R v Tauiliili CA254/96 [1996] NZCA 269; [1997] 1 NZLR 525; (1996) 14 CRNZ 294; (1996) 15 FRNZ 1 (7 November 1996)

Last Updated: 12 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 254/96

_{THE QUEEN}

v

_{TALASILIA TAUILIILI}

Coram Richardson P Gault J Thomas J Blanchard J Neazor J

Hearing 18 September 1996

Counsel G J Burston for Crown

P H H Tomlinson for Respondent

_{Judgment 7 November 1996}

JUDGMENT OF RICHARDSON P AND NEAZOR J DELIVERED BY RICHARDSON P

The question of law arising on this appeal under s 380 of the Crimes Act

1961 concerns the interpretation of the child abduction provisions of s 210 of the

Act.

The section

Section 210(1) defines the crime as the act of a person:

who, with intent to deprive any parent or guardian or other person having the lawful care or charge of any child under the age of 16 years of the possession of the child, or with intent to have sexual intercourse with any child being a girl under that age, unlawfully -

(a) Takes or entices away or detains the child; or

(b) Receives the child, knowing that the child has been so taken or enticed away or detained.

In terms of subs (2) it is immaterial “whether or not the child consents, or is taken or goes at the child’s own suggestion, or whether or not the offender believed the child to be of or over the age of 16”. And subs (3) provides:

No one shall be convicted of an offence against this section who gets possession of any child, claiming in good faith a right to the possession of the child.

The charge

The indictment charged the accused with

... on or about 12 February 1995 at Christchurch, with intent to deprive Robyn Margaret Ritchie, a parent having the lawful care of Silia Vanessa Sarah Tauiliili, a child under the age of 16 years, of the possession of the said child, [he] did unlawfully detain the said Silia Vanessa Sarah Tauiliili.

The factual background

The essential facts are recorded in the case stated under s 380. Silia is the child of Mr Tauiliili and Ms Ritchie. She was six years old in February 1995. The parents had separated in July 1990 and are now divorced. On 24 July 1990 the Family Court made a custody order in the mother’s favour. On 13 September the father was granted access on defined terms which were subsequently varied by agreement. Access was every second weekend from 5 pm Friday to 6 pm Sunday.

On Friday 10 February 1995 the father uplifted Silia in accordance with the agreed access arrangement. He did not return her on the Sunday. He took her from Christchurch, where the mother lived, to Wellington, where he had family. Silia was returned to the mother in Wellington on Thursday 16 February. His subsequent explanation to the police was that Silia had previously complained to him on a number of occasions that she was being ill-treated by the mother and others while in the mother’s care; that he had reported his concerns to the Department of Social Welfare but nothing had been done; that on the weekend in question Silia had renewed her complaints and he decided to keep Silia with him at least until matters had been resolved to his satisfaction; and on Monday 13 February he went to the Department of Social Welfare at Porirua asking that Silia’s complaints be investigated. On the same day the mother obtained a warrant to enforce the custody order. After negotiations the child was returned to the mother on the Thursday,

16 February.

The Judge’s ruling

In May 1995 the father was charged with abduction under s 210 and was committed for trial. Following a s 347 application the trial Judge ruled that s 210(3) precluded a conviction on the charge. His reasoning was that the father “got possession” of Silia when he uplifted her on Friday 10 February; at that point the father was acting in accordance with the agreed access arrangement; and accordingly he had a good faith claim to the possession of the child in terms of subs (3).

To allow the point of law to be considered in this court, rather than discharge the accused under s 347 the Judge directed the jury to enter a verdict of not guilty and reserved a question of law under s 380.

The question of law reserved

The question reserved is:

Whether s 210(3) of the Crimes Act 1961 is to be read as applying to an accused who obtains possession of a child in circumstances giving rise to a claim of good faith right to possession but who subsequently acts in a way which might amount to an offence against s 210(1)(a)?

