Director of Public Prosecutions v JJ
[2023] ACTSC 318
•3 November 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v JJ |
Citation: | [2023] ACTSC 318 |
Hearing Date: | 13-15 June 2023 |
DecisionDate: | 3 November 2023 |
Before: | McWilliam J |
Decision: | The accused is guilty of the offence of aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – joint commission aggravated robbery – alternative charge of joint commission assault occasioning actual bodily harm – whether accused entered into an agreement to commit offences – agreement inferred from conduct – guilty of primary charge |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Criminal Code Act 1995 (Cth) s 5.4 Supreme Court Act 1933 (ACT) ss 68B, 68C |
Cases Cited: | Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Barca v The Queen (1975) 133 CLR 82 R v Roux [2015] ACTSC 307 |
Texts Cited: | Revised Explanatory Statement to the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) |
Parties: | Director of Public Prosecutions JJ (Accused) |
Representation: | Counsel M O’Connell ( DPP) T Sharman ( Accused) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors (Accused) | |
File Number: | SCC 296 of 2022 |
McWILLIAM J:
Charges the subject of trial on indictment
The accused, JJ, is charged on an indictment dated 9 June 2023 with two offences:
(a)Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code; and
(b)In the alternative, assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act) by virtue of s 45A of the Criminal Code.
Verdict pursuant to trial by judge alone
In accordance with the requirements of s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the accused has elected (by election lodged 15 February 2023) to be tried by judge alone.
These reasons for judgment provide the applicable principles of law, and the findings of fact I have made: s 68C(2) of the Supreme Court Act. This includes an exposition of the reasons for making those findings and ultimately, the verdict: see Fleming v The Queen [1998] HCA 68; 197 CLR 250 at 263; applied in judge alone trials in the Territory: see R v Massey [2000] ACTSC 107 at [44]-[47], and more recently in DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125 (Makoi) at [5].
The trial commenced on 12 June 2023, when the accused was arraigned and pled not guilty to each count. It was conducted over three days, with the Court retiring on 15 June to consider the evidence.
Summary of the case
The prosecution case is that on the night of 5 July 2022, the accused entered the house of the complainant at a specified address, with another person. This was recorded by CCTV footage, which was taken from three cameras. The first was an external camera positioned outside the front door of the residence in question. The second was an internal camera situated at the end of a corridor facing towards the front door, which captured who was coming and going through the front door at various points. The third was a camera located at a neighbouring residence across the street. The identity of the accused is not in issue in this trial.
The accused and the other person were then joined by three others, being two males and a female. Again, this is recorded on CCTV footage and the identity of those people is also not in dispute. There were five people and the complainant present in the complainant’s bedroom.
The prosecution alleges that two of those in company with the accused then physically assaulted the complainant. They also stole her phone and house keys. The accused is not alleged to have been the person who directly physically assaulted the complainant or to have been the person who took the complainant’s phone and house keys. He is alleged to have intentionally participated in an agreement to assault the complainant, evidenced by his conduct which included being present in the room that the assault occurred for this entire incident and carrying with him a firearm during the assault.
Matters not in dispute
The elements of each of the offences of aggravated robbery and assault occasioning actual bodily harm are not in dispute in this trial. They have been established in reference to the other offenders. In other words, the accused does not dispute that an aggravated robbery or an assault occasioning actual bodily harm occurred. The trial was conducted on this basis.
Issue in dispute
The sole matter in dispute is whether there was a joint commission between the accused and the other offenders, such that the accused is also guilty of the offence of aggravated robbery or alternatively, assault occasioning actual bodily harm.
The factual and legal findings below all relate to the elements necessary to establish a joint commission.
Elements of the offences
Joint commission under s 45A of the Criminal Code
To establish an offence by joint commission under s 45A of the Criminal Code the prosecution must establish beyond reasonable doubt that:
(a)The accused entered into an agreement with at least one other person to commit an offence: s 45A(1)(a).
(b)The accused and at least one other person to the agreement intended that an offence would be committed under the agreement: s 45A(4).
(c)Either an offence is committed in accordance with the agreement or an offence is committed in the course of carrying out the agreement: s 45A(1)(b).
As to what constitutes “an agreement”, an agreement may consist of a non-verbal understanding, and may be entered into before or at the same time as the conduct making up any of the physical elements of the joint offence was engaged in: s 45A(5). It is “intended to be broad in its meaning and capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances”: Revised Explanatory Statement to the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) at 8.
As to what constitutes intention, applying the relevant parts of s 18 of the Criminal Code, a person has the requisite intention that an offence would be committed if the person either means to engage in the conduct, or to bring it about, or is aware that it will happen in the ordinary course of events.
For a person to be taken to have committed an offence by joint commission where an offence is committed “in the course of carrying out the agreement”, the person must have been “reckless about the commission of an offence that another person in fact commits in the course of carrying out the agreement”: s 45A(3).
As to what constitutes recklessness, applying s 20 of the Criminal Code, the accused will have been reckless in relation to the commission of an offence if he is both “aware of a substantial risk” that the result will happen; and having regard to the circumstances known to the accused, “it is unjustifiable to take the risk”.
The language of s 20 of the Criminal Code is that used in s 5.4 of the Schedule to the Criminal Code Act 1995 (Cth). In discussing the definition of “recklessness”, it has been stated that:
(a)The term ‘substantial’ means “real or of substance as distinct from ephemeral or nominal”: Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; 88 SASR 99 (Hann) at [25], cited in R v Roux [2015] ACTSC 307 (Roux) at [131], R v RH [2011] ACTSC 38 at [14] and R v Calis [2013] QCA 165 at [33];
(b)The word “risk” means “possibility, chance or likelihood”: Hann at [25]; and
(c)Awareness requires a conscious awareness – it is not enough to show that the risk was obvious or well-known: Hann at [26], cited in Roux at [132].
