Mum 'forgot' toddler left in car
Sylvia Else
"Ms Burney said leaving a child locked in a car in any circumstances was
against the law."
Any circumstances? Looks to me like its only unlawful if its intentional.
http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s227.html
On the facts as given in the article, intent is going to be difficult to
prove. Perhaps the police are hoping she'll plead guilty.
Sylvia.
F Murtz
and was charged with something else.
Dr. Sir John Howard, AC, WSCMoF
Or maybe they'll lock her up and forget about her.
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Epsilon
But see section 231 -
http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s231.html .
Sylvia Else
Ah - should have seen that.
But still, is much changed? Is the offence one of strict, or absolute,
liability? The absence of the word "intentionally" might suggest so. On
the other hand, section 105 has an express statement about strict
liability which s231 lacks. I think there's an argument that had
parliament intended strict liability to apply, it would have said so.
Sylvia.
Epsilon
It's a standard issue of construction. The normal rule is that a criminal
offence requires the subjective intention as well as the objective facts to
ber proved by the prosecution, and it's not expressed to be a srict
loability offence. But the terms of the offence seem rather
straight-forward. It is an offence to leave a child unattended in a car
such that the child is caused distressed. The accused does not have to
intend that result. The reasons for this offence are clear enough. There
isn't much that is required to show the necessary intent.
You would wonder what does go on in the mind of a woman who forgot that they
had left their toddler in a locked car on a hot day. I don't say that they
should have the weight of the criminal justice system applied to then, but
the outcome in some of these cases has been fatal.
Sylvia Else
But she does have to intend to leave the child, and there seems little
evidence that she so intended. From what we're hearing, she'd forgotten
that the child was there. If it's true that she'd forgotten, then it was
not possible for her to have formed the required intent.
Sylvia.
Epsilon
I agree. But it all depends on what she has told the police.
Sylvia Else
Surely, she wouldn't have talked to them!
Sylvia.
Phil Allison
"Stupidest Liar on Earth = Sylvia Else "
>>>> But see section 231 -
>>>> http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s231.html
>>> .. the terms of the offence seem
>> rather straight-forward. It is an offence to leave a child unattended in
>> a car such that the child is caused distressed. The accused does not have
>> to intend that result.
>
> But she does have to intend to leave the child,
** The section has NO such requirement.
"A person who leaves any child or young person in the person�s care in a
motor vehicle without proper supervision etc .. "
> From what we're hearing, she'd forgotten that the child was there.
** An extremely reckless action in the circumstances.
> If it's true that she'd forgotten, then it was not possible for her to
> have formed the required intent.
** No intent is required under S213 !!
The action is enough.
She failed to check on the whereabouts of the boy when she parked the car
and never gave it a thought afterwards.
If the boy had died, she would have to be charged with manslaughter.
.... Phil
Sylvia Else
> "Stupidest Liar on Earth = Sylvia Else "
>
>
>>>>> But see section 231 -
>>>>> http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s231.html
>>>> .. the terms of the offence seem
>>> rather straight-forward. It is an offence to leave a child unattended in
>>> a car such that the child is caused distressed. The accused does not have
>>> to intend that result.
>> But she does have to intend to leave the child,
>
> ** The section has NO such requirement.
>
>
>
>> From what we're hearing, she'd forgotten that the child was there.
>
> ** An extremely reckless action in the circumstances.
>
>
>> If it's true that she'd forgotten, then it was not possible for her to
>> have formed the required intent.
>
>
> ** No intent is required under S213 !!
That question is what is being discussed here. Merely asserting a
particular answer doesn't advance matters.
Intent has traditionally formed part of offences. Where it does not, the
legislature has usually made that clear, as it does in s105 of this act,
s45 of the Crimes (Domestic and Personal Violence) Act 2007 and as in
the NSW Road Rules.
Why then should one presume that strict liability applies to s231 when
it doesn't say so?
> If the boy had died, she would have to be charged with manslaughter.
