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District Court 12 August 2010

R v He; R v Li

[2010] NSWDC 171

Assault & violence
CRIMINAL LAW OFFENCES AGAINST THE PERSON KIDNAPPING "ADVANTAGE" "OBTAINING ANY OTHER ADVANTAGE" JUDGE ALONE TRIAL

Citation: R v He; R v Li [2010] NSWDC 171
Court: District Court of New South Wales
Date: 12 August 2010
Judge(s): Murrell SC DCJ

Background

The two accused were company directors who shared office premises in Kingsgrove with a co-accused, Mr Mi, the principal of a painting business. Three workers employed under Mr Mi's direction were owed unpaid wages. On the evening of 16 August 2009, those workers attended the Kingsgrove office expecting to discuss their outstanding wages, accompanied by a friend. Instead, approximately eight men assaulted and detained all four visitors over the course of one to two hours.

The accused were present throughout the assaults. Their involvement in the verbal exchanges with the detainees was limited: on one occasion they called two of the workers into a room, and on another they told the men they could leave. The Crown relied on a joint criminal enterprise between the two accused and Mr Mi, rather than alleging they were accessories.

Each accused was charged with specially aggravated kidnapping under section 86(3) of the Crimes Act 1900. The alleged advantage in each charge was influencing the detainees to abandon their wage claims. At the close of the Crown case, both accused applied for a directed verdict of not guilty.

  • Whether the element of "obtaining any other advantage" in section 86 of the Crimes Act 1900 requires that the advantage be obtained by the accused personally, or whether it is sufficient that the intended advantage flows to a third party.
  • Whether, on the evidence presented, there was a prima facie case that each accused intended to obtain an advantage for himself rather than for Mr Mi.

Decision

The central question turned on a comparison between section 86 and its predecessor provision, section 90A of the Crimes Act. Section 90A had expressly provided that the detention must be with intent to hold for advantage "to any person", language broad enough to capture an intention to benefit either the offender or someone else entirely. When the legislature replaced section 90A with what eventually became section 86, it adopted the narrower formulation "with the intention of obtaining any other advantage", omitting the "to any person" phrase.

Murrell SC DCJ reasoned that the legislature's removal of that phrase was deliberate. The word "obtaining" also supports this reading: it conveys that the offender intends to personally acquire or achieve something. Other provisions in the Crimes Act, such as the repealed section 178BA, had separately enumerated advantage "to himself or herself or another person" when the legislature intended to cover both scenarios. The absence of equivalent language in section 86 pointed firmly toward a requirement that the offender intend an advantage to themselves.

Applying that construction to the facts, the court found the Crown's own case established only that the accused intended to obtain an advantage for Mr Mi by discouraging claims for wages owed by him. There was no evidence that either accused stood to gain a personal advantage from suppressing those wage claims. The Crown Prosecutor conceded he could not argue against the proposition that the advantage must inure to the accused personally.

Accordingly, no prima facie case was made out on any count. The court directed itself to verdicts of not guilty and acquitted both accused on all charges.

Orders Made

  • Each accused found not guilty on all counts by directed verdict.

Key Takeaways

  • The District Court held that the offence of kidnapping under section 86(3) of the Crimes Act 1900 requires proof that the accused intended to obtain an advantage for themselves personally, not merely for a third party.
  • A textual comparison between section 86 and its predecessor, section 90A, was central to this conclusion: the earlier provision explicitly extended to advantage "to any person", while section 86 uses only the word "obtaining", signalling a deliberate legislative narrowing.
  • Where separate Crimes Act provisions have historically listed "to himself or herself or another person" to capture third-party benefit scenarios, the absence of that drafting in section 86 reinforces the personal-advantage interpretation.
  • Insufficient evidence of an intended personal advantage to the accused, even in a joint criminal enterprise context, is a proper basis for a directed verdict of not guilty at the close of the Crown case.
  • A permanent stay of proceedings is not the appropriate remedy for evidentiary deficiencies in a criminal trial; deficiencies go to the verdict, not to whether the trial should proceed at all.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1), 86(2), 86(3), 89 (repealed), 90A (repealed), 178BA (repealed)

Cases:
- Davis v R [2006] NSWCCA 392
- Jago v District Court of NSW (1989) 168 CLR 23
- R v Manwaring [1983] 2 NSWLR 82