Citation: Aslan v R [2015] NSWDC 185
Court: District Court of New South Wales
Date: 30 April 2015
Judge(s): Neilson DCJ
Background
The appellant was a motor mechanic employed at a repair workshop in Petersham. A dispute arose with a customer over the cost of engine repairs to a red Mazda RX8. After protracted negotiations and proceedings in the Consumer, Trader and Tenancy Tribunal, the repaired vehicle ended up parked in the street outside the home of the appellant's former wife in Earlwood, with the underlying civil dispute unresolved.
The vehicle's registered owner received a notice from the local council threatening impoundment and arranged for a tow truck to collect the car on 23 May 2014. A second tow truck operator attended, accompanied by the registered owner and his associate. During the stand-off that followed, those two men sat on the bonnet of the red car while waiting for the tow truck. The appellant then drove the vehicle, causing the two men to fall from the bonnet and sustain bodily harm.
The appellant was charged with two offences under section 53 of the Crimes Act 1900, which prohibits causing bodily harm to any person by wanton or furious driving, or by wilful neglect, while in charge of a vehicle. He was convicted by a magistrate in the Local Court at Burwood in November 2014 and appealed to the District Court against those convictions.
Legal Issues
- Whether the appellant's driving of the vehicle, resulting in bodily harm to the two men on the bonnet, constituted "wanton or furious" driving within the meaning of section 53 of the Crimes Act 1900.
- Whether the defence of self-defence was available and established on the facts.
- Whether the defence of duress was available and established on the facts.
- Whether the defence of necessity was available and established on the facts.
- Whether leave to appeal against the severity of sentence should be granted.
Decision
The District Court dismissed the appeal against conviction on both charges. Neilson DCJ examined the meaning of "wanton or furious" in section 53, one of the original unamended provisions of the Crimes Act 1900, and was satisfied that the appellant's conduct in driving the vehicle while the complainants were seated on the bonnet met that description.
On self-defence, the Court found that neither the subjective nor the objective element of the defence was established. The subjective element requires that the defendant believed their conduct was necessary to defend themselves or another person. The objective element requires that the conduct was a reasonable response in the circumstances as the defendant perceived them. The facts disclosed a civil property dispute, not a situation giving rise to a genuine and reasonable belief that defensive force was necessary.
On duress, the Court similarly found that neither element was made out. Duress requires that the defendant acted under a threat of serious harm that was sufficiently immediate and operative upon their will. No such threat was established on the evidence.
On necessity, the Court found that the elements of that defence were likewise not established. The defence of necessity requires, at minimum, that the defendant faced an immediate peril and that the conduct was a reasonable and proportionate response to that peril. The circumstances of a disputed vehicle repossession did not satisfy those requirements.
Orders Made
- Appeals against conviction dismissed.
- Leave to appeal against severity of sentence refused (the notice of appeal had not included a severity appeal, the application was out of time, and the Court indicated a heavier sentence may have been warranted, triggering the need for a "Parker warning" to the self-represented appellant).
Key Takeaways
- Section 53 of the Crimes Act 1900 remains in its original unamended form and applies to any person in charge of a vehicle who, by wanton or furious driving, causes bodily harm to another person, regardless of the surrounding civil or property dispute context.
- A conviction under section 53 does not require proof of the kind of recklessness associated with more serious driving offences; driving a vehicle with persons on the bonnet is capable of satisfying the "wanton or furious" element.
- Where a defendant raises self-defence, both the subjective belief in the necessity of the conduct and the objective reasonableness of that response must be established; failure on either element defeats the defence.
- Duress and necessity are narrow defences requiring proof of an immediate and serious threat or peril. A civil property dispute, even one involving contested possession of a motor vehicle, does not ordinarily give rise to circumstances sufficient to engage either defence.
- In dismissing the severity appeal, the District Court refused leave partly on the basis that a heavier sentence than that imposed in the Local Court may have been appropriate, illustrating the practical significance of the "Parker warning" to appellants who seek to agitate sentence appeals without an initial severity ground.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 53
- Crimes Act (Local Courts Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Impounding Act 1993 (NSW)
Cases
- Chatterton v Parker (1914) 3 LT 381
- DPP for Northern Ireland v Lynch [1975] AC 653
- DPP v Bell [1992] RTR 335
- Edwards v Macrae (1991) 14 MVR 193
- Giorgianni v R (1985) 156 CLR 473
- Jiminez v R (1992) 173 CLR 572
- R v Bolton (NSWCCA, unreported, 14 May 1981)
- R v Cairns [1992] 2 Cr App R 137
- R v Conway [1989] 1 QB 290
- R v Dunne (NSWCCA, unreported, 1 March 1993)
- R v Howe [1987] AC 417
- R v Loughnan [1981] VR 443
- R v White (1987) 9 NSWLR 427
- R v Willer (1986) 83 Cr App R 225