R v MacDonald - [2007] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MACDONALD
Criminal Trial by Judge Alone
[2007] SADC 3
Reasons for the Verdict of His Honour Judge Robertson
22 January 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused charged with Attempted Aggravated Robbery - elements of the charge - allegation that the Accused with a knife attempted to rob person of $10 in shopping centre car park - evaluation of evidence of alleged victim and Accused - reasonable doubt arising on the evidence - not guilty.
Criminal Law Consolidation Act 1935 ss 137(2), 270A , referred to.

R v MACDONALD
[2007] SADC 3
Judge Robertson
Criminal

Jason Robert MacDonald, (“Accused”), is charged on Information with the offence of Attempted Aggravated Robbery, contrary to Sections 137(2) and 270A of the Criminal Law Consolidation Act 1935 (“the Act”). The charge arises following an incident which occurred on 14 December 2004 at the Black Forest Shopping Centre. Particulars of the charge are that the Accused, whilst armed with a knife, attempted to commit a theft of money from Gary Robert Harrop by threatening to use force against Mr Harrop and that the threat was made at the time of or immediately before the attempted theft.
The Accused has pleaded not guilty to the charge. He elected to proceed to Trial by Judge alone.
The charge is that of Attempted Aggravated Robbery. The Crown must prove the following elements of the charge beyond reasonable doubt:
·First, the Accused intended to commit robbery whilst having an offensive weapon with him at the time of committing the robbery;
·Secondly, the Accused attempted to carry out that intention.
To amount to an attempt to commit an offence, an accused person must perform some act which is a step towards the commission of the specific offence. In other words, in order to constitute an attempt, there must be some real step taken towards the commission of the specific offence. The act must go beyond mere preparation and must be immediately and not merely remotely connected with the commission of the offence. Once the relevant conduct, combined with the intention, has proceeded far enough to amount to an attempt to commit the crime, it does not matter in law how it happened that the attempt failed. A person does not erase what has already occurred by voluntarily desisting in going further, after the person has taken a step or steps towards the commission of the specific offence.
The specific offence, in this case, is Aggravated Robbery. Whilst the offence charged is that of Attempted Aggravated Robbery, it is necessary to identify the elements of the offence of Aggravated Robbery for the purpose of dealing with the elements of the charge of Attempted Aggravated Robbery. Where there is a charge of Aggravated Robbery, the following four elements need to be proved beyond reasonable doubt:
First, that the Accused has committed a Theft. Theft is, in itself, an offence. The elements of Theft which need to be proved beyond reasonable doubt are:
One, that the Accused has dealt with property, in the sense that he has taken property;
Two, that he did so dishonestly.
There are two limbs to acting dishonestly:
The first limb is that the Accused must act dishonestly according to the standards of ordinary people;
The second limb is that the Accused knew at the time that his conduct was dishonest.
Three, that the Accused dealt with the property, in the sense of taking it, without the owner’s consent;
Four, that at the time of the dealing with the property the Accused intended to deprive the owner permanently of the property.
Secondly, that the Accused used or threatened to use force in order to commit the Theft.
Thirdly, that the force was used or threatened at the time of, or immediately before, or after the Theft.
Fourthly, that the Accused had an offensive weapon with him when he was committing the Robbery. Relevantly for this Trial, an offensive weapon is an article that a person has for the purpose of causing personal injury, or in circumstances in which another is likely to feel reasonable apprehension that a person has it for the purpose of causing personal injury.
Returning for a moment to the elements of the charge of Attempted Aggravated Robbery, the Crown must prove beyond reasonable doubt that the Accused intended to commit the offence of Aggravated Robbery, the elements of which I have identified. Further, it must prove beyond reasonable doubt that the Accused took a step towards the commission of that offence.
I have mentioned that the Crown needs to prove each element of the offence charged, beyond reasonable doubt, before the Accused can be found guilty of the offence charged. The Accused comes before the Court with a presumption of innocence in his favour. The onus of proving the charge is on the Prosecution. There is no onus on the Accused. The Accused does not have to prove anything.
I now turn to consider the evidence given in the Trial. The Crown called three witnesses, namely, Ms Josephine White, the alleged victim Gary Harrop and Detective Peter Wilkinson. The Accused also gave evidence. With respect to the evidence of Mr Harrop and the Accused, there was some common ground. The points of conflict mainly centred about the conversation held between Mr Harrop and the Accused, the Accused’s conduct during the conversation and the subsequent conduct of the Accused whilst he was at the Shopping Centre.
The Crown case relies almost entirely upon the evidence of the alleged victim, Mr Gary Harrop. I need to be satisfied beyond reasonable doubt that he is a reliable, accurate and truthful witness with respect to the incident he described between the Accused and himself at the Shopping Centre if I am to find the Accused guilty of the charge. It is not disputed by the Accused that he was the person involved in the incident with Mr Harrop. Indeed, it was an agreed fact that he was the person who alighted from the motor vehicle and spoke with Mr Harrop at the Black Forest Shopping Centre on 14 December 2004.
