R v Staker
[2011] SASCFC 87
•11 August 2011
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; R v Parenzee (2008) 101 SASR 469; R v Iannelli (2003) 56 NSWLR 247; R v Lawford (1993) 61 SASR 542; Bedi v The Queen (1993) 61 SASR 269, considered.
R v STAKER
[2011] SASCFC 87
SULAN J: I agree with the reasons of Peek J. I would dismiss the appeal.
KOURAKIS J: I agree with the reasons of Peek J. I would dismiss the appeal.
PEEK J. This is an appeal against conviction for two offences of aggravated acts endangering life contrary to s 29(1) Criminal Law Consolidation Act 1935 (SA).
Background
At the relevant time the appellant was living with a number of other adult persons and a number of children in a communal household. She and three of the other adults were charged with a joint enterprise to deny adequate food to five of the children, each under the age of twelve years, over the period from March to June 2008. The information was lengthy and took the form of a total of ten counts, each charging all of the accused jointly. There were two pairs of alternate counts of aggravated act endangering life contrary to s 29(1) Criminal Law Consolidation Act 1935 (SA) (“the Act”) and criminal neglect contrary to s 14, in relation to two of the five named children and three pairs of alternate counts of aggravated act creating risk of serious harm contrary to s 29(2) and criminal neglect contrary to s 14, in relation to each of the remaining three named children.
There was a good deal of pre-trial argument before Duggan J in which counsel for the various accused, including the present appellant, participated. It would appear that the appellant in effect moved to quash[1] each of the two s 29(1) charges on the basis that the prosecution case as outlined before his Honour relied upon a pattern of conduct by the appellant to establish cumulatively the “act or omission” relied upon in each of the five counts. It was contended before Duggan J (and on appeal) that, on a correct construction of s 29(1), such an approach was not permitted and that only a discrete single act or omission could be the subject of a charge under s 29(1).
[1] Criminal Law Consolidation Act 1935 (SA), s 281.
Duggan J refused to quash or “strike out” the charges, holding that the charges could be laid in the manner contended for by the prosecution. Apparently pursuant to an agreement with the prosecution which included an undertaking not to object to the appellant appealing against his Honour’s ruling, the appellant was then re-arraigned on the Information and pleaded guilty to all of the primary s 29(1) charges, no pleas therefore being required on the alternative neglect charges. The trial then proceeded against the other accused, each of whom was convicted, the details not being material to the present appeal.
The present appeal
The appeal challenges only the convictions on counts 1 and 2 which charged s 29(1) offences. There was only one ground of appeal as follows:
The learned trial Judge erred in failing to strike out the charges laid pursuant to s 29(1) of the Criminal Law Consolidation Act 1935. (P35 of pre trial argument 6/10/20) (sic)
I might observe that the fact that the appellant is appealing against the validity of two of the counts to which she pleaded guilty once again raises the question as to the extent to which such a procedure should be permitted.[2] It appears that the pleas were entered upon the basis that the DPP agreed not to object to an appeal against conviction. In the circumstances, I am prepared to consider the appeal but, as stated previously by this Court, practitioners should be very cautious about taking such a course.
[2] R v Frantzis (1996) 66 SASR 558, 559-560; R v Cheng (1999) 73 SASR 502, 507-508 [11]-[12]; R v Day (2002) 82 SASR 85, 90 [39]-[40]; 100-101 [73]-[77].
I add that, in all of the present circumstances, including that the prosecution case was very strong and the appellant was represented by experienced and capable counsel, I will confine my consideration strictly to the precise ground of appeal chosen to be advanced; my lack of reference to various other procedural and substantive aspects of the case not the subject of any ground of appeal constitutes neither approbation nor disapprobation of the course taken at trial.
The relevant counts on the Information
Counts 1 and 2 each charge a s 29(1) offence and are the same except for the name of the child. Count 1 was as follows:[3]
First count
Statement of Offence
Aggravated Acts Endangering Life (Section 29(1) Criminal Law Consolidation Act, 1935).
Particulars of Offence
Luke Andrew Armistead, Tania Marie Staker, Robert Armistead and Michael Benjamin Quinlivan, between the 28th day of February 2008 and the 23rd day of June 2008, at Parafield Gardens, without lawful excuse, did acts preventing [X] from getting adequate food and made omissions namely failing to provide [X] with adequate food, knowing that the acts and omissions were likely to endanger the life of [X] and being recklessly indifferent as to whether the life of [X] was endangered.