The basis of the charge

The charge against the father was of detaining the child. As framed, it proceeded on the premise that the father was entitled to take the child away but subsequent conduct on his part amounted to detaining the child. Further, the charge was of detaining the child on or about 12 February, the Sunday. As framed, the charge assumed, and by implication from the father’s rights under the access arrangement, that the detaining began only when the father failed to return the child to the mother at the end of the agreed period of access.

The legislative history

Section 210 is an amalgam of ss 229 and 230 of the Crimes Act 1908. The former was concerned with abduction with intent to have sexual intercourse and the latter with what was graphically described in the section heading as “stealing children under 14”. The scheme and language of that part of s 210 derived from the

original s 210 of the Criminal Code Act 1893. In turn, s 210 of the 1893 Act was drawn from the English Draft Criminal Code (Indictable Offences) Bill attached to the “Report of the Royal Commission of Inquiry into the Law Relating to Indictable Offences” (1879) and was similar in material respects to the English statutes passed during the 19th Century to deter child stealing. That term thus reflects the historical view that children were considered chattels which might be stolen.

The first statute was 54 Geo 3 c 101, passed on 18 July 1814 and described as

“An Act for the more effectual Prevention of Child Stealing”. That Act provided:

Whereas the Practice of carrying away young Children, by forcible or fraudulent means, from their Parents or other Persons having the Care and Charge or Custody of them, commonly called Child Stealing, has of late much prevailed and increased: and Whereas no adequate Punishment is as yet provided by Law in England or Ireland for so heinous an Offence; Be it therefore enacted ...

[1.] That if any Person or Persons, from and after the passing of this Act, shall maliciously, either by Force or Fraud, lead, take or carry away, or decoy or entice away, any Child under the Age of Ten Years, with Intent to deprive its Parent or Parents, or any other Person having the lawful Care or Charge of such Child of the Possession of such Child, by concealing and detaining such Child from such Parent or Parents, or other Person or Persons having the lawful Care or Charge of it ... every such Person or Persons ... shall be deemed guilty of Felony, and shall be subject and liable to all such Pains, Penalties, Punishments and Forfeitures, as by the Laws now in force may be inflicted upon, or are incurred by, Persons convicted of Grand Larceny.

2. Provided always, and be it further enacted, That nothing in this Act shall extend, or be construed to extend, to any Person who shall have claimed to be the Father of an illegitimate Child, or to have any Right or Title in Law to the Possession of such Child, on account of his getting Possession of such Child, or taking such Child out of the Possession of the Mother thereof, or other Person or Persons having the lawful Charge thereof ...

Section 21 of the second statute, 9 Geo 4 c 31 of 1828, re-enacted in substance the provisions of the 1814 Act. The third statute was the Offences against

the Person Act 1861. Relevantly for present purposes there were two material changes from the original 1814 legislation. First, the 1814 formulation was “lead, take or carry away, or decoy or entice away”. The 1861 provision introduced the alternative “or detain”, the formulation being “lead or take away, or decoy or entice away or detain”. Second, the exemption under the 1861 statute was in these terms:

Provided that no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child, or taking such child out of the possession of any person having the lawful charge thereof.

While in some respects a wider exemption, the later statute continued to employ the same expression “the getting possession of such child or taking such child out of the possession ... ” as applicable to the added “or detain” in the substantive formulation. And while neither exemption provision referred specifically to the father of a legitimate child, the House of Lords in R v D [1984] AC 778, 804-805 accepted that in the state of society and family law which existed in England in the 19th Century a father had absolute and paramount authority over his children, constituting lawful excuse in a prosecution of a father for the common law offence of kidnapping or taking away the child. Again, referring to the proviso to the 1861 section, Watkins LJ delivering the judgment of the Court of Appeal in R v Austin [1981] 1 All ER 374, 378 said:

Parliament in its wisdom undoubtedly decided that the mischiefs of matrimonial discord which are unhappily so widespread should not give rise to wholesale criminal prosecutions arising out of disputes about children, about who should have possession and control of them. That and that alone is the reason for the existence of the proviso to s 56.

