R v X [2011] NSWDC 116

District Court New South Wales

Medium Neutral Citation: R v X [2011] NSWDC 116 Hearing dates: 29 August 2011 Decision date: 30 August 2011 Jurisdiction: Civil Before: MURRELL SC DCJ Decision: Application refused Catchwords: Take for advantage Advantage Legislation Cited: s 86 Crimes Act 1900 Cases Cited: Davis v R [2006] NSWCCA 392 Williams v R [2006] NSW CCA 26 R v Rowe (1996) 89 A Crim R 467 R v Rose [2003] NSWCCA 411 Category: Procedural and other rulings Parties: R X Representation: Counsel: Mr Skinner Mr Galloway File Number(s): 2009/00064904 Publication restriction: Until further notice, order NON-PUBLICATION of the names of: the accused, the complainant, specified others, and anything that tends to identify them.

Judgment 1. The accused faces trial for an offence against section 86(3) of the Crimes Act 1900 (specially aggravated taking of another with intent to obtain an advantage). He seeks to quash the indictment on the basis that it does not disclose an offence known to law because it does not allege that the accused intended to obtain an "advantage" within the meaning of s 86. The Crown agreed that it was appropriate to decide the issue before arraignment. 2. The indictment alleges: "On 1 April 2009 at...in the State of New South Wales did, whilst in company of another person, take (the complainant) with the intention of obtaining an advantage, namely, so that it could be determined whether (the complainant) had been near (a particular address) earlier that day, in circumstances of aggravation, namely that actual bodily harm was occasioned to (the complainant) immediately before he was taken." 1. The Crown proposes to amend the indictment to allege that the complainant was taken without his consent. 2. The parties agreed that the Court should consider an outline of the facts. The Crown case is that the wife of the accused saw a man lurking near her premises. She telephoned the accused and expressed her fears. The accused was not living at the premises. He became concerned about his wife and children. He went to the premises in order to find the culprit. The complainant, who was a 15-year-old child, was walking along the street near the premises. A car pulled up. The occupant (who may have been the accused) exited the car, punched the complainant and forced him into the car. The occupant of the car demanded, "did you rob my house?" The complainant said, "no". The complainant was driven to a nearby park, where the occupant of the car met with two other men. The Crown says that the accused was one of the three men. The complainant was conveyed to the premises occupied by the wife of the accused. She was asked, "Is this him?" to which she responded, "no". The complainant was given $100 and released.