Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: X v R [2011] NSWCCA 202 Hearing dates: 1 September 2011 Decision date: 02 September 2011 Jurisdiction: Criminal Before: Simpson J at 1 Hislop J at 15 Garling J at 16 Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL LAW - application for leave to appeal against interlocutory judgment or order - s 5F(3) Criminal Appeal Act 1912 - refusal of application to quash indictment - whether indictment discloses an offence known to law - specially aggravated kidnapping - nature and scope of "advantage" within meaning of s 86(1) Crimes Act 1900 - leave granted - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: R v Robson; R v Collett, [1978] 1 NSWLR 73 R v X [2011] NSWDC 116 Category: Procedural and other rulings Parties: X (Applicant) Regina (Respondent) Representation: Counsel A Francis (Applicant) P Skinner (Respondent) Solicitors Galloways (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 09/64904 Publication restriction: Yes Decision under appeal Citation: [2011] NSWDC 116 Date of Decision: 2011-08-30 00:00:00 Before: Murrell DCJ File Number(s): 09/64904 Judgment 1SIMPSON J : The applicant seeks leave, pursuant to s 5F(3) of the Criminal Appeal Act 1912, to appeal against an interlocutory order made by Murrell DCJ in the District Court on 30 August 2011 ( R v X [2011] NSWDC 116). The order in question was an order refusing an application to quash an indictment. The applicant contended that the indictment did not disclose an offence known to law. Background 2The applicant is charged under s 86(3) of the Crimes Act 1900, which creates an offence of specially aggravated kidnapping. Provision is made in s 86(1) for the basic offence of kidnapping, in the following terms: " 86(1) 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." 3The circumstances of special aggravation that bring such an offence within subs (3) are the commission of the offence in company, and/or that actual bodily harm is occasioned to the victim. 4The indictment is in the following terms: "On 1 April 2009 at ... in the State of New South Wales [the applicant] 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." 5Murrell DCJ had before her a statement of the facts alleged by the Crown. The statement of facts was not put before this Court. The following facts are drawn from the judgment of Murrell DCJ. They may be stated briefly. The Crown alleges that, on 1 April 2009, the applicant was telephoned by his estranged wife. She told him that she had seen a man "lurking" near her home. The applicant went to the home for the purpose of locating the man. The complainant, a 15 year old boy, was walking on a street near the applicant's wife's home. The applicant drew up in a motor vehicle on the same street. An occupant of the vehicle (who, it may be inferred, the Crown alleges was the applicant, or a person acting in concert with the applicant) left the car, punched the complainant, and forced him into the vehicle. The applicant asked the complainant "did you rob my home?" to which the complainant replied in the negative. The complainant was driven by the applicant to a nearby park, where he met two other men. The three men conveyed the complainant to the applicant's wife's home, and asked her if the complainant was the person whose presence had earlier concerned her. She said he was not. The complainant was given $100 and released. 6It can be seen from the manner in which the indictment is framed that the advantage that the Crown alleges the applicant intended to obtain from the taking and/or detention of the complainant was information about his (the complainant's) whereabouts earlier on the day (more specifically, perhaps, information about whether he was the person who had been seen by the applicant's wife "lurking" in the vicinity of her home). That, the applicant contends, is an advantage not within the meaning or concept or contemplation of s 86(1)(b). 7The argument was difficult to follow. Essentially, as it was put in the District Court (as summarised by Murrell DCJ) it was: "9. ... in order to fall within s 86, an 'advantage' must be tainted by illegality. It was submitted that s 86 refers to the alternative intention of 'holding (the complainant) to ransom' and 'obtaining any other advantage'." ( R v X, at [9]) Murrell DCJ rejected the argument. 8In this Court the same argument was put as follows: "22. The advantage must ... be construed in the context of taking the person, generally away, for the purpose of obtaining a ransom or other illegal quid pro quo . 23. It is submitted (on the Crown case), the Crown is unable to establish any intention by the accused to obtain for himself an advantage within the terms of the section. 24. ... 25. Furthermore, the advantage, if not a legal one, is one which would need to provide the receiver (the accused) with something of value to him which he would not otherwise be able to obtain legitimately or otherwise be entitled. 26. For example, in the cases, the advantage received by the accused was one which he would not have been able to obtain lawfully and whereas in the current case, arguably - whether the alleged victim walked with him voluntary [sic] or was escorted to the house in a matter [sic] alleging evidence given by him in the lower court - could have been obtained by another means - bringing of the accused [sic] estranged wife to the park for example." 9The argument is untenable. It is only necessary to reflect on the many cases under s 86 that involve detaining a person for sexual favours. That is something that can be obtained legitimately and lawfully; the illegality is in the manner in which the perpetrator sets about obtaining the advantage. In R v Robson; R v Collett, [1978] 1 NSWLR 73 on an application for a verdict of not guilty by direction at the end of the Crown case (of a prosecution under the forerunner of s 86, s 90A of the Crimes Act ), a similar argument appears to have been advanced, and was rejected. 10A second argument advanced in this Court was that what was identified in the indictment as the advantage the applicant intended to obtain was not capable of being an advantage for the purposes of the section. Reference was made to Dictionary definitions of the word "advantage". In my opinion, "advantage", is a word in common currency, and does not require resort to a Dictionary. In any event, the Dictionary definitions do not assist the applicant. One of the meanings given in the Macquarie Dictionary is "any desired end". The Crown case is that the applicant wished for information from which he could ascertain if the complainant was or was not the person his wife had earlier seen. That is "a desired end". 11Section 86(1) is framed in wide terms precisely to encompass the many forms of advantage that may be sought, and that would not necessarily have been anticipated by the draftspersons of the legislation. Information falls readily into the category of advantage which may be so obtained. I would, like Murrell DCJ, reject this argument. There is no end to the ingenuity of the criminal mind. There is no reason to confine the nature of the advantage that might be intended to be obtained by a kidnapper to one which is, of itself, unlawful. A kidnapper may well seek to obtain a lawful advantage by the unlawful means of kidnapping. 12In supplementary submissions provided to the Court after the conclusion of the hearing, counsel for the applicant contended (by reference to Parliamentary Debates concerning s 90A of the Crimes Act , the predecessor to s86), that: "... the relevant advantage must stem from the taking or detention, because the relevant advantage must be obtained by the taking or detention". 13The Parliamentary materials attached to the submissions (apparently part of a debate recorded in Hansard of 30 November 1961) do support that contention. But it does not assist. On what is here alleged by the Crown, the very purpose of the taking and detaining was to obtain the information the applicant sought - ie, if the Crown can prove the facts it alleges, the advantage sought did stem from the taking or detention. The argument proffered appeared to be that, because there were alternative means of obtaining the information sought (by, for example, taking the applicant's wife to the park to identify the complainant) any information obtained would not "stem from" the taking or detention. There is no logic to this argument. In the first place, it would have been necessary to detain the complainant until the applicant's wife could be brought to the park. In the second place, however the applicant and his accomplices went about it, the allegation is that they took and detained the complainant for the specific purpose of obtaining information from or about him. 14I accept that the indictment could have been more lucidly expressed, but the applicant could be in no doubt about the nature of the advantage that he is alleged to have intended to obtain. In any event, lack of clarity is not the complaint; it is as to the nature of the advantage alleged. I am satisfied that the argument is without any merit whatsoever. That conclusion would warrant refusal of leave under s 5F(3). However, since the Court has heard full argument, and in order to dispose of this arid argument, I would grant leave to appeal, but dismiss the appeal. 15HISLOP J: I agree with Simpson J. 16GARLING J: I agree with Simpson J. ********** 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: 29 July 2014