R v Bruer (No 2)
[2011] SADC 190
•12 December 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUER (No 2)
Criminal Trial by Judge Alone
[2011] SADC 190
Reasons for Rulings of His Honour Judge Nicholson
12 December 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
At the close of the Crown case the accused brought an application that there was no case to answer on the basis that the accused fell within s80(2) of the Criminal Law Consolidation Act 1935 which, if applicable, conferred an immunity from prosecution for the offence of child abduction under s80(1). The application, as presented, was more in the nature of an application for a stay of the prosecution for abuse of process. Ultimately, two such applications were made; one dealing with the proper construction of s80(2) and the other dealing with the question of whether, following evidence given by the accused on the voir dire, the accused had satisfied the requirements of s80(2) so as to enliven the immunity from prosecution.
Held: Both applications and a stay of the prosecution refused.
Criminal Law Consolidation Act 1935 s76, s80(1), s80(1)(a), s80(2); Criminal Law Consolidation Act 1876 s76; Criminal Law Consolidation Amendment Act 1976 s19; Offences Against the Person Act 1861 (UK) s56; Crimes Act 1956 (Vic) s63; Criminal Code Act 1899 (Qld) s363; Criminal Code Compilation Act 1913 (WA) s343; Family Law Act 1975 (Cth); Criminal Law Consolidation Act Bill 1935 (SA); Acts Interpretation Act 1915 (SA) s22(1); Copyright Act 1968 (Cth), referred to.
R v Bruer [2011] SADC 184; R v Austin (1981) 72 Cr App R 104, [1981] 1 All ER 374; R v Campbell [2009] QDC 61; R v Bober (No 3) [2010] SASC 31; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Mills v Meeking (1990) 169 CLR 214; Birch v South Australia (1998) 71 SASR 12; Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 449; Al-Kateb v Godwin (2004) 208 ALR 124; Duggan v Parramore (1993) 2 Tas R 442; Parramore v Duggan (1994) 4 Tas R 64; Re Davis (1947) 75 CLR 409; Registrar General v Harris [1998] NSWSC 449; Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372; Vines v Djordjevitch (1955) 91 CLR 512; Archibold’s Criminal Pleading, Evidence and Practice 41st ed (1982); Textbook of Criminal Law, Stevens & Sons 1978; Statutory Interpretation in Australia 7th ed Lexis Nexis, considered.
R v BRUER (No 2)
[2011] SADC 190Introduction
In R v Bruer[1] I published verdicts and reasons following a trial by judge alone. I found the accused guilty of a number of offences, including two counts of abduction of a child under 16 contrary to s80(1) of the Criminal Law Consolidation Act 1935. At the close of the prosecution case, the accused made an application that there was no case to answer with respect to the two counts of abduction. With respect to the first count, the accused maintained that the Crown had failed to adduce any or any sufficient evidence that the taking of the child in question by the accused was “by force” in the sense as required by s80(1)(a) of the Criminal Law Consolidation Act. This aspect of the application was refused. It is not necessary to provide further reasons for this aspect of the ruling; the basis upon which the application was refused in this respect is to be inferred from the extensive reasons given in the principal judgment as to the meaning of the term “by force” and the analysis of the evidence adduced by the Crown relevant to that issue, contained in the principal judgment.
[1] [2011] SADC 184.
However, the accused also 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 had been engaged. Sub-sections 80(1) and 80(2) are in the following terms.
80(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 . . .
(1a) . . .
(2)This section does not render liable to prosecution any person who, in the exercise of any bona fide claim to the right to possession of a child, whether as the mother or father of the child or otherwise, obtains possession of the child or takes the child out of the possession of any person having the lawful charge of the child.
Ultimately, I heard two applications; one raising, solely, a question of the proper construction of s80(2) and then a second application based on evidence given by the accused on the voir dire.[2] I rejected both applications and in so doing indicated that s80(2) would have no further role to play in the trial. I indicated that I would provide reasons for the two rulings should it become necessary to do so. These are those reasons.
[2] When the defence opened its case and went into evidence counsel for the accused and counsel for the prosecution both agreed that this evidence of the accused on the voir dire was also before me as evidence in the cause. See T588.
