The Queen v J M [No 2]
[2011] ACTSC 60
•21 April 2011
THE QUEEN v J M [NO 2]
[2011] ACTSC 60 (21 April 2011)
CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – charges of neglect of children – accused found guilty.
CRIMINAL LAW – particular offences – offences against the person – neglect of children – elements of offences – meaning of neglect – whether actual harm required – whether mental element required.
EVIDENCE – admissions and declarations – effect of admissions.
Evidence Act 1995 (Cth), s 184
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 91
Supreme Court Act 1933 (ACT), ss 68B, 68C
Children and Young People Act 1999 (ACT), Pt 7.3
Crimes Act 1900 (ACT), s 39
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
Di Lena v Western Australia (2006) 165 A Crim R 482
R V JM [2010] ACTSC 35
R v Senior [1899] 1 QB 283
No. SCC 482 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 April 2011
IN THE SUPREME COURT OF THE )
) No. SCC 482 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
J M
ORDER
Judge: Refshauge J
Date: 21 April 2011
Place: Canberra
THE COURT FINDS THAT:
On the first count on the indictment, JM is guilty.
On the second count on the indictment, JM is guilty.
On the third count on the indictment, JM is guilty.
On the fourth count on the indictment, JM is guilty.
Police and Child Protection Workers visited the home of the accused, J M (whose name and the names of whose children are the subject of a non-publication order under s 91 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)), between 2 and 22 June 2008. As a result of the observations made during those visits, charges were laid against JM.
The indictment in this matter contained four counts as follows:
FIRST COUNT: ... that between 2 June 2008 and 22 June 2008, at Canberra in the Australian Capital Territory, she neglected a child, namely L S, for whom she had parental responsibility.
SECOND COUNT: ... that, between 2 June 2008 and 22 June 2008, at Canberra in the Australian Capital Territory, she neglected a child, namely J S, for whom she had parental responsibility.
THIRD COUNT: ... that, between 2 June 2008 and 22 June 2008, at Canberra in the Australian Capital Territory, she neglected a child, namely L2 S, for whom she had parental responsibility.
FOURTH COUNT: ... that, between 2 June 2008 and 22 June 2008, at Canberra, in the Australian Capital Territory, she neglected a child, namely L3 S, for whom she had parental responsibility.
The proceedings
The accused appeared in the Magistrates Court on 26 June 2008 and was committed for trial on 16 December 2008.
On 7 July 2009, she made an election under s 68B of the Supreme Court Act 1933 (ACT) for trial by a judge without a jury and was arraigned on 18 August 2009. Her trial was then first allocated a hearing date of 12 April 2010. The trial commenced on that day.
Trial by Judge Alone
Under s 68C of the Supreme Court Act 1933 (ACT), a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C of the Supreme Court Act also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
As the judge of fact in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that she did not commit the offences charged.
If the accused does adduce any evidence which is consistent with her innocence, she does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of her guilt.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find her guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then she remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
The evidence
A number of child protection workers, police officers and investigators gave evidence. They were Detective Sergeant Aidan Milner and Constables Samuel Norman, Damien Kinnane, Geordy Araya-Bishop, Joshua Dinham, Patrick Harding and Jarryd Dunbar of the Australian Federal Police, Child Protection Officers Mark Wilcockson and Rohan Bolas and Moustapha Jbeili, a member of the AFP Video Operations Team.
The prosecution also tendered a number of exhibits which were:
A Admissions of the Accused
B Report prepared by Samuel James Norman
CA Photo booklet of defendant’s residence
CB Photo booklet of defendant’s residence
D DVD of footage from defendant’s residence
E Photographs taken by Damien Kinnane of defendant’s residence on 9 June 2008
F Sketch of defendant’s residence by Patrick Harding
G Constable Jarryd Dunbar’s statement.
The admissions
JM made the following formal admissions (s 184 of the Evidence Act 1995 (Cth)):
1. She admitted that she was the mother of the four children named in the four counts on the indictment and their dates of birth, showing that at the relevant time, they were 5, 7, 10 and 13 years old.
2. She admitted that between 2 and 22 June 2008, she had parental responsibility for those four children.
3. She admitted that between those dates she resided at the house the subject of these proceedings, in Tyson Street, Ainslie with these four children.
4. She admitted that on 22 June 2008, she temporarily left the house at Tyson Street at about 8.00 pm.
So far as these admissions are of a fact that constitutes an element of the offence, they are, it was held in Di Lena v Western Australia (2006) 165 A Crim R 482 (at 498; [79]), sufficient to prove that element beyond reasonable doubt.
The witnesses
I shall refer to the evidence of the witnesses, but not in the order in which they gave their evidence so as to make it more intelligible.
Mark Wilcockson(a)
Mr Wilcockson was Social Work Team Leader at Care and Protection Services, an agency of the Department of Disability, Housing and Community Services, and an experienced and qualified social worker who had worked in the child protection area since 2002.
