Harkins v R

1. [1]

   MACFARLAN JA: By a judgment dated 8 August 2014 a District Court judge, sitting without a jury, convicted the appellant of an offence that on 27 July 2013 in Alexandria, New South Wales, he “used an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself” (see s 33B(1)(a) of the Crimes Act 1900 (NSW)). He was acquitted of a similar charge relating to an earlier incident but pleaded guilty to, and was convicted of, an offence of driving a motor vehicle without the consent of the owner, whilst another person was in the motor vehicle (see s 154C(1)).

2. [2]

   The appellant appeals (or in the case of the first ground, seeks leave to appeal) against the first conviction on the following grounds:

3. [3]

   Ground Three only arises for consideration in the event that the appellant is successful on one of his other grounds. For the reasons appearing below, I consider that leave to appeal should be refused in respect of Ground One and that the appeal on Ground Two should be dismissed.

Constable Conroy’s Evidence

1. [4]

   Constable Brendan Conroy gave evidence that on the evening of 27 July 2013 he and Constable Karina Stennett responded to an emergency call regarding an attempted break-in in the Alexandria area. They identified a gold sedan vehicle that they thought might contain the suspect when it stopped at a set of traffic lights. The driver (Mr Adam Toutou) got out of the vehicle and told the police officers that “he’s in there”, pointing to his vehicle. The officers saw a person, now known to be the appellant, climbing from the back seat into the front seat of the vehicle and attempting to start it, with a passenger (Mr Malcolm Nelson) endeavouring to stop the appellant both entering the front seat and starting the engine.

2. [5]

   Constable Conroy continued:

Constable Stennett’s evidence

1. [6]

   Constable Stennett gave the following evidence:

Mr Toutou’s evidence

1. [7]

   Mr Toutou gave the following evidence:

Mr Nelson’s evidence

1. [8]

   Mr Nelson gave the following evidence:

The appellant’s evidence

1. [9]

   The trial judge summarised the appellant’s evidence as follows:

THE CRIMES ACT 1900 (NSW)

1. [10]

   The following provisions of the Crimes Act 1900 (NSW) are of present relevance:

THE JUDGMENT UNDER APPEAL

1. [11]

   The trial judge accepted the Crown’s submission that it needed to prove that the appellant had two forms of intent in order to establish the charged s 33B offence, namely, an intention to use the vehicle in question as an offensive instrument and an intention to prevent his lawful apprehension (Judgment pp 10 – 11). His Honour said that he was satisfied of the existence of the second and that issue had been joined in relation to the existence of the first, with which he then proceeded to deal (Judgment p 11).

2. [12]

   His Honour quoted the following passage from the judgment of Gleeson CJ (with whom Hunt CJ at CL and Ireland J agreed) in R v Hamilton [1993] 66 A Crim R 575 at 577:

3. [13]

   His Honour then referred to a number of cases, including Hamilton, in which an offender was convicted of the relevant offence after driving threateningly towards someone.

4. [14]

   His Honour said that each of the alternatives listed in subsection (c) of the “offensive weapon or instrument” definition in s 4 of the Crimes Act (see [10] above), requires first “that the accused turned his mind to the use he intended, threatened or executed and [secondly] that he in fact intended to use or to threaten the use of the vehicle as an offensive instrument” (Judgment p 20).

5. [15]

   His Honour found that the appellant was intoxicated at the relevant time and that the intoxication was self-induced. His Honour continued:

6. [16]

   After referring to Constable Conroy’s evidence (see [5] above]), his Honour concluded:

7. [17]

   His Honour then reached the following conclusion as to the applicant’s guilt:

DETERMINATION OF THE APPEAL – GROUND ONE: UNREASONABLE VERDICT

1. [18]

   In support of this ground of appeal, the appellant submitted that, unlike the position in the cases to which the trial judge referred, there was no evidence that the appellant was “driving at” anyone. To the contrary, he submitted, “all the evidence was to the effect that [he] was driving, or attempting to drive, away from” Constable Conroy (Appellant’s Written Submissions [75]). The appellant contended that, because of the struggle over the steering wheel that was occurring, the Crown had not established “that the appellant was ‘in control of the motor vehicle’ in the sense that phrase is used in Hamilton” and that it was therefore not “open to the trial judge to conclude that the appellant was deliberately steering to his right” and thus towards the police (ibid [82], [84]).

