R v Fraser No. Sccrm-99-192 Judgment No. S404

[1999] SASC 404

R v FRASER
[1999] SASC 404

Reasons for Verdict

1. MILLHOUSE J        On Thursday afternoon, at the close of the Crown case, I ruled that the accused had a case to answer on the charge of robbery.  I gave reasons for my ruling and in those reasons I set out the facts sufficiently for the purposes both of those reasons and of these.  These reasons should be read with the earlier reasons.

2. The accused has been charged with four offences, armed robbery, robbery, bank breaking enter and larceny, and illegal use.  He pleaded guilty to the bank breaking enter and larceny and to the illegal use.  I ruled that he had no case to answer on armed robbery so that means a verdict of not guilty on that count.  The only count on which I have to come to a conclusion is the robbery.

3. As soon as I gave my ruling Mr Ey said that the accused did not propose to give evidence and Mr Ey called no other evidence for the defence.  I therefore have to decide on guilt or otherwise on the Crown case.

4. I first remind myself of matters which must always be born in mind by a trier of fact in a criminal trial. 

5. The accused comes to the Court presumed to be innocent.  That presumption remains unless at the end of the trial and after a consideration of the whole of the evidence and the addresses of counsel I conclude that he is guilty.  I must approach my task without any preconception or prejudices or feelings of sympathy for or against any witness and, of course, for or against the accused.

6. The burden of proving the accused guilty lies wholly upon the Crown.  The accused does not have to prove anything.  If he puts forward a defence he does not have to prove it.  He does not have to prove any explanation which he might offer.  The Crown must prove each and every element of the offence and must disprove any defence or explanation.  The burden of proof always lies upon the Crown and no burden ever lies upon the accused.

7. If the accused points to an explanation which is consistent with innocence he does not have to prove that.  It is again for the Crown to disprove it or shew that it is irrelevant.  If the Crown cannot do that it has not proved its case.

8. The standard of proof which the Crown must meet is proof beyond reasonable doubt.  Nothing short of proof beyond reasonable doubt will suffice.  The accused cannot be convicted unless the Crown establishes each element of the offence beyond reasonable doubt and disproves any defence or explanation offered by the accused beyond reasonable doubt.

9. In these reasons where I speak of being satisfied or make a finding it must be understood that I am satisfied or have made a finding beyond reasonable doubt.

10. There are three elements of the offence of bank breaking enter and larceny -

11. the breaking into a bank,

12. the entry and,

13. the larceny (or stealing).

1. Robbery is merely an aggravated form of larceny (or stealing).  It differs from stealing in that it involves either taking the property in question from the person of another, or taking property which is under the control of another person and putting that person in fear by force or threat of force.

2. So, beside the three elements of break enter and steal, there is a fourth element in robbery - putting the victim or victims in fear.

3. By pleading guilty to break enter and larceny the accused has already admitted the first three elements so these are proved beyond reasonable doubt on his own admission.  For the Crown to prove robbery, there remains only the fourth element to be proven beyond reasonable doubt.

4. By my ruling I found that the accused had a case to answer on robbery.  To find him guilty of robbery, however, I have to find that the Crown has proved robbery beyond reasonable doubt, a much heavier onus.

5. The three bank employees all said that they were afraid because of the accused's actions and I have no reason not to accept their evidence.  Mr Ey did not suggest to the contrary. 

6. Mr Ey's argument was that by coming in through the window all the accused meant to do was to enter the bank, not to put anyone in fear.  I simply cannot accept that.  The accused obviously was following a plan.  Some time before he had bought the log splitter and he had taken a car.  He drove to the bank, he was wearing a balaklava, he broke in.  He carried no weapon with him into the bank because, I find, he calculated and intended that his actions would have the effect which they did have, of putting such fear into the bank staff that they would let him take the money unhindered.  He succeeded in all this.

7. I  find the fourth element of robbery proved beyond reasonable doubt.

8. That means all four elements of the crime of robbery have been proved. 

9. I therefore find the accused guilty of robbery.