Mr Gary Harrop said that at about 4.15 PM on 14 December 2004, he was at the Black Forest Shopping Centre. He said that he was waiting on the footpath for a friend, Ms Josephine White, when a man alighted from the front passenger seat of a motor vehicle parked in the car park of the Shopping Centre, and walked quickly in his direction. That man was the Accused. He said the engine of the car from which the Accused alighted remained running.
Mr Harrop said that the Accused stood in front of him at a close distance and said words to the effect, “Hey, Mate, have you got twenty dollars?” He said that the Accused said his name was Jason Roberts “or something like that” and said that he was not a bum but was stuck for something at Christmas time. Mr Harrop was not entirely clear about what the Accused said, but Mr Harrop said that the Accused “… gave me some sort of story”. He said that he felt threatened by the Accused’s presence.
Mr Harrop said that he told the Accused that he did not have twenty dollars but did not want to see somebody stuck for anything at this time of the year so he offered him ten dollars. He said that as he drew the ten dollars from his wallet, the Accused asked him whether he could have fifteen dollars. Mr Harrop refused and gave the Accused the money. It was his evidence that the Accused then produced a flick knife from the pocket of his pants and held it in the open palm of his hand. He said the Accused held his finger over the button which operated the blade of the knife and said words to the effect, “I suppose there would not be twenty dollars if I had one of these.” The Accused said he could not remember if the blade was exposed. Mr Harrop said that because he did not want to antagonise the Accused he responded by saying words to the effect, “No, I wouldn’t have any use for one of those.” He said that he made the statement because he could not think of anything else to say and in the hope that the Accused would think he was dumb.
It was Mr Harrop’s evidence that after he said those words, the Accused darted past him and went into the IGA Supermarket, which was a short distance from where they were both standing. He said that the Accused was in the IGA Supermarket for up to five minutes. He said that after the Accused had entered the Supermarket, his friend, Jo White, approached him and they had a discussion. He said that he observed the Accused return to the car from which he had exited earlier and sit in the front passenger seat. He said the car moved fairly quickly out of the car park.
Mr Harrop said that when he returned home from the visit to the Shopping Centre he telephoned the Police and reported the incident.
The evidence of Josephine White was of little assistance. She said that she was a friend of Mr Harrop and had met him, by chance, at the newsagent’s shop at the Black Forest Shopping Centre. She said that she also spoke to Mr Harrop a short time later, when he was standing just outside the Supermarket near the corner of the Video Ezy Shop. She said that after they walked a short distance together, Mr Harrop directed her attention to a car which was passing the Video Ezy Shop. In that car she observed a woman driving and a male passenger. She said that when she observed the motor vehicle it was travelling at a fast speed.
Detective Wilkinson said he attended at Mr Harrop’s residence at about 5.30 PM on 14 December 2004 and spoke to him about an incident which occurred at the Black Forest Shopping Centre. He said that as a result of that conversation, he attended a residence at Elizabeth Downs at about 10 PM and spoke to the Accused. The conversation was recorded by a video camera. The videotape was tendered in evidence and played. During the course of the conversation, the Accused denied that he had approached a male in the Black Forest Shopping Centre on that day and asked for money. Shortly thereafter, he refused to answer any further questions. With respect to his refusal to answer any further questions, I acknowledge that the Accused was exercising his right to refuse to answer questions from the Police. I do not draw any adverse inference against the Accused by virtue of his having declined to answer questions from the Police.
I mentioned that the Accused gave evidence. I acknowledge that he was not obliged to give evidence. It is my task to assess the Accused’s evidence and the weight to be attached to it, in the same manner as I assess the evidence of other witnesses.
The Accused said that shortly before 14 December 2004, he commenced a relationship with a woman by the name of Katrina Taylor. He said, on 14 December 2004 he was in a vehicle driven by Katrina Taylor, when he asked her to stop at the Black Forest Shopping Centre. He said at the time he did not have any money. He said he asked her to stop at the Shopping Centre so that he could go “cold biting”. The Accused said that by “cold biting”, he meant that he intended to approach people in the Shopping Centre and ask them for money. It was his evidence that he initially alighted from the car and asked a few people if they had any spare cash. He said that he did not receive any money from any of those people.
