R v Bruer - [2011] SADC 184

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUER
Criminal Trial by Judge Alone
[2011] SADC 184
Reasons for the Verdict of His Honour Judge Nicholson
5 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
CRIMINAL LAW - PROCEDURE - BAIL - OTHER MATTERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Accused was charged with two counts of abduction of a child under 16, one count of assault causing harm, one count of dangerous driving to escape police pursuit and one count of failing to comply with a bail agreement. The accused father on two separate occasions took his 5 year old daughter out of the possession of her mother contrary to Federal Magistrates Court orders made pursuant to the Family Law Act 1975. Issues considered in the context of the abduction allegations included, the meaning of force, the requirement of intention to deprive of possession, self-defence and defence of another and the availability of a defence in the nature of or analogous to claim of right. Self-defence and defence of another found not to be available on the facts. A defence in the nature of and analogous to claim of right found not to be available as a matter of law and in any event, not available on the facts.
Verdicts: The accused found guilty of two offences of abduction of a child under 16 pursuant to s80(1) of the Criminal Law Consolidation Act, the offence of assault causing harm and the offence of failing to comply with a bail agreement, but not guilty of dangerous driving to escape police pursuit and not guilty of the statutory alternative offences.
Criminal Law Consolidation Act 1935 (SA) s15(1)(a), s15(1)(b), s15(3), s15(4), s15(5), s19AC, s19B(5), s20(1)(a), s20(4), s56, s59, s80(1), s80(1)(a), s80(2), ss131(5), ss131(6); Bail Act 1985 s17; Family Law Act 1975 (Cth); Copyright Act 1968 (Cth); Crimes Act 1900 (NSW) s90A, s418; Statute 9 Geo. 4, c. 31 s20 (re-enacted in the UK in 24 & 25 Vict.c.100 Offences Against the Person Act 1861 s55, s56); Crimes Act 1908 (NZ) s230; Criminal Law Consolidation Act 1876 (39 & 40 Victoria No 38) (SA) s76; Road Traffic Act 1961 (SA) s45, s46, referred to.
R v Pollitt (2007) 97 SASR 332; Moore v Police [2008] SASC 76; Reg v Bellis (1893) XVII Cox CC 660; R v Hussey (1980) 23 SASR 178; R v Webb (1996) 186 LSJS 184; R v Powell (1914) XXIV Cox CC 229; R v Burgess, R v Saunders (2005) 152 A Crim R 100; R v Muratovic [1967] QdR 15; R v Marshall Court of Criminal Appeal, New South Wales, No 60351 of 1989, 17 July 1990, unreported; R v Bedford [2007] SASC 276; Proudman v Dayman (1941) 67 CLR 536; R v Tinkler 175 ER 832; Rex v Mikkelsen (1912) XXXI NZLR 1261; R v Williams [2006] NSWCCA 26; 160 A Crim R 151; R v Austin & Ors (1981) 72 Crim AR 104, [1981] 1 All ER 374; Police v Caldwell and Wright [2007] SASC 414; Haskett v Police [2005] SASC 174; R v Pearse [2011] SASC 65; R v Coventry (1938) 59 CLR 633; Thompson v Copeland [1936] SASR 45; Archibold's Pleading, Evidence and Practice in Criminal Cases 26th ed (1922), considered.

R v BRUER
[2011] SADC 184
Introduction

By Information dated 2 November 2011, filed in this court, Philip Edward Bruer has been charged with two counts of Abduction of a Child, contrary to s80(1) of the Criminal Law Consolidation Act 1935 (“the Act”); one count of Assault Causing Harm, contrary to s20(4) of the Act; one count of Dangerous Driving to Escape Police Pursuit, contrary to s19AC of the Act; and one count of Failing to Comply with a Bail Agreement, contrary to s17 of the Bail Act 1985. The trial was heard by me sitting alone without a jury.
The matters in the following sub-paragraphs are not contested by the accused and, in any event, save for any qualifications as expressed, I find them to have been proved, beyond reasonable doubt, on the basis of the evidence adduced on behalf of the Director of Public Prosecutions.
(i)On a date in either 2002 or 2003 the accused commenced a relationship with SB. They lived together and on 2 July 2005[1] a daughter, C, was born and 1 October 2006 a son, R, was born.
[1]    Exhibit P1 (birth certificate).
(ii)Sometime during the year 2006 the accused and his family moved from the McLaren Flat area to premises in a small country town just outside Balaklava. The relationship between the accused and SB as it developed was not a happy one.
(iii)Ultimately SB made a decision to separate. With the assistance of a church based agency, SB left the family home with her two children on or about 26 March 2009. She did not tell the accused that she was leaving or where she was going. She and the two children moved to an address in the Port Pirie area.
(iv)On 4 June 2009 SB obtained, in the Magistrates Court of South Australia on an ex parte basis, a domestic violence restraining order and summons. That document recorded under the heading “Hearing Details” the address of the Adelaide Registry of the Magistrates Court and a hearing date of 11 June 2009 at 9.30am.[2] The domestic violence restraining order was served personally on the accused by police officer Graham Olds on 5 June 2009.[3]
[2]    Exhibit P2.
[3]    See the proof of service certification on the copy of the domestic violence restraining order in exhibit P2 and also the evidence of Graham Olds at T205.
(v)At all times material to this prosecution the domestic violence restraining order remained in force.[4] Pursuant to the terms of the domestic violence restraining order the defendant was restrained in, inter alia, the following terms.
[4]    This is not a matter conceded by the accused who maintained throughout the trial that the domestic violence restraining order was unlawfully obtained and had no validity.
The [accused] is not to contact, harass, threaten or intimidate the protected persons or cause or allow another person to contact, harass, threaten or intimidate the protected persons.
Under the domestic violence restraining order “protected person” was defined to include one or more of SB, C and R. The accused was also restrained from being on or attending within 50m of premises at which the protected persons resided or worked. The order provided, by way of exception, for contact to take place in strictly limited circumstances. On a strict construction of the order, it would seem that, provided there was no breach of the proscription “contact, harass, threaten or intimidate the protected persons” there was no restriction on the accused from attending within 50m of a protected person provided that this was not at a place where the protected person resided or worked.
(vi)On 2 June 2009 interim orders, pursuant to the Family Law Act 1975, were made in the Federal Magistrates Court of Australia by his Honour Federal Magistrate Simpson. The orders were made following an application filed on behalf of the accused although it is not apparent, from the evidence before the court, whether or not the orders as made were in the form of or consistent with those sought in the accused’s application. The sealed order[5] records on its face that counsel appeared for the applicant father (the accused) and that counsel appeared for the respondent mother (SB).
[5]    Exhibit P4.
(vii)Further consideration of the matter was adjourned to a hearing in the Federal Magistrates Court on 21 October 2009 at 9.30am. However, the orders made on 2 June 2009 included the following.
4.During the period of the adjournment [the children, C and R] live with the mother.
6.A s68B [of the Family Law Act 1975] injunction be granted for the personal protection of [the mother, SB] and [the children, C and R] and that in accordance with the said injunction [the accused] is restrained from contacting [SB, C and R] directly or indirectly save and accept as provided for in orders made by this H.[6]
[6]    The form of certified order tendered as exhibit P4 was incomplete in respect of this order number 6. Nevertheless, I am prepared to infer that the reference to “H” is a typographical error and should have been a reference to “Honourable Court”.
(viii)On 21 October 2009 his Honour Federal Magistrate Simpson made further orders.[7] On this occasion the preamble to the certified form of the orders record that the accused appeared in person, that counsel again appeared on behalf of the mother (SB) and that counsel appeared on behalf of the two children (C and R). The preamble also records that the orders were made by consent. The orders included, that until further order:
[7]    Exhibit P5.
1.the infant children [C and R] shall live with the mother.
3.upon acceptance into the Port Augusta CCS [Children’s Contact Service] the children [C and R] do spend time with [the accused] for a period of two hours each alternate weekend – supervised by the CCS – and at such dates and times as nominated by the CCS.
7.the matter be listed for trial before FM Simpson at 10am on 20^th May 2010 with two days allowed.
8.paragraphs 5 and 6 of the orders made by the Court on 2 June 2009 do continue for the further period of the adjournment.
(ix)As at the date of the allegations concerning the second count (the alleged abduction on 31 August 2010) the family law proceedings had not been finalised,[8] that is, the trial listed for 20 May 2010 had either not been reached or not completed.
[8]    See the evidence of SB at T138 which was not challenged and which I accept and see the evidence of the accused at T518.
(x)On 25 February 2010 SB and the two children were in a waiting area at the Port Pirie Regional Health Service. The Port Pirie Regional Health Service shares a building with the Port Pirie Hospital. It provides consulting facilities for a number of specialist medical practitioners. SB had arranged for an appointment at the Port Pirie Health Service on that day to enable C to be medically examined by an ear, nose and throat specialist. Whilst SB was sitting in the waiting room area with the two children playing nearby, the accused came upon them and after a short conversation with SB he picked C up, held C with one arm to the side of his body and walked out of the Health Service building to the carpark where he placed C in his car and drove away.
(xi)On 25 February 2010 C was almost 4 years and 8 months old.
(xii)On 3 March 2010, some six or so days later, C was located with the accused at his home just out of Balaklava and returned to her mother. The accused was arrested. It is the taking of C on 25 February 2010 that is relied upon by the Crown for count 1, the first abduction allegation.
(xiii)On 10 March 2010 (as varied on 29 April 2010) the accused was granted bail on strict home detention conditions which included the requirement to wear an electronic transmitter and to comply with the rules of electronic monitoring.[9] Condition 13 of the bail agreement required the accused
[9]    Exhibit P3 (bail agreement).
not to approach or communicate, either directly or indirectly, with [SB] and [C].
(xiv)On 31 August 2010, SB together with friends of hers, KS and SS who are in a relationship, had taken C and R to the Onkaparinga Adventure Playground at Port Noarlunga South.
