R v Summers; R v Miller
[2018] ACTSC 324
•22 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Summers; R v Miller |
Citation: | [2018] ACTSC 324 |
Hearing Dates: | 19–21 November 2018 |
DecisionDate: | 22 November 2018 |
Before: | Murrell CJ |
Decision: | The accused Summers is found guilty on all counts. The accused Miller is found guilty on all counts. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – Verdict – Unlawfully taking child by joint commission – Attempt to pervert the course of justice – Verdict of guilty on all counts STATUTES – INTERPRETATION – Crimes Act 1900 (ACT) s 40 – Unlawfully taking child – Elements of an offence – Whether the child was taken “by deception” – Meaning of “deception” – Whether “deception” includes a misrepresentation of intention as opposed to a misrepresentation of fact – Ordinary meaning of the Act – Interpretation that would best achieve the purpose – Legislation Act 2001 (ACT) ss 138, 139, 141 CRIMINAL LAW – GEOGRAPHICAL APPLICATION – Criminal Code 2002 (ACT) pt 2.7 – When an offence is committed completely outside the ACT – Whether a geographical nexus exists between the ACT and the offence – Whether the offence has an effect in the ACT – Where an attempt is an inchoate offence – Whether peace, welfare or good government of the Territory is threatened by an attempt to pervert the course of justice |
Legislation Cited: | Crimes Act 1900 (ACT) s 40 Crimes Act 1900 (NSW) s 179 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Alcan Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 |
Texts Cited: | D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 2014, 8th ed) M S Weinberg and C S Williams, The Australian Law of Theft (Law Book Co, 1977) Shorter Oxford Dictionary |
Parties: | The Queen (Crown) Mark Summers (Accused) Tatania Miller (Accused) |
Representation: | Counsel Ms R Christenson (Crown) Mr P Edmonds (Accused Summers) Mr R Davies (Accused Miller) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Accused Summers) Legal Aid ACT (Accused Miller) | |
File Number(s): | SCC 138 of 2018 SCC 141 of 2018 |
Murrell CJ
The Trial
The accused, Mr Summers and Ms Miller, are partners. Ms Miller is the mother of LN, who was born in January 2014 (the child).
Since infancy, the child has been cared for primarily by Ms Menrath (known as Tracy, also known as Elisha Brown). She is Ms Miller’s mother and the child’s grandmother. Mrs Southwell is Ms Menrath’s mother, Ms Miller’s grandmother and the child’s great-grandmother.
In August 2014, consent orders were made under the Family Law Act 1975 (Cth) giving Ms Menrath sole responsibility for the child.
The prosecution alleges that Ms Menrath gave Mrs Southwell permission to take the child to Canberra for the purpose of the child meeting with the accused. On 17 June 2017, the meeting occurred. Without authority, the accused removed the child.
Further, the prosecution alleges that, in early December 2017 while Mrs Southwell was visiting the accused in Queensland, Mr Summers demanded that she change her police statement concerning the events of 17 June 2017.
In accordance with s 68B of the Supreme Court Act 1933 (ACT), each accused elected to be tried by a judge alone on the following charges:
(a)On 17 June 2017 at Canberra Mr Summers and Ms Miller, by deception, took away a child under the age of 12 years, intending unlawfully to deprive another person of the lawful control of the child: s 40(a) of the Crimes Act 1900 (ACT) (Crimes Act) and s 45A of the Criminal Code 2002 (ACT) (Criminal Code).
(b)Between 30 November and 6 December 2017 at Canberra and elsewhere, Mr Summers attempted to commit the offence of intentionally perverting the course of justice: ss 44 and 713 of the Criminal Code.
The legal practitioner for each accused certified that their client had received advice and made the election freely.
Before evidence was led, Mr Summer flagged—but then abandoned—an application to stay the proceedings on Count 1 because the evidence was not capable of establishing the element of deception. Instead, that contention was agitated at the close of the Crown case. I refused the application for a directed verdict. My reasons appear below at paragraphs [98]–[129].
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at the verdicts.
General directions
The charges were heard together as a matter of convenience. I must consider each of the three charges separately and return a separate verdict of guilty or not guilty on each charge.
Some of the evidence related to only one accused and is to be taken into account only in relation to that person. In particular, evidence of admissions must be taken into account only in relation to the accused who made the admission
In relation to each charge, the Crown has the task of proving the guilt of the accused beyond reasonable doubt. This means that the Crown must prove each legal element or ingredient of a charge and any fact that is essential to establishing a legal element beyond reasonable doubt. Each accused is presumed to be not guilty unless and until the prosecution proves them guilty beyond reasonable doubt in relation to a charge. If I have a reasonable doubt about the guilt of an accused on a particular charge, I must return a verdict of not guilty on that charge.
In making findings of fact, I must rely upon the evidence, i.e., the evidence given by the witnesses and the evidence contained in the exhibits. I must apply common sense.
In relation to Count 2, the Crown case depended on the evidence of Mrs Southwell. I must examine her evidence carefully before deciding whether, on the basis of her evidence, I am satisfied beyond reasonable doubt of Mr Summers’ guilt on Count 2.