It is further alleged that Luke Andrew Armistead, Tania Marie Staker, Robert Armistead and Michael Benjamin Quinlivan, committed the offence knowing that [X] was a child under the age of 12 years.
[3] With the child’s name replaced with “X”.
The relevant legislation
The relevant portions of the legislation appear as follows:
Division 7A—Causing physical or mental harm
21—Harm
In this Division—
cause—a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm;
If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.
…
23—Causing serious harm
(1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
…
24—Causing harm
(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.
…
29—Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to endanger the life of another; and
(b)intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
…
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause serious harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
…
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
The appellant’s argument relies upon a process of statutory construction to arrive at the conclusion that a count charging a s 29(1) offence may only rely upon an act or an omission as distinct from a series of acts or omissions; the argument does not explicitly rely upon the rule prohibiting duplicity or uncertainty. However, although I agree that the relevant question is primarily one of statutory interpretation in the present case, I consider that it is necessary to consider briefly the wider law in relation to matters including duplicity, uncertainty and criminal liability based on omissions before considering the precise arguments of the appellant as to the interpretation of the statutory provision here in question.
“Course of conduct” offences and the rule against duplicity
I do not think it is presently necessary to consider at any depth the origin, nature or present content of the rule against duplicity. It is sufficient to observe that, in relation to some offences, one major effect of the rule is to prevent the charging of multiple offences even if the same victim and a relatively short period of time are involved. To give an obvious example, if it is alleged that the accused, A, punches the victim, B, at 11am, causing him harm and then departs but is alleged to return at 1pm and kick B, again causing him harm, the defendant must be charged with two separate counts of assault causing harm[4] rather than with one count into which both incidents are lumped. Various good reasons exist for the rule. Such reasons may or may not be manifested on each occasion of the application of the rule but in the example just given, it can easily be seen that potentially there may be differences in the two instances of alleged assault in areas such as identity, requisite intention, accident, self-defence and causation of the alleged harm.
[4] However, they may be joined in the same Information and tried together at the same trial.
There will, of course, be difficulties at the borders. Thus, if it be suggested that A administered a series of punches and kicks in succession to B, there will come a time when the interval between the inflictions of force may be so short that those various inflictions of force may be treated as “one” assault. This is a matter of fact and degree which is not necessary to pursue its precise limits for the purposes of the present case.[5]
[5] This roughly delineates the ambit of the continuing debate as to the permissible ambit of the approach in DPP v Merriman [1973] AC 584.
However, in relation to some offences, due to their very nature, the rule against duplicity may not apply. The well known decision in Daly v Medwell[6] is illustrative of this proposition. The appellant was there convicted of using a telephone for the purpose of harassing a named victim contrary to regulation 38 Telecommunications Act 1975 (Cth), the charge alleging the making of numerous calls over a period of about six weeks. It was argued on appeal that each call was a separate offence and should have been charged separately. In rejecting that contention, King CJ stated:[7]
The hearing therefore proceeded upon the basis, in my view, that the complaint alleged a single offence consisting of a continuing course of conduct between the dates specified in the complaint involving the use of the telephone for the purpose of harassing Miss C. It is not difficult to envisage instances, of course, in which a single telephone call of itself may not amount to use for the purpose of harassment, but in which a number of calls of the same kind by reason of the cumulative effect, might be regarded as use of the telephone service for the purpose of harassment. Likewise, as the learned Judge on appeal recognized, it is not difficult to imagine a situation in which a single call by reason of its nature might be characterized without more as use of the telephone service for the purpose of harassment. But, even where that is the case, it does not follow that subsequent telephone calls may not be so linked with the initial telephone call as to form part of the same use of the telephone service. The concept of harassment itself contains within it some element of continuity or at least the capacity for some element of continuity. Likewise, “use” in one of its senses involves some continuity of conduct and it seems to me that the expression “use for the purpose of harassment” can properly cover a continuing course of conduct consisting of a number of incidents so identified with one another by their nature or by time, place or circumstance, that they can properly be regarded as a single course of conduct and a single continuing use of the telephone service.
[6] (1986) 40 SASR 281.
[7] Ibid 296.
