Mcdonald V Mcdonald

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In order for criminal liability to be placed, an accused must not only commit a specific act but also a breach of a duty concerned1. This concept was brought to the forefront in the case of R v McDonald and McDonald St R Qd [1904] 151.

The Supreme Court of QLD2 was called to consider the case of Angus and Flora McDonald, appealing against joint charges of Wilful Murder. The appellants were found to have breached laws respectful to s13 The Children’s Protection Act [1896]4 and sections 2855, 2866, 301 and 302 of The Criminal Code . The case was significant in establishing a duty of care on both persons in charge of a child, neglect of which holds the accused criminally responsible.


1 See E Colvin, J McKenchie, Criminal Law in Queensland & Western Australia: Cases & Commentary (5th ed, 2008) 3.9. 2 Prior to 1913 and the establishment of the Court of Criminal Appeal, a criminal case could be "reserved" for the consideration of the Full Court. (Queensland State Archives: Supreme Court (2011) Queensland Government, As at 8 April 2011) 3 Section 1: Any person who, having the custody, control, or charge of a child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes or procures such child to be ill-treated, neglected, abandoned or exposed in a manner likely to cause such child unnecessary suffering or injury to its health, shall be guilty of an offence within the summary jurisdiction of justices, and on conviction thereof, in a manner provided by The Justices Act of 1886, shall be liable, at the discretion of the Court, to a fine not exceeding £25, or alternatively, or in default of payment of the said fine, or in addition thereto, to imprisonment for any term not exceeding six months. 4 60 Vic, No.26

5 Section 285: It is the duty of every person having charge of another who is unable by reasons of age, sickness, unsoundness of mind, detention or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract or is imposed by law, or arises by reason of any act whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty. 6 Section 286: It is the duty of every person who, as head of a family, has the charge of a child under the age of fourteen years, being a member of the household to provide the necessaries of life for such child; and he is held to have caused any consequences which results to the life or health of any omission to perform that duty, whether the child is helpless or not. -------------------------------------------------

The historical facts pertinent to the case are as follows. The appellants (A McDonald and F McDonald) were convicted in Febuary 1904 in the Central Court of Qld of Wilful Murder8. The court, lead by Power J, found the appellants guilty and sentenced to death. Subsequently, McDonald and McDonald (represented by Chambers, Bruce and McNab) appealed to the Full Court for consideration, on the basis of points elucidated by Powers J. The appellants were convicted of wilfully murdering Grace McDonald on the 31st of October 1903. The deceased was the daughter of A McDonald by a previous marriage. Allegedly, the accused caused the death of the victim by acts of: Violence and ill-treatment; Failure to...
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