Citation: R v X [2011] NSWDC 116
Court: District Court of NSW
Date: 30 August 2011
Judge(s): Murrell SC DCJ
Background
The accused faced trial for specially aggravated taking of another with intent to obtain an advantage, contrary to section 86(3) of the Crimes Act 1900 (NSW). The Crown alleged that the accused, after his wife reported a prowler near their family home, located a 15-year-old boy walking nearby, punched him, forced him into a car, and demanded to know whether he was the trespasser. The complainant was then driven to the accused's wife, who confirmed he was not the person she had seen. The boy was given $100 and released.
Before arraignment, the accused applied to quash the indictment. His argument was that the indictment did not disclose an offence known to law because the alleged purpose, identifying a trespasser to protect family members, did not constitute an "advantage" within the meaning of section 86.
Legal Issues
- Whether the word "advantage" in section 86 of the Crimes Act 1900 is limited to advantages tainted by illegality, or advantages personal to the accused.
- Whether the accused's purpose of identifying a trespasser to protect his wife and children was capable of constituting an "advantage" for the purposes of section 86.
- Whether the indictment should be quashed on the basis that it disclosed no offence known to law.
Decision
Issue 1: Does "advantage" require illegality or personal benefit to the accused?
The accused submitted that an "advantage" under section 86 must have some illegal character, by analogy with the provision's reference to holding a person "to ransom." The court rejected this submission. The expression "any other advantage" in section 86 is unqualified on its face, and the case law does not support the illegality requirement (at [9]-[10]).
The court drew on Williams v R for the proposition that a claim of right does not justify what would otherwise be an offence under equivalent provisions, and cited R v Rowe and R v Rose for the broad scope of "advantage," which has been held to include obtaining psychological satisfaction or gratification (at [10]). The court also rejected the argument that the advantage must accrue directly to the accused rather than a third party (at [12]-[13]).
Issue 2: Is the accused's subjective desire the relevant measure?
The court held that section 86 directs attention to the accused's subjective desire, rather than to what is objectively advantageous. Citing the Macquarie Dictionary definition of "advantage" as including "any desired end," the court concluded that the relevant question is whether the accused deprived the complainant of liberty with the intention of obtaining an end that the accused subjectively desired (at [13]).
Issue 3: Was the Crown's alleged purpose capable of constituting an "advantage"?
The Crown alleged that the accused subjectively desired to ascertain whether the complainant was the trespasser. The court held that such a desire is capable of constituting an "advantage" within the meaning of section 86, even though the person most directly benefited would have been the accused's wife (at [14]). The application to quash the indictment was refused (at [15]).
Orders Made
- Application to quash the indictment refused.
Key Takeaways
- The District Court confirmed that the word "advantage" in section 86 of the Crimes Act 1900 is unqualified and does not require the advantage to be illegal in character (at [9]-[10]).
- Under section 86, the relevant enquiry is subjective: the provision asks whether the accused intended to obtain an end that he or she subjectively desired, not whether the outcome was objectively advantageous (at [13]).
- A purpose of identifying a suspected trespasser in order to protect family members is capable of constituting an "advantage" for the purposes of section 86, even where the primary beneficiary would be a third party rather than the accused (at [13]-[14]).
- Established authority confirms that "advantage" extends to psychological gratification or satisfaction, and the Court of Criminal Appeal has proceeded on a case-by-case basis rather than by setting fixed boundaries for the term (at [10]-[11]).
- Refusing to quash the indictment, the court applied a permissive interpretation of "advantage" consistent with the Court of Criminal Appeal's approach in R v Rowe and R v Rose (at [10], [15]).
Legislation and Cases Referenced
Legislation
- s 86 Crimes Act 1900
Cases
- Davis v R [2006] NSWCCA 392
- Williams v R [2006] NSW CCA 26
- R v Rowe (1996) 89 A Crim R 467
- R v Rose [2003] NSWCCA 411