Where a child (a person under 16 years) or a vulnerable adult dies or suffers serious harm as a result of an unlawful act or omission, the person who, at the time of the unlawful act, had a duty of care to the victim, may be charged with an offence under section 14 of the Criminal Law Consolidation Act 1935 (SA).
Vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired through physical disability, cognitive impairment, illness or infirmity [s 14(4)].
To be guilty of this offence a person would:
- have to have had a duty of care to the child or vulnerable adult at the time of the unlawful act; and
- been aware, or ought to have been aware, that there was a risk that serious harm would be caused to the victim by the unlawful act; and
- failed to take reasonable action to protect the victim from harm resulting from the unlawful act.
Maximum penalty if the child or vulnerable adult dies as a result of the unlawful act is 15 years of imprisonment. In the event the victim suffers serious harm the penalty is a maximum of 5 years imprisonment.
This is a lesser charge than murder or manslaughter and may be used in circumstances where it is not clear precisely who is responsible for the death (or serious harm) of a child. Often in cases involving death or serious harm to a child (or vulnerable adult) it is clear that at least one of the caregivers was responsible but proving beyond a reasonable doubt that it was one parent/guardian rather than the other, particularly where both accuse one another and where the victim cannot testify, can be extremely difficult. This offence allows for charges to be laid in such circumstances. The emphasis is on the fact that an unlawful act has occurred and insufficient protection was provided by the person or persons responsible for the care of the child or vulnerable adult.
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