He referred to a final Care and Protection Order made in respect of JM’s children, apparently made under Pt 7.3 of the Children and Young People Act 1999 (ACT). It expired on 16 May 2008. At that time, two older children were residing elsewhere and the four children, the subject of these charges, were living with JM at the Tyson Street house. At that stage, the Care and Protection Services (CPS) were of the view that the positive reports from the visits of social workers led to the decision that there was no need for a further order.
The CPS, however, maintained a level of involvement, with visits about every three to six months, “to make sure that all of those final issues had been resolved and that the families were coping well”. Mr Wilcockson described the services and supports provided.
He noted that JM also referred herself to Winnunga Nimmityjah Aboriginal Health Service for counselling.
Mr Wilcockson then gave evidence that there were three further reports received by the CPS in respect of the family. After investigation, one was found to be baseless and malicious and, after consideration no action was taken on the other reports either. A fourth report, made on 31 May 2008, however, referred to instability in the family unit with a deterioration in the behaviour of two of the children. That required the CPS to take what was known as “appraisal” action which commenced on 2 June 2008. There were statutory powers that officers could exercise in the course of an appraisal.
Mr Wilcockson attended the Tyson Street house with Mr Rohan Bolas at about 9.30 am and spoke to JM and another woman, MC. At least two of the children, possibly three, were there. JM was apparently angry with the visit and said she wanted to take the children to school. She said she did not want further involvement with the CPS. It was agreed that the two CPS workers would return later. They did so at about 11.00 am and saw JM and MC. They entered the house and found the lounge room dark, with the windows and curtains closed. There was a dusty odour, but the area was generally clean and tidy. There was discussion about the notice to evict but I do not need to detail that as it does not bear on the issues in this prosecution.
There was also discussion about JM’s fear for their safety in the house following a number of break-ins and attempted break-ins to the house. There was also a concern he expressed about the deteriorating home environment. The two CPS workers then looked through the house. There were a lot of clothes piled in the dining room, some were dirty but some looked freshly laundered. There were lots of toys and access to the sliding doors to the patio was quite restricted. In the kitchen it appeared that pots had been being cleaned. The bathroom was generally clean and clear, but with dirty water in the bath. In one bedroom, the drawers of the tall boy were open and the bed was unmade; it was generally messy but in Mr Wilcockson’s opinion, no worse than one would expect in the room of an adolescent boy. The toilet was also clean and clear. The next room was that of the younger children. There were piles of clothes and toys and bags on the floor and it was difficult to gain access to the room and impossible to walk across the floor without walking on things. The officers could not see if there was sufficient bedding. Opposite was another room where a friend was said to be staying. There were ashtrays with used cigarettes and empty beer bottles around and the room was quite messy and musty with safety hazards. Finally, the laundry was so full of clothes that it was very difficult to open the door and get in. This impeded access and egress to and from the house through the laundry. After referring to the importance of clear access and egress and protection from fire safety hazards that were not being provided, the officers explained the nature of the appraisal and that they would have to return later.
On 18 June 2008, the two officers returned to the house. JM allowed them into the front room. She was quite agitated and hostile to their presence and told them she was intending to leave the ACT and move with her brother to Queensland who, she said, was “on [sic] route that day”. The room looked to be in the same condition in which they had seen it before. There was further discussion about the move to Queensland.
They asked to go through the house, but JM was adamant that she would not allow access. She brought the eldest child out to speak to them. The lounge room was pretty much as they had seen it on 2 June 2008.
Mr Wilcockson was shown some photographs taken on 26 June 2008. He said that they showed a different state of the house to that they had seen on 2 June 2008. In the lounge there were piles of clothes and other items that had not been there, and it was somewhat “more chaotic”. The kitchen was in a worse state and he expressed concerns about its state as depicted in the photographs because of the danger to the children, with crockery likely to be tipped over and access to cleaning products. There appeared to be mouldy food and the dirty floor was unhygienic where bacteria could grow and contaminate food. The floor had items on which could cause children, and adults, to trip on and fall. He also saw a potential fire hazard. There was a chair by the sink which children could access and be in danger. He also saw further hindrances to access and egress to the outside patio. There were sharp knives accessible to the children, dog food cans opened leaving a very serrated and dangerous edge, food with expired “use by” dates and half-eaten food.
Mr Wilcockson knew JM had a small dog. There appeared to be dog faeces on the floor. The floor was dirty and with items all over it so it was difficult to move through and piles of clothes on much of the furniture. Some food was on the floor, which he said was a concern, as children could well try to eat it. There was a knife under some clothes which he thought was also a safety issue. There was what appeared to be vomit in the sink in the toilet which was of concern. There was also faeces in the bathroom, leaving him with a concern about the unsanitary and unhygienic nature of it.
Mr Wilcockson was also shown photographs of other parts of the house taken on 26 June 2008. He expressed concern about a bottle of cloudy ammonia on the drier with its cap off, because it was a poison accessible to the children.
In cross-examination, Mr Wilcockson agreed that JM had initially approached the CPS for help in about 2000 but that the CPS started raising concerns about the children and removed them some time after that; the evidence was unclear about when it was. He agreed that she would have seen her attempt to get help as being responded to by having her children taken from her. He agreed that, as a result, she did not trust the CPS and that she would be likely to see engagement with the CPS as being risky for her.
