R v Bruer - [2012] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRUER
[2012] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Peek)
21 September 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - KIDNAPPING
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS
Appellant convicted of two counts of child abduction, one count of causing harm and one count of failure to comply with a bail agreement - appeal against conviction pursued in respect of the two abduction counts only.
The appellant father on two separate occasions took his daughter out of the possession of her mother contrary to Federal Magistrates Court orders.
Appellant convicted of two counts of abduction pursuant to s 80 of the Criminal Law Consolidation Act (SA) 1935 - whether the trial Judge erred in concluding that the appellant had used force in removing the child from the hospital - whether the appellant ought not to have been prosecuted by reason of an immunity arising under s 80(2) - whether the appellant was entitled to a defence analogous to a claim of right - whether the trial Judge erred in his analysis of the appellant's evidence and his conclusion that the appellant did not have a genuine belief as to his entitlement to the lawful possession of his child.
Held: Appeal dismissed.
The mere physical removal of a young child would be of sufficient force to satisfy the terms of the section in respect of count 1, no error by the trial Judge was demonstrated.
Section 80(2) does not raise an issue antecedent to trial - it is for a jury to determine whether an accused holds an exculpatory belief - a parent who takes a child out of the lawful possession of another pursuant to a bona fide claim of right to possession does not commit an offence against s 80(1) as their conduct is lawful, it is in this sense that the parent is not 'liable to prosecution' - nevertheless, the appellant did not have a bona fide claim of right, the trial Judge did not err in his analysis of the appellant's evidence.
Criminal Law Consolidation Act 1935 (SA) s 80, s 59; Crimes Act 1900 (NSW) s 90A, referred to.
R v D [1984] AC 778, applied.
R v Bruer [2011] SADC 184; R v Pollitt (2007) 171 A Crim R 150; R v Hussey (1980) 23 SASR 178; R v Webb (1996) 186 LSJS 184; Zanker v Vartzokas (1988) 34 A Crim R 11; Rozsa v Samuels [1969] SASR 205; Re Agar-Ellis [1883] L.R. 24 Ch D 317; R v Tinkler (1859) 175 ER 832; R v Williams (2006) 160 A Crim R 151, considered.

R v BRUER
[2012] SASCFC 107
Court of Criminal Appeal: Kourakis CJ, Sulan and Peek JJ

THE COURT: The appellant, Phillip Edward Bruer, was charged with two counts…

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 R v Bruer

Details

AGLC: R v Bruer [2012] SASCFC 107
Case: [2012] SASCFC 107
Decision Date: 21 September 2012

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R v Bruer, against convictions for offences relating to the taking of his daughter, C. The dispute arose from the appellant's actions on 25 February 2010, when he took C from a waiting area at the Port Pirie Regional Health Service, despite a domestic violence restraining order and Federal Court orders that C live with her mother, SB. The appellant was subsequently arrested six days later. The appeal was heard by the Supreme Court of South Australia, Criminal Division.

The legal issues before the court included whether the trial judge erred in his analysis of the appellant's evidence and in concluding that the appellant did not genuinely believe he had a lawful entitlement to the possession of his child. This was relevant to a potential defence of claim of right. The court also considered whether the appellant's actions in taking C from the health service constituted a taking by force, irrespective of C's willingness or the appellant's belief about his entitlement.

The court affirmed the trial judge's findings, noting that while a belief, however irrational, could be honestly held, the irrationality of a belief was a factor in assessing its genuineness, particularly when used to justify conduct contrary to clear legal orders. The trial judge found the appellant's evidence to be dogmatic, defensive, and argumentative, and concluded that the appellant had downplayed his aggressive nature. The judge was satisfied beyond reasonable doubt that the appellant acted out of anger and frustration, unable to accept lawful orders, and did not have a bona fide belief that he had a lawful right to take C. The court found the appellant's assertion, "Like anything, if it has been stolen from me I take it back," encapsulated his true motivation, demonstrating a refusal to accept court authority rather than a genuine belief in a lawful entitlement.

The appeal was dismissed, with the court upholding the trial judge's findings and convictions.

