Tabain v Director of Public Prosecutions
[2014] TASSC 5
•5 February 2014
[2014] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: Tabain v Director of Public Prosecutions [2014] TASSC 5
PARTIES: TABAIN, Geoff Alexander
BRIGGS, Hannah
v
DIRECTOR OF PUBLIC PROSECUTIONS
FILE NOS: 883/2013
882/2013
DELIVERED ON: 5 February 2014
DELIVERED AT: Burnie
HEARING DATE: 3 February 2014
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Change of plea - Whether plea of guilty should have been accepted – Whether plea of not guilty should have later been directed - Whether penalty imposed excessive in all the circumstances.
Justices Act1959 (Tas), s110.
Education Act 1994 (Tas), ss6, 9, 10.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
First and Second Applicant: In person
Respondent: S Nicholson
Solicitors:
First and Second Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASSC 5
Number of paragraphs: 36
Serial No 5/2014
File Nos 883/2013
882/2013
GEOFF ALEXANDER TABAIN and HANNAH BRIGGS v
DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT ESTCOURT J
5 February 2014
The appeal
The applicants have moved to review an order of Magistrate Bartlett made on 2 August 2013 convicting the applicants of an offence of failing to ensure a child attends school, contrary to the Education Act 1994 (the Act) s6, and fining each applicant an amount of $2,010.00.
The complaint against the applicants was made by the Secretary of the Department of Education and was particularised as follows:
"That Hannah Briggs aka Tabain and Geoff Tabain at Devenport in Tasmania between 15 February 2012 and 31 July 2012, being a parent of a school aged child namely Alan Tabain (DOB 29 April 2002), the said child being enrolled at Nixon Street Primary School, did fail to ensure that the said child attended each day as required by the principal of the said school."
The applicants' amended notice to review contains a single ground framed in the alternative as follows:
"That the Learned Magistrate was in error in that she ought to have directed a plea of not guilty so that evidence and argument might be given based upon s10(1) of the Education Act 1994 AND/OR in the alternative that she imposed a sentence which was manifestly excessive in all the circumstances based upon s6 of the Education Act 1994."
Consideration of the first limb of the ground of review
The complaint, after a number of directions hearings, came on for hearing before the learned magistrate on 24 January 2013, the applicants having earlier pleaded not guilty to the charge against them.
The complainant called the principal of the Nixon Street Primary School, Ms Meredith Cashion.
Ms Cashion gave evidence of having written letters to the applicants requiring their son Alan to attend school. Common to each of the letters was a requirement that Alan attend the Nixon Street Primary School, "unless he is prevented from attending because of sickness or temporary, physical or mental incapacity or there is any other reasonable cause for Alan Alexander Tabain's non-attendance that I approve. I require a medical certificate if Alan Alexander Tabain is unwell or incapacitated as set out above, for more than 5 days per year". [My emphasis.]
The language used in those letters as set out above was clearly based upon, although did not mention, s10 of the Act which provides as follows:
"10 Excused from daily attendance
(1) A school-aged child is excused from attendance at a school, the Academy or TasTAFE on any day if–
(a) the child is prevented from attending because of–
(i) sickness; or
(ii) temporary, physical or mental incapacity; or
(iii) any other reasonable cause approved by the principal, a College principal or TasTAFE, as the case may require; and
(b) a parent of the child has notified the school's principal, the relevant College principal or TasTAFE within the period specified by the Secretary.
(2) If a school-aged child's non-attendance at a school, the Academy or TasTAFE because of sickness or incapacity extends beyond the period specified by the Secretary, the parent of the child is to provide a certificate from a medical practitioner if requested to do so by the school's principal, the relevant College principal or TasTAFE.
(3) The principal or the relevant College principal may require a student not to attend a school or the Academy during any day on which the student has an infestation or is suffering from any disease which, on advice from the Director of Public Health, the Secretary considers may be infectious, contagious or harmful to the health of other persons at the school or the Academy."
As can be seen, s10(1) excuses a child from attendance if he or she is prevented from attending because of "sickness".
The word "sickness" is not defined in the Act. The Macquarie Dictionary, 3rd ed, defines sickness as a "particular disease or malady, a state of being sick, illness, nausea". [My emphasis.]
Section 10(4) of the Act provides that if the child's non-attendance because of sickness or incapacity extends "beyond the period specified by the Secretary", the parent of the child is to provide a certificate from a medical practitioner if requested to do so by the school's principal.
