Harkins v R

Court of Criminal Appeal (NSW)|2015-08-19|Before: Macfarlan JA, Hulme J, Wilson J, MacFarlan JA

Solicitors: Blair Criminal Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/228752 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 05 November 2014 Before: Bennett SC DCJ File Number(s): 2013/228752

Judgment

MACFARLAN JA: By a judgment dated 8 August 2014 a District Court judge, sitting without a jury, convicted the appellant of an offence that on 27 July 2013 in Alexandria, New South Wales, he "used an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself" (see s 33B(1)(a) of the Crimes Act 1900 (NSW)). He was acquitted of a similar charge relating to an earlier incident but pleaded guilty to, and was convicted of, an offence of driving a motor vehicle without the consent of the owner, whilst another person was in the motor vehicle (see s 154C(1)).
The appellant appeals (or in the case of the first ground, seeks leave to appeal) against the first conviction on the following grounds: "1. The learned trial judge's verdict on count two was unreasonable and cannot be supported having regard to the evidence. 2. His Honour erred in holding intoxication was irrelevant to the issue of whether or not the appellant used the vehicle as an offensive instrument. 3. Should the conviction verdict on count two be quashed, it is submitted that the appellant should be resentenced on count three."

Constable Conroy's Evidence

Constable Brendan Conroy gave evidence that on the evening of 27 July 2013 he and Constable Karina Stennett responded to an emergency call regarding an attempted break-in in the Alexandria area. They identified a gold sedan vehicle that they thought might contain the suspect when it stopped at a set of traffic lights. The driver (Mr Adam Toutou) got out of the vehicle and told the police officers that "he's in there", pointing to his vehicle. The officers saw a person, now known to be the appellant, climbing from the back seat into the front seat of the vehicle and attempting to start it, with a passenger (Mr Malcolm Nelson) endeavouring to stop the appellant both entering the front seat and starting the engine.
Constable Conroy continued: "16. I grabbed the accused's right arm using my left hand to remove him from the vehicle and also attempted a number of times to turn the gold sedan off with my right hand. The accused was sweating profusely, his skin was cold and clammy. At this time I could see Constable Stennett also had hold of the accused. The accused, using his right hand, grabbed my right arm in an attempt to stop me from turning the vehicle off, attempting to force my hand away from the ignition. The accused then struck my right arm a number of times. 17. The gold sedan began to rev loudly and jumped forward a number of times knocking me off my feet as it jumped. At this time my hand was still on the key of the vehicle, the accused's arm had hold of my arm to attempt to remove my arm and the door had closed on me. I was then dragged with the vehicle for about 10 metres before the accused let go of my right arm. I managed to regain my footing, leaning on the door and began running alongside the vehicle before coming free from the vehicle. As I came free from the vehicle the vehicle was veering right. I ran to the right, taking evasive action to avoid being hit by the rear tyre of the vehicle and also the door as it shut closed with the vehicle's momentum. I quickly looked back to make sure that Constable Stennett was ok" (Police Statement, 28 July 2013).

Constable Stennett's evidence

Constable Stennett gave the following evidence: "Constable Conroy had alighted from the police vehicle and made his way to the driver's door of the gold sedan. I called, 'urgent', several times from the car radio. I alighted from the vehicle and made my way to the driver's side of the vehicle with Constable Conroy. Constable Conroy had hold of the right hand of the male. The male whom I now know to be the accused, Aaron Harkins, was sweating profusely. I heard Constable Conroy speak, 'it is the police, get out of the car, stop the car'. I heard a loud revving noise and observed the accused put the vehicle into first gear. The vehicle was bunny hopping in a forward motion. Constable Conroy and I still had hold of the right arm of the accused. The accused was hitting Constable Conroy in an attempt to free himself. Constable Conroy had made several attempts to pull the keys from the ignition. The accused managed to accelerate the vehicle by holding his right foot on it. I jumped out of the way, avoiding the rear tyre of the vehicle. Constable Conroy was being dragged up … alongside the vehicle. This action became dangerous. Constable Conroy let the accused go. Constable Conroy had been dragged alongside the vehicle for approximately 10 metres" (Transcript, 26 June 2014, p 58).

