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 of abduction of a child, contrary to s 80(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’). The first count alleged that, on 25 February 2010 at Port Pirie, he unlawfully took away by force the child [C], who was then aged four years and seven months and, at that time, intended to deprive [SB], the mother, of lawful possession of that child.
The second count alleged abduction of the same child on 31 August 2010 when she was five years and one month of age. It was also alleged that, on 31 August 2010 at Port Noarlunga, he assaulted [SS], causing him harm, contrary to s 20(4) of the Act; that he, on the same day, at Mount Barker, drove dangerously intending to escape pursuit by a police officer and that, on that day, he also failed to comply with a bail agreement.
The appellant was tried by Judge alone. On 5 December 2011, the appellant was convicted on the two abduction counts, as well as Count 3, assault causing harm, and Count 5, failure to comply with a bail agreement.
Permission to appeal was granted in relation to Counts 1, 2, 3 and 5. Upon the appeal hearing, the appeal was pursued only in respect of the two convictions for abduction of a child.
In short, the grounds of appeal are that, in relation to the charge of abduction on 25 February 2010, the trial Judge was in error in concluding that the appellant had used force in removing the child. Further, in respect of both Counts 1 and 2, it is contended that the trial Judge was in error in rejecting the appellant’s contention that he was not liable to prosecution because, on both occasions, he was exercising a bona fide claim to the right to possession of the child.
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.
We will return to the relevance of the words ‘by force’ later in these reasons.
[C] was located some six days later at the appellant’s home. She was returned to her mother. The appellant was arrested at that time. He was granted bail on home detention conditions, which included a condition that he not approach or communicate, either directly or indirectly, with [SB] and [C].
On 31 August 2010, [SB] was at the Onkaparinga Adventure Playground at Port Noarlunga South with her children and friends. [SB] and a friend left the playground to attend an open inspection of a house. The children were left in the care of [SS].
Shortly after [SB] had left, the appellant arrived at the playground. There was a physical altercation between the appellant and [SS], during which the appellant eventually picked up [C], placed her on the front seat of his car and drove away.
The appellant and [C] were located in New South Wales, approximately two days later. The appellant was arrested and extradited to South Australia. The assault charge related to the altercation between the appellant and [SS]. The appellant was convicted of breaching his bail agreement, his conduct being the removal of [C] from the control of [SS] and from the playground. He has not pursued the appeal in respect of that conviction, nor the conviction for assault.
The offence
Section 80 of the Act
Section 80 of the Act provides:[1]
[1] Criminal Law Consolidation Act 1935 (SA).
80—Abduction of child under 16 years
(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 is unfortunate that s 80 of the Act maintains the old language of possession with respect to the care of children. The mischief at which the section is directed is the removal of children, not so much from the possession, but from the care of persons who are responsible for their well being.
Be that as it may, in order to prove the offence of abduction of a child, in the circumstances of this case the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused led or took away [C].
2.That at the time she was taken, [C] was under the age of 16.
3.That the accused took or led away [C] by force.
4.As to Count 1, that at the time he removed [C], he intended to deprive [SB], the parent having the lawful care of [C], of possession of [C] and, as to Count 2, that at the time he removed [C], he intended to deprive [SS], a person having the lawful care of [C] of the possession of [C].
Section 80(2) provides that the appellant is not liable to prosecution if he was exercising a bona fide claim to the right to possession of the child and, in exercising that bona fide claim, he obtained possession or took her from the possession of, in the first instance, [SB] and, in the second instance, [SS], who had lawful charge of the child at that time. The correct interpretation of subsection (2) is considered later in these reasons.
Ground 1 – The use of force
The appellant contends that the trial Judge was in error in concluding that the appellant had used force in removing [C] from the hospital.
The Judge first considered who is the proper object of the force in order to satisfy the section. He concluded that either the child who was taken, or the parent or person who is entrusted with the care of the child at the time could be the victim of the offence. The offence is directed at the possessory rights of a parent or person who has lawful care of the child. For the offence to be committed, the removal of the child must be unlawful and the accused must have the requisite intent to unlawfully remove the child. That is, he must have the intention to act unlawfully.
The trial Judge concluded that the appellant would have ignored any expression of unwillingness by [C] to remove her. He found that [SB] was given no opportunity to resist the appellant’s actions, and that she was intimidated by his presence. He concluded that the picking up and carrying away of [C] in these circumstances comprised the removal by use of force of [C].
