Regina v Jackson

[1999] NSWCCA 387

Reported Decision: 113 A Crim R 299

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v. JACKSON [1999] NSWCCA 387
FILE NUMBER(S):	CCA No. 60328 of 1999
HEARING DATE(S):	Thursday 2 December 1999
JUDGMENT DATE:	2 December 1999
PARTIES :	REGINA v. JACKSON, Wilfred
JUDGMENT OF:	Handley JA at 51; Barr J at 52; Greg James J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/31/0487
LOWER COURT JUDICIAL OFFICER:	Armitage, DCJ.

COUNSEL:	Crown: M. Grogan App: J.C. Papayanni
SOLICITORS:	Crown: S.E. O'Connor App: Jeffreys & Associates
CATCHWORDS:	Criminal law - appeal - taking girl from custody of parent - nature of offence - effect of girl voluntarily leaving - comparison with other offences - necessity for accused to take some active role in depriving custodial parent of possession - issue for jury - necessity to put defence in summing-up - new trial or acquittal - criteria for exercise of discretion - recommendation for reform of relevant offences.
ACTS CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	Livens (1907) 23 WN 15 Charman 27 WN 152 Prior (1898) 15 WN 171 Doney (1990) 171 CLR 207 Fleming (1998) 158 ALR 379 Jarvis (1901-1906) 20 Cox CLC 249 Jenkins (1906) 23 WN 5 Davis (1897) 23 WN 144 Macney (1903) 29 VLR 22 Stanton (1981) 3 A. Crim. R. 294 Mejac [1994] Tas. SR 26 Alexander (1912) 7 Crim. App. R. 110 King (1986) 161 CLR 423 Di Simoni (1981) 147 CLR 383 Downs (aka Piggott) (1985) 18 A. Crim. R. 75 DPP (Nauru) v. Fowler (1984) 154 CLR 627 Parker (1997) 186 CLR 494
DECISION:	Appeal allowed

CRIMINAL APPEAL

No. 60328 of 1999 CORAM: HANDLEY, JA.

BARR, J.
GREG JAMES, J.

THURSDAY 2 DECEMBER 1999

REGINA v. WILFRED JACKSON

JUDGMENT

1 GREG JAMES, J: This appeal was brought against a conviction in the District Court of New South Wales at Tamworth on 11 June 1999 on one count that on or about 2 December 1985 at Kempsey in the state of New South Wales the appellant did unlawfully take KD out of the possession and against the will of TID, a person having the lawful charge of KD, she being an unmarried girl under the age of 16 years. Leave to appeal against sentence is also sought. 2 The offence is under s.90 of the Crimes Act 1900 for which a maximum penalty is prescribed of three years imprisonment. The appellant was sentenced to a total term of two years and six months to date from 10 June 1999 and a minimum term of one year and three months was prescribed. 3 He had also been charged with offences of having sexual intercourse with KD and carnally knowing her but was acquitted of those offences by the verdict of the jury. 4 I take the summary of the Crown case from the Crown submissions on this appeal:-

"In 1985 the complainant moved to Kempsey with her family. The appellant moved with them and stayed for about a month. On 2 December 1985, four days before her birthday, the complainant and her brother, D, were waiting for the school bus at the bus stop near her home when the appellant drove up in his ute and offered to give them a lift to school. The complainant said that neither she nor her brother wanted to go with the appellant and they told him that they wanted to catch the bus. He told them not to worry about the bus and made the complainant sit in the middle and D near the window. The appellant dropped D at school (Melville High School) and gave him a note to give his mother. The complainant said that she was not aware of the contents of the note. The appellant did not allow the complainant to get out of the car, even though she told him that she wanted to go to school. He told her that he was taking her home to her mother.
The appellant then drove away from the school but he did not return to the complainant's mother's house. Instead, he drove to his daughter, Muriel Fay Jackson's place at Woolgoolga."

