Hamilton v DPP

Central offence-creating provision

1. Section 86 of the Crimes Act 1900 (NSW) is as follows: 86 Kidnapping (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 (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if - (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) - (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. …
2. Section 86(4) sets out a regime of alternative verdicts with regard to specially aggravated, aggravated, and simple versions of the offence. Section 86(5) and s 86(6) sets out some special provisions with regard to the taking or detaining of a child. Section 86(7) sets out definitions of "child", "detaining", "parent", and "taking". None of those subsections needs to be set out for the purposes of this judgment.
3. The outcome of this application turns, in my opinion, upon the answers to the following questions. Focusing upon s 86(1)(b) of the Crimes Act: is the "other advantage" that a defendant must have intended to obtain, at the time of the taking or detaining of the victim, an element or essential fact of the offence charged? Or is it merely a factual matter? In other words, speaking generally, if the DPP alleges a specific advantage that was intended to be obtained, and a defendant accepts that he or she acted with an intention to obtain an advantage, but disputes the precise advantage alleged, what should follow? A trial, a disputed facts hearing, or something else?

Factual and procedural background

1. In light of the focused way in which the matter was argued before me, the background need only be sketched, as follows.
2. On 27 November 2019, the defendant was charged by police and issued with two court attendance notices (CANs). They were as follows: (H73354728 - Sequence 1) Crimes Act 1900, Section 86(1)(b) Take/detain person with intent to obtain advantage between 5:35am and 5:50am on 05/02/2019 at Redfern That Tighreak Trevor Hamilton on the 5th day of February 2019, at REDFERN, in the State of New South Wales, did, without consent, detain [the complainant] with the intention of obtaining an advantage, to wit, sexual gratification." and (H73354728 - Sequence 2) Crimes Act 1900, Section 95(1) Aggravated robbery between 5:35am and 5:50 am on 05/02/2019 at Redfern That Tighreak Trevor HAMILTON on the 5th day of February 2019, at REDFERN, in the State of New South Wales, did attempt [sic] rob [the complainant] of certain property, to wit, bag, the property of [the complainant], and at the time of the robbery used corporal violence on the said [the complainant]." (The name of the complainant has been excised by me, because it is irrelevant to this appeal, and also because the allegation is that she was detained for a sexual purpose.)
3. The allegation in brief was that, early one morning, the complainant, a woman in her mid-60s, was walking through Redfern on her way to a medical appointment. The defendant approached her and asked the time. He also suggested that she had dropped something. The complainant began to feel frightened and walked away. The defendant followed and caught up to her.
4. Whilst restraining the complainant, the defendant said words to the effect that he was not going to rob her, but rather wanted to have sexual intercourse with her. He dragged the complainant about 50 m into a darkened area, backed himself up against a wall, and pulled the complainant towards himself.
5. The complainant yelled out, and the defendant struck her to the head with his fist. Eventually, the defendant let go of her shirt, and the complainant ran off.
6. Ultimately, DNA consistent with that of the defendant was located on the clothing of the complainant, which led to the defendant being arrested. When interviewed by the police, the position of the defendant in short was that he did indeed attempt to rob the complainant, in order to feed his addiction to heroin, but that he neither intended to sexually assaulted her, nor said anything to that effect.
7. On 1 April 2020, the defendant advised the DPP of his willingness to plead guilty to the first charge, sequence 1, of "take and detain", on the basis that the intended advantage was financial, as opposed to sexual. In other words, the conceded intention was to rob the complainant, not to sexually assault her.
8. Later that day, the solicitor for the defendant received a charge certificate from the DPP. It indicated that sequences 1 and 2 were to be withdrawn and replaced by a charge pursuant to s 86(2)(b) of the Crimes Act. That new CAN, sequence 3, was as follows: (H73354728 - Sequence 3) Crimes Act 1900 86(2)(b) Take/detain person w/i to obtain advantage occasion abh-SI Between 5:35 am and 5:50 am 05/02/2019 at REDFERN That Tighreak Trevor HAMILTON on the 5th day of February 2019, at REDFERN, in the State of New South Wales, did, without consent, detain [the complainant] with the intention of obtaining an advantage, to wit, sexual gratification, the said Tighreak Trevor HAMILTON have occasioned actual bodily harm after being detained. [sic]
9. At a case conference a little over a month later, on 12 May 2020, the defendant advised the DPP that he wished to plead guilty to that sequence, sequence 3, but again on the basis that the intended advantage was monetary, not sexual. It was further suggested that, if the facts could not be agreed, the defendant intended to enter a plea of guilty to the charge in any event, and simultaneously to request a disputed facts hearing on sentence in the District Court.
10. On 1 June 2020, an email from the DPP advised the defendant that it would be proceeding on the original take and detain charge (in other words, a return to sequence 1), but also adding a new charge of assault with intent to rob, pursuant to s 94(a) of the Crimes Act, as an alternative. The DPP also noted that a plea to that alternative charge would not be accepted in full satisfaction of the allegation.
11. Accordingly, an amended charge certificate was provided. It reinstated sequence 1, withdrew sequences 2 and 3, and added the alternative charge of assault with intent to rob. I shall refer to the latter as sequence 4, in accordance with how the parties described it, despite the fact that it was an alternative to sequence 1.
12. The CAN pertaining to that alternative charge was as follows: Crimes Act 1900 94(a) Assault with intent to rob-T1 between 5:35 am and 5:50 am 05/02/2019 at REDFERN did assault [the complainant] with the intention of robbing [the complainant].
13. A case conference certificate was prepared accordingly, detailing the willingness to plead guilty of the defendant, and the basis upon which he wished to plead guilty. The certificate was signed by the solicitor for the defendant and the DPP.
14. On 11 June 2020, the matter came before the Local Court at Central. The salient parts of the transcript are as follows: … LATIMER [for the DPP]: It is a committal for trial. There is an amended charge certificate to be filed. The case conference certificate as [sic] also ready to be filed, although I note the accused has not signed the certificate. I'm not sure whether my friend has a signed copy in Court. BETTS [for the defendant]: … There is dispute in relation to how this matter should proceed. My client has indicated that he will plead guilty to a s 81(1) [sic], which is one of the charges that has been certified. However, the charge which has been certified specifies the purpose of the detention, and my client disputes the purpose of the detention. This is a matter where the matter needs to go to the District Court for resolution in relation to how the matter should, in effect, proceed. But my client is wishing to plead guilty to the take and detains, but not for the purpose that is specified in the current CAN. HIS HONOUR: The issue which I need to look at is the filing of the case conference certificate. BETTS: Yes. I have a case conference certificate here, your Honour. My friend has a copy. This is the copy that I have. It hasn't been signed by the accused. HIS HONOUR: I note the matters which are raised, but if the case conference certificate adequately reflects what occurred at the case conference, that should not be an issue. BETTS: It does. HIS HONOUR: In other matters which have been before this Court we have been able to send by facsimile that case conference certificate to the custodial centre and then have that returned during the course of the day; so that can then be filed and the matter can proceed forward to trial. BETTS: My view, your Honour, is that it's not appropriate for the accused to sign the certificate in the circumstances of the indication of his wish to plead to the s 86(1) charge. It is a matter that will need to be resolved at the District Court level, your Honour. HIS HONOUR: It will need to be resolved in this Court? BETTS: At the District Court level. HIS HONOUR: The hurdle is the filing of the case conference certificate; and unfortunately, we're directed that we can't let it go unless a case conference certificate has been filed. BETTS: I have a case conference certificate here. HIS HONOUR: Madam Crown, no doubt you're well aware of the matters that Mr Betts has raised? LATIMER: Yes, your Honour, my instructions do indicate that. HIS HONOUR: I note that this is an unusual matter. I will accept that document, if you were to hand it up, as a filing of a case conference certificate, noting the other matters which you have also put on the record, so that's the charge certificate and with the case conference certificate attached. BETTS: Yes. LATIMER: Sequence 1 and sequence 4 is to be committed for trial. HIS HONOUR: There's pleas of not guilty to sequence 1 and sequence 4. BETTS: In effect, what I am submitting is that there is a plea to an 86(1), but not in the format in that CAN. HIS HONOUR: Again, I'll note that there are pleas of not guilty indicated. What is happening with the other sequences? LATIMER: Sequences 2 and 3 will be withdrawn, your Honour; to be withdrawn. HIS HONOUR: SEQUENCE 2 AND 3 ARE WITHDRAWN. … BETTS: Just for abundant caution, your Honour, our position on this is that our client is being committed for the sentence in relation to an 86(1). LATIMER: No. Sorry, your Honour. If the accused is not pleading to the charge as certified, then it's a not guilty plea in relation to sequence 1. The accused's position is protected by what is contained in the case conference certificate. HIS HONOUR: Yes, I think that is the case. You have put on the record your position. This matter needs to go forward so it can be resolved; and your client is in custody. Mr Hamilton, in this matter I commit you for trial to the Sydney District Court on 17 July 2020. … SEQUENCE 2 AND SEQUENCE 3 ARE WITHDRAWN. …
15. As can be seen from the above, the dispute was crystallised in the Local Court: the solicitor for the defendant attempted to enter a plea of guilty, the advocate then appearing for the DPP insisted that the matter be committed for trial, and that was the order that the Magistrate made.
16. Subsequently, the DPP filed an indictment in the District Court on 13 July 2020. It was in the following terms, broadly in conformity with the final position of the DPP in the Local Court: On 13 July 2020, the Director of Public Prosecutions on behalf of Her Majesty charges that TIGHREAK TREVOR HAMILTON on the 5th day of February 2019, at Redfern in the State of New South Wales, did detain [the complainant], with the intention of obtaining an advantage, namely sexual gratification. S 86(1)(b) Crimes Act 1900 Law part code 44663 AND the Director of Public Prosecutions FURTHER CHARGES in the ALTERNATIVE to count 1 that TIGHREAK TREVOR HAMILTON on the 5th day of February 2019, at Redfern in the State of New South Wales, did assault [the complainant], with the intention of robbing [the complainant]. S 94(a) Crimes Act 1900 Law part code 92280 …
17. On 16 July 2020, the defendant filed a summons in this Court challenging the committal decision. On 17 July 2020, the defendant was granted an adjournment in the District Court in light of that summons. The District Court proceedings are further stayed pending my resolution of this application.

