B v R

1. [1]

   WARD JA: The appellant (to whom I will refer as Ms B in order to preserve the anonymity of her child) was convicted on 29 May 2014 of an offence against s 65Y of the Family Law Act 1975 (Cth).

2. [2]

   The conduct that gave rise to her conviction was that, as she admitted, on 24 April 2008, Ms B took her child, then aged three years and eight months, out of Australia at a time when she knew that an interim parenting order of the Family Court of Australia was in force, providing for the child to spend supervised time at a contact centre with the child’s father (Ms B’s then husband, to whom I will refer as Mr B). Ms B knew both that Mr B had not consented to the removal of the child from the jurisdiction and that there was no Court order permitting this to occur. Ms B’s evidence was that she did not know that in acting as she did she was committing a criminal offence, though she accepts that ignorance of the law was no defence.

3. [3]

   Ms B’s evidence was, and the trial judge accepted, that at the time Ms B took her child out of the country she believed that he had been sexually abused by Mr B and had formed the view that there had not been, and would not be, a proper investigation into the sexual abuse allegations. She believed that her son was suffering ongoing harm during or as a result of the supervised contact sessions that had been ordered by the Family Court. She also believed that an order for unsupervised access was imminent and that the only way to protect her son was to take him out of the country. She thought that in Europe she would be able to obtain a proper investigation of her son and would then be in a position to “negotiate” their return to Australia. Once in Europe, she recorded a number of conversations with her son in which she maintains her son made further unsolicited disclosures of abuse by his father prior to their departure for Europe. These disclosures, she maintains, show the objective reasonableness of her concerns.

4. [4]

   The child was located in Amsterdam in September 2010, following internet and media publicity. Ms B was arrested and the child was placed in a child care crisis centre. Mr B, in whose favour a custody order had been made by the Family Court in Ms B’s absence after Ms B took their child out of the jurisdiction, brought the child back to Australia in late 2010. Orders have since been made giving him sole parental custody and responsibility of the child.

5. [5]

   Ms B was extradited back to Australia in 2011 and prosecuted in the District Court before a jury of twelve for the s 65Y offence, for which a maximum penalty of three years’ imprisonment applies.

6. [6]

   Following Ms B’s conviction for that offence, and a sentencing hearing held before the trial judge, Woodburne SC DCJ, an order was made pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) that Ms B be released upon agreeing to give security (without a surety) in the amount of $500, on recognisance, to be of good behaviour for a period of 28 days. That good behaviour bond expired, apparently without incident, some time ago.

7. [7]

   Ms B now appeals from her conviction and seeks leave to appeal from her sentence. The principal ground of appeal in respect of her conviction relates to the decision by the trial judge that Ms B had not satisfied the evidential burden necessary for the two defences Ms B wished to raise (of sudden or extraordinary emergency and of self-defence) to be considered by the jury. As to the outcome of her sentencing hearing, Ms B does not make any complaint as to the imposition of a good behaviour bond on her. Rather, she contends that the sentencing judge erred in not permitting her during the course of that hearing to cross-examine Mr B on his victim impact statement (which she wished to do in order to establish that he was not a victim but the perpetrator of the alleged sexual abuse), and that her Honour erred in not making a positive finding that she, Ms B, does not suffer from a delusional disorder (that having been the conclusion reached by a Family Court appointed expert in the context of ongoing Family Court proceedings following her return).

8. [8]

   For the reasons set out below, I am of the view that Ms B’s conviction appeal should be dismissed and that leave should be granted for the sentence appeal but that appeal should also be dismissed.

9. [9]

   Ms B was represented by successive firms of lawyers at the time the relevant parenting order was made (in February 2008) and at the time she took the child out of the country (in April 2008). She was also legally represented during part of the criminal proceedings. However, by the time of the trial and subsequent sentencing hearing, for reasons that are not apparent on the material before this Court, Ms B was not legally represented. Nor did Ms B have the benefit of legal representation on this appeal.

10. [10]

    It is evident from a close review of the transcript of the trial proceedings that the trial judge was at pains to ensure that procedural matters were explained to Ms B and that, so far as possible, the disadvantage faced by Ms B as a self-represented accused was minimised. No criticism could be or has been made as to the manner in which her Honour conducted those proceedings. Indeed, Ms B has commended her Honour’s patience during the proceedings.

11. [11]

    In the present proceedings, considerable latitude has been afforded to Ms B in the provision by her of successive sets of submissions, including submissions after judgment was reserved. There has been a degree of duplication of material across the five volumes of appeal books, the respective sets of submissions filed by Ms B, her affidavit dated 17 November 2014 (the ‘November affidavit’), and subsequent submissions filed in February 2015.

12. [12]

    Where reliance has been placed by Ms B on material coming into existence, or events arising, after the conclusion of the criminal proceedings (that necessarily not having been in evidence before the District Court), such as some of the material included in the November affidavit, that will be treated as being by way of submission. Further, as the Crown did not have an opportunity to cross-examine Ms B on her November affidavit (which was filed following the grant of leave for further submissions to be filed going to the way in which Ms B had sought to re-cast ground 2 on the appeal), that too will only be treated as a submission except insofar as it incorporates matters that were in evidence at the trial. So that there is no misunderstanding, however, I would have reached the same conclusions even had that material been tendered formally on this appeal.

13. [13]

    It is not necessary at this point to set out in detail the allegations made by Ms B of sexual or other abuse of her son by Mr B. A summary of those allegations, the accuracy of which was largely not disputed, was included as Annexure A to her Honour’s reasons on sentencing.

14. [14]

    Those allegations had, by the time of the trial, expanded considerably beyond the allegations that Ms B had made at the time that she took her son from the country. For example, by the time of the trial, there were allegations by Ms B of ritual abuse involving the wearing of masks as well as an allegation that Mr B had physically abused his son and had on one occasion defecated on his face. Obviously, disclosures made by the child to Ms B after his removal from the country, and conclusions drawn by her from those disclosures, could not have informed Ms B’s state of mind at the time of commission of the act that constituted the offence. Nevertheless, Ms B relied at the trial on her son’s post-April 2008 disclosures as evidence that her son was making disclosures consistent with those of someone who had been sexually abused, not as to the truth of the allegations. She maintains that events after she took her son out of the country, including what has happened since his return to the country, demonstrate with hindsight the objective reasonableness of her conduct.

15. [15]

    It must be noted that there has been no determination as to the truth or otherwise of the allegations of sexual abuse made by Ms B. Her Honour made clear to the jury that the criminal proceedings against Ms B were not the occasion for a determination as to whether or not any sexual abuse had occurred and at the outset of the trial Ms B disavowed any intention to ask the jury to reach any such conclusion. Mr B has not been charged with any criminal offence in that regard. Nothing in these reasons is to be taken as any comment on whether or not any or all of Ms B’s allegations have any valid foundation.

16. [16]

    What was of relevance in the criminal proceedings, given the defences that Ms B wished to raise, was Ms B’s state of mind or belief at the time she took her child out of the country; the objective reasonableness of her belief that removal of the child from the country was the only reasonable response to the sudden or extraordinary emergency that she believed had arisen; and the objective reasonableness of her response to the circumstances as she perceived them (to paraphrase the relevant elements of the two defences that she sought to raise).

Background

1. [17]

   The relevant events leading up to Ms B’s departure from the country and the evidence that Ms B gave as to the advice she had received in the period from 6 December 2007 to her departure, as well as the events following her departure, are summarised in the appendix to these reasons. Suffice it at this stage to note that Ms B made a conscious decision to take her child out of the country, though she says it was not a voluntary choice because she had a duty as a mother to protect her son. She maintains that she needed to leave Australia in order to obtain a proper investigation of the abuse allegations, although ironically her decision to leave Australia with her son seems to have had the practical outcome that there was then no investigation at all of the allegations, at least not while she and her son were in Europe.

Conviction appeal

1. [18]

   On her conviction appeal, Ms B made it clear that she regarded the key issues in the trial proceedings (and in this appeal) as relating to the harm to her child; the allegations of abuse; the mental condition of her former husband and risk of “familicide”; and the failure of the authorities to investigate and provide her child with protection. Her fundamental complaint is that her child should not have been allowed to have any contact with his father at all until proper investigations into the sexual abuse allegations had been completed.

2. [19]

   Ms B raised three grounds of appeal against her conviction: first, as to the decision by the trial judge not to permit her defences to be left to the jury; second, as to rulings made by the trial judge preventing evidence to be adduced going to the issue whether the sexual abuse allegations were correct; and, third, as to the admissibility of the report she had received from the Family Court appointed expert, Dr Waters, shortly before her departure from the country (“Dr Waters’ report”).

3. [20]

   At trial, Ms B sought to defend the charge on two grounds: first, that, at the time she took her child out of the country, circumstances of extraordinary emergency existed and her response was, she believed, the only reasonable response to those circumstances of emergency (the “sudden or extraordinary emergency” defence under s 10.3 of the Criminal Code 1995 (Cth)); and, second, on the ground of self-defence (s 10.4 of the Criminal Code).

4. [21]

   There was discussion at the outset of the trial as to the evidential burden that Ms B was required to meet before those defences could be left to the jury. Her Honour heard evidence going to those defences (some of which was in the absence of the jury) before ruling on the availability of the defences. Ms B was directed not to make express reference to the defences in her opening address to the jury. It was not until the Crown case had closed and all of the oral evidence for the defence had been heard that her Honour ruled on the availability of the defences.

5. [22]

   Section 10.3 of the Criminal Code (the sudden or extraordinary emergency defence) provides that:

6. [23]

   The sudden or extraordinary emergency defence requires not just a subjective belief on the part of the accused (i.e., here, Ms B) as to each of the matters in sub-sections 2(a), (b) and (c) but also that such belief be objectively reasonable.

7. [24]

   Section 10.4 of the Criminal Code (self-defence) provides that:

8. [25]

   Again, this defence requires not just a subjective belief on the part of the accused but also that the conduct be, objectively, a reasonable response (in the circumstances as the accused perceives them). The Crown argued in the present case that the defence was inapplicable because the supervised contact visits, which Ms B maintained were causing deterioration in her son’s behaviour, were lawful. However, her Honour did not exclude the availability of the defence on that ground.

9. [26]

   Section 13.3(3) of the Criminal Code provides that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (in which Part of the Criminal Code ss 10.3 and 10.4 are contained) bears an evidential burden in relation to that matter.

10. [27]

    Evidential burden is defined in s 13.3(6) of the Criminal Code to mean “the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”. Where a defendant discharges the evidential burden in relation to a defence, then the prosecution bears the legal burden of negativing the defence beyond reasonable doubt (ss 13.1(2), 13.2(1)).

11. [28]

    The question whether the evidential burden has been discharged is a question of law for the judge (The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 per French CJ at [13]). In Khazaal, the High Court considered what was required in order for an accused to discharge an evidential burden (there in relation to an exception from liability contained in s 101.5(5) of the Criminal Code). The plurality (Gummow, Crennan and Bell JJ) held (at [74]) that the operative words in s 13.3(6) required not more than slender evidence. Their Honours did not consider it necessary to determine whether the words “reasonable possibility” excluded evidence which suggested no more than a mere possibility or a bare possibility.

12. [29]

    In the present case, her Honour ruled that Ms B had not satisfied the evidential burden in relation to either of the two defences. Her Honour published written reasons for that ruling.

13. [30]

    In those reasons, her Honour had regard to the nature of the evidential burden imposed on Ms B, as considered in Khazaal, and to the nature of the test to be applied when determining a defence based on reasonable belief (referring to Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586).

14. [31]

    Ms B’s first ground on her conviction appeal asserts error on the part of the trial judge in ruling that she had not satisfied the evidential burden necessary for the defences she wished to raise to be left to the jury:

15. [32]

    The question for her Honour (as articulated by French CJ in Khazaal at [19]) was whether the evidence relied upon by Ms B was incapable of suggesting the reasonable possibility necessary to satisfy the evidential burden on Ms B. Her Honour clearly had regard to the correct test in that respect. Further, it is clear from her Honour’s reasons that her Honour approached that task with the trial judge’s appropriate reluctance when considering the withholding of potential defences from the jury.

16. [33]

    As to the “sudden or extraordinary emergency” defence (for which, as Simpson J notes at [216] below, Ms B asserted only the existence of an “extraordinary” emergency), the question for this Court is whether her Honour erred in concluding that the evidence was not capable of suggesting the reasonable possibility that Ms B reasonably believed that taking her child out of the country was the only reasonable way to deal with the emergency and that she reasonably believed that this was a reasonable response to the emergency.

17. [34]

    As to the nature of that emergency, Simpson J has pointed (at [280] below) to Ms B’s articulation of this before the trial judge (on 14 October 2013, in the absence of the jury, at T35-37) as one concerning the apprehension that Mr B was potentially homicidal and that she and her child were in physical danger. However, as Simpson J has noted, Ms B’s response when asked to identify the emergency in this case was lengthy discursive and not easy to understand. In the course of that response Ms B also referred to the deterioration of her son’s behaviour in the course of the supervised contact visits. The evidence that Ms B gave at the trial, and her communications while in Europe with an academic in Adelaide (Professor Briggs), as to the reason that she left the country focussed largely on her concerns as to the alleged sexual abuse and imminence of unsupervised access by Mr B to his son, coupled with her belief that there would be no proper investigation of the alleged abuse. I have therefore approached the matter on the basis that the emergency that Ms B perceived was not confined to a fear of familicide on the part of Mr B. That said, if the nature of the emergency relied upon by Ms B for the proposed defences was so confined, then my ultimate conclusion would be the same.

18. [35]

    The Crown, at trial, acknowledged that the evidentiary threshold was a low one and accepted (for the purposes of the argument as to whether Ms B had satisfied the evidential burden necessary for the defence to go to the jury) that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively believed that: the child had been sexually abused by the father; there had not been, and would not be, a proper investigation into the alleged sexual abuse; the father had psychiatric problems and was suicidal or possibly homicidal; and that the child was “deteriorating” as a result of (the Family Court ordered) contact with the father (as noted in her Honour’s reasons at [59]).

