Criminal Law News

By Charlene Chalker-Harris


Cleo Smith – the Find of the Century

After two and a half weeks, four-year-old Cleo Smith has been found alive and well and has been returned to her family.  It is the breaking news everyone is talking about.  While speculation and theories about what happened abound, you may be interested to know what legal consequences the alleged offender is looking at.

Cleo’s Disappearance and Rescue

In the early hours of 16 October 2021, four year old Cleo Smith disappeared from a campsite at the Blowholes camping ground in Western Australia, where she was camping with her mother, stepfather and younger sister.  Cleo was last seen by her parents at 1:30am when she asked them for some water.  By the time they awoke early in the morning, Cleo was gone.

Cleo’s mother, Ellie Smith, called 000 at approximately 6:23am on 16 October 2021 to report her daughter missing and a nationwide search ensued.  Police appealed to the public for information, a one million dollar reward was offered, ‘missing child’ posts were shared all over social media, forensic investigations were conducted, CCTV footage from the surrounding area was reviewed, and telephone data was collected.  18 days went by, and the nation held its breath, fearing the worst.

After an intensive two and a half week search, miraculously, Cleo was found alive and physically unharmed.  In the early hours of the morning on 3 November 2021, police carried her out of a locked house in Carnarvon, approximately 70km from where she went missing.  She has since been reunited with her family.

It has been reported that Cleo was clean and appeared to have been cared for, and was found playing with toys.  She is being interviewed by detectives attached to the child abuse squad to piece together what happened in the intervening days between her disappearance and her rescue.

The Arrest

Around the same time as Cleo was rescued, approximately 4km away, police arrested the 36 year old man who lived in the house where Cleo was located.  That man is Terence Darrell Kelly.

The Court Appearance

Mr Kelly appeared in the Carnarvon Magistrates Court on 4 November 2021.  He was represented by Geraldton Aboriginal Legal Service.  Mr Kelly has reportedly been charged with a number of offences, including forcibly taking a child under 16 years of age.  The other charges have not been disclosed.

Whilst in court Mr Kelly did not enter pleas to the charges against him, and did not apply for bail.  He was remanded in custody until 6 December 2021.  He has since been flown to a high security prison in Perth under the guard of corrections officers.  Despite internet trollers’ suggestions that this is because of the risk he poses to others, Mr Kelly is reported to have already been taken to hospital after self-harming twice while in custody, and his risk of self-harm is the more likely reason.

The Offence

Whilst the other charges are not yet known, Mr Kelly has been charged with an offence against section 343 of the Criminal Code Act Compilation Act 1913 (WA), which reads:

Any person who, with intent to deprive any parent, guardian, or other person who has the lawful care or charge of a child under the age of 16 years, of the possession of such child, or with intent to steal any article upon or about the person of any such child —

(1) Forcibly or fraudulently takes or entices away, or detains the child; or

(2) Receives or harbours the child, knowing it to have been so taken or enticed away or detained;

is guilty of a crime, and is liable to imprisonment for 20 years.

Alternative offence for a charge of an offence under paragraph (1): an offence under paragraph (2).

It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father or parent under section 6A of the Artificial Conception Act 1985.

Ultimately, if found guilty of this offence, Mr Kelly faces imprisonment for up to 20 years for the offence of child stealing alone.

The Presumption of Innocence

While the internet is flooded with photographs of the collection of dolls Mr Kelly appeared (from his social media posts) to own, and people are going crazy speculating about what this might mean, it is important to note that Mr Kelly should benefit from the presumption of innocence; that is, the presumption that a person is innocent until proven guilty.  This is a cornerstone of the criminal law system in Australia and a fundamental right of any defendant.

At this stage, Mr Kelly is alleged to be responsible for Cleo’s abduction.  However, unless and until he is proven guilty, Mr Kelly is presumed to be innocent.

Unfortunately, the widespread commentary that accompanies these kinds of incidents, particularly in cases so heavily covered by the media, can damage a person’s right to a fair trial.  This is particularly so in relation to comments made online that can be read by people not even known to the author.  It is almost inconceivable that Mr Kelly could be tried by a jury with no knowledge of his case before being empanelled, and the speculation that surrounds Cleo’s disappearance including about the high concentration of child sex offenders in that area, and the dolls that Mr Kelly had, is likely to be highly prejudicial for Mr Kelly.

There is no doubt Cleo’s disappearance is absolutely tragic, and both she and her family have been through a terrible ordeal that they will never forget and may never fully recover from.  However, that does not deny Mr Kelly the right to representation and to a fair trial.  Mr Kelly is still entitled to the presumption of innocence, as is any person in his position.

If you find yourself charged with an offence it is important that you obtain legal advice without delay.  It is your lawyer’s job to listen to you dispassionately and provide you with legal advice, not to judge your morals or shame you for conduct you are alleged to have engaged in.  The criminal team at Aulich are specialists in their field, and are professional, experienced and compassionate.  They can provide you with the expert advice and guidance you need when you find yourself in one of the worst weeks of your life.  If you find yourself in this position, contact the team on 6279 4222.