The Accused said that after he returned to the motor vehicle, he observed Mr Harrop having a smoke. He said he approached him and introduced himself as “Jason Robert MacDonald”. He said that he said words to the effect that he was not a bum and asked Mr Harrop whether he could spare a couple of bucks. He said that he told Mr Harrop that he was low on petrol. He said that Mr Harrop said words to the effect, “Would ten dollars help?” The Accused said that as Mr Harrop was taking money out of his wallet, he took a flick knife out of his pocket and held it in the palm of his hand. He said that he then said to Mr Harrop words to the effect, “Would you give me an extra ten dollars if I give you that?” He said the man said, “No, I would not have any use for one of those, don’t be stupid.” He said the man gave him the ten dollars and he walked into the Supermarket. The Accused said he was careful to hold the knife in the open palm of his hand, as he thought that the production of the knife may frighten the man. He said that after this, he put the knife back in his pocket. The Accused said that he had offered the knife for sale to some of the other people he approached during the course of his time at the Shopping Centre, but no one was prepared to purchase it. He said that after leaving the Supermarket, he returned to the motor vehicle being driven by Katrina Taylor and they drove out of the car park.
The Accused denied that at the time he produced the knife, that he intended to rob Mr Harrop of a further ten dollars. He also denied that he said words to the effect, “There wouldn’t be twenty dollars if I’ve got one of these, would there”, at the time he produced the knife, as was stated by Mr Harrop in his evidence.
The Accused said there were two reasons for falsely denying to Detective Wilkinson, when he attended his residence on that night, that he attended at the Black Forest Shopping Centre earlier in the day and that he had approached a man and produced a knife. He said in the first place, some years before, he had been falsely accused of assaulting a woman and taking her handbag. He said he thought about that at the time he was spoken to by the Police that evening. He also said he thought about the fact that he knew he had asked people for money and that he had a knife in his possession. He said that he was aware that the possession of a knife was in breach of his Parole. He said that he had been released from gaol earlier on Parole.
The Accused said that Katrina Taylor had given him the knife a couple of days before 14 December. He said that the knife’s switch did not work when the button on the knife was activated. He said the only way to open the knife was manually.
To find the Accused guilty of the charge, I need to be satisfied beyond reasonable doubt that at the time the Accused produced the flick knife, it was his intention to rob Mr Harrop of some money. To reach this conclusion I need, in the first instance, to be satisfied beyond reasonable doubt that, at that time, the Accused said words to the effect, “I suppose there would not be twenty dollars if I had one of these.” The Crown relies upon those words and also the conduct of the Accused at the time, and subsequently, as described by Mr Harrop, to prove the intention of the Accused was to rob Mr Harrop. It is for this reason that I need to be satisfied beyond reasonable doubt that Mr Harrop is a truthful, reliable and accurate witness. Of course, those specific words, as described by Mr Harrop and the Accused’s conduct, as stated by Mr Harrop, are not to be considered in isolation. Those words need to be considered in the context of the conversation I find took place between them. However, the words which I have specifically referred to, which Mr Harrop asserts were expressed by the Accused, are central to the Crown’s case.
It is also the Crown case that I should be satisfied beyond reasonable doubt that the producing of the knife and the uttering of the words, asserted by Mr Harrop, was a real step taken towards the commission of the offence of Aggravated Robbery.
As I said earlier, the Accused denied that he said those words. He accepts that he produced the flick knife. He said he held it in the palm of his hand, with the blade not open. The Accused said, after Mr Harrop had offered him ten dollars and he produced the flick knife, he said words to the effect, “Would you make it $20 (or would you give us an extra $10) if I give you that.”
It can be seen that there is not a great difference between the evidence of Mr Harrop and the Accused regarding the words said at the time of the production of the knife. However, there is a significant difference in the meaning of those words and their effect. On Mr Harrop’s version, I am asked to be satisfied beyond reasonable doubt that the knife was being used as a threat in order to extract a further ten dollars from Mr Harrop. On the Accused’s version, he was offering the knife to Mr Harrop if he would give the Accused a further ten dollars.
Having said that, I acknowledge that it is not a question of preferring one version or the other. As I mentioned earlier, the onus is upon the Crown to prove beyond reasonable doubt that the Accused is guilty of committing the offence charged. The Accused does not need to prove anything.
With regard to the evidence of Mr Harrop, I thought that at all times he tried to tell the truth. Of course, that is only one step in the process of evaluating his evidence. It is necessary to consider whether he is also a reliable and accurate witness, particularly with regard to the evidence central to the issue of the Accused’s intention.
With respect to the evidence of the Accused, I found his evidence, at times, unconvincing. His evidence that he introduced himself to Mr Harrop as “Jason Robert MacDonald” and his evidence that he sought the address of Mr Harrop so he could pay him back the ten dollars Mr Harrop had willingly given to him was unconvincing and implausible. I also thought that at times he was not relying upon his memory and was impermissibly reconstructing when giving his evidence.
I should also mention the false denials which the Accused made to the Police and his explanation for making the false denials. With regard to that evidence, I need to make it clear that its only relevance is with respect to the evaluation of the Accused’s credit. They can have no other relevance or purpose.
