MOORE v Police
[2008] SASC 76
•19 March 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2008] SASC 76
Judgment of The Honourable Justice White
19 March 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Appellant convicted of and sentenced for the offence under s 80(1a) Criminal Law Consolidation Act 1935 (SA) of taking a child under the age of 16 years out of the possession, and against the will, of her guardian - whether the child was in the possession of her guardian - whether the appellant's actions amounted to a "taking" of the child out of the possession of her guardian - whether the "taking" was against the will of the guardian.
Held: the child was in the possession of her guardian, the Minister for Families and Communities, until six days before the alleged offence - to take a child out of a parent's or guardian's possession for the purposes of s 80(1a), an accused must play an active role in the child's leaving, whether by a physical taking or by offering the child some form of inducement or enticement - the child had, by her own conduct, taken herself out of the possession of the Minister at the time of the alleged offence - the appellant's actions did not amount to a taking of the child for purposes of s 80(1a) - appeal allowed - conviction set aside - sentence set aside.
Children's Protection Act 1993 (SA) s 43, s 51, s 57; Criminal Law Consolidation Act 1935 (SA) s 80; Crimes Act 1900 (NSW) s 87; Guardianship of Infants Act 1940 (SA) s 4; Family and Community Services Act 1972 (SA), referred to.
R v Stanton (1981) 3 A Crim R 294; R v Mackney (1903) VLR 22; R v Livens (1907) 7 SR (NSW) 151, applied.
R v Leather (1994) 98 Cr App R 179; R v Jackson (1999) NSWCCA 387; (1999) 113 A Crim R 299; R v Olifer (1866) 10 Cox's CC 402; R v Davis (1897) 13 WN (NSW) 144; R v Jarvis (1903) 20 Cox's CC 249; R v Mejac [1954] Tas SR 26; R v A (2000) 1 WLR 1897; R v Jones (1973) Crim L R 621, discussed.
R v Henkers (1886) 16 Cox's CC 257, considered.
MOORE v POLICE
[2008] SASC 76Magistrates Appeal
WHITE J: The appellant appeals against both his conviction and sentence for the offence of child abduction (s 80(1a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA)).
The prosecution case was that on 30 November 2005, the appellant had caused a girl aged 15 years (GH) to be taken out of the possession of the Minister for Families and Communities. The Minister was, at that time, GH’s guardian and had her lawful care. The appellant was convicted and sentenced to imprisonment for two months. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months.
The Factual Circumstances
On 17 June 2003, the Youth Court made an order placing GH under the guardianship of the Minister of Social Justice until she reached the age of 18 years. An order varying that order was made on 9 March 2004, but the varied order continued the placement of GH under the guardianship of the Minister of Social Justice. Strictly speaking, the varied order should have referred to the Minister for Families and Communities,[1] but it was not suggested, at first instance or on appeal, that anything turned on that.
[1] By proclamation published in the Government Gazette on 5 March 2004, the functions of the Minister of Social Justice under the Children’s Protection Act 1993 (SA) were vested in the Minister for Families and Communities.
GH was placed at the Gilles Plains Assessment Unit, a residential care facility for young people under the guardianship of the Minister. Prior to November 2005, GH had absconded from the Unit on several occasions by leaving without permission. On 24 November 2005, GH absconded from the Unit and was reported to the police as a missing person. Her whereabouts were not then known to the Minister or staff at the Unit until about 8.00 pm on 30 November 2005, when she was located with the appellant at a motel in Mildura.
The appellant was employed as a Youth Support Worker by the Department for Families and Communities at the Unit from 2 July 2005 until the end of November 2005. His last attendance at work was on 11 November 2005. He was absent on sick leave on 14, 15 and 16 November 2005. His absence thereafter was not explained in the evidence.
It was an agreed fact at the trial that on 30 November 2005 GH had travelled in a vehicle driven by the appellant from Adelaide, through the Riverland, to a motel in Mildura where she was observed by the police and others to be in his presence. It was also an agreed fact that the appellant knew of GH’s status as a child under the guardianship of the Minister. The appellant did not give evidence at his trial.