There was no evidence as to the length of the period "specified by the Secretary", nor is it readily apparent that a failure to comply with a requirement to provide a medical certificate pursuant to s10(4) would vitiate an exemption under s10(1) of the Act.
Section 9 of the Act provides as follows:
"9 Exemption from attendance without application
(1) A school-aged child is exempted from the requirement to attend a school if –
(a) the child is suspended or temporarily excluded from that school; or
(b) the child has been expelled from that school; or
(c) a certificate of exemption is in force in respect of the child; or
(d) the child attended a school which the child's parent reasonably believed to be a school within the meaning of this Act.
(2) An exemption under this section ceases to have effect on the day on which the event on which the exemption is based ceases to apply.
(3) A school-aged child who is enrolled at a school is not exempted from the requirement to attend the school by reason only of any disability."
There is no suggestion that this section had any application to the complaint before the learned magistrate, although I will refer later to references by the complainant's counsel to it on the hearing before her Honour. For the moment it is sufficient to note that the word "disability" is defined in s3 of Act as follows:
"disability means a disability which –
(a) is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and
(b) is permanent or likely to be permanent; and
(c) results in –
(i) a substantially reduced capacity of a person for communication, learning or mobility; and
(ii) the need for continuing support services; and
(d) may or may not be of a chronic episodic nature; …" [My emphasis.]
For completeness I set out of s6 of the Act which provides as follows:
"Attendance
(1) A parent of a school-aged child must ensure that the child –
(a) attends the school each day as required by the principal; or
(ab) participates in an individual educational program; or
(b) receives home education; or
(c) attends at the Academy or TasTAFE each day as required if the child is exempted under section 5 from the requirement to be enrolled at a school subject to a condition that the child attend or be enrolled at either the Academy or TasTAFE.
Penalty:
Fine not exceeding 10 penalty units and a daily fine not exceeding 2 penalty units.
(2) A school-aged child who is not provided with home education is to attend a school during the whole of a school day unless the child is participating in an individual educational program or is exempted or excused under this Part.
(3) A principal, a College principal and TasTAFE must ensure that a register is kept recording the daily attendance or absence of each school-aged child."
It was clear from the evidence of Ms Cashion that the applicants had not supplied a medical certificate but that they had replied to her letters to them. Ms Cashion however, did not regard their concerns as a reasonable explanation for their son's non-attendance at school.
The applicants' concern was that their son Alan had a number of illnesses, and that he could not go to school because the conditions there were not adequate for his medical management.
Chief among Alan's illnesses was anaphylaxis. He is morbidly allergic to a number of substances including dairy products, sesame, peanut and some tree nuts. The applicants had been engaged over several years in a conflict with the school as to the adequacy of the school's emergency regime for the delivery of adrenalin to their son, and as to other aspects of the school environment as they impacted anaphylaxis sufferers.
The complainant called a Department of Education social worker, Ms Susan Hutton, who gave evidence that she had met with the applicants on 7 May 2012 to document their concerns and that she took those detailed concerns back to Ms Cashion on 16 May 2012.
On 6 June 2012 Ms Hutton wrote to the applicants providing them with extensive information about measures to be taken for the management of their son's illnesses within the school environment.
In one of the concluding paragraphs of her letter Ms Hutton wrote:
"I anticipate that this information has been reassuring for you and you will now be able to make arrangements for Alan to return to school. Given that you have described to me significant medical conditions that impact on Alan's attendance at school, could you please bring the most current medical information with you so that the school can update and finalize Alan's Medical Action Plan." [My emphasis.]
In my view, on the state of the evidence as it then stood, the applicants had a well arguable defence to the complaint against them, at least up until the date of Ms Hutton's letter and probably for a reasonable period after that date given that a medical action plan still remained to be finalised and put in place. In this regard it must be borne in mind that the date of Ms Hutton's letter was, of course, only some four weeks before the end date of the period particularised in the complaint, namely, 15 February 2012 to 21 July 2012.
The complainant called two further witnesses for the purpose of establishing that Alan had no other form of exemption, such as being home educated or going into employment.
The complainant's case was then closed, subject to being re-opened to answer the expert medical evidence foreshadowed by the applicants as part of the defence case. Thereupon the learned magistrate adjourned the further hearing of the complaint for a period of four months.
Upon the resumption of the hearing the applicants were legally represented. The following exchange with the learned magistrate appears from the transcript:
"MR BRETT: May it please, your Honour, my name is Brett and I appear for Hannah Briggs and Geoff Tabain. I understand that the pleas of not guilty have been entered and the matter is part-heard.
