R v DMC

[2002] NSWCCA 513

Reported Decision: 137 A Crim R 246

New South Wales

Court of Criminal Appeal

CITATION:	Regina v. DMC [2002] NSWCCA 513
FILE NUMBER(S):	CCA 60443/02
HEARING DATE(S):	12 December 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Regina - Crown/respondent DMC - appellant
JUDGMENT OF:	Hodgson JA at 1; Hulme J at 47; Hidden J at 48

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/41/0042
LOWER COURT JUDICIAL OFFICER :	Andrews ADCJ

COUNSEL :	Mr. H. Dhanji for appellant Mr. D. Frearson for respondent/Crown
SOLICITORS:	D.J. Humphreys for appellant S.E. O'Connor for respondent/Crown
CATCHWORDS:	CRIMINAL LAW - Assault - Whether physical contact an ordinary incident of social intercourse - Whether consent must be to particular contact or may be implicit and general - Whether prosecution must prove lack of belief in consent - CRIMINAL LAW - Kidnapping - Whether intention to hold must be intention to hold irrespective of the willingness or consent of the victim.
LEGISLATION CITED:	Crimes Act 1900 (NSW) s.90A (now repealed)
CASES CITED:	Boughey v. The Queen (1986) 161 CLR 10 Donnelly (1997) 96 ACrimR 432 DPP v. Rogers [1953] 2 AllER 644 Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439 Fitzgerald v. Kennard (1995) 38 NSWLR 184 R v. Bonora (1994) 35 NSWLR 74 R v. Kuckailis [2001] NSWCCA 333
DECISION:	Appeal allowed and the appellant's convictions on counts 4 and 5 quashed.

CCA 60443/02
DC 02/41/0042

HODGSON JA
HULME J
HIDDEN J

Friday 20 December 2002

REGINA V. DMC

HEADNOTE

Facts
The appellant was charged with four counts of assault and one count of detaining with the intent to hold for advantage (kidnapping) under s90A of the Crimes Act. The complainant was the appellant’s daughter and the first three counts of assault concerned incidents occurring during the period the complainant lived with the appellant. Following these incidents the complainant went to live with her aunt and an Apprehended Violence Order was taken out prohibiting the appellant having contact with the complainant. The fourth count (kidnapping) and fifth count (assault) concerned an occasion when the appellant gained access to the apartment where the complainant was staying and took her away, grabbing her by the wrist in the process. The jury returned verdicts of guilty on the fourth and fifth counts but was unable to reach a verdict on the other three.

The appellant appealed from the convictions. Counsel for the appellant submitted that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of ordinary social intercourse and that the directions on both counts in relation to consent were deficient. The Crown Prosecutor submitted that the circumstances were such that there was no real issue as to consent.

Held: per Hodgson JA (Hulme and Hidden JJ agreeing)
Count 5
1. It was open to the jury to find that the grabbing of the complainant’s wrist was not an ordinary incident of social intercourse, that it was not consented to and that the appellant did not believe it was consented to; but it is not correct to say that there was no real issue as to these matters.

2. The directions given to the jury were deficient as they failed to draw the jury’s attention to the need to find each of these matters beyond reasonable doubt or to the possibility that consent may be implied.

Count 4
3. ‘Intent to hold’ implies a requirement that accused intends to hold the victim irrespective of whether the victim consents to being with the accused, and the directions did not squarely put this to the jury.

Orders
1. Appeal allowed
2. Convictions on counts 4 and 5 quashed

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CCA 60443/02
DC 02/41/0042

HODGSON JA
HULME J
HIDDEN J

Friday 20 December 2002

REGINA V. DMC

Judgment

1 HODGSON JA: On 18 June 2002, the appellant was indicted before his Honour Acting Judge Andrew at the Wollongong District Court on the following counts:

Count 1: That he between 6 and 13 August 2001 at Fairy Meadow in the State of New South Wales did assault [S].
Count 2: That he on 14 October 2001 at Fairy Meadow in the State of New South Wales did assault [S] thereby occasioning to her actual bodily harm.
Count 3: That he on 14 October 2001 at Fairy Meadow in the State of New South Wales did assault [S].
Count 4: That he on 16 November 2001 at Wollongong in the State of New South Wales did detain [S] with intent to hold her for his own advantage.
Count 5: That he on 16 November 2001 at Wollongong in the State of New South Wales did assault [S].

2 The appellant pleaded not guilty to all counts and was tried before the judge and a jury of twelve. The appellant was self-represented.

