R v Gardner
[2016] ACTSC 296
•7 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gardner |
Citation: | [2016] ACTSC 296 |
Hearing Date: | 6 October 2016 |
DecisionDate: | 7 October 2016 |
Before: | Elkaim J |
Decision: | 1. On the charge of aggravated robbery in company with an unknown man contrary to s 310(a) of the Criminal Code 2002 (ACT), the accused is found not guilty. 2. The accused’s plea of guilty to the alternative charge of dishonestly appropriating property belonging to Joe’s Motorcycles Pty Ltd with the intention of permanently depriving the owner of the property, contrary to s 308 of the Criminal Code 2002 (ACT), is confirmed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – robbery – whether the accused used force on another person with the intent of escaping from the scene CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –trial by judge alone – alternative charge of theft – plea of guilty |
Legislation Cited: | Criminal Code 2002 (ACT), ss 308, 310(a) Supreme Court Act 1933 (ACT), s 68B |
Parties: | The Queen (Crown) Jaiden Dale Gardner (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Lawton (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Services (Accused) | |
File Number: | SCC 31 of 2016 |
ELKAIM J:
The accused pleaded not guilty to a charge of aggravated robbery in company with an unknown man contrary to s 310(a) of the Criminal Code 2002 (ACT). However, he pleaded guilty to an alternative charge of dishonestly appropriating property belonging to Joe’s Motorcycles Pty Ltd with the intention of permanently depriving the owner of the property. That offence is contrary to s 308 of the Criminal Code 2002 (ACT).
The Crown did not accept the plea in full satisfaction of the indictment.
In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.
In respect of the contested count, he parties prepared an agreed statement of facts (Exhibit A). The result was to significantly reduce the matters in issue, effectively leaving one factual area to be decided, namely whether in leaving the scene of the crime, did the accused use force on another person with the intent of escaping from the scene?
The incident giving rise to the charges occurred on 8 August 2015.
In brief, the prosecution alleges that the accused, together with an unidentified co-offender, robbed Joe’s Motorcycles in Fyshwick from where they stole motorcycle jackets and helmets. After taking the items it is alleged the accused use force on a principal of the business with intent to escape from the scene.
Before looking at the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense.
Despite the limited scope of the contest, it is important to list the elements of the offence constituting the first count in the indictment:
(a)The accused appropriated something;
(b)The accused intended to appropriate something;
(c)The something that was appropriated was property;
(d)The accused was reckless as to the fact that what was appropriated was property;
(e)The property belonged to another person;
(f)The accused was reckless as to the fact that the property belonged to another person;
(g)The appropriation was dishonest according to the standards of ordinary people;
(h)The accused knew that the appropriation was dishonest according to the standards of ordinary people;
(i)At the time the accused appropriated the property he intended to permanently deprive the person to whom the property belonged of the property;
(j)Immediately after committing the theft the accused used force on someone else;
(k)The accused intended to commit theft or escape from the scene when using the force;
(l)The accused was in company at the time of committing the robbery;
(m)The accused was reckless as to being in company at the time of committing the robbery.
As a result of the admissions and agreed statement of facts, the only elements that need to be proved beyond reasonable doubt are elements (j) and (k).
The first witness called by the Crown was Mr Corey Spratford. He is the son of the owner of Joe’s Motorcycles and has been working in the business for 26 years. He has a feeling of great attachment to the business and its products.
On 8 August 2015, Mr Spratford was in the accessory section of the business when he noticed two men, also in the store. One was dressed in black and was carrying two motorcycle jackets, from the high end brand, Dainese. The other person was dressed in a grey ‘hoody’ and was carrying two Shoei motorcycle helmets. This is also an expensive brand.
Mr Spratford, who was situated at the counter near the exit from the store, noticed the two men approach the exit and then, just before leaving the store, start to run. They turned right along Collie Street.
Mr Spratford, recognising that a theft had taken place, gave chase. Before leaving the store he picked up the broom pictured in Exhibit C. At first he could not see the two thieves, but then noticed them to the south of the store, trying to enter a black four-door motor car.
Mr Spratford said both men were on the passenger side of the vehicle, trying to unlock the door. The vehicle was pointed in a southerly direction but was located on the western side of Collie Street. It was therefore facing the ’wrong direction’. The man in black was trying to open the door; the other man (the accused) was behind him.
Mr Spratford said he ran up to the men but as he did so, the accused lunged towards him with his right hand. The helmet that was being held in this hand hit Mr Spratford on the left side of his temple. He did not feel any pain but thought this was because of his heightened state of mind.