There is generally common ground between the evidence of Mr Harrop and the Accused regarding the manner in which the Accused approached Mr Harrop and the contents of the early part of the conversation between them, although there were some differences, particularly with respect to the terms of the first request for money by the Accused. They both agreed that Mr Harrop offered to give the Accused ten dollars and he handed that amount to the Accused. There was the difference in their evidence regarding what the Accused said after he produced the knife. Their evidence is similar regarding the response made by Mr Harrop at that time in that he said words to the effect that he would not have any use for one of those (referring to the knife).
I must say the evidence regarding the response by Mr Harrop troubles me. It sits comfortably as a response to an offer made to sell or give the knife to him. Mr Harrop explained that he gave that response because he could not think of anything else to say and that he wanted to appear dumb to the Accused. He said he felt threatened and intimidated by the Accused’s presence. Mr Harrop said he felt those emotions even prior to the production of the knife. He said he felt that way as a result of the Accused’s presence in close proximity to him and requesting money from him. Indeed, he said that he did not wish to give him the ten dollars he offered the Accused, but felt it was judicious to give him some money when he asked for it.
I can understand that Mr Harrop may have felt intimidated by the presence of the Accused. To be unexpectedly confronted by a man in a shopping centre could have the effect of causing apprehension in a person. Nevertheless, the response by Mr Harrop at the time of the production of the knife is a strange one, if the Accused had made the statement attributed to him by Mr Harrop at that time.

As I mentioned earlier, the conversation between them at the time of the production of the knife should not be viewed in isolation. The conduct of the Accused at the time is also a relevant factor in determining the Accused’s intention. Mr Harrop said that at the time the Accused produced the knife in his open hand, the Accused’s finger was over the button which released the blade of the knife. He also said that after he refused to furnish the Accused with any further money, above the ten dollars, he said that the Accused’s eyes were moving quickly from side to side and then, without another word being spoken, the Accused ran into the Supermarket.
I have a concern with this evidence. I doubt that Mr Harrop could recall whether the Accused had his finger over the button, or that the Accused’s eyes were moving quickly from side to side. These are such small details. It is now over two years since the incident took place at the Shopping Centre. The frailty of human memory provides a basis for those doubts. The frailty of memory is clearly demonstrated by Mr Harrop’s evidence regarding whether the blade of the knife was showing. In the first instance, Mr Harrop said he could recall seeing the blade. However, a moment later, in his evidence, he said he could not honestly remember if he did see the blade. The Accused denied that the blade was opened at the time.
Another matter that causes me some concern regarding the reliability of the evidence of Mr Harrop, is his evidence that immediately after he refused to furnish any further money, the Accused ran into the Supermarket. According to his evidence, although the Accused was using the knife to threaten him in order to extract more money, the Accused simply accepted the rejection and, without saying another word, departed. I am also troubled by the evidence of Mr Harrop that upon the production of the knife, the Accused simply demanded a further ten dollars, in addition to the ten dollars he had been given. There was no demand for all the money Mr Harrop held in his possession. It would be strange that in those circumstances, the Accused would have confined his demand to a further ten dollars.
The evidence of Mr Harrop is that the Accused entered the Supermarket and remained in there for up to five minutes. The Accused agreed that after he left Mr Harrop, he entered the Supermarket and, thereafter, returned to the car driven by Ms Taylor. If the Accused had said words and conducted himself in a manner which indicated his intention was to rob Mr Harrop, then it would also seem a strange action to immediately enter the Supermarket and remain therein for some time. The motor vehicle being driven by Ms Taylor was in close proximity to the position where the Accused and Mr Harrop were standing. In the circumstances described by Mr Harrop, it might be expected that the Accused would have immediately returned to the motor vehicle with the intention of departing the car park.
I have no doubt that with respect to all of the evidence of Mr Harrop, which I have referred to, that he was endeavouring to tell the truth. I feel that with regard to some of his evidence that he did not specifically have a recall but was unconsciously reconstructing. I am also concerned about the reliability of his evidence regarding the central part of the conversation which took place at the time of the production of the knife and his evidence of the conduct of the Accused about that time. As a result, I have a reasonable doubt that it was the intention of the Accused to rob Mr Harrop. I think it is a reasonable possibility that the Accused was offering the knife to Mr Harrop in exchange for more money.
As I have said, I have no doubt that Mr Harrop was an honest witness. My concern related to his reliability and accuracy on the critical parts of the evidence. As I said earlier, I needed to be satisfied beyond reasonable doubt that Mr Harrop was an honest, reliable and accurate witness, particularly on the critical aspects of his evidence, if the Accused is to be found guilty of the offence. I am not so satisfied, beyond reasonable doubt, regarding his reliability and accuracy on that evidence.
Accordingly, I find the Accused not guilty of the offence charged.