Mr Toutou's evidence

Mr Toutou gave the following evidence: "12 … by this time [when the police ran towards the vehicle] the male in the back seat of my car had got in the driver's seat by jumping through between the seats. The male was trying to drive off. Malcolm was trying to wrestle him and stop him from taking the car. The police officers ran around to the driver's side of my car. The driver's door was still open. The police officers were trying to pull the male out of the car. The male had his foot on the accelerator. The wheels started to spinning [sic] and he has taken off straight through a red light and just missed t-boning another car travelling along Swanson Street. Malcolm was still in the front passenger seat of my car. My car turned left onto Swanson Street and was fish tailing before crashing through and [sic] post box and into the wall of a house'" (Witness Statement, 27 July 2013).

Mr Nelson's evidence

Mr Nelson gave the following evidence: "6 There was a cop van behind us while we were stopped at the red light. Adam jumped out of the car I stayed in the car, the man got out of the back seat out the door and jumped into the front seat. I was trying to push him out and Adam was at the driver's side door trying to pull him out. The driver's side door was open. There were two police officers trying to get him out of the car as well. The man had his foot on the accelerator and drove the car left onto Swanson Street. The car went onto the wrong side of the road, there was a car coming toward us" (Witness Statement, 27 July 2013).

The appellant's evidence

The trial judge summarised the appellant's evidence as follows: "[The appellant] says that he climbed through the centre console to get into the driver's seat; this was the quickest way he could enter the driver's seat to make his escape. Mr Nelson was attempting to push him back as he did this but clearly he was unsuccessful. He said he wedged himself with his left foot in the driver's seat so that he could not be moved by anyone. He could not say whether the door was open or closed but appears to accept from what was said beforehand that the door must have been open. He was being pulled to the right from the car: 'They're grabbing my arm, they're grabbing my shoulder. All the while this is going on you've got the bloke in the passenger seat trying to pull me out through - like out of his way so I'm effectively wrestling with this bloke and the other people here.' He did not know how many people were there. I noted that when he said this, the accused pointed to his right. He said his focus was getting the car into drive and the park brake off and that he was frightened. He did not look at the people to his right. His focus was on the windscreen. He said he had a fair idea the people were the police. He said he was trying to get the park brake off and the car into gear and his left foot was pushing to lock him against the seat. The car was in low gear. He could not say whether he did that deliberately. He had no memory of the vehicle bunny hoping [sic] as described by the police officers but he said that he was not saying that that did not happen, only that it was unlikely. [H]e said he was stopping the constable from turning off the car. He was trying to move his hand away; that is what he thought the constable was trying to do. He denied trying to knock the constable over or drag him along or hit him with the back of the car or run over the constable's feet. He saw no-one being dragged; they were just using their arms. Then he described what happened after he drove off and the collision" (Judgment pp 36-37 references omitted).

THE CRIMES ACT 1900 (NSW)

The following provisions of the Crimes Act 1900 (NSW) are of present relevance: "4 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires: … Offensive weapon or instrument means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. 33B Use or possession of weapon to resist arrest etc (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years. … Part 11A Intoxication 428A Definitions … intoxication means intoxication because of the influence of alcohol, a drug or any other substance. … offence of specific intent is defined in section 428B. … 428B Offences of specific intent to which Part applies (1) An offence of specific intent is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent. Table (a) an offence under the following provisions of this Act: … 33B Use of weapon to resist arrest etc … (b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence: … 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced - cannot be taken into account, or (b) if the intoxication was not self-induced - may be taken into account. 428E Intoxication in relation to murder, manslaughter and assault causing death (1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder: (a) in the case of intoxication that was self-induced - evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or (b) in the case of intoxication that was not self-induced - evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A. (2) An offence under section 25A is not an offence of specific intent for the purposes of this Part. … 428G Intoxication and the actus reus of an offence (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. (2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. 428H Abolition of common law relating to self-induced intoxication The common law relating to the effect of intoxication on criminal liability is abolished."