Charged, quite possibly, but the same issue regarding intent would arise
at the trial.
Sylvia.
Epsilon
Ignorance of the law is the technical exprerssion.
Phil Allison
"Stupidest Liar on Earth = Sylvia Else "
>>
>>
>>> But she does have to intend to leave the child,
>>
>> ** The section has NO such requirement.
>>
>>
>>
>>> From what we're hearing, she'd forgotten that the child was there.
>>
>> ** An extremely reckless action in the circumstances.
>>
>>
>>> If it's true that she'd forgotten, then it was not possible for her to
>>> have formed the required intent.
>>
>>
>> ** No intent is required under S213 !!
>
> That question is what is being discussed here.
** BULLSHIT.
YOU just made up a new and wild assertion.
> Merely asserting a particular answer doesn't advance matters.
** Shame how YOU did EXACTLY that in the post above.
YOU FUCKING LIAR !!!
>> If the boy had died, she would have to be charged with manslaughter.
>
> Charged, quite possibly, but the same issue regarding intent would arise
> at the trial.
** WRONG !!!
Being reckless and causing harm or death is the crime.
.... Phil
Sylvia Else
> "Stupidest Liar on Earth = Sylvia Else "
>>>>>>> http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s231.html
>>>> But she does have to intend to leave the child,
>>> ** The section has NO such requirement.
>>>
>>>
>>>
>>>> From what we're hearing, she'd forgotten that the child was there.
>>> ** An extremely reckless action in the circumstances.
>>>
>>>
>>>> If it's true that she'd forgotten, then it was not possible for her to
>>>> have formed the required intent.
>>>
>>> ** No intent is required under S213 !!
>> That question is what is being discussed here.
>
> ** BULLSHIT.
>
> YOU just made up a new and wild assertion.
>
>
>> Merely asserting a particular answer doesn't advance matters.
>
>
> ** Shame how YOU did EXACTLY that in the post above.
>
> YOU FUCKING LIAR !!!
>
>
>
>>> If the boy had died, she would have to be charged with manslaughter.
>> Charged, quite possibly, but the same issue regarding intent would arise
>> at the trial.
>
>
> ** WRONG !!!
>
> Being reckless and causing harm or death is the crime.
What's reckless about it?
Sylvia.
Epsilon
If the toddler had died, homicide based on recklessness would apparently not
be the offence. Recklessness implies an awareness of the possibility, but
not caring one way or the other about whether it happens. If the woman
forgot that the child was in the car, recklessness is irrelevant.
There may be, of course, other bases for homicide.
Sylvia Else
Criminal negligence, perhaps, but I think even that would be hard to
make out.
Sometimes bad stuff just happens, without anyone being criminally liable.
Sylvia.
F Murtz
deliberately try to cook her child and all the public baying for
extensive criminal punishment just shows the general public is bent on
revenge and has no compassion.The mother is probably traumatized more
than a draconian sentence could inflict, that she could have caused the
death of her baby. I doubt that she would do it again.
We do not know the reason for her action.
a
> Aside from all the law, I do not believe that the mother would deliberately try to cook her child
Well, we don't know that with 100% certainty, do we? Witness the
baby in the suitcase (in the pond) mother. Sometimes they just
appear normal but really hate their kids.
As a father of two, I simply do not comprehend how a parent can
"forget" a child in their car. Well, unless on drugs or drunk?
Either way, she should be charged with attempted murder. Her
defense of "I forgot" is utter bullshit. She should be glad
I'm not on her jury if she goes to court.
Epsilon
The general public has always been like that, for centuries. But in a
democracy, if the rabble want something, they get it.
> The mother is probably traumatized more
> than a draconian sentence could inflict, that she could have caused
> the death of her baby. I doubt that she would do it again.
That's the justification for individual punishment.
> We do not know the reason for her action.
She apparently says she forgot the child was in her car.
