Herro Trading P/L v Kang & Anor [2001] NSWCA 309 (30 August 2001)

Last Updated: 21 September 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: DPP v Allan Ebsworth & 1 Or [2001] NSWCA 318

FILE NUMBER(S):

40451 of 2001

HEARING DATE(S): 07/09/01

JUDGMENT DATE: 07/09/2001

PARTIES:

Director of Public Prosecutions

v

Allan Ray Ebsworth & Anor

JUDGMENT OF: Mason P Meagher JA Sheller JA

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S): 81 of 2001

LOWER COURT JUDICIAL OFFICER: Barnett AJ

COUNSEL:

Appellant: G E Smith

1st Respondent: R Burgess

SOLICITORS:

Appellant: Director of Public Prosecutions

1st Respondent: Legal Aid Commission

CATCHWORDS:

Admission of person accused of a criminal offence into Drug Court program - definition of 'eligible person' - meaning of 'an offence involving violent conduct' - whether assessed in relation to particular acts of accused or elements of offence charged - whether threat of violence constitutes violent conduct for purposes of Drug Court Act - appeal allowed.

LEGISLATION CITED:

Drug Court Act 1998

Crimes Act 1900

DECISION:

Declaration that his Honour Barnett ADCJ of the Drug Court in NSW erred in finding that the offence charged under section 97(1) of the Crimes Act 1900 against Mr Ebsworth was not an offence involving violent conduct within section 5(2)(b) of the Drug Court Act 1998; No order to costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40451 of 2001

MASON ACJ

MEAGHER JA

SHELLER JA

Friday, 7 September 2001

DIRECTOR OF PUBLIC PROSECUTIONS v ALLAN RAY EBSWORTH AND ANOR

Judgment

1 MASON ACJ: If one confines oneself to the criminal pleading as distinct from the facts the Crown expects to prove in this case, this was in my view "an offence involving violent conduct", with the consequence that the person charged was not an eligible person within s5 of the Drug Court Act 1998. That is because a necessary element of the offence of the robbery charged will be proof of the use or threat of violence.

2 The judgment below turns upon a distinction between the use of violence and the threat of violence as the means of putting the victim in fear. In my view that is a distinction without difference in the present context. In either case, "violent conduct" is involved in the offence charged (see Chandler v DPP (2000) 49 NSWLR 1 at 4, per Powell JA.) The Act does not refer to violent conduct giving rise to physical injury.

3 s5(2)(b) of the Drug Court Act, states that a person is not an eligible person if the person is charged with "an offence involving violent conduct or sexual assault". Language of such generality does not, in my view, support the distinction urged upon us by counsel for Mr Ebsworth in her able submissions, namely a distinction between an assault based on a threat of violence and a battery, however slight.

4 For those reasons, I am of the view that it was not open in law for Barnett ADCJ to be satisfied that the first opponent was an eligible person.

5 I agree with the reasons of Meagher JA and with the orders that he proposes.

6 MEAGHER JA: This is a summons filed by the Director of Public Prosecutions seeking prerogative and declaratory relief in relation to a finding made by Acting Judge Barnett on 13 June 2001 in the Drug Court of New South Wales, on s5(2)(b) of the Drug Court Act 1998.

7 From the judgment of his Honour below, the facts, if they be relevant, which I do not think they are, would seem to be that on Sunday 11 February 2001 the first opponent entered Paddington Fine Wines armed with a baseball bat, along with three other men. The first opponent walked up to the counter carrying the baseball bat and walked around the counter. There were two men working in the shop at the time. The first opponent held the bat at chest level near one of the shop attendants, Mr Fowler.

8 There was some evidence before his Honour that Mr Fowler was slapped or pushed, but it is not clear by whom. Notwithstanding this difficulty, it is clear that force was inflicted on Mr Fowler during the robbery. The offenders took notes and coins from the till, totalling approximately $500. They also took some bottles of Bourbon, cigarettes and two mobile phones.

9 As I have said, they were the facts found by his Honour though I do not think they are relevant to the present case.

10 The first opponent, Mr Ebsworth, was arrested and charged on 12 February 2001 with offences under s97(1) and s154A of the Crimes Act 1900. The charge under s97(1) alleged an offence of armed robbery whilst armed with an offensive weapon. It read as follows:

"That Allan Ray Ebsworth on 11 February 2001 at Paddington in the State of New South Wales did rob Matthew Fowler and Jared Keen of certain property, to wit, $500 in cash, two mobile phones, three bottles of Bourbon and ten packets of cigarettes, the property of Paddington Fine Wines, whilst armed with an offensive weapon, to wit, a baseball bat."

The conjunction of the verb, to rob, and the noun, baseball bat necessarily imply either actual violence or a threat of violence.

11 For the purpose of the present case the first opponent Mr Ebsworth should be given the benefit of the doubt and both matters treated as involving no more than a threat of violence.

12 For the purpose of this appeal, it is only necessary to consider the charge under s97(1). It is not necessary to consider the charge under s154A.

13 Later on 12 February 2001, the first opponent appeared before Central Local Court. He was refused bail and remanded in custody. On May 2001 he applied for the proceedings to be transferred to Parramatta Local Court so he could seek referral to the Drug Court of New South Wales.