As can be seen, the above exposition does not seek to establish an “exception” to the rule against duplicity but rather to apply usual principles of statutory interpretation in order to demonstrate a legislative intention that a particular statutory offence is able to be established by the proof of a course of conduct.
Similarly, in R v Goodfellow[8] the appellant was charged that he “did between 1 January 1988 and 1 April 1991 at Newcastle and elsewhere in the State of New South Wales by making threats interfere with Justice G R Mullane performing his functions as a judge of the Family Court of Australia on behalf of the Commonwealth”. It was objected that the charge was bad for duplicity. Hunt CJ at CL (with whom Allen and Blanch JJ concurred) followed Daly v Medwell and stated:[9]
The appellant submits that, because the Crown relied upon many more than one threat, the indictment is duplicitous and uncertain unless it could be seen that all the threats formed part of one act or one entire transaction. It is said that the nature of the threats, and the three-year period over which they were alleged to have been made, made it impossible to regard the threats as part of the one transaction.
…
Each individual threat may not by itself have had the effect of interfering with the judge performing his functions as such, but an accumulation of them might have that effect. To plead each threat as constituting a separate offence of interfering with the judge performing such functions may not establish the offence on each occasion, and it would prevent the Crown relying upon the cumulative effect of the threats upon that performance. Such a course would entirely depart from both reality and common sense.
…
The Crown case here was that it was the protracted, persistent and concerted course of conduct on the part of the appellant which caused the interference with the judge’s performance of his functions. … the jury would have to determine whether those threats of which they were so satisfied had the effect of interfering with the judge performing his functions as a judge of the Family Court.
[8] (1994) 120 ALR 657.
[9] Ibid 661-662.
The precise way in which charges such as these should be described has never really been settled. Terms such as “course of conduct”, “state of affairs”, “continuous offences” and “continuing offences” have all been used. Thus in Walsh v Tattersall,[10] Gaudron and Gummow JJ stated:[11]
In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond. There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself.
[10] (1996) 188 CLR 77.
[11] Ibid 91.
Similarly, Kirby J stated:[12]
Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs. …
[12] Ibid 107.
I consider that the term “course of conduct” is appropriate to the present discussion and that is the term that will be adopted here.
The rise and rise of “course of conduct” charges
In relatively recent times, it has been held that various statutory offences may be charged not only by reference to one transaction of short duration but also by reference to a number of transactions together constituting a course of conduct. Offences in the nature of drug trafficking under various statutes are examples[13] but there are various others.
[13] Victorian and New South Wales courts have construed statutory offences of drug trafficking as being of a type that may be charged as a course of conduct. In Victoria, in R v Giretti (1986) 24 A Crim R 112, 129 (Ormiston J) and 118-119 (Crockett J), it was emphasised that the validity of such a charge depended upon the offence being correctly construed as a continuing offence and that it would not be justified by reference to a “Merriman” approach. Giretti was followed in later Victorian cases such as R v Eades (1991) 57 A Crim R 151 and R v Te [1998] 3 VR 566. In a series of New South Wales decisions prior to Walsh v Tattersall (culminating in R v Hamzy (1994) 74 A Crim R 341) it was held that a charge of supplying drugs on various occasions over a lengthy period of time may be laid in one count. Subsequent to Walsh v Tattersall, the New South Wales Court of Criminal Appeal has affirmed those decisions: see for example The Queen v F (1996) 90 A Crim R 356 and R v Deng (1996) 91 A Crim R 80. In the earlier decision of R v Locchi (1992) 22 NSWLR 309, 312, Samuels J (with whom Enderby and Loveday JJ concurred) stated: “Obviously a great deal depends upon the nature of the offence which the Crown seeks to prove. … In the present case, the Drug Misuse and Trafficking Act 1985 in s 3(1) defines “supply” in very broad terms. The word and the concepts which the word by definition is capable of conveying, have a very long arm indeed. I need only indicate that “supply” includes selling and distributing, sending, forwarding, delivering and authorising, and directing, causing, suffering or permitting any of the acts previously defined, including supply, selling and distribution.”
Thus, in Dendy v Brinkworth[14] Duggan J decided that the continuing offence principle could apply to an offence of clearing native vegetation contrary to Native Vegetation Act 1981 (SA). His Honour stated:[15]
[11]…As Hunt CJ at CL pointed out in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 87, no one has suggested a satisfactory definition of a continuing offence. However, in this context, I use the words “continuing” and “continuous” as referring to the situation where a number of individual acts can be identified as a course of conduct which is part of the same criminal enterprise or criminal activity …
[14] (2006) 97 SASR 407.