(xv)At some stage during the afternoon SB and KS drove away from the playground in order to attend an open inspection of a house that SB thought she might be interested in renting. The children were left in the care of SS.
(xvi)Very soon after SB and KS left, the accused arrived at the playground. He saw his children in the presence of SS. A physical altercation ensued during which SS suffered, relatively minor, physical injuries.
(xvii)The accused picked up his daughter, C, placed her in the front seat of his car and drove away leaving his son, R, still in the care of SS.
(xviii)On 31 August 2010 C was 5 years and 2 months old.
(xix)On 1 September 2010, some two or so days later, the accused and C were located by New South Wales police just outside Cobar in New South Wales. The accused was again arrested and, on 2 September 2010, was extradited to South Australia. It is the taking by the accused of C from the playground that is relied upon by the Crown in support of count 2, the second abduction allegation. The Crown relies on the evidence of SS concerning the physical altercation between SS and the accused in support of count 3 the allegation of Assault Causing Harm.
(xx)Shortly after leaving the playground, still on 31 August 2010, the car then being driven by the accused was observed by police in a marked patrol car just south of Mount Barker. The police engaged in a pursuit of the accused’s vehicle. By the time the accused’s vehicle reached the on-ramp from Adelaide Road, immediately north of the south eastern freeway, being the on-ramp designed to take traffic from Adelaide Road onto the south eastern freeway travelling east, the accused’s vehicle was being pursued by two marked police patrol cars. Each had their red and blue flashing lights and siren operating.[10]
(xxi)To this point the accused had not exceeded the applicable speed limits nor committed any breaches of the road rules.
(xxii)The accused’s car was forced to come to a halt by a large truck which was stationary on the on-ramp as it descended, in an easterly direction, towards the south eastern freeway. The accused turned his vehicle hard to the right, proceeded over the curb from the on-ramp onto a descending grassed embankment and drove down the grassed embankment in the direction of the south eastern freeway.
(xxiii)The officers in the two police vehicles lost sight of the accused’s vehicle almost immediately after it mounted the curb and commenced to descend.
(xxiv)It was night time and the grassed embankment was in darkness, notwithstanding the presence of some street lighting on the on-ramp and on the south eastern freeway itself.
(xxv)By this manoeuvre the accused was able to give the police “the slip” and was not seen again until observed just outside Cobar. It is the circumstances of and surrounding the accused driving onto and down the grassed embankment that are relied upon by the Crown for count 4, the offence of Dangerous Driving to Escape Police Pursuit.
(xxvi)The Crown also relies on the taking of C by the accused from the Onkaparinga Adventure Playground as giving rise to a breach, by the accused, of clause 13 of the bail agreement which enjoined the accused “not to approach . . . [C]” and as the foundation for count 5, the offence of Failing to Comply with a Bail Agreement.
[10] See the evidence of police officers Reid, Thickins and Argent on this topic which was not challenged and which I accept.
Directions of law
Whilst the Court of Criminal Appeal in this state has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following matters.
(i) The accused is presumed to be innocent of all charges unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence charged. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.[11]
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge under my consideration then I must give the accused the benefit of that doubt and find him not guilty of that charge.
(iv)I have reviewed the standard directions often given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I remind myself that the accused was not obliged to give evidence; he always had the right to remain silent in answer to the charges leaving it to the prosecution to satisfy me of all of the elements of each charge. However, the accused did elect to give evidence on oath and to expose himself to cross-examination. Whilst I have assessed his evidence in the same way as I would assess the evidence of any other witness, I further remind myself that by going into the witness box the accused did not assume any burden of proof.
(v)Each of the five charges concerns a separate offence and I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding, to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
(vi)The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged, guilty of one or more charged or guilty of all of the charges.
(vii)Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed.
[11] Sub-section 80(2) of the Act provides that a person is not “[rendered] liable to prosecution” for an offence under s80(1) of the Act (Abduction) in certain circumstances. During the trial I found that this was not a defence and did not relate to an element of the offence but operated by way of a proviso or immunity from prosecution. I ruled that the Crown did not have to exclude the circumstances said to enliven the immunity beyond reasonable doubt, rather, the accused carried the onus of proving that he fell within its terms on a balance of probabilities which onus he failed to discharge.
The Offence of Abduction of a Child – Elements
Section 80(1) 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 16 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 ... .
For both count 1 and count 2 the Crown asserts and relies only on an alleged taking of the child, C, and that the taking was “by force” not fraud. In setting out and discussing the elements of the offence of Abduction of a Child I will focus only on the elements insofar as they are relevant to the Crown case.

The elements of the offence, each of which must be proved beyond reasonable doubt, are as follows:
(i)the material actions of the accused were intentional, that is consciously and voluntarily performed;
(ii)the accused physically took C away from the location in which he found her;[12]
(iii)the accused’s taking of C was by force;
(iv)at the time the accused acted in the manner of (i), (ii) and (iii) he acted with an intention to deprive a person, having the lawful care of C, of possession of C;
(v)at the time the accused acted in the manner of (i), (ii) and (iii) SB (count 1) and SB and/or SS (count 2) had the lawful care of C;
(vi)at the time of the taking of C she was under the age of 16 years; and
(vii)the accused’s actions in taking C, in the proved circumstances, were unlawful.
[12] See R v Pollitt (2007) 97 SASR 332 at [110].
As far as both counts 1 and 2 are concerned it is not disputed by the accused, and the evidence plainly establishes in any event, that elements (i), (ii) and (vi) have been made out by the Crown. I am also satisfied beyond reasonable doubt that, at the time of each taking, SB was the mother of C and that the orders of the Federal Magistrates Court[13] provided that C was to live with her and, as such, that SB had the lawful right to the custody and control of C. I am satisfied that at the time of the first taking SB was actually exercising that right.[14] As a further consequence, I am satisfied that at the time of the first alleged abduction SB was a person “having the lawful care” of C.
[13] Exhibits P4 and P5.
[14] See Moore v Police [2008] SASC 76 at [17].
As far as count 2 is concerned, I am also satisfied beyond reasonable doubt on the basis of the evidence given by SS, KS and SB that, for the brief period when SB and KS left the playground, the two children, including C, were left by SB in the charge of SS and that he was acting in loco parentis, that is, with the full authority of SB. As such, both SB and SS were at the time of the second taking “person[s] having the lawful care” of C.
The accused has asserted throughout the trial that he had parental rights notwithstanding the terms of the Federal Magistrates Court orders. The accused gave evidence to the effect that he was exercising his rights, as father, when he took possession of C. Even if this were so[15] it is not, by itself, a defence to the charge. Subject to any operation the immunity provided for by s80(2) may have on the facts of the case and subject to any role that a defence by way of an analogy with claim of right might play,[16] it is to be noted that the offence established by s80(1) focuses on an intent to deprive a parent or other person of possession where that parent or other person has the lawful care of the child. On its face, the offence can be committed by a co-parent.
[15] The Crown maintains that the accused, notwithstanding that he was the father of C, had no right to possession of C by virtue of the court orders.
[16] Both of these issues are discussed further below.
It follows that I am satisfied beyond reasonable doubt that the Crown has made out element (v) set out above, that is, at the time of the first taking, SB was a parent having the lawful care of C and in the case of the second taking, SB was a parent and SS was a person having the lawful care of C.
Left for more detailed consideration, therefore, are elements (iii), (iv) and (vii) identified above.
By Force – Element (iii) of Counts 1 & 2
In the context of an assault involving the application of force[17] or in the case of an indecent assault[18] 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.
[17] For example s20(1)(a) of the Act.
[18] See s56 of the Act.
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.
In any event, as far as count 1 is concerned, the defence submitted that the Crown had not proved beyond reasonable doubt that any force used by the accused was intended to overcome the resistance or the will of SB who was in possession of C at the time. However, as far as count 2 is concerned, the defence acknowledged that in the event its primary submission were to be rejected, such that force used against the person in possession of the child would be sufficient to satisfy the requirement, no realistic argument could arise with respect to the alternative limb of the accused’s submission. On any view of the evidence before the court it is beyond reasonable doubt that the accused used force directed at SS with the intention of taking C out of the possession of SS.
I start with the question of who is the proper object of the force required by s80(1). During the trial there was some debate about who was to be regarded as the victim of any offence committed under s80(1); the child who is taken or the parent or other person out of whose possession the child is taken. In a sense and depending upon the facts of each particular case it is conceivable that either or both can be a victim of an offence under s80(1). Nevertheless, historically the offence was referred to as child stealing[19] and by its terms the offence is directed at protecting the possessory rights of a parent or other person who has the lawful care of the child in question. Ordinarily, that person is to be regarded as a victim of this offence.
[19] See for example, the Criminal Law Consolidation Act 1876, s76 and the English statutory precursors.
This position is to be contrasted with that pertaining to the offence under s59 of the Act. The offence under s59 is structured quite differently, consistently with the different mischief to which it is directed. Section 59 provides:
A person who takes away by force, or detains against his will, any other person –
(a) with intent to marry, or to have sexual intercourse with, that other person; or
(b) with intent to cause that other person to be married to, or to have sexual intercourse with, a third person,
is guilty of an offence.
I accept that the phrase “against his will” qualifies only the notion of “detains” and not the notion of “takes away by force”. Nevertheless, the victim of this offence is the person (whether adult or child – s59 does not discriminate) who is taken away or detained for the requisite purpose. As I have said, the offence under s80(1) is directed at protecting the possessory rights of a parent or other (appropriate) person over children in their lawful care who are under the age of 16. To my mind, and contrary to the position with s59, whether or not the child in question goes willingly or in circumstances where there is no force employed aimed at overcoming that child’s resistance is an irrelevant consideration.
The fact that no force is directed at the child will not mean that the Crown necessarily fails. It will be sufficient for force to have been directed at achieving the intent of depriving the parent or other person, having the lawful care of the child, of possession. In my view this is the natural reading of s80(1). It also gains support by analogy with the reasoning in the Crown Cases Reserved decision Reg v Bellis,[20] where the court held that where an allegation of fraud is relied on, it is sufficient that the fraud be practised against the person having the lawful care.
