R v Nguyen
[2012] VSC 579
•29 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
Ruling 1 SCR No. 0109 of 2012
| THE QUEEN |
| v |
| MICHELE NGUYEN |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 26, 27 November 2012 | |
DATE OF RULING: | 29 November 2012 | |
CASE MAY BE CITED AS: | R v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 579 | |
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Ruling: s 493 and s 494 of the Children Youth and Families Act 2005 (CYFA) considered. Elements of Unlawful and Dangerous Act Manslaughter considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford S.C. | Office of Public Prosecution |
| For the Accused | Mr S Holt Ms P Murphy | Victoria Legal Aid |
HER HONOUR:
The accused, Michele Nguyen, has been charged with the manslaughter of her daughter Thy Tran on 5 November 2011. The child was born on 29 December 2010 and was aged approximately 10 months at the time of her death.
The Crown seek to prosecute manslaughter before the jury on two alternative bases, being manslaughter by unlawful and dangerous act based upon two separate sections of the Children Youth and Families Act 2005 (CYFA) s 493 and, s 494. The Crown also seek to argue the case of manslaughter on the alternative basis of gross or criminal negligence. The issue that arises for determination is whether ss 493 and/or 494 of the CYFA are capable of amounting to unlawful acts for the purpose of an unlawful and dangerous act manslaughter.
Prior to examining those sections, it is necessary to set out the basic circumstances of the alleged offending, which, in relation to the acts which caused the death, are not disputed. The accused had another child by the name of Than Tran born on 22 May 2009, both children had the same father, Thanh Vu Tran ,who was at the time of the death of the child, in custody, in Fulham Prison. Until approximately July of 2011, the accused, her partner, and two daughters had resided with her partner’s mother, Dieu Thi Vo and his stepfather. The partner of the accused was imprisoned around that time and as a result of the other children of Ms Vo being involved in final year at school, university study and other matters, the accused and her two children went to live with her mother, Yen Ngo and her mother’s partner, Ferdie Manabat. The accused remained at her mother’s home for some months and approximately one week before the death of the child Thy, the accused with her two daughters left and commenced residing with a friend Michelle Russo in a rented house in Glenroy.
Prior to her moving to the house in Glenroy where Thy died, she had become involved in significant disputes with her mother and her mother’s partner over the care of her children; Thy and Than – more particularly Thy. There were numerous occasions in the month of October when either the accused’s mother, or the mother’s partner, would return to the home and find Thy, who was aged about 9 months at that point, alone in the house with her mother and older sister absent. Usually the child was in a pusher and placed in front of the television. These are matters that may or may not be relevant or ultimately admissible and have yet to be argued let alone determined.
There had been previous occasions on which the accused had left her daughter, Thy, in the car in her child seat. These occasions were in late October, early November, and on the day on which the child died, albeit a different occasion to the one that caused her death.
On the morning of 5 November the accused and the children woke around 9.30am and at about 11.30am the accused placed both the deceased and her elder sister in her motor vehicle with the intention of taking them for a drive to get them to go to sleep. At that time the air conditioner was on in the vehicle. The accused returned to the house at a time that is not particularly certain, removed the eldest child, Than, from the car and took her into the house. She left the youngest child Thy asleep in the baby seat in the vehicle. All of the windows in the vehicle were shut but a car door remained open. The vehicle was in an uncovered driveway and the outside temperature on that day reached 28 degrees.
The accused informed the police in a subsequent recorded interview that when she went inside she commenced to watch television and after about 15 minutes went out to check upon the deceased. She said she was asleep and she then shut the car door leaving the deceased inside the motor vehicle with all windows up and all doors closed. The accused informed the police that she went back inside, resumed watching television and then fell asleep. She said she woke about 2pm and, immediately upon waking, ran out to the car and found that the deceased was no longer breathing or responsive. The deceased died from hypothermia, being an infant left in a car cabin on a hot day. The child’s body was hot to the touch and when her temperature was recorded by the ambulance officers at the house, it was found to be 41.5 degrees, that temperature being taken some time after her removal from the car.
This is a very brief summary of the factual allegations in this case. There is debate about the relevance and admissibility of the evidence relating to the accused having, on three occasions within a two week period prior to her death, left the deceased in the car whilst it was parked in that, or another driveway. The Crown have referred to the evidence as being admissible as propensity evidence, which of course it is not. This is an offence of manslaughter not an offence involving the intentional killing of a child.
