R v Fraser No. Sccrm-99-192 Judgment No. S396

R v FRASER
[1999] SASC 396

Reasons for Ruling

Millhouse J. The accused has been charged with four offences, armed robbery, robbery, bank breaking enter and larceny, and illegal use. He has elected to be tried by me alone, without a jury. On his arraignment before me he pleaded not guilty to armed robbery and not guilty to robbery but guilty to the bank breaking and to the illegal use.
At the close of the Crown case, Mr Stephen Ey for the accused, has submitted that there is no case to answer on counts one and two armed robbery and robbery. I must make a ruling on that submission now.
The facts are short and not in dispute. As I understand it, the only point the defence takes is that the actions of the accused amount neither to armed robbery nor to robbery.
On 10 December 1998 the accused has admitted taking a car from the carpark of the Marion Shopping Centre. He used it the next day to drive out to Hamilton Street, Erindale.
The Erindale branch of the State Bank is on the corner of Hamilton Street and Kensington Road. The front of the Bank faces north on Kensington Road: the western side of the premises abuts the footpath on Hamilton Street. On 11 December in the wall on that western side of the bank were three windows. The most southerly of them would allow entry (if open or smashed - it was the latter here) into the banking chamber behind the counter at which the tellers stand to deal with customers. In other words entry through this window gave entry to that part of the banking chamber intended to be used only by bank staff. The two more northerly windows would allow access on the northern side of the counter, that is, to that part of the banking chamber open to the public.
The three staff of the branch arrived at work some time between 8.30 am and 9.00am. There were three of them, Mr Brian Joseph Clifford, the Customer Services Manager who was in charge, and Misses Caterina Carfora and Jacqueline Nankivell who were customer services officers, tellers.
The bank was due to open to the public at 9.30am. In the meantime the staff got read for business for the day. One of the duties undertaken by the tellers was to put money in the two tellers' tills. By 9.20am this had been done.
At 9.20am Mr Clifford was in the lavatory. The two tellers were at their desks behind the counter. They heard and saw the southernmost window being smashed.
Miss Nankervill saw a person in dark clothes effecting an entry by smashing the window: he was wearing a balaklava. She was frightened. She left the chamber and ran outside through a back door.
Miss Carfora heard a smashing, banging noise from the window. She saw a person in dark clothing wearing a balaklava, smashing at the glass. She called to Miss Nankivell and went into the women's lavatory. She spent the next ten minutes or so in there. She was frightened.
As I have said Mr Clifford was in the lavatory. Here is his account, in examination-in-chief, of what happened:-
"Q.... You told us earlier you heard a noise, what did you initially think the noise was.
A.I thought it was someone had dropped a cash tin, which is similar to a sort of crashing noise.
Q.... A tin with all the coins in it.
A.Yes.
Q.... When you heard that what did you do.
A.I came out, I had just finished washing my hands and I passed Cathy (Carfora) on the stairwell outside the toilet. ...
Q.... ... - you had moved out of the toilet, where did that involve you moving to.
A.To the top of the stairway, which overlooks the banking chamber. ...
Q.... What could you see there from there.
A.I could see someone smashing through the window. ...
A.... I saw someone with an axe smashing the glass to get inside.
Q.When you saw that, what did you do.
A.... I then went into the lunch room and activated the alarm. ...
A.That sets off the screen and activates the alarm to the police.
Q.... The screen, is that the one that pops up in front of the teller at the counter area.
A.That's correct. ...
Q.... After activating the alarm, what did you then do.
A.It was very quiet then and I couldn't hear any more glass crashing, whatever, so I wasn't sure whether to, because there is an exit out of the lunch room, I wasn't sure whether to go out there but I went back in and had a look to see what was going on inside the branch.
Q.... And when you went back in to the branch, what did you see.
A.I saw someone at the second one in, cash counter, teller's counter. ...
Q. . That person, did they have a balaclava on.
A.Yes. ...
Q.... So you've come back out and you are in that area near the steps and you have seen this person, what did you then do.
A.He didn't look around, he just carried on with what he was doing.
Q.... What was he doing.
A.He was taking money out of the drawer.
Q.... Could you see the person's hands.
A.Not clearly, no.
Q.... Do you know if the person was carrying anything or not.
A.No.
Q.... So this person is at the drawers, please go on, what did you see from there.
A.I just saw him doing that, taking the money, and then I heard voices coming from outside, and the hairdresser, which is behind the lunch room, so I thought that was the best place to be.
Q.... Why did you think that was the best place to be.
A.Because I didn't know whether he, for a start, whether he would turn around and see me and whether he had a weapon with him or whatever, so obviously being scared or whatever I decided I would get out of there, furthest away as possible.
Q.... Did you in fact do that.
A.Yes, I did."
The accused, having collected the money, left the bank by the same way as he had come in, through the broken window, and drove away. He had taken $15,600.
It is common ground that some time earlier the accused had bought a log splitter. He used it to smash the window but left it out on the footpath in Hamilton Street. He did not bring the log splitter into the bank. It was still lying on the footpath after he had gone and when the police arrived.