Section 210 of the Criminal Code Act 1893 was a shorter provision than its English predecessors but in its essentials adopted that same scheme and language which has

carried through to the 1961 s 210. The key phrase of the 1961 s 210 is “takes or entices away or detains” the child and subs (3) exempts from conviction a person who “gets possession of any child, claiming in good faith a right to possession of the child”.

While the original child stealing provision was an enactment directed specifically and only against that evil and supplemented the common law offence of kidnapping, s 210 must be seen in its context in the Crimes Act. None of the New Zealand criminal statutes has attempted to deal in a comprehensive way with the ramifications of kidnapping and abduction. Part XXI of the 1893 statute titled “Crimes Affecting Conjugal and Parental Rights: Bigamy; Abduction” contained seven sections dealing with disparate topics. Sections 204 and 205 concerned bigamy, s 206 abduction of a woman with intent to marry or carnally know; s 207 abduction of an heiress with that intent; s 208 protecting property interests of such women; s 209 abduction of a girl under 16 with intent to carnally know; and s 210 stealing children under 14. That scheme carried through to the 1961 Act under which s 208 replaced the 1908 re-enactment of s 206 of 1893; the 1908 counterparts of ss 207 and 208 were not carried forward to 1961; and s 210 of the 1961 Act was an amalgam of what had been ss 209 and 210 of the 1893 statute. A new provision in the 1961 Act, s 209, was derived in part from s 233 of the Canadian Criminal Code of 1954. Section 209(1) of the Crimes Act provides:

S209. Kidnapping - (1) Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully carries off or detains any person without his consent, or with his consent obtained by fraud or duress, with intent -

(a) To cause him to be confined or imprisoned; or

(b) To cause him to be sent or taken out of New Zealand; or

(c) To hold him for ransom or to service.

The subsection followed s 233(1) of the Canadian Code, except for the substitution of “unlawfully carries off or detains” for the Canadian expression “kidnaps”. Subsections (2) and (3) had no counterpart in the Canadian provision. They read:

(2) A child under the age of 16 years shall be deemed to be incapable of consenting to being carried off or detained.

(3) No one shall be convicted of an offence against this section who gets possession of any child, claiming in good faith a right to the possession of the child.

Thus the good faith exception under s 209(3) is in the same terms as subs (3) of s 210. In this regard it is of some interest that the relevant clause of the Crimes Bill 1989 (cl 155) omitted subs (3) of s 209.

Recognising the deficiencies in their legislative coverage of abduction and kidnapping, both England and Canada, which too had based its child stealing provisions on the English draft (Canadian Criminal Code 1892, s 204; and see Ewaschuk, “Abduction of Children by Parents”, (1979) 21 Cr LQ 176) have enacted more specific and detailed provisions, in England the Child Abduction Act 1984 and in Canada the recast ss 279-286 (see Smith & Hogan, Criminal Law (7th ed

1992) 441 and Mewett & Manning on Criminal Law (3rd ed 1994) 767 respectively). Significantly, in both jurisdictions the claim of right exception has been dropped.

The rival contentions

Against that background we turn to consider the narrow issue on the appeal. It is whether s 210(3) continues to exempt from prosecution one who obtains possession of a child claiming in good faith a right of possession but subsequently

continues to retain physical possession of the child after the original right to possession of the child ended.

Mr Burston for the Crown drew attention to the suggestion in the 5th edition of Smith & Hogan (1983) at p 390 that the good faith exception under the

1861 provision was limited to cases of getting possession of or taking the child and did not apply to detaining the child. However, his general submission was that the accused’s good faith claim to possession must be based on the right to possession at the time the alleged offence occurred. It is, he submitted, necessary to distinguish the possession which results from the detaining from that possession which results from the initial taking. If the accused’s good faith claim to the right to possession of the child has terminated, here because the access period has ended, s 210(3) no longer protects the accused. By deliberately omitting to return the child the respondent obtained possession of the child of a different quality than that which he had during the period of access. He got unlawful possession as opposed to the lawful possession he had previously enjoyed. Acceptance of the contrary argument would mean, Mr Burston submitted, that unlawful taking of the child could result in a conviction but unlawful retaining of the child beyond the expiry of lawful access could not. And a similar result would arise under s 209.

