When natural medicine goes bad…

By and large, people have a right to choose what healthcare they and their family receive.  Some people opt for non-standard forms of medicine.  As early as the 1870s some westerners were prepared to go on record regarding the efficacity of Chinese cures (see Ex Parte Yee Quock Ping (1875) 1 VLR 112).  Where naturopathy is concerned, I can’t imagine my thoroughly practical friend – and Naturopath-in-Training – Madison ever recommending something  anything she thought would be useless or (worse) harmful.  Nevertheless, sometimes the process goes astray.

In early 2015 a baby in New South Wales was diagnosed with eczema.  His mother was advised by a medical practitioner that the condition could be managed but not cured.  She consulted a naturopath, who told her that it could in fact be cured.  The child was being breast fed and (so the reasoning ran) his eczema could be caused by the mothers diet and toxins in her body.  She recommended the mother take up a raw food diet.  Over the next month both mother and child lost significant weight.  Despite not seeing the child, the naturopath assured the mother that this was normal and that her baby was fat and needed to lose weight.  Astonishingly, in mid-May 2015 the naturopath advised the mother to fast and adopt a water-only diet.

A few weeks later the child’s mother took him to a General Practitioner.  He was referred to a hospital where he was found to be in a critical condition.  It was concluded that he would have died within days without medical care.  His weight had dropped from 8 kilograms to 6.4 kilograms (17.6lbs to 14.08lbs).  It was uncertain whether he would suffer permanent developmental delays due to the experience.

The child’s mother was charged with failing to care for a child.  The Crimes Act 1900 (NSW), §43A(2) provides that

A person:

(a) who has parental responsibility for a child, and

(b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,

is guilty of an offence if the failure causes a danger of death or of serious injury to the child.

Maximum penalty: Imprisonment for 5 years.

The naturopath was charged with aiding, abetting, counselling or procuring the mother’s crime.  She pleaded guilty.  The District Court accepted that she was remorseful and she had meant well.  However, Berman DCJ pointed out that –

 

Well intentioned but seriously misguided advice is, as the facts of this case demonstrate, capable of causing great harm and even death to vulnerable children. Those giving such advice need to have it made clear to them that if they give such advice they need to make sure that it is not going to do harm and if they continue to give such advice they need to continue to ensure that no harm is being caused.

It is a serious matter, but not necessarily a crime, to tell a breast feeding mother to restrict her diet. It is even more serious when such advice continues after being told that both the mother and child have lost weight. And it is serious indeed and highly criminal for such advice to continue to the state where a child was at risk of death within a few days, in circumstances where the person giving the advice hadn’t even seen the state the child was in as a result of his or her advice being followed.

 

The naturopath was sentenced to be imprisoned for 14 months, to serve a minimum of 7 months.

R v Bodnar [2018] NSWDC 76

 

He wasn’t called “Jerry”

In October 2015 Mr Chameoeun (“Jimmy”) Soun was hired to undertake $7,000.00 worth of work at a property in Cranbourne, Victoria. He did not provide the property owner with a formal contract and took a deposit of greater than 10%. Later that year he was also hired to build a laundry (which he did without obtaining a building permit) and a carport valued at $6,000.00 for which he again did not enter a contract. He was not a registered builder.

building meme
Image from here

Mr Soun was charged with a number of breaches of the Domestic Building Contracts Act 1995 and the Building Act 1993, including §29 of the former, which at the time provided that

A builder must not enter into a major domestic building contract unless … the builder is registered as a builder under the Building Act 1993, in the case of a natural person … Penalty:100 penalty units.

A ‘major domestic building contract’ was defined as one where the contract price exceeded $5,000.00 (subsequently raised to $10,000.00).

Mr Nuon opted neither to appear nor be represented at the hearing of the charges. In his absence the Dandenong Magistrates Court convicted him and imposed a fine of $5,000.00 plus costs.

Victorian Building Authority v Nuon (2019) Cranbourne Star-News, 7 February 2019, p.3

The Mutiny continues

Pitcairn Island, some readers will know, was settled by the mutineers of HMAV Bounty.  Their descendants make up most of the 50-person population of the Island.  The national occupation, it appears, is keeping lawyers employed.

Michael Warren was the mayor of Pitcairn Island.  Alarmingly (since he worked in child protection), he was charged with possession of child pornography and of grossly indecent items.  The matter was dealt with in the Pitcairn Islands Supreme Court. He was sentenced to be imprisoned for 20 months: The State v Warren (2016) Radio New Zealand, 5 March 2016.. His appeal to the Pitcairn Islands Court of Appeal [6 July 2016] was dismissed: Warren v The State (2016) Radio New Zealand, 14 July 2016 . He appealed to the Privy Council.

