R v Nith Chav

[2016] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	R v Nith Chav [2016] NSWDC 50
Hearing dates:	7 – 11 April
Decision date:	13 April 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdict of Guilty
Catchwords:	Use an offensive instrument within intent to prevent lawful apprehension; Judge alone trial
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 2005
Cases Cited:	Hamilton v R (1993) 66 ACrimR 575
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Nith Chav (Accused)
Representation:	Counsel: B Ingram (Crown Prosecutor) N Steel (Accused)   Solicitors:
File Number(s):	13/348188
Publication restriction:	Nil

reasons for Judgment

1. Nith Chav is charged that on 19 November 2013 at Liverpool, in the State of New South Wales, he did use an offensive instrument, namely a motor vehicle with New South Wales registration BB5-8GB, with intent to prevent the lawful apprehension of himself. The charge is brought pursuant to s 33B(1)(a) of the Crimes Act 1900. The trial was heard by Judge alone on 7, 8 and 11 April 2016, following an application for trial by Judge alone brought by the accused by Notice of Motion dated 4 April 2016. This judgment records my verdict and my reasons for reaching that verdict.

2. The elements of the offence are as follows:

1. The accused used an offensive instrument; and

2. The accused did so with the intention of preventing the lawful apprehension or detention of himself.

3. The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. The accused put forward a case in defence, but there is no onus on him in any respect. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.

4. The charge arises from the circumstances surrounding the arrest of the accused on 19 November 2013, in respect of criminal conduct committed by him the previous evening, on 18 November 2013. In respect of that conduct, the accused made certain admissions which became Ex F. They were as follows:

“Admissions by Accused

1. On 18 November 2013 at 11.40pm a Chinese restaurant in the Haymarket was robbed by two masked men acting together in company.

2. The men were Choi Tang armed with a machete and the accused Nith Chav armed with a knife.

3. The men got away with two cash register tills containing $2400 in cash, and a wallet containing $400 in cash that was taken from a customer at knife point by the accused Chav.

4. A Security guard in Dixon St got the registered number of the get-away car and gave it to police.

5. The car was a Honda sedan, BB5-8GB, registered owner Ana Gonzales of 3/12 Church St Liverpool.

6. Ms Gonzales and Chav lived together at that address as partners.

7. Police ascertained the name and address of the car’s registered owner.

8. Police went to the address and waited out of sight.

9. At 1.45am on 19 November 2013 Chav arrived home in the car, driving into the car parking area of the block of units.

10. Police lawfully attempted to apprehend Chav in the car.”

5. The accused has entered a plea of guilty to the charge of armed robbery arising from that conduct, which is to be dealt with together with one other matter listed on a Form 1, arising also from those events. It was that material which formed the basis of the accused’s application for trial by Judge Alone.

The Crown case

6. The Crown called Ms Anna Gonzales, who, in 2013, lived with the accused in a de-facto relationship at 12 Charles Street, Liverpool. Ms Gonzales is no longer in a de-facto relationship with the accused. She was the registered owner of a Honda motor vehicle registered number BB5-8GB, which was driven by both her and the accused. She also allowed friends of the accused, who she had never met, to drive the car, as long as she was not using it and she had the car back with petrol and “the way it was”.

7. On the evening of 18 November 2013, Ms Gonzales arrived home after 10pm, when she went to bed. The accused was at home, but later she woke up and he was not there. She sent him a text message because she had to work the next morning and needed to have the use of the car. She went back to bed and the next thing that occurred was that she was woken up by police who spoke to her on the unit intercom. Ex A was a copy of text message sent by her to the accused at 1.21am on 19 November 2013, that stated “I’ve got to work tomorrow morning. Don’t make me look stupid”. At 1.22am she received a message, “I’m coming home now, hon. I love you. Okay”.

8. The Crown called Leading Senior Constable Peter Heginbotham, who read from his statement dated 19 November 2013. Shortly after 12.50am, Senior Constable Peter Heginbotham positioned himself in an unmarked police car, approximately 50 metres from the driveway entrance at an address in Liverpool, which was the registered address of offending vehicle. He was with Constable Gorgees, and stayed in that location until 1.49am, when the target vehicle was seen to turn into a block of units. As it entered the driveway to those units, Senior Constable Heginbotham accelerated towards the vehicle and activated all warning lights and a short burst of the police siren. The target vehicle came to a stop at a 45 degree angle, adjacent to car garages under the block of units. Senior Constable Heginbotham and Constable Gorgees conducted an “armed and dangerous stop” on this vehicle, due to the known information that a weapon was used in the commission of the related armed robbery. The police alighted from their vehicle and drew their police issue firearms. Senior Constable Heginbotham yelled in a loud voice, “Police stop, Police stop. Turn your car off now. Turn your car off now”. This was repeated a minimum of eight times. While he was yelling that, he observed the driver, who he identified as the accused, as having his right hand on top of the steering wheel and leaning down with his left, where he appeared to be “rummaging around”.

9. Senior Constable Heginbotham directed Constable Gorgees towards the passenger side of the vehicle, around the back of it. At that point, he gave evidence that the accused put the vehicle into reverse and accelerated heavily, directly towards Constable Gorgees. He stated:

“Due to the slippery surface, the vehicle’s front tyres have begun to spin due to loss of traction.”

10. Senior Constable Heginbotham pulled out his police issue baton and struck the driver’s window a number of times while he was yelling, “Stop the car, stop the car”. He stated:

“This has caused the accused to pull heavily on the steering wheel to the left, at which point the vehicle has gone into the garage opening. I have only slightly seen Constable Gorgees being forced to jump out of the way of the accused’s person’s vehicle to avoid being struck.”

11. Senior Constable Heginbotham arrested the accused and forcibly pulled his arms and removed him through the open window on the driver’s side of the vehicle. Assisted by Constable Gorgees, Senior Constable Ogle, and Senior Constable Arnold, (who had subsequently arrived on the scene), the accused was dragged from the inside of the garage and secured on the ground.

