District Court New South Wales Medium Neutral Citation: R v Thaidy (1) [2014] NSWDC 193 Hearing dates: 23 - 24 June 2014. Decision date: 24 June 2014 Before: Berman SC DCJ Decision: Find the accused guilty on count one on the indictment Catchwords: CRIMINAL LAW - Judgment - Judge alone trial - Use motor vehicle as an offensive weapon Legislation Cited: Crimes Act Evidence Act Cases Cited: R v Hamilton (1993) 66 AcrimR 575 Category: Principal judgment Parties: The Crown Patrick Christopher Thaidy Representation: Mr B Bickford - The accused The Director of Public Prosecutions Legal Aid Commission - Accused File Number(s): 2013/221387 Judgment 1HIS HONOUR: Yesterday on 23 June 2014 the Crown presented an indictment against Patrick Christopher Thaidy. The indictment contained two counts which were laid in the alternative. The accused had previously elected for trial by judge alone and so, after satisfying myself that the election had been properly made and granting the leave that was required, I proceeded to hear the trial. 2Before I discuss the evidence in the case and the issues which arose, I will set out some preliminary matters. They are the sorts of things that I would tell a jury if a jury was deciding whether Mr Thaidy was guilty or not on count 1 on the indictment. 3I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in court and the exhibits which have been tendered. I have made no inquiries of any kind about anything that came up in this trial. 4Although I had the benefit of seeing the witnesses give their evidence, I fully appreciate that in many cases it is extraordinarily difficult to assess whether a witness is telling the truth or not from the way the person behaves whilst giving evidence. This is especially the case where witnesses are not strangers to the witness box, such as the three police officers called by the Crown. 5I need not decide all matters of fact which are disputed. What I must be satisfied of are the elements of the offence. The Crown has to prove them beyond a reasonable doubt. In this case the accused made admissions which reduced the matters in dispute considerably. 6The accused gave evidence in his trial. He did not have to do so. By giving evidence he did not assume a burden of proving that what he said was true. The burden of proof remains on the Crown to prove the guilt of the accused beyond a reasonable doubt. It is also important to remember that rejection of the accused's case, even beyond a reasonable doubt, is not the equivalent of proving the Crown case beyond a reasonable doubt. 7I have decided this case coldly and unemotionally. Were there a jury, I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charge he faces. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy. In particular, I know that the accused committed an offence of break, enter and steal that evening. That is why the police wished to apprehend him. That is why the accused, as he admits, drove away from the scene in an effort to avoid being apprehended, but I have not allowed this circumstance to affect my reasoning in a manner which is not a logical process of reasoning. 8There was much that was not in dispute in the trial. Indeed the accused made a number of admissions which limited the issues to be decided. 9The accused went with two other men to a small shopping centre in Cardiff South. There they broke into a hairdressing salon where they stole a small amount of cash, scissors and razors. Their actions had been observed by a neighbour and police were called. Police officers in two cars responded. They drove into the car park of the shopping centre. At this stage the accused and the two other men left the salon and got into a maroon Commodore sedan parked just outside. The accused got into the driver's seat, with the two others getting into the rear seat. 10One of the police officers who responded, Sergeant David Lewis, got into the front passenger seat and grabbed hold of the hoodie the accused was wearing. He gave evidence that he held the hoodie at the scruff of the neck where the hood joins the back of that garment. 11Another officer, Senior Constable Robert Ballard, went to the driver's side door. Senior Constable Ballard attempted to prevent the accused starting the car and, when that was unsuccessful, he attempted to turn the car off. However, there was no ignition, the car having been started through the use of a pair of scissors. After the car started the accused must have depressed the accelerator to a significant extent because both police officers gave evidence, which was unchallenged, that they heard the engine revving loudly and smoke coming up from under the bonnet. 12Eventually, while Sergeant Lewis was still in the car the accused managed to put the automatic transmission lever into gear, causing the car to accelerate. Senior Constable Ballard leapt out of the way and the car drove off. The evidence of Sergeant Lewis was that in the course of the car accelerating harshly he was flung over the passenger seat into the rear compartment of the car. The accused agrees that the officer ended up there but says that this only occurred later. This is an issue to which I will return. 