New South Wales Supreme Court CITATION : DIRECTOR OF PUBLIC PROSECUTIONS v CURBY [2000] NSWSC 745 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10530/00 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 May 2000 PARTIES : Director of Public Prosecutions v Rodney Colin Curby JUDGMENT OF : Adams J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT L McDermid LCM JUDICIAL OFFICER : COUNSEL : Mr P Berman (Crown) No appearance for respondent SOLICITORS : S E O'Connor (Crown) LEGISLATION CITED : Crimes Act 1900 Regina v Clear (1968) 2 WLR 122 CASES CITED : The Queen v John Rae (1998) 48 NSWLR 544 J L Holland v Cox, unreported SC(NSW) 23 May 1997 McMillan v Reeves (1945) 62 WN AT 127 DECISION : 1. That in relation to the charge of demand money with menaces, uphold the Director's appeal against the dismissal of this information and order that the matter be remitted to the Local Court to be re-tried.; 2. That in relation to the charge of attempt to steal a motor vehicle, the Director's appeal against the dismissal of this information is not upheld. Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J MONDAY 22 MAY 2000 10530/00 DIRECTOR OF PUBLIC PROSECUTIONS v RODNEY COLIN CURBY JUDGMENT 1 HIS HONOUR: This is an appeal by the Director of Public Prosecutions from the acquittal in the Local Court of the defendant. Mr Berman appears for the Director of Public Prosecutions. Mr Curby, who was served with the relevant papers, has not appeared. In the circumstances, I consider that I should proceed ex parte. 2 The case arises out of events that occurred on 2 June 1999 in a parking area at a shopping centre at Parramatta. The victim, with her young child who was in the front passenger seat of the vehicle, had reversed into a parking spot, turned off the engine, removed the keys, got out of the vehicle and closed the door. She went towards the boot to get the child's pram. She then noticed the respondent at the front driver's side door. The respondent opened the door. The victim, who thought that he may have mistaken her car for another, asked him what he was doing but the respondent did not reply. He opened the door further, ignoring the victim's enquiries as to what he was doing. His left hand was on the steering wheel and his body through the door of the vehicle. The victim asked him to close the door but the respondent demanded, in an assertive manner, that she should give him the keys. He again repeated that he wanted the keys and added a further demand. The respondent then said he was taking the car. The victim started to scream and told him that her daughter was still in the vehicle and called for help. The respondent went away and shortly after an elderly couple who drove past stopped to ask if they could help. 3 The learned magistrate dismissed the charge, brought under s.99 of the Crimes Act 1900 upon the basis that he was not satisfied that there was any threat directed by the respondent to the victim. Although it is a little unclear, I am satisfied that he considered that an implicit threat could not constitute a menace within the meaning of the section, at least where it was the prosecution case that the demand itself constituted the threat. 4 To my mind the circumstances make it inevitable in this case that the respondent had implicitly threatened the victim. In Regina v Clear (1968) 2 WLR 122 the Court said - "The test of whether the threat is a menace is whether it is of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand". 5 This passage was adopted by Wood CJ at CL in The Queen v John Rae (1998) 48 NSWLR 554 and by Hidden J in J L Holland v Cox, unreported SC(NSW) 23 May 1997 - "It is clear that the word 'menace' means a threat which should be construed liberally so as to encompass more than the threat of physical violence". 6 The learned magistrate accepted the account given by the victim. This is not surprising, since amongst other things, there was no attempt to contradict her in cross-examination on the respondent's behalf. 7 It is clear that the victim was terrified. The acts of the respondent exclusively directed towards her in her presence by his making the demand in the circumstances where the victim was for all practical purposes alone caused her fear. To my mind, that the respondent acted with menace towards the victim cannot be gainsaid. 8 I am of the view that his Worship could only have dismissed the information if he were of the view that, in law, an implicit threat would not amount to a menace where the only words spoken were the relevant demand. However, in considering whether there was such a menace, the whole of the circumstances must be borne in mind. I think it was an error of law for his Worship not to do so. 9 Accordingly, I uphold the Director's appeal against the dismissal of this information and order that the matter be re-tried. 10 The learned magistrate also dismissed a charge of attempting to steal the victim's motor vehicle. He was not satisfied in the circumstances that the respondent had done more than take acts preparatory to any attempt. 11 Although I must say for myself I think an offence was committed, I do not consider that, in weighing up the question whether what the respondent had done went so far as to constitute an offence, the learned magistrate erred in law. Mr Berman relies on the judgment in McMillan v Reeves (1945) 62 Weekly Notes NSW, a decision of his Honour, Maxwell J. The relevant passage at p 127 is as follows - "The elements necessary to constitute an attempt to commit a crime are (a) an intention to commit the offence charged and (b) acts done immediately connected with that offence. Mere intention is not sufficient, nor will the intention suffice if accompanied by acts too remote or amounting only to a preparation for the commission of the offence. If intention is proved, it is a question of law whether the acts done (or omitted) are or are not only preparation for the commission of the offence or too remote to constitute an attempt to commit it: R v Laitwood (1). It was necessary, therefore, for the magistrate in this case to examine the evidence, to make findings as to the proof of intention as well as to the proof of facts immediately connected with an intention, if so proved, carrying the acts beyond mere preparation to commit, and amounting to an attempt to commit the offence. It is only upon appropriate findings upon these questions that the question of law stated by the magistrate as arising for determination by this Court can be approached. That question is, assuming findings of intention together with acts amounting to an attempt: is it possible to convict a person on such findings of an attempt to commit an offence which, in the circumstances, the magistrate finds it impossible to carry out; or, in other words, where it is impossible for the person charged to carry out a proved intention which has proceeded beyond mere preparation? Strictly, in my view, the magistrate has not made specific findings as to intention, or as to the sufficiency of the acts connected with intention (if proved), to establish an attempt". 12 I do not take his Honour as meaning anything more than the question whether the evidence was capable of satisfying an element of an offence is a matter of law and, if so, that whether the evidence does so is a question of fact. I cannot see how in this area of the law the well settled distinction is not equally applicable. 13 Accordingly, although I say with the greatest respect I would not have come to the same conclusion as the learned magistrate, I do not consider that he erred in law in dismissing the information for this charge. 14 Accordingly, I do not uphold the Director's appeal against the dismissal of this information. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.