Submissions of the defendant

1. In written submissions, it was said for the defendant that the magistrate inappropriately refused to accept the plea of guilty by the defendant in relation to the take and detain charge that was sequence 1. Reference was made to Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501.
2. It was said that the defendant had accepted that he committed the substance of the offence of take and detain, and that proof of "any advantage", alongside the other elements of the offence, was sufficient to find the offence proven. The nature of "any other advantage" in the offence creating provision, s 86(1)(b), was not an element of the offence itself. It was said that the dispute between the defendant and the defendant was limited to whether that intended advantage was of a sexual or monetary nature.
3. In written submissions in reply, the argument was that, in the circumstances of this case, the pleaded advantage could not be said to constitute the "essence of the offence" nor an "essential fact".
4. Relying upon the High Court decision in Maxwell v The Queen, it was said the Magistrate had no power to reject the plea of guilty, with the result that the defendant's committal for trial, as opposed to committal for sentence, was affected by legal error.
5. Reference was made to the decision in R v Radic [2001] NSWCCA 174; (2001) 122 A Crim R 70. It was asserted that not only was the present case factually and procedurally different, but also that the decision should be regarded as obiter dicta, in light of the very different statutory regime that is applicable today.
6. It was said that the test for whether an alleged fact is "essential" is whether a failure by the prosecution to establish that fact would entitle an accused person to an acquittal: R v VHP (Unreported, NSWCCA, 7 July 1997). The point was made that the present case was not one in which requirements of procedural or substantive fairness would restrict the capacity of the Crown to amend the pleaded advantage. For instance, if the complainant failed to "come up to proof" regarding the nature of the alleged advantage, it was submitted that the Crown would not be restricted from amending the indictment to reflect the admissions that had been made by the defendant in his interview with the police. I understood the point to be that the availability, if necessary, of amendment to the prosecution demonstrates that the precise advantage alleged is not an essential fact.
7. Separately, it was said that, in committing the defendant for trial on the basis that he would not be prejudiced "if the case conference certificate adequately reflects what occurred at the case conference", the magistrate failed to appreciate the effect of s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). A committal for sentence would have preserved the possibility of a 25% discount for the defendant's early guilty plea; the committal for trial, however, reduced that entitlement to 10%.
8. In oral submissions, counsel for the defendant emphasised that resolution of the dispute turns upon whether or not this case involves a dispute about an essential fact, and the correct legal classification of the nature of the advantage in contention.
9. It was said that, if the defendant should have been permitted to plead guilty to the take detain offence, and if he were ultimately convicted of it, he would undoubtedly be denied a discount on sentence, pursuant to the strict statutory regime. In similar vein, it was said that, if the thesis of the defendant was correct, and his plea of guilty should have been accepted, even if he were to lose a subsequent disputed facts hearing on sentence, even so he would be entitled to some statutory discount.
10. It was accepted that the framing of a charge, including its particularisation, is a decision for the prosecution. But counsel argued that fairness to the defendant must underpin a case such as this, and that if a "clear thinking" defendant wishes to plead guilty in circumstances that are not confused, the court cannot reject the plea.
11. It was said that the decision of the Court of Criminal Appeal in Dean v R [2019] NSWCCA 27 could be distinguished from this case, on the basis that that judgment involved an offence that featured "sub-elements", in that the charge alleged an offence that included within it a further offence. But here the particularisation of the nature of the advantage cannot be seen as a "sub-element" of sequence 1.
12. Furthermore, I was asked to reflect upon the following possible outcome. If the pleaded sexual advantage were not proven at trial, but there was evidence of a monetary advantage having been sought to be obtained, there is surely a concern about whether the Crown would be entitled to amend the indictment, contrary to the proposition that the nature of the advantage sought is an element or essential fact. And there is a further concern, it was said, about the defendant being acquitted on the basis that an intention to obtain a sexual advantage had not been proven, but being subjected to a further trial on the basis that he admittedly intended to obtain a monetary advantage.
13. It was conceded that whether a mere fact becomes an essential fact is very often dependent on the manner in which a trial is conducted. But the simple fact here is that the absence of a trial so far in this matter makes it difficult to assess whether the pleaded advantage could be thought of as an essential fact.
14. Finally, there was reflection on behalf of the defendant on the proposition that, bearing in mind that a bill of indictment has been found and filed, thereby superseding the order for committal, the orders sought in the amended summons may be ineffectual.

