R v ALCHIN
[2006] SADC 112
•28 September 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALCHIN
Criminal Trial by Judge Alone
[2006] SADC 112
Decision of Her Honour Judge Shaw
28 September 2006
CRIMINAL LAW
Mental incompetence - determination of objective elements
Criminal Law Consolidation Act 1935, referred to.
R v ALCHIN
[2006] SADC 112
The defendant is charged with aggravated robbery. Particulars of the offence are that on the 31st day of August 2005, at Adelaide, while armed with an offensive weapon, namely a syringe, the defendant threatened to use force against Sarah Jane Allen in order to commit the theft of tobacco, a cigarette and money in the amount of eighty cents, and the threat was made immediately before or at the time of the theft.
The defendant elected to have the investigation of his mental competence to commit the offence, heard by a judge sitting alone. The defendant pleaded not guilty to the charge.
Pursuant to section 269E(2) of the Criminal Law Consolidation Act 1935, (“the Act”) the court has a discretion to proceed first with the trial of the objective elements of the offence or with a trial of the mental competence of the defendant.
It was agreed on behalf of the Director that the defendant was mentally incompetent to commit the offence. This position was taken upon the basis of the psychiatric reports received by the court. Pursuant to section 269FA, I was satisfied on the balance of probabilities, that the defendant was at the time of the alleged offence, mentally incompetent to commit the offence. Pursuant to section 269FB of the Act, I proceeded to determine the question of whether the prosecution have proved beyond reasonable doubt, the objective elements of the offence of aggravated robbery.
Prosecution Case
The prosecution case was that on Wednesday 31 August 2005 at about 1.00pm, Ms Sarah Allen was spoken to by the defendant. He informed her that he had an anger management problem. She became worried. She handed to the defendant some loose tobacco, a cigarette and eighty cents. She saw a syringe in the defendant’s hand. It was alleged that the syringe was an offensive weapon.
Prosecution Evidence
The prosecution tendered declarations of Benjamin Wayne Jaffer dated 26 September 2005. He saw the defendant carrying a white plastic bag and that he was in possession of a syringe.
In addition, the prosecution tendered declarations of David Brendan Carman, dated 10 September 2005, Matthew Alistair Joseph Burrage, dated 8 September 2005, Mark Sheehy dated 11 September 2005, Stan Tsoulos dated 19 September 2005 and Ryan Frisby dated 31 August 2005.
Ms Sarah Allan gave evidence that on 31 August 2005, she was standing in Angus Street on her cigarette break, when she turned around and saw the defendant standing between herself and the road.
The defendant told her that he had a bit of an anger problem and made mention of the use of a syringe. He appeared a little bit agitated.
She said she felt frightened.
The defendant was carrying a very big white plastic shopping bag which appeared to contain the majority of his possessions.
The defendant said he was after cigarettes, Ms Allen placed some tobacco in a zip lock bag which the defendant obtained from the shopping bag. Ms Allen said she gave the defendant the tobacco because she was afraid the defendant might become angry again if he didn’t get what he was asking for.
After she had handed over the tobacco, the defendant said he also needed money for papers. Ms Allen obtained eighty cents from her bag and handed it to the defendant. When the defendant opened his hand to receive the eighty cents, she saw a syringe in his hand.
The defendant said “Are you intimidated”. Ms Allen said “I am a bit”. The defendant then put the syringe away so that she could hand the money to him.
She said she gave the defendant the money because she was afraid.
The defendant looked as if he was about to walk off. He stopped, told her that he had eighty cents and asked her how much he now had altogether. Ms Allen told him that the total was one dollar, sixty cents. The defendant said he needed three dollars. Ms Allen told him that she did not have any more money.
Because the defendant was looking at a smoke which she has holding, Ms Allen handed it to the defendant. It went out and she lit it again for him. She did not want to give him her lighter and she didn’t.
She said she was frightened and nervous throughout. She said that she gave the defendant the cigarette because she was still afraid of the unpredictable nature that he appeared to have.
During cross examination, Ms Allen agreed that at about that time, she would see homeless people on a regular basis. She had not previously been approached by a homeless person begging or asking for cigarettes.
She agreed that the defendant spoke in a normal voice; he was about five foot tall and looked like a homeless person who was begging.
She said she was frightened because of the defendant’s demeanour. He was agitated and told her he had an anger problem.
She agreed she had said in her statement that the defendant said he didn’t have any money for papers.
Prosecution submissions
It was submitted that it was necessary for the court to determine whether there was a threat of force, and whether the defendant dealt with Ms Allen’s property dishonestly.
The prosecution submitted that the court could rely on the evidence of Ms Allen that the defendant said he had an anger management problem and that she saw he had a syringe in his hand when he held it out to receive eighty cents from her. The prosecution submitted that there needed to be a causal link between the threat of force and the taking.
The production of the syringe was said to confirm the frightening and threatening situation that Ms Allen found herself in.
Findings
I find that Ms Allen endeavoured to give her evidence honestly and to the best of her ability.
I find that Ms Allen was spoken to by the defendant, whom she realised was a homeless person carrying his possessions in a bag. This was a new experience for Ms Allen.
She was apprehensive about being engaged in a conversation with a homeless person whom she did not know.
The question for the court is whether the prosecution have adduced sufficient evidence to prove that there was a threat of force and that the threat of force occurred before, at the time of or after the taking.
It was plain that Ms Allen was disturbed by the defendant’s approach. I am not satisfied beyond reasonable doubt as to the reliability of Ms Allen’s account of the events. I cannot be satisfied beyond reasonable doubt as to precisely what was said by the defendant during the exchange. I am not satisfied beyond reasonable doubt that any conduct of the defendant amounted to a threat. I am not satisfied beyond reasonable doubt that any words that were spoken by the defendant, his conduct and/or the circumstances in which it was said that a syringe was seen in the defendant’s hand, amounted to a threat of force.
I cannot exclude as a reasonable possibility, that Ms Allen gave the defendant the items which are the subject of the charge solely because of the defendant’s appearance as a homeless man begging, and not because of any threat or perceived threat of force made by the defendant.
I am left with a reasonable doubt as to the proof of the objective elements of the charge.
Therefore, the objective elements are not proved.
I find the defendant not guilty of the charge.
The defendant is discharged.
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