Although not firmly and finally decided, as I have already indicated during argument, the evidence appears to me to be admissible as being relevant to the jury’s determination of ‘what a person in the position of the accused’ would think or believe when dealing with the elements relating to the objective test of either gross negligence or unlawful and dangerous act. I will hear further argument upon the admissibility of this material after counsel have had an opportunity to examine the ruling in this matter.
In relation to this matter the Crown have submitted that both unlawful and dangerous act manslaughter and manslaughter by gross negligence are available and ought be placed before the jury in this matter. The defence have argued that ss 493 and 494 of the Children’s Youth and Families Act 2005 are not unlawful acts upon which the Crown can rely for the purposes of manslaughter by unlawful and dangerous act.
The offences read:
493 Offence to fail to protect a child from harm
(1) a person who has a duty of care in respect of a child –
(a)who intentionally takes action that has resulted, or appears likely to result, in –
(i)the child suffering significant harm as a result of –
(A)physical injury; or
(B)sexual abuse; or
(ii)the child suffering emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged; or
(iii)the child’s physical development or health being significantly harmed; or
(b)who intentionally fails to take action that has resulted, or appears likely to result, in the child’s physical development or health being significantly harmed –
is guilty of an offence and liable to a penalty of not more than 50 penalty units or to imprisonment for a term of not more than 12 months.
(2)Proceedings for an offence under subsection 1 may only be brought by a person after consultation with the Secretary.
(3)A person may be guilty of an offence under subsection 1 even though the child was protected by the action of another person from harm of the type referred to in that sub-section.
The alternative offence upon which the Crown relied is s 494 which reads as follows:
494 Offence to leave child unattended
(1)A person who has the control or charge of a child must not leave the child without making reasonable provision for the child's supervision and care for a time which is unreasonable having regard to all the circumstances of the case.
15 penalty units or imprisonment for 3 months.
(2) Proceedings for an offence under subsection (1)—
(a)must not be brought against a person who is under 16 years of age and is not the parent of the child; and
(b)may only be brought by a person after consultation with the Secretary.
On behalf of the accused, it was submitted that neither of the offences can amount to an unlawful act for the purposes under consideration, on the basis that s 493 is arguably an offence of absolute liability, or at best, strict liability requiring bare negligence. Equally it was submitted that s 494 of the offence of leaving a child unattended was also an offence of at least strict liability and required no mens rea. It was conceded that each of the offences is a criminal offence but it was argued that not all criminal offences amount to unlawful acts for the purpose of consideration of the charge of manslaughter.[1] It was submitted that the question of what amounts to an unlawful act in Australia for these purposes, beyond the basic proposition that it must be a breach of the criminal law has not been determined. Counsel for the accused submitted that the position has not significantly improved since Chief Justice Barwick stated in Pemble v The Queen:[2]
What unlawful acts are sufficient for this purpose are perhaps not yet precisely and fully defined or stated in decisions or in texts: but it may be taken that so far the view is held that to be relevantly unlawful the act must be in breach of the criminal law.
[1]Andrews v The DPP [1937] AC 576
[2](1971) 124 CLR 107.
It was conceded by all parties that the unlawful act must be a criminal offence. In very helpful submissions, counsel for the accused submitted that whilst this is a criminal offence, not all criminal offences will fall into the category of unlawful acts and the issue for the court is the determination where that dividing line is to be drawn, and on which side of the dividing line these offences fall.
Counsel relied upon the speech of Lord Atkin’s in Andrews v the DPP[3] which was cited with approval by Justice Brennan in Bougheyv R.[4] Whilst his Honour was in the minority in that judgment, it was the only judgment that considered the issue of unlawful act and the sufficiency of the specified act to deal with the issue of unlawful act.
[3][1937] AC 576 at page 585.
[4](1986) ALR 609 at 13.
This is an area that appears to have received little judicial consideration. In Wilson v the Queen[5] which dealt with the history of unlawful and dangerous act manslaughter, the court made no reference to the decision in Andrews or Brennan J’s dissent in Boughey v R in relation to this aspect of unlawful act. The minority comprising Brennan, Deane and Dawson JJ, briefly considered the matter of unlawful act and stated:
There is now no difficulty about what constitutes an unlawful act for the purpose of this offence. An unlawful act is one which is contrary to the criminal law. Criminal negligence in the performance of an act which is otherwise lawful is not an unlawful act. Where an act of that kind is involved, the case is one of manslaughter by criminal negligence, not manslaughter by an unlawful and dangerous act.
