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Court of Criminal Appeal 11 December 2006

Davis v Regina

[2006] NSWCCA 392

Assault & violenceDomestic & family violence
CRIMINAL LAW OFFENCES CRIMES ACT S 86 KIDNAPPING HISTORY OF THE OFFENCE WHETHER MISCARRIAGE

Citation: Davis v Regina [2006] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 11 December 2006
Judge(s): Basten JA, Whealy J, Howie J

Background

The appellant was tried in the District Court on five counts arising from an incident on 15 November 2003. A jury convicted him on three counts: aggravated kidnapping under s 86(2) of the Crimes Act 1900 (Count 1), taking and driving a motor vehicle without consent under s 157A (Count 2), and assault occasioning actual bodily harm under s 59(1) (Count 5). He was acquitted on the remaining two counts of indecent assault and larceny from the person.

The Crown's case was that the appellant, a former partner of the complainant, forced his way into her car at a Parramatta car park, threatened her repeatedly, drove her to a remote location at Londonderry, and subjected her to physical violence including grabbing her hair, striking her head against the vehicle, and head butting her. The appellant gave evidence that the complainant had accompanied him voluntarily and denied any physical assault.

The appellant did not challenge the open finding of guilt on the evidence. Instead, his grounds of appeal raised technical questions about the nature of the kidnapping offence, the conduct of the trial, the exclusion of a medical report, and whether the indictment gave rise to double jeopardy.

  • Whether the word "take or detain" in s 86 of the Crimes Act 1900 creates two separate offences, or whether "take" and "detain" are alternative means of committing a single offence
  • Whether there was a prima facie case on Count 1, given that the actual bodily harm alleged had occurred during the taking rather than before or at the precise moment of it
  • Whether repeated references to "detention" in the summing-up and Crown addresses, rather than "taking", amounted to a misdirection causing a miscarriage of justice
  • Whether the trial judge's refusal to admit a doctor's report into evidence resulted in a miscarriage of justice
  • Whether prosecuting both the kidnapping count and the assault count on the same indictment gave rise to double jeopardy or an abuse of process

Decision

The kidnapping offence and the "take or detain" question: The Court undertook a detailed examination of the legislative history of kidnapping in New South Wales, tracing the offence from its common law origins and through successive statutory amendments. Howie J concluded that "take" and "detain" in s 86 are alternative means of committing one offence, not two distinct offences. The Court rejected the submission that there was no prima facie case on Count 1, finding that the element of actual bodily harm was sufficiently made out where the harm occurred during the course of the taking.

Misdirection on "taking" versus "detention": The Court acknowledged that Crown counsel and the trial judge had, on occasion, referred to "detention" when the charge was framed in terms of "taking". However, Howie J found that no substantial miscarriage of justice had resulted. The directions given overall were adequate, and the jury's verdict was supported by the evidence. The context made it clear to the jury what conduct they were being asked to assess.

Exclusion of the doctor's report: The appellant argued that the trial judge wrongly refused to admit a medical report relevant to the complainant's injuries. The Court found that even if the exclusion had been erroneous, it did not give rise to a miscarriage of justice on the facts. The evidence in the trial was sufficient to sustain the verdict without it.

Double jeopardy and abuse of process: The Court rejected the submission that prosecuting both the kidnapping count and the assault occasioning actual bodily harm count on the same indictment amounted to double jeopardy or an abuse of process. Critically, the injuries relied upon for each count were different: the harm for Count 1 arose from the taking at Parramatta, while the harm for Count 5 related to the assault at Londonderry. Relying on Pearce v The Queen (1998) 194 CLR 610, the Court held there was no factual overlap between the two charges, and the circumstance that the injuries occurred close in time and place did not make the prosecution oppressive or vexatious.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Under s 86 of the Crimes Act 1900, "take" and "detain" are alternative means of committing a single kidnapping offence, not two discrete offences with independent elements.
  • Actual bodily harm inflicted during the course of a taking is capable of satisfying the aggravated kidnapping element in s 86(2), provided it occurs within the temporal scope of the taking.
  • Where a trial judge and Crown counsel refer to "detention" in a case charged as "taking", no miscarriage of justice automatically follows: the Court of Criminal Appeal will look at whether the overall directions left the jury with a correct understanding of the charge.
  • Prosecuting kidnapping and assault occasioning actual bodily harm on the same indictment does not give rise to double jeopardy where the injuries alleged in each count are factually distinct, even if they arose from events that were close in time and place.
  • In dismissing the appeal, the Court confirmed that Pearce v The Queen applies where two counts require proof of different elements, and that the absence of factual overlap between the charges makes a double jeopardy or abuse of process argument correspondingly harder to sustain.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 59(1), 85A, 86, 89, 90A, 157A
- Criminal Procedure Act 1986 (NSW), s 16(1)
- Evidence Act 1995 (NSW), s 177
- Habeas Corpus Act 1679, s 11
- Criminal Law Amendment Act 1883 (NSW), ss 45, 46, 48
- Offences Against the Person Act 1861 (Imp), ss 24, 25
- Crimes Act 1958 (Vic), s 63A
- Crimes (Amendment) Act No. 70 of 1961
- Crimes Amendment (Gang and Vehicle Related Offences) Act No. 84 of 2001
- Criminal Legislation Amendment Act No. 117 of 2001

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Walsh v Tattersall (1996) 188 CLR 77
- Beckwith v The Queen (1976) 135 CLR 569
- Connelly v Director of Public Prosecutions [1964] AC 1254
- R v D [1984] AC 778
- R v Wellard [1978] 3 All ER 161
- R v Nguyen and Tran [1998] 4 VR 394
- R v Macquarie (1875) 13 SCR (NSW) 246
- Hannes v DPP (Cth) (No. 2) [2006] NSWCCA 373
- R v Robson and Collett [1978] 1 NSWLR 73
- R v Manwaring [1983] 2 NSWLR 84
- R v DMC (2002) 137 A Crim R 246
- R v Field (unreported, NSWCCA, 18 August 1988)