can be guilty of a crime in England without a wrongful intent without an attempt to do that which the law has forbidden (Attorney-General v Bradlaugh (1885) 14 QBD 667, 689).
It is sadly to be said that the law reports are scattered with illustrations of departures from the salutary approach. But the tide has at last, fortunately turned, a fact aptly recognised by your Lordships’ House in Sweet v Parsley [1970] AC 132, where Lord Reid said, at p 148:

Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is the end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

Like Crispin J, I see nothing in s 39(1)(b) of the Crimes Act 1900 (ACT) to suggest that no mens rea is appropriate. Like Lord Diplock in Sweet v Parsley [1970] AC 132 (at 162), I consider that, “The mere fact that parliament has made the conduct a criminal offence gives rise to some implication about the mental element of the conduct proscribed.”
Thus, there must be some intention or recklessness about the conduct of JM in what is alleged to be the neglect before it can be said to make it criminal under the statute.
Consideration
I have anxiously considered this matter. There is, in my view, sufficient evidence of a failure to provide proper food and lodging for the children to meet the standards set by Doney v The Queen. The mental element is, of course, usually provided by inferences drawn from the evidence unless there are admissions contemporaneous statements or the like.

Those inferences on which I need to rely are those which favour the prosecution, and indeed, I must assume that any inferences to be drawn in favour of the accused have been rejected. Ms Boss relied heavily on evidence which suggested that JM was overwhelmed by the task of looking after four children in a five bedroomed house as a single parent.
It is true, that one of the Care and Protection workers described her as “fragile over the events [that is, presumably the care orders], and feared she might have to be hospitalised”. The other worker said that she would benefit from assistance. He had not formed the opinion that she was overwhelmed by the housework and caring for the children. She was, however, feeling cut off and isolated.
Inferences from such evidence may be able to be drawn, that the neglect, if such is found, was neither intentional nor reckless. Those inferences, however, are irrelevant to this application. On the other hand, there were a number of matters from which I could draw inferences based on the prosecution’s case which could, if accepted, meet the test of justifying the existence of the relevant mens rea to the appropriate standard of beyond reasonable doubt. For example, on a number of occasions, JM was hesitant about letting officials see the house beyond the lounge room which could found an inference that she was aware of its unsatisfactory state. She had also been told even on 2 June 2008 that there were things that had to be done around the house to make it safe and adequate.
While there may have been other explanations, her failure to return home on 22 June 2008 could found an inference that she was aware that the house provided inadequate and less than proper food and lodgings for the children. That she had help from MC could also justify an inference that she knew that the house was in an unsatisfactory state and that cleaning would put it in a state where it provided adequate and proper food and lodging.
There may be other sources of inference but I have not had the benefit of other matters drawn to my attention.
In my view, the evidence is such that there is evidence which could justify a conviction and that the jury could find beyond reasonable doubt that the mens rea was established.
I note that, contrary to Attorney-General’s reference (No. 3 of 1987) (1987) 48 SASR 1 where Legoe J said (at 24), “that reasons for such an application ordinarily given in the absence of the jury need not be extensive or elaborate”, these reasons have been detailed.
It seems to me that there were issues that needed to be addressed and which may assist counsel in the further conduct of the trial. I dismiss the application.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 April 2010

Counsel for the Prosecution:  Mr C Todd
Solicitor for the Prosecution: Director of Public Prosecutions ACT
Counsel for the Defendant:  Ms B Boss
Solicitor for the Defendant:  Darryl Perkins Solicitors
Date of hearing:  12 - 14 April 2010
Date of judgment:  21 April 2010