R v JM

Case [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:

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

  1. 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. 

  2. 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.

  3. The prosecution has now closed its case and Ms B Boss,…

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Details
AGLC
R v JM [2010] ACTSC 35
Case
[2010] ACTSC 35
Decision Date

CaseChat Overview and Summary

In the matter of R v JM, the defendant was charged with child neglect under s 39(1)(b) of the Crimes Act 1900 (ACT). The case involved a dispute regarding whether the prosecution had presented sufficient evidence to prove that JM had neglected her children by failing to provide proper food, lodging, and care. The court was tasked with determining whether there was enough evidence to justify a conviction and whether the necessary mens rea had been established beyond reasonable doubt. Ms B Boss, counsel for JM, applied for an acquittal on the basis that there was no case to answer. The court considered the evidence, which included reports of the children being subject to a care order, the expiry of that order, and subsequent visits by Care and Protection officers who found the home in a state of disarray. The court also noted that JM had been described as feeling overwhelmed and isolated.

The legal issues before the court were whether there was sufficient evidence to establish a failure to provide proper care and whether the mens rea for the offence of neglect had been proven. The court examined the evidence to determine if there was an intention or recklessness on JM's part in neglecting her children. The court noted that while JM's circumstances and state of mind were relevant, the crucial factor was whether the jury could find beyond reasonable doubt that the mens rea was established based on the evidence presented. The court considered inferences that could be drawn from the evidence, such as JM's hesitation to let officials see parts of the house, her awareness of the unsatisfactory state of the house, and her failure to address the issues despite being informed of them.

The court concluded that there was sufficient evidence that could justify a conviction and that the jury could find beyond reasonable doubt that the mens rea was established. The court dismissed the application for an acquittal, finding that the prosecution had presented enough evidence to proceed to trial. The application made by Ms Boss on 13 April 2010 that there was no evidence to justify a conviction was dismissed.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.