19. [36]

    As to s 10.3(2)(a), her Honour was satisfied that the evidence was capable of supporting the reasonable possibility that, as at 24 April 2008, Ms B believed that circumstances of extraordinary emergency existed ([61]). Her Honour noted the submissions made by the Crown, first, to the effect that this was not a reasonable belief having regard to various matters (including that the contact sessions with Mr B were supervised) and, second, that the possibility that unsupervised contact might be ordered in the future was not capable of amounting to an extraordinary emergency. Nevertheless, her Honour did not find against Ms B on the discharge of the evidential burden so far as it related to the requirement posed by s 10.3(2)(a) of the Criminal Code ([72]).

20. [37]

    Where her Honour found that the evidential burden had not been discharged was in relation to the requirements in s 10.3(2)(b) and (c).

21. [38]

    Her Honour concluded that, in circumstances where Ms B had a right of appeal (i.e., from the supervised contact orders), the evidence was not capable of supporting the reasonable possibility that Ms B reasonably believed that committing the offence was the only reasonable way to deal with the emergency ([108]) nor that Ms B reasonably believed that the conduct was a reasonable response to the emergency ([109]-[110]).

22. [39]

    The Crown had pointed to other courses of action available to Ms B at the time to demonstrate that there was not a reasonable possibility that Ms B could reasonably have believed that taking her child out of the country was the only reasonable way to deal with the emergency. Those other course of action included: not cooperating with the contact centre; not taking the child to the contact centre; moving the child interstate; as well as taking the child to the police or the Joint Investigative Response Team (JIRT) or DOCS for the investigation of the alleged threats or raising the concerns with the contact centre. Her Honour did not accept that those were other reasonable ways to deal with the perceived emergency. In that regard, her Honour noted that non-compliance with the contact orders would have amounted to intentional contravention of the parenting order, potentially with the consequence that Ms B’s concerns of abuse would be ignored and the child placed permanently with the alleged abuser, and that Ms B had already reported her concerns to the police, JIRT and DOCS ([99]).

23. [40]

    As to the possibility of an appeal or an urgent application to the Court, at [107] her Honour said:

24. [41]

    Her Honour thus concluded that the requirement under s 10.3(2)(b) was not satisfied.

25. [42]

    Her Honour approached the requirement under s 10.3(2)(c) on the basis that there needed to be some evidence capable of suggesting the possibility that Ms B reasonably believed that the conduct was a reasonable response to the emergency. Her Honour said that a response was not proportionate to the threat if there were reasonable grounds for believing that there were alternative courses of action available (referring to Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202) and noted that in this case, where there was a right of appeal, there was such a course of action available ([109]-[110]). Her Honour thus concluded that this requirement was also not satisfied in Ms B’s case.

26. [43]

    In these proceedings, Ms B submits that the other alternative courses of action postulated by the Crown, including the possibility of an appeal, would not have resulted in “a better investigation” because of the Family Court order appointing Dr Waters as the sole court expert to prepare a report (AT 13-20) and the fact that he, in preparation of the report, had not assessed her child. Ms B maintains that Dr Waters (a forensic child psychiatrist) is not an expert in child sexual abuse and should not have been appointed by the Family Court. She has made serious allegations about Dr Waters, accusing him of corruption, bias, misrepresentation and perjury.

27. [44]

    Ms B argues that to have made an application for a different expert would have required an affidavit and would only have resulted in the appointment of another Family Court psychologist (AT 13.29). She contends that the Family Court psychologists do not have the skill in assessing sexual abuse (and hence this would not have produced a better outcome). Ms B also says that any such application would have taken too long, and that she was not advised as to the ability to make an urgent application. Ms B said:

28. [45]

    What is clear from Ms B’s submissions in this Court, and was apparent from her evidence at the trial, is that in taking her son out of the jurisdiction she was intentionally seeking to prevent or inhibit the enforcement of the supervised contact orders and to put herself and her son beyond reach of the Australian legal system. She maintains that this was the only way she could protect her child from what she believed was his ongoing deterioration as a result of the supervised contact sessions.

29. [46]

    Ms B made it very clear on this appeal that her reason for going overseas was the “behaviour” of the Family Court when the decision was made appointing Dr Waters as the expert and granting “excessive contact” to the father (AT 39.33).

30. [47]

    Ms B submits that the evidence did not support an assumption that the child was being continually supervised during contact sessions (see [90] and [91] of her appeal submissions) – a submission that seemingly goes to her belief as to the existence of the emergency, not as to whether (considered objectively or otherwise) her action was the only reasonable way to respond to the emergency nor that it was a reasonable response. Ms B also submits that unsupervised contact orders were almost inevitable following Dr Waters’ report and contends that her Honour did not adequately consider the risk to the child of the “impending unsupervised contact”.

31. [48]

    Ms B emphasised in her submissions that: in her opinion appealing provided her with no reasonable alternative course of action; her lawyers had advised her not to appeal; she did not know she could have represented herself in Court; she would not have been able to undertake an appeal herself or to know how to obtain a stay of the orders; and any appeal would have delayed proceedings beyond 5 June 2008 and would not have protected the child from unlawful attack outside of the contact centre (this last submission apparently referring to Ms B’s concern that the father might not simply have had suicidal intentions but might have decided to kill them all).

32. [49]

    Ms B accepts that her lawyer had told her she could seek a second opinion if she disagreed with the findings in Dr Waters’ report but says (submission [166]) that would not have helped protect her child especially given that if that had happened the expert would have been Dr Robinson, a psychiatrist whose name Ms B had initially put forward as an appropriate court expert but who is now the subject of not dissimilar allegations as those made by Ms B against Dr Waters. The basis for Ms B’s belief that Dr Robinson would have been appointed as the alternative expert in 2008 was not made clear but is presumably the fact that Ms B had nominated Dr Robinson as an acceptable expert at that time and the Family Court has since appointed her as an expert in Ms B’s case.

33. [50]

    Ms B maintains that the jury should have been left to decide “whether it would be reasonable that I ignore legal advice, attempt to run an appeal and compete against Dr Waters’ report when I knew nothing about the law”. That, however, elides the subjective and the objective elements of the respective tests – and, significantly, it does not take into account the different stage of the proceedings at which advice as to prospects of an appeal were given.

34. [51]

    As noted above, Ms B relied on events following the recovery of the child as demonstrating the objective reasonableness of her concerns. In particular, she said that independent reports had demonstrated that the child had severely deteriorated in the father’s care, was suicidal and had been admitted to a special school (submissions on sentence at [29]-[52]). Ms B also made reference to the fact that, after her return to Australia, she was only able to obtain a Family Court listing five months after she made an application for an urgent hearing.

35. [52]

    For completeness, I should note that one of Ms B’s complaints in these proceedings is the “failure” of the primary judge to admit into evidence a copy of a letter dated 5 March 2008 in which Ms B’s lawyers gave advice as to the prospects of appeal from the orders of the Family Court (see amended written submissions at [42]). That complaint cannot be sustained having regard to a review of the transcript as to what occurred in relation to that document in the absence of the jury. That may be summarised as follows.

36. [53]

    Ms B (who gave evidence in part by reading out paragraphs from her February 2008 Family Court affidavit) referred to the letter and informed the trial judge that she wanted to make the point that she had tried to appeal the orders. She was told that she did not need to tender the letter (which was then marked MFI 52). Tender of the document would, of course, have been likely to amount to a waiver of privilege in relation to the advice and matters connected with it, which was presumably part of her Honour’s concern when she informed Ms B that she did not need to tender it.

37. [54]

    Ms B then said that she would not tender the letter “simply because I am going to have to explain issues I had with advice from my lawyers [and] that’s not central to my leaving the country”. Following further discussion, in which her Honour explained that tendering the letter would give the Crown the right to cross-examine Ms B on it, the matter was left that the Crown did not object to Ms B having the opportunity to reflect on the question overnight.

38. [55]

    Ms B did not address the question of the tender of that document again. Had she wished to do so, it was open to her to tender the document. On other occasions in the trial it was clear that Ms B was keeping track of outstanding tender documents. There is no suggestion that she had simply omitted to tender this document. In any event, there was other evidence before the jury which made it clear that Ms B had obtained advice as to the prospects of an appeal - in an email from Ms B to her lawyers on 7 March 2008 she said, among other things, that: she could not afford to appeal the order for supervised time; she had already taken and accepted the advice of a barrister that it would be unlikely that an appeal would be successful; and therefore she would not appeal; and also made reference to a “stay” of the orders, saying that she did not understand that terminology and therefore could not comment on that. The inference to be drawn from the reference to a stay is that Musgrave Peach had given some advice or made some reference, following the making of the supervised contact orders, not only to Ms B’s ability to appeal from those orders but also to the possibility of a stay of the orders. It was not suggested that Ms B could not have pressed for clarification of this from Musgrave Peach or any of the other sources from which it seems Ms B was obtaining advice at the time.

39. [56]

    The essence of Ms B’s submission on ground 1, as was her argument at trial, is thus her conduct was not voluntary in that she was forced to choose between two conflicting laws, the “law against unlawful harm” and the family contact orders (and she prioritised the protection of her son). Ms B argued that implementing an appeal would have required extensive preparation including a stay of orders and an application for an extension of time and in the meantime she would have breached her duty to protect her child from unlawful harm ([22] of her written submissions).

40. [57]

    For ground 1 to succeed in relation to the sudden or extraordinary emergency defence, it is necessary to conclude that her Honour erred in finding that the evidence was not capable of suggesting, as a reasonable possibility, not only that Ms B subjectively believed that there was an emergency and that taking her child out of the country was the only reasonable response to the emergency (and was a reasonable response thereto), but also that such a belief was objectively reasonable.

41. [58]

    On Ms B’s evidence, as at the time she bought the airline tickets she had only briefly read Dr Waters’ report (which had been sent by Dr Waters to the Family Court on 3 April 2008 but was not received by her until about 23 April 2008), and she had not obtained legal advice in relation to that report, but she nevertheless believed that it was imminent that unsupervised access would be permitted. The material before the Court was not capable of suggesting the reasonable possibility that there was an objectively reasonable basis for that belief.

42. [59]

    The evidence was capable of suggesting as a reasonable possibility that Ms B believed that her child’s behaviour was deteriorating following the commencement of the contact visits (as her Honour in effect found). That may have been the case whether or not Ms B’s concerns as to the continuation of abuse during the contact sessions had any valid foundation. Dr Waters, for example, considered that the deterioration could be expected having regard to the frequency of the contact visits. However, that does not lead to the conclusion that the evidence was capable of supporting the reasonable possibility, objectively speaking, that the only reasonable response to deal with that situation was to remove the child from the jurisdiction.

43. [60]

    Similarly, though the evidence was certainly capable of supporting a conclusion that the investigation that had been carried out as at 24 April 2008 had not been sufficient to determine the truth or otherwise of the sexual abuse allegations (as Dr Waters himself seems to have conceded when, in cross-examination by Ms B, he indicated that his was only a conditional report and that there was “latitude for doubt” as to some of the areas of concern that had been raised by Ms B), the evidence was not reasonably capable of supporting the reasonable possibility of it being objectively reasonable to conclude, as at 24 April 2008, that there would be no proper investigation in the future of the abuse allegations.

44. [61]

    Ms B’s conclusion in that regard seems to have been based heavily on what she had read in various literature on child sexual abuse and, in particular, a doctoral thesis written by a Ms Foote. Ms B had not, at that stage, seen the video recording of an interview with her son which had been conducted by JIRT on 10 December 2007. While she had been told that an investigation by the JIRT and the police Child Protection Unit (CPU) was closed, there was no suggestion that it could not be re-opened if circumstances warranted it. The impact of the contact sessions on her son had yet to be properly considered by any expert or the Court. Further, Professor Briggs (an emeritus professor at the University of Adelaide with extensive experience in the area of child protection, with whom Ms B had initiated an email exchange seeking advice before she left the country) had not seen Ms B’s child and, in commenting on the situation, was solely relying on the information and instructions given to her by Ms B. Insofar as Ms B calls in aid the conclusion drawn by Professor Briggs, after the event, that the JIRT interview was woefully inadequate, there was no suggestion by Professor Briggs that a proper investigation could not or would not have been carried out had Dr Waters’ report been tested or had an application of that kind been made in April 2008.

45. [62]

    While Ms B says she was unaware of the legal avenues available to her, and that it was not reasonable to expect her to “second guess” her lawyers, the fact is that she simply did not seek, nor did she wait for, any advice as to what might be able to be done following receipt of Dr Waters’ report. Her conclusion was that, whatever it said, it would not assist her.

46. [63]

    There is provision under the Family Law Act and Family Law Rules 2004 (Cth) pursuant to which Ms B could have sought an extension of time for an appeal from the supervised contact orders and also for her to have sought a variation of the contact orders.

47. [64]

    Dr Waters’ report, had Ms B read it carefully at the time, did not support a change to the contact orders to permit unsupervised access. Rather, what Dr Waters recommended was the very same reduction in the number of supervised contact visits that Ms B, through her solicitors, had requested. Ms B’s own lawyers had advised her not to read anything into the letter from Mr B’s lawyers (seeking consent to unsupervised access in light of the contents of the report and suggesting that the sexual abuse allegations were by then “dead in the water”) until they were able to give her advice.

48. [65]

    Ms B’s legal advice up to the time that she left the country does not support the conclusion that taking the child out of the country was the only reasonable, or even a reasonable, response to concerns as to the deterioration in her son’s behaviour while contact visits continued. The advice obtained in early March 2008 from her then solicitors (Musgrave Peach), and then from one or more barristers as to the prospects of an appeal from the orders of the Family Court, can only have been as to the prospects of an appeal at that stage (when no contact visits, and hence no deterioration in the son’s behaviour, had commenced). The advice Ms B says she obtained in or about 10 April 2008 was that a change to the contact orders was unlikely until the Court had received Dr Waters’ report. That is not surprising since by that time a report must have been imminent (indeed, unbeknownst to Ms B, the report had in fact already been provided to the Court). Ms B also says that her new lawyers had advised her that an appeal was unlikely to succeed. Any such advice again cannot have been given with the benefit of reading and absorbing the import of Dr Waters’ report.