As to how to establish that it was “unjustifiable to take the risk”, in the circumstances known to the accused, this is a question of fact (s 20(3)) requiring an objective assessment. It must be borne in mind that the definition of “recklessness” in the Criminal Code applies to a variety of offences. For example, in Jones v University of Canberra [2016] ACTSC 78; 311 FLR 1, Refshauge ACJ was dealing with an offence provision in the Public Interest Disclosure Act 2012 (ACT), which contained a fault element of recklessness. His Honour stated at [34] (emphasis added):
As the public interest disclosure is a circumstance, then the fault element is, under s 20 of the Criminal Code, one of recklessness, which requires that the person who may be charged must be actually aware that there is a substantial risk that the disclosure is a public interest disclosure and this is a subjective awareness, not one which is objective, dependent upon what a reasonable person would know. Further, it must be, having regard to the circumstances known to the person, unjustifiable to take that risk. Again, there are subjective elements, namely the circumstances known to the person, though whether it is unjustifiable to take the risk is a question of fact (s 20(3)). These are substantial protections to a person who may be charged with the offence but who does not reasonably anticipate or could not know that the disclosure is a public interest disclosure.
That example has been given to explain that there may be occasions where the unjustifiable limb of recklessness has greater work to do, such as where the court is required to analyse whether the taking of a particular risk was in some way defensible or capable of being justified.
However, where the “recklessness” is in the context of s 45A, the relevant “risk” is the possibility of a particular result occurring (aggravated robbery), conduct which is itself an offence. Once the first limb of recklessness is established (namely that there was a real chance or likelihood of conduct constituting a particular additional offence occurring), the lack of justification limb is unlikely to have any work to do in cases such as the present. In the recent decision of DPP v Higgins [2023] ACTSC 314 (Higgins), Berman AJ considered each limb of “recklessness” in the context of s 45A of the Criminal Code. His Honour found on the facts there before the Court that there was an awareness of a substantial risk, before stating at [49]:
Given that the risk arose because of the accused’s criminal conduct, it was in no way justifiable for the accused to take the risk that the unknown male would commit the [additional] offence … .
The relevant offence: Aggravated robbery (by joint commission)
For completeness, the elements of the offence of robbery are set out in s 309 of the Criminal Code. Robbery is committed where:
(a)the person commits theft; and
(b)when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
A person commits theft if they dishonestly appropriate property belonging to someone else with the intention of permanently depriving the other person of the property: s 308 of the Criminal Code.
The elements of aggravated robbery under s 310 of the Criminal Code are:
A person commits an offence (aggravated robbery) if the person—
(a)commits robbery in the company of 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
To synthesise ss 310 and 45A of the Criminal Code, the elements of the offence of aggravated robbery by joint commission (under the s 45A(1)(b)(ii) pathway) are:
(a)There was an agreement between two or more people (one of whom was the accused) that one or more of them would assault the complainant (that is, would deliberately apply force to her or threaten to apply force to her);
(b)The accused and at least one other party to the agreement intended that the assault would be committed;
(c)In the course of carrying out the agreement, an offence of aggravated robbery was committed by a person other than the accused, in that:
(i) The person dishonestly appropriated property belonging to the complainant with the intention of permanently depriving her of the property (the theft); and
(ii) Immediately before the theft, the person used force or threatened to use force on the complainant; and
(iii) Such conduct was either in the company of one or more people or the person has an offensive weapon with them;
and
(d)The accused was “reckless” about the risk that the offence of aggravated robbery may be committed in the course of carrying out the agreement (to assault the complainant), namely:
(i) He was aware of a real possibility that the aggravated robbery would happen, and
(ii) Having regard to the circumstances known to the accused at the time, it was unjustifiable for him to take the risk (that is, proceed with the agreement).
This was how the prosecution put their case at trial. In respect of this offence, the prosecution did not argue that the s 45A(1)(b)(i) pathway applied.
Alternative charge: Assault occasioning actual bodily harm (by joint commission)
The elements of the offence of assault occasioning actual bodily harm under s 24 of the Crimes Act are:
(a)The person deliberately applied force to another person
(b)The application of force was without lawful excuse; and
(c)The application of force caused actual bodily harm.
To synthesise s 24 of the Crimes Act and s 45A of the Criminal Code, the elements of the offence of assault occasioning actual bodily harm by way of joint commission (under the s 45A(1)(b)(i) pathway) are:
(a)There was an agreement between two or more people (one of whom was the accused) that one or more of them would assault the complainant (would deliberately apply force to her);
(b)The accused and at least one other party to the agreement intended that the offence would be committed;
(c)The agreed offence, or an offence of the same type, was committed by a person other than the accused, in that a person who was party to the agreement deliberately applied force to the complainant which caused her actual bodily harm;
(d)At the time of the conduct, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement; and
(e)The application of force caused actual bodily harm.
There was no suggestion that in the circumstances of this case, the offence of assault occasioning actual bodily harm was not an offence “of the same type” as assault.
Directions
In addition to setting out the principles of law applied and factual findings made as required by s 68C(2) of the Supreme Court Act, I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3) of the Supreme Court Act.
Onus and Standard of Proof
The starting point is the presumption of innocence. The accused does not have to prove that he did not commit the offences charged. He is presumed to be innocent.
Pursuant to s 56 of the Criminal Code, the prosecution bears the onus, burden or obligation, to prove the guilt of the accused beyond reasonable doubt. This is an applied provision (s 7 of the Criminal Code), meaning that it applies to offences located in other Territory laws, relevantly here, the Crimes Act. That burden never shifts to the accused.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences charged unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. The standard of proof applies to each element of the offence.
If the evidence which I accept satisfies me of each element of the offence beyond reasonable doubt of the accused’s guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
Alternative verdicts
This case involves an alternative charge for consideration. If I am not satisfied beyond reasonable doubt about the necessary elements of the principal offence, being aggravated robbery by joint commission, I must find the accused not guilty of that charge. I may then consider whether the prosecution has proved beyond reasonable doubt all the necessary ingredients of the alternative charge of assault occasioning actual bodily harm. Those ingredients are not identical. If I find that the prosecution has proven to the requisite standard each of the elements of the alternative offence, then I may find the accused guilty of that alternative count. However, I must not regard the availability of an alternative count as an invitation to compromise the verdict in respect of the first count: R v Currie [2002] NSWCCA 126 at [11]-[13].
Separate consideration of each charge
The accused is charged with committing more than one offence, albeit that one offence is an alternative charge. The prosecution requested a direction (not opposed by the accused) pursuant to R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski). Markuleski was really directed to multiple charges, not one alternative charge. However, I can see that parts of the applicable considerations still have resonance and accordingly, record that I have warned myself as follows.