Section 80(1a) and the Complaint
Section 80 of the CLCA provides:
(1) Any person who—
(a) unlawfully, either by force or fraud, leads, takes, decoys or entices away, or detains, any child under the age of sixteen years;
(b) harbours or receives any such child, knowing him or her to have been, by force or fraud, led, taken, decoyed or enticed away, or detained,
with intent—
(c) to deprive any parent, guardian or other person, having the lawful care of the child, of the possession of the child; or
(d) to steal any article on or about the person of the child,
shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(1a)Any person who unlawfully takes, or causes to be taken, a child under the age of sixteen years out of the possession and against the will of the parent, guardian or other person having the lawful care of the child shall be guilty of an offence and liable to imprisonment for a term not exceeding two years.
(2)This section does not render liable to prosecution any person who, in the exercise of any bona fide claim to the right to possession of a child, whether as the mother or father of the child or otherwise, obtains possession of the child or takes the child out of the possession of any person having the lawful charge of the child.
It was not suggested that s 80(2) had any application in the circumstances of this case.
The complaint alleging the contravention of s 80(1a) was in the following terms:
[The defendant] on the 30th day of November 2005 at Gilles Plains in the said State, unlawfully caused to be taken, a child under the age of 16 years, out of the possession and against the will of the guardian or other person having lawful care of the child.
There is some infelicity in the manner of expression of the complaint. The persons said to have possession of the child were alleged in the alternative (“the guardian or other person having lawful care of the child”), and neither person was identified. The offence was alleged to have been committed at Gilles Plains (the suburb in which the Unit is located) whereas it was the appellant’s conduct in driving GH from Adelaide to Mildura which was said to be the conduct constituting the offence. The complaint also alleged that the appellant had caused GH to be taken out of the possession of the guardian or other person, whereas the prosecution allegation at trial was that the appellant’s conduct itself amounted to the taking of GH from that possession. However, nothing turns on these infelicities. It was not suggested, either at trial or on appeal, that they invalidated the complaint or the verdict. Although the evidence and submissions at trial addressed the alternatives alleged in the complaint, ie, that GH had been taken out of the possession of the guardian or other person having her lawful care, the magistrate dealt with the matter on the basis that GH had been taken out of the possession of the Minister as her guardian.
One prosecution submission at trial appears to have been to the effect that it was the appellant’s action in driving GH over the Victorian border (and out of the Minister’s jurisdiction) which was the significant act, but again, the magistrate did not deal with the matter on that basis. Mr Ahern, who appeared for the respondent on the appeal, confirmed that it was the conduct of the appellant in driving GH to a place distant from Adelaide and involving an intended overnight stay which was the relevant physical act.
Elements of the Offence
There was some debate during the appeal about the elements of the offence. In my opinion, in the way the complaint was presented, the matters to be proved by the prosecution were these:
(i) that GH was a child under the age of 16 years;
(ii) that GH was in the possession of the Minister;
(iii) that the appellant took GH out of the Minister’s possession;
(iv) that the taking was against the will of the Minister;
(v) that the taking was unlawful;
(vi) that the appellant’s conduct was conscious and voluntary; and
(vii)that at the time of his conduct, the appellant knew that GH was a child under the guardianship of the Minister and that his actions were against the will of the Minister.
The consent or willingness of GH to being taken is immaterial.[2] The prosecution did not have to prove that GH did not consent to being driven to Mildura. Further, GH could not, by her own conduct, renounce the authority of the Minister to exercise guardianship over her.[3]
[2] R v Stanton (1981) 3 A Crim R 294 at 303; R v Mackney (1903) 29 VLR 22 at 28.
[3] R v Livens (1907) 7 SR (NSW) 151 at 153.
Submissions on Appeal
Mr Griffin QC, who appeared for the appellant on the appeal, submitted that the magistrate had been wrong in finding that the prosecution had proved that GH was in the Minister’s possession, that the appellant had taken GH out of that possession, and that the taking, if that is what had occurred, had been against the will of the Minister. I will address each of these in turn.