At the conclusion of the first argument, I ruled that s80(2) did not operate by way of a defence to a charge brought under s80 but rather by way of a proviso or an immunity from prosecution. I further ruled that the appropriate application to be brought in reliance on s80(2) was in the nature of an application for a stay of the prosecution for abuse of process and that any such application, ordinarily, would be brought prior to arraignment of the accused in accordance with Rule 8 of the Joint Criminal Rules. I further ruled that there was no onus on the Crown to exclude beyond reasonable doubt the operation of circumstances said to enliven the immunity in s80(2); rather, that the accused carried the onus of proving that he fell within its terms on a balance of probabilities.
This first application was brought on the basis that, because the accused was the father of the child he had taken, for this reason alone, on the proper construction of s80(2), he was not liable to prosecution. I ruled against this contention on the basis that even a father had to satisfy the “bona fide claim” requirement.
The second application was brought immediately after I ruled on the first application and was based on evidence given by the accused on the voir dire aimed at persuading the court that the accused, in fact, was exercising a bona fide claim to the right to possession of the child at the time she was taken from the possession of her mother. The two rulings were in the following terms.
First Ruling
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.
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.
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).
It is the accused’s contention that this follows as a matter of a proper statutory construction of s80(2).
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.
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).
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.
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.
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.
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.
Whether or not s80(2) is engaged in a particular case will depend upon the evidence that comes before the court.
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.
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.
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.
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
that he was bona fide in making his claim to a right to possession of C, and
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.
Reasons for First Ruling
In the context of the present litigation s80(2) gives rise to two basic issues; first, what is it that must be demonstrated or established before a person can claim its protection and second, where does the burden of proof lie and what is the standard of proof. As far as this second issue is concerned, does s80(2) operate by way of defence or as an exception to an element of the offence such that the Crown would bear the burden of excluding its operation, that is, the burden of proving beyond reasonable doubt that the accused does not fall within its terms or does s80(2) operate in the nature of an immunity from suit or a proviso such that the accused bears the burden of establishing, on the balance of probabilities, that he satisfies its requirements?
The Meaning or Proper Construction of the Sub-Section
The literal and ordinary reading of s80(2) is that for a person to be immune from prosecution that person must,
(i)obtain possession of the child or take the child out of the possession of the person having the lawful charge thereof,
(ii)in the exercise of,
(iii)a bona fide claim to the right to possession of that child,
(iv)whether as the mother or father of the child or otherwise [emphasis supplied].
In other words, for the accused in the present case to enjoy the benefit of the sub-section and notwithstanding that he is the father of the child in question, he must at the time that he took possession of the child have been exercising a bona fide claim to the right to possession of the child. According to the literal or ordinary meaning of the sub-section, simply being the father is not enough.
The question arises as to whether this literal and ordinary meaning was the one intended by the legislature and is the one to be applied on the proper construction of the sub-section. In my first ruling I gave, in effect, an affirmative answer to this proposition. The effect of the second ruling was that notwithstanding that the accused was the father of the child he had not persuaded the court that he was, in fact, bona fide in making a claim to a lawful right to possession of the child and that, at the time of each taking, he was not acting in the exercise of each such bona fide claim.
The accused submitted that the literal and ordinary reading of s80(2) should not be applied and referred the court to some of the history behind the enactment of s80(2) in its present form. By way of background to that submission it is of interest to note the position in some other jurisdictions.
The formulation of the immunity presently in force in South Australia (s80(2)) is different from an earlier formulation applicable in this state and different from some contemporary analogues in other jurisdictions. It is arguable that the current South Australian formulation, if given its literal and ordinary meaning, renders it more difficult for an accused to come within its terms than in the case of the earlier formulation in this state and in the case of some of the analogues in other jurisdictions.
The version of the child stealing offence and proviso applicable in South Australia in 1876 was as follows.[3]
Whosoever shall unlawfully, either by force . . . take away . . . any child under the age of 14 years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child, of the possession of such child, or . . ., shall be guilty of a felony, and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding seven years, with hard labour: Provided that no person who shall have claimed any right to possession of such child, or shall be the mother, or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof, on account of the getting possession of such child, or taking such child out of the possession of any person having the lawful charge thereof.
