Evans v His Honour Judge Shelton and the Director of Public Prosecutions

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 1466 of 1997

PHILLIP JOHN EVANS

Appellant

HIS HONOUR JUDGE SHELTON (A Judge of the County Court of

Victoria) & THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

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JUDGES:	BROOKING, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 1998k
DATE OF JUDGMENT:	24 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 29

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CRIMINAL LAW - Kidnapping at common law - Refusal to re-consider R. v. Nguyen &

Tran

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. H.R. Carmichael	Geoffrey Tobin
For the Director of Public	Mr. T. Gyorffy	P.C. Wood, Solicitor for
Prosecutions	Public Prosecutions

BROOKING, J.A.:

Four years ago, so the Crown says, Phillip John Evans, then aged 23, rode down on his bicycle among children outside the community centre in a housing commission estate where an after-hours music school was being conducted. He sat there on his bicycle, handing out sherbet bombs, and so attracted a number of little children. The Crown says that he tried to abduct a seven year old boy who climbed on to the bar in front of the rider's seat but who was quickly told to get down, probably by a teacher, and that not long afterwards he succeeded in abducting a six year old girl from an adjoining basketball court.
Evans was charged with the attempted kidnapping of the boy and the kidnapping of the girl, and even in this day and age it might have been hoped that such a seemingly simple case would have been long since disposed of, one way or the other.
On being arraigned in the County Court Evans pleaded not guilty, but before a jury was empanelled his counsel asked the trial judge, his Honour Judge Shelton, to act under s.446(2) of the Crimes Act 1958 and reserve for the consideration of the Court of Appeal the questions whether the presentment disclosed offences known to the common law and, if so, what the elements of those offences were.
The presentment treated the crime of kidnapping as constituted by the unlawful taking or carrying away of the child by force or fraud against its will. The argument in the County Court went on for no less than four days. In a carefully considered decision his Honour Judge Shelton concluded that there was a common law offence of kidnapping, that it extended to children aged six and seven and that its elements were such that the presentment disclosed offences. The matter was, in his Honour's view, clear so that no "question of difficulty in point of law" had arisen for the purposes of s.446(2).
The matter might have rested there, and the trial been allowed to proceed. But the accused applied to the Court of Appeal for an order nisi under s.449 of the Crimes Act and ultimately, on 20 June 1997, the Court, with the consent of the Director of Public Prosecutions, made an order absolute in the first instance. This required the judge to state a case raising two questions of law:

"(i) Is there an offence of kidnapping known to the common law of
Victoria?

(ii)

If yes, and if the Director of Public Prosecutions were to establish the foregoing facts, would it be open to a jury to convict the applicant upon either and which of the counts of the said presentment?"

A case has been stated accordingly and now comes before us.