He also acknowledged that the result of the appraisal was that the children were removed from her on 22 or 23 June 2008. He agreed, however, that nothing he had seen on 18 June would have been sufficient to take emergency action to remove the children, though he had not been allowed through the house beyond the lounge room. He did, however, have concerns about how well JM was then coping and made some recommendations to her.
He acknowledged that JM was a single mother and that one of the supports, namely, through Marymead, would have meant some delay as there was a waiting list. He also said that the CPS had no means of providing practical assistance to allow JM to get back on top of the management of the home except in extreme circumstances. On 2 June 2008, he had been reassured by the presence of MC who was obviously providing some assistance. He was also aware that JM had, at her own initiative, attended the Winnunga Nimmityjah Aboriginal Assistance Centre to try and take some steps to get help as well as through Menslink for her elder son.
Mr Rohan Bolas(b)
Mr Bolas was also a senior Child Protection Officer with experience since 2006 and before that as a youth worker and a student support worker and special teachers’ assistant. He has qualifications in Child Welfare. His evidence was largely corroborative of that of Mr Wilcockson.
He did refer to the brief conversation they had had with MC on 2 June 2008 when they had returned to the home and were waiting for JM to return, when MC said that JM was “quite fragile”. He also said that, in their subsequent conversation on 18 June 2008, JM told them that MC had left the house and returned to her home. He said JM gave the impression that she was isolated and without support.
Mr Bolas returned to the Tyson Street house on 23 June 2008 to arrange the removal of the children and the placement into care. The younger ones were placed with their father.
On arrival, he met police. He entered the house and saw the lounge room now dishevelled and in a state of disrepair. People had been sleeping on the floor and there were a lot more children’s and other belongings there. He then went through the rest of the house. It was quite different from the state in which he had seen it on 2 June 2008. It was in a dirty state and “had the appearance of people having ransacked” it. He saw food stuffs and dog faeces on the floor, with evidence of pets having been in the house for at least a few days. The kitchen was in a bad state. The stove was turned on and the kitchen benches looked as if they had not been cleaned for several days. The toilet was not in such a bad state but the bathroom was in a poor condition. Mr Bolas inspected the fridge and saw some foodstuffs in it.
He was shown photographs taken on 26 June 2008 and acknowledged that they depicted the house as he had seen it on 23 June 2008.
He expressed similar concerns about the safety and hygiene issues that had been expressed by Mr Wilcockson.
In cross-examination, Mr Bolas accepted that JM was dependent upon support from Centrelink rather than her own financial resources and that she was a single parent, though he did say that JM had told him she had assistance from other people including a male friend who had been her companion on and off, though not a permanent partner. He thought JM was a capable person intellectually of above average intelligence.
He did not accept that on 18 June 2008, JM presented as overwhelmed by the housework and caring for the children – though she was agitated. She certainly showed a lack of trust in relation to the CPS.
He agreed that she had indicated she was receiving help from MC on 2 June 2008 but that she was feeling somewhat isolated and “cut off”, and more so by 18 June 2008. He did say, however, that to the best of his knowledge, JM had a healthy social network, though he could not say whether this was positive or negative. Her companion, whom he did not meet, was helping her, he understood, emotionally but not so much with the housework. He did say that on 2 June 2008, MC had said she was prepared to give ongoing assistance to JM. He said he assumed JM actively wanted to keep her children with her and was concerned that further engagement with the CPS might lead to removal of her children.
He was questioned about the information that JM’s brother was to come from Queensland to help her sort things out, clean up the house and get things back on track, while offering emotional support and responding to emotional crises. He understood that the family would be moving to Queensland. He acknowledged that family support was a big protective factor.
Constable Damien Kinnane(c)
Constable Kinnane attended the Tyson Street house on 9 June 2008 with Constable Geordy Araya-Bishop because of a call to attend an alleged burglary.
They arrived at about 6.10 pm and met JM and was told there were four children there, three boys and a girl. They were invited into the premises, initially into the lounge room. He described it as “reasonably tidy and it looked like it was kept in good order”. A child was asleep on a lounge chair and the other children came in later but they left so JM could tell police about the burglary. JM identified the entry point as through the laundry door.
Shortly after a five to ten minute conversation, the officers went down the hallway to the rear of the property and took a number of photos of the damage to the laundry door. Constable Kinnane gave evidence that what he saw was the house in “a bit of disarray”. He saw clothes and personal items scattered through the house, similar to it having been vandalised or ransacked. It was not consistent with what he had seen in the lounge room.
Constable Kinnane saw in the laundry the door jamb had split near the lock, but he was not able to ascertain where entry had been gained because of the amount of clothing and debris blocking his access to the door.
He noticed that in the kitchen there was crockery, plates and foodstuffs around. He stated that it “wasn’t tidy, it was just in disarray”. He also saw adjoining bedrooms where clothing was piled up in an untidy fashion. He did not recall seeing any animals in the house. In getting into the master bedroom, he had to climb over a pile of clothing and hold onto the side of the door to get in. He had to move stuff out of the way to open up the door to see where things had been taken from the wardrobe.
