R v S - [1995] QCA 389

[1995] QCA 389

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
HELMAN J

CA No 166 of 1995

THE QUEEN

S Appellant

BRISBANE

DATE 27/07/95

JUDGMENT

THE CHIEF JUSTICE: This is an appeal against conviction of the appellant on a charge of child stealing. Having been convicted he was sentenced to serve 120 hours of community service. The Crown case, in brief outline, contained these features which can conveniently be taken from the outline of the appellant's submissions. The appellant and the child's mother, referring to her as the complainant, resided together for about 12 months but at the date of the alleged offence they had separated.

The complainant had three children, the youngest of whom was the child involved in the present case, a two-year-old. She was not the child of the appellant. The complainant had been away from her residence for about a week and on 29 March 1994 she returned home. The appellant presented himself at those premises at about mid-day yelling for the complainant to come out. There was some passage between the two, amounting to an argument, and a considerable amount of yelling, it would seem.

At one stage, after the arguments and discussions had gone some distance, the complainant asked the appellant to leave. He responded by picking up the young child to whom I have referred and he would not put her down. The complainant tried to grab for her child but the appellant swung her out of reach. The child was crying. The complainant was asking for the baby to be given back and the appellant said words to this effect, "I'm not giving her back. You'll have to stab me before I give her back."

At about that stage a person called Johnstone arrived. He was one of the witnesses who gave evidence in the case. The appellant then started to walk towards the front door with the complainant following. At the front gate the appellant managed to run around the complainant with the child. Johnstone said to him, "Come on, mate, it's Jackie's kid. Put her down." But the appellant ran off up the street with her. The complainant and Johnstone followed in Johnstone's car and then some distance away from the complainant's house a neighbour intervened and managed to grab the child and hand her back to her mother.

The appellant was interviewed by police and a formal record of interview was prepared and tendered as an exhibit in the proceedings. In the course of that record the appellant said that he and the complainant had had an argument a few days before, that he had gone up to speak to the complainant and the children and he was saying hello to them and he picked up the child in question because the children were like his own and he was going to take her up to a mate's place where he had been drinking.

He said a few further things in the record of interview, not all of…

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 S

Details

AGLC: R v S [1995] QCA 389
Case: [1995] QCA 389
Decision Date: 27 July 1995

CaseChat Overview and Summary

The case before the court was an appeal against conviction by the appellant, who was found guilty of child stealing. The appellant was sentenced to serve 120 hours of community service. The child in question was not the biological child of the appellant, but he had resided with the child and the child's mother for about twelve months before the incident in question. The appellant and the child's mother had separated at the time of the offence. The key issue for the court to decide was whether the appellant could claim a right to possession of the child under the provisions of section 363(3) of the Code.

The court examined whether the trial judge's directions to the jury regarding the appellant's failure to give evidence and the weight that could be given to the out-of-court statements of the accused resulted in a miscarriage of justice. The appellant argued that the trial judge's repeated reference to the fact that the version given by the accused was untested by cross-examination and was not on oath exceeded what was proper comment, implying that the defence should not succeed if the accused failed to give evidence on oath and submit himself to cross-examination. However, the court found that the trial judge's directions were appropriate and did not prevent a fair consideration of the accused's defence by the jury. The court held that the appeal should be dismissed, as the Crown's case was strong and the substance behind the claimed defence was weak.

Orders