R v Baxter and Brading
[2012] ACTSC 82
•May 30, 2012
R v RITA BAXTER and JEFFREY ROBERT BRADING [2012] ACTSC 82
(30 May 2012)
CRIMINAL LAW – Particular offences – dishonesty offences – theft – intention to take possession of property possibly owned by the accused – elements of theft – meaning of “belong to” – whether threat of force may render behaviour “dishonest” – taking possession of property until accused’s property is returned – meaning of “intention to permanently deprive”.
Crimes Act 1900 (ACT), s 32(2)
Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 (ACT)
Criminal Code 2002 (ACT), ss 20, 45, 300, 301, 304, 305, 306, 308, 311, 312
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 9(2)
Supreme Court Act 1933 (ACT), s 68C
Crimes Act 1958 (Vic), s 73(12)
Criminal Procedure Act 1986 (NSW), s 33(2)
Fleming v The Queen (1998) 197 CLR 250
Sharp v McCormick [1986] VR 869
Explanatory Statement for the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 (ACT)
Ian Leader-Elliott, The Commonwealth Criminal Code: A Guide for Practitioners (Commonwealth Attorney-General’s Department, March 2002)
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Theft, Fraud, Bribery and Related Offences (1995)
The Macquarie Dictionary Online ( SCC 200 of 2010
No. SCC 201 of 2010
Judge: Penfold J
Supreme Court of the ACT
Date: 30 May 2012
IN THE SUPREME COURT OF THE )
) No. SCC 200 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 201 of 2010
R
v
RITA BAXTER
and
JEFFREY ROBERT BRADING
ORDER
Judge: Penfold J
Date: 30 May 2012
Place: Canberra
THE COURT FINDS THAT:
On the charge of aggravated burglary (Count 1) – Rita Baxter is not guilty.
On the charge of aggravated burglary (Count 2) – Jeffrey Robert Brading is not guilty.
On the charge of aggravated burglary (Count 3) – Rita Baxter is guilty.
On the charge of aggravated burglary (Count 4) – Jeffrey Robert Brading is not guilty.
On the charge of theft (Count 5) – Rita Baxter is guilty.
On the charge of theft (Count 6) – Jeffrey Robert Brading is guilty.
Background
The accused Rita Baxter and Jeffrey Robert Brading were arraigned before me on a total of six counts, as follows:
Count 1: That on the 18th day of February 2010 at Canberra in the Australian Capital Territory RITA BAXTER entered a building, namely x/xx Chandler Street, Belconnen, as a trespasser, with intent to commit theft of any property therein and at the time of doing so had an offensive weapon, namely a baseball bat and was in the company of JEFFREY ROBERT BRADING.
Count 2: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory JEFFREY ROBERT BRADING entered a building, namely x/xx Chandler Street, Belconnen, as a trespasser, with intent to commit theft of any property therein and at the time of doing so had an offensive weapon, namely a 30 cm orange pole and was in the company of RITA BAXTER.
Count 3: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory RITA BAXTER remained in a building, namely x/xx Chandler Street, Belconnen, as a trespasser, with intent to commit theft of any property therein and at the time of doing so had an offensive weapon, namely a baseball bat and was in the company of JEFFREY ROBERT BRADING.
Count 4: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory JEFFREY ROBERT BRADING aided and abetted Rita Baxter to remain in a building, namely x/xx Chandler Street, Belconnen, as a trespasser, with intent to commit theft of any property therein and at the time of doing so had an offensive weapon, namely a baseball bat and was in the company of JEFFREY ROBERT BRADING.
Count 5: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory RITA BAXTER dishonestly appropriated property, namely, a black mens wallet, car keys and a set of “Cygnet” brand I-Pod speakers, to the value of fifty dollars, belonging to Aaron Hudson with the intention of permanently depriving him of the property.
Count 6: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory JEFFREY ROBERT BRADING aided and abetted Rita Baxter to dishonestly appropriate property, namely, a black mens wallet, car keys and a set of “Cygnet” brand I-Pod speakers, to the value of fifty dollars, belonging to Aaron Hudson with the intention of permanently depriving him of the property.
The charges arose under provisions of the Criminal Code 2002 (ACT), namely ss 45, 308, 311 and 312. These provisions, together with the relevant parts of the definition provisions (being ss 300, 301, 304, 305 and 306), are set out in Appendix A to this judgment.
Both accused pleaded not guilty to all charges.
Judge-alone trial
Both accused elected to be tried by judge alone.
Section 68C of the Supreme Court Act 1933 of the ACT specifies the procedures to be followed for a trial by judge alone.
The judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts (s 68C(1)).
The judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case (s 68C(3)). Since 2 November 2010, s 68C(3) has also required the judge to take account of directions and comments that would have had to be given or made to a jury, and has applied to warnings, directions and comments under the Evidence Act 1995 (Cth) as well.
The judge must provide a judgment setting out the principles of law she applied and the findings of fact on which she relied (s 68C(2)). In Fleming v The Queen (1998) 197 CLR 250, the High Court considered s 33(2) of the Criminal Procedure Act 1986 (NSW), which was in relevantly identical terms to s 68C(2), and said at [28]:
... whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
As noted, in a judge-alone trial the judge must now give herself certain directions equivalent to those that would be given to a jury. Those directions include general directions relating to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and specific directions that may be required in the particular trial; the general directions I have given myself in this trial are set out in Appendix B, while directions specific to this trial are mentioned at the appropriate points in this judgment
Background to the charges
The charges resulted from an early morning visit to the complainant’s unit by the two accused, who told the complainant they wanted him to hand over some property alleged to have been stolen. The two accused did not find the property they were looking for in the unit, and instead the accused Ms Baxter took some other property belonging to the complainant and left the unit. The two accused returned shortly afterwards, still seeking the return of the original property, and were arrested by police who had been called by the complainant.
Comments on the charges
Counts 1 and 2 allege aggravated burglary against each accused, one of the elements of which is identified as entering a building as a trespasser with intent to commit theft.
Counts 3 and 4 allege a further aggravated burglary by Ms Baxter, referring to her remaining in a building as a trespasser with intent to commit theft, and an offence by Mr Brading of aiding and abetting Ms Baxter’s offence of remaining in the building as a trespasser with intent to commit theft.
The prosecutor explained that the charges have been formulated in this way because the evidence raises the possibility that the entry to the building did not involve any intent to commit theft but that, having entered the building, the accused Ms Baxter then formed an intention to commit a theft, and thus committed a separate burglary offence.
The evidence
One of the complainants, Aaron Hudson, although under the age of 18, expressed a preference to give evidence in the courtroom, and I made an order permitting that under what was then s 8(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
After the evidence was given, counsel for the two accused conceded that the identification of their clients as the people who had visited the complainant’s unit on the day concerned was not disputed. Accordingly, I do not refer to any of the descriptions given in evidence relating to the two people who entered Aaron’s unit that morning, except to note, for reasons which will become apparent (at [40] below), that Constable Leach said that Aaron had described the woman as “of New Zealand descent”, while Constable Leach herself described the woman as “of New Zealand appearance” (descriptions which in general would seem to raise more questions than they answer).
Aaron Hudson
In February 2010, Aaron Hudson had been living in a one-bedroom ground floor unit in Belconnen for about three months. The townhouse was located between Emu Bank and Chandler Street, and had a front door reached from stairs running from Emu Bank up to Chandler Street, and a sliding door accessible through a courtyard facing towards Emu Bank below. The courtyard gate, which opened into a car park leading to Emu Bank, was normally kept “half ajar”. The sliding door opened into a lounge room with two couches and beyond that were a kitchen, hall and bedroom.
