R v Mazzara

[2007] NSWDC 102

CITATION:	R v Mazzara [2007] NSWDC 102 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 April 2007, 17 May 2007
JUDGMENT DATE:	17 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	Verdict of not guilty; The accused is acquitted of the count.
CATCHWORDS:	Trial by Judge alone - Robbery armed with dangerous weapon - Intent: Accused's capacity - Defence of claim of right - Accused's belief - Prasad direction
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900 District Court Rules Mental Health (Criminal Procedure) Act 1990
CASES CITED:	R v Minani [2005] NSWCCA 226 R v Damic [1982] 6 ACrimR 35 R v Fuge [2001] NSWCCA 208 R v Langham (1984) 36 SASR 48 R v Lopatta (1983) 35 SASR 101 Fleming v The Queen (1998) 197 CLR 250 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45
PARTIES:	Regina Giuseppe Mazzara
FILE NUMBER(S):	06/21/3272
COUNSEL:	Crown: C. Everson Defence: N. Mikhaiel
SOLICITORS:	DPP: E. Winbourne Defence: K. Browne

- 1 -

JUDGMENT

Indictment

1 On 27 April, 2007 the accused, Giuseppe Mazzara, was arraigned on an indictment brought under section 97(2) of the Crimes Act, 1900, as follows:

On 15 August, 2006, at Liverpool in the state of New South Wales, being armed with a dangerous weapon, namely an imitation self-loading pistol, robbed Hilal Akloudis of $40, the property of Hilal Akloudis, trading as Mitre 10 Handy.

2 The accused pleaded not guilty.

Election: Trial by Judge alone

3 Pursuant to section 132 of the Criminal Procedure Act 1986, the accused elected to be tried by a Judge alone. He had, before making the election (exhibit 1), sought and received advice from his counsel, Ms Mikheal, and his solicitor, namely, Ms Kellie Browne from the Legal Aid Commission.

4 The election - made with the consent of the DPP - was made on 26 April, 2007, ie., prior to the date fixed for the trial.

5 The trial commenced on 27 April, 2007. The trial was then adjourned to 17 May, 2007 to permit evidence to be obtained as to the accused’s mental and psychiatric condition and for counsel to make submissions in relation to the application by Defence Counsel for a Prasad direction.

6 Submissions were received from the Crown (exhibit 6). Having received the Crown submissions, the defence declined to make any further submissions.

Evidence

7 Evidence was given by the OIC, Det S/C Kniepp. By agreement of counsel for the accused, the OIC read onto the record the statements of the principal witness, the owner of the store said to have been robbed, Mr Hilal Akladious and his assistant, Mr Chris Vargas.

8 The statements of the arresting officer were also read as was the relevant part of the expert’s certificate as to the nature of the imitation pistol and its status under the Weapons Prohibition Act as a prohibited weapon.

9 The ERISP of the accused was also viewed and heard by me along with a transcript of the interview received as an aide memoire.

10 The remaining statements in the Crown brief, not going to matters of controversy, were tendered as exhibits and read by me.

11 On the resumption of the matter, the Defence said that a psychiatric report had been prepared and served that morning but that it was not proposing to rely on it at this stage.

Specification of findings of fact and principles of law to be applied

12 Pursuant to section 133 of the Criminal Procedure Act, I am required to specify the principles of law applied by me and the findings of fact on which I have relied. These matters are set out below.

13 The defence reiterated the application that I give myself a Prasad direction, at this stage on the basis that the Crown case taken at its highest could not satisfy the elements of the case beyond reasonable doubt.

Elements

14 Given that application, it is appropriate that I set out the elements of the offence.

15 In this case, those elements are as follows:

- That the accused

- Robbed (i.e. an intent to steal/permanently deprive)

- The complainant, here Mr Hilal Akloudious

- While armed

- With a dangerous weapon, here, an imitation pistol

Intent : robbery : accused’s capacity

16 Pursuant to section 428B(2) (b) of the Crimes Act, 1900, this is an offence of specific intent being an offence where an element of the offence requires the accused to intend to cause the specific result necessary for the offence.

17 Consistently with the decision of the Court of Criminal Appeal in R v Minani [2005] NSWCCA 226 (per Hunt AJA, Spigelman CJ and Howie J), even where there is no dispute as to the facts, including where there is an agreed statement of facts, I need to make each of the findings necessary on whether the elements of the offence have been satisfied beyond reasonable doubt to establish the guilt of the accused of the crime charged.

18 The Court of Criminal Appeal has made it clear in that decision – see Hunt AJA at [32] - that proof of the specific intention which the Crown must prove is not easy where there is a mental illness involved.

