R v Staker

[2011] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STAKER

[2011] SASCFC 87

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Kourakis and The Honourable Justice Peek)

11 August 2011

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY

Appeal against conviction for two offences of aggravated acts endangering life contrary to s 29(1) Criminal Law Consolidation Act 1935 (SA) – appellant involved in joint enterprise to deny adequate food to five children under the age of twelve years, over period March to June 2008.

Whether a s 29(1) offence may rely only upon a single act or omission as distinct from a series of acts or omissions – whether principles relating to the law of duplicity are relevant – whether the differences between s 29(1) and ss 29(2) and (3) are significant.

Held: appeal dismissed – a s 29(1) offence may rely on a series of acts or omissions as a course of conduct – this is not an exception to the rule against duplicity but rather applying usual principles of statutory interpretation – fact that an “omission” is a basis of liability under s 29(1) tends to evince a legislative intention that it is able to be charged as a course of conduct offence – an “omission” may occur over a period of time – the absence of the words “cause harm” from s 29(1) and their presence in ss 29(2) and (3) does not mean that ss 29(2) and (3) offences may charge a “course of conduct” offence whereas a s 29(1) offence may not – the fact that “serious harm” in s 29(2) is separately defined in s 21 is not relevant – s 26 Acts Interpretation Act 1915 (SA) also supports conclusion that the singular words “act” and “omission” do include the respective plurals in s 29(1).

Criminal Law Consolidation Act 1935 (SA) ss 14, 21, 23, 24, 29, 29(1), 29(2), 29(3), 281; Native Vegetation Act 1981 (SA); Acts Interpretation Act 1915 (SA) s 26, referred to.
R v Frantzis (1996) 66 SASR 558; R v Cheng (1999) 73 SASR 502; R v Day (2002) 82 SASR 85; DPP v Merriman [1973] AC 584; Daly v Medwell (1986) 40 SASR 281; R v Goodfellow (1994) 120 ALR 657; Walsh v Tattersall (1996) 188 CLR 77; R v Giretti (1986) 24 A Crim R 112; R v Eades (1986) 24 A Crim R 112; R v Meng Kok Te (1992) 57 A Crim R 151; R v Hamzy (1994) 74 A Crim R 341; The Queen v F (1996) 90 A Crim R 356; R v Deng (1996) 91 A Crim R 80; R v Locchi (1992) 22 NSWLR 309; Dendy v Brinkworth (2006) 97 SASR 407; Brinkworth v Dendy (2007) 97 SASR 416;