[20] (1893) XVII Cox CC 660, Lord Coleridge CJ speaking on behalf of the Court (Hawkins, Matthew, Cave and Day JJ).
In support of their submissions both the accused and the Crown referred to dicta of the Court of Criminal Appeal in R v Pollitt.[21] In Pollitt the Crown alleged that the accused attempted to abduct V from a bus stop while she was on her way to school and that he did so for the purpose of having sexual intercourse with her. The Crown alleged that the accused stopped his vehicle at the bus stop and through various verbal and physical gestures importuned V to get into the car with him. The accused did not at any time touch V and when she produced a pair of scissors from her school bag and threatened the accused he left the area. The accused was charged with Attempted Abduction pursuant to s59. Ultimately the question before the trier of fact was only whether there was ever an intention to use force for the requisite purpose coupled with sufficient acts to amount to an attempt at law to commit the offence. Both Gray J and White J discussed the notion of “by force” as that term was used in s59.
[21] (2007) 97 SASR 332.
Gray J[22] referred to the analysis of Jacobs J in R v Hussey[23] to the effect that the historical origins of the offence under s59 can be traced to the English statute on forcible marriage[24] a statute designed for the protection of heiresses.[25] Gray J referred, with apparent approval, to the observation by Jacobs J in Hussey that the use of the word “force” in s59 was a reference to force or a threat of force amounting to an assault. However, Gray J then said this[26]
This can lead to confusion between the two offences. An assault is an independent offence. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victims.
His Honour did not, at this point in his judgment, develop this notion of potential confusion between the two offences and, in particular, whether the term “force” as used in s59 might embrace simply the threat of force sufficient to amount to an assault. However, his Honour went on to consider the notion of force in the context of s59 again later in his judgment[27] where his Honour said this.
The evidence of the complainant disclosed an attempt to take by force. 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 and unlawful violence. I agree with Duggan J that there was sufficient evidence of the intended use of force. I also consider that there was sufficient evidence of the use of force if the jury accepted the complainant’s account of what had occurred.
[22] At [36] – [44].
[23] (1980) 23 SASR 178 at 183-184.
[24] 3 Hen. 7Ch. 2.
[25] Hawkins (1824) Vol.1, p123.
[26] At [44].
[27] At [64].
White J also considered the meaning of the phrase “takes away by force” as found in s59. His Honour said this.[28]
The notion of force in the criminal law is generally taken to involve the application of physical force or at least the threat of the application of physical force. That notion has been applied in the context of s59(a). In R v Webb[29] Cox J said in relation to s59(a) “I think many lay people would consider that the notion of force requires some degree of physical violence”. Cox J accepted in the circumstances of that case that the action of picking up a child and moving her to a vehicle was capable of comprising sufficient force.
White J (dissenting on this point) found that whilst he was satisfied that the accused wished for his victim to get into his car, the evidence before the court that the accused intended to accomplish that wish by force if necessary was slight and insufficient to support a jury verdict which necessitated satisfaction beyond reasonable doubt of an intention to use force.
[28] At [112].
[29] R v Webb (1996) 186 LSJS 184.
As I have already indicated the application of the dicta in this case requires care, if only because of the fact that the offence involved was an attempted abduction and the question before the jury was whether or not there was an intention to use (the required notion of) force. Even so, force as required for the s59 offence, does not necessarily require physical contact. The offence under s59 can be made out by physically bundling the victim into a car but also by persuading the victim to get into the car or to otherwise come with the accused by the threat of force such as for example the brandishing of a weapon or the making of verbal threats as to what would happen to the victim if he or she did not do as they were told. To this extent, I agree with counsel for the accused in the present case that, for s59, the use of force, whether physical force or merely a threat of force in the sense just described, will necessarily involve the overpowering of the victim’s will. In my view a similar approach should be adopted with respect to the term “by force” in the context of the offence under s80(1). However, and as already indicated, the will that is to be overcome is not restricted to that of the child but usually will be that of the parent or other person who is being deprived of the possession of the child. It is in this sense that the force used is to be coupled with the intent to deprive the parent or other person of possession. It is necessarily implied that the parent or other person does not want this to happen.
The accused submits that the inclusion of the requirement of “by force” in s80(1)(a) is to be contrasted with the lack of any such requirement in the second offence provided for by s80(1a) and that this suggests that the word “force” is intended to have real work to do over and above any bare physical contact including mere touching without more. The offence in s80(1a) is in the following terms.
(1a) Any person who unlawfully takes, or causes to be taken, a child under the age of 16 years out of the possession and against the will of the parent in guardian or other person having the lawful care of the child shall be guilty of an offence . . .
This second offence clearly is to be regarded as being of a less serious character. A person guilty of the offence under s80(1) is liable to a maximum term of imprisonment for seven years whereas a person guilty of the offence under s80(1a) is liable to a maximum term of imprisonment for two years.
There are a number of, self evident, differences between the two provisions. It is conceivable that the offence under s80(1a) can be committed without the use of force even in the most minimal sense of that term, although any use of force would not necessarily preclude this offence from being made out and one would assume that, more often than not, some form of force, if only the taking of the child by the hand to lead her away, would be employed. The accused submitted that the presence of this lesser offence, of itself, suggests that the inclusion of “by force” in s80(1) requires conduct amounting to physical force greater or more significant than the mere leading a child away by the hand or carrying a small child away and that the force must be of such a nature as to overcome the will of the child concerned.
I have already rejected the second part of this submission. As far as the first part is concerned, its acceptance would place a court in the invidious possession of having to determine in each case how much force is enough force. This is not sensible or practicable and cannot be what parliament intended. Force is any physical conduct or threat of force in the sense discussed in Pollitt. For the purpose of s80(1) any such force must be sufficient to achieve the cognate intent of depriving the relevant parent or other person of possession. Ordinarily, in the case of a completed offence, the will of that person will, in fact, have been overcome.
The Evidence Concerning the Use of Force – Count 1
The Crown called the mother, SB. SB presented as quiet, very contained, diffident, somewhat distant, timid and insecure. She gave her evidence in open court without the assistance of a screen but avoided any form of eye contact with the accused. For virtually all of her evidence she stared fixedly ahead with her head slightly downcast. She directly answered the questions, and only the questions, asked of her usually without elaboration. Contrary to the accused, who also gave evidence, SB did not seek opportunities to elaborate in detail on the nature of her relationship with the accused or the nature of the family law child residence and contact proceedings engaged in by the parties after they separated. I assessed SB as a helpful and, in general, reliable witness concerning the relatively limited information she was able to provide relevant to the criminal proceedings before the court.
SB did make some significant errors when giving evidence. For example, she told the court that when the accused picked up C and took her from the Port Pirie Health Service he was running whilst carrying the child. However, closed circuit television footage of the incident[30] clearly shows the accused, once he had possession of the child, to be walking, perhaps briskly but certainly not running, out of and away from the doors of the building. When shown the film during cross-examination SB conceded, as she had to do, that she was wrong in this respect. I did not assess SB’s evidence on this topic to have been a deliberate exaggeration or an attempt to bolster the prosecution case. I assessed SB at the time she gave the evidence of running to have genuinely believed that this was what had occurred. It was an extremely stressful occurrence and notwithstanding that walking was involved it was over in a matter of seconds. In any event the CCTV footage does not show the whole of the incident. It does not show the accused pick up C and his initial movement away before coming into range of the CCTV cameras. SB’s error was a genuine one and to my mind was an example of the frailty of the human memory when put under stress particularly when an attempt is made to recall a detail of this nature sometime after the event. Another example of where SB, more likely than not, gave inaccurate evidence concerned the topic of child minding. She said that KS and SS rarely, if at all, minded her children. However, both KS and SS both said that they together or separately often looked after the children.
[30] Exhibit P6.
Notwithstanding these and other inconsistencies in SB’s evidence, I assessed her to be honest and in, essential respects, reliable in the account she gave of her dealings with the accused generally and in particular at the Port Pirie Health Service.
SB said that C had colic soon after she was born and screamed a lot; this made it harder for her to “do the housework and keep the house spotless and clean”. The relationship with the accused after C was brought home from hospital was stressful. “He started yelling at me and swearing at me and said I was a very incompetent mother. It made it hard, more stressful, [it] was hard for [C] to settle when the mother feels stressed”. She described a life where she appeared to be somewhat isolated; originally from New Zealand she had few friends and did not know or mix with the accused’s friends. She would not go out but he would go out with his friends and drink while she stayed home and looked after C. She described the accused as starting to “get really controlling”. He would check the speedo on the car to see if she had gone anywhere, if she had rung her friend on the phone he would check the phone, he would take the phone off her and yell abuse at the friend. After C was born the accused became angry and would yell at SB most of the time. It became very stressful.

The situation worsened after R was born. The accused would be angry with SB if she did not do enough housework or didn’t do things the right way. When I asked for detail about the constant yelling SB said that the accused would call her a slut and swear at her and call her an incompetent mother “he would yell right at my face, really really loudly” and this would happen more than once nearly everyday whenever he thought she was not doing something correctly. She felt scared whenever he yelled at her.
I reviewed the evidence of both SB and the accused concerning the nature of their relationship with care. The accused has a verbally aggressive and domineering personality. He is a person for whom there is only one way to do something – his way; and only one set of appropriate beliefs – his beliefs. I will say more about the accused’s character and his evidence later in these reasons. Nevertheless, I have no doubt that, in the period from the time C was born until the separation, the accused controlled and dominated SB and that by his very presence in proximity to her he had and exercised the capacity to be menacing and intimidating. In my view, the nature of their relationship in this respect is relevant to the assessment of the accused’s conduct in the presence of SB at the Port Pirie Health Service with respect to the question of whether the taking of C was “by force”.