In relation to Count 2, it was suggested that Mrs Southwell had a motive to lie; that she and Ms Menrath were antagonistic to Mr Summers and wanted to keep the child from him. I will consider whether Ms Southwell may have been motivated to lie for the reasons suggested. However, I bear in mind that there is no obligation on the accused to suggest or establish any motive to lie; the onus remains on the prosecution to prove the guilt of the accused beyond reasonable doubt.
Witness assessment
Most of the facts were not in dispute and were the subject of the documents and statements in the Crown tender bundle, which was admitted by consent.
There was no dispute about the evidence on Count 1.
The witnesses, Ms Menrath and Mrs Southwell were called and cross-examined. Some of their evidence (particularly evidence relating to Count 2) was disputed by the defence.
Ms Menrath presented as a well-balanced, reasonable person who was careful to be honest in her answers. She admitted that she would be concerned if Ms Miller sought custody of the child.
Mrs Southwell was a timid and unsophisticated person who presented as both genuine and sensible. Her evidence was internally consistent and no flaws were exposed in cross-examination. She appeared to take care with her answers for the purpose of ensuring that they were accurate. Neither the content of her answers nor the delivery of her evidence suggested that she wished to implicate either accused, beyond what was required by telling the truth.
Without hesitation, I accept the evidence of both Ms Menrath and Mrs Southwell.
Findings of fact
Ms Menrath and the child lived on the South Coast of NSW.
In August 2014, the Bega Local Court made consent orders under the Family Law Act 1975 (Cth), formalising the custody arrangements for the child. The orders stated:
(a)The maternal grandmother, Elisha Brown, have sole responsibility for the child …
(b)The child will live with the maternal grandmother, Elisha Brown.
(c)The mother, Tatania Miller, will spend time with the child in the presence of the maternal grandmother or her partner, Harry Menrath, at any time agreed between the parties, but failing agreement, between 10.00 am and 12 noon each Wednesday and Sunday.
Initially, the relationship between Ms Miller and Ms Menrath was reasonable, but by June 2017 it had deteriorated. Ms Menrath no longer supported Ms Miller’s relationship with Mr Summer. Ms Menrath did not know the couple’s contact details, although she knew that they lived in Canberra. Ms Menrath allowed interaction between the child and the couple only as she considered “appropriate”.
Mrs Southwell was aware of the relationship difficulties and knew that, in the short term, Ms Menrath did not want the child returned to Ms Miller’s care.
Count 1
About four weeks prior to 17 June 2017, Ms Miller and Mr Summers met with Mrs and Mr Southwell, at the National Library in Canberra. They arranged that they would meet again for the purpose of the accused seeing the child.
Mrs Southwell spoke to Ms Menrath, who agreed that, on 16 June 2017, she would rendezvous with the Southwells at Cooma and deliver the child into their care, and that they would take the child to Canberra for the purpose of meeting with the accused on 17 June 2017.
The accused and the Southwells arranged that, on 17 June 2017, they would meet for lunch at the Canberra Southern Cross Club in Phillip, Canberra.
In late May/early June, Mrs Susan Cooper had five or six conversations with Mr Summers (her nephew) and Ms Miller concerning the fact that the child was to be returned to them. They told Mrs Cooper that Ms Miller’s grandmother had said that it was time for Ms Miller to get her daughter back.
On the Tuesday or Wednesday prior to 17 June 2017, Mr Summers told Mrs Cooper that the couple would be collecting the child from her grandparents on Saturday and would come to Mrs Cooper’s house at about 1:00 PM on that day.
On the same occasion, Ms Miller and Mr Southwell inquired of Mrs Cooper as to the type of clothes and toys that they would need for the child.
At about 12:04 PM on 17 June 2017, the accused arrived at the Club. Soon afterwards, the Southwells arrived with the child. Ms Miller was very emotional as she greeted her daughter. The group moved to the restaurant area.
After they had been seated for about five or 10 minutes and while Mr Southwell was at the bar obtaining drinks, Mr Summers proposed that Ms Miller take the child to the children’s play area inside the Club. Without objection by Mrs Southwell, Ms Miller left, taking the child by the hand. As Ms Miller was walking away, Mr Summers showed Mrs Southwell commemorative coins that he had purchased for the child and chatted about the coins.
At 12:29 PM, Ms Miller walked from the Club building, holding the child’s hand. She walked into the undercover Club car park area, where she lifted the child up, carried her to the couple’s vehicle and placed her into the rear of the vehicle.
Mr Southwell returned to the table with the drinks that he had purchased and Mr Summers showed him the coins. When Mr Southwell inquired about the whereabouts of Ms Miller and the child, Mr Summers said that they were at the playground.
Five or 10 minutes after Ms Miller had left the table, shortly before 12:40 PM, Mr Summers looked at his watch and said that he would get Ms Miller for lunch. He left the table.
The Southwells immediately discussed their concern that the couple might “do a runner”. They left the table and went in different directions in an effort to locate the child. Mr Southwell followed Mr Summers. Mr Summers entered the children’s play area, walked along the side of the area, walked to the poker machine area and then exited the Club via a rear door to the undercover car park.
Mr Southwell walked to the outside car park, where he saw the couple driving away. He gestured for them to stop and slapped the windscreen of their car. However, Mr Summers drove quickly past Mr Southwell, narrowly missing him. Mr Southwell captured photographs on his mobile telephone. Ms Miller was seated in the rear seat beside the child, who was in a child restraint seat.