Submissions of the DPP

1. Resisting the application by the defendant, the fundamental submission of the DPP was that no error of law had been committed by the magistrate, with the result that leave to appeal pursuant to s 53 of CARA should be refused.
2. It was said that a plea of guilty constitutes an admission of not only the elements of the offence, but also the "essential facts" of the charge: R v Radic. The central thesis was that the particular advantage alleged was indeed an essential fact. As a result, the refusal to permit the defendant to plead guilty to the final version of the "take and detain" in the Local Court was correct, and the subsequent committal for trial showed no error.
3. The decisions of the Court of Criminal Appeal in R v Radic and, more recently, in Dean v R were relied upon for the following. The nature of the advantage sought to be obtained was indeed an essential fact. It is the responsibility of the prosecution, not the defendant, to nominate the asserted advantage. If an essential fact of the offence, in this case the sexual nature of the advantage sought, is not accepted by the defendant, the matter must proceed to trial. It cannot be resolved by way of a disputed facts hearing.
4. As for Maxwell v The Queen, the DPP submitted that it is not authority for the proposition that a guilty plea must be accepted by a court when the essential facts of the charge are explicitly disputed by the defendant.
5. It was also said that the defendant had suffered no practical detriment by being committed for trial, as opposed to sentence, on sequence 1. That is because, on the version of events of the defendant himself, it would have also been open to him to enter a plea of guilty to the alternative charge, sequence 4, of assault with intent to rob. If his factual contention is correct, he will in due course be acquitted of sequence 1, and would receive full credit for his early plea of guilty to sequence 4. And yet the defendant had not adopted that course in the Local Court.
6. In oral submissions, the DPP asserted that there must be some measure of "essential facts", above and beyond the bare elements, that are incorporated into proof of an offence, in order to ensure that the prosecution and a defendant are engaging with regard to the same "criminal incident". I understood the submission to be that, without at least implicit identification of essential facts, it could be possible for the prosecution and a defendant to pass "like ships in the night". In other words, so that the prosecution and a defendant are engaging with not only the one offence but also the one same criminal incident, it is necessary - rarely in practice, but fundamentally - to ensure that the criminal incident that is being alleged by the prosecution is being responded to by defendant by the plea of guilty or not guilty.
7. It was accepted that, in order to determine whether a fact is essential, it is appropriate to test it against the question of whether an absence of proof of that fact would lead to an acquittal. Having said that, I understood it to be conceded that stating the question in that way "begs the question" of the underlying classification.
8. It was said that the question of the availability of amendment is an unhelpful analysis, simply because it is well known that, in some circumstances, the prosecution can be permitted to amend an indictment if the averment of even an element of the count is defective.
9. It was submitted that the nebulousness of the element of "advantage" that is part of the text of this statutory offence itself requires the Crown to particularise the particular advantage, when considering the context and purpose of the section as a whole. That was contrasted with the asserted absence of a requirement to particularise a precise weapon for an offence that features being armed with an offensive weapon, which was said not to require the same degree of precision.
10. Having said that, it was accepted that there is no touchstone or litmus test to determine what is an element, essential fact, or a mere fact, in order to further determine the degree of specificity required with regard to indictments. It was also submitted that there is a paucity of authority about the question of classification of factual allegations as, on the one hand, mere facts, and, on the other hand, essential facts.
11. As a consequence of its fundamental position, the submission of the DPP with respect to the outcome at trial if it could not be proven that the intended advantage was, in fact, sexual, was that it would indeed lead to an acquittal, unless the indictment was permitted to be amended.
12. Counsel for the DPP contended that the touchstone of whether a fact is essential or not is not fairness, but broader public policy considerations. As for the latter, it was submitted that the distribution of the determination of facts between, on the one hand, twelve citizens acting unanimously, and on the one hand, a single judge being satisfied to the criminal standard, is not simply a procedural question.
13. It was said that, with regard to the question of specificity about an offensive weapon (which was conceded not to constitute an essential fact), as opposed to specificity about an advantage sought to be obtained (which was said to constitute one), the former is "sufficiently confined", whereas the latter could be pleaded narrowly or broadly.
14. It was said that the "two trials scenario" could indeed arise in conformity with the judgments in Dean v R and R v Radic. And the point was also made that it can arise with regard to prosecutions for drug offences. In other words, it was said, such an outcome is an unexceptionable procedural consequence, once facts are identified as essential, or indeed as elements.
15. As for the concern raised by the defendant about amendment, it was said that, in light of the way that the case had been conducted, "as a matter of fairness we could not possibly amend". It was explained that that is why the alternative charge was before the Magistrate, and the alternative count is on the indictment. And it was emphasised that the question of the availability of amendment is a distraction in any event, because the prosecution can, depending upon the circumstances, be granted leave to amend not only particulars but also averments of elements.
16. It was said that the prosecution had already "pinned its colours to the mast": by asserting that the sexual advantage allegedly sought is an essential fact, the prosecution must accept all of the procedural consequences that may flow against it as a result.
17. It was said that, to the extent that the decision in R v Radic seemingly focused very much on the nature of the particulars, that is not in any sense capricious. Rather, it was said to be an appropriate empowerment of prosecutorial discretion as to what should be included in the count or not, thereby affecting the practical ability of an accused person to plead guilty to the count or not.
18. It was emphasised that the very breadth of the concept of "advantage" in the offence-creating provision was itself relied upon for the proposition that specificity as to the advantage alleged by the prosecution is an essential fact.
19. Finally, it was said that the two asserted advantages here - on the one hand, gratification through sexual assault, and on the other, financial gain through robbery, must be thought of as disparate from and incongruous with each other.

Determination

1. As I have said, the question requiring resolution here is whether the nature of the advantage intended to be obtain is, on the one hand, an element of the offence, or in some other sense a fact essential to proof of the count; or, on the other hand, a "mere" or non-essential fact that need not be proven before a verdict of guilty could be returned, and that is amenable to resolution in proceedings on sentence.
2. In my opinion, the answer is that the nature of the advantage is not an element or essential fact. I hold that opinion for the following reasons.