5   Additionally, evidence was given that was, strictly speaking, irrelevant to that count that the complainant and the appellant remained at the daughter's house for a time then moved into a flat in Coffs Harbour. They were thereafter living at various locations around the north coast area. Acts of intercourse between them took place over the succeeding years and it was the evidence of the complainant that the appellant had not allowed her to make contact with her family. 6   The complainant and the appellant remained together until April 1994 and during this time the complainant gave birth to four children by the appellant. It was her evidence that in 1994 she left the appellant for a year and thereafter commenced custody proceedings for the four children. She had complained to the police in the expectation that might assist her in obtaining custody of the children. There was evidence notwithstanding various letters and birthday cards admitted into evidence asserting the contrary from her, that she did not wish to remain with the appellant and that these were written under duress. 7   TID, her mother, gave evidence that when she left home her daughter was unmarried and under the age of 16 and that she had given no permission to the appellant to take her away. 8   Evidence had been given also by the appellant's daughter that the day prior to her father bringing the complainant to her home, he had discussed with her the possibility of taking one or other of TID's children away from her because, so he alleged, TID was not a fit and proper mother. She told the appellant that the children were not his concern. The appellant told his daughter that he had made arrangements with the complainant to leave the back door of the house unlocked. The daughter gave evidence that he left her place about 2.30 am to 3.00 am following that conversation and returned later that day with the complainant who was in school uniform, had her school bag and jumper and some items of underwear. She said that she attempted to dissuade the complainant from staying with the appellant but that the complainant said she was in love with the appellant and, although she tried to persuade the complainant to return to her mother, the complainant declined her assistance. 9   The appellant, who gave evidence at the trial, admitted driving the complainant from her mother's home but said that he had done so at the request of the complainant; that the complainant told him that she did not want to stay at her mother's house because her mother's friend was coming to live there and she was afraid of him; and that he had received from her a letter requesting him to pick her up from the bus stop. He said that at the time he picked her up from the bus stop, it was his understanding that she had already left home. He then wrote a note for the complainant's mother indicating his intention of taking the complainant to his daughter's place and gave it to her brother to give to his mother. 10   He said that the complainant went willingly with him and willingly stayed with him until 1994 and that he had not attempted to prevent her from contacting her family. 11   The complainant's mother gave evidence that the note said:-

"By the time you receive this letter, we will be in Sydney. Don't worry about (KD), she's better off with me. I'll get her some new clothes, don't get the law because we'll only just disappear further into hiding."

12   The complainant's mother said it read:-

"Something similar to that. Actually, that's more or less the words that I read in the letter. As I said, it was only a small piece."

13   There were other versions of the note referred to. 14   The complainant had given evidence that when the appellant picked her up at the bus stop, she had wished to wait for the bus rather than go with him. When they went to the school, she wanted to go to school but he said: "Well, I'll take you back home to your mother", but instead, drove her to his daughter's place. 15   In cross-examination she denied that she had decided to leave home or that she had asked the appellant to pick her up. The appellant's daughter had given evidence that the complainant said, on arrival at her place, that "she wanted to go away with him, she was in love with him and all the rest of it...", and that the complainant had told her that the complainant had left her mother. 16   The appellant admitted making a prior arrangement with the complainant to pick her up from the bus stop, but asserted that it was for the purpose of simply transporting the complainant to his daughter's place. He further asserted that she had already left home and that leaving home was her own idea; that she had arranged the pick up by letter. He asserted that he did not recall the specific terms of the note but admitted giving it to the brother to transmit to the mother. 17   At the conclusion of the Crown's cross-examination, the learned trial judge raised with the Crown Prosecutor a failure to cross-examine the accused on his assertion that he had picked up the complainant after she had already left home, raising the suggestion that, in those circumstances, the complainant might not have been in the mother's possession at the relevant time. He granted leave to the Crown to resume the cross-examination. It does not appear that course was consented to, but nor does it appear that it was opposed. 18   During that further cross-examination, the appellant asserted that the complainant had already made the arrangements to leave home with him for the purpose of seeing if she could stay at his daughter's house. He asserted:-

"I didn't take her away for your information either. She left of her own free will, she wasn't chained or roped up and taken away. Well I couldn't help - well if she wants to go she goes."