Was GH in the Possession of the Minister?
The Concept of Possession of a Child
In some respects, it seems odd to speak of one person being in the possession of another. However, in context, the possession to which s 80(1a) refers is the lawful exercise of the care, custody and control of a child. In normal circumstances, that care, custody and control is exercised by a parent or guardian. However, it can also be exercised by anyone who, with the parent’s or guardian’s consent, has the care, custody and control of a child temporarily, such as a child carer, a school, or a relative with whom the child is staying.
The respondent contended that possession, for the purpose of s 80(1a), was the parent’s or guardian’s legal power to control the child, and that it did not include any requirement concerning the actual exercise of that power. Thus, the respondent submitted that in the circumstances of this case, all that had to be proved was the Minister’s legal power to exercise care and control of GH. It was immaterial, it was said, that the Minister had not been able to exercise that power during the six days prior to 30 November, during which GH had been absent from the Unit.
In support of this submission, counsel for the respondent referred to R v Livens.[4] The charge in that case was that the defendant had “detained” a child out of the possession of her mother with the intention of knowing her carnally. The respondent relied on a passage in the judgment of Pring J:
The word “detain” connotes that the thing or person detained is not in the actual possession of the person to whom it belongs. The person who detains must, for the moment, be in possession of the thing detained. But whilst the prisoner and the girl were in company her mother had the right to her possession and custody, and the prisoner did that which had the effect of keeping the girl out of her mother’s possession.[5] (Emphasis added).
It is plain that in the context of s 87 of the Crimes Act 1900 (NSW) being considered in Livens, possession could not mean actual physical possession. As Pring J recognised, the substance of the charge was that the defendant had prevented the child from going back into the physical possession of her mother. That is to say, the defendant had prevented the mother exercising the rights of possession and custody to which she was entitled. That context explains the reference by Pring J to the mother’s “right” of possession and custody. Section 80(1a) is concerned with a taking, and not with the detention of a child. Accordingly, I do not consider that Livens supports the respondent’s submission.
[4] Ibid.
[5] Ibid at 155.
The respondent’s submission may derive some support from the English decision of R v Leather.[6] The charge in that case was that the defendant had removed some children from the “lawful control” of their parents. The Court of Appeal posed the question for determination in the following way:
Was the child concerned, without any lawful authority or reasonable excuse, deflected by some action of the accused from that which with the consent of his parents … he would otherwise have been doing into some activity induced by the accused?[7]
The reference in that formulation to the consent of the parents may indicate that the “right” of the parents (to consent or to withhold consent) was the relevant consideration. However, in my opinion, on a proper analysis, the Court of Appeal formulation combines the elements of the lawful right to control with the exercise of that right. The reference to the action which the child would otherwise be doing with the consent of his or her parents necessarily requires a consideration of that to which the parents have in fact given their consent, or which they have prohibited.
[6] (1994) 98 Cr.App.R 179.
[7] Ibid at 184.
I do not consider that the respondent’s submission concerning the concept of possession should be accepted. My opinion is that the concept of possession of a child in s 80(1a) involves both the lawful right to the care, custody and control of a child and the actual exercise of that right. It does not comprise only the existence of a legal right to control. If the respondent’s submission be correct, one might wonder how an offence contrary to s 80(1a) could ever be committed. That is because it is not easy to imagine circumstances (to which s 80(1a) might refer) in which the legal right to control a child, as opposed to its actual exercise, could be taken away. The legal right of a parent or guardian to the care, custody and control of a child cannot be taken away by someone acting as the present appellant did. That legal right can be taken away by an order of the Family Court or of the Youth Court, but s 80(1a) is not referring to action of that kind. Section 80(1a) is directed to a particular kind of interference with the actual exercise of a parent’s or guardian’s possessionary right. The effect of the respondent’s submission is, in reality, to deprive the words in s 80(1a) “out of the possession” of any realistic content. It is to construe s 80(1a) as though those words were not present.