Mr Tomlinson for the respondent submitted that, giving “gets” its ordinary and natural meaning in the context, of “obtaining”, the exception is directed to that act and is complete on the getting or obtaining of possession. “Detaining” is one means of getting possession and it is used in the section in that sense. In any event the crucial point of time is when the accused “gets possession” of the child and the subsection protects the accused until he or she relinquishes possession. Otherwise, he said, those important qualifying words, “gets possession” designed historically to limit criminal prosecutions in family situations, would have to be read by substituting “has possessed” or by providing simply:

No one shall be convicted of an offence against this section who claims in good faith a right to possession of the child.

If construed, as the Crown submitted, it would mean that technically every parent who keeps their child a moment beyond the agreed access time could be guilty of abduction.

Conclusions

In a statute imposing criminal liability words should be given their ordinary and natural meaning where the context allows. In the social setting in which the child stealing statutes were enacted in 1814 and 1861, employing essentially the same statutory scheme and language as was carried through to 1961, it is not surprising that the Legislature should have excluded the operation of the child stealing provision against a parent gaining possession of the child in good faith. Both the 1961 introductory phrase “No one shall be convicted of an offence against this section who ... ” and the phrase employed in the 1893 Code and s 230 of the

1908 Act as well as in the 1814 statute, “Nothing in this section shall extend to anyone who ... ” signal comprehensiveness. The historical basis for the exception and its breadth of language support the conclusion that a parent who gains possession of a child claiming a good faith right to possession obtains the protection of the subsection and remains within its protection unless and until physical possession is relinquished.

The remaining question is whether subs (3) must nevertheless be read down where the prosecution relies on the detaining limb of subs (1). “Detains” is a word with several meanings. It is defined in The Shorter Oxford English Dictionary as “To keep in confinement or custody; to keep back, withhold; to keep, retain, to hold, hold down; to keep from proceeding; to keep waiting; to stop”. Chambers

Twentieth Century Dictionary similarly defines the verb “detain” as “to hold back:

to withhold: to stop: to keep: to keep in custody”.

In a criminal statute the actus reus is complete when the act or omission in question first occurs. “Takes or entices away or detains” are different means by which a parent may get possession of the child and the alternative stated in subs (2) “It is immaterial whether the child ... goes at the child’s own suggestion” accords with using “detains” in that sense. Importantly too, when “detain” was added in

1861 the language of the exception remained essentially unchanged.

Reading detains in its sense of obtaining possession of the child reflects the immediate context of subs (1) and is in harmony with subs (3) and the statutory and common law history.

There are no New Zealand cases directly in point. Differing views as to the meaning of “detain” have been taken in other jurisdictions where counterparts of s 210 have been under consideration. In R v Livens [1907] NSWStRp 8; (1907) 7 SRNSW 151 the accused was found guilty of detaining a girl under 16 who had run away to the accused instead of returning to her mother’s home. The statutory description was “allures, takes away or detains”. Darley CJ concluded that the accused had detained the girl out of the possession of the mother: “Finding the girl out of the possession of her mother the prisoner detained her, that is to say he prevented her from going back into the actual physical possession of her guardian” (p 155). In R v Pryce [1972] Crim LR 307 the accused was charged under s 56 of the Offences Against the Person Act 1861 with detaining a 12 year old boy who had left home after an argument. The accused allowed the boy to remain at his flat and there was no evidence that he was not free to leave. The Judge directed an acquittal. In the course of his reasons he concluded:

That of the meanings given by the Shorter Oxford English Dictionary, the first meaning “to keep in confinement or custody” was the ordinary and natural meaning, and was to be preferred to the secondary meaning contended for by the prosecution “keep back” or “withhold”.