The photographs he took were tendered. They showed piles of clothes which appeared to be significantly higher than the door handles and those appeared to be at normal height, namely about 90–100 cm from the floor.
In cross-examination, Constable Kinnane agreed that the children seemed normal and nothing specific about them came to his attention. He formed the view that the laundry looked as if it had been ransacked in a burglary.
Constable Geordy Araya-Bishop(d)
As set out above, Constable Araya-Bishop accompanied Constable Kinnane to the call about the burglary at the Tyson Street house on 9 June 2008. His evidence was broadly corroborative of that given by Constable Kinnane.
Constable Araya-Bishop also attended at the Tyson Street house with Constable Christopher Gresser on 13 June 2008 at about 4.00 pm in relation to another alleged burglary. They spoke to JM at the premises. They entered into the lounge room and saw the children watching television.
Constable Araya-Bishop said the lounge room was in the same tidy state as he had seen it before. The two officers went through the dining room and past the kitchen again. He described it in the same state as previously, being untidy, having a bad odour and appearing unhygienic. There were a large number of items on the kitchen benches and a large number of clothing items strewn around in most rooms except for the lounge.
They went to another bedroom. Again it was difficult to access because of the massive amount of clothing and there was only enough room for one person to enter.
Constable Araya-Bishop said they were shown a broken window in the bedroom but most of the glass was on the outside in the yard.
Constable Araya-Bishop was shown some photographs taken on 26 June 2008 and agreed that the kitchen looked similar to what he saw on 9 and 13 June 2008. He could not be sure of whether exactly the same items were there but it appeared to be what he observed. He also said the dining room appeared to be in the same condition. He confirmed that the state of the bedroom was the same in the photographs as he had seen it, as was the laundry.
In cross-examination, he agreed that nothing drew his attention to the children on either occasion that he saw them and that they looked like healthy children, though he did point out that he was focussing on investigating the burglaries and not on the children.
Constable Joshua Dinham(e)
Constable Dinham was on duty on 10 June 2008 with Constable Christopher Gresser when they were directed to attend at the Tyson Street house. They spoke to JM and went into the lounge room. He saw a young girl about six years old asleep on the couch. He said the lounge room was tidy and relatively well kept.
Detective Sergeant Chris Burgess also attended. He tried to wake the child but she only stirred and went back to sleep. JM said the girl was ill.
Constable Dinham spoke to JM who said she would get a mobile phone from the kitchen. He said he would go with her. She escorted him into a doorway off the lounge room but the rest of the house was dark so he could not see the rooms.
JM went up to a room on the left. Constable Dinham stopped because there was a pile of rubbish or clothes on the floor which he could not identify in the dark. It was about one foot high and he would have had to step over it. JM hesitated, then turned around, said the phone was not in the kitchen and escorted him back to the lounge room. She appeared quite agitated and gave the appearance of not wanting Constable Dinham in that part of the house for any longer than he had to be there.
Constable Dinham said he could see a little up the hall and saw a table and a silhouette of a lot of rubbish on it. He expressed concern about the welfare of the children based on the health of the little girl and the condition of the house. Accordingly, he filed a report with the CPS, suggesting that the children were not being adequately cared for in the house.
In cross-examination, he said he could not identify what was in the pile of material he encountered when his foot hit it but “it moved and rattled”. As to the items he saw in silhouette, he agreed that he could not say whether they were rubbish or items of belongings.
Detective Sergeant Aidan Milner(f)
Detective Sergeant Milner was on duty on 22 June 2008 and, as a result of a call from Constable Jarryd Dunbar at about 8.55 pm, went to an address in “Fairbridge Street [sic] in Ainslie” and after a discussion with Constables Dunbar and Patrick Harding went to the Tyson Street house.
Detective Sergeant Milner and Constable Dunbar went to the front door which was answered by JS, the child referred to in count two on the indictment. He told them that his mother, JM, was not at home. Then LS, the child referred to in count one on the indictment, came to the door. He said he did not know where his mother, JM, was, but said she had left about half-an-hour ago with a male friend. JS then provided the police with contact telephone numbers.
Detective Sergeant Milner could see into the lounge room, but the lights were off and the television was on. He saw two other children lying in a corner of the room around which was strewn various items. The children were L2S and L3S, referred to in counts three and four on the indictment respectively. He thought that the children must have gone wild and ransacked the room. There were articles of clothing around the room, food containers, cereal boxes and drink containers strewn about and what appeared to be potato crisps over the table and floor. He also saw an iron and was concerned about whether it was on.
The police used the telephone numbers to try and contact JM without success. Detective Sergeant Milner then made arrangements for the CPS to be contacted to look after the children.
He then decided the police would enter the house. He and Constable Dunbar went in and spoke briefly to the children. Detective Sergeant Milner had a brief look at the room and then asked LS to escort them through the house which he did.
