Davis v R

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Davis v Regina [2006] NSWCCA 392

FILE NUMBER(S):
2006/1473

HEARING DATE(S): 24/08/2006

DECISION DATE: 11/12/2006

PARTIES:
Troy Colin Davis v Regina

JUDGMENT OF: Basten JA Whealy J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0125

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
J. Dwyer - Crown
D. Patch - Appellant

SOLICITORS:
S. Kavanagh - Crown
John North - Appellant

CATCHWORDS:
Criminal Law - Offences - Crimes Act s 86 - Kidnapping - history of the offence - whether "take or detain" creates two offences - refusal to admit evidence of doctor's report - whether miscarriage - whether indictment gave rise to double jepoardy or otherwise an abuse of process.

LEGISLATION CITED:
Crimes Act 1900 - ss 33, 59(1), 85A, 86, 89, 90A, 157A
Criminal Procedure Act 1986 - s 16(1)
Habeus Corpus Act 1679 - s 11
Criminal Law Amendment Act 1883 (NSW) - ss 45, 46, 48
Offences Against the Person Act 1861 (Imp) - ss 24, 25
Crimes Act 1958 (Vic) - s 63A
Crimes (Amendment) Act - No. 70 of 1961
Crimes Amendment (Gang and Vehicle Related Offences) Act - Act 84 of 2001
Criminal Legislation Amendment Act - Act 117 of 2001
Evidence Act 1995 - s 177