But in Re Bigelow and The Queen (1982) 69 CCC (2d) 204 the Ontario Court of Appeal took a contrary view. The father who had weekend access had taken the child from Ontario to Alberta. He was charged in Ontario with unlawfully detaining the child. The Court of Appeal upheld the trial court’s refusal to quash the committal for trial. Referring to the use of the word “detains” in s 250(1) the Court of Appeal said:

It is obvious from the context that it must be interpreted as meaning “withhold”. The mere keeping or confinement of the child in Alberta is not the gravamen of the offence. Rather it is the intentional withholding of the child from the wife which had the effect of depriving her of her custodial rights. There was evidence before the learned provincial judge sufficient to permit him to properly form an opinion that the offence alleged in the information took place in Ontario where the omission by the appellant to discharge his legal duty to return the child occurred.

See, also, R v McDougall (1990) 62 CCC (3d) 174. And in the Canadian Bill of Rights case, Chromiak v The Queen (1970) 46 CCC 257 Ritchie J delivering the judgment of the Supreme Court of Canada observed at p 262 that in the various sections of the Criminal Code, including s 250, “the words ‘to detain’ are consistently used in association with actual physical restraint”.

For the reasons given earlier, and in the absence of any clear guidance from other jurisdictions, we prefer the construction of “detains” favourable to a defendant parent, that it is directed to the initial gaining of physical possession of the child in that way. If it is considered that current social attitudes may require the special sanction of a prosecution for kidnapping where access arrangements are breached, the Legislature may recast the 1961 Act provisions as has England and Canada.

Alternatively, it may expressly expand the concept of detaining, as was proposed in cl 156(1) of the Crimes Bill 1989: “ ... Detains the child, whether or not that person had lawful possession of the child before the unlawful detention commences”. Clause 156(3) also dropped the s 210(3) expression “gets possession” and confined the defence to a belief on reasonable grounds of “a right to possession or continued possession of the child”. In our view it is implicit in clauses 155 and 156 that the framers of the Crimes Bill saw the need for legislative change as the means of moving away from an existing focus on the initial gaining of possession. And if, as foreshadowed, there is change in the legislation s 209 plainly also needs consideration.

For the reasons given we would dismiss the appeal.

A final comment. Other sanctions for breach of access arrangements already exist. A warrant to enforce a custody order may be obtained, as happened here, and s 19(6) of the Guardianship Act 1968 makes it an offence to wilfully resist or obstruct execution of a warrant. Contempt proceedings may be appropriate and in that regard Lord Brandon in R v D at p 806 expressed the view that the conduct of parents who snatch their own children in defiance of a court order relating to their custody or control should, in general, as a matter of policy be dealt with as a contempt of court, rather than as the subject matter of a criminal prosecution. And, emphasising the impact on the child, Trapski’s Family Law Vol 4, GA 19.10 suggests that where shared custody arrangements break down or a parent with regular access refuses to return a child to a custodial parent:

A request for information, negotiation, the possibility of a counselling referral, or the intervention of counsel for the child (if appointed) should all be considered before an application for a warrant is made.

Solicitors

Crown Solicitor, Wellington

Sladden Cochrane & Co, Wellington, for respondent

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 254/96}

THE QUEEN

v.

_{TALASILIA TAUILIILI}

Coram: Richardson P Gault J Thomas J Blanchard J Neazor J

Hearing: 18 September 1996

Counsel: G J Burston for Crown

P H H Tomlinson for Respondent

_{Judgment: 7 November 1996}

JUDGMENT OF GAULT, THOMAS AND BLANCHARD JJ DELIVERED BY THOMAS J

We have had the advantage of reading the draft judgment of Richardson P, including the benefit of the extensive research which he has undertaken into the legislative history of s 210 of the Crimes Act 1961. We favour, however, a different construction of that section.