SB described the incident at the Port Pirie Health Service on 25 February 2010. She had obtained a referral from a general practitioner who had been looking after C since birth. She entered and checked in at the Port Pirie Health Service and then sat down in the waiting area while the children played on the floor. Whilst seated in a chair and waiting she turned around and noticed the accused standing right behind her in a line, apparently waiting to be served at the counter. At one stage, he was standing only about 6 inches away from her. She did not say anything to him. However, he said “what the fuck are you doing here?” To which she responded “go away, I have a restraining order against you”. She said that the accused “basically yelled” at her. She felt scared and didn’t know what to do; she froze. SB had not told the accused of the medical appointment that had been made for C and was not aware of how he came to be present.
According to SB the conversation continued. The accused said “oh yeah – aren’t you going to talk to me?” to which she replied “no” at which point “he basically grabbed C and ran out the door before I could do anything”.[31] SB described C as crying at the time the accused grabbed her under the arms and took off with her. She described the accused as having grabbed C “quite aggressively” and that C looked scared. Part of the accused’s journey carrying C from inside the health service and out through the automatic opening doors to the outside and towards the carpark can be seen in the CCTV footage, exhibit P6. The footage reveals little, if anything, of significance; only an adult male leaving the premises walking determinedly, and carrying a small child on his hip.
[31] I have already noted earlier in these reasons that SB was in error when she said that the accused “ran” out the door.
Even if SB were to be correct in her description of C as crying and looking scared I would not accept that as necessarily showing an unwillingness on her part to leave the premises with her father. The child had seen an altercation between her estranged parents, all of a sudden after spending time with her mother alone she finds herself leaving her mother in her father’s arms. There are a number of conceivable explanations as to why C might have been crying and might have appeared scared or anxious at that time. It is not necessarily the case that she was unwilling to leave and spend time with her father. As I have already indicated, C’s reactions and whether or not her will was, in fact, overborne are irrelevant to my consideration of whether or not the taking by the accused of C was “by force”.
SB lost sight of C as soon as she and her father went through the front automatic opening doors. She yelled for someone to call the police and went herself to the front reception and called police. She told the court that she did not give permission and, if asked, would not have given permission for the accused to take C away.
The Crown adduced evidence from four women employed at the Port Pirie Health Service on the day in question, Ms Rosana Amarto, Ms Anna Ramsay, Ms Bernadette O’Bona and Ms Anna Stringer. I am satisfied on the basis of their evidence that the accused attended the Port Pirie Health Service on the day in question intending to make enquiries as to the possible whereabouts of his daughter C. He first enquired at a reception desk staffed by Ms Amarto and Ms Ramsay as to whether or not there was a record of an appointment to see a medical practitioner. They were unable to assist him in this respect but directed him to the reception desk of Dr Haines, an ear, nose and throat specialist. The accused left their area and stood in a queue at Dr Haines’ desk. Ms O’Bona was the receptionist at Dr Haines’ desk. She heard a woman scream out “he’s taken her. He doesn’t have access to her. Somebody call the police.” The scream was in a yelling, upset, loud tone.
Ms Stringer was employed as an archive officer. She was in the carpark area that morning. She was approximately 3m away from the main doors of the building. She told the court that she saw a man carrying a child, get into a car. What caught her eye was that he drove out of the hospital carpark the wrong way, that is, through the entrance rather than through the dedicated exit. According to Ms Stringer the child did not appear to her to be upset in any way, she did not seem distressed. Ms Stringer recognised the man and the girl she saw as being the same man carrying a young girl that can be seen on the CCTV footage, exhibit P6. In cross-examination she confirmed that the child was not crying or screaming and looked like a perfectly happy 4 year old child.
I accept that the evidence of Ms Amato and Ms Ramsay is consistent with the evidence given by the accused to the effect that the reason why, (he says the only reason why) he went to the Port Pirie Health Service that day was because he had information that C was to see a doctor that day and that he wished to find out who she was seeing and for what purpose. One of the accused’s apparent concerns expressed a number of times throughout his evidence and in submissions by his counsel was that he maintained that no one had the right to give medical attention to his daughter without his permission.
The accused, during his evidence, gave a different account of what occurred at the Port Pirie Health Service. Before summarising this aspect of the accused’s evidence I need to digress and make some general observations about the accused and his evidence generally.
Evidence of the Accused – General Observations
The accused gave evidence in two parts. At the close of the Crown case and in the context of an application brought on behalf of the accused for, in effect, a stay of the prosecution with respect to counts 1 and 2 (the abduction allegations), the accused gave evidence on the voir dire. At that time it was recognised that the evidence given was not evidence in the cause. After hearing submissions from both parties I ruled on the matter and the trial proceeded with respect to all counts. The defence then presented its case and the accused was called to give evidence in the cause. However, immediately prior to giving evidence this second time both parties advised the court that it had been agreed that his evidence given on the voir dire was now to be treated by the court as evidence given in the cause.[32]
[32] T588.
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. He manifested an obsession (perhaps with some real justification) about perceived injustices caused to him by SB leaving and taking the children away without notice, by the circumstances, as the accused perceived them, in which the domestic violence restraining order had been obtained and by the circumstances, as the accused perceived them, in which the Federal Magistrates Court orders, depriving him of possession of and contact with his children, had been obtained.
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 Court orders operated to restrict or restrain him with respect to any of his rights as a father.
The accused gave his account of the nature of his relationship with SB during the time they were together. It differed in a number of respects from the account given by SB. The accused said that he was not physically violent and I note that, apart from reference to one relatively minor incident, SB had not alleged physical violence. The accused denied or at least underplayed the extent to which he had been verbally aggressive and intimidating towards SB. He said that he told her off 3 or 4 times but did not always yell at her or accuse her of being an incompetent mother. He denied being of a controlling disposition as far as she was concerned. These denials did not ring true to me. He repeatedly, throughout his evidence, referred to SB as an incompetent mother but provided little explanation for this. He repeatedly denigrated her shyness and difficulty in socialising and making friends. Whilst living with SB he took an early and relentless dislike to KS and SS based on a very limited association and experience.[33] The accused’s main concern stemmed from a belief that their children had been taken away from them at some stage and the inference he drew (the basis of which was never articulated) that SS was a child molester. He said with disdain that their children were filthy and were encouraged to kiss[34] and cuddle his children when saying goodbye. The accused directed SB that she was to have nothing to do with KS and SS and nothing to do with another mutual acquaintance called Mary. He told the court that the first thing he did on the night he returned after SB and the children had left him was to go to the telephone and check the dial-back function to check who, if anyone, SB had been talking to. SB said that this had been a common practice.
[33] According to the accused he met SS only twice and only briefly – T539.
[34] Each of SB, KS and SS denied that the children kissed.
I examined SB’s evidence with care on the topic of her relationship with the accused.[35] I found it to be compelling. I have no doubt that the account given by SB of the relationship she had with the accused was an accurate one and that the accused deliberately downplayed his aggressive, menacing and controlling nature.
[35] This evidence is canvassed earlier in these reasons.
The accused, on various occasions throughout his evidence, pressed a number of plainly absurd positions including:
(i)All South Australian laws were invalid;
(ii)The Family Law Act 1975 (Cth) was invalid;
(iii)The accused’s actions had been lawful because the Copyright Act 1968 (Cth) gave him a right of ownership and possession of his children superior to any orders of a court including the Federal Magistrates Court exercising jurisdiction under the Family Law Act;
(iv)The Copyright Act was passed before the Family Law Act and therefore had validity in opposition to anything the Family Law Act purported to achieve;
(v)The Federal Magistrates Court orders had no legal validity or force;
(vi)As to the requirement in the Federal Magistrates Court order that the children were to “live with the mother” the accused said this,[36]
“live with”, simplified down into a single word means tolerate. So that was a statement saying the children tolerate the mother. If you want to read it another way, [it] says they do live with the mother, everyone’s still alive, yes, at various times; it’s a rather pointless statement. . . .
(vii)On one (of the many) occasions when asked if he thought the orders legally stopped him from seeing his children, the accused responded,
Not at all, no, they didn’t say I can’t see the children outright. What the order says is “we are going to extort more money out of you and cost you and the children even more money, make you drive six hours to Port Augusta”. . . .
The accused was then asked, as at 25 February 2010 [the Port Pirie Health Service incident] “what access did you believe you were allowed to have with your children?” and the accused responded,
Whenever I wanted, they are mine. And they should have every right of access to their own house, and their own toys, unfettered by some fucking church group – sorry about the language.
(viii)The accused gave intrinsically unacceptable evidence concerning when and how he saw his children from the main road as he was driving by the Onkaparinga Adventure Playground. The evidence was inconsistent and inherently unbelievable. At one stage the accused insisted that he saw and recognised his 5 year old daughter who was playing behind what appears from the photos to be a slatted fence line some 200m to 250m away as the accused was driving along the main road running adjacent to the playground past the fairly dense stand of trees that can be seen in the photographs in P7. The evidence of how and in what circumstances the accused saw the children and why he went into the playground was explored at length. It is not directly relevant to a fact in issue but only goes to the accused’s credit. None of this evidence was at all convincing. He mentioned that he could recognise SB’s car from the roadway as he was driving past. He said that he identified the white 7-pin plug that is positioned in the white bumper bar of the car[37] because this was unusual. Photographs 17 to 21 of exhibit P7 show the roadway along which the accused was travelling when he said that he saw his children and turned into the carpark of the playground. It is evident that anybody in that position travelling at an ordinary speed would have great difficulty in making out details of people or activities through the stand of trees that would operate to impede the view from the street, bearing in mind the distance between the left hand carriageway on which the accused was driving and the area where SB’s car was parked. The reason why the accused went into the carpark of this playground and happened upon his two children playing there remains a mystery. I do not accept that the accused was telling the truth on this topic.