On the night of 17 February 2010, Aaron and his brother Joseph and their friend Ben Folkes had been out “four-wheel driving most of the night”, returning home at about 4.00 am to find the front door unlocked and ajar. He and the others checked the unit, found nothing out of place, and went to bed, Aaron in his bedroom and the others on the two couches. They left the glass sliding door open, shutting the screen door but not locking it because it was in any case hard to open once it had been closed (in that it needed to be lifted and forced back).
Between 6.00 am and 7.00 am, Aaron was woken by the sound of someone trying to open the screen door. He got out of bed and went towards the lounge room where he saw, as well as his brother and Mr Folkes who were still on the couches, two other people standing in the room, a woman and a man. Aaron described the woman as holding a baseball bat up “like she was going to start swinging”. The man, Aaron said, was holding something like a jacking pole “to jack your car up”, about a foot long and about half an inch wide, with a black handle and orange bar. Aaron didn’t think the man said anything throughout the incident. Aaron had not given either of these people permission to enter his house.
Aaron backed off towards his bedroom, and the woman came towards him, still holding the baseball bat as if she was going to swing it. During this time, Aaron said:
[the female] kept on carrying on about some stolen stuff, that I had her hammer drill and all this other sort of stuff, I don’t remember, she just kept on going off about that.
The woman may also have mentioned a shovel, Aaron said, and she kept saying that he had to give the property back. The woman followed Aaron into his bedroom where she said “Do you know who I am? I’m Rita Baxter”, and told Aaron that she had seen him working on his car. The woman then began looking through his cupboards and bedside drawers. From the bedside table she took Aaron’s wallet and keys and a set of iPod speakers. Aaron explained what happened next:
MS WESTON-SCHEUBER: Did you say anything when she took the property?---I said they were mine and then she just said, “No, they’re mine now.” I think she said something about I can have them back when the hammer drill and that were there.
MR SABHARWAL: Sorry, I didn’t hear that, I didn’t hear the last part.
MS WESTON-SCHEUBER: Can you just say that again?---That I could have them back when the hammer drill and that were, something like that. I really don’t recall.
Aaron didn’t know anything about a hammer drill or a shovel, but he did know that stuff had been stolen from the storage sheds for the block of units he lived in. Aaron thought that when the woman and man left his house, the man had Aaron’s property. He was vague about what was said as the two intruders left:
Did they say anything else?---They’d be back at 10.00 and that I had to have the stuff.
You had to have the stuff. Did they leave then?---Yes, they did, they went out the back door.
When the woman was asking you about – you’ve referred to a drill and a shovel – did she say anything about whose property they were?---I believe she did, but I can’t remember what she said, no.
In cross-examination on behalf of Ms Baxter, Aaron said he had some difficulty remembering specifically what was said when the two people came into his house. He disputed that there was “some conversation”, saying “I’d call it, I was getting abused”. He gave the following evidence:
Okay. And do you recall the words used by the female being something like, where’s my shit?---Something along the – I don’t believe she was referring to her own shit. Someone else’s stuff.
Okay. Do you recall her saying the words, “I want my shit. Where’s my shit”?---Something along those lines, yes.
Okay. And you understood that to mean that she was asserting that you had something that didn’t belong to you?---Yes.
And indeed belonged to her?---Belonged – yes.
Okay. And I think that you indicated in your evidence that there was an assertion at some point from her that you had to give it back?---Yes.
Aaron agreed that the woman mentioned the hammer drill and shovel. He said that when she looked around his bedroom, she didn’t seem to be looking for specific items, and she asked him whether he had anything of value. He agreed that the things the woman took, being his keys, wallet and iPod speakers, were of value to him, but also said that the keys to his car could have been sold. He agreed that he understood the woman to be telling him that he could have his stuff back when she got her stuff back, and that the woman and the man would come back in about three hours, but said that in the circumstances he didn’t necessarily believe that he would get his stuff back. Aaron denied:
(a) that he told the woman that he had sold the drill;
(b) that he said he would get it back that afternoon; and
(c) that he handed over his wallet, keys and speakers when she asked for something of value that she would give back to him when her things were returned.
In cross-examination on behalf of Mr Brading, Aaron conceded that he had not mentioned the hammer drill and shovel in his police statement, and said that he had only found out afterwards that his name had been given as the person who might have stolen the property. He was aware that sheds around his place had been broken into, and said that his house and his shed had been broken into before 18 February 2010, and that he had complained to police. Aaron accepted that the woman and man believed someone had their property, but he denied having the impression that they were genuine in their belief that he had the stolen items. He agreed that the couple had said he could have his property back when they got their property back, but disputed that any “deal” had been made.
In re-examination, Aaron “clarified” his responses about whose property he believed the woman was looking for:
Now, my friend Mr Sharman asked you whether, when Ms Baxter came into the house, she said words along the lines of, “Where’s my shit?” Do you remember that, being asked that question?---(No audible reply).
And your response was, “She said something like that, but not her own property. Someone else’s”?---Yes.
Is that right?---Yes.
Now my friend, Mr Sharman, also said, “Did you understand her…” the female, “to be saying that the property belonged to her?” Do you remember being asked that?---Yes.
And your answer to that was, yes?---Yes.
Can you explain what you meant by your answers?---Well, I – I can’t be a hundred percent sure if she was – it was her property or someone else’s property. I know she was there to get property. That hammer drill and a shovel.
After the man and woman left, Joseph called the police, who arrived 10 or 15 minutes later. While they were talking to police, Aaron noticed a green VN Commodore driving into the driveway. He arranged with police to make a statement later, and the police officers began to leave by the stairs leading up to Chandler Street. Aaron and his companions locked up what they could and walked downstairs towards the Emu Bank car park, intending to go to the police station. The woman and man Aaron had previously seen in his house got out of the green car, and the woman said “Things have changed, we’re coming to get the stuff now”. Aaron ran up the stairs, briefly followed by the man, and caught up with the police officers, who came back down the stairs.
The police officers asked Aaron and his companions to go around the corner, and then spoke to the woman and man. Aaron didn’t hear any of the conversations between the police officers and the woman and man.
Joseph Hudson
Joseph Hudson, Aaron’s brother, gave evidence. On the night before the incident, he and his friend Mr Folkes had gone out driving with Aaron. His evidence of the group returning home in the early hours, finding the front door open, checking the house and then all going to bed, leaving the glass sliding door open and the screen door shut, was consistent with Aaron’s evidence.
Joseph went to sleep on the couch that was furthest from the sliding door and closest to Aaron’s room. He was awoken at about 7.00 am by voices outside. He saw a man and a woman outside the sliding door. They came inside, the woman holding a bat and the man with an orange pole. The woman was holding the bat in the air, “as if she was willing to use it”. The orange pole was the handle that goes into a trolley jack. The man was holding the pole in the air “as if he’s willing to use it”.
Joseph believed the woman entered the house first. Mr Folkes was still asleep on the couch and Aaron was in his bedroom. Aaron was woken somehow, perhaps by the yelling, and came out. Joseph got up straight away. He did not give either of the couple permission to enter the house. Nor did Aaron. The two people said “about some tools or some stuff that was stolen or something”. The man didn’t really know much about it, Joseph said:
It was more the female was in there to get some stuff that had apparently been stolen from y/yy in – I don’t know whether it was a week ago or a week beforehand or I don’t know. I don’t know anything about the stuff that was supposedly taken.
[The woman wanted] the tools or – yes, there was tools and apparently a computer or something.