The charge and the alternative charge are being tried together as one trial for convenience and because the allegations arise out of a connected set of events. However, the prosecution must separately prove each offence. An accused is not guilty of anything unless and until his guilt is proved beyond reasonable doubt for each offence. I must therefore separately consider the evidence referable to each charge. I am entitled to bring in a verdict of not guilty on one charge (relevant to this case, the principal offence of aggravated robbery) and guilty on another charge (the alternative offence of assault occasioning actual bodily harm) if there is a logical reason for that outcome. I must also guard against being prejudiced against the accused on account of multiple charges. It would be quite wrong to think, ‘Oh well, he is charged with multiple offences so he must have done something wrong’.
Fact finding
As a judge of the facts (as well as of the law) the facts that I find must be based on the evidence. That includes the evidence given by the witnesses and that contained in any exhibits.
In assessing the evidence, I must apply my common sense, my individual experience and wisdom. I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can:
(a)accept everything that a witness has said if I consider all of it worthy of acceptance; or
(b)reject everything that a witness has said if I consider none of it worthy of acceptance; or
(c)accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
Witnesses
I must determine whether each of the witnesses is a credible and reliable witness. That is, in determining whether to accept a particular witness, I must turn my mind to whether I find the witness to be a witness of credit in terms of telling the truth, and also whether the witness’s evidence is an account that is reliable, in the sense of being an accurate memory of the event about which the witness has given evidence.
Here, one of the witnesses was the complainant, giving direct evidence of what happened in the room where she was assaulted. Part of her evidence was a police interview admitted by way of an audio-visual recording. This is a usual practice in the ACT. I have directed myself not to draw any inference against the accused or give the evidence more or less weight because the evidence has been given in that way: s 57(2) of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (EMPA).
The complainant herself also gave evidence during the trial by audio-visual link, from a remote witness room, rather than sitting in the same court room as the judge. Again, this is usual practice. The mandatory direction applies not to draw any inference against the accused from the fact that the witness gave evidence by an audio-visual link: s 72(2) of the EMPA.
Complaint evidence
The prosecution here led evidence from two witnesses, Ms Sarah Glendening (Sarah) and Ms Renee Glendening (Renee) as well as the evidence in statement form from Constable Madison Scott, to whom the complainant reported the incident at Tuggeranong police station at approximately 1:00am on 6 July 2022 (the morning after the alleged offences occurred).
This type of evidence is referred to as “complaint evidence”. The first issue I must decide is whether to accept that the complaints were made. The accused did not dispute that the complaints were made.
If I accept that a complaint or complaints were made, the following directions apply to how each complaint may be used.
First, it may be regarded as additional evidence of the events described by the complainant. Second, it may be relevant to the truthfulness of each witness’ evidence in court. The fact that the complainant made the complaints immediately after the incident in question, and in the manner in which she did, may make it more likely that she is telling the truth about the matters she complained of (including what she observed about the accused’s conduct). I can take into account any differences in the accounts provided in assessing the witness’ credibility and reliability. In doing so, the applicable consideration is that different people have different personalities and react to experiences differently. I must bear in mind that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.
Murray direction in limited respect of the agreement
The accused sought what has been described as a Murray direction in a limited respect, relying on Makoi at [107], where Baker J stated as follows:
A Murray direction is a direction that, “in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care”: R v Murray (1987) 11 NSWLR 12 at 19; Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 at [104] (Simpson J; Basten JA and Davies J agreeing). As Adamson J (with whom Bathurst CJ and Davies J agreed) observed in Gould v R; R v Gould [2021] NSWCCA 92 at [134], a Murray direction derives from fundamental principles relating to the onus of proof and can be reduced to the following propositions:
(1) it is for the Crown to prove each element of an offence beyond reasonable doubt;
(2) the jury is obliged to consider all of the evidence in determining whether each element has been proved beyond reasonable doubt;
(3) if the commission of an offence (or at least one element of it) depends solely on the evidence of a single witness, the jury must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant element or elements (since there is no other evidence to weigh in the balance);
(4) if there is evidence beyond that of the single witness which tends to prove the particular element, there is no basis for a Murray direction since the jury could be satisfied of the particular element beyond reasonable doubt even though, without more, they would not be prepared to accept the evidence of the witness as to that matter beyond reasonable doubt; and
(5) the evidence beyond that of a single witness can derive either from the oral testimony of other witnesses; or from documents; or other corroboration (such as DNA testing, telephone intercepts, physical evidence etc).
The accused here submitted that, in respect of a particular aspect of evidence relevant to the agreement of the accused, being when the accused first made the gun visible to the complainant, a Murray direction ought to be applied, as that evidence came solely from the complainant. The prosecution opposed the direction on the basis that there was other evidence relevant to establishing the element of agreement and concealment of the gun from the complainant, which included the CCTV footage of when the accused walked into the complainant’s house.
I agree with the prosecution that this is not a case where a Murray direction is strictly required. Nonetheless, in circumstances where the complainant’s account as to when the gun became visible was a critical aspect of the prosecution case, I have scrutinised the complainant’s evidence in respect of the visibility of the gun with great care, and considered whether her evidence is supported by reliable and independent evidence against the accused: see similarly Makoi at [109].
Inferences
Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may draw reasonable inferences from the facts that I find are established. I must be extremely careful about drawing inferences. I must examine any inference I may potentially draw from the evidence critically, to ensure that it is a justifiable inference in all of the circumstances.
In this case, the accused sought an additional direction in relation to circumstantial evidence, due to the fact that the prosecution’s case turned on whether the accused intentionally participated in the agreement, and the accused viewed the evidence relevant to that issue as circumstantial.
Where the case rests substantially on circumstantial evidence, I may not return a guilty verdict unless the prosecution has excluded all reasonable hypotheses consistent with innocence: R v Baden-Clay [2016] HCA 35; 258 CLR 308 (Baden-Clay) at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. The inferences drawn from the evidence must rest upon something more than mere conjecture: see Baden-Clay at [47] and the cases there-cited.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Baden-Clay at [47] citing R v Hillier [2007] HCA 13; 228 CLR 618 (Hillier) at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Hillier at [48]. Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items: Davidson v The Queen [2009] NSWCCA 150; 75 NSWLR 150 at [61].
