DISTRICT COURT OF QUEENSLAND

Ruling during trial

1. [1]
   In this matter, the accused is charged with an offence against s 363 of the Criminal Code which is headed “Child Stealing”.  Subsection (1) of that section provides relevantly that “any person who, with intent to deprive any parent … or other person who has the lawful care or charge of a child under the age of 16 of the possession of such child … forcibly … takes … away … the child … is guilty of a crime.”

2. [2]
   Subsection (3) then provides in the following terms:  “It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of a child whose parents were not married to each other at the time of its conception and have not since married each other, not being a child who has been adopted as aforesaid, is its mother or claimed in good faith to be its father.”

3. [3]
   The wording of the section, particularly the wording of subsection (3), has been modernised somewhat over the years, but the section dates back to the initial Griffith Code where what is now subsection (3) was expressed in these terms:  “It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.”

4. [4]
   I might mention that the words “in good faith” were inserted in 1946. I suspect that could do little more than reflect the original intention of Sir Samuel Griffith, but it certainly explains why there is a difference between the wording of subsection (3) and the wording of s 22 of the Code.

5. [5]
   Section 22 is also concerned with a person claiming a right to do something, in that case in a different context.  Obviously s 22 in terms would not apply to the offence created by s 363.  Nevertheless, because it is also concerned with the concept of a person claiming a right to do something, it occurs to me that the authorities on the interpretation of s 22 may well be applicable to the interpretation of s 363(3).

6. [6]
   I am driven to that end because I have been quite unable to find any authority which throws any light on the correct interpretation of that section. The closest I have been able to find is R v Seery [1995] QCA 389, a decision where a charge under that section had been brought and a defence was advanced under that subsection.  The issue in that case, however, was as to the way in which the judge had summed up and whether the matter had been put in such terms that the summing‑up overbore the jury’s independent consideration of the matter.

7. [7]
   The decision confirms that subsection (3) provides a defence where the onus is on the defendant to prove the defence on the balance of probabilities.  It also confirms that it is open for the defendant to do that, or seek to do that, by reliance on evidence in the Crown case, in particular on a recorded interview.  Unfortunately, there is no discussion in the judgment of just what has to be shown in order to make out a defence under subsection (3).

8. [8]
   The defence subsection, whatever it means, strikes me as a somewhat curious one. Apart from anything else, there seems to be the distinction between the situation of the mother of what was originally described as an illegitimate child and the mother of a legitimate child. The former seems to have a defence simply because of her status as a mother, but the latter would be required to make out the defence under the first part of the subsection. That seems a curious distinction to draw, and it made me wonder whether the explanation was that the first part of the subsection was not as wide as it seems at first blush.

9. [9]
   Reference to the authorities under s 22, however, suggests that, if those authorities are applicable to the subsection, it is, if anything, even wider than I thought that it was.  Section 22, concerned with an honest claim of right, has been interpreted as extending to an honest belief in a right which the law does not recognise.  (See R v Williams [1988] 1 Qd R 289 at 295).  It was decided there that there could be an honest belief in a right to enter a dwelling‑house, and that that honest belief would be a defence, even though the intention of the person entering was to commit an illegal act when entering or upon entry.

10. [10]
    The approved summing up in the Bench book, in relation to the defence under s 22, states that the issue is simply whether the defendant honestly believed himself to be entitled to do what he did.  Commenting on that summing up in R v Mill [2007] QCA 150 Keane JA at [81] noted that its focus was on the belief of the accused person to do that with which he or she is charged.  The practical effect therefore under s 22 seems to be that as long as the accused honestly believed that he or she was entitled to do what was done, there is a defence.

11. [11]
    If that is applicable in relation to subsection (3), it means that the defence is very wide.  It would virtually confine the effective operation to the section to a situation where a child is taken either maliciously or as an act of random lawlessness.  But, on the face of it, the subsection is only concerned with the actual state of mind of the accused person and whether that person honestly believed himself entitled to take possession of the child.  I think that the use of the word “claimed” does not mean that it was necessary for there to be an express claim of a right to possession at the time; but rather, that that was the state of mind of the accused person at the time.

12. [12]
    The use of the expression “in good faith” simply means honestly, and there is no reason to think that a different meaning was intended. As I say, I have explained the reason why the section did not talk about an honest claim. Having a right to possession of the child I think simply means that there was a belief that the person was entitled to take the child into his or her possession.