The woman went in towards Aaron’s room, and the man directed Joseph towards the front door, with the bar in his hand but without touching him: “as if he was going to hit me if I didn’t”. He believed the man was telling him to shut up and get back in the corner. Meanwhile, the woman was yelling at Aaron. Joseph couldn’t see what was going on in the bedroom, but he could hear. He heard the woman say “Do you know who I am? I’m Rita Baxter”. He did not hear Aaron reply. The woman said she was “looking for tools that had been taken and a computer or something that had been taken”. Joseph tried to wake Mr Folkes but the man told him to shut up. The man was using the bar to make it so Joseph couldn’t move, because he felt that if he was to do anything he’d get hurt. He did not know whether Aaron said anything to the woman when she talked about the tools.
The woman asked Aaron for something that meant something to him, like a photo of their mother, or his phone, wallet or keys. When Aaron and the woman came out of Aaron’s bedroom, the woman said that “they wanted just all the tools, us to find all the tools that have been taken ... within three hours, which was by 10 o’clock”. When the woman left she had Aaron’s wallet and keys, holding them as she walked out the door.
After the woman and man had gone, Joseph woke Mr Folkes and they called the police. Police officers arrived within about 10 minutes. While the police officers were talking to him and Aaron in the car park, Joseph noticed a car come into the car park, the same car that had been in the car park earlier. As the police left to go up the stairs, having asked Joseph and Aaron to come to the police station to make statements, the woman and man got out of the car and Aaron went to get the police back. The woman and man said “there was a change of plan, they wanted the stuff now, basically, the three hours had ended”. The woman had a bat with her, but the man didn’t have anything. Aaron ran up the stairs after the police officers and the man chased him but the woman said “he’s not worth it”. The man came back with the police officers, as did Aaron. The police officers talked to the man and woman and Joseph’s evidence was that “I just recall them being arrested and that was when we got shuffled away”. Without objection, Joseph was given leave to read onto the record an extract from his police statement, to the effect that while the woman and Aaron were in Aaron’s bedroom, the woman said:
Where is the stuff from y/yy, the hammer drill out of the shed, the Mac computer, it’s not worth a dollar? ... I want something that is important to you, a photo of your mother or something, until my stuff is returned. You have three hours to get the hammer drill back. We’ll be back at 10 o’clock.
In cross-examination on behalf of Ms Baxter, Joseph confirmed the woman had said exactly as quoted in relation to the hammer drill and computer, but that there were other tools mentioned too. He agreed that when he called the police he was asked what the incident was over and said:
Oh, I don’t know, something to do with a hammer drill, a stolen hammer drill, that she’s carrying on about, some hammer drill.
Joseph agreed that when the man and woman came to Aaron’s house:
(a) they were looking for stolen items and had the clear view that Aaron had stolen them;
(b) they communicated to Aaron that the property they took was going to be held until the stolen property was returned; and
(c) Aaron had been given three hours to retrieve that property.
Joseph agreed specifically that the woman had conveyed to them the message that (in counsel’s words):
I’m going to hold onto these items that are valuable to you until you give my items back.
Ben Folkes
Mr Folkes was called to give evidence as Benjamin Folkes, and referred to as Ben by other witnesses, but gave his name as Andrew Matthew Folkes. He said that he had been woken up on the morning of the incident by Aaron and Joseph saying the house had been raided, and they had then called the police. Mr Folkes had nothing to tell the police officers who arrived, because he had slept through the incident. After the police officers had left, Mr Folkes saw two people, a man and a woman, get out of a Commodore, and at that point Aaron and Joseph told him that that they were the two people who had previously come into the flat. Mr Folkes said the two people had a bat and a pole, both of which appeared to come from the back seat of the car, but he did not recall who had which item.
When Aaron and the police officers returned to the car park Mr Folkes and his two friends were moved around the corner from where the police officers were talking to the man and woman. Mr Folkes then gave evidence that he could hear the talking but couldn’t hear what was being said, except that he heard what sounded like a female voice “just saying that we invited them in”. Pressed, he said he heard a woman’s voice saying, when asked why they were here:
Oh, we didn’t break in, we were invited in there. They invited us in. We knocked and said hello and then we got invited in.
Later, he saw Aaron’s property laid out on the back of a police car.
In cross-examination, Mr Folkes said he heard part of what was said when his friends called the police. He hadn’t made a statement to police originally because he had been asleep during the incident. He hadn’t made a statement to police about what he overheard in the car park “because you’ve got two other guys there”. Those two, Aaron and Joseph, were standing beside him, Joseph at arm’s length from him, in the driveway. He thought the woman’s accent sounded “New Zealandish”. When pressed, he said he had heard words to the effect of:
we knocked on the door and then the three boys inside the house - like, the boys inside the house had said, hello and then invited us in.
He had not raised this with Aaron or Joseph because he assumed they would have heard, given that they were standing relatively near him.
This evidence was originally objected to by counsel for Ms Baxter, but the objection was later withdrawn after discussion to the effect that the evidence was not tendered as evidence of the truth of what Ms Baxter was overheard to say, and that there would be no similar evidence of Ms Baxter’s comments given by police. It was agreed that the issue was not the admissibility of the evidence as such but its significance and what weight could be given to it. Accordingly, I did not have to rule on the general admissibility of evidence available from an eavesdropper of things said by an accused person to police officers before being cautioned.
Police witnesses
Evidence was also given by two police officers.
Constable Danielle Leach gave evidence of the complaint made by Aaron when she and her partner Constable Bowden arrived at Aaron’s house. The complaint largely reflected the evidence given by Aaron and Joseph. Aaron’s description of the woman who entered his house included that she was carrying a baseball bat with “Easton” written on it. The man was described as “carrying an orange trolley jack”. Aaron had told Constable Leach:
that Rita Baxter had told him she was there to collect an item which had been stolen from a friend of hers. Of which she believed he was the person who had stolen the item, or had received the item.
Aaron said that the stolen item was identified as a drill. Aaron also told Constable Leach that Ms Baxter had taken his wallet and, Constable Leach believed, his phone. Constable Leach said that both brothers, particularly Aaron, were “clearly quite shaken” by the incident.
Constable Leach said that after she and Constable Bowden had been called back to the car park by Aaron, they saw a male and a female in the car park:
the female ... had a silver baseball bat in her left hand and the baseball bat had “Easton” written on the side of it.
And I’m sorry, I missed, how many people did you say were in the car park?
---There was one male and one female.And what was the appearance of the male?---The male ... was standing near the car port.
Did he have anything with him?---Not at the time, no.
And did the female have anything else on her person?---She was wearing a blue bum bag around her waist.
Ms Baxter identified herself to the officers and gave her date of birth. Ms Baxter denied having Aaron’s wallet and keys but, when told she would be searched, she pulled a wallet, a set of keys and an iPhone or iPod speaker out of the bumbag. The items were photographed. Ms Baxter and the man were both arrested and taken to the City Watch House, where Constable Leach seized and exhibited the baseball bat. She and Constable Bowden offered Ms Baxter the opportunity to participate in a record of interview, but Ms Baxter refused to answer any questions after “the first lot of questions, the Part 1C that we proceed through as part of our normal procedure”.
Constable Matthew Bowden, the informant, gave evidence of the complaint made to him by Joseph. What Joseph had said to Constable Bowden was consistent with other evidence about the entry of the two people into Aaron’s house, about a demand for “a drill or some property that had been taken”, about what the woman had done before leaving, and about the return of the two people as the police officers were leaving the scene.