Mr Spratford made it clear that in leaving the store he was intent on securing the return of the jackets and helmets. He was “gee-d up”.
In response to the attack with the helmet, Mr Spratford thrust the broom towards the accused and struck him with the brush end. He pointed out the broken piece of blue plastic at the top of the handle (Exhibit C). At this stage Mr Spratford and the accused were at the back of the car and facing each other. He said a scuffle then ensued with the accused coming at him three or four times with the helmets. They eventually went to ground. Mr Spratford was able to secure one of the helmets.
The accused then ran away in a southerly direction. Mr Spratford said he went to the front of the car and to the driver’s side door. By this time, the man dressed in black was inside the vehicle and trying to insert the keys into the ignition.
Two other vehicles pulled up in front of the scene and surrounding workers were watching. The man dressed in black started the vehicle and drove off. Before he did so, Mr Spratford had struck the vehicle a number of times with the broom which caused, at least, a side window and the windscreen to shatter. The vehicle travelled south but stopped in the middle of the road to allow the accused to enter.
Under cross-examination Mr Spratford accepted that he was ”gee-d up” when he picked up the broom and he was prepared to use force to get his items back. He also said that he acted on instinct and took the broom as a means of protection. He had never previously encountered a similar situation.
Mr Spratford rejected the suggestion that when he reached the vehicle that both thieves were on the driver’s side. He also denied that he had pushed the accused when he arrived at the vehicle, but conceded that this was included in his statement which he had made to the police on the following day. He rejected the notion that his actions had been “over the top” and that he had tailored his evidence to deter any such conclusion.
Mr Spratford acknowledged that he had struck the accused’s head with the broom but said the accused was facing him when this occurred. This was despite the injury to the accused being on the back of his head. Mr Spratford said that it was the brush end of the broom that had struck the accused. He said he struck him to stop him getting away and also as a means of protection from being hit.
Mr Spratford was adamant that the windscreen of the vehicle had not been broken before he struck the accused. He said that the handle of the broom had been bent when he had struck the side window of the vehicle.
The second witness called by the Crown was Mr Anthony Charles who was, and is, a Warrant Officer in the army.
Mr Charles and his partner were driving in a northerly direction towards Joe’s Motorcycles. He was the passenger. His partner drew his attention to a scuffle occurring ahead. He noticed three people in the vicinity of a parked motor vehicle. One of them was holding two jackets. Mr Charles particularly noticed that this person seemed to be holding the jackets as if endeavouring to keep them safe. He immediately thought a robbery was in progress.
Mr Charles instructed his partner to pull up in front of the black vehicle so as to block its exit. As this was occurring he noticed Mr Spratford swinging the broom but he did not see the broom striking any person. He also noticed one of the thieves chucking a helmet at Mr Spratford who was hit by this missile. This thief was obviously the accused.
As Mr Charles was leaving the vehicle the accused ran past him and headed, along the footpath, in a southerly direction. Mr Charles thought that he was holding one helmet. Mr Charles gave chase and at one stage closed upon him. He noticed the accused had a gash below the crown at the back of his head. It could have been 3 to 5 cm in length and was bleeding profusely. He called out to him: “You’re bleeding, give it up.” The accused replied, “Fuck off”.
Mr Charles then heard a “bang”. He turned around and saw the black motor vehicle come past. It stopped to pick up the accused. Mr Charles made a mental note of the registration number.
Mr Charles had not met Mr Spratford prior to the incident.
The accused gave oral evidence. Although the onus always remained on the Crown, I assessed the accused’s evidence in the same way as I did the other witnesses. It was open to me to accept or reject part of the evidence of each witness. The fact that I did not accept any particular part did not mean I should reject the balance of the evidence.
The accused conceded the theft. He said that having left the store, he and the other man ran to the black car. He first of all went along the driver’s side and then around to the passenger side of the vehicle. The other man was on the driver’s side. Mr Spratford appeared and the co-offender threw the keys to the accused. The accused, who is left-handed, tried to open the passenger side door with the key. In doing so, he placed the helmet that had previously been held by his left hand under his right arm.
He was then hit on the back of the head. He showed me the scar from the resulting wound. It is horizontal, about 3 cm in length, and located between the middle of the back of his head and his right ear.
The accused said that having been hit, he chucked one of the helmets to his left. He tried to grab the broom. He put his left hand up and his left finger was struck, and broken, by the broom. He put his hand on his head and noticed the blood. He ran off with one of the helmets. He noticed a man running behind him who was screaming at him. He told this person to: “Fuck off”.