13. [13]
    On the authorities in relation to s 22, it is not necessary to have a belief in a lawful right to possession of the child.  As I say, although I think that involves giving a very wide interpretation to the subsection and one which deprives the offence of perhaps a lot of its usefulness, it seems to me that on ordinary principles of statutory construction the authorities in relation to s 22 provide the best guidance as to the correct interpretation of this defence.

14. [14]
    I might add that it is apparent, from an examination of the Family Law Act provisions, that the actual legal position is perfectly clear.  Under that Act in s 61C each of the parents of a child who is not 18 has parental responsibility for the child.  That occurs subject to the operation of some other provision such as the making of a parenting order by a Court under that Act; but, subject to that, that is the position.  Parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to children:  s 61B.  That includes the authority recognised by Gummow J in Re: Woolley [2004] HCA 49 at [157], on the part of parents at common law to a right to possession of a child.  Although the Family Law Act avoids using the term “possession”, it is clear from the meaning given to a parenting order in s 64B, which includes things such as the person or persons with whom the child is to live, and the time a child is to spend with another person or other persons, and the allocation of parental responsibility for a child, that this is a matter which in practice can be regulated by an order under the Act.

15. [15]
    I should mention that s 60HA makes it clear that a child of a de facto relationship is regarded as the child of both of the parents for the purposes of the Act.  The Act, of course, at the relevant time applied to children of de facto relationships as well as children of marriages.

16. [16]
    It is perfectly clear therefore to me that at the relevant time, when on the evidence there was no parenting order or anything of that nature, both Mr Reale and Miss Campbell had parental responsibility for the child.  That means that in my view neither of them was entitled to take possession of the child by force in the absence of some appropriate authorisation by a Court of competent jurisdiction.  Accordingly, whether or not Mr Campbell had his daughter’s authority to seek to take possession of the child, he was clearly not, in my view, as a matter of law entitled to use force to take possession of it.

17. [17]
    However, it seems to me that that has nothing to do with the situation under subsection (3), and that that subsection is only concerned with the honest belief of the person charged.  That could arise from any circumstance.  It is not entirely clear to me that it could not arise from an insane delusion.  Even if there was in those circumstances also a defence of insanity, it is not immediately apparent why the defence under subsection (3) would not apply.  As I say, subsection (3) is a very curious provision, but it seems to me that that is what it means and that, accordingly, I should direct the jury, in effect, as if it is a defence like a defence under s 22, but where the onus is on the defendant.

Later ruling during trial

18. [18]
    In this matter it has been submitted that there is no case to go to the jury on the charge of assault occasioning bodily harm in company, on the basis that there is no evidence that the complainant suffered bodily harm.

19. [19]
    Bodily harm is defined as any bodily injury which interferes with health or comfort. The submission was that, although there was some evidence of pain and discomfort on the part of the complainant, there was no evidence of injury. There was certainly no evidence of any visible injury in the way of a bruise or something like that, and an X‑ray of the left elbow did not detect any abnormality.

20. [20]
    Counsel for the defendant referred to R v Scatchard (1987) 27 A Crim R 136.  In that matter the only evidence in support of bodily harm was the evidence of the complainant that, when he was placed in a headlock, “It was hard; it was hurting my neck.”  The matter was left to the jury and the jury convicted but the Full Court on appeal allowed an appeal and quashed the conviction on the basis that the evidence that it was hurting his neck was not of itself evidence of a bodily injury.

21. [21]
    The Chief Justice said at p 137, “In the result Johns suffered no bodily injury by reason of his being held as he was unless it can be held that the pain so caused to him was within the definition of ‘bodily harm’ a ‘bodily injury’.”  Further down he said, “In other words, while bodily injury can cause the sensation of pain, a sensation of pain does not of itself and without more require one to say that there has been a bodily injury.”  And further down, “It is not necessary for the purposes of this appeal to attempt a definition of ‘bodily injury’.  It is, I think, enough to say that to apply force to another which ‘hurts’ in the sense of producing a sensation of pain is not of itself and without more to do that person a ‘bodily injury’, and without such an injury the sensation of pain cannot of itself and without more satisfy the definition of ‘bodily harm’.”  The approach of the other members of the court was similar.