DECISION:
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1473
BASTEN JA
WHEALY J
HOWIE J
MONDAY 11 DECEMBER 2006

Troy Colin DAVIS v REGINA

Judgment

BASTEN JA: The appeal should be dismissed for the reasons given by Howie J, with which I agree.
WHEALY J: I agree with the order proposed by Howie J and with his reasons.
HOWIE J: The appellant was arraigned before a jury on an indictment containing five counts all arising from an incident between himself and the complainant occurring on 15 November 2003. After trial he was convicted by the jury of three counts and acquitted on two. The three counts upon which the appellant was convicted were as follows:
Count 1:That he on 15 November 2003 at Parramatta in the State of New South Wales took [the complainant] without her consent with intent to obtain advantage namely to have her company and at the time of the taking occasioned to her actual bodily harm.
Count 2:Further that he on 15 November 2003 at Parramatta in the State of New South Wales without the consent of [the complainant] the owner of a motor vehicle namely a Hyundai Excel took and drove it when [the complainant] was in the vehicle.
Count 5:Further that he on 15 November 2003 at Londonderry in the State of New South Wales did assault [the complainant] thereby occasioning to her actual bodily harm.
Count 1 charged an offence contrary to s 86(2) of the Crimes Act 1900 and can be referred to as the aggravated kidnapping offence. Count 3 alleged an offence contrary to s 59(1) of that Act and can be referred to as the assault charge. Count 2 alleged an offence contrary to 157A of the Act and can be disregarded in consideration of the issues raised on the appeal.
The other two counts in the indictment alleged that on the same date the appellant indecently assaulted the complainant and that he stole money from her person. The fact that the appellant was acquitted of these two charges does not give rise to any issue on this appeal and they can be disregarded. The grounds of appeal raise questions about the convictions on counts 1 and 5 only and there is no application to appeal against sentence.
The evidence
The facts relied upon by the Crown can be very briefly stated. The complainant and the appellant had been in a relationship that had ended in May 2003. In September of that year the complainant obtained an apprehended violence order against the appellant because she had received threatening phone calls from him and there had been an altercation with him on 15 September. The complainant had recorded one of the threatening phone calls.
On 15 November 2003 the complainant drove her motor vehicle to the car park of the Parramatta Swimming Pool where she was employed. Before she could leave her vehicle, the appellant forced her into the passenger seat and said that she was coming with him. He told her that there was no one to protect her. The complainant moved into the rear of the vehicle as she was scared.
The appellant drove the vehicle from the car park and as he did so he constantly reached into the rear of the vehicle in an attempt to strike the complainant to force her to lie down on the seat. He told her that he was going to take her to Mt Druitt where she would be raped. He said that she was his and no one could protect her. He warned her that he could kill her if he wanted to. The appellant drove to a park at Emu Plains where they both left the vehicle because she wanted to have a drink of water. She made no attempt to get away from the appellant because she believed he would have caught her and she feared for her safety.
After driving to a petrol station where he used the complainant’s money to buy petrol and other items, the appellant drove to Londonderry and down a dirt track. Eventually he parked and joined the complainant in the back of the vehicle. He told her that he wanted to have sex with her and touched her on the groin area. When the complainant said she did not want to have sex with him, the appellant became very angry. He grabbed her by the hair and hit her head against the side of the vehicle. The complainant then kicked the appellant who fell back into the front of the vehicle. He responded by head butting her to the right side of her cheek, called her a slut and spat in her face.
The appellant then drove back to Parramatta where, after wiping the inside and outside of the vehicle to get rid of any evidence, he left the complainant. Later that afternoon she attended a police station to complain about the appellant’s conduct and then went to the casualty section of Liverpool Hospital.
The appellant gave evidence at the trial to the effect that the complainant had accompanied him willingly. He admitted that they did have a heated argument at one stage but he did not physically assault her at any time. He said that he had gone to the car park to tell the complainant that he wanted to end their relationship and she invited him to get into the vehicle. It was she that drove them to a park, then a petrol station and finally to Emu Plains where the complainant said she felt sick and had a drink of water. Thereafter the appellant drove the vehicle to a petrol station and then towards Richmond before returning to Parramatta. He denied that there was any physical altercation between the complainant and him on this day and specifically denied hitting or head butting her. He said that when he left the complainant in Parramatta she said, “You’ll pay. I’m going to the coppers.”
There was other evidence called by the Crown and the defence but in light of the grounds of appeal argued before this Court it is unnecessary to further review the material placed before the jury. It is not contended that it was not open to the jury to find the evidence of the complainant to be honest and reliable. The complaints are of a more technical nature based upon the nature of the charges preferred against the appellant and the manner in which the trial was conducted.
The offence of kidnapping
Ground 1There was no prima facie case in respect of Count 1 in the indictment.
Ground 2There was a miscarriage of justice because the jury were misdirected as to some of the elements of Count 1 in the indictment, namely the element that the accused “took” [the complainant] and [the element] that “at the time of the taking (he) occasioned to her actual bodily harm”.
Ground 3There was a miscarriage of justice because of repeated references (in relation to count 1 in the indictment) by the trial judge in the summing up, and by the Crown, in the Crown’s opening and closing addresses to ‘detention’ rather than “took” or “taking”.
Introduction
These grounds were argued together by the appellant in written submissions as they all raise the same point, being that the offence charged related to the taking of the complainant at Parramatta and not the detention of the complainant thereafter at Londonderry and elsewhere. They can be dealt with together for the purposes of this judgment.
The first count on the indictment alleged an offence under s 86(2) of the Crimes Act 1900. Section 86 relevantly provides:
(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.
(2)   Aggravated offence
A person is guilty of an offence under this subsection if:
(a)   the person commits an offence under subsection (1) in the company of another person or persons, or
(b)   the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.
A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
…………………..
(7)    In this section:
“child” means a child under the age of 16 years.
“detaining” a person includes causing the person to remain where he or she is.
“parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.
“taking” a person includes causing the person to accompany a person and causing the person to be taken.
It will be recalled that the first count alleged in effect that the appellant at Parramatta “took” the complainant with intent to obtain an advantage and at the time of the taking occasioned actual bodily harm to her. The facts relied upon to make out this charge, as put to the jury by the trial judge, were in summary that the appellant forced the complainant into her vehicle at Parramatta then drove her to Londonderry where he assaulted her by slamming her head into the car window thus causing her actual bodily harm, a bump on her head.
The argument raised in this Court, but not at the trial, was that there was no evidence before the jury that at Parramatta during the course of taking the complainant the appellant inflicted any actual bodily harm upon her. To the contrary the evidence was that she was injured at Londonderry. Of course an error in the naming of the place where an offence was allegedly committed will usually not result in a fundamental defect in the charge. The place named in the charge is merely a particular and an erroneous particular will not usually result in the setting aside of a conviction unless the trial has been rendered unfair to the accused.
In the present case the charge could have, and perhaps should have, alleged that the offence was committed “at Parramatta and other places” or “commencing at Parramatta” in order to more accurately reflect the Crown case. The Crown was alleging that the taking of the complainant occurred at Parramatta but continued thereafter until she was returned to Parramatta. In particular the taking was on foot while the complainant and the appellant were at Londonderry where she was assaulted and actual bodily harm occasioned to her. This is how the matter was left to the jury in the summing up where her Honour stated:
…….and the fourth element [of the first count] is that at the time of the taking he occasioned to her actual bodily harm. “Occasioned” here means caused and the actual bodily harm, as I understand the Crown is alleging, during the course of this taking which took part from the time at the Parramatta Pool through until he got out of the car when they returned to Parramatta some few hours later, that during the course of those few hours, that what the Crown is relying on for the actual bodily harm is when, as [the complainant] gave evidence of, her head was slammed against the window a number of times, cause her pain and suffering, but also, as you heard from her evidence,………..,she had a lump on the back of her head.
If the only complaint was that the charge misnamed the location where the assault occurred and actual bodily harm was inflicted, the ground must fail because the misstatement, if there was one, could not have resulted in any procedural unfairness to the appellant. There is a complaint about duplicity between the fifth count and the first count based upon the alleged assaults that occurred at Londonderry and I shall deal with that ground shortly. But it was clear at the trial that the allegation was that the appellant assaulted the complainant at least once at Londonderry and this is how the defence was conducted.
However, the complaint goes further. It asserts that the charge in the first count alleged that the assault occurred while the complainant was being taken within the terms of s 86 and the taking occurred at Parramatta. Further by the time the couple reached Londonderry the taking had come to an end. At that time, so the argument ran, on the Crown case the complainant was being detained and this is a distinct and separate offence under s 86 from that charged in the first count. In other words it is argued on behalf of the appellant that s 86(2) contains two offences: an offence of aggravated taking and an offence of aggravated detention. On the facts alleged in the Crown case the actual bodily harm was inflicted while the complainant was being detained at Londonderry and not while she was being taken at Parramatta.
It is clear that the trial was conducted on the basis that the taking, although starting in Parramatta continued throughout the period that the complainant was in the company of the appellant until their return to Parramatta. In addition to the passage quoted above from the summing up the Judge, relying upon the definition of “taking” in s 86(7) instructed the jury as follows:
When I have said to you that the first element is that the accused took [the complainant], “took”, in this sense taking a person, which includes causing the person to accompany another person, in causing the person to be taken, and it is here alleged by [the complainant] that the accused caused her to accompany him by pushing her into the back seat and then driving off. That is what “took” in this sense means, as a matter of law.
No objection was taken to this part of the summing up nor was any further direction sought. However, if, as the appellant contends, the section creates two offences, one of taking and one of detaining, the failure to take the point at the trial would not be significant. As a matter of law the appellant could not be convicted of the charge averred in the first count.
Mr Patch on behalf of the appellant argues that the use of the word “or” in the phrase in s 86(1) “takes or detains” and the separate definitions given to “taking” and “detaining” in s 86(7) indicate that Parliament intended to create two separate and distinct offences when the section was inserted into the Crimes Act in 2001. He relies upon cases concerned with statutory interpretation generally and in relation to penal sections in particular. In his written submissions he quoted at length from the judgment of Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 at 571 to 574.
The Crown argues that there is a single offence created by the section that might be committed in two, possibly overlapping, ways. Although the concepts of a taking away and a detention might be different, they are not, according to the Crown, so mutually exclusive that the conduct of an offender must fall into one or other category at any particular point in time such that the offence changes according to the varying factual circumstances in which the offender and the complainant are together.
Kidnapping at common law
Although s 86 is a relatively recent provision in the Crimes Act, the offence of kidnapping is one of considerable antiquity. The stealing of a person is prohibited in the Bible in Exodus 21:16:
And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.
Kidnapping, or “plagium,” was proscribed by Roman law, and appears to have first been written down in the Fabian law of kidnappers, lex Fabia “de plagiariis”, at some time between 209 and 90 BC: see E. Lardone, “A Note on Plagium (Kidnapping in Roman Law)” (1932) 1 University of Detroit Law Journal 163 at 163. Kidnapping was originally seen as an interference with the power of the head of a household rather than as an interference with the liberty of the victim, and accordingly was dealt with as a civil matter unless the victim was the head of the household himself, in which case criminal jurisdiction was invoked: Ibid, at 167. Plagium was typically committed so that the kidnapper could profit by selling the victim into slavery, and so the sale and purchase of a kidnapped person was forbidden in addition to the act of abduction itself.
The practice of taking people against their will and selling them persisted for many centuries. In fact, the word “kidnap”, contrary to popular belief, does not refer specifically to the stealing of children, but to the forced recruitment of labour for the American colonies. Associate Professor Diamond in “Kidnapping: A Modern Definition” (1985) 13 American Journal of Criminal Law 1 at 2, footnote 5, states that:
The word is a compound of ‘nap’ (related etymologically to the word ‘nab’), meaning snatch, and ‘kid,’ which probably originally meant any indentured servant brought to the American colonies, including but not limited to children.
The first time the word appears in a reported decision is in the seventeenth century English case of R v Baily (1686) Comb 10. Nevertheless, despite its long pedigree, the common law offence of kidnapping has been said by some commentators to have “eluded meaningful definition”: Ibid at 1. O’Byrne J in the Irish Supreme Court went so far as to conclude in The People v Edge [1943] IR 115 at 141 that:
“Kidnapping” does not appear to me to be a term of legal art and, though it is a word in common use and with well-recognised meanings, it is lacking in that precision of meaning which is so essential in criminal law. I have not been satisfied by the arguments which we have heard, that there is any specific offence known as kidnapping. Ordinarily, as it seems to me, the term denotes some particular form of false imprisonment…
This, however, is not the position in England; see R v D [1984] AC 778 nor in Australia; see eg R v Field (unreported, NSWCCA, 18 August 1988) and R v Nguyen and Tran [1998] 4 VR 394, where kidnapping was recognised as an offence at common law. Nevertheless, O’Byrne J’s remarks highlight the difficulty that courts have had from time to time when attempting to define the offence.
The early commentators tended to define kidnapping as a form of aggravated false imprisonment, the aggravation being the taking of the victim out of jurisdiction. False imprisonment was itself a misdemeanour at common law, the offence being made out only on proof of imprisonment or detention even in one’s own home: H.A. Palmer and Henry Palmer, Harris’s Criminal Law 19th Ed., 1954, 293. For instance, Blackstone wrote in Commentaries on the Laws of England, Book IV, Lewis edition, 1897 at 219:
…kidnapping, being the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another, was capital by the Jewish law…So likewise, in the civil law the offence of spiriting away and stealing men and children, which was called plagium and the offenders plagiarii, was punished with death. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment and pillory. And also the Statute 11 and 12 Wm III c 7, though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad as are thus kidnapped or spirited away, by enacting that if any captain of a merchant-vessel shall (during his being abroad) force any person on shore or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months’ imprisonment.

