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7.4.18 - Child Stealing

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Overview

  1. Section 63 of the Crimes Act 1958 creates three discrete offences that may be called ‘Child stealing’.
  2. The first child stealing offence requires that the prosecution prove the following 5 elements:
    1. The accused took, decoyed, enticed away or detained a person;
    2. That person was a child under the age of 16;
    3. The taking or other conduct was achieved by force or fraud
    4. The accused intended to:
      1. deprive any parent, guardian or any other person having the lawful care or charge of the child of the possession of the child; or
      2. steal any item from the child.
    5. The accused acted without lawful excuse (Crimes Act 1958 s63(1)).
  3. The second child stealing offence requires that the prosecution prove that:
    1. The accused received or harboured a person;
    2. That person was a child under the age of 16;
    3. The accused intended to:
      1. deprive any parent or guardian or any other person having the lawful care or charge of such child of the possession of such child; or
      2. steal any article upon or about the person of such child
    4. The accused knew that the child had been led, taken, decoyed, enticed away or detained by force or fraud (Crimes Act 1958 s63(1)).
  4. The third child stealing offence requires the prosecution to prove that:
    1. The accused took away, decoyed or enticed away a person;
    2. The person was a child under the age of 16;
    3. The accused took the child out of the possession of the child’s parent, guardian or other person with lawful care or charge of the person;
    4. The taking was against the will of the child’s parent, guardian or other person with lawful care or charge of the person;
    5. At the time of his or her conduct, the accused intended to take a child, known or believed to be under the age of 16, from the care of a parent or guardian and that the taking was against the will of the child’s parent or guardian; and
    6. The accused acted without lawful excuse (Crimes Act 1958 s63(2); Moore v Police (2008) 100 SASR 277).
  5. The offence of child stealing is a form of kidnapping of a child under the age of 16 years for one of the particular purposes designated in the section. The existence of this statutory offence does not affect the common law offence of kidnapping (R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; R v McEachran (2006) 15 VR 615).
  6. This topic focuses on the elements of the third form of child stealing identified above. Kidnapping (Common Law) provides some assistance on aspects of the first and second forms of child stealing.

    Taking away

  7. The first element the prosecution must prove is that the accused took a person away (Crimes Act 1958 s63).
  8. This element requires the prosecution to establish a causal relationship between the conduct of the accused and the departure of the person from his or her parents or guardians (R v Stanton (1981) 3 A Crim R 294; James v R [2013] VSCA 177; Jackson v R (1999) 113 A Crim R 299).
  9. The accused must be an effective cause of the person leaving, rather than being inconsequential or peripheral to the person’s departure. However, it is not necessary to show that the accused’s conduct was the sole cause (R v A [2000] 1 WLR 189; Moore v Police (2008) 100 SASR 277; R v Stanton (1981) 3 A Crim R 294; R v Mackney (1903) 29 VLR 22).
  10. This requires the prosecution to show that the accused took an active part in the person’s departure, such as by offering inducements or persuasion (R v Jarvis (1903) 20 Cox CC 249).
  11. The consent of the child does not provide a defence. A jury may find that the accused took the child away even if the child consented (R v A [2000] 1 WLR 1879; R v Olifer (1866) 10 Cox CC 402; R v Mackney (1903) 29 VLR 22).
  12. It is not necessary to show that the accused used force or fraud to take the child away. This is only an element of the first two forms of child stealing identified at the start of this topic (compare Crimes Act 1958 s63(1) and (2); R v Mejac [1954] Tas SR 26).

    Taking Away and Absconding Children

  13. When a child leaves home and goes to the accused, there may be a moral obligation on the accused to report the child’s whereabouts to the parents. However, there is no legal obligation and failure to notify the child’s parents does not constitute taking away the child (James v R [2013] VSCA 177; Moore v Police (2008) 100 SASR 277; R v Olifer (1866) 10 Cox CC 402; R v Henkers (1887) 16 Cox CC 257).
  14. This element is not established where the child independently decided to leave his or her parents and the accused passively harboured the child and offered no inducement to the child (see James v R [2013] VSCA 177; R v Jackson [1999] NSWCCA 387; R v Jarvis (1903) 20 Cox CC 249; R v Mejac [1954] Tas SR 26; R v Charman (1910) 10 SR 540; R v Macney (1903) 29 VLR 22; R v Olifer (1866) 10 Cox CC 402; Moore v Police (2008) 100 SASR 277; R v Stanton (1981) 3 A Crim R 294).
  15. However, where the child leaves home without a plan and then jointly formulates a plan with the accused, or where the accused actively assists the child, then the first element may be proved. The accused can also take a child away where the child instigates a plan to leave his or her parents due to the accused’s previous suggestions or influence (compare R v Mejac [1954] Tas SR 26 and R v Jackson [1999] NSWCCA 387. See also R v Jarvis (1903) 20 Cox CC 249; James v R [2013] VSCA 177).

