R v Chifuntwe (No 2)
[2017] ACTSC 134
•15 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chifuntwe (No 2) |
Citation: | [2017] ACTSC 134 |
Hearing Dates: | 13 June 2017 – 14 June 2017 |
DecisionDate: | 15 June 2017 |
Before: | Elkaim J |
Decision: | See paragraph [98] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – aggravated robbery – act endangering life – fail to stop for police – identification – circumstantial evidence. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 27(3)(c) and s 27(4)(b) Criminal Code 2002 (ACT) s 310 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | R v Hillier [2007] HCA 13; 228 CLR 618 |
Parties: | The Queen (Crown) Kalonga Chifuntwe (Accused) |
Representation: | Counsel Ms S McFarland (Crown) Mr R Davies (Accused) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016 |
ELKAIM J:
The accused pleaded not guilty to two counts on an indictment filed on 1 December 2016.
The first count alleges that, on 16 May 2016, at Canberra in the Australian Capital Territory, the accused committed robbery in company with an unknown person.
The second count alleges that, on 18 May 2016, also in Canberra, the accused used an offensive weapon likely to endanger human life or cause grievous bodily harm to Senior Constable Matthew Carpenter, intending to prevent or hinder his lawful apprehension.
There is also a ‘backup charge’ of failing to stop a motor vehicle for police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). This charge is essentially relied upon as an alternative to the second count.
In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.
The first count is an offence under s 310 of the Criminal Code 2002 (ACT). The second count is an offence under ss 27(3)(c) and 27(4)(b) of the Crimes Act 1900 (ACT).
In respect of the first count, it is alleged that, on 16 May 2016, the accused and an unknown person awoke a man sleeping in a Mercedes-Benz. They threatened this man and drove away in his motor vehicle.
In respect of the second count, it is alleged that, on 18 May 2016, Senior Constable Carpenter tried to stop the Mercedes-Benz, which was being driven by the accused. The accused did not stop and drove directly towards the officer. The officer moved out of the way of the vehicle, which left the scene at speed.
Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The legal elements of the charge of robbery are:
(a)The accused appropriated something;
(b)The accused intended to appropriate something;
(c)The something that was appropriated was property;
(d)The accused was reckless as to the fact that what was appropriated was property;
(e)The property belonged to another person;
(f)The accused was reckless as to the fact that the property belonged to another person;
(g)The appropriation was dishonest according to the standards of ordinary people;
(h)The accused knew that the appropriation was dishonest according to the standards of ordinary people;
(i)At the time the accused appropriated the property he intended to permanently deprive the person to whom the property belonged of the property;
(j)When committing the theft, or immediately before committing the theft, or immediately after committing the theft, the accused used force on someone else or threatened to use force on someone else;
(k)The accused intended to commit theft when using force or threatening to use force; and
(l)The accused was in company at the time of committing the robbery.
Ultimately, the only fact in dispute was whether or not the accused was one of the two robbers involved in the incident. I would add that, notwithstanding the concessions, I would in any event have been satisfied beyond reasonable doubt that the matters not in dispute had been proved.
The legal elements of the second count are:
(a)The accused used an offensive weapon;
(b)The accused used the offensive weapon against another person;
(c)The accused intended to use the offensive weapon against another person;
(d)The offensive weapon was likely to endanger human life or cause grievous bodily harm;
(e)The accused acted in a way that was unlawful;
(f)The accused knew he was acting in a way that was unlawful; and
(g)The accused carried out the above elements of the offence intending to prevent or hinder his lawful apprehension.
For present purposes, the essential element of the s 5C charge was whether a police officer had requested the accused to stop his vehicle. This necessarily involved an appreciation by the accused that it was a police officer that had attempted to stop him.
The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. In this particular matter I must put out of my mind the plea of guilty entered to a separate charge.