(ix)The accused told the court that after leaving the playground and while travelling to Cobar where he was in time found and arrested, he formed an intention to take C to Queensland and to obtain a job cooking on a prawn trawler skippered by a friend of his. He maintained that this was a lawful plan,
because I have got title to [C] and the mother is incompetent of bringing her up.
(x)The accused was adamant that spending weeks at sea on a prawn trawler would be an appropriate learning experience for his 5 year old daughter.
[36] At T506.
[37] See photograph 9 in exhibit P7.
The accused made various statements and observations throughout his evidence, which, whilst not amounting to admissions, did serve to indicate the way he thought and his reasons for acting. I provide only some of many examples from his evidence of statements made that have influenced me in my ultimate finding that the accused did not genuinely believe that he had a lawful entitlement to take C out of the possession of her mother.
(i)Once the accused had picked C up at the health service ostensibly because he was concerned that she was to receive uninvited (by him) medical attention, it did not cross his mind to find out why she was to receive the medical attention,
. . . it didn’t matter, I had my daughter, I couldn’t give a fuck of why she was in the hospital.
(ii)When arrested by police outside of Cobar, New South Wales after having taken C from the Onkaparinga Adventure Playground, the accused said to the police words to the effect that he thought he would be safe once he crossed the border.
(iii)The accused admitted lying to the police when he was initially interviewed about his not being the driver of the 4WD vehicle during the police pursuit at Mount Barker.
(iv)The accused eventually admitted that he knew that the police had been following him at Mount Barker and wanted him to stop but “he was wasn’t stopping for anyone”.
(v)According to the accused, at the health service, SB refused to answer his questions and tried to ignore him; as a result he “went to take her away; nobody’s got the right to tamper without my permission”.
(vi)On one occasion when asked during examination-in-chief what was the reason he picked C up and took her out of the health service the accused said this,
the mother’s got no idea; she doesn’t know anything about medicine, there is nothing wrong with [C] anyway, in my personal opinion. If I’m not going to know what she’s been tampered with – you can’t just medically prescribe people in Australia, it’s unconstitutional.
(vii)After giving this answer the accused was asked whether he believed what he had done at the health service was lawful. He gave the following explanation,
Yes, I do and I still do.
.  .  .  .
Plenty of reasons: for a start the children are copyrighted, which means they are dramatic work produced by using skill . . . the mother then entrusted me further than that, having me put my surname on them as a trademark which gives me the ultimate say what’s going on with them, until they turned 18 . . .. Everything that has been happening with them is an unlawful breach of that . . .
.  .  .  .
. . . I still firmly believe that because the Copyright Act came along before the Family Law Act. That one overrides that one anyway. The Copyrighting Act says you have exclusive use of the thing, as I’m the copyrighting owner of them, I have exclusive use over them . . .
When asked if he believed that the Family Court [by which his counsel must have been referring to the Federal Magistrates Court] order were lawful the accused answered,
Not entirely, no, not at all, effected by corruption. I wasn’t entitled to even find out why decisions were being made. I’m still not entitled to find out why decisions are being made, it’s unconscionable conduct isn’t it.
(viii)On a number of occasions the accused spoke in terms of the police and others wanting to “disposes [him] of his property again”.
(ix)The accused said that he was “wild” when he saw SS pick C up at the Onkaparinga Adventure Playground and he went on to add “I have been like that [wild] ever since the whole entire procedure. It has been running since March 2009”.
(x)During cross-examination the accused was asked if he ever formed a view about whether it was lawful for the Federal Magistrates Court to make orders about his children,
Not really, I was forced into going there. I was forced to have to deal with the Federal Magistrates Court.
Thereafter, the accused said that he had formed a view from as early as 1993 that it was beyond the power of the Federal Magistrates Court to make such orders. When pressed, he said about the Federal Magistrates Court,
They have got jurisdiction [to make orders about his children] obviously, it’s a court, yes, they have jurisdiction but they don’t have jurisdiction to do what they are doing.
The accused then went on to justify this position on the basis that the Family Law Act had been invalid since “day 1”.
(xi)The accused was examined at length both in chief and in cross-examination and I reached the view that he would say anything that came into his head, no matter how foolish, by way of purported legal justification of his conduct. For example, when asked if he was aware of the terms of the domestic violence restraining order as at the time he went to the Port Pirie Health Service[38] he answered,
[38] At T519.
Yes, I’m still entitled to protect my children. If you receive goods, if you are a solicitor with goods you don’t wish to receive, you’ve got the right to hang onto them and don’t have to pay to them. I’m paying for them and yes, I hang onto them.
(xii)During his cross-examination, the accused volunteered what had been his thoughts at the time he was standing in a line at the health service for the purpose of seeking information about C’s medical appointment,[39]
[39] At T521.
. . . but I still just didn’t go over to them and run out, I was still making enquiries up until the point when I was standing in the line with several people getting to the counter and the mother wouldn’t give me any information, so I thought “I’m not going to stand here all day trying to find out, I might as well take her”.
(xiii)The accused was asked why after he had taken C from the Onkaparinga Adventure Playground he did not return to also get R. He said that he realised that the police would have been contacted and that they would be after him. The following exchange then occurred,[40]
[40] At 544-545.
QBecause you knew at that stage, didn’t you, that taking C breached orders that were made in the Federal Magistrates Court.
AThe orders were invalid, I’ve even put in affidavits into the Family Court saying that the orders were invalid, the restraining order, still is, I still stand by that, constitutionally invalid. If we have to go to the High Court to challenge it we will.
QI understand that, but my proposition is that when you took C from the carpark you knew it was in breach of the orders made in the Federal Magistrates Court.
ANot in breach of orders, still got orders there to say protect the child or the children from danger. That’s danger, people fail to acknowledge that and fail to deal with that, it’s a danger.
QThat’s why I asked the question.
AYeah.
QDo you deny when you took C you were acting in contravention of orders made in the Federal Magistrates Court.
AI didn’t consider any orders . . .
.  .  .  .
So it’s just lies after lies after lies building up on top of one another for the sole intent of depriving me access of something I’m the rightful owner of anyway; I’m entitled to ownership at law.
QYou obviously disagreed with the orders that were in place from the Federal Magistrates Court at the time you went to the playground at Port Noarlunga.
AI was more concerned about the kids’ welfare than the orders. . . .
QBut you knew of the existence of the orders in the Federal Magistrates Court on the day you took C from the playground.
AOf course I did, of course I did.
QYou knew what the term of the orders were.
AThe Family Court statement said that the children were to be with the mother, yes, or tolerate the mother, actually, yes.
QYou disagreed with the orders didn’t you.
AThey were wrongful. They weren’t truthful, they were an intrusion, you can’t discriminate, it’s Australia.

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:[41]
Like anything, if it has been stolen from me I take it back.
[41] At T621.
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.
I will now return to my consideration of the question of force in the context of the first count.
Evidence of the Accused Concerning the Health Service Incident
The accused told the court that he became aware from a freedom of information application made by him that a medical appointment had been made for C for 25 February 2010 for recurring tonsillitis. He knew no other details. However, on that day he went to the Port Pirie Health Service to make enquiries and it was a coincidence that SB and the children were there at the same time. He made enquiries at one counter and was directed to another counter. He said that C came over to him and then went and tapped SB on the knee to tell her that her father was there. The accused gave a different account of their conversation. He said words to the effect “you can save me time, what’s going on?” And when she ignored this he said “the father has got the right to know what is going on with the children”. She continued to ignore him and he said “fine, I will do it my way”. He then went over to C picked her up and said “come on, you are going for a holiday with your daddy” and walked out the door. He said that C was not upset and was happy. She did not object in any way and she did not cry for the whole time that she was in his possession. He said that at the time he took C he did not have a plan as to how long he would keep her. He did not take her to see a medical practitioner because in his view there was nothing wrong with her.
The accused said that he and C slept in a tent at a friend’s house for three nights before he returned to his house at Balaklava. He told the court[42] that he took C because he didn’t believe there was anything wrong with her and he did not want her to be medically tampered with. He agreed that at the time of this incident he was aware of and had read the orders that had been made in the Federal Magistrates Court on 2 June 2009. He agreed that he was present in court when the orders were made.[43]
Findings and Conclusions on the Issue of “by Force” in Count 1
[42] T506, 608-609.
[43] T506, 514-517, 640-644.
Realistically, it is unlikely that either SB or the accused has given an entirely accurate account of the interaction and conversation that occurred between them. It was a stressful occasion and memories can be unreliable when asked to recall this type of detail. However, the following, albeit quite limited, findings are supported by all of the evidence on this topic and I make these findings beyond reasonable doubt.
(i)The accused attended at the Port Pirie Health Service hoping to be able to obtain information about and to locate the whereabouts of C.
(ii)As it happened, whether by design or by accident, the accused found himself standing in a queue in very close proximity to SB and C.
(iii)A verbal altercation between SB and the accused ensued. The essence of the verbal altercation was that the accused wanted information and SB refused to give it to him.
(iv)The accused was angry and became frustrated.
(v)The accused, with no warning, picked up C who was then 4 years and 8 months old, hoisted her on his hip, held her close and strode determinedly or marched away from SB. He took C to his car in the carpark and drove away.
(vi)The accused retained C in his company thereby depriving SB of the possession of C until arrested by the police some six or so days later.
(vii)Whether or not C was willing to go with her father was a matter of indifference to him. She was given no choice and I am satisfied that had she expressed any resistance or unwillingness to the accused he would have ignored it. The accused allowed C no opportunity to express her will one way or the other.
(viii)C left the possession of her mother as a consequence of the accused picking her up and carrying her away. This, when viewed in the overall context, is a sufficient use of force, in my view, to satisfy the requirements of s80(1). SB was given no opportunity to resist the accused’s actions and was, consistently with her past experience, intimidated by his mere presence and his demands. In these circumstances the picking up of C, the accused’s menacing manner and his physical taking of C away comprised a use of force directed against SB.
