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

v

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 which had high relevance for the resolutions of the questions that arise.  He had a defence which was advanced at the trial that under the provisions of section 363(3) of the Code it should be accepted that he was a person claiming in good faith a right to possession of the child.  That matter, when established, is a defence which operates in respect of the charge which had been brought against him of child stealing under the earlier part of section 363.

There were no questions fairly arising on the Crown case, that is apart from the matter of defence which I have referred to.  So far as the Crown case was concerned it was clearly established that the child was under 16 years of age; that the complainant was its mother and the complainant had the lawful charge or care of the child and that the action of the appellant had deprived the complainant of the possession of the child.

The substantial matter arising at the trial was whether the defence, under subsection (3) of section 363 could be regarded as made out.  The complaint which is made to this Court is that the Judge's directions to the jury in the case in effect were so extensive and so forcible that they overbore the jury's independent consideration of the matter.

Included in the record of interview were these questions and answers:

"Did Jackie" -

that being a reference to the complainant -

"give you any permission on this day to take M" -

that is the child -

"away from her?-- No.

Did you feel you had any right to take M away?-- Yes and no.

Could you explain that?-- When you have been like a father to them for so long and that and you miss the kids and everything what would you do?  You would want to see them if they were yours."

There were other answers of this kind to these questions:

"Did Jackie ask you to put the baby down?-- I can't really recall.  That is going back a couple of weeks.

Did your Uncle x" -

that being a reference to Mr Johnstone -

"ask you to put the child down?-- No, I can't recall.  I don't really get on with him; never have and never will."

The statement of the ground of appeal more precisely is that the learned trial Judge's directions to the jury on the failure of the accused 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.  It is said that the learned 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.  It is said that such over-emphasis implied that the defence should not succeed if the accused failed to give evidence on oath and submit himself to cross-examination.  It was said that a fair consideration of the accused's defence by the jury was denied to him as a result of this.

The fact that a ground of appeal of this character is raised means that it is necessary to regard the summing-up as a whole to decide whether it has substance.  That summing-up quite properly, when it is examined, is seen to direct the attention of the jury to the matters which the appellant had to prove on the balance of probabilities under section 363(3).  The principal reliance, since there was no evidence that he gave in the trial, was indeed upon the contents of the record of interview and whatever implications flowed from it.

The Judge was certainly entitled to draw the jury's attention to the fact that although it was evidence it was not a statement on oath and had not been cross-examined upon.  He was entitled also to direct their attention to the actual contents of the record of interview and to point out to them that they might not regard it as being in a very clear or firm form to support a defence under the subsection referred to.

In the usual way the Judge told them that matters of fact were for them.  It was of importance in the case for the jury to be given to understand that they were not obliged automatically to accept the appellant's expression of the basis of his claim of right as it was being advanced by the defence; that is, his explanation for his actions.  It was appropriate for the Judge to give the jury to understand that the question was whether they found the claim of right persuasive in all the circumstances.

Read overall, I would not view the summing-up, although it was very full, fuller perhaps than might have been strictly necessary, as being more than an invitation to give careful consideration to the matters which were relevant for the jury's attention.

The Crown case which was fairly put was, in effect, that so far as the matter of the alleged defence was concerned it was not made out and in the circumstances the appellant was shown to have been acting out of spite or perhaps to put pressure on its mother, the complainant, and force the complainant to talk to the appellant.  There was, as I say, a very full treatment of the evidence but it could not be stigmatised, in my opinion, when read as a whole, as unfair or going beyond reasonable bounds.

For these reasons it should be held that the appeal should fail.  It is appropriate to add that this is a case where, in any event, the case for the Crown when examined was an extremely strong one and the substance behind the claimed defence was very light indeed.  There could be no valid complaint of injustice, in my opinion, arising in the circumstances.

In my opinion, the appeal should be dismissed.

McPHERSON JA:  I agree.

HELMAN J:  I agree.