X v The Queen - [2011] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: X v R [2011] NSWCCA 202
Hearing dates: 1 September 2011
Decision date: 02 September 2011
Jurisdiction: Criminal
Before: Simpson J at 1
Hislop J at 15
Garling J at 16
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW - application for leave to appeal against interlocutory judgment or order - s 5F(3) Criminal Appeal Act 1912 - refusal of application to quash indictment - whether indictment discloses an offence known to law - specially aggravated kidnapping - nature and scope of "advantage" within meaning of s 86(1) Crimes Act 1900 - leave granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: R v Robson; R v Collett, [1978] 1 NSWLR 73
R v X [2011] NSWDC 116
Category: Procedural and other rulings
Parties: X (Applicant)
Regina (Respondent)
Representation: Counsel
A Francis (Applicant)
P Skinner (Respondent)
Solicitors
Galloways (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 09/64904
Publication restriction: Yes
Decision under appeal

Citation:

[2011] NSWDC 116

Date of Decision:

2011-08-30 00:00:00

Before:

Murrell DCJ

File Number(s):

09/64904

Judgment

SIMPSON J : The applicant seeks leave, pursuant to s 5F(3) of the Criminal Appeal Act 1912, to appeal against an interlocutory order made by Murrell DCJ in the District Court on 30 August 2011 ( R v X [2011] NSWDC 116). The order in question was an order refusing an application to quash an indictment. The applicant contended that the indictment did not disclose an offence known to law.

Background

The applicant is charged under s 86(3) of the Crimes Act 1900, which creates an offence of specially aggravated kidnapping. Provision is made in s 86(1) for the basic offence of kidnapping, in the following terms:

" 86(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."

The circumstances of special aggravation that bring such an offence within subs (3) are the commission of the offence in company, and/or that actual bodily harm is occasioned to the victim.

The indictment is in the following terms:

"On 1 April 2009 at ... in the State of New South Wales [the applicant] did, whilst in company of another person, take [the complainant] with the intention of obtaining an advantage, namely, so that it could be determined whether [the complainant] had been near [a particular address] earlier that day, in circumstances of aggravation, namely that actual bodily harm was occasioned to [the complainant] immediately before he was taken."

Murrell DCJ had before her a statement of the facts alleged by the Crown. The statement of facts was not put before this Court. The following facts are drawn from the judgment of Murrell DCJ. They may be stated briefly. The Crown alleges that, on 1 April 2009, the…

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 X v The Queen

Details

AGLC: X v The Queen [2011] NSWCCA 202
Case: [2011] NSWCCA 202
Decision Date: 02 September 2011

CaseChat Overview and Summary

The case of X v The Queen involved a defendant who had been indicted for specially aggravated kidnapping under the Crimes Act 1900. The defendant sought leave to appeal against an interlocutory judgment or order, specifically requesting the quashing of the indictment. The High Court of Australia was called upon to determine whether the indictment sufficiently disclosed an offence known to law, particularly concerning the interpretation of "advantage" in the context of section 86(1) of the Act.

The primary legal issue before the court was whether the indictment correctly disclosed the elements of the offence of specially aggravated kidnapping, specifically focusing on the definition and scope of "advantage" within the meaning of the statute. The court had to consider whether the indictment was sufficient in law to sustain a conviction for the charged offence. The defendant argued that the term "advantage" was not properly defined, leading to uncertainty and potentially rendering the indictment defective.

The court held that the term "advantage" within section 86(1) of the Crimes Act 1900 was sufficiently broad and well-understood in legal contexts to constitute a valid offence. The court granted leave to appeal, but ultimately dismissed the appeal, finding that the indictment was sufficient to disclose the offence. The court concluded that the term "advantage" was not ambiguous and could be understood in the context of the statute, thus upholding the validity of the indictment. As a result, the defendant's application to quash the indictment was refused.

Orders