13In any case, the accused drove the car out of the car park, turned left and then left again until he was on Helen Street. The car then proceeded down Helen Street at high speed. Both police officers gave evidence, about which they were not cross-examined, that it appeared to be travelling above the speed limit. The car swerved from side to side, colliding with gutters and a street sign, before it failed to negotiate a right-hand turn, going through a fence and ending up in someone's yard. 14Senior Constable Ballard had returned to his vehicle as soon as the Commodore was heading out of the shopping centre car park and followed it down Helen Street. After it eventually stopped he opened the driver's door and arrested the accused. 15It is these circumstances which give rise to the two counts on the indictment. Count 1, to which the accused pleaded not guilty, alleged that while in company of others he used an offensive weapon, namely, a Holden Commodore motor vehicle, with the intent to prevent his lawful apprehension. Count 2, to which the accused pleaded guilty, laid as an alternative to count 1, alleged that the accused assaulted Sergeant Lewis, a police officer acting in the execution of his duty, and by the assault occasioned actual bodily harm to him. 16The issue for me to decide is whether I am satisfied beyond a reasonable doubt that the accused is guilty on count 1. In doing so I take note of the admissions made by the accused under s 184(1) of the Evidence Act that he drove the maroon Commodore from the scene to get away and prevent his lawful apprehension. This narrows the relevant issues considerably. There was no admission in that document that he was in company at the time but, given the circumstances described by Sergeant Lewis, and the absence of any submission from Mr Bickford who appeared for the accused that the accused was not in company, I am able to find beyond a reasonable doubt that the accused was in company at the relevant time. 17That leaves for me to decide the question which was identified at the very beginning of this trial as being the live issue. Am I satisfied beyond a reasonable doubt that the accused used the Commodore as an offensive weapon? 18The Crown case is that the accused swerved the car from side to side in a violent manner as a means of attacking Sergeant Lewis by causing him to be thrown around in the back seat, colliding with things inside the car as that occurred. The Crown case is that the accused was attempting to cause Sergeant Lewis to release his hold on the accused's hoodie so as to either make it possible for Sergeant Lewis to be ejected from the car or so as to allow the accused to run away from Sergeant Lewis after the car stopped. That is how the Crown put its case that the car was an offensive weapon. 19The Crown also said that the case could be made out by considering the actions of the accused in so far as they caused Senior Constable Ballard to have to get out of the way. However, I could not find the accused guilty on this alternative basis. The evidence did not establish that the accused used the car to attack that officer. It established only that he intended to get away from him. 20That leaves me to decide whether the Crown case is made out in so far as it concerns the actions of the accused towards Sergeant Lewis. 21Relevantly, the definition of "offensive weapon" in s 4 of the Crimes Act provides that an offensive weapon is: "anything that in the circumstances is used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm". 22There are, of course, authorities which deal with the issue as regards the use of a motor vehicle as an offensive weapon, in particular when the motor vehicle is used to prevent lawful apprehension. The only case I need to refer to is that of R v Hamilton (1993) 66 ACrimR 575. In that case, as is more usually the case, the motor vehicle was used by a person who drove it towards a police officer who was attempting to arrest him. Gleeson CJ, with whom the other members of the Court agreed, held that: "The adjective 'offensive' means something that is adopted or used for the purpose of attack. The question whether an object or an article is an offensive instrument raises for consideration the nature of the object, the uses of which it is capable and the intention of the person who is using it on the occasion in question. An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of the use to which a person puts it and the intent which accompanies such use." 23A motor car is of course an object which in its nature and in its ordinary use is not offensive but, as in Hamilton, the Crown argues that it was used for the purposes of attack and thus when used in that manner it became an offensive weapon. The Crown case is that when I look at the use to which the car was put and the intention of the accused which accompanied such use, the car became an offensive weapon. 