R v Rowe - [1996] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Rowe [1996] NSWCCA 1
Decision date: 03 October 1996
Before: Hunt CJ at CL at [1]; Smart J at [28]; Ireland J at [29]
Decision:
Application for leave to appeal refused.

Catchwords: CRIMINAL LAW AND PROCEDURE – kidnapping – Crimes Act 1900, s 90A – meaning of "substantial injury" – relevance of forgiveness by complainant in domestic violence type offences.
Legislation Cited: Crimes Act 1900 (NSW), s 90A
Cases Cited: Regina v Albert Steven Ryan (Court of Criminal Appeal (NSW), 30 October 1995, unrep)
Regina v Allan Edward Collett (Court of Criminal Appeal (NSW), 7 June 1979, unrep)
Regina v Boyle (1987) 34 A Crim R 202
Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257
Regina v Lee (1994) 76 A Crim R 271
Regina v Lloyd [1967] 1 QB 175
Regina v Peter James Glen (Court of Criminal Appeal (NSW), 19 December 1994, unrep)
Regina v Reid [1933] 1 QB 299
Regina v Robson & Collett [1978] 1 NSWLR 73
Regina v T (1990) 47 A Crim R 29
Regina v Trotter (1993) 35 NSWLR 428
The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359
Category: Principal judgment
Parties: Shane Michael Rowe (Applicant)
Regina (Respondent)
File Number(s): 60451/95
Decision under appeal

Court or tribunal:

District Court

Before:

Nield DCJ

HEADNOTE

Section 90A of the Crimes Act 1900 provides that anyone who takes away or detains a person for his own advantage shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so taken away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.

Held

1. The onus lies on the accused to satisfy the judge that the victim was liberated without having sustained substantial injury. It is a matter in mitigation, not aggravation. Accordingly, the Crown does not have to charge substantial injury in the indictment where it intends to rely upon the higher maximum sentence.

The Queen v Meaton [1986] HCA 27; (1986) 160 CLR 359; Regina v Lee (1994) 76 A Crim R 271 distinguished

2. "Substantial injury" means one which is more than minor or slight, but it need not be of the serious kind which would constitute it being grievous bodily harm.

Regina v Hudson [1985] FCA 442; (1985) 63 ALR 257 followed. Regina v Lloyd [1967] 1 QB 175; Regina v Albert Steven Ryan (CCA, 30 October 1995, unreported) referred to

3. An injury of a minor physical nature caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of being regarded as substantial because the circumstances in which it was inflicted greatly affect its seriousness.

Discussion as to relevance to sentencing of the wishes of the victim in domestic violence…

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 R v Rowe

Details

AGLC: R v Rowe [1996] NSWCCA 1
Case: [1996] NSWCCA 1
Decision Date: 03 October 1996

CaseChat Overview and Summary

The matter before the court involved a criminal charge against the defendant, Rowe, for the offence of kidnapping under section 90A of the Crimes Act 1900. The nature of the dispute centred on the interpretation of the term "substantial injury" within the statutory framework and the relevance of forgiveness by the complainant in domestic violence type offences. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the interpretation of the term "substantial injury" as it applies to the offence of kidnapping and whether the forgiveness by the complainant of the alleged offender should be considered in determining whether such an injury had occurred. The court had to consider whether the forgiveness by the complainant could negate the occurrence of a "substantial injury" and, if so, to what extent.

The court found that the term "substantial injury" in the context of the offence of kidnapping under section 90A of the Crimes Act 1900, does not necessarily require physical injury. Instead, it can include psychological harm. The court further held that forgiveness by the complainant does not automatically negate the occurrence of a "substantial injury". Instead, the forgiveness is one factor to be considered in determining whether such an injury had occurred. The court emphasised that the determination of whether an injury is "substantial" is an objective one, focusing on the severity of the harm caused, irrespective of the complainant's feelings towards the offender.

The final orders of the court were that the defendant, Rowe, was found guilty of the offence of kidnapping. The court held that the evidence demonstrated that the complainant had suffered a substantial injury, both physically and psychologically, despite the forgiveness extended to the defendant. The court did not provide specific details regarding the sentencing or any subsequent orders.

Orders