Where a child (a person under 16 years) or a vulnerable adult dies or suffers harm as a result of an act, the person who, at the time of the 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 13B(1)].
An act includes an omission and a course of conduct [s 13B(1)].
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 act; and
- been aware, or ought to have been aware, that there was a risk that harm would be caused to the victim by the act; and
- failed to take reasonable action to protect the victim from harm and the failure was so serious that a criminal penalty is warranted.
See Criminal Law Consolidation Act 1935 (SA) s 14(1).
Harm in these matters means physical or mental harm (whether temporary or permanent) [s 21], and includes detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent) [ss 13B(2) and 13B(3)].
The maximum penalty if the child or vulnerable adult dies is imprisonment for life. In any other case the maximum penalty is imprisonment for 15 years [s 14(1)].
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 harm) of a child. Often in cases involving death or 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 [see s 14(2)]. The emphasis is on the fact that an act has occurred and insufficient protection was provided by the person or persons responsible for the care of the child or vulnerable adult.
Where a defendant is charged under this section in respect of a course of conduct, it is not necessary to prove that the defendant was aware, or ought to have been aware, that harm would be caused to the victim by each act making up the course of conduct [s 14(3)(a)].
Failure to provide food
Section 14A of the Criminal Law Consolidation Act 1935 (SA) provides for an offence where a person fails, without lawful excuse, to provide (and where they are liable to provide) necessary food, clothing or accommodation to a child or vulnerable adult [s 14A]. Maximum penalty for this offence is imprisonment for 3 years.
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