Here, there was direct eye-witness evidence from the complainant as to what she saw the accused do and say and there was also CCTV footage of the accused entering and leaving the complainant’s house. From that evidence, the prosecution seeks the drawing of an inference as to the existence of the accused’s intentional participation in the agreement to assault the complainant. I will therefore set out what facts I find established by the evidence and then consider whether all of those facts taken together as a whole make it reasonable to draw the conclusion that the accused is guilty of the offence charged. In doing so, I must not base the conclusion upon mere speculation, conjecture or supposition, but instead upon a logical and rational process of reasoning.
If I find that such a conclusion is a reasonable one to draw, I will then determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused. I must be satisfied that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the offence. If there is a reasonable hypothesis consistent with the innocence of the accused, then the prosecution will not have met the burden of establishing the guilt of the accused beyond reasonable doubt and the accused must be acquitted.
The accused did not give evidence
The accused did not give evidence. I must not speculate about what might have been said in evidence if the accused had given evidence. In particular, the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 at [51]. It is the accused’s right to say nothing at trial and make the prosecution prove his guilt to the high standard required. That he did not give evidence does not in any way suggest he is guilty of either offence charged: s 20 of the Evidence Act 2011 (ACT).
Extended common purpose
I have adopted the description “extended common purpose” as that was the language used by the prosecution. A direction at common law regarding the principles governing joint criminal liability would previously have been appropriate: Huynh v The Queen [2013] HCA 6; 87 ALJR 624 at [31]. Further, the concept of extended common purpose arises where the offence committed is different from the offence which is the subject of the joint commission or foundational offence: May v The Queen [2012] NSWCCA 111; 215 A Crim R 527 at [249]-[252] (dealing with joint criminal enterprise at common law).
In the Territory, the provisions of the Criminal Code prescribe the elements of the offence, and they overlap considerably with any direction that may previously have been given at common law. Assuming that the statutory elements are properly explained and understood, there may not be the same need to separately direct or warn myself as to the principles governing joint commission.
However, the direction was sought by the prosecution and not opposed by the accused. I have therefore applied a form of the direction in the context of s 45A of the Criminal Code, more for an abundance of caution, noting that the requirement of possible foreseeability at common law, discussed in McAuliffe v The Queen (1995) 183 CLR 108 has been deliberately replaced with the statutory definition of recklessness: see the Revised Explanatory Statement to the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) at 7-8.
For an offence arising by joint commission (by virtue of s 45A of the Criminal Code), each person is responsible for the acts of another participant carrying out the offence. That is so regardless of the role taken by a particular participant. In this case, the prosecution must establish the agreement to commit an offence, the accused’s intentional participation in that agreement, and the occurrence of an offence in the course of carrying out the agreement. These requirements are discussed separately above in explaining the elements of the offence.
The agreement need not be expressed in words: s 45A(5) of the Criminal Code. Its existence may consist of a non-verbal understanding; and it may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in. The agreement may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. However, mere knowledge that another person intended to commit a particular crime does not amount to “agreement”.
The circumstances in which two or more persons are participating together in the commission of a particular offence may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, it may be inferred or concluded that they had agreed to assault that person.
It does not matter whether the agreed offence is committed by only one or some of the participants in the agreement, or whether they all played an active part in committing that offence. All of the participants are equally guilty of committing the crime regardless of the actual part played by each in its commission.
In the circumstances of the present case, the prosecution does not allege the agreement itself was to commit aggravated robbery. The prosecution alleges that the accused was part of an agreement with one or more of the others present to assault the complainant at her home on 5 July 2022, with such an agreement being inferred from the surrounding circumstances of the offence alleged.
However, things do not always turn out precisely as planned. The prosecution alleges that, in the course of carrying out the agreement to assault the complainant, one of the offenders (not the accused here and the identity of that person does not matter) committed the aggravated robbery, and that was not part of the original agreement.
The Criminal Code also makes provision for circumstances where the offence committed is different from that which was the subject of agreement. It sets out when a person such as the accused may nevertheless be found guilty of a different offence. Where one of the participants to the agreement commits an additional offence that was not the crime that they had agreed to commit, if the accused was “reckless” about the commission of that other offence, then he will be guilty of the other offence (s 45A(3) of the Criminal Code). Recklessness has been discussed separately above. Consideration will need to be given to whether the additional offence of aggravated robbery was a substantial risk in the course of carrying out the assault. If it was, I am required to consider whether, having regard to the circumstances known to the accused at the time, it was unjustifiable to take the risk. For example, I may consider what the accused knew about the circumstances in which the assault was to take place.
Evidence in the trial
Four witnesses gave oral evidence in the trial. These were the complainant, Senior Constable Elias Nikias, Sarah Glendening and Renee Glendening. The evidence of Sarah and Renee (who I will refer to by their first names without intending any disrespect) was admitted following a Basha Inquiry.
Four written statements were also admitted into evidence, being those of:
(a)Officer Oliver James Boswell;
(b)Acting Sergeant Kara Louise Chapman;
(c)Officer Samuel Alfred Harris; and
(d)Officer Madison Connie Scott.
Other evidence which was admitted in the trial included:
(a)A Google Maps screenshot depicting the complainant’s home;
(b)A bundle of 26 crime scene photographs taken on 6 July 2022;
(c)A recording of the complainant’s Evidence in Chief (EIC) interview;
(d)Two sketches drawn by the complainant in her EIC interview;
(e)CCTV footage from 5 July 2022 taken from internal and external cameras at the residence in Gilmore where the assault occasioning actual bodily harm and aggravated robbery took place, and stills taken from that footage;
(f)CCTV footage from 5 July 2022 taken from a camera at a neighbouring property in Gilmore located across the road from the house where the incident took place; and
(g)Body worn camera footage taken on 6 July 2022 by Acting Sergeant Kara Chapman.
In setting out the evidence below, as some witnesses in this trial or other persons referred to share a surname, I will where appropriate refer to people by their first names to avoid confusion and without intending any disrespect.
Complainant
The complainant gave evidence that on 5 July 2022, she was living at her dad’s house in Gilmore.