12. Both Senior Constable Heginbotham and Constable Gorgees were in full police uniform.

13. When the target vehicle stopped, it was at a 45 degree angle to the garage. The police vehicle was stopped approximately 5 metres behind it. The siren had been activated when the vehicle was directly behind the accused. The warning lights remained on. The target vehicle remained stationary, at a 45 degree angle for “may be 45 seconds to a minute before the rest of the incident began occurring”. At the time, Senior Constable Heginbotham was shouting at the accused, telling him to turn off his car, he was no more than 5 metres away. He gave this evidence:

“Q: Where were you looking?

A: Directly at his window.

Q: Where was he looking when you were saying those words?

A: He was looking between me, looking down at the floor where his left hand was going, looking back at me. He just kept looking around.

…

A: While I was yelling this, the driver, who I now know to be the accused person, Nith Chav, had his right hand on the top of the vehicle’s steering wheel and was leaning down with his left hand and appeared to be rummaging around. Either hiding or attempting to gain hold of an item.”

14. When asked whether he could have let the accused get out of the car by himself, he said:

“A: At that point, I believed that he was either trying to get a weapon or trying to deliberately injure myself or Constable Gorgees, so I wasn’t going to let him do anything of his own free will at that point.”

15. The accused was therefore removed with force, and he resisted. When asked what was the degree of resistance, Senior Constable Heginbotham said:

“A: He was pulling his arms away, trying to get his arms towards the opposite side of him, and under his body, when he was still inside the car. Once he was removed from the car he was trying to pin his arms under his body, which again severely worried me at that point, hence, why I used a great deal of force to pull his arms behind him.”

16. Eight photographs of the car parking area and entrance to the building became Ex C.

17. Senior Constable Heginbotham gave evidence that he, on searching the accused’s vehicle, found $625.00 in cash underneath the driver’s seat of the vehicle, tucked away next to the left hand rail for that seat.

18. Annexed to Senior Constable Heginbotham’s statement were seven photographs which were tendered by consent as Ex D. Photographs D1, D2 and D6 showed some tyre tread marks on the floor surface of the carport. His evidence was:

“The rubber was laid on the concrete as the vehicle was reversing.”

19. Finally, Senior Constable Heginbotham gave evidence that the driveway to the unit block was the only entrance and only exit to that unit block.

20. In cross-examination, Senior Constable Heginbotham gave evidence that his statement was made at the end of his shift on 19 November 2013 from contemporaneous notes. It was witnessed by Constable Gorgees, as no other officer was present.

21. As he drove into the driveway behind the accused’s vehicle, Senior Constable Heginbotham saw only one garage door open. It was put to him that he could not see where the accused was “fidgeting”. He answered:

“A: Yes, I saw his left hand go towards the bottom of the seat and that’s what concerned me. I sent Constable Gorgees to cover, because if anything got pulled out, I didn’t want cross-fire with us two.

Q: Where you directed her to, next to the wall, do you mean in front of the garage doors, do you? Is that what you mean?

A: No. Photo 1, the dividing wall, cement wall next to the garage door that the accused went into, the last door that you see there before the keypad. That cement wall there, a little alcove coming out from between the two garages, that’s where I’ve sent her to as a position of cover.

Q: When she was crossing the path of where the accused’s vehicle was, it started moving backwards, starting reversing?

A: Well, she never – to my knowledge she never went behind the car. I saw her go towards the wall and that’s it, that’s when the car started to move and that’s when I acted.

Q: So you were more focussed on what the accused was doing?

A: Yes.

Q: You’ve described the wheels of the car spinning?

A: That’s correct.

Q: Because of the slippery surface?

A: No, because of the harsh acceleration.”

22. Senior Constable Heginbotham was then taken to his statement which read:

“Due to the slippery surface, the vehicle’s tyres have begun to spin due to a loss of traction.”

23. He agreed that rain had come in and wet some of the cement area in the garage area. He was asked:

“Q: It appeared to you that the tyres slip, but at that time they would have been in an area that was wet, wouldn’t they?

A: No.

Q: You gave evidence about when the car was in that 45 degree position, you were stopped there for about 45 seconds to a minute?

A: Yes, that would be my estimate.

Q: That’s your best estimate at the time?

A: Yes.

Q: It could have been shorter than that?

A: I highly doubt it, because the entire time I was screaming at the accused.”

24. Senior Constable Heginbotham denied that the car was reversing back and that it reversed into the garage that was open. He gave this evidence:

“Q: Where do you say it reversed?

A: When it was first reversing it was going directly towards Constable Gorgees, which was the garage next to it and the cement wall. If it continued on that path without deviation, it would have slammed into the wall and Constable Gorgees.

Q: When it changed direction, it then changed direction into a garage where it eventually ended up, correct?

A: Yes the distance it travelled before it came to a stop was 4-5 metres.”

25. When Senior Constable Heginbotham first observed Constable Gorgees, she was at the back of the garage, after the car came to a stop. He believed that she was actually pinned to the wall. When the vehicle came to a stop, Senior Constable Heginbotham put both hands through the window and grabbed the accused. He then dragged him through the window. He said:

“A: And at that point, it would have been too dangerous to let him go, open the door and give him an opportunity to gain access to what he was trying to gain access to.”

26. Senior Constable Heginbotham said that he needed to control the arms of the accused because if he did not, the accused could have done anything to him. He described it as “a violent resist” by the accused, but it was a matter of mere seconds before he had him on the ground. He agreed that he used fairly extreme force to get the accused out of the car and onto the ground.

27. By reference to the photographs in Ex D, Senior Constable Heginbotham identified a wet area of the carport through which the car had driven. It was put to him that the tyre tracks shown in the photographs were from a tyre that had gone through a wet, dirty area, which he denied. The tyre track was from the driver’s wheel of the target vehicle.

