R v Nielsen

[2001] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nielsen & Anor  [2001] QCA 85

PARTIES:

R
v
NIELSEN, Peter
NIELSEN, Margaret Ann
(appellants)

FILE NOS:

CA No 232 of 2000
CA No 233 of 2000
DC No 1152 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2001

JUDGES:

Davies and Williams JJA, Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

In each case appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – particular grounds – unreasonable or insupportable verdict – where appeal dismissed - whether jury’s verdict was unsafe and unsatisfactory – whether the appellants had satisfied their “duty to provide necessaries of life” – whether medical assessment and treatment and medication are “necessaries of life”

Criminal Code (Qld) s 285, s 286, s 324

R v Smith and Smith [1908] QWN 13, applied

COUNSEL:

A N Skoien for the appellants

B G Campbell for the respondent

SOLICITORS:

Ryan & Bosscher for the appellants

Director of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA:  I would dismiss these appeals for the reasons given by Ambrose J and the further reasons of Williams JA.

1. WILLIAMS JA:   The issues raised by these appeals are fully explained in the reasons for judgment of Ambrose J which I have had the advantage of reading.

1. Given the medical status of Louiene Wilson there was ample evidence on which a reasonable jury could find that anti-psychotic medication was a necessary of life.  Without that medication Louiene's health was likely to be permanently injured in the sense that her mental health would deteriorate to an extent where it became irreversible.  Further, food was also a necessary of life for Louiene and there was evidence which the jury could accept as establishing that it was not being supplied in sufficient quantities to sustain a healthy existence.  If that state of affairs had continued then Louiene's health would have been permanently injured.

1. It was not disputed by the appellants that during the relevant period Louiene was in their charge, and it follows that a reasonable jury was entitled to convict on the evidence.

1. Having considered the issues raised by counsel for the appellants I am not persuaded that the verdicts are unsafe and unsatisfactory.

1. I agree with the reasons prepared by Ambrose J.  In all the circumstances the appeals should be dismissed.

1. AMBROSE J:  The second appellant and the first appellant are the mother and step-father respectively of a woman (“Louiene”) who at all material times suffered from schizophrenia. On 24 August 2000, each was convicted upon a charge that between 31 December 1997 and 26 August 1998 at Brisbane, being charged with a duty of providing for her with the necessaries of life, without lawful excuse failed to do so whereby her health was likely to be permanently injured.

1. The charge was brought pursuant to s 324 of the Criminal Code which provides –

“324. Any person who being charged with the duty of providing for another the necessaries of life without lawful excuse fails to do so whereby the life of that person is or is likely to be endangered or the other person’s health is or is likely to be permanently injured is guilty of a misdemeanour and is liable to imprisonment for three years.”

1. Under s 285 of the Code it is provided –

“285 It is the duty of every person having charge of another who is unable by reasons of age sickness unsoundness of mind detention or any other cause to withdraw from such charge and who is unable to provide himself or herself with the necessaries of life whether the charge is undertaken under a contract or is imposed by law or arises by reason of any act whether lawful or unlawful of the person who has such charge to provide for that other person the necessaries of life; and the person is held to have caused any consequences which to the life or health of the other person by reason of any omission to perform that duty.”

1. Louiene was diagnosed as suffering from schizophrenia in 1985 when she was aged 19 years. Between the date of diagnosis and May 1993, she was admitted to Wolston Park Hospital on 25 occasions for treatment for schizophrenia. On 3 May 1993 she was discharged into her mother’s care. When she was so discharged, the second appellant was aware that her daughter had been diagnosed as suffering from schizophrenia for which she received anti-psychotic medication. It also emerged from the evidence that the second appellant expressed the view that her daughter did not need that medication.

1. From December 1997, the neighbours of the appellants from time to time heard screams and loud noises coming from the appellants’ residence where Louiene resided; the neighbours became concerned eventually and made a complaint to the police.

1. On 23 August 1998 police officers attended the appellants’ house and discovered  Louiene confined within a bedroom, entry to which was secured by a barred security door which was locked.

1. The room was dimly lit and Louiene was found naked in a crouched position in one corner of the room which contained no bed or furniture. The room in which she was confined exhibited human excreta on the walls and floor and smelled very strongly of urine. The girl was “very very skinny”, her arms being devoid of normal musculature. She had scratches on her breasts and the lower part of her abdomen and she was shaking. She had human excreta in her ears and hair and on her hands and feet. The weather at that time was quite cold and the investigating police officer was unsure whether to attribute the shaking of the girl to agitation or to shivering.

