R v Habkouk - [2005] SADC 109

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 ran out of the store into a mall outside. He was stopped by a nearby store owner and florist.
[1] Refer R v Sutton (1986) 5 NSWLR 697, R v Melrose (1987) 30 A Crim R 332 (Qld), R v Power (1996) 87 A Crim R 407 (SA), R v Adam (1999) 106 A Crim R 510 (NSW)
The Issues
Offences under s 137(1) carry a maximum penalty of 15 years imprisonment. It is significant that the accused was not charged under

s 137(2)(a), which carries a maximum penalty of life imprisonment in the case of persons committing “robbery in company with one or more other persons”, an aggravated form of robbery attracting a maximum sentence of life imprisonment.
At the commencement of the trial of this matter the prosecution expressly disavowed any reliance upon s 137(2), on the basis that it would have been difficult to prove beyond reasonable doubt any force used by the accused was committed in company. On the facts of this case that concession would appear to be correct as the other three participants fled the scene before the use of force by the accused occurred, so there could not have been the use of force in company in the requisite sense. The prosecution case was that the accused was a party to a preconcert agreement to commit theft, or alternatively he aided and abetted the three men in carrying out the theft of the jewellery.
Defence counsel took a number of points during the course of preliminary argument, seeking the exclusion of certain items of evidence and later he made a submission of ‘no case to answer’ under two heads. These reasons deal solely with one issue arising during the preliminary argument, namely whether theft was an alternative verdict to robbery and the two bases put forward in support of the submission of no case to answer at the close of the prosecution case.
The Statutory Offence of Robbery
As to the first of these issues, since the Act did not provide expressly for an alternative verdict of theft, it was said that in itself was an indication Parliament intended there should be no such verdict. The further point was made that whatever the pre-existing position at common law or under the repealed statute, s. 137 forms part of a completely new and exhaustive statutory regime erected by the Criminal Law Consolidation (Offences of Dishonesty) Amending Act 2002, effective from 5 July 2003, leaving on its proper construction no room for the alternative verdict of theft.
Part 5 of The Amending Act repealed s 130 – s 166 inclusive. Section 137 provides: -
Division 3 -- Robbery
Robbery
137. (1)      A person who commits theft is guilty of robbery if –
(a)    the person –
(i)uses force, or threatens to use force, against another in order to commit the theft; or
(ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and
(b)the force is used, or the threat is made, at the time of, or immediately before or after the theft.
Maximum penalty: Imprisonment for 15 years.
(2)    A person who commits robbery is guilty of aggravated robbery if the person -
(a)    commits the robbery in company with one or more other persons; or
(b)has an offensive weapon with him or her when committing the robbery.
Maximum penalty: Imprisonment for life.
(3)     If 2 or more persons jointly commit robbery in company, each is guilty of aggravated robbery.
Example –
Suppose that A and B plan to steal from a service station. A assaults the attendant while B takes money from the till. In this case, each is guilty of robbery on the principle enunciated by the High Court in McAuliffe v R.[2] Robbery committed in these circumstances is to be treated as aggravated robbery. In other words, the principle expressed in subsection (2)(a) applies irrespective of whether all elements of robbery can be established against a particular person.
[2] (1995) 183 CLR 108
In the repeal of s 155 – s 158, the previous offences of robbery and stealing from the person (s 155) and robbery with violence (s 158) were replaced with new statutory offences of theft and receiving (s 134) and robbery (s 137) in their stead.
