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Court of Criminal Appeal 22 May 2015

B v R

[2015] NSWCCA 103

Public order & justice offences
CRIMINAL LAW APPEAL CONVICTION SELF DEFENCE STATUTORY REQUIREMENTS

Citation: B v R [2015] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 22 May 2015
Judges: Ward JA at [1]; Simpson J at [209]; Wilson J at [339]

Background

The appellant (referred to throughout as "Ms B" to preserve her child's anonymity) was convicted in the District Court of an offence under s 65Y of the Family Law Act 1975 (Cth): removing a child from Australia in contravention of a Family Court parenting order. In April 2008, Ms B took her then three-year-old son out of the country knowing that an interim parenting order was in force, that her husband had not consented, and that no court order permitted the removal.

Ms B's stated reason for acting was her belief that her son was being sexually abused by his father during supervised contact sessions ordered by the Family Court, and that a proper investigation had not occurred and would not occur. She believed unsupervised access was imminent and that removing the child to Europe was the only way to protect him. The child was located in Amsterdam in September 2010 following media publicity, and Ms B was later extradited to Australia.

At trial, Ms B was unrepresented. The trial judge ruled that she had not discharged the evidential burden required to place two defences before the jury: sudden or extraordinary emergency (s 10.3 of the Criminal Code 1995 (Cth)) and self-defence (s 10.4). She was convicted and received a 28-day good behaviour bond under s 20(1)(a) of the Crimes Act 1914 (Cth). Ms B appealed both her conviction and sentence, also without legal representation.

  • Whether the trial judge erred in ruling that Ms B had not discharged the evidential burden required to put the defence of sudden or extraordinary emergency (s 10.3, Criminal Code 1995 (Cth)) before the jury.
  • Whether the trial judge erred in ruling that Ms B had not discharged the evidential burden required to put the defence of self-defence (s 10.4) before the jury.
  • Whether the trial judge erred in ruling that evidence of the alleged sexual abuse was irrelevant to particular questions at trial.
  • Whether the trial judge erred in limiting the admissibility of a psychological report (Dr Waters' report).
  • On sentence: whether the sentencing judge erred in failing to make positive findings about whether Ms B suffered from a delusional disorder.
  • On sentence: whether the sentencing judge erred in refusing to allow Ms B to cross-examine the father on his victim impact statement.

Decision

Ground 1: Evidential burden for the two defences

The Court of Criminal Appeal upheld the trial judge's rulings on both defences. Under s 10.3 of the Criminal Code 1995 (Cth), the defence of sudden or extraordinary emergency requires, among other things, that the emergency be sudden or extraordinary, and that the conduct be a reasonable response to it. The court found that the circumstances Ms B faced, while genuinely distressing to her, did not satisfy the statutory threshold at the evidential level. The situation had been known to Ms B for some time and was addressed through ongoing Family Court proceedings, which are not consistent with the concept of a sudden or extraordinary emergency requiring immediate criminal conduct.

The self-defence claim under s 10.4 similarly failed at the evidential threshold. Self-defence under that provision requires the defendant to have believed the conduct was necessary to defend a person, and for the conduct to be a reasonable response to the perceived threat. The court found that the evidence did not, even on the most favourable reading, raise a sufficient foundation for the jury to consider that defence.

Grounds 2 and 3: Evidentiary rulings

The court rejected the challenge to the trial judge's ruling on the relevance of the sexual abuse allegations to certain questions at trial. The evidence was not excluded wholesale; rather, the trial judge carefully confined its use. The challenge to the admissibility of Dr Waters' psychological report was also dismissed, the court finding no error in the rulings made below.

Sentence appeal

Leave to appeal against sentence was granted, but the appeal was dismissed. The court found no error in the sentencing judge's approach to the question of mental illness. The sentencing judge was not required to make a positive finding that Ms B did not suffer from a delusional disorder. On the cross-examination issue, the court confirmed that a sentencing hearing is not the appropriate venue for litigating the truth of abuse allegations contained in a victim impact statement, and no error was established in refusing that leave.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 10.3 of the Criminal Code 1995 (Cth), the defence of sudden or extraordinary emergency requires an evidential foundation showing the emergency had the quality of being sudden and extraordinary; a situation that developed over months and was the subject of ongoing court proceedings does not readily satisfy that threshold.
  • The evidential burden for the defences of sudden or extraordinary emergency and self-defence under the Criminal Code 1995 (Cth) must be discharged before a trial judge is required to leave those defences to a jury; a genuine subjective belief in the need to act is not, by itself, sufficient.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to make affirmative findings resolving contested factual allegations (such as a diagnosis of delusional disorder) where those allegations were not established by the evidence before the court.
  • A sentencing hearing is not an appropriate forum for cross-examining a witness on a victim impact statement in order to contest the underlying factual narrative, particularly where the purpose is to relitigate matters going to the guilt of a third party.
  • Conduct by a self-represented accused in proceedings is accommodated as far as possible, but the substantive legal requirements for statutory defences remain unchanged; latitude in procedure does not alter the evidential threshold the defendant must meet.

Legislation and Cases Referenced

Legislation
- Family Law Act 1975 (Cth) s 65Y
- Criminal Code 1995 (Cth) ss 10.3, 10.4, 13.1, 13.2, 13.3, 101.5
- Crimes Act 1914 (Cth) ss 20, 16AB
- Evidence Act 1995 (Cth) s 136
- Criminal Appeal Act 1912 (NSW)
- Criminal Code 1988 (Qld) s 25
- Family Law Rules 2004 (Cth)

Key Cases
- Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
- Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75
- Perka v The Queen (1984) 14 CCC (3d) 385
- R v Katarzynski [2002] NSWSC 613
- R v Loughnan [1981] VR 443
- R v Nahlous [2013] NSWCCA 90
- RP v R [2013] NSWCCA 192
- The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601