19 At the close of the Crown case his Honour raised the question of whether the mere taking of the complainant away from the bus stop might not amount to taking her from the possession of her mother and, in consequence, there was some debate concerning appropriate directions. 20 In this regard it is important to note that the appellant was not charged with any offence of having sexual intercourse with the complainant either with or without her consent on the occasion on which it was alleged he took her away. He was not charged with the offence under s.86 of the Crimes Act which deals with the taking away of a female of any age who has an interest in property or is a presumptive heiress or next of kin, from motives of lucre with intent to marry or carnally know her or to cause her to be married or carnally known. Nor was the offence under s.87 involving the fraudulent allurement, taking away or detention of a female under the age of 21 years out of the possession and against the will of the person having the lawful charge of her with intent to marry or carnally know her, nor the offence under s.89 which requires the application of force in taking away, again with intent that she be married or carnally known. It was not the offence under s.90A of taking away or detaining a person with intent to hold them for ransom or for any other advantage. 21 The discussion in respect of the proper directions on the elements of the relevant offence tended to turn on cases of some degree of antiquity concerning the elements of various of this group of offences now appearing in the Crimes Act 1900 and their statutory predecessors. In particular, the debate dealt with the question of whether or not at law, a girl under 16 could, by absconding, renounce the protection of her lawful guardian. It appears that because of this discussion, his Honour concluded that the submission put by counsel for the defence to the jury that there was a factual matter for them to decide in these circumstances was incorrect, although the submission itself was not precisely identified. 22 Nonetheless, the reference to Regina v. Livens (1907) 23 WN 15; Regina v. Charman (1910) 10 SR 540; Regina v. Prior (1898) 15 WN 171 suggested that the submission put by counsel for the defence was that a factual question remaining for the jury on the issue of whether or not his client had done what was necessary to unlawfully take the complainant from her mother's possession, but his Honour appears to have rejected that there was any valid argument to that effect open. 23 His Honour directed the jury that if TID was caring for the complainant and if the accused had no court order entitling him to custody of or access to the complainant, then, to remove her, as he had been alleged to have removed her, would very clearly amount to the unlawful taking of KD out of her mother's possession. He directed the jury that the defence submission that if the complainant had decided to leave home before going to the bus stop, she would not have been in the possession of her mother at the time the accused picked her up, had, as a matter of law to be rejected. 24 He directed the jury that the attitude of girl had nothing to do with the charge and that it did not matter whether she wanted to go, or did not want to go. 25 Subsequently, on an application for redirection, trial counsel asked his Honour to give a direction focusing on whether or not what the accused did was a taking of the victim. He submitted that his Honour's earlier directions had appeared to cover the circumstance of the taking such that his Honour had just directed the jury that, as a matter of law, the complainant was in the mother's possession and there was nothing left for their consideration at all. 26 The Crown Prosecutor conceded that there was an issue for the jury as to whether he had taken her out of her mother's possession. His Honour said:-

"Well, Mr. Parker, I think perhaps I should give it, but only because your client himself, in his evidence, raised the suggestion that he was no more than a taxi driver."

27   His Honour directed that the jury that:-

"Members of the jury, there are just a couple of matters that I should expand on, very briefly I should say. The first is this, the third charge includes an allegation that the accused did unlawfully take (KD). It follows that an actual taking must be proved by the Crown. I remind you of this because the accused has told you in his evidence that he was no more than a taxi driver. All he did, he says, was to drive her to Woolgoolga. It follows, he says, that he did not take her from her mother's possession.
In response to that, of course, the Crown says that it is plain as day that he was not just a taxi driver because the only acceptable evidence is that, having arrived at Woolgoolga, he immediately formed a relationship with (KD) and, shortly thereafter, travelled with her all over the countryside and remained with her for nine years. Nevertheless, I just want to make it plain to her that it is an essential element in the Crown case that the Crown prove that there was this unlawful taking, the taking."