Constable Bowden said that when he got back to the car park he saw Ms Baxter and Mr Brading. Ms Baxter was standing in the car park holding a baseball bat and wearing jeans and a bumbag. He spoke to Ms Baxter, cautioning her and then asking where Aaron’s wallet was. She said she didn’t have it, but then Constable Bowden told her she was going to be searched. She opened her bumbag, pulled out a wallet and what he initially thought was a mobile phone but turned out to be iPod speakers roughly the same size as a mobile phone, and handed them over.
Constable Bowden said that his check of AFP indices showed a report of a burglary from Unit y/yy in Chandler Street in July 2009 in which an LCD TV and a set top box had been stolen. He had also established that, at the time of the offences alleged in this matter, the occupant of Unit y/yy was a Mr Zoran Trosjal.
Other evidence
Three police statements, police photographs of the items produced by Ms Baxter, Ms Baxter’s record of interview, and the transcript of the 000 call made to police by Joseph were also tendered by the prosecutor.
Police statements
The police statements were made by three other police officers who attended the scene of the incident. Sergeant David Tink’s statement described him hearing Constable Bowden cautioning Ms Baxter; asking her about Aaron’s wallet; and threatening a search, whereupon Ms Baxter produced from her bumbag a wallet, a set of keys and an iPod speaker. The wallet was identified by reference to its contents as probably belonging to Aaron. Constable Wilkinson’s statement recorded that he seized the baseball bat, and conveyed Ms Baxter to the Watch House in his caged vehicle. Constable Macklin, who was working as Constable Wilkinson’s partner, recorded observing the seizure of the baseball bat and conveying Ms Baxter to the Watch House in the caged vehicle.
Record of interview
The record of Ms Baxter’s interview showed that it did not progress beyond the cautions, except that Ms Baxter identified the seized baseball bat as hers.
000 call
The transcript of the call to police reflected the evidence given by Aaron and Joseph. In particular, it contained a reference from Joseph to the apparent reason for Ms Baxter’s visit into Aaron’s house as “Something to do with a hammer drill, a stolen hammer drill, that’s all she’s carrying on about, some hammer drill”.
The accused
Neither accused person gave evidence.
Findings
The vagueness of the evidence given by the complainant and his brother may have reflected any or all of the passage of time since the incident (about 9 months), the fact that the incident began with Aaron and his brother being woken from sleep only a couple of hours after they had gone to bed, poor memories for verbal information, or a disinclination to give evidence that might lead to unwanted consequences quite independent of the trial processes. Their vagueness did not give me the impression that they were lying, but it seemed possible that they were not making any particular effort to give very precise or detailed evidence.
Some aspects of the evidence of Aaron and Joseph are supported by other evidence, in particular by the transcript of the 000 call and the police evidence of what was produced by Ms Baxter when police spoke to her outside Aaron’s unit.
I did not disbelieve the evidence given by Aaron and Joseph, but the nature of that evidence limits the specificity of the factual findings I can make.
Nevertheless, I am satisfied of some matters beyond reasonable doubt, and accordingly make the following findings:
(a) that Ms Baxter and Mr Brading entered Aaron’s unit by forcing back the screen door that had been left unlocked but needed some force to be opened;
(b) that, while forcing the door open, they were not making any effort to be quiet (Aaron described being woken by the noise of the door being opened, and Joseph referred to being woken by voices outside, and suggested that Aaron might have been woken by all the yelling);
(c) despite any comments Ms Baxter may have made to police as mentioned at [38] to [42] above, that Ms Baxter and Mr Brading had not been invited into the unit;
(d) that Ms Baxter was carrying a baseball bat and Mr Brading was carrying a trolley jack;
(e) that Ms Baxter’s intention when entering the unit was to take possession of a hammer drill and possibly other items that she believed had been stolen by Aaron;
(f) that Mr Brading was aware of Ms Baxter’s intention as described at (e) above when entering the unit;
(g) that Ms Baxter might have been the owner of the hammer drill or another allegedly stolen item;
(h) that at some point Ms Baxter stopped seeking the immediate return of the hammer drill and other items, and instead demanded that Aaron hand over items that were of value to him, in which context she specifically mentioned a photograph of his mother as well as personal items such as his phone, wallet and keys;
(i) that Ms Baxter removed Aaron’s wallet, keys and a set of iPod speakers from Aaron’s bedside table without his permission;
(j) that Ms Baxter told Aaron she would retain the wallet, keys and speakers until she and Mr Brading returned at 10.00 am, some three hours away, to collect her “stuff”, specifically the hammer drill;
(k) that Aaron understood Ms Baxter to be telling him that he would get his items back if he returned the allegedly stolen items including the hammer drill, but didn’t believe that his items would necessarily be returned;
(l) that, while Ms Baxter was with Aaron in his bedroom and taking possession of Aaron’s property, Mr Brading was in the lounge room effectively constraining Joseph from intervening in Ms Baxter’s actions, by directing him away from Aaron’s room and the front door, backed up with an implicit threat (conveyed by actions rather than words) to use the orange pole against Joseph if he did not comply, and by directing him not to wake Mr Folkes;
(m) that Aaron’s wallet, keys and speakers were removed from Aaron’s unit and were in Ms Baxter’s possession when she was spoken to by police shortly after she returned to the car park (I note the discrepancy between Aaron’s suggestion that Mr Brading might have been carrying the items when he left the unit, and Joseph’s evidence that Ms Baxter was holding them as she walked out the door, but do not see that this matters given that the items were in Ms Baxter’s possession in the unit and were also in her possession outside the unit by the time the police arrived a few minutes later);
(n) that, when Ms Baxter came out of the bedroom, Mr Brading, still with his weapon, continued to offer support to her in the form of an implied threat to Aaron and his brother not to try to obstruct their actions, including by supporting her in leaving the unit with Aaron’s personal items;
(o) that, whether or not Mr Brading heard Ms Baxter asking Aaron in his bedroom for something that meant something to him, by the time Ms Baxter came out of Aaron’s bedroom and proceeded to leave the unit with Aaron’s possessions, Mr Brading was aware that she had the items and also that she proposed to keep them until the hammer drill was returned;
(p) that Ms Baxter and Mr Brading then left Aaron’s unit;
(q) that, despite Ms Baxter saying initially that they would return at 10.00 am, Ms Baxter and Mr Brading returned to Aaron’s flat shortly after 7.30 am, just as police were leaving the scene after speaking to Aaron and the other two men;
(r) that Ms Baxter said to Aaron something along the lines of “things have changed, we’re coming to get the stuff now”;
(s) that police spoke to Ms Baxter, and told her that she would be searched, at which point she produced from her bumbag Aaron’s wallet, keys and iPod speakers.
The issue in this trial is not so much the factual findings as the correct application of the relevant law to those findings.
The applicable law
The key offence in this case is theft; there are two counts involving an actual theft (Counts 5 and 6) and four counts for which an intention to commit theft is a crucial element. It is accordingly useful first to consider the nature of the offence of theft, which is created by s 308 of the Criminal Code. Sections 300, 301, 304 and 306 contain provisions defining or expanding aspects of the concept of theft.
Elements of “theft”
Under s 308 of the Criminal Code, an offence of theft is committed by a person who:
dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
Taking account of the Criminal Code definitions of terms used in that description of theft (at Appendix A), the concept of theft is that a person commits theft if the person appropriates property (that is, assumes the rights of an owner to ownership, possession or control of property (s 304)):
(a) dishonestly according to the standards of ordinary people, and knowing that it is dishonest according to the standards of ordinary people (s 300); and
(b) without the consent of a person to whom the property belongs (s 304), being a person having possession or control of the property, or having any proprietary right or interest in the property (s 301); and
(c) with the intention to permanently deprive the other person of the property, which includes appropriating property belonging to the other person without meaning the other person to permanently lose the property but intending to treat the property as one’s own to dispose of regardless of the other person’s rights (s 306).