24As I mentioned, Hamilton is an example where the accused drove the vehicle in a way which risked a collision between the car and a police officer who was outside the car. Usually in cases of this kind the police officer is outside the car and the car is used as a weapon by it being driven in a way which establishes the driver's intent that the police officer will come into contact with the outside of the car or, at the very least, cause the police officer to move so that such a collision does not occur. As a matter of legal principle, however, it makes no difference where, as in the present case, the police officer is inside the car and it is driven in such a way that the police officer comes into contact with parts of the inside of the car as he is thrown up and down and from side to side. 25The Crown alleges that that is what occurred in the present case. It is common ground that as the car was being driven down Helen Street by the accused the police officer was holding onto part of the clothing then being worn by the accused. The Crown case is that the accused needed, if he was going to get away, to break that grip. He needed the police officer to let go of his clothing so that either the police officer could be ejected from the car or the accused could run away unhindered after he brought the car to a stop. The Crown case is that the accused deliberately swerved from side to side, driving the car in a very violent manner in order to cause harm to the police officer, thereby in turn causing him to break his grip. 26The accused's case is quite different. He effectively blames the police officer for causing the car to move from side to side. He says that the police officer was hitting him from the back seat. He says that the police officer's grip on his clothing caused the car to swerve from side to side. He says that the police officer grabbed the steering wheel. He says that when the police officer put his feet through the gap between the bucket seats and kicked at the steering wheel and his hands, that also caused the car to swerve from side to side. In effect, the accused is prepared to accept responsibility for that part of the control of the vehicle which involves the foot pedals but says, in effect, that he was unable to control the direction of the car because of the police officer's interference. Thus he denies in effect being responsible for the swerving motion which the Crown says demonstrates the use of the car as an offensive weapon. 27As I mentioned earlier, there is a dispute as to when the officer went from the front passenger seat to the back seat. The officer himself, Sergeant Lewis, said that this occurred when the vehicle accelerated harshly at the beginning of the accused's attempt to avoid apprehension. Sergeant Lewis says that at that time he was on his knees in the front passenger seat, off balance, and the force of the violent acceleration meant that he was effectively moved backwards in the car, going over the top of the front passenger seat. 28The accused, on the other hand, says that the police officer remained in the front passenger seat for a significantly longer time, claiming that it was only the side-to-side swerving motion whereby the car collided with the gutters that caused the police officer to go into the back seat. 29I have no hesitation at all in accepting beyond a reasonable doubt that the police officer's version of events in this regard is correct. Swerving from side to side with a car colliding with the gutters would cause objects within the car to also move from side to side. It would have no tendency to cause things within the car to move in a fore and aft motion. A body at rest tends to remain at rest unless a force acts upon it. Thus when the accused accelerated the car harshly to get away from Senior Constable Ballard the car moved but Sergeant Lewis would tend to remain in the same position in space. To be precise, it was not a case of him moving backwards but the car moving forwards. The accused's version provides no explanation as to why Sergeant Lewis would move from the front seat to the back seat. Sergeant Lewis' version clearly does. 30Thus I find that Sergeant Lewis was in the back seat of the car from virtually the moment the accused put the car into gear and drove off. This is a significant finding as it suggests that the cause of the swerving was not anything that Sergeant Lewis did from the front seat. 31Another aspect of the evidence worthy of comment concerns the officer's use of his firearm. Sergeant Lewis gave evidence that in fear of his life he withdrew his firearm from its holster with his right hand and contemplated shooting the accused. The accused agrees that the officer at one stage withdrew his firearm, claiming to have seen it when he turned around and looked at the officer in the course of the car's travel down Helen Street. Sergeant Lewis gave evidence that he re-holstered his firearm and decided not to shoot the driver because he saw that they were travelling too dangerously. He said that, "Discharging a firearm was probably no safer than the way we were driving." 