Matters of agreement/non-controversy

19 In terms of factual matters under count 1, the Crown needs to establish that the offence occurred on 15 August, 2006 at Liverpool in New South Wales. These matters have been conceded by counsel for the offender and in any event I am satisfied on the evidence that those matters are established.

20 It is also agreed that there is no issue as to the identification of the offender and that the chain of custody of the relevant exhibits, in particular, the imitation pistol used and the crowbar identified by the accused and the complainant.

21 In any event I am satisfied that the evidence – especially on the statements of the owner/proprietor of the store the subject of the robbery, Mr Hilal Akloudious and the shop assistant, Mr Chris Vargas - establishes those matters beyond reasonable doubt.

Evidence: Crown

22 Mr Akloudious said that a person, who I am satisfied was the accused, went into his store at Liverpool on 15 August, 2006 at about 8:40 am. He demanded ‘his’ money back, and when that was not forthcoming from Mr Akloudious, produced a silver coloured pistol and pointed it at Mr Akloudious at the same time saying ‘Give me my money back’ and then started counting.

23 Mr Akloudious walked back to his counter with the man following him pointing the pistol at his back. Mr Akloudious gave the man two twenty dollar notes, which were taken by the man who was still pointing the gun at him.

24 Mr Akloudious was at all relevant times fearful that if he hadn’t given the man the money demanded he would have shot Mr Akloudious or other people present in the shop.

25 All the essential matters of Mr Akloudious’ evidence were confirmed by his shop assistant, Mr Chris Vargas who was present at the time.

Accused’s presentation

26 At the time – being an August morning in winter – the accused was wearing red and white striped socks. He was not wearing shoes. He was also wearing pyjamas and a grey coloured beanie. Prior to the accused going into the shop he was pacing back and forward outside.

27 The accused didn’t respond to various comments addressed to him by Mr Akloudious. Mr Vargas’ evidence was that the language used by the accused didn’t make sense. The accused at various times also referred to ‘the people upstairs’ having taken his crowbar without any apparent relevant context.

28 The police, who were immediately notified of what had happened by Mr Akloudious and given a detailed description of the accused, arrested the accused at another shop within the immediate vicinity of the Mitre 10 store within less than a half an hour. It appears that the accused had gone to that store with the $40 to buy cigarettes. The police located the imitation pistol in the accused’s jacket pocket.

29 I am satisfied from the evidence, in particular the evidence of Mr Akloudious, Mr Vargas, the ERISP, and the photographic and CCTV evidence of the store that the accused was the person who committed the acts on the day and in the place named in the indictment.

30 In addition to these factual matters, the Crown needs to establish beyond reasonable doubt that the weapon used was an imitation self-loading pistol and that it was a dangerous weapon. The pistol was tendered.

31 I am satisfied on the evidence of Constable Peter Lindsay in his certificate dated 26 October, 2006 that the item the accused used was a Chinese manufactured imitation of a self-loading pistol, being an imitation of a firearm for which a licence is required and which is a prohibited weapon for the purposes of the schedule clause 3(2) of the Weapons Prohibition Act.

Evidence: accused

32 The accused’s account evident from the ERISP was to the effect that he had bought a crowbar from Mitre 10. It disappeared from the balcony to his unit. Some days later, on the day of the alleged offence, he went to the Mitre 10 store to buy some screws. He saw a crowbar and formed the view that it was his crowbar because of the pattern of dust and some texture marks.

33 He said that he demanded his money back. When that was refused he became angry and produced the imitation pistol to get his money back. He acknowledged that he had done the wrong thing but said that he had no intention of hurting anyone. He had no reason why he had the pistol on him at that time.

Accused’s mental capacity

34 In earlier proceedings, a psychiatrist, Dr Samuels has given his opinion that, notwithstanding the accused’s diagnosis, he is not a mentally ill person within the meaning of the Mental Health Act. He has associated perceptual abnormalities

35 The Crown accepts that the accused has a well documented history of chronic schizophrenia and that his mental health deteriorates when he does not comply with his medication.

Medication

36 The accused has been involved in a medication regime consisting of an anti-psychotic drug, 500 mg Epilim, 10 mg Zyprexa and an injection.

37 The evidence establishes that the accused has been hearing voices as part of his psychotic illness. He has said that he has heard voices including from the television and radio as well as from family members. He has said that when he is back on medication, the voices are ‘switched off.’

38 The accused during the ERISP made a number of comments which could best be described as bizarre and indicating some dissociation from reality – Q/A 54 (I have 500 grandchildren to 400 women; Q/A 91 I want a million dollars’; Q/A 131/132 ‘Mel Gibson made me do it and gave me $1000’; Q/A 131. ‘The voices’ told him the crowbar was back at the Mitre 10 store (Q/A 152).153 ‘I heard the voices…’; Q/A 246 ‘I struggled with a dream’; Q/A’ the voices tell me …the nuclear…’. There are other statements where it is clear that even in the environment of an ERISP he was insisting on the return of ‘his’ $40 – Q/A 354/359.

