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District Court 24 June 2014

R v Thaidy (1)

[2014] NSWDC 193

Assault & violencePublic order & justice offences
CRIMINAL LAW JUDGMENT JUDGE ALONE TRIAL

Citation: R v Thaidy (1) [2014] NSWDC 193
Court: District Court of New South Wales
Date: 24 June 2014
Judge: Berman SC DCJ

Background

The accused was charged following an incident in which police responded to a break-and-enter at a small shopping centre in Cardiff South. As the accused and two companions attempted to flee in a Holden Commodore, one officer (Sergeant Lewis) entered the front passenger seat and grabbed hold of the accused's hoodie, while a second officer (Senior Constable Ballard) attempted to prevent the car from being started.

The accused succeeded in starting the vehicle using a pair of scissors and accelerated sharply out of the car park, causing Sergeant Lewis to be flung into the rear of the vehicle. The accused then drove at high speed down a residential street, swerving violently from side to side, striking gutters and a street sign, before losing control and coming to rest in a private yard.

The indictment contained two counts laid in the alternative. Count 1 alleged that the accused used a motor vehicle as an offensive weapon with intent to prevent his lawful apprehension. Count 2, to which the accused pleaded guilty, alleged assault occasioning actual bodily harm on Sergeant Lewis. The trial proceeded on count 1 before the judge alone.

  • Whether the accused used the Holden Commodore as an "offensive weapon" within the meaning of s 4 of the Crimes Act
  • Whether the Crown had established beyond a reasonable doubt that the swerving was a deliberate act directed at Sergeant Lewis, rather than simply an attempt to escape
  • Whether the accused was "in company" at the relevant time, as required by the charge

Decision

Berman SC DCJ found the accused guilty on count 1. The judge accepted the accused's admissions that he drove from the scene to avoid lawful apprehension, and also found, on the evidence as a whole, that the accused was in company at the relevant time.

Applying the definition in s 4 of the Crimes Act, and drawing on R v Hamilton, the judge held that a vehicle can constitute an offensive weapon where it is deliberately used to attack or threaten another person. The Crown's alternative argument, that the car was used offensively against Senior Constable Ballard when he leapt clear, was rejected: the evidence established only that the accused intended to escape from that officer, not to attack him.

The live issue was whether the violent swerving down Helen Street was a deliberate attack on Sergeant Lewis, who remained in the rear of the vehicle throughout. The judge found that the only rational explanation for the swerving was the presence of Sergeant Lewis in the car. The accused's purpose was to injure or at least frighten Sergeant Lewis into releasing his grip, so that he could either be ejected from the vehicle or allow the accused to flee on foot once the car stopped.

The judge was satisfied beyond a reasonable doubt that the accused intended to harm or frighten Sergeant Lewis by means of the swerving, and that the vehicle was therefore used for offensive purposes. A verdict of guilty was returned on count 1.

Orders Made

• Verdict on count 1: Guilty

Key Takeaways

  • Under s 4 of the Crimes Act, an "offensive weapon" includes anything used for offensive purposes in the circumstances, regardless of whether it is ordinarily capable of causing harm. A motor vehicle can satisfy this definition.
  • The District Court confirmed, consistent with R v Hamilton, that the offensive use of a motor vehicle is not limited to driving it directly at a person. Violent manoeuvring intended to injure or frighten a person already inside the vehicle can also satisfy the definition.
  • An intention to escape does not preclude a simultaneous intention to use the vehicle offensively. The two intentions are not mutually exclusive.
  • Where the Crown advanced two alternative bases for the same charge, the District Court considered each separately and declined to convict on any basis the evidence did not properly support.
  • Sufficient evidence existed to draw an inference of deliberate intent from the circumstances of the driving, including the absence of any other explanation for the swerving, the loud engine revving, and the injuries sustained by the officer inside the vehicle.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), including the definition of "offensive weapon" in s 4
- Evidence Act (NSW), s 184(1) (formal admissions)

Cases
- R v Hamilton (1993) 66 ACrimR 575 (NSW Court of Criminal Appeal)