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7.4.18.1 - Charge: Child Stealing

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I must now direct you about the crime of child stealing. That crime has the following six elements:

One – The accused took away, decoyed, or enticed away a person

Two – That person was a child under the age of 16

Three – The accused took the child out of the possession of the person with lawful care of the child

Four – The taking was against the will of the person with lawful care of the child

Five – 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 person with lawful care of the child.

Six – The accused acted without lawful excuse

I will now explain each of these elements in more detail.

Taking away

The first element the prosecution must prove is that NOA took away, decoyed or enticed away NOC.

To establish this element, the prosecution must show that NOA was an active and effective cause of NOC leaving NOG.[1] The prosecution say that NOA did this by [describe alleged manner of taking].

[Where the child may have left the possession of the parent or guardian without the accused’s influence, add the following shaded section]

In this case, one issue you must consider is whether NOC had already left the possession of NOG at the time the prosecution say that NOA committed this offence. In other words, you must consider whether NOC took himself/herself away, or whether NOA took him/her away. You can only find this first element proved if the prosecution establishes that NOA caused NOC to leave NOG.

To prove this offence, it is not enough to say that NOA was under a moral duty to return NOC to NOG. The prosecution must prove that NOA took NOC away, and not merely found him/her after s/he left his/her parents/guardian.

For this offence, it does not matter whether NOC freely agreed to go with NOA. [2]

[Summarise competing prosecution and defence evidence and arguments]

Child

The second element the prosecution must prove is that NOC is under the age of 16. You have heard evidence that NOC was born on [date of birth] and was aged [age] on [date of offence]. You should not have any difficulty finding this element proven.

Out of possession

The third element the prosecution must prove is that NOA took NOC out of the possession of [describe relevant person with lawful care of the child and the basis of that lawful relationship, e.g. “his/her parents, Mr and Mrs Smith”].

This element requires the prosecution to show that NOA interfered in a substantial manner with NOG’s right to exercise care, custody and control of NOC or NOG’s ability to exercise of that right.

[Summarise competing prosecution and defence evidence and arguments]

Against the will

The fourth element the prosecution must prove is that the taking was against the will of NOG.

[Summarise competing prosecution and defence evidence and arguments]

Intention

The fifth element that the prosecution must prove is that NOA intended to take a child, known or believed to be under the age of 16, out of the possession and against the will of NOG.

This element looks at the accused’s state of mind. You must consider what s/he knew and what s/he intended at the time that [describe factual basis for offence]. In order to prove this element, the prosecution must establish the following three matters:

One – That NOA knew or believed that NOC was aged under 16;

Two – That NOA intended to take NOC out of the possession of the person with lawful care of him/her;

Three – That NOA knew that this was against the will of the person with lawful care of the NOC.

If you are not satisfied that NOA had these three states of mind at the time that [describe factual basis for offence], then this element is not established and you must find NOA not guilty of child stealing.

[Summarise competing prosecution and defence evidence and arguments]

Without lawful excuse

The sixth element that the prosecution must prove is that the accused acted without lawful justification or excuse.

This means that the prosecution must prove that [describe facts required to disprove any alleged lawful excuse].

[Summarise competing prosecution and defence evidence and arguments]

Summary

To summarise, before you can find NOA guilty of child stealing, the prosecution must prove to you beyond reasonable doubt:

One – That NOA took away, decoyed, or enticed away NOC;

Two – That NOC was a child under the age of 16;

Three – That NOA took NOC out of the possession of NOG;

Four – That this taking was against the will of NOG;

Five – That NOA 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 person with lawful care of the child;

Six – That NOA acted without any lawful justification or excuse. If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of child stealing.

Notes

[1] Name of parent, guardian or other person with lawful care or charge of the child.

[2] Where there is a dispute over whether the child left his or her parents or guardians without the influence of the accused, the judge should give the jury additional guidance on when the accused’s conduct is an active taking or a passive receiving. See Child Stealing for guidance.

Last updated: 2 December 2013

See Also

7.4.18 - Child Stealing

7.4.18.2 - Checklist: Child Stealing