28. Senior Constable Heginbotham agreed that he had left out of his police statement his estimate of how long the vehicle was stationary when placed in the 45 degree angle. He disagreed that his evidence concerning that time period was a reconstruction.

29. Senior Constable Heginbotham agreed that he could not see the left hand of the accused, nor what he was doing. He described that as:

“A: No, but the hand was down to the ground, as his whole shoulder had moved down past the steering wheel.”

30. When asked why he did not move forward to the vehicle or do something more pro-active during the period of 45 seconds to one minute, he said:

“A: Well, because if he’s pulling out a weapon I’m still going to have a safe distance. He’s shooting from a car, I’m shooting from a standing position if he pulled a firearm. And they’re my thoughts.

Q: See, I suggest that perhaps the reason you didn’t approach further to the car is because you didn’t see him doing anything down to that level of the – below where the gearstick was?

A: No, incorrect. If he had both hands on the steering wheel, I would have approached the car. But his hand went underneath his seat, that put me in danger.”

31. Senior Constable Heginbotham agreed that he had not indicated in his statement that the accused was extracted from the vehicle by being pulled through the window.

32. In re-examination, Senior Constable Heginbotham identified a number of the photographs in Ex D.

33. By leave, counsel for the accused further cross-examined Senior Constable Heginbotham. He was asked:

“Q: I just want to ask you, officer, about the part where the vehicle was put into reverse and it’s reversing. It’s the situation that at that time you didn’t know where Officer Gorgees was specifically? Is that right?

A: I knew she was at the wall.

Q: So at the wall?

A: The partition between the garages.

Q: Do you know how far she was standing from that cement pillar, or that was just your belief as to where she was standing?

A: No. I don’t know how close or how far she was. I could see out of my peripheral that she was next to it, but the depth of where she was to it, I couldn’t tell you.

Q: Is the situation that the car reversing is consistent with it reversing into the garage and having to change direction to get into the garage, isn’t it?

A: No.

Q: If it hadn’t have changed direction going into the garage it would have hit the pillar?

A: Yeah.

Q: From the 45 degree angle that the car stopped, the normal way to go into a garage area would need to be some sort of correction to make it into that garage, wouldn’t it?

A: Yes.

Q: To straighten it up?

A: Yeah.

Q: What occurred is consistent with that?

A: No. The car only moved once, I hit the window.

Q: So you say the car only moved once you hit the window?

A: Changed direction.

Q: But it had to change direction at that point otherwise it would have hit the pillar, correct?

A: Yes, correct.”

34. The Crown called Leading Senior Constable Phillip Arnold, who read from his police statement dated 9 November 2015. In the company of Senior Constable Ogle, he arrived at the address and heard yelling. He then assisted Senior Constable Heginbotham to restrain the accused. Together with Senior Constable Heginbotham, he then cleared the vehicle and during a search of the vehicle, Senior Constable Heginbotham located $625.00 in cash under the driver’s seat.

35. In cross-examination, Senior Constable Arnold agreed that when he ran into the carport area, the car was already in the garage. He recalled pulling the accused from the car window, and the accused struggling to pull his hands away until they got him onto the ground. There was no re‑examination.

36. Constable Gorgees gave evidence by reading her statement, made on 19 November 2013. It corroborated the evidence of Senior Constable Heginbotham as to what occurred when the police first arrived at the premises. She described the lights on the police vehicle as “flashing lights that were blue and red in colour and they were left on during the entire incident”. She described the lights as “pretty bright, so it lit up the whole area, the underground area”.

37. Constable Gorgees gave evidence that she moved slightly to the right side of the target vehicle, while at the same time yelling in a loud voice, “Police stop, stop, police stop, turn your car off and get out of the vehicle with your hands on your head, get out of the vehicle”. She repeated that numerous times. She was standing at the rear of the target vehicle, covering the passenger side, when she saw the car reverse, and reversing directly at her. She stated:

“I saw the reverse lights come on and the car was moving backwards. I’ve then had to dive between the vehicle and the wall along the garage, to move away from the moving vehicle.”

38. Constable Gorgees then described the accused as reversing into the garage, while at the same time, Senior Constable Heginbotham was using his baton to smash the driver’s window. She came around to the driver’s side of the vehicle and assisted him in removing the accused from the vehicle.

39. Constable Gorgees gave evidence that Senior Constable Heginbotham had the driver’s side door open and she had no recollection of the accused being dragged through the broken window. She grabbed the accused by the arms and they put him on the ground and handcuffed him.

40. By reference to photograph Ex C2, Constable Gorgees marked where she was situated against the garage door. She was asked:

“Q: What do you indicate with that?

A: Okay, as I was walking around to the nearside of the vehicle, when the reverse lights came on – okay, I should have drawn the car a little bit bigger, because it was a bit closer to the garage. I ended up jumping back and ended up between the wall and the car as the car moved backwards.”

41. In cross-examination, Constable Gorgees agreed that there were similarities between her statement and that of Senior Constable Heginbotham. She said that was, “a matter of discussing just the incident that occurred beforehand, straight after the incident”. She had not been a police officer for very long before this incident. She agreed that when the vehicle was stopped at an angle of 45 degrees, it would have been a few metres from the garage. She could not remember whether the vehicle had come to a complete stop before the police vehicle stopped behind it. When Constable Gorgees and Senior Constable Heginbotham got out of the police vehicle, they were both yelling. She was directed to go to the passenger side of the vehicle to cover both angles. She confirmed that the car reversed as soon as she started walking to the other side. She said, “It just happened so quick”.

42. Constable Gorgees said that she had moved backwards and walked across the line of where the garage doors were. When the car first reversed towards her, she was towards the passenger side of the vehicle, near the back passenger tail light. When she jumped out of the way, she was against the wall of the garage on the passenger side of the vehicle. She stood there, but once she saw her partner smashing the car window, she went around the back of the car to assist him.