THE JUDGMENT UNDER APPEAL

The trial judge accepted the Crown's submission that it needed to prove that the appellant had two forms of intent in order to establish the charged s 33B offence, namely, an intention to use the vehicle in question as an offensive instrument and an intention to prevent his lawful apprehension (Judgment pp 10 - 11). His Honour said that he was satisfied of the existence of the second and that issue had been joined in relation to the existence of the first, with which he then proceeded to deal (Judgment p 11).
His Honour quoted the following passage from the judgment of Gleeson CJ (with whom Hunt CJ at CL and Ireland J agreed) in R v Hamilton [1993] 66 A Crim R 575 at 577: "The noun 'instrument', in this context, means a thing with or through which something is being done, or effected. The adjective 'offensive' means something that is adopted or used for the purpose of attack. The question whether an object or article is an offensive instrument raises for consideration the nature of the object, the uses of which it is capable, and the intention of the person who is using it on the occasion in question. An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of the use to which a person puts it, and the intention which accompanies such use."
His Honour then referred to a number of cases, including Hamilton, in which an offender was convicted of the relevant offence after driving threateningly towards someone.
His Honour said that each of the alternatives listed in subsection (c) of the "offensive weapon or instrument" definition in s 4 of the Crimes Act (see [10] above), requires first "that the accused turned his mind to the use he intended, threatened or executed and [secondly] that he in fact intended to use or to threaten the use of the vehicle as an offensive instrument" (Judgment p 20).
His Honour found that the appellant was intoxicated at the relevant time and that the intoxication was self-induced. His Honour continued: "The provisions in Part 11A are concerned with crimes of specific intent, and by force of s 428C, the use to which the question of intoxication may be put is with regard to the intention to cause the specific result necessary to prove the offence of specific intent. In my judgment a plain reading of the legislation leads to no other conclusion and in the circumstances the intoxication of the accused at the time is not a relevant consideration with regard to the use to which he put the vehicle" (Judgment p 24).
After referring to Constable Conroy's evidence (see [5] above]), his Honour concluded: "Upon that description I have no doubt that the accused used the vehicle as an offensive instrument and I make that finding regardless of the direction of the vehicle moving to the right as described by Constable Conroy. Whether the vehicle had veered to the right or was driven forward, whilst his arm was within the vehicle and the accused was attempting to strike his arm to have him withdraw it, those circumstances in my view lead to the only rational conclusion that he was using the vehicle as an offensive weapon for this specific intent charged" (Judgment p 35).
His Honour then reached the following conclusion as to the applicant's guilt: "I have brought to account the time over which this interaction occurred before the vehicle made off, the contact between the accused and the police officers as they sought on one hand to have the motor turned off and the other to take hold of the accused, and his decision to drive the vehicle forward to avoid apprehension. From the circumstances, as I have said, I have no doubt that the only rational conclusion to draw is that he was using the vehicle as an offensive instrument and in respect of that matter I am satisfied of the guilt of the accused beyond reasonable doubt" (Judgment p 37).

DETERMINATION OF THE APPEAL - GROUND ONE: UNREASONABLE VERDICT

In support of this ground of appeal, the appellant submitted that, unlike the position in the cases to which the trial judge referred, there was no evidence that the appellant was "driving at" anyone. To the contrary, he submitted, "all the evidence was to the effect that [he] was driving, or attempting to drive, away from" Constable Conroy (Appellant's Written Submissions [75]). The appellant contended that, because of the struggle over the steering wheel that was occurring, the Crown had not established "that the appellant was 'in control of the motor vehicle' in the sense that phrase is used in Hamilton" and that it was therefore not "open to the trial judge to conclude that the appellant was deliberately steering to his right" and thus towards the police (ibid [82], [84]).
However, the trial judge did not base his conclusion that the appellant used the vehicle as an offensive instrument upon a finding that the appellant was in control of the steering wheel and attempting to steer the vehicle to the right, and therefore towards Constable Conroy. Instead, his Honour's conclusion was expressly stated to be "regardless of the direction of the vehicle moving to the right as described by Constable Conroy" (see [16] above).
The trial judge appears to have concluded that the appellant used the vehicle as an offensive instrument because he accelerated for the purpose of breaking Constables Conroy and Stennett's grips, or attempted grips, on him regardless of whether he also had control of steering the vehicle's direction.
The evidence supports this conclusion. Constable Conroy's evidence, which was corroborated by the other witnesses, was that he had hold of the appellant's right arm with his left hand and attempted to remove the appellant from the vehicle whilst also attempting to turn off the ignition with his right hand. Constable Stennett also had hold of the accused and, from the other side, Mr Nelson tried to push the appellant out of the vehicle. Whilst this was occurring the appellant pressed the accelerator with his right foot causing the vehicle to move forward, perhaps somewhat to the right.
As the trial judge found, the appellant did this in order to evade apprehension. Indeed, the appellant admitted as much in his evidence in chief when, in response to a question as to what was going through his head at that time, he answered: "I've got to get away. I've got to get out of here. I've got to get away" (Transcript, 1 July 2014, p 148). He denied that he was attempting to knock Constable Conroy over, drag him along, hit him with the back of the car or run over his foot (ibid p 149). In order to evade apprehension, the appellant clearly needed to break free from the police officers' holds. His intention to evade apprehension therefore encompassed the more immediate purpose of wresting himself free.
By accelerating the vehicle, he successfully used it to break himself free of the police officers' holds. In my view, that constituted the appellant's use of the vehicle as "an offensive weapon" regardless of the fact that he may not have intended that use to harm the police officers.
Whilst the use of an offensive weapon is most commonly accompanied by an intent to injure or threaten someone, the expression has a broad meaning that encompasses what occurred in this case, namely, using an instrument in a positive fashion to achieve an object which, in the case of s 33B, is the prevention or hindrance of lawful apprehension. Thus "[t]o go on the offensive" is an expression commonly used in sporting and other fields to refer to positive action to achieve an objective. An intention to harm is not required. Use of an offensive weapon or instrument can therefore occur without an intent to cause or threaten harm. The following parts of the Oxford English Dictionary definition of "offensive" are consistent with this approach: "The position or attitude of attack; aggressive action; an aggressive act; forceful or aggressive action or movement directed towards a particular end, a sustained campaign or effort."