Mr Carmichael, on behalf of the accused man, has assembled and deployed, as he evidently did over several days before Judge Shelton, a large collection of institutional and other writings, statutes, decided cases and other materials in anticipation of the commencement today of a long but decisive engagement. His outline of argument, running to 18 pages, is really a full written submission. It is flanked by several thick volumes of copies of cases and materials. We have copies of 49 statutes, the earliest five of which were enacted before the Black Death made its first ghastly appearance in England.
Whatever difficulties counsel's attack on the presentment would in any event have encountered, he now faces the problem that two months after the present case was stated the Court of Appeal gave judgment in R. v. Nguyen & Tran (unreported, 28 November 1997). The Court was there concerned with the abduction of two adults. The applicants argued that the common law offence of kidnapping had been abolished by the enactment in 1960 of s.63A of the Crimes Act, which created a new statutory offence of kidnapping with intent to demand a ransom or gain an advantage. Kenny, J.A. delivered what was in substance the judgment of the Court and had no hesitation in rejecting the argument of the applicants. Her Honour held that the common law offence had not been affected by s.63A. The argument for the applicants made it necessary to determine what the elements of the common law offence were and this her Honour did at pages 26 to 27 of her judgment.
It has not been suggested to us that the elements of the offence as so determined create any difficulty in relation to the way in which the presentment in this case is drafted.
In his outline of submissions Mr Carmichael submits that it is not s.63A of the Crimes Act but s.63, or perhaps I should say the predecessors of s.63, which have abolished the common law offence of kidnapping, assuming it ever to have existed. Section 63 and its predecessors, which go back to a statute of George III, deal with child stealing. But in the course of reasoning to her conclusion in Nguyen & Tran Kenny, J.A. accepted the view, taken by the House of Lords in R. v. D (1984) A.C. 778, that the statutory offence of child stealing did not affect the common law offence of kidnapping, and relied in part on the decision in R. v. D in concluding that s.63A did not have the effect contended for. Her Honour went on to refer to a number of other statutory provisions covering the kidnapping of particular classes of person.
For the present applicant it was submitted that Nguyen & Tran, being a case of the kidnapping of an adult, was distinguishable and did not stand in the way of our taking the view that "a minor defined as stated in R. v. D" cannot be kidnapped at common law, or the view that "the definition of the offence of child kidnap carries a different meaning from kidnapping in relation to adults". But the reasoning in Nguyen & Tran is founded upon the conclusion that any person, regardless of age, can be the victim of the common law offence of kidnapping and that the elements of the offence are the same regardless of the victim's age.
It was put by Mr Carmichael that Nguyen & Tran was wrongly decided and not supported by certain early authorities and that it should be reconsidered. I have no doubt that we should decline this invitation and should neither ourselves as a court of three reconsider the decision nor seek to make arrangements to have it reconsidered by a court of five. Nguyen & Tran is an extremely recent and considered decision of this Court in which careful consideration was given to the existence and nature of the common law offence of kidnapping and the possibility that the offence had been affected by various statutory provisions creating particular offences. The Court took the same view as that taken not so long ago by the House of Lords. There is no suggestion that there is any authority in the High Court pointing in the other direction. As Kenny, J.A. noted, the common law offence is treated as still existing in New South Wales.
In Victoria there have, over the years, been kidnapping trials not only in the County Court but also in the Supreme Court; I presided at one trial in 1981 and I am aware of a kidnapping trial presided over by Anderson, J. I speak of course always of the common law offence.
Last but not least, in my respectful opinion the decision in Nguyen & Tran is plainly correct and the arguments advanced against the view there taken, both in Nguyen & Tran itself and in the present case, lack substance. I might add that the facts of the present case show the wisdom of the common law in recognising the wide and general offence of kidnapping. If Parliament had done away with that offence, it would be highly desirable that Parliament reinvent it.
It has not been suggested by counsel that if we are against him on the points I have mentioned the questions raised by the case stated should not be answered in the affirmative, and that is what I would do. Judge Shelton was right after all.
CHARLES, J.A.:
I agree.
BUCHANAN, J.A.:
I agree.
BROOKING, J.A.:
The order of the Court will be in accordance with these minutes:
1. That the questions reserved be determined by being answered as follows:-
"(i) Yes.
(ii) Yes, both counts".
2. That the questions reserved and the determination of the Court of Appeal be remitted to the County Court in order that the trial may proceed.
That leaves outstanding, gentlemen, the question of costs. The Court of Appeal, in making its order, reserved the question of costs. There may be some question as to the power of the Court to award costs, Mr Gyorffy, a question we would be relieved of considering if you didn't seek them, but it is entirely a matter for you. I make no suggestion that they should not be sought - by no means.
MR GYORFFY:
It has been put on me from behind that it is a matter entirely for me. There has been considerable effort put in, but in the circumstances we won't ask the court to decide.
BROOKING, J.A.:
You don't seek costs?
MR GYORFFY:
No.
BROOKING, J.A.:
Very well, in the circumstances the order will be as we have indicated.

"(i)	Is there an offence of kidnapping known to the common law of Victoria?
(ii)	If yes, and if the Director of Public Prosecutions were to establish the foregoing facts, would it be open to a jury to convict the applicant upon either and which of the counts of the said presentment?"

[1998] VSCA 29

24 August 1998