49. [66]

    The possibility of seeking changes to contact orders in advance of a final hearing must have been apparent to Ms B when her lawyers acted upon her instructions to request such a change. Ms B had the benefit of legal representation and could have asked for advice as to what, if anything, could be done in light of Dr Waters’ report.

50. [67]

    The position, therefore, is that as at 24 April 2008, when Ms B left the country, she was aware that the report had been received. She chose to leave the country without waiting for advice as to the import of the report and, insofar as she believed unsupervised contact was imminent as a result of that report, without fully comprehending the recommendations in fact made in the report. Her position was, in effect, that whatever the report said it would not have satisfied her because of her belief (without having seen or having been present during the JIRT interview) that the JIRT interview was not adequate and that Dr Waters, of whom she had already formed the view that he was biased (based on an article of his that had been published on the internet), was “dismissive” of the sexual abuse allegations.

51. [68]

    Although her Honour does not appear to have relied on this in reaching her conclusion on the availability of the sudden or extraordinary emergency defence, in addition to having a right to appeal to a full court from the February 2008 orders of the Family Court judge there was capacity to bring an urgent application before a judge of the Court on the basis of a change in circumstances. Ms B’s lawyers would have been aware of this. She says that they did not advise her of this (although they apparently did speak of a stay) but the evidence shows that Ms B did not give them an opportunity to provide any such advice after Dr Waters’ report was received.

52. [69]

    Insofar as Ms B, at trial, referred to a concern as to possible homicidal tendencies on Ms B’s part, there was simply no evidence of an imminent threat of physical harm to Ms B or to her child. It was not suggested that any actual threat had been made by Mr B. Rather, Ms B seems to have taken from the statistics she had read on familicide, coupled with her perception of Mr B’s mental state, that this was a real risk at that time.

53. [70]

    The belief that Ms B expressed to Professor Briggs as to the inadequacy of the justice system in Australia, at a time (around June 2009) when she had attended only one court appearance (on 29 February 2008), seems to have been based in large part on the materials that she had read and the conclusions she had formed as to what was likely to happen in the Family Court proceedings. That and the other views expressed by Ms B in her statement sent to Professor Briggs in 2009 (set out in the appendix to these reasons) cannot be accepted as objectively reasonable having regard to the material before this Court as to the manner in which the proceedings in the Family Court were conducted up to the time that Ms B intentionally removed her child from the jurisdiction.

54. [71]

    Deterioration in her son’s behaviour following contact visits was a matter that could reasonably have been dealt with by an application to the Family Court. The matter was already listed for 5 June 2008 and the very fact that a request had been made for consent to a variation of orders made clear that variation of orders was a possibility. There was no objective basis for the view that Dr Waters’ report made it likely that unsupervised contact would be imminent. Rather, he had recommended a reduction in the supervised contact visits (though expressing a view as to Mr B’s parenting capacity and found it difficult to conclude there had been sexual abuse). Armed with Dr Waters’ report, one would have thought a reduction in supervised contact visits was the more likely result had the matter been brought back before the Court. Delay in listing matters some years later is not indicative of what the position might have been had Ms B not taken matters into her own hands in 2008.

55. [72]

    As to Ms B’s concern that there would be no proper investigation of the allegations, it had been made clear to her that the case could be reopened by the JIRT if there were further evidence, such as (one would assume) evidence of deteriorating behaviour.

56. [73]

    Material relied upon after the event is not relevant to the formation of a belief on her part at the time. With hindsight it might make more obvious the reasonableness of the belief at the time but matters such as delays in Family Court proceedings or deterioration in the child’s behaviour on his return cannot be assessed without also taking into account the effect of the disruption and subsequent relocation to Australia, and separation from his mother.

57. [74]

    In my opinion, her Honour did not err in concluding that the evidence did not meet the evidential burden (slender as it is) of suggesting that there was a reasonable possibility that the necessary belief by Ms B (that the only reasonable alternative was to remove her child from the country and that this was a reasonable response to the emergency) was an objectively reasonable belief. To reach a contrary conclusion would require it to be accepted that it was objectively reasonable to believe, in effect, that the Family Court and its court appointed experts would not properly consider the material put forward in such a case or would be incapable of so doing, and that neither the appellant’s own legal representatives nor the independent children’s lawyer would act with a view to the best interests of the child, taking into consideration not only Dr Waters’ report but also any evidence of continuing harm at contact centre visits.

58. [75]

    A similar conclusion must be reached in relation to the defence sought to be maintained under s 10.4 of the Criminal Code (of self-defence).

59. [76]

    Her Honour was satisfied that the evidence relied upon by Ms B was capable of suggesting the reasonable possibility that she believed her conduct in taking the child from Australia to a place outside Australia was necessary in order to defend the child from harm ([121]).

60. [77]

    As to the requirement that the conduct be a reasonable response in the circumstances as perceived by Ms B at the time, her Honour noted that this was to be determined by an entirely objective assessment of the proportionality of Ms B’s response to the situation Ms B subjectively believed she faced (R v Katarzynski [2002] NSWSC 613 at [22]-[23]). Her Honour also noted that, in determining whether there was evidence capable of suggesting the reasonable possibility that the conduct was a reasonable response in the circumstances as Ms B perceived them, the availability of other possible responses was a material consideration [129].

61. [78]

    Her Honour concluded (at [130] and [132]):

62. [79]

    Her Honour thus concluded that Ms B had failed to discharge the evidential burden for the defence under s 10.4 of the Criminal Code to be left to the jury because the evidence relied upon was not capable in her Honour’s opinion of suggesting the reasonable possibility that the conduct in taking the child outside Australia was a reasonable response in the circumstances as Ms B perceived them ([138]).

63. [80]

    Her Honour took into account the circumstances as Ms B perceived them at the time (with one error that is not material – namely her Honour’s reference to advice that Ms B had received that she might lose her child if she appealed, whereas the advice she did receive was that she might lose her child if she did not comply with contact orders). Her Honour correctly concluded that taking the step of removing the child from the jurisdiction was not a reasonable response to those circumstances. The fact that the child’s distress was reduced when living overseas (according to the material to which Ms B referred) does not alter the fact that this was, as her Honour suggested, an extreme response in the sense of being disproportionate to the circumstances facing Ms B.

64. [81]

    The Crown submits, and I agree, that for her Honour to have ruled that the two defences could properly have been left to the jury would have encouraged or permitted the jury impermissibly to exercise a power to dispense with compliance with the law. In R v Rogers (1996) 86 A Crim R 542, Gleeson CJ considered the public policy considerations that had informed the limitations imposed on the availability of the defence of necessity, as follows:

65. [82]

    Her Honour was clearly conscious of the need not to usurp the jury’s function in determining the issue of reasonableness. She noted the necessity for a trial judge to remain mindful of the onus of proof and had in mind the reluctance of a trial judge to withdraw from a jury any issue that should properly be left for them. Her Honour was well aware that it was a grave responsibility to take defences away from the jury [131] and carefully considered the evidence before her in that context.

66. [83]

    There was no error on her Honour’s part in concluding that the availability of the appeal process (and, I would add, of the ability to make an application for a variation or stay of the contact orders on a change in the behaviour of the child) meant that there was no reasonable possibility that the evidence could suggest that Ms B had an objectively reasonable belief as to the second and third requirements of s 10.3 or that the response was a reasonable one for the purposes of s 10.4.

67. [84]

    Thus, in my opinion, her Honour did not err in reaching the conclusion that the evidential burden was not satisfied. The only objectively reasonable conclusion on the evidence that was before her Honour was that Ms B chose, knowing that she was acting in disobedience to the Family Court contact orders and intending to put herself and her son out of the reach of the Court’s control, to take the law into her own hands. The evidence before her Honour was not capable of supporting as a reasonable possibility that a belief by Ms B that this was the only reasonable response to the emergency (and that it was a reasonable response) was objectively reasonable; nor could it support as a reasonable possibility the conclusion that this was an objectively reasonable response to the circumstances as she perceived them.

68. [85]

    Ground 1 is not made out.

69. [86]

    The second ground raised on the conviction appeal was expressed in the notice of appeal as follows:

70. [87]

    On any view of the matter, the question whether the child had in fact been sexually abused was not relevant to the issue whether there had been a breach of s 65Y of the Family Law Act, save insofar as it was relevant to the defences that Ms B sought to raise. As to those defences, once her Honour had accepted that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively held the relevant belief to satisfy the sudden or extraordinary emergency defence or that there were circumstances that would potentially enliven the defence of self-defence, the fact that the sexual abuse allegations may have been true did not take those matters any further. (Of course, if the belief as to sexual abuse was manifestly erroneous, this might affect the objective reasonableness of her belief as to sudden or extraordinary emergency or as to the circumstances giving rise to a defence of self-defence but that was not her Honour’s conclusion.)

71. [88]

    Ms B maintains, however, that evidence of the alleged sexual abuse supported the objective component of her defences, i.e., that her belief as to the matters in s 10.3 was objectively reasonable and that she was responding to unlawful conduct for the purposes of precluding the exclusion arising under s 10.4 (submissions [84] and [85]). It is submitted that the evidence that her husband was sexually abusive supported her credibility and was “tendency” evidence that it was objectively reasonable for her to fear sexual abuse/unlawful harm both at the contact centre and with unsupervised contact in the near future (submissions [81]-[119]). (It does not appear that Ms B is here referring to tendency evidence in the sense that such evidence is dealt with in the Evidence Act 1995 (Cth). Certainly, no notice of an intention to adduce tendency evidence appears to have been filed.)

72. [89]

    In her oral submissions on the appeal, Ms B expressed concern that without the evidence she wished to adduce in relation to the sexual abuse (such as the evidence from Professor Briggs) her Honour may not have understood just how serious was the deterioration in the behaviour of her child once the contact visits had commenced (AT15.15). Such a criticism cannot be sustained in the face of her Honour’s comprehensive summary of the sexual abuse allegations in Annexure A to her Honour’s reasons for judgment. Moreover, as already noted, her Honour found in effect that there was evidence capable of supporting the reasonable possibility of a conclusion that Ms B held an objectively reasonable belief that sexual abuse had occurred and that the son’s behaviour was deteriorating as a result of the contact visits. A finding that there had in fact been sexual abuse or that this was ongoing (even had this been appropriate in the context of the proceedings against Ms B) would not have assisted Ms B to meet the evidential burden on the second and third requirements of s 10.3, nor to enable her to raise the ground of self-defence before the jury (since, again, that turned on whether the conduct was reasonably proportionate to the circumstances as Ms B perceived them).

73. [90]

    The Crown submits that once her Honour ruled that neither of the defences was available to be left to the jury evidence concerning the alleged sexual abuse of the child was no longer of relevance to any issue in the trial.

74. [91]

    Ms B complains, in her written submissions in response to the Crown’s submissions, that evidence supportive of the sexual abuse allegations was excluded at a time prior to all of the evidence and that her Honour could not have known what might have emerged in cross-examination of the witnesses (referring by way of example to concessions made in her cross-examination of Dr Robinson). However, the evidence that Ms B sought to adduce as to liability was outlined to her Honour before her Honour ruled against the admissibility of the particular documents and lines of questioning of which Ms B complains.

75. [92]

    Insofar as ground 2 rests on the Court’s determination of ground 1, it must logically fail since ground 1 has not been made out. However, in oral argument, Ms B maintained that ground 2 was independent of ground 1 and was in essence a complaint that her Honour had wrongly rejected evidence supporting the conclusion that Mr B had sexually abused the child.

76. [93]

    Directions were made for Ms B to identify precisely the evidence that she said was the subject of this ground of appeal, i.e., the evidence which she said her Honour had wrongly excluded, and to provide copies of the material comprising that evidence. In response to those directions Ms B filed the November 2014 affidavit and annexures to which I have already referred and a subsequent 16 page set of submissions in February this year.

77. [94]

    The November 2014 affidavit, in summary, recounts the history of the matter, from Ms B’s perspective, and the material from which Ms B has formed the belief that the sexual abuse occurred. It contains a mixture of evidence and submissions. Broadly, the ground that it covers includes: the basis on which Ms B has drawn the conclusion that her child was sexually abused by his father; the reason she believed she had no option but to take the child out of the country; her criticisms of the investigation of her allegations of child sexual abuse and of the Family Court proceedings; her commentary on or response to some of the evidence before the Family Court and at her trial; her child’s experience while overseas; and her concerns in relation to her child’s development since his return.

78. [95]

    In that affidavit, Ms B recounts her recollection of the history of her child’s development, his early anxiety with other children and attachment to her, the circumstances in which Mr B had interaction and (on her business trips) sole care of the child, the disclosures made by the child and the course of events following her report of those disclosures to the authorities. Ms B refers to material relating to Mr B’s mental state and to research carried out by her (some before her departure from Australia and some after she had left) as to child sexual abuse and the way in which investigation thereof should, according to various academics in the field, be carried out.

79. [96]

    Some of that material was in fact admitted in evidence at the trial (and hence there is no basis for it to be said that it was wrongly excluded); some of that material was not sought to be tendered at the trial (and hence again cannot be said to have been wrongly excluded); some was not prepared until after the trial, as is apparent from the descriptions of that material in Ms B’s November 2014 affidavit and conceded by her, and hence could not have been admitted at trial.

80. [97]

    What this Court had understood Ms B was seeking to raise by her wrongful exclusion of evidence complaint was a contention that she had sought to adduce particular evidence and that her Honour had wrongly excluded that evidence. What has become apparent from the written submissions filed in February 2015 in response to the Crown’s further written submissions (those in turn responding to Ms B’s November affidavit), is that Ms B has understood the leave granted to her for the filing of submissions as to the wrongful exclusion of evidence at the trial as being an invitation to set out the whole of the evidence on which she says she would have relied had she been permitted to put before the jury the issue as to whether or not Mr B had in fact sexually abused her son. An argument of that kind must fail given the conclusion that her Honour did not err in ruling that the question whether Mr B had sexually abused the child was not relevant to be considered in her trial.

81. [98]

    Ms B’s 2015 February submissions, in effect, re-state her argument that in 2008 she was faced with conflicting legal duties; re-state her submissions as to the alleged sexual abuse and seek to explain why it is that she did not adduce certain of the material she has now put forward and on which she now relies.

