Harkins v The Queen - [2015] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harkins v R [2015] NSWCCA 263
Hearing dates: 19 August 2015
Decision date: 29 September 2015
Before: Macfarlan JA at [1],
R A Hulme J at [48],
Wilson J at [49]
Decision:
(1) Refuse leave to appeal in respect of Ground One.
(2) Dismiss the appellant’s application for leave to appeal and appeal.

Catchwords:
CRIMINAL LAW – appeal – conviction – appellant drove car whilst held by police officers in attempt to evade apprehension – officers standing outside car – no intention to harm officers – whether use of car as an offensive instrument with intent to prevent or hinder lawful apprehension under Crimes Act 1900 (NSW) s 33B(1)(a)
CRIMINAL LAW – appeal – conviction – whether intoxication relevant to issue of whether appellant intended to use vehicle as offensive instrument for the purposes of Crimes Act 1900 (NSW) s 33B(1)(a) – offence of specific intent – consideration of Crimes Act Part 11A, including s 428C
Legislation Cited: Crimes Act 1900 (NSW), ss 4, 33B, 154C, Part 11A, 428A, 428B, 428C, 428D, 428E, 428G, 428H
Criminal Appeal Act 1912 (NSW), s 6
Interpretation Act 1987 (NSW), s 34
Cases Cited: Barker v The Queen [1983] HCA 18; 153 CLR 338
Filippou v The Queen [2015] HCA 29
R v Hamilton [1993] 66 A Crim R 575
He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
Regina v Majewski [1977] AC 443
R v Grant [2002] NSWCCA 243; 55 NSWLR 80
R v Falconer [1990] HCA 49; 171 CLR 30
R v Lavender [2005] HCA 37; 222 CLR 67
R v O’Connor [1980] HCA 17; 146 CLR 64
Category: Principal judgment
Parties: Aaron Harkins (Appellant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC (Appellant)
S Boland (Appellant)
E Balodis (Respondent)
Solicitors:
Blair Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/228752
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

05 November 2014

Before:

Bennett SC DCJ

File Number(s):

2013/228752

Judgment

MACFARLAN JA: By a judgment dated 8 August 2014 a District Court judge, sitting without a jury, convicted the appellant of an offence that on 27 July 2013 in Alexandria, New South Wales, he “used an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself” (see s 33B(1)(a) of the Crimes Act 1900 (NSW)). He was acquitted of a similar charge relating to an earlier incident but pleaded guilty to, and was convicted of, an offence of driving a motor vehicle without the consent of the owner, whilst another person was in the motor vehicle (see s 154C(1)).
The appellant appeals (or in the case of the first ground, seeks leave to appeal) against the first conviction on the following grounds:

“1. The learned trial judge’s verdict on count two was unreasonable and cannot be supported having regard to the evidence.
2. His Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harkins v The Queen

Details

AGLC: Harkins v The Queen [2015] NSWCCA 263
Case: [2015] NSWCCA 263
Decision Date: 29 September 2015

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant, Harkins, for driving a car while held by police officers in an attempt to evade apprehension. The police officers were standing outside the car during the incident, and the appellant did not intend to harm them. The issue before the court was whether the use of the car as an offensive instrument with the intent to prevent or hinder lawful apprehension constituted an offence under section 33B(1)(a) of the Crimes Act 1900 (NSW).

The court had to consider whether intoxication was relevant to the issue of whether the appellant intended to use the vehicle as an offensive instrument for the purposes of section 33B(1)(a) of the Crimes Act 1900 (NSW). The court also had to consider the provisions of Part 11A of the Crimes Act, including section 428C, which deals with offences of specific intent. The court found that the appellant's intoxication was not a relevant consideration in determining whether he intended to use the vehicle as an offensive instrument. The court held that the appellant's actions were intentional and amounted to using the vehicle as an offensive instrument with the intent to prevent or hinder lawful apprehension. The court found that the appellant's actions constituted an offence under section 33B(1)(a) of the Crimes Act 1900 (NSW).

The court dismissed the appeal and upheld the conviction. The court found that the appellant's actions were intentional and amounted to using the vehicle as an offensive instrument with the intent to prevent or hinder lawful apprehension. The court held that the appellant's intoxication was not a relevant consideration in determining whether he intended to use the vehicle as an offensive instrument. The court found that the appellant's actions constituted an offence under section 33B(1)(a) of the Crimes Act 1900 (NSW). The court dismissed the appeal and upheld the conviction.

Orders