Failing to Provide Necessaries of Life (Qld)

The offence of failing to provide the necessaries of life applies when a person has a duty to another person, such as a child or other dependent, and fails to provide them with food or other essentials resulting in their life or health being endangered. It is contained in section 324 of the Criminal Code 1899 and carries a maximum penalty of seven years imprisonment.

How is the offence defined?

Section 324 of the Criminal Code states:

Any person who, being charged with the duty of providing for another the necessaries of life, without lawful excuse fails to do so, whereby the life of that other person is or is likely to be endangered or the other person’s health is or is likely to be permanently injured, is guilty of a crime.

When is the charge of failing to provide the necessaries of life laid?

This charge is ordinarily associated with defendants who are caring for a person, or persons, and fail to perform what would be expected of someone in their position leading to a significant medical consequence.

The charge is most often laid in situations where parents fail to provide medical care for a child in a timely fashion or fail to provide other necessaries (such as nutrition) and this results in the child requiring urgent medical attention or a significant medical consequence.

The charge of failing to provide the necessaries of life must be dealt with before the District Court. If the charge is contested, it must be tried by a jury.

Elements of the offence

To find the accused guilty, the jury must be satisfied that each of the following elements has been made out beyond a reasonable doubt:

1. The accused is an adult;
2. The accused had care of the complainant;
3. The accused failed to provide the necessaries of life;
4. That failure caused the complainant to be endangered; or
5. The complainant was, or likely would, be permanently injured;
6. The accused did not have a lawful excuse.

Whilst the parent-child relationship is an obvious example of where a duty to provide care exists, there are other relationships which may attract the same expectations. Some examples include:

1. An older sibling where it is clear on the evidence that they were caring for a younger sibling;
2. A formal care relationship, even if it is part-time;
3. A step-parent;
4. An aunt or uncle who, in the absence of another carer (such as a parent) was in charge of a child;
5. Any other person who is in loco parentis over a child.

How is a failure to provide care assessed?

A court that is determining a failure to provide the necessaries in life charge must consider whether each element of the offence is made out. Firstly, it must be satisfied that a care relationship existed.  Secondly, it must be satisfied that there was a failure to provide care by the accused.

The failure to provide care may be a contentious issue. There is no legal definition of the term ‘failure’ and a jury will be asked to assess whether there was a failure in the circumstances of the case. If, for instance, there was an alleged failure by the accused to take a child to a hospital when they were presenting with symptoms that might have alerted another person that they were seriously ill, this will not ordinarily be sufficient to prove this element of the offence.

The Crown will usually call medical experts to give evidence as to whether the complainant was endangered or whether the complainant did, or likely would have, suffered permanent injury. Whilst this may be apparent to medical experts, it does not necessarily follow that a lay person ought to have the same insight into medical matters. The jury will usually be told this by the trial judge.

The Crown must then return to the circumstances of the case in order to satisfy the jury that there has been a ‘failure’. There are a number of factors which may become relevant, including:

1. How the complainant presented;
2. How clear the complainant’s compromised health was and whether a lay person ought to have been concerned;
3. Personal factors of the complainant;
4. The defendant’s knowledge of the complainant’s medical history; and so on.

A jury will ordinarily be asked to consider what they would expect a person in the defendant’s position to have noticed that the complainant required care.

Evidence of failing to provide the necessaries of life

A big point of difference in this charge is that, commonly, the person charged is the person who has taken the complainant for treatment. This typically results in a number of conversations with medical staff. People do not necessarily realise is that these conversations may be used in evidence and, more often than not a number of admissions are made during these conversations with medical staff which also can be used in evidence against a defendant.

Similarly, the context of a relationship may also have been a subject of conversations with medical staff. For example, if a defendant tells a doctor that they had sole care of the complainant at the relevant time, this may be used in evidence by the Crown to establish the defendant had care of the complainant for the purposes of the charge.

Seek legal advice

As with any charge, it is important to take the following steps if you are ever faced with allegations of torture:

1. Speak to a lawyer before doing any interviews, if possible. Because of the complexity of the issue, anything said in any interviews or discussions, even matters that may seem utterly benign, could really be an admission to a fact in issue and may well make it easier for the Crown to prove their case;
2. Give your lawyer all records in your possession. This may assist in giving context to a relationship. Records could include phone logs, text messages, letters, emails, and so on;
3. Do not speak to anyone but your lawyer about the issue. Friends and family members may well be required to give evidence including anything you might have said to them about the issue. Again, you will never know whether what you say is an admission to some part of the allegations until there is a clear description of the allegation;
4. Do not make contact with the complainant about the allegations, even if they wish to speak to you about the matter.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.