82. [99]

    Ms B has produced a 14 page annexure responding to the Crown’s analysis of the evidentiary status of material in her November affidavit.

83. [100]

    In a number of instances, Ms B concedes in that annexure that evidence referred to in her November affidavit was not admitted into the trial (such as her 28 February 2008 affidavit) or was not sought to be tendered and explains that this was due to her inexperience in criminal trials (see the explanation in paragraph 2(b)). In other cases in response to the Crown’s submissions, Ms B responds (as in paragraph 2(a) of her annexure) by stating that the evidence she tendered during the trial was not for the purposes of establishing that sexual abuse had in fact occurred and that the material in her November 2014 affidavit is now presented as the whole of the evidence she seeks to rely upon for the purpose of establishing that sexual abuse did in fact occur.

84. [101]

    At [2] of her February 2015 submissions, Ms B states: “I required the jury to make a finding on whether [Mr B] sexually abused [her son] because it is what actually happened and because this finding is the objective evidence of the reasonableness of my conduct in response, in addition to findings on risk of attack by [Mr B] – at any time and in any place” (my emphasis). That, however, is not the basis on which Ms B conducted her defence and such a course was expressly disallowed by her at the time.

85. [102]

    On 15 October 2013, before the jury was empanelled, in the context of her objection to the admissibility of Dr Waters’ report, Ms B stated that she did not want to have the jury try to ascertain the sexual abuse issue. She explained that this was because it was very complex and the fact that the abuse happened was not the reason that she left the country; and because to do so there would need to be an expert with child sexual abuse expertise (T 63.25).

86. [103]

    On 24 October 2013 (day 9 of the trial), in the course of argument about what evidence could be given by Professor Briggs, Ms B disclaimed any intention to use Professor Briggs as an expert in this case, stating that she wanted to use Professor Briggs’ expertise in general (T 344.32).

87. [104]

    On 30 October 2013 (day 13 of the trial) (T 47ff), referring to the “purple lipstick recording”, Ms B said “I want to use it not as evidence of the facts asserted but as evidence of the fact that my son spoke to me in a manner consistent with disclosing sexual abuse”.

88. [105]

    Ms B said:

89. [106]

    Ms B argued that the purple lipstick recording showed her credibility in circumstances where she had been accused of fabricating allegations. She confirmed again that:

90. [107]

    Similarly, in relation to the JIRT interview, Ms B indicated that she wanted to tender it in order to point to a discrepancy in the transcript (namely, that her son had answered the question as to his name correctly at first, by responding with his Christian name, then incorrectly answered the question as to his other name); to counter Dr Waters’ comment that her son was unsettled at the interview and to point to “concerning signs” in the video that she submitted would lead one to think that perhaps there should be more than one interview. Ms B had not seen the recording of the JIRT interview or the transcript at the time she left the country (and therefore it could not have informed her state of mind at that time) but maintained that she knew it had been unsuccessful.

91. [108]

    In the context of her oral application for a ruling on whether Dr Waters was an expert in sexual abuse, Ms B said:

92. [109]

    In those circumstances, it is not open to Ms B now to contend that her Honour erred in not admitting evidence going to the truth of the sexual abuse allegations. The fact that, as Ms B states in her most recent submissions, she may now have formed the view that certain matters were wrong – such as her statement that Professor Briggs was not an expert in the case (which Ms B now submits was an incorrect view) that initial incorrect view being said to be “as a result of bias in the way the Family Court appoints experts”); or that she did not seek during much of the trial to have the jury make findings of fact on whether sexual abuse had actually occurred because she accepted the Crown’s assertions and the trial judge’s ruling that the evidence was irrelevant; or that she wrongly believed she could not seek to ask the jury to find that sexual abuse had occurred and wrongly believed that she could not ask Professor Briggs her opinion on that issue, does not reveal error in the trial judge’s rulings on the admissibility of evidence relating to the truth of the sexual abuse allegations. Ms B is bound by the forensic decisions made by her in the trial, whether those were affected by her inexperience or otherwise.

93. [110]

    Ms B complains that she was not advised that she could argue otherwise against the proposition that the jury should not be embarking on an enquiry as to whether or not her child was abused. However, it was not for the trial judge or the Crown to advise Ms B what argument she should advance in the conduct of her defence.

94. [111]

    The two rulings that were identified by Ms B in oral submissions as incorrect rulings referable to particular evidence or a particular area of cross-examination, and which would fall within the scope of the re-cast ground 2, were a ruling on 25 October 2013 and 14 November 2013 each being in response to an application by Ms B to adduce particular evidence from Professor Briggs, the psychologist with experience in dealing with child sexual assault matters from whom Ms B had obtained advice in March 2008. Her Honour gave short reasons in relation to each application. It is clear from the transcript that there were a number of other areas in which Ms B was permitted to adduce evidence from Professor Briggs.

95. [112]

    The context in which this arose was that the Crown had objected to Ms B asking Professor Briggs a number of questions on the basis that they were either irrelevant or that Professor Briggs lacked the necessary expertise to give evidence on those matters.

96. [113]

    Ms B was asked, in the absence of the jury, to identify the matters she wished to ask Professor Briggs. Those included: communications Ms B had had with Professor Briggs in the period of time leading up to her departure from Australia going to matters such as the giving of gifts at contact centres; the reasons given by Dr Waters for not interviewing the child in March 2007; delay by children in disclosing abuse; questions as to the investigation that had been carried out; what a thorough investigation would involve; and questions about child sex offenders and their behaviours in grooming children, connected to the circumstance that a child might show a positive friendly emotion to someone who has in fact abused them.

97. [114]

    Her Honour accepted that evidence as to those matters might be relevant to the question of the circumstances at the time and as to what was perceived by Ms B, going to the reasonableness of any belief that she may have held at the time. Her Honour indicated that she would allow questions of Professor Briggs to be asked for that purpose. Her Honour considered that Professor Briggs was appropriately qualified to give evidence as to matters such as the age at which young children can be interviewed and as to the investigation of child sexual abuse allegations.

98. [115]

    The two areas on which her Honour did not allow cross-examination of Professor Briggs were, first, questions relating to the statement by Dr Waters in his 10 April 2008 report to the effect that Ms B did not disclose anything that could constitute a penetrative act (about which Ms B cross-examined Dr Waters and which Dr Waters effectively conceded was incorrect) and, second, Professor Briggs’ comments on the JIRT video.

99. [116]

    As to the first, her Honour considered that the question was aimed at Professor Briggs being asked to give a medical opinion, namely what it is that might be discovered after a penetrative act. Her Honour would not permit the witness to give any such medical opinion. Ms B in her February 2015 written submissions maintains that the opinion that she was seeking from Professor Briggs (in her question regarding evidence of anal penetration) did not concern physical evidence of the abuse but was a question asking Professor Briggs to comment on her son’s behaviour and disclosures as evidence that he was communicating and behaving consistently with a child who had been anally penetrated. However, the question as put on the voir dire by Ms B was as to whether it was possible that her son could have experienced a penetrative event (T9.34, 15/10/13).

100. [117]

     Given that Professor Briggs was not called as a medical expert to give an opinion as to what kind of physical evidence there might have been or might potentially have been of penetrative abuse, there was no error by her Honour in rejecting a line of questioning that went to that issue. As to the line of questioning Ms B now says she intended (by reference to the behaviour that might be exhibited by a child who had suffered anal penetration), that was not obvious from the question she had put but in any event Ms B adduced evidence from Dr Waters in cross-examination to the effect that her son’s complaint as to his bottom being sore and her son asking his mother to clean inside his bottom could disclose penetrative abuse.

101. [118]

     As to the second area identified by Ms B, her Honour said that:

102. [119]

     Again, there was no error in the rejection of questioning along this line, bearing in mind that her Honour did permit evidence to be given as to what a thorough investigation might involve and her Honour did not preclude submissions by Ms B as to what might be discerned from the video.

103. [120]

     As to Ms B’s criticism of the JIRT interview, in her reasons on sentence her Honour concluded (at [32]) that it would be open to a tribunal of fact to conclude from that evidence that the procedure of having a one-off interview between a three year old child and a person the child had never met before was inadequate in the circumstances of the case. Having viewed the JIRT video in the course of preparing these reasons, I can only agree. Her Honour considered that this was supported by the evidence given in cross-examination by Dr Waters. Professor Briggs herself seemed to indicate that more than a one-off interview would be necessary.

104. [121]

     On 14 November 2013, Ms B sought to adduce the evidence of Professor Briggs on the reasonableness of the conclusions Ms B drew from what the child had said, as well as the circumstances in which the further disclosures (after he had been taken out of the country) were made. Her Honour said:

105. [122]

     A copy of MFI 83 was handed up on the hearing of the appeal. It consists of an email exchange between Professor Briggs and Ms B on 9 November 2013 in which Professor Briggs comments on and attributes possible meanings to what appears in a transcript of a recording between mother and child (the purple lipstick recording). Professor Briggs gives her interpretation of what was being disclosed to Ms B in that conversation.

106. [123]

     Ms B maintains (AT 18.20) that Professor Briggs’ assessment of the recorded disclosure was that she determined it was “authentic and supportive of finding sexual abuse”, though Ms B accepts that, on its face, the recording would not prove beyond reasonable doubt that the offence had occurred.

107. [124]

     In light of Ms B’s concessions referred to at [105] and [106] above, her Honour’s ruling on this area of cross-examination cannot be seen as being in error.

108. [125]

     For completeness, I note that annexed to Ms B’s November affidavit (Annexure Q) is a copy of what was MFI 82 at the trial. This was another email exchange between Professor Briggs and Ms B on 9 November 2013, in which Professor Briggs gave her opinion as to the techniques for interviewing young children in relation to sexual abuse allegations and concluded that the interview (by the JIRT) was “woefully inadequate” (Professor Briggs went on to express the opinion that if further information was disclosed there should have been another assessment on the child’s return to Australia and before he was in the care of the father, an opinion not relevant to the issues in the trial on any view of the matter).

109. [126]

     It is not clear whether Ms B complains about the rejection of MFI 82. If she does then that complaint is also unfounded. When Ms B left the country she had not seen the video of the JIRT interview and hence a conclusion that it would be objectively reasonable from that video to consider that the investigation was “woefully inadequate” could not be relevant to whether on the material then known to Ms B such an opinion would have been objectively reasonable.

110. [127]

     Insofar as Ms B now relies on Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 to support the adducing of evidence of sexual abuse as contained in her November 2014 affidavit, it should be noted that the leave granted to file submissions identifying what evidence it was said had been wrongly excluded at the trial was not an invitation now to mount a case based on assertions that Mr B had in fact sexually abused her child that have not been tested and to which neither the Crown nor Mr B has had the opportunity in the trial proceedings to respond.

111. [128]

     Ground 2 is not made out.

112. [129]

     The last ground on which the conviction appeal is brought is that:

113. [130]

     A copy of Dr Waters’ report was not in evidence at the trial. However, Ms B read out various portions of the report when cross-examining Dr Waters on the conclusions and recommendations contained in his report. Hence some of the content of the report became known at the trial. Ms B accepted on the hearing of the appeal that the Court could infer, from correspondence following the publication of that report, that Dr Waters’ report was not favourable to her position. She later annexed a copy of the report to her November affidavit.

114. [131]

     There is a certain irony in the contention by Ms B that her Honour erred in failing to make findings on the admissibility of Dr Waters’ report. It was in fact Ms B who had objected to the admission of that report in evidence. The Crown had indicated that it was proposing to use the report to refute the potential defences because the report suggested that the sexual abuse probably did not occur and that the mother had developed an “overvalued idea”. Ms B had objected that it was an untested report. Ms B says on this appeal that her objection was that it was wrongly defamatory of her (AT 19.45).

115. [132]

     Prior to the examination of Dr Waters, there was a discussion between the bench and the Crown, in the absence of the jury, as to the objections Ms B had raised to various portions of Dr Waters’ report. After some discussion, the Crown indicated that it proposed not to tender the report but just to have some parts of it, including parts already read out, lead orally. Those parts were described as the introductory part, for the fact that Dr Waters had conducted the interviews and had received certain documents and then the conclusions and recommendations expressed by him. Dr Waters had formed the view that both parents had parenting capacity, albeit the mother probably to a somewhat greater extent.

116. [133]

     Ms B then said that she was preparing to cross-examine Dr Waters and had changed her view (as to the admissibility of the report) because she thought it more helpful to her case to raise in cross-examination quite a bit of his report to establish how he formed his opinions.

117. [134]

     Her Honour quite properly pointed out to Ms B the need to be aware that cross-examination on certain matters might have the consequence that the Crown prosecutor might raise other things in the report or tender it. Ms B responded that she thought she had no alternative than to address the report because enough of it had gone in.

118. [135]

     Ms B cross-examined Dr Waters on his evidence and other portions of the report. She accepts that she tried to cross-examine him fully on the report (AT 19.50) and, in particular, she accepts that she cross-examined him on his conclusions and recommendations and was satisfied that those were the material portions of the report to go to the jury (AT 20.3; 11).

119. [136]

     Ms B sought a ruling from her Honour as to whether Dr Waters was an expert in sexual abuse. Her Honour declined to make such a ruling on the basis that there was no utility in so doing. Her Honour made clear that there was no need to rule on the admissibility of Dr Waters’ opinion because he had not been called by the Crown to prove that sexual abuse had occurred; rather, he had been called to show that he had made a report that was served on Ms B and what the contents of that report had been.

120. [137]

     Ms B submits that it is significant to consider the implications of Dr Waters’ report because it would not have protected her child; rather, it would have caused the child to go to the father. As noted earlier, that is not the recommendation that Dr Waters in fact made (as Ms B’s cross-examination of Dr Waters made clear when she adduced evidence from him that his doubts as to whether what had been disclosed had or had not occurred, why he had recommended the continuation of supervised access).

121. [138]

     Ms B’s complaint is not that her Honour wrongly made a ruling on inadmissibility of the report. There was no need for any such ruling since the report was not tendered by the Crown. Ms B does not now say that her Honour erred in not admitting the Dr Waters’ report, which she says was significant to show the risk her son was under, but she contends that her Honour denied her the opportunity to submit to the jury that an urgent application to the Family Court in March 2007 would not have succeeded based on that report. Ms B seems to wish to argue that her Honour should have ruled that Dr Waters should not have written the report at all (AT 22.35; 50).