In Volume 1 of East’s Pleas of the Crown (1803) it is said:
The most aggravated species of false imprisonment is the stealing and carrying away, or secreting of any person, sometimes called kidnapping, which is an offence at common law, punishable by fine, imprisonment, and pillory…
The forcible abduction or stealing and carrying away of any person is greatly aggravated by sending them away from their own country into another, properly called kidnapping; though the punishment at common law is no more than fine, imprisonment, and pillory.
Similarly, Russell wrote in A Treatise on Crimes and Misdemeanours, 4th Ed, Vol 1, 1865, p. 962:
The stealing and carrying away, or secreting of any person, sometimes called kidnapping, is an offence, at common law, punishable by fine and imprisonment.
The forcible abduction or stealing and carrying away of any person, by sending him from his own country into some other, or parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from his captivity, is properly called kidnapping, and is an offence of a very aggravated description. Its punishment at common law is, however, no more than fine and imprisonment; though, as has been remarked concerning it, the offence is of such primary magnitude that it might well have been substituted upon the roll of capital crimes, in the place of many others, which are there to be found.
Where the person kidnapped was taken abroad, the offence was specially punishable under the Habeus Corpus Act 1679, s 11: Designy’s Case, Sir T. Raym. 747.
In R v D [1984] AC 778 at 800-801, Lord Brandon of Oakbrook referred to a number of similar authorities and concluded:
From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken; and (4) without lawful excuse. Thirdly, until the comparatively recent abolition by statute of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by the common law as a misdemeanour only. Fourthly, despite that, kidnapping was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier days, the offence contained a further ingredient, namely that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence today. Sixthly, the offence was in former days described not merely as taking or carrying away a person, but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.
It has been stated that what distinguishes kidnapping from false imprisonment is the additional element of asportation, that is, the carrying away of the victim from a place: see eg Smith v State, Wisconsin Supreme Court, Orton J, 1885, reported in (1885) 6 Criminal Law Magazine 708. Without this element, false imprisonment and kidnapping would be entirely coextensive; see “Kidnapping and the Element of Asportation” (1962) 35 Southern California Law Review 212 at 216.
However, the asportation did not have to be very great. In R v Wellard [1978] 3 All ER 161, the appellant had convinced the female victim that he was a police officer and she walked with him to his car and got in it on this basis. At 163 Lawton LJ stated:
As Cairns LJ said in R v Reid ([1972] 2 All ER 1350 at 1353, [1973] QB 299 at 303)…the essence of the matter is the carrying from a place…All that has to be proved is the false imprisonment, the deprivation of liberty coupled with a carrying away from the place where the victim wants to be. It may be that in some circumstances the movement would not be sufficient in the estimation of the jury to amount to a carrying away. Every case has to be considered on its own facts. In this case the victim was carried away by the appellant for no less than 100 yards and put into a motor car. In our judgment, there was ample evidence that the victim was carried away from the place where she wanted to be…
Statutory offences
The common law’s emphasis on the element of asportation was a result of the historical practice of abducting people and sending them out of jurisdiction, usually as forced labour. In later times, this practice fell into disuse and kidnapping became a largely anachronistic offence. False imprisonment was considered to be an assault and could be dealt with in that way: R v Macquarie (1875) 13 SCR (NSW) 246, where a launch was cast adrift with a person on board and Hunter v Johnson (1883-84) LR 13 QBD 225, where a schoolmaster unlawfully detained a pupil for not having completed his homework. However, the criminal law’s attention became directed towards a new social evil, the asportation of particular categories of persons away from those who had their care or custody. The victims were usually children or young females who were taken away or detained for various purposes including marriage or carnal knowledge. These offences were dealt with under the general title of “abduction”.
Thus in the Criminal Law Amendment Act 1883 (NSW), the first attempt to codify and modernise the law of the State, sections 45 and 46 were concerned with offences against the person relating to the abduction of children or females. The offences replicated Imperial provisions found in 24 and 25 Vic. c.100, the Offences Against the Person Act 1861 (Imp). Unlike kidnapping at common law some of these offences were felonies. Each of these specific offences was created in terms of “whosoever…takes away or detains” the nominated category of victim with the specified intention. One example was the taking away or detention of a presumptive heiress “from motives of lucre” and with intent to marry or carnally know her: s 45. The exception was the offence of abducting a girl under the age of 16. It was in terms of “whosoever unlawfully takes or causes to be taken” the specified victim out of the possession and against the will of those with lawful custody of the child: s 48.
These offences found their way into the Crimes Act 1900 under the general heading of “Abduction” and, as in the 1883 Act, were classified as offences against the person and located immediately following provisions dealing with sexual assault offences. Although the offences were to some extent redrafted from time to time, they continued to be in terms of “takes away or detains” except for the offence of abducting a girl under sixteen which continued to use the term “takes away or causes to be taken”. This is substantially how the Act remained until 1961: there was no statutory provision for the general offence of kidnapping. It was held in R v Nguyen and Tran, above at 409, that the enactment of these specific abduction offences in Victoria did not abolish the common law offence of kidnapping in that State.
However, in more modern times it became more common that the person was abducted in order to hold the victim to ransom or for some other advantage rather than for marriage or sexual purposes. This was famously illustrated by the abduction of the son of the aviator Charles Lindbergh in 1932, which had been described as “the crime of the century: see W. L. Prosser, “The Lindbergh Case Revisited: George Waller’s ‘Kidnap’” (1961) 46 Minnesota Law Review 383 at 383. A $50,000 ransom was paid but the child was later found in a shallow grave. At the trial of the kidnapper, the prosecutor was forced to allege that the accused had burgled the child’s sleeping suit in order to make out the offence of felony murder, given that the common law offence of kidnapping was a mere misdemeanour that could not enliven the felony murder rule: State v Hauptmann 115 NJL 412, 180 A 809 (1935). This led to the introduction at a federal level of the so-called Lindbergh Law, which made it an offence punishable by death to transport over a state-line a person who has been kidnapped and held for ransom or reward. There was a proviso that a sentence of death would not be passed if the kidnapped person was released unharmed: see H. Fisher and M. McGuire, “Kidnapping and the so-called Lindbergh Law” (1934-1935) 12 New York University Law Quarterly Review 646 at 655-656.
Notwithstanding the notoriety of the Lindberg case, it was apparently thought to be such an extraordinary event that no provision was made in this State for such an offence until nearly thirty years later when s 90A was enacted. The legislative activity followed the kidnapping for ransom, and subsequent killing, of Graeme Thorne in 1960 after his parents won £100,000 in a lottery: see R v Nguyen and Tran, above at 409-410 where Kenny JA relates how the Thorne kidnapping prompted the enactment of s 63A of the Crimes Act 1958 (Vic) to supplement the common law offence. Unlike the original Lindbergh Law, which was limited to kidnappings that involved removal from one jurisdiction to another due to constitutional limitations on the power of the US federal legislature, the Victorian provision did not require an asportation. It was enough if the victim is detained with the intent to hold for ransom or advantage.
Crimes Act s 90A
In 1961 the NSW Parliament enacted s 90A of the Crimes Act, see Crimes (Amendment) Act No 70 of 1961. It was in the following form:
Whosoever leads takes or entices away or detains a person with intent to hold him for ransom or for any other advantage to any person shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.
This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.
In introducing the bill in the legislative Assembly Mr Mannix, the then Minister for Justice, relevantly said, Hansard 29 November 1961 3387:
