R v Fraser No. Sccrm-99-192 Judgment No. S396 - [1999] SASC 396

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…

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

Case: [1999] SASC 396
Decision Date: 16 September 1999

CaseChat Overview and Summary

In the case of R v Fraser, the accused faced charges of armed robbery, robbery, bank breaking and enter and larceny, and illegal use. Fraser elected to be tried by a single judge without a jury and pleaded not guilty to the charges of armed robbery and robbery, but admitted to bank breaking and illegal use. The legal issue before the court was whether there was sufficient evidence to support the charges of armed robbery and robbery. The defence argued that the accused's actions did not amount to either offence.

The court found that there was insufficient evidence to support a charge of armed robbery, as there was no evidence that the accused was armed with any weapon at the time of the offence. The only potential weapon, a log splitter, was left outside the bank and was not "immediately available" to the accused. However, the court found that there was a case to answer for the charge of robbery, as the accused's violent entry into the bank by smashing a window with a log splitter caused fear in the bank staff, who were thereby rendered powerless to prevent the theft. The court noted that a confrontation between the accused and the victims was not a necessary element of the crime of robbery.

The court concluded that the accused had a case to answer on the charge of robbery but not on the charge of armed robbery. The court's decision hinged on the interpretation of the relevant sections of the Criminal Law Consolidation Act and the evidence presented in the case. The accused's guilty plea to bank breaking and illegal use was not challenged by the defence.

The final orders of the court would be made following the trial on the remaining charges. The court's ruling on the legal issues of armed robbery and robbery was crucial in determining the outcome of the case and would likely influence future cases involving similar offences.

Orders