122. [139]

     Ms B contends that her Honour should have found that Dr Waters was not an expert (for the purposes of the Family Court proceedings) (AT 24.7; T 24.20 but cf T 24.15) (or perhaps in general as to child sexual abuse) and that his report greatly added to her child’s risk and “pretty much sealed his fate” (AT 21.45). She contends that her Honour should have made that finding based on Professor Briggs’ evidence and Ms B’s own cross-examination of Dr Waters.

123. [140]

     Ms B maintains that if Dr Waters was not an expert his report would not be admissible and the imminent danger that Ms B feared could not have occurred. In essence, this is a complaint as to the evidence before the Family Court not the evidence at the trial. However, Ms B’s argument is that the fact that the report was not written by a child sexual abuse expert but was available in the Family Court proceedings is objective evidence that she would not have succeeded in an appeal or another interlocutory hearing and therefore could not have protected her child. That argument appears to rest on a misreading of the recommendations in the report but in any event is beside the point.

124. [141]

     Whether as framed in the notice of appeal or as articulated orally, ground 3 is not made out. Her Honour did not err in not admitting a report that was not tendered. Dr Waters’ evidence at the trial was as to the recommendations and conclusions he had made in his report as the court appointed expert in the Family Court proceedings. Whether he was suitably qualified to provide such a report was a matter for the Family Court judge to determine. He was not being called as an expert witness as such in the criminal proceedings against Ms B.

125. [142]

     Ground 3 is not made out.

Sentence appeal

1. [143]

   The Crown submissions on sentence were (at [19]) that a period of imprisonment was the only appropriate sentence but that, as Ms B had already served more than eight months’ imprisonment, this should be taken into account. It was submitted to her Honour that the effect of the comparative sentencing cases provided by the Court indicated that Ms B had, by reason of the eight months already spent in custody, already served a term of imprisonment comparable to those that had been handed down in broadly comparable cases.

2. [144]

   Ms B argues that the cases to which the Crown had referred were not comparable but does not suggest that any other or lesser sentence should have been imposed on her.

3. [145]

   Her Honour accepted (at [54]) that the conduct involved a very serious breach of the Family Law Act and that Ms B was the sole participant in the offence. Her Honour further accepted (at [55]) that the offence was deliberate and planned, although noting that there was very little planning involved beyond deciding in the week before she left: to leave the country taking her child to the doctor, getting her finances in order and purchasing the tickets. At [58] she said:

4. [146]

   At [59], her Honour noted that in the result the child was kept away from Australia was two years, four months and 21 days and said that this was obviously a lengthy period for a child who was just three years eight months at the time he left the country. Her Honour also noted that the length of time was brought to an end by the actions of the father in his attempts to locate his child.

5. [147]

   At [60], her Honour accepted that the offending involved an intentional course of action designed to frustrate the ordinary process in the Family Court. However, her Honour also took into account “not by way of excuse, but as a matter reflecting upon the moral culpability of the offender, non-exculpatory self-defence, … arising out of what I am satisfied was the genuine belief that the child had been abused by [the] father”.

6. [148]

   Her Honour accepted (at [61]) that Ms B gave an honest account of the events and had genuinely held the belief that the child had been abused by the father. Her Honour said this was not a case of a person acting out of malice, rather the offender genuinely held the belief that the child had been so abused and was fearful for the safety of her and her child in light of the revelation about her husband’s mental condition and having observed his anger and desperation expressed in the circumstances in which he found himself. Her Honour accepted that Ms B sought but did not find the help and support she needed; “[s]he had the firm view, informed by her experience and researches, that the allegation had not and was not going to be properly investigated above and beyond the one ineffective interview of her [child]”.

7. [149]

   Her Honour also accepted (at [62]) the Crown’s submission that the nature of the action taken by the offender was extreme.

8. [150]

   At [63] her Honour said:

9. [151]

   Her Honour accepted that the principles stated in R v Constantine (1991) 25 NSWLR 431 (at 438F-439A), in relation to prosecution under the forerunner to the present section, were applicable; and noted the importance of the question of deterrence.

10. [152]

    Her Honour also noted that there was no evidence of contrition: Ms B having told the jury she still thought that she did the right thing and that there was no evidence about any cooperation with law enforcement agencies.

11. [153]

    Her Honour then took into account Ms B’s character and age, means, and physical and mental condition. Her Honour considered that Ms B had good prospects of rehabilitation.

12. [154]

    As to Ms B’s mental condition, her Honour noted that an issue had arisen as to this. At [78] her Honour said:

13. [155]

    At [79]-[80], her Honour said:

14. [156]

    Nevertheless, her Honour said (at [84]) that there were some fundamental difficulties on the basis of the evidence and material placed before the Court in making a finding that Ms B has or had a delusional disorder, including that the reports were prepared for a different forum; some important issues were raised in the evidence yet Dr Robinson adhered to her opinion; Dr Robinson noted the difficulty in being cross-examined by the person she diagnosed with a delusional disorder; and Dr Robinson had also reported to the Family Court her opinion about whether the offender should have contact in the future with her child. Her Honour said:

15. [157]

    Her Honour also noted (at [85]) that it had been brought to the Court’s attention that on 26 March 2014 the Family Court had made orders to the effect that the child spend no time with the mother but may have electronic communication with her through Skype or the telephone when the child requests to do so. Her Honour said:

16. [158]

    Her Honour considered that a relevant factor to be taken into account was the fact that Ms B was now prohibited from spending any time with her child for the next eight years. Her Honour noted the likely difficulty or the potential for difficulty in electronic communication between the then nine year old child and the mother if the mother were in prison.

17. [159]

    At [91], her Honour said:

18. [160]

    Taking into account all of the matters being made known to the Court and having regard to the actual imprisonment already served, the course of events over the ensuring years (including the very limited and restricted time during which the offender has been allowed to spend time or communicate with her child) and the present circumstances which include the orders made by the Family Court, her Honour concluded that it was not appropriate at this time to impose any further or additional punishment in the nature of imprisonment full-time or otherwise. In the result, the sentence imposed on Ms B was not a custodial sentence even though her Honour considered that the offence that had been committed was a serious offence.

19. [161]

    As to the sentence appeal, the amended grounds of appeal are as follows:

    1. (1)

       Her Honour erred in failing to make findings in regard to the diagnosis of delusional disorder and the inference that I suffered a mental illness.

    2. (2)

       Her Honour erred in denying me the opportunity to cross examine [Mr B] on his Victim Impact Statement that he read into evidence in Court under oath.

20. [162]

    The circumstances in which this issue arose, as her Honour noted, are somewhat unusual. The matter had been listed for the sentencing hearing to take place on 4 December 2013. Both the Crown and Ms B had provided in advance written submissions on sentencing. The Crown raised as a preliminary issue that Ms B’s submissions had made reference to a report from Dr Robinson, who by then had been appointed as the single expert in the Family Court proceedings. Ms B had been ordered, over objection by her, to see Dr Robinson as part of the Family Court proceedings (AT 26.3). The Crown did not have a copy of that report but noted that Ms B had made reference in her submissions to a delusional disorder in the report. The Crown submitted that if Ms B is or was suffering from a delusional disorder that would be of relevance to penalty and might affect the Crown’s submission that a period of imprisonment was the only appropriate sentence.

21. [163]

    Ms B indicated that she wished to cross-examine Dr Robinson, asserting that Dr Robinson had committed serious offences. Apparently that allegation relates to Ms B’s belief that Dr Robinson had misrepresented and manipulated records. Ms B contended that the contents of the report were biased and misrepresented.

22. [164]

    The matter was listed for 28 February 2014 for the purpose of Ms B’s cross-examination of Dr Robinson (and for cross-examination of Mr B on his victim impact statement if permitted).

23. [165]

    Ms B then issued a subpoena for Dr Robinson to attend for cross-examination on the sentencing hearing but there appears to have been an issue as to the provision of insufficient conduct money for attendance at court of an expert witness. The matter was re-listed before her Honour on 14 February 2014, when the Crown indicated that it would subpoena Dr Robinson.

24. [166]

    On 28 February 2014, Ms B indicated that she wished to tender the report of Dr Robinson into evidence on the sentencing hearing, to rely on the fact that its contents were biased and misrepresented. Her Honour pointed out to Ms B that without the report being tendered by her the Court would have no knowledge of it and could not use it in any way in the determination of the sentence (the Crown not seeking on its own behalf to rely on the contents of the report).

25. [167]

    Ms B informed her Honour that she had to deal with the report and thought it was significant because her case was so impacted by Dr Waters’ report and his failure to investigate her son and:

26. [168]

    Ms B also expressed the concern that Mr B was seeking to show the report to schools and mental health institutions and it would impact greatly on her current circumstances.

27. [169]

    The Crown then called Dr Robinson and tendered her report (Exhibit C). A non-publication order was made in relation to the exhibits given that they identified the son. Dr Robinson confirmed that she had made a diagnosis of “the psychotic illness delusional disorder” because Ms B “holds with absolute conviction the belief [her son] has been sexually abused by his father is valid and accurately reflects reality” but Dr Robinson said that the diagnosis did not relate to Ms B’s condition five years earlier, on which she considered it inappropriate to comment.

28. [170]

    Ms B cross-examined Dr Robinson at length, over two separate days, challenging her expertise in the area of child sexual abuse and challenging the opinion that Ms B now suffers from a delusional disorder. She did not, according to Dr Robinson, seek to cross-examine Dr Robinson in the Family Court proceedings for which that report had been prepared.

29. [171]

    During cross-examination, Dr Robinson accepted that she could not be categorical that nothing inappropriate had happened to the son. She said that certainly there were ambiguous behaviours by the son on 6 December 2007. However, Dr Robinson considered that Ms B’s response was “markedly concerning” in that Ms B had behaved as if the fact of abuse had been established, without being open to any other reasons for her son’s behaviour. Dr Robinson said that once Ms B had gained that conviction she had found other information to support her view and had gone “beyond” what Dr Robinson regarded as the normal or reasonable steps of a mother with that belief.

30. [172]

    Dr Robinson conceded that she had not tested the veracity of some of the information that was contained in the report (some of which she said she had included as part of what she referred to as the “longitudinal” history of the matter) but emphasised that her diagnosis was not one based on events viewed in isolation. While at the conclusion of the cross-examination Dr Robinson’s position was that (in hindsight) she would have reviewed her report in light of the matters raised in cross-examination, she also said she would not have revisited her opinion as to delusional disorder.

31. [173]

    Ultimately (at [84] of her Honour’s remarks on sentence), her Honour concluded that she was unable to make a finding that Ms B has or had a delusional disorder. Ms B now seeks to argue that her Honour ought to have made a positive finding that she does not suffer from a mental illness.

32. [174]

    Ms B submits that such a finding should have been made as it was objectively relevant to her credibility as a self-represented litigant and to her argument that the Family Court is making decisions based on unreliable and inadmissible expert reports (which she says contributed to her forced departure in 2008).

33. [175]

    Ms B further says that if Dr Robinson is correct and she has been delusional since 2008, then this would mean that the whole time that she had represented herself in the proceedings and in the appeal she was suffering from that disorder (AT 27.1).

34. [176]

    Ms B does not appear to be arguing any denial of procedural fairness in this regard but, rather, appears to be relying on the fact that she was able to conduct her defence as demonstrating that she is not suffering from a delusional disorder.

35. [177]

    One difficulty with a submission that, because Ms B had been able to conduct her case logically and rationally, she could not be suffering from a delusional disorder is that the definition of delusional disorder, as given by Dr Robinson, in effect acknowledges that delusions do not interfere with general logical reasoning (although within the delusional system the logic is perverted). Nor did Dr Robinson accept that, for there to be a delusional disorder, it was necessary that the belief be incorrect, explaining that delusional disorder incorporates the sense of not being able to entertain that their beliefs may be false or that there is no evidence for them; it being the way that Ms B holds her beliefs and their persistence and the way that judgments were made about information that led to Dr Robinson’s opinion. In any event this is not the issue.

36. [178]

    Ms B did not suggest that the failure to make a finding as to her mental state had impacted in any way adversely on the sentence imposed on her or that any different sentence should have been imposed having regard to her criticisms of the report (AT 27.30).

37. [179]

    It is the duty of the judge at sentence to determine the facts relevant to sentencing (R v Isaacs (1997) 41 NSWLR 374 at 377-378, cited with approval in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14] per Gleeson CJ, Gummow and Hayne JJ; at [170] per Callinan J). The duty is limited to those facts that are relevant to the determination of the relevant issue (R v MacDonell (Court of Criminal Appeal (NSW), 8 December 1995, unrep) per Hunt CJ at CL).

38. [180]

    Findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. The practical effect of this is recognised as being that, in a given case, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender (Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen at [14] and Callinan J at [170] citing R v Isaacs with approval on the question of fact finding following a jury verdict).

39. [181]

    The only relevance to Ms B’s sentencing of Dr Robinson’s report was that, if Ms B did suffer from a delusional disorder at the relevant time (or even at the present time) that would be a mitigating circumstance for the Court to take into account on sentencing. A finding that there was no delusional disorder would have no relevance other than to remove a potential mitigating factor. (Insofar as that would be a factual finding adverse on sentencing to Ms B, it would have to have been proved beyond reasonable doubt.)

40. [182]

    The Crown submitted to her Honour that the Court would have significant concerns that Ms B did have a delusional disorder and recognised that, if so, that would be a mitigating circumstance but said it would not be pressing for a positive finding that Ms B did suffer from a delusional disorder; suggesting instead that the Court take into account that Dr Robinson’s evidence provided some explanation as to the reason that the offence might have been committed.

41. [183]

    There was no expert evidence other than that from Dr Robinson on this issue. Ms B challenged, in her cross-examination of Dr Robinson, the factual basis for a number of matters referred to by Dr Robinson in the course of her report.

42. [184]

    The definition of delusional disorder to which Dr Robinson referred focussed, as I understand it, on the holding of a fixed view (as to the sexual abuse allegations) without being open to the possibility that there might be another explanation.