Mr Southwell contacted the police and Mrs Southwell contacted Ms Menrath.
The accused took the child to the Coopers’ home. Later, Mr Summers returned to his unit in Lyons. Ms Miller and the child remained at the Coopers’ residence.
At 2:25 PM, Mrs Southwell informed Mr Southwell that she had received a text message from Mr Summers stating:
Please remove the check welfare
At 3:37 PM, Mrs Southwell received a text message from Ms Miller which stated, among other things:
U cant tell me that you would not have done the same thing if someone STOLE your child.
At about 4 PM, Constable Calatzis telephoned Ms Miller’s mobile telephone number. The call was answered by Mr Summers, who said that Ms Miller had had a long custody battle with Ms Menrath.
At 4:23 PM, Mr Summers contacted police and said that Mr Southwell had told him that he would be withdrawing his complaint to police.
Mrs Southwell received a text message from Ms Miller asking whether the Southwells had rung the police. Mrs Southwell replied that Mr Southwell had done so. The text communication continued as follows:
Ms Miller: And? Did he remove the welfare check?
Mrs Southwell: They wouldn’t discuss that with him
Ms Miller: Right!! Strike three. Buy buy
At about 7:00 PM, police attended Mr Summers’ address at Lyons.
At the foot of the stairwell, there was a conversation. One police officer said that, when asked about the whereabouts of the child, Mr Summers said words to the effect that he “did not know what we were talking about”. I am not prepared to accept this evidence because of the generality of its terms and because it differs from the evidence of two other officers who were present. It was the evidence of those officers that the conversation was to the following effect:
Police: Mark, I need to talk to you
Mr Summers: She’s not here
Mr Summers was arrested. When told that he was under arrest for taking the child unlawfully, the following conversation occurred:
Mr Summers: She is with her mother.
Police: Where?
Mr Summers: I’m not saying.
One of the officers explained to Mr Summers that “he was potentially in considerable trouble”.
The police inspected Mr Summers’ unit but located neither Ms Miller nor the child.
At the police station, police invited Mr Summers to contact Ms Miller. He did so.
At the request of Ms Miller, at about 9:08 PM, the Coopers brought the child to the police station.
At 9:33 PM, Ms Miller sent a text message to Mrs Southwell stating:
I serious hope the Tracy know how much of a piece of shit she is!!!!! I have every right to have my fucking child!!!
Count 2
On 21 September 2017, the accused appeared in the ACT Magistrates Court and were charged with unlawfully taking a child by deception.
In early December 2017, the accused were living in Queensland. Mr Summers telephoned Mrs Southwell and said that Ms Miller was very distressed and needed Mrs Southwell. The couple advised Mrs Southwell about how to buy an aeroplane ticket as Mrs Southwell had not previously flown.
On 4 December 2017, Mrs Southwell flew to Brisbane, intending to stay with the accused overnight. Ms Miller collected Mrs Southwell from the airport and drove her to the couple’s home, where Mrs Southwell met the couple’s four-month-old child (the infant) for the first time. That evening, the group went out to dinner and had a pleasant evening.
When they returned home, the court documents relating to the ACT criminal charges were in the letterbox. The documents were laid out on a table in front of Mr Summers and there was a lengthy discussion concerning them.
During the discussion, Mr Summers became very upset and agitated. At one point, he slammed his hand on the table. He paced around and swore.
Mr Summers repeatedly asked Mrs Southwell why she had called the police. She responded that she had not called the police (her husband had done so).
Mr Summers asked why Mrs Southwell had called Ms Menrath. Mrs Southwell responded:
To let her know (the child) had been taken and was no longer in our custody. She had to know.
There was a conversation to the following effect:
Mr Summers: It was none of Tracy’s business. I checked with DOCS and she didn’t have custody. Read all the statements!
Mrs Southwell: No
Mr Summers: Well, be an ostrich and stick your head in the sand and don’t face up to what your daughter’s done and how horrible she is.
At one point, the following conversation occurred:
Mr Summers: Why didn’t you just let us go, why did you involve anyone else?
Mrs Southwell: That’s not my choice to make. Was I supposed to do nothing until Tracy asked me?
Mr Summers: Yes, by then we would have been in Queensland and no one could do anything.
At one point, Mr Summers shook Mrs Southwell’s police statement at her, saying:
Do you realise the seriousness of what you have done?
When she did not answer, Mr Summers said:
You can put a stop to all this by changing your statement. Would you do that?
Mrs Southwell responded in the affirmative. In evidence, she explained that she had agreed to change her statement because:
I was too frightened to say no but then I was thinking how am I going to get out of this because I thought if I do that then I’d be in trouble for lying, writing a false statement …
Mr Summers then asked Mrs Southwell:
Will you write something to the police saying that to Tania and I are perfect parents?
Mr Summers held the infant up and said:
Well, aren’t we perfect parents? Look at this little fella!
Mrs Southwell agreed to change her statement because she was too frightened to refuse. She felt sick and was asking herself how she would escape the confrontation. She was concerned that Mr Summers would ask her to write a revised statement “then and there” but there was a distraction and he did not do so.
