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. The "advantage" 1. On the Crown case, the immediate desire of the accused was to ascertain whether the complainant was the person who had been trespassing in the vicinity of the premises occupied by his wife. The motivation of the accused was to protect his wife and children by locating the person who had been lurking near their premises. 2. The accused submitted that such an "advantage" does not constitute an "advantage" within the meaning of s 86 because: 1. Section 86 refers to an "advantage" that is tainted by illegality. 2. The "advantage" in question was primarily an advantage to third parties. As the alleged "advantage" was, at most, an indirect psychological "advantage" to the accused, it is not captured by s 86. 1. Section 86(1) provides for a "basic offence": "A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years." Section 86(3) creates a "specially aggravated offence" in circumstances where an accused has committed the basic offence in the company of another person and actual bodily harm has been occasioned to the complainant. Section 86(5) provides: "A person who takes or detains a child is to be treated as acting without the consent of the child." 1. The gravamen of an offence against s 86 is interference with a detainee's liberty. There are two ways of committing the offence: by "taking" (which includes the ensuing detention) or by detention alone: Davis v R [2006] NSWCCA 392 per Howie J at [65]. Does the "advantage" have to be tainted by illegality? 1. The accused submitted that, in order to fall within s 86, an "advantage" must be tainted by illegality. It was submitted that s 86 refers to the alternative intentions of "holding (the complainant) to ransom" and "obtaining any other advantage". 2. This submission finds support neither within the terms of s 86 nor within case law. In s 86, the expression "any other advantage" is not qualified. In Williams v R [2006] NSW CCA 26 per McClellan CJ at CL at [43], the Court rejected the proposition that a claim of right could justify what would otherwise be an offence against a provision that was equivalent to s 86. The Court noted that there could be no right to detain another for the purpose of extracting a debt and observed that such a proposition would be offensive to fundamental social assumptions about personal liberty. In R v Rowe (1996) 89 A Crim R 467 at 469 per Hunt C J at CL, the Court observed that an intention to have sexual intercourse, even with consent, would be a relevant "advantage", as would an intention to make a complainant speak to the accused for the purpose of giving an accused psychological satisfaction. R v Rowe was followed in R v Rose [2003] NSWCCA 411 per Adams J at [6]. Is the alleged psychological advantage capable of constituting a s 86 "advantage"? 1. The Court of Criminal Appeal has not clearly defined the boundaries of s 86 "advantage". Rather, the Court has proceeded on a case by case basis, examining the facts of particular cases against the section: R v Rose per Adams J at [7]. The accused contends that the facts of this case placed it beyond the boundary of what can constitute a s 86 "advantage". 2. As noted above, psychological gratification or satisfaction is capable of constituting s86 "advantage" to an accused: R v Rose, R v Rowe . However, in each of those cases the accused was the only person "advantaged" by the detention. In the present trial, the person most directly "advantaged" by the identification and apprehension of the trespasser would have been a third party, the wife of the accused. 3. The Macquarie Dictionary definition of "advantage" includes "any desired end". It is this aspect of the definition that is most pertinent to s 86. Section 86 refers to the subjective desire of an accused, rather than to what is objectively advantageous. Consequently, for the purposes of s 86, it does not matter that third parties may be advantaged by a detention. The relevant enquiry is whether the accused has deprived a complainant of his or her liberty with the intention of obtaining an end that the accused subjectively desires. 4. In this case, the Crown alleges that the accused subjectively desired to ascertain whether the complainant had been lurking near the residence of the wife of the accused (i.e. was the trespasser). Such a subjective desire is capable of constituting an "advantage" within the meaning of s 86. 5. The application is refused. ********** Amendments 16 May 2016 - Publication restriction removed – judgment published (non publication orders remain in place) 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. Decision last updated: 16 May 2016