Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Flavell v R [2008] NSWCCA 223 Hearing dates: 4 September 2008 Decision date: 25 September 2008 Before: McClellan CJ at CL at 1; Hoeben J at 26; Harrison J at 27 Decision: 1. Leave granted 2. Appeal dismissed. Catchwords: CRIMINAL LAW - Criminal Appeal Act s SF - Appeal against interlocutory judgment or order Kidnapping - Application for permanent stay of proceedings - Whether evidence was capable of constituting the elements of the offence of kidnapping - Detain for advantage – Whether victim was 'detained' - Whether necessary for victim to be aware that he or she is detained - Victim was unconscious - Whether victim's liberty was restrained - 'Detained' includes causing a person to remain where he or she is - Offence capable of being committed where victim is denied the assistance of other persons or where accused prevents other persons from rendering assistance -Whether offence proved on the facts a matter for jury Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Davis v R [2006] NSWCCA 392 JCS V R, JMS V R, RV JCS, RV JMS [2006] NSWCCA 221; (2006) 164 A Crim R 1; Myer Stores Ltd v Soo [1991] 2 VR 597 Marchione v R [2002] NSWCCA 131; (2002) 128 A Crim R 574 McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors [2007] VSCA 289 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 R v Awang [2004] QCA 152 R v Taktak (1988) 14 NSWLR 226 Zenaida Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1; (1990) l 02 FLR 299 Category: Principal judgment Parties: Glenn Samual Flavell (Applicant) The Crown Representation: Counsel: A Haesler SC/R Wilson (Applicant) D F FrearsonSC/N Noman (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) File Number(s): CCA 2007/12861 Decision under appeal Court or tribunal: District Court Date of Decision: 09 May 2008 Before: Ellis DCJ File Number(s): 07/21/0230 Judgment 1. McCLELLAN CJ at CL The applicant was originally indicted for the manslaughter of his girlfriend Amanda Harb. He pleaded not guilty. A trial was listed to commence on 31 March 2008 but the Director of Public Prosecutions determined to withdraw the indictment. He was then indicted on two counts pursuant to s 86 of the Crimes Act 1900. The indictment read as follows: "1. Between 21 December, 2004 and 25 December, 2004 at Rydalmere in the State of New South Wales detained Amanda Harb without her consent and with intent to obtain an advantage namely to avoid criminal prosecution. 2. On 24 December, 2004 at Rydalmere in the State of New South Wales took Amanda Harb without her consent and with intent to obtain an advantage namely to avoid criminal prosecution." 1. On 21 April 2008 the date set for the trial of that indictment an application was made by the defence for a permanent stay of the proceedings. The principal ground of the application was that there was no evidence capable of constituting the essential element of "detaining", or in relation to the second count "taking" and that accordingly the proceedings were doomed to fail. 2. The motion was heard over a number of days following which the trial judge refused the application. The Director of Public Prosecutions has now directed that the proceedings in relation to the second count be discontinued. Accordingly, this application is only concerned with the first count in the indictment. 3. The applicant seeks leave to appeal against the primary judge's decision pursuant to s 5F of the Criminal Appeal Act 1912 and submitted that the proceedings should be permanently stayed as an abuse of process (see Marchione v R [2002] NSWCCA 131; (2002) 128 A Grim R 574 at 577). For reasons which I set out below in my opinion leave to appeal should be allowed, but the appeal dismissed. 4. Section 86 of the Crimes Act provides for the offence of kidnapping expressed in the following terms: "Kidnapping (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 yea rs." 1. Subsection (7) provides a definition of detaining. lt is in the following terms: "Detaining a person includes causing the person to remain where he or she is. n 1. The Crown case is that Ms Harb was detained by the applicant within the meaning of s 86. The advantage which it is alleged the applicant sought was the avoidance of the authorities becoming aware of his illegal drug use. The applicant argued that he had not caused Ms Harb to remain where she was within the meaning of the section. He accepted that if the court found to the contrary he had sought the identified advantage . The facts 1. The Crown case was incorporated in a statement of facts tendered to the primary judge. It may be summarised as follows: (a) The applicant had been living with Ms Harb as her de facto partner for approximately one year. The relationship was turbulent and involved heated arguments, drug use and violence. (b) On the evening of 22 December 2004 both the applicant and Ms Harb ingested methylamphetamine. Ms Harb became unwell and went into her bedroom where she collapsed. She was later diagnosed as having had a cerebral haemorrhage. After her collapse the applicant placed her on the bed. She thereafter remained unconscious until she died. (c) The applicant did not take Ms Harb to a hospital or call for any medical or other assistance. (d) Over the two day period the applicant told Ms Harb's 7 year old son that his mother had gone shopping. The applicant prevented the son from entering the bedroom by locking the bedroom door from the inside. (e) The applicant locked the door from the inside by turning the locking mechanism to prevent the door being opened from the outside of the room and on occasions "barricading" it by placing a knife blade between the door and the door jam, to prevent the door from being opened from the outside. (f) The applicant made attempts to care for Ms Harb himself. He