43. Detective Senior Constable Juliette Ross gave evidence about the armed robbery at a restaurant at Haymarket on 18 November 2013. She later attended the Liverpool Police Station and conducted the ERISP interview with the accused. She gave evidence of the exhibits which included $625.00 in cash, together with another $760 in cash located in a black backpack.

44. The DVD of the ERISP interview, Ex G, was played and admitted without objection, save for an order made pursuant to s 136 of the Evidence Act 2005 relating to the answer given to question 109 of the ERISP interview.

45. Detective Senior Constable Ross gave evidence of a number of text messages recorded on the mobile telephone of the accused. A message to his co-offender, Choi Tang, at 9.48am on 18 November 2013 read:

“I nd 550 to get my bracelets out so I can put 4 1000.”

46. Police enquiries revealed that the accused had pawned a bracelet on 8 November 2013, which was engraved with his name and that of his children.

47. The transcript of the ERISP interview became Ex H. That document contained relevantly the following:

“Q 35: Do you, do you agree that he arrested you?

A: Yeah, he arrested me when he smashed the window when I was reversing in. How can I get out if I’m reversing the car in the garage?

…

Q106: It’s alleged that just moments prior to your arrest tonight in that vehicle, BB5-8GB, that you drove it towards this police officer and his colleague intentionally?

A: Yeah, yeah, yeah. I drove to youse? I reversed into the, I reversed into my, reverse, garage. I didn’t drive straight to youse, I reversed.

…

Q107: You reversed at my colleague?

A: Yeah. I didn’t reverse at your colleagues. She was … I reversed into the garage that’s it.

Q108: Yeah?

A: Yeah.

Q109: So you, you said, you said earlier that you saw police standing there with guns pointed at you. Would you not think good time to stop, or just continue driving?

A: I did stop and then that’s, I, I was reversing back in that’s it and then youse just there, I’m surrounded, how can I go anywhere. I reverse in there and sitting … to do whatever you want to do to me, you know what I mean, yeah.

Q110: At that time, were you hearing what I was saying to you?

A: I can’t, I can’t hear anything ‘cause I’ve got the radio on. … ‘Cause I was reversing yeah.

Q111: Yeah?

A: That’s when you smashed … yeah.

Q112: Okay.

A: I’m not going nowhere, I can’t run nowhere, your cars all parked, are all parked there you know what I mean.

…

Q114: Okay. I put it to you that when you first stopped, okay, you were looking directly at me, you had your right hand on the steering wheel and with your left hand you were playing with something down near, near your left?

A: Yeah, yeah, yeah, … my clutch yeah.

Q115: No, no it was down to your left foot. You were bending all the way down.

A: Bending all down to my left foot. I’ve got nothing, you can search my car, I’ve got nothing there. I had nothing to hide.

Q116: Yeah?

A: Yeah.

Q117: Okay, I then put it to you that whilst I’m directing you stop, my colleague has walked to the side wall, the side entrance to where your garage is, okay, and when my colleague was walking there, you put it in reverse and accelerated heavily directly towards her?

A: Yeah, yeah, yeah. I reversed into the garage there you know what I mean. I didn’t hit nothing … and that’s it. …I’m reversing in. I’m not gonna reverse and hit youse are you serious. Youse are there, youse are surround me come on.”

48. At the end of the formal interview, after it had been suspended and in the presence of Detective Ross, the accused volunteered the following:

“A: Seriously Maam I wouln’t reverse the car … into the garage, how can I run when all the cars are there you know what I mean. I’m not going to reverse into a cop are you serious? …

Detective Ross: I’ll just remind you that these, these tapes are still running.

A: Yeah.

Q223: Okay?

A: I’m just letting you know that it’s like … unbelievable. Why would I do something like this and then you’d think I’d be coming back home? No way.”

Evidence of the accused

49. The accused gave evidence that he drove into the driveway of his premises and, as he did so, he hit the remote for the security door on his garage. The remote was located on his key ring, which was in the ignition. He then positioned his vehicle at an angle of 40-45 degrees to reverse it into the garage. When asked what happened after that, he said:

“A: I was in the motion of reversing into my garage, and then when I looked at my right, I seen an officer just pointing his gun out, and I was reversing in my garage, so I didn’t really have much time to notice anything, it was quick.”

50. The accused gave evidence that he only saw one police officer, the male police officer, he did not notice any flashing blue light but saw that the officer had a gun. The accused gave evidence that he did not hear the officer saying anything because he “had the music up” in his car. When he was halfway into the garage the police officer smashed his window. As he reversed, he turned to go into the garage, it was the only way. He was asked:

“Q: And did you see the female officer at the time, before you reversed or at the time you were reversing?

A: No, I didn’t see her at all.”

51. The accused was asked about Officer Heginbotham’s evidence that he was doing something with his left hand. He was asked:

“Q: Do you recall doing anything with your left hand?

A: Honestly, I think I was just putting in my reverse. Because when I’m going down, and I need to reverse, so when I’m hitting reverse and I look to my right coming into the garage. So I have no recollection, I was just holding onto the clutch, maybe, the clutch.

Q: When you say the clutch, the clutch is normally down on the ground, pedal, right?

A: The manual, no the manual stick, the gear stick, yeah.

Q: Oh okay, the gear stick you were holding onto, right. When you drove in reverse, did you have the intention to aim the car at a police officer?

A: No, no way, no way. I wouldn’t even do that. I just want to get my car in the garage, if I knew that, I would never do that, you know what I mean? Because I’m going home to my kid, you know.

Q: Do you recall whether you had the car stopped for a period of perhaps 45 seconds to a minute in that angle that it was in?

A: Maybe when I was hitting the stick, stepping on the clutch, putting the reverse on.