1. The investigating police officer made relevant inquiries of a mental health psychiatric centre and on 26 August 1988 obtained a warrant to again attend the appellants’ address. She had several other police officers with her and a nurse from a mental health centre and a doctor from Princess Alexandra Hospital.

1. Eventually, entry was obtained to the bedroom where Louiene was still held behind the barred security door. She was clothed in pyjamas which she had to hold up to stop them falling about her ankles. She had on a pyjama jacket with no buttons to hold it closed.

1. The two bedroom windows were covered with a thick perspex type of material. There was a variation in the evidence as to whether in addition to that perspex there were bars over the windows. The evidence was that there was food on the floor which was very dirty and smears of faeces spread randomly around the room. Louiene was observed to be “muttering quite incoherently”. Her thoughts were disordered and she appeared disoriented. Expert assessment of her on that occasion indicated that she was suffering from a psychotic illness. She did not know the time of day or who she was or where she was. She appeared to be responding to auditory hallucinations and was talking to herself. She was also obviously suffering from visual hallucinations. It was obvious that she was suffering from some sort of psychotic illness and was very unwell.

1. She was assessed as being in need of removal from the appellants’ house. She was removed and taken to Princess Alexandra Hospital where she was bathed preparatory to having her transferred to Wolston Park Hospital. She then appeared to be very hungry. She was still very dirty with her body exhibiting faeces. She lay on the floor of a hospital bathroom where staff washed her. It was very difficult to restrain her. She tried to escape from the bathroom as she was being washed and after she had been dressed with clean night attire but eventually allowed herself to be carried out of the bathroom and taken back to her room.

1. Upon her admission to Wolston Park Hospital on August 1998 she was examined by a psychiatrist who observed that her behaviour was grossly disturbed. She was curled up on the floor in alternating postures. It was impossible to maintain any form of conversation with her and her thoughts appeared completely incoherent. She still smelled of faeces. Her weight at that time was 42.5 kilograms and abrasions were then also noticed over her shins as well as the other parts of her body. The psychiatrist gave evidence that given her age and size one would expect her weight to be between 54 and 56 kilograms.

1. The psychiatrist said that during the first four days of her admission to the hospital Louiene did not eat a lot of food. However, during that period of time she ate increasing amounts and was also given Sustagen. Over a couple of months after admission to hospital, she reached a weight which was appropriate for her – about 54 kilograms. As a matter of interest, that was her weight when she was discharged into the care of the appellants in May 1993.

1. Louiene remained incontinent with respect to urine for many months. Her incontinence with respect to faeces improved over a few months. It took about 12 months from the time she was admitted to Wolston Park and received appropriate medication and other treatment for her incontinence to cease.

1. When admitted to Wolston Park in August 1998 she was prescribed an anti-psychotic medication named Olanzapine. This is a drug used to treat primary symptoms of schizophrenia. It takes weeks or months for the drug to commence to control the psychotic condition.

1. The psychiatric evidence was to the effect that the absence of treatment for schizophrenia with appropriate medication would cause a relapse of the schizophrenic condition for which Louiene had last received hospital treatment in May 1993 when she was discharged into the care of her mother. At that time she was being treated with a medication called Stelazine. Apparently the second appellant took the view that this medication was harmful to her daughter and had discontinued it.

1. Psychiatric opinion was that untreated schizophrenia will very likely lead to a gradual deterioration of that condition which may continue for many years. The psychiatrist gave evidence in these terms –

“In the absence of anti-psychotic treatment, her condition would deteriorate and the longer she was untreated the harder it would be when you recommenced treatment to get her better and it would be likely that she may never reach the same level of function as if she had remained treated.”

1. When she was examined upon admission to Wolston Park Hospital in August 1998 Louiene was totally deprived of the capacity to make any rational judgments about any aspects of her own care. The evidence was to the effect that institutional psychiatric treatment was available for Louiene from the time she was discharged into the care of her mother and step-father in May 1993 until the time she was taken to Wolston Park Hospital in August 1998. If she had not voluntarily sought treatment, an application could have been made by the appellants, through either a Magistrate or a medical practitioner, for her referral for “totally free” treatment.