43. [185]

    Ms B accepts that she holds an unshakeable view that her son was sexually abused by his father. Though she did not accept in cross-examination at the trial that the only investigation she would accept was one that agreed with her view or that if anyone failed to support her concern as to the sexual abuse allegations then he or she was incompetent, biased or dishonest, Ms B has since 2008 made very serious allegations against a large number of people who have played a role in the Family Court proceedings or the steps taken once the abuse allegations were made.

44. [186]

    In that regard I note that Ms B expressed the belief to her lawyers in 2008 that all of the persons involved in the matter (the judge, her lawyers, the court appointed expert, the JIRT officers and the CPU) were “not unbiased” and has made similar allegations in her later correspondence with Professor Briggs. She has accused the Family Court judge of bias, dishonesty and a conflict of interest in having a professional relationship with the Court appointed expert (because the expert earns fees from the appointment), though her attempt to have the judge disqualified for bias was nevertheless unsuccessful. She has accused Dr Waters of bias and misrepresentation and maintains that he is not an expert at all in the area of child sexual abuse and holds extreme views (part of her criticism being that his assessment that she held an “overvalued idea” does not accord with any use of the term “overvalued” idea in the area of child sexual abuse literature). She has similarly accused Dr Robinson of misrepresentation.

45. [187]

    The stance taken by Ms B in her correspondence to Professor Briggs in 2009 (in parts of the letter that were not before the jury) was that she and her son had become victims of abuse from her husband, from the court appointed psychiatrist (who she described as dishonest and supporting her former husband), from the judge (which she said in cross-examination she meant in the way that he had created the orders and caused further harm), who she said she thought was biased or incompetent, from the CPU (who she says did not investigate properly), by the supervised contact centre (the co-ordinator of which was described in the letter as having given “full support” to Mr B threatening her son in contact sessions). She has accused DOCS of misrepresenting her and has accused Mr B’s solicitor of making false statements in court. She has accused Mr Christos Christaki (the independent children’s lawyer) of manipulation of the court process, insofar as she suggested that he had advised the contact centre of an incorrect date for production of material in answer to a subpoena.

46. [188]

    Ms B argued, at the sentencing hearing, that the Family Court has a small group of experts who were biased in reports to pervert the course of justice (submissions on sentencing at [60] – [62]) and says that she provided evidence that the Family Court appointed independent children’s lawyer, Mr Christaki, was not providing any independent view of the reports (8 November 2013, T 1063.44-1064).

47. [189]

    In her submissions on the conviction appeal, Ms B contends that the Family Court has caused endless litigation and appeals ([82]) and that The Hague failed effectively to implement clause 13(b) of The Hague Convention and prioritised international relations over child safety ([85]).

48. [190]

    However, whether or not the above matters could give rise to a conclusion that Ms B suffers from a delusional disorder, her Honour was not satisfied that such a finding could be made on the material before her. That conclusion has not been shown to be infected by any error, nor does Ms B complain about this. As to the complaint that her Honour did not go on to make a positive finding that there was no delusional disorder, suffice it to note that her Honour was not obliged, when sentencing, to make rulings on issues that were not determinative of, or relevant for, the purposes of making the decision her Honour had to make. Given the conclusion that her Honour reached in relation to sentencing, it was not necessary for her Honour to go further than to decline to make a ruling on delusional disorder. Moreover, the fact that Dr Robinson’s opinion was not accepted by her Honour as establishing on the balance of probabilities a delusional disorder (her Honour making it clear that she would have required further evidence on that issue) does not mean that the contrary conclusion had been established. Rather, it simply means that there was insufficient evidence for her Honour to draw a positive conclusion on that matter.

49. [191]

    Given that there were Family Court proceedings on foot in which rulings of that kind may have been required, it would have been inappropriate for her Honour to comment on that issue beyond making the ruling that her Honour did.

50. [192]

    Ms B was not able to indicate any basis on which the failure to make a ruling on this issue was something that had contributed to an error in her sentence. Insofar as she submitted that a finding of no delusional disorder would be relevant in other proceedings (such as the Family Court proceedings) this highlights why it is that her Honour was correct in declining to entertain such an issue.

51. [193]

    This ground is not made out.

52. [194]

    Finally, Ms B claims she has been denied procedural fairness because she was not permitted to challenge Mr B on statements made by him under oath on 4 December 2013 when he read out his victim impact statement. A sealed copy of the victim impact statement was admitted as a confidential exhibit (Exhibit D) at the sentencing hearing. The reason that this evidence was given on oath was that Ms B had foreshadowed an intention to cross-examine Mr B.

53. [195]

    At the sentencing hearing there was an issue as to whether Mr B could be classified as a victim. Both parties prepared lengthy submissions on that issue. Ms B argued that the statement was inadmissible. She referred to the decision in R v Nahlous [2013] NSWCCA 90 at [107] and RP v R [2013] NSWCCA 192 at [18] (see addendum to submissions to cross-examine at [1] and [2]). In Nahlous, the Court found that it was not a mandatory requirement, when sentencing, to have regard to a statement by the family of the victim and hence there was no error in not doing so. It is not authority for the proposition that it is an error by a sentencing judge to have regard to such a statement, notwithstanding that the maker of the statement is not a “victim” as defined in the legislation.

54. [196]

    Her Honour refused to permit cross-examination, saying that cross-examination would not assist her. Her Honour made reference to the victim impact statement only in a very general way. She referred to the suffering of the kind one might expect of a parent who had lost contact with a child. Ms B’s response is that what Mr B missed was being able to “use” his child and had nothing to do with the welfare of the child. Ms B argues that it is speculation to assume that what Mr B experienced is what any normal parent would expect because he was very different from that. She alleges that Mr B went overseas “as an alibi” and using the persona of a victim to deflect from the crime he had committed. Ms B maintains that her Honour breached the principle that findings must be supported by evidence not speculation and that the inability to cross-examine Mr B goes to her sense of whether justice has been done.

55. [197]

    Section 16AB(6) of the Crimes Act 1914, which provides that a person convicted of an offence may only test the facts in a victim impact statement by way of cross-examining the maker of the statement and if the Court gives leave to do so, applies only to offences committed or alleged to have been committed on or after the amending provisions commenced on or after 29 June 2013 and hence did not apply.

56. [198]

    The object of the proposed cross-examination by Ms B of Mr B (supported by a 70 page submission document) was to establish that he was not a victim of a crime but a perpetrator of the crime. Ms B indicated in her submissions to her Honour that this evidence was likely to involve allegations of alleged rituals in the workplace of the father, allegations of sexual acts being committed by the father and unknown males on the child and that others, including Dr Waters, Mr Christaki and Dr Robinson, had engaged in cover ups, falsification or fabrication of evidence.

57. [199]

    Ms B says that she wanted to show that when Mr B said in his witness statement that he had not perpetrated any crime that was false (AT 33.8). She maintains that the publicity campaign by Mr B was highly inaccurate; defamatory and prejudicial to her case; that his travel to Europe to search for the child was “to avoid implications for investigation into sexual abuse offences” in his former work place; and she raised complaints as to the manner in which the child was reintroduced to the father.

58. [200]

    At [70] her Honour explained why she did not permit cross-examination of Mr B. Her Honour thought persuasive the Crown’s submission that granting leave to cross-examine was unlikely to have any significant impact on any penalty given the Crown concession that the time served in custody to date should be taken into account. Her Honour said she was and remained of the view that such cross-examination would not assist the Court in the determination of penalty.

59. [201]

    The Crown notes that the decision not to permit cross-examination was a discretionary decision and submits that no relevant error is demonstrated in the House v The King sense ([1936] HCA 40; (1936) 55 CLR 499). Ms B argues that error in that sense was established because her Honour acted on a wrong principle. Ms B identified that principle as being the principle of law that “if a person reads a statement out in Court under oath and the statement is adverse to a party, the party has the right to cross-examine”. She also contended that the comment by her Honour in the sentencing judgment (to the effect that one might properly accept, as a natural consequence of the offence, the distress of which Mr B had spoken in his victim impact statement) was speculative – her complaint in essence being that decisions were to be made based on evidence not speculation. Ms B says that her Honour erred in concluding that she would not be assisted by any cross-examination of Mr B on his victim impact statement because it was impossible to make that determination without knowing what evidence would have been elicited in cross-examination. She cites by way of example what she says emerged from the cross-examination of Dr Robinson (AT 33.13). (It is not necessary here to explore her criticisms of Dr Robinson’s report in that regard.)

60. [202]

    Ms B says that she wished to adduce evidence in her response to the victim impact statement that would prove that the assertions made by Mr B were inaccurate.

61. [203]

    In Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13, Rogers CJ Comm Div, after noting that cross-examination is recognised as an integral feature of adversarial litigation in the legal cultures that have their origin in English common law, said (at [12]), that it was an undoubted fact that “in ordinary court-conducted litigation today to deny a party completely the opportunity to cross-examine a witness would be a denial of natural justice”. There, the question arose in the context of a reference out to an expert of certain issues in the case. However, the Court also noted (at [13]) that the ultimate test, there having regard to the issues posed for reference to the referee and other matters, was whether each party had been given a fair opportunity to put his or her or its case and point of view. There was found to be no denial of natural justice in that case.

62. [204]

    In Wakim v Mathiew Pty Ltd [2002] NSWSC 405, the Court accepted that the requirements of natural justice may not confer on a party the right to cross-examine in a given case ([29]) and said that in determining whether or not the denial of the right to cross-examine constitutes a denial of natural justice in a given case it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted (at [30]).

63. [205]

    In GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, Young CJ in Eq, reviewed the authorities and said (at 22F) that the only actual right is the right to have a fair trial. His Honour also noted that in all proceedings the court has a duty to prevent cross-examination purely for a collateral purpose (at 23D).

64. [206]

    The victim impact statement was not applied in a way that was adverse to Ms B’s interests on sentence. In circumstances where it is clear from the sentence imposed by her Honour that reliance was not placed on the statements made by Mr B in his victim impact statement in a manner adverse to Ms B, there was no denial of natural justice in Ms B not being permitted to cross-examine Mr B, particularly where the indicated scope of cross-examination bore the hallmarks of cross-examination for a collateral purpose, namely to establish that Mr B had committed criminal offences against his son.

65. [207]

    Ground 2 of the sentence appeal is not made out.

Conclusion

1. [208]

   For the above reasons the appeal from conviction should be dismissed. As the merits of the sentence appeal have been fully argued, leave to appeal against sentence should be granted and the appeal dismissed.

2. [209]

   SIMPSON J: I have had the advantage of reading in draft the judgment of Ward JA. The following are my reasons for reaching the same conclusions.

3. [210]

   On 14 October 2013 the appellant was arraigned before a jury in the District Court on an indictment that charged that, on 24 April 2008, she committed an offence against s 65Y(1) of the Family Law Act 1975 (Cth). Section 65Y provides as follows:

4. [211]

   At the trial, the appellant was not legally represented. She conducted her own defence.

5. [212]

   The Crown case at trial proceeded over a week, closing on 21 October 2013. The appellant gave evidence. Her evidence in chief proceeded over five days; she was cross-examined over three days. She called three witnesses and tendered a considerable volume of documentation. It was not in issue that:

6. [213]

   On 20 November 2013 the jury returned a verdict of guilty. On 29 May 2014, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), Woodburne DCJ, without passing sentence, released the appellant on recognizance to be of good behaviour for 28 days from that date.

7. [214]

   By Notice of Appeal filed on 29 August 2014 the appellant appeals against the conviction, and seeks leave to appeal against the “sentence”. She has again appeared unrepresented, and conducted her own appeal.

8. [215]

   At trial, the appellant sought to rely on certain provisions of the Criminal Code (Cth) (“the Code”). Part 2.3 of the Code has the general title “Circumstances in which there is no criminal responsibility”. The provisions upon which the appellant sought to rely were s 10.3 and s 10.4 which appear in Pt 2.3. It will be convenient to refer to these sections as providing “defences”. It was to these defences that the evidence given and adduced by the appellant went.

9. [216]

   Section 10.3 and 10.4 provide as follows:

10. [217]

    Section 13.3 of the Code provides as follows:

11. [218]

    At the conclusion of the defence case, Woodburne DCJ ruled that the defences would not be permitted to go to the jury. She gave detailed and comprehensive reasons: R v B (No 2) (NSWDC, 15 November 2013, unreported).

12. [219]

    The appellant pleads three grounds of appeal against conviction. The refusal to allow the defences to go to the jury gives rise to the first ground of appeal against conviction. The second ground involves rulings made and directions given to the jury concerning a factual matter. The final ground concerns what is asserted to be a failure to make findings on the admissibility of a psychiatric report.

13. [220]

    The grounds of appeal against sentence involve an asserted failure to make certain findings concerning the appellant’s mental condition, and a ruling preventing the appellant from cross-examining the maker of a victim impact statement.

The Crown case

1. [221]

   The facts giving rise to the Crown case were essentially uncontested.

2. [222]

   As at 2008, the appellant was married to a man to whom (in conformity with the judgment of Ward JA) I will refer as Mr B. The appellant and Mr B had a son (A) who was born in August 2004. In 2008 the appellant became convinced that Mr B had been sexually molesting A. She reported her concerns to the Department of Community Services (“DOCS”), and the child was referred to the Child Protection Unit. A was spoken to by representatives of that Department and police, constituting the Joint Investigation Response Team (“JIRT”). JIRT is an interagency investigative team, involving police and DOCS, the function of which is to investigate allegations of sexual abuse of children. Nothing came of that interview.

3. [223]

   On 1 January 2008 the appellant left the home she had shared with Mr B. She took A with her, and found alternative accommodation. Mr B unsuccessfully attempted reconciliation. On 31 January 2008 the appellant wrote two letters to Mr B, telling him of her belief that he had been sexually abusing A, and that she would not allow Mr B to have any further contact with A.

4. [224]

   There followed some correspondence between Mr B, his solicitor, and the appellant. On 18 February 2008 Mr B filed an application in the Family Court of Australia. The primary order he sought was that he be granted “the parental responsibility” for A, with provision for contact between the child and the appellant.

5. [225]

   On 28 February 2008 the appellant made a similar application, seeking an order that she be given parental responsibility, and ancillary orders. One of the ancillary orders she sought was that there be no order as to the child spending time with Mr B.