The proviso, as set out above, remained unchanged in South Australia until 1935[4] at which time the offence of child stealing was re-enacted in materially the same terms but with the proviso being re-enacted in different terms as follows.
(2) This section shall not render liable to prosecution any person who, in the exercise of any bona fide claim to the right to possession of any child, whether as the mother or father of a child which is illegitimate, or otherwise, obtains possession of any child or takes such child out of the possession of any person having the lawful charge thereof.
This formulation was further amended in 1976[5] to remove the phrase “which is illegitimate”. It can be seen that, whereas in 1876 the person entitled to the benefit of the proviso was any person who claimed a right to possession of the child or the mother or a person claiming to be the father of an illegitimate child, in the 1935 formulation, in its literal and ordinary meaning, the person entitled to the benefit of the proviso, whether claiming as mother or father of an illegitimate child, must have been exercising a bona fide claim to the right to the possession of the child.
[3] Criminal Law Consolidation Act 1876, s76.
[4] Criminal Law Consolidation Act 1935, s80(2).
[5] Criminal Law Consolidation Amendment Act 1976, s19.
The 1876 formulation including, in particular, the proviso, is in materially the same terms as that which applied in the United Kingdom until at least 1982.[6] The 1876 formulation including, in particular, the proviso, is still in place in Victoria,[7] Queensland,[8] and Western Australia.[9] However, the formulations in these other jurisdictions vary as to whether the proviso is described as operating to prevent such a person being liable to prosecution[10] or as a defence.[11]
[6] Offences Against the Person Act 1861 (UK) s56, R v Austin (1981) 72 Cr App R 104; [1981] 1 All ER 374 and see generally Archibold’s Criminal Pleading, Evidence and Practice 41st ed (1982) at 1594ff.
[7] Crimes Act 1956 (Vic) s63.
[8] Criminal Code Act 1899 s363.
[9] Criminal Code Compilation Act 1913 s343.
[10] For example UK and Victoria.
[11] For example Queensland and see R v Campbell [2009] QDC 61 and Western Australia.
I accept there is an argument that any prosecution of the accused for the child stealing offence, as presently available in Victoria, Queensland and Western Australia or as available in the United Kingdom until at least 1982 and in this state prior to 1935, would fail. I accept that in the United Kingdom prior to at least 1982, in Victoria today and in this state prior to 1935, such an accused may have been found not liable to prosecution and that in Western Australia and Queensland such an accused may have been entitled to a statutory defence, in each case merely because of his status as father of the illegitimate child taken. I have said that these matters are arguable. However, I have not formed a concluded view in these respects.
It is a short step, so the argument goes, to reason that historically the child stealing offence was not intended to embrace a parent, by virtue of that status, and whether or not, in fact, exercising a bona fide claim to the right to possession of the child. Nevertheless, the traditional formulation of the proviso is curious. Professor Glanville Williams has observed,[12]
the section makes claim of right a defence,[13] and there is clumsy wording appearing to express an intention to exempt parents from the prohibition in case of matrimonial disputes. [The section excludes the father of an illegitimate child, and also the mother (though whether all mothers or only the mother of an illegitimate child it fails to make clear) probably it was intended to exclude all fathers, legitimate fathers not being thought needful of mention (HK Bevan, The Law Relating to Children (London 1973) 202-203), and similarly all mothers. . . .] When parents fall out, and one or other of them spirits away the child, the matter is dealt with as an incident in custody proceedings.
The learned author went on to discuss the applicable remedies in England including the issue of a warrant for the arrest of such a parent by a judge in chambers, an application for habeas corpus and so on.
[12] Textbook of Criminal Law, Stevens & Sons, 1978 at 180.
[13] In this respect the English Court of Appeal, Criminal Division took a different view and did not deal with the proviso by way of “defence” in the decision of R v Austin delivered after the publication of this edition of the textbook (this footnote supplied).
