Putrus v The Queen
[2019] VSCA 59
•20 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0067
| MAZIN PUTRUS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST AP, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 February 2019 |
| DATE OF JUDGMENT: | 20 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 59 |
| JUDGMENT APPEALED FROM: | DPP v Putrus (Unreported, County Court of Victoria, Judge Cohen, 26 February 2018) |
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CRIMINAL LAW – Appeal – Armed robbery – Theft of a motor vehicle – Use of firearms by the appellant’s co-accused – Use of force or threats of force – Whether doctrine of ‘continuous appropriation’ capable of being invoked in particular circumstances – R v Hale (1978) 68 Cr App 415 considered – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr N Goodfellow | Balmer & Associates |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST AP
KAYE JA
WEINBERG JA:
On 11 December 2017, the appellant was convicted, following a trial at the County Court, of one charge of armed robbery. He had previously pleaded guilty to charges of attempted aggravated burglary, theft and committing an indictable offence whilst on bail (namely, the aggravated burglary).
On 29 August 2018, pursuant to an application on the papers, Weinberg JA granted leave to appeal against the conviction for armed robbery on the following ground:
The learned trial judge erred in defining the elements of armed robbery
Particulars:
(a)The learned trial judge erred by misdirecting the jury as to the appropriation of property (first element of armed robbery).
(b)The learned trial judge erred by misdirecting the jury as to the relevant force or fear induced (second and third elements of armed robbery).
(c)The learned trial judge erred by failing to have adequate regard to the definition of theft contained in section 73(14)(a) of the Crimes Act 1958.
(d)The learned trial judge erred by allowing the prosecution to submit to the jury that force or fear induced after the theft may satisfy the second and third elements of armed robbery.
Summary of the offending[1]
[1]The summary of the offending is largely drawn from the judgment granting leave. See Putrus v The Queen [2018] VSCA 218.
The appellant was charged with armed robbery as part of a suite of charges arising out of a series of events associated with an attempted aggravated burglary. His co-offenders were Marvin Afran and Bradley Higgins. The target of the burglary was a property situated in Bradley Street, Newport, near Williamstown.
On 13 April 2016, at about 3.45pm, the appellant arrived at that property in company with Afran. Higgins arrived at the same time, but in a separate vehicle. Their purpose was to steal drugs from that house, but it seems they had been told earlier that afternoon, by another co-offender Shantel Ribbons, who was in the house that day that there was ‘a lot worth stealing’.[2]
[2]DPP v Putrus (Unreported, County Court of Victoria, Judge Cohen, 26 February 2018) [5] (‘Reasons’).
The appellant did not himself bring a firearm to the scene. However, he was aware that both Afran, who carried a sawn-off shotgun, and Higgins, a shortened firearm, were armed.
The three men, led by Higgins then approached the front door of the property. Afran and Higgins were both clearly displaying their firearms. They knocked, and called out, at the front door, seeking to gain entry. The appellant appeared to keep watch. When the occupant of the house refused to open the door, the appellant led the other two around the house in an effort to find another means of entry. That too was unsuccessful.
The owner of the property, PT (the first victim), was inside throughout these various attempts by the offenders to gain entry. He observed them from his home security system cameras, installed around the outside of his house.
A few moments later a Commodore car began to turn into the driveway. The car was owned by PT, but was being driven by BW (the second victim). BW parked outside the front gate, adjacent to the driveway.
The appellant and Higgins ran towards the car. The appellant went directly to the driver’s side door and said to BW, aggressively, to ‘get out of the fuckon car’.[3] BW’s description of what occurred was that it was ‘very aggressive’. He added that he did not like any confrontation. Higgins, in the meantime, was at the passenger side door and opened it, with his right arm entering the car and his firearm being held in his right hand.
[3]Reasons [8].
We have studied the CCTV footage of the scene at the car. It bears out BW’s description of what occurred.
According to BW, after the appellant told him to get out of the car, BW did so, leaving the keys in the ignition. The appellant then stood between BW and the driver’s seat, signalling him to go with Afran, who, by then, had approached the driver’s side of the car. Afran’s firearm was partly concealed, but it is clear from the footage that BW moved his hands away from his body, in a raised hands gesture, clearly signifying that he was in fear of what was happening.
The appellant then got into the car and drove it a few metres along the street. He then exited the vehicle, and went to join the others at the front door of the property.
In the meantime, Higgins had accompanied BW to the front of the house. Both Higgins and Afran threatened BW, demanding that he assist them in gaining entry to the house. While these threats were being made, the appellant joined them. Despite the threats made to BW, PT, sensibly, refused to open the door. The three offenders, having failed to get into the house then left the scene, with the appellant driving off in the car that BW had been driving.
The appellant’s trial
The trial commenced in December 2017. The appellant was arraigned and, as we have said, pleaded guilty to the attempted aggravated burglary and theft of the car. He pleaded not guilty to the charge of armed robbery, which concerned the theft of that car.
The appellant denied having used force in relation to the theft of that vehicle. He also denied having sought to place BW in fear that force would be used, either immediately before, or at the time of the theft.