Alternative Verdicts per- amendment
Under the previous regime in operation before July 2003, one heavily based upon common law offences, a jury was entitled to return verdicts of simple larceny on a charge of robbery: R v Hanias.[3] In addition, s 157 then expressly provided for the return an alternative verdict of assault with intent to rob on a charge of robbery. Furthermore, in the case of robbery with violence under s 158 – an offence closely akin to the present offence of robbery - the jury could return an alternative verdict of assault with intent to rob: R v Shillingford[4] as well as a verdict of larceny: R v Desmond & Hall.[5] In Shillingford the Court of Criminal Appeal expressly noted with respect to the charge of robbery with violence: [6]
Robbery is an essential ingredient in that offence, as it is also in other offences mentioned in s 158. Where a person is charged with robbery with violence – or with robbery with aggravation – he is upon trial for robbery, although another ingredient must be proved if he is to be found guilty of the full offence …
[3] (1976) 14 SASR 137, 145
[4] [1954] SASR 206
[5] [1965] AC 960, 969-970
[6] (at SASR 211)
And so it was the position that on a charge of armed robbery the trial judge was entitled to direct the jury as to the alternative charge of robbery: R v Hackett[7], R v Fitzpatrick,[8] R v Pureau.[9]
[7] [1965] SASR 137
[8] (1988) 50 SASR 10
[9] (1990) 19 NSWLR 372, 47 A Crim R 238
These decisions largely, and if not entirely, reflect the common law position[10] uncomplicated by statutory changes, as summarised by Avory J, in R v O’Brien[11].
At common law a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences. In other words, it is not necessary to prove the offence charged in the indictment to the whole extent laid, provided that the facts proved constitute an offence punishable by law, of which the defendant may by law be convicted on the indictment.
[10] See a Table of the Principal Indictable Offences in Archbold's Criminal Pleading Evidence & Practice, 36th Ed. 4301 at 4328-4330
[11] (1911) 27 TLR 204, 208, 6 Cr App R 108,110
The common law then, embraced the principle that it was permissible to convict of a lesser offence if that lesser offence was an essential ingredient in the more aggravated offence charged: R v Desmond & Hall.[12]
[12] (above at AC 970)
Common Law and Statute
The question under consideration is whether the new statutory regime permits theft as an alternative to robbery in the absence of statutory prescription and in the absence of a specific alternative charge. It is somewhat surprising that Parliament has not expressly provided for an alternative verdict of this kind. It may be noted that so far as the repeal of the relevant part of the Act goes, the only alternative verdict expressly provided for is contained in s 134(6), enabling a jury on a charge of receiving to find a defendant guilty of theft. This is probably no more than a statutory recognition of the principle enunciated by the High Court in Gilson v The Queen.[13] It remains the only specific statutory alternative verdict permitted under Part 5.
[13] (1991) 172 CLR 353 and refer to R v Assheton (2002) 82 SASR 589
The defence also points to s 133 which provides Part 5 “operates to the exclusion of offences that exist at common law, except for the common law offence of conspiracy to defraud.” This section however throws no light on the subject under discussion because the prosecution seeks to have the statutory lesser offence of theft available for the consideration of the jury. If it were larceny at common law that section would operate to preclude it.
As time went on, and more and more statutory offences were created, the common law position with respect to alternative verdicts became as laid down by a special quorum of five judges in R v Lillis:[14]
On an indictment charging felony the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charge and, similarly, as regards misdemeanours; but except under statute a conviction for misdemeanour was not allowed on a charge of felony.
[14] [1972] 2QB 236, 240
The Court added [15] after referring to R v Springfield:[16]
The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words is the lesser offence an essential ingredient of the major one.
[15] [1972] 2 QB at 241
[16] (1969) 53 Cr App R 608
Lillis continued to be applied in the United Kingdom in the case of both common law and statutory offences: R v Hodgson[17] (indecent assault held to be open in a charge of rape, an assault being an essential ingredient of that offence), R v Wilson & Jenkins[18] (assault occasioning actual bodily harm available as an alternative to charges of inflicting grievous bodily harm or robbery), and R v Savage[19] (a verdict of assault occasioning actual bodily harm held a permissible alternative verdict on a count of unlawful wounding).
[17] [1973] QB 565
[18] [1986] 1 AC 242 (HL)
[19] [1992] 1 AC 699 (HL)
It must be said these decisions were made in the context of s 6(3) The Criminal Law Act 1967 (UK) which permitted a jury to find “an accused not guilty of the offence specifically charged in the indictment, but guilty of another offence where the allegations in the indictment amounted to or included (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial.” There is no equivalent to this provision within this jurisdiction and so far as I know in any other State or Territory of the Commonwealth of Australia.