[15] Ibid 411.
On further appeal in Brinkworth v Dendy,[16] the Full Court agreed with the approach taken by Duggan J, although preferring not to call the clearance of native vegetation a “continuing offence”. Doyle CJ (with whom Anderson J concurred) stated:[17]
[43]To so conclude is not to abandon the rule against duplicity. It is to recognise that because a charge may properly be laid alleging the clearance of native vegetation from an area of land, the question of whether a charge so laid is duplicitous is unlikely to be able to be decided by reference to the form of the charge, and will turn upon whether, when the relevant circumstances are known, a consideration of the area identified and the other circumstances discloses that the conduct alleged cannot be regarded as one or a single activity of clearance.
[44]In other words, if it is permissible to lay a charge in a form that alleges the defendant cleared native vegetation from an area which is identified (and in my opinion this is permissible), it will not be a fatal flaw that the particulars of the charge allege that within the area in question there were multiple areas or stands of native vegetation. In such a case the question is whether, once the facts are known, the activity relied on as amounting to the clearance of native vegetation from that area can, in all the circumstances, be treated as one act or activity of clearance.
[16] (2007) 97 SASR 416.
[17] Ibid 425.
As a final example, I refer to the case of R v Parenzee[18] where the accused was charged with offences against s 29(1), the very same section with which we are presently concerned. It was alleged that the appellant was HIV positive and that, knowing of his condition, he had had unprotected sexual intercourse with several women, on each occasion ejaculating without a condom and thereby endangering their lives. The different women were each separately referred to in separate counts but within each such count it was alleged that the appellant had a number of different unprotected acts of sexual intercourse over varying periods of time with the particular woman.
[18] (2008) 101 SASR 469.
The trial Judge directed the jury that, in relation to each woman, they were to consider the combined effect of the total number of acts of sexual intercourse alleged and his knowledge and intention in relation to those multiple acts. The point now advanced by the present appellant, if correct, would clearly have invalidated the convictions in Parenzee but it was not there taken by the appellant and nor was it considered by any of the Judges. It can at least be said that the factual situation in Parenzee provides a clear example of why s 29(1) should be interpreted in the way contended for by the prosecution in the present case and how the construction now advocated by the appellant would be impractical. Such considerations do not, of course, dispose of the question of whether the present appellant is in fact correct in his submissions.
An omission as a basis of criminal liability
In my view, the fact that the present statute specifically enacts that an omission, as well as an act, may constitute the basis of liability is a critically important matter when considering whether this statute is intended to permit the charging of a course of conduct.
Traditionally, the common law was primarily concerned with regulating and punishing the commission of an act rather than an omission to act. However, it came to be accepted that in certain circumstances an omission may form the basis for criminal liability but it was necessary that such omission constitute a breach of an identifiable duty or obligation arising at law, whether common law or statute. It is worthwhile noting that, as Handley JA observed in R v Iannelli,[19] the first area in which the concept of an omission as a basis of criminal liability took hold was in the law relating to homicide and largely because an omission causing death might (in appropriate circumstances) be treated especially severely because of the seriousness of its consequence. His Honour there said:[20]
[20]These convictions therefore depend essentially on omissions. Criminal liability for mere omissions in Anglo-Australian law is exceptional unless it has been expressly imposed by statute. Glanville Williams, Criminal Law. The General Part, 2nd ed (1961) London, Stevens & Sons Ltd, at 3–5 states:
In some instances an omission will create criminal responsibility without any positive act ... In law, as in morals, the concept of culpable omission presupposes a duty to act; and a rule penalising an omission must state to whom this duty belongs ... the criminal law does not impose a duty upon someone to act to prevent a consequence whenever it imposes a duty not to bring about the consequence. The law relating to omissions is not co-extensive with the law relating to acts. It is partly coincident in manslaughter and murder, but here the event of death leads the law to look upon the omission with special severity. Most crimes, particularly those at common law, are defined to need a positive act.
[19] (2003) 56 NSWLR 247.
[20] Ibid 251.