32The officer, I thus accept, was genuinely frightened at the way the car was travelling down the roadway, swerving violently from side to side. Such a person is most unlikely to be the cause of the vehicle's erratic path, as is claimed by the accused. I am satisfied that Sergeant Lewis was genuinely afraid for his life. If the accused's version of events is correct, all Sergeant Lewis would have had to have done to make his situation safer would be to stop interfering with the direction the car was travelling. To put matters bluntly, on the accused's version that would have decreased the likelihood that Sergeant Lewis would die. The car would have travelled in a straight line, not swerving from side to side. So the fact that the car was driven erratically from the moment it moved off until it came to rest tends to suggest that the accused's version of events cannot be accepted. 33This, of course, is not to reverse the onus of proof. As I have mentioned before and as I will mention below, the Crown bears the onus of proving the guilt of the accused, but in assessing whether that has been done, it is important to assess all the evidence in the case including that given by an accused person. When I perform that task and analyse the evidence given by this accused, I find that in significant areas it cannot be accepted. 34Another aspect of the evidence which points very much in favour of the Crown case being accepted is this circumstance. The accused never claimed that the officer did anything to affect the accused's operation of the foot pedals: the accelerator and the brake. It is clear that the vehicle was travelling at high speed. Tyre burn marks were photographed by police. Two police officers gave evidence that they heard the engine revving loudly and saw smoke coming out of the bonnet of the car. Had the swerving of the car from side to side been something that the accused did not desire and which gave him concerns for his own safety, it would have been a simple matter for him to have slowed down or even stopped. Of course, had he done so he would have been inhibited from escaping from police because Sergeant Lewis would still have hold of his clothing. That, in my view, explains why the accused travelled at high speed and is a further reason for accepting that the swerving from side to side came about as a result of a voluntary action of the accused. 35The accused's claim that Sergeant Lewis was at one stage actually grabbing the steering wheel with his hands cannot be accepted for at least three reasons. Firstly, it would have been physically impossible, given the position Sergeant Lewis was in, to have reached all the way from the back seat to the steering wheel. Secondly, at all times he had hold of the accused's hoodie with his left hand. It would have been physically impossible for him to have grabbed the steering wheel with his right at any time. And thirdly, and this is related to something I said earlier, such an action is inconsistent with the officer's fear that he might even be killed as a result of the path the car was taking. 36I do not accept either that the officer having hold of the hoodie was in any way the cause of the erratic path. The officer was not shaking the hoodie from side to side, merely holding onto it. Nor was any other action of the officer likely to have contributed to the car swerving from side to side. In particular, his actions in kicking the steering wheel and the accused's hands only came about quite late in the piece, a matter the accused concedes. So the result is that no action of the officer caused the swerving on which the Crown relies. 37I mentioned before the difficulties of assessing the truthfulness of a witness from that witness' appearance in the witness box, especially in the case of practised witnesses such as police officers. Even approaching this aspect of the case with considerable caution, I remain of the view that the demeanour of the witnesses in the witness box in this case is also a factor on which the Crown is entitled to rely. I can confidently say that I would still have reached the same conclusion in any case but I mention this aspect of the case because of the stark nature of the demeanour of the witnesses, particularly the accused, whilst giving evidence. Sergeant Lewis appeared to give evidence thoughtfully and carefully. He made appropriate concessions. He appeared to think before answering. On the contrary, the accused, especially in cross-examination, appeared to be anxious to say the first thing that came into his mind. He did not appear to be willing to listen to questions put to him or even to give very much thought to them. In any case, he appeared to have adopted the attitude that he would simply deny propositions put to him by the crown prosecutor. This led to the situation where, as I perceived it, the accused was denying any responsibility for any of the injuries caused to Sergeant Lewis, a position quite inconsistent with the accused's plea of guilty to count 2 on the indictment. 38That led in turn to a question as to whether the accused's plea of guilty to count 2 had evidentiary significance in my assessment of the reliability of the accused's evidence in determining whether the Crown had proved beyond a reasonable doubt that the accused was guilty on count 1. I heard submissions on the matter but, as it is not necessary for me to resolve that matter to decide this case, I have decided that the safer option is not to treat the accused's plea of guilty to count 2 as having any evidentiary relevance to my determination on count 1. 