……….For the past twenty years the basis for the penalty for kidnapping has been that it should be less than that prescribed for murder. The idea was to give an incentive to the kidnapper not to go to the next stage of murdering his victim with a view to destroying the evidence. By this bill, if the kidnap victim is returned unharmed, a fourteen year penalty may be imposed. The reason for this is self-explanatory. The definition of kidnapping is contained in proposed section 90A. I might mention for the information of the hon. members that it incorporates part of the American Lindberg Act, parts of the Victorian Act and also parts of the Queensland concept. They have been amalgamated into what the lawyers will regard as a most interesting definition.
In the Legislative Council the Hon R.R. Downing, the Attorney General, said, Hansard 30 Nov 1961 3441:
I am in no doubt that the Government is fully supported in its intention to make provision for penalties for the crime of kidnapping, and I see little purpose in canvassing the reasons that led to this decision. It is vital, however, that hon. Members have a proper appreciation of the basis on which proposed section 90A is to proceed and my remarks will accordingly be directed to that end. The proposed section is a composite product, being based in the main partly on the American Lindberg Act, partly on the New Zealand provision, and partly on the recently enacted Victorian provision.
The Attorney General then went on to discuss the terms of the section but said nothing about the actus reus of the offence, concentrating instead on the mental element of the offence, the defence and the provision relating to the reduced penalty. These are the parts of the section that were apparently derived from the other legislation that he mentioned.
It is to be noted that the section was similar in form to the then existing offence in s 91 in the use of the phrase “leads takes or entices away or detains” as the actus reus of the offence. In other words the actus reus was derived from the existing abduction offences rather than from the common law or the kidnapping provisions in other jurisdictions. It should also be noted that the section was placed between s 90, abduction of a girl under 16, and s 91, taking a child with intent to steal, and all of the offences from s 86 through to s 91B, procuring a person by drugs, were located under the general heading of “Abduction”. Eventually a wide interpretation was given to the words “for any other advantage” which had the practical effect of limiting the significance of the abduction offences: see R v Robson and Collett [1978] 1 NSWLR 73.
The manifest purpose of the modern kidnapping provisions was to provide for more serious and definite penalties than might otherwise be appropriate for an offence which at common law was a mere misdemeanour. The real evil against which the provisions were directed was not the physical removal of the victim from the jurisdiction, but the intent to hold the victim for some advantage to the offender. Accordingly, proof of a mere detention without asportation would be enough to make out the offence so long as the requisite intent could also be proved. The rationale of the statutory offence was different to that at common law where, as has been noted, the offence of kidnapping had originated in order to prevent the selling of persons into slavery in another country, a practice that, inter alia, had the consequence of depriving the King of the benefit of his subjects.
The terminology used for the statutory offence of kidnapping was that which had generally been employed for the offences of abduction, that is the offence was made out if the offender either detained or took away the victim with the necessary intention. These offences incorporated both the common law offence of kidnapping, in so far as they involved an asportation of the victim, and false imprisonment, insofar as they involved a detention without any removal of the victim. Yet, although the statutory abduction offences have existed for more than a century, it has never been suggested in any of the cases or texts which I have been able to discover that there were in fact two offences created by each of the relevant provisions: one where the victim is taken away and one where the victim is detained. This is not surprising because at common law every kidnapping involved a false imprisonment.
The decision of this Court in R v Manwaring [1983] 2 NSWLR 82 is instructive as to how the abduction offences were interpreted. That was a case concerned with s 89 of the Crimes Act, now repealed, which contained the offence of forcible abduction of a woman. It was in the following terms:
Whosoever by force takes away, or detains against her will, any female of any age, with intent to marry or carnally know her, or to cause her to be married to or carnally known by any person, shall be liable to penal servitude for fourteen years.
The question arose as to whether the provision contained two offences or only one. But the issue was not with the words “takes away or detains” but rather with the mental element of the offence, that is “with intent to marry or carnally know her or to cause her to be married to or carnally known by any person”.
The majority of the Court, Miles J with whom Street CJ agreed, held that there were two offences created by reason of the two distinct mental elements of the offence. Miles J stated at 88:
Although the Crimes Act is not a code it may be of assistance to look outside the provisions of the particular section and to the general structure of the Act in order to determine whether the particular section is intended to create more than one offence. Of those sections contained under the heading “Abduction” s 89 is the only one which is directed at the taking or detaining by force. If different types of forcible abduction had been provided for in separate sections, then it would not be difficult to conclude that Parliament intended that an offence provided for in one section should be regarded as separate and distinct from that provided for in another section. It does not necessarily follow, however, that, by bringing all forms of forcible abduction into one section, Parliament intended that one offence only was thereby to be created. There are numerous examples in the Crimes Act of single sections which penalize more than one distinct type of behaviour and thereby create multiple offences, for instance the various types of attempt to murder provided for in ss 27 to 29. The problem in the present case is whether forcible abduction with intent to marry or carnally know a female is a different “act” from forcible abduction with intent to cause a female to be married to or carnally known by any person.
It was held that a charge under s 89 of the Act alleging that “the accused did by force take a woman against her will with intent to cause her to be carnally known by him and other persons or any of them” was bad for duplicity and uncertainty. I acknowledge that the charge with which the Court was concerned alleged only that the appellants “took” the complainant, but it is clear throughout the judgment of Miles J that the words “by force takes away or detains” in the section were considered to comprise one element of each of the two offences contained in the section and described as “forceful abduction”.
Section 90A was considered by this Court in R v DMC (2002) 137 A Crim R 246. The offence arose when the appellant gained access to an apartment where his daughter was living under the protection of an apprehended violence order obtained against him. The appellant took the child away with him. The allegation in the charge of kidnapping was that he detained the child. The intention alleged was to hold the child for the appellant’s advantage. The Court held that by reason of errors in the directions to the jury the conviction had to be quashed.
In directing the jury as to the elements of the offence under s 90A the trial judge said:
The elements of the charge under that count are that the accused took or led away, detained or enticed away the victim and, secondly, the accused intended to hold the victim for ransom or to obtain advantage, either to the accused or any other person, and, thirdly, the accused did not, in good faith, claim a right to the possession of the victim.
During the course of the summing up the judge repeatedly referred to the Crown’s allegation being that the appellant “took and led the child away and detained her”. The ground of appeal was that the judge erred in directing the jury that one element of the charge was that the appellant “took or led her away, detained or enticed away the victim”.
In giving the leading judgement of this Court, Hodgson JA stated at [44]:
……….The trial judge was certainly in error in referring to the alternatives of leading or taking or enticing away, when these were not charged; but in the absence of the other deficiencies to which I have referred, I am doubtful if I would have considered this sufficiently material to justify allowing an appeal……
The appellant relies upon the decision as in some way being analogous to the argument relied upon under this ground of appeal. But if, as the appellant asserts, the section created at least two offences, one involving the taking away of the child and the other the detaining of her, it is hard to imagine that the misdirection of the judge could so easily have been passed over: the direction would have given rise to a risk of latent duplicity by in effect placing two separate offences before the jury on the one charge. The use of the word “alternatives” in the passage quoted above from the judgment of Hodgson JA tends to suggest rather that his Honour did not view the section as having created two offences but rather that the section provided alternative ways of proving the same offence.