6. [226]

   On 29 February 2008 the Family Court made interim orders. Order 2 required the appellant and Mr B to cooperate in arranging for an assessment by the Central West Children’s Contact Service (“the Contact Centre”) as to the suitability of Mr B and A to have supervised contact visits. Order 4 was an order (provisional upon an assessment by the Contact Centre of suitability for supervised contact visits) for Mr B to spend specified time with A. It was common ground that Order 4 was “a parenting order” for the purpose of s 65Y of the Family Law Act.

7. [227]

   On 25 March 2008 the Contact Centre notified Mr B and the appellant that the applications for supervised contact had been approved, and set out a fortnightly programme for the visits. Thereafter, a number of visits took place, at the Contact Centre, under the supervision of staff.

8. [228]

   On 23 April 2008 the appellant purchased airline tickets for herself and A to travel to Europe. The following day, 24 April, they flew out of Australia. No consent within the meaning of s 65Y(2)(a) had been given by Mr B; and no order of a court, within the meaning of s 65Y(2)(b), had been made.

9. [229]

   Accordingly, the Crown case was that the appellant had committed an offence against s 65Y(1). All of the essentials of an offence against s 65Y(1) were made out. So much was not in issue in the trial.

10. [230]

    For completeness, it may be recorded that, in September 2010, the appellant and A were located in Amsterdam, and were taken into custody. The appellant returned to Australia, in custody. A was placed in the care of Mr B.

The defences

1. [231]

   By s 13.3(3) of the Code, the appellant bore “an evidential burden” in relation to both defences. Accordingly, in relation to the defence under s 10.3(1), the appellant bore an evidential burden in relation to the proposition that she reasonably believed:

   1. (1)

      that circumstances of extraordinary (she did not rely on “sudden”) emergency existed;

   2. (2)

      that committing the offence against s 65Y(1) of the Family Law Act was the only reasonable way to deal with the emergency; and

   3. (3)

      that her conduct was a reasonable response to the emergency.

2. [232]

   In relation to the defence under s 10.4 (in the circumstances of this case), the appellant bore an evidential burden in relation to the propositions:

   1. (1)

      that she believed that the conduct (of removing A from Australia, in breach of s 65Y) was necessary to defend herself or A; and

   2. (2)

      that her conduct was a reasonable response in the circumstances as she perceived them.

3. [233]

   In order to discharge these evidential burdens, it was necessary, by s 13.3(6), that she adduce, or point to, evidence that suggested a reasonable possibility that those circumstances (or, to use the language of s 13.3(6), those “matters”) existed.

4. [234]

   There are two limbs to the defence under s 10.3, as to each of which a defendant must adduce or point to evidence. The first limb concerns the belief of the defendant as to the three elements stated in sub-s (2). The belief as to which evidence is required is a subjective belief of the defendant.

5. [235]

   The second limb also concerns the defendant’s belief, but, in this case, the evidence that is required is evidence that would support the proposition that the subjective beliefs were reasonable. Reasonableness of the beliefs is to be assessed objectively: Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [59].

6. [236]

   Section 10.4 also has two limbs. The first concerns the belief of the defendant that the conduct in question is necessary to defend himself/herself or another person. That belief also is a subjective belief. The second limb in s 10.4 concerns the reasonableness of the response made by the defendant. That calls for an objective assessment, but in the light of circumstances as perceived by the defendant.

7. [237]

   Whether the appellant succeeded in discharging the evidential burden in relation to either defence was a question of law for the trial judge (s 13.3(5)). Such a burden may be discharged by “slender evidence”. Any evidence adduced or pointed to in support of either defence must be taken at its most favourable to the appellant: The Queen v Khazaal [2012] HCA 26; 246 CLR 601 at [74].

The defence case

1. [238]

   The appellant gave evidence over the period mentioned. Her evidence was intended to be directed to the matters necessary to establish the defences provided by s 10.3(1) and s 10.4(1) of the Code. However, it ranged well beyond those matters, no doubt due to her unrepresented status.

2. [239]

   She gave a lengthy account of the reasons that led her to conclude that Mr B had sexually abused A.

3. [240]

   She produced a large volume of documentary material. So far as the rules of evidence were concerned, she was given a great deal of latitude, both in her oral evidence and in the documents that were admitted on her tender. Some of her oral evidence was given by her reading from affidavits she had filed in Family Court proceedings, and by reading from other documents, some of which became exhibits. By way of example of the latitude afforded to her, a number of communications (usually email) between herself and her various advisers were admitted apparently (in the absence of any limitation imposed under s 136 of the Evidence Act 1995 (NSW)), as evidence of the truth of their contents.

4. [241]

   The appellant’s evidence (stripped of irrelevancies) was to the following effect.

5. [242]

   Her concerns about A began when she returned from a business trip in June 2007. Carers at the day care centre that A attended questioned her about his behaviour in relation to other children. The appellant gave a number of instances of concern about A’s behaviour, from her own observations and reports or comments from others. She then gave a rather graphic description of an interaction, on 6 December 2007, between herself and A, from which she drew the firm conclusion that Mr B had been sexually interfering with A. The following day she consulted a general practitioner, who appropriately made a report to DOCS and referred her to the North Shore Child Protection Unit (“the NSCPU”). She was dissatisfied with the investigations made by those authorities. In evidence, she said:

6. [243]

   The general practitioner made notes of the consultation with the appellant (Ex 10). The appellant, as she was advised, took A to the Child Protection Unit, and he was interviewed by representatives of JIRT. As mentioned above, the interview was unproductive.

7. [244]

   On 11 December 2007 the NSCPU informed JIRT that it would “close the case”. On 19 February DOCS also finalised its investigations and noted “Case to be closed no further action”.

8. [245]

   The appellant gave the following evidence:

9. [246]

   The appellant then sought assistance from various other institutions or agencies. She said that she was advised that it was unlikely that the Family Court would “automatically” stop Mr B from seeing A if she and Mr B separated. She said she felt “completely powerless to protect [A]”. On 24 December she again consulted a general practitioner.

10. [247]

    There was increasing conflict between the appellant and Mr B. He appeared to be suffering from “moods”. On 22 December 2007 Mr B sought to explain his moods. He told the appellant of an unsatisfactory upbringing and said that he had been using prescribed anti-depressant medication, but had ceased taking it. The appellant observed Mr B to be more actively engaging with A, playing games and the like, which A called “tickle games”.

11. [248]

    On 1 January 2008 Mr B confronted the appellant about the impediments she was increasingly placing in the way of his engagement with A. He then gave an account of an incident that involved A urinating in a park that he said had occurred while the appellant was away on a business trip.

12. [249]

    The appellant formed the view that Mr B knew what her concerns were and that he was giving various explanations that he hoped would exculpate him from allegations of sexual abuse.

13. [250]

    On 1 January 2008 the appellant and A moved out of the home, and lived, for a time, with her brother. The appellant believed that A was “doing sexual things” with her brother.

14. [251]

    The appellant therefore sought legal advice. She engaged a firm of solicitors called Musgrave Peach who gave her, inter alia, the following advice:

15. [252]

    On 27 January 2008 the appellant returned home for the purpose of removing some of her belongings. Mr B made statements which indicated that he had experienced some suicidal thoughts. The appellant feared that he might attempt to harm her, or A, or both.

16. [253]

    On 30 January 2008 the appellant wrote to Mr B. She told him that their relationship was over, and that she did not want A to have any further contact with Mr B. This apparently caused Mr B to consult solicitors, and a process of negotiation began. On 5 February, Mr B’s solicitor wrote to the appellant. They recorded that Mr B denied any sexual misconduct with A, but said that, nevertheless, he was willing to cooperate in an investigation of the appellant’s allegations. They suggested the names of three psychiatrists who might take part in the process. One of the names they mentioned was Dr Brent Waters.

17. [254]

    The response made by her solicitors on the appellant’s behalf was to agree to the expert investigation, but to maintain her opposition to any contact between A and Mr B.

18. [255]

    On 28 February 2008 (as set out above) the appellant and Mr B attended the Family Court. The appellant was confident that an order would be made refusing Mr B any contact with A. That did not happen. Instead, the orders referred to above ([226]) were made. An Independent Children’s Lawyer was appointed to represent the interests of A.

19. [256]

    The appellant found the proceedings unsatisfactory and demeaning. She said:

20. [257]

    Contrary to the appellant’s preference, Dr Waters was appointed as a court expert to prepare a report in relation to the welfare of A, and specified certain matters he was requested to consider. The appellant was unhappy about this because she had read some of his writings, which she interpreted as being biased against women who made allegations of sexual impropriety against their partners. She was concerned about Dr Waters’ “integrity” and “the quality of his advice”.

21. [258]

    She said that the judge then “ordered that I have an injunction of silence placed against me” in order to avoid damage to Mr B’s career, but made no equivalent order against Mr B. She took that to mean that she could not discuss the issues other than with her counsellor, but that Mr B was free to discuss the issues as he pleased. (It is worth interpolating here that Order 6 of the orders made on 29 February was as follows:

22. [259]

    The appellant was very unhappy and concerned about the order for supervised contact with Mr B, and sought further advice about that. She was advised that an appeal would cost $14,000 and that the prospects that an appeal would succeed were very remote. She said that she had inadequate funds to pursue an appeal.

23. [260]

    On 10 March 2008 Messrs Musgrave Peach gave Notice of Ceasing to Act for the appellant. The reason appears to be their apprehension that she had lost confidence in their services. The appellant then sought advice from a Community Legal Centre, and subsequently from another firm of private solicitors.

24. [261]

    On 20 March the appellant sought advice from another barrister, seeking among other things, advice about an appeal against the Family Court orders.

25. [262]

    On 25 March the Contact Centre approved the supervised contact between Mr B and A that had been proposed by the Family Court, and notified the appellant of the times and dates for which contact had been arranged. The first was the same day, 25 March. These were for seven 2 hour sessions each fortnight. There were then six subsequent contact visits, the last on 22 April. The appellant took A to the Centre, as required, on these occasions. She developed a concern that Mr B was giving A lollies and inappropriate gifts. She therefore told the Contact Centre that she did not want A given lollies, as these were “directly linked to the abuse of child”.

26. [263]

    On 3 April Dr Waters provided a report. (The report was not in evidence. Dr Waters gave brief evidence in the prosecution case and was extensively cross-examined by the appellant.) He suggested a reduction in, although not elimination of, the contact visits. Dr Waters expressed doubts as to whether A had been sexually abused. The appellant received this report shortly before she left the country, but did not read it with any care.

27. [264]

    In the light of Dr Waters’ report, Mr B’s solicitors suggested that supervision of his contact visits with A was no longer necessary.

28. [265]

    The appellant continued to observe what she regarded as inappropriate and deteriorating behaviour on the part of A. She continued to communicate with JIRT and “child protection”. She put A’s deteriorating behaviour, as she observed it, down to what happened during visits with Mr B at the Contact Centre. She became extremely concerned about Mr B and “what he might do”. She said:

29. [266]

    The appellant had come into possession of a book entitled “Child Abuse and Family Law” which she read and which she found accorded with her own views. She said:

30. [267]

    The appellant read other material concerning the manner in which allegations of child sexual abuse are dealt with in the courts. Putting her own experience together with what she had read, ultimately the appellant formed an adverse view of everybody involved in the legal process with which she was involved - judges, solicitors, barristers, Dr Waters, JIRT and child protection officers. She formed the view that she (and A) would not be able to get justice, or a reasonable assessment of her claims, from the Family Court. She decided to seek independent assessment overseas. Predominantly, it seems, this was to avoid Dr Waters.

31. [268]

    The appellant gave evidence that if she thought that the authorities would have investigated adequately, or “done something”, she would not have had to leave. It was clear that the “something” she wanted done was the cessation of all contact between A and Mr B.

32. [269]

    The appellant saw herself as having “two bad options to choose from”. She put them as follows:

33. [270]

    There was evidence of communications made by the appellant after she had left Australia that cast some light on her state of mind and reasoning processes. One of the persons the appellant contacted while she was overseas was Professor Freda Briggs, an academic with experience in child protection. Although these communications add detail to what has been said above, they do not further advance any issue relevant to the appeal.

34. [271]

    The appellant had equipped herself with a small recording device, with a view to recording any statements A might make, but her lawyers advised against using it, telling her to “document” instead anything that A said.

35. [272]

    There was a great deal more evidence in the appellant’s case, but the above adequately identifies the position she was in as she saw it, which gave rise to her decision to leave the country with A.

36. [273]

    Professor Freda Briggs was called in the Crown case by videolink, on 28 October. On the previous hearing day, some issues had arisen concerning the admissibility of evidence. Some of these issues concerned evidence that the appellant proposed to adduce, in cross-examination, from Professor Briggs. In a judgment dated 25 October (that is, before Professor Briggs was called) Woodburne DCJ made rulings, and gave reasons. One of the rulings was that the truth of the sexual abuse allegations was not relevant to the issues in the trial. Included in the judgment was the following:

37. [274]

    Professor Briggs gave evidence that the appellant contacted her some time in 2008, from Frankfurt in Germany. She gave evidence of a lengthy communication sent to her by the appellant early in 2009. The content of that communication was read to the jury by the Crown prosecutor (for what purpose is not clear to me). Professor Briggs was cross-examined by the appellant.

38. [275]

    At the conclusion of the oral evidence, the appellant tendered some additional documentary material. It appears that this evidence consisted of two documents in which Professor Briggs offered certain opinions as to the veracity of the claims of sexual abuse.

39. [276]

    On 14 November, when the oral evidence in both the prosecution and defence cases had concluded, various other issues concerning the admissibility of evidence and other legal issues were discussed. It seems (T 1168) that the appellant wished to tender a document identified as “MFI 83”, in which Professor Briggs had offered some opinions. Woodburne DCJ gave another brief judgment, in which she said:

40. [277]

    This ruling and the ruling of 25 October have given rise to the second ground of appeal.

41. [278]

    Also called to give evidence in the Crown case was Dr Waters. As mentioned above, Dr Waters had, prior to the appellant’s departure, provided a report, although that report is not in evidence. The manner in which the report of Dr Waters was dealt is the subject of the third ground of appeal, and, I might add, the subject of a great deal of confusion. I will come to that when I deal with Ground 3.