The argument of the accused is consistent with the view, sometimes expressed, that as a matter of policy, the conduct of the accused in the present case which essentially involved the taking of his child out of the possession of her mother contrary to orders made by the Federal Magistrates Court pursuant to the Family Law Act 1975 and contrary to the terms of a domestic violence restraining order issued, ex parte, by a local Magistrates Court, should be dealt with not as a matter of criminal law but, through enforcement proceedings under the Family Law Act and, perhaps, contempt of court proceedings.[14] Nevertheless, s80(1) provides for a serious criminal offence and notwithstanding the rights or wrongs of any such policy, if the charge has been proved and the father of the child in question is amenable to prosecution, a court hearing the matter must say so.
Who is Entitled to the Protection?
[14] See R v D [1984] AC 778 and Carter’s Criminal Law of Queensland, loose leaf service, at p3292.
Counsel for the accused in the present matter submitted that s80(2) should be construed to achieve the same result as counsel submitted would have been obtained in this state prior to 1935.
Counsel submitted that under the 1876 Act the accused could not have been prosecuted because he was a person who claimed to be the father of the illegitimate child. It was further submitted that the intention of parliament when it repealed the 1876 Act and replaced it with the Criminal Law Consolidation Act 1935 was not to alter the law as it had previously existed; the Criminal Law Consolidation Act 1935 was simply a consolidating measure. Counsel for the accused made reference to the parliamentary debates conducted prior to the passage of the consolidating Act. It was further submitted that the court should adopt a purposive approach when interpreting legislation and that the Hansard Debates as well as the legislative history of a provision can be used in determining the purpose of the legislation.[15]
[15] Reference was made to R v Bober (No 3) [2010] SASC 31 at [17] and [18] and K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [51] to [53].
I accept from a reading of the relevant Parliamentary Debates[16] that the common understanding of those parliamentarians engaged in the debate concerning the proposed passage of the Criminal Law Consolidation Act Bill of 1935 included the following.
(i)The preparation of the Bill “involved a good deal more than the mere use of scissors and paste”. It was necessary to re-write very considerable portions of the law “so as to remove archaic forms of expression whilst retaining the substance of the law”.
(ii)A purpose of the measure was to avoid the need for the judiciary and the Bar to search through a dozen or more Acts in order to find the substance of the statute law relating to ordinary crimes and to have all of the relevant law and any amending law located in the one place rather than scattered throughout legislation to which a person would not naturally look for an amendment to the criminal law.
(iii)Being purely a consolidating measure, the Bill was not dealt with in terms of the ordinary committee stages of review as part of the parliamentary process but was referred to the joint committee on consolidations which prepared a report on the whole of the Bill for the parliament.
(iv)On the basis of assertions made that “being purely a consolidating measure the Bill makes no alteration of the law”, no object was served in providing an opportunity to the parliament to amend the proposed consolidation Bill.
[16] Parliamentary Debates, House of Assembly, November 1935 1545-1546, December 3 1935 1851-1852, 1855 and 1893-1894.
I start with s22(1) of the Acts Interpretation Act 1915 (SA) which provides as follows.
(1) Subject to sub-section (2) where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that person or object.
Sub-section (2) provides that ss(1) is not to operate to create or extend any criminal liability. This would appear not to have relevance to the present enquiry because, if anything, the defence is relying on s22 and a purposive approach to the construction of s80(2) to, in effect, limit any potential criminal liability.
The law as to whether ambiguity is required before s22(1) can be applied is not finally settled.[17] However, any purposive interpretation cannot prevail over clear unambiguous words in the statute.[18] Nevertheless, it would seem that the adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[19] The use of extrinsic materials was considered by French CJ in K-Generation v Liquor Licensing Court[20]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.
(Footnotes and citations omitted).
[17] See Mills v Meeking (1990) 169 CLR 214, Birch v South Australia (1998) 71 SASR 12 and Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 449.
[18] Al-Kateb v Godwin (2004) 208 ALR 124.
[19] R v Bober (No 3) [2010] SASC 31 at [14].
[20] (2009) 237 CLR 501 at [51] to [52].
In my view, the injunction to employ a purposive approach and the availability of extrinsic materials such as Hansard to assist in the present endeavour can only be of limited assistance. There is nothing in the Parliamentary Debates that bears on the mischief directed at by, or the statutory purpose behind, s80 of the Criminal Law Consolidation Act 1935 apart from the expressions of intention concerning the nature of the whole Act, that is, as a consolidating measure.