The subject matter of offences of homicide is, of course, closely related to the subject matter of the statutory offence with which we are presently concerned, that of endangering life. A helpful précis of some of the development of the common law in the analogous area of homicide is found in the earlier decision in R v Lawford[21] where Duggan J stated:[22]
[21] (1993) 61 SASR 542.
[22] Ibid 546-548.
Most of the cases on homicide by omission deal with the offence of manslaughter. We were referred to only one case in which a conviction for murder was recorded. In R v Gibbins (1918) 13 Cr App R 134 the two accused, who were living in a de facto relationship, were convicted of the murder of the male accuser’s seven-year-old child. The child died of starvation in the house in which the family lived and the prosecution alleged that the couple intentionally withheld food from it. The Court of Criminal Appeal held that in the case of the female accused she had assumed a duty to look after the child and the omission to do so by withholding food, taken in conjunction with the necessary intention and causative link, constituted the offence of murder.
The court in Gibbins (supra) approved the decision in R v Instan [1893] 1 QB 450, an authority on manslaughter by omission. In that case the accused was convicted of the murder of her elderly aunt with whom she lived. The deceased suffered from a disease which prevented her from fending for herself and it was established that her death was accelerated by want of food and medical attention. The conviction for manslaughter was upheld on the basis that:
The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.
In Taktak the accused was convicted of manslaughter. He had procured a 15-year-old prostitute to attend a party at the home of an acquaintance and had later received a telephone call from the acquaintance advising him to collect the girl. He found her lying in the foyer of a building. She was unconscious as a result of consuming drugs. He took her to his home and attempted to revive her but the prosecution alleged that he did not provide her with sufficient care. She subsequently died. The conviction was quashed by Yeldham and Loveday JJ on the ground that any failure to obtain medical assistance did not amount to the high degree of negligence or recklessness required for manslaughter. Carruthers J concluded that the evidence did not establish that the omission to obtain treatment was the proximate cause of death. He was also of the view that criminal negligence was not proved. …
At common law liability for a failure to act is exceptional and in the case of homicide the limited authority that there is restricts liability to situations where there is a duty to perform a particular act: R v Phillips (1971) 45 ALJR 467 at 477. In Taktak’s case it was held that the accused assumed a duty to take care of the deceased girl by removing her while she was helpless from a situation in which others might have rendered assistance to her. Examples of situations in which similar duties might be said to arise are also to be found in the Criminal Law Revision Committee 14 Report (UK), par 252, where it is said:
(i) a parent is under a duty to his young children (under common law and also by the Children and Young Persons Act 1933 as mentioned above);
(ii) one who voluntarily undertakes the care of a helpless and infirm person owes a duty to that person (R v Nicholls (1874) 13 Cox 75);
(iii) members of a household in which a person becomes infirm and helpless may be held to have assumed a duty to that person (R v Stone and Dobinson [1977] QB 354);
(iv) there may be a duty under a contract of employment where omission to perform the duty is likely to endanger the lives of others whether or not they are parties to the contract (R v Pittwood (1902) 19 TLR 37);
(v) where there is a right and the ability to control the actions of others, there may be a duty to exercise that right in order to prevent the commission of a crime. This may result in liability as a secondary party if the other is guilty of an offence, as in Rubie v Faulkner [1940] 1 KB 571, where the supervisor of a learner driver failed to supervise the driver and was convicted of aiding and abetting the driver to drive without due care and attention;
(vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger;
(vii) where the defendant holds a public office which requires him to care for others he has a duty to do so, as for example in R v Curtis (1885) 15 Cox 746, where the relieving officer for a local authority was held liable for manslaughter by an omission for neglecting to provide medical assistance to a destitute person and R v Dytham [1979] 3 All ER 641, where a uniformed police officer stood within 30 yards of a club from which a man was being ejected and made no move to intervene whilst the man was noisily kicked to death in the gutter.
I draw the following four points from the above survey. First, as stated above, the present statutory offence deals with the very similar matter of the deliberate[23] endangering of life. Second, the common law decisions clearly permitted an omission to be a basis of liability for homicide. Third, some of the common law decisions involved omissions of long duration before death resulted (as distinct from being a short and finite “non-action”). Fourth, it is therefore not unlikely that Parliament intended that the present statutory offence may be constituted by a lengthy omission or a series of omissions which cumulatively amount to an endangerment of life.
