R v Nith Chav [2016] NSWDC 50

District Court New South Wales

Medium Neutral Citation: R v Nith Chav [2016] NSWDC 50 Hearing dates: 7 – 11 April Decision date: 13 April 2016 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Verdict of Guilty Catchwords: Use an offensive instrument within intent to prevent lawful apprehension; Judge alone trial Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 2005 Cases Cited: Hamilton v R (1993) 66 ACrimR 575 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Nith Chav (Accused) Representation: Counsel: B Ingram (Crown Prosecutor) N Steel (Accused)

Solicitors: File Number(s): 13/348188 Publication restriction: Nil

reasons for Judgment 1. Nith Chav is charged that on 19 November 2013 at Liverpool, in the State of New South Wales, he did use an offensive instrument, namely a motor vehicle with New South Wales registration BB5-8GB, with intent to prevent the lawful apprehension of himself. The charge is brought pursuant to s 33B(1)(a) of the Crimes Act 1900. The trial was heard by Judge alone on 7, 8 and 11 April 2016, following an application for trial by Judge alone brought by the accused by Notice of Motion dated 4 April 2016. This judgment records my verdict and my reasons for reaching that verdict. 2. The elements of the offence are as follows: 1. The accused used an offensive instrument; and 2. The accused did so with the intention of preventing the lawful apprehension or detention of himself. 1. The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. The accused put forward a case in defence, but there is no onus on him in any respect. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference. 2. The charge arises from the circumstances surrounding the arrest of the accused on 19 November 2013, in respect of criminal conduct committed by him the previous evening, on 18 November 2013. In respect of that conduct, the accused made certain admissions which became Ex F. They were as follows: "Admissions by Accused 1. On 18 November 2013 at 11.40pm a Chinese restaurant in the Haymarket was robbed by two masked men acting together in company. 2. The men were Choi Tang armed with a machete and the accused Nith Chav armed with a knife. 3. The men got away with two cash register tills containing $2400 in cash, and a wallet containing $400 in cash that was taken from a customer at knife point by the accused Chav. 4. A Security guard in Dixon St got the registered number of the get-away car and gave it to police. 5. The car was a Honda sedan, BB5-8GB, registered owner Ana Gonzales of 3/12 Church St Liverpool. 6. Ms Gonzales and Chav lived together at that address as partners. 7. Police ascertained the name and address of the car's registered owner. 8. Police went to the address and waited out of sight. 9. At 1.45am on 19 November 2013 Chav arrived home in the car, driving into the car parking area of the block of units. 10. Police lawfully attempted to apprehend Chav in the car." 1. The accused has entered a plea of guilty to the charge of armed robbery arising from that conduct, which is to be dealt with together with one other matter listed on a Form 1, arising also from those events. It was that material which formed the basis of the accused's application for trial by Judge Alone.