At trial, the appellant submitted that the words ‘by force’ should be interpreted to mean sufficient to overcome the will of the person who is being taken. In the alternative, it was put to the Judge that if it were to be the case that the force exercised against the person having lawful custody of the child was sufficient, any force must occur with the intention to overcome the resistance of the person in possession of the child. The Judge summarised the arguments of counsel:[2]
In the context of an assault involving the application of force or in the case of an indecent assault the force required to make out the offence need not be great; any touching or handling is sufficient and the application of the force need not cause any injury. The Crown maintained that, in this same sense, any degree of force is sufficient to satisfy the requirement in s80(1). The Crown also submitted that any relevant force is not restricted to force applied to the child herself, rather, the only qualification to the sufficiency of “any degree of force” is that it needs to be coupled with the requisite intention, that is, to deprive the parent or other person having the lawful care of the child of the possession of the child.
The accused maintained that the word force as used in s80(1), must be given more work to do. The accused submitted that the words “by force” should be interpreted to mean force sufficient to overcome the will of the person that is being taken, that is, force exercised in order to overcome the resistance of the person being taken. In the alternative, the accused submitted that if it were to be the case that force exercised against the person having the lawful custody of the child was sufficient to invoke the requirement, again, any such force must be done with an intention to overcome resistance, this time, the resistance of the person in possession of the child. As far as both counts 1 and 2 are concerned it was the defence submission that on the evidence before the court the Crown had not established beyond reasonable doubt that the accused had used force with the intention of overcoming the resistance or the will of his daughter C and that, in short, it was at least a reasonable possibility if not probable that on, each occasion, C left willingly with her father.
[Citations omitted]
[2] R v Bruer [2011] SADC 184, [11]-[12].
The Judge was of the opinion that the use of force can be aimed at the child or the person who has care of the child at the time. The appellant does not take issue with that part of the trial Judge’s findings. We agree with the Judge’s findings. The words ‘by force’ are not limited. So long as force is used as part of the conduct, then that is sufficient to satisfy the section.
The trial Judge considered the degree of force necessary to satisfy the section. He referred to the decision of the Full Court in R v Pollitt.[3]Pollitt was charged with abduction, contrary to s 59 of the Act which provides, inter alia, that a person who takes away by force any other person with intent to have sexual intercourse with that other person, is guilty of an offence. In Pollitt, reference was made to R v Hussey.[4] In that case, Jacobs J discussed the element of the section, including the words ‘by force’. He observed that the taking of a person against their will was almost inevitably accompanied by some force or threat of force. In his view, the mere threat of force would satisfy the requirement of force in taking a person away.
[3] (2007) 171 A Crim R 150.
[4] (1980) 23 SASR 178.
In Pollitt, the Court discussed the notion of the term ‘by force’. Gray J said:[5]
Force is to be understood as a hostile intent calculated to cause apprehension in the mind of a complainant, together with the acts that caused the complainant to apprehend immediate or unlawful violence.
[5] R v Pollitt (2007) 171 A Crim R 150.
White J at [112] referred to the notion of force as taken to involve the application of physical force, or at least the threat of the application of physical force.
The trial Judge adopted the approach in Pollitt and concluded that force is any physical conduct or threat of force in the sense discussed in Pollitt.
In R v Webb,[6] Cox J observed that, in respect of the offence of abduction, contrary to s 59 of the Act, the notion of force does not require some degree of physical violence. It is sufficient to satisfy the element of force that some minor degree of force is used.
[6] (1996) 186 LSJS 184, 185.
The appellant submits that the act of picking up the child and carrying her out of the waiting area did not amount to force within the meaning of the section.
Discussion
Assistance can be obtained from a discussion by the Law Commission in the United Kingdom in its consultation paper No. 200, published on 28 September 2011, dealing with the offence of kidnapping. In their discussion, the Commission observed that force could be interpreted as meaning either ‘violence’ or ‘compulsion’. The Commission stated:[7]
The requirement of “force” appears to be derived from the old formula “by force and arms”, which was used both in false imprisonment and in the early kidnapping cases, but this appears to have been largely a formality of pleading. In the older kidnapping cases there was no suggestion that either the apprentices sent abroad, as in Swimmer, or the abducted female minors, as in Lord Grey, were subjected to violent treatment or the threat of it.
[Citations omitted].
[7] The Law Commission Consultation Paper No 200 “Simplification of Criminal Law: Kidnapping”, A Consultation Paper, 2.49.
