R v Alison Elizabeth Kelly; R v Matthew Kelly - [2014] ACTSC 28

R v ALISON ELIZABETH KELLY
R v MATTHEW KELLY
[2014] ACTSC 28 (25 February 2014)

CRIMINAL LAW – judge alone trial – theft – robbery in company – complainant lied about key issue in trial – unable to be satisfied beyond a reasonable doubt accused version of events false

Criminal Code 2002 (ACT), ss 306, 308, 309, 310

EX TEMPORE JUDGMENT

No. SCC 138 of 2013
No. SCC 160 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 25 February 2014

IN THE SUPREME COURT OF THE     )          No. SCC 138 of 2013
  )          No. SCC 160 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: REGINA
v

AND:ALISON ELIZABETH KELLY

AND: MATTHEW KELLY

ORDER

Judge:Burns J
Date:25 February 2014
Place:Canberra

THE COURT ORDERS THAT:

Each accused be acquitted of the charge against them.

The accused, Alison Elizabeth Kelly and Matthew Kelly, are jointly charged that on 29 May 2013 they committed a robbery in company with each other, and at the time Matthew Kelly had an offensive weapon with him.
The Crown brings these charges on behalf of the community, and it is for the Crown to establish the charge. The Crown must prove each of the elements of the charge against each of the accused to the standard of beyond reasonable doubt. The accused in this case do not hold a legal onus to prove anything in these proceedings.
Where the issue of claim of right is raised, there is an evidentiary onus which is placed on the accused, but after that evidentiary onus is satisfied by the accused being able to point to evidence which raises the question of claim of right, it then falls upon the Crown to establish that the accused did not have a claim of right to the standard of beyond reasonable doubt.
The charge of aggravated robbery is a charge under s 310 of the Criminal Code 2002 (ACT). As the name of the offence suggests, it is an aggravated form of the offence of robbery, which is found in s 309. A person commits an offence of robbery if, for present purposes, the person commits theft and certain other elements are satisfied, which it is unnecessary at the present time to go into.
A person commits the offence of theft pursuant to s 308 of the Criminal Code if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property. Section 306 of the Criminal Code is relevant to the present trial. Subsection (1) provides that: a person, person A, has the intention of permanently depriving someone else, person B, of property belonging to B, if: A appropriates property belonging to B without meaning B to permanently lose the property and A intends to treat the property as A's own to dispose of regardless of B's rights.
The Crown made it clear at the commencement of this trial that it relied upon what it referred to as the extended definition of "intention to permanently deprive" in s 306(1) in order to prove the charges against each of the accused. The crucial witness in the Crown case was Brady Martin. I may say at the outset that I found his evidence to be most unsatisfactory, and I found him to be a particularly unsatisfactory witness overall.
In particular, his evidence concerning the question of whether he owed a debt to Mrs Kelly relating to the period of time that he had spent at her house, before leaving on the Friday prior to 29 May 2013, was, in my opinion, deliberately misleading. It became quite clear in the course of cross‑examination of Mr Martin that he was well aware of the fact that there was money owing to Mrs Kelly by way of rent, or some form of occupation fee, or board, for the period that he had spent living at her premises.
I am satisfied that when he told the police in his interview with them that in his opinion he owed the Kellys nothing, he was lying. I am also satisfied that when he gave similar evidence in the proceedings before me, he was lying. Ultimately, he had to accept that there was money owing. It must have been apparent to Mr Martin that that was a key issue in the current trial, and as such, I am satisfied that he lied with respect to a key issue in the trial. I do not accept his evidence to be evidence of truth.
In order to determine whether the accused are guilty or not guilty of the charge against them, it is, of course, necessary to determine the facts which have been established by the evidence. There is, as I have said, the evidence of Mr Martin, which I found to be particularly unsatisfactory. The accused did not give evidence. They were not required to give evidence because they held no onus in relation to these proceedings.
Each of the accused participated in interviews with police. The contents of those interviews became evidence in the trial and became available for use both in their favour and also against them. It is quite clear from the record of interview of Alison Kelly that she raised a number of issues which are very pertinent to the disposition of the current charge. Firstly, she raised the proposition that the complainant, Mr Martin, had agreed to hand over the property, being the two bags, which ultimately the accused took into their possession and which were later recovered from their residence. Secondly, it was very clear from the record of interview of Ms Kelly that the reason why they were seeking out Mr Martin and why they took possession of the two bags was as collateral for the money which was owed by Mr Martin for his board at the accused’s residence.
If I cannot be satisfied beyond a reasonable doubt that events did not occur as described by Mrs Kelly in her record of interview, then I have to proceed to determine the charges based upon that version of events. In my opinion, I cannot be satisfied beyond a reasonable doubt that events did not occur in that way.
As I indicated earlier, it is for the prosecution to prove each and every element of the charge against each of the accused to the standard of beyond reasonable doubt, and for present purposes that means that they have to prove that when the accused came into possession of the property, that is, when there was an appropriation of the property, that the accused, and each of them, intended to permanently deprive Mr Martin of that property in the sense that they intended to treat the property as their own to dispose of regardless of Mr Martin's rights.
As a question of fact, I am not satisfied beyond a reasonable doubt that that was their state of mind at the time that they appropriated the property. Inevitably, that means that they must be acquitted of the charges against them. It is therefore not necessary for me to consider the question of claim of right. Before concluding this matter, though, I will say one thing. I do not condone the actions of the accused in seeking out Mr Martin in the way in which they did. It was an approach which was fraught with danger, as has been demonstrated by what happened thereafter.
Each of the accused will be acquitted of the charge against them.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 20 March 2014

Counsel for the Crown:  Ms A Knibbs
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused A Kelly:                Mr A Doig
Solicitor for the Accused A Kelly:               Darryl Perkins Solicitors
Counsel for the Accused M Kelly:               Mr S Boland
Solicitor for the Accused M Kelly:               Aboriginal Legal Service (NSW/ACT)
Date of Hearing:  24-25 February 2014
Date of Judgment:  25 February 2014