3 On 4 July 2002, the jury was unable to return unanimous verdicts in respect of counts 1, 2 and 3. The jury returned with verdicts of guilty in respect of counts 4 and 5.

4 On 21 August 2002, the appellant was sentenced as follows:

Count 4: Imprisonment for twelve months, to commence on 30 August 2002 and to expire on 29 August 2003, with a non-parole period of nine months, to expire on 19 May 2003, such sentence to be served by way of periodic detention.
Count 5: Section 9 Crimes (Sentencing Procedure) Act 1999 recognisance for twelve months with conditions.

5 The appellant appeals to this Court from his convictions on counts 4 and 5.

FACTUAL BACKGROUND

6 The complainant in each case is the appellant’s daughter, born on 16 October 1986. She is one of three children of the appellant and his wife, the other two being an elder son and a younger daughter.

7 In 2000, the family had a three month round-Australia trip which concluded in September of that year. Following that trip, conflict developed within the family, and in about July 2001 the appellant’s wife left the family home along with the son. The arrangement was made between the appellant and his wife that the two daughters should live with the appellant during the week and with their mother at weekends. Both the appellant and his wife were in full-time employment.

8 Over the period between about September 2000 and August 2001, the appellant was increasingly concerned about the behaviour of the complainant. Among other perceived problems, the complainant was missing periods and days off school, and telling lies to her parents about her activities. She was disciplined by the appellant by “grounding”, but she continued to truant from school.

9 The complainant truanted from school on 6 and 7 August 2001. When she returned home on 7 August 2001, the appellant raised the issue of truanting with her, and hit her a number of times. This incident was the subject of count 1. There was a dispute concerning the implement used: the complainant said it was a hockey stick, the appellant said it was an eggflip. The appellant’s defence was that he used no more than appropriate force to discipline the complainant.

10 On 15 October 2001, at night, the complainant was in her bedroom, fully clothed because she was thinking of sneaking out. The appellant found her, hit her with a hair brush and cut her hair short. The hitting with a hair brush was the subject of count 2, and the cutting of the hair the subject of count 3. There was dispute as to the circumstances of these events, and again the substantive defence was that the appellant claimed to have used no more than appropriate force to discipline his child.

11 The complainant then went to live with her aunt, the sister of the appellant’s wife, and a person with whom the appellant for a long time had been on very bad terms. On 19 October 2001, an Apprehended Violence Order was taken out prohibiting the appellant from having contact with the complainant.

12 On the morning of 16 November 2001, the appellant went to the aunt’s address with his younger daughter, then aged 8, and gained entry to the common area of the block of flats in which the aunt had a flat by posing as an electrician. The younger daughter than pressed the intercom button for the aunt’s flat, and spoke to the complainant, telling her she had a birthday present for her. The complainant went to the front door and gave her sister a hug. Then the appellant appeared, grabbed the complainant by the wrist, and told her to come with him and to grab his jumper. They went to the appellant’s car, and the appellant drove the complainant and his daughter to various places, including a property which the appellant had purchased and the homes of some friends. In the late afternoon, the appellant spoke to police and made arrangements to bring the complainant to the police station. He did so and was arrested.

13 Count 4 related to the alleged detaining of the complainant on that day, and Count 5 to the incident when the appellant grabbed the complainant by the wrist. The nature of the appellant’s defence to counts 4 and 5 was less clear than it might have been if the appellant had been legally represented. However, I think it appears from his evidence and submissions that his substantive defence to count 4 was to the effect that the complainant came with him willingly and that the purpose of his actions was not to gain any advantage for himself but to get the complainant “back on track”. His defence to count 5 was in substance to the effect that he did not hold her wrist firmly, and that the complainant was willing to accept this contact and to come with him.

14 The appellant relied on the following grounds of appeal:

1. The verdict in relation to Count 5 was unreasonable and cannot be supported having regard to the evidence on the basis that the Crown case did not disclose an assault.

2. A miscarriage of justice was occasioned by the failure of the trial judge to properly instruct the jury as to the elements of assault, in that the trial judge failed to instruct the jury that they must be satisfied that the contact was other than an ordinary incident of social intercourse.

3. A miscarriage of justice was occasioned by the failure of the trial judge to properly instruct the jury as to the elements of assault, in that the trial judge failed to instruct the jury that they must be satisfied that the appellant knew that the complainant was not consenting to the physical contact, or was, at least reckless as to whether the complainant was consenting to the physical contact.

4. A miscarriage of justice occurred as a consequence of the failure of the trial judge to clearly instruct the jury that the Crown must prove that the complainant did not consent to the contact at the time that the contact was made.