Matters personal to the accused

39 The evidence establishes that the accused is aged 52, his date of birth being 26 July, 1955. He has been an invalid pensioner. He had some limited schooling followed by an apprenticeship as a mechanic, then as a brick-layers’s apprentice and then work in the building industry.

40 Mr Mazzaro’s parents have both died. He has a sister who looks after him although he lives on his own. His sister was present throughout the time that he was in court in these proceedings. Her care for him is evident from all the material and is very much a matter to her credit.

Defence case

41 This matter is made more difficult in this situation where, at this stage, the question of the accused’s capacity has not been raised. Counsel for the accused has submitted that the Court should not proceed to consider that in the circumstances where the Crown cannot prove its case – and, specifically, not disprove that the accused acted other than under a honest and genuine belief in his claim of right.

42 The Defence submits that that evidence is clear from all the evidence, including the accused’s statement in the ERISP as well as being a matter of the strongest inference from the evidence of the accused’s actions and statements at the time he took the money from Mr Akloudious that he had an honest and genuine belief as to his claim of right.

Crown position on Prasad application

43 The Crown submits, appropriately in my view, that the test to be adopted at the stage of the first Prasad application is whether the evidence taken at its highest from the Crown point of view could be such as on a prima facie basis to support a finding of guilt.

44 The Crown disputes that, taken at its highest, the evidence does not entitle a suspicion to be held by the tribunal of fact as to the honesty and genuineness of that belief. In particular, the Crown refers to the evidence that the accused purchased the imitiation pistol the day before the robbery as being inconsistent with his intention, presumably formed on the morning of the offence when ‘the voices’ including that of the actor, Mel Gibson, told the accused to do what he did (ERISP Q/A 131; 152).

45 The Crown relies on those authorities which support the view that there should not be a ‘colourable pretence’ to the accused’s beliefs.

46 In my view, the Crown case taken at its highest would establish that there is some doubt about the accused’s belief. Moreover, that there is doubt about the accused’s capacity to form such a belief. However, that presents immediate – and to some extent, circular – difficulties because neither side has presented evidence as to the accused’s capacity, presumably for different reasons. The Crown has regarded itself as being bound by the decision of R v Damic [1982] 6 A Crim R 35 at 38.

Directions

47 The Court of Criminal Appeal in R v Minani [2005] NSWCCA 226 at [33] confirmed that judges conducting a trial without a jury need to establish and refer to the principles of law to be applied in the conduct of the trial and the consideration of the evidence.

Necessary directions

48 Against this background, if this was a trial before a jury, the jury would be directed, as I have directed myself that:

(a) The accused is under no obligation to give evidence and that the onus rests on the Crown to establish all the elements of the offence beyond reasonable doubt as to each element of each offence. Further, that the burden rests on the Crown at all stages of the trial and in relation to all the elements.
(b) The accused is entitled to a fair trial according to law. He has a right to silence and to decline to answer questions put to him by police or participate in a record of interview. Here the accused participated in a record of interview. There do not seem to be any issues, or complaints, arising from any of the evidence in relation to how the accused was treated or the admissions made by him were obtained.
(c) A defence of honest and genuine claim of right may be raised by the accused – see below.
(d) Prasad direction. At the conclusion of the Crown case, the jury may seek and should be directed that they are entitled at any time to bring in a verdict of not guilty if they are satisfied that the evidence does not and would not support a verdict of guilty.
(e) Inferences. If this was a trial before a jury, the jury would have to be directed, as I remind myself that it is only if the matters of fact are established beyond reasonable doubt from which the inferences can be drawn. It is the function of the jury to find those facts and draw those inferences as well as to apply the law to those facts.
(f) The jury must give its verdict on the facts and the evidence without having regard to the circumstances or outcomes which follow the verdict.
(g) There is no rule which dictates the use which a jury must make of the evidence nor any particular part of the evidence and the ultimate use of that evidence is for the jury alone. In the event that there is a particular finding of fact which is necessary for a finding of guilt, then that fact must be found beyond reasonable doubt.
(h) The jury as the tribunal of fact are entitled to take into account the presentation of the witnesses and those portrayed in video evidence, such as in this case, the ERISP, not only as to what is said but the manner of such evidence or accounts being given.

Principles of law : Defence of right

49 In that regard, the elements of that defence are that the accused relied on a defence of right in taking the money. Counsel for the accused has submitted that the decision of R v Fuge [2001] NSWCCA 208 is relevant in this regard, in particular, the decision of Heydon JA as he then was at [24(f)] that the claim of right is not confined to specific property taken but extends to cases where what is taken is the equivalent in value – see also R v Langham (1984) 36 SASR 48 and R v Lopatta (1983) 35 SASR 101 at 107.