HER HONOUR: Yes.
MR BRETT: Your Honour, my application today is that the pleas of not guilty be changed to ones of guilty and I ask that your Honour accept those through counsel.
HER HONOUR: Thank you, I'll grant leave for those to be amended.
MR BRETT: Thank you. My second application is that the matter be adjourned for facts and sentence. I have a date at the 2nd of July at 2.15. Counsel has been briefed on this matter and on counsel's advice we seek to obtain some medical reports speaking to the child involved as well as the parties.
HER HONOUR: Thank you." [My emphasis.]
The proceedings were then adjourned for a further two months. Upon resumption the applicants were represented by counsel, a Mr Siggins, who presented a plea in mitigation on behalf of the applicants.
In stating the facts for the learned magistrate, the complainant's counsel, Ms Gavan, made, relevantly for present purposes, the following statements:
"I've been provided with a medical report from Dr Sharma which my learned friend will be tendering. In a nutshell that confirms that Alan is suffering from a number of medical conditions. As we heard in evidence, your Honour, the Department of Education has never disputed this despite having consistently asked for but not being provided with medical information that would enable the completion of Alan's medical action plan so that we could safely plan to manage these conditions at school.
…
In my submission, evidence about Alan's medical condition doesn't mitigate or give any reasonable explanation as to why the defendants have failed to send him to school. I note that I did refer your Honour to s9(3) of the Education Act in my closing and again draw your attention to this section when you're considering penalty, and specifically that says that a school-aged child who is enrolled at a school is not exempt from the requirement to attend the school by reason only of any disability." [Emphasis added.]
Those statements, in my view, should have alerted the learned magistrate to s9 of the Act thus leading to a consideration of the meaning of the term "disability". The definition of "disability" in s3 of the Act meant that s9 had no apparent application or other relevance to Alan's potential exemption under s6(1) of the Act however, the reference to that section by counsel should have reminded her Honour of the evidence she had heard on the defended hearing and should have alerted her to a still live defence under s10(1) of the Act.
The applicants' counsel, in his plea in mitigation, made submissions which, by their content, should also have caused her Honour to reflect on s10(1) of the Act, and consequently upon the wisdom of granting the application to change plea without question. Counsel relevantly said:
"Your Honour, if I may hand up the documents that my learned has just mentioned. Firstly, if I may hand up a report, it's a preliminary report from the Devonport GP Super Clinic. If I may speak to that for a moment, your Honour. That report details in what is, in my submission, in brief form the list of allergies that the child Alan suffers from.
The issues are ongoing and on my instructions and on a view of papers provided to me, your Honour is aware of a brief outline, at least certainly of the medical conditions which are complained of. The parents instruct me that these conditions are serious in nature and on my instructions I can sense the seriousness that the parents take with this.
They literally consider that they are dealing with not only the health of their child but in some extreme cases if the right circumstances were present insofar as young Alan was to come into contact with various foods as detailed in this report, that the child is at risk of going into anaphylactic shock which is well known can result in imminent death such are the extent of the severity of his allergies.
…
Basically these conditions have been systemic since birth when he was diagnosed at a very early age of having extreme eczema. The conditions have progressed into developing into allergies and with time what has happened of course is some allergies have been identified, some haven't. It's been an issue of guesswork moving along as often is the case in these.
Some allergies have been identified as being stronger than the others, and other allergies of course weaker – that flows with that. The severity and the full impact of the allergies are of course unknown and untested because, God forbid, that's the very test that they are afraid of. What has also happened as a result of either the psychological impact of young Alan dealing himself with these allergies, he has had constant pain, he has also had problems with his toileting habits, and he has also been diagnosed with encopresis, encopresis is the chronic constipation, as your Honour may be aware, dealing with other children's matters, where it results in there's a blockage in the large intestine, and in the bowel namely, of faeces for a considerable period of time, however that then results in the child continually having to evacuate his bowels but unable to move that blockage whereupon he loses the sensation of whether or not he soils himself.
So notwithstanding all of that there are some significant issues in medical guidelines for the child. What that has brought on in the mind of the Tabains of course is a very real and present need to care for their child and this reverts to my original submission or original point, is where one can see on looking at the history, in my submission, a disjunction if you like or a discord with the priorities of caring for the child as opposed to schooling taking the primary – or a back seat.