The major focus of the judgments was upon the level of proof required for the element of dangerousness, and this is the clearest statement of the law as it exists in respect of unlawful act in Australia.
[5](1992) 174 CLR 313.
Counsel for the Crown in this case did not accept that Andrews represented the law in Australia and relied upon the decision of R v Pullman.[6], which the Crown submitted was, although not binding, a highly persuasive authority. That decision also does not follow R v Rau[7], a decision of the Tasmania Court of Appeal, to which reference was made, and having examined the case carefully it is not, in my view, inconsistent with what the court subsequently determined in Wilsonv The Queen, but more importantly however it is not helpful to the decision I have to make in this case.
[6](1991) 25 NSWLR 89.
[7][1972] Tas SR 59.
A similar issue arose before his Honour Justice Lasry in The Queen v Nghia Trong Nguyen in a trial in September of 2010. His Honour in that ruling[8] determined that there was a requirement that for a crime to constitute the unlawful act, for the purposes of unlawful and dangerous act manslaughter, the Crown had to establish that the unlawful act was an offence that required mens rea. His Honour stated:[9]
In my opinion, it is correct to say that if the act said to constitute unlawfulness for these purposes was not one where the unlawfulness required proof of mens rea, then it would not be a crime that satisfies the test of unlawfulness for the purpose of unlawful and dangerous act manslaughter. On the other hand if it does and can be said to be causative of the death of the deceased then it is.
[8]R v Hghia Trong Nguyen (Ruling No 2) [2010] VSC 442
[9]Ibid, [28].
I agree with his Honour that, on the authorities, meagre though they are on this point, that is an appropriate test to determine whether the offence is capable of being an unlawful act for the purposes of unlawful and dangerous act manslaughter.
I turn therefore to examine what are the elements of each of these offences. It should be noted that neither of the offences has been subject to judicial interpretation with the exception of a reference to s 494 in a decision of DFJ v The Secretary to the Department of Justice.[10] The court, comprising Weinberg, Harper and Osborn JJA, heard an appeal by DFJ against a refusal by the Secretary to the Department of Justice to issue a Working with Children Certificate based upon the appellant’s conviction pursuant to s 262(1) of the Children’s and Young Persons Act 1989 (which was re-enacted in identical terms as s 494(1) of the Children’s Youth and Families Act 2005.)
[10][2012] VSCA 177.
The applicant was then caring for his two children aged 2 and 4 in May 2002 when he fell asleep whilst watching the cricket. The two children were able, whilst he was asleep, to open the front door of the housing commission flat in which they resided and make their way towards a busy suburban road. They were seen by a passerby who took charge of them and contacted the police. Upon discovery of his children missing, after he awoke, the appellant contacted the police and was informed the children were safe. The appellant was represented and pleaded guilty to the offence, and was placed on a good behaviour bond. In relation to that offence, the Court stated:[11]
[11]Ibid, [14]-[16].
14.It is strongly arguable that the appellant should not have pleaded guilty to this offence. It is difficult to see how his having fallen asleep in front of a television set, while watching the cricket, could possibly have given rise to the offence under s 262(1). The offence requires proof of an act or omission which must be conscious, voluntary and deliberate. Falling asleep, would not, ordinarily, constitute an act or omission of that kind.
15.Moreover, the offence is one of leaving a child ‘unattended’. It is at least open to question whether, in the circumstances of this case, the appellant ever actually left his children unattended as a result of a conscious voluntary act or omission. True he was asleep while the children were unsupervised in the flat, but they were, at all times, in close proximity, and not, at that stage, unattended. He did nothing personally to cause them to leave the flat.
16.It would be odd to think that someone who did nothing more than fall asleep would be liable for an offence that carries, as a maximum penalty, a significant term of imprisonment.
The court then provided a footnote (footnote 8) which reads:
The provision appears more apt to catch conduct such as deliberately leaving a child unattended in a car on a hot day. Conduct of that kind may well attract a significant term of imprisonment if sufficiently serious.