A person may exercise control over (and hence possession of) a child even when the child is not in his or her physical company. Children are still in the possession of their parents when they are acting under the direction of, or with the consent of, their parents as, for example, when they are travelling, unsupervised, to a shop or to a park. The authorities provide many illustrations. In R v Jackson[8] it was accepted that a 16-year-old girl waiting at a bus stop on her way to school could be in the possession of her mother. It was for the jury to consider whether she was in that possession. In R v Leather[9] children returning from a supermarket and children playing at a sports field were held to be in the “lawful control” of their parents.
[8] (1999) 113 A Crim R 299.
[9] (1994) 98 Cr.App.R 179.
In the present case, the prosecution case that GH was in the possession of the Minister required it to establish both that the Minister was her lawful guardian and that he was, in fact, exercising care and control of her on 30 November 2005.
The Minister as Lawful Guardian of GH.
Before the Youth Court order of 17 June 2003, GH’s parents were her lawful guardians and custodians. That is the effect of s 4 of the Guardianship of Infants Act 1940 (SA) which provides:
Subject to this Act, and any other enactment, the mother and father of an infant shall jointly have the guardianship and custody of the infant, and each parent shall have equal powers, authority, rights and responsibilities with regard to the infant.
The effect of the Youth Court order of 17 June 2003 (as varied on 9 March 2004) was that the Minister became the lawful guardian of GH to the exclusion of the rights of any other person.[10] This meant that the Minister had the right (and the responsibility) to make decisions concerning the care and control of GH. The relevant powers of the Minister are specified in s 51 of the Children’s Protection Act 1993 (SA):
[10] Children’s Protection Act 1993 (SA) s 43.
(1)Subject to this Act, the Minister may from time to time make provision for the care of a child who is under the guardianship of the Minister or of whom the Minister has custody pursuant to this Act, in any of the following ways:
(a) by placing the child, or permitting the child to remain, in the care of a guardian of the child or some other member of the child's family;
(b) by placing the child in the care of an approved foster parent or any other suitable person;
(c) by placing the child in a home (not being a training centre) established or licensed under the Family and Community Services Act 1972 or in any other suitable place, and by giving such directions as to the care of the child in that home or place as the Minister thinks fit;
(d) by making arrangements for the education of the child;
(e) by making arrangements (including admission to hospital) for the medical or dental examination or treatment of the child or for such other professional examination or treatment as may be necessary or desirable;
(f) by making such other provision for the care of the child as the circumstances of the case may require.
(2)In making provision for the care of a child pursuant to subsection (1), the Minister must, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the child.
(3)The Minister must keep the guardians of the child informed about where the child is placed and how the child is being cared for, unless the Minister is of the opinion that it would not be in the best interests of the child to do so.
(4)An authorised police officer may for the purposes of enforcing any order of the Youth Court, without warrant, remove from any place a child who is under the guardianship of the Minister or of whom the Minister has custody, using such force (including breaking into premises) as is reasonably necessary for that purpose.
It can be seen that the Minister is authorised generally to make arrangements for the care of a child under his guardianship. In particular, by s 51(1)(c), the Minister is authorised to place a child in a home established under the Family and Community Services Act 1972 (SA) or in any other suitable place.
The trial transcript shows that the orders of the Youth Court, together with many of the other documentary exhibits, were admitted de bene esse. It does not seem that any formal ruling admitting them into evidence was made. However, it was not suggested that anything turned on this. I did not understand the appellant to contend that the Minister was not the lawful guardian of GH on 30 November 2005.
The Exercise by the Minister of his Guardianship Powers
The Minister is not expected to exercise the s 51 powers personally. The Minister is authorised by s 57 of the Children’s Protection Act 1993 (SA) to delegate his or her powers under that Act. The delegations of the Minister tendered at the trial showed that the Minister’s powers under s 51 had been delegated to several different persons within the Department for Children, Youth and Family Services.[11]
[11] With effect from 5 March 2004, the relevant department became the Department for Families and Communities.