39I also accept that giving evidence is a very stressful experience and that many people in the witness box are anxious to disagree with propositions put to them by the cross-examiner. However, even with that qualification, I would, if it was necessary to do so, have taken the demeanour of the witnesses into account in deciding that I am satisfied beyond a reasonable doubt of the accused's guilt on count 1. 40I should now deal with some specific arguments put by Mr Bickford on behalf of the accused. He pointed out, accurately, that there was no other evidence of an attack by the accused on either police officer. For example, there was no evidence that the accused punched Sergeant Lewis at any time. That is, of course, a matter on which the accused is entitled to rely, tending to suggest, as it does, that it was not the accused's intention to inflict violence upon Sergeant Lewis. I have taken that factor into account. 41Mr Bickford also points out that no one was wearing a seatbelt and so that all of the people in the car that day, including the person driving, the accused, were vulnerable to danger. But, of course, the accused had an object to achieve and that was to escape police and sometimes risks have to be taken because of the perceived need. Thus whilst it is clearly the case that the accused's manner of driving risked his own safety and that of the other two men in the car, as well as Sergeant Lewis, this is not a factor that I have found terribly important. 42In any case, Sergeant Lewis was particularly vulnerable. The accused was sitting in a correct position in the driver's seat. He was holding onto the steering wheel. He was in a much better position to resist the violent swerving motions of the car than anyone else in the car. Sergeant Lewis was particularly vulnerable, lying effectively across the knees at one stage of the two men in the back with both hands at one stage and one hand at another stage holding onto the accused's hoodie. The submission that the accused's manner of driving risked his own safety has to be looked at with that factor in mind as well. 43Mr Bickford made the submission that it was Sergeant Lewis' grip on the hoodie which may have actually caused the swerving. I have already dealt with this aspect to some extent in my reasons for judgment delivered so far but let me say again: if that was the case, why did the accused not stop? Sergeant Lewis was not shaking the hoodie from side to side, merely holding onto it. Any movement from side to side would have been caused by the accused himself as he swerved, not causing the swerving in the first place. 44And finally, and this is something I have mentioned at least twice before, Sergeant Lewis was concerned for his own safety. I have got no hesitation in accepting, as I mentioned earlier, that Sergeant Lewis was frightened and feared for his own life. If it was his grip on the hoodie that was causing the problem with the car's path, it would have been a very simple matter for him to have increased the likelihood that he would survive the episode by simply releasing his grip. 45Mr Bickford points out that there is more damage on the right-hand side, namely, the side of the vehicle where the accused was sitting, than on the left-hand side of the car. That appears to be the case, although there is not that much in it. In any case, it would not be surprising if the accused was not fully in control of the car. The extensive tyre burn marks, the fact that he was swerving the vehicle from side to side violently, the fact that at one stage he was on the grass all suggest the unlikelihood that the accused was perfectly in control of the motor vehicle as it drove down Helen Street. 46Of course, the ultimate intention of the accused was to escape the police. To make the obvious point, an intention to escape is not inconsistent with an intention to escape by using the car as an offensive weapon. I am satisfied that the swerving on which the Crown relies was a deliberate action by the accused and that the only explanation for it was the presence of Sergeant Lewis in the car. That is a significant aspect in the Crown proving that the accused's intention was to attack Sergeant Lewis. Sergeant Lewis gave evidence that he collided with the ceiling of the car as well as the sides. He was clearly harmed as a result. To harm Sergeant Lewis or at least to frighten him must have been the accused's intention. There was no other reason for the accused to have violently swerved as he did. 47For these reasons, I am satisfied beyond a reasonable doubt that the accused used the vehicle for the purposes of attack. He intended to injure or at the very least frighten Sergeant Lewis so that he would let go of the accused, thus making it easier for him to be ejected from the car or so that the accused would be able to run from the car when it stopped. I am thus satisfied beyond a reasonable doubt that the car was an offensive weapon. 48Given my findings on the other elements and in particular the accused's admissions to them, that conclusion means that my verdict on count 1 is one of guilty. ********** 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: 13 November 2014