The Queen v J M [No 2]

[2011] ACTSC 60

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:

1. On the first count on the indictment, JM is guilty.

1. On the second count on the indictment, JM is guilty.

1. On the third count on the indictment, JM is guilty.

1. On the fourth count on the indictment, JM is guilty.

1. 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.

1. 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

1. The accused appeared in the Magistrates Court on 26 June 2008 and was committed for trial on 16 December 2008.

1. 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…