2. [19]

   However, the trial judge did not base his conclusion that the appellant used the vehicle as an offensive instrument upon a finding that the appellant was in control of the steering wheel and attempting to steer the vehicle to the right, and therefore towards Constable Conroy. Instead, his Honour’s conclusion was expressly stated to be “regardless of the direction of the vehicle moving to the right as described by Constable Conroy” (see [16] above).

3. [20]

   The trial judge appears to have concluded that the appellant used the vehicle as an offensive instrument because he accelerated for the purpose of breaking Constables Conroy and Stennett’s grips, or attempted grips, on him regardless of whether he also had control of steering the vehicle’s direction.

4. [21]

   The evidence supports this conclusion. Constable Conroy’s evidence, which was corroborated by the other witnesses, was that he had hold of the appellant’s right arm with his left hand and attempted to remove the appellant from the vehicle whilst also attempting to turn off the ignition with his right hand. Constable Stennett also had hold of the accused and, from the other side, Mr Nelson tried to push the appellant out of the vehicle. Whilst this was occurring the appellant pressed the accelerator with his right foot causing the vehicle to move forward, perhaps somewhat to the right.

5. [22]

   As the trial judge found, the appellant did this in order to evade apprehension. Indeed, the appellant admitted as much in his evidence in chief when, in response to a question as to what was going through his head at that time, he answered: “I’ve got to get away. I’ve got to get out of here. I’ve got to get away” (Transcript, 1 July 2014, p 148). He denied that he was attempting to knock Constable Conroy over, drag him along, hit him with the back of the car or run over his foot (ibid p 149). In order to evade apprehension, the appellant clearly needed to break free from the police officers’ holds. His intention to evade apprehension therefore encompassed the more immediate purpose of wresting himself free.

6. [23]

   By accelerating the vehicle, he successfully used it to break himself free of the police officers’ holds. In my view, that constituted the appellant’s use of the vehicle as “an offensive weapon” regardless of the fact that he may not have intended that use to harm the police officers.

7. [24]

   Whilst the use of an offensive weapon is most commonly accompanied by an intent to injure or threaten someone, the expression has a broad meaning that encompasses what occurred in this case, namely, using an instrument in a positive fashion to achieve an object which, in the case of s 33B, is the prevention or hindrance of lawful apprehension. Thus “[t]o go on the offensive” is an expression commonly used in sporting and other fields to refer to positive action to achieve an objective. An intention to harm is not required. Use of an offensive weapon or instrument can therefore occur without an intent to cause or threaten harm. The following parts of the Oxford English Dictionary definition of “offensive” are consistent with this approach:

DETERMINATION OF THE APPEAL – GROUND 2: INTOXICATION

1. [25]

   In support of this ground, the appellant submitted that s 428C of the Crimes Act (see [10] above) rendered the appellant’s intoxication relevant to a consideration of whether or not the appellant used the subject vehicle as an offensive instrument because of s 428B(2)’s classification of an offence under s 33B as an offence of “specific intent”.

2. [26]

   In response, the Crown adopted the trial judge’s view that s 428C was instead only concerned with an intention to cause a specific result which, in the case of s 33B, is the prevention or hindrance of lawful apprehension.

3. [27]

   As Brennan J observed in He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 at 566:

4. [28]

   Brennan J went on to distinguish between the concepts of voluntariness, general intent and specific intent as follows:

5. [29]

   Mason CJ, Brennan J and McHugh J in The Queen v Falconer [1990] HCA 49; 171 CLR 30 at 39 and the plurality in The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [24] approved of Brennan J’s discussion of this topic.