22. [22]
    It seems to me that the facts in that case are distinguishable from the situation in the present case. The evidence of the complainant was not just that it was hurting at the time that he was being subjected to what the Crown says was the assault, but that it continued to hurt thereafter. Some time after the incident he attended the local hospital and he complained about various symptoms of pain at that time. He was examined by a doctor who recorded those symptoms and diagnosed an injury in the form of a soft tissue injury in the parts of the body involved. That did depend on the acceptance of the complaints of pain. The complainant said that the pain in the back continued for a time with a shooting pain down the leg which interfered with his ability to walk for a couple of days as well as producing pain, and that the pain around the neck or throat continued for about a week.

23. [23]
    In my opinion, the point that was being made in Scatchard was that the fact that something is being done to somebody which causes pain to be suffered at that time does not mean that the pain is emanating from a bodily injury.  But where there is continuing pain, then the inference is that that continuing pain is a symptom of a continuing condition which could easily amount to an injury, because that is the characteristic of an injury, that it produces symptoms such as continuing pain or interference with the functioning of the body.

24. [24]
    That there was some continuing injury is supported in this case by the expert evidence of the doctor. There were continuing symptoms of pain, and that it interfered with health or comfort is not a very difficult or demanding test, and the evidence, if accepted, seems to suggest that it did, at least for some period of time. It does not appear that it needs to interfere with health or comfort for very long, and a week would certainly be ample time.

Summing Up

During the summing up, his Honour said, in relation to the defence to Count 1, the child stealing charge:

25. [25]
    If you're satisfied beyond reasonable doubt of all of those four elements, then the Crown has proved what the Crown has to prove in relation to Count 1, and defence counsel in his address very fairly conceded that you could be satisfied on the evidence that you've heard beyond reasonable doubt of all of those four elements, and that the substantial issue therefore is whether the specific defence, which is allowed in the Criminal Code, has been made out.

26. [26]
    Now, unusually in relation to this defence, the onus is on the defendant and the standard of proof is different. It's not proof beyond reasonable doubt, it's proof on the balance of probabilities. Now, the Criminal Code provides that it is a defence for the defendant to prove that he claimed in good faith a right to the possession of the child. That's the relevant words used.

27. [27]
    Now, the word "claimed" doesn't mean he has to make an express claim out loud at the time. The words "in good faith" simply means honestly. The expression "claimed in good faith" simply means that at the time he did what he did, he honestly believed something, that is, that he honestly believed he had a right to the possession of the child. So that's the issue before you. Did the accused honestly believe at the time that he was entitled to take possession of the child?

28. [28]
    It is sufficient if the belief is in a right, even if it is a right which the law does not, in fact, recognise. If he believed he had a right to possession of the child, it's not necessary for him to show that he believed that there was a legal right to possession of the child. That's a matter of some subtlety perhaps, but it is a matter which may be relevant in this case. It is not necessary to show that there was a belief in a right which the law, in fact, recognised, or the law might have, in fact, recognised.

29. [29]
    Now, in fact, it is clear that under the Family Law Act he was not entitled to take possession of the child. The position was that, in the absence of any relevant Court order under the Act, that legislation provides that in the case of a child, whether the parents were married or in a de-facto relationship in relation to the child, both have what is described in the legislation as parental responsibility in relation to the child, and the practical effect of that is that neither is entitled simply to take forcibly the child from the other. However, that is not the issue.

30. [30]
    It's not a question of whether he, in fact - or in law, I should say, had a right to take possession of the child. The defence is concerned with his actual state of mind at the time. What matters is, did he at the relevant time honestly believe that he had a right to take possession of the child. If he did, if he has proved that on the balance of probabilities, then he is entitled to be found not guilty.

31. [31]
    Now, the onus is on the defendant to prove this. The standard of proof is on the balance of probability. That is to say that the test that has to be satisfied is that it was more likely than not that that was his state of mind at the time. Mr Martin referred to this as a 51 per cent probability, which probably comes to much the same thing, but strictly speaking the test is, or the question is, has the accused convinced you that it was more likely than not that that was his state of mind at the time? That is, that he honestly believed himself to be entitled to do what he did.

32. [32]
    Now, it is not a question therefore of what the real legal position is. It's also not a question of whether you think he ought to have behaved in the way that he admits that he did on that occasion. You might take the view that you disapprove of the way he behaved; but that is really not relevant to whether you are persuaded, on the balance of probabilities, that he did honestly believe that he had a right to do what he did on that occasion. It's simply concerned with his state of mind, that he actually had an honest belief at that time.

.  .  .  .  . 

The jury acquitted the accused of Count 1 (child stealing) and convicted him of Count 2 (assault occasioning bodily harm in company).