The evidence that GH had been placed at the Unit in the exercise of powers delegated from the Minister is not as clear as it might have been. The prosecution did not prove any formal decision, pursuant to the delegated powers, placing GH at the Unit or putting her in the care of the staff at the Unit. Nevertheless, I consider that there was sufficient evidence indicating that GH’s placement at the Unit was an exercise of the Minister’s care, custody and control of her.
Ms Wilson, the Manager of the Unit, gave evidence at the trial. She said that the Unit is run by Families SA (a division of the Department for Families and Communities) and described it as a residential care facility for young people under the guardianship of the Minister. A maximum of eight children are accommodated in the Unit at any one time. The Department employs Youth Support Workers who are responsible for the day-to-day care of the young people in the Unit. Ms Wilson described, in very general terms, the process by which orders for the guardianship of children are obtained, and by which placements into the Unit are made. Ms Wilson also described the responsibility of the Youth Support Workers for the day-to-day care of children in the Unit. As already noted, the appellant was employed by the Department as one such worker. Finally, Ms Wilson said that GH was a child under the guardianship of the Minister who had been placed at the Unit.
All this evidence was sufficient, in my opinion, to indicate that the Minister was, through Departmental employees, exercising care, custody and control of GH. The Magistrate’s conclusion in this respect has not been shown to be wrong.
Given that GH had absconded from the Unit on 24 November 2005 and was not located until the evening of 30 November 2005, there is a question as to whether the Minister was still exercising care, custody and control over her on 30 November. However, that issue is better considered in relation to the next of the appellant’s submissions.
Did the Appellant take GH out of the Minister’s Possession?
The appellant acknowledged that he had taken GH to Mildura but contended that it had not been established that, in doing so, he had taken GH out of the possession of the Minister. His submission was that by absconding from the Unit on 24 November, GH had, by her own conduct, taken herself out of the possession of the Minister. There was no evidence that he was involved at all in her departure from the Unit, such as inducing or facilitating it. His action in driving GH to Mildura had, he submitted, occurred after GH had already left the possession of the Minister and so could not amount to the proscribed conduct.
Many of the authorities in this area are quite old, arising from the social circumstances of a different era. They show that the taking of a child out of the possession of a parent or guardian can embrace a wide range of conduct. But they also demonstrate that there must be a causal relationship between the conduct of the defendant on the one hand, and the departure of the child from the possession of his or her parents or guardian on the other. It was proof of that causal relationship which the appellant submitted was lacking in this case.
The authorities bear out the appellant’s submissions in this respect.
In R v Olifier[12] the issue was whether the defendant, who had undoubtedly gone away with the complainant, had played any part in inducing her to leave her home. In directing the jury, Bramwell B said:
I am of opinion that if a young woman leaves her father’s house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parents’ custody, yet his not doing so is no infringement of this Act of Parliament, for the Act does not say he shall restore her, but only that he shall not take her away. It is, however, equally clear that, if the girl, acting under his persuasion, leaves her father’s house, although he is not present at the moment, yet, if he avails himself of that leaving which took place at his persuasion, that would be a taking her out of the father’s possession, because the persuasion would be the motive cause of her leaving. Again, although she may not leave at the appointed time, and although he may not wish that she should have left at that particular time, yet if, finding she has left, he avails himself of that to induce her to continue away from the father’s custody, in my judgment he is also guilty, if his persuasion operated on her mind so as to induce her to leave.[13] (emphasis added).
[12] (1866) 10 Cox’s CC 402.
[13] Ibid at 404.
In R v Davis,[14] the defendant had asked a 15-year-old girl living with her father to “come out tonight”, saying that he would meet her at a designated place after 11.00 pm. The girl did meet him and then accompanied him to the house in which he was staying and had sexual intercourse with him. The trial judge directed the jury that if they were satisfied that the defendant had induced the girl to go with him away from her father’s home, and that it was by his action that she went, though willingly, a taking away would be established. This direction was upheld on appeal with Darley CJ saying: “If this is not a taking out of possession of the persons having charge of the girl, I do not know what is”.[15]
[14] (1897) 13 WN (NSW) 144.