Sylvia Else
"There is no law that states a member of the public has the right to
break into a car to free a child in these circumstances."
Saying that is downright irresponsible. What about necessity? Self
defence of another? The last thing we need is people wondering whether
they'll get into trouble while a child's life is in danger.
I'd have my wheel brace and jack ready to hand, and a window will go the
moment I feel that the small risk from flying glass is less than the
risk of doing nothing.
Sylvia.
F Murtz
slightest benefit to any one except the moral righteous who have nothing
to do with the case,feeling good that a blow has been struck for morality.
Marts
> defense of "I forgot" is utter bullshit. She should be glad
> I'm not on her jury if she goes to court.
Should you be on any jury? That you have formed a view of guilt before even
being summonsed to jury duty doesn't bode well for anyone who may be appearing
in court...
There's a saying, I think that it's in my signature file libarary that says
something like:
"you go into court with your future in the hands of 12 people who weren't smart
enough to get out of jury duty".
What's worse is that there may be people who will pronounce guilt regardless of
what they hear in court.
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Marts
> Sometimes bad stuff just happens, without anyone being criminally liable.
That's true. But the first thing that authorities and victims (or their
families) do is to establish blame, then to extract their pound of flesh (or
money) from the alleged perpetrator of the bad stuff that happened.
Marts
> Saying that is downright irresponsible. What about necessity? Self
> defence of another? The last thing we need is people wondering whether
> they'll get into trouble while a child's life is in danger.
Absolutely.
> I'd have my wheel brace and jack ready to hand, and a window will go the
> moment I feel that the small risk from flying glass is less than the
My wife has always said that she'd (a) rescue the child and (b) call the
appropriate emergency services to attend.
And she has no hesitation in doing the same if she says a dog in a car
suffering, either.
And she will deal with whatever consequences are thrown at her.
--
The 50-50-90 rule: Anytime you have a 50-50 chance of getting something right, there's a 90% probability you'll get it wrong.
Marts
observers a favor and trim your posts to exclude all the extraneous crap that
you're not replying to?
In particular I'm refering to the rubbish being posted by that Allison
character.
Thanks.
[1] And any other thread that he is posting in as well.
a
>> defense of "I forgot" is utter bullshit. She should be glad
>> I'm not on her jury if she goes to court.
>
> Should you be on any jury? That you have formed a view of guilt before even
> being summonsed to jury duty doesn't bode well for anyone who may be appearing
> in court...
No, you idiot. If I were on a jury, I wouldn't know the story of the case until
the trial started. So how can I assume guilty before being summonsed? You twat.
But upon being accepted for a case, if it were hers, she'd be guilty by me.
Sylvia Else
> "Marts" <ma...@ymail.com> wrote
>
>>> defense of "I forgot" is utter bullshit. She should be glad
>>> I'm not on her jury if she goes to court.
>> Should you be on any jury? That you have formed a view of guilt before even
>> being summonsed to jury duty doesn't bode well for anyone who may be appearing
>> in court...
>
> No, you idiot. If I were on a jury, I wouldn't know the story of the case until
> the trial started. So how can I assume guilty before being summonsed? You twat.
You might well know the story, just not realise that you were going to
be on the jury.
>
> But upon being accepted for a case, if it were hers, she'd be guilty by me.
>
Not that there will be a jury. This is a summary offence.
However, I'm a bit bemused by your unwillingness to accept that she
forgot. She'd had three children in the car, and two of them had left.
If she were distracted, she might form the idea that all the children
had left (despite the unlikelyhood of the youngest doing so), and act
thereafter on the basis that she was alone in the car.
People do forget things - that's why we have a word for it. I have
direct knowledge of at least one case where a father forgot to take his
child home with him from the offic where the child was in the company
supplied creche. It happens.
One might form the view that this mather's ability to forget that she
had a child in the car indicates that she's not that good a parent.
Well, maybe so. And if there were a strict libability offence of not
being that good a parent, she might be convicted of it. But there isn't.