As I have already indicated there is a literal and ordinary meaning of the words used in s80(2) that runs counter to the defence contentions. It is an open question as to whether this was an unintended by-product of the consolidation process or whether the terminology employed in the 1935 Act was deliberately employed by the draftsmen and adopted by the parliament as intended to express the then understood purpose or application of the original formulation of the proviso set out in the 1876 Act. Under the 1876 formulation the father of a legitimate child or the guardian of a ward obtained protection because such a person fell within the proviso as being a person who “claimed a right to the possession of the child”. It is unlikely that the mother or a person claiming to be the father of an illegitimate child was intended to have a greater right to the proviso than a father who claimed a right to possession. In other words, notwithstanding that the original formulation used the term “or shall be the mother, or shall have claimed to be the father of an illegitimate child” the expectation must have been that such a person was claiming, in that capacity, a right to possession.
I return to the notion of a consolidating Act. This type of Act has been helpfully explained by DC Pearce and RS Geddes.[21]
These are Acts which come together and combine in one Act all other Acts in force relating to a particular topic. Since the earlier Acts are superseded, they may then be repealed, thereby reducing the size of the statute book and making it unnecessary for a person to search through many different Acts for the legislative pronouncements on the subject. A consolidating Act is passed by the legislature in the same way as any other Act, but being a mere re-statement of the existing law, it will normally have its passage expedited, with the debate limited to the desirability or otherwise of the particular law being subjected to consolidation. However, it is possible for changes in the previous law to be made in a consolidating Act and it must therefore not be too readily assumed that the Act is only a convenient re-instatement of the previous position . . .
[21] Statutory Interpretation in Australia 7th ed Lexis Nexis at [1.22].
Where two constructions are open under one of which a consolidating Act is read to make an amendment to the law while under the other it would appear to confine the Act to its professed purpose of consolidation only, ordinarily, the court will adopt the construction which confines the Act to its purpose of consolidation.[22] However, as Pearce and Geddes observed, if the Act itself speaks so plainly that it is clear from its terms that parliament has exercised its power of amending the law, the presumption will be displaced.[23]
[22] Duggan v Parramore (1993) 2 Tas R 442 at 454-5, Parramore v Duggan (1994) 4 Tas R 64 at 73, Re Davis (1947) 75 CLR 409 at 429 and Registrar General v Harris [1998] NSWSC 449 and see generally Pearce and Geddes at [8.2].
[23] Pearce and Geddes at [8.2] and authorities there cited.
Ordinarily the law is to be determined as at the date of the consolidating Act (in this case 1935).[24] The question has arisen as to whether it is possible for the court to examine the Acts consolidated when the meaning of the consolidated Act is clear. The authorities have provided conflicting answers to this question.[25]
[24] Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 at 383 per Isaacs J.
[25] See Pearce and Geddes at [8.4]–[8.5] and the authorities there cited.
In my view the meaning and effect of s80(2) is so clear that even after having regard to the earlier formulation in 1876 and the parliamentary debates prior to the passage of the Criminal Law Consolidation Bill of 1935, this meaning ought to be adopted as representing the intention of parliament. In this respect I have been guided by other principles of statutory construction, and in particular the principle that all words are to be given meaning and effect and are not to be treated as superfluous or insignificant. This principle is said to be more compelling where the word or phrase in question has been added by amendment.[26] In my view, the language of s80(2) is intractable in this sense. There has been a clear decision by the drafter of the legislation to change the wording in three ways; to replace the word “or” with the phrase “whether as”, to include, perhaps only ex abundanti cautela, the requirement that the claim to the right to possession be bona fide and to state explicitly that the taking of the child must be “in the exercise” of that bona fide claim. The modern formulation expressly requires any accused, no matter their formal status, to pass through the gateway of exercising a bona fide claim to the right to possession of a child. In my view, this is likely to have been the practical effect, whether or not the strict legal effect, of the law in its earlier formulation and the drafter of the 1935 Criminal Law Consolidation Bill intended no change in practice.
[26] See Pearce and Geddes at [2.26].
