Davis v R

Case [2006] NSWCCA 392

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

  1. BASTEN JA:  The appeal should be dismissed for the reasons given by Howie J, with which I agree.

  2. WHEALY J:  I agree with the order proposed by Howie J and with his reasons.

  3. 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…

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Details
AGLC
Davis v R [2006] NSWCCA 392
Case
[2006] NSWCCA 392
Decision Date

CaseChat Overview and Summary

The case of Davis v R involved the appellant, who was convicted of kidnapping and indecent assault. The dispute arose from an incident where the appellant forced the complainant into his vehicle and drove her to various locations, during which he assaulted her. The appellant was acquitted of stealing money from the complainant, and the appeal focused on the kidnapping and indecent assault charges. The primary legal issue was whether the act of "taking or detaining" someone created two separate offences under the Crimes Act, and whether the indictment's refusal to admit evidence from a doctor's report constituted a miscarriage of justice. Additionally, the appellant argued that the indictment may have given rise to double jeopardy or amounted to an abuse of process.

The court examined the statutory language and the historical context of the kidnapping offence to determine if "take or detain" constituted two separate offences. The court also considered the complainant's testimony and the appellant's denial of physical assault, assessing the credibility of both accounts. The court determined that "take or detain" did not create two separate offences but rather formed a continuum of a single act of kidnapping. The court further held that the exclusion of the doctor's report did not result in a miscarriage of justice, as the report did not significantly alter the outcome of the trial. The court also found that the indictment did not give rise to double jeopardy or an abuse of process.

The appeal was dismissed, and the convictions for kidnapping and indecent assault were upheld. The court did not consider an application to appeal against the sentence, as none was made. The reasoning and outcome of the court were based on a thorough analysis of the statutory language, the evidence presented, and the legal principles involved in the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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