The position in Australia
Nevertheless the position in the United Kingdom was embraced in Australia: R v Salisbury[20] (charge of assault held not to be an alternative to maliciously inflicting grievous bodily harm under s 19A of the Crimes Act 1958 (Vic), on the basis that an assault was not an essential element of inflicting grievous bodily harm),[21] R v Cameron[22] (assault occasioning actual bodily harm not available on a charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse, because ‘inflict’ did not necessarily include an allegation of assault),[23] and R v Van Bay Che[24] (whether robbery available upon a charge of armed robbery).
[20] [1976] VR 452, 454
[21] (at VR 460-461)
[22] (1983) 2 NSWLR 66; 8 A Crim R 466. Refer also to R v GWS Smith [1982] 2 NSWLR 490, 494
[23] (at NSWLR 70)
[24] (1988) 50 SASR 1. Refer also to R v Fitzpatrick (1988) 50 SASR 10
The judges in the three Australian cases cited above did not appear to regard the absence of an equivalent to s 6(3) of the Criminal Law Act (above) as providing any material distinction. Indeed Perry J in Che expressly noted the question under consideration was whether a common law offence (robbery) could be left as an alternative to armed robbery, a statutory offence.[25] In Cameron (above) the Court regarded the test proposed in Lillis (above) as ‘equally applicable’, with certain exceptions, such as where ‘the legislature has propounded a statutory Code in addition to any particular character of offence’ or where Parliament “has invoked a careful Statutory framework whereby certain alternative verdicts are specifically permitted …”[26] That is exactly the situation the defence contends for regarding the new regime of dishonesty offences created under Part 5 of the Act. The Victorian Court of Criminal Appeal in Salisbury (above) did not avert to s 6(3) of the Criminal Law Act, although its decision was subsequently followed in the United Kingdom, in R v Wilson[27] and on appeal R v Wilson[28] when s 6(3) remained in force.
[25] (above SASR at 5)
[26] (at NSWLR 68)
[27] [1983] I WLR 356, 361-362
[28] [1984] AC 263, 259-260 (HL)
Accordingly whether or not theft is available as a lesser offence to a charge of robbery under the Act is a matter of the proper construction of

s 137 in context, an exercise dependent on theft necessarily forming an essential ingredient in the offence of robbery itself. On that point it appears plain enough that this must be the case, as the pre-requisite to a conviction for robbery is for the accused to come within the express terms of s 137(1) “a person who commits theft”. That being the position, the only remaining question is whether the principles enunciated in O’Brien (above) and developed in Lillis (above), as approved in at least three Australian jurisdictions, continue to apply in the context of a wholly new statutory framework. Of course the old distinction quarantining alternative verdicts across the line dividing felonies and misdemeanours is no longer applicable in this State, due to the abolition of those categories of offence by s 5D of the Act.
An analysis of the decisions reveal the underlying principle at common law, in effect that the “greater includes the lesser,”[29] was not one dependant upon any particular consideration exclusive to the common law. Rather it was grounded in logic, entailing the relatively modest proposition that where the lesser offence was an essential ingredient in the proof of the primary offence, it was available as an alternative verdict even if not expressly charged,[30] but where the indictment against the accused included an allegation of that lesser offence.[31] The information laid in the matter currently before the court does just that: “… used … force … in order to escape from the scene of the theft.” As such, in the words of the Court in Shillingford (above), the accused was ‘upon trial’ for theft. There is no reason to suppose the situation is any different, simply because purely statutory offences are involved.
[29] R v Kelly [1964] 1 QB 173, 177; 48 Cr App R 1, 4
[30] R v McLaren (1992) 92 A Crim R 301,303 (SA), 189 LSJS 466, R v Aldridge (1993) 67 A Crim R 371, 376 (Gleeson CJ, Sheller JA and Campbell J) (NSW) citing R v Springfield (above)
[31] R v Winner (1989) 39 A Crim R 180, 181 (NSW)
This conclusion is consistent with the general observations of Doyle CJ in R v Perdikoyiannis[32], with those falling from Duggan J in R v Brady & Smythe[33], and with the approval by Gray J of both Springfield (above) and Cameron (above), together with his observation “common assault towards establishing assault with intent to rape, is an automatic alternative to the primary charge,” in R v Story.[34] Common assault has its origins in the common law, whereas an assault with intent to rape is purely statutory (s 270B), as to which there is no provision for a statutory alternative offence.