To find for the accused on this point of statutory construction would serve to give the deliberate use of the phrases “whether as” and “in the exercise of” no work to do. There was no reason to modernise the language in these respects or to remove any former archaic expressions. These two changes to the original formulation must have been done with the full knowledge of the drafter, as to their meaning and effect. As such, whilst parliament, as can be discerned from the Parliamentary Debates, envisaged that the consolidating statute as a whole was simply intended to reproduce existing law, it should be seen to have given effect to the literal and natural reading of the proviso in its new terms.
The essence of the protection offered in the original formulation turned on the fact that the person seeking the protection was making a (by implication, bona fide) claim to the right to possession of the child. I am not at all persuaded that this was not also so even in the case of the mother and a person claiming to be the father of an illegitimate child. That essence has not changed with respect to the current formulation.
It was for these reasons that I ruled against the accused’s contention that the mere fact that he was the father of the child whom he took was sufficient to enliven the protection offered by s80(2) but instead that the words “in the exercise of any bona fide claim to the right to possession” had work to do independently of and had to be satisfied in addition to, the fact that the accused was the father.
Burden of Proving Facts Necessary to Engage the Immunity
The protection for a person claiming a right to possession of the child as originally enacted in 1876, was in the form of a proviso. The modern formulation in s80(2) is not expressly stated to be in the nature of a proviso. In the modern formulation the protection has been removed from the statement of the offence itself and has been included in a separate sub-section. Nevertheless, the same legal effect of coming within the protection is maintained. Both the original formulation and the formulation in s80(2) provide that a qualifying person shall not be liable to be prosecuted.[27]
[27] In the 1876 formulation – “no [such] person . . . shall be liable to be prosecuted” and in the s80(2) formulation – “this section does not render liable to prosecution any [such] person . . .”.
Historically, a distinction has been drawn between the use of the term proviso and the term exception but in modern days the distinction depends not on the form or language used but on substantial considerations. That distinction, where it is drawn, can have the effect of determining the party on whom the burden of establishing the circumstances said to enliven the protection will fall. In Vines v Djordjevitch[28] the High Court said this.
. . . There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not - . . .. The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter . . ..
(Citations omitted).
[28] (1955) 91 CLR 512 at 519-520 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ).
In my view, s80(2) does express an exculpation “which assumes the existence of the general or primary grounds from which the liability . . . arises but denies the . . . liability in a particular case by reason of additional or special facts”.[29] The protection offered in s80(2) is not one that purports to qualify any of the elements of the offence in s80(1). Sub-section 80(2) only has work to do in the case where a person, save for s80(2), will have committed the offence under s80(1). The legislature, whilst acknowledging that an offence might, in fact and law, have been committed, has provided that persons who fall within specified circumstances are not to be prosecuted for that offence. A principle of liability which is to apply generally has been laid down but the legislature has gone on to provide for a special exculpation depending upon new or additional facts.
[29] This is consistent with the approach taken by the Court of Appeal, Criminal Division in R v Austin (1981) 72 C App R 104 at 109 where Watkins LJ speaking on behalf of the court observed “undoubtedly [the father] could probably have claimed a right to possession to the child and so have gained the protection of the proviso. What would have been the effect of that? The effect would have been that, although he had committed the offence of child stealing, because he was the child’s father and could claim a right to possession of the child, he would not have been prosecuted.”
It was for these reasons that I ruled that the defence assumed the burden of proving the additional or special matter necessary to enliven the protection from prosecution provided for in s80(2). I also ruled, in accordance with general principle where an accused, as here, carries a burden of proof, that it was to be discharged only on the balance of probabilities.
It followed and the effect of my first ruling was, that in order to obtain the benefit of s80(2) the accused carried a burden of proving on a balance of probabilities that at the time the accused took his child from the possession of her mother, the accused did so, “in the exercise of [a] bona fide claim to the right to possession of [the child]”.
Reasons for Second Ruling
Immediately after the accused’s first application for a stay based on questions of construction of s80(2) was refused counsel for the accused made a second application on the basis of evidence given by his client on the voir dire aimed at persuading the court that he, in fact, had been exercising a bona fide claim to the right to possession of his child at the time he took her. After hearing this evidence and hearing submissions from both counsel I ruled in the terms of the second ruling set out earlier in these reasons.