Structure of offence-creating provision

1. First, as the DPP submitted, the starting point is construction of the offence-creating provision. It can be seen that Parliament has decided to set out three intentions that can go towards constituting the offence: an intention to hold the victim to ransom, an intention to commit a serious indictable offence, or an intention "of obtaining any other advantage". It can also be seen that, in subsections 86(2) and 86(3), Parliament has delineated a large number of facts and circumstances that can go towards constituting the aggravated or specially aggravated form of the offence. Those facts and circumstances are in general conformity with other regimes of aggravation and special aggravation that appear elsewhere in the Crimes Act: see Part 3, Division 10 with regard to sexual offences and Part 4, Division 4 with regard to offences involving housebreaking.
2. The first sufficient intention set out is quite specific: an intention of holding the victim to ransom. So, in truth, is the second: the intention of committing a serious indictable offence. I say that because, although it appears amorphous in its terms, for reasons that I shall discuss later based upon the recent decision of Dean v R, I consider that in any indictments alleging the offence pursuant to s 86(1)(a1), it would be incumbent upon the prosecution to aver and prove the particular serious indictable offence alleged.
3. In contrast to those states of mind, however, and in contrast to the facts and circumstances giving rise to aggravation and special aggravation, it can be seen that s 86(1)(b) is very broad: it speaks of an intention of obtaining "any other advantage". It seems to me that, in context, Parliament has made a considered decision to permit that subsection to operate as a "catch-all", as I believe it does in practice as well.
4. It would be an odd result in theory, I think, if a catch-all provision required specificity. And it would be an odd result in practice as well if an accused person conceded that he or she had detained a victim, without the consent of the victim, and did indeed intend to obtain an advantage, and yet even so a trial of perhaps many weeks needed to be conducted, on the basis that the parties were in disagreement about precisely which of a multitude of possible advantage was sought to be obtained. I do not accept that that is the objective intention of Parliament expressed by way of the structure of the section itself.

Reflection on other offences in the same statute

1. Secondly, before me the DPP drew a sharp distinction between, on the one hand, this offence, said to require precision, and, on the other hand, an offence of robbery whilst armed with an offensive weapon, contrary to s 97 of the Crimes Act, said not to require precision as to the alleged offensive weapon or instrument. It was said that, in the latter case, if the prosecution alleged the use of a samurai sword, and the accused conceded the offence, but insisted that he or she had used a wooden ruler, a trial would not be required. And that was said to be the case whether or not the allegation of use of the samurai sword was stated as a particular in the indictment.
2. But I respectfully cannot see the difference: although "offensive weapon or instrument" is defined in s 4 of the Crimes Act, and "advantage" is not, the former is very wide, and nothing turns on the difference; in each case an open-ended category is provided for in the offence-creating provision ("any other advantage", "offensive weapon, or instrument"); and in each case some forms of fulfilment of the factual requirement may be thought of as more grave than others (sexual gratification as opposed to financial gain, brandishing a samurai sword as opposed to a wooden ruler).
3. I agree that classification of a factual assertion by the prosecution as an element at one end of the spectrum, a mere fact at the other end of the spectrum, and an essential fact perhaps somewhere in between, permits of no bright lines. But I cannot see why, in the setting of s 86, specificity should be required, in contrast to the setting of other offence-creating provisions in the Crimes Act.
4. To expand on that by way of another example: there are a number of definitions of sexual intercourse to be found in s 61HA of the Crimes Act. But I have never understood a trial to be required if a defendant concedes that, during a certain criminal incident, he or she had sexual intercourse with the victim, well knowing that the victim was not consenting, but there is a dispute between the prosecution and the defendant as to which precise form of sexual intercourse underpinned the admitted offence.
5. In short, I do not consider that an approach is to be taken to this offence that is in contrast to the approach taken to other well-known offences created by or referred to in the same statute.

No reason for elevation to being an essential fact

1. Thirdly, it is true that the elements of an offence are not the only matters that ever need to be proven by the prosecution beyond reasonable doubt. It is well known that, sometimes, factual assertions usually thought of as mere particulars are elevated to become "essential facts". Two often encountered examples spring to mind.
2. The first is when the accused admits that on a certain day he or she committed (for example) an armed robbery against the victim in a certain locality, and enters a plea of guilty. But it becomes clear in the proceedings on sentence that the accused and the prosecution are talking about two separate criminal incidents, because the unfortunate victim was in truth robbed on two occasions in the same location that day: on the one occasion in the morning $50 was taken by way of a wooden ruler being brandished, and on the latter occasion in the evening $5000 was taken by way of a samurai sword being brandished. In truth, the accused is admitting the earlier offence, and the prosecution is asserting that he or she committed the latter, much more serious, and entirely separate offence. If that kind of "crossed wire" is apparent, then the time of the offence and its true "occasion" or criminal incident become essential matters for proof, and a trial will indeed be required.
3. The second example is when in a trial it becomes clear that the trial will be unfair unless the prosecution is required to prove an identified essential fact beyond reasonable doubt. Consider a hypothetical allegation of child sexual assault said to have occurred in Sydney on Christmas Eve 2019. Even though the indictment speaks of the offence having been committed on a date between 1 and 31 December 2019, the complainant is adamant that the offence was committed on 24 December 2019. The accused has an ironclad alibi for that day, because he was indisputably in Los Angeles, California. He undoubtedly arrived in Australia on Boxing Day 2019.
4. If, near the conclusion of the trial, the prosecution sought to allege that the jury could return a verdict of guilty based on the new proposition that the offence was indeed committed on the evening of 26 December 2019, the trial judge may well insist that the prosecution be held to the proposition that the offence was committed on Christmas Eve.
5. In other words, there are at least two circumstances in which what appears at first blush to be a mere fact may be elevated into becoming an essential fact that requires proof beyond reasonable doubt. There may well be more.
6. Here, however, it is not suggested that there is any "crossed wire" between the DPP and the defendant about the particular criminal incident under discussion. Nor is there any basis upon which it could be said that fairness to the defendant calls for elevation of the question of the precise intention to the status of an essential fact.
7. In short, in my opinion, nothing in the proceedings so far provides a basis for elevation of the question of the specific advantage sought into being an essential fact.