Meaning of “belong to”
Under s 301 of the Criminal Code, property “belongs” to a person:
having possession or control of it, or having any proprietary right or interest in it.
The first thing to note is that property may “belong” to several people, and not just where two or more people are the joint owners of the property. For instance, a car may “belong” to a couple who bought it jointly and registered and insured it in both names – but it may also “belong” at a particular point in time to a tow-truck driver taking it to a repairer after an accident, or to the repairer to whom it is delivered.
Secondly, there does not seem to be any reason to interpret the definition of “belong” as extending only to people who lawfully have possession or control of property. There is no express reference to such a limitation in either the words of the Criminal Code or in any of the relevant explanatory material that has been drawn to my attention, although on the other hand the commentary does not address this issue. This may be because the commentary largely originates with the Commonwealth provisions, which deal with theft from the Commonwealth and therefore would presumably not have been prepared in the expectation that the Commonwealth might be in possession of property that it had acquired unlawfully.
The Explanatory Statement for the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 (ACT), which inserted the relevant provisions into the Criminal Code and which draws heavily on the explanatory material for the equivalent provisions of the Commonwealth Criminal Code (in turn based on Chapter 3: Theft, Fraud, Bribery and Related Offences (Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Final Report December 1995)), includes the following passage quoted from the Commonwealth explanatory material:
The basic definition at [subclause 301(1)] provides that property belongs to any person who owns it, or has any other proprietary right or interest in it, or who has possession or control of the property. One effect of the section is that co-owners or people with different rights to a piece of property can be guilty of theft from one another. For example, one owner of property can be guilty of theft from another owner (eg theft by one business partner from another), or an owner can be guilty of theft by taking his or her property away from someone who has possession or control of it (eg an owner who dishonestly took back his or her own goods from a pawnbroker). The owner cannot deny appropriation by relying on his or her own consent to the appropriation. Proposed [subclause 304(1)] and [subclause 305(1)] requires [sic] the consent of all those to whom it belongs. In the example, the owner of the pawn shop has not consented to the appropriation of his or her right to possession ...
Among other things, the effect of this interpretation in this case is that if, for instance, a hammer drill had been in Aaron’s possession (even if he or someone else had stolen it), then according to the definition it “belonged” to him (although it would not “belong” only to him), and even the true owner of the drill could in certain circumstances have committed theft by taking possession of the drill.
Meaning of “intention to permanently deprive”
Section 306 of the Criminal Code extends the ordinary meaning of “intending to permanently deprive a person of property” to include a case in which a person appropriates property belonging to another person without meaning the other person to permanently lose the property, but intends to treat the property as his or her own to dispose of, regardless of the other person’s rights.
Consideration of the charges
Count 1
Elements of aggravated burglary
The elements of aggravated burglary for Count 1 can be set out as follows:
(a) entering Aaron’s house as a trespasser;
(b) intending to commit theft;
(c) having an offensive weapon;
(d) being in company.
Elements (a) and (b) constitute burglary. Either element (c) or element (d) would render the burglary an aggravated one.
I am satisfied that the evidence recited above establishes elements (a), (c) and (d) beyond reasonable doubt in relation to Ms Baxter.
Ms Baxter’s intention
Whether Ms Baxter intended to commit theft is a far more difficult issue, and depends on the meaning given to “theft” as set out at [63] above. I have considered this issue by reference to a series of questions that can be extracted from the relevant legislation and that are set out at [75] below.
The burglary alleged by Count 1 relates to a theft said to have been intended but never effected. The issue is not what happened after Ms Baxter entered Aaron’s unit but what she intended when she entered Aaron’s unit. The theft allegedly intended relates to the items sought by Ms Baxter when she entered Aaron’s unit, being a hammer drill and possibly a shovel, a computer or other items. The questions set out below therefore refer to what Ms Baxter intended in relation to the hammer drill and the other items, and to what the position would have been if any intentions inferred from Ms Baxter’s conduct had been carried out. For convenience I refer only to the hammer drill, since there is no evidence that Ms Baxter’s intentions, or any other circumstances, were any different in relation to any other items mentioned.
The questions are as follows:
Question 1: Did Ms Baxter intend to assume the rights of an owner to ownership, possession or control of the hammer drill (s 304, definition of “appropriation”)?
Question 2: Did the hammer drill belong to anyone other than Ms Baxter (s 301)?
Question 3: Did Ms Baxter intend to assume the rights of an owner to the hammer drill without the consent of any other person to whom the hammer drill belonged (s 304)?
Question 4: Did Ms Baxter intend to permanently deprive any other person to whom the hammer drill belonged of the hammer drill (s 308)?
Question 5: Was Ms Baxter acting dishonestly according to the standards of ordinary people in intending to appropriate the hammer drill (s 300, para (a) of the definition of “dishonest”)?
Question 6: Did Ms Baxter know her actions in intending to appropriate the hammer drill were dishonest according to the standards of ordinary people (s 300, para (b) of the definition of “dishonest”)?
Ms Baxter can be said to have intended the theft of the hammer drill only if all these questions can be answered “yes”.
Q 1: Intention to assume the rights of owner?
I am satisfied beyond reasonable doubt that Ms Baxter intended to take possession of the hammer drill if she found it in Aaron’s unit.
Q 2: Ownership of hammer drill?
Under the definition of “belong to” discussed at [64] to [68] above, if the hammer drill had been in Aaron’s unit, then it would have “belonged” to Aaron (unless it had been in the possession or control of either Joseph or Mr Folkes, in which case it would have “belonged” to Joseph or Mr Folkes as the case required).
Q 3: Intention to assume rights of owner without owner’s consent?
I am satisfied beyond reasonable doubt that Ms Baxter intended, if she found the hammer drill in Aaron’s unit, to assume the right to possession of the hammer drill, and to do so without Aaron’s consent if that consent had been withheld.
Q 4: Intention to permanently deprive?
I am also satisfied beyond reasonable doubt that if Ms Baxter had been able to take possession of the hammer drill, her intention would have been to permanently deprive Aaron of the hammer drill.
Q 5: Dishonesty according to standards of ordinary people?
I note first that under s 308 of the Criminal Code, it is the appropriation of the property (that is, the assumption of ownership rights) that must be dishonest to constitute a theft.
The answer to this question depends on how Ms Baxter’s actions are characterised. If her actions are described as going to a house where she believed her property was being held, and asking for the return of her property, it would be hard to say that she was acting dishonestly according to the standards of ordinary people. However, other aspects of her conduct may permit a finding that ordinary people would have considered the intended appropriation to be dishonest.
Dishonesty
“Dishonest” is not simply a synonym for “unacceptable” or “criminal”. Offences involving dishonesty are a subset of the total set of offences created by law, and can be distinguished, for instance, from offences against the person or offences against public order. The Macquarie Dictionary, (viewed online 10 January 2012 for “dishonest” and 19 April 2012 for “honest”) relevantly defines “dishonest” and “honest” as follows:
Dishonest:
1. not honest; disposed to lie, cheat or steal ...
2. proceeding from or exhibiting lack of honesty; fraudulent.Honest:
1. honourable in principles, intentions, and actions; upright: an honest person.
2. showing uprightness and fairness: honest methods.
3. acquired fairly: honest money.
4. open; sincere: an honest face.
5. ...
6. truthful; creditable; candid.
Most ordinary people have visited another person to ask for the return of their property that had previously come into the possession of the other person, and I cannot see that ordinary people would consider such an action dishonest.
The question is whether, even if Ms Baxter had a legitimate claim to the property, the manner or circumstances of her entry into Aaron’s unit rendered dishonest her intention to recover the property.