5. A miscarriage of justice was occasioned by the failure of the trial judge to properly instruct the jury as to the elements of Count 4, the kidnapping charge, in that the trial judge instructed the jury they could be satisfied of this matter if they were satisfied the appellant took, led or enticed away the complainant, whereas the charge brought against the appellant was one of detaining the complainant.

6. A miscarriage of justice was occasioned by the failure of the trial judge to instruct the jury in relation to Count 4 that the complainant was not consenting.

7. A miscarriage of justice was occasioned by the failure of the trial judge to instruct the jury in relation to Count 4 that the appellant was aware that the complainant was not consenting or was at least reckless as to whether she was consenting or not.
8. A miscarriage of justice was occasioned by the failure of the trial judge to exclude evidence of an admission allegedly made by the accused.

9. A miscarriage of justice was occasioned by the failure of the trial judge to warn the jury not to use the appellant's admission that his actions may not have been legally right as an admission of guilt of any of the offences.

15 It is convenient to deal first with grounds 1-4 (relating to count 5) and then grounds 5-9 (relating to count 4).

COUNT 5
Submissions

16 Mr. Dhanji for the appellant submitted in relation to ground 1 that the Crown relied on an alleged battery, which requires actual intended use of unlawful force to another person without that person’s consent: Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439 at 444. Non-hostile acts, such as patting another on the shoulder to attract attention, if committed inoffensively, are ordinary incidents of social intercourse and not battery: Boughey v. The Queen (1986) 161 CLR 10. Mr. Dhanji submitted that there was no evidence on which the jury could be satisfied that this contact was other than an ordinary incident of social intercourse: cf. DPP v. Rogers [1953] 2 All ER 644.

17 In relation to ground 2, Mr. Dhanji referred to directions given to the jury in relation to this assault charge. First, he gave the following instruction as to the elements of assault:

The elements of assault are that the accused touched or used force or threatened to touch or use force against the victim. Secondly, the victim did not consent to that action or threatened action. Thirdly, the action or threatened action was intentional or reckless, that is not accidental and, fourthly there was no lawful excuse for the action or threatened action.

18 The trial judge later said this about the Crown case on count 5:

In relation to count 5 it is the Crown case that the accused took hold of [S] and therefore touched her and used force to take her away and that there was no lawful excuse for doing so and that that amounts to an assault.

19 Further directions were given subsequently:

In relation to count 5, the allegation of assault by taking hold of [S]’s wrist and taking her away. You will recall the accused’s evidence that he said “I grabbed her arm and said ‘Hold my jumper’. I said ‘Don’t let go’. I said ‘We’re going’. She didn’t argue with me”. The accused agreed that he held her wrist. It is his evidence that he did not hold her firmly. The Crown case is that the manner of taking hold of [S], that is by grabbing her without her consent, did constitute an assault upon her.

20 Mr. Dhanji submitted that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of social intercourse; and also failed to direct the jury as to the need to be satisfied that the appellant knew the complainant was not consenting to the physical contact or was reckless as to whether or not she was consenting: see R v. Bonora (1994) 35 NSWLR 74, R v. Kuckailis [2001] NSWCCA 333 and Fitzgerald v. Kennard (1995) 38 NSWLR 184.

21 Mr. Dhanji also submitted that the trial judge did not adequately direct the jury as to the issue of consent, and in particular failed to satisfactorily answer a question by the jury, as follows:

Does the AVO which stops [D] from touching [S] constitute her not giving him consent as in “the victim did not consent to that action”, point 2 assault in relation to charge 5?

22 The trial judge answered:

Whether [S] consented to the action on this occasion should be determined having regard to all the evidence on that issue.

23 Mr. Dhanji submitted that the correct answer to the question was no, that simple answer was never given, and the jury was not warned against an impermissible reasoning process.

24 The Crown Prosecutor submitted that, in the circumstances of this case, there was no real issue that this could be considered a matter occurring in a usual family situation or in the ordinary course of social intercourse; and there was no real issue as to consent or belief as to consent. The appellant’s actions were in defiance of an AVO, he gained access to the entrance to the units by a dishonest subterfuge, he came from behind and grabbed the complainant without warning, and ordered her to go with him. His purpose, he said, was that he wanted to convince her that she should not be scared to return home, this in itself acknowledging a belief that she was scared of him at the time. The appellant created a situation where the complainant had no opportunity to consent or otherwise. The Crown Prosecutor submitted that the trial judge’s answer to the jury’s question was appropriate, and that there was no occasion to give the jury any directions concerning the appellant’s belief in relation to consent.

