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CRIMINAL LAW CONSOLIDATION (CRIMINAL NEGLECT) AMENDMENT BILL

The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

The Hon. M.J. ATKINSON: I move:

That this bill be now read a second time.

The bill is designed to attribute criminal liability to carers of children and vulnerable adults when the child or adult dies or is seriously harmed as a result of an unlawful act while in their care. The bill is not concerned with cases where the accused can be shown to have committed the act that killed or seriously harmed the victim or can be shown to have been complicit in that act. In these cases, the accused is guilty of the offence of homicide or causing serious harm.

The bill is aimed at a different kind of case where the accused is someone who owes the victim a duty of care and has failed to protect the victim from harm that he or she should have anticipated. It covers two kinds of cases: the first is where there is no suggestion that it was the accused who actually killed or seriously harmed the victim; the second is where the accused is one of several people who had the exclusive opportunity to kill or seriously harm the victim and where, because no member of the group can be eliminated as the principal offender, no principal offender can be identified, with the result that neither the accused nor any other member of the group can be convicted either as a principal offender or accomplice. These acquittals often come about because the only people who know what happened are the suspects themselves and each says nothing or tells a story that conflicts with the stories of the other suspects. The courts have held that a jury that is unable to determine whom to believe should acquit all accused.

I seek leave to have the balance of my second reading explanation incorporated in Hansard without my reading it.

Leave granted.

The South Australian case of Macaskill in 2003 demonstrates how the law works now. In that case, a three-month-old baby, Crystal, died as a result of non-accidental injury while in the care of her parents. The prosecution case against the mother was circumstan­tial, there being no direct evidence of who inflicted the fatal injury. The mother’s defence was that there was a reasonable possibility that the father inflicted that injury. Neither she nor the father admitted to the act. The mother did not give evidence at the trial, but made a statement to police to the effect that only she and the father were with Crystal at the relevant time. The father gave evidence that, if accepted, would have exculpated him and, as a matter of logic, incriminated the mother. His evidence was found to be unreliable for a number of reasons. This left the Crown case dependent on the medical evidence. That evidence could not establish which parent inflicted the fatal injury. The prosecution being unable to exclude as a reasonable possibility that the father was the person who inflicted the injury upon Crystal, the mother was acquitted, although the court found that either her father or her mother must have killed Crystal.

Each parent was responsible for the care of this baby. The court inferred from the parents’ exclusive access to her at the relevant time that one of them killed her, but could not tell which. This meant the court could not determine whether the mother was directly respon­sible for her child’s death, whether she was complicit in it, whether she had nothing to do with it, whether she was aware or should have been aware of what was going on but could do nothing to prevent it, or whether, although not actively involved, she stood by and let the baby be killed when she could have prevented it (had the father been on trial, similar considerations would have applied to him).

Some courts have tried to resolve the problem by recourse to the law of omissions. The law of omissions allows a person who had a duty to intervene in a given situation and who stood by and did nothing when a criminal act was being committed to be convicted of the offence relating to that criminal act.

An example is the New Zealand case of Waitka in 1993, in which the court held that a person would be guilty of an offence where he or she was under a duty to intervene in a given situation, did not perform that duty, by this failure encouraged or assisted another to commit the criminal act, and intended that the other person be so encouraged.

The problem with this approach is in having to prove an intention to encourage or assist another to commit the criminal act. There are situations where a person’s inaction may be culpable even though the person had no intention to encourage or assist another person to commit the act. And there remains the central problem of establish­ing who committed the criminal act.

Publicity has mostly been given to cases of infants killed or seriously injured by carers or parents, because in these cases the victim is so utterly at the mercy of the person who causes their death or injury. Initially, the Government looked only at these cases in considering reform of this law. A consultation draft proposing a special alternative verdict in a trial of parents or carers jointly charged with causing an infant’s death or serious harm was sent to interest groups and experts in South Australia and other States and Territories, including members of the Model Criminal Code Officers Committee and Directors of Public Prosecutions.