[23] Including “recklessness” in its common law sense.
The nature of an omission
As stated above, an omission must be founded upon a duty to act and this approach is not inconsistent with the “everyday” meaning of the term “omission”; its definition in Shorter Oxford Dictionary is as follows:
Omission (omi-sen). late ME. [- (O)Fr. omission or late L. omissio, f. as prec.; see –ION.] 1. The action of omitting, or fact of being omitted; also, an instance of this 1555. 2. The non-performance or neglect of action or duty; an instance of this.
(Emphasis added)
When speaking of an omission as constituting the subject matter of a criminal offence, it might be argued, consonant with the usual approach of the criminal law in specifying a definite act occurring at a particular time and place, that an omission should be of a finite and short duration; in short, it should be identifiable as an act which failed to occur at a particular time and place. However, analysis shows that while an omission of this type can, of course, be caught by legislation, it will seldom be the legislative intent that a criminal offence of omission must be so limited.
The main problem about a confined and finite omission theory is that omissions by their very nature tend to be creatures of degree. It will often be the case that the question of whether there has been a relevant omission in contravention of a particular statutory provision can be answered only by examining a period, sometimes a substantial period, rather than by fastening upon what does, or does not, occur at a particular point in time.
To take a homely example, in order to assess whether a duty to care for an animal imposed by an animal welfare offence has been breached, it will often be necessary to consider a relevant continuous period of days rather than any one particular day. Thus, if keeping an animal’s coat in reasonable condition is part of such duty, an omission to attend to the coat will likely be assessed by reference to whether such omission had persisted to such a degree and for such duration that the end result is an unacceptable state of the animal inconsistent with the content of the duty.
Moving closer to the facts of the present case, it is easy enough to postulate an example of a finite omission such as a father, out walking with his young unemancipated child who falls into deep water, being subject to a duty to pull her to safety; an omission to do so would indeed be finite and identifiable by reference to a precise place and time. However, the underlying reason why the father is obliged to extract the child is because of the wider parental duty he owes to her in relation to her safety and well-being. Thus in the example given, the duty extends not just to pulling the child from that particular water hole, but to protecting her throughout the whole course of the walk. And, once that is appreciated, it can be seen that the father’s duty is wide in content and duration.
The nature of the required omission in the present case
Putting aside the more usual case of a positive act constituting the charge, s 29(1)(a) makes clear that an omission may also suffice. This, however, is subject to consideration of two additional important matters. First, if an omission is to be relied upon, there needs to be a duty upon the defendant to the person who is endangered as discussed above. Second, although s 29(1)(a) speaks in terms of the necessary mental element, it also impliedly lays down a requirement that the act or omission must in fact be likely to endanger life. Thus in Bedi v The Queen,[24] Duggan J (with whom Bollen and Mullighan JJ concurred) stated:[25]
In my view this provision is clumsily worded. Inherent in the requirement that the accused knew the act or omission was likely to endanger the life of another is the proposition that it was, in fact, likely to produce that result. Accordingly, proof that it was such an act would seem to be an important element in establishing the commission of the offence. It is unsatisfactory that this should be left to inference from the wording of the section.
[24] (1993) 61 SASR 269.
[25] Ibid 274.
The appellant’s argument on appeal in detail
The contention of the appellant that the s 29(1) counts and the convictions based thereon were bad was summarised in his outline of argument as follows:
a.The plain language of s 29(1) criminalises an act or an omission (“does an act or makes an omission”) which is likely to endanger life. It does not criminalise a series of acts or omissions having that effect.
b.In the same way sections 29(2) and 29(3), on their face, criminalise an act or an omission but not a series of acts or omissions.
However the construction of these two sub-sections is affected by s 21, the definitional section.
This is achieved by the definition of ‘cause’, a word which is used in sections 29(2) and 29(3), but not in s 29(1). ‘Cause’ is defined to include multiple acts of harm constituting a single course of conduct.
c.If the word ‘act’ in sections 29(2) and 29(3) encompassed a series of acts constituting a course of conduct, then there would be no need for the definition of the word ‘cause’.
d.It is a principle of construction that if a word appears more than once in a section, it should be given the same meaning on each occasion. It follows that the words ‘act’ and ‘omission’ in s 29(1) do not encompass multiple acts or omissions constituting a course of conduct.
e.Furthermore, the phrase ‘serious harm’ in s 29(2) is defined in s 21 to include “harm that endangers a person’s life”.
f.It follows that s 29(2) is designed to criminalise multiple acts of harm constituting a course of conduct likely to endanger a person’s life. This is not the purpose of s 29(1), which criminalises a single act aimed at endangering life.