Q: And were you at any stage attempting to stop the police when you were in the car? Were you attempting to stop them from arresting you or trying to escape?

A: Not at all, because I could not be able to escape because my units only one way in and one way out, and I’m blocked off. It doesn’t matter where it is, I was trying to get inside my garage with reversing it and go upstairs, that’s it. I wouldn’t hurt any officer or anything like that, no way.”

52. The accused identified the remote control on the key ring in the ignition of his motor vehicle in Ex E10.

53. When asked whether he recalled going into the garage whether his wheels spun, the accused said, “I don’t think they did”. He was asked:

“Q: Did you accelerate differently to how you normally would?

A: No, I was just accelerating normal into my garage yeah.

Q: And your position is that you first became aware of the police was when you turned and saw the officer with the gun. Is that right?

A: Yeah, when I’m going backwards into my garage, yeah.”

54. In cross-examination the accused conceded that he lied to the police officers who conducted his ERISP interview about the armed robbery. He disagreed that he had lied about what happened with the car.

55. The accused gave evidence that he was given money by his little brother, China, he thought $700, to retrieve his bracelet. At first he said it was night time and he went to China’s place at Bonnyrigg by car. When asked where he came from, he said “I came from the city, after the robbery”.

56. He then said that he went to his brother’s place before the robbery. He then gave this evidence:

“Q: You have told the court that – first of all you said you drove to your brother’s from the city, but I think you’ve corrected that now, you have indicated that you drove to your brother’s from your place after your girlfriend came home. Is that right?

A: I can’t recall that. I can’t recall that. I can’t recall that.

Q: Where did you go after being at your brother’s place?

A: I went down to the park and then meet up a couple – but when they went to the city and that’s – that’s there – and then happened—

Q: So you committed an armed robbery after going to your brother’s and getting the $700 approximately, did you?

A: Yes, yes. I was stupid. I don’t know what I was doing.

Q: I just want to ask you whether the evidence you have just given, your brother lending you $700 approximately, is a lie to the court?

A: No, it’s not a lie.

Q: Where is your brother, China, now?

A: Probably at home. I never heard from him, I’ve been in gaol.

Q: Is he giving evidence in the case here today?

A: No.”

57. The accused was then asked about the $1,100.00 found in the car. He said $400.00 of it came from the robbery. He denied splitting up the proceeds of the robbery, a sum of $2,800.00 with his co-offender, Choi Tang. He then said it was three people who committed the robbery, and that “Mango never got nothing from it, as he didn’t know anything about it”. That was contrary to Ex F, where he had agreed that Choi Tang was a co-offender.

58. The accused gave evidence that after he got in the car after the robbery, there were two people in the car. Choi Tang was in the car, but he was “knocked out on alcohol”. He then gave evidence that there was a total of three people in the car when the robbery was taking place, namely, Choi Tang, Tun and another girl. He was asked:

“Q: How many people took part in the actual robbery at the restaurant?

A: Just me and Tun.

Q: You and who?

A: Me and Tun, T U N.

Q: Not Mango?

A: No.

Q: You and Tun actually went into the restaurant?

A: Yep.

Q: At the time the robbery was taking place, how many people were back in the car?

A: Three.

Q: Who were they?

A: Just Tun, Choi – Choi Tang and another girl.

Q: I’m sorry, it must be my hearing, but I thought you were indicating that Tun was in the restaurant with you?

A: Yeah, Tun, he was in – I’m get – Tun or Ton, one of them was in the restaurant with me. I think it was Tun.

Q: Are you making this up?

A: I’m not making it up. I make full admission about everything already about this.

Q: Isn’t it the truth that there were only two people involved in this robbery?

A: Yeah.

Q: There were only two people in the car and then there were only two people that went into the restaurant?

A: No.”

59. The accused said that he did not know the last name of Tun and he was not his friend, he did not know where he lived. He had never been arrested by the police for this matter.

60. The accused said he agreed with the 10 facts set out in Ex F. He denied that he and Choi Tang had roughly split the proceeds of the robbery with half to each of them.

61. The accused denied putting $625.00 in cash on the floor under the driver’s seat. He said that he put $700.00 in his bag which was for his bracelet. As to the $625.00, he said he did not know how much was there, nor did he know that it was on the floor under the driver’s seat. He denied that he knew that it was stolen money. He was asked:

“Q: You knew at that time, didn’t you, about the possession of money recently stolen from the restaurant was incriminating?

A: No. I was just going home just to reverse my – like go home, that’s it. If I knew anything, I would just hide everything from the start and come home.”

62. The accused was cross-examined about the content of his ERISP interview, in which he had told the police that Mango had borrowed his car to visit his brother. His explanation for that was:

“A: Like I told you, I was scared, I was thinking about what I was saying and that, because I knew I robbed the place, you know what I mean? And I feel bad about it, I just want to put the blame on someone else, yeah.”

63. He agreed that at questions 91 and 92 he was indicating to police that he was in the process of driving the car home from Mango’s place when he got arrested. He was asked:

“Q: Was all of that lies?

A: Yes. Well, I wasn’t lying about reversing the car in the garage and that, like, hitting a copper, I would never do that. I was just going home, on my way home.”

64. He also agreed that he lied to police when he told them that the $1,800.00 he earned was from working.

65. The accused was cross-examined about the text message he sent to Mango on the morning of 18 November 2013, stating that he needed $550.00 to redeem his bracelet. He was then asked:

“Q: And I suggest to you that the true situation is that before the robbery you had virtually no cash?

A: Yeah.

Q: Now are you sure of that answer?

A: No cash, yeah.”

66. In respect of the incident he was asked:

“Q: Now when you drove down that ramp, while you were still driving down the ramp, you heard a police siren didn’t you?

A: No.

Q: And you saw flashing police lights, coloured lights, didn’t you?

A: No.

Q: When you were driving down the ramp at first you thought you were home safe after the robbery didn’t you?