[15] Ibid at 144.
Olifier was followed in the later cases of R v Henkers,[16] R v Mackney[17] and R v Jarvis.[18] In the latter case, Jelf J instructed the jury in the following terms:
Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that of the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do – namely, tell her to return home – that fact is not by itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed the prisoner that that was her determination, and insisted on leaving with him – or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, the prisoner’s conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.[19] (emphasis added).
[16] (1886) 16 Cox’s CC 257.
[17] (1903) 29 VLR 22.
[18] (1903) 20 Cox’s CC 249.
[19] Ibid at 251.
These authorities have been applied in more modern times. In R v Mejac,[20] the 14-year-old “precocious”complainant told the defendant, to whom she was pregnant, that if he did not go away with her she would go away on her own. He persuaded her not to leave on her own and agreed to accompany her. He then made the necessary arrangements. Crisp J held that those circumstances could amount to a taking away and that the matter should be left to the jury. His reasons for doing so included the following passage:
Even if it be that the girl had, without any inducement from the prisoner, even unbeknownst to him, formed the inflexible resolve to leave home, and would have done so in any event, nevertheless if being apprised of her purpose, he actively co-operates in its execution, whereby she leaves with him or goes to him pursuant to their mutual arrangement using money or facilities provided by him for the purpose, there would be a taking within the meaning of the Act. The case would in my opinion be a strong one where, although it was the girl’s own unaided decision, she lacked both a plan and the means to leave, and the accused in providing them may be said to have created the occasion by making and paying for the necessary travel arrangements and selecting a date. In such a case it may even be correct to say that the provision of the plan and the means to carry it out could be considered matter of inducement whereby she was persuaded to leave when she did in preference to any other time.
The accused is not … entitled to take advantage of the girl’s folly or her distress; if not having induced or assisted her to leave he passively receives and harbours her, certainly he commits no offence. Similarly if he merely meets her and goes with her but if – so far from it being a question of any necessary persuasion or inducement on his part – he should, yielding to her forwardness and earnest request, so combine with her so that the leaving may be said to take place pursuant to a joint plan, then he would be guilty of having taken her away.[21] (emphasis added).
[20] [1954] Tas SR 26.
[21] Ibid at 31-32.
Several of the above authorities, and others, were reviewed by Greg James J in R v Jackson[22] in a judgment with which Handley JA and Barr J agreed. Greg James J accepted that for there to be a relevant taking out of the possession, there must be some activity on the accused’s part, and that it must be shown that he had done something by way of inducement or persuasion or that, in some way, he had conduced to the girl leaving her home.[23] In Jackson, the conviction of the accused was set aside because the question of whether he had done anything to cause or facilitate the child leaving her home had not been properly left to the jury. In the present case, the magistrate regarded Jackson as authority for the proposition that a child who has voluntarily left her home is still in the possession of her parent or guardian. With respect, that is a misreading of the judgment of Greg James J.
[22] (1999) NSWCCA 387; (1999) 113 A Crim R 299.
[23] Ibid at 305.
In the English case of R v A[24] the accused was found guilty of taking a 15‑year-old girl so as to remove her from “the lawful control” of her mother. The Court of Appeal upheld the decision of the trial judge that the question for the jury was whether the acts of the appellant were a “cause” of the girl accompanying him. The Court of Appeal also held that the trial judge was right to hold that the alleged cause must be something more than “peripheral or inconsequential”. That is to say, the act or acts of the appellant had to be an “effective cause” of the child accompanying him.[25]
[24] (2000) 1 WLR 1879.
[25] Ibid at 1882.
This review of the authorities indicates that, in a case like the present, the prosecution must prove that the accused has taken an active part in the departure of the child from the possession of her parent or guardian. It does not have to prove that the taking was by force, either actual or constructive and, as already noted, it does not have to prove that the taking was against the child’s consent. It does have to prove some conduct amounting to a substantial interference with the “possessory relationship”[26] between the parent or guardian and the child. The conduct amounting to the interference may comprise a physical taking but, when the child leaves willingly, it may comprise an inducement or enticement for the child to leave, coupled with some action of the defendant after the child has left, taking advantage of his or her departure.