attempted to have her drink small amounts of water. (g) On at least one occasion during the period Ms Harb's son was able to see from outside the house through the bedroom window to his mother who was lying on the floor of the room unconscious. He did not tell anyone about what he observed although he apparently telephoned friends and/or relatives. On each occasion he made a telephone call he only succeeded in connecting with an answering machine. He did not leave any messages. (h) At some stage during the two day period Ms Harb's son was locked out of the house entirely. On at least one occasion he was locked out overnight. Being locked out he was prevented from gaining access to his mother. (i) At some stage the applicant removed the home telephone handset and took it into Ms Harb's bedroom. The Crown alleges that this was done in order to prevent Ms Harb's son from making calls to her. (j) On at least two occasions over the course of the relevant period the applicant secured and left the house returning at some time later. (k) After more than two days, sometime between 10.30 and 11.30 am on 24 December 2004 the applicant removed Ms Harb from her bedroom and placed her in her car and drove off. (I) Although it was only about a 20 minute drive to Westmead Hospital, the applicant did not bring Ms Harb to the emergency department of the hospital until approximately 2.30 pm. Ms Harb died from an inoperable cerebral haemorrhage. (m) In his interviews with the police the applicant gave a number of reasons why he did not take Ms Harb to hospital at an earlier time. These reasons included that he had hoped she would wake up. However, the Crown alleges that his principal reason was that he did not wish to get into trouble and be charged with a criminal offence associated with the ingestion of drugs. The reasons of the trial judge 1. The issue before the trial judge was confined to whether or not there was any evidence of "detaining" in the relevant sense. It was submitted that although an unconscious person may in certain circumstances be detained, the trial judge erred by failing to appreciate that, as a matter of law, any such detention must constitute a restraint upon, or interference with, that person's liberty. lt was submitted that because Ms Harb was unconscious she was not only incapable of consenting to anything but was also incapable of willing or wanting anything, requesting anything, hearing anything, talking to anyone, having her will overborne, or going anywhere else herself. 2. When ruling in favour of the Crown's submission the trial judge said that: "The detaining of another can be practically achieved by many different means as can be gleaned from the cases and a little lateral thinking. The Court agrees with the Crown submission that there are a number of ways that the Crown can potentially establish a detention in this case. For instance, while the Crown did not raise it, it is clear the bedroom door was barricaded from the inside when young lzaak looked through the window. The barricading of the door, even from the inside, is well and truly capable of detaining a person who is not physically capable of removing such barricade. In relation to the Crown's first submission, the Court has concluded that if the evidence is capable of proving that an accused has taken steps to circumvent the only means another person has of leaving a particular location, then that is capable of amounting to a detention or the detaining of that other person. The only way an unconscious person can leave their resting place is with the assistance of others. In this case there is evidence of acts of both omission and commission that effectively meant that the deceased was detained in the bedroom." Consideration 1. The law accepts that it is possible to commit an offence of detaining a person even if that person is unconscious. In Meering v Grahame-White Aviation Go Ltd (1919) 122 LT 44 Atkin LJ stated that a person could be imprisoned although unaware of his or her imprisonment. He said (at 53- 54): "I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic." 1. This passage has been cited with approval on a number of occasions (see JCS v R, JMS v R, R v JCS, R v JMS [2006] NSWCCA 221; (2006) 164 A Crim R 1; Myer Stores Ltd v Soo [1991] 2 VR 597; McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors [2007] VSCA 289; R v Awang [2004] QCA 152; Zenaida Go v The Queen [1990] NTSC 40; (1990) 73 NTR 1; (1990) 102 FLR 299. 2. The applicant accepts that the statutory offence provided by s 86 may be committed although the "detaining" is of an unconscious person (see also Davis v R [2006] NSWCCA 392). However, it was submitted that before there can be an unlawful detention the Crown must prove that there has been an interference with a person's liberty: see Davis at [56]. 3. Section 86 was introduced into the Act in 2001. It effectively replaced the former s 90A. The legislative history is discussed in Davis. The section must be construed by reference to the definition of detaining in s 86(7). That definition extends the reach of the section so that any action or lack of action which causes a person to remain where he or she is may constitute an offence. 