The identification evidence relied upon by the Crown must be approached with caution. I remind myself that innocent people have been convicted on the basis of mistaken identification and it is necessary to give close attention to the factors constituting the identification evidence.
In this case, the identity of the accused is fundamental to the Crown case. It is not an identification case in the usual sense, involving a person identifying the accused as being the person responsible for the robbery. Rather, the identification of the accused depended upon a number of pieces of circumstantial evidence to establish, beyond reasonable doubt, whether or not he was one of the robbers.
This raises the importance of reminding myself of the steps that are involved in coming to a decision on a circumstantial case.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality.
In a circumstantial case, no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, I must reason in a staged approach.
The Crown asks me, first, to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused.
I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find, based upon the basic facts, is that the accused was a participant in the robbery.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown, considered as a whole. It will also depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that I approach the circumstantial case by considering and weighing, as a whole, all of the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.
If I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied of the accused’s guilt beyond reasonable doubt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
In reaching my conclusions about the circumstantial case, I have taken considerable guidance from the decision of the High Court in R v Hillier [2007] HCA 13; 228 CLR 618, in particular paragraphs [46], [47] and [48].
I note at this stage that, in a judgment given on 15 May 2017, I granted leave to the Crown to lead evidence arising from the facts of an offence to which the accused pleaded guilty in the ACT Magistrates Court on 4 October 2016. That offence was that the accused dishonestly drove a motor vehicle, specifically a silver Mercedes-Benz, belonging to another person.
For present purposes, the importance of my earlier judgment is that I cannot, without more, reach a conclusion that, because a man of African appearance was involved in the robbery, it was necessarily the same African man that pleaded guilty on 4 October 2016 in the Magistrates Court.
It is also necessary to remind myself about the appropriate manner of drawing inferences.
I can only draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
I need to be extremely careful about drawing inferences. I must examine any possible inference to ensure that it is a justifiable inference and not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
In this case, the first witness, Mr Ntithanbayo, gave evidence by way of Audio Visual link. I do not draw any inference against the accused because the evidence was given in this manner. I do not give the Audio Visual evidence any greater or lesser weight just because it was given in that way.
Mr Ntithanbayo was asleep in the rear seat of his 2015 silver Mercedes-Benz C200 sedan at about 3.00 am to 4.00 am on 16 May 2016. His motor vehicle was parked in the car park visible in Exhibit B. He was facing the lake.
Mr Ntithanbayo heard people walking around his vehicle and a bang on a side window. The windows on the driver’s side were smashed. He was very scared. He noticed that there were two assailants, one of whom was a man of African appearance. He observed that the man was darker in skin colour than himself. This basic observation accords with a comparison between the skin colour of the witness and of the accused. The assailants were shouting: “police police”. One of them said: “shall I shoot him?”
Mr Ntithanbayo called out to the African man: “brother what’s the problem?” He noticed that this man was wearing a white hat, which he later described as being like a polo hat with a peak. He thought that the African man may have had some facial hair.
Mr Ntithanbayo opened the car door and started to run. He noticed another car with its lights shining towards his vehicle. As he was leaving, one of the assailants shouted out: “where is the key?” He replied: “in the car”. The assailants drove off in the vehicle.
In his haste to leave the scene, Mr Ntithanbayo left behind a number of his possessions, including his wallet, personal belongings and the items he marked with an ‘x’ in Exhibit G. With the exception of page three, the items seen on pages 1 to 15 of Exhibit G were later shown by the evidence to have been inside a ‘bum bag’ worn by the accused when he was apprehended on 18 May 2016.
Under cross-examination, Mr Ntithanbayo said that he did not recognise the African man. However, he thought he was similar in appearance to an African-American man he had seen some three days earlier. He said that there was no hat in the car before the robbery. He agreed that he had looked at photographs of African men at the request of the police and that he had not been able to identify the accused.