Decision

25 In my opinion, it was plainly open to the jury to find that the appellant’s grabbing of the complainant by the wrist was not an ordinary incident of social intercourse, in the circumstances referred to by the Crown Prosecutor. However, in my opinion it is not correct to say that there was no real issue before the jury as to whether this could be regarded as an ordinary incident of social intercourse, as to whether the physical contact was without consent, and as to whether the appellant believed it was without consent.

26 In my opinion, in an ordinary family situation, for a father to take a 15 year old daughter by the wrist, with a view to guiding her or persuading her to do something may indeed be an ordinary incident of social intercourse. There may also be an understanding between a father and daughter to the effect that the daughter is willing to have that kind of physical contact from the father; and in such a case it is not necessary, to prevent such contact being an assault, that there be consent given in advance directed specifically to each individual occasion of physical contact. Furthermore, even if the daughter is not in fact willing to receive that kind of physical contact, the father may believe she is.

27 Of course, at the time of the incidents in question, the appellant and the complainant were not living together in a family situation. There had been previous incidents of the appellant striking the complainant, the appellant had gone to live with her aunt, an AVO had been obtained, and the appellant had obtained access to the flats by subterfuge and grabbed the complainant by the wrist from behind or at least from the side. Certainly, all these circumstances could have supported a finding beyond reasonable doubt that the relationship between the appellant and the complainant was such that the grabbing of the wrist, even as admitted by the appellant, was not an ordinary incident of social intercourse and not something the complainant was willing to have done to her by the appellant, and that the appellant had no belief that the complainant was willing to have it done.

28 But there was also evidence that the relationship between the appellant and the complainant had not completely broken down, that they interacted with each other cordially later in that day, and that the complainant showed no fear of the appellant; and there was evidence from the appellant to the effect that he was concerned that the complainant was being influenced against him by the aunt, this being a possible explanation of a perceived necessity to gain access to the flats by subterfuge.

29 In my opinion, these considerations do show that there were issues that should have been left to the jury as to whether the grabbing of the wrist, which according to the appellant did not involve his holding the wrist firmly, was an ordinary incident of social intercourse, whether it was something which the daughter was willing to have done to her by her father, and whether the father believed the daughter was willing to receive that kind of physical contact from him. In my opinion, the directions were deficient in failing to draw the jury’s attention to the possibility that consent to this kind of moderate physical contact may be implied in a family situation between a father and daughter, and in the failure to draw to the jury’s attention that the appellant should not be convicted unless the jury was satisfied beyond reasonable doubt that he had no belief that this kind of contact was consented to by the complainant. The jury may have been left with the impression that the only relevant consent was a consent directed to the specific incident, rather than being a general consent that might be implicit in the relationship.

30 Although the factors referred to by the Crown Prosecutor were powerful considerations supporting a finding on these issues beyond reasonable doubt against the appellant, it is my opinion that the failure to have these matters left to the jury meant that the appellant lost a reasonable chance of acquittal, particularly in the light of the disagreement of the jury on the first three counts and the question concerning consent which the jury did ask. The points were not taken in this form before the trial judge, so that r.4 does apply; but the appellant was self-represented, and there was no possible tactical advantage in not taking these points. In these circumstances, I am satisfied that the failure to put these matters fairly to the jury did involve a miscarriage of justice.

COUNT 4

31 This charge was under s.90A of the Crimes Act, now repealed, which was in the following terms:

Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to imprisonment for 20 years, or if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to imprisonment for 14 years.

This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.

32 In the trial judge’s summing up, the trial judge gave the following directions as to the elements of the offence:

I turn to the charge under count 4. The elements of the charge under that count are that the accused took or led away, detained or enticed away the victim and, secondly, the accused intended to hold the victim for ransom or to obtain advantage, either to the accused or any other person, and, thirdly, the accused did not, in good faith, claim a right to the possession of the victim.

The words "to obtain advantage" are not limited to the obtaining of some monetary payment or some similar concession from a third party but extend to a situation where the object of the detention is to force the detainee to do something for the detainer.

33 He gave the following directions concerning the Crown case:

In relation to the fourth count, this is the allegation that on 16 November 2001 the accused did detain [S] with intent to hold her for his own advantage. The Crown case is firstly the evidence of the Apprehended Violence Order of 18 October 2001 which prohibited the accused from intimidating [S] or stalking her or assaulting, molesting, harassing, threatening or otherwise interfering with her, and not coming within 50 metres of the premises where she resided and was not to approach her. Secondly, the varied Apprehended Violence Order of 12 November 2001 which added the following conditions prohibiting the accused from contacting [S] through a third person or by any means unless through the Department of Community Services and not to approach within 200 metres of the block of units at 19 Edward Street.

