Tasmania v Frame

[2012] TASSC 46

[2012] TASSC 46

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Tasmania v Frame [2012] TASSC 46

PARTIES:  TASMANIA, State of
  v
  FRAME, William Tyler

FILE NO:  530/2011
DELIVERED ON:  9 July 2012
DELIVERED AT:  Burnie
HEARING DATE:  6, 9, 10 July 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Particular offences – Offences against the person – Abduction with intent and like offences – Generally – Abduction of a young person – Whether honest and reasonable mistaken belief as to consent of parent is a defence.

Criminal Code (Tas), s189.

R v Kennedy [1981] VR 565, distinguished.

R v Prince (1875) LR 2 CCR 154; R v Mikkelsen (1912) 31 NZLR 1261, discussed.

Aust Dig Criminal Law [2264]

REPRESENTATION:

Counsel:
           State:  K Brown
           Accused:  K Edwards
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Legal Aid Commission

Judgment Number:  [2012] TASSC 46
Number of paragraphs:  6

Serial No 46/2012
File No 530/2011

STATE OF TASMANIA v WILLIAM TYLER FRAME

RULING DURING TRIAL  BLOW J

(Edited version of oral ruling)  9 July 2012

[The accused was charged with a single count of abduction of a young person under the age of 17 years contrary to the Criminal Code, s189. That section provides, "Any person who unlawfully takes away, or causes to be taken away, an unmarried person under the age of 17 years out of the possession and against the will of a parent of that person or a person having the lawful charge or care of that person, is guilty of a crime." At the trial, before the opening speeches, counsel requested that his Honour determine whether an honest and reasonable mistaken belief that the taking of the child was not against the will of the child's parent would amount to a defence.]

1. I am going to direct the jury that the Crown bears the burden of proving beyond reasonable doubt that the accused, at the time of the taking of the child, did not have an honest and reasonable mistaken belief that the mother consented to the taking of the child.  The Criminal Code, s14, provides:

"Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."

1. In this case the crime is constituted by the Code, s189, and a number of provisions as to what is, or is not, a defence, are made by s190. Section 190(1) provides that it is a defence for the accused to prove that he did not know, or did not have reasonable grounds for believing, that the young person was in the lawful charge of the person out of whose possession the young person was taken. Section 190(2)(a) expressly provides that the consent of the young person to being taken away is not a defence. Section 190(2)(b) expressly provides that a belief on reasonable grounds that the young person was of or above the age of 17 years is not a defence. The section is silent as to what the legal position is if an accused person believes on reasonable grounds that the taking of the child was not against the will of a parent.

1. That state of affairs strongly suggests that, if Parliament had intended honest and reasonable mistake as to the will of the parent not to be a defence, Parliament would have said so. In s190(2), Parliament has expressly provided that two forms of mistake are not a defence. In subs(1), Parliament has reversed the onus in relation to another type of mistake.  As to the type of mistake that I have been asked to rule on, Parliament has remained silent.

1. The Full Court of the Supreme Court of Victoria held in R v Kennedy [1981] VR 565 that an honest and reasonable mistaken belief as to the consent of parents or guardians was not a defence to a charge under the Crimes Act 1958 (Vic), s59. However that was a section which required, amongst other things, proof beyond reasonable doubt of an intention to have carnal knowledge of the child. There is no such requirement in our s189. There is in our s186. Our s189 is in similar terms to an English provision, s55 of the Offences Against the Person Act 1861 (24 & 25 Vic, c100).  That section was considered by the Court for Crown Cases Reserved in R v Prince (1875) LR 2 CCR 154 on another point. In the judgment of Bramwell B (with whom seven other judges concurred) at 175, his Lordship said:

"If the taker believed he had the father's consent, though wrongly, he would have no mens rea."

That was obiter, but it is authoritative.

1. There is also a decision of the New Zealand Court of Appeal in R v Mikkelsen (1912) 31 NZLR 1261. In that case, there had been a direction to a jury to the effect that they were not to convict if they believed that the accused was claiming in good faith a right to the possession of the child. The Court of Appeal held that the conviction should be affirmed, and found no fault with the direction in relation to a claim in good faith of a right to the possession of the child. That case concerned the Crimes Act 1908 (NZ), s442.  I have not been able to find a copy of that section in the time available.

1. Kennedy is distinguishable. The other cases that I have referred to contain dicta which support my analysis. I think that, if Parliament had intended an honest and reasonable mistake as to the will of the parent or person in lawful charge of the child not to be a defence, it would have included something to that effect in s190. Those are my reasons for the direction I propose to give.