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R v Habkouk

R v Habkouk

Case [2005] SADC 109 19 August 2005

Breach of Contract

Unconscionable Conduct

Res Judicata

Fiduciary Duty

Admissibility of Evidence

Expert Evidence

Criminal Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HABKOUK
Reasons for Ruling of His Honour Judge Tilmouth
19 August 2005
CRIMINAL LAW
Particular offences - property offences - robbery - robbery and theft forming part of a criminal enterprise - alternative offences - theft held alternative verdict to robbery - accused liable to conviction for robbery even though only a party in joint enteprise to commit theft.
Criminal Law Consolidation Act (1935) (SA) ss 134, 137, 267, referred to.
R v Shillingford [1954] SASR 206; R v O'Brien (1911) 27 TLR 204; R v Lillis [1972] 2 QB 234; R v Salisbury [1976] VR 452; R v Cameron (1983) 2 NSWLR 66; 8 A Crim R 466, applied.
R v Van Ban Che (1988) 50 SASR 1; R v Story (2004) 144 A Crim R 370, 391 [103] (SA); Osland v The Queen (1988) 197 CLR 316, 345 [79], discussed.

R v HABKOUK
[2005] SADC 109
Background

The accused was arraigned, pleaded not guilty and placed in charge of the jury during the July sessions of this Court upon the charge of robbery, contrary to Section 137 (1) of the Criminal Law Consolidation Act(SA) 1935 (“The Act”).
The allegations against him, stated briefly, are that on Thursday 21 September 2003 he and three other men together entered Shiels Jewellers at Sefton Plaza, Sefton Park and stole a quantity of valuable jewellery. This theft is said by the prosecution to amount to robbery – at least in the case of this particular accused – because he used force (or threatened to use force) against an employee of the store, in order to escape from the scene of the offence ‘at the time of or immediately before or after’ the theft, as required by ss.137 (1)(a) and (b) of the Act.
After entering the store the four men including the accused, showed interest in several items of jewellery. The accused then separately engaged one of several store employees in conversation which progressed to the point of an apparent transaction for the purpose of purchasing two items of jewellery. The two of them moved away from the other three men to a counter near a cash register, where further discussion took place as to price, during which the three men near the display cabinet grabbed a fan displaying jewellery worth about $12,000 and ran from the store. The identity of those men was never ascertained by the police
At that time on the prosecution case, one of them yelled “go, go, go,” “hurry up take it,” or one of the store employees accused him ‘you were with them, they’re your mates stay here’, prompting the accused more or less immediately, to run from the store. This evidence of flight was led by the prosecution as showing a consciousness of guilt.[1] An attempt was made to restrain him by an employee, however he pushed her away with a wave of his arm thus freeing her grip and then…

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.

Continue reading R v Habkouk

Details

AGLC: R v Habkouk [2005] SADC 109
Case: [2005] SADC 109
Decision Date: 19 August 2005

CaseChat Overview and Summary

The District Court of South Australia considered a case against Habkouk, who was charged with robbery. The prosecution alleged that Habkouk, along with three other men, entered a jewellery store and stole valuable items. The prosecution further alleged that Habkouk used force or threatened to use force against an employee to escape, constituting robbery. The defence argued that theft was an alternative verdict to robbery and that the accused was not guilty of robbery if he was only an accessory to the theft. The court examined whether theft was an alternative to robbery under the Criminal Law Consolidation Act, and whether the accused could be liable for robbery if he was only complicit in the theft. The court found that theft was an alternative verdict to robbery and that the accused could be liable for robbery even if he was not the actual perpetrator of the theft, as long as he used or threatened force or was part of a joint criminal enterprise. The court overruled the defence's submission of no case to answer and allowed the case to proceed to the jury.

Orders