I have already considered the matters referred to in propositions (a) and (b) above. I will now consider the appellant’s further propositions seriatim.
The correct interpretation of s 21 Criminal Law Consolidation Act 1935 (SA)
As appears above, the appellant’s argument essentially asserts that s 21 “defines” the word “cause” and that such definition operates upon ss 29(2) and (3) which both contain the word “cause” but not upon s 29(1) which does not contain it; it is said that in consequence thereof, there must therefore be a difference between the ambit or content of ss 29(2) and 29(3) on the one hand and s 29(1) on the other hand, namely that ss 29(2) and (3) offences may charge a “course of conduct” offence whereas a s 29(1) offence may not.
In my view, this argument fails for a number of reasons. One reason, ironically, is that the argument suffers from a defect reminiscent of “duplicity” in the traditional common law sense: it bundles up two separate and distinct parts of s 21 without giving adequate consideration to the different considerations applicable to each.
Section 21 is in fact a section which contains a number of provisions organised by reference to particular words in alphabetical order, the first of which happens to be the word “cause”. I will refer to the words in s 21 following and relating to the word “cause” as the “reference to the word cause” rather than a purported definition of that word. The s 21 reference to the word “cause” is in two parts and appears as follows (with the second part in emphasis):
cause—a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm;
If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.
When one looks at the first part of the s 21 reference to the word “cause” (“a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm”), it becomes quite clear that it is not correct to say, as the appellant does, that the word “cause” is thereby “defined”. If anything is “defined” in that first part, it is the couplet “causes harm” and I will refer to a definition of “causes harm” from time to time. It is important to appreciate this distinction because it emphasises the point that the primary focus here is the matter of the harm itself.
With that in mind, one notes that this first part of the s 21 “reference to the word cause”, will apply to ss 23 and 24 as a definition of “causes harm” with full force and effect, and that it has useful work to do in those contexts.
As to the bearing of the first part of the s 21 “reference to the word cause” upon ss 29(2) and (3), it must be remembered that the offences created by these provisions do not require that any harm actually be caused. Rather, what is proscribed is the factual situation where an accused without lawful excuse “does an act or makes an omission”. It can be seen that a definition of either “cause” or “cause harm” could not be engaged at all by the use of that primary terminology.
However, it is to be noted that a definition of “cause harm” may possibly be engaged by the implied requirement (as laid down in Bedi v The Queen[26] discussed above) that the act done or omission made must be likely to cause harm or serious harm and may also be engaged by the use of the words “cause … harm” as part of the required mental element set out in ss 29(2) and (3) respectively. However, the practical effect is at best tangential.
[26] (1993) 61 SASR 269.
The second part of the s 21 reference to the word “cause” (in emphasis above) deals with a second and different matter. The effect here would appear to be that where there are multiple acts of harm performed by different persons in the course of “the same incident, or … a single course of conduct” which together cause “serious harm”, each person will be responsible for that “serious harm”.[27]
[27] There are some unresolved issues here due to the fact that the clumsiness of the drafting referred to in Bedi v The Queen (1993) 61 SASR 269 does not stop with the particular drafting matter there under consideration. The construction of s 21 as here suggested may produce quite acceptable results where each person is acting pursuant to a joint enterprise but it does leave open a number of significant questions as to the position where that is not so. However, it is unnecessary to explore further such matters at the present time.
The second part of the s 21 reference to the word “cause” will clearly apply to s 23 (the “cause serious harm” offence) but will not apply to s 24 (the “cause harm” offence) since the latter offence only applies in situations where it is alleged that “harm” rather than “serious harm” is caused.
As to the bearing of the second part of the s 21 reference to the word “cause” upon ss 29(2) and (3), it must again be noted that the offences created by these provisions do not require that any harm actually be caused; again, what is proscribed is the factual situation where an accused without lawful excuse “does an act or makes an omission” which words do not engage the definition of “cause harm”. Again, it is to be noted that a definition of “cause harm” may again possibly be engaged by both the implied requirement laid down in Bedi v The Queen[28] and by the use of the words “cause … harm” as part of the required mental element set out in s 29(1) but, it seems to me, the effect here is even more tangential then in the case of ss 29(2) or (3).