In concluding that the force required to constitute kidnapping must mean more than compulsion, the Commission stated that ‘force’, in offences against the person, has been widely construed and, in the case of assault, the slightest degree of unwanted physical contact, or threat of it, is sufficient to satisfy that element of the offence. The mere threat of force has been confirmed as sufficient to constitute the offence of assault.[8]
[8] Zanker v Vartzokas (1988) 34 A Crim R 11; Rozsa v Samuels [1969] SASR 205.
The offence charged is to be categorised as an offence against the person. There is no reason to treat the force required to constitute the offence of abduction differently from the force required to constitute offences against the person.
Section 80 is aimed at the protection of young children. In the case of very young children, they are not able to resist, either physically or by their conduct, their removal from a safe environment to the environment created by a person who unlawfully removes them by physically taking them. If a defendant picks up a child who, by virtue of their age or physical size, or both, is in no position to object, and the defendant takes the child from the custody of the person charged with looking after the child, that is sufficient, in our opinion, to satisfy the removal by force. Force involves the conduct of removing the child against the child’s will, or without permission of the person who has the immediate care of the child. The act of picking up the child, against the will of the parent who has lawful custody, is sufficient.

Ultimately, it is a matter of fact whether a child is able to give consent to being removed from the lawful custody of the person who has charge of that child. In the case of a young child who is incapable of resisting, the mere physical removal of that child would, in our view, be sufficient to constitute the offence.
The trial Judge was correct in determining that, in respect of Count 1, there had been sufficient force to satisfy the terms of the section.
As to Count 2, no issue was taken by the appellant on the issue of whether force had been used in the removal of [C]. There is no dispute that, in assaulting [SS] and removing the child from [SS’s] control and care, the appellant had taken [C] by force.
Grounds 2 and 3 – Claim of right
The appellant submitted to the trial Judge that he was entitled to a defence analogous to a claim of right. In short, it was put to the trial Judge that the appellant honestly believed that he had a legal right to act in the manner in which he did on each occasion in taking possession of [C]. The appellant submitted that the onus of proof was upon the prosecution to exclude beyond reasonable doubt any such claim, and the Crown had failed to discharge that onus.
The trial Judge concluded that no such defence analogous to a claim of right was open under the section. The trial Judge referred to s 80(2) which provides:[9]
(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.
[9] Criminal Law Consolidation Act 1935 (SA).
The Judge observed that Parliament provided an immunity from prosecution in the case of a bona fide claim to the right of possession of a child. He concluded that the legislation has determined that any claim is to be raised as a question antecedent to trial, and the burden of establishing such a claim falls on the accused. He said:[10]
By conditioning the availability of such a claim in this way the legislature has determined that any such claim is to be raised as a question antecedent to trial or prosecution and is one the burden of establishing which falls on the accused on a balance of probabilities. This is in contrast to the situation of a true claim of right defence, the exclusion of which must be proved by the Crown beyond reasonable doubt. It lacks logic for parliament to have included the immunity in terms of s80(2) in circumstances where the defence could raise essentially the same issues during the trial but with a different burden and standard of proof.
[10] R v Bruer [2011] SADC 184, [100].
The appellant submits that pursuant to s 80(2), the defendant ought not to have been prosecuted, due to a bona fide claim to be the father of the child. Further, that the Judge erred in finding that no claim of right defence exists under s 80.
We will deal first with the appellant’s submission that he ought not to have been prosecuted by reason of an immunity arising under s 80(2). It is contended by the appellant that s 80(2) should be interpreted to mean that anyone who has an honest and genuine claim to be the father of a child cannot abduct that same child.
This argument cannot succeed. With respect to freedom within the family unit, the paramount position of the father over his children is historically entrenched in English common law. In Re Agar-Ellis,[11] Brett M.R. stated the law to be that a father has the control over the person, education and conduct of his children until they are twenty-one years of age. Nevertheless, this position has evolved against the backdrop of fundamentally changing social and legal perceptions.
[11] [1883] L.R. 24 Ch D 317.
The House of Lords was first faced with the issue of whether a father could be prosecuted for the kidnapping of his own child in R v D.[12] Lord Brandon examined the historical context of the law of kidnapping. He referred to the Offences Against the Person Act 1861, which is similar in its material terms to s 80 of the Act. We consider it relevant to repeat part of this section:
Whosoever shall unlawfully, either by force or fraud, lead or take away … any child under the age of fourteen years, with intent to deprive any parent … of the possession of such child … shall be … liable … to imprisonment … Provided that no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child, or taking such child out of the possession of any person having lawful charge thereof.
[12] [1984] AC 778.