Pitcairn_Island_In_The_Distance
Pitcairn Island (Image from here)

Perhaps in keeping with the Island’s mutinous heritage the appellant submitted that the Pitcairn Constitution Order 2010 was undemocratic, thereby breaching the Bill of Rights 1688 and various international human rights norms.  It followed (he said) that all arrangements for trials relating to Pitcairn were unlawful.

The Pitcairn Constitution Order was made under §2 of the British Settlements Act 1887 (UK) which says –

It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such courts and officers, and make such provisions and regulations for the proceedings in the said courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty’s subjects and others within any British settlement.”

Following Sabally and N’Jie v Attorney General [1965] 1 QB 273, the Board accepted that the British Settlements Act 1887 did in fact enable the Crown to create a non-representative legislature where the population was too sparse or little-educated.  This was the situation of Pitcairn, whose population “is approximately 50 persons of whom fewer than 40 are adults”.

The appeal was dismissed

Warren v The State (Privy Council, 30 July 2018)

And the Hell with us too.

Over the weekend another woman died in Melbourne.  Laa Chol, a young law student of Sudanese background, was stabbed after being caught up in a fight at a party.  Just as they did after the murders of Jill Meagher and Eurydice Dixon, the usual array of fingerpointing and virtue signalling has begun.  From Facebook

Male violence is a major “law and order problem” but we never hear Dutton mention that

From an acquaintance of mine –

WE as men need to remind ourselves in everything we do, every step along the journey, that we should not sexually assault or rape women.

When one looks at the pictures of the victims I have mentioned, something in particular stands out:

Images from here

All young.  All pretty.  All plausibly middle-class.  Now let’s consider the death of Samantha Kelly in 2016.  Kelly was not young.  She wasn’t pretty.  She was an intellectually disabled woman living a down-at-heel existence in regional Victoria when a housemate caved her head in with a hammer*.  Remember the outpouring of community grief?  Neither do I.

Does anyone remember Margaret Maher? Maher was a 40 year old drug-addicted prostitute in northern Melbourne.  Her diet was poor and left her at permanent risk of heart failure.  In 1997 she encountered serial killer Peter Dupas.  As Kaye J afterwards said in his sentencing remarks** –

After you murdered her, you then mutilated the deceased’s body … and left it by the side of a road, in a desolate place, as a disgusting display of loathing for the deceased and contempt for her dignity. Not content with what you had done to her in life, you robbed her of her dignity in death. Those actions are, I consider, an eloquent insight into the unmitigated evil which actuated you to kill Margaret Maher and to behave as you did.

I can’t remember Maher’s death rating a headline until Dupas faced a charge of murder.

Nor has there been much public reaction to the death of another 40 year old working girl, Tracy Connelly, in whose death the Victorian Coroner recently issued a finding***.  Connelly sometimes conducted business in a van owned by her and her partner.  And on the night of 21 July 2013 she died in that van, stabbed repeatedly until the knife passed through her left eye and into her brain.  Her killer has not been located.

May I suggest that the difference in response has much – perhaps everything – to do with class and appearance?  It appears much easier for those of us who are articulate and in control of our lives to  care for the pretty, the popular, and those from our own class.  No doubt people will say that of course the lives of the working class and underclass matter greatly.  But the difference in responses will remain the same, and so will the doubt about motivation.  Facta non verba.

Some people get bent out of shape at the idea of accusing all men of being violent.  I don’t.  The response is too narrow.  Our society has decided some lives deserve less mourning because the victims were faceless or voiceless?  If so, then the hell with all of us.

===========================

* He is now serving 22 years for murder: R v Arthur (2018) Bendigo Advertiser, 28 February 2018.

** R v Dupas [2004] VSC 281

*** In the Death of Tracy Anne Connelly (Coroners Court of Victoria, Hinchey C, 16 July 2018, unreported)

A tragedy in Paradise

Road accident lawyers sometimes fall into the lazy trap of thinking that because there’s a problem in a vehicle, negligence is a given.  A recent case from the Pacific islands offers a reminder about thinking through causation.

On 12 September 2011, a truck driven by a member of Kiribati Protestant Church on church business hit a young girl who ran across the road.  The accident caused her fatal injuries.  Because of rain, the vehicle was travelling at 20-30 kilometres (12-18 miles) an hour.  The uncontested evidence of the driver was that the child had run in front of the vehicle suddenly.  The police investigation found that the truck’s breaks were defective and had to be pumped to operate.

So Tarawa
South Tarawa, Kiribati (Image from here)

The defendant was charged with dangerous driving causing death: Traffic Act 2002 (Kiribati), §31

The driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road.

Penalty:

… (c) for an offence causing death – a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

He was acquitted on the basis that (inter alia) there was no evidence that the defective brakes had contributed to the accident.  There had been no time to brake before impact: Republic v Mikaere (Zehurikize J, High Court of Kiribati, 10 November 2016, unreported).

An appeal was lodged on the basis that the verdict was against the weight of evidence, in particular the “finding that the evidence did not establish that the respondent had driven in a dangerous manner by driving when he knew the brakes to be defective”.

