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Court of Criminal Appeal 20 December 2002

Regina v. DMC

[2002] NSWCCA 513

Also reported as (2002) 137 A Crim R 246
Assault & violence
CRIMINAL LAW ASSAULT CRIMINAL LAW KIDNAPPING

Citation: Regina v DMC [2002] NSWCCA 513
Court: NSW Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Hodgson JA, Hulme J, Hidden J

Background

The appellant was the father of the complainant, a teenage girl. The indictment contained five counts: three assaults alleged to have occurred while the complainant lived with the appellant, and a kidnapping charge and a further assault charge arising from a separate incident on 16 November 2001.

By November 2001, the complainant had moved to live with her aunt and an Apprehended Violence Order (AVO) prohibited the appellant from contacting her. On the day in question, the appellant gained entry to the aunt's apartment block by posing as an electrician, used his younger daughter to lure the complainant to the front door, then grabbed the complainant by the wrist and took her to his car. He drove her to various locations before handing her to police that afternoon.

The jury was unable to reach a verdict on the first three counts but returned guilty verdicts on count 4 (detaining with intent to hold for advantage, commonly called kidnapping, under s 90A of the Crimes Act 1900) and count 5 (assault by grabbing the wrist). The appellant, who had been self-represented at trial, appealed both convictions on the ground that the trial judge's directions to the jury were deficient.

  • Whether the trial judge was required to direct the jury that it must be satisfied the physical contact (grabbing the wrist) was not an ordinary incident of social intercourse
  • Whether, for the assault count, the jury directions adequately addressed consent, including the possibility of implied or general consent and the need to find the appellant did not believe the complainant consented
  • Whether, for the kidnapping count, the jury directions adequately explained that "intent to hold" requires an intention to hold the victim regardless of whether she consents to remaining with the accused

Decision

On count 5 (assault), Hodgson JA acknowledged that the evidence was capable of supporting a guilty verdict. The jury could have found the wrist-grabbing was not an ordinary social interaction, that the complainant did not consent, and that the appellant did not believe she consented. However, the mere availability of those findings did not relieve the trial judge of the obligation to put each element squarely to the jury.

The directions were deficient in two related respects. First, they failed to tell the jury it needed to be satisfied of each element beyond reasonable doubt. Second, they did not address the possibility that consent may be implied rather than express. These omissions meant the appellant lost a reasonable chance of acquittal.

On count 4 (kidnapping), the Court found that the phrase "intent to hold" carries a specific meaning: the prosecution must prove the accused intended to hold the victim irrespective of whether she was willing to remain with him. The trial judge's directions did not put this interpretation squarely to the jury. Instead, the directions focused on whether the appellant intended to gain an advantage, which was not the same question.

Hodgson JA noted that some evidence, including the appellant locking the car doors after the complainant was inside, could have supported the necessary findings. Nevertheless, because these matters were not properly left to the jury, the convictions could not stand. Hulme and Hidden JJ agreed with Hodgson JA's reasoning in its entirety.

Orders Made

  • Appeal allowed
  • Convictions on counts 4 and 5 quashed

Key Takeaways

  • A direction on common assault must instruct the jury to consider whether the physical contact was an ordinary incident of social intercourse, whether the complainant consented (expressly or impliedly), and whether the accused believed consent existed. Omitting any of these elements is a material misdirection.
  • Consent in the context of assault is not necessarily express. The possibility of implied or general consent is a live issue that jury directions must address, even where the overall circumstances appear to favour the prosecution.
  • "Intent to hold" in the kidnapping provision (s 90A of the Crimes Act 1900, since repealed) requires proof that the accused intended to keep the victim with him regardless of her willingness to remain. An intention merely to gain an advantage is insufficient to satisfy this element.
  • The Crown's submission that certain issues were not "really in dispute" did not relieve the trial judge of the obligation to direct the jury correctly on each element. The strength of the prosecution evidence goes to the likely outcome of a properly directed jury, not to whether the direction is required at all.
  • Where a conviction is quashed for misdirection rather than insufficiency of evidence, the Court of Criminal Appeal may leave the question of retrial to the prosecution's discretion rather than entering a verdict of acquittal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 90A (kidnapping, now repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), s 108

Cases
- Boughey v The Queen (1986) 161 CLR 10
- Donnelly (1997) 96 A Crim R 432
- DPP v Rogers [1953] 2 All ER 644
- Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- R v Bonora (1994) 35 NSWLR 74
- R v Kuckailis [2001] NSWCCA 333