[28] (1993) 61 SASR 269.
The effect of the above discussion is that, on a correct construction of the legislation, the omission from s 29(1) of the words “cause harm” and the consequential lack of engagement of the so called s 21 “definition” has no necessary implication for the correct construction of the ambit of the s 29(1) offence of the type contended for by the appellant.
A final word about the appellant’s contentions
Finally, the last two paragraphs in the appellant’s outline of argument as extracted above are reproduced again as follows:
e.Furthermore, the phrase ‘serious harm’ in s 29(2) is defined in s 21 to include “harm that endangers a person’s life”.
f.It follows that s 29(2) is designed to criminalise multiple acts of harm constituting a course of conduct likely to endanger a person’s life. This is not the purpose of s 29(1), which criminalises a single act aimed at endangering life.
This is a different point which is intended to be cumulative to the primary argument which I have rejected above. As I understand it, the appellant here argues that because the phrase “serious harm” in s 29(2) is separately defined in s 21 to include “harm that endangers a person’s life”, s 29(2) must have a different ambit to s 29(1) which also deals with an act or omission likely to endanger life. The argument continues that the difference is that s 29(2) can, but s 29(1) cannot, charge a course of conduct offence.
I reject this contention. I consider that the overlap between ss 29(1) and (2) is not as great as is suggested by the submission; indeed, there is a distinct difference between the two provisions. Section 29(1) does not require any harm to be actually caused but rather proscribes conduct which creates a state of affairs which is likely to endanger the life of another. Section 29(2), on the other hand, does require some harm to be established; and harm that actually endangers a person’s life and thus falls within paragraph (a) of the definition of serious harm will usually be quite substantial harm.
I recognise the possibility of some overlap between ss 29(1) and (2) but I consider that the much higher maximum penalty attached to s 29(1) ensures that offences involving a clear endangerment of life will be charged under s 29(1) while offences where serious harm has occurred, but there is a question as to whether the circumstances do rise to the level of endangerment of life, will be charged under s 29(2).
There may be a number of reasons why “serious harm” was originally defined in s 21 to include “harm that endangers a person’s life”. One that immediately occurs to me is that the Legislature, very much abundanti ex cautela, wished to forestall any possibility of a person charged under s 29(2) attempting to raise a defence that in fact what he had done constituted an endangerment of life which should have been charged as the quite different offence under s 29(1). However, whether I am correct about that is not at all critical. Whatever the true answer may be, in my view it is quite clear that no inference of a legislative intention that a charge under s 29(1) cannot be charged as a course of conduct offence can arise from such overlap as exists.
Section 26 Acts Interpretation Act 1915 (SA)
As discussed above, the most important indicator of a legislative intention that the s 29(1) offence is able to be charged as a course of conduct offence is the explicit inclusion of an omission as a basis of liability. Further, and in the light of that inclusion, regard may also be had to s 26 Acts Interpretation Act 1915 (SA) which provides:
26—Words importing masculine gender and singular number to include feminine and plural
In every Act––
…
(b) every word in the singular number will be construed as including the plural number;
(c) every word in the plural number will be construed as including the singular number;
...
Of course, such provisions will not necessarily be definitive in favour of a construction permitting the charging of a “course of conduct”. Thus in Walsh v Tattersall,[29] Gaudron and Gummow JJ stated:[30]
Speaking of comparable provisions to those of s 26 set out above, the Privy Council said in Blue Metal Industries Ltd v Dilley:
Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
If that course be followed with the Act, then the result is that the appellant was not charged with an offence created by the Act. The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of “payments or benefits” which were made under the Act and obtained by dishonest means.
[29] (1996) 188 CLR 77.
[30] Ibid 90-91.
However, taking the same approach in the present case leads to a different conclusion than that to which their Honours came in Walsh v Tattersall. In my view, the singular words “act” and “omission” do here include the respective plurals because there is here no contrary intention appearing. Indeed, I would go further and find that, for all of the reasons referred to above, the legislation here, positively evinces an intention that a course of conduct offence may be charged.
Conclusion
I consider that the argument put by the appellant fails and, there being no other ground of appeal, the appeal should be dismissed.
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