Citation: R v Nith Chav [2016] NSWDC 50
Court: District Court of New South Wales
Date: 13 April 2016
Judge(s): Mahony SC DCJ
Background
The accused was charged under s 33B(1)(a) of the Crimes Act 1900 with using a motor vehicle as an offensive instrument with intent to prevent his own lawful apprehension. The charge arose from events on 19 November 2013 at Liverpool, when police moved to arrest him in connection with an armed robbery he had committed the previous evening.
Police positioned an unmarked car near the accused's unit block and intercepted him as he drove into the driveway. Officers activated sirens and flashing lights, exited the vehicle with firearms drawn, and repeatedly ordered him to turn off the engine. Instead of complying, the accused reversed his vehicle rapidly, coming close to a police officer who had moved to the passenger side, before the vehicle entered the garage. He was then forcibly removed through the driver's window and arrested.
The accused had separately entered a guilty plea to the armed robbery charge. The present trial, heard by judge alone at the accused's election, concerned only whether his conduct with the vehicle constituted a separate offence.
Legal Issues
- Whether the accused used a motor vehicle as an offensive instrument within the meaning of s 33B(1)(a) of the Crimes Act 1900.
- Whether the accused deliberately reversed towards the police officer or was merely reckless as to the consequences of doing so.
- Whether the accused formed the specific intention of preventing his own lawful apprehension when he reversed the vehicle.
- Whether the accused's evidence that he was unaware of the police presence and was simply parking his car was reasonably possibly true.
Decision
Issue 1: Credibility and findings of fact
The court accepted the evidence of the police officers, finding Senior Constable Heginbotham to be an impressive and straightforward witness (at [97]). Minor discrepancies between the police witnesses were noted but not material. The court rejected the accused's evidence as entirely unreliable, finding no reasonable possibility it was true (at [98]). The accused lied in his ERISP interview about the robbery, about the money found in the car, about a loan from his brother, and about his co-accused's involvement (at [98]).
Issue 2: Whether the accused was aware of the police presence
The court was satisfied beyond reasonable doubt that the accused became aware of the police presence as soon as he entered the driveway, when the siren sounded and the lights began to flash (at [102]). The accused had also looked directly at Senior Constable Heginbotham on at least two occasions before engaging reverse gear (at [98]). His claim that he did not hear the police commands because he had music playing was rejected as lacking all credibility (at [98]).
Issue 3: Whether the vehicle was used as an offensive instrument towards the police officer
The court was not satisfied that the accused deliberately aimed his vehicle at Constable Gorgees. Rather, the near-collision resulted from her senior officer directing her to the passenger side of the vehicle and the accused's rapid reversing. The accused was, however, reckless as to those consequences (at [100]).
Issue 4: Whether the requisite intent to prevent apprehension was established
The court drew the inference of intent to prevent lawful apprehension from the totality of the circumstances. The accused's awareness of the police, his failure to respond to repeated commands, his conduct in concealing stolen money under the driver's seat, the fact that reversing into the garage was the only way to turn the vehicle around and exit the premises, and his subsequent violent resistance to arrest all supported the finding (at [102]). The court was satisfied beyond reasonable doubt that the elements of the offence under s 33B(1)(a) were established (at [103]-[104]).
Orders Made
- The accused was found guilty of using a motor vehicle as an offensive instrument with intent to prevent his lawful apprehension on 19 November 2013 at Liverpool, contrary to s 33B(1)(a) of the Crimes Act 1900.
- The accused was convicted of the offence as charged.
Key Takeaways
- A motor vehicle can constitute an offensive instrument under the Crimes Act 1900 by reason of the use to which it is put, not by virtue of any inherent characteristic (at [99]), consistent with the principle in Hamilton v R (1993) 66 ACrimR 575.
- The District Court confirmed that the Crown need not prove a deliberate attempt to strike a police officer; reckless use of a vehicle in circumstances demonstrating an intent to prevent apprehension is sufficient to satisfy the elements of the offence under s 33B(1)(a) (at [100], [102]).
- Intent to prevent lawful apprehension may be inferred from the whole of the evidence, including conduct before, during, and after the relevant act, such as failing to respond to police commands, concealing stolen proceeds, and resisting arrest (at [101]-[102]).
- Where an accused's evidence contains multiple proven lies on related matters, the court may reject that evidence in its entirety and find no reasonable possibility that the account of the primary conduct was true (at [98]).
- In a judge-alone trial under the Criminal Procedure Act 1986, the standard and burden of proof remain unchanged: the Crown must prove each element beyond reasonable doubt, and no onus falls on the accused (at [3]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 2005
Cases
- Hamilton v R (1993) 66 ACrimR 575