It is true, as the appellant submits, that the word “detains” effected a change to the common law offence of kidnapping. But that is not so significant in my mind in light of the fact that the concepts of taking away and detaining had both been included in most of the statutory abduction charges that were clearly the precursor of the actus reus of s 90A and that every kidnapping involved a detention. As has been noted, the policy behind s 90A was not the prevention of the asportation of the person away from a particular place or the protection of a particular class of person, but rather the interference with the liberty of the person for the purpose of obtaining an advantage.
Crimes Act s 86
Section 90A was amended at various times until it was ultimately repealed by Act 84 of 2001, the Crimes Amendment (Gang and Vehicle Related Offences) Act which statute also inserted s 85A into the Crimes Act. This section ultimately was renumbered as s 86, the current provision dealing with the offence of kidnapping and the offence under which the appellant was charged. The relevant part of that section has been quoted above. It will be noted that the basic offence under s 86(1) is similar to s 90A although it has a different structure. The actus reus of the offence is reduced to “takes away or detains” rather than “leads, takes or entices away or detains” as it was under s 90A. It is difficult to see how the scope of the section was reduced by the omission of the words, “leads” and “entices”. It should be noted that the words “detaining” and “taking” were widened in their scope beyond that which might have been the ordinary meaning of those words as contained in s 90A. In particular “taking a person” includes “causing the person to accompany a person”.
In introducing the bill to Parliament, the Attorney General indicated that the purpose of the proposed changes to the Crimes Act was to address “gang related criminal activity” and with that purpose in mind the provisions in the bill introduced the concept of “in company” into an extended range of offences: see Hansard 17 October 2001 p 17518. He then summarised the provisions of s 90A and referred to a number of decisions relating to those provisions. None of this explanation given to the House for the need to reform the section related to the actus reus of the offence.
In summarising the purpose of the bill in relation to the offence of kidnapping the Attorney General stated:
In short the present bill reforms the law of kidnapping by introducing the concept of “in company” to the offence as an element of aggravation, by creating a three-tiered aggravation structure with higher penalties, by re-establishing the traditional onus so the prosecution must prove the matters in aggravation, by replacing the “substantial injury” test with “occasioning actual bodily harm” as an element of aggravation, and by updating the antiquated language of the offence. These reforms will assist in the prosecution of the offence by providing more certainty as to which maximum penalty applies, by providing a more commonly understood definition of “injury”, and by sending a clear message to offenders that offences committed by more than one person will be treated more seriously.
During the course of his speech the Attorney General stated:
……..Section 90A was inserted into the Crimes Act 1900 in 1961. Its structure, while unique, has proven to be confusing and uncertain. The offence, and others contained within that division of the Crimes Act, are ripe for reform. In order not to deviate from the gangs focus in the bill, the wider reforms to the division will be progressed later this session……………..
The “wider reforms” were introduced by Act 117 of 2001, the Criminal Legislation Amendment Act. Amongst other things, the Act repealed the existing abduction offences and renumbered s 85A as s 86. There were thereafter only two offences dealing with kidnapping and abduction: s 86 and s 87 (child abduction). The actus reus of s 87, like s 86, is in terms of “takes or detains”. The Attorney General explained these reforms on the basis that the abduction offences were rarely used and could be encompassed by the offence of kidnapping and sexual assault offences and further that, “…the language and concepts of the offences in the division are also antiquated and discriminatory and ought to be updated”; Hansard 30 November 2001, p 19299.
Only one offence
The history of the present offence of kidnapping in s 86 of the Crimes Act seems to confirm my initial impression that the section contains only one offence but provides that it can be committed in one of two ways so far as the actus reus of the offence is concerned: by taking or detaining the victim. As at common law, every taking will include a detention, but not every detention will involve a taking. In any event it is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. I can see no policy consideration that would warrant an interpretation of the section as giving rise to two distinct offences as the appellant asserts.
Rather a consideration of policy and practicalities would appear to me to be against such an interpretation. What seems to be implicit in the appellant’s submissions is that an act cannot simultaneously constitute a taking and a detention. In a factual scenario such as arose in the present case, the argument is that the detention does not begin until the taking is complete. Such an interpretation would unnecessarily import into s 86 the artificial and arbitrary question of when a taking ends and a detention begins. The difficulties that this question raises are well illustrated in the present case: why, for instance, should the taking be said to be complete at the time the car left the car park rather than at the time the victim (allegedly) was pushed into the car? Why single out the leaving of the car park rather than, say, the leaving of the suburb of Parramatta? Other possible points in time could be singled out ad infinitum, which illustrates the fact that there is no rational basis for distinguishing one time from another, particularly in cases where the victim is transported repeatedly from one place to another rather than simply held in one place.
If the appellant were correct, it would appear that on the Crown case he has committed a number of offences: he was guilty of taking the complainant when he pushed her into the vehicle and drove off; then guilty of detaining her thereafter while she was in the motor vehicle; then of taking her again when he caused her to accompany him out of the vehicle at the park; then a further taking when he required her to get back into the vehicle and left the park; then a detention when she was being driven in the car and so on until they returned to Parramatta. Unless all the offences committed by the offender were charged against him, a sentencing court could not take into account all of the conduct involved in the incident without breaching sentencing principles by taking into account uncharged criminal conduct.
Yet, in my opinion, it does no abuse to the natural meaning of the verb “to take” to use it to describe the whole of the appellant’s conduct. According to the Oxford Shorter English Dictionary Oxford University Press 1993 at 3208, one of the meanings of the word “take” is “cause (a person or animal) to accompany one”. To this extent the inclusive definition of the word “taking” in s 86(7) is superfluous except that it extends the meaning of the word to include “causing the person to accompany a person other than the offender”. Clearly there can be a taking without any physical contact with the victim. In R v Campbell and Brennan [1981] Qd R 516, a case relied upon by the appellant and considered below, there was no suggestion that “take” did not cover the situation where the victim was forced to accompany the offender at gunpoint.
The appellant submits that his argument is supported by the English Court of Appeal’s decision in R v Reid [1972] 2 All ER 1350, where it was held that:
We can find no reason in authority or principle why the crime should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized.
These remarks, made in the context of a discussion of the common law offence of kidnapping, do not assist the appellant. The Court was simply holding that the crime of kidnapping is complete once the victim has been detained and carried away (or taken), and, in addition, that concealment of the victim during or following the carrying away is not an element of the offence. It is the fact of the carrying away, not its duration or extent, that is important. If the victim is detained and moved just a short distance, the offence is just as complete as if the person was detained and moved a thousand miles. That is not the same thing as saying that the carrying away of the person who was taken a thousand miles ceased to be a carrying away once the person had been moved just a short distance.
The Queensland Court of Criminal Appeal made a similar point in R v Campbell and Brennan, above. The relevant offence was as follows:
Kidnapping for ransom. Any person who —
(1) With intent to extort or gain anything from or procure anything to be done or omitted to be done by any person by a demand containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with, takes or entices away, or detains, the person in respect of whom the threats are made;
is guilty of a crime which is called kidnapping for ransom.
The offence charged that the appellant took away the victim at gunpoint telling him to “get in the car and drive or else”. They both entered the vehicle and the victim drove a few streets before he was told to stop and the appellant alighted. It was submitted on behalf of the appellant that the offence was not made out because the taking away was the very act sought to be procured, driving the offender away in the motor vehicle, whereas they were separate elements of the offence. At 521-522 Demack J (Campbell and Kneipp JJ agreeing) said:
The taking, enticing away or detaining of a person is serious because it infringes upon that person’s liberty. In the light of this it becomes clear that it is the quality of infringement, rather than its duration that is significant. The ‘taking’ does not have to involve a significant time or distance. It is sufficient if the victim’s liberty has been interfered with. Similarly the detention need not be for any specific length of time, provided it involves an interference with the victim’s liberty.
In the present case I am satisfied that the evidence that Mr French was compelled to leave his front yard and to get into his motor car is sufficient to constitute a ‘taking.’ He was compelled at gunpoint to do this, and it does not seem to me to matter that the distance he walked was only a matter of metres, or that the interval of time was only seconds. He was compelled to go where he did not want to go, and in my opinion that is sufficient to constitute a ‘taking.’
Mr. Healy’s second submission was based upon the premise that the “taking” involved in this case was the period that Mr. French was in the car. He submitted that the “taking” involved the very thing that the taking, with threats, was supposed to achieve, that is transportation in the motor vehicle. In my opinion this approach places far too much emphasis upon the need for a substantial degree of time and distance in the “taking”. For my part I am satisfied that the “taking” may properly be regarded as being complete when both Brennan and Mr. French got into the car.
The appellant places great store on this decision relying upon the fact that the Minister for Justice, when introducing the bill proposing the enactment of s 90A, stated that the Queensland model had been considered together with the Victorian and Lindberg provisions. However the Attorney General told the Legislative Council that the provision was modelled on the Lindberg, Victorian and New Zealand provisions. But, as has already been noted, neither speech was concerned with explaining the actus reus of the new offence. In any event there is very little similarity between the Queensland provision and s 90A and not even the actus reus was identical. Demack J remarked that the provisions in the three states, Queensland, Victoria and New South Wales, were “quite different”.
Neither Reid nor Campbell supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been “taken”, in the sense that he or she has been compelled to go where he or she did not want to go, the “taking” continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.
In my opinion the words “takes or detains” do not create two offences but merely provide for two ways of committing the offence in s 86. This is how the abduction offences were considered upon which the original section, s 90A, was modelled and it is the only practical and logical way of considering the conduct at which the section is directed. Such an interpretation does not deprive the word “detention” of any work to do, because clearly there can be a detention without a taking and yet there will be in such a case an interference with the victim’s liberty.
In the present case the “taking” alleged in the first count commenced at Parramatta and continued until the appellant and the complainant returned to the car park at Parramatta. That is how the matter was placed before the jury by the trial judge and without objection from the defence. Therefore, the actual bodily harm inflicted upon the complainant at Londonderry was occasioned during the course of the taking. It did not matter that the charge alleged that it occurred at Parramatta because, if this was a defect in the charge, it did not occasion the slightest unfairness to the appellant in the conduct of his defence.
Because in my view there is only one offence created by the words “takes or detains”, a single offence of kidnapping can include both a taking and a detention. In the present case there was no distinction between a taking and a detention to describe the offence once the complainant had been driven from the parking lot at Parramatta Pool. It did not, in my opinion, matter how the circumstances thereafter were described by the prosecutor or the Judge provided that the jury understood that what was alleged was a single act of the accused in depriving the complainant of her liberty from the time they left Parramatta until their return. In the circumstances of this case and on the issues as placed before the jury it is mere pedantry to complain of the use of the term “detention” rather than a “taking” to describe the position of the complainant vis a vis the appellant. No such complaint was made at the trial because the use of the two terms interchangeably at various times could not have affected the legal or factual questions before the jury. The only issue so far as the basic offence of kidnapping was concerned was whether the complainant was voluntarily in the company of the appellant or not. The use of the term “taken” or “detained” aptly describes the Crown’s contention that she was not.
I can see nothing that was confusing, or even potentially confusing, in the summing up. As was noted above, the jury were instructed as to the meaning of “took” in accordance with s 86(7) and directed that the taking, according to the Crown case, took place over the period from when they left the pool until they returned there. Defence counsel raised a complaint about a direction in relation to the indecent assault count but said nothing about the kidnapping count. In explaining the alternative count the Judge did refer to the jury returning a verdict of “kidnapping or detaining, taking simpliciter without the extra element of causing actual bodily harm”. I see no error or cause for confusion in that direction because in this case kidnapping was made out on the basis of a taking or a detention.
In any event the day after the jury retired to deliberate they made a request to be reminded of the evidence concerning the events at the pool on the first occasion that the appellant and the complainant were there and wished to be directed again on the offence in count 1 and the statutory alternative under s 86(4). The relevant part of the evidence was replayed to the jury and then her Honour gave them further directions in simple terms as to the elements of the aggravated offence in terms of a “taking”. Her Honour also directed that, if they were not satisfied as to the last element, being the infliction of actual bodily harm, but were satisfied of the first three elements, “that is that the accused took [the complainant] without her consent and the accused did this with the intention of obtaining an advantage, namely to have her company”, they could convict of the alternative count.
Nor did the fact that the prosecutor from time to time referred to the detention of the complainant have the capacity or potentiality to confuse or mislead the jury. There was no issue as to whether the conduct of the appellant gave rise to a taking as opposed to a detention or vice versa. Defence counsel also used both terms during the course of his address. The issue was whether the complainant went with the appellant and remained with him willingly or without her consent. It was neither the defence nor the Crown case that the complainant was taken involuntarily from the car park at Parramatta but later withdrew her objections, either explicitly or implicitly, and willingly remained with the appellant.
Before summing up the Judge noted that both counsel had been using “take” and “detain” during their addresses but stated that she would direct the jury in relation to the term used in the charge. As has been noted, the Judge made it clear that the taking without the complainant’s consent as alleged by the Crown covered the whole period that the complainant and the appellant were together.
In this case it did not matter that the Crown referred to the situation in Londonderry as “a detention” or that the appellant “detained” her there or anywhere else. Defence counsel made no complaint about the prosecutor’s address nor did he ask the trial judge to remedy anything said during it. That is because it was a matter of complete indifference to the defence whether the conduct was described as a taking or a detention or both.
In any event, so far as complaint is made about the directions in the summing up, this is a classic case for the application of rule 4 as any error could not have led to a miscarriage of justice. The first three grounds should be rejected.
The infliction of injuries
Ground 4There was a miscarriage of justice because there was a contradiction between the place at which actual bodily harm was alleged to have been occasioned in Count 1 (Parramatta) and the place at which the same actual bodily harm was alleged to have been occasioned in Count 5 (Londonderry) and the jury in [the exercise of] their fact-finding role, were given an impossible task to resolve that contradiction.