“Force”, in the manner suggested by R v Webb and R v Pollitt in the context of the offence under s59, that is, force not necessarily amounting to physical violence but sufficient to take C against SB’s will, was exercised by the accused on that occasion. I am satisfied beyond reasonable doubt that the element of taking by force has been satisfied with respect to count 1.
The Evidence Concerning the Use of Force – Count 2
SS told the court that he and his partner KS were friends of SB. He first met SB about four or five years prior to the trial at a kindergarten playgroup. He had seen the accused on a couple of occasions only. On 31 August 2010 his partner KS and SB took SB’s children, C and R, to the Onkaparinga Adventure Playground at Port Noarlunga South. SS drove to the park in his car, a purple Hyundai, and SB and KS together with the children came separately in SB’s car a white Holden Commodore sedan. They arrived approximately between 3 and 3.30pm. SS identified SB’s vehicle as being the white Holden Commodore that can be seen in a number of the photographs in exhibit P7. With reference to photograph numbers 6, 7 and 8 in P7, SS told the court that he took note of where that vehicle was parked as soon as the two women and the children arrived at the playground; “it was right between the lines”. SS parked to the left hand side of the Commodore a couple of spaces away because there were other cars in between the white Commodore and his car. However, he could not remember if there were other cars parked on the other side of the white Commodore. Nevertheless, by the time of “the event”, that is, the incident with the accused, the other cars that had been parked to the left had disappeared, leaving the space to the left side of the white Commodore free. According to SS photograph 3 shows that by the time that photograph was taken the back end of the white Commodore had been shifted approximately four feet and the front end approximately one foot.
According to SS it had been pre-arranged that at some point during the afternoon he would play with the two children so as to occupy their attention to enable KS and SB to leave in order to attend an open house inspection. It was agreed that KS and SB would take the purple Hyundai.
Shortly after the two women left, SS received a frantic call from SB and KS both of whom were trying to speak at once. They told him they thought that they had seen the accused in the area. SS received this call approximately 5 or 10 minutes at the most after the two women had left. SS noted that by then it had started to drizzle and it looked as if bad weather might be coming. He therefore decided to head from the area in the park where the children were playing back to the white Commodore car.
He told the court that as he and the two children approached the car he saw a red station wagon that had been mentioned to him on the phone as possibly being the accused’s vehicle. At this point he and the children were at the gate in the fence which separates the grassed area from the bitumen carpark area in a position between the two sets of bins shown in photograph 22. As can be seen from photographs 2 and 23 the police car shown in photograph 22 is in the position that SB’s white Commodore occupied at that time. When SS first saw the red car from his position at the gate between the two sets of bins, it was parked in a car space as marked with an ‘X’ in photograph 25. It was facing away from the police car side of the carpark and towards the main road. As SS reached the rear passenger side of the white Commodore in order to put R in the backseat he was able to see the reflection of the accused sitting in the front seat of the red car in its driver’s side mirror.
SS did not shut the passenger rear door after putting R into the backseat because he took the view that he needed to move quickly to put C into the driver’s side rear passenger door of the car. As SS was walking, holding C’s hand, around the back of the Commodore towards the driver’s side rear passenger door he heard the motor of the accused’s car; he looked over his shoulder and observed that the accused’s car had reversed out of the car space and was now in the carpark roadway facing towards the white Commodore in the position marked with a single line in photograph 25. SS is not certain whether at that time the car was stationary or had started to move forward. He continued to assist C to get into the rear seat of the vehicle. SS said that the accused then rammed SS and the white Commodore simultaneously with his own vehicle and, in effect, pinned SS between the front of the accused’s vehicle and the rear right hand panel of the white Commodore.
SS has drawn on photograph 8 the position he was in when he felt himself trapped between the two vehicles. He felt a massive amount of pain in both his legs. At the time, SS was putting both children into the backseats of the car he noticed there were no vehicles parked in the spaces on either side of the white Commodore. However, he could not remember seeing the accused’s vehicle actually make contact with the white Commodore; “all I remember is the pain.”
At the time of contact the front of his body was pressed against the white Commodore and he was directly facing the side of the white Commodore. SS experienced pain in both legs from his thighs through his knees and down to his feet. He described being pinned for a few seconds during which time he was unable to turn around. He could not see the part of the accused’s car that was pinning him because he was unable to turn around during the time he was pinned. He observed C to fall to the back seat floor of the car when this took place. SS said that the accused then reversed his vehicle which enabled him to fall to the ground where he remained for a couple of seconds until he could re-gain strength sufficient to be able to stand again. However, none of this was perceived through direct observation.
QSo there came a point where you ceased to feel the pressure behind your legs, is that what you are saying?
AYes.
QAnd from that you inferred that the car was taken away.
AYes.
SS said that he was only on the ground for a matter of seconds. By the time he got up he saw C getting out of the white Commodore from the other side, that is, the rear passenger side door. R remained seated in his child seat the entire time. SS said that he then saw the accused drive his red car to the other side of the white Commodore, the side where C had exited. He saw C start to run to the playground area, she made it halfway through the grassed area shown in photograph 24 at which point he observed the accused to pick C up from the grass. SS made his way to the driver’s side door of the accused’s red car. It was his intention to try and stop the accused from getting away. He described seeing C being “scooped up” from the grass and said that she was babbling but he could not understand what she was saying. Once the accused was on his way back with C, SS managed to re-gain focus and he concentrated on the accused.
SS described how the accused was holding C. His hands were positioned under her armpits one on each side cupping her upper chest. He held C slightly to his left and in front of him. C was facing her father, and according to SS, was trying to push her father away. He heard a lot of babbling and crying.
When the accused, carrying C, returned to his red car he and SS started to fight. SS described their fight in some detail. He said that the accused took a swing at him and then described how the accused would move from side to side holding C in front of him so as to block the return blows of SS. At this stage SS was standing in the way of and blocking access to the driver’s door of the accused’s red car. At all times SS was trying to prevent the accused from getting into his vehicle with C. The accused’s first swing missed SS but eventually he was able to make contact. SS was hit in the forehead a couple of times and thinks that he managed to hit the accused in his shoulder a couple of times.
Overall, SS gave a confused, as you would expect, account of a fight between the two men which involved pushing and shoving and punches being thrown. During the fight SS was struggling to recover from the incident where he had been pinned between the two motor cars and the accused was holding C and, effectively, fighting only with his other arm. According to SS the accused yelled threats – “I’m going to get the Hells Angels to kill you” and at one point rushed at SS whilst holding C and pushed SS out of the way. The accused then pushed C into the front passenger seat through the driver’s side door of his vehicle, jumped in himself and drove off.
It is not contested by the defence that the accused confronted SS, that he fought with SS and that he picked C up in his arms and drove away with her in his car. However, in evidence he gave quite a different description of these events.
Evidence of the Accused Bearing on “Force” – Second Count
The accused said that on 31 August 2010 he was in the Port Noarlunga area because he had an appointment to see his medical practitioner at Aldinga. The accused had maintained his relationship with this doctor from the days when he was living in McLaren Flat. He said that he first visited the house of Jeff How (a friend). Mr How told the accused that he wanted to sell an old Land Cruiser that was in the backyard. The registration on the accused’s red Holden Commodore had expired and he needed to re-register the vehicle. He was intending to re-register the vehicle that afternoon. Nevertheless, he arranged to buy the Land Cruiser from Mr How.[44] The accused then left Mr How’s home in Port Noarlunga to drive to the Christies Beach motor registration office in order to register his red Commodore.
[44] The evidence of Mr How, which I accept, corroborates this aspect of the accused’s account.
By coincidence, according to the accused, he drove past the Onkaparinga Adventure Playground. From the street he noticed his children playing and recognised SB’s car in the carpark. He immediately turned off the main road and went in the second entrance to the carpark of the playground. He did not see SB and he wanted “to see what was going on with my children”. He became concerned when he saw a strange man pick C up and place her in SB’s vehicle. He was angry that “some bloke” had his children in the playground and said he was concerned for their welfare. The accused was examined at some length as to when it was that he decided he was going to take C. He said that he was “on a mission” to get the children. Ultimately, he said this.
Why would I call in there, I suppose, if I was never going to go there? . . . whether I had already decided as I was turning in, I don’t know. Who knows? I wasn’t really having a conscious decision, it was instinct; just take her. Like anything, if it has been stolen from me I take it back.
The accused described how he reversed his car out of the parking space and started to drive it towards SB’s car. He said that he turned his car off and jumped out. However, the car kept moving at a slow speed and he tried to turn the steering wheel but the steering lock was on. He said that he jumped out only a couple of metres from where SS was. He admitted that SS, after running in front of the vehicle, was pinned between the two vehicles. He said he did not intend for this to happen.
The accused said he then picked C up with his left arm. She didn’t struggle or object. He carried her towards his car where SS started pushing and shoving him and then swinging punches at him. The accused warned him that it was nothing to do with him and told him to get out of the way. According to the accused, SS punched the accused in the shoulder and the accused punched him back. The accused said he took one swing at SS and hit him around the ear. When asked why he hit him he responded “He was hitting me. I had to hit him. Self-defence. He was hitting me. What are you meant to do, walk away” The accused then put C in the car and left. There was only one spare seat in the car, the backseat had been folded down and was full of boxes. It was for this reason that the accused took C only and not R.
The accused said that when he took C from the playground he knew of the terms of the orders made in the Federal Magistrates Court but did not think about them at the time. He said he was aware of his bail conditions at this time and that he was prohibited from approaching either SB or C. However, he was of the view that the bail conditions allowed him to “act to protect [C’s] safety” and said that that was what he was doing at the playground.
The accused then went back to Mr How and took possession of the Land Cruiser. He told the court that he swapped cars because he needed a registered vehicle to go to Queensland. He denied that he swapped cars to avoid police detection. On the way to Mount Barker the accused stopped at Meadows and removed the home detention electronic transmitter that he had been wearing. He placed it in a bag and hid it. It was the accused’s intention to take C to Queensland where he would work as a cook on a friend’s prawn trawler. He wanted to teach C to fish.

