Court of Appeal (WA)|2013-08-29|Before: Buss JA, Lure P, Mazza JA

PES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 202 (29 August 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 202

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Children and Community Services Act 2004 (WA), s 101(1) - The meaning of 'reckless' in the context of s 101(1) - Whether the trial judge misdirected the jury on the meaning of 'reckless'

Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 26

La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62

2 BUSS JA: The appellant has applied for leave to appeal against conviction.

3 He was convicted, after a trial in the District Court before Curthoys DCJ and a jury, of 21 counts in an indictment.

4 The relevant counts, for present purposes, are counts 7, 18, 20 and 21.

5 Each of those counts alleged, relevantly, that during a specified period the appellant, being a person having the care or control of a named child, 'engaged in conduct knowing that, or being reckless as to whether, such conduct may result in [the named child] suffering harm as a result of physical, emotional, sexual, or psychological abuse, or neglect', contrary to s 101(1) of the Children and Community Services Act 2004 (WA) (the Act).

6 The offending concerned four victims. Each of counts 7, 18, 20 and 21 related to a different victim.

7 The sole proposed ground of appeal alleges that the trial judge misdirected the jury as to the meaning of 'reckless' in s 101(1)(b) of the Act.

8 Section 101 of the Act reads:

(1) A person who has the care or control of a child and who engages in conduct -

(a) knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -

(i) physical abuse; or

(ii) sexual abuse; or

(iii) emotional abuse; or

(iv) psychological abuse; or

(v) neglect as defined in section 28(1);

(b) reckless as to whether the conduct may have that result,

is guilty of a crime, and is liable to imprisonment for 10 years.

(2) In subsection (1) -

engage in conduct means -

(a) to do an act; or

(b) to omit to do an act;

harm has the meaning given to that term in section 28(1).

9 Neither the word 'knowing' nor the word 'reckless' is defined in the Act. It is unnecessary to refer to the definition of 'neglect' in s 28(1) or the meaning given to the term 'harm' in s 28(1).

The trial judge's directions as to the meaning of 'reckless'

10 The trial judge directed the jury about the meaning of 'reckless', as follows:

Now, the State also has to prove that [the appellant] knew or was reckless as to whether his conduct may have the result of causing harm to the child. That is whether physical, emotional, sexual or psychological abuse may cause harm to, for example, [A].

Now, there are two bases for that... you may find that [the appellant] knew that his conduct may result in, for instance, [A] suffering harm as a result of physical, emotional, sexual or psychological abuse or neglect. Or you may find that he was reckless as to whether such conduct may result in [A] suffering harm as a result of physical, emotional, sexual or psychological abuse or neglect.

Now, you can either find that he knew or that he was reckless. Whether he knows something, I'll deal with what and how you determine that later, but in relation to reckless, whether he was being reckless as you'll see set out on the fourth line of charge 18, it's not uncommon to hear people in everyday speech describing negligence or carelessness as reckless. And indeed the Oxford English Dictionary defines reckless as the quality of being careless in respect of one's conduct, reputation or the consequences of one's action and in one's own experience.

However, that's not the sense in which it's used in the criminal law and for the purposes of this section. What the State must establish is that [the appellant] either knew that his conduct may have the consequence of causing harm as a result of abuse or neglect or in relation to reckless that [the appellant] had a conscious disregard for the consequences of his conduct. That is a conscious disregard as to whether his conduct might have the result of causing harm as a result of abuse or neglect (ts 506 - 507). (emphasis added)

11 A little later, in the context of directions about inferences, his Honour told the jury:

If you are satisfied that a certain thing happened it may [be] right to infer that something else occurred and that'll be the process of drawing an inference from facts. And that will be particularly relevant to whether [the appellant] knew or whether he was reckless, that is whether he had a conscious disregard.

However you may only draw reasonable inferences and your inferences must be based on facts you find proved by the evidence. And there must a logical and rational connection between the facts you find and your deductions or conclusions. You're not to indulge in intuition or in guessing.

In relation to the facts from which the State asks you to draw the inference and in this case that is in particular the knowledge or the recklessness, the conscious disregard, you don't consider those facts in isolation but you consider them as a whole to determine whether the inference of guilt is the only inference reasonably available (ts 510). (emphasis added)

12 The appellant's very experienced criminal defence counsel did not request any redirection or additional direction in relation to the word 'reckless'.