Detective Sergeant Milner described what he saw in detail. He said:
When we stepped out of that lounge room into the hallway on to the grey linoleum the first thing I recall was my feet sticking to the floor and when I lifted my shoes up it made a sticking sound as it released contact from the linoleum ... straight ahead was a bedroom ... I remember looking into that room and there was what I thought was a queen size bed but it was completely overridden by furniture, clothing articles, boxes ... we proceeded towards the area marked as ‘Kitchen/dining’ ... again, I recall quite distinctly that as I was walking along, my shoes still continued to stick on the actual floor and make noises as I was lifting my soles up. Just as we entered that combined kitchen dining room, there was what I believed to be some sort of animal excrement smeared over the floor and a couple of metres in front of me, where there was [sic] numerous piles of garbage and clothing, I saw what I believed to be a pile of animal excrement, a small piece of animal excrement, dog faeces, I believed ... We walked into [an] area to the left was the kitchen. The floor, I recall, was so cluttered with rubbish and food scraps and clothing and dirt that I had to pick and choose the areas of grey linoleum to walk on, as I did not want to step on any of the clothing piles or rubbish piles for risk of spraining my ankle or standing on clothing which may be covering other items underneath ... I walked towards the kitchen area, and again I recall there only being a few distinct pockets of grey linoleum flooring, whilst the rest of the floor was covered by rubbish, open bags of rubbish, milk cartons, metal cans with jagged lids. ... In the kitchen area, I could see that the bench tops were all stained with what I believed to be old food, spattered oils, dried liquids from food preparation. There were a large number of cooking utensils all over the benches. There was an electric square fry pan to my left, where I noticed a film of solidified grease and fat. I think there was a kitchen – like, a large kitchen knife, about a 30 centimetre kitchen knife just in front of that, which again gave me some concerns about being – knives being open and within reach of young children. Moving along towards the kitchen sink, I recall that the kitchen sink was absolutely cluttered with uncleaned cooking pots and saucepans, and the sink on the right was full of what can only be described as stagnant water. And I remember recalling at that stage, as I stood near the sink, that I was in an isolated pocket of grey linoleum, and I made a – it was quite difficult to turn around in that area, looking around the bench space without sort of standing on further rubbish or clothing items underneath my feet. And, again, at that time, I made the – or came to the opinion that to access even the kitchen sink at that stage would be an onerous task for a young child given the amount of rubbish, pots, the water in the sink, it would be quite difficult to reach those taps ... There was a table in the dining room area ... which was cluttered with open food containers, clothing items. I think there was a rubbish bin. There was old food. One of the things that caught my attention was a can of dog food, which appeared to have been pierced open with either a jagged can opener or a knife to leave a small bit of metal popped up from the lid, which was noticeably sharp, with jagged edges, and then there was a fork still stuck in it, as though someone had tried to pry out a bit of dog food for the dogs that were inside the premises. And again, I recall there was garbage on the floor behind me. There was dog excrement. The floor, even in those areas, was still sticky to walk on ... when you leave the kitchen dining area, my recollection is that the floor became carpeted and my feet no longer made sticking noises or stuck to the floor. I ... didn’t go into that toilet to examine the toilet, the bathroom in any great detail ... As soon as I got to the front of the shower, I recall seeing dog excrement on the floor there, and ... one of the things that stuck out to me was a large crack in the shower screen. The whole glass panel appeared cracked, which gave me concerns about any weight being placed on that screen could cause it to shatter or someone to fall through it. But again, I didn’t go into that bathroom to have a look in that area in any great detail. Moving back out from there ... [I went to] the bedroom of one of [the children]. That door wouldn’t open with a push, and I recall it was as though the door was being blocked from behind, so I had some concerns that there may have been someone or something behind the door. And I recall shining my torch through and giving the door a push to try and get it open, and when I looked in the room, there was just so much clothing and rubbish and items on the floor that that door wasn’t going to open any more than about 30 centimetres. And again, I had concerns about someone residing in that room potentially being trapped in that room if it was so difficult to get in and out of that room. Across from bedroom 2 ... I recall that was another bedroom. Again, I think that had a single bed in there. But again, it was a room that was littered with clothing. It was generally unkempt ... [in] bedroom 3 ... I recall there being an ashtray on the floor with cigarette butts, which struck me as a bit unusual, as a child identifying that as his bedroom when there was evidence of someone smoking in that room. Again, that room was generally unkempt, but wasn’t as messy as some of the other rooms that we’d just seen in the house. And across the other side ... bedroom 4 ... there were two bunk beds in the top corner of that room. Again, the floor was littered with clothing and other items and general access to that room I considered to be greatly hindered by the items that were in the – on the floor. The laundry was the last room that we looked at, and ... I could see that there were so many clothing items and other items blocking that rear door that I formed the opinion to actually get out of that door, you’d either have to rummage through the clothing items and pull them back from the door, or somehow yank that door open with sufficient strength to push the pile of clothes back. And again, the first thing I thought was is [sic] if there was something happening in the house and the kids had to get out in a hurry, that that wouldn’t be an exit ... Constable Dunbar ... drew my attention to some of the items ... a bottle of cloudy ammonia, which ... I saw that the lid was off, and then I recall seeing near that a plastic bag with what I thought was a jam donut of some sort, near the cloudy ammonia. And again, I had concerns about there being open laundry products in the house with kids of a young age ...