The accused denied ever striking Mr Spratford with the helmet. He admitted that when he attended the hospital and spoke to the police he lied, offering a different version as to the cause of the injuries to his head and finger. This was no doubt a result of his desire not to concede his complicity in the theft.
Consideration
I accept entirely the evidence of Mr Charles. He was an objective, straightforward and overtly honest witness. I was also impressed with Mr Spratford, although it does not follow that I accept all of his evidence. I have no doubt he was telling the truth about the incident as he saw it. However I think it plain that parts of his evidence either defy common sense or must be seen in the light of his overall intent to effectively secure the release of his goods at all costs. I also detected in his evidence an element of outrage at the conduct of the thieves and an intent to ensure they did not get away with their crimes.
His enthusiasm to recover the goods of the family business was understandable. His enthusiasm to halt the escape of the thieves was equally understandable. His enthusiasm however, was not unbridled.
I did not find the accused to be an impressive witness. To start with, he is an admitted thief. His manner of giving evidence did not instill in me any confidence that he was doing his best to tell the truth. There are however, elements of his evidence that I accept but this is only because of independent reliable corroboration or an application of common sense in coming to a conclusion about the events that occurred.
The Crown’s case is that the accused, when initially confronted by Mr Spratford, lunged or lashed out at him with one of the helmets in a use of force designed to enable his escape. This action precipitated the blow to his head inflicted by Mr Spratford. There are a number of difficulties with this scenario:
(a)I cannot contemplate a mechanism by which the top of the broom, where there is the broken (not bent) blue plastic piece (Exhibit C), struck the back of the accused’s head if he was face-to-face with Mr Spratford. The injury is more consistent with a blow from the side which could have been inflicted if the accused was endeavouring to open the passenger side door and Mr Spratford was standing to his side.
(b)I can see no logical reason why the accused and his co-offender would both have tried to enter the vehicle through the passenger door.
(c)Mr Charles observed the accused throw a helmet at Mr Spratford, which struck him. He did not see Mr Spratford strike the accused. He did however, have a general view of the actions of the accused following the throwing of the helmet. This is consistent with the accused’s assertion that the blow to his head was inflicted before the helmet was thrown. In this regard, I only accept the accused’s version as to the timing. I do not accept his evidence that the helmet did not strike Mr Spratford.
(d)Mr Spratford obviously launched a concerted attack on the vehicle in order to prevent an escape. It is possible that he did not intend to strike the accused but that this occurred within the attack on the vehicle. This is consistent with Mr Spratford’s statement to the police that when he arrived, he pushed the accused. I do not accept Mr Spratford’s evidence that his memory is better now than it was the day after the event when he gave his statement to the police.
I am satisfied, and it is not in dispute, that Mr Spratford hit the accused with the broom. I am also satisfied that the accused threw a helmet at Mr Spratford and that Mr Spratford was struck by the helmet. I am not satisfied, however, that the latter event occurred before the former event. I am, in fact, positively satisfied that the blow to the head inflicted by Mr Spratford occurred before he was struck by the helmet.
What then is the effect of this conclusion? The Crown submitted that it made little difference because the accused was, in any event, trying to escape and the use of the helmet was part of that endeavour, no matter when it occurred.
The accused submitted that I could not be satisfied the Crown’s secondary reasoning could be established beyond reasonable doubt. This was because the escape was at least equally consistent with the accused endeavouring to flee the blows being inflicted upon him or the car by Mr Spratford.
It is possible there was an element in the accused’s flight of him trying to escape from the commission of his crime and also fleeing from further injury. I think this is probably the case. However, in order for the accused to be convicted I must be satisfied beyond reasonable doubt that he was escaping from the scene of the crime when using force. I do not think I can be so satisfied because of my conclusion that he had first been hit by Mr Spratford so that his subsequent movements were an endeavour to escape further injury. There is no doubt that the injury he received was significant and would justify him seeking to put distance between himself and Mr Spratford.
Accordingly, and I must say with some hesitation, but in recognition that the Crown must prove its case beyond reasonable doubt, the accused must be found not guilty of the primary charge in the indictment.
The accused remains to be sentenced in respect of the theft and I will consult the parties on the process to be followed to achieve that end.
Orders
I make the following orders:
(a)On the charge of aggravated robbery in company with an unknown man contrary to s 310(a) of the Criminal Code 2002 (ACT), the accused is found not guilty.
(b)The accused’s plea of guilty to the alternative charge of dishonestly appropriating property belonging to Joe’s Motorcycles Pty Ltd with the intention of permanently depriving the owner of the property, contrary to s 308 of the Criminal Code 2002 (ACT) is confirmed.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: V Wei Date: 7 October 2016 |
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