The relevant manner and circumstances are, first, that Ms Baxter entered Aaron’s home as a trespasser and at a point when he might well have been expected to be asleep (as in fact he was) and, secondly, that when she did so, she had a weapon with her, and was accompanied by another person also carrying a weapon.
I am satisfied that ordinary people would regard Ms Baxter’s behaviour as unacceptable, but whether they would regard it as dishonest is less clear.
I am not satisfied that, if Ms Baxter’s appropriation of the property would not have been dishonest as such, there is anything in the manner of her entry into the unit that establishes a dishonest intention. Ms Baxter and Mr Brading did not apparently make any attempt to conceal their unauthorised entry into the unit or their presence inside, as shown by the yelling, and the timing of their visit suggests they were hoping to find Aaron at home. Indeed, the evidence of Aaron and Joseph, that when they had come home earlier that morning they had found the front door open, raises the possibility that Ms Baxter had been at the unit earlier and had deliberately returned in the hope of finding Aaron at home.
Ms Baxter’s possession of a weapon, and the presence of a companion also with a weapon, raise other difficult questions. There are many offences, in particular those involving various forms of violence, that could not be described as necessarily involving dishonesty. I am not convinced that conduct that is not as such dishonest can be rendered dishonest (as distinct from generally “criminal”) by being accompanied by the implicit or even explicit threat of violence. I am not satisfied beyond reasonable doubt that Ms Baxter’s intention to recover the hammer drill, even noting her apparent willingness to rely on the presence of her baseball bat to do so, would have been dishonest according to the standards of ordinary people.
The prosecutor referred me to The Commonwealth Criminal Code: A Guide for Practitioners, Ian Leader-Elliott, Commonwealth Attorney-General’s Department, March 2002, which at 211 considers the significance of “claim of right” in the application of the Commonwealth Criminal Code dishonesty offences, and says:
Belief in the existence of a proprietary or possessory right is no answer to an allegation of dishonesty unless that belief is inconsistent with the imputation of fault. It is quite possible for a person to take action in pursuit of a claim of right in circumstances where they know very well that ordinary people would consider their action to be dishonest.
I accept that a claim of right, such as might have been available in the current circumstances depending on the view taken of the evidence, does not make an otherwise dishonest act honest. However, the point here is not whether dishonest actions by Ms Baxter could have been rendered honest by a belief in her entitlement to get back the hammer drill; the point is whether an act not on its face dishonest (demanding the return of one’s own property from someone with no claim to retain it) could be rendered dishonest by an implied threat of violence. For instance, I doubt that a victim of a mugging who uses force to wrestle her stolen handbag from the mugger would be seen by ordinary people as dishonest.
Defining the outer limits of the concept of “dishonesty” is difficult, and it is a question on which “ordinary people” could in my view reasonably differ. The concept has an important role in the definition of various offences, and there are real dangers in blurring the boundaries intended to be created by the use of such specific concepts – as already noted, “dishonesty” is not merely a synonym for “unacceptable” or “criminal”. It is not enough that a court concludes (as I have in this case) that a person has engaged in conduct that ordinary people would find unacceptable. Such a conclusion does not oblige, or enable, the court to give an unnatural or extended meaning to a concept such as “dishonesty” in order to permit a finding that the unacceptable conduct constitutes the offence that happens to have been charged in the particular case. Conduct that is unacceptable not because it is dishonest in the normal sense of the word but because it involves other objectionable elements (for instance, a reliance on threats or implied threats) is the subject of other prohibitions; see, for instance, s 32(2) of the Crimes Act 1900 (ACT), which relevantly prohibits making a demand of another person with a threat to endanger the health, safety or physical wellbeing of a person, and carries a maximum penalty of imprisonment for 10 years.
It seems to me that if Ms Baxter had entered Aaron’s unit while it was empty and removed the hammer drill, that might have been dishonest (and therefore capable of constituting theft) in a way that the open and unapologetic visit to the unit to demand the return of the drill was not (albeit that the visit might have been a trespass and might have involved offences arising out of the implied threats).
Q 6: Actions known to be dishonest?
Even if Ms Baxter’s actions were dishonest according to the standards of ordinary people, there is no basis on which I could be satisfied beyond reasonable doubt that Ms Baxter herself would have known that, and nor am I satisfied that her reliance on a threat of violence permits an inference beyond reasonable doubt of a consciousness of dishonesty on her part. Any consciousness of dishonesty is also to some extent negated by the evidence given by Aaron and Joseph of Ms Baxter’s willingness to identify herself to them when she entered Aaron’s unit. Ms Baxter’s subsequent claim to police to have been invited into the unit (at [40] above), if indeed it was made, may have shown a general awareness that an uninvited entry into the unit might raise suspicions about the subsequent behaviour of herself and Mr Brading. However, given the events that had followed that entry, it is not open to me to attach any such “consciousness of guilt” to Ms Baxter’s intention when she entered the unit as distinct from her knowledge of what she had done after that.
Conclusion – Count 1
Although I am satisfied to the appropriate standard that when Ms Baxter entered Aaron’s unit she intended to take possession of the hammer drill despite it “belonging” to Aaron, to do so without Aaron’s consent if necessary, and to permanently deprive Aaron of the hammer drill, I am not satisfied that what Ms Baxter had in mind when she entered Aaron’s unit was dishonest as defined, or that she would have recognised it as dishonest according to the standards of ordinary people. Therefore I am not satisfied beyond reasonable doubt that the prosecution has established an intention on Ms Baxter’s part to commit a theft when she entered Aaron’s unit. There must be a verdict of not guilty on this first charge of aggravated burglary.
Count 2
There is no evidence before me that is directly relevant to any independent intent on the part of Mr Brading concerning the taking of the hammer drill or associated items. The only basis on which I could have found him guilty of burglary arising from his entry into Aaron’s unit was by inferring that he shared Ms Baxter’s intention to commit theft. Given my conclusion that an intention by Ms Baxter to commit theft when she entered Aaron’s unit has not been established, there is no basis on which I could find that Mr Brading intended to commit a theft when he entered Aaron’s unit. There must also be a verdict of not guilty on this charge of aggravated burglary.
Counts 3 to 6
Counts 5 and 6 allege the theft of Aaron’s wallet, keys and speakers, while Counts 3 and 4 allege an intention to commit that theft as an element of the charges of aggravated burglary constituted by remaining in Aaron’s unit. The actual commission of a theft would in this case permit an inference of an intention to commit the theft, but there is little other evidence of such an intention. It is convenient accordingly to consider whether the taking of those items amounted to a theft as charged in Counts 5 and 6 before considering Counts 3 and 4, which depend on an intention to commit such a theft. In this case, if the actions of Ms Baxter or Mr Brading are found not to constitute theft for the purposes of Counts 5 and 6, then there would be no basis for finding that they had the intention to commit theft that is a necessary element of Counts 3 and 4.
Count 5
Whether Ms Baxter’s actions in removing Aaron’s wallet, keys and speakers amounted to a theft is addressed by the following series of questions, also extracted from the relevant legislation, which are as follows:
Question 1: Did Ms Baxter assume the rights of an owner to ownership, possession or control of the wallet, keys and speakers (s 304, definition of “appropriation”)?
Question 2: Did the wallet, keys and speakers belong to anyone other than Ms Baxter (s 301)?
Question 3: Did Ms Baxter assume the rights of an owner of the wallet, keys and speakers without the consent of any other person to whom those items belonged (s 304)?
Question 4: Did Ms Baxter intend to permanently deprive any other person to whom the wallet, keys and speakers belonged of the wallet, keys and speakers (s 308)?