The details of the charge which was laid against Mr Tauiliili, the factual background, the trial Judge’s ruling, and the legislative history of the section in issue are all traversed in the learned President’s judgment and need not be repeated. It is convenient, however, to restate the relevant portion of s 210 with the words which we consider critical in construing its terms stressed. It reads as follows:

210. Abduction of child under 16 - (1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive any parent or guardian or other person having the lawful care or charge of any child under the age of 16 years of the possession of the child, or with intent to have sexual intercourse with any child being a girl under that age, unlawfully -

(a) Takes or entices away or detains the child; or

(b) Receives the child, knowing that the child has been so taken or enticed away or detained

...

(3) No one shall be convicted of an offence against this section who gets possession of any child, claiming in good faith a right to the possession of the child. (Emphasis added).

The issue is whether Mr Tauiliili, who obtained physical and lawful possession of his daughter on the Friday evening, can avail himself of the defence provided in subs (3) when he deliberately failed to return the child to her mother on the Sunday evening as required pursuant to the custody and access arrangements between the parents. In our view, he cannot do so.

We consider that the meaning of s 210 is plain. Mr Tauiliili did not “get possession” of his daughter when he uplifted her on the Friday evening. Certainly, at that time he obtained lawful possession of his daughter, but for the purposes of the section the possession in issue is the possession which he got when he withheld her from her mother on the Sunday evening contrary to the mother’s right to the custody of the child and with the intention of depriving the mother of possession of the child. It is at that time that any claim in good faith to

a right to the possession of the child must arise. Our reasons can be shortly stated.

First, following the standard rule of statutory construction, the phrase “gets possession” in subs (3) must be interpreted in the context of the section as a whole. Unless the context suggests otherwise, the word “possession” in the phrase “gets possession” and in the phrase “right to the possession of the child” in subs (3) should be given the same meaning. The possession referred to must then relate back to the word “possession” in the substantive provision contained in subs (1). The pertinent words in that subsection are “... with intent to deprive any parent... having lawful care or charge of any child... of the possession of the child”. The possession which the alleged abductor gets, and in respect of which good faith is needed, is possession contrary to that of which the abductor intends to deprive the other person. It is the possession resulting from the act of taking or enticing away or detaining. When this occurs, the state of mind of the abductor is material, both as to the intention to deprive the other person of possession and the good faith claimed to accompany the act. Applied to this case, it was the possession which the mother was lawfully entitled to as at 6 p.m. on the Sunday evening and which was the subject of Mr Tauiliili’s alleged unlawful intent which is the possession in issue.

The contrary interpretation undoubtedly rests on the intuitive notion that a person cannot get possession of something when they have already got possession of it. This notion loses its force in the present context, however, once it is appreciated that the possession which Mr Tauiliili got on the Friday was the possession to which he was lawfully entitled. The possession which he got by detaining the child on the Sunday evening was the possession to which his ex-wife was lawfully entitled. It is that possession which is the subject matter of subs (1) and which dictates the meaning of the twice-used word “possession” in subs (3).

The significance of the fact that the word “possession” is used in the phrase “a right to the possession of the child” in subs (3) should not be overlooked. The words should certainly be given the same meaning in the same subsection. Yet, it is difficult to see how the possession referred to in that phrase can be anything other than a reference back to the possession in issue in subs (1). It is at the time the child is detained with an intent to deprive the parent having lawful custody of the possession of the child that the right to possession must be claimed.

This interpretation avoids holding that the word “possession” in subs (3) refers to the time when possession is first obtained while in subs (1) it clearly means the possession which the person having the lawful care or charge of the child is entitled to enjoy at the time of the alleged abduction. It also means that the good faith claim of a right to possession of the child would apply at the time the alleged “intent to deprive” the person entitled to lawful custody arises, thus providing the section with a logical cohesion which is otherwise lacking.

Secondly, this interpretation accords with the ordinary meaning of the words in issue. The two words, “detains” in subs (1) and “gets” in the phrase “gets possession” in subs (3) need to be examined to confirm that a person can detain and thereby get possession of a child already in his or her physical possession.