[32] (2003) 86 SASR 262, 269 [42-46]
[33] [2005] SASC 277 [35]
[34] (2004) 144 A Crim R 370, 391 [103] (SA)
It was these reasons which led to the ruling that theft was available to the jury in the trial of the accused in this matter as an alternative verdict to robbery

s 137 of the Act.
Express charge of alternative offences
The failure of the prosecution to expressly charge an alternative offence of theft on the Information is no deficiency given the above ruling. On the other hand prosecutors are well advised to charge offences in the alternative where they intend to rely on them. By expressly charging an alternative offence the prosecution also ensure there could be no procedural unfairness of the kind troubling Perry J in Che (above) and the Court of Criminal Appeal in Perdikoyiannis (above).
It may also be accepted that where the prosecution invokes the higher penalty imposed under s 137(2) of life imprisonment, it should specifically charge under that sub-section, at least as an element of aggravation: Kingswell v The Queen,[35] The Queen v Meaton,[36] R v Delphin.[37]
[35] (1985) 159 CLR 264, 279-281
[36] (1986) 160 CLR 359, 363-364
[37] (2001) 79 SASR 429, 121 A Crim R 550
If it arises, the difference in the maximum penalties under s 137(1) of 15 years imprisonment and under s 137(2) of life imprisonment, might be telling when determining whether s 137 creates one entire offence of robbery with aggravating features, or several separate offences, including robbery, s 137(1); robbery in company, s 137(2)(a); and robbery with an offensive weapon s 137(2)(b)[38].
[38] Kingswell v The Queen (above at CLR 275-276), R v Courtie [1984] AC 463, 471
Large questions arise as to whether or not s 137(1) and s 137(2) create separate and distinct offences, but that point does not fall for determination in these proceedings at the present time. Like questions almost certainly also arise in the case of s 168, 169 and 170 of the Act concerning charges of serious criminal trespass as suggested by Doyle CJ in R v Hook.[39]
[39] See R v Hook [2001] SASC 399 at [5]
Submission of “no case” to answer - theft

Returning to the submission of no case to answer, there were essentially two issues falling for determination. As to the first, it was submitted in order for there to be a conviction of robbery under s 137(1), it had first to be proved the accused was “a person who commits theft … s 137(1)”. That may be accepted. The further submission was made that in order to have committed such theft, the person concerned was not only required to be a principal offender but also one actually committing the theft, by dealing personally with the property concerned as proscribed by s 134(1). This contention may not be accepted.
The flaw in the submission is that theft may be committed by the actual perpetrator, principals either in the first or second degree and accessories, other than accessories after the fact. Those categories are treated for the purpose of the common law, and subsequently under statute, as principal offenders.[40]
[40] R v Khammash (2004) 89 SASR 488, 496-497 [54]
The position at common law was summarised by McHugh J in Osland v The Queen [41]:
The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely.
and further:[42]
However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concept or agreement with that person to commit the crime: R v Lowery and King (2) [1972] VR 568. In that category, the person present as a result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert: R v Hurse (1841) 2 M & ROB 360 at 361; [174 ER 316 at 317], is equally responsible for the acts of the others or other.
[41] (1998) 197 CLR 316, 345 [79], and refer The Queen v Darby (1982) 148 CLR 668
[42] (at CLR (343) [72])
For practical purposes the situation is exactly the same under the Act. Section 267 of the Act provides:
267—Aiding and abetting
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
This provision replaced s 269 of the Act, by section 9 of the Criminal Law Consolidation Act (Felonies and Misdemeanours) 1995 (SA), which abolished the common law distinction between felonies and misdemeanours. It is a statutory recognition of the principle reflected by the common law, that a person found guilty of offence because of complicity, was guilty as a principal offender. Accordingly the first submission of “no-case” to answer failed.
Submission of no case to answer – complicity in theft or robbery?
The second submission was more substantial, and correspondingly more difficult. It was that the accused could only be guilty of robbery through his complicity in that robbery with the other three men or accomplices. That required proof of the commission of robbery by them. Since there was no evidence any of those other “accomplices” had used any force, or were not a party to the force used by the accused, they could not have committed robbery and therefore the accused could not be found guilty of robbery as an accessory to their crime of theft. At first sight this line of reasoning has its superficial attractions, yet a closer examination of the legislation reveals a contrary view.