28   This was the whole of the relevant directions. The jury were offered no assistance even as to whether being "no more than a taxi driver" would exculpate the accused. The reference to the formation of the relationship and the subsequent conduct was, at the least, likely to obscure a proper appreciation of the essentially undescribed necessary element. 29   The grounds of appeal are as follows:-

"1. His Honour, at the end of the Crown case, should have directed a verdict of acquittal.
2. Alternatively, there was a miscarriage of justice in that the verdict of the jury was unsafe and unsatisfactory.
3. His Honour erred in law in misdirecting and/failing to direct the jury adequately or properly as to the element of unlawfully taking (KD) out of the possession of (TID).
4. His Honour erred in law in not directing the jury in accordance with Jelf, J. in Regina v. Jarvis 20 Cox CC 249 and Regina v. Jenkins 23 WN 5.
5. His Honour erred in law in rejecting the submission of the defence counsel as set out on page 15 of the summing-up.
6. His Honour erred in law in not directing the jury as to the facts supporting ground 3 for the appellant.
7. The sentence was excessive:-
(a) in all the circumstances;
(b) by sentencing in effect for facts supporting a charge under s.87 of the Crimes Act 1900 for which he had not been convicted."

30 I consider Ground 1, that is that his Honour should have directed a verdict of acquittal, cannot be upheld. Although, as I shall show, a relevant and material issue existed in relation to the taking of the complainant from the possession of her mother, nonetheless the evidence on the matter was not all one way. As to the other elements of the offence, there was either no issue posed by the appellant at all, or the matters were admitted. Plainly, therefore, it would not have been open to his Honour to direct a verdict of acquittal (see Doney v. The Queen (1990) 171 CLR 207). 31 Similarly, there was sufficient evidence so that it was open to the jury to find guilt. The ground that the conviction was unsafe and unsatisfactory or unsupported by the evidence (Fleming v. The Queen (1998) 158 ALR 379) is not made out. 32 Turning to the remaining grounds, the submission of the appellant as to the necessity for blandishments must be rejected. 33 "Blandishments or persuasion" are not necessary to constitute the seducing of a girl from one having charge of her, a taking away under the section. Nor is the decision of Jelf, J. in Regina v. Jarvis (1901-1906) 20 Cox CC 249 to that effect. His discussion of persuasion and blandishment was in the context of posing for the jury the question of whether or not the active part in the going away together was that of the prisoner. He held that an actual physical taking away was not necessary if the girl was induced to leave by seduction. If, on the other hand, she determined to leave home, showing him that was her determination and insisted on leaving with him (his Honour even gave the illustration of her being so forward as to write and suggest to him that he should go away with her) and he yielded to her suggestion, taking no active part in the matter, then he was to be acquitted. 34 The direction in Charman (supra) was that the prisoner should be acquitted if the girl herself, of her own accord, removed herself without any inducement by the appellant out of possession of the mother. No criticism of that direction was suggested on appeal. 35 Jarvis (supra) was expressly followed in Regina v. Jenkins (1906) 23 WN 5. Regina v. Davis (1897) 23 WN 144 is to a similar effect. More recently in Regina v. Macney (1903) 29 VLR 22 on a special case reserved for the Full Court of the Supreme Court of Victoria by Madden, CJ., the court embarked on an examination of the correctness of the views of the Chief Justice when he directed the jury as to what would constitute a taking of the girl in respect of a similar statutory offence which included the element of intent that she should be carnally known. 36 Counsel had argued that there must be a display of some activity on the accused's part and that he must have done something by way of inducement or persuasion, or must have, in some way, conduced to the girl leaving her home. The Chief Justice rejected that contention and directed the jury that the girl's willingness to go with the prisoner was immaterial. 37 It was held that the girl's willingness would have been quite immaterial if the jury had concluded that the prisoner was the moving spirit but that the Chief Justice's refusal to direct as to the necessity that he be an active party was in error. 