R v Devine

[1991] TASSC 190

Serial No B76/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Devine [1991] TASSC 190; B76/1991

PARTIES:  R
  v
  DEVINE, Robert Joseph

FILE NO:  C320/1991
DELIVERED ON:  18 December 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B76/1991
Number of paragraphs:  7

Serial No B76/1991
File No C320/1991

THE QUEEN v ROBERT JOSEPH DEVINE

REASONS FOR JUDGMENT  ZEEMAN J

18 December 1991

1. The accused has pleaded guilty to one count of armed robbery. The facts, as stated by counsel for the Crown, were that at about 4pm on 28 October 1991 the accused, whilst wearing a stocking mask, entered the premises of the Island State Credit Union at Claremont carrying a sawn–off .22 rifle with magazine attached. He pointed that rifle at two tellers and demanded that they fill up a bag, which he was carrying, with money. They complied with his demands and placed $26,547.37 in cash in the bag. The accused then fled. Very little of the cash has been recovered.

1. The accused asserted that he had paid over the money to a drug dealer or dealers in discharge of a debt which he owed to that dealer or dealers. He further asserted that he committed the crime out of desperation because he was under considerable pressure to pay the debt. In particular he said that he had received threats of violence to him, his girlfriend and her two children if he did not pay and that there had been an attack made upon his property which he connected with the outstanding debt. The Crown disputed that anything of the sort had occurred. It was the Crown case that the money taken by the accused from the credit union largely remained at his disposition. In those circumstances I took sworn evidence.

1. The substance of the evidence given by the accused in examination–in–chief was to the following effect. He went to the premises of the Island State Credit Union on the day in question intending to rob it of money to discharge his debt because he was in fear of his own life and in fear of the life of Mandy (his girlfriend) and the lives of her sons. In about early September 1991 he purchased a quantity of the drug "speed" on credit. He was unable to pay the purchase price of $10,000.00. Some two or three weeks after the purchase, there commenced a series of threatening telephone calls to the effect of "Come up with the money, its the money or your life or the life of Mandy and the children". He said that he received numerous telephone calls to that effect. He described a further incident which occurred after the telephone calls had started and prior to the commission of the crime. His car was shot at whilst it was parked outside his house. He said that as a result he got into his car and gave chase to "the people that shot at me car". He said that those persons were in an F100 four wheel drive utility with which they rammed the side of the accused's car when in the vicinity of the Gagebrook Fire Station, presumably in the course of the chase. Later in the day he received more telephone calls to the effect of "We either want the money or next time the bullets are going to be in your house". Some 2½ weeks after those events he committed the crime to obtain the money so that he could pay for the drugs so as to obviate the danger to himself, his girlfriend and her children. His evidence was, "I had no choice, I was backed into a corner, I had to get the money and the only way – I couldn't earn that money, I couldn't borrow that money, I had to steal and that's what I done".

1. There was some evidence which could be treated as corroborating the accused's evidence as to the receipt of threatening telephone calls. His girlfriend gave evidence that she received two telephone calls. Her examination–in–chief was as follows:

"QRight, and what was said?

AOn the first phone call I talked – it was after being shooting (sic) at the car and they told me to tell Rocky that the next bullet was for him and on the second occasion they told me if he didn't hurry up and come up with the money that the windows would be blown out of the house and I said to them, you know, I've got a couple of boys in the house, a couple of kids, and they said – – –

QDid they say anything about that?

AThey said that they weren't no concern of theirs."

1. I do not accept that evidence. The evidence of Mrs Smith, the assistant manager of the hotel at which the accused was employed, was to the effect that many telephone calls by callers seeking the accused were made to the accused's place of employment, but that evidence does not corroborate the proposition that any threatening calls were made.

1. There was evidence from a number of persons corroborating the evidence of the accused as to the events involving his car, to which I have referred. I am satisfied that some such episode occurred, but it does not follow that it bore any relation to a drug transaction of the nature described by the accused. The accused was cross–examined at length. During the course of that cross–examination he contradicted himself on a number of occasions. I formed the view that what the accused said could not be relied upon. When inconsistencies in his evidence were pointed out the accused readily fabricated evidence to explain the relevant inconsistency.

1. Having regard to the whole of the evidence, and in particular the cross–examination of the accused, I have come to the conclusion that I ought not to accept that any drug transaction of the nature described occurred, or that the accused was led to commit the crime for the reasons given by him. In fact, I positively conclude that what the accused told me as to those matters were figments of his imagination and untrue. My reasons for coming to that conclusion include the following:

(a)The accused gave varying versions as to what it was that he owed for the drugs. At one stage he said that the amount payable doubled each week from the due date (which he said was fourteen days from the date of purchase) until the date of payment. Later he agreed that the purchase price bore interest of $10,000.00 for each week that it remained unpaid. Those two propositions are inconsistent.

(b)The accused gave evidence that he purchased the "speed" for his own use, but when cross–examined as to how he intended to pay for the "speed", when he had no obvious means of finding $10,000.00, he said that he intended to sell portion of it to an available "bulk buyer", saying that he could treble his money that way.

(c)When cross–examined about sales, he said that the "speed" which he purchased was useless as it was 95% epsom salts and he had therefore flushed it down the toilet. It is most unlikely that the accused, on his version, having been deceived as to what it was that he was purchasing would just have accepted that. Remarkably, in examination–in–chief, he merely referred to having purchased "speed", without reference to epsom salts.

(d)Whilst the accused claimed that he owed a specific sum, namely $30,000.00 (which incidentally bore no relationship to the sum due, whichever version of the accused's evidence was accepted, as by the time he robbed the credit union payment was about six weeks overdue), he at no time counted the money taken from the credit union, which was whatever money he could get. On his evidence, he handed over the cash which he had stolen to the drug dealer or dealers having no idea as to the amount which it was that he handed over. The accused said that he "paid what I owed them" yet claimed not to know what sum he had paid them.

(e)When interviewed by the police, the accused explained the sum of $300.00 found in his room at the hotel where he had been apprehended and the source of hotel and living expenses since the commission of the crime upon the basis that he had borrowed $1,000.00 from another person. Whilst initially denying that he said that to the police, he finally admitted it, but saying that it was a mistake and that he should have said that he had borrowed $100.00, explaining the other $900.00 by reference to a car transaction. The likelihood is that the sum of $300.00 and the money spent by the accused on expenses since the commission of the crime formed part of the proceeds thereof. The accused gave untruthful explanations to explain the course of such money.

(f)The thoroughly adverse impression I formed of the accused in the witness box.