R v Bini (No. 2) No. DCCRM-01-394

R v PETER BINI (No 2)
[2003] SADC 88
Judge Muecke
Criminal

The accused is charged with armed robbery. The particulars of that offence are that he, on 20 February 2001 at Munno Para, being armed with an offensive weapon, namely a firearm, robbed Felicity Jane Mellor of money in the amount of about $502.00.
The matter was ultimately listed for trial to commence on 3 October 2001. On that day the accused pleaded not guilty. I was informed that he raised a defence of mental incompetence pursuant to Division 2 (Mental Competence to Commit Offences) of Part 8A (Mental Impairment) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The accused elected for trial by judge alone.
I separated the question of the accused’s mental competence to commit the offence from the remainder of the trial. I decided to proceed first with the trial of the objective elements of the offence. After receiving and hearing evidence I indicated on 5 October 2001 that I was satisfied that the objective elements of the offence of armed robbery against the accused were established beyond reasonable doubt. I excluded from consideration on that question any question as to whether the accused’s conduct was defensible. I recorded a finding that the objective elements of the offence are established.
I then proceeded in accordance with s.269GB of the Act. I heard relevant evidence and representations by the prosecution and the defence on the question of the accused’s mental competence to commit the offence. That investigation commenced on 4 November 2002. Counsel for the accused and the DPP agreed that in that investigation I should have before me the evidence that was before me when I considered whether the objective elements of the offence were established. That investigation concluded on 6 February 2003.
At the conclusion of the trial of the accused’s mental competence I had to decide whether it had been established, on the balance of probabilities, that the accused was at the time of the alleged offence mentally incompetent to commit the offence.
On 1 April 2003 I published reasons for deciding that it had not been established, on the balance of probabilities, that the accused was at the time of the alleged armed robbery mentally incompetent to commit it ([2003] SADC 35). I recorded a finding that the presumption of mental competence had not been displaced. I indicated that I would proceed with the trial in the normal way (s269GB(3)(b) of the Act).
I did so on 27 May 2003. On that day neither counsel for the DPP nor for the accused sought to or did put further evidence before me.
I have already referred to the fact that on 5 October 2001 I recorded a finding that the objective elements of the offence the accused is alleged to have committed on 20 February 2001 are established. An “objective element” of an offence means an element of an offence that is not a subjective element. A “subjective element” of an offence means voluntariness, intention, knowledge or some other mental state that is an element of the offence (s.269A(1) of the Act).
On 27 May 2003 counsel for the DPP submitted that proceeding with the trial in the normal way involved a consideration by me of the subjective elements of the offence alleged against the accused, or in other words the mental elements or the requisite mens rea of the offence. He submitted that as to these the onus reverts to the prosecution. He submitted that it is incumbent on the prosecution to satisfy me that the two subjective or mental elements of the offence can be inferred beyond reasonable doubt, in the sense that proof of these elements are the only reasonable and rational conclusions that are open on the evidence I had heard.
Counsel for the accused did not suggest that proceeding with the trial “in the normal way” involved something other than that which was submitted by counsel for the DPP.
I proceeded on that basis and I heard submissions from both counsel. Both counsel referred to and relied on evidence I had previously heard in the earlier investigations or trials that had been conducted before me. They both referred in particular to the evidence that I heard during the trial of the accused’s mental competence to commit the offence. I neither heard nor received any further evidence.
Counsel for the DPP submitted that there are two subjective elements of the offence the accused is alleged to have committed. First, an intention by him to use the firearm to facilitate the asportation of the money from the BP Service Station at Munno Para. Secondly, a co-existing intention to appropriate the money to himself for his own purposes. Counsel for the accused made no submissions as to whether or not the accused had an intention to use the firearm to facilitate the asportation of the money. He did submit, however, that I should not be satisfied beyond reasonable doubt of the second of the subjective elements referred to by counsel for the DPP. Furthermore, he submitted that the proper test was a narrower one than that submitted by counsel for the DPP. He submitted that I must be satisfied beyond reasonable doubt that at the time of taking the money the accused intended to deprive the owner of it permanently. He submitted that that was a stricter test than one requiring me to be satisfied beyond reasonable doubt that the accused had an intention at the time of taking the money to appropriate it to himself for his own purposes.
In support of his submission counsel for the DPP referred to Foster v The Queen (1967) 118 CLR 117. In that case Barwick CJ said (at p. 121):
Larceny under the Crimes Ordinance 1951 (A.C.T.) as under the Crimes Act, 1900 (N.S.W.) being undefined, is as under the common law. It involved an intention on the part of the applicant to assume ownership of the gun, to deprive Baker permanently of it, to deprive him of the property in it. I use these three expressions, which are several ways of establishing the same essential element of larceny, namely, the intention to appropriate the goods to himself. To intend to deprive the true owner permanently of the possession of the goods is one form of the requisite intention. An intention to deprive him of his property in the goods is another, that is, an intention to appropriate the goods as distinct from merely to assume possession of them. Section 118 of the Ordinance does not deny the necessity for an intention in one of these forms to accompany the taking. It deals with the case of an accused who has appropriated the property and not of an accused who has only assumed possession of it. It merely ensures that the consequence of forming or having that intention is not defeated by an intention eventually to restore the property to the true owner. Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous.
Counsel for the DPP also relied on authorities referred to at pages 43-46 of Weinberg and Williams, The Australian Law of Theft, 1977, 1st edition.
Counsel for the accused submitted that neither Foster’s case nor the authorities referred to in the text are authority for widening the intention in larceny beyond an intention at the time of the taking of some property to deprive the owner of it permanently. He submitted that an intention to deprive the true owner of the possession of property permanently is the test I must apply in this case.