The Court concluded its discussion of the offence by saying:
That is not to excuse what the appellant did. At the same time, he was clearly not the first father to fall asleep whilst minding his children.
The rest of the decision has no reference or application to the section under consideration in this matter.
In determining whether the offences are offences which require the prosecution to prove an element of mens rea, it must be remembered that there is a presumption that mens rea is an essential ingredient in every offence.[12] Brennan J in He Kaw Teh outlined what he referred to as the general principles and stated:
[12] He Kaw Teh v R (1985) 157 CLR 523 at 528.
Criminal responsibility depends not only upon a person’s act or omission but also upon the circumstances upon which the act is done or the omission made, usually upon his state of mind at that time and sometimes upon the results of his act or omission. However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements – conduct, circumstances and results – are what Dixon CJ in Vallance v The Queen[13] called ‘the external elements necessary to form the crime’. When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in a definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind… the requirement of mens rea avoids what Lord Reid called ‘the public scandal of convicting on a serious charge persons who are in no way blameworthy’ Nowadays a presumption is made that mens rea is an element in a statutory offence though the offence is defined only by reference to its external elements. [14]
[13](1961) 108 CLR 556 at 59.
[14]He Kaw Teh v R (1985) 157 CLR 523 at page 565
At a later stage, Justice Brennan considered the decision of Gammon Ltd v Attorney-General (Hong Kong) particularly the five propositions enunciated by Lord Scarman on behalf of the judicial committee, and he listed those propositions as :
(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2) presumption is particularly strong where the offence is ‘truly criminal’ in character;
(3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;
(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibitive act.
He then continued:
The first three propositions correctly emphasise the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject-matter answers a given description (even so general description as ‘an issue of social concern’), without regard to the whole of the statutory context. The fifth proposition reflects the purpose of the criminal law: to deter a person from engaging in prohibited conduct. The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results that may follow from that conduct (where those results are at least part of the mischief at which this statute is aimed). It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of the results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventative measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.[15]
[15](1985) 157 CLR 523 at 566-7
The s 494 offence, being the offence of leaving a child unattended, requires proof of a mens rea or intent. The matters that the Crown would have to prove are, firstly, the person has control or charge of a child, secondly, that they left the child unattended, that is without supervision or without making reasonable provision for supervision and, thirdly, for a time that was unreasonable having regard to all of the circumstances of the case, the external elements necessary to prove the crime. The mens rea or intent that is implied and that the Crown would have to prove is that the accused intended to leave the child without supervision and/or without intending to make provision for the child’s supervision. Whether the time is unreasonable is a matter of objective determination in relation to all of the circumstances.
The s 493 offence, equally requires, an intent to be proven by the Crown. The matters that the Crown would have to prove are, firstly, that the person has a duty of care in respect of the child, secondly, that the person took an action or actions that were likely to result in or have resulted in the child suffering significant harm as a result of either physical injury or sexual abuse or alternatively the child suffering emotional or psychological harm likely to result in significant emotional or intellectual development damage or further in the alternative that the child’s physical development or health was significantly harmed, or in relation to an omission, the Crown would need to prove that the person failed to take action and that such failure appeared likely to result in, or had resulted in, the physical development or health of the child being significantly harmed.
In respect of s 493(1)(a), the prosecution would have to prove in terms of mens rea that the accused intended to take a specific action that was likely to result or had resulted in one of the three states listed under s (1)(a) or under 493(1)(b), that the accused intended to refrain from doing an action the refraining from which was likely to result in or has resulted in the child’s physical development or health being significantly harmed.
Brennan J in He Kaw Teh conducted a detailed analysis of the issue of mens rea and intent and stated that there had not been extensive examination of the distinctions between the various forms of mens reas and continued:[16]
Thus, Barwick CJ who had noted in O’Connor[17] that mens reas ordinarily requires a general or basic intent at least to do the physical act involved in the crime charged, observed in Ryan:[18]
…There has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to the general intent with which that will was exercised.
Nonetheless, voluntariness and general intent are distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge; the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate but existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or a wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it. A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur…
Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence. Specific intent is not implied. When a specific intent is expressed to be an element it is ordinarily expressed to apply only to results.
[16]Page 569.
[17](1980) 146 CLR at p 76.