1. In fact, Louiene was discharged from a psychiatric institution in May 2000 – one year and nine months after she had been admitted to Wolston Park in August 1998. The medical evidence is that she made a dramatic improvement while in hospital and when discharged was independent in eating, bathing, cooking for herself, and looking after money etc. She was then able to catch public transport but still required ongoing supervision for perhaps four hours per day. She had been discharged into accommodation where she could receive such supervision which involved mainly prompting her to do the things she was able to do. Her mental capacity had greatly improved. The medical evidence was that her condition would require that she continue on with the medication prescribed indefinitely.

1. Psychiatric evidence was that had she not been taken into care in August 1998, her mental state would have continued to deteriorate.  The room in which she had been held at the appellants’ home was described as a “closed environment” which severely affected her psychologically.  The evidence was that had she continued to live without proper medication in the way she was living when taken from the appellants’ residence she would have been prone to get infections and indeed to die from them.

1. The appellants gave evidence to the effect that Louiene appeared to them to be living a “normal life” eating with members of the family and both denied that the room in which she was observed by police officers, the nurse and doctor on the two visits paid to the appellants’ house in August 1998, was anything like the description given by those witnesses.  Moreover they denied that they had ever seen Louiene exhibit any of the behaviour, appearance etc of which those independent persons and staff at Wolston Park Hospital gave evidence.

1. In my view, it was open to the jury to reject the evidence given by the appellants and to accept that given by the witnesses called for the Crown. 

1. In the course of his summing up the learned trial judge observed –

“Now what are the necessaries of life? Well there are such things as tend to preserve one’s life or one’s health…
What this section deals with are those matters which have a serious long lasting effect upon one’s state of health, one’s state of wellbeing with permanent consequences or with likely permanent consequences if they are not provided and of course as I have mentioned to you a moment ago, the Crown here suggests that the serious lack of sustenance, the lack of medication when this young woman had a very serious psychiatric disease were such matters.”

1. The trial was conducted on the basis that the “necessaries of life” which the appellants had failed to provide for Louiene were food and the necessary medication for her psychiatric illness.  It was not contended (as in my view, it would have been open to contend) that one of the necessaries of life which the appellants failed to provide was medical assessment and treatment which would on the whole of the evidence almost certainly have led to an earlier resumption of  medication for her schizophrenic condition.

1. Although Louiene had been formally discharged from Hospital into the care of the second appellant on 3 May 1993, it was not in issue that if after that appellant had charge of her between 31 December 1997 and 26 August 1998 within the meaning of s 285 of the Code, then she was in the charge of each appellant during that period.

1. It is interesting to note that in R v Smith and Smith [1908] QWN 13 the Full Court of Queensland held that medical evidence given to the effect that a child who had been badly scalded some months prior to being eventually admitted to hospital and had developed blood poisoning, from which she died, might not have died had she been brought for medical treatment within a fortnight after her injury.

1. The appellants in that case, faced a charge under s 286 of the Criminal Code (as it then stood) which provided inter alia that it was the duty of every person who was head of the family having the charge of a child under the age of 14 years being a member of the household “to provide the necessaries of life for such child”.  In my view, that case is authority for the proposition that medical assessment and treatment for a person observed to display schizophrenic symptoms of the sort displayed by Louiene in August 1998 when she was removed from the appellant’s home and taken to Wolston Park Hospital were a “necessary of life”.

1. This however was not a matter that was advanced by the Crown upon this appeal because the trial had been conducted on the basis that the only “necessaries of life” which had not been provided for Louiene were adequate food and the medication necessary to treat her schizophrenic condition.

1. For the appellant it was contended that the evidence presented at trial – to which I have referred - was not sufficient to sustain a jury finding that –

(a)        anti-schizophrenic medication was a necessary of life for Louiene

(b)        that the appellants failed to provide food or anti-psychotic medication for Louiene and

(c)        any failure on the part of the appellants either endangered or was likely to endanger Louiene’s life or to permanently injure or be likely to permanently injury her health.

1. It was further contended that Louiene did not come within the charge of the appellants until their failure to provided anti-schizophrenic medication had made it necessary that such medication be provided and it was impermissible to take the initial failure into account when determining their guilt of a charge brought under s 324 of the Code. I would reject that contention.

1. In my judgment, there was ample evidence to support the verdict of the jury.  Upon my review of the evidence and the summing up of the learned trial judge (against which no complaint is made) it is impossible to support the contention of the appellants that the verdict of the jury was unsafe and unsatisfactory.

1. I would dismiss these appeals.