Consultation on that draft and consideration of a Bill recently introduced in the UK have persuaded the Government that this new law can and should apply more broadly. It should apply to a person who assumes responsibility for the care of a child, whether an infant or not, or for the care of an adult whose ability to protect him or herself from an unlawful act that might cause serious harm or death is significantly impaired. It should be capable of being charged on its own (irrespective of whether the accused or anyone else is also charged with homicide or an offence of causing serious harm). It should also be capable of being charged as an alternative to homicide or an offence of causing serious harm.

The Criminal Law Consolidation Act (Criminal Neglect) Amendment Bill creates a new offence of criminal neglect that does not depend on proof of the identity of the main offender.

The offence applies to a person who, at the time of the offence, has a duty of care to the victim. A victim, for the purposes of this Bill, is a child under 16 years of age or a vulnerable adult. A vulnerable adult is a person of 16 years or more whose ability to protect him or herself from an unlawful act is significantly impaired through physical or mental disability, illness or infirmity (the Bill assumes that children under the age of 16 years are less able to protect themselves from harm than adults. Other laws make the same assumption - for example criminal laws prohibiting sexual activity with children under 16, child protection laws saying a child under 16 may not give consent to a voluntary custody arrangement, and compensation laws exempting a child under 16 who is injured in a car accident from the presumption that, as a passenger, the child contributed to the injury by agreeing to travel in the car with an intoxicated driver).

A person has a duty of care to a victim (whether a child or vulnerable adult) if the person is a parent or guardian of the victim or has assumed responsibility for the victim’s care. In cases where the accused is not a parent or guardian, it must be proved beyond reasonable doubt that he or she actually assumed responsibility for the care of the victim.

It does not matter that the parent is a child. Parents are not absolved of responsibility for the care of their children just because they are children themselves. Even if a guardian is appointed, we still expect a child-parent to assume the day-to-day care and protection of the child. Equally, it does not matter that the person who has assumed responsibility for the care of a child or a vulnerable adult is a child. In either case, establishing a duty of care to the victim is only the first step in establishing liability, and, as will be explained, this offence has other elements that allow a court to recognise the difference in awareness and power between children and adults.

There are four elements that must be established beyond reasonable doubt before a person may be found guilty of the offence of criminal neglect.

The first element is that a child or vulnerable adult has died or suffered serious harm as a result of an unlawful act (for example because the death or injury cannot be attributed to natural causes or accident). The prosecution does not have to prove who committed that unlawful act. Responsibility for that act is not relevant to this offence.

The second element is that the accused, at the time of that act, had a duty of care to the victim. A duty of care is owed by a parent or guardian of the victim or by a person who had assumed responsi­bility for the victim’s care.

The third element is that the accused was or ought to have been aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act. This is the common law test for criminal negligence for manslaughter by unlawful and dangerous act. The jury need not find that the accused foresaw the particular unlawful act that killed or harmed the victim. The charge of criminal neglect will stand even though the death was caused by an unlawful act of a different kind from any that had occurred before of which the accused should have been aware. The charge will stand even though there is no evidence of previous unlawful acts, if it is clear that the act that killed or harmed the victim was one that the accused appreciated or should have appreciated, posed an objective risk of serious harm and was an act from which the accused could and should have tried to protect the victim.

The final element, inextricably linked with the previous element, is that the accused failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the accused's failure to do so was, in the circum­stances, so serious that a criminal penalty is warranted. Unless there is credible evidence to contradict it, a jury may infer inaction in a situation where a reasonable person would anticipate that, without intervention, the victim was at risk of harm, and may infer that the accused’s inaction contributed to the harm inflicted on this occasion. An excuse that an accused did not realise that by intervening he or she could have averted the danger is unlikely to succeed. A person can fall short of the standard of care required by the criminal law by not perceiving the need to take action to avert danger to others.

As mentioned, the offence of criminal neglect may be charged on its own or as an alternative to a charge of the causative offence (that is, murder, manslaughter or any other offence of which the gravamen is that the defendant caused or was a party to causing the death of, or serious harm to, the victim).

When a person is charged with criminal neglect, the assumption is that the unlawful act that killed or harmed the victim was committed by someone else. In cases where it is impossible to tell which of two or more people killed or harmed the victim, but it is clear that one of them did, it would be possible for both people to escape conviction for criminal neglect by repudiating that assump­tion. The accused could simply point to the reasonable possibility that it was he or she, and not someone else, who killed or harmed the victim. To prevent this perverse outcome, the Bill makes it clear that a person accused of criminal neglect cannot escape conviction by saying there was a reasonable possibility that he or she was the author or the unlawful act.