[18](1967) 121 CLR at p 213.
It was submitted that in examining whether these offences are offences that can constitute an unlawful act for the purposes of the consideration of unlawful and dangerous act manslaughter that these offences, whilst classified as criminal offences, do not carry moral culpability because they are strict liability based on bare negligence or regulatory in nature. They can reasonably be described as parental negligence provisions and are to be equated, it was submitted, to driving carelessly or negligently. The submission that this was a regulatory offence and one of strict liability included arguments that these offences were summary offences, with one carrying a maximum penalty of only 15 penalty units or three months imprisonment and the other a maximum penalty of 50 penalty units or 12 months imprisonment and neither of those maxima could be regarded as significant terms of imprisonment.
In relation to that, I refer to the description of the three month maximum penalty applicable to this offence as being ‘a significant term of imprisonment’ by the Court of Appeal in DFJ and Secretary to the Department of Justice. Indeed, a number of offences that are significant and carry a mens rea are summary offences.
Having considered all of those matters, I am not of the view that they can be equated to negligent or careless driving. These offences require positive decisions on the part of the persons charged, including a positive decision to take or not take an action, it is not a matter of inadvertence or carelessness. That is what the word intentionally means in the section 493. The offence requires a positive decision to take or refrain from taking a particular action and that action must be of a certain nature.
I am, accordingly, satisfied that this is a matter that is capable of amounting to an unlawful act for the purposes of unlawful and dangerous act manslaughter.
In relation to my finding that the prosecution can present the case on a basis of unlawful and dangerous act manslaughter as well as a basis of criminal negligence, that is a question of law, and statutory interpretation. However, I am somewhat mystified as to why the Crown wish to proceed on both bases, as I fail to see any forensic advantage to the Crown by presenting this matter as criminal negligence. In the outline of particulars of the offence the Crown state:[19]
In relation to criminal negligence the Crown repeats and relies on the matters set out supra. (I interpose here that those matters are the acts and omissions relevant to unlawful and dangerous act manslaughter.) In relation to criminal negligence the Crown also alleges:
I.The accused negligently caused the death of her child by failing to make reasonable provision for the child’s supervision and care in circumstances where she had a duty to do so.
J.The accused failed to remain awake and alert so as to ensure the safety of her child in circumstances where she was responsible for the care of her infant.
[19]Page 3, para 2, Prosecution Statement of Further Particulars of the Offence.
Accordingly, the Crown case in respect of unlawful and dangerous act manslaughter and the acts and omissions relied upon can be subsumed within the criminal negligence case that the Crown would be putting forward. I am unable to see what forensic disadvantage the Crown would suffer if they did not proceed with the unlawful and dangerous act manslaughter but proceeded only to trial on the basis of criminal negligence. This would make the matter far more straightforward and less confusing to a jury.
In the Court of Appeal in New South Wales Handley JA, James and Lavin JJ in the matter of R v Ian Eric Hayne[20] had to consider the two bases put forward in respect of manslaughter. The first being unlawful and dangerous act manslaughter, and the second being criminal negligence manslaughter. Whilst finding that the doctrine of unlawful and dangerous act did apply in this case on a very technical basis, being a ‘temporary functional derangement’, his Honour was critical of the decision of the Crown to prosecute the case in this manner and stated:[21]
This challenge therefore fails. I suspect, and would hope, that the jury ignore the technicalities of the Crown case on unlawful and dangerous act, and decided the case on criminal negligence. The prosecution would have done well to rely only on criminal negligence. One wonders if any jury that rejected criminal negligence would convict because there was some temporary or permanent damage to an old carpet, or because the house was made unusable for a time. The Crown should have had the courage and confidence to confine the prosecution case to criminal negligence in the interests of a shorter and simpler trial. As it was, the trial was substantially lengthened by this unnecessary and complicating element in the Crown case and lasted nine days.
[20]BC9807961, 18 September 1998.
[21]Per Handley JA, at page 3 of the decision.
On being specifically asked whether there was an application by the accused for the Crown to be permitted to proceed only on criminal negligence, even if I found that unlawful and dangerous act manslaughter was open, counsel for the accused specifically disavowed any application being made for an order directing the Crown to elect which of the bases it would proceed. Accordingly, apart from the comments that I have made about that matter, there being no application before me, there will be no order as to that matter.
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