38 In Regina v. Stanton (1981) 3 A Crim R 294, the Western Australian Court of Criminal Appeal, for the purpose of examining sections 330 of the criminal code 1913 (WA), looked at the various common law provisions and authorities. Wallace, J. concluded there must be a causal link between the activity of the prisoner and the leaving of the possession of the person entitled to her custody by the girl. To similar effect, he noted, was the judgment of Crisp, J. in Regina v. Mejac (1994) Tas. SR 26 in relation to section 189 of that State's Criminal Code (1924) Tas. 39 Brinsden, J., noting as Wallace, J. had, that the intent of the girl in itself has always been held to be immaterial, nonetheless noted that the question the jury should have been invited to consider was whether the accused did that which had the requisite effect. He specifically cited Jarvis (supra) as an illustration of his view of the correct criterion. 40 Although the issue as to whether or not the appellant had performed some such act as relevantly occasioned the removal by the girl from the possession of the person entitled has been referred to in different factual circumstances as relating to the question of whether or not, at the relevant time, the girl was in possession or there was a taking, nonetheless, the concept has consistently underlain the construction of the statutory provisions providing for this and similar offences. 41 So strongly has that element been regarded that in Regina v. Alexander (1912) 7 Crim. App. R. 110 is reported the upholding of the appeal from a plea of guilty by an unrepresented accused whom a Commissioner had told that there was no defence in circumstances that there might be some evidence that the girl left the custody of her parents voluntarily. 42 This was really the issue also in this case. Until his Honour's attention was drawn to the specific matter at the close of his summing-up on this charge, there had, because of the confusion generated by the different ways in which the concept had been referred to in the cases, been, in my view, a failure to put at all the true defence (Regina v. Downs (aka Piggott) (1985) 18 A. C Crim R 75 at 93). 43 The re-direction did not draw the jury's attention to the relevant evidence as bearing upon the essential question. It did not expressly, at that point of the summing-up, re-direct the jury as to the standard of proof and, in particular, the evidence of the appellant's daughter which may well have had a bearing upon the jury's decision in the context of a direction as to standard of proof. It is clear that there was evidence that the jury might have accepted of a taking within the section. It is clear also, however, that there was evidence such as might have cast doubt upon the jury finding that element. 44 For these reasons I am of the view that grounds 3, 4, 5 and 6 should be upheld and that, in the absence of full directions on such an essential matter, there has been a material miscarriage of justice as is referred to in s.6(1) of the Criminal Appeal Act. Such a miscarriage, relating as it does to the central issue at the trial on this charge, is not one to which the proviso might run. 45 I turn to consider whether there should be a new trial. 46 In sentencing the appellant his Honour appears to have regard to matters of aggravation which were not part of this offence and which, if proved, would have established relevant elements of more serious offences. That is to say he appears to have concluded that the appellant abducted the complainant for the purpose of carnally knowing her. That would amount to an error (see The Queen v. de Simoni (1981) 148 CLR 383). Regard seems also to have been had to many events subsequent to the offence. The sentence may have been in error. 47 The events occurred in December 1985. The appellant has been in custody since 10 June 1999, having been arrested and charged and on bail subject to conditions since 14 March 1996. Although he has prior record, it is not for any offence of this nature and he was at the trial acquitted of the other charges. 48 I have already referred to the circumstances in which this complaint came to be laid so long after the event. There was, prior to this trial, apparently, an aborted trial. The appellant is now 74 years of age and in ill health and has had no significant prior offences for over 18 years. In all the circumstances, I do not consider that a new trial should be ordered, having regard to the principles in King v. The Queen (1986) 161 CLR 423; Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 CLR 627; Parker v. The Queen (1997) 186 CLR 494. 49 I propose the appeal should be upheld and an acquittal entered. 50 I would not, however, leave the matter without recommending that the legislature give consideration to reconsidering this group of offences in the Crimes Act 1900 in consequence of changes in modern community attitudes. I would propose that the appeal be upheld and an acquittal entered. 51 HANDLEY, JA: I agree with the orders proposed by Justice Greg James and the reasons he has given. 52 BARR, J: I also agree. 53 HANDLEY, JA: The orders of the court are appeal allowed, conviction quashed, acquittal entered and the appellant is ordered to be released forthwith.