The maximum penalty for the offence of criminal neglect that causes death is imprisonment for 15 years. This is the same as the maximum penalty for recklessly endangering life. The equiva­lence is due to the fact that advertent recklessness is an aggravating feature - but life is only endangered, not lost, in the former offence, whereas in the latter offence, there is lesser fault (criminal negligence) - but life is actually lost.

The maximum penalty for criminal neglect that causes serious harm is 5 years. This is the same as the maximum penalty proposed for the new offence of causing serious harm by criminal negligence in the Statutes Amendment and Repeal (Aggravated Offences) Bill 2004, now before Parliament - an offence introduced to bring South Australia into line with the Model Criminal Code and the criminal law in most other Australian States and Territories.

A person accused of criminal neglect may defend the charge in more than one way.

One defence might be that the accused did not owe the victim the requisite duty of care. This will depend on the circumstances in each case. It will not be available to a parent or guardian of a child or vulnerable adult, because that person is deemed to owe the victim a duty of care.

Another defence might be that, although a duty of care existed, the accused was not aware of an appreciable risk of serious harm to the victim, and ought not to have been so aware. This may be a defence used by a child-defendant.

Another defence might be that, although aware of that risk, the accused did take steps to protect the victim that were reasonable in the circumstances. A defence like this for a child-accused may be that although the steps taken by the accused might not seem appropriate by adult standards, they are perfectly reasonable for a child of the accused’s age and circumstances.

Another defence might be that, although aware of the risk, it would have been unreasonable to expect the accused to take any steps to protect the victim. This might be because the accused was under duress, for example in circumstances of extreme domestic violence. It might be because the accused is a child and the other suspect an adult who exerted authority over that child.

These examples may help explain how this law is intended to work.

Bear in mind that this law will allow the prosecution several charging options in cases like these. The choice will depend on the facts of each case. One or both suspects may be charged with both the causative offence and the offence of criminal neglect in the alternative, or either offence on its own. In some cases, only one suspect may be charged.

Example 1

A six-year-old girl dies at home late one evening. The medical evidence shows that she died as a result of a severe beating to the head and torso. Post-mortem examination shows signs of past physical abuse. The only two people with the opportunity to kill the child are her mother and her mother’s current boyfriend, who is not her father. He does not live at the house, but was staying overnight when the child died. He has stayed overnight about 20 times in the past six months. The mother and the boyfriend both say the death resulted from injuries the child suffered when she fell down the stairs. Each denies witnessing the fall and says the other brought the child’s injuries to his or her attention. The boyfriend says he has never assumed responsibility for the care of the child and the evidence about this is ambiguous.

There is no evidence to show whether the boyfriend, the mother or both of them administered the beating that killed the child. The only people who can say what happened are the mother and her boyfriend, but each has denied involvement while implicating the other.

This example is one in which it is not clear whether one of the suspects owes the requisite duty of care to the victim. In most cases, like Macaskill, each suspect owes the victim a duty of care by a direct relationship of parent or guardian, or by a clear, if temporary, assumption of responsibility for the care of the victim.

In this example, both suspects have every chance of being acquitted of homicide, because neither can be shown to be the principal offender. Knowing this, there is no incentive for either suspect to tell what happened.

But the mother is more vulnerable to a charge of criminal neglect than the boyfriend, because there is no doubt that she owed the victim a duty of care. The boyfriend has a greater chance of acquittal because of the difficulty in establishing a duty of care. Knowing this, it is in his interests to say nothing about what happened and to let the mother take the rap. The mother has every incentive to tell what happened if the boyfriend actually killed the child, once she appreciates that she is likely to take the blame for the child’s death with a conviction for criminal neglect while he gets off scot-free. It is intended that the Bill will create an incentive for at least one of the suspects to say what happened.