Later in her evidence, Mrs Southwell expressed uncertainty about whether the exchange concerning changing her police statement had occurred on the evening when the court documents were being discussed or on the following day. Mrs Southwell was also unsure about whether it was on the night of 4 December 2017 or the afternoon of 5 December 2017 that Mr Summers had rung various members of his family in her presence and repeatedly said things like:
What kind of mother would put her daughter in gaol? What kind of grandmother would put her granddaughter in gaol?
In the same conversation, addressing Mrs Southwell directly, Mr Summers said:
You must hate your granddaughter.
Mrs Southwell did not respond; she “just sat and calmly took it on” because she was scared.
On 5 December 2017, when Mr Summers returned from work, Mrs Southwell accompanied the family on a window shopping outing. When they returned home, the conversation again turned to the court proceedings and Mr Summers became agitated.
At one point during the conversations about the court proceedings, Mr Summers called Ms Menrath a “witch” and said that he would protect the infant from ever seeing her. In response, Ms Miller acknowledged that her mother (Ms Menrath) had played a big part in the child’s life and said that, initially, she could not have looked after her daughter because she herself had been so young.
On 5 December 2017 the couple drove Mrs Southwell to the airport, where they kept her company for a period and took some family photographs.
Between 5 and 11 December 2017, Mrs Southwell received a text message from Ms Miller stating:
Thank you again for coming to see me grandma, besides marks crap I really enjoyed my time with you and having [Ms Miller’s child with Mr Summers] finally meet you it was wonderful, I am so sorry again about Mark, it wasn’t fair, I love you so much [heart emoji]
The Crown relied upon this text message as evidence of a previous representation by Ms Miller, who was “unavailable to give evidence” (because she was not compellable), being a representation that, while Mrs Southwell was visiting the accused in Queensland, Mr Summers had behaved in an objectionable and unfair manner towards Mrs Southwell: Evidence Act 2011 (ACT) s 65.
It was only recently that Ms Menrath learned that Mrs Southwell had visited the accused in Queensland.
Elements of the offence of by deception take a child under 12 intending unlawfully to deprive another person of the lawful control of the child
Section 40 of the Crimes Act provides:
40 Unlawfully taking child etc
A person who, by force or deception, leads, takes or entices away or detains a child under the age of 12 years—
(a) intending unlawfully to deprive another person of the lawful control of the child; or
…
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
The elements that the Crown must prove beyond reasonable doubt are:
(a)The accused agreed to commit the offence that, by deception, they would unlawfully deprive a person of the lawful control of a child under 12.
And that they jointly committed that offence:
(b)By taking a child
(c)Who was under 12 years old
(d)In relation to whom another person had the lawful control
(e)Intending unlawfully to deprive that person of the lawful control of the child
(f)The child was taken by deception
Agreement
Mrs Cooper’s evidence was that, prior to 17 June 2017, both accused had told her, in effect, that Ms Miller was to get her daughter back. In Ms Miller’s absence, Mr Summers had also indicated that the return would occur prior to 1:00 PM on 17 June 2017. Both accused must have anticipated that the return would be for a significant period as they enquired as to the type of clothes and toys that they would need for the child. A child restraint had been installed in the car prior to the accused attending at the Club. This evidence shows that a removal was planned prior to the accused attending the Club on 17 June 2017.
On 17 June at the Club, Mr Summers proposed that Ms Miller take the child to the play area, which was not visible from the restaurant table. Ms Miller left with the child and, given the timing, she must have gone virtually straight to the car. After just enough time had elapsed for her to install herself and the child in the car, Mr Summers left and went to the car park. This evidence indicates that a detailed plan for removal of the child was in place before the accused met the Southwells on 17 June 2017.
I am satisfied of this element beyond reasonable doubt.
The child was taken
Mr Southwell gave evidence that the child was driven from the Club by Mr Summers and Ms Miller was present in the car. Mrs Cooper gave evidence that both accused and the child arrived at her residence at 1:00 PM on 17 June 2017, in accordance with the earlier arrangement.
I am satisfied beyond reasonable doubt that both accused took the child.
The child was under 12 years old
The child’s birth certificate establishes that, as at 17 June 2017, the child was three years’ old.
I am satisfied of this element beyond reasonable doubt.
Another person had the lawful control of the child
The Crown tendered the consent orders made by the Bega Local Court granting sole parental responsibility for the child to Ms Menrath and providing that Ms Miller was to spend time with the child in the presence of specified persons and at times agreed between the parties.
I am satisfied beyond reasonable doubt that, at the relevant time, Ms Menrath had lawful control of the child and had authorised the Southwells to have immediate care of the child on a limited basis.
Intention unlawfully to deprive a person of the lawful control of the child
Ms Miller was well aware of the terms of the orders made by the Bega Local Court; she was a party to the proceedings and the orders were made by consent.
Ms Miller’s text messages to Mrs Southwell at 3:37 PM on 17 June 2017 (“U can’t tell me that you would not have done the same thing if someone STOLE your child”), the later text message (“Have you rang the police yet???”), and the message at 9:33 PM (“I have every right to have my fucking child!!!”) show her determination to assert her perceived moral entitlement to the child despite knowing that her actions were illegal and would attract police attention.