As Richardson P states, the word “detains” has a number of meanings. The President quotes the definition contained in the Shorter Oxford Dictionary; “to keep in confinement or custody; to keep back, withhold; to keep, retain, to hold, hold down; to keep from proceeding; to keep waiting; to stop”. The Oxford English Dictionary expands this definition. The second meaning ascribed to the word “detain” (after the first meaning given of keeping in confinement or under

restraint) is “to keep back, withhold; especially to keep back what is due or claimed”.

To our mind, the word “detains”, in its natural and ordinary sense, connotes the notion of keeping or holding back something. That something may already be in the other person’s physical possession, but it is detained in being kept or held back. It does not seem to be a strained use of the English language to suggest that an intending abductor who already has physical possession of a child can detain that child in the sense of keeping or withholding the child from the person who is at that time entitled to the lawful possession of the child.

Moreover, many words have different shades of meaning and we cannot see why it is necessary to prefer one recognised meaning to another. Why cannot the words be used in both senses? Thus, for the purposes of s 210, the abductor may “detain” a child by keeping the child in confinement or custody or by keeping or withholding the child from the parent entitled to the custody of the child. In both cases the child is literally detained.

The word “gets” has an over-abundance of meanings. The definition takes up ten pages of the Oxford English Dictionary which provides a wide variety of meanings. We doubt that reference to the dictionary meaning is therefore of much assistance, particularly as the word should be interpreted as part of the phrase “gets possession” and in the context in which it is used. A number of the meanings given, however, confirm that the word “gets” properly can be used where a person may already have the article in issue in his or her possession. Thus, while the first meaning given is “to obtain, procure”, a later meaning is “to obtain, come to have...”. Again, we do not consider that it is strained to say that a person can get possession in the sense of obtaining or coming to have possession

of a child already in his or her physical possession when the child is kept or withheld from another person who is entitled to possession.

Thirdly, if it is correct that subs (3) applies when a person first gets possession of the child serious anomalies arise. It would be anomalous that a person who, with intent to abduct a child, could be convicted under s 210 if he or she did not already have possession of the child but that a person with the same intent could not be convicted if they already had lawful possession of the child before forming the necessary intent. It would be anomalous that this defence would persist even when the lawfulness of that possession had expired. It also would be anomalous if a person who already had possession of the child but who “takes ...away” the child could not be convicted under s 210, such as, for example, a parent who, while exercising a right of access takes the child to another town, or even out of the country.

Moreover, the operation of the section would be anomalous in exempting only a limited category of alleged abductors from the purview of s 210. Parental disputes over the custody or access of a child may or may not be suitable matters for resolution by the application of the criminal law. See, for example, the observations of Lord Brandon in R v D [1984] 1 AC 778, at 806. Quite clearly, however, Parliament has worded the section in terms which include a parent who is not entitled to the lawful care or charge of the child at the time of the alleged offence. Hence, for present purposes, the point is that the interpretation adopted in the Court below and favoured by Richardson P would not affect persons, including parents, who take, entice away or detain a child who is not in their possession. It would relieve from the reach of the section only the anomalous exception of those parents already in possession of the child. Furthermore, it would provide a defence for persons already having lawful possession of the

child, such as child-carers or minders, creche workers, teachers, youth leaders, and the like, who are not parents.

The principle of statutory interpretation has been so frequently advanced as to require no emphasis; the Courts should not lightly ascribe to Parliament an intention which would produce anomalous results of this kind.

The fourth point is related to the previous point. There is no reason in principle or of policy why subs (3) should not apply to a person who has the possession of a child but who then decides to detain that child so as to deprive the other parent of his or her lawful custody. For the purposes of the application of subs (3), any distinction between a person who takes or entices away or detains a child who is not in his or her possession and a person who detains a child already in their possession is devoid of rational explanation. Once again, the Court should hesitate before attributing to Parliament any such directionless or arbitrary intention.