It was argued before the House of Lords that the inclusion of the express protection for the father of an illegitimate child, combined with the absence of any provision giving comparable protection to the father of a legitimate child, could only be explained on the basis that the legislature considered it to be impossible for the father of a legitimate child who carried away the child by force or fraud, to be guilty of a criminal offence of any kind, including kidnapping. Lord Brandon said:[13]
My Lords, I think it very likely that, in the state of society and family law which existed in England in the 19^th century, this opinion would indeed have been held by the legislature. This is because in those times both the generally accepted conventions of society, and the courts by which such conventions were buttressed and enforced, regarded a father as having absolute and paramount authority, as against all the world, over any children of his who were still under the age of majority (then 21), except for a married daughter. …
I stated earlier that the fourth ingredient of the common law offence of kidnapping was that the taking and carrying away should be without lawful excuse. During the greater part of the 19^th century I do not doubt that the position of paramountcy in the family accorded to a father, both by generally accepted social conventions and by courts which buttressed and enforced them, would, in most cases at any rate, have afforded a father, who took or carried away by force or by fraud an unmarried child of his under the age of 21 without the latter’s consent, a lawful excuse for his conduct; and that, by reason of the existence of such lawful excuse, the prosecution of a father for the common law offence of kidnapping such child would have failed.
[13] [1984] AC 778, 804-5.
Lord Brandon observed that social conventions relating to the paramountcy of a father’s position in the family had progressively diminished, and disappeared altogether toward the second half of the 20^th century. He considered that this defence could no longer avail an accused having regard to changed social and legal attitudes.
We agree with the observations of Lord Brandon. To assert that an accused has an honest and genuine claim to being the father of the child is not of itself sufficient to make lawful the conduct proscribed by s 80(1) or to activate an immunity from prosecution pursuant to s 80(2). The predecessor provisions to s 80 do not provide a sound basis on which to imply an immunity for the father of a child because the view of the “right” of a father on which those provisions were based is archaic, having been overtaken long ago by social change. Section 80 must be given its natural meaning in a context where orders restricting the access of parents, including the father of a child, are often made in the interests of the welfare of the child. A person who takes a child away from the lawful care of another acts lawfully only if he or she does so with an honest and genuine belief in the right to the possession of that child. This must be more than mere assertion of parental authority. The words “in the exercise of any bona fide claim to the right to possession” are an additional element to the fact that the accused is the father of the child.
The appellant contends that the trial Judge erred in finding that no claim of right defence was available to him, and further, that the trial Judge erred in determining that the appellant had no honest belief as to the lawful possession of the child.
The trial Judge considered whether s 80(1) admits of any defence analogous to the common law notion of a claim of right. He was of the view that the legislature had already provided for a statutory form of a claim of right, by virtue of s 80(2). That is, that a claim of right had been enacted via a proviso or immunity from prosecution, rather than by way of a defence. If the subsection provided an immunity which was to be determined prior to the trial, the onus of proof would, as the trial Judge observed, fall on the accused who raised the immunity, in effect, as a plea in bar.
In our view s 80(2) does not raise an issue antecedent to trial. When the predecessor to s 80(2) was first enacted trial by judge alone was unknown and the common, if not universal, position was that factual questions affecting the culpability of an accused were the province of the jury. It accords with the still commonly held conception of trial by jury that it should determine whether an accused held an exculpatory belief. Despite the abstruseness of the language, the construction we prefer is that s 80(2) renders lawful the conduct proscribed by s 80(1) if it is engaged in with the exculpatory mental state it describes. 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) because his or her conduct is lawful. It is in that sense only that the parent is not “liable to prosecution”. The prosecution must therefore prove beyond reasonable doubt that a parent charged under that section did not have a bona fide belief that he or she was entitled to take the child.
It follows that, in cases in which an Information charging an offence against s 80(1) is heard before a jury, the jury should be charged with determining any issue raised of a bona fide claim of right to possession of a child pursuant to s 80(2). However, there has been no miscarriage of justice in this case because the charge was tried without a jury and the Judge found beyond reasonable doubt that the appellant did not have a bona fide claim of right.