The Tabains literally feel over – and this is not an overnight assumption, this is an assumption which they have formulated based on the reports from doctors and based on medical conditions, eventually feel that if they were to send the child to school under the present circumstances they are putting their very child's life at risk." [My emphasis.]
It is quite clear, to my mind, that the applicants had not unequivocally disavowed their position with respect to Alan's illnesses and the consequences of sending him to school "under the present circumstances". Given that state of affairs, s10(1) of the Act arguably provided the applicants with a defence to the charge against them for the whole, or for a very large part, of the period particularised in the complaint.
I observe that throughout the whole of the proceedings before the learned magistrate s10 of the Act was not once mentioned by anyone. Nonetheless, her Honour clearly should have been aware of that section and its ramifications for the applicants with respect to the charge against them.
The respondent's submission on the first limb of the ground of review
In his written submissions, counsel for the respondent, Mr Nicholson, contends as follows:
"15 Section 10 was not raised during the course of the hearing. However, should they have raised it, the learned Magistrate would have been obliged to consider it.
16 The defendants have asserted specific error in the learned Magistrate not considering it.
17 'Sickness' is not defined by the Act.
18 The Macquarie Dictionary defines sickness as a 'particular disease or malady, a state of being sick, illness, nausea'.
19 There was evidence that the defendants had written to the school principal advising that the child was suffering from 'medical conditions'. [See exhibits P5 and P8.] The letters did not disclose with precision the nature of the medical conditions, though it was without controversy that the parents had communicated to the principal that the child was said to be suffering from anaphylaxis and a bowel condition. [Transcript, page 65 line 40 – 43.]
20 There was no evidence that the child was otherwise suffering from any temporary, physical or mental 'incapacity'.
21 There was no evidence that the principal had approved any 'reasonable cause' for the child to be excused.
22 There was no evidence as to what the 'specific period' was that was specified by the Secretary, though the principal advised the parents that they were required to notify her after 5 days of consecutive absence by the child.
23 Generally, it would be contrary to the intention of the Act for parents to assert that a child was sick but provide no evidence to support the contention. [For example, the Act establishes a scheme of compulsory education – see Part 2.]
24 The respondent respectfully contends:
aThe condition which the child was suffering from would have been a reaction to contact with an allergen, rather than an ongoing 'sickness' [a definition of anaphylaxis from the Butterworths Medical Dictionary (2nd Edition) is attached to these contentions];
bThere was evidence that the school had implemented a management plan for management of any situation involving his condition;
cApart from his bowel condition, identified as encopresis [transcript, page 122 ln 37], there was no evidence that the child was suffering from sickness such, it is respectfully contended, to bring his absence within the spectre of section" [Footnotes italicised.]
I have considered carefully Mr Nicholson's submissions but I do not accept that Alan's absence was not caused by what could properly be described as "sickness" in the form of an "illness" known as "anaphylaxis". In my view, it was well arguable that s10(1)(a)(i) had application to Alan's circumstances. It was also, to my mind, well arguable that the applicants' failure to provide a medical certificate to Ms Cashion, if indeed, on the evidence one was required pursuant to s10(2), or otherwise, did not negate an exemption arising under s10(1). On that view of things, the applicants had an available defence to the charge against them. Indeed it is clear from the transcript of the contested hearing before the learned magistrate that the applicants were advancing such a defence, albeit without nominating or articulating its statutory basis or source of origin.
The law is clear that the applicants were entitled to change their pleas to guilty, even if they did not believe that they were guilty, as long as their change of plea was in the exercise of a free choice and was unequivocal; Meissner v R (1995) 184 CLR 132; Maxwell v R (1995) 184 CLR 501; Beechey v McDonald [2010] TASSC 47. In my view, her Honour erred in that, rather than granting the application to change plea as she did, without any explanation or inquiry, she should have first raised the relevance of s10 of the Act with counsel, on the basis of the evidence she had already heard, and she should have sought confirmation that s10 was not, or was no longer, contended as having any role to play in the proceedings. Alternatively, given the medical reports she received on the plea in mitigation, and the confused and equivocal submissions made by both counsel at that stage, her Honour should, absent receiving confirmation of an express disavowal of reliance on s10(1) of the Act, have directed a new plea of not guilty and resumed the hearing.
Disposition
The first limb of the single ground of the notice to review succeeds and the motion is allowed.
It is unnecessary for me to consider the second limb of the ground of review going to the question of the appropriateness of the sentence imposed by the learned magistrate.
I will hear the parties as to the appropriate orders to be made under s110 of the Justices Act 1959.
3
2