Question 5: Was Ms Baxter acting dishonestly according to the standards of ordinary people in appropriating the wallet, keys and speakers (s 300, para (a) of the definition of “dishonest”)?
Question 6: Did Ms Baxter know her actions in appropriating the wallet, keys and speakers, were dishonest according to the standards of ordinary people (s 300, para (b) of the definition of “dishonest”)?
Ms Baxter can be said to have committed the theft of the wallet, keys and speakers only if all these questions can be answered “yes”.
Q 1: Assumption of rights of owner?
The evidence is clear that Ms Baxter took possession of all these items.
Q 2: Ownership of wallet, keys and speakers?
It is not disputed that all these items belonged to Aaron.
Q 3: Assumption of rights of owner without owner’s consent?
Although it was suggested in cross-examination of Aaron that there had been some kind of “deal” under which Ms Baxter was permitted to keep the items while Aaron recovered the missing hammer drill for her, this was denied by Aaron, and there was no evidence supporting the suggestion. I am satisfied beyond reasonable doubt that Aaron did not consent to Ms Baxter taking possession of his personal items.
Q 4: Intention to permanently deprive?
I note first that there is no reason to believe that Ms Baxter had any wish to retain Aaron’s personal items, and the conclusion that she did not seems to be borne out by her request for items that were of value to Aaron, but presumably not to Ms Baxter, such as a picture of Aaron’s mother. However, this is not the end of the matter.
The case of Sharp v McCormick [1986] VR 869 was drawn to my attention. I note first that Sharp v McCormick pre-dates the Criminal Code, but it relates to s 73(12) of the Crimes Act 1958 (Vic), which was in relevantly similar terms to s 306(1) of the Criminal Code, as follows:
A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights.
That case was somewhat different from this case, in that the accused’s admitted intention was to keep the stolen item if it proved useful to him but otherwise to return it to his employer, whereas in this case there was no suggestion that Ms Baxter saw any ongoing benefit in retaining Aaron’s personal items for herself as distinct from using them as leverage to recover certain other items. However, in Sharp v McCormick, all members of the Victorian Full Court found, in effect, that the accused’s claim of an intention to return the item if it was no use to him did not negate his primary intention to treat the item as his own to dispose of, without regard to the rights of the true owner (at 872-3 (Murray J), 873 (Brooking J) and 875 (Nathan J)).
Brooking J said:
He dishonestly appropriated the coil—this is indisputable and indeed conceded—saying to himself, “If it fits, I will keep it; otherwise I will give it back.” That is as clear a case as one could imagine of intention to treat the thing as his own to dispose of regardless of the owner’s rights. How does it differ in principle from an intention to keep the car part if it fits, and otherwise to throw it away, or destroy it, or give it to a friend, or endeavour to sell it; or a bare intention to keep the part if it fits, with no decision as to its fate if it does not? In all these cases the person appropriating intends to behave as if he were the owner. The fact that in the case now under consideration the intention is to return the coil to the employer if it does not fit does not mean that the taker is having regard to the employer’s rights. If the coil is in fact returned to its owner, this will be, not because the taker recognizes that the rights of the owner put him under a duty to return it, but because the taker has decided that if it suits him to do so, in other words if the coil is of the wrong kind for his car, he will take it back.
In the current case, even allowing for the possibility that Ms Baxter intended to return the items to Aaron if her possession of them produced the desired effect (ie the production of the hammer drill), the evidence before me shows a clear intention by Ms Baxter to treat Aaron’s property as her own to dispose of, regardless of Aaron’s rights. The relevant evidence includes in particular the facts that:
(a) when taking the items, Ms Baxter told Aaron “No, they’re mine now”;
(b) Ms Baxter reneged almost immediately on her initial undertaking to give Aaron about three hours to recover the hammer drill and other items so that he could get his property back; and
(c) Ms Baxter’s undertaking to return Aaron’s property was conditional on Aaron doing something (giving her the hammer drill) that he might have been quite unable to do, especially if he had not in fact stolen the drill but quite possibly even if he had (for instance, if it had been on-sold).
Accordingly, in reliance of Sharp v McCormick, I am satisfied beyond reasonable doubt that Ms Baxter intended to permanently deprive Aaron of his personal items within the meaning of s 306 of the Criminal Code.
Q 5: Dishonesty according to standards of ordinary people?
While ordinary people might not regard it as dishonest for a person to ask for the return of his or her property, I am satisfied that they would regard it as dishonest for a person to take an item belonging to another person believed to have the property, without that other person’s consent, as some kind of security for the return of that property, especially if the person’s intention in doing so was to disregard the rights of the other person.
Q 6: Actions known to be dishonest?
I am also satisfied beyond reasonable doubt that Ms Baxter knew that she would be considered to have acted dishonestly in appropriating the personal items; among other things, this is consistent with her initial denial to police that she had the items.
Conclusion as to Count 5
Thus, I am satisfied beyond reasonable doubt that Ms Baxter’s taking of Aaron’s wallet, keys and speakers constituted the offence of theft, and there will be a verdict of guilty of the theft alleged in Count 5.
Count 6
Count 6 is that Mr Brading aided and abetted Ms Baxter to commit the theft the subject of Count 5. Section 45 of the Criminal Code (at Appendix A) relates to aiding and abetting. Relevantly, a person aids or abets the commission of an offence if:
(a) the person’s conduct in fact aids and abets the commission of the offence by the other person (s 45(2)(a)); and
(b) when carrying out the conduct, either the person intends the conduct to aid and abet any offence of the type committed, or the person intends the conduct to aid and abet the commission of an offence by the other person and is reckless about the commission of the offence in fact committed by the other person (s 45(2)(b)).
A person is reckless about the commission of the offence if, relevantly, the person “is aware of a substantial risk” that the offence would be committed and, having regard to the circumstances known to the person, “it is unjustifiable” (a question of fact) for the person to take that risk (s 20, Criminal Code). The requirement of recklessness is also satisfied by proof of intention or knowledge (s 20(4)).
As well, a person can only be found to have aided and abetted an offence if the other person actually commits the offence (s 45(3)).
On the basis of my findings at [59](l) to (p) above:
(a) I am satisfied that Mr Brading’s actions as described above in fact aided and abetted Ms Baxter to commit the theft that I found at [111] above to have been committed; and
(b) I am further satisfied that Mr Brading became aware of that theft, and of the particular nature of that theft, at the latest while it was being committed, and intended to aid and abet the theft being completed by supporting Ms Baxter in leaving the unit with the items.
There will be a verdict of guilty of the offence charged in Count 6.
Count 3
The elements of aggravated burglary by Ms Baxter under Count 3 can be set out as follows:
(a) remaining in Aaron’s house as a trespasser;
(b) intending to commit theft;
(c) having an offensive weapon;
(d) being in company.
Elements (a) and (b) constitute burglary. Either element (c) or (d) would aggravate the burglary.
I am satisfied that the evidence recited above establishes elements (a), (c) and (d) beyond reasonable doubt in relation to Ms Baxter.
As noted at [97] above, the intended theft to which element (b) of this count relates is the theft of Aaron’s own property as some kind of security for the return of the missing hammer drill and other items. Having found that Ms Baxter committed theft of Aaron’s wallet, keys and speakers, I am satisfied beyond reasonable doubt that, at some time after entering Aaron’s unit, Ms Baxter formed an intention, or retained such an intention (if she had in fact formed it before entering the unit), to commit that theft. There will be a verdict of guilty of aggravated burglary on Count 3.
Count 4
I have found Mr Brading guilty of aiding and abetting the theft charged in Count 5.