42. [279]

    Before the jury was empanelled, there were two days of discussion of evidentiary and procedural matters. It was known that the appellant proposed to raise the defences under s 10.3 and s 10.4 of the Code. At an early stage, Woodburne DCJ asked the appellant to specify “the sudden or extraordinary emergency” on which she wished to rely.

43. [280]

    The appellant’s reply was lengthy, discursive, non-specific, and rather difficult to understand. What does emerge from it is that the extraordinary emergency that she believed existed was not an emergency concerning apprehended future sexual abuse of A; it concerned an apprehension that Mr B was potentially homicidal and that A, and herself, were in physical danger. This fear was based upon an earlier statement by Mr B that he had experienced suicidal thoughts, her later awareness of his long-standing psychiatric condition, her realisation that she had exposed allegations of sexual abuse against him, and that he was “very, very angry”.

44. [281]

    The appellant gave a similar answer in relation to the defence under s 10.4.

The grounds of appeal

1. [282]

   The grounds of appeal were pleaded, in a document entitled “Amended Grounds of Appeal Conviction”, as follows:

2. [283]

   As set out above, the defences upon which the appellant sought to rely were the statutory defences provided by s 10.3 (“extraordinary emergency”) and s 10.4 (self-defence/defence of another). Both are set out in full above, together with s 13.3, which explains how the provisions creating the defences are to be dealt with. By s 13.3(2), the appellant bore an “evidential burden” in relation to each of the defences she invoked.

3. [284]

   By a combination of s 10.3 and s 13.3, before the defence of extraordinary emergency could be left to the jury, it was necessary that the following questions be answered affirmatively:

   1. (1)

      was the evidence sufficient to suggest a reasonable possibility that the appellant believed:

4. [285]

   If question (i) is answered affirmatively (that is, as to all three elements) the second question is:

5. [286]

   If this question also is answered affirmatively, the onus shifts to the Crown to negative the defence. This could be achieved by proof that the appellant did not (in fact) hold any one of the beliefs referred to in question (i); or that the appellant’s belief as to any one of the three elements was not (objectively) reasonable.

6. [287]

   The corresponding questions with respect to s 10.4 are:

7. [288]

   Woodburne DCJ held that the appellant had, in respect of each defence, failed to discharge the evidential burden.

8. [289]

   In her carefully considered and comprehensive judgment she analysed the evidence and the competing arguments. She dealt with the questions relating to each defence compendiously.

9. [290]

   At [61] and [73] she held that the appellant had discharged the evidential burden as to her belief that an extraordinary emergency existed. Although she did not say so expressly, it seems that that finding extended to the reasonable possibility that that belief was reasonable.

10. [291]

    However, at [108] she held that the appellant had failed to discharge the evidential burden with respect to a reasonable belief that committing an offence against s 65Y was the only reasonable way to deal with the emergency. On what basis she made that finding is not entirely clear. The finding is expressed as follows:

11. [292]

    Prior to reaching that conclusion, her Honour recounted, in some detail, the competing arguments of the parties. She considered an argument put by the Crown that the appellant had available to her alternatives to taking A from Australia. Those alternatives proposed by the Crown are set out in [78] and were that the appellant could have:

12. [293]

    Most of these her Honour appears (correctly, in my opinion) to have rejected. However, she does appear to have accepted that an available alternative open to the appellant was to appeal against the Family Court orders of 29 February.

13. [294]

    It seems to me that her Honour found that the appellant had failed to discharge the evidential burden on both limbs applicable to s 10.3(2)(b) – first, that the appellant believed that committing the offence was the only reasonable way to deal with the emergency; and second, that any such belief was reasonable.

14. [295]

    Her Honour seems to have taken a similar view with respect to s 10.3(2)(c). She made a similar finding:

15. [296]

    Woodburne DCJ identified the issues with respect to the defence provided by s 10.4 as follows:

16. [297]

    She found that the appellant had discharged the evidential burden with respect to s 10.4(2)(a), saying:

17. [298]

    However, she found that the appellant had failed to discharge the evidential burden in relation to the objective reasonableness of that response. She said:

18. [299]

    She then reminded herself of the principles concerning withdrawal of defences from a jury, and went on to say:

19. [300]

    It may be accepted that the appellant’s evidence was sufficient to discharge the evidential burden with respect to the existence of an extraordinary emergency. The finding to that effect by the trial judge tends to mask the identification of what that perceived emergency was. As outlined by the appellant in the opening stages of the trial, the emergency that she perceived was a danger that either A or herself would be subjected to physical (not sexual) violence by Mr B. The danger existed because of the continuing contact visits between A and Mr B. Absent an order for contact visits, her fears would be allayed. Hence, it was the order for contact visits that created the emergency. It was an emergency because the appellant had no faith in the capacity (or motivation) of the relevant authorities in particular the Family Court of Australia to take steps to investigate or protect A.

20. [301]

    The defence provided by s 10.3 is based on the common law defence of necessity, although the language is borrowed from s 25 of the Criminal Code (Qld). The generally accepted test was stated in R v Loughnan [1981] VR 443, and adopted, with a modification, in R v Rogers (1996) 86 A Crim R 542. (A decision of this Court constituted by Gleeson CJ, Clarke JA and Ireland J). In Loughnan it was said:

21. [302]

    In Rogers, Gleeson CJ, citing a decision of the Supreme Court of Canada (Perka v The Queen (1984) 14 CCC (3d) 385), said:

22. [303]

    Notwithstanding the apparent complexity of the issues, the success of this ground (in relation to both proposed defences) boils down to one stark question: did the potential for appeal against the orders of 29 February, or the potential for a further urgent application in the Family Court, operate in such a way as to render any belief by the appellant that:

23. [304]

    The appellant’s evidence was that she believed that an appeal was unavailable to her, by reason of cost; but that she also believed, on the basis of advice given to her, that an appeal was highly unlikely to be successful. She said that she was not aware of, and had not given thought to, the possibility of a further application to the court.

24. [305]

    Inherent in the proposition that she was justified in removing A from Australia because an appeal would be unsuccessful is a distrust of the processes of the Family Court of Australia. To allow the defence to go to the jury on that basis would be for this Court to condone unlawful action arising out of that distrust. That is something that, in my opinion, this Court cannot, and should not, do.

25. [306]

    Similarly, the appellant’s perception of the unavailability of an appeal by reason of cost cannot be sustained. She had funds; she was working. True it is, an appeal in which she was legally represented would have caused financial hardship, but financial hardship does not meet the high test of the defence, as explained in Rogers.

26. [307]

    That there remained procedures available for the appellant, through proper channels, to protect both herself and A from the harm she apprehended renders the proposition that her beliefs were reasonable incapable of acceptance.

27. [308]

    The same reasoning produces the same result in relation to the proposed defence under s 10.4.

28. [309]

    For these reasons, I agree that Ground 1 of the appeal must be rejected.

29. [310]

    Ground 2 is framed as follows:

30. [311]

    I should state at the outset that if the “extraordinary emergency” that the appellant perceived was identified as a danger that A would or might be subjected to sexual abuse at the hands of Mr B, then, in my view, evidence of the truth of the allegations of sexual abuse would be relevant and admissible with respect to the reasonableness of the appellant’s beliefs (whatever they were found to be). But, as I have set out above, the risk of sexual abuse was not the extraordinary emergency that the appellant perceived. The extraordinary emergency that she perceived was the danger that A was, or she was, or both were, at risk of some other form of extreme physical violence at Mr B’s hands. The allegations of sexual abuse had some relevance to this, in the sense that the appellant’s evidence was that one of the reasons for her apprehension was that the complaints of sexual abuse exposed Mr B and provided him with a reason to take extreme action of the kind the appellant feared.

31. [312]

    In that respect, the fact that the allegations had been made was potentially relevant to the objective reasonableness of a belief that Mr B might take action of that kind. I do not discount the possibility that the truth of those allegations might have supported the evidence that the appellant’s belief was objectively reasonable, although it is becoming rather remote.

32. [313]

    I have set out above the relevant rulings made, at the end of the trial, by Woodburne DCJ. At an earlier stage, during the course of the appellant’s evidence, she gave the jury directions concerning an audio recording that was in evidence as Exhibit 42. She told the jury that the recording was not tendered for the purpose of establishing that, as a matter of fact, Mr B had committed any sexual misconduct towards A, and she added that the trial was not an inquiry into whether Mr B did or did not commit any such sexual misconduct. She warned the jury in firm terms that they “should not and indeed must not embark upon any such inquiry”. She gave a similar direction in relation to the audio visual recording of the interview with JIRT which was in evidence. These directions were consistent with the stance the appellant had taken at the commencement of the trial.

33. [314]

    In the discussions at the commencement of the trial, before the jury was empanelled, the appellant stated clearly that she did not want to have the jury “try and ascertain the sexual abuse issue”. She said the issue was very complex, the jury would not be able to make a determination, certainly not from Dr Waters’ report. She added that the sexual abuse was not the reason that she left the country. It was on that basis that the trial proceeded.

34. [315]

    Later, during the course of the trial, in relation to one of the exhibits, she repeated that she was not seeking to make use of it to prove sexual abuse.

35. [316]

    In those circumstances, there can be no substance in Ground 2. I would reject it.

36. [317]

    Ground 3 is framed as follows:

37. [318]

    Dr Waters was called in the Crown case. His evidence in chief was brief. He gave evidence of his qualifications and expertise as a child psychiatrist. He said that he had received a request from the Family Court to act as “a single expert witness” for the Family Court proceedings. For that purpose he conducted interviews with the appellant and Mr B, in each case in the presence of A, as well as the appellant’s brother and his wife. He did not separately or directly interview A. He identified documentary material with which he had been provided for the purpose of his assessment. He wrote a report, which he identified and which was marked for identification 9.

38. [319]

    He said that he gave consideration to any “mental condition” which the appellant might have shown, linked to her allegations. He excluded two diagnoses (paranoid schizophrenia and paranoid state) and accepted the possibility that she had a condition of “overvalued idea” or “fixation with a particular world view”. He did not make any diagnosis to that effect.

39. [320]

    Dr Waters did say that he had found it difficult to conclude from the materials with which he had been provided that Mr B had molested A. He then recommended a reduction in the regime of contact visits. That was the conclusion of Dr Waters’ evidence in chief.

40. [321]

    In a discussion before Dr Waters was called, the Crown prosecutor made it clear that he did not propose to tender Dr Waters’ report. The appellant indicated that she proposed to cross-examine Dr Waters quite extensively. The Crown prosecutor then reserved his position on the tender of the report, pending that cross-examination. He did not at any time tender the report. Neither did the appellant.

41. [322]

    Accordingly, the short answer to this ground of appeal is that her Honour was never asked to rule on the admissibility of the report.

42. [323]

    In her written submissions the appellant said:

43. [324]

    In her written submissions, the appellant then went on to make many criticisms of Dr Waters, both personally, and as to his evidence. She attacked his credentials and his expertise.

44. [325]

    The transcript of the appeal hearing demonstrates the confusion that attends this ground of appeal. The presiding Judge suggested to the appellant that if the report had not been tendered, or tendered and not pressed, there would be no need for findings as to its admissibility. The appellant replied:

45. [326]

    When pressed further by the presiding Judge, the appellant said:

46. [327]

    The appellant then accepted that her complaint was that Woodburne DCJ should have found that Dr Waters was not an expert, and that therefore his evidence was not admissible in the trial. However, she added:

47. [328]

    The appellant was then asked if her real complaint was as to the admission of Dr Waters’ oral evidence. She did not accept this and said that the evidence was significant to show the risk she had in the Family Court proceedings, and that Dr Waters’ report would be used to place her son at risk. She was asked the same question again, and she answered:

48. [329]

    She finally accepted a proposition put to her by Wilson J in the following terms:

49. [330]

    Ultimately, it appeared to be the appellant’s position that Woodburne DCJ ought to have ruled that Dr Waters did not hold the relevant expertise for the purpose of giving evidence in the Family Court, but that the likelihood was that the Family Court would nevertheless have admitted the report, and Dr Waters’ evidence, and this supported her view that she would not have succeeded in an appeal or in an urgent interlocutory application.

50. [331]

    Plainly, Woodburne DCJ could not rule on the admissibility in Family Court proceedings of any report by Dr Waters. What the appellant now asserts that Woodburne DCJ ought to have done was to rule (i) that Dr Waters did not have the necessary expertise to give evidence (whether by way of report or orally) in the Family Court; (ii) that, nevertheless, the Family Court would have admitted Dr Waters’ evidence and; (iii) that the Family Court would have acted upon Dr Waters’ inadmissible opinion, to the detriment of herself and A.

51. [332]

    On this basis, she argued, the proposition that an alternative to taking A from Australia lay in her right of appeal did not counter the objective reasonableness of her beliefs and should be rejected.

52. [333]

    The argument is unsustainable. What it amounts to is an argument that the Family Court would have admitted evidence ruled in the District Court to be inadmissible. It would be quite wrong for Woodburne DCJ to have made such a finding.

53. [334]

    In any event, as I have said, the short answer to this ground of appeal is that no ruling of the kind the appellant now claims ought to have been made was ever called for. The appellant said in her oral argument, and in her written submissions, that she wanted Dr Waters’ evidence admitted in order (she said) to prove that he did not have the relevant expertise to provide the report. It is true that Woodburne DCJ did not make a definitive ruling on Dr Waters’ expertise, but that was because it was unnecessary to the issues raised in the proceedings.

54. [335]

    I would reject this ground of appeal.

The application for leave to appeal against sentence

1. [336]

   Although Woodburne DCJ dealt with the appellant under s 20(1)(a) of the Crimes Act 1914 (Cth), and did not pass sentence, the definition of “sentence” in the Criminal Appeal Act 1912 (NSW) is wide enough to encompass the order made.

2. [337]

   For the reasons given by Ward JA, I would grant leave to appeal against sentence, but dismiss the appeal.

3. [338]

   Accordingly, I agree with the orders proposed by Ward JA.

4. [339]

   WILSON J: I agree with the orders proposed by Ward JA, and with her Honour’s reasons.