MOORE v Police - [2008] SASC 76

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 76
Magistrates 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MOORE v Police

Details

AGLC: MOORE v Police [2008] SASC 76
Case: [2008] SASC 76
Decision Date: 19 March 2008

CaseChat Overview and Summary

In this case, the appellant was convicted and sentenced under section 80(1a) of the Criminal Law Consolidation Act 1935 (SA) for taking a child under the age of 16 years out of the possession, and against the will, of her guardian. The child in question, who was under the guardianship of the Minister for Families and Communities, was taken by the appellant against the will of the guardian. The appeal was against the conviction and sentence imposed by the Magistrate.

The court had to decide whether the child was in the possession of her guardian at the time of the alleged offence, whether the appellant's actions amounted to a "taking" of the child out of the possession of her guardian, and whether the "taking" was against the will of the guardian. The court found that the child had been in the possession of her guardian, the Minister for Families and Communities, until six days before the alleged offence. The court also found that 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).

The appeal was allowed, the conviction set aside, and the sentence set aside. The court found that there was ample evidence indicating that the conduct of the appellant in relation to the child was against the will of the Minister. The evidence indicated that the appellant had been counselled about his relationship with the children in the Unit, and there had been a concern that the appellant was not keeping appropriate boundaries between himself and the female residents in the Unit. The court also found that 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. The court concluded that the appeal should be allowed, and the conviction and sentence set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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