The statement made by Mr Summers to Constable Calatzis at about 4:00 PM (that Ms Miller had had a long custody battle with Ms Menrath) shows that he was aware of the position regarding lawful control of the child. As Ms Miller’s partner, he must have known that the child was not in Ms Miller’s care.
The circumstances in which the child was removed from the Club make it plain that both accused realised that they had no legal entitlement to take the child.
I am satisfied of this element beyond reasonable doubt.
The child was taken by deception
At the close of the Crown case, counsel for Ms Miller submitted that there was no evidence of deception, because deception must be worked on someone and there was no evidence that, at the time that Ms Miller indicated that she was taking the child to the play area, she intended to do anything other than take the child to the play area. Consequently, her conduct in taking the child from Mrs Southwell’s immediate care was not attended by a deception perpetrated on Mrs Southwell.
I rejected that submission. There was ample evidence that the suggestion that the child was being taken for the primary purpose of playing in the play area was a pretext. Some time prior to 17 June 2017, the couple had told Mrs Cooper that they would be recovering the child on that day. The chronology of events on 17 June 2017 shows that, when she left the restaurant, Ms Miller took the child directly to the car park and that, when Mr Summers left the restaurant, he went directly to the car park; each acted in accordance with a pre-existing plan to remove the child.
I am satisfied beyond reasonable doubt that Ms Miller pretended to Mrs Southwell that she was taking the child to the play area because she intended that she and Mr Summers would drive away from the Club with the child and she knew that, if Mrs Southwell suspected that such a plan was afoot, she would not allow the child to be removed from her immediate supervision.
I am satisfied beyond reasonable doubt that Mr Summers participated in the dishonest scheme by proposing that Ms Miller take the child somewhere where the child was not under the immediate supervision of Mrs Southwell, allowing enough time for Ms Miller to place the child in the car, and then leaving himself with the intention of driving away before the Southwells had had enough time to prevent the child’s removal. As Mr Summers later said to Mrs Southwell, the accused had intended to remove the child to Queensland, where (as Mr Summers believed) “no one could do anything”.
Application for a directed verdict based on absence of evidence of deception
The “deception” upon which the Crown relied was the misrepresentation that Ms Miller was taking the child to the play area for a brief period and would return to the Club restaurant with the child, inducing Mrs Southwell to believe that the child would remain in the immediate vicinity, i.e., the deception involved inducing a false belief about the intention of the accused to return the child.
The accused sought a verdict by direction on the basis that, in s 40(a), the expression “deception” has a common law meaning; there must be a misrepresentation as to existing fact. The accused submitted that a misrepresentation regarding intention does not amount to a deception.
I refused the application. I repeat my reasons for doing so.
The Crimes Act contains no definition of “deception”. The definition in s 325 of the Criminal Code, which applies to fraudulent conduct in pt 3.3 of the Criminal Code, does not apply to an offence against s 40(a) of the Crimes Act. However, it is worth noting:
deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes—
(a)a deception about the intention of the person using the deception or anyone else; and
(b)conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.
I infer that the express reference in s 325 of the Criminal Code to deception about intention is designed to address any argument that “deception” is confined to deception as to a fact and does not extend to deception as to the misrepresentor’s intention. For the same reason, other Acts also define deception to include deception about intention: see, e.g., s 81(4) of the Crimes Act 1958 (Vic).
In support of the application, the accused relied on Greene v The King (1949) 79 CLR 353 (Greene), in which the High Court reaffirmed the proposition that, in relation to the offence of obtaining property by false pretences, a representation about a present intention to perform a promise is not a representation of an existing fact; to constitute a false pretence, a false statement must concern a material existing fact rather than a promise to do an act in the future. At 358, Latham CJ said:
It has been held again and again in relation to the offence of false pretences that a representation of the existence of a present intention to perform a promise is not a representation of an existing fact.
At 362, Dixon J said:
From [the 19th century] forward the law has been that no representation, express or implied, as to the existence of an intention on the part of the prisoner to do something in the future amounts to a pretence for the purposes of the crime of false pretences.
The accused submitted that the distinction between a misrepresentation about intention and a misrepresentation about fact was important not only for offences of false pretences, but also for other offences of dishonesty, including offences against s 40(a) of the Crimes Act.
Both parties relied on Re London and Globe Finance Corporation Limited [1903] 1 Ch 728 (Re London), which concerned the offence of making a false or fraudulent entry with intent to deceive or defraud, In that case, at 732–733 Buckley J said:
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
(Emphasis added)
The accused submitted that the reference to “a thing” was a reference to a fact and to the well-established distinction between misrepresentation as to fact (for which a person could be found criminally liable) and misrepresentation as to intention (for which a person could not be found criminally liable).
The Crown submitted that the purpose of the passage was to emphasise that deception was concerned with inducing a false belief in the victim (regardless of whether the false belief was as to fact or as to intention), whereas fraud was concerned with inducing the victim to pursue a course of action.
