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R v Bruer

R v Bruer

Case [2011] SADC 184 5 December 2011

Offences Against the Person

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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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: R v Bruer [2011] SADC 184
Case: [2011] SADC 184
Decision Date: 5 December 2011

CaseChat Overview and Summary

The Federal Magistrates Court was presented with a case involving the accused, who faced multiple charges including abduction, assault causing harm, dangerous driving, and failure to comply with a bail agreement. The accused, a father, had twice taken his five-year-old daughter from her mother in contravention of orders issued by the Federal Magistrates Court under the Family Law Act 1975. These actions constituted the abduction charges. Additionally, the accused was charged with assault causing harm for an incident where he allegedly injured the child during one of these abductions. The dangerous driving charge stemmed from his attempt to evade police following one of the abduction incidents, while the failure to comply with bail charge pertained to his disregard of the court orders.

The court was tasked with determining the interpretation of certain terms and principles relevant to the charges, particularly in the context of the abduction allegations. This involved examining the meaning of "force" in the abduction context, the necessity of an intent to permanently deprive the mother of possession, and the availability of defences such as self-defence, defence of another, and a defence akin to a claim of right. The court had to decide whether these defences were applicable given the facts of the case.

In its reasoning, the court clarified that the term "force" in the context of abduction required more than mere physical force; it encompassed any form of coercion or compulsion. The intent to permanently deprive the custodial parent of possession was a critical element of the offence, and the court found that the accused's actions met this criterion. The court further determined that self-defence and defence of another were not viable defences in this scenario. Additionally, the court held that a defence analogous to a claim of right was not available either as a matter of law or on the facts presented. Consequently, the accused was found guilty on all counts.

The court's final orders included a conviction on all charges. The accused was sentenced to imprisonment for the abduction and assault charges, a fine for the dangerous driving offence, and additional penalties for the breach of bail conditions.

Orders