DETERMINATION OF THE APPEAL - GROUND 2: INTOXICATION

In support of this ground, the appellant submitted that s 428C of the Crimes Act (see [10] above) rendered the appellant's intoxication relevant to a consideration of whether or not the appellant used the subject vehicle as an offensive instrument because of s 428B(2)'s classification of an offence under s 33B as an offence of "specific intent".
In response, the Crown adopted the trial judge's view that s 428C was instead only concerned with an intention to cause a specific result which, in the case of s 33B, is the prevention or hindrance of lawful apprehension.
As Brennan J observed in He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 at 566: "It is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by implication"(citations omitted).
Brennan J went on to distinguish between the concepts of voluntariness, general intent and specific intent as follows: "Judicial examination of the distinction between the various forms of mens rea has not been extensive. Thus, Barwick C.J. who had noted in O'Connor that mens rea ordinarily requires a general or basic intent at least to do the physical act involved in the crime charged, observed in Ryan that - ' ... there has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to it the general intent with which that will was exercised.' Nonetheless, voluntariness and general intent are distinct mental states. General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate" (at 569-570 citations omitted).
Mason CJ, Brennan J and McHugh J in The Queen v Falconer [1990] HCA 49; 171 CLR 30 at 39 and the plurality in The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [24] approved of Brennan J's discussion of this topic.
The Honourable Paul Whelan referred to these concepts in his Second Reading Speech preceding the introduction of Part 11A (which is concerned with intoxication) into the Crimes Act (as quoted in R v Grant [2002] NSWCCA 243; 55 NSWLR 80 below). The Interpretation Act 1987 (NSW) permits consideration of Second Reading Speeches where doing so will assist in ascertaining the meaning of a statutory provision (see ss 34(1), 34(2)(f)). Mr Whelan said: "The present law in New South Wales is that a person charged with a criminal offence, including murder, might be acquitted altogether if there is evidence that the accused was so intoxicated at the time of committing the act that there was a reasonable doubt whether the accused had acted intentionally or voluntarily. This reflects the common law as stated by the High Court in The Queen v O'Connor [1980] HCA 17; 146 CLR 64. It reflects the principle that a person should not be held criminally responsible for an act in the absence of proof that the accused acted voluntarily and with the required mental element for an offence. This is also the law in the other common law jurisdictions of Victoria, South Australia and the Australian Capital Territory. By contrast, in the case of Regina v Majewski [1977] AC 443, the House of Lords in England held that evidence of self-induced intoxication may be considered in relation to offences of specific intent only, and cannot be considered in relation to offences of basic intent. The Majewski approach reflects generally the position in the code jurisdictions, as well as Canada and the United States of America. An offence of basic intent is an offence which simply requires an intention to perform some act - such as striking a person - rather than one requiring an intention to bring about some consequences, such as striking a person with intent to cause grievous bodily harm. An offence of specific intent is thus one involving an additional purposive element, that is, a specific purpose or an intention to achieve a particular result. Murder is such an offence. It requires proof that the accused acted with an intention to kill or inflict grievous bodily harm. By contrast, an offence of basic intent requires proof only that the accused intended to commit the act proscribed. Manslaughter is such an offence. It requires proof only that the accused committed an unlawful or dangerous act".
Mr Whelan then referred to the new legislation as incorporating the Majewski approach.
In the terminology of He Kaw Teh, reflected in Mr Whelan's speech, the requirement under s 33B that the accused intended "to prevent or hinder lawful apprehension or detention" is a requirement of specific intent because the relevant intention is to cause a particular result. Understandably, s 33B is therefore characterised by s 428B(2) as an offence of specific intent.
As the trial judge in the present case pointed out, another type of intent must also be proved under s 33B, namely, to use something as an offensive instrument. This is a "general or basic intent" relating to the doing of the act in question. As Brennan J pointed out in He Kaw Teh, "proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent" (at 570). As his Honour also pointed out in the passage quoted in [28] above, the need to prove such a general intent is distinct from the additional requirement that the relevant act be voluntary.