This ground involves a complaint about the first and fifth counts on the basis that there was only one assault alleged by the complainant at Londonderry and, therefore, only one act that occasioned actual bodily harm, so that the two counts were contradictory in that they alleged the same act as occurring at different places. It should be noted that the first count in the indictment did not allege an assault but only that actual bodily harm was occasioned to the complainant during the taking. It is not necessary to make out that offence that the accused occasioned the actual bodily harm. It is enough that actual bodily harm was occasioned to the complainant at the relevant time proximate to the taking or detention.
The evidence of the complainant was that, when they were at the park in Londonderry and she was sitting in the back of her vehicle, the appellant touched her in the area of her groin. This was the act alleged to have been the indecent assault in the fourth count of the indictment and in respect of which the appellant was acquitted. The evidence went on as follows:
A.           As his right hand was touching me on the groin as I showed before, I was twisting my body like away from Troy [the appellant] pressing against the left hand side of my car back, so I was like squashed and twisting.
Q.           And then what happened?
A.           He was pressing more firmly and firmly against my body and with my left hand I hit him a couple of times, I think twice, in the side of the face.
Q.           Why did you do that?
A.           Because it’s not respect and I didn’t like what was happening to me at the time.
Q.           After you hit him there what happened?
A.           Troy got really, really angry and he grabbed my hair with his left hand and smashed my head against the side window which is only a triangle shaped window in the back seat of my car a couple of times, which made me feel dizzy and yeah, not all there.
Q.           What did you then do?
A.           Then I just sat back and made Troy angry and I kicked him, I kicked him and he fell like back into the front seat of the car, kind of thing.
Q.           Whereabouts did you kick him?
A.           Maybe from the chest bit, chest down. I kicked him and this made him really agro and really, really angry at the time and then he came towards me with his hands, and I put my hands up to defend myself from him pulling or grabbing my hair again, and as he had my hands, he came towards my body and he head butted the right side of my cheek with his head.
Q.           How did that feel?
A.           Bad, it hurt, I was crying, I was in shock.
There were further incidents between the two including an allegation that the appellant spat at her but no other assault before they left the park.
The complainant was asked about what happened after they had returned to Parramatta and the appellant left her. She said that she went to Parramatta Police Station and spoke to police. Then the following questions and answers occurred:
Q.           How did you feel?
A.           I was in shock because I was in pain from my head and my face injuries.
Q.           You just then made reference to face injuries, what injuries were there to your face?
A.           Just when he had banged me on the cheekbone, I had a swollen cheekbone just under my eye and it was just throbbing and it was just very sore to touch and my left hand side of the head from where it was smashed on the side of the window.
Q.           What about the left side of your head?
A.           When Troy smashed – when Troy had my hair and hitting it on the left hand side of my car in the back seat.
During the course of her cross-examination the complainant was asked about whether she had any injury resulting from the appellant head-butting her. The complainant said that she had a swelling under her right eye that remained for couple of days. There was evidence from police and a friend of the complainant that she had a swelling to her face even though the doctor who examined her apparently observed no such injury. The same friend also gave evidence that the complainant had a lump to the back of her head.
The prosecutor in her closing address said in respect of the first count, the aggravated kidnapping:
The last aspect of that charge is that the accused occasioned actual bodily harm to [the complainant]. It is the Crown case that while he detained her that the accused bashed her head against the side window of the car, remember she was sitting in the back seat around the time of the indecent assault. He did that a few times and he also head butted her in the face. As a result of those actions she had swelling, the redness down her right cheek and she had the lump on the back of her head. That’s the first count.
In respect of the fifth count, the assault occasioning actual bodily harm, the prosecutor stated:
Finally we’ve got the last charge on the indictment, the assault occasioning actual bodily harm. The two elements there that I say the evidence proves, firstly that the accused assaulted [the complainant]. Well, the evidence is that it is around the time of this indecent touching on the groin area. He began moving his body closer to her. She punched him in the face and he became angry and bashed her head against the side of the car, the window area. That was three or four times and as he was doing it she was kicking out with her legs at him. And then he became more angry and he moved forward and he head butted her in the face in the right cheekbone area. And it is that head butt that the Crown relies on as the assault for this charge.
The Crown the went on to speak about the injuries as actual bodily harm in terms of the complainant having pain and dizziness and the swelling to her right cheek.
Defence counsel raised a number of matters of complaint about the prosecutor’s address but said nothing about the issue of what assaults or what injuries were relied upon for each of the two counts. Of course it was the defence case that there were no assaults and no injuries caused by him.
Before her Honour commenced summing up there was discussion between her and both counsel as to matters to which she would refer in the summing up. During the course of this exchange the trial judge raised with the Crown the issue of what assault was relied upon for what charge. The transcript is as follows:
……..Ms Crown….you made it clear in your address the actual bodily harm that you’re referring to in the fifth charge was the act or the assault which you are alleging is the head butting -
CROWN PROSECUTOR:    Causing the swelling on the
HER HONOUR:    - -which went to the cheekbone.
CROWN PROSECUTOR:    Yes your Honour.
HER HONOUR:    The other in the first charge, the actual bodily harm, what are you referring to then?
CROWN PROSECUTOR:    The bashing of the head against the window that caused the lump on the head. I referred also in my closing to, there was also the injury in the face that was caused while she had been taken.
The Judge clearly directed the jury that, so far as the first count was concerned, the infliction of actual bodily harm being relied upon was that the complainant said her “head was slammed against the window a number of times, causing her pain and suffering”. The Judge referred to the evidence of the complainant and her friend that she had a lump to the back of her head and told the jury that this was what the Crown was relying upon as the actual bodily harm for that charge. The Judge also made it clear that so far as the fifth count was concerned the assault relied upon was the allegation that the appellant had head-butted the complainant to the face and that this caused some swelling and soreness of the right cheek bone.
In my opinion the two injuries relied upon were independently identifiable on the Crown case as were the two acts of the accused that caused them. They may have been part of the same incident and on one view could be described as a continuing assault upon the complainant. But it was a matter for the Crown to determine how the two separate injuries and the two separate acts of the appellant causing each of those injuries should be charged: Pearce v The Queen (1998) 194 CLR 610 at [30]. Unless it could be said that multiple charges arising from a single incident were oppressive or might be considered as unfair in that they were unduly prejudicial or embarrassing to the accused in his defence, it is within the discretion of the prosecutor to determine what charges should be laid. In some cases the laying of one charge to cover multiple acts of the accused may be unfair or give rise to issues of duplicity or uncertainty: Walsh v Tattersall (1996) 188 CLR 77. This and related issues were recently considered by this Court in Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373.
It is unnecessary to consider the law on this topic in any greater detail. I doubt that it would have mattered if the injuries relied upon for both charges had been the same, but it is unnecessary to determine that question. There was no objection raised at the trial and the defence was not hindered, embarrassed or compromised by the way the charges were framed. There was no possible issue of duplicity in the way that the charges were ultimately left to the jury and it does not matter in my view how the prosecutor dealt with the injuries in opening to the jury or in her final address. The judge placed the matter before the jury in a manner that cannot be criticised and ultimately the jury must have concluded that there were two separate assaults giving rise to two separate injuries.