There was little challenge to Mr Ntithanbayo’s evidence and I accept him entirely. The next witness was somewhat less satisfactory. This was Mr Jayden Gardner, who needed substantial assistance to recollect the relevant facts. This is perhaps not surprising, given that Mr Gardner said that in May 2016 he was a user of drugs and he was “high” on the night in question. He is now in rehabilitation. He was plainly a reluctant witness but, nevertheless, with the prompting of both counsel, provided a version of events.
Mr Gardner’s involvement commenced on 18 May 2016, when he was picked up at Bonython in South Canberra. I should note here that there is no dispute that Mr Gardner was picked up by the accused and that the accused was driving the Mercedes-Benz that had been taken from Mr Ntithanbayo two days earlier.
Mr Gardner said that, after obtaining petrol at a service station at Lanyon Marketplace, he and the accused drove to Charnwood Shops. He said that they parked in front of a club, which I assume to be the Canberra Labor Club, which can be seen in Exhibit D. He said that he first became aware of the presence of police when he heard a tapping on a door window. He did not know where the police had come from.
He said that the police officer was not in uniform. He could not recall the manner in which the vehicle was parked. However, after the arrival of the police, he said that the accused drove off. There was no impediment in the way of the vehicle preventing it from leaving the car park.
A little later, the vehicle was pulled over by the police. Mr Gardner, having sprayed a police officer with fire retardant, left the scene, omitting to take his wallet with him. As a result of this omission, he was later contacted by police. I am not sure if he faced any charges.
The next witness was Constable Matthew Carpenter. In 16 May 2016 he was on duty in the Belconnen area with Constable Lysa Barnsley. He said that they were on general patrol but he was keeping an eye out for the Mercedes-Benz because it had previously been seen in the area. He was in plain clothes but he wore his badge with standard accoutrements in plain sight. The accoutrements included his firearm, spare ammunition, a baton, a name badge, handcuffs and capsicum spray. Constable Barnsley was also in plain clothes and carrying similar accessories.
Constable Carpenter said that he noticed the Mercedes-Benz in the car park. It was parked in the position marked on photograph 2 of Exhibit D. It later emerged that there was no real dispute about this location, although it seems that this may have been the second parking spot taken by the accused after entering the car park.
Constable Carpenter drove his unmarked police vehicle, a grey Toyota Aurion, towards the back of the Mercedes-Benz. As its headlights scanned across the other vehicle, he noticed a male of African appearance wearing a hat. He parked directly behind the Mercedes-Benz to prevent it from reversing out of its bay. He parked the car so that the rear of the Toyota was across the rear of the Mercedes-Benz. I note that Constable Barnsley, in her evidence, had the Toyota placed a little differently. I do not see any significant difference in the two positions.
Constable Carpenter said he left his vehicle and went towards the passenger door of the Mercedes-Benz. He heard the engine revving and he yelled: “Stop Police”. He noticed that the driver’s window was open.
The Mercedes-Benz then moved forward over the median strip and effectively did a wide turn to the right to avoid a motor vehicle parked on the right and then headed towards the exit. As this was occurring, the officer ran diagonally along the path he marked on photograph 8 of Exhibit E. He then came to a stop at about the position marked in photograph 19 of the same exhibit. He was adamant that he was then in front of the Mercedes-Benz. He put his hand up and said: “Stop Police”.
The Mercedes-Benz then slowed. The officer pulled his baton out and the vehicle accelerated. Constable Carpenter thought that the vehicle was coming towards him. He threw his baton towards the car and moved to his left. He thought that the car came within about two metres of him.
Constable Carpenter thought that his baton hit the ‘B’ pillar of the vehicle. There was no dispute about this, although the accused thought the baton might have been swung rather than flung.
A little later, the officer heard a transmission stating that the Mercedes-Benz had been stopped about five kilometres from the car park. He travelled to the scene, where he saw the vehicle parked on the side of Ginninderra Drive. There is no dispute that the vehicle was the same Mercedes-Benz that had been in the car park and that had been driven by the accused.