On the night of the 5 July 2022, sometime after dark, she was in contact with the accused, who wanted to “hang out”. The complainant said in her EIC interview that it was the accused who had contacted her. Under cross-examination she stated she was not certain whether the accused called her or she called him. The evidence I accept is that the accused contacted her. That was the account given immediately after the incident occurred and I consider it to be the more reliable version of events.
The complainant said she was out at the time of the call, but she returned home and the accused came over shortly after she returned home. The complainant said it was not unusual for her to hang out with the accused, as she had known him for a few months and they had hung out together a number of times previously. She accepted they had both used methylamphetamine together over that time. However, the complainant firmly denied that she had taken drugs with the accused on the night in question. I accept that evidence.
The accused arrived at the complainant’s house in a Toyota Corolla. Ms X was with the accused when he arrived at the complainant’s house. Ms X was a friend of the accused, and while the complainant did not expect her to come on the day in question she did not think too much of it when she saw Ms X. The complainant let the two of them into the house, and the three of them walked inside.
The complainant noticed that when the accused entered he had what she thought was a work jumper or something similar tucked under his arm. She did not think much of that either, as it was Winter and cold outside. She denied that it was clearly in her view that something was beneath the jacket. Having viewed the CCTV footage, the manner in which the accused entered the house and the positioning of his body between the complainant and the jumper or jacket (in which the gun was wrapped), I accept the complainant’s evidence that she was not aware the accused was holding a firearm at the point he entered the house.
The complainant, the accused and Ms X went straight into the complainant’s bedroom, which is directly down the hall from the front door. The accused sat on the complainant’s bed. The accused asked the complainant if he could borrow a screwdriver, which she fetched and gave to him. She was not sure why he wanted a screwdriver. She said he did not explain why he wanted the screwdriver and that she did not see what he did with the screwdriver.
The accused, the complainant and Ms X made conversation and joked around as usual. After maybe five to 10 minutes, Ms X went back outside. She said she had left something in the car. She was gone for a couple of minutes, and then the complainant heard a car pull up outside.
The complainant thought this might have been her brother arriving home. She said her brother had gone out earlier that evening and she was expecting him to return, so she requested that the accused call Ms X to determine if their car would need to be moved as her brother usually parks in the back yard.
The accused then called Ms X while she was still outside to ask if the car that was heard was that of the complainant’s brother. The complainant heard Ms X reply something to the effect of “Oh, yeah, yeah, no, but he didn’t fit through.” The accused responded something to the effect of “Are you sure we won’t need to move the car? Move it anyway.” The complainant said that this did not sound like it was her brother, which I interpret to mean she did not think it sounded like the usual behaviour of her brother.
After two to three minutes, Ms X came back inside and was in the company of three others, being Ms B, Mr A (Ms X’s brother), and Mr C. They walked straight into the complainant’s bedroom, where she was sitting on a chair facing the bed. The complainant had not invited nor expected these people to appear at her house.
The complainant knew all the people who were let into the house by Ms X. Her evidence was that roughly four days prior to 5 July 2022, Mr A had offered to lend her $1,000. She needed the money to organise a skip to assist in clearing out the house of her father, who had just passed away. Two days after the loan had been extended, she repaid $600 which she had borrowed off another friend. That left $400 owing to Mr A. Mr A had attempted to call her a number of times on the night of 4 July 2022. She knew that the purpose of the calls was to chase up that outstanding amount. The complainant deliberately ignored those calls and said they stressed her out.
When Mr A entered the complainant’s room on 5 July 2022, the complainant saw that he was angry. He started yelling at her as soon as he saw her. She described him as being in a mad rage, the likes of which she had never seen before. He yelled, “I’ve always been good to you and you fucking ignore me.” The complainant replied, “Just calm down, I really can’t deal with dudes yelling at me.” To which Mr A replied, “I don’t really give a fuck.” He followed this up by punching her in the face as she sat in the chair. Ms B also started punching her, grabbing a handful of hair which she ripped from her head.
The complainant described how she was then punched repeatedly in the face and body by Ms B and Mr A, causing the skin above her eyebrow to split and one of her front teeth to be pushed back. She put her arms up in front of her face and they were hit and bruised. She incurred other bruising across her upper body. Only Ms B and Mr A physically assaulted her, but all the others were present in the room. The assault went on for a number of minutes – more than five, but less than 10. That evidence was consistent with the time stamps of the CCTV recording when Mr A, Ms B and Mr C arrived and when Mr A, Ms X, Ms B, Mr C and the accused departed. A period of approximately nine minutes elapses between the said arrival and departure from the complainant’s house.
The complainant said that after the punching had stopped, Ms B leant in close to her and threatened her with a knife. She said, “Next time I’m driving this through you if you don’t have my money”.
Throughout all of this, the complainant said she could see the accused well. He was sitting on the bed directly in front of her the whole time watching the events unfold.
From when Mr A started yelling at the complainant to when they all left, the accused had a gun on his lap. The gun was described as similar in size to a small rifle or shotgun. At the time the complainant did not know where the gun had come from, but on reflection she believes it was tucked under his arm covered by the jacket when he entered the house.
The complainant remembers that she kept looking at the accused, who was in her direct line of sight, in a way that suggested “Why aren’t you doing anything?”, because she believed he was her friend. She was confused as to why the accused was just sitting there watching. She remembers the accused looking back at her but not giving any impression in response. The complainant elsewhere in her evidence remembered that when she was punched on the forehead and her eyebrow started bleeding, the accused said something to the effect of, “That’s savage.” Her evidence was that he otherwise sat silently on the bed with the gun resting on his lap (pointing towards a wall) for the duration of the assault.
When she saw the gun, she thought “what the fuck?” and later confirmed that was similar to thinking “why is that there?”. She wasn’t quite sure whether the accused would use the gun or not. The complainant said that was why she just “copped it sweet”. She did not feel that she could “arc up” because she was rethinking her friendship with the accused and she could not trust the fact that the accused would not use the gun.
It was suggested to the complainant that she had seen the gun earlier than when the assault commenced, and that the accused used the screwdriver to fiddle around with the barrel of the gun that he had with him, which he did within view of her. She denied this, stating that she only became aware of the gun after the first few punches were thrown. I accept the complainant’s evidence in that regard, because it is consistent with her contemporaneous account of what occurred, when she described looking at the accused with the gun lying across his lap as she was being assaulted and thinking “why is that there?”. If the accused had disclosed the gun earlier in the evening and commenced fiddling with part of it with a screwdriver before Mr A, Ms B and Mr C arrived, it is unlikely the complainant would have described a form of surprise at seeing the gun on the accused’s lap.