A: No.

Q: You thought you’d got away with it?

A: No.

Q: When you became aware of the presence of the police you got a surprise didn’t you?

A: No, I didn’t – I didn’t really know what’s going on, like, I know what I did and that. But when I come home I didn’t even see the police and that until I reversed.”

67. The accused disagreed with the evidence of Senior Constable Heginbotham as to what occurred when the vehicle was stopped at a 45 degree angle. The accused said that he did not see the policeman until he was in the process of reversing. It was put to the accused that as soon as he saw the police officer he got a surprise, and was very worried because he knew he was there to arrest him for the armed robbery. He was asked:

“Q: As soon as you saw that police officer standing there with his gun drawn, you knew why he was there didn’t you?

A: I couldn’t escape sir, I couldn’t escape, there’s only one way in, one way out of my unit …

Q: You knew that you had stolen money in the car?

A: Yep.

Q: You knew that the car was the actual getaway car from the robbery didn’t you?

A: Yep, I’m not lying.

Q: And your first thought was to get out of there?

A: No, I could not, I could not, no way, escape from where I’m at. Because it’s a blocked off unit, everything’s just blocked off, there’s only one way in, one way out. If they say so, the street would have been blocked if the coppers all come at once. I couldn’t get out from there.

Q: You were cornered weren’t you?

A: I was, everything was blocked off.

…

Q: The only way to get out of there would be to reverse, and then turn to your right to reverse to make yourself some more room, and then turn to the right and drive out the exit?

A: No.

Q: That’s the only way out, isn’t it?

A: No that, no. Because when I’m reversing—

Q: That’s exactly what you were doing?

A: No way. When I’m reversing, I’m in my garage. There’s no movement of me going forward, no, my car’s all backed in my garage. There’s no intention of my going forward or anything, sir.

Q: Well now, I would suggest to you that you, once the car was stationary, you became aware, at least by then, of the flashing coloured lights from the police car?

A: Yeah, when I got arrested and they took me out, yeah.

Q: They were reflecting off the walls and ceiling weren’t they?

A: No, I didn’t really see anything, it just happened so quick, sir, it happened so quick.

Q: Now is this right? Did the reason why your car was stopped for 45 seconds to a minute at an angle, was that because you were hiding money under the seat?

A: No, I was putting my clutch on reverse, because my car’s a manual car.”

68. The accused denied that he was resisting arrest when Senior Constable Heginbotham dragged him through the window of the driver’s door. He said he came quietly. He denied that he had to be physically subdued by the police officers in their numbers in order for them to get him handcuffed. Finally, he was asked:

“Q: I suggest to you that you used that car to fend off the police?

A: No.”

69. In re-examination, the accused said that he weighed about 60 kilos at the time.

The Crown address

70. The Crown submitted that there were two versions of the primary facts from which inferences could be drawn about the state of mind of the accused. The accused’s version was that he was doing nothing out of the ordinary and that it was only when he was reversing into the garage, intending at all material times to get out of the car and go upstairs, that he became aware of the presence of police.

71. It was submitted that Senior Constable Heginbotham was an impressive witness. It was a matter of the highest priority for him that the accused not be given a chance to do any damage to the police and therefore he grabbed the accused by the arms and pulled him out through the window of the vehicle. That was the best evidence of what occurred, and where other police officers differed, the evidence of the other officers should be put to one side.

72. Senior Constable Heginbotham gave clear evidence that he directed Constable Gorgees to the passenger side of the vehicle so that she could not be caught in cross-fire. The court would accept Senior Constable Heginbotham’s evidence that he observed the accused to be reaching down his left hand side. The probability is that he was doing something with the money that was found there. What was clear from his evidence was that the car was parked there for an unusually long period of time, much longer than it would have taken simply to put it in reverse and go backwards.

73. It was submitted that the accused at an early stage knew that he was in the process of being apprehended by the police. It was submitted that that was his state of mind. It was submitted that he must have been aware of the police presence from the siren and lights. He must have been conscious that they were there to arrest him for the commission of a grave crime that he had committed two hours beforehand. When he was stationary, both police exited their vehicle and stood with their guns drawn and pointed at him, and were yelling at him. The court would accept Senior Constable Heginbotham’s evidence that he yelled out to him on eight occasions. Further, whilst Senior Constable Heginbotham was standing there with his gun drawn, he was looking directly at the accused and the accused was looking at him. He would look at the police officer and then look away to his left, and he did that on several occasions.

74. The Crown submitted that the accused was taken by surprise. He had driven into the basement thinking that he was home free. Immediately he became aware of his predicament, he reacted, but did not have time for calm consideration. He formed an intention to use the vehicle to prevent his apprehension. The Crown relied on his lack of any plausible alternative intention to prove inferentially that that was his intention.

70. The Crown accepted that it was for the Crown to disprove his version as a reasonable possibility of the facts. It was not reasonable for him to say that he was merely reversing his car into the car park, blissfully unaware of the presence of the police.

71. The Crown submitted that the accused, having been taken by surprise, knew that he was cornered and the stakes were high. He acted in a foolhardy way perhaps. The car reversed suddenly and the hard acceleration with the wheels spinning, leaving rubber on the floor. That was telling evidence against the accused’s version of reversing into the garage to go upstairs.

72. Senior Constable Heginbotham had not acceded to the contention that the wheels were spinning due to the presence of water on the floor. The accused himself, would not accept that the wheels on the vehicle were spinning at all.

73. If the court were to accept that the car went back under hard acceleration, with the wheels spinning, that was consistent with the vehicle being used by the accused to fend off the police and get out of there, no matter how impossible a task that may now seem, rather than simply reversing back into the garage.

74. It was submitted that it was not necessary for the Crown to establish that the accused was using the vehicle in a deliberate attempt to run over or strike a police officer. That was not the Crown case.