Fifthly, s 210 is to be read in conjunction with s 209 which relates to the crime of kidnapping. Section 209 contains the same defence in subs (3) of that section as is contained in subs (3) of s 210. Everyone commits the crime of kidnapping who unlawfully “carries off or detains” any person without his or her consent with intent to cause them to be confined or imprisoned, removed from New Zealand or held to ransom. It cannot have been intended that an alleged kidnapper cannot be convicted of this crime if he or she already has physical and lawful possession of the person whom they intend to carry off or detain. The consequences of such an interpretation are so dire as to require no elaboration. Yet, this would be the result if the same meaning were to be given to subs (3) in s

209 as adopted by the Judge in respect of s 210 (3). It is difficult to accept that

the Legislature would have intended different meanings for two identically worded subsections in adjoining and closely related sections.

While the point can be made more graphically in relation to the crime of kidnapping away from the context of a parental dispute, the same reasoning applies to s 210. A person charged with minding a child, for example, who then, with intent to deprive the parent of possession of the child by keeping or withholding the child from that parent, could not be convicted of abduction because of the terms of subs (3). Again, Parliament cannot have intended to countenance such a serious gap in the criminal code of this country.

Sixthly, we consider that it is arguable that the legislative history supports the interpretation which we favour. The early intent was to exclude from prosecution, first, the father of an illegitimate child and, later, any person claiming any right to the possession of the child, including the mother. The legislation then naturally spoke of the abductor “getting possession”. In 1861 the legislation was redrafted to read, “lead or take away, or decoy or entice away or detain”. It would have been contemplated, of course, that a child could be detained even though the child would not be in the possession of the alleged abductor until he or she was detained. To our mind, therefore, no legislative intention emerges to exclude persons who can be said to already have possession of the child at the time they detain the child. The Legislature then introduced s

209 in 1961 adopting in subs (3) the wording of subs (3) of s 210 verbatim. It is virtually impossible to suggest that at that time Parliament anticipated exempting persons from the crime of kidnapping, whether by unlawfully carrying off or detaining the victim, who happened already to have possession of the person “kidnapped”. The phrase “gets possession” can then only be sensibly interpreted to refer to the time when the victim is carried off or detained. The adoption of the

same wording in s 209 is a telling indicator of Parliament’s intended usage of the phrase “gets possession” in s 210 (3).

For these reasons, we are satisfied that the interpretation of s 210 adopted in the Court below cannot be supported. For the purposes of the section Mr Tauiliili got possession of the child at the time he kept or withheld the child on the Sunday evening with the intention of depriving the mother of the possession to which she was lawfully entitled, and it is at that time that any claim in good faith to a right of possession must attach. Mr Tauiliili can still rely upon such a claim providing it relates to the possession which he obtained on the Sunday evening.

We are aware that other sanctions exist for a breach of an access order. These sanctions are adverted to in the judgment of Richardson P. Recourse to the criminal law may be inappropriate in many cases and, on the face of it, the present case may be such a case. But we would hesitate to assert that, as a matter of general policy, parental disputes relating to the custody of children should not attract a criminal sanction. Serious cases of child abduction (if not kidnapping) do arise and may require the reaction and deterrent force of the criminal law. While past statutory provisions preceding the present section may have been directed at child stealing as such, the paramount interests of the child and the rights of children have far greater recognition today. It is accepted that the impact on a child who has been taken out of the custody of the rightful parent may be traumatic, irrespective whether the person doing so is a third party or the parent who is not entitled to the custody of the child. We consider, therefore, that this question of policy is one which should be left to the parliamentary process and should not be permitted to influence the interpretation of a section which has general application to many different and diverse factual situations. Indeed, the matter would undoubtedly benefit from Parliament’s attention. In this day and age it is inappropriate to speak of children as “possessions”.

The question of law which was reserved reads as follows:

Whether s 210(3) of the Crimes Act 1961 is to be read as applying to an accused who obtains possession of a child in circumstances giving rise to a claim of a good faith right to possession but who subsequently acts in a way which may amount to an offence against s 210(1)(a)?

For the reasons given above the majority of the Court are of the view that the question is to be answered in the negative.

The appeal is allowed and the question answered accordingly.

Solicitors

Crown Solicitor, Wellington

Sladden Cochrane & Co, Wellington for Respondent