Tasmania v M [2008] TASSC 21

Walsh v Tattersall (1996) 188 CLR 77; R v McFarlane [2001] NZCA 155; R v Connor [1908] 2 KB 26; Young v R (1992) 97 Cr App R 280; R v Hayles [1969] QB 364, referred to.

1 These are my reason for dismissing a motion for the quashing of the indictment in these proceedings on 13 May 2008. Counsel for the accused applied on that day for the indictment to be quashed pursuant to the Criminal Code ("the Code"), s352(1), on two bases, namely that the indictment was formally defective, and that it was calculated to prejudice or embarrass the accused in the defence of the charges.

2 The indictment contains two charges of ill-treating a child contrary to the Code, s178(1). That subsection reads as follows:

"178 (1) Any person over the age of 14 years who, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime."

3 The charges relate to two children. Each charge alleges that the accused ill-treated one of those children over a period of a little over four years and seven months, at two different addresses. The Crown has supplied particulars of the charges. The particulars relating to count 1 comprise 13 paragraphs. Those relating to count 2 comprise 23 paragraphs. Some of those paragraphs allege specific assaults on apparently identifiable occasions. Others allege multiple assaults with similar characteristics on unspecified occasions, eg hitting one of the children with an electric fence post, usually to the bottom, at the second of the two addresses. There are also allegations of ill-treatment not involving physical force, eg using abusive language, yelling, being demeaning in relation to the child wetting his pants, and threatening to cut the child's penis off.

4 Counsel for the accused submitted that each of the charges was bad for duplicity on the basis that each of the acts of alleged ill-treatment constituted a separate crime. The Crown prosecutor submitted that the course of conduct alleged in respect of each child constituted a single crime committed over a period of years, and that the two rolled-up charges were therefore not defective.

5 Charges of ill-treatment under s178 relating to courses of conduct over extended periods have been the subject of criminal appeals in this State in the past without any point being taken as to duplicity, and without any judicial comment being made as to the appropriateness or otherwise of such rolled-up charges: Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234; P v Tasmania (No 2) [2006] TASSC 35. The Criminal Codes of other jurisdictions appear to contain sections prohibiting the abandonment, exposure or desertion of children, but not their ill-treatment or neglect: Criminal Code (Qld_)_, s326; Criminal Code (WA), s176; Criminal Code (NT), s184; Criminal Code (Can), s218. However the prohibition of the ill-treatment and neglect of children appears to have been a feature of English legislation since 1889: Prevention of Cruelty to, and Protection of, Children Act 1889, s1; Prevention of Cruelty Act 1894, s1; Prevention of Cruelty to Children Act 1904, s1; Children Act 1908, s12(1); Children and Young Persons Act 1933, s1.

6 Whilst the point may never have been argued in England, the English courts appear to have proceeded for many years on the basis that a course of conduct amounting to ill-treatment or neglect over an extended period could properly be the subject of a single charge. In R v Connor [1908] 2 KB 26, which concerned children who were half-starved, the indictment alleged that the offence had been committed between 7 February 1907 and November 1907. In Young v R (1992) 97 Cr App R 280, the charge in question was based upon three incidents occurring over a period of about eight months. Many editions of Archbold's Criminal Pleadings Evidence and Practice contain commentary in relation to the word "ill-treat" as follows:

"There is no definition of this word in the Act, but one may assume that it is intended to cover a course of wilful ill-treatment ...".

7 Some commentators have suggested that R v White (1871) LR 1 CCR 311 is authority for the proposition that abandonment can be a continuing offence. However that case related to events that occurred over a period of hours. The estranged wife of the accused left their child on his doorstep at about 7pm. Shortly afterwards, he came out of his house, stepped over the child, and went away. He passed the child at about 10pm when he came home and went inside. A constable took charge of the child at about 1am. The question in that case was whether, on those facts, the accused had rightly been convicted of abandoning the child. It was held that he had. Having regard to the conduct upon which the conviction was based, I do not think that the case can be seen as authority for the proposition that abandonment is a continuing offence.