This ground should be rejected.
Autrefois acquit
Ground 6If the Court upholds Ground 1, and enters a verdict of “Not Guilty” in respect of Count 1 in the indictment, the doctrine of “autrefois acquit” would apply, and the Court would be required to enter a verdict of “Not Guilty” to Count 5.
It is convenient to take this ground of appeal at this time. It is enough in answer to it to indicate that, whatever the ground might mean, I would not uphold the first ground of appeal and, therefore, this ground does not arise. In any event Mr Patch did not press the ground during the hearing of the appeal and sought, and was granted, leave to file fresh grounds to replace it.
The Doctor’s certificate
Ground 7There was a miscarriage of justice because the trial judge refused to allow the tender of the Expert Certificate of Dr Tran.
It is also convenient to take this ground of appeal out of order because it stands alone. Dr Tran saw the complainant after she returned to Parramatta. He gave evidence during the trial. However, at the close of the defence case, defence counsel tendered the Doctor’s report, which was MFI 10. The Crown objected to the tender and the Judge refused to admit it on the basis that the doctor had given evidence and had been cross-examined.
Dr Tran gave evidence that he was the resident medical officer at the Liverpool Hospital emergency department on 15 December 2003 when the complainant attended. He used his medical records in order to prepare a statement from which he refreshed his memory when giving evidence. The complainant reported that she had lost consciousness when her head was knocked against a car door. She complained of mild headache and some vomiting. The doctor found on examination that she was tender to the left parietal region of her head. He explained that this mean the left side above the ear. There was a CT scan carried out but the findings were normal. Dr Tran diagnosed a closed head injury. She was observed over a period and given Panadol before discharge.
The doctor was cross-examined including as to the following matters:
Q.           The examination that you gave [the complainant] would have involved a top to toe examination, is that correct?
A.           Yes.
Q.           And you’ve said in you report that there was, other than what you put in here, other examination was unremarkable. Does that mean that there was nothing else observed, other than what you put in your report?
A.           Yes
Q.           Obviously in a case such as this, where someone is complaining about having a blow or several blows to the head, if you had noticed any bruising to the face, for example, you would have recorded that or it would have been recorded in the notes?
A.           Yeah, we checked the head and the face quite carefully and do a proper neurological examination.
Q.           So you said you checked the head and the face quite carefully, is that right?
A.           Yeah, usually, yep.
Q.           So you haven’t recorded any swelling or puffiness to the face? So does that mean you would not have observed any during the examination?
A.           Yes.
Q.           If there had been red marks on the face would you have included that in the report?
A.           I would.
In re-examination he was asked:
Q.           You were asked about injuries to the face and whether there were any on this person, in the history that you took from this patient did she say anything about being head butted?
A.           I can’t recall that, yeah.
The Judge referred to the evidence of the doctor shortly during the summing up in which she stated:
In cross-examination he was asked about any observations of – if he had observed anything on her face such as swelling and puffiness that he would have recorded. There was nothing in his notes it would seem, he certainly gave no evidence of it in any event that he had observed anything of that nature that the other people have spoken of her brother, the police officer and Mr Strudwick, all of whom saw her that afternoon, each remarked upon what they observed……………I gather that [defence counsel] is really saying that nothing of the nature of the evidence that has been given was present on her face………..
No further direction or comment was sought on this evidence.
Mr Patch was unable at the hearing of the appeal to nominate the basis upon which the doctor’s statement was admissible. Defence counsel at the trial did not indicate the basis of the tender other than to state that it might assist the jury. It may have been admissible under s 177 of the Evidence Act as an expert certificate if the preconditions for admissibility under that section had been met but that was not explored before this Court or before the trial judge.
However that might be and assuming it was admissible, it is impossible to see how the rejection of the statement could have caused a miscarriage of justice. From the cross-examination of the doctor the jury would have assumed that the doctor had not recorded any injury to the complainant’s face and in particular any redness or puffiness contrary to the evidence given by the three lay witnesses who had noticed such an injury. It was also evident from the re-examination that the doctor was given no account of the complainant being head-butted. The Crown in her address said nothing to the contrary. The Judge identified the relevance of the doctor’s evidence and the use made of it by defence counsel in the passage quoted above.
This ground should be rejected.
Abuse of process and double jeopardy,
Ground 5There was a miscarriage of justice because the acts alleged in count 5 in the indictment were the same as those alleged as one of the elements of count 1 in the indictment.
Ground 8There was a miscarriage of justice in respect of count 1 and count 5 because of the application of the principles of double jeopardy.
Ground 9There was a miscarriage of justice because it was an abuse of process to charge the appellant with both count 1 and count 5 in the same indictment.
Relying principally upon the decisions in Pearce v The Queen (1998) 194 CLR 610, Island Marine Limited v Filipowski (2006) 80 ALJR 1168 and Connelly v Director of Public Prosecutions [1964] AC 1254 it is argued that it was an abuse of process or a breach of the rule against double jeopardy for the Crown to proceed on both count 1 and count 5 relying upon the same act of the accused and the same injury. This is notwithstanding that it was accepted that as a matter of law the incident in the back of the motor vehicle at Londonderry could have been charged as two separate offences.
To some extent this ground and the concession made are inconsistent with ground 4 that complained that there was a contradiction between ground 1 and ground 5 in relation to where the injuries occasioned to the complainant were inflicted. However, this particular argument was developed during the hearing of the appeal and leave was granted to the appellant to add new grounds of appeal to reflect more accurately the complaint made about the existence of the two counts on the one indictment and to file further written submissions. Grounds 8 and 9 were raised during, or after, the hearing of the appeal and both parties availed themselves of the opportunity to file written submissions addressing those grounds.
As I understand the submissions, the crux of the complaint is that it was oppressive for the appellant to face both count 1 and count 5 because in effect they charged the same offence in two different ways and it was a case of the prosecution multiplying charges unnecessarily. The appellant’s written submissions quote at length from the three decisions to which I have referred without any substantial analysis of how those decisions applied to the particular factual situation and the particular charges before the Court.
For example the following submission was made:
“Separately charging the appellant with the charge in Count 5 was quite unnecessary, and unfair and exposed him to the possibility of being punished twice for the same thing”.
But there is no application for leave to appeal against sentence, and, as Pearce makes clear, the fact that the accused might be exposed to double punishment does not mean that there is an abuse of process or that a particular count in the indictment should be stayed. It was accepted in the joint judgment that there could be overlapping between offences such that there is a common element to more than one charge in an indictment. If there was, the remedy is not in staying one of the charges but in addressing the overlap in sentencing so that the accused is not doubly punished for the one criminal act or the one consequence of his conduct: Pearce at [40] and following.
In Pearce the accused was charged with a number of offences including count 9, an offence contrary to s 33 of the Crimes Act of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm, and count 10, an offence contrary to s 110 of that Act of breaking and entering a dwelling house and inflicting grievous bodily harm. In respect of both charges the victim, the act of the accused and the grievous bodily harm were identical. The Court held that the trial judge was right to refuse a stay of the proceedings generally or in respect of one or other of the charges as there was no abuse of process. In the joint judgment of McHugh, Hayne and Callinan JJ it was stated (footnotes omitted):
[30] The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
[31] There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.