Arrangements were then made for the father of the two youngest children to attend and take care of the children. Detective Sergeant Milner then left the house.
On 26 June 2008, Detective Sergeant Milner obtained a search warrant for the Tyson Street house and he went with members of the AFP Forensics to the house. Photographs were taken and a search was conducted to document the state of the house and then to carry out the search.
Detective Sergeant Milner then identified photographs that had been taken and said that they accurately depicted the house as he had seen it on 22 June 2008.
In identifying the photographs, he made some additional comments. He expressed a concern about large kitchen knives being readily accessible and a suffocating odour of extreme heat from lack of ventilation and putridity from the dirt and stale food. The putrid odour when he opened the cupboards was nauseating, especially, too, when the oven was opened. He saw mould spores on the cooking utensils. There was also a smell of vomit in the bathroom where he did notice some vomit. There was a urine smell from the toilet bowl and he found no toilet paper, though there were some tissues in the toilet.
Detective Sergeant Milner also expressed a concern about the amount of rubbish in the backyard preventing ready access to the house in the case of emergency, especially as access and egress were blocked. The rubbish could, he pointed out, included sharp items or items that could inflict injury to those needing to get through them on egress.
There were a number of items that he also identified, but of the same kind to which reference has already been made. He expressed concern about the children being in the house, especially alone, as there was no ready access to running water, clean toilet facilities, clean shower facilities or safe sleeping arrangements. The smell and dirty food areas with dog faeces were also severely unhygienic and unsafe. There was little food available to eat. There was also a clear danger from the ready accessibility to a number of knives.
Detective Sergeant Milner was not cross-examined.
Constable Patrick Harding(g)
Constable Harding received instructions at 8.13 pm on 22 June 2008 to go to an address at Fairbridge Crescent in Ainslie with Constable Jarryd Dunbar. They then contacted Detective Sergeant Milner and went to the Tyson Street house.
They arrived with Detective Sergeant Milner and Constable Harding’s evidence corroborated much of the evidence of Detective Sergeant Milner about the events of that evening. He himself carried out some additional investigations. He did not enter the house himself at that stage but did on 26 June 2008 when the search warrant was executed. He viewed the photographs and confirmed that they accurately depicted the state of the house as he saw it. He also confirmed that he did not put a chair in front of the sink nor did any other police officer as far as he was aware.
Constable Jarryd Dunbar(h)
Constable Dunbar gave evidence which corroborated the evidence of Constable Harding and much of the evidence of Detective Sergeant Milner.
He said that to the best of his recollection the chair at the sink in the kitchen was there when he first went into the kitchen on 22 June 2008. He also confirmed that during the execution of the search warrant, he opened the oven and pulled out the rack with the black pot on it and opened it to show the mouldy substance in it. He recalled in the kitchen two particular smells – a dog smell in the area and a smell of decaying food.
He was not cross-examined.
Constable Samuel Norman(i)
Constable Norman was a crime scene investigator prior to becoming a sworn member of the AFP. In this former capacity he attended at the Tyson Street house on 26 June 2008 and took a series of photographs of the premises which have been referred to earlier. The photographs were tendered through him together with a brief statement which attached a legend describing where each photograph was taken.
Under cross-examination he agreed that there was no shipping container in the backyard.
Moustapha Jbeili(j)
Mr Jbeili was employed in the AFP Video Operations Team. He also attended at the Tyson Street house on 26 June 2008 and took video footage of the inside and outside of the house. The video was played through a DVD and tendered as an exhibit. It recorded the house as described by Detective Sergeant Milner and others.
He was briefly cross-examined during which he said he did not see where a shipping container may have been in the backyard.
Defence witnesses(k)
No witnesses were called for the defence. I, of course, draw no inferences from that.
The law
The charges against JM were laid under s 39 of the Crimes Act 1900 (ACT). That section relevantly provides:
(1)A person must not –
(a)ill-treat or abuse a child who is in the person’s care; or
(b)neglect a child for whom he or she is caring or has parental responsibility.
...
(2)A person is not guilty of an offence referred to in subsection (1) (b) by reason only of failing to provide a thing for a child if the person did not provide the thing because he or she could not afford to do so.
...
(6) In this section:
Parental responsibility, for a child, means all the duties, powers, responsibilities and authority parents ordinarily have by law in relation to their children.
I addressed the meaning of this section at some length in a decision on an application for dismissal of the charges on a submission that JM had no case to answer: R v JM [2010] ACTSC 35 (at [52] to [74]). I have not changed my mind since that decision and neither party made submissions to suggest my opinion should be altered.
The principles I there found, and which I apply here, were:
(a) Neglect means, in my view, what Lord Russell CJ defined it to mean in R v Senior [1899] 1 QB 283 (at 291):
Neglect is the want of reasonable care – that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind – that is, in such a case as the present, provided the parent had such means as would enable him to take the necessary steps. I agree with the statement in the summing-up, that the standard of neglect varied as time went on, and that many things might be legitimately looked upon as evidence of neglect in one generation, which would not have been thought so in a preceding generation, and that regard must be had to the habits and thoughts of the time.