75. The Crown submitted that the vehicle was reversing under hard acceleration towards the wall of the garage. The sharp turn into the garage happened only when Senior Constable Heginbotham was in the process of breaking the window. It is also relevant that, when removed from the vehicle, the accused resisted arrest and that he was struggling violently. That evidence gives rise to an inference that the state of mind of the accused at that moment, consistent with his state of mind in the few seconds before, was to resist or hinder his apprehension.

76. In cross-examination, it was put to the police officers that the fact of the accused struggling was an instinctive reaction to what was happening to him, whereas in his own evidence in chief, the accused said that he did not struggle at all.

77. The Crown submitted that the totality of the circumstances refuted the explanation given by the accused that he was doing nothing more than parking in the ordinary way. He lied in his Record of Interview with the police and he lied in his evidence to the court. His backtracking from the agreed admissions in Ex F would concern the court as to how much weight it could give the accused’s evidence. Further, his evidence concerning his brother giving him money contained inconsistencies and implausibilities which were too numerous to catalogue.

78. The Crown submitted that the vehicle was being used as an offensive instrument in accordance with the definition in s 4, namely, “anything that in the circumstances used for offensive purposes, whether or not it is ordinarily used”.

Counsel for the accused’s address

84. Learned counsel for the accused submitted that the onus was on the Crown to prove two forms of intent to establish the offence under s 33B. The first was an intention to use the vehicle as an offensive instrument. The second intention is the Crown must prove that he had an intention to prevent his lawful apprehension.

85. As to the first, it was the Crown case that the accused deliberately drove the car at Constable Gorgees. That was what made use of the vehicle as an offensive instrument on the Crown case. The accused denied that he deliberately drove the vehicle at her and if the court were to accept his version as reasonably possible, then the requisite intention could not be inferred.

86. Counsel could refer to no authority as to the meaning of “hinder”, in the context of s 33B. By the way the Indictment was worded, it was submitted that the Crown was seeking to prove the specific intention of preventing himself from being apprehended.

87. Counsel submitted that even if the court were to find that the accused deliberately drove at Constable Gorgees, intending to hit her or scare her, that would not be enough to prove the offence, but it would also have to be done with an intention to prevent his lawful apprehension. It was submitted that neither intention would be very clear because it was submitted that the court would accept the accused was not aware that Officer Gorgees was behind the car. Firstly, she had given evidence that she was crossing behind the car, to the passenger side, when the car started reversing. She was not standing in one place and would not have been observable. Secondly, she was standing near the back passenger tail lights, on the left hand side of the car, when it started reversing. It was submitted she may well have been in the accused’s blind spot in that position. Thirdly, the area was not well lit and the flashing blue lights may have made it harder to see someone behind the vehicle rather than easier. As it had been raining, there may well have been water or raindrops on the back window of the vehicle. Further, the car had tinted windows. All of those factors would have made it more difficult for the accused to see a person standing by behind the passenger side tail light of the vehicle.

88. Counsel submitted that what was in dispute was that there is a sudden or unusual change in direction of the vehicle. The change of direction was consistent with straightening from a 45 degree angle to go into the garage. It was submitted that the evidence of the tyre marks was consistent with the normal course of travel for the vehicle to reverse into the garage. It was in dispute that there was heavy acceleration. The statement of Senior Constable Heginbotham stated that the vehicle’s front tyres had begun to spin due to loss of traction on the slippery surface. The evidence of Senior Constable Heginbotham was not supported by any other independent evidence, other than perhaps the tyre marks. Common sense would suggest that if the wheels were spinning, the tyre tracks would not be as clear as those shown in the photographs. Rather, the tracks were consistent with tracks of a tyre had come through a wet and dirty surface.

89. Counsel submitted that the evidence from Constable Gorgees was that the events happened very quickly. That was consistent with the evidence of the accused. As to resisting arrest, the accused’s position was that he did not resist arrest. However, counsel stated his principal submission is that it would not be surprising if a person did resist to some extent, to being pulled through a car window. Such a process would have been forceful and necessarily violent. In a way, Senior Constable Heginbotham’s evidence should be treated with some caution in terms of there being resistance.

90. It was submitted that the court should be very careful in drawing an adverse inference against the accused. It was conceded that the accused lied in his Record or Interview about the robbery, and he gave a reason for doing so.

91. The accused had given evidence and made himself available for cross‑examination. Consistently, he has stated that he would never intend to drive the car at a police officer, and consistently, he did not have an intention to escape. Notwithstanding that parts of his evidence would have to be rejected, the court will accept that part of his evidence relating to his intentions, being to reverse the car into the garage. It was submitted that the Crown could not prove that he had knowledge or awareness that Constable Gorgees was behind the vehicle. Even if the court accepted the evidence of Senior Constable Heginbotham, it did not follow that the accused had the relevant knowledge to be aware of the use of his car as an offensive instrument.

92. Counsel submitted that the court should not give any weight to the fact that the accused seemed to backtrack on the agreed facts.

93. Counsel submitted that if there was a reasonable possibility that the accused’s evidence was true, the court was bound to find him not guilty.

Crown’s submissions in reply

94. In its limited right of reply, the Crown submitted that in order to prove its case it was not required to prove that the accused either deliberately or even recklessly drove his vehicle at the police officer. Although it was open for the court to make such a finding, it was not required in order to find that the accused, in all of the circumstances, was using the vehicle as an offensive instrument. The Crown also submitted that by distinguishing between offences under s 33B of an intent to hinder apprehension, and an intent to prevent apprehension, it was submitted that in this case there could not be any actual difference between the two things.

Determination

95. Section 133 of the Criminal Procedure Act 1986 provides as follows:

“133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

96. Having regard to the whole of the evidence, I find the following facts proven beyond reasonable doubt:

1. That on the evening of 18 November 2013, the accused committed a violent armed robbery. I accept the facts set out in Ex F in respect to that offence.