The trial Judge considered the appellant’s evidence about whether he held a genuine belief that he had a lawful entitlement to take the child out of the possession of her mother. Further, he made general observations as to the appellant’s credibility, and the reliability of his evidence. It is relevant to repeat some of these observations:[14]
Throughout his evidence, the accused impressed me as being in an almost permanent state of anger and frustration. He was dogmatic, defensive and argumentative. However, and notwithstanding that at times he expressed completely irrational positions, he is not, in my view, an unintelligent man. …
The accused was asked on a number of occasions about his awareness of and understanding of the terms of the domestic violence restraining order and the Federal Magistrates Court orders. He acknowledged, at times grudgingly and in convoluted and argumentative terms, but in a manner that satisfied me beyond reasonable doubt, that, at all material times, he was aware of the existence of the court orders and of their contents including, in particular:
(i)that the Federal Magistrates Court had ordered that the children were to live with their mother – and not with him;
(ii)that the Federal Magistrates Court had ordered that he was to have only very limited supervised contact with the children (2 hours per fortnight).
Notwithstanding this awareness, the accused repeatedly refused to acknowledge that the Federal Magistrate [sic] Court orders operated to restrict or restrain him with respect to any of his rights as a father.
[14] R v Bruer [2011] SADC 184, [39].
The trial Judge completed a thorough examination of the appellant’s evidence. He outlined several examples of evidence supporting his finding that the appellant did not hold a genuine belief as to the lawful entitlement to take [C] out of the possession of her mother. He summarised his view as to the appellant’s state of mind as follows:[15]
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 these orders.
[15] R v Bruer [2011] SADC 184, [48].
The trial Judge was correct to make the distinction referred to in that passage. Indeed we doubt that even a bona fide belief that a court order is invalid can found a bona fide claim to the possession of a child for the purposes of s 80(2) of the Act.
The appellant has put forth factors said to conflict with the trial Judge’s conclusion as to the genuineness of the appellant’s claim. These include the fact that the appellant gave evidence as to whether he thought the Federal Magistrates Court Orders were lawful, and whether they were based on lies. The fact that this evidence was given, of itself, does not go towards proving that the appellant had a genuine and honest belief in this respect.
The trial Judge had the benefit of seeing and hearing the evidence of the appellant. In our view, it was open to the trial Judge to make the findings he did. We can find no reason to interfere with the finding that the trial Judge was satisfied beyond reasonable doubt that the appellant did not have a bona fide belief that he had a lawful entitlement to the possession of [C].
In this instance, it is therefore not strictly necessary to consider whether first, a wider claim of right exists under s 80(1) by virtue of the term ‘unlawfully’, for persons other than parents, and second, whether it is excluded by the proviso in s 80(2). We consider that these questions still remain open. We make the following observations.
In the English case of Tinkler,[16] the defendant was indicted for unlawfully taking an unmarried girl, under the age of sixteen years out of the possession, and against the will of her guardian. No improper motive was alleged against the defendant, he having asserted, as his reason for taking away the child, that he had promised her father on his death-bed to take care of her.
[16] (1859) 175 ER 832.
The Chief Justice directed the jury that it was clear the defendant had no right to act as he had done. Nevertheless, it could be concluded that the defendant merely intended to discharge the promise which he alleged he had made to her father. Cockburn CJ considered this to be a matter for the jury. He observed:[17]
This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal upon this charge.
[17] (1859) 175 ER 832, 832.
In our view, there may be scope for an argument that a claim of right defence ought to be left to the jury, under s 80(1), to determine whether the defendant held an honest belief in the right to the custody of the child. This possibility was postulated by the New South Wales Supreme Court in R v Williams.[18]The Court considered s 90A of the Crimes Act 1900 (NSW), as it then was:
Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to imprisonment for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to imprisonment for fourteen years.
This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.
[18] (2006) 160 A Crim R 151.
The Court considered whether, in the case of a defendant who believed, in good faith, that he or she was entitled to take away or detain a person in order to secure the advantage in question, a defence founded on a claim of right is available. McClellan CJ remarked:[19]
The liberty of an individual is protected in most circumstances in our society. It is only the relationship of a parent or guardian, or where there has been a breach of the law or other particular situations which may give rise to a “right” to lawfully restrain another person.
[19] (2006) 160 A Crim R 151, [40].
After consideration of the English decision in Tinkler, the Chief Justice noted a claim of right defence may be relevant, as the qualification to s 90A contemplated, where a person is able to provide a basis for detaining another based upon a right to the custody of that person.
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].

The appellant is not able to demonstrate that the Judge was in error in arriving at his conclusions. We have reviewed the evidence. The Judge was correct in his conclusions. There is no reason or basis to interfere with his assessment of the appellant’s evidence.
Permission to appeal was granted in respect of all convictions. Upon appeal, no argument was advanced in respect of the conviction for assault causing harm, or for the failure to comply with a bail agreement. We would dismiss the appeal against those convictions for the same reasons as we dismiss the appeal on the abduction counts.
The appeal is dismissed.