    Out of Possession

  16. The prosecution must prove that the accused took the child out of the possession of the parent or guardian. This requires a substantial interference with the possessory relationship of parent and child (see R v Jones [1973] Crim LR 621; Moore v Police (2008) 100 SASR 277).
  17. It is not necessary to show an intention to take the child permanently. A temporary taking is sufficient (R v Baille (1859) 8 Cox CC 238. But c.f. R v Jones [1973] Crim LR 621).
  18. Possession for the purpose of s63 refers to both the parent or guardian’s right to exercise care, custody and control of a child and the actual exercise of that right (Moore v Police (2008) 100 SASR 277).
  19. The exercise of the right of care, custody and control of a child is not limited to situations in which a child is in physical proximity to a parent or guardian. It extends to situations where a child is acting under the direction or with the consent of a parent or guardian, such as by travelling unsupervised to a park (Moore v Police (2008) 100 SASR 277; R v Leather (1993) 98 Cr App R 179; R v Charman (1910) 10 SR (NSW) 540; James v R [2013] VSCA 177).
  20. Where the evidence raises it as an issue, the jury must be satisfied beyond reasonable doubt that the child had not voluntarily left the possession of the parent or guardian prior to the accused’s conduct (R v Jackson [1999] NSWCCA 387; R v Stanton (1981) 3 A Crim R 294; R v Henkers (1887) 16 Cox CC 257; Foster v DPP [2005] 1 WLR 1400).
  21. For information on whether the action of the accused took the child out of the possession of the parent or guardian, or whether the child’s own actions did so, see Taking Away and Absconding Children (above).

    Against the Will

  22. The fourth element requires the prosecution to prove that the taking was against the will of the child’s parent or guardian.
  23. Others who take care, custody and control of a child, such as school teachers, carers or relatives may take possession of a child from time to time, where the taking is not ‘against the will’ of the parent or guardian (Moore v Police (2008) 100 SASR 277).

    Intention of accused

  24. There are conflicting authorities on whether the prosecution must prove that the accused knew that the child was under 16, or alternatively, whether an honest and reasonable belief that the child was over 16 would provide a defence. Judges will need to consider this issue in a case where it is relevant (compare Foster v DPP [2005] 1 WLR 1400 and R v Olifer (1866) 10 Cox CC 402; R v Stanton (1981) 3 A Crim R 294 per Brinsden J; Moore v Police (2008) 100 SASR 277; R v Mousir [1987] Crim LR 561).
  25. In accordance with general principles of criminal responsibility, this Charge Book assumes that the prosecution must prove that the accused intended to take a child, known or believed to be under the age of 16, out of the possession and against the will of the parent or guardian (see He Kaw Teh v R (1985) 157 CLR 523).

    Without lawful excuse

  26. The sixth element is that the taking was without lawful excuse.
  27. The word “unlawfully” in s63 means “without lawful excuse” (R v Austin (1981) 72 Cr App R 104).
  28. It is beyond the scope of this topic to identify all possible bases of lawful excuse. Judges will need to direct on this element when it arises as an issue.

    Claim of right

  29. Section 63 provides a statutory bar to prosecutions where the accused raises a claim of right to a charge of child stealing. The following people may not be prosecuted for taking a child out of the possession of a person having the lawful care or charge of the child:
  30. This statutory prohibition on prosecution is not the same as a statutory defence. The provision operates only to prohibit proceedings against any of the three classes of people for an offence under s63. However, the prosecution may bring proceedings for a conspiracy to commit child stealing, or against accessories who assist a person described in s63 to commit an act of child stealing. The fact that the prosecution cannot bring proceedings against an exempt person does not prevent the prosecution, in the trial of an accessory, from proving that an exempt person committed the crime of child stealing (R v Burns (1984) 79 Cr App R 173; R v Austin (1981) 72 Cr App R 104).
  31. The class of exempt persons is very limited. According to UK authority on equivalent provisions, it consists only of the mother and father of the child, a guardian appointed by a testamentary document or an order conferring the status of guardianship, or a person who is the subject of an order conferring a form of care, control, custody or access (R v Austin (1981) 72 Cr App R 104).

Last updated: 2 December 2013

In This Section

7.4.18.1 - Charge: Child Stealing

7.4.18.2 - Checklist: Child Stealing

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray