Coombes v The Director of Public Prosecutions - [2021] WASC 452

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COOMBES -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2021] WASC 452
CORAM:   SMITH J
HEARD:   13 DECEMBER 2021
DELIVERED          :   13 DECEMBER 2021
FILE NO/S:   SJA 1072 of 2021
BETWEEN:   SIMON JOHN COOMBES
Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1072 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number            :   RO 584/2020 AND RO 585/2020

Catchwords:

Criminal Law - Appeal against conviction - Offences of burglary and stealing - Appellant convicted of offences on the basis he aided the principal offender - Convictions set aside on the basis that the offences were complete by the time the co-accused informed the appellant he had committed the offences

Criminal Law - Convictions of accessory after the fact substituted on the charge of burglary and the charge of stealing

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code

Result:

Leave to appeal granted
Appeal allowed

Convictions set aside and convictions of accessory after the fact substituted
Charges remitted to the Magistrates Court for sentencing

Category: B

Representation:

Counsel:

Appellant	:	Mr T Sullivan
Respondent	:	Mr B Murray

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Birdsall v The State of Western Australia [2019] WASCA 79; (2019) WAR 418
Pickett v The State of Western Australia [2020] HCA 20; (2020) 282 A Crim R 118
R v Conway [2005] QCA 194
R v Johnson [1973] Qd R 303
R v McDonald [1992] 2 Qd R 634

SMITH J:

The appeal and the result

The appellant applies to the court for leave to appeal against conviction of one count of burglary and commit offence in a dwelling, on 3 January 2020, in circumstances of aggravation, namely being in company with another, contrary to s 401(2)(a) of the Criminal Code (WA), and, on the same date, one count of stealing, contrary to s 378 of the Criminal Code.
Following a trial with his co-accused on 19 July 2021, the appellant was convicted of both charges.
The sole ground of appeal is that the presiding magistrate erred in law in convicting the appellant on the basis that he aided his co-accused by driving him away from the scene of a burglary, having only become aware that the burglary had been committed after the offence was complete, when on that factual basis it was only open to find the appellant guilty as an accessory after the fact.
Prior to the hearing of the appeal, the respondent filed submissions in which it was conceded that an error of law as alleged in the ground of appeal had been made out and that the appeal should be allowed.
After hearing the parties at the appeal, I agreed that the concession made by the respondent was properly made, allowed the appeal, set aside the convictions, substituted convictions of accessory after the fact on each charge, and remitted the charges, to the Magistrates Court sitting at Rockingham, for sentencing, pursuant to s 14(1)(d) and s 14(1)(e) of the Criminal Appeals Act 2004 (WA).
These are my reasons for allowing the appeal.

The facts found by the presiding magistrate

Her Honour found that when interviewed by the police the appellant told the interviewing officers that he had driven the co-accused to the area where the complainant lived, dropped him off near a parking area where he observed him walk off. The appellant also told the officers:[1]
(a)he went to see a mate, and waited for the mate to come and see him;
(b)he saw the co-accused running, jogging towards his vehicle but did not see where he came out of, and saw the co-accused wearing a white and blue police hat;
(c)he 'freaked out';
(d)the co-accused was laughing and said, 'I've just done a cop's house over'; and
(e)he drove to East Perth. 'Chris was going through the stuff. It looked like jewellery. I don't know what else. We went back to Rockingham and I dropped him off home.'
[1] ts 19 July 2021, 21.
Her Honour directed herself as to what was necessary for the prosecution to prove the elements of each of the offences. Those directions were that for the appellant to be convicted, the prosecution must prove beyond reasonable doubt that:
(a)firstly, the co-accused committed each of the offences with which he is charged;
(b)secondly, the appellant had actual knowledge of the facts amounting to the offences committed by the co-accused;
(c)thirdly, the appellant did or omitted to do something with the intention of aiding or assisting in the acts which make up the offences; and
(d)fourthly, what the appellant did or omitted to do actually aided or assisted the commission of the offences.
No issue is raised in this appeal with these directions.
Her Honour then found:[2]
Despite what he had been told and what he saw, Mr Coombes nevertheless drove Mr Himers away from the area and subsequently drove him to his home. By driving Mr Himers away, Mr Coombes aided Mr Himers.
Mr Coombes had every opportunity to either refuse to drive Mr Himers from the scene once he was told about the burglary or, alternatively, drop him off somewhere nearby and not take him back to his home with the stolen property in his car. I find proved beyond reasonable doubt that Mr Coombes drove Mr Himers away from the area and ultimately to his home with the intention of aiding Mr Himers.
Accordingly, I find that the prosecution has proved beyond reasonable doubt that Mr Coombes is caught by section 7(b) and (c) of the code.
I turn now to the circumstance of aggravation of in company. There is one final element to be addressed and that has to be proved beyond reasonable doubt. In the case of R v Brougham [1986] 43 SASR 187, King CJ said, in respect of an offence of robbery in company, quoting from Wilders J in the R v Cooper reported at [1978] 17 SASR 472:
His Honour was stressing that participation in the common purpose at a distance or by mere encouragement or keeping a lookout was not sufficient.
I am unable to find beyond reasonable doubt that Mr Coombes knew that, when Mr Himers walked away from the car, that he was going to commit burglary. I am, however, satisfied beyond reasonable doubt that Mr Coombes became aware of the burglary upon the return of Mr Himers and then drove him away from the area. Therefore, as referred to in Cooper, Mr Himers participation in the offences was at a distance. Thus, a finding that Mr Coombes was unaware of the offending by Mr Himers until his return to the car is insufficient to prove that both accused were in company with each other.

Offences of burglary and stealing was complete by the co-accused before the appellant had actual knowledge of the facts amounting to the offences

[2] ts 19 July 2021, 21 - 22.

Pursuant to s 7(b) of the Criminal Code, a person is criminally liable if he or she does an act or makes an omission for the purpose of enabling or aiding another person to commit the offence. Pursuant to s 7(c) of the Criminal Code, a person is criminally liable if the person aids another person in committing the offence. Pursuant to s 7(d) of the Criminal Code, a person is criminally liable if he or she counsels or procures any other person to commit the offence.
However, a person will not be deemed to have committed an offence as an aider under s 7(b) or s 7(c) unless it is proven beyond reasonable doubt, among other matters, that the person alleged to be the aider had actual knowledge of the facts which constitute the offence (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed, or might be committed by the principal).[3]
[3] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) WAR 418 [113(b)] (Buss P & Mazza JA); an appeal to the High Court on an unrelated point was dismissed Pickett v The State of Western Australia [2020] HCA 20; (2020) 282 A Crim R 118.
Consequently, for a person to be an aider the offence in question must not have been complete when the acts or omissions said to have been done with the intention of aiding or assisting the acts which made up the offences were carried out.
The question in this appeal is when the co-accused told the appellant that he had committed a burglary and stolen items from the complainant's dwelling, were the offences of burglary and stealing complete. The answer to this question turns first on the express provisions of the Criminal Code creating the offences, and second the circumstances of the particular offences in question.
Section 401(2) of the Criminal Code provides that a person who commits an offence in the place of another person, when in that place without the other person's consent, is guilty of a crime. Section 371(1) of the Criminal Code provides that a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property. Section 371(6) of the Criminal Code provides that the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
Section 371(6) of the Criminal Code is in identical terms to s 391(6) of the Criminal Code of Queensland. In R v McDonald the Queensland Court of Appeal considered whether stealing could be a continuing offence and found that the authorities:[4]
[E]stablish in our view that the offence of stealing is not necessarily complete once the thing stolen has first been moved a short distance so that persons associated with a second movement of the thing could never be found guilty of stealing. It is always a question of fact as to when the offence of stealing has been completed. Ordinarily we would think that the offence would be a continuing one until the thief had deposited the thing in some place he regarded as safe.
[4] R v McDonald [1992] 2 Qd R 634, 645; applied in a different context in R v Conway [2005] QCA 194 [22]; see also R v Johnson [1973] Qd R 303.
Thus, whether an offence of stealing is continuing is a question of fact, and whether an offence can be found to be continuing will turn on the facts found in a particular matter.
In R v McDonald the items stolen were a Bedford truck and attempting to steal a hydraulic pump and motor. By regard to those circumstances the Queensland Court of Appeal found that bearing in mind the size and nature of the things being stolen, the act of stealing was a continuing one until the things were at a point where they were stored under control of the thieves.[5]
[5] R v McDonald [1992] 2 Qd R 634, 645.
As the appellant points out in his submissions, on the facts of the present case as found by the presiding magistrate, by the time the appellant became aware that his co-accused had committed the burglary and the stealing offences, the co-accused was no longer in the complainant's home, the co-accused had physically removed the stolen items from the complainant's home, placed the hat on his head, and stored the other stolen items in the stolen backpack. Therefore, the offence of burglary and committing the offence of stealing was complete and no longer continuing.
The fact that the co-accused had the stolen items in the backpack and took them out of the backpack in the appellant's vehicle and showed them to the appellant while the appellant was driving to East Perth, without more does not establish that the offence of stealing was still continuing. In the circumstances, once the co-accused had put stolen items into the stolen backpack and taken those stolen items including the backpack and police hat out of the complainant's house, the offence of stealing was complete. This is because in this matter the co-accused had those items under his control, and the control of those items did not pass to the appellant.
Section 562(1) of the Criminal Code creates the offence of accessory after the fact. Section 562(1) provides that any person who becomes an accessory after the fact to an indictable offence is guilty of a crime, in respect of which the person is liable for the punishment prescribed by s 562(2). The appellant is liable to half the penalty with which the principal offence is punishable on indictment, but where the principal offence is dealt with summarily the penalty is the lesser of the penalty with which the principal offence is punishable on summary conviction or on indictment.[6]
[6] Criminal Code, s 562(2).
Section 10D of the Criminal Code creates the offence of accessory after the fact as an alternative offence. Section 10D of the Criminal Code provides:
10D. Charge of offence, alternative convictions of attempt etc.
If a person is charged with committing an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of -
(a)attempting to commit; or
(b)inciting another person to commit; or
(c)becoming an accessory after the fact to,
the principal offence or any alternative offence of which a person might be convicted instead of the principal offence.
Section 10(1) of the Criminal Code defines the term 'accessory after the fact' as a person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.
In light of the fact that once the appellant became aware that the co-accused had committed the offence of burglary and stealing he then assisted the co-accused by driving the co-accused away from the scene of the offences, gives rise to proof of the elements of the offence to the requisite standard of being an accessory after the fact pursuant to s 10(1), s 10D and s 562(1) of the Criminal Code. This is because by driving the co-accused away in his vehicle was an act of assisting the co-accused to escape detection for the offences, which act was committed after he knew the co-accused had committed the offences of burglary and stealing.

Orders made

Although the appellant and his co-accused were charged with burglary in circumstances of aggravation, namely being in company with another, contrary to s 401(2)(a) of the Criminal Code, the presiding magistrate was not satisfied that the circumstances of aggravation was made out. Consequently, the principal offence in respect of conviction of becoming an accessory after the fact on the burglary charge is s 401(2)(b) of the Criminal Code.
For these reasons, orders should be made granting leave to appeal, allowing the appeal and setting aside the convictions entered on charges RO 584/2020 and RO 585/2020 and substituting the following convictions:
(a)on charge RO 584/2020 a conviction should be entered of the offence of becoming an accessory after the fact that on 3 January 2020 at Hammond Park while in the place of Jacob James Henderson without his consent Christopher John Hymers committed the offence of stealing therein, when that place was ordinarily used for human habitation; contrary to s 10D, s 401(2)(b) and s 562(1) of the Criminal Code;
(b)on charge RO 585/2020 a conviction should be entered of the offence of becoming an accessory after the fact that on 3 January 2020 at Hammond Park Christopher John Hymers stole jewellery, electrical items, documents and clothing to the value of $5,000, the property of Jacob James Henderson, contrary to s 10D, s 378 and s 562(1) of the Criminal Code.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
13 DECEMBER 2021