There was also no dispute that a white cap found in the vehicle belonged to the accused, although he was not wearing it when he was pulled up by the police in Ginninderra Drive.
Under cross-examination, Constable Carpenter agreed that his police vehicle was unmarked. He accepted that, although there was some lighting within the vehicle, it was not obviously a police vehicle. I note that the angle at which the vehicle was parked behind the Mercedes-Benz may have obscured any view of the internal police lighting.
Constable Barnsley gave evidence. Her evidence was generally consistent with that of her partner on the evening. As I’ve already noted the placing of the police vehicle was a little different. She also said the police vehicle was a Toyota Camry, although I note that Constable Carpenter had described it as a large Camry.
Constable Barnsley otherwise generally confirmed what had occurred but with one very important difference. On her evidence, once the Mercedes-Benz had driven over the median strip it continued to accelerate, making the right hand turn, and then heading towards the exit. She said it did veer towards Constable Carpenter. She said he stepped away and thought he had thrown the baton as a reflexive action rather than intentionally.
Constable Barnsley gave evidence about Exhibit G. She said that the photographs, other than number 3 and those after page 16, were of items taken from a bum bag owned by the accused.
The final prosecution witness was Detective Sergeant Marriott. He was one of the officers who pulled over the Mercedes-Benz in Ginninderra Drive. He was sprayed with the fire retardant by Mr Gardner. He noted in his notebook that the accused had a goatee beard.
An application for a directed verdict was made in respect of Count 1. I pointed out that if the test was whether the matter should go to the jury, the link established by the contents of the bumbag was enough to reject the application. This seemed to be accepted by learned counsel for the accused and he then called his client to give evidence.
The accused gave his evidence in a confident manner. There were no indications in his demeanour or manner of answering questions to suggest his evidence should be doubted at a prima facie level.
The accused said that he had been using the Mercedes-Benz for three or four hours prior to the incident in the car park. He had purchased it in Richardson, somewhere in the Chisholm area. He was at a friend’s house when a friend of his friend arrived in the vehicle. After some discussion he offered to purchase the vehicle and paid $400 to $500 for it, plus “something else.” He said he did not wish to disclose what the “something else” was because he feared that information might incriminate him.
The vendor was a man of Caucasian appearance. No other description of him was given.
He said that his initial intention was to drive the car for a few hours but he later formed an intention to sell it. He did not bother with any inspection of the vehicle or registration papers because he knew it was stolen.
The accused was asked about the items in Exhibit G up to page 15. He said that with two exceptions the items had been found somewhere in the vehicle, either in the glovebox or perhaps around the console, and he had placed them in his bag not yet having formed an intention as to what to do with them. He said he had placed them in a shoulder bag but not a bum bag. I do not think there is any material relevance in which type of bag was actually involved.
The exceptions are the items in photographs 11 and 13, which he said belonged to people he knew and had either been left at his house or he was keeping as a surety to protect a loan he had made.
The accused said that, when he took possession of the vehicle, there was a rack of hats in the back of the car. He did, however, accept that a white cap with the words “Stussy International” on its front belonged to him. It was a recent birthday gift from his then girlfriend.
The accused said that he had picked up Mr Gardner in Bonython and then driven to the Lanyon Service Station, where he purchased some diesel fuel. He said he then drove to Belconnen and to the Charnwood Shops to meet a person. He initially parked opposite the Canberra Labor Club but, because the person he was waiting for did not arrive, he moved to the location described by Constable Carpenter.
The accused said that he saw the vehicle approaching but did not know it was a police vehicle. It parked behind him in the position described by Constable Carpenter. He noticed on the “three-sixty degree” camera inside the vehicle that a person was approaching from the rear. He wanted to get away, so drove straight over the median strip and then “hooked right” to leave the car park. He said he did not hear any person shout “Stop Police”, nor did he see any person ahead of him.
