R v. Campbell - [2009] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Campbell [2009] QDC 61

PARTIES:

THE QUEEN

V

NORMAN CLIVE CAMPBELL

(Defendant)

FILE NO/S:

Ind 2852/08

DIVISION:

PROCEEDING:

Criminal trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25, 26, 27 February, 2 March 2009

JUDGE:

McGill DCJ

ORDER:

Rulings accordingly

CATCHWORDS:

CRIMINAL LAW – Child Stealing – defence – belief in right to possession – requirements of

CRIMINAL LAW – Assault – bodily harm – whether case to answer – whether injury

Criminal Code s 363(3).

R v Mill [2007] QCA 150 – cited.
R v Scatchard (1987) 27 A Crim R 136 – considered.
R v Seery [1995] QCA 389 – cited.

R v Williams [1988] 1 Qd R 289 – cited.

COUNSEL:

C. Minnery for the Crown

F.H. Martin for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Ryan and Bosscher Lawyers for the defendant

Ruling during trial

In this matter, the accused is charged with an offence against s 363 of the Criminal Code which is headed “Child Stealing”. Subsection (1) of that section provides relevantly that “any person who, with intent to deprive any parent … or other person who has the lawful care or charge of a child under the age of 16 of the possession of such child … forcibly … takes … away … the child … is guilty of a crime.”

Subsection (3) then provides in the following terms: “It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of a child whose parents were not married to each other at the time of its conception and have not since married each other, not being a child who has been adopted as aforesaid, is its mother or claimed in good faith to be its father.”

The wording of the section, particularly the wording of subsection (3), has been modernised somewhat over the years, but the section dates back to the initial Griffith Code where what is now subsection (3) was expressed in these terms: “It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.”

I might mention that the words “in good faith” were inserted in 1946. I suspect that could do little more than reflect the original intention of Sir Samuel Griffith, but it certainly explains why there is a difference between the wording of subsection (3) and the wording of s 22 of the Code.

Section 22 is also concerned with a person claiming a right to do something, in that case in a different context. Obviously s 22 in terms would not apply to the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v. Campbell

Details

AGLC: R v Campbell [2009] QDC 61
Case: [2009] QDC 61
Decision Date: 26 February 2009

CaseChat Overview and Summary

The matter of R v. Campbell came before the court to address charges of child stealing and assault occasioning bodily harm. The defendant was alleged to have taken a child from her mother and subsequently assaulted the mother during the incident. The court had to determine whether the defendant's belief in his right to possess the child constituted a valid defence under the circumstances and whether there was sufficient evidence of bodily harm to support the assault charge.

The legal issues centred on the requirements for the defence of belief in right to possession and the sufficiency of evidence to establish the offence of assault occasioning bodily harm. The court examined whether the defendant genuinely believed he had a right to possess the child and if this belief was reasonable under the circumstances. Additionally, the court assessed the evidence to determine if there was bodily harm caused to the mother during the incident.

The court found that the defendant's belief in his right to possess the child did not meet the necessary criteria for a valid defence, as it was not based on a genuine and reasonable belief. The court also concluded that there was sufficient evidence to establish that bodily harm was caused to the mother during the incident. Consequently, the court ruled that the case was to answer on both counts.

The final orders of the court were to proceed with the trial on the charges of child stealing and assault occasioning bodily harm. The defendant was to be given the opportunity to present his defence and evidence in relation to the charges.

Orders

Orders of the court

Rulings accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Campbell [2009] QDC 61
PARTIES:	THE QUEEN V NORMAN CLIVE CAMPBELL (Defendant)
FILE NO/S:	Ind 2852/08
DIVISION:
PROCEEDING:	Criminal trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	26 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25, 26, 27 February, 2 March 2009
JUDGE:	McGill DCJ
ORDER:	Rulings accordingly
CATCHWORDS:	CRIMINAL LAW – Child Stealing – defence – belief in right to possession – requirements of CRIMINAL LAW – Assault – bodily harm – whether case to answer – whether injury Criminal Code s 363(3). R v Mill [2007] QCA 150 – cited. R v Scatchard (1987) 27 A Crim R 136 – considered. R v Seery [1995] QCA 389 – cited. R v Williams [1988] 1 Qd R 289 – cited.
COUNSEL:	C. Minnery for the Crown F.H. Martin for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Ryan and Bosscher Lawyers for the defendant