50 In Langham (per King CJ at 53 and per Johnston J at 63) the Supreme Court of South Australia stated that the essential notion to a claim of right is that what must be established is that the claim of right is genuine and extends to a genuine belief in the legal entitlement to the property taken.

51 Johnson J stated (at page 63) that the claim of right, the absence of which the Crown must prove to secure a conviction for stealing, involves an honest belief even though it be unreasonable or ridiculous in the legal right to interfere with the possession by taking and carrying away the property in question.

52 His Honour went on to say that “it is sufficient if the claim put forward is such as is reasonably consistent with an honest belief in an entitlement to present possession. So if the accused has an honest belief that the property is his, that carries the inference in general that he claims to be entitled to the present possession of the property and to take it”.

53 It was also clear that an honest belief in the ownership of the property or an entitlement to it generally will indicate an honest belief in the right to take but not always.

Directions in relation to the claim of right

54 Johnson J stated that the appropriate direction was that a claim of right is a claim to be entitled to take the thing or things including money, taken. The claim need not necessarily be strictly sound in law, but if the accused person truly and genuinely believes he is entitled to the thing or things including money which is taken then he is not guilty of robbery.

Directions as to the accused’s belief

55 It is the accused’s subjective beliefs which are important not the belief of a reasonable person. Relevant in that regard is the accused’s state of mind. It does not matter that the accused’s claim may be without foundation in law or in fact and whatever may have been the manner in which he took them – R v Lopatta (per Legoe J) (1983) 35 SASR 101 at 118.

Consideration

56 The Crown has referred me to a passage in ‘Crime and Mental Health Law in NSW’ by Dr. Bruce Westmore and Dan Howard SC Butterworths 2005 and particularly at pp 241 – 242 where the following passage appears:

“The requirement that the belief be ‘honestly’ held does not sit well with the belief being caused by such a mental cond ition. It may not be appropriate, for example, to describe a fixed delusion as being ‘honestly’ held.”

57 Although one might incline towards that proposition, no authority is cited in support of it. I am left in the position in this case where there is no evidence before me as to the accused’s delusional or other beliefs nor that I should not accept the honesty or genuineness of his belief in the totality of the circumstances and evidence in this case.

Conclusion and ruling on first Prasad application

58 Having indicated my view that on the Crown evidence, taken at its highest, there could be some doubt as to whether the accused’s belief was honestly and genuinely held, I declined to give myself a Prasad direction.

59 The Crown then indicated that no further evidence would be called in its case.

Further application for Prasad direction

60 At the conclusion of the Crown case, Counsel for the accused submitted that this was an appropriate case for a further Prasad direction to be given. That direction would be on the basis that a jury may consider, at any time after the close of the Crown case, notwithstanding that there is evidence upon which the accused could be lawfully convicted, that the evidence is such that it could not safely convict on it.

Finding

61 Having regard to the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I have set out the principles of law applied and the findings of fact which I have made.

62 In particular, I record my findings that it is clear on the evidence at the conclusion of the Crown case that the accused had an honest and genuine belief in his entitlement to the money. The relevant evidence is that the accused had bought the crowbar the night before. It had gone missing or he had mislaid it. He took the exact amount being the purchase price of the crow bar, namely $40, the purchase price being said to be $39.95. There was other money available to him if he had been intending to rob the Mitre 10 store of the totality of the funds held in the store at the time.

63 The contemporaneous statement he made to Mr Akloudious are completely consistent with that belief and do not in my view support any other finding. The accused maintained that view in the course of the ERISP conducted relatively shortly after the events without any prompting.

64 There is no evidence which would be capable of satisfying me other than that the accused had the genuine and honest belief as to his claim of right at the time of the robbery.

65 Here I do not regard the accused’s view as being a ‘colourable defence’ or anything manufactured or duplicitous. I do not consider that the purchase of the toy gun as necessarily indicative of an intent to commit that particular offence on that day.

Conclusion

66 In my view it is an appropriate case for a Prasad direction to be given on the end of the Crown case.

67 Further, in my view, having regard to the totality of the evidence, including my observations of the accused both as recorded in the ERISP, the accounts of his comments and behaviour and his presentation in Court, there is no evidence to which the Crown can point which would negative or cast doubt on the honest and genuine belief held by the accused beyond reasonable doubt.

68 Accordingly I return a verdict of not guilty.

69 The accused is acquitted of the count.

17/05/2007	-	Criminal jurisdiction - Paragraph(s) headnote
18/05/2007	-	Spelling error - defence Counsel (Ms. Mikhaiel) - Paragraph(s) headnote
22/10/2008	-	Citation error - Paragraph(s) 49