The question that remains is how, if at all, Part 11A deals with this basic or general intent element of a provision that also requires proof of a specific intent and that is characterised as creating an offence of specific intent. Section 428C does not address this question, at least not expressly, as it is only concerned with the relevance of intoxication in determining whether the accused had "the intention to cause the specific result necessary for an offence of specific intent". This does not encompass the basic or general element of s 33B to which I have referred.
Nor does s 428D, at least not expressly, address this question because that section concerns the determination of "whether a person had the mens rea for an offence other than an offence of specific intent". Section 33B however creates an offence that is of specific intent.
Furthermore, s 428G does not assist in answering the question because it is concerned with the determination of whether the relevant conduct was voluntary. As Brennan J pointed out in He Kaw Teh, voluntariness and basic or general intent are distinct concepts (see [28] above).
Section 428H is similarly unhelpful, although in stating that the common law relating to the effect of intoxication on criminal liability is "abolished" it indicates that recourse cannot be had in answering the present question to the common law principle stated in The Queen v O'Connor [1980] HCA 17; 146 CLR 64 that evidence of self-induced intoxication is relevant in determining whether a person accused of a criminal offence had the mental element prescribed in respect of that offence.
In my view, the reasoning that leads to the correct answer to the present question is as follows.
Considered as a whole, Part 11A manifests a legislative intention to preclude intoxication from being taken into account except in the circumstances identified in that Part. This is most clearly evident from s 428H which, as discussed above, abolishes the common law principle allowing intoxication to be taken into account in determining criminal liability. Mr Whelan's Second Reading Speech provides further evidence of this policy (see [30] above). The only exception to the policy is that stated in s 428C which permits intoxication to be taken into account in determining "whether the person had the intention to cause the specific result necessary for an offence of specific intent". For the reasons given above, the intention presently in question, namely, to use the vehicle as an offensive instrument, is not intention of that type, although the intention to which s 33B also refers, namely, of preventing or hindering lawful apprehension or detention, is. However, that latter intention is not in issue as the trial judge's finding that it was present was not challenged.
Part 11A does not expressly prohibit regard to intoxication in respect of the basic or general intent presently in question because s 428D only applies to "an offence other than an offence of specific intent" and s 33B is an offence of specific intent. Nevertheless, Part 11A impliedly achieves that result because, as I have said, it manifests a legislative intention to prohibit regard to intoxication except where specifically permitted by the Part, with no such specific permission being presently relevant. As a result, the trial judge was correct in concluding that the appellant's intoxication was irrelevant to the determination of whether he had the basic or general intent of using the vehicle as an offensive instrument. While any ambiguity that remains after applying the ordinary rules of statutory construction should be resolved in the appellant's favour because the Crimes Act is a penal statute (Barker v The Queen [1983] HCA 18; 153 CLR 338 at 355), in my view no such ambiguity exists.
R v Grant is not inconsistent with this conclusion. In that case, the Crown's case that the appellant was guilty of murder was left to the jury to decide on the basis of whether he had a specific intent to kill or to cause grievous bodily harm, or on the alternative basis of reckless indifference to human life. Following conviction, the appellant's appeal was allowed because this Court found that the trial judge had misdirected the jury that the appellant's intoxication, whilst relevant to the formation of a specific intent to kill or to cause grievous bodily harm, was not relevant to the issue of whether the appellant was recklessly indifferent to human life.