No disadvantage to the prosecution

1. Fourthly, nor is any unfairness occasioned to the DPP on the basis of my analysis. On the assumption that detaining a person in order to sexually assault him or her is an aggravating feature above and beyond the conceded intention to rob the complainant, there is no fetter whatsoever on the DPP pursuing that allegation in the proceedings on sentence. The DPP will be entitled to call the complainant on oath, and any other evidence, in support of its proposition; the only difference will be that that will take place before a single judge as opposed to before a jury (leaving aside the possibility of trial by judge alone). And the onus and standard of proof will remain the same, whether or not the tribunal of fact is twelve citizens or one judge. And if the assertion is established, the defendant will be sentenced on the basis of it.

Procedural aspects

1. Fifthly, the DPP is correct to say that, in some statutory settings, what might seem at first blush to be a mere fact is, in truth, an essential element. For example, an offence of supplying a prohibited drug requires proof that a particular drug was supplied. The result is that, if a person stands trial on an allegation of supplying heroin, and he or she gives evidence that it was in fact cannabis, and there is a reasonable doubt about the nature of the prohibited drug, the accused will be acquitted. And, subject to s 128 of the Evidence Act 1995 (NSW) being able to be relied upon by the accused, there would be no difficulty about the accused later being found guilty of supplying cannabis based upon his or her own evidence.
2. Even so, I think that that approach is the exception rather than the rule. Apart from anything else, there are different maximum penalties available for cannabis, as opposed to other prohibited substances, provided for in the Drug Misuse and Trafficking Act 1986 (NSW).
3. Furthermore, I do not accept that that kind of procedural outcome was objectively intended by Parliament by way of this offence-creating provision. By that I mean, I think it most unlikely that Parliament intended that, in this case, there would be a trial about the specific intention; if the Crown failed to prove it, the defendant would be acquitted by verdict; thereafter, however, he would be liable to be rearraigned on an indictment alleging the exact same criminal incident, but with a different intention averred. I am slow to infer that such a time-consuming, costly, and unwieldy outcome could reflect the intention of Parliament.
4. Finally, whether or not the defendant saw fit to enter a plea of guilty to the alternative charge, sequence 4, may shed light on the question of practical disadvantage to him, and others in his position. But it sheds little light, in my opinion, on the fundamental question of classification requiring resolution by me.