[26] R v Jones (1973) Crim L R 621 at 622.
The respondent submitted that any act which violated or interfered with the Minister’s power to control GH was a taking of GH out of the possession of the Minister. This submission was linked to the respondent’s submission that possession for the purposes of s 80(1a) is the legal right to control a child, irrespective of the exercise of that power. I have already rejected that submission.
Finally, the respondent referred to the policy underlying s 80(1a). Mr Ahern submitted that the evident policy was not only to protect children from predators but also to protect them from their own folly. That being so, Mr Ahern submitted that no distinction should be drawn between the person who entices or facilitates the departure of a child from the possession of his or her parent or guardian, on the one hand, and the person who, coming across a child who has already absconded, then engages in some further act of removal, on the other.
Whatever be the policy underlying s 80(1a), it is the words establishing the offence which have to be construed, in particular, the words “take out of the possession”. Those words connote some action by the defendant bringing about the removal of the child and indicate a distinction between the two circumstances to which the respondent referred. As the old authorities point out, whatever be a defendant’s moral duty, it is not an offence to fail to restore a child to his or her parent or guardian, nor is it an offence to harbour a child who has left the care and control of his or her parent or guardian without any prior involvement at all by the defendant.
In my opinion, the appellant’s submissions concerning this element of the offence should be accepted. GH absconded from the Unit on 24 November and had thereby withdrawn herself from the care, custody and control of the Minister. There was no evidence that the appellant played any part in her absconding, whether by physically facilitating it or by inducing or encouraging it. There was no evidence at all about the movements or whereabouts of either the appellant or GH in the period from 24 November until 30 November when they commenced the journey to Mildura. In these circumstances, the Magistrate could not have been satisfied beyond reasonable doubt that the appellant had played “an active part” in GH’s departure from the Unit (and therefore from the possession of the Minister) or that he was an “effective cause” of that departure.
The appellant made an alternative submission. This was to the effect that because of his employment with the Department for Families and Communities, GH was, while in his presence, in the possession of the Minister. The appellant accepted that his conduct on 30 November in relation to GH might give rise to disciplinary issues in his employment, but submitted that it could not amount to a taking of GH out of the possession of the Minister. In view of my conclusion about the appellant’s principal submission, it is not necessary to consider this alternative submission. It is sufficient to say that it faces a number of difficulties, many of which are self evident.
If a Taking did Occur was it Against the Will of the Minister?
The appellant submitted that even if it had been shown that he had taken GH out of the possession of the Minister, it had not been shown that the taking was against the will of the Minister. Given my conclusion concerning the previous ground of appeal, it is not, strictly speaking, necessary to address this submission. However, in case this matter goes further, I will state my conclusion about this submission quite shortly.
There was ample evidence indicating that the conduct of the appellant in relation to GH was against the will of the Minister. Ms Wilson, the appellant’s supervisor, gave evidence that the appellant had been counselled about his relationship with the children in the Unit. There had been a concern that the appellant was not keeping appropriate boundaries between himself and the female residents in the Unit. Ms Wilson also spoke of standard policies and procedures which applied in the Unit. These included policies that Youth Support Workers should not have contact with residents outside work hours. Finally, Ms Wilson said that, apart from a purpose such as attending a doctor’s appointment, the appellant had not been given permission to take GH anywhere. That evidence, coupled with the sheer improbability of the Minister having agreed to the appellant (a 33-year-old male) being the sole companion of his 15‑year-old female ward on an interstate trip involving an overnight stay, more than adequately justified the conclusion of the Magistrate that the appellant’s conduct had been against the will of the Minister.
Conclusion
In my opinion, the appeal should be allowed. The prosecution evidence did not establish that the appellant had, in the relevant sense, taken GH out of the possession of the Minister of 30 November 2005. The conviction is set aside. It follows that the sentence imposed by the Magistrate on the appellant is also set aside.