The complainant’s evidence was that all five then left, including the accused. That is corroborated by the CCTV footage.
It was only after they left that she noticed the contents of her handbag had been spilled out on the floor of her room, and her phone and house key were missing. She believes it was Ms B who tipped it over and took those items, given her position in the room.
The complainant then spent five to 10 minutes attempting to secure the front door of her house, before grabbing some items and walking to the house of her friends, Sarah and Renee.
Sarah was out the front when she got to their house. She saw the blood on the complainant and yelled for Renee to come and assist. Renee came out of the house. Renee and Sarah asked the complainant what happened, and she told them what had occurred. Renee then went straight over to the complainant’s house, where she saw the complainant’s brother who had returned home. She filled him in on what had happened and then returned to her house. She encouraged the complainant to attend the police station, which she did early the next morning.
At the police station, some ambulance officers assisted her with her injuries. She gave an EIC interview. At this stage, she had been up all night and into the morning. It was suggested to her that at the time of the recording of her EIC, the complainant may have had difficulties recalling the sequence of what occurred due to her tiredness. She denied this. She gave evidence that the day before the incident she had used prescribed muscle relaxants to help her sleep.
Sarah
Sarah gave evidence that on the evening of 5 July 2022, the complainant turned up at her house around 7:00pm. Sarah’s house was only about five minutes’ walk away from the complainant’s house. Sarah immediately noticed that she had a massive gash on her head and was covered in blood. She saw that the complainant had a number of red marks on her, like she had been hit. Sarah brought her inside, and yelled out as she did so, something to the effect of, “Renee, Renee, come quickly. Something has happened to [the complainant].”
Sarah spent some time calming the complainant down. She said that the complainant spent some time telling them what happened, and she encouraged her to go to the police. Her evidence was she was motivated to do this as the complainant had mentioned something about there being threats made towards the complainant’s brother. Then the complainant went to the police station.
Sarah was not cross-examined on her evidence and I accept it both as truthful and reliable.
Renee
Renee gave evidence that on the evening of 5 July 2022, she was inside her house and heard Sarah shouting out to her. She went to the front door, and Sarah and the complainant were just entering. The complainant had blood on her face and was screaming and crying.
Renee said that the complainant had said she had been hit a few times, and she said Mr A and Ms B had hit her. The complainant told her five people were there and they had come to the house over a debt of $500. The complainant said that they had hit her in her bedroom, and that one of them had a gun and one of them had a knife. Renee got her some tissues, a hot drink, calmed her down and told her she should go to the hospital. Renee then drove her to the police station.
Renee was not cross-examined on her evidence. Again, I accept her evidence as both truthful and reliable of the account that was given to her. Although there is a slight discrepancy as to the amount of money that Renee recalled being told was owed by the complainant and what the complainant says was actually owed, I do not consider the discrepancy to cast any shadow in respect of either Renee’s evidence or that of the complainant.
Senior Constable Elias Nikias
Senior Constable Nikias gave evidence that he was the officer in charge of the investigation into this incident. He was informed about the incident on the morning of 6 July 2022 after some other officers had first responded. At about 2:45am that morning, the complainant had provided police consent to establish a crime scene at the relevant address in Gilmore. An officer was sent to the property to keep it secure. One officer who attended at 2:45am was Senior Constable Nikola Jevtovic. She reported upon attending that she spoke to the complainant’s brother, who stated that he had changed the house keys and locks. At about 9:40am that morning, forensic officers attended.
Senior Constable Nikias was informed on the morning of 6 July 2022 there was CCTV footage from the complainant’s residence as well as a house across the street. He viewed the footage, and noted that the footage at the complainant’s house appeared to have an incorrect timestamp. By comparing the two pieces of footage and by viewing one of the cameras live he was able to calculate the correct time for when the footage was taken.
The CCTV footage was viewed in Court, and Senior Constable Nikias gave evidence as to the identity of the individuals who appeared in the footage. His evidence as to identity was not contested, and I accept it, noting that there is no issue of identity arising in this case.
Senior Constable Nikias gave evidence of the forensic examination conducted at the house. DNA consistent with that of Ms B and Mr C was discovered on a can of Jack Daniels left in the house. Another can of Jack Daniels had DNA consistent with that of Mr A. A screwdriver was located on the bed of the complainant and had on it DNA consistent with the accused. No fingerprints were located at the property. No prohibited drugs were located at the property.
The accused was arrested on 27 July 2022. At the time of his arrest he was with Ms X.
The Senior Constable was briefly cross-examined. I accept his evidence as both truthful and reliable.
Written statement evidence
Written statements from four police officers were in evidence before me. The evidence I set out below is from those statements cumulatively.
At about 1:00am on 6 July 2023, the complainant and Renee attended the Tuggeranong Police Station. The complainant stated she was assaulted and wanted to make a statement. She completed an incident report form. The incident report form states that Mr A and Ms B punched her and ripped her hair out of her head over a debt that she owed. It states that the complainant did not fight back because she was in fear of being shot or stabbed. It states that they left, taking her house key and phone, and said they would be back. In conversation with police officers, she repeated much of the same.
Photographs of the complainant’s injuries were taken. They show a laceration on the left of her face, swelling on her hands and arms, blood on top of her head and one of her top teeth knocked back. They showed blood all over her jumper. At 1:45am ambulance staff attended and provided medical treatment.
At 2:55am the complainant gave consent to the police for them to enter her house. Officer James Boswell attended her house at 3:10am with Senior Constable Chapman and Senior Constable Jevtovic. At that time, the complainant’s brother was home and allowed the three police into the residence. Officer Boswell seized a hard drive containing CCTV footage from the property. The police observed the complainant’s bedroom, and noted some toilet paper with blood on it on the floor, as well as a number of items strewn next to the chair in that room. Body worn camera footage of their inspection of the property was taken.