6. [30]

   The Honourable Paul Whelan referred to these concepts in his Second Reading Speech preceding the introduction of Part 11A (which is concerned with intoxication) into the Crimes Act (as quoted in R v Grant [2002] NSWCCA 243; 55 NSWLR 80 below). The Interpretation Act 1987 (NSW) permits consideration of Second Reading Speeches where doing so will assist in ascertaining the meaning of a statutory provision (see ss 34(1), 34(2)(f)). Mr Whelan said:

7. [31]

   Mr Whelan then referred to the new legislation as incorporating the Majewski approach.

8. [32]

   In the terminology of He Kaw Teh, reflected in Mr Whelan’s speech, the requirement under s 33B that the accused intended “to prevent or hinder lawful apprehension or detention” is a requirement of specific intent because the relevant intention is to cause a particular result. Understandably, s 33B is therefore characterised by s 428B(2) as an offence of specific intent.

9. [33]

   As the trial judge in the present case pointed out, another type of intent must also be proved under s 33B, namely, to use something as an offensive instrument. This is a “general or basic intent” relating to the doing of the act in question. As Brennan J pointed out in He Kaw Teh, “proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent” (at 570). As his Honour also pointed out in the passage quoted in [28] above, the need to prove such a general intent is distinct from the additional requirement that the relevant act be voluntary.

10. [34]

    The question that remains is how, if at all, Part 11A deals with this basic or general intent element of a provision that also requires proof of a specific intent and that is characterised as creating an offence of specific intent. Section 428C does not address this question, at least not expressly, as it is only concerned with the relevance of intoxication in determining whether the accused had “the intention to cause the specific result necessary for an offence of specific intent”. This does not encompass the basic or general element of s 33B to which I have referred.

11. [35]

    Nor does s 428D, at least not expressly, address this question because that section concerns the determination of “whether a person had the mens rea for an offence other than an offence of specific intent”. Section 33B however creates an offence that is of specific intent.

12. [36]

    Furthermore, s 428G does not assist in answering the question because it is concerned with the determination of whether the relevant conduct was voluntary. As Brennan J pointed out in He Kaw Teh, voluntariness and basic or general intent are distinct concepts (see [28] above).

13. [37]

    Section 428H is similarly unhelpful, although in stating that the common law relating to the effect of intoxication on criminal liability is “abolished” it indicates that recourse cannot be had in answering the present question to the common law principle stated in The Queen v O’Connor [1980] HCA 17; 146 CLR 64 that evidence of self-induced intoxication is relevant in determining whether a person accused of a criminal offence had the mental element prescribed in respect of that offence.

14. [38]

    In my view, the reasoning that leads to the correct answer to the present question is as follows.

15. [39]

    Considered as a whole, Part 11A manifests a legislative intention to preclude intoxication from being taken into account except in the circumstances identified in that Part. This is most clearly evident from s 428H which, as discussed above, abolishes the common law principle allowing intoxication to be taken into account in determining criminal liability. Mr Whelan’s Second Reading Speech provides further evidence of this policy (see [30] above). The only exception to the policy is that stated in s 428C which permits intoxication to be taken into account in determining “whether the person had the intention to cause the specific result necessary for an offence of specific intent”. For the reasons given above, the intention presently in question, namely, to use the vehicle as an offensive instrument, is not intention of that type, although the intention to which s 33B also refers, namely, of preventing or hindering lawful apprehension or detention, is. However, that latter intention is not in issue as the trial judge’s finding that it was present was not challenged.

16. [40]

    Part 11A does not expressly prohibit regard to intoxication in respect of the basic or general intent presently in question because s 428D only applies to “an offence other than an offence of specific intent” and s 33B is an offence of specific intent. Nevertheless, Part 11A impliedly achieves that result because, as I have said, it manifests a legislative intention to prohibit regard to intoxication except where specifically permitted by the Part, with no such specific permission being presently relevant. As a result, the trial judge was correct in concluding that the appellant’s intoxication was irrelevant to the determination of whether he had the basic or general intent of using the vehicle as an offensive instrument. While any ambiguity that remains after applying the ordinary rules of statutory construction should be resolved in the appellant’s favour because the Crimes Act is a penal statute (Barker v The Queen [1983] HCA 18; 153 CLR 338 at 355), in my view no such ambiguity exists.

