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Court of Criminal Appeal 2 December 1999

REGINA v. JACKSON

[1999] NSWCCA 387

Also reported as 113 A Crim R 299
Public order & justice offences
CRIMINAL LAW APPEAL TAKING GIRL FROM CUSTODY OF PARENT NATURE OF OFFENCE EFFECT OF GIRL VOLUNTARILY LEAVING COMPARISON WITH OTHER OFFENCES

Citation: Regina v Jackson [1999] NSWCCA 387
Court: NSW Court of Criminal Appeal
Date: 2 December 1999
Judge(s): Handley JA, Barr J, Greg James J

Background

The appellant was convicted in the District Court at Tamworth of unlawfully taking a girl under the age of 16 out of the possession and against the will of her mother, contrary to section 90 of the Crimes Act 1900 (NSW). The offence was alleged to have occurred in December 1985. He was acquitted at the same trial of related sexual offences involving the same complainant.

The Crown's case was that the appellant intercepted the complainant and her brother at a school bus stop, prevented the complainant from attending school or returning home, and drove her to his daughter's property, ultimately keeping her with him until 1994. The complainant's mother testified she had not consented to the appellant taking her daughter away.

The appellant's account differed significantly. He said the complainant had already decided to leave home of her own accord, had written to him requesting the pick-up, and went with him willingly. He had passed a note via her brother to the mother indicating his intentions. The question of whether the complainant had voluntarily left home before the appellant collected her was central to the defence.

  • Whether the offence under section 90 of the Crimes Act 1900 requires the accused to have played an active role in depriving the custodial parent of possession, or whether it can be established even where the child leaves of her own volition.
  • Whether the trial judge's summing-up adequately directed the jury on the defence case, specifically the appellant's assertion that the complainant had already voluntarily left home before he collected her.
  • Whether the failure to put the defence to the jury constituted a material miscarriage of justice.
  • Whether the appropriate remedy was a new trial or an acquittal.

Decision

The Court of Criminal Appeal held that the offence of taking a girl out of the possession of her custodial parent requires the accused to have played some active role in depriving that parent of possession. Where a child voluntarily leaves home independently of any act by the accused, the offence is not made out simply because the accused subsequently harbours or accompanies her. This distinction was critical to the defence run at trial.

The court found the trial judge had failed to adequately direct the jury on this essential element and on the defence case arising from the appellant's evidence. The appellant had given evidence that the complainant had already left home before he collected her, and that he was acting on her own prior request. The summing-up did not put this defence to the jury in a way that allowed it to be properly considered. The court held that this omission was not a minor deficiency but went to the central issue in the trial, and therefore constituted a material miscarriage of justice under section 6(1) of the Criminal Appeal Act 1912. The proviso (which allows an appeal to be dismissed notwithstanding a misdirection if no substantial miscarriage of justice occurred) could not apply.

On the question of sentence, the court noted the sentencing judge appeared to have taken into account the purpose of carnally knowing the complainant as an aggravating factor, even though the appellant had been acquitted of the sexual offences. Reliance on facts that would establish elements of a more serious offence of which an accused was acquitted constitutes sentencing error under the principle in R v De Simoni (1981) 148 CLR 383.

Turning to remedy, the court exercised its discretion to enter an acquittal rather than order a new trial. The offence had been alleged to have occurred in December 1985, over 14 years before the appeal. The appellant was 74 years old and in ill health, had no significant prior offences in the preceding 18 years, and had been acquitted of the more serious charges. The court applied the principles from King v The Queen (1986) 161 CLR 423, DPP (Nauru) v Fowler (1984) 154 CLR 627, and Parker v The Queen (1997) 186 CLR 494 in concluding that a new trial was not appropriate in all the circumstances.

Greg James J concluded the judgment by recommending that the legislature give consideration to reviewing this group of offences in the Crimes Act 1900 in light of changes in modern community attitudes.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • Acquittal entered.
  • Appellant ordered to be released forthwith.

Key Takeaways

  • A conviction under section 90 of the Crimes Act 1900 for taking a girl out of parental custody requires proof that the accused played an active role in depriving the custodial parent of possession. The offence is not established merely by the accused harbouring or accompanying a child who has independently and voluntarily left home.
  • Where a significant factual issue goes to the heart of a defence, the trial judge's failure to direct the jury adequately on that issue will constitute a material miscarriage of justice to which the proviso cannot be applied.
  • Under the principle established in R v De Simoni, a sentencing court must not treat as an aggravating factor any circumstance that would have constituted an element of a more serious offence, particularly where the accused was acquitted of that more serious charge.
  • In exercising the discretion to order a new trial or enter an acquittal, the Court of Criminal Appeal will weigh factors including the age and health of the accused, the time elapsed since the alleged offending, the prior record, and whether the circumstances as a whole make a new trial unjust.
  • The Court of Criminal Appeal expressly recommended legislative review of the relevant group of child custody offences in the Crimes Act 1900, signalling judicial concern that the statutory framework may not reflect contemporary community standards.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 90
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- King v The Queen (1986) 161 CLR 423
- R v De Simoni (1981) 147 CLR 383 (cited as 148 CLR 383 in judgment)
- DPP (Nauru) v Fowler (1984) 154 CLR 627
- Parker v The Queen (1997) 186 CLR 494
- Doney v The Queen (1990) 171 CLR 207
- Fleming (1998) 158 ALR 379
- Livens (1907) 23 WN 15
- Charman 27 WN 152
- Prior (1898) 15 WN 171
- 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
- Downs (aka Piggott) (1985) 18 A Crim R 75