The Court was taken to Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503, which concerned an offence of failing to act honestly “committed with intent to deceive or defraud”. At 506, Allen J said:
Deception is the intentional inducing in another of a state of mind which, as the offender knows, does not accord with fact. It differs from defrauding … Defrauding is “to deprive the person dishonestly of something which is his or of something to which he is or would be or might but for the perpetration of the fraud be entitled”
(Emphasis added, citations omitted)
His Honour went on to point out that dishonesty does not necessarily involve either deception or defrauding.
The Crown referred to Graham-Helwig v Western Australia [2005] WASCA 127; 30 WAR 221 (Graham-Helwig). In that case, the Court considered an offence of acting “with intent to defraud, by deceit or any fraudulent means”. At [13], Wheeler JA cited with approval the above passage from Re London, and said:
Put simply, it seems to me that the deceit in this case was that the appellant knew that Wire Couriers was not an ordinary arm’s length courier service and that, by his concealment of the true state of affairs, he induced Angus and Coote to believe that it was.
Graham-Helwig did not assist to resolve the present issue as it concerned a deception about an existing fact rather than an existing intention.
The Crown was unable to identify any decision in which common law “deception” had been made out by a misrepresentation as to intention, rather than a misrepresentation as to fact. Nevertheless, the Crown argued that the application of correct principles of statutory construction led to a conclusion that, in s 40(a) of the Crimes Act, “deception” encompassed misrepresentations as to existing intention.
Consideration of submissions about whether deception includes deception about intention
This issue is not easily resolved.
There is no doubt that, in relation to offences of obtaining property by false pretences, a misrepresentation as to present intention is inadequate to make out the offence; there must be a misrepresentation as to fact.
However, for the following reasons I consider that the position is otherwise in relation to s 40(a) of the Crimes Act.
First, the starting point in considering the question of construction is “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose”: Alcan Pty Ltd v Commissioner of Territory Revenue [2009] HCA 49; 239 CLR 27 at [4]. In that case, French CJ said at [4]:
That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill as:
“dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.”
(Citations omitted)
Section 141(2)(a) of the Legislation Act 2001 (ACT) (Legislation Act) emphasises the desirability of being able to rely on the ordinary meaning of an Act (which includes provisions of an Act: see s 7(3) of the Legislation Act).
“Deception” is defined in the Macquarie Dictionary to include “something that deceives or is intended to deceive; an artifice; a sham; a cheat”. “Deception” is defined in the Shorter Oxford Dictionary as “The action of deceiving or cheating” and “Something which deceives; a piece of trickery”. In the Oxford English Dictionary “deceive” is defined as “to make (a person) believe what is false, misleading purposely” or “to use deceit”. “Deceit” is defined as including “a dishonest trick or stratagem”. These definitions do not distinguish between misleading by false intention and misleading by false fact.
Second, in the ACT, when resolving an ambiguous or obscure provision the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: ss 138(a) and 139(1) of the Legislation Act.
In this case, the purpose of s 40(a) of the Crimes Act is to punish the abduction of children. This subject matter is very different from the subject matter of property crimes, the main context in which “deception” has been construed. The abduction of children is commonly achieved by the abductor making a false representation as to intention (often, by representing that he or she intends to take the child for a limited period and then return the child to the person with lawful custody of the child). Much less often is it achieved when the abductor makes a false representation as to fact (for example, that the abductor is legally authorised to take the child). If the interpretation of the provision for which the accused contended was correct, the purpose of the provision would be significantly thwarted.
If, in s 40(a) of the Crimes Act, “deception” is focussed on the idea of cheating or trickery (as the dictionary definitions would suggest), then the provision should be understood to extend to trickery in relation to intention. By analogy, there can be a conviction for larceny by trickery where there is a misrepresentation as to intention, including where property is obtained by a trickster who indicates that they will pay but has no intention of doing so (see, for example, R v Sheppard (1839) 9 Car & P 121; 171 ER 757 and R v Stephens (1910) 4 Cr App R 52), who promises goods on payment with the intention of never delivering the goods (see, for example, The Queen v Russett [1892] 2 QB 312) or who hires goods with the intention of keeping them (The King v Pear (1779) 168 ER 208): for a full discussion, see M S Weinberg and C S Williams, The Australian Law of Theft (Law Book Co, 1977) 97–106.
Third, the legislative history tends to support “deception” as having a broad meaning. The earlier iteration of the current provision was s 91, which provided:
Whosoever –
by force or fraud, leads or takes away, entices away, or detains, any child under the age of 12 years ….
The current provision was first introduced as s 38 by the Crimes (Amendment) Ordinance (No 2) 1990 (ACT). The Explanatory Statement said:
Section 38 provides for an offence of unlawfully taking a child which is a revision of existing section 91, replacing the concept of fraud with the more general notion of deception … (emphasis added)
Regrettably, the Explanatory Statement does not elaborate on the manner in which “deception” was considered to be a “more general notion” than fraud. The usual distinguishing feature explained in Re London that while deception involves inducing a false belief, fraud involves inducing a course of conduct based on a false belief, cannot apply in the case of s 40(a); in either case, proof of an offence requires proof that a false belief resulted in a course of conduct (the child was led, enticed or taken away). In any event, a broader definition of “deception” is consistent with the stated purpose of introducing “a more general notion” of dishonesty.