Mr Ey submitted that on those admitted facts the accused had no case to answer on the counts of armed robbery and robbery. Yesterday I heard argument on the submission from Mr Ey and from Mr James Pearce, the Crown Prosecutor.
I consider first the armed robbery. Armed robbery is an offence under s158 of the Criminal Law Consolidation Act: the relevant parts of the section are:-
"Any person who -
(a) being armed with any offensive weapon or instrument, robs, ... any person; ...
shall be guilty of an offence ..."
There is no evidence that the accused was, at the time he entered the bank and while he was in there, armed with any weapon at all. None of the witnesses saw any weapon. The only possible weapon was the log splitter but the accused had left that outside.
Mr Pearce argued that the test is whether the accused had a weapon immediately available to him. He referred me to The Queen v Standley (1996) 189 LSJS 233, a Court of Criminal Appeal decision in which Cox J gave the Reasons with Perry and Lander JJ agreeing. Cox J several times used the words "immediately available": for example, "The accused was armed with the instrument if it was immediately available to him to be used for offence." (@ 239). His point was that the weapon must either be in possession of the thief or immediately available to him.
The only weapon here to which Mr Pearce could refer was the log splitter and that was outside. It was not "immediately available" to the accused while he was inside the bank. He would have had to go out through the jagged glass of the window, pick the log splitter up and come in again. That does not fit the concept of being "immediately available". The log splitter was not "immediately available" to the accused.
There is no evidence that while inside the Bank the accused was "armed with any offensive weapon". There is therefore no case for him to answer on count one, armed robbery.
As for count two, robbery simpliciter, Mr Ey argued that there must be some confrontation between the accused and the victim: here there was none. The two women left the banking chamber. Mr Clifford stood, watching from a distance (something less than ten metres away counsel and I agreed,) the accused taking the money: the accused did not even look at Mr Clifford: no word was exchanged between them. There was no confrontation, Mr Ey argued between the accused and any member of the staff of the bank.
Mr Ey reminded me of the wording of s155 of the Criminal Law Consolidation Act, "Any person who robs another, or steals any chattel, money or valuable security from the person of another, shall be guilty of an offence ...". That is not what happened here, he said. The accused did not take from the person of anyone. Mr Ey denied that the smashing of the window was a confrontation or that it was part of the res gestae.
He relied on the decision of the New South Wales Court of Criminal Appeal in Shannon Elizabeth Foster (1995) 78 A Crim R 517 and especially a passage at page 522:-
" The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person's resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft."
That had not happened here, Mr Ey argued. The ladies had run away: there was no confrontation, even contact, with Mr Fraser.
Mr Pearce cited several cases but the most apt was the decision of the House of Lords in The Queen v Smith and Desmond (1965) AC 960. He relied particularly on a passage in the speech of Lord Morris of Borth-y-Gest:-
"It is open to a jury to convict of robbery if someone through force or fear is compelled to submit to the taking of goods from his person or is compelled to relinquish or to surrender or is made powerless to prevent the taking of goods which at the time of the force or fear are in his immediate and personal care and protection."
The Queen v Smith and Desmond has been followed here in The Queen v Emery (1975) 11 SASR 169. Two men, occupants of the office of a caravan park, became involved in an altercation with the accused and others. Such violence was used towards the occupants that they were obliged, one after the offence, to leave it for a time. While absent the accused (and probably another) took money out of the till. The accused was convicted (rightly the Court of Criminal Appeal decided) of robbery with violence. Bray CJ at 172:-
" It was said that on the evidence it should not have been found that the money was under the immediate and personal control of Sullivan at the time he said he saw the appellant take it or that he was at that time in fear or prevented from being in control of it. This point I think is disposed of by the decision of the House of Lords in Smith v. Desmond. I think that on the evidenced the jury were entitled, if they saw fit, to infer that Sullivan was the custodian of the money after Gill's departure and that he would have been in immediate and personal control of it in Gill's absence if he had not been expelled from the office by force exerted by the appellant or by the threat of further force."
Those authorities are decisively in favour of the Crown. There need not be the kind of confrontation which Mr Ey argued is required to be proved as an element of the crime of robbery.
In the circumstances of this case the fear making the staff powerless to prevent the taking of the money at the time in their immediate and personal care and protection was the violent entry by the accused, wearing a balaklava (probably to disguise himself as well as instil fear) into the banking chamber by smashing the window with the log splitter and coming in, quite uninvited by the staff. The accused's actions inspired such fear in the two ladies that they left and in Mr Clifford as to cause him merely to watch but not to interfere. They all submitted to the theft through fear.
There is evidence on which a jury properly directed (as I hope in due course I shall direct myself), could find beyond reasonable doubt the accused guilty of robbery.
Accordingly the accused has a case to answer on count two, robbery.

[1999] SASC 396

16 September 1999