(b) The offence does not require actual injury or harm to the child but proof that the care was less than proper or adequate in the circumstances.
(c) The prosecution must prove that the failure to provide less than reasonable care was intentional or reckless.
The contentions of counsel
Little of the factual matters in this case were in contention. Ms B Boss, who appeared for JM, barely cross-examined any of the prosecution witnesses. I can, therefore, take the evidence of those witnesses for the most part as proving the facts asserted.
The two issues in this case were, then, really whether the state of the house, probably from around 9, 10, 13 June to 22 June 2008, showed that JM was neglecting her children in the sense in which I have defined it and whether she did so intentionally or recklessly.
Mr C Todd, who appeared to prosecute the case, accepted the law as articulated by me in R v JM. He submitted that the state of the Tyson Street house was such that the children were put at risk and that it did not amount to a safe and adequate home for them. He accepted that there were different standards of cleanliness that people would apply but submitted that on no reasonable standard could this house be regarded as acceptable. There were not only health issues but safety issues with knives readily accessible, no adequate food, obstructed access and egress and a risk of infection. In all, he submitted that it fell well below the standard of care and protection that a reasonable parent would provide in discharging her parental responsibility. He accepted that the children appeared healthy but that this was not decisive in accordance with the above principles.
As to the mental element, he submitted that the court could infer that JM was reckless as to whether she was neglecting the children or not. He submitted that this could be inferred from the fact that when Mr Wilcockson and Mr Bolas came to the house on 2 June 2008, she was clearly aware of the difficulties she was facing and that the state of the house was of concern. She also understood from the attendance of MC that she needed and could access help.
He also submitted that the interaction with police on 10 and 13 June 2008 showed that she was well aware that the state of the house was unacceptable, shown in her reluctance to permit police into the house beyond the lounge room. This applied, too, to the visit of the CPS workers on 18 June 2008.
He further submitted that she could not be said to have been overwhelmed at least such to amount to any kind of defence. He submitted that the state of the house was not recent and the state of it on 22 June 2008 as shown in the photographs was identified by Constable Araya-Bishop to be very similar to the state of the house as he saw it on 9 and 13 June 2008. It had clearly become much worse since 2 June 2008. He submitted the offences were made out beyond reasonable doubt.
Ms Boss submitted that I should not be satisfied that the offences were proved to the requisite standard. She addressed both issues, whether there was neglect and whether I could be satisfied that JM was reckless.
As to the question of neglect, her primary submission was that the children were healthy and not suffering any harm. There was, she submitted, no evidence that they were hungry or ill or, indeed, anything other than happy.
She accepted that the house was in an unreasonable state but challenged the submission that it could have been so for long. For example, she submitted that there was no evidence that the dog faeces were not recent and could well have been deposited after JM had left the premises in which case she could not have known of their existence or been responsible for their non-removal. The same could be said of the vomit in the bathroom and the unflushed toilet.
She did accept that the children clearly had access to inappropriate areas of the house but they were not ill, had a warm and clean place in the lounge room and had access to water, at least in the bathroom. She submitted that it was clear that JM had fed and clothed the children, as could be inferred from the fact that there were no expressions of concern about this from relevant officials during none of whose visits were there any questions raised about these issues.
I could, therefore, not find, she submitted, that JM had neglected the children for there was no evidence on which I could rely to find beyond reasonable doubt that the children were not provided with the necessities of life and that any failure of the standard of care was not proven to be more than on the night of 22 June 2008 which would, unless left for a time without remediation, not amount to neglect.
As to the mental element, she submitted that I could not be satisfied that JM was reckless. She submitted that although JM knew she needed help, accepting that the presence of MC showed this, it was not because there was a risk of neglect but that it was a huge challenge to look after four children as a single parent.
She submitted that JM was coping but that there was little by way of help that she could access. The CPS could not provide physical intervention. There were few other options for her. She had, however, sought help from her brother who was going to take her to Queensland and this would have alleviated the position.
Ms Boss submitted that I should infer that JM was caring for the children and not seeking to neglect them. She did not see the risk of neglect. She was an isolated and fragile woman but was nevertheless feeding and clothing the children and providing them with shelter and warmth. There was, she noted, no evidence of anyone else in the house who could be doing that.
She submitted that it could not be inferred that JM was aware of the risk of neglect and, nevertheless, failed to address it. Her submission was summarised as follows:
So your Honour essentially what we have is an isolated and fragile woman who certainly is not providing the type of home that generally one would wish the children to be raised in but she’s certainly doing her best. She’s taking active steps to try and alleviate the situation. And in my submission there must be a reasonable doubt in your Honour’s mind as to whether she was reckless in regard to the issue of negligence or neglect of the children.