I am also satisfied that at all times SS was acting lawfully. There is no basis in the evidence for a finding and it has not been suggested on behalf of the accused that SS used excessive force in his efforts to re-gain possession of C. In any event, whether or not SS was acting lawfully in taking the steps he took in response to the accused’s unlawful conduct is not strictly to the point. The outstanding issue here is whether or not the Crown has proved that the accused did not genuinely believe on reasonable grounds that SS was acting unlawfully. (Sub-paragraph (iv) above). In this respect the conduct of SS that falls for consideration is not his presence in the park with C per se but the conduct of SS in responding to the accused’s unlawful act, that, is the aggressive behaviour engaged in by SS. Ultimately this distinction may not be of great significance because I am satisfied that the accused did not have such a genuine belief, on reasonable grounds, with respect to either conduct of SS.
It is helpful in this context to refer specifically to some of the evidence given by the accused relevant to why he was fighting with SS.
The accused was driving along the main road that ran alongside the playground when for some reason he became aware that his children were or might be in the playground.[89] According to the accused he was travelling from right to left when looking at the photograph. He travelled past the entrance to the playground which can be seen in the photograph but turned into a second entrance into the playground which is not shown in photograph 17 but is positioned immediately to the left of the scene depicted in photograph 17. He identified C playing in the playground and also recognised the white Holden Commodore in the carpark as SB’s car. He observed his two children head for this car and watched as SS (although without recognising SS) pick C up and put her into the car. In so doing SS had “his hands between her bum crack”, which the accused regarded as inappropriate. The accused was also concerned that C was wearing a mini-skirt which he thought to be unsuitable given the coldness of the day and the fact that it had just started raining.
[89] The main road is that shown in photograph 17 of P7.
The accused told the court that when he saw SS pick C up he “was wild” and that he had been like that since the time SB left the matrimonial home taking the children with her in March 2009. At no time did he ask the man, now known to be SS, why he was at the playground with the accused’s children. It did not enter his mind to ask that. He said that he was concerned because SB was not there but it did not enter his mind to ask where SB was and notwithstanding that SS was putting the children into her car. He was angry that “some bloke” had his children in the playground and told the court that he was concerned for their welfare including the potential for their sexual exploitation. He told the court that he was “on a mission” to get his children. He had reached the decision to take C away at some stage during the process of entering the playground area. “I wasn’t really having a conscious decision, it was instinct; just take her. Like anything, if it has been stolen from me I take it back”.
The accused said that as he approached his car with C, SS “started pushing and shoving and then he started actually swinging punches”. The accused warned SS that it was nothing to do with him and to get out of the way but SS refused to do so. When asked why he hit SS he replied “he was hitting me. I had to hit him. Self-defence. He was hitting me. What are you meant to do, walk away?” He said that he did not believe SS to be acting lawfully and that he had “no option but to get him out of my way”. The accused admitted that when he took C on this occasion he knew of the terms of the orders that had been made in the Federal Magistrates Court, but he did not consider them to be valid orders.
Again, I refer to my earlier findings concerning the accused and his evidence generally as to his knowledge, intentions and motivations. I reject the accused’s evidence that he was of the belief that SS was acting unlawfully. I do not consider it to be a reasonable possibility, in all of the circumstances, that the accused gave any thought to or believed this. The accused was fully aware that he was acting unlawfully in approaching C let alone attempting to take C into his possession. There was simply no reasonable basis upon which he could form a view that SS was not a responsible adult attempting to assist both his son and his daughter into the backseat of what the accused knew to be SB’s motor vehicle. I accept it to be a reasonable possibility that the accused thought the Federal Magistrates Court orders had been improperly obtained and that he had been unfairly deprived of contact with his children. But that is not the same thing as a genuine belief in their invalidity. The accused acted as he did at the playground solely as a consequence of his anger and frustration at having been deprived, in his view unfairly, of his children. The accused wanted to take C and SS was in his way. His opposition had to be overcome.
Furthermore, not only did the accused have no belief that SS was acting unlawfully, in the circumstances that confronted the accused at the playground, there were no grounds for any such belief that could be described as reasonable. I am satisfied that the Crown has satisfied the requirement in (iv) above to an extent that excludes all reasonable doubt.
In any event, even if notwithstanding the provisions of s15(4) of the Act the reasonable possibility that the accused was acting for a defensive purpose does arise on the evidence, I am satisfied beyond reasonable doubt that the accused did not genuinely believe his actions “to be necessary and reasonable” for that defensive purpose. At all times, in my view, the accused’s intention was not to defend himself or indeed his daughter from threatened or actual violence on the part of SS. At all times his intention was to leave the playground with C and he intended to take whatever physical steps were necessary to achieve that aim. In other words, he was prepared to do whatever it took to get SS out of the way. I accept the Crown’s submission that in those circumstances it is not lawful, it is not a defensive purpose, for the accused to have punched SS simply to ensure that SS did not get hold of C. The accused was not acting in defence but rather taking steps to stop SS from doing what SS was lawfully entitled to do, that is, re-gain possession of C.
It follows that I am satisfied that the Crown has proved the element of unlawfulness and that the accused is guilty of the third count, Assault Causing Harm.
Fourth Count – Dangerous Driving to Escape Police Pursuit contrary to s19AC of the Act
The particulars of this offence, as alleged by the Crown, are:
[The accused] on the 31^st day of August 2010 near Mount Barker, intending to escape pursuit by a police officer, drove a motor vehicle in a manner which is dangerous to the public.
The elements of this offence all of which must be proved by the prosecution are:
(i)that the accused drove a motor vehicle;
(ii)that he drove in a manner which was dangerous to the public; and
(iii)that he did so with the intent of escaping pursuit by a police officer.
The factual basis of the Crown case concerning this alleged offence was not seriously contested and, in any event, the account which follows records findings reached by me beyond reasonable doubt on the basis of the relevant evidence[90].
[90] See the evidence of police officers Reid, Thickins and Argent and of the accused.
At some point, just outside of Mount Barker, late on the day during which the accused had taken C from the playground, two police officers in a patrol car recognised the 4WD being driven by the accused and commenced to follow it. The accused’s vehicle was followed first by one and then ultimately by two police patrol cars along Adelaide Road leading from Mount Barker in a northerly direction towards the south eastern freeway. Early in the pursuit red and white flashing lights and the sirens were activated. The accused did not pull over but maintained his course, albeit without committing any breaches of the road rules or exceeding the speed limit. The accused travelled over the overpass forming part of the Adelaide Road that spans the south eastern freeway still in a northerly direction and turned right immediately after the overpass into the on-ramp which takes traffic down to the south eastern freeway heading in an easterly direction towards Murray Bridge. The accused proceeded down the on-ramp. The two police cars followed. The accused found himself hemmed in by a large truck which had stopped in front of him on the on-ramp at which point the accused turned his vehicle 90º to the right, mounted the curb and headed down a grassed embankment or hillside which occupied the space between the on-ramp and the south eastern freeway. The length of the grass varied but was not much longer than say 25cm at any point.
The police lost sight of the accused as soon as he mounted the curb and headed down the hillside. The only evidence of what took place after the accused mounted the curb is that which the accused himself gave in court and during his record of interview. One of the reasons the police could not see what happened after the accused mounted the curb was because the hillside was in darkness, notwithstanding the presence of streetlights on the on-ramp and streetlights on the south eastern freeway at the bottom of the hillside. The police refused to follow for the reason that their patrol cars did not offer sufficient clearance (unlike the accused’s 4WD vehicle) to enable them to mount the curb. In any event they assumed that the accused would turn left and proceed in an easterly direction along the freeway. The police continued down the on-ramp with the expectation that they would catch up with the accused on the freeway itself.
According to the accused, he was an experienced driver of 4WD vehicles and, given his background and evidence generally, I have no reason to doubt this. He also told the court that when the vehicle descended the hillside it was in 4WD mode and that he drove very slowly, not much above walking pace. Rather than proceed onto the south eastern freeway, as the police officers expected him to do, the accused turned his vehicle to the right once he reached the bottom of the hillside and whilst remaining on the grassy verge, as it were, proceeded along the verge for about 50m or so in a direction that was against the flow of any traffic travelling east along the freeway. The accused then turned right and proceeded back up the hillside, returning to the on-ramp. He then proceeded in the incorrect direction, up the on-ramp (which is only available to one-way traffic heading east) and back on to Adelaide Road. He proceeded on his way to Cobar.
Whilst the Crown was on notice that the accused admitted during his record of interview, driving up the on-ramp in the wrong direction, at no time has this conduct been part of the Crown case with respect to this fourth count. In particular, the Crown did not open on this aspect of the accused’s driving nor was the prosecution case presented or the defence case conducted on this basis. During final submissions the Crown conceded, in my view properly so given the circumstances, that its case with respect to the fourth count was pressed solely on the basis of the accused having driven the 4WD vehicle down the grassed hillside along at the bottom and up again. In these circumstances I will devote no further attention to the fact that the accused admitted driving along the on-ramp in an incorrect direction.
On the basis of the evidence of the police officers relevant to this aspect of the Crown case and the evidence of the accused himself, I am satisfied that the defendant drove the motor vehicle in the manner summarised above. I am also satisfied beyond reasonable doubt, and this has not been seriously contested, if at all, that at the time the accused drove off the on-ramp onto the grassed hillside he did so with the intention of escaping pursuit by a police officer. The question that remains for determination is whether or not the accused drove in a manner that was dangerous to the public.
What amounts to driving in a manner dangerous to the public was considered by the Court of Criminal Appeal in this state in R v Pearse[91] Sulan J (with whom Vanstone and Kourakis JJ agreed) said that,
to constitute driving in a manner dangerous to the public, the prosecution must prove beyond reasonable doubt that the act of driving was such that a reasonable person in the situation of the accused would recognise the driving as dangerous in that it involves a risk of injury to others which exceeds the ordinary risks of the road and amounts to a real danger to the public.