It is necessary, at this point, to set out the relevant legislative provision governing the offence of robbery. Section 75(1) of the Crimes Act 1958 provides:
A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.
Section 75A creates an aggravated form of robbery which is designated as ‘armed robbery’. That offence is committed if the person carrying out the robbery is in possession of, inter alia, a firearm or offensive weapon. The case against the appellant was predicated upon his having been a party to an arrangement whereby his co-offenders would be armed with firearms, a matter of which he was plainly aware.
The only issue in the trial, on the charge of armed robbery, was whether the appellant, and/or his co-offenders, had used force, or sought to put BW in fear that force was going to be used, immediately before or at the time of the theft of PT’s car. As indicated, the theft itself was conceded.
During the course of the trial, the appellant's counsel raised a concern with the judge. He noted that the prosecution proposed to invite the jury to find that the appropriation of the vehicle was ‘ongoing’, or in other words, ‘a continuing act’. If that were so, the jury might find that although the prosecution could not establish that force, or threats of force, had been made at the time the appellant had opened the driver’s side car door, they could nonetheless convict of armed robbery on the basis of the force or threats made subsequently, back at the door to the premises.
The judge, having heard argument on the point, ruled that the prosecution would be permitted to run the case on that alternative basis. She ultimately directed the jury accordingly.
Submissions on appeal
It was submitted before this Court that although the appellant had unquestionably stolen the car, and had also taken part in the making of threats against BW at the point at which they were all standing at the front door of the house, any fear that those threats had induced had not been brought about immediately before, or during, the theft.
In addition, it was said, that any such fear had been created solely in order to gain entry to the house, and not in order to steal the car.
A further variant of that submission was that by the time the appellant drove off in the car, after the three offenders had failed to gain entry into the house, the theft of that vehicle had already been completed. It was submitted that each and every element of the offence of theft had been established once the appellant drove the car just a few metres along the street, before he joined his co-offenders in confronting BW near the front door.
By that point, so it was said, the appellant had already dishonestly appropriated the car with the deemed intention of permanently depriving the owner of it.[4] In other words, it was submitted that the theft of the car was complete once the appellant first took possession of it and shifted it just a few metres along the street. Whatever occurred thereafter, could not satisfy the requirements of s 75(1), and could not therefore give rise to an offence of robbery.
[4]Section 73(14) provides that in any case in which the charge is theft of a motor vehicle, proof that the car was taken without the consent of the owner or person in lawful possession shall be conclusive evidence that the person charged intended to permanently deprive the owner of it.
We note that BW did not suggest, in his evidence, that he was forced out of the car in any direct sense. Nor did he specifically say that he regarded himself as having been threatened by the appellant, or Higgins, while he was still seated in the car. The only threats, of which he spoke came later, from Afran and Higgins, both of whom were obviously armed.
The appellant, in his Written Case, made the following submission:
This force or fear induced during the second event [the incident involving BW at the front door of the house] was done so after the appropriation of the Holden Commodore, and therefore, cannot satisfy the second element of armed robbery: R v Foster (1995) 78 A Crim R 517 (NSWCCA). The learned sentencing judge erred by not limiting the jury’s consideration of the relevant force or fear induced [to] the first event. The force or fear induced after the theft of the Holden Commodore was not relevant to the second or third elements of armed robbery.
The appellant submitted that whatever one might say about ‘continuing appropriation’, this was not a case in which that particular doctrine could properly be invoked.
Counsel referred in that regard to R v Hale,[5] where the concept of ‘continuing appropriation’, in relation to the offence of theft, was first developed. The facts of that case may be briefly stated. The appellant was charged with robbery. The prosecution case was that he and one M, both wearing stocking masks, had forced their way into the house of a woman who had answered the door to their knock. The appellant had then put his hand over her mouth to stop her screaming while M went upstairs and returned carrying a jewellery box. M had then asked the woman where the rest of the jewellery was kept.
[5](1978) 68 Cr App 415 (‘Hale’).
A neighbour, who had heard the woman scream had then rung up to ask if she was alright. Under threats from the appellant and M she replied that she was. They again asked the woman where she kept her jewellery and other valuables, and before leaving the house tied her up and threatened what would happen to her son if she informed the police within five minutes of their leaving.
Not surprisingly, the appellant was convicted of robbery. On appeal it was submitted that the jury had been misdirected in that they might have convicted him on the basis that he had used force, or made threats after the theft of the jewellery was already complete. In other words, what was said and done to her may have been directed towards escaping, rather than furthering the theft.
It was in that context that the English Court of Criminal Appeal held that although the appellant could have been convicted of theft, if he and his accomplice had been interrupted immediately after the seizure of the jewellery box, the act of appropriation had not suddenly ceased. It was a continuous act, and it was a matter for the jury to decide whether or not the act of appropriation had been completed. As a matter of common sense, the appellant was still in the course of committing theft when the threats were uttered, and the conviction stood.
Counsel for the appellant also sought to rely upon R v Foster.[6] In that case the appellant was convicted of murder. She, together with a co-offender J, went to the house of the deceased. J was carrying a knife which had been supplied by the appellant. At some point, J went to the kitchen and a fight took place in which the deceased was stabbed three times. One of the wounds was fatal.