8 R v Hayles [1969] QB 364 is authority for the proposition that the corresponding section in the English 1933 Act created one offence, rather than several offences. That section used the words "wilfully assaults, ill-treats, neglects, abandons, or exposes ...". The Court of Appeal took the view that those words did not create five separate offences, so that a conviction on a charge of ill-treatment would be justified even when the same conduct might have been better labelled as neglect.

9 There are, of course, crimes and offences which are constituted by activity over time. Examples include treason, conspiracy, drug trafficking, keeping a brothel, and stalking. In Walsh v Tattersall (1996) 188 CLR 77 at 108, Kirby J, after a review of the authorities relating to duplicity, agreed with a comment by Gleeson CJ in Stanton v Abernathy (1990) 19 NSWLR 656 at 666 that "the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide ... as to whether the common law rule [against duplicity] has been infringed".

10 The prohibited conduct involved in abandoning or exposing a child in a manner likely to cause the child unnecessary suffering or injury to health might normally be constituted by a single act. A good example is to be found in R v Falkingham (1870) LR 1 CCR 222, which concerned the sending of a baby by rail in a hamper, wrapped up in a shawl and packed with shavings and cotton wool. However the conduct involved in neglecting a child in a manner likely to cause unnecessary suffering or injury to health is more likely to be constituted by an omission, or series of omissions, over a period of time. Similarly, ill-treatment is a concept that might embrace a variety of acts and omissions over a period of time. Those factors suggest that a course of conduct amounting to ill-treatment and/or neglect over an extended period might properly be regarded as a single crime, rather than a series of separate crimes.

11 The submission as to duplicity raises a question as to the proper interpretation of s178(1). By virtue of the Acts Interpretation Act 1931, s8A(1), an interpretation that promotes the purpose or object of the section must be preferred to one that does not. Cases of ill-treatment and neglect are likely to involve children who are too young to give evidence at all, or who are unable to give detailed accounts identifying specific assaults or other specific acts of ill-treatment. Sometimes medical practitioners might be able to give evidence of a child having apparently suffered a variety of injuries at different times, but there might be no evidence as to the circumstances in which individual injuries were suffered. The purposes or objects of s178(1), in my view, are the prevention and punishment of cruelty to children. If s178(1) were interpreted so that only single acts of ill-treatment could be charged as crimes, those purposes or objects would be frustrated. An interpretation whereby a course of conduct involving a number of acts or omissions could be charged as a single crime promotes the purposes or objects of the subsection.

12 It has been held in England that a single act of ill-treatment can constitute the offence of ill-treating a patient contrary to the Mental Health Act 1959 (UK), s126: R v Holmes [1979] Crim LR 52. I see no reason why a single act of ill-treatment should not be capable of constituting the crime created by our s178(1). However that does not preclude a conclusion that a course of conduct over an extended period may also constitute a single crime under that provision.

13 Having regard to the fact that ill-treatment and neglect can occur over extended periods, and can involve a variety of acts and omissions, and having regard to the purposes or objects of s178(1), I concluded that a course of conduct over a period of days, weeks, months or years can constitute a single crime for the purposes of that subsection. It follows that the indictment is not formally defective.

14 Since reaching that conclusion, I have become aware of authority on this point in New Zealand. The Crimes Act 1961 (NZ), s195, provides as follows:

"Every one is liable to imprisonment for a term not exceeding 5 years who, having the custody, control, or charge of any child under the age of 16 years, wilfully ill-treats or neglects the child, or wilfully causes or permits the child to be ill-treated, in a manner likely to cause him unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability."