If this were tried by a jury, you were on it, and the judge held that
the offence was not of strict liability, then the judge would direct
that if you're not certain, beyond reasonable doubt, that she intended
to leave the child in the car, then you must return a verdict of not-guilty.
Sylvia.
a
> However, I'm a bit bemused by your unwillingness to accept that she forgot. She'd had three children in the car, and two of them
> had left. If she were distracted, she might form the idea that all the children had left (despite the unlikelyhood of the youngest
> doing so), and act thereafter on the basis that she was alone in the car.
Yeah, so a toddler unlocked its straps, climbed down from the seat,
and exited the vehicle by itself. Har har, fucking har.
And, let's say it DID (shock, horror!) the mother should have checked
anyway. How can one not follow the actions of their flesh and blood?
Does she not care for the infant? Does she subconciously wish it dead?
> If this were tried by a jury, you were on it, and the judge held that the offence was not of strict liability, then the judge
> would direct that if you're not certain, beyond reasonable doubt, that she intended to leave the child in the car, then you must
> return a verdict of not-guilty.
He can direct whatever he wants, because I'd be 100% certain that she
did intend to leave it in the car, because she didn't check that it
was out before leaving.
Sylvia Else
> "Sylvia Else" <syl...@not.at.this.address> wrote
>
>> However, I'm a bit bemused by your unwillingness to accept that she forgot. She'd had three children in the car, and two of them
>> had left. If she were distracted, she might form the idea that all the children had left (despite the unlikelyhood of the youngest
>> doing so), and act thereafter on the basis that she was alone in the car.
>
> Yeah, so a toddler unlocked its straps, climbed down from the seat,
> and exited the vehicle by itself. Har har, fucking har.
I'm not suggesting she'd analysed the situation, and envisaged a process
by which the third child had left the car.
But people make mistakes in the way the perceive events. It seems
entirely possible that her subconscious thinking was along the lines of
"children into the car" - "children out of the car" - "no children in
the car".
>
> And, let's say it DID (shock, horror!) the mother should have checked
> anyway. How can one not follow the actions of their flesh and blood?
At some point, a person always has to accept the evidence of their
memory. Otherwise they'll end up in a vicious circle of having to check
something, only to realise immediately after that they only have a
memory of checking it, and having to check it again. Frequently, the
memories on which one is relying are vague, and sometimes one just
trusts that one has acted in accordance with habit.
As a result, mistakes of omission get made that can seem, in retrospect,
quite bizarre.
> Does she not care for the infant? Does she subconciously wish it dead?
Wild speculation. You have no evidence for that.
>
>> If this were tried by a jury, you were on it, and the judge held that the offence was not of strict liability, then the judge
>> would direct that if you're not certain, beyond reasonable doubt, that she intended to leave the child in the car, then you must
>> return a verdict of not-guilty.
>
> He can direct whatever he wants, because I'd be 100% certain that she
> did intend to leave it in the car, because she didn't check that it
> was out before leaving.
>
Therein lies the problem with jury trials. Jurors can apply their own
biases, don't have to explain their reaoning, and are in no way answerable.
Sylvia.
a
> Jurors can apply their own biases, don't have to explain their reaoning,
> and are in no way answerable.
And that's the way it should be.
Sylvia Else
The primary function of jurors is to prevent abuse of the criminal law
by the executive with the collusion of the judiciary.
It is not to abuse it themselves.
Sylvia.
Marts
> > Should you be on any jury? That you have formed a view of guilt before even
> > being summonsed to jury duty doesn't bode well for anyone who may be appearing
> > in court...
>
> No, you idiot. If I were on a jury, I wouldn't know the story of the case until
But you make a judgement on something that you've read in the paper...
> the trial started. So how can I assume guilty before being summonsed? You twat.
Up yours too, cockhead.
> But upon being accepted for a case, if it were hers, she'd be guilty by me.
Again, you're reiterating your view on a case that you weren't in court to hear.