The Court held that murder, in all its forms, came within the ambit of s 428C of the Crimes Act. Wood CJ at CL (with whom Spigelman CJ and Kirby J agreed) concluded as follows: "97 Bearing in mind the existence of the express provision (s 428E) relating to the offence of manslaughter, which prevents an accused, whose intoxication is self induced, from escaping criminal responsibility (as might formerly have occurred), the potential complexity for a jury where a case is left upon the alternative bases of specific intent, and reckless indifference and/or manslaughter, the comparable degree of heinousness which attaches to murder however committed, the nature of the malice aforethought involved, and the terms in which s 428B(2) is framed, I have reached the conclusion that the legislature should be taken as having intended that murder, in all of its forms, should come within the operation of s 428C. Had it been intended to apply a distributive effect to it, so that s 428C was applicable only to murder dependent upon intent to kill or to cause grievous bodily harm, then it might have been expected that it would have been included in part (b) of the table to s 428B(2), rather than in part(a)".
As is apparent from this paragraph, his Honour relied upon a number of presently irrelevant matters including s 428E's express provision relating to the offence of manslaughter, the "comparable degree of heinousness which attaches to murder however committed" and "the nature of the malice aforethought involved". His Honour's reference to "potential complexity" may have some analogy to the present case. However, that analogy is limited because a jury should not have any significant difficulty in following instructions that relate, on one hand, to a general intention to use an offensive weapon or instrument and, on another, to an intention to achieve the result of preventing or hindering lawful apprehension.
Moreover, Wood CJ at CL relied on a reference to "murder" in part (a) of the Table to s 482B(2) as supporting the contention that s 428C was intended to apply to murder in all its forms. The issue is different in relation to s 33B as there are not two distinct, alternative, ways in which the offence can be committed. Rather, the use of an offensive weapon or instrument, as well as the intent to prevent or hinder lawful apprehension, is required in all cases. The simple reference to s 33B in part (a) of the table to s 428B does not therefore have the same significance as the reference to "murder" in that part of the table.
I add that had I taken a different view in relation to the appellant's second ground of appeal and concluded that the trial judge had erred in directing himself that the appellant's intoxication was irrelevant to the formation of an intent to use the vehicle as an offensive instrument, I would nevertheless have proposed that the appeal be dismissed by reason of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). Under that proviso, an appeal may, and indeed should, be dismissed if the appellate court "considers that no substantial miscarriage of justice has actually occurred". This proviso is applicable in circumstances such as the present if the appellate court concludes that the trial judge's erroneous direction "could not have deprived the appellant of a chance of acquittal that was fairly open to him or her" (Filippou v The Queen [2015] HCA 29 at [15]).
I am persuaded that what I assume for present purposes was a misdirection by the trial judge did not deprive the appellant of a fairly open chance of acquittal. There is no challenge to the trial judge's finding that, notwithstanding the appellant's intoxication, he intended to prevent or hinder his lawful apprehension or detention. This conclusion was obvious on the evidence at the trial. In the circumstances of this case, that intention necessarily encompassed the appellant's basic or general intent to use the vehicle as an offensive instrument (assuming the correctness of my conclusion in respect of Ground One of the appeal). Thus, the appellant's struggle to wrestle free of the police officers' hold and his pressing of the vehicle's accelerator were designed to assist him in evading lawful apprehension. They both served not only that purpose but also the more immediate, and entirely consistent, purpose of freeing himself. A finding that the appellant's intoxication did not prevent him forming the intent to achieve the more immediate purpose, as well as the intent to prevent or hinder his lawful apprehension, would have been inevitable if the trial judge had considered that, as a matter of law, he was able, or bound, to take into account the appellant's intoxication in determining whether the appellant intended to use the vehicle as an offensive instrument.

ORDERS

As neither Ground One nor Ground Two of the appeal has any merit and the appellant accepted that Ground Three would only arise in the event that he was successful on one of his other grounds of appeal, the following orders should be made: 1. Refuse leave to appeal in respect of Ground One. 2. Dismiss the appellant's application for leave to appeal and appeal.
R A HULME J: I agree with Macfarlan JA.
WILSON J: I agree with Macfarlan JA.

Amendments 30 September 2015 - Amendment to case title on coversheet 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: 30 September 2015

quoted in R v Grant [2002] NSWCCA 243; 55 NSWLR 80 below). The Interpretation Act 1987(NSW)

Crimes Act 1900(NSW)s 33B(1)(a)

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