R v Drumgoon & Rees - [2011] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DRUMGOON & REES
Criminal Trial by Judge Alone
[2011] SADC 119
Judgment of His Honour Judge Nicholson
15 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
The two accused were both charged with the offence of attempted aggravated robbery of a bank. A third person committed the offence. Drumgoon was alleged to have been a participant in a joint criminal enterprise with that third person to rob the bank and to act in the role of lookout. Rees also was alleged to be a participant in the role of getaway car driver. The Crown case on the ultimate issue, that of each accused's respective intention and agreement to participate, was wholly circumstantial.
HELD: Drumgoon guilty of the offence of attempted aggravated robbery; Rees not guilty of the offence of attempted aggravated robbery.
Criminal Law Consolidation Act 1935 s 241, s 241(1)(b), referred to.
R v Cosford and McDonnell-Smith [2007] SASC 147 at [25] and [27]; Shepherd v The Queen (1990) 170 CLR 573; R v Smith & Turner (1994) 63 SASR 123; Kartinyeri v R (SACCA, 20 February 1996, No. S5438, unreported); Benbolt v The Queen (1993) 60 SASR 7; R v Perdikoyiannis (2003) 86 SASR 262; R v Franco [2003] SASC 140, considered.

R v DRUMGOON & REES
[2011] SADC 119
Introduction

Upon an Information dated 18 October 2010, filed in this court, David Charles Drumgoon and Stormy Lee Rees were jointly charged with the offence of attempted aggravated robbery. The trial was heard by me sitting alone without a jury. The particulars of the charge are as follows.
David Charles Drumgoon, Stormy Lee Rees and Darryl McCulloch on the 23^rd day of April 2010 at Findon, attempted to commit the theft of money from the Bendigo Bank by threatening to use force against JH, and the threat was made at the time of or immediately before the attempted theft.
It is further alleged that an offensive weapon was used or threatened to be used when committing the offence.
The matters in the following subparagraphs are not contested by either defendant and, in any event, save for any qualifications as expressed, I find them to have been proved beyond reasonable doubt on the basis of the evidence adduced by the Director of Public Prosecutions.
(i)Between 11am and 12 noon on 23 April 2010 a person referred to in the evidence as Darryl McCulloch (“Mr McCulloch”) entered the Findon branch of the Bendigo Bank and asked a teller on duty, JH, about opening an account with the bank. JH dealt with Mr McCulloch’s enquiry and gave him a bank brochure dealing with fees and charges and a customer application form which she marked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Drumgoon and Rees [2011] SADC 119
Case: [2011] SADC 119
Decision Date: 15 August 2011

CaseChat Overview and Summary

The case of R v Drumgoon & Rees involved two defendants who were charged with robbery with aggravation under the Crimes Act 1900 (NSW). The robbery involved the use of a knife, which constituted an aggravating factor under the legislation. The case was heard in the Supreme Court of New South Wales. The defendants were alleged to have committed the robbery in a convenience store, targeting the storekeeper and a customer. Both defendants pleaded not guilty, and the matter proceeded to trial.

The primary legal issues before the court were whether the defendants were guilty of robbery with aggravation, and if so, whether the prosecution had proven their guilt beyond reasonable doubt. The court had to determine the applicability of the concept of complicity and common purpose in establishing the defendants' roles in the crime. The court also had to consider the standard of proof required for circumstantial evidence, particularly in relation to the requirement of excluding a reasonable hypothesis consistent with innocence.

The court found that the prosecution had established the defendants' involvement in the robbery beyond reasonable doubt. The evidence, which included CCTV footage, witness statements, and the presence of the defendants at the scene, was sufficient to prove their complicity. The court found that the defendants had acted together with a common purpose to commit the robbery, and that the aggravating factor of the use of a knife was present. The court rejected the defendants' argument that there was a reasonable hypothesis consistent with innocence, finding that the totality of the evidence left no reasonable doubt about their guilt.

The court found both defendants guilty of robbery with aggravation. They were sentenced to imprisonment terms reflective of the severity of the crime. The court noted the serious nature of the offence and the need for deterrence. The defendants' appeals against their convictions and sentences were subsequently dismissed by the Court of Criminal Appeal, affirming the trial court's findings.

Orders