Authority

1. Sixthly, I do not believe that authority stands in the way of the preceding analysis. I turn to discuss the most pertinent cases. I respectfully agree with counsel for the DPP that there is a surprising paucity of cases discussing the question of classification under discussion here.
2. In Dean v R, the applicant was charged with a number of offences, including an offence against s 33B(1)(a) of the Crimes Act. The variant of the offence that was charged was an allegation that the applicant possessed an offensive weapon (in the form of a rifle) with intent to commit an indictable offence. The indictable offence was not otherwise identified in the recitation of the count.
3. The prosecution case was that the indictable offence was murder (which carries a maximum penalty of imprisonment for life without possibility of parole). The case for the applicant was that he had indeed committed the offence, but the indictable offence that was intended was intimidation (which, pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), carries a maximum penalty of imprisonment for 5 years).
4. The learned sentencing judge, "largely at the urging of the parties", conducted a so-called "preliminary hearing" to determine whether the graver indictable offence alleged to have been intended had been proven beyond reasonable doubt. The sentencing judge determined that it had been, and proceeded to sentence the applicant accordingly.
5. In the Court of Criminal Appeal, it was said by Fullerton J (with whom Hoeben CJ at CL and R A Hulme J agreed) at [19] that: "…by the parties identifying the issue in dispute in the Crown's charging the applicant with a breach of s 33B(1)(a) without identifying the indictable offence it alleged he intended to commit by his possession of the rifle, and inviting the sentencing judge to resolve that dispute to the criminal standard, there is what I consider the clearest indication that a fact essential to the charge should have been particularised."
6. Reference was also made to CB v Director of Public Prosecutions [2013] NSWSC 618 at [42], which quoted the following portion of the leading judgment in R v VHP: As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.
7. In the event, the matter was remitted to the District Court. The following was said at paragraph 24 of the judgment of Fullerton J: In remitting the matter to the District Court it is for the Crown to frame Count 4 when the applicant is re-arraigned, as he will inevitably need to be. Whether the Crown avers as an essential particular to the offence against s 33B(1)(a) that the applicant possessed the rifle with the intention of killing his wife or whether the Crown accepts the reasonable possibility that he intended to intimidate her and frames the charge accordingly is a matter for the Crown in the exercise of its prosecutorial discretion. I simply note that in the event the Crown elects to prosecute the applicant on the basis of his possession of the rifle with an intention of killing his wife, it would seem a trial on that issue is inevitable.
8. It is noteworthy that the matter was formally remitted for trial, not any form of disputed sentence hearing.
9. In my opinion, the decision in Dean v R stands for the general proposition that, whenever a "sub-offence" is also an element of an encompassing offence appearing on an indictment, then the sub-offence must be stated on the indictment, and must be regarded as an essential fact or indeed an element. And so must its "sub-elements".
10. There are, after all, literally hundreds of indictable offences, created by statute or at common law. Not to so particularise the sub-offence, as occurred at first instance in Dean v R, could mean that the prosecution and the applicant were in truth speaking of completely different states of mind and completely different levels of gravity of offending. And I believe that the principle for which that case stands would inform s 86(1)(a1): the "serious indictable offence" would need to be stated, and its elements proven beyond reasonable doubt, in order for a verdict of guilty to be returned.
11. To provide an even more fundamental and often encountered example, if the allegation of the prosecution were in truth that an accused person committed a break, enter and steal, it is inconceivable that the count could simply be averred as "breaking, entering and committing a serious indictable offence", in accordance with the offence-creating provision in s 112 of the Crimes Act. On the contrary, it would be incumbent upon the prosecution not only to allege the offence of stealing, but also, for reasons discussed below, its subject matter.
12. In other words, in my opinion the "sub-elements" of the "sub-offence" become elements of the overarching offence, and must be pleaded, and proven beyond reasonable doubt.
13. None of that applies here, however, for the simple reason that no form of offence with its own elements is part of a charge brought pursuant to s 86(1)(b); in contrast, what needs to have been intended to be obtained is "any other advantage", an amorphous concept, and an amorphous element.
14. In Radic v R, the applicant was charged with having committed a break, enter and steal, and a large amount of valuable property was particularised. The value of the stolen property was particularised as $38,100, and it was particularised to include a number of pieces of jewellery and $1500 in cash. The applicant pleaded guilty in the Local Court, the plea was accepted, and he was committed for sentence in the District Court. In that forum, the applicant adhered to his plea of guilty, but notified a dispute about facts. The contention of the applicant was that he "only stole a drill", not jewellery, and that he had done so from "a shed attached to the house": at [9].
15. The Crown case in the proceedings on sentence was that the jewellery had been stolen from a storeroom inside the home itself. Fingerprints of the applicant had been found on the container said to have held the jewellery. The homeowner denied in cross-examination that a drill would have been kept in the storeroom. In the witness box, the applicant seemingly agreed that he had, in fact, entered the home, but said he had only taken a drill, which he sold subsequently for $40.
16. In the remarks on sentence, the learned sentencing judge expressed dissatisfaction to the criminal standard that "what was stolen was the jewellery". It was also said that the sentence "is not as long as it would be if I had found as a fact that Mr Radic had stolen the jewellery". It was also said by the sentencing judge that it was clear from the evidence of the householder that "there was a period of about a week during which the jewellery could have been stolen, and it is not impossible that someone else could have broken in."