The test is an objective one;[92] the driving and lack of care and attention in question must be beyond a standard of care which is often observed in drivers and seen as an ordinary risk of the road. The driving must be such as to create a real risk to the public and not a hypothetical or perceived danger.
[91] [2011] SASC 65.
[92] R v Coventry (1938) 59 CLR 633.
I accept the Crown’s submission that factors to be considered here will include the nature, condition and use of the road or area on which the offences were alleged to have been committed, the amount of traffic on the road or the area of the road at the time of the offence and the amount of traffic which might reasonably be expected to enter the road or the area of the road from other roads and places. However, these factors will be of limited utility in the present case given that the area of the driving concerned was not part of any formal road on which at the (night) time in question any other cars or pedestrians were likely to be.
It cannot be the case, that the mere driving of a motor vehicle off-road necessarily will give rise to driving in a manner dangerous to the public and a fortiori this must be so in the case of a 4WD or off-road vehicle. The difficulty the Crown faces here is that it has not been able to adduce, in its case, any evidence concerning where the accused drove and the manner of his driving once he mounted the curb and started to descend the hillside into the darkness. The court is left only with the account given by the accused. In addition, the court was taken on a view of the location during which the grassed hillside was traversed down and up on foot. Having attended the view I find myself better able to understand the evidence adduced by the Crown including the descriptions given by the police officers and the account given by the accused concerning the characteristics of the grassed hillside. Having the benefit of the view, I am fortified in my opinion that this hillside was a location which could be safely traversed by a 4WD vehicle if appropriate care were to be taken. Indeed, the accused has demonstrated that he was able to successfully traverse the hillside in his 4WD vehicle.
I return then to the proposition that the mere leaving of the on-ramp so as to drive down a grassed hillside did not, of itself, constitute driving in a manner dangerous to the public. It was late at night, the hillside was in darkness but the 4WD had headlights. It is most unlikely that there would have been any other vehicle or person on the hillside. According to the accused he drove very slowly and with care. The Crown has offered no evidence to dispute this. As such, I am not satisfied beyond reasonable doubt that the accused, when entering upon and driving down the hillside, drove in a manner dangerous to the public, that is, in a way that involved a risk of injury to others which exceeded the ordinary risks of the road and which amounted to a real (not hypothetical) danger to the public. The accused is not guilty of the fourth count.
According to s19B(5), where an accused is found not guilty of an offence pursuant to s19AC the alternative offences provided for by s46 and s45 of the Road Traffic Act 1961 must be considered.
Section 46(1) of the Road Traffic Act provides that,
a person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
For reasons already given I am not satisfied beyond reasonable doubt that the accused drove the vehicle at a speed or in a manner which is dangerous to the public. The further question arises as to whether he drove a vehicle recklessly.
In this context, the notion of reckless driving implies that possible consequences which may ensue from the act of driving in question are adverted to by the driver who is indifferent whether the consequences occur or not.[93] In the present case there is no evidence before the court of particular consequences anticipated by the accused nor to the effect that he was indifferent as to whether or not any such consequences in fact came about. Again, the Crown has failed to adduce evidence sufficient to prove beyond reasonable doubt the element of recklessness.
[93] Thompson v Copeland [1936] SASR 45.
Section 45(1) of the Road Traffic Act provides that,
a person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
Again, I am not satisfied on the evidence adduced by the Crown that the accused in driving the motor vehicle on the grassed hillside, did so without due care or attention or did so without reasonable consideration for other persons using that area or the adjacent roadways. Indeed, such evidence as there is (that of the accused) raises, at least, a reasonable possibility to the contrary. The accused is not guilty of the alternative offences under s45 and s46 of the Road Traffic Act.
Fifth Count – Failing to Comply with a Bail Agreement Contrary to s17 of the Bail Act 1985
Section 17(1) provides that a person who, without reasonable excuse, contravenes or fails to comply with a term or condition of a bail agreement is guilty of an offence. At the time that the accused attended the Onkaparinga Adventure Playground, took C into his possession and removed her from the possession of SB and SS he was subject to the bail agreement in exhibit P3. Condition 13 of the bail agreement provided that,
[the accused was] not to approach or communicate, either directly or indirectly, with SB and C.
I am satisfied that the fact that the accused was the subject of a bail agreement is proved by exhibit P3 and the admissions of the accused. I am also satisfied that the events that took place at the playground at Port Noarlunga South comprised a breach of condition 13.
The question arises as to whether at the time of the breach the accused had a reasonable excuse. I have already found that there was no legal justification for the accused’s behaviour either towards SS or in approaching and taking possession of (contacting) C. I have also found that the accused did not have a genuine belief that he was entitled to take C either out of the possession of SS or away from the playground. I am satisfied that the Crown has excluded any reasonable possibility that the accused had a reasonable excuse for breaching his bail agreement in this way.
Conclusion
I enter the following verdicts.
(i)As to count 1 (Abduction) – guilty.
(ii)As to count 2 (Abduction) – guilty.
(iii)As to count 3 (Assault Causing Harm) – guilty.
(iv)As to count 4 (Dangerous Driving to Escape Police Pursuit) – not guilty and as to the potential alternative offences of Reckless and Dangerous Driving (s46 of the Road Traffic Act) and Careless Driving (s45 of the Road Traffic Act) – not guilty.
(v)As to count 5 (Failing to Comply with a Bail Agreement) – guilty.
Appendix
First Ruling
At the close of the prosecution case, the accused made an application that there was no case to answer with respect to counts 1 and 2 on the information.
1.As far as count 1 is concerned, the accused maintains that the prosecution, on whom in this respect the usual burden of proof falls, has failed to adduce any or any sufficient evidence, that any taking of C by the accused was by force, in the sense as required by s80(1)(a) of the Criminal Law Consolidation Act.
2.The question before the court in this respect is: on the assumption that all evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate and on the further assumption that all inferences most favourable to the prosecution which are reasonably open to be drawn are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, that this element of force has been established?
3.After reviewing the relevant evidence, I am so satisfied and this aspect of the accused’s no case application is refused.
4.The second aspect or arm of the accused’s no case application concerned both count 1 and count 2.
5.The accused has argued that on the state of the evidence at the close of the Crown case, the statutory immunity or exclusion from prosecution provided for in s80(2) of the Criminal Law Consolidation Act is engaged.
6.The accused maintains that the requirements of s80(2) are satisfied and therefore the accused is not or cannot be rendered liable to prosecution, to use the words in the sub-section.
7.The essence of the accused’s argument is that once it were to be established that the accused was acting in accordance with a bona fide claim to be the father of C (and the fact that the accused is the father is not in dispute) that, of itself, is sufficient to engage s80(2) such that the immunity from prosecution follows. It is the accused’s contention that a father who takes his own child out of the possession of any person having the lawful charge of the child, ipso facto, does so in the exercise of a bona fide claim to the right to possession of the child - again, to use the words of s80(2).
8.It is the accused’s contention that this follows as a matter of a proper statutory construction of s80(2).
9.I reject the accused’s contentions in this respect and reject the application, whatever its true nature. However, for the further assistance of counsel I make the following further rulings.
10.The issues raised by s80(2) do not give rise to trial issues in the sense of questions of fact to be left to a jury or a judge sitting alone as part of the task of deciding whether the accused is guilty or not guilty of an offence under s80(1).
11.Sub-section 80(2) gives rise to an issue that ordinarily should be characterised as one antecedent to trial and dealt with by way of an application under Rule 8 of the Joint Criminal Rules. However, that is not to say that the accused is necessarily precluded from raising it at a later stage after the trial of the action has commenced.
12.The application by the accused is more in the nature of an application for a permanent stay of the prosecution of counts 1 and 2 on the basis of an alleged abuse of process. I have treated it as such. However, there would seem to be no discretion available to exercise as in the case of an ordinary application for a stay based on an abuse of process, once it were to be found that s80(2) applied to the facts of a case.
13.Sub-section 80(2) requires it to be established that the accused is a person who inter alia,
In the exercise of any bona fide claim to the right to possession of a child, whether as the . . . father . . . 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.
On their proper construction, in the context of the sub-section and, indeed, the section as a whole, the words ‘in the exercise of any bona fide claim to the right to possession’ have work to do independently of, and must still be satisfied in addition to, the fact that the accused is the father.
14.The words ‘bona fide claim to the right to possession’ are to be construed as referring to a bona fide claim to the lawful right to possession.
15.Whether or not s80(2) is engaged in a particular case will depend upon the evidence that comes before the court.
16.The burden of proving facts necessary to engage the immunity from prosecution provided for by s80(2) falls on an accused and is to be discharged on the balance of probabilities.
17.In the present case the accused’s application, in effect, for a stay and first argued for at the close of the prosecution case has been refused. It would have been refused even if decided on the basis that the prosecution carried the burden of proof to exclude any operation of s80(2) beyond reasonable doubt.
18.The fact that the application for a stay has been refused and that s80(2) raises, in effect, a matter antecedent to the trial or more strictly, antecedent to the right to prosecute, means that s80(2) will play no further role in these proceedings unless a fresh application for a stay of the prosecution of counts 1 and 2 is made. Such a fresh application may be made (if warranted on the evidence) before or after the accused presents any defence case but prior to any verdicts being delivered.
19.I will provide full reasons for some or all of the rulings I have just now delivered, to the extent that it may become necessary to do so.
Second Ruling
The accused has not discharged the burden on him of proving on the balance of probabilities
1.that he was bona fide in making his claim to a right to possession of C, and
2.that, at the times of any taking of C by him at the Port Pirie Medical Centre (count 1) and at the Playground (count 2) the accused was acting in the exercise of any such bona fide claim.
The accused’s (second) application for a stay of proceedings concerning count 1 and count 2 on the Information is refused for each of these two reasons. I will provide further reasons for this ruling should it become necessary to do so.