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Court of Criminal Appeal 29 September 2015

Harkins v R

[2015] NSWCCA 263

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL CONVICTION OFFICERS STANDING OUTSIDE CAR NO INTENTION TO HARM OFFICERS APPEAL

Citation: Harkins v R [2015] NSWCCA 263
Court: Court of Criminal Appeal (NSW)
Date: 29 September 2015
Judges: Macfarlan JA, R A Hulme J, Wilson J

Background

The appellant was convicted in the District Court of using an offensive instrument (a motor vehicle) with intent to prevent his own lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). The conviction arose from events on the evening of 27 July 2013 in Alexandria, when the appellant climbed into the driver's seat of a stationary vehicle and drove off while two police officers physically held his arm and attempted to remove him and turn off the ignition.

As the vehicle accelerated, one officer was dragged approximately ten metres alongside it before being released. The appellant, who was intoxicated at the time, gave evidence that his focus was entirely on escaping and that he had no intention of harming the officers. He was separately convicted of driving a motor vehicle without the owner's consent while another person was in it, under s 154C(1) of the Crimes Act.

The appellant appealed against the s 33B(1)(a) conviction on two substantive grounds: first, that the verdict was unreasonable on the evidence, and second, that the trial judge erred in treating intoxication as irrelevant to whether the appellant intended to use the vehicle as an offensive instrument.

  • Whether the verdict was unreasonable and unsupportable on the evidence, given the appellant's stated lack of intent to harm the officers (Ground 1).
  • Whether the offence under s 33B(1)(a) is one of specific intent, such that the appellant's intoxication was relevant to whether he intended to use the motor vehicle as an offensive instrument (Ground 2).
  • Whether, if the conviction were quashed, resentencing on the remaining count would be required (Ground 3).

Decision

Ground 1: Reasonableness of the verdict

Macfarlan JA (with Hulme J and Wilson J agreeing) refused leave to appeal on the first ground. The Court was satisfied on the evidence that the trial judge's conclusion was open. An "offensive weapon or instrument" under the Crimes Act includes any thing that, in the circumstances, is used or intended for use to injure or menace any person. The Court held that the vehicle qualified as an offensive instrument in these circumstances, regardless of whether the appellant specifically intended to injure the officers. The act of driving the vehicle while officers clung to it, dragging one of them and causing him to take evasive action from the rear tyre, supported the trial judge's finding on the elements of the offence.

Ground 2: Intoxication and specific intent

The second ground raised a more complex question. The appellant argued that s 33B(1)(a) is an offence of specific intent for the purposes of Part 11A of the Crimes Act, meaning that voluntary intoxication was a relevant consideration in assessing whether he intended to use the vehicle as an offensive instrument. Macfarlan JA accepted, for the purposes of the analysis, that the trial judge may have erred by treating intoxication as entirely irrelevant to this element.

However, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW), concluding that no substantial miscarriage of justice had occurred. The trial judge had already found, unchallenged on appeal, that the appellant intended to prevent or hinder his lawful apprehension despite his intoxication. The Court reasoned that this finding of intent necessarily encompassed the more immediate intention to use the vehicle as an offensive instrument: the two intentions were entirely consistent and inseparable on the facts. A properly directed tribunal would inevitably have reached the same conclusion on the intoxication question, so the assumed misdirection did not deprive the appellant of a fairly open chance of acquittal.

Ground 3

Because neither substantive ground succeeded, Ground 3 did not arise for consideration.

Orders Made

  • Leave to appeal refused in respect of Ground 1.
  • The appellant's application for leave to appeal and appeal otherwise dismissed.

Key Takeaways

  • An offence under s 33B(1)(a) of the Crimes Act 1900 (NSW) can be established where a motor vehicle is used in circumstances that involve menacing or endangering persons attempting to effect a lawful arrest, even where the defendant does not specifically intend to injure those persons.
  • The Court of Criminal Appeal accepted, at least provisionally, that s 33B(1)(a) may be an offence of specific intent for the purposes of Part 11A of the Crimes Act, making voluntary intoxication potentially relevant to the intent element concerning use of the vehicle as an offensive instrument.
  • In dismissing the appeal on Ground 2, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912, finding that an assumed misdirection caused no substantial miscarriage of justice where the relevant intention would inevitably have been found regardless of the error.
  • Where a defendant's overarching intent (here, evading lawful apprehension) necessarily encompasses a more immediate intent (using the vehicle as an offensive instrument), a finding of intoxication-impaired intent on the latter element is unlikely to displace the conclusion already reached on the former.
  • The Court did not finally determine whether s 33B(1)(a) is a specific intent offence, resolving the appeal instead on the application of the proviso, which left that broader question open.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 33B, 154C, Part 11A, 428A, 428B, 428C, 428D, 428E, 428G, 428H
- Criminal Appeal Act 1912 (NSW), s 6
- Interpretation Act 1987 (NSW), s 34

Cases
- Filippou v The Queen [2015] HCA 29
- Barker v The Queen [1983] HCA 18; 153 CLR 338
- He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
- R v Hamilton (1993) 66 A Crim R 575
- R v Grant [2002] NSWCCA 243; 55 NSWLR 80
- Regina v Majewski [1977] AC 443
- R v Falconer [1990] HCA 49; 171 CLR 30
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v O'Connor [1980] HCA 17; 146 CLR 64