There was a person to the right side of the car but he did not know it was a police officer. He thought the person had, at some stage, yelled “stop you motherfucker” or some similar phrase.
The accused denied any knowledge of the robbery of the vehicle. Under cross-examination, the accused confirmed this assertion. He said that at the time he was “messed up on drugs”. He said he had not yet decided what to do with the various cards that he found in the vehicle.
On the first count, the Crown case is that there are so many connections between the events surrounding the robbery and the later events, in which the accused was an undisputed participant, so as to lead to a conclusion that the accused was, beyond reasonable doubt, one of the robbers involved. I repeat here that there is no dispute that a robbery occurred on 16 May and that the vehicle taken was the same as the vehicle driven by the accused when he was pulled over on 18 May.
The asserted connections are as follows:
(a)One of the robbers was a man of African appearance;
(b)That man had some facial hair;
(c)That man was wearing a white cap;
(d)The accused accepted that he owned a white cap, although it had the words “Stussy International” on its front;
(e)The vehicle was the same; and
(f)Mr Ntithanbayo’s possessions were found in the accused’s personal bag.
In addition, the Crown says that the accused’s version is so improbable as to be unbelievable. The Crown points to the following:
(a)The vagueness of his version: not identifying his friend, not identifying his friend’s friend and not identifying, other than very generally, the location where he purchased the vehicle.
(b)The payment of $400 to $500 “plus something”, when the initial intention was only to drive the vehicle around for a few hours.
It is important to note, at this stage, that an accused person is entitled to a presumption of innocence, which means that he is under no obligation to give evidence. If he does choose to give evidence then the assessment of that evidence is subject to the same scrutiny as the assessment of any other witness.
Nevertheless, even if no part of an accused’s evidence is accepted, the onus remains on the prosecution to establish its case beyond reasonable doubt.
Applying the principles I have set out above in respect of circumstantial evidence, taken individually, each of the factors relied upon by the Crown is open to argument consistent with a reasonable doubt about guilt. For example, the fact that one of the robbers was of African appearance might, at first sight, seem a reasonably strong point. However, persons of African appearance are not ‘rare’. Notably, the victim of the robbery was himself a man of African appearance and descent.
Facial hair is not uncommon and, on its own, is a factor of little weight. The same might be said for the wearing of a white cap.
The accused pointed out that Mr Ntithanbayo had not been asked about a number of items seen in the photographs of the vehicle (Exhibit A, from page 80). Their presence was consistent with some other person having placed them in the vehicle after it had been taken on 16 May. In addition, he pointed out that some of the items found in his bag had not been identified by Mr Ntithanbayo, also consistent with them having been placed in the vehicle by some other person after the robbery occurred.
The presence of the items in the vehicle is of course also consistent with the accused and perhaps another person (the co-robber) having placed them in the vehicle.
In addition, Mr Ntithanbayo said that he had all of his possessions in the vehicle (T 7.38).
In my view, the factors identified by the Crown would not, individually, permit me to reach a verdict of guilty beyond reasonable doubt. However, taken together, and bearing in mind the care with which circumstantial evidence should be treated and inferences should be drawn, I think there is a justifiable inference of guilt and there is no rational inference to the contrary.
The factors that I think are the most persuasive are the vehicle being the same vehicle and Mr Ntithanbayo’s possessions being found in the accused’s bag. When combined with the other factors mentioned above, there is an inescapable conclusion of guilt beyond reasonable doubt.
I do not think Mr Ntithanbayo’s inability to identify the accused in a photographic parade is significant. Mr Ntithanbayo had been asleep in his car and was awakened by loud noises and heard threats that he might be shot. The lighting was poor and he was concerned to leave the vehicle as soon as possible. His capacity to have formed a reliable impression of the identity of the African man was limited.
For the same reasons I do not think Mr Ntithanbayo’s recollection of an African-American man assists the defence.
