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Court of Criminal Appeal 25 September 2008

Flavell v R

[2008] NSWCCA 223

Assault & violence
CRIMINAL LAW CRIMINAL APPEAL ACT S SF DETAIN FOR ADVANTAGE WHETHER VICTIM WAS 'DETAINED' VICTIM WAS UNCONSCIOUS WHETHER VICTIM'S LIBERTY WAS RESTRAINED

Citation: Flavell v R [2008] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 25 September 2008
Judges: McClellan CJ at CL; Hoeben J; Harrison J

Background

The applicant had been living with his de facto partner when, in December 2004, she suffered a cerebral haemorrhage after both had ingested methylamphetamine. Rather than call for help or take her to hospital, the applicant kept her in her locked bedroom for more than two days. She died from her injuries. The applicant was originally charged with manslaughter, but that indictment was withdrawn.

The Director of Public Prosecutions then indicted the applicant on two counts of kidnapping under s 86 of the Crimes Act 1900. The first count alleged he had detained the deceased without her consent between 21 and 25 December 2004, with the intention of avoiding criminal prosecution. The second count alleged he had "taken" her on 24 December 2004.

Before trial, the defence applied for a permanent stay of proceedings on the basis that the Crown had no evidence capable of establishing the essential element of "detaining" an unconscious person. The trial judge refused the stay. The second count was subsequently discontinued by the Director of Public Prosecutions, leaving only the detention count for consideration on appeal.

  • Whether an unconscious person is capable of being "detained" within the meaning of s 86 of the Crimes Act 1900
  • Whether "detaining" requires the victim to be aware of, or capable of experiencing, a restraint on their liberty
  • Whether the Crown's evidence, which included denying a seven-year-old child access to his mother and removing the household telephone, was capable of establishing detention
  • Whether a permanent stay of the kidnapping proceedings was warranted as an abuse of process

Decision

The Court confirmed that the law permits a detention offence to be committed against an unconscious person. Relying on Meering v Grahame-White Aviation Co Ltd (1919), McClellan CJ at CL noted that imprisonment does not require the victim's awareness: a person can be imprisoned while asleep, drunk, unconscious, or of unsound mind. This principle has been accepted across multiple Australian jurisdictions.

The Court then turned to the statutory definition in s 86(7), which provides that "detaining a person includes causing the person to remain where he or she is." The applicant argued that because the deceased was unconscious, she had no will to be overborne and her liberty could not be interfered with in any meaningful sense. The Court rejected this narrow construction.

McClellan CJ at CL reasoned that an unconscious person who cannot assist themselves can only leave their location with the help of others. An offence under s 86 can therefore be committed by denying third parties access to such a person, where that denial causes the person to remain where they are. On the Crown's evidence, the applicant locked the bedroom door, prevented the deceased's young son from entering, and removed the household telephone. A jury could find that these acts caused the deceased to remain in the bedroom when she would otherwise have been removed and taken to hospital.

The Court allowed leave to appeal but dismissed the appeal. Whether the offence was ultimately proved remained a matter for the jury. No final assessment of the Crown case's strength was made.

Orders Made

• Leave to appeal was granted
• The appeal was dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a person can be "detained" within the meaning of s 86 of the Crimes Act 1900 even when they are unconscious and incapable of perceiving or resisting any restraint.
  • Under s 86(7), "detaining" includes causing a person to remain where they are. This definition is broad enough to encompass situations where the accused prevents third parties from accessing or rendering assistance to an incapacitated victim.
  • An offence of kidnapping by detention is capable of being established where the victim's only means of leaving a location is with outside help, and the accused takes steps to deny that help.
  • Sufficient evidence existed in this case to allow the matter to proceed to a jury, including evidence that the accused locked the bedroom door, excluded the deceased's child from the home, and removed the household telephone.
  • In dismissing the appeal, the Court emphasised that whether the offence was actually proved on the facts remained entirely a question for the jury, and the Court made no finding on the ultimate strength of the Crown's case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44
- JCS v R; JMS v R; R v JCS; R v JMS [2006] NSWCCA 221; (2006) 164 A Crim R 1
- Myer Stores Ltd v Soo [1991] 2 VR 597
- McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors [2007] VSCA 289
- R v Awang [2004] QCA 152
- Zenaida Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1
- Marchione v R [2002] NSWCCA 131; (2002) 128 A Crim R 574
- Davis v R [2006] NSWCCA 392
- R v Taktak (1988) 14 NSWLR 226