CCTV evidence
The CCTV footage taken from the complainant’s house as well as from the house across the street established the following chronology (with timestamps corrected), which is not disputed. As noted above, evidence as to the identity of those in the footage was given by Senior Constable Nikias and was not in dispute:
Time Event 6:46pm The complainant arrives home. 6:48pm The complainant opens the front door for the accused. The accused enters the house, passing the complainant with her on his right-hand side. He is not wearing gloves. He has a long object covered in fabric (jumper or jacket) held in his left hand close to the left-hand side of his body. The accused walks down the hall towards the complainant’s bedroom, and appears to move the object to the front of his body as he walks. The complainant remains behind the accused, waiting for Ms X to enter the house. The complainant and Ms X then enter the house together. 6:55pm Ms X walks out the front door and walks to the back of the house with a mobile in her hand. 6:58pm
Ms X walks from the back of the house and holds the door open for Mr C, Ms B and Mr A. Mr C and Mr A are carrying drink cans. They walk down the hall towards the complainant’s bedroom. 7:06pm
Ms X walks down the hallway towards the front door. She stands at the front door and looks back towards the bedroom. She then turns and walks out of shot, then reappears. The accused walks to the front door to whether Ms X is standing. He has the firearm under his arm. The accused pauses at the front door and wraps the firearm up in clothing. He is now wearing gloves. Ms X walks out of the front door, holds the screen door open for a few seconds then walks back into the house. 7:07pm Ms X hands the accused an item, then walks back towards the bedroom. The accused pockets the item. Ms X reappears a few seconds later, and then walks out the front door. The accused stands at the door and allows Mr A to pass and walk out in front of him. The accused then walks out, followed by Ms B and Mr C. The accused briefly holds the external screen door open for Ms B and Mr C following behind him. 7:09pm Two cars drive from the street that runs down the side of the house. 7:08-7:20pm The complainant is seen attempting to secure the front door, including by placing items in front of it and jamming a pole under the handle.
Assessment of the witnesses
I am mindful that I am not required to accept a witness wholly or to reject a witness wholly. Having said that, I found that the complainant was a wholly credible witness. The EIC interview was compelling in that it was given immediately following the incident at a time when, although the complainant was tired, what occurred was extremely fresh in her mind. The evidence she gave in the witness box was also clear and consistent and she was unshaken in cross-examination. The complainant made concessions where appropriate. She accepted the possibility of a different version of events when she did not still have a clear recollection. The key example of this is when the accused’s counsel put to her that it may have been the complainant who initially called the accused to invite him to her house, rather than the accused ringing the complainant. That lends strength to the complainant’s maintenance of her recollection at other times, when her memory of what occurred was different to the version of events put by the accused’s counsel. The complainant’s evidence was also corroborated at various points by either the CCTV footage or the contemporaneous complaint evidence from other witnesses. I therefore accept the complainant’s evidence as credible and reliable in terms of what she saw and heard, and what happened to her.
Similarly, the complaint witnesses (Ms Sarah and Renee) were also each credible and generally reliable. To the extent their versions of events differed either from each other or from the complainant, I considered any such inconsistencies to be both natural reflections of a person’s memory and minor in nature, and did not detract from their credibility.
The CCTV footage was independent corroboration of the accused’s presence at the house and his carrying and concealing of the firearm.
None of the witness statements were challenged in any way and I have accepted those statements as each credible and reliable in respect of their contents.
Findings of fact
Existence of an agreement to assault established
It is clear beyond reasonable doubt (indeed, it was not put in issue) that at least Ms X, Mr A and Ms B were party to an agreement to assault the complainant. Mr A and Ms B were directly involved in the assault and Ms X went outside and provided access for her brother Mr A and for Ms B to enter the complainant’s bedroom, where they assaulted the complainant.
Existence of accused’s intentional participation in agreement established
On the evidence that I have accepted:
(a)The accused called Ms X and arranged to hang out with her. He did not tell her Ms X was coming at that stage or any other stage before they arrived.
(b)The accused went to the complainant’s house with Ms X, whom the evidence established, by her conduct in going outside on the pretence of having left something in her car and then bringing back Mr A, Ms B and Mr C, was party to the agreement to assault.
(c)The accused carried a firearm with him to the complainant’s house.
(d)The accused had hidden the firearm under his jumper or jacket before he entered the house.
(e)The accused had also held the firearm on the other side of his body from the complainant as he entered the house.
(f)The accused did ask for a screwdriver but did not tell the complainant any reason why he wanted it.
(g)The accused did not say anything to the complainant about having the firearm while he was in the complainant’s bedroom before the assault.
(h)Upon the complainant’s request, the accused rang Ms X when she went outside to ask if the car that was heard was the complainant’s brother.
(i)The accused did not express any surprise or say anything when Mr A, Ms B and Mr C entered the room.
(j)The accused did not say anything or express any surprise when Mr A and Ms B started punching the complainant.
(k)When the assault started, the accused revealed the firearm, and had it lying across his lap during the assault.
(l)When the complainant looked across to the accused for help during the assault, he sat opposite the complainant and looked back at her without any expression.
(m)When the complainant was hit to the point where she received a cut above her eye, the accused said, “that’s savage”.
(n)When Ms X left and went and stood by the front door, the accused did not immediately follow her.
(o)The accused left the room shortly before Mr A, Ms B and Mr C. At the door he again hid the firearm in his jumper or jacket. The accused waited for Mr A and then followed Mr A out. He also momentarily held the door for Ms B and Mr C who were following him. It is clear that he was deliberately leaving with the group.
The above facts satisfy me beyond reasonable doubt that the accused entered into an agreement with at least one other person (whether that be Ms X, Mr A, Ms B or all of them), intending to assault the complainant for the alleged non-payment of a debt.
Although the accused arrived before Mr A and Ms B, and he was not the person to go outside and bring them into the complainant’s bedroom, I am satisfied beyond reasonable doubt that the accused was not present in the complainant’s bedroom as a mere accidental bystander.
The accused contended that it is not an offence to do nothing, and it is not an offence to walk away. However, I do not accept that the accused “did nothing”, nor that he simply walked away. The accused took a firearm to the complainant’s house. The firearm was initially concealed from the complainant. Counsel for the accused contended that the accused may have concealed the firearm from the public in general as he entered the house, rather than specifically concealing the firearm from the complainant. But that does not explain the continued concealment of the firearm after the accused entered the house, or why the firearm was brought at all.