I am satisfied on the Crown’s case of the guilt of the accused. In addition, I found the accused’s version about how he came to possess the vehicle to be particularly unconvincing, essentially for the reasons suggested by the Crown. I repeat them here:
(a)Although one can understand a reluctance to incriminate other persons, this would not have extended to the accused’s friend at whose home he met the vendor of the vehicle.
(b)The vagueness as to the identity of the friend and the friend’s friend stretched to the imprecision with which the accused nominated the location at which the vehicle was purchased.
(c)The accused said that his initial intention was to “just to drive round in it but then I was going to sell it” (T 100.23). It seems quite extraordinary that $400 to $500, let alone “plus something else”, would be paid for a vehicle in order to drive it for a short period. Had the original intention been to resell the vehicle, the position may have been different.
In respect of the second count, I am not satisfied beyond reasonable doubt that the accused used the vehicle as an offensive weapon. Proof of this charge requires the establishment of an intention to drive the vehicle at the police officer. I do not think that intention has been proved. While I do not doubt the evidence of the two officers involved, it is also obvious that the accused was endeavouring to leave the scene hastily and the possibility of him briefly heading towards the officer cannot be excluded as being part of his flight.
The events happened over the course of seconds. The officer was running towards the vehicle. The vehicle was heading away. In my view, there must be a reasonable doubt as to whether the vehicle was ever driven at the officer or simply passed him in the rush to flee. Accordingly, there will be a verdict of Not Guilty entered on the second count.
It is now necessary to consider the s 5C charge. As already noted, the important elements, as far as this case is concerned, are whether or not the accused knew the officer or officers were members of the police force and whether or not he was asked to stop.
Having found that the accused was guilty of the robbery, it follows that he would have been particularly alert for the presence of the police. Having excluded his version of having purchased a stolen vehicle, there is no room for acceptance of the possibility he put forward that whoever pulled up behind him was somehow associated with the theft of the vehicle.
The accused’s manner of leaving the scene, including driving over the median strip and departing at speed, against a background of being on the alert for the police, leaves me in no doubt that he was aware that the vehicle that had stopped behind him was a police vehicle.
The next point is whether or not Constable Carpenter shouted out: “Stop Police”. I accept his evidence on this point, as I do the evidence of Constable Barnsley. I also accept, as stated by the accused and not excluded by the officer, that Constable Carpenter also adopted a less formal instruction, namely: “Stop motherfucker”. As the vehicle was rushing towards him or passed close by him, it is understandable that the officer might have amended his standard phrases.
It is also reasonable that the accused did not hear the instruction “Stop Police”. He said that, as soon as he became aware of the vehicle behind him, he started to accelerate in order to go over the median strip. This is consistent with the revving heard by the police officers. One cannot, therefore, exclude initial instructions being drowned out by engine noise.
The next issue is whether the instruction “stop motherfucker” is sufficient to constitute an instruction to stop. Section 5C requires a police officer to ask or signal a person to stop the motor vehicle. It does not dictate any particular wording or form of instruction. Therefore, accepting that the accused knew that the person yelling was a police officer, and accepting that he did not hear the “Stop Police” instruction, I am nevertheless satisfied that the less formal direction is sufficient to satisfy the requirements of the section.
This judgment should not be taken as sanctioning the use of inappropriate language by police officers in the course of their employment. I have no doubt, in any event, that their code of conduct would not allow such terminology.
Accordingly, I am satisfied beyond reasonable doubt of the accused’s guilt in respect of the s 5C offence.
I make the following orders:
(a)The accused is found Guilty of Count 1, that he committed robbery in company with an unknown person on 16 May 2016 at Canberra in the Australian Capital Territory.
(b)The accused is found Not Guilty of Count 2, that he used an offensive weapon likely to endanger human life or cause grievous bodily harm intending to prevent or hinder his lawful apprehension.
(c)The accused is found Guilty of the charge of failure to stop a motor vehicle for police.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 15 June 2017 |
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