Fourth, in Greene, the High Court was concerned with an offence of obtaining property by a false pretence. Of its very nature, such an offence poses a contrast between an existing state of affairs and an asserted false state of affairs, requiring a misrepresentation as to the existing state of affairs (or fact). The provision it was considered in Greene (s 179 of the Crimes Act1900 (NSW)) was later amended to include both “false pretence” and “wilfully false promise”, lending further support the proposition that the relevance of Greene is limited to a small subset of property offences.
However, in the case of “deception” there is no good reason to distinguish between a misrepresentation of fact and a misrepresentation of intention. Rather, for “deception” the operative requirement is that the victim is induced into a false belief; it is not critical to the concept of deception whether that belief concerns a state of affairs or the deceiver’s intention. What is critical is that the misrepresentor induced the false belief. And, in the case of s 40(a), that the false belief enabled the conduct of leading away or taking of the child.
I have concluded that, where s 40(a) refers to an abduction by “deception” it includes deception as to the intention of the abductor. Consistent with its purpose, the provision criminalises the inducing of a false belief about either fact or intention, which enables the abduction of a child.
I have no doubt that the misrepresentation by the accused—that Ms Miller was taking the child to the play area for a brief period and would then return to the Club restaurant with the child—induced Mrs Southwell to believe that the child would remain in the immediate vicinity. By inducing that belief, the accused were able to take the child from the Club.
Consequently, I am satisfied of this element beyond reasonable doubt.
I find that each accused is guilty of the offence alleged against s 40(a) of the Crimes Act.
Elements of the offence of attempt to intentionally pervert the course of justice
Section 713 of the Criminal Code provides:
713 Perverting the course of justice
(1)A person commits an offence if the person, by his or her conduct, intentionally perverts the course of justice.
…
(2)In this section:
perverts includes obstructs, prevents and defeats.
Section 44 of the Criminal Code provides:
44 Attempt
(1)If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2)However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
Consequently, the elements of the offence of attempt to pervert the course of justice are:
(a)The accused engaged in conduct (physical element).
(b)The accused intended to engage in that conduct (default fault element).
(c)The accused intended that, by his conduct, he would pervert the course of justice (including by obstructing, preventing or defeating the course of justice).
(d)The accused carried out conduct that was more than merely preparatory to the commission of the offence of perverting the course of justice.
The accused engaged in conduct
I am satisfied that the accused demanded that Mrs Southwell change the statement that she had made to police by withdrawing any allegation that the accused had acted inappropriately and, instead, stating that they were “perfect parents”.
Mrs Southwell’s statement was the key statement implicating the accused in the offence against s 40(a) of the Crimes Act. The demand was made as the accused shook Mrs Southwell’s statement in her face and in the context of belligerent behaviour by the accused over a significant period of time. It was made while Mrs Southwell was staying with the accused and was, in that sense, captive. It does not matter whether the demand was made on the night of 4 December 2017 or the afternoon of 5 December 2017. In either case, it was preceded by agitated and overbearing behaviour by the accused.
The demand by the accused that Mrs Southwell change her statement was not idle or trivial. It was not a fanciful threat, but a real one that Mrs Southwell took seriously. It made Mrs Southwell fearful, such that she agreed to change her statement although she did not want to do so.
The text message sent by Ms Miller to Mrs Southwell in which Ms Miller apologised for Mr Summers’ unacceptable and unfair behaviour during Mrs Southwell’s visit provided corroboration (albeit of a very general nature) for the evidence of Mrs Southwell.
I am satisfied of this element beyond reasonable doubt.
The accused intended to engage in the conduct
There is no doubt that the demand by Mr Summers was made intentionally. It was entirely consistent with the surrounding statements and behaviour of the accused.
I am satisfied of this element beyond reasonable doubt.
The accused intended that, by his conduct, he would pervert the course of justice
In R v Rogerson (1992) 174 CLR 268, Brennan and Toohey JJ explained at 279–280 that:
At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence. It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice …
The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice …
(Citations omitted)
I am satisfied beyond reasonable doubt that the accused intended to obstruct, if not defeat, the course of justice. That was the only purpose for which the demand could have been made. Criminal proceedings had been commenced. The outcome of those proceedings hinged on the evidence of Mrs Southwell as she was the person to whom the critical representation had been made (that Ms Miller was taking the child to the play area and would return to the Club restaurant).
The conduct was more than merely preparatory
I am satisfied beyond reasonable doubt that the conduct was more than merely preparatory. From the perspective of the accused, it was the only conduct that he needed to perform to pervert the course of justice. If Mrs Southwell acceded to his demand and changed her statement, the prosecution would have struggled to achieve a conviction in the criminal proceedings against the accused.
Geographical Nexus
The accused disputed the existence of a geographical nexus between the offence and the ACT, pointing out that all the physical elements of the offence happened in Queensland.
As the factfinder, I must decide whether I am satisfied on the balance of probabilities that the required geographical nexus for the offence does not exist: s 66(2) of the Criminal Code.
Part 2.7 of the Criminal Code (ss 62–67) extends the application of ACT laws that create offences beyond the territorial limits of the ACT. It is an enactment of the regime recommended by the Model Criminal Code Officers Committee.