Example 2

In the same fact situation, each suspect is a parent of the child and therefore has the necessary duty of care. Again, a conviction for homicide is unlikely because it can’t be established who was the principal offender. But this time each suspect has an equal chance of being convicted of criminal neglect. Assuming the act was not committed by them both, the one who did not commit the act has an incentive to say what really happened (if he or she knows it) to reduce the chance of a conviction, but only if the truth would show that he or she could not have been aware of the risk to the child or could not have protected her even if aware of the risk.

The Bill does not change the current law about the right to silence. But it is important to recognise that the right to silence does not affect the principle that where the relevant facts are peculiarly within the knowledge of the accused, his or her failure to give evidence enables an inference of guilt to be more readily drawn. Also, a court may take an accused’s failure to give evidence into account when evaluating the evidence against him or her where there are matters that explain or contradict that evidence and which are within his or her sole knowledge and unavailable from any other source. But it is true that the incentive to tell what happened is crucial to this new offence. The reason joint caregivers are often acquitted for homicide is not that neither of them killed the victim, but because they are the only ones who know what happened and they choose not to tell.

Example 3

In this example, assume that the wheelchair-bound victim dies as a result of injuries received when she was tipped from her wheelchair down the stairs. The story given by each suspect is that the other found her at the bottom of the stairs. Apart from being wheelchair-bound, the victim had severe Alzheimers. The suspects are brother and sister, grandchildren of the victim, who live in the victim’s house with her. The grandson is a 20-year-old junkie who spends much of the day at home. The granddaughter is a 15-year-old schoolgirl who is away from home during the day but generally home after school hours. Both deny any assumption of responsibility for their grandmother. Each says that responsibility was assumed by the other, to the extent that it was not also assumed by their aunt, who lived nearby, visited regularly and organised the victim’s home nursing and medical care, or by their parents, who live at the family farm.

Both suspects are likely to be acquitted of homicide, because it will be difficult to prove beyond reasonable doubt who tipped the victim down the stairs.

Neither suspect being a parent nor guardian of the victim, their respective liability for criminal neglect will depend on whether they owed a duty of care to the victim. The court will look at any responsibility assumed in the past and the circumstances in the household at the time of the victim’s death.

If a duty of care is established for one of them, and that person did not kill the victim, there is every incentive for him or her to say what happened in order to increase the chance of an acquittal for criminal neglect and, possibly, to make the charge of homicide stick to the other.

Example 4

In this example, the victims are young children, a boy and a girl. They are passengers in a four-wheel drive vehicle being driven along a remote highway at dusk. The only other occupants are their parents. Neither child is restrained by a seatbelt. The car swerves, overruns an embankment at the side of the road and rolls. Both children are thrown from it. The boy dies when crushed by the car and the girl is severely physically and intellectually disabled from her injuries. The parents receive minor cuts and bruises and the mother is so severely concussed that she has no memory of the accident or the journey. The father won’t say what happened or who was driving. The only other eyewitness is the little girl, but she is no longer able to speak or understand questions. There is independent evidence that the car was being driven at a high speed just before the accident happened.

Both parents could be charged with dangerous driving causing death, dangerous driving causing serious harm and criminal neglect. The dangerous driving charges are unlikely to stick in the absence of proof of the identity of the driver. The only other possible causative offence is manslaugh­ter by unlawful and dangerous act, that act being a failure to restrain the boy by a seatbelt. The charge is also unlikely to stick unless it can be shown who failed to restrain the children.

If the father maintains his silence (and only the father can say what happened, because the mother has no memory of the journey or the accident), both parents risk being convicted of criminal neglect. They each have the relevant duty of care, would be expected to be aware of the high risk of serious harm that a lack of seatbelt restraint poses, and have apparently not taken steps that might reasonably have been taken to protect each child from harm.

The incentive in this case is for the father to concoct a story that places one parent in the driver’s seat and the other asleep throughout the journey, including that the driver stopped the car to let the children stretch their legs and did not put their seatbelts on when they got back in. If believed, this will place only one parent, instead of two, at risk of a criminal conviction and imprisonment, leaving the other to look after the surviving child. But that incentive is so obvious that the prosecutor is likely to alert the jury to it and ask them to take the father’s initial refusal to say what happened into account when testing his evidence. There is no real risk of a miscarriage of justice in these circumstances.