I shall proceed on the basis that I must be satisfied beyond reasonable doubt that the accused intended at the time of taking the money to deprive the owner of it permanently. I do not consider that Foster’s case in some way widens this element or ingredient of the offence of larceny. In the passage cited above Barwick CJ indicated that different expressions were used for the same essential element of larceny.
I now set out certain findings which are supplementary to those facts and circumstances to which I referred in my conclusions to my reasons of 1 April 2003.
1.I am satisfied that at about 4.00 pm on 20 February 2003 the accused stopped his ute in front of a petrol pump at the BP Service Station just before he entered the service station. He filled his vehicle with $49 worth of Super Green. The day was hot and the accused was wearing a dark coloured woollen beanie on his head whilst he filled up his vehicle with petrol. He got into his car and drove right up to the front of the BP Service Station in front of the door. His ute was blocking the door. He pulled the beanie down over his head and entered the service station waving his rifle which was in his right hand. He pointed the rifle directly at the console operator and said “give me the money, everything, everything”. She opened the till and handed the whole of the till to the accused. The accused took it, turned around and walked quickly out of the service station. He drove off extremely fast in his ute heading in a southerly direction down Main North Road.
2.I am satisfied beyond reasonable doubt that at some time between 4.00 pm and 4.30 pm on 20 February 2001 the accused emptied all the money from the till he had taken from the service station into his pockets. He put the majority of the money into his wallet which he put into his pocket. I am satisfied beyond reasonable doubt that at least $500 in cash that was found in the accused’s wallet and pockets was the contents of the till he had taken from the service station. I am so satisfied because I am satisfied that the till was empty when found in his ute and that the accused had very little money left when he left the hotel at Tanunda to start his drive south towards Adelaide. The purpose of his call to ’Lynne Russell was to obtain money to continue drinking.
3.I am satisfied that police followed the accused as he drove his ute north towards Tanunda. Police dropped back to a safer distance from the rear of the vehicle when they realised it was the vehicle that was wanted in relation to the hold-up at the service station. They noticed that the vehicle was blowing a large amount of smoke from its exhaust. As they followed the vehicle the smoke became thicker. They did not attempt to stop the vehicle as it proceeded north at a speed of about 80 kpm. At about 4.45 pm the accused’s ute stopped at a stop sign at the intersection of First and Seventh Streets, Gawler South. It was facing north. A large cloud of smoke came from under it. The accused remained seated in the vehicle for a short time. He then opened the driver’s door and alighted from the vehicle. He stood alongside the open doorway of his vehicle facing the two police constables as they alighted from the vehicle in which they had been following him. The police officers had their revolvers drawn pointed in his direction. One of the police officers yelled at him to put his hands up. The accused stood there looking at the two constables not moving. He then leaned back into his vehicle across the front seat before standing back up again holding the rifle he had used at the service station. He was holding it in his left hand. The accused held the rifle so that it was pointing forward at an angle of 45 degrees to the ground. He turned and walked away from the police vehicle in a northerly direction. Constable Conway spoke to the accused. I am satisfied that what then happened was as described by Constable Conway (see paras. 188-194 of my reasons for judgment dated 1 April 2003).
4.I am satisfied that when the accused went into the service station at about 4.00 pm on 20 February 2001 he had not formulated a plan to commit an armed robbery to provoke a confrontation with police and get shot. I am satisfied that he had then formulated a plan to commit an armed robbery and that that was partly as a result of stress of the type which is consistent with his borderline personality disorder as diagnosed by all medical witnesses who gave evidence before me on the trial of the accused’s mental competence. I am satisfied that the accused thought in terms of doing an armed robbery to relieve his stress and to relieve stress on those close to him.
5.I am satisfied that it was only when his ute could go no further that he stopped. It was only then that he thought of confronting and did confront police by using the rifle which he took from his ute after he had alighted from it and stood motionless by his vehicle looking at police as they alighted from their vehicle with revolvers drawn yelling at him to put his hands up.
6.I am satisfied beyond reasonable doubt that the accused was not intending to drive back to the BP Service Station when he saw police following him as he travelled north towards Tanunda. I am satisfied that had his vehicle not broken down and stopped he would have continued driving to avoid apprehension by the police. I am satisfied beyond reasonable doubt that when he took the money from the service station he intended to keep it for himself. I do not consider that it is a reasonable possibility that he intended to return it to the owner. His evidence was not to that effect.
On the basis of these findings and the facts and circumstances referred to in my conclusions to my reasons of 1 April 2003 (paras 301-358) I am satisfied beyond reasonable doubt that when the accused demanded and took money from the console operator of the BP Service Station at Munno Para and when he shortly thereafter transferred that money into his wallet and pockets he intended to deprive the owner of that money permanently.
I am satisfied beyond reasonable doubt that at the time that he took the money from the BP Service Station the accused had an intention to assume ownership of the money, to deprive the owner of the money permanently of it, and to deprive the owner of the money of property in it. I am satisfied beyond reasonable doubt that the accused had an intention to appropriate the money to himself. I am satisfied beyond reasonable doubt that the accused had no intention later to restore the money or any of it to its owner.
I do not consider that there is a reasonable possibility that the accused had no intention to deprive the owner of the money permanently.
Accordingly, I am satisfied beyond reasonable doubt that at the time that the accused took the money from the BP Service Station on the afternoon of 20 February 2001 he had an intention to use the rifle to facilitate the taking of the money by him from the scene, and an intention to permanently deprive the owner of it.
Accordingly, I am satisfied beyond reasonable doubt that, at the time of the events at the service station on 20 February 2001, the accused possessed the necessary subjective elements to commit an armed robbery.

[2003] SADC 88

18 June 2003