That the accused took a firearm to the complainant’s house for an innocent purpose of somehow repairing it with a screwdriver, in circumstances where he did not reveal the firearm until the assault commenced (as I have found) and where he sat and watched the complainant be beaten and then left with the offenders, is not a reasonable hypothesis.
The only reasonable explanation for the presence of the firearm when the accused entered the complainant’s house is that he knew of the intended assault in advance and that he intended to participate in at least a non-verbal understanding that Mr A and Ms B would threaten the complainant.
It was separately contended that the accused arrived with Ms X and left with Ms X. However, even that is contradicted by the CCTV footage. Ms X went to leave the house and stood at the front door. The accused did not immediately follow her. When the accused left the house a short time later, he both waited for Mr A to exit the house first and then held the door momentarily for the others to follow the accused out of the house. The accused may have arrived with Ms X, but he unquestionably exited as part of the group including Mr A, Ms B and Mr C.
In making the above findings about the accused’s agreement to participate in the assault, I make two further points. First, I have drawn the inference that the accused was aware the complainant owed Mr A money. The accused was the complainant’s friend. He had spent time with her quite independently of any involvement with Ms X and her brother Mr A. It is common sense that he would not have participated in the assault of someone he was friendly with, without knowing the reason for the intended visit to the complainant’s house.
Second, s 45A(6) of the Criminal Code provides that a person must not be found guilty of an offence under the section if, “before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person – (a) ended the person’s involvement; and (b) took all reasonable steps to prevent the conduct from being engaged in.” I have taken into account the accused saying “that’s savage” as part of the facts above with that aspect of the section in mind. The accused only spoke half way through the assault and when he did speak, he did not say stop, although I accept he may have been attempting to indicate to Mr A and Ms B that the roughing up of the complainant was more than he was comfortable with. In any event, the words are insufficient to give rise to the application of s 45A(6).
An offence was committed in the course of carrying out the agreement - Aggravated robbery established
None of the elements of aggravated robbery were put in issue.
Separately, based on the account given by the complainant as to what happened to her and what was taken, the CCTV footage, and the photographs in evidence of her bruises, I am satisfied beyond reasonable doubt that a person (whether it was Mr A, Ms X or Ms B is immaterial) dishonestly appropriated property belonging to the complainant, being her phone and her house key, with the intention of permanently depriving her of that property. Immediately before the theft of such property, two of the participants in an agreement to assault the complainant used force on the complainant and such conduct was in the company of one or more people, being an aggravating feature of the offence.
I also accept that there was a further separate circumstance of aggravation, being that in addition to that fact, the accused himself carried a firearm. Although Ms B also carried a weapon, being a knife, and used it to threaten the complainant, this was not relied as the circumstance of aggravation.
The accused was reckless about the commission of the aggravated robbery in the course of carrying out the assault
That leaves consideration of whether the element of recklessness is established beyond reasonable doubt. In that regard, I have considered what the accused knew when he attended the complainant’s house.
He knew he would not be alone in that Ms X would be there with him (that is, he had a conscious awareness that he would be “in company”).
He knew by his agreement (as I have found) that others were coming to carry out the assault on the complainant at her home. I say that because it is clear that Ms X and the accused arrived separately before the others and were friendly with the complainant (joking around) before the others arrived. Despite having opportunities before the others arrived, neither the accused nor Ms X threatened, punched or hit the complainant at any point in the assault that occurred.
The very nature of the agreement to assault involves the threatened use of force. As I have found an intention to participate in the agreement to assault, it follows that the accused had an awareness that there was a substantial risk of the threatened use of force.
With that knowledge, the accused decided to bring a firearm to the complainant’s house and knew that he would be in the company of at least one other person.
As to the awareness of a substantial risk of theft occurring, the purpose of the assault was to force the complainant to pay the money owed. Having set out to assault the complainant at her house, I am satisfied beyond reasonable doubt that the accused also had an awareness of a real likelihood that given the opportunity, one of the participants to the agreement may take property from the complainant, whether that be money or something of commercial value, such as a mobile phone.
Separately and as a matter of common sense, the accused knew that after the assault had occurred in the complainant’s house, he and the other participants would necessarily seek to leave the property without someone chasing them down, or police pursuit. It must have been within the accused’s conscious contemplation that the participants would not wish the complainant to have the means to immediately call for help, whether that be the police or her brother or someone else. It follows that the accused was aware that there was a substantial possibility that following the assault one of the assailants may seek to take the complainant’s mobile phone to avoid immediate detection and/or pursuit.
Similar reasoning may be seen in Higgins, where Berman AJ was dealing with the offence of an assault occasioning actual bodily harm, which occurred during the course of a burglary. His Honour stated at [45]:
…Very few burglars would be unconcerned at being observed as they run from the premises they have just broken into. It must have been within the accused’s conscious contemplation that it may be necessary to, for example, prevent someone identifying them, chasing them or calling the police immediately and the accused must have been aware of the substantial risk of it being necessary in such circumstances to assault an innocent bystander.
This is a case where it cannot be said that the risk of an aggravated robbery occurring was beyond the realms of contemplation in more than one person carrying out an assault in the complainant’s home. On the contrary, it must have been within the contemplation of the accused that in the course of the assault involving the threatened use of force at the complainant’s home, that one of the participants may take something immediately after such force was used. Again, the presence of the firearm assists in drawing that inference, as it would plainly facilitate the taking of property from the unarmed and beaten complainant.
Finally, in respect of the second limb of recklessness, the risk arose because of the criminal conduct of carrying out the assault. There is nothing to provide any justification for carrying out the assault with an awareness that there was a substantial risk that aggravated robbery would be committed by one of the participants in the agreement to assault.
As both limbs of the element of recklessness are established beyond reasonable doubt, I am accordingly satisfied beyond reasonable doubt that the accused was reckless about the different offence of aggravated robbery being committed in the course of carrying out the agreement intended, being to assault the complainant.
Alternative offence
As I am satisfied of the elements of the primary offence of aggravated robbery by joint commission it is not necessary to consider the alternative offence of assault occasioning actual bodily harm by joint commission.
Conclusion
I am satisfied beyond reasonable doubt that the prosecution has established all the elements of the offence of aggravated robbery by joint commission.
I return the following verdict:
(1)The accused is guilty of the offence of aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code.
| I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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