Orders

Orders of the court

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Background

Background to the litigation

A further ground of appeal is that the trial Judge was wrong in his analysis of the appellant’s evidence, and was in error in concluding that the appellant did not believe that he had an entitlement to the lawful possession of the child. The facts The background facts, as found by the trial Judge, are as follows. The appellant and [SB] commenced a relationship in about 2002 or 2003. During the time that they were residing together, their daughter, [C], was born. There was a son born the following year. The relationship deteriorated until [SB] finally left the family home on or about 26 March 2009. She and the two children moved to an address near Port Pirie. On 4 June 2009, [SB] obtained a domestic violence restraining order which was served on the appellant on 5 June 2009. That order remained in force when the offences were committed. The order provided that the appellant was not to contact, harass, threaten or intimidate [SB] or her son or daughter. The appellant could not attend within 50 metres of premises at which [SB] and her children resided or worked. On 2 June 2009, a Federal Court Magistrate made orders that the children were to live with their mother. There was an injunction granted which restrained the appellant from contacting [SB] and her children, directly or indirectly. On 21 October 2009, orders were made by consent that the children shall live with their mother, and that the children were to spend time with the appellant for a period of two hours each alternate weekend, to be supervised by the children’s contact service at Port Augusta. At the time of the offences, the family law proceedings were continuing. On 25 February 2010, [SB] and the children were in a waiting area at Port Pirie Regional Health Service. [SB] had made an appointment for an ear, nose and throat specialist to examine [C]. Whilst [SB] was sitting in the waiting area, her two children were playing nearby. The appellant attended at the Service in the hope that he could ascertain the whereabouts of [C]. As it happened, [SB] and [C] were in the waiting area and the appellant saw them. He asked [SB] what she was doing there, to which she responded that he should go away as she had a restraining order against him. The appellant became angry and aggressive. When [SB] continued to ignore the appellant, he grabbed [C], hoisted her on to his hip and ran out the door. [C] was crying. The appellant and [C] were not found for six days, until he was eventually arrested by police. The trial Judge concluded that, even if [C] was crying and looking scared, he did not accept that as necessarily demonstrating any unwillingness on her part to leave the premises with her father. He found that whether [C] was willing or not to go with the appellant was a matter of indifference to the appellant. He concluded that she may have been anxious for a variety of reasons, including having observed her parents engaged in a verbal altercation. The trial Judge concluded that [C’s] reactions and whether or not her will was overborne were irrelevant to his consideration of whether or not the appellant’s actions in taking [C] from the building was by force.

Evidence

Evidence Before The Court

We too consider that the appropriateness of a claim of right defence in the appropriate circumstances may be open, though as we have already indicated, we need not decide the point at this time. Ground 4 – The appellant’s evidence The appellant submits that the trial Judge erred in his analysis of the appellant’s evidence and erred in his conclusion that the appellant did not believe he had entitlement to the lawful possession of his child. The trial Judge heard the appellant’s evidence. He carefully considered the evidence. His impression of the appellant was that the appellant in his evidence was dogmatic, defensive and argumentative. The Judge, in a carefully reasoned judgment, found that the appellant had downplayed his aggressive, menacing and controlling nature. He concluded that the appellant had pursued a number of absurd positions, including claims about the validity of decisions in the Federal Magistrates Court, and the validity of Federal laws. The Judge found some of the appellant’s evidence to be intrinsically unacceptable. He concluded:[20]I accept defence counsel’s submission that any belief or beliefs, no matter how incorrect or irrational, can still be honestly held by a person. Nevertheless, the fact that a particular belief is plainly irrational or foolish is a factor to be considered when assessing if a person does, in fact, genuinely, that is, honestly hold that belief. This is particularly so when an appeal is made to such a belief for the purpose of raising a justification for behaviour which is contrary to the clear terms of the law such as the Federal Magistrates Court orders in this case. After having considered the whole of the accused’s evidence with care, I am satisfied beyond reasonable doubt that, when taking C out of the possession of her mother at the Port Pirie Health Service and when taking C out of the possession of SS at the Onkaparinga Adventure Playground, the accused acted out of anger and frustration against a background of an inability to accept and abide by lawful orders made by the Federal Magistrates Court. I do not accept that the accused has spoken the truth as to his understanding of the legal position following the making of the Federal Magistrates Court orders in P4 and P5. I do not accept that the accused has spoken the truth as to his belief that he had a lawful entitlement to take C from the health service or the playground. I am satisfied beyond reasonable doubt on the direct evidence adduced by the Crown together with the accused’s own admissions that at the time of each taking the accused was aware of and understood the terms of the critical aspects of the Federal Magistrates Court orders, P4 and P5 and of the domestic violence restraining order, P2. I am satisfied beyond reasonable doubt that the accused did not have a bona fide belief, that is, a good faith and honestly held belief that at any material time after the making of those orders he had a lawful right to the possession of C. I find this last matter to be the only rational inference to be drawn from the accused’s conduct at the health service and at the playground given his proved state of knowledge at the time. There is nothing in the accused’s evidence or in his records of interview that would cause me to entertain a reasonable doubt about these matters. The true state of the accused’s thinking and motivation was encapsulated in his unguarded assertion.Like anything, if it has been stolen from me I take it back.Put simply, at all times the accused has refused to accept and abide by the authority of the Federal Magistrates Court and the validity of its orders. This is not the same thing as having a bona fide belief that he nevertheless retained a lawful right to behave in contravention of those orders. [20] R v Bruer [2011] SADC 184, [46]-[49].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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