13 Counsel for the appellant contended that, in the context of s 101(1)(b) of the Act, the word 'reckless' does not involve 'merely' a 'conscious disregard'.

14 He asserted in his written submissions that the trial judge should have directed the jury that 'in order to establish that the appellant was "reckless" it was necessary for the prosecution to prove [beyond reasonable doubt], in relation to the second limb of s 101(1), that he had, or ought to have had, foresight into the consequences of his conduct' [76].

15 At the hearing, counsel for the appellant clarified the appellant's case. Counsel submitted that his Honour should have directed the jury that, in order to establish that the appellant was 'reckless', it was necessary for the prosecution to prove beyond reasonable doubt that the appellant had both a 'conscious disregard' as to whether his conduct might have the result of causing harm and 'foresight and awareness' that his conduct may have that result (appeal ts 3 - 4).

The merits of the proposed ground of appeal

16 A criminal offence may be created by statute with a criterion of intention, knowledge or awareness, recklessness or reckless indifference, or foresight with respect to some act, circumstance or consequence. See La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 75 - 76 (Gibbs J); Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 - 505 (Mason CJ, Deane & Dawson JJ); Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 [6] - [8] (Gummow, Hayne & Heydon JJ).

17 The elements of the offence created by s 101(1) of the Act include:

(a) knowledge by the accused that the conduct he or she engages in 'may result in the child suffering harm' as a result of physical, emotional, sexual, or psychological abuse, or neglect; or

(b) alternatively, recklessness by the accused as to whether his or her conduct may have that result.

18 The element of knowledge, alternatively the element of recklessness, in s 101(1), is concerned with the accused's actual state of mind.

19 In the present case, the State alleged in the indictment and at trial that the appellant knew, alternatively was reckless as to whether, his alleged conduct may result in each child suffering harm as a result of abuse or neglect of the kind specified in s 101(1).

20 The trial judge directed the jury in relation to the alternative elements of knowledge and recklessness. His directions required the jury, in the context of these alternative elements, to consider the appellant's actual state of mind.

21 His Honour instructed the jury that recklessness, within s 101(1)(b), did not mean negligence or carelessness. Rather, the provision was concerned with whether the appellant had a 'conscious disregard' for the consequences of the conduct in which he allegedly engaged. The State had to prove, in relation to each of counts 7, 18, 20 and 21, that the appellant had a 'conscious disregard' as to whether his alleged conduct may result in the child suffering harm as a result of the alleged abuse or neglect.

22 The notion of 'conscious disregard' by an accused of the potential consequences of his or her actions or omissions connotes that the accused wilfully or deliberately shut his or her eyes to, or excluded from

contemplation, whether the alleged conduct may result in the child suffering harm of the kind specified in s 101(1).

23 There is no merit in the proposed ground of appeal. The trial judge did not misdirect the jury. His directions as to the meaning of 'reckless' did not occasion a miscarriage of justice.

24 If the appellant had actual 'foresight' or actual 'awareness' that his conduct may result in the child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he would have had actual 'knowledge' that his conduct may have that result. The State would have established the element of 'knowledge' within s 101(1)(a), being its primary case as alleged in the indictment and at trial. That is, if the appellant had actual 'foresight' or actual 'awareness', then he had actual 'knowledge' of the potential consequences as distinct from being 'reckless' as to those consequences.

25 If the appellant 'ought to' have had 'foresight' or 'awareness' that his conduct may result in the child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he would not have had actual 'knowledge' that his conduct may have that result and he would not have had a 'conscious disregard' of the potential consequences of his conduct. The notion that the appellant 'ought to' have had 'foresight' or 'awareness' of potential consequences connotes negligence or carelessness. It is inconsistent with the notion of 'conscious disregard', and posits a test of 'reckless' which is materially less favourable to the appellant than the test adopted by the trial judge in his directions to the jury. The word 'reckless' in s 101(1)(b) does not import the objective concept of negligence or carelessness.

26 The proposed ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.

Community Services Act 2004

Banditt v The Queen

At a glance

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Judgment (49 paragraphs)

PES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 202 (29 August 2013)

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