Even though the prosecution expressly disavowed reliance on s 137(2) in this case, it may be seen that there is a dichotomy between s 137(1) and

s 137(2). The former relates to theft which becomes robbery once the requisite degree of force is used and carries a maximum of 15 years imprisonment. In contrast, the latter deals wholly with robbery committed in breach of s 137(1) and creates classes of aggravated robbery, when committed in company or when an offensive weapon is brought to the scene of the crime. These carry, as already noted, a maximum penalty of imprisonment for life.
The example given in the statute apparently relates to s 137(3), and the reference to McCauliffe v The Queen[43] does not throw any light on the issue at hand. I have ignored the example for the purposes of these reasons. The Acts Interpretation Act1915 (SA) provides no guidance to the court as to what assistance it must derive from examples provided in legislation such as this, and since the court is required by s 19, in effect, to disregard headings to sections, marginal notes and footnotes, the safest course would appear to be to ignore the examples as well.
[43] (1995) 183 CLR 108
Ultimately the resolution of the point boils down to one of construction; for the purposes of accessorial responsibility under s 137(1)(a) or (b) of the Act; must the accused be a party to the commission of theft, or to the commission of robbery? If the latter the point is good, if the former it must fail.
Had the accused been party to a pre-concert agreement in which the use of force at the time of or immediately after the commission of the theft was a contingency that might have been in contemplation of the participants, including the accused, and therefore fell within the scope of a joint criminal purpose, the accused and his accomplices are all guilty of robbery under s 137(1) on established common law complicity principles:[44] However the Crown did not rely upon that route as a means of fixing the liability of the accused.
[44] Johns v the Queen (1980) 143 CLR 108, 111-112, 116, 168-169, McAuliffe v The Queen (1995) 183 CLR 108 113, 115, Gillard v The Queen (2003) 78 ALJR 64, 84 [118-119], R v Khammash (above)
It is significant that s 137(1) deals with theft and robbery, whereas

s 137(2) and s 137(3) deal solely with aggravated forms of robbery. Convictions under those latter provisions are predicted upon proof of theft with force under s 137(1). A proper construction of s.137 taken as a whole reveals that liability for conviction on a charge of robbery under s 137(1)(a) and/or 137(2)(b), is “both joint and several”,[45] whereas the liability to conviction for robbery committed in company under s 137(2)(a) and (3), is always joint.
[45] R v Lao & Nguyen (2002) 5 VR 129, 165 [73]
This preliminary conclusion is reinforced by the fact that it is not necessary for there to be a conviction of the other offenders or participants before the accused could be convicted: Osland v The Queen (above), R v Deane,[46]
[46] (1996) 88 A Crim R 36 (Tas)
[47] (2002) 135 A Crim R 117 (Vic)
R v Ilivoski.[47]
Accordingly it must follow that for the accused to be convicted of robbery under s 137(1), it is sufficient for him to be criminally complicit in the commission of theft, and his liability for conviction for robbery then depends on further proof that he used or threatened to use the proscribed force,[48] or the force used by his accomplices was an incident in a pre-concert agreement or a contingency of a common purpose between them all.
[48] In that case he is 'personally' guilty R v Merriman [1973] AC 584, 592 A-B
It followed the second basis of the submission of “no case” to answer was overruled. The construction put forward by defence counsel yields unusual and impractical results. Assume the jury were satisfied the accused was guilty of theft as an accomplice with the three other offenders, but entertained a reasonable doubt as to the use of force. On that contingency he was entitled to an outright acquittal. Assume alternatively the accused unexpectedly used force by producing an offensive weapon to seriously injure a person in order to commit the theft or to escape, he nevertheless remains on the defence submission entitled to a complete acquittal under each of s 137(1)(a) and (b), and s 137(2)(b). Such consequences seem neither right, nor intended by Parliament. Indeed the submission tends to assume Parliament turned its mind to and rejected the prospect of alternative verdicts under Part 5 of the Act altogether. Had a charge been pressed under s 137(3), then the submission would be on much firmer ground.