17. [41]

    R v Grant is not inconsistent with this conclusion. In that case, the Crown’s case that the appellant was guilty of murder was left to the jury to decide on the basis of whether he had a specific intent to kill or to cause grievous bodily harm, or on the alternative basis of reckless indifference to human life. Following conviction, the appellant’s appeal was allowed because this Court found that the trial judge had misdirected the jury that the appellant’s intoxication, whilst relevant to the formation of a specific intent to kill or to cause grievous bodily harm, was not relevant to the issue of whether the appellant was recklessly indifferent to human life.

18. [42]

    The Court held that murder, in all its forms, came within the ambit of s 428C of the Crimes Act. Wood CJ at CL (with whom Spigelman CJ and Kirby J agreed) concluded as follows:

19. [43]

    As is apparent from this paragraph, his Honour relied upon a number of presently irrelevant matters including s 428E’s express provision relating to the offence of manslaughter, the “comparable degree of heinousness which attaches to murder however committed” and “the nature of the malice aforethought involved”. His Honour’s reference to “potential complexity” may have some analogy to the present case. However, that analogy is limited because a jury should not have any significant difficulty in following instructions that relate, on one hand, to a general intention to use an offensive weapon or instrument and, on another, to an intention to achieve the result of preventing or hindering lawful apprehension.

20. [44]

    Moreover, Wood CJ at CL relied on a reference to “murder” in part (a) of the Table to s 482B(2) as supporting the contention that s 428C was intended to apply to murder in all its forms. The issue is different in relation to s 33B as there are not two distinct, alternative, ways in which the offence can be committed. Rather, the use of an offensive weapon or instrument, as well as the intent to prevent or hinder lawful apprehension, is required in all cases. The simple reference to s 33B in part (a) of the table to s 428B does not therefore have the same significance as the reference to “murder” in that part of the table.

21. [45]

    I add that had I taken a different view in relation to the appellant’s second ground of appeal and concluded that the trial judge had erred in directing himself that the appellant’s intoxication was irrelevant to the formation of an intent to use the vehicle as an offensive instrument, I would nevertheless have proposed that the appeal be dismissed by reason of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). Under that proviso, an appeal may, and indeed should, be dismissed if the appellate court “considers that no substantial miscarriage of justice has actually occurred”. This proviso is applicable in circumstances such as the present if the appellate court concludes that the trial judge’s erroneous direction “could not have deprived the appellant of a chance of acquittal that was fairly open to him or her” (Filippou v The Queen [2015] HCA 29 at [15]).

22. [46]

    I am persuaded that what I assume for present purposes was a misdirection by the trial judge did not deprive the appellant of a fairly open chance of acquittal. There is no challenge to the trial judge’s finding that, notwithstanding the appellant’s intoxication, he intended to prevent or hinder his lawful apprehension or detention. This conclusion was obvious on the evidence at the trial. In the circumstances of this case, that intention necessarily encompassed the appellant’s basic or general intent to use the vehicle as an offensive instrument (assuming the correctness of my conclusion in respect of Ground One of the appeal). Thus, the appellant’s struggle to wrestle free of the police officers’ hold and his pressing of the vehicle’s accelerator were designed to assist him in evading lawful apprehension. They both served not only that purpose but also the more immediate, and entirely consistent, purpose of freeing himself. A finding that the appellant’s intoxication did not prevent him forming the intent to achieve the more immediate purpose, as well as the intent to prevent or hinder his lawful apprehension, would have been inevitable if the trial judge had considered that, as a matter of law, he was able, or bound, to take into account the appellant’s intoxication in determining whether the appellant intended to use the vehicle as an offensive instrument.

ORDERS

1. [47]

   As neither Ground One nor Ground Two of the appeal has any merit and the appellant accepted that Ground Three would only arise in the event that he was successful on one of his other grounds of appeal, the following orders should be made:

   1. (1)

      Refuse leave to appeal in respect of Ground One.

   2. (2)

      Dismiss the appellant’s application for leave to appeal and appeal.

2. [48]

   R A HULME J: I agree with Macfarlan JA.

3. [49]

   WILSON J: I agree with Macfarlan JA.