Whether he aided and abetted the aggravated burglary alleged in Count 3 is a more difficult question. My finding that Mr Brading aided and abetted the theft is based on being satisfied, beyond reasonable doubt, that Mr Brading’s actions gave support to Ms Baxter in completing the theft by leaving Aaron’s unit with his property and that Mr Brading had the necessary intention to aid and abet that theft. I am not satisfied beyond reasonable doubt, however, that Mr Brading was aware of Ms Baxter’s intentions before she came out of Aaron’s bedroom with his property and said, as she and Mr Brading left, that the property would be returned when the hammer drill was produced.
There is probably an argument to be made that a burglary constituted by remaining in premises with intent to commit theft can be committed even if the intention to commit theft is formed only as the theft is committed, and that argument may be correct. However, in this case I am not satisfied beyond reasonable doubt that, before he became aware of the theft, Mr Brading was sufficiently aware of the intended or actual commission of the burglary that was constituted by Ms Baxter’s act of remaining in Aaron’s unit with intent to commit the theft of Aaron’s property to have intended to aid and abet that burglary. Nor is there evidence that could satisfy me that Mr Brading was aware at an appropriate point of a more general intention on Ms Baxter’s part to commit an offence of theft, such that he could be said to have intended to aid and abet a burglary constituted by remaining in the unit with intent to commit a theft.
There will be a verdict of not guilty of aiding and abetting aggravated burglary as charged in Count 4.
I note also, although I have not had to determine its impact, a serious inelegancy in the drafting of Count 4:
Count 4: And further that on the 18th day of February 2010 at Canberra in the Australian Capital Territory JEFFREY ROBERT BRADING aided and abetted Rita Baxter to remain in a building, namely x/xx Chandler Street, Belconnen, as a trespasser, with intent to commit theft of any property therein and at the time of doing so had an offensive weapon, namely a baseball bat and was in the company of JEFFREY ROBERT BRADING. (emphasis added)
Mr Brading is the subject of the sentence setting out the charge. He is charged with aiding and abetting “Rita Baxter to remain in a building ... as a trespasser, with intent to commit theft of any property therein”. However, the structure of the sentence means that the following clause, “and at the time of doing so had an offensive weapon, namely a baseball bat and was in the company of Mr Brading”, applies not to Ms Baxter but to Mr Brading himself (who remains the subject of the sentence). There is no evidence that Mr Brading had a baseball bat, and nor could he be said to have been in his own company (at least not for the purpose of identifying an aggravation of the offence).
Conclusions
It may be useful to summarise the interpretation of the evidence that has produced the verdicts that I shall enter. It is open on the evidence that when Ms Baxter and Mr Brading entered Aaron’s unit, Ms Baxter planned only to recover property that might have been owned by her, and Mr Brading intended to help her do so. I am satisfied beyond reasonable doubt that when it became apparent that the property was not to be found, Ms Baxter conceived or implemented a second plan, being to take some of Aaron’s property as security for the return of her goods, a plan which she recognised as dishonest. I am further satisfied beyond reasonable doubt that Mr Brading became aware of this plan no later than as it was being executed, and supported Ms Baxter in the execution of the plan. However, I cannot be satisfied that he knew of that plan, or any other plan to commit a theft or similar offence, at any earlier point before or during Ms Baxter’s presence in Aaron’s unit.
Verdicts
I enter the following verdicts:
(a) on Count 1 – Ms Baxter is not guilty;
(b) on Count 2 – Mr Brading is not guilty;
(c) on Count 3 – Ms Baxter is guilty;
(d) on Count 4 – Mr Brading is not guilty;
(e) on Count 5 – Ms Baxter is guilty;
(f) on Count 6 – Mr Brading is guilty.
I certify that the preceding one hundred and twenty eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Rik Sutherland
Date: 30 May 2012
Counsel for the Crown: Ms K Weston-Scheuber
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant Rita Baxter: Mr T Sharman
Counsel for the defendant Jeffrey Brading: Mr J Sabharwal
Solicitor for the defendant: Legal Aid Office (ACT)
Date of hearing: 25, 26 November 2010
Date of judgment: 30 May 2012
Appendix A – Criminal Code 2002 (ACT)
[Legislation as in force 18 February 2010]
Complicity and common purpose
(1)A person is taken to have committed an offence if the person aids, abets, counsels or procures the commission of the offence by someone else.
(2)However, the person commits the offence because of this section only if—
(a)the person’s conduct in fact aids, abets, counsels or procures the commission of the offence by the other person; and
(b)when carrying out the conduct, the person either—
(i) intends the conduct to aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person; or
(ii)intends the conduct to aid, abet, counsel or procure the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.
(3)To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.
(4)Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of the offence.
(5)A person must not be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person—
(a)ended his or her involvement; and
(b)took all reasonable steps to prevent the commission of the offence.
(6)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.
(7)To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
(8)If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.
Definitions—ch 3
In this chapter:
belongs, in relation to property—see section 301.
...
dishonest means—
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
Note 1The following provisions affect the meaning of dishonest:
·s 303 (Dishonesty for pt 3.2)
·s 327 (Dishonesty for div 3.3.2)
·s 354 (Dishonesty for pt 3.7).
Note 2In a prosecution, dishonesty is a matter for the trier of fact (see s 302).
...
Person to whom property belongs for ch 3
(1)Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).
...
NoteSection 305 (Person to whom property belongs for pt 3.2) affects the meaning of belongs.
Appropriation of property for pt 3.2
(1)Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.
...
Person to whom property belongs for pt 3.2
(1)If property belongs to 2 or more people, a reference to the person to whom the property belongs is taken to be a reference to each of them.
...
Intention of permanently depriving for pt 3.2
(1)A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if—
(a)A appropriates property belonging to B without meaning B to permanently lose the property; and
(b)A intends to treat the property as A’s own to dispose of regardless of B’s rights.
...
(4)This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.
Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
NoteFor alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.
Burglary
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a)to commit theft of any property in the building; or
(b)to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
(c)to commit an offence in the building that—
(i) involves causing damage to property; and
(ii) is punishable by imprisonment for 5 years or longer.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
(2)In subsection (1) (b) and (c), offence includes an offence against a Commonwealth law.
(3)Absolute liability applies to subsection (1) (c) (ii).
(4)For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—
(a)for a purpose that is not the person’s intended purpose; or
(b)because of fraud, misrepresentation or someone else’s mistake.
(5)In this section:
building includes the following:
(a)a part of any building;
(b)a mobile home or caravan;
(c)a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.
Aggravated burglary
A person commits an offence (aggravated burglary) if the person—
(a)commits burglary in company with 1 or more people; or
(b)commits burglary and, at the time of the burglary, has an offensive weapon with him or her.
Maximum penalty: 2 000 penalty units, imprisonment for 20 years or both.
Appendix B – General directions for judge-alone trial
The general directions that I gave myself for the purposes of the trial of Ms Baxter and Mr Brading are set out below.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that an accused does not have to give or call any evidence and does not have to establish his or her innocence. He or she is entitled to be presumed innocent of any charge until his or her guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that an accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If an accused offers or suggests an explanation which is consistent with his or her innocence, he or she is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
Each charge requires separate consideration, and I need to reach a separate verdict on each charge separately.
There is no need for all the verdicts to be the same. It would (with certain qualifications dealt with explicitly in the judgment) be wrong to say that simply because one of the accused is found guilty or not guilty on one count, he or she must be guilty, or not guilty, as the case may be, on another count, or that the other accused must be guilty of any or all of the offences charged against him or her. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that this accused is guilty of this offence?” If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I must find the accused not guilty of that offence.
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