The Crown relies on the evidence of how the accused came to the residence and how he took [S] away. You will recall the evidence of Mr Edwards and Mrs Edwards as to how the accused came to the premises and the evidence of [S] and of Grace Chapman as to what happened and how [S] was taken away. The Crown relies on that evidence. It is the Crown case that it is an offence if an accused took away or led away or detained or enticed away the victim and the accused intended to obtain an advantage to /the accused. It is the Crown case that the accused did take and lead away [S] from the premises where she resided and that the accused, even on his own evidence, was aware of the Apprehended Violence Orders in place and that he was forbidden by law to contact her in any way or to be within 200 metres of those premises or to intimidate her nor assault her.

The Crown case is that he in defiance of that order did take and lead [S] away and that the advantage that he intended to obtain was that he would then talk to her which he was prohibited from doing by the Apprehended Violence Order to get her to come home, and further that the accused knew that [S] was to appear at the Children's Court that day in relation to matters concerning him and that the advantage he intended to obtain was to prevent her going to court.

The Crown put to you that there can be no dispute that he did take and lead [S] away and that there could be no dispute that he sought to obtain an advantage to himself of speaking to [S], which was forbidden, and for a further advantage of preventing her going to court. It is the Crown case that the accused has not acted in good faith claiming a right to the possession of [S] when by law he was prohibited from being in possession of her and that he was aware of the Apprehended Violence Orders. It is the Crown case that you must therefore and would be satisfied beyond reasonable doubt that the accused is guilty of count (4).

It is the Crown case that the accused by saying he obtained no advantage by what he did is simply incorrect. The Crown says it is not the point that he says he obtained no advantage because as he said if [S] had come with him it would have not been to his benefit and that the whole exercise of being with [S] gained him benefit.

In relation to count (5) it is the Crown case that the accused took hold of [S] and therefore touched her and used force to take her away and that there was no lawful excuse for doing so and that that amounts to an assault.

34 He gave the following directions as to the defence:

I turn to count (4). This is the charge of detaining [S] with intent to hold her for his own advantage. The accused in his evidence said that he made a decision to talk to her to "let her know that she didn't have to be scared of me, to let her know she could come home". He said if a child is away it is harder to get them home and time was crucial and he had to talk to her. He said he needed a few hours and he told her to come with him.

He has given evidence of the events of the day and that he spoke to her to come home. The accused puts to you that it was not to his advantage to talk to his daughter. He said he lost a day of work and obtained no advantage. He said his conduct was to his daughter's advantage. He said he was responsible for most of her chastisement and saw it as his role to see her back on track. He said he had a right to see his daughter regardless of an Apprehended Violence order and that he did not hold her at the farm and that she could have left had she wished.

It is the Crown case that the accused intended to obtain an advantage when he took or led [S] away and when he detained her, that his intention was clearly to speak to her when he was forbidden from doing so and to speak to her to get her to come home. Further, that he intended to obtain an advantage by avoiding the Children's Court which was set down for that day. It is the Crown case that whether the accused ultimately thinks that he got no advantage, doing what he did on that day is not the issue.

The accused put to you that he had a right as a father to the possession of [S]. I directed you that it is a defence to discharge if a person in good faith claimed a right to the possession of a person so led, taken away or detained. It is the Crown case that the accused was aware of the Apprehended Violence Orders which made it unlawful to approach or speak to or be in possession of his daughter so that he cannot claim to be acting in good faith by claiming a right to possession of his daughter.

Submissions

35 Mr. Dhanji submitted, in relation to ground 5, that the charge related only to the detaining of [S], not to leading, taking or enticing her away. Accordingly, there was error by the primary judge in directing the jury to the effect that one element of the charge, in the circumstances of this case, was that the accused “took or led away, detained or enticed away the victim”.

36 In relation to grounds 6 and 7, Mr. Dhanji submitted that there was error in that there was no direction to the jury that they needed to be satisfied beyond reasonable doubt that the complainant did not consent, and that the appellant was aware that she was not consenting or at least reckless as to whether she consented or not. He submitted that, just as lack of consent and lack of belief in consent were elements of the charge of battery, so it was also in relation to the charge of kidnapping by detaining.