Section 65(2)(a) provides that pt 2.7 applies to an offence committed completely outside the ACT (an offence in relation to which all the physical elements occur outside the ACT) only if it is also an offence in the place where it is committed. An attempt to pervert the course of justice is, itself, a discrete offence: s 44(1) of the Criminal Code, and see R v Holliday [2017] HCA 35; 260 CLR 650 at [31]. All physical elements of that discrete offence occurred outside the ACT. An attempt to pervert the course of justice is also an offence in Queensland: s 140 of the Criminal Code 1899 (Qld). Consequently, the requirement of s 65(2)(a) is satisfied.
Section 62 provides that pt 2.7 extends the application of a territory law that creates an offence beyond the territorial limits of the ACT “if the required geographical nexus exists for the offence”.
Section 64 provides:
64 Extension of offences if required geographical nexus exists
(1) An offence against a law is committed if—
(a)disregarding any geographical considerations, all elements of the offence exist; and
(b)a geographical nexus exists between the ACT and the offence.
(2)A geographical nexus exists between the ACT and an offence if—
(a)…
(b)the offence is committed completely outside the ACT (whether or not outside Australia) but has an effect in the ACT.
Section 63 provides:
63 Interpretation—pt 2.7
(1)For this part, the required geographical nexus is the geographical nexus mentioned in section 64(2).
(2)For this part, the place where an offence is committed is the place where any of the physical elements of the offence happen.
(3)For this part, the place where an offence has an effect includes—
(a)any place whose peace, welfare or good government is threatened by the offence; and
(b)any place where the offence would have an effect (or would cause such a threat) if the offence were committed.
The Dictionary to the Criminal Code defines “threat” to include a threat made by any conduct, whether explicit or implicit and whether conditional or unconditional.
I have found that, disregarding any geographical considerations, all elements of the offence of attempt to pervert the course of justice exist, as required by s 64(1)(a) of the Criminal Code.
Consequently, the critical question is whether a geographical nexus exists between the ACT and the offence, as required by s 64(1)(b) of the Criminal Code.
For an offence committed entirely outside the ACT, a geographical nexus exists between the ACT and the offence if the offence “has an effect in the ACT”: s 64(2)(b) of the Criminal Code.
Whether an offence “has an effect” in the ACT is the subject matter of s 63(3)(a) (an offence has an effect in the ACT if it threatens the peace, welfare or good government of the ACT) and s 63(3)(b) (an offence has an effect in the ACT if by committing it, it would have an effect (or would cause such a threat) in the ACT).
The offence of attempt to pervert the course of justice is a discrete offence and, as I have found, disregarding geographical considerations, all elements of the offence are established. I find that s 63(3)(a) is applicable. It is not necessary to determine the circumstances in which s 63(3)(b) would apply, but presumably these may extend to the commission of an inchoate offence.
The expression “peace, welfare or good government” picks up and modernises the time honoured expression “peace, order and good government”, which describes a very broad concept. There is no substantive difference between the two expressions: Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 at 9.
Did the offence committed by the accused threaten the peace, welfare or good government of the ACT? In my view, it did. The intent and subject matter of the offence was to derail good government by perverting the course of justice in the ACT. The administration and delivery of justice is integral to good government. Section 63(3) does not require that an offence actually subverts good government, but merely that it threatens to do so.
The accused submitted that, even if I was satisfied that there was an attempt to pervert the course of justice in the ACT, in the circumstances of the case I would not be satisfied that the offence posed a threat to the peace, welfare or good government of the ACT. The accused relied on the maxim de minimis non curat lex to support the argument that “threatened” in s 63(3)(a) cannot be interpreted to extend to threats of a trifling or fanciful nature. Instead, it referred to a real and substantial threat. He submitted that, as there was no real risk that Mrs Southwell would succumb to the accused’s demand, there was no real threat to the peace, welfare or good government of the ACT. In support of the submission, the accused referred to D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 2014, 8th ed) at 4.22.
There are at least two good reasons for rejecting this argument. First, there was a real risk that Mrs Southwell would agree to the accused’s demand; she said that she felt scared and that, had the accused persisted and not become distracted, she would have changed her police statement. Second, the submission takes an unduly narrow view of what constitutes a threat to peace, welfare or good government. Any attempt to pervert the course of justice is an assault on good government.
The Court was taken to Director General, NSW Department of Agriculture v Temmingh [2003] NSWSC 247 (Temmingh). That case concerned an alleged offence against NSW law that, as a veterinary surgeon, the accused supplied steroids in China. Simpson J (as her Honour then was) considered a provision that largely mirrored s 63(3) and was not satisfied that the offence had an effect in NSW.
However, Temmingh was very different from the present case. One can readily understand that the threat posed by the supply of steroids in China was a threat to the welfare of persons in China. It would seem that no argument was developed as to why the conduct might also pose a threat to the peace, order or good government of NSW, and none is apparent.
In relation to Count 2, I am not satisfied that the required geographical nexus does not exist. Indeed, I consider that it does exist.
Verdicts
I return the following verdicts:
(a)The accused Ms Miller is guilty of Count 1 (by deception, take a child).
(b)The accused Mr Summer is guilty of Count 1 (by deception, take a child).
(c)The accused Mr Summer is guilty of Count 2 (attempt to pervert the course of justice).
| I certify that the preceding one hundred and sixty-three [163] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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