The Kiribati Court of Appeal noted the trial judge’s finding that the deceased had run suddenly in front of the truck and that –

The defective brakes played no part in the accident. The respondent had no opportunity to apply the brakes until after impact. We note that when he did so he stopped 10 metres further on, confirming that he was driving at a moderate speed and was able to brake effectively.

The appeal was dismissed.

Attorney-General v Mikaere (Kiribati Court of Appeal, Blanchard, Handley and Hansen JJA, 16 August 2017, unreported)

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

LP High court
Image from here

The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.

 

Failure to predict.

It’s hard to imagine that a police sergeant or bail justice could have predicted what would happen later.

It’s not clear how he was released.  In the afternoon or evening of 15 March 2017 one Macarthur was drunk and randomly punching at passengers at a Melbourne railway station.  He was arrested.  At about 10:00pm on 15 March 2017 he was released from police custody.  Seven hours later – at about 5am – he met a young woman at a tram stop.  He followed her onto – and off – the tram.  He accosted and raped her near a hospital.

The Crimes Act 1958 (Vic) §38 relevantly provides that –

(1) A person (A) commits an offence if—

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.

The offender pleaded guilty before Judge Lawson in the Melbourne County Court.  Her Honour considered the crime to have been brazen and predatory.  She imposed a sentence of seven years and nine months, to serve a minimum of five years.  He had already served 15 months on remand.

Director of Public Prosecutions v Macarthur (2018) Herald Sun, 2 June 2018, p.21

Eight years. One second.

It’s impressive he was even functioning.

In March 2017 a Melbourne truck driver was about to end an eight year ice binge.  He didn’t mean to.  He had been swerving erratically on the Calder Freeway.  The cars ahead were slowing for roadworks that morning.  He reacted, at most, a second before he crashed into the back of boilermaker Kari-Pekka Maunus’ utility, killing the 49-year old boilermaker.  He was charged with causing death by culpable driving.

highway
Image from here

The Crimes Act 1958 (Vic.) §318 relevantly provides that

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

(1A) The standard sentence for an offence under subsection (1) is 8 years.

(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle … whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

The charge was dealt with in the Melbourne County Court. Judge Wraight imposed a sentence of six years imprisonment with a minimum term of four years

Director of Public Prosecutions v Templeton (2018) Herald Sun, 2 June 2018, p.31.

Sick. Sicker.

Illness leading to injury.  No winners here.

Between September 2016 and March 2017 a disabled 37 year old man in Melbourne, Australia, made a number of phone calls to mothers.  He posed as an emergency responder.  He told each one that her daughter had been killed in a road accident.  Each one was deeply shocked by the phone call.  One was later diagnosed with depression and Post-Traumatic Stress Disorder.  Another was left with sleep problems.  The offender was charged with three instances of stalking and of recklessly causing injury, and also two instances of using a carriage service to menace, harass or cause offence.

 

stalk
Image from here

The Crimes Act 1958 (Vic) §21A relevantly provides that –

(1) A person must not stalk another person. Penalty: Level 5 imprisonment (10 years maximum).

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes … contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever; … with the intention of … arousing apprehension or fear in the victim for his or her own safety or that of any other person.

(3) For the purposes of this section an offender also has the intention to … arouse apprehension or fear in the victim for his or her own safety or that of any other person if … the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear …

The matter was dealt with before Judge McInerney in the Melbourne County Court.  It was put on his behalf that he had significant mental problems including autism, a socialization disorder and Tourette’s syndrome.  The Court said that the offences were bizarre, heinous and grievous, but that the offender’s illness required his punishment to be moderated.

The offender was sentenced to serve three months imprisonment in addition to the roughly 15 months he had spent on remand.  He was ordered to complete a community corrections order including mental treatment on release.

Director of Public Prosecutions v Zillner (2018) The Age, 7 June 2018, p.11

Doing a line of … baby formula?

I don’t know how much heroin costs per ounce. I hope it’s more than baby formula. If it’s less, it’ll completely eff my sense of reality.

formula
Image from here

 

In December 2017 and April 2018 a man from Corio, Australia, stole 67 tins of baby formula from supermarkets in Portarlington, Drysdale and Eltham. The retail value of this much formula was A$2,345.00 (the value on the China-driven black market may be as much as A$13,500!)

The offender was charged with four counts of theft and one of obtaining property by deception, as well as certain bail offences. The Crimes Act 1958 (Vic.), §81(1) provides that –

A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

 

The offender was dealt with in the Geelong Magistrates’ Court. His lawyer submitted that he had committed the thefts to fund a heroin addiction. He had been gainfully employed from his release from prison for another offence in 2012 until he suffered a back injury in 2016.

Mellas M sentenced the offender to two months imprisonment.

Police v Wright (2018) Geelong Advertiser, 25 May 2018, p.7