AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
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
Date: 22 May 2015
Judge(s): Ward JA at [1]; Simpson J at [209]; Wilson J at [339]

Background

The appellant, referred to as Ms B to protect her child's identity, was convicted of an offence under section 65Y of the Family Law Act 1975 (Cth) for taking her then three-year-old son out of Australia on 24 April 2008. An interim parenting order of the Family Court of Australia was in force at the time, providing for the child to have supervised contact with his father. Neither the father's consent nor a court order permitting the removal existed.

Ms B held a firm belief that her son had been sexually abused by his father and that Australian authorities would not properly investigate her allegations. She believed unsupervised access for the father was imminent and that removal to Europe was the only way to protect her child. The child was located in Amsterdam in September 2010 and returned to Australia. Ms B was extradited in 2011 and prosecuted, representing herself at trial and on appeal.

Following conviction, the trial judge did not impose imprisonment but instead released Ms B on a good behaviour bond of 28 days, taking into account the eight months she had already spent in custody and the serious Family Court restrictions on her contact with her child. Ms B appealed her conviction and sought leave to appeal against sentence.

Legal Issues

  • Whether the trial judge erred in ruling that Ms B had not discharged the evidential burden required under sections 10.3 and 10.4 of the Criminal Code 1995 (Cth) to put the defences of sudden or extraordinary emergency and self-defence to the jury.
  • Whether the trial judge erred in making evidentiary rulings that prevented Ms B from adducing evidence going to the truth of the sexual abuse allegations.
  • Whether the trial judge erred in failing to make findings on the admissibility of the report prepared by the court-appointed expert, Dr Waters.
  • Whether the sentencing judge erred in declining to make a positive finding that Ms B does not suffer from a delusional disorder.
  • Whether the sentencing judge erred in refusing to permit Ms B to cross-examine the father on his victim impact statement.

Decision

Ground 1: Defences of sudden or extraordinary emergency (s 10.3) and self-defence (s 10.4)

The trial judge accepted that there was evidence capable of suggesting a reasonable possibility that Ms B subjectively believed an extraordinary emergency existed and that her conduct was necessary to defend her child (at [36], [76]). However, the trial judge found, and the Court of Criminal Appeal agreed, that the evidential burden was not discharged in relation to the further requirements of both defences.

For the section 10.3 defence, the court found that the availability of an appeal from the supervised contact orders, and the possibility of making an urgent application for a variation or stay of those orders, meant the evidence could not support a reasonable possibility that Ms B reasonably believed removing the child from Australia was the only reasonable way to deal with the emergency or that it was a reasonable response (at [37]-[42], [74]). Ms B's arguments that an appeal would have been too costly, too slow, or futile were assessed against the objective standard required by the defence and found to fall short (at [57]-[84]). Allowing the defence to proceed on the basis that she distrusted the Family Court's processes would, in effect, permit the jury to dispense with compliance with the law (at [81], [305]).

The same reasoning applied to self-defence under section 10.4. The court held that removing the child from Australia was a disproportionate response to the circumstances as Ms B perceived them, and the evidence could not support a reasonable possibility that it was a reasonable response (at [75]-[84], [308]).

Ground 2: Exclusion of evidence going to the truth of the sexual abuse allegations

The court found no error in the trial judge's evidentiary rulings. The truth of the sexual abuse allegations was not relevant to the trial once the defences were found to be unavailable (at [86]-[90]). Further, Ms B had expressly disavowed any intention at the trial to have the jury determine whether sexual abuse had in fact occurred (at [102]-[106], [314]). She was bound by the forensic decisions she made during the trial (at [109]). The rulings restricting certain questioning of Professor Briggs were also upheld as properly made in light of the scope of questions actually asked and the concessions Ms B herself made (at [115]-[124]).

Ground 3: Admissibility of Dr Waters' report

The court rejected this ground because Dr Waters' report was never tendered in evidence at trial. Neither the Crown nor Ms B ultimately pressed for its admission. The trial judge was never asked to rule on its admissibility and accordingly no such ruling was required (at [141], [322]). The court also rejected the proposition that the trial judge should have ruled that Dr Waters lacked expertise to provide his report to the Family Court, noting this was a matter for the Family Court to determine (at [141]).

Sentence appeal, Ground 1: Failure to make findings on mental condition

The sentencing judge declined to make a positive finding that Ms B had or had not a delusional disorder, concluding the evidence was insufficient for that determination (at [173]). The Court of Criminal Appeal held this involved no error. A sentencing judge's duty is limited to making findings relevant to the determination of sentence, and a finding that no delusional disorder existed would have served no sentencing purpose beyond removing a potential mitigating factor (at [179]-[192]). The absence of such a finding did not affect the sentence imposed.

Sentence appeal, Ground 2: Refusal to permit cross-examination of the father on his victim impact statement

The sentencing judge refused cross-examination on the basis it would not assist in determining the appropriate penalty (at [200]). The Court of Criminal Appeal held this was a discretionary decision and no relevant error in the House v The King sense was established (at [201]). The victim impact statement was not used adversely to Ms B, and the proposed cross-examination was directed to establishing the father had committed criminal offences against his son, bearing the hallmarks of cross-examination for a collateral purpose (at [206]).

Orders Made

  • Appeal from conviction dismissed.
  • Leave to appeal against sentence granted and appeal dismissed.

Key Takeaways

  • Under sections 10.3 and 10.4 of the Criminal Code 1995 (Cth), a defendant bears an evidential burden to point to evidence suggesting a reasonable possibility that the relevant beliefs were both held and objectively reasonable. That burden, though described as requiring only "slender evidence," is not discharged where lawful alternative courses of action remained available, such as an appeal or urgent application to the Family Court (at [27]-[28], [74], [83]).

  • A conviction appeal ground premised on the wrongful exclusion of evidence cannot succeed where the accused expressly disavowed, during the trial, any intention to adduce that evidence for the purpose now relied upon on appeal. Accused persons are bound by their forensic decisions made at trial, including those attributable to their own inexperience (at [109]).

  • The Court of Criminal Appeal confirmed that permitting a necessity-based defence to go to the jury on the basis that a defendant distrusted the processes of a lawful court would, in effect, condone unlawful action arising from that distrust, a result the court regarded as impermissible (at [81], [305]).

  • No ruling on the admissibility of an expert report is required where the report was never tendered in evidence. A trial judge cannot be said to have erred in failing to rule on admissibility of material that was never pressed for admission (at [141], [322]).

  • In dismissing the sentence appeal, the Court of Criminal Appeal affirmed that a sentencing judge is required to make only those factual findings that are relevant to the sentencing determination. A finding that a defendant did not suffer from a mental condition would carry no sentencing relevance beyond removing a potential mitigating factor and, to be made adversely, would need to be established beyond reasonable doubt (at [179]-[181], [190]).

Legislation and Cases Referenced

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

Cases
- Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202
- Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
- 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; (2005) 158 A Crim R 586
- Perka v The Queen (1984) 14 CCC (3d) 385
- Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
- R v B (No 2) (District Court (NSW), Woodburne SC DCJ, 15 November 2013, unrep)
- R v Constantine (1991) 25 NSWLR 431
- R v Isaacs (1997) 41 NSWLR 374
- R v Katarzynski [2002] NSWSC 613
- R v Loughnan [1981] VR 443
- R v MacDonell (Court of Criminal Appeal (NSW), 8 December 1995, unrep)
- R v Nahlous [2013] NSWCCA 90
- R v Rogers (1996) 86 A Crim R 542
- RP v R [2013] NSWCCA 192
- The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601
- Wakim v Mathiew Pty Ltd [2002] NSWSC 405
- Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645