During his evidence, the accused maintained that each time he took his daughter out of the possession of the mother, he believed his actions to be lawful. He said, in effect, that there had been no valid alteration or denial of his ordinary right, as father, to the possession of his daughter. He also said that he relied on rights conferred on him under the Copyright Act 1968 (Cth) which overrode the Family Law Act 1975 (Cth) and that the extant Federal Magistrate Court orders, of which he was aware, “were more of a statement than an order, effected by corruption.”[30] When asked if he believed these orders to be lawful he said “not entirely, no, not at all, effected by corruption”.[31]
[30] At T506.
[31] T507.
When asked on another occasion why he believed his behaviour was lawful he answered[32] “because she’s my child. I have got the title on her and the mother is incompetent”.
[32] T513.
I also had before me at the close of the voir dire a number of the aspects of the accused’s evidence identified and discussed in the principal judgment including, for example, those at paragraphs [39], [40], [44](iii), (iv), (vi) and (vii) and [45](iii), (vii), (viii), (ix), (x), (xi), (xii) and (xiii). I was also in a position to and able to make the findings about the accused generally that are articulated in paragraphs [39] to [41] of the principal judgment. In addition, the following exchange occurred during the accused’s evidence on the voir dire,[33]
QIs this your evidence, that because SB wouldn’t speak to you about why C was at the hospital, you said something to her along the lines of “fine, let’s do it my way”.
AYep.
QSo you made a decision, did you, because SB wouldn’t tell you what was apparently wrong with C that you would take C from the hospital.
AFrom the waiting area, yeah. She wasn’t actually admitted to the hospital, she was in a public area.
(Emphasis supplied).
[33] At T522.7 to T522.16.
At the conclusion of the accused’s evidence on the voir dire and after hearing from counsel I was satisfied that, as a matter of fact and law, the accused had no lawful right to possession of his daughter at the time he took her away from her mother, given the terms of the extant Federal Magistrates Court orders. The Crown submitted that for s80(2) to apply two matters needed to have been satisfied by the accused:
(i)the accused must, in fact and law, have a lawful right to possession; and
(ii)the accused must have been exercising a bona fide claim to that lawful right.
As such, the Crown submitted that the accused’s application must fail whatever his true belief. He had no lawful right and therefore could not be regarded as acting in exercise of a bona fide claim to a lawful right. As counsel put it,[34]
the fact that the accused disagrees as to the status of his lawful right to possession is immaterial . . .. The immunity arises only where a person has a lawful right to possession and, exercising a bona fide claim to that right, the person acts in furtherance of the same.
In the alternative, the Crown submitted that the court should not be satisfied on a balance of probabilities that the accused acted in a bona fide manner.
[34] T570.24ff.
At the time of making my ruling, whilst I was inclined to accept the Crown’s primary submission as a matter of statutory construction, I did not form a concluded view to this effect and I did not rule on that basis. In the circumstances, it is unnecessary that I proceed to reach a final view on this issue now.
However, I accepted the Crown’s alternative submission. 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 justifying behaviour which is contrary to the clear terms of the law such as the Federal Magistrates Court orders in this case. At the close of the accused’s evidence on the voir dire I examined the whole of his evidence with care. I was not at all persuaded that he was genuine in expressing his belief in a lawful entitlement to take possession of C.
There is no doubt that the accused disagreed with the merits of the orders that had been made against him and with the basis upon which they appeared to him to have been made. Nevertheless I was not persuaded that the accused was telling the truth as to his understanding of the legal position following the making of the Federal Magistrates Court orders. I was not persuaded that the accused did in fact have a bona fide belief that is, a good faith or honestly held belief that, at any material time after the making of those orders, he had a lawful right to the possession of C. From very early in the accused’s evidence it became apparent that the accused simply refused to accept and abide by the authority of the Federal Magistrates Court and the validity of its orders.
It was for these reasons I ruled that the accused had failed to discharge the burden of proving on a balance of probabilities that he was bona fide in making a claim to a lawful right to possession of C and that, at the times of the taking of C, he was acting in the exercise of any such bona fide claim.
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