R v T & H - [2016] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T & H
Criminal Trial by Judge Alone
[2016] SADC 32
Reasons for the Verdicts of His Honour Judge Costello
7 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
T and her partner H were charged with Criminal Neglect of T's 2 year-old daughter, TW - Criminal Neglect related to a series of assaults by T on TW resulting in bruising and abrasions to her face and body, fractures to various bones and other serious internal injuries - each accused had duty of care for TW - each accused ought to have been aware of an appreciable risk that serious harm would be caused to TW by the assaults - each accused failed to take steps which could reasonably have been expected to have been taken to protect TW from harm - failure of each accused to take such steps so serious that a criminal penalty is warranted.
VERDICTS: T guilty
H guilty

Juries Act 1927 s 7; Criminal Law Consolidation Act 1935 ss 14, 21, 25, 29; Evidence Act 1929 s 34P, referred to.
H Ltd v J & Anor [2010] SASC 176; R v C, CA [2013] SASCFC 137; R v Joyce [2014] SADC 125; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSWCCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; R v Chamberlain (No 2) (1984) 153 CLR 521; R v N-T and C [2013] SASC 200; R v Staker [2011] SASCFC 87; The Honourable M J Atkinson, Second Reading Speech, 12 October 2004 p 333, considered.

R v T & H
[2016] SADC 32

This is a trial by judge alone. The accused, T and H, are jointly charged with the following offences:
First Count
Statement of Offence
Criminal Neglect. (Section 14(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[T] and [H] between the 26^th day of May 2013 and the 31^st day of May 2013 at Smithfield, being persons who at the time had a duty of care to [TW], who suffered serious harm as the result of an unlawful act, namely an assault or assaults, and whilst they were aware or ought to have been aware that there was an appreciable risk that serious harm would be caused to [TW] by the unlawful act, failed to take steps that they could reasonably be expected to have taken in the circumstances to protect [TW] from harm.
Second Count
Statement of Offence
Aggravated Creating Risk of Serious Harm. (Section 29(2) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[T] and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v T & H

Details

AGLC: R v T & H [2016] SADC 32
Case: [2016] SADC 32
Decision Date: 7 April 2016

CaseChat Overview and Summary

In this case, T and H were jointly charged with offences relating to the serious physical and internal injuries sustained by TW, the daughter of T. The charges were Criminal Neglect and Aggravated Creating a Risk of Serious Harm. Both accused pleaded not guilty and were tried by a judge alone. The court found both accused guilty on count 1 and did not proceed to consider count 2.

The legal issues were whether the prosecution proved beyond reasonable doubt that both accused had a duty of care to TW, were aware that there was an appreciable risk that serious harm would be caused to TW by an unlawful act, and failed to take steps that they could reasonably be expected to have taken to protect TW from harm. The court found that both accused had a duty of care for TW, were aware of the risk of serious harm, and failed to take steps to protect TW from harm, warranting a criminal penalty.

The court relied on the evidence of medical experts, who provided detailed accounts of the extensive injuries TW sustained, which could not be reasonably explained by accidents or normal childhood activities. The injuries included multiple bruises, abrasions, fractures, and internal organ damage. The court accepted the medical evidence that the injuries required significant force and were inconsistent with accidental causes.

The court found that T was responsible for many of the injuries, having admitted to using force on TW. The court found that H was aware of the injuries and the risk of serious harm, despite his denials, and failed to take steps to protect TW from further harm, including seeking medical attention. The court concluded that both accused were guilty of criminal neglect and that their failure to take steps to protect TW warranted a criminal penalty.

Orders