17. On appeal, Carruthers AJ, with whom Hidden J and Badgery-Parker AJ agreed, emphasised the following. It was said that a plea of guilty "admits those matters which are of the essence of the charge. A plea of guilty does not, however, admits non-essential ingredients of the offence; at [30]: It is important to remember that a plea of guilty is a solemn matter; it has two effects: first of all it is a confession of fact; secondly, it is such a confession that without further evidence the Court is entitled to, and indeed in all proper circumstances will so act upon it, that it results in a conviction: see R v Bamford (1972) 2 NSWLR 261 at 263. Thus the plea admits those matters which are of the essence of the charge. A plea of guilty does not, however, admit non-essential ingredients of the offence: see R v O'Neill (1979) 2 NSWLR 582 at 588.
18. It was said at [32] that "there can be no doubt that a charge under s 112(1) of the Crimes Act, which relies upon stealing as the indictable offence, must identify specific property which is alleged to have been stolen." Thereafter, reference was made to the statement of general principle enunciated in VHP that I have extracted above.
19. At [34], it was said that: "the particularisation of the jewellery allegedly stolen by the present applicant was of the essence of the offence. This did not mean that if the matter went to trial the Crown would be required to prove that each item in the particulars was stolen; it would be sufficient for the Crown to prove that at least one item was stolen: See R v Hancock [1996] 2 Crim App R 554. Such particulars contained no reference to a drill and, indeed, the evidence available to the Crown, and led by the Crown, was that there was no drill present in the storeroom when it was broken into by the applicant."
20. It was said that, when it became clear that the applicant denied stealing the property particularised in the charge, a number of alternatives arose. They included the Crown prosecutor requesting remittal to the Local Court; the sentencing judge adopting the same course; or the sentencing judge refusing to accept the plea and setting the matter down for trial. Those options was said to arise from s 51A of the Justices Act 1902 (NSW) (since repealed, now s 97 of the Criminal Procedure Act).
21. Having said that, his Honour emphasised that a conviction had been entered, no appeal against it was mounted, and the Court had no power to set aside the conviction itself. For those reasons, a ground of appeal against sentence asserting manifest excess was ultimately determined on its merits, and upheld.
22. In my opinion, the decision in Radic v R can best be understood as an example of the "ships passing in the night" problem: in truth, the prosecution was alleging that the applicant had committed one offence at the one home, which pertained to jewellery and cash but did not include a drill, and he was asserting that he had committed another, namely the breaking, entering and stealing of only a drill. It is noteworthy that the sentencing judge spoke of the possibility of there having been another offender who had committed the entirely separate offence of taking the cash and jewellery. It is also noteworthy that the prosecution case was that there had never been a drill stored in the location where the fingerprint of the applicant had been found.
23. Separately, it is true that in Radic v R importance was placed upon the particularisation of the subject matter. It seems that, if the drill had been one of many items particularised in the charge, there would have been no defect in the applicant having pleaded guilty to it, even if the sentencing judge had been satisfied only about the drill having been taken. But in my opinion that was not to state that particulars must always be thought of as elements or essential facts; rather, I interpret that emphasis as being a way of avoiding the "ships passing in the night" phenomenon that had arguably arisen in that case. And in any event, in the case under present consideration there is no question of one advantage including the other: they are dichotomous.
24. In R v VHP, a single incident of child sexual assault had been alleged. The complainant was firm, but not absolutely sure, that it had occurred on a particular date. After the conclusion of the summing up, the foreman asked the learned trial judge, "one question before we start, are we bound to 27 November 1987?" That was answered, as were subsequent questions from the jury on the same general topic. Eventually, the jury returned a verdict of guilty. On appeal, the submission for the Crown was that the trial judge had indeed instructed the jury that they could only return a verdict of guilty if they were satisfied of that specific date. The submission of the applicant was that the trial judge had given the jury to understand that they could return a verdict of guilty even if not so satisfied.
25. Gleeson CJ, with whom Handley JA and Studdert J agreed, was of the view that the trial judge had not "clearly and unequivocally" instructed the jury either way. Thereafter the Chief Justice delivered the passage that I have extracted above. In the event, the Crown conceded on the appeal that the trial was indeed one of the cases in which the "qualification to the general rule" applied, and the date was indeed "of the essence" or "vital" to proof of the Crown case. In that circumstance, an appeal against conviction was allowed.
26. In my opinion, the exception spoken of in R v VHP cannot apply here. That is because my understanding of the exception is that it almost always arises in circumstances in which not to make a factual allegation an essential fact would work an injustice to the accused, by way of (for example) the prosecution effectively changing its case, or broadening its case, or the accused being put in a position in which he or she is unable to mount an effective defence. But none of those circumstances are apparent here: apart from anything else, no trial has been conducted, and indeed the applicant submits that no trial should ever be conducted.
27. Finally, contrary to the reliance by the defendant upon Maxwell v The Queen, it is true that there is a large body of law about the topic of persons being permitted to plead guilty who are not actually guilty, or who do not believe themselves to be actually guilty, and the circumstances in which such persons should be held to their plea. But I believe that that learning has little to do with this case. If it be the case that a person enters a plea of guilty to an offence, whilst at the same time explicitly denying an element or essential fact of that offence, in my experience it is common for such a plea to be rejected. On the assumption that an intention to obtain a sexual advantage was an element or essential fact, in my opinion the course adopted here of committal for trial was appropriate; the underlying question is the basal one of classification anterior to that assumption that I have discussed at length.
28. In short, I do not consider that any of the leading authorities stand against my approach to this question.