[6](1995) 78 A Crim R 517 (‘Foster’).
One basis upon which the prosecution relied for its case of murder was that of felony murder. That required the stabbing to have been done ‘in connection with’ the attempted armed robbery. The appellant’s case was that she went to the house to complain about the poor quality of drugs which she had previously received, but not to steal anything.
The appeal succeeded. The New South Wales Court of Criminal Appeal held that the offence of robbery required proof that violence had been used, or at least threatened, in order to cause the victim to part with the property taken. It was not sufficient that violence had been inflicted, or the threat of violence made, after the property had been taken.[7] The jury had been misdirected in that regard.
[7]See also, Smith v Desmond [1965] AC 960 and R v Emery (1975) 11 SASR 169.
It is fair to say that the facts in Foster were somewhat removed from the facts in the present case. Certainly, Foster does not cast doubt upon the doctrine of continuing appropriation, as it has been applied, for many years, in the context of the Theft Act provisions.
Returning to the present case, counsel for the appellant initially submitted that Hale had been wrongly decided, and that this Court should hold that no doctrine of continuing appropriation existed. By the time he came to present his oral submissions in support of the appeal, he had specifically, and sensibly, resiled from that contention. He contented himself with arguing that Hale was distinguishable, and that whatever might be said about the doctrine itself, it had no application in the particular and unusual circumstances of this case.
Counsel submitted that the two acts of driving on the part of the appellant that were proved had to be kept strictly separate and apart. The prosecution had opened its case at trial on the basis that the robbery took place when the appellant opened the driver’s side door, got into the driver’s seat and drove the car a few metres along the road. The case as originally conceived was that either force had been used, or there had been at least an implied threat of force, in order to induce BW to get out of the vehicle and enable it to be driven off, albeit for a short distance.
However, for reasons that are not immediately apparent, but may be linked to the fact that BW was unable to recall whether he saw Higgins produce a firearm while he was still in the car, the prosecutor had sought, in the course of the trial, to put the Crown case on a quite separate and distinct basis. It may be that he entertained some doubts as to whether BW’s evidence, as to what took place immediately before he got out of the car would satisfy the requirements of s 75(1).
In those circumstances, the prosecutor sought to rely upon an alternative Crown theory. This was that the force used, or threats of force made by the three men, at the front door, after the appellant had first driven the car, could be said to meet the requirements of the section under the doctrine of continuing appropriation.
In that regard, it should be noted that the appellant conceded that before he entered the vehicle on the second occasion, and drove it away from the scene, he had participated in the use of force towards BW, or had sought to induce BW to fear that force would be used against him. It was accepted, as it had to be, that in the period between the first and second takings of the vehicle a ‘high degree of force’ had been applied to BW. During that time, after the three offenders had walked up the driveway, with two brandishing firearms, they demanded that BW empty his pockets. He complied, and held his hands out in front of him as if to demonstrate his submission to their demands that he comply. He was still adopting that stance when the three offenders left the premises, with the appellant driving the vehicle away. In those circumstances it was well open to the jury to conclude, first, that the second taking of the vehicle was a continuum of the first taking of it, and, secondly, that the appellant and his co-offenders had put or sought to put BW in fear that force would be used against him in order for them to be able to depart the premises, and to enable the appellant to do so, taking the car with him.
It seems to us, with respect, that it was unnecessary, and perhaps unwise for the prosecutor to entertain any doubt as to whether the elements of armed robbery had been established in relation to what might be termed the first act of driving. The video footage makes it perfectly clear that BW was threatened by Higgins, who was clearly displaying the firearm when he opened the passenger side door. Whether BW had a specific recollection, by the time he came to give evidence at the trial, of seeing that weapon produced matters little. The relevant provision governing the offence of robbery renders it sufficient that the accused ‘seeks to put any person in fear’ that he or another person will be then and there subjected to force. Higgins’ actions, in which the appellant was complicit, unambiguously sought to achieve that aim.
That video footage, coupled with the evidence concerning the appellant’s demand in a loud and threatening tone (including the use of the expletive) that BW get out of the car, was more than sufficient to meet the requirements of s 75(1). Self-evidently, a threat can be implied, even if it is not expressly stated.
In our view, the jury could not have entertained any doubt as to whether, in relation to the incident involving BW while seated in the car, a threat of force had been used, in order to appropriate the vehicle.
Of course, once it was clear that a robbery had been committed, it was self-evident, as well, that it was an armed robbery. That was not in dispute.
The doctrine of continuing appropriation was not, ultimately, challenged in the appeal to this Court. For that reason it may well have sufficed to provide an alternative basis upon which this conviction could be sustained. On any view, however, we are satisfied that no substantial miscarriage of justice was occasioned by reason of that alternative path to conviction having been left to the jury. The conviction on the charge of armed robbery was inevitable on either scenario. Based on the foregoing analysis, it was almost certainly based upon the first, rather than the second incident involving the car. We would accordingly dismiss this appeal.
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