4. The trial judge emphasised that the only way an unconscious person can leave their resting place is with the assistance of others. Accordingly a restraint upon those who might provide assistance may be a restraint within the meaning of the section. It was submitted that reasoning in this way his Honour erred. It was submitted that the critical element of the offence was the restraint of the person rather than a restraint upon the capacity of others to remove that person from any particular place. The applicant submitted that because he locked the door from the inside, thereby ensuring that another person could not enter the room, no offence had been committed. lt was submitted that only if the door had been locked from the outside, so that if she had recovered consciousness Ms Harb could not leave the room would there be an offence. The applicant emphasised that his intention was not to stop Ms Harb from leaving the room. Indeed, he hoped she would recover and be able to leave. His intention was confined to precluding others from entering the room. 5. The applicant submitted that the primary judge erred by conflating two different concepts: the duty of care in criminal negligence and kidnapping. The submission was directed to the following passage from his Honour's reasons: "If a person assumes the duty of care, keeps a person secreted away from the public and friends alike, omits to obtain medical assistance and proactively prevents others from rendering aid then that conduct is capable of amounting to a detention for the purposes of s 86 of the Crimes Act 1900." 1. lt was accepted that as a matter of law secluding a person who needs medical attention may give rise to a duty of care to provide competent medical attention. A breach of that duty may, in some circumstances, amount to criminal negligence: R v Taktak (1988) 14 NSWLR 226. However, it was submitted that there is no connection in law or logic between the concepts of wrongful detention by interfering with a person's liberty and negligence by breach of a duty of care. 2. In part the applicant's submission is correct. A breach of any common law duty to provide care may not of itself constitute an offence. However, when that breach is constituted in whole or in part by secluding the person so that others cannot have access to render assistance other considerations are relevant. The Crown argued that the secluding of the person, irrespective of whether a duty of care has been breached, may constitute a breach of s 86. 3. Section 86(7) provides an extended meaning of detention. An offence will be committed if a person detains another but also if a person causes another to remain where they are. Whether a person has caused that to happen is a question of fact to be determined by the jury. However, it seems to me that the offence may be committed where a person acts so as to preclude others from accessing a prospective victim intending to assist them to go to a different location. 4. Causation has proved a difficult concept in many cases. However, in relation to s 86 it is apparent that the Parliament intended that an offence will be committed where the action or lack of action of an accused has the consequence that a person remains where he or she is. If that person was by reason of their state of health or physical circumstances dependent on another to be able to leave their present location and the accused by his or her actions ensures that the other person cannot bring assistance the offence may be committed. 5. lt is possible to think of many examples. A person in good health may be alone on an island from which the only means of escape was by boat. The taking of the only available boat could be the cause of that person having to remain where they were. There may be a telephone line to the island, which was the only means of gaining assistance, but another person cuts it. In either case, the offence could be committed. A person confined to a wheelchair may be relevantly detained if transport assistance was, with the relevant intention, denied to them and they were confined to their home. 6. In the present case the Crown proposes to bring evidence that the applicant took steps to ensure that Ms Harb's 7 year old son could not have access to her. As I understand it will be submitted that not only was he denied access but that the possibility of her being discovered was confined by removing the telephone from the general household where it could be utilised to make calls or receive them. It will be submitted to the jury that by these actions the applicant ensured that no person would become aware of Ms Harb's condition and come to her aid. It was by these means that the applicant caused Ms Harb to remain where she was. 23 lt is not for this Court to assess the ultimate strength of the Crown case. 7. That is firstly a matter for the trial judge to consider in the event of a submission that there is no case to answer. If the case is permitted to go to the jury it will be for the jury to determine whether it is satisfied to the relevant standard. The only question before this Court is whether the offence could be committed in circumstances where the Crown asserts that an accused person's actions have deprived another person of assistance which may have enabled their removal from their present location. 8. In my judgment an offence against s 86 can be committed by a person denying access by third persons to another person in circumstances where the other person was incapable of helping themselves. The Crown must prove that the denial of access was such that it caused the other person to remain where they were. If, as in the present case the other person is unconscious and in need of urgent medical care a jury could conclude that, by denying access by the son or any other person, the applicant caused Ms Harb to remain in the bedroom when she would otherwise have been removed. However, whether the offence is proved is a matter for the jury. 9. In the present case I am satisfied that leave should be granted. However, for the reasons given above in my judgment the appeal should be dismissed. 10. HOEBEN J: I agree with McClellan CJ at CL and the order which he proposes. 11. HARRISON J: I agree w1th McClellan CJ at CL. ********** Amendments 25 April 2020 - Publication restriction removed – judgment published. 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: 25 April 2020