Conclusion

1. In short: proof of an intention to obtain an advantage during the period of taking or detaining is an element of the offence that must be proven beyond reasonable doubt; so much is clear from the words of the offence-creating provision itself. But I do not believe that a specific particularised advantage is an element that must be so proven. And in the circumstances of this case, there is nothing that elevates the mere fact of one alleged advantage, as opposed to another conceded advantage, into becoming an essential fact.
2. On the basis of that analysis, I respectfully believe that the magistrate committed a legal error in refusing to accept the plea of guilty of the defendant. I believe that the defendant should have been committed for sentence, not trial.
3. Finally, it can be seen that the starting point of my analysis is based upon attributes of the structure of the offence-creating provision. If the outcome of my analysis is seen to be undesirable, I respectfully think that it is a matter for Parliament to bring greater specificity to the relevant part of the section.

Orders

1. The parties agreed that, whatever the outcome, each of them would bear its or his own costs. I am content with that agreed position.
2. They also ultimately agreed that, in light of the fact that the order for committal has been superseded by the finding and filing of a bill of indictment in any event, even if the defendant succeeded I should not make the orders originally sought (such as quashing the order for committal for trial), on the basis that they would be fruitless. Instead, they offered to draft consent orders in accordance with my ruling, which orders may include undertakings on the part of the Director to proceed in a certain way. I accept that helpful and constructive offer as well. If I am content with those proposed orders, I shall make them in Chambers.
3. At this stage I simply make the following orders: 1. As soon as reasonably practicable, the parties are to file draft consent orders that advance the prosecution of the matter, in light of my finding that, it was a legal error on the part of the magistrate to commit the plaintiff for trial, as opposed to sentence 2. Each party is to bear its or his own costs. ------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2020