Consideration
There is no doubt that the Tyson Street house as at 22 June 2008, shown in the photographs taken on 26 June 2008 (when, the house was in the same state), was in a state that was unacceptable for the accommodation of children. While Ms Boss did not quite accept this, I understood that there was no real contest about that.
Ms Boss did submit that the lounge room was acceptable but in my view one cannot divorce this from the rest of the house to which the children have free access and where they clearly at least slept and toileted and showered.
I accept that the children appeared to be healthy, though there was one occasion when LS was found to be ill, and that they did not, on the evidence, complain to police or CPS officers of hunger or illness. It is agreed, however, that that is not the relevant test.
I looked carefully at each of the photographs taken on 26 June 2008 and the DVD which had also been taken on that day. I found that they showed the house to be in a state that was accurately described by Detective Sergeant Milner, the other police officers and Mr Bolas.
I am satisfied that the condition of the house on that evening was such that I could find it amounted to neglect of the children within the meaning of the section.
As to whether JM was responsible for the neglect, it seems to me that there are two answers. In the first place, that JM left the children in such a house for over an hour and a half, could well amount to neglect in itself, given the clear risks to their safety and hygiene that it provided. If, as Ms Boss submitted, I could not discount that the dog faeces and vomit were deposited while she was away, that risk in itself was strongly corroborative that she was not providing the care that a reasonable parent should provide. For there to be food on the floor near or next to the dog faeces is an obvious risk with small children. The access to knives, the serrated top of the dog food tin and the open bottle of cloudy ammonia are all accidents waiting to happen. One or perhaps two may be excusable with the ordinary vicissitudes of life and carelessness but together they form a strong and clear pattern of risk that amounts to neglect.
In any event, the unchallenged evidence was that the house had been in the state it was found on 22 June 2008 for some time, at least since 13 June 2008. I find it unlikely that a dog would deposit the amount of faeces found in the house within one hour in any event. In any event, the unchallenged evidence of Mr Bolas was that the dog had been in the house for some days. The obstructed access and egress both from the house itself and also from the rooms is a high risk in the event of an emergency. The presence of items such as yoghurt, no doubt attractive to children, that were outside the use by date is also of concern. The absence of nutritious food and the state of the kitchen all add up with the other matters to a picture of such unsatisfactory care as to amount to neglect. Again, I cannot accept that the congealed food and mould had only happened that day.
I am satisfied beyond reasonable doubt that the state of the house for which I am also satisfied that JM was responsible was neglect within the meaning of s 39 of the Crimes Act.
Whether JM was reckless about that neglect is a somewhat more difficult question but I am satisfied beyond reasonable doubt that JM was reckless as to whether she neglected the children.
It is clear to me that JM knew the condition of the house was unsatisfactory and so unsatisfactory that it would be unacceptable as conditions in which the children should be living.
I make that finding from the following matters. JM was described, without challenge, as an intelligent woman. She clearly had some parenting skills and I am satisfied she would have known that the condition of the house was unacceptable to the relevant degree.
In addition, she was aware from the circumstances described on 2 June 2008 that this was so. She had secured help from MC; that she saw the need for this is indicative of her awareness of the need for a level of cleanliness and tidiness. The CPS officers also made her well aware that the standards even at that time, which were significantly better than later, were in need of improvement.
I also rely on the obvious discomfort of JM when police came on 9, 10 and 13 June 2008 and when she allowed limited and then no access to the house beyond the lounge room. Her refusal to allow the CPS officers to see the rest of the house on 18 June 2008 is also strongly supportive of this knowledge. It is true that, for perhaps understandable reason, JM was suspicious of and hostile to CPS officers. She understood that they had the power to remove her children. I accept that she had some basis for her hostility, given the history that she had experienced of seeking help only to have the children removed. I do not accept, however, in all the circumstances that this is the real or only reason she would not let the CPS officers see the rest of the house. I accept that it was at least in part, if not the major part, that she was aware that it was below standard and that they would see that, possibly taking action.
I also rely on the fact that the lounge room was regularly described as tidy. This was the room, and the only room, where official visitors entered. That it was in such contrast to the rest of the house supports my view that JM was aware of the state of the rest of the house as sub-standard yet clearly did little or nothing about it.
I am aware that JM was described as “isolated” but the unchallenged evidence was that she had a companion. She had also employed the assistance of MC. There was said to be someone staying in the house at an earlier time. That her brother was to come imminently from Queensland may have been some part of the answer, as was told to the CPS officers on 18 June 2008, but in the face of the completely unacceptable state of the house for at least the next four days, this in fact provides no answer.
I accept that JM has provided a level of care for the children; they were clothed and went to school. They appeared to be fed but details of the adequacy of that was lacking. That, however, is not enough where the accommodation was so risky in so many ways that her care in that area fell below what a reasonable parent would have provided.
Conclusion
As a result, I will make appropriate findings that JM has committed the offences charged on the indictment. I will hear the parties on sentence.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 April 2011
Counsel for the Crown: Mr C Todd
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Ms B Boss
Solicitor for the defendant: Darryl Perkins Solicitors
Date of hearing: 12, 13 and 14 April 2010
Date of judgment: 21 April 2011
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