In R v McFarlane [2001] NZCA 155, the New Zealand Court of Appeal held that an indictment charging the appellant with a single count of ill-treatment "between 1 January 1997 and 23 July 1999" was not defective. At par7, Doogue J, delivering the judgment of the Court, said:

"Upon the Crown's evidence there were numerous incidents of unwarranted use of force and assaults at times and circumstances beyond the ability of a young victim clearly to recall. The fact that initial charges were of individual assaults does not affect that. We accept the submissions for the Crown that the evidence upon which the Crown relied amounted to a course of conduct entirely appropriate for a charge under s195."

15 As I have said, some paragraphs in the particulars supplied by the Crown allege specific assaults on identifiable occasions. The particulars relating to count 1 appear to allege eight such assaults, as particularised in pars2 and 4 to 10 inclusive. In the particulars relating to count 2, par5 appears to refer to two such assaults - one to the elbow and one to the eye area. Other assaults on identifiable occasions appear to be alleged in pars2, 3, 8, 9, 11, 13, 16, 17 and 18, so that eleven such assaults are alleged altogether.

16 The indictment relates to allegations of ill-treatment between dates in June 2001 and January 2006. It seems likely that details of the allegations were not revealed to the accused until he was interviewed by police officers on 27 February 2006. Because of the delay between the time when the ill-treatment is alleged to have commenced and the time of the interview, and because of imprecision as to dates and times in relation to many of the acts of ill-treatment, the evidence of the complainants will not be able to be adequately tested in the ways that criminal evidence can ordinarily be tested. The accused faces the sorts of difficulties that were discussed by the High Court in Longman v R [1989] HCA 60; (1989) 168 CLR 79. However the accused and his counsel have detailed information about the nature of the allegations. Bearing in mind that the accused is entitled to the benefit of any reasonable doubt, and that the jury will be given appropriate directions, there is no reason to fear that the accused will not get a fair trial.

17 One consequence of a series of alleged acts and omissions extending over a period of years being rolled up into two single charges is that the role of the jury will, in a sense, be limited. Assuming that the jury is not asked to make findings upon particular questions pursuant to the Code, s383(3), the jury will simply return a verdict of either guilty or not guilty in respect of each charge. If they find the accused guilty of a particular charge, it will be necessary for me to make findings as to what ill-treatment has been proven beyond reasonable doubt: P v Tasmania [2005] TASSC 107. If the 19 assaults alleged to have occurred on identifiable occasions were separately charged, the jury would exercise its normal constitutional role in relation to each of those alleged assaults. If the indictment were not quashed, I doubt that it would be practicable to invite the jury to make findings as to specific questions in view of the number of different allegations of ill-treatment that the Crown relies on.

18 However it is significant that the Crown is relying on an alleged course of conduct in relation to each child. The alleged course of conduct comprises much more than assaults and other acts of ill-treatment on identifiable occasions. This is not a case where separate counts for each assault alleged to have taken place on an identifiable occasion, and a separate count for each act of ill-treatment alleged to have occurred on an identifiable occasion, would have reflected the Crown case adequately. Further, there is nothing in the material before me that suggests that, by reason of the timing of the alleged acts, lack of similarity of the alleged acts, the places where the acts are alleged to have occurred, or any other factor, a miscarriage of justice might result from the course of conduct alleged in respect of each child being the subject of a single rolled-up count.

19 It is likely that the accused will encounter difficulties in defending the charges as a result of the passage of time, imprecision in the allegations, and the multiplicity of allegations. If he is found guilty, the jury will have a smaller than usual role in the fact-finding process. However, I do not believe that those matters will prejudice or embarrass the accused in his defence of the charges to such a degree as to warrant the quashing of the indictment. I do not believe those matters could lead to a miscarriage of justice. To the extent that the power to quash an indictment is discretionary, I do not think this is an appropriate case for that discretion to be exercised in favour of the accused, particularly because the alternative - a series of charges alleging single assaults and single acts of ill-treatment - would not adequately reflect the Crown case.

20 For these reasons I concluded that the indictment should not be quashed.