2. At approximately 1.50am on 19 November 2013, the accused returned to his residence at Liverpool, driving motor vehicle, NSW registration BB5-8GB. He drove down the driveway and into the covered carport area. As he did so, he activated his garage door by use of a remote device situated on the key ring, which was connected to the ignition of his car.

3. Senior Constable Heginbotham and Constable Gorgees followed the accused into the driveway to the premises in an unmarked police car. As they did so, they sounded a short burst of the police siren and activated the blue and red flashing police lights on the motor vehicle. Those lights comprised three separate lights, one on the roof of the vehicle, one on the sun visor, and one on the dash.

4. The police vehicle followed the accused’s vehicle to a point less than halfway along the covered area where the accused’s vehicle came to a stop, in a position where it was at a 45 degree angle to the direct line of travel through the carport.

5. The police vehicle stopped approximately 5 metres behind the accused’s vehicle, the police officers alighted, and drew their weapons in what was known as “an armed and dangerous stop”.

6. Both police officers yelled to the accused to stop the car.

7. Senior Constable Heginbotham yelled “Police, stop. Police stop. Turn off your car now. Turn off your car now”. He repeated that on eight occasions. While he did so, he was looking at the accused, who looked at him, and then proceeded to rummage down to his left side.

8. During the whole of the incident, the police vehicle lights were flashing blue and red.

9. Senior Constable Heginbotham directed Constable Gorgees to move to a position behind the vehicle to its passenger side so as to avoid her being caught in cross-fire, if weapons were used.

10. As Constable Gorgees reached a position adjacent to the passenger side tail light of the vehicle, the accused reversed the vehicle rapidly, causing the front wheels to spin.

11. Constable Gorgees jumped out of the way of the reversing vehicle towards the wall of the opened garage.

12. The accused reversed his vehicle in an arc so as to enter the open garage.

13. As he did so, Senior Constable Heginbotham smashed the driver’s side window of the vehicle with his police baton so as to gain access to the vehicle.

14. The accused stopped the vehicle when it was almost fully inside the garage. He was then grabbed by Senior Constable Heginbotham and dragged out through the broken window.

15. The accused resisted being apprehended by Senior Constable Heginbotham, who was assisted first by Constable Gorgees, and secondly by Senior Constable Arnold. The accused was resisting being apprehended until he was restrained by the police officers.

16. The only way in and out of the premises was via the driveway, by which the vehicles had entered.

97. It is clear from the above findings of fact that I have accepted much of the police evidence. Senior Constable Heginbotham was an impressive witness, who gave his evidence in a straightforward manner. Both Constable Gorgees and Senior Constable Arnold were also doing their best to assist the court, having regard to the content of their statements. Where there were discrepancies between the various police witnesses, they were minor. For example, Constable Gorgees’ evidence that the accused was removed through the open driver’s door.

98. On the other hand, the accused was a most unimpressive witness. He lied to the police in his ERISP interview about his involvement in the armed robbery. He lied about the money found in the car and about his brother’s loan to him. He also lied about his co-accused’s involvement, both in respect of the money and his part in the armed robbery. I find that his evidence was entirely unreliable and I do not accept his evidence that he was merely trying to reverse his vehicle into the garage and go upstairs. Nor do I accept that he was unaware of the police presence in the covered carport area, until he commenced to reverse his vehicle. His evidence that he did not hear the police yelling to him because he had the radio on lacked all credibility. Further, I accept Senior Constable Heginbotham’s evidence that the accused looked at him at least on two occasions prior to engaging reverse gear on the vehicle. I find there is no reasonable possibility that the accused’s evidence of what occurred was true.

99. It is not in issue that a motor vehicle may be used as an offensive instrument by reason of the use to which it is put – see Hamilton v R (1993) 66 ACrimR 575. The question here is whether I can, as a trier of fact, be satisfied beyond reasonable doubt that the accused formed the requisite intention of driving the vehicle so as to prevent his apprehension by the police officers. In other words, by his conduct and his intention, did the accused use the motor vehicle as an offensive instrument for that purpose?

100. I am not satisfied on the whole of the evidence that the accused deliberately reversed his vehicle towards Constable Gorgees. Rather, the fact that he did so was a product of a direction given to her by her Senior Officer to move to the passenger side of the vehicle for her own safety, and the conduct of the accused in rapidly reversing the vehicle. In doing so, he was reckless as to the consequences.

101. Whether he did so with the intention of preventing his lawful apprehension is a matter to be determined by inferences drawn from the evidence. I am mindful that intention may be inferred or deduced from all of the evidence, and the conduct of the accused before, at the time of, or after he reversed his vehicle. Sometimes, a person’s act may itself provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, one may readily conclude that he did that act with the intention of achieving a specific result. I remind myself that I am considering the intention of the accused, and not the intention of a theoretical person in the accused’s position.

102. I am satisfied beyond reasonable doubt that the accused acted with the intention of preventing his lawful apprehension by reversing the car. He must have been aware of the presence of the police vehicle as soon as he entered the driveway, when it sounded its siren and its lights commenced to flash. Further, he acted to endeavour to conceal the stolen money under the driver’s seat. The only way out of the premises was to turn the vehicle around, and the only way to achieve that, was by first reversing into his garage. His failure to respond to the commands of the police officers before he reversed the vehicle, supports this finding. His resisting his arrest until restrained by the police officers confirms it.

103. I am therefore satisfied beyond reasonable doubt that the elements of the offence, pursuant to s 33B(1)(a) of the Crimes Act 1900, is made out.

104. I find the accused guilty of the offence that he did on 19 November 2013 at Liverpool, in the State of New South Wales, use an offensive instrument, namely, a motor vehicle with NSW registration BB5-8GB, with intent to prevent the lawful apprehension of himself.

105. You are convicted of the offence as charged.

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Decision last updated: 14 April 2016