Pearce was applied recently in Island Marine Limited v Filipowski, above. It is unnecessary in my opinion to spend any time in considering that decision. It was concerned chiefly with the nature of the plea in bar and the plea of autrefois acquit neither of which arise in the present case. It applied and clarified some statements made in the joint judgment in Pearce relevant to those pleas. The principle behind these pleas is, as Pearce points out, the avoidance of double jeopardy either in a technical sense arising from the elements of two charges brought against the accused or in a practical sense by looking behind the technicalities at the substantive effect of the prosecution of the two charges. On whatever basis the two charges in count 1 and count 5 are considered there is no element of double jeopardy involved: the elements of one charge were not included in the other; a determination on the facts of one count did not determine the other; and the facts relied upon to support one count were not relied upon to support the other.
As has been noted previously in this judgment, the offence on the first count required proof only that actual bodily harm was occasioned to the complainant at a time proximate to the kidnapping. There was no requirement that the harm be occasioned by the act of the appellant let alone that it be occasioned by an assault by him upon her. The actual bodily harm relied upon in the first count was not the same injury relied upon in respect of the fifth count. Therefore, the conviction or acquittal of the appellant on the first count said nothing about whether there should be an acquittal or conviction on the fifth count. The appellant was not in jeopardy of being convicted of the fifth count by the prosecution of the first count.
Similarly the fifth count did not require proof of any element, of either a legal or factual nature, to be proved in order to support the first count. The assault did not require proof of the fact that the complainant had been taken or detained by the appellant. The injury relied upon to prove that actual bodily harm was occasioned for the purposes of the fifth count was different from the aggravating factor relied upon to prove the first count. The appellant was placed in no jeopardy of conviction in respect of the first count by prosecution of the fifth count. Of course the case was conducted on the basis that the appellant would either be convicted or acquitted of both counts depending upon what the jury made of the complainant’s reliability. But the concept of double jeopardy is not concerned with such a circumstance that is common to many cases of multiple charges arising from the evidence of a single witness.
It was argued that the double jeopardy arose from the way the Crown approached the matter, The appellant relied upon the failure of the prosecutor at the stage of addresses to identify with particularity the actual bodily harm relied upon for each count. But by the time the charges were considered by the jury it was clear that the injuries relied upon for each of the counts were different and the jury’s verdict must be taken to have been based upon the directions given in the summing up, particularly as no complaint nor any request for further directions was made by defence counsel. There was, in my opinion, no miscarriage of justice arising from the way the trial was conducted: the appellant’s defence was not jeopardised and there was no risk of uncertainty or confusion on the part of the jury in light of the summing up.
Nor was it, in my opinion, an abuse of process for the prosecution to bring both charges. This is substantially for the reasons set out in the passage quoted above from Pearce. The appellant sought to distinguish that decision on the basis that in the case before the High Court a specific mental element was required for one charge but not for the other. I do not understand that decision to have been based upon the nature of the elements of each of the two counts in question but rather that the two counts required proof of different elements. I would have thought that the present case is stronger than Pearce because, unlike that case, here there was no overlap of factual elements: the injuries, the subject of the two charges, were different. Simply because the injuries arose from the same factual circumstance, in that they were proximate in time and place, did not, in my opinion, result in a prosecution that was oppressive or vexatious nor did it give rise to any sense of double jeopardy: see Pearce at [25] to [27]. It was a matter relevant to sentence but not otherwise.
In my opinion these grounds should be rejected. As none of the grounds raised are successful, the appeal should be dismissed.

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LAST UPDATED: 11/12/2006

[2006] NSWCCA 392

11 December 2006