Since March 2004, the House of Commons has had before it a Bill that, among other things, would create a new offence of causing or allowing the death of a child or vulnerable adult. Under the UK Domestic Violence, Crime and Victims Bill, this offence would apply where such a person dies as a result of unlawful conduct; where a member of the household caused the death; where the death occurred in anticipated circumstances; and the accused was or should have been aware that the victim was at risk but either caused the death or did not take all reasonable steps to prevent the death. It would not be necessary to show which member or members of the household caused the death and which failed to prevent it. All members of the household, subject to restrictions about age and mental capacity, would be liable for the offence if they meet the criteria. The maximum penalty would be imprisonment for 14 years or a fine or both.

The main differences in approach between the UK Bill and this Bill are these:

· The offence in this Bill is in respect of unlawful death or serious harm, while the proposed UK offence is confined to unlawful death. The Government is of the view that, as a matter of principle, the duty of care should extend to protecting the victim from serious harm as well as from death, and the offence should reflect this.

· The UK Bill does not refer overtly to a duty of care, but implies it between a person who is member of the victim’s household and had frequent contact with the victim if that victim is a child or vulnerable adult. This Bill spells out when a duty of care exists, but does not deem a duty of care to exist in a person who is not a parent or guardian of the victim. It recognises that it is possible to share a house­hold with a child or vulnerable adult, especially for short periods of time or limited purposes, without actually assuming any responsibili­ty for that child or adult.

· The UK Bill is limited to domestic relationships. This Bill goes further and includes relationships that are not confined to households. It contemplates situations where a duty of care is created by an assumption of responsibility between people who do not share a household (as when two adults assume responsibility for the care of their child’s school friend for the day, and that friend dies or suffers serious harm while in their care).

This law breaks new legal ground. It may not satisfy everyone. Some may wish a carer in the examples I have given to be guilty of intentionally or recklessly causing death or serious harm. The Government is not prepared to go that far, because that would be to deem an intention or recklessness where none can be proved. But what can be proved is that the unlawful act that caused the death or serious harm involved such a high risk that death or serious harm would follow, and that the accused's failure to protect the victim from it involved such a great falling short of the standard of care that a reasonable person in his or her position should be expected to exercise, that the failure merits criminal punishment.

Some might say that people should not be held criminally responsible for their negligence. But they forget that the law already holds people criminally responsible for their negligence in the offence of manslaughter. In every other Australian jurisdiction, there are non-fatal offences against the person that require only negligence (to a criminal standard). The Government has introduced the Statutes Amendment and Repeal (Aggravated Offences) Bill 2003, which will create a similar liability in the offence of causing serious harm by criminal negligence.

The offence of criminal neglect is important to prevent people escaping criminal liability altogether when they fail to protect someone for whose welfare they have assumed responsibility and, as a result, that person dies or suffers serious harm.

People should expect criminal penalties not only for harming those in their care, or for helping or encouraging others to cause that harm, but also for standing by and letting that harm happen.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of Division 1A

This clause inserts a new Division in the Criminal Law Consolidation Act 1935. The new Division creates an offence of "criminal neglect" which occurs where—

× a child under the age of 16 or a vulnerable adult (which is defined as person over 16 years of age whose ability to protect himself or herself is significantly impaired through physical or mental disability, illness or infirmity) suffers serious harm as a result of an unlawful act; and

× the defendant had a duty of care to the victim (ie. was the victim's parent or guardian or assumed responsi­bility for the victim's care); and

× the defendant was (or should have been) aware that there was an appreciable risk of serious harm to the victim by the unlawful act; and

× the defendant failed to take steps that could reasonably have been expected to protect the victim and that failure was, in the circumstances, so serious that a criminal penalty is warranted.

The maximum penalty for the offence is imprisonment for 15 years if the victim dies, or 5 years in any other case.

The provision also provides for the conviction of a person for this new offence in a situation where there would otherwise be a reasonable doubt as to guilt of this offence because the relevant unlawful act may have actually been committed by the defendant. This will operate where the relevant unlawful act could only have been committed by the defendant or some other person and, if it were some other person, then all the elements of this new offence of criminal neglect would be established against the defendant.

The Hon. W.A. MATTHEW secured the adjournment of the debate.