14 After a couple of adjournments the proceedings were listed before his Honour Acting Judge Barnett to determine the first opponent's eligibility for acceptance into that Court's programme under s7(2)(b) of the Drug Court Act. s5 of that Act provides a definition of `eligible person'. It is as follows:

5. Definition of "eligible person"

(1) A person is an eligible person if:

(a) the person is charged with an offence, other than an offence referred to in subsection (2), and

(b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted, be required to serve a sentence of full-time imprisonment, and

(c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and

(d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and

(e) the person satisfies such other criteria as are prescribed by the regulations.

(2) A person is not an eligible person if the person is charged with:

(a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Division 3 of Part 2 of the Criminal Procedure Act 1986) is capable of being dealt with summarily, or

(b) an offence involving violent conduct or sexual assault, or

(c) any other offence of a kind prescribed by the regulations.

15 The issue before his Honour and on appeal is whether the offence under s97(1) of the Crimes Act that the first opponent has been charged with, constitutes an offence involving violent conduct as provided in s5(2)(b). "Violent conduct" is not defined in the Act, nor is the word, "violent".

16 In determining whether it was or was not, his Honour considered one must look at the facts of each particular case. His Honour set out his findings in relation to the conduct of the first opponent as follows:

"Now there is no suggestion anywhere that the applicant actually used the baseball bat. The victim Matthew Fowler said in paragraph 9: `the first guy who was carrying the baseball bat held it in his right hand at about chest level, I was worried that he was going to use the bat. I felt threatened by this.' So that conduct certainly makes the matter a serious matter falling within s97, of course. It is a threat."

17 His Honour concluded, on the basis of other cases decided in the Drug Court in relation to threats, that such behaviour does not render a person ineligible within the meaning of s5(2)(b); see R v Sloane [1999] NSWDRGC 3.

18 The claimant submitted that the correct test to determine whether the offence should be described as one involving violent conduct was not that undertaken by his Honour below of looking at the actual facts, but rather that involved in this Court in Chandler v DPP [2000] NSWCA 125; (2000) 113 ACrimR 196, where the learned Chief Judge in Equity with whom Mr Justice Stein agreed, stated:

"The use of the word, `charged', in s5(2) suggests very strongly that it is the elements of the charge which are significant, not the particular conduct. That view was expressed in the earlier decision of Judge Murrell in R v Ranse (1999) NSWDRGC 2; and I agree with that decision."

19 I agree with that construction of the section. In my view, this Court should follow what was said in Chandler in this connection.

20 In the present case, if one looks at the charge, it is implicit as I have said from the verb, to rob, and the accusation of an offensive weapon, that violence was necessarily involved. Those two elements together constitute violent conduct.

21 Support for this interpretation, is found in the decision of the Victorian Supreme Court in R v Butcher [1986] VR 43, where the Court stated at 50:

"If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence....both putting a person in fear or seeking to put a person in fear of being `subjected to force' has always been accepted under the common law as violence, sufficient to render a contemporaneous larceny a robbery."

In my view in that regard, the charge brought against Mr Ebsworth is necessarily one involving violent conduct.

22 The Victorian decision to which I have referred, was followed by the Queensland Court of Criminal Appeal in R v Breeze [1999] QCA 303; (1999) 106 ACrimR 441, and a number of decisions of the Tasmanian Supreme Court.

23 I would, therefore, disagree with his Honour's conclusion to the contrary and also with the decision of Sloane, which his Honour relied on. I agree with the decision of Judge Milson in R v Armanios [1999] NSWDRGC 5.

24 Accordingly, the charge of armed robbery armed with an offensive weapon, in reference to the elements of the charge, constitutes behaviour involving violent conduct.

25 Even if that test is wrong, and if it were necessary to consider the particular conduct of the offender, the first opponent's behaviour in this case necessarily constitutes violent conduct.

26 For the same reasons given above, threatening to use violence in the form of brandishing a baseball bat is sufficient to constitute violent conduct.

27 No reference need be made to the doctrine of common purpose, which in my view is entirely irrelevant to the present case.

28 There has been some discussion about what orders should be made, it being submitted by learned counsel for Mr Ebsworth that consideration of matters personal to Mr Ebsworth would make it desirable, if possible, to avoid making an order which would take Mr Ebsworth out of the special drug regime and place him back into the general stream of the criminal law.

29 Unfortunately, in my view there is no way of doing this. There is no way of moulding the inevitable declaration in such a way as would provide any comfort for him.

30 I would, therefore, make the only orders which are appropriate of those sought by the DPP, namely the declaration that his Honour Acting Judge Barnett of the Drug Court in New South Wales, erred in finding that the offence charged under s97(1) of the Crimes Act 1900 against Mr Ebsworth was not an offence involving violent conduct within s5(2)(b) of the Drug Court Act 1998.

31 There should be no order as to costs.

32 SHELLER JA: For the reasons given by the other members of the Court, I agree that the declaration proposed by Meagher JA should be made and that there should be no order as to costs.

33 MASON ACJ: The Court will make the declaration proposed by Meagher JA. We will reserve liberty to apply and there will be no order as to costs.

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LAST UPDATED: 20/09/2001