37 Turning to grounds 8 and 9, Mr. Dhanji submitted that evidence was admitted from a police officer that at the police station the appellant said words to the effect that what he did “may not be legally right”. Mr. Dhanji referred to s.108(1) and (2) of the Criminal Procedure Act, which are in the following terms:

108(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

38 Here, he submitted, no reasonable excuse was shown. In any event, the words were at best a statement of unqualified opinion, and furthermore could have referred to the breach of the AVO rather than to any assault or kidnapping. The evidence should have been excluded, or at worst, there should have been a direction that it did not amount to an admission of guilt of any of the offences with which the appellant was charged.

39 The Crown Prosecutor submitted that the occasional references to taking, leading away and enticing were immaterial, where the issues raised by the appellant were that he obtained no advantage, that as a father he had a right to possession of the complainant, and that he did not hold her because she could have left if she had wished. He submitted that the circumstances of this case did not raise any reasonable possibility of consent to being taken away or detained. He submitted also that the principal mental element in the offence was the intention to hold for advantage, and the jury would readily have understood that that necessarily involved an intention to hold the complainant irrespective or her wishes.

40 As regards the evidence of the appellant’s admission, the Crown Prosecutor submitted that s.108 did not apply; that the evidence had some probative value, if only in that the appellant was suggesting that he did not really understand the AVO; and that in any event, the admission of this material could not be considered as materially affecting the case.

Decision

41 In so far as the charge was that the appellant “detained” the complainant, that included the requirement that the complainant was not willing or did not consent to be with the appellant and that the appellant did not believe that she was willing or consenting. Though this issue was not clearly expressed by the appellant, I think the appellant’s evidence and submissions did raise the issue to the effect that he did no more than instruct the complainant to come: there was evidence from the complainant to the effect that her compliance was unwilling and through fear, but if the matter had been squarely left to the jury they may not have been satisfied of this beyond reasonable doubt. Furthermore, they may not have been satisfied beyond reasonable doubt that the appellant did not believe that the complainant came and remained with him willingly, perhaps out of respect rather than out of fear.

42 Similarly, in relation to intention to hold, I agree with the Crown Prosecutor that this implies an intention to hold the victim irrespective of whether the victim is willing or consents to remain with the accused. Although the element of intention to hold was put to the jury on at least three occasions, it was never squarely put to the jury in terms of their having to be satisfied beyond reasonable doubt that the appellant’s intention was to hold the complainant irrespective of whether she was willing to be with him or not. This problem is exacerbated by the fact that the question of intention was twice put to the jury as being whether the appellant intended to gain an advantage, and not in terms of whether the appellant intended to hold the complainant for advantage.

43 The circumstances previously referred to by the Crown Prosecutor, and also the evidence that the appellant made sure the car doors were locked once he had the complainant inside the car, constituted material on which these matters could have been found against the appellant beyond reasonable doubt. However, as before, I consider that the appellant did lose a reasonable chance of acquittal through these matters not being squarely left to the jury in those terms. I would add that the matter of locking the car has less force than it might otherwise have had, because this was not a matter raised with the appellant in cross-examination.

44 Having regard to those views, it is not necessary to rule on other matters in relation to count 5. The trial judge was certainly in error in referring to the alternatives of leading or taking or enticing away, when these were not charged; but in the absence of the other deficiencies to which I have referred, I am doubtful if I would have considered this sufficiently material to justify allowing an appeal. I am inclined to the view that the admission by the appellant which was allowed into evidence was made in the course of official questioning, so that s.108 of the Criminal Procedure Act applied: cf. Donnelly (1977) 96 ACrimR 432 at 437. Furthermore, the admission could have little probative value except possibly in damaging the appellant’s case in so far as it depended on a submission that he did not understand the effect of the AVO. However, again I would be inclined to think this matter was not sufficiently material on its own to justify the allowing of an appeal.

CONCLUSION

45 For the reasons I have given, the appeal should be allowed and the appellant’s convictions on counts 4 and 5 quashed.

46 But for the disagreement by the jury on counts 1-3, I may well have been prepared to enter a verdict of acquittal in relation to these counts. However, the prosecuting authorities have a discretion as to whether or not to proceed with a new trial on counts 1-3, and I think they should have the same discretion in relation to counts 4 and 5. If there is a charge of breaching the AVO which has been held over pending final determination of these proceedings, there is of course the alternative of now proceeding just with that charge.

47 HULME J: I agree with Hodgson JA.

48 HIDDEN J: I agree with Hodgson JA.

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