R v Roux

Case [2015] ACTSC 307 14 October 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Roux
Citation:	[2015] ACTSC 307
Hearing Date(s):	24 and 29 September 2015
DecisionDate:	14 October 2015
Before:	Refshauge ACJ
Decision:	1. Sabian Roux is guilty of count 4 on the Indictment. 2. Sabian Roux is not guilty of count 5 on the Indictment. 3. Sabian Roux is not guilty of count 6 on the Indictment. 4. Sabian Roux is not guilty of count 7 on the Indictment. 5. Sabian Roux is not guilty of count 8 on the Indictment. 6. Sabian Roux is not guilty of count 9 on the Indictment. 7. Sabian Roux is not guilty of count 10 on the Indictment. 8. Sabian Roux is not guilty of count 11 on the Indictment. 9. Sabian Roux is not guilty of count 12 on the Indictment.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – trial – trial by judge alone – burglary – theft – dishonestly riding in a motor vehicle without consent – coincidence evidence – accused guilty of one count and not guilty of remaining counts
Legislation Cited:	Crimes Act 1900 (ACT), s 265 Criminal Procedure Act 1986 (NSW), s 33 Evidence Act 2011 (ACT), s 98 Supreme Court Act 1933 (ACT), ss 68B, 68C Theft Act 1968 (UK), s 9 Criminal Code 2002 (ACT), ss 20, 304, 305, 306, 308, 311, 400, 403, Dictionary
Cases Cited:	Baker v The Queen (1983) 153 CLR 338 Brutus v Cozens [1973] AC 854 Cundy v Lindsay (1878) 3 App Cas 459 Cutter v The Queen (1997) 143 ALR 498 Director of Public Prosecutions v Fraser [2008] NSWSC 244 Fleming v The Queen (1998) 197 CLR 250 Green v The Queen (1971) 126 CLR 28 Hann v Director of Public Prosecutions (Cth) (2004) 144 A Crim R 534 Lodge v Lawton [1978] VR 112 Macleod v The Queen (2003) 214 CLR 230 Morphitis v Salmon [1990] Crim LR 48 Parker v The Queen (1963) 111 CLR 610 Peters v The Queen (1998) 192 CLR 493 Phillips v Strong (1801) 2 East PC 662 Roe v Kingerlee [1986] Crim LR 735 R v Addis (1844) 1 Case CC 78 R v Brown [1985] Crim LR 212 R v Calis [2013] QCA 165 R v Collins [1973] 1 QB 100 R v Delly (2003) 180 FLR 344 R v DM [2010] ACTSC 137 R v Hayne (Unreported, Court of Criminal Appeal of New South Wales, Handley JA, Levine and James JJ, CCA 60496/97, 18 September 1998) R v Hughes (1994) 76 A Crim R 177 R v Massey [2000] ACTSC 107 R v McKnoulty (1995) 77 A Crim R 333 R v Mulcahy [2010] ACTSC 98 R v RH [2011] ACTSC 38 R v Smails (1957) 74 WN(NSW) 150 Samuels v Stubbs (1972) 4 SASR 200 Stein v Henshall [1976] VR 612 Stevens v Gourley (1859) 7 CBNS 99
Texts Cited:	J W Cecil Turner, Russell on Crime (Stevens & Sons: London, 1964) 12^th ed, v 2

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 Roux

Details

AGLC: R v Roux [2015] ACTSC 307
Case: [2015] ACTSC 307
Decision Date: 14 October 2015

CaseChat Overview and Summary

The case of R v Roux involved Sabian Roux, who was accused of multiple offences, including burglary, theft, and riding a motor vehicle without the owner's consent. The case was heard in a court where a judge presided without a jury. The crux of the dispute was the sufficiency of the evidence to support the charges against Roux, particularly in light of his acquittal on several counts.

The legal issues before the court were whether the prosecution had proved the charges beyond reasonable doubt, and whether the evidence presented, including coincidence evidence, was sufficient to establish guilt. The court needed to assess the credibility of the witnesses and the strength of the prosecution's case, especially in relation to the charges where Roux was acquitted.

The court found that the evidence was sufficient to convict Roux on count 4, related to theft, but was not sufficient to convict him on the other charges. The reasoning involved a detailed examination of the evidence, including the reliability of witness testimonies and the coincidence evidence. The court held that while the evidence against Roux was strong in some areas, it fell short in others, leading to the acquittal on the remaining counts.

The final orders of the court were that Sabian Roux was found guilty of count 4 on the Indictment, but not guilty of counts 5 to 12. This decision reflects the court's assessment of the evidence and its determination of Roux's guilt or innocence on each charge.

Orders

Orders of the court

1. Sabian Roux is guilty of count 4 on the Indictment.

2. Sabian Roux is not guilty of count 5 on the Indictment.

3. Sabian Roux is not guilty of count 6 on the Indictment.

4. Sabian Roux is not guilty of count 7 on the Indictment.

5. Sabian Roux is not guilty of count 8 on the Indictment.

6. Sabian Roux is not guilty of count 9 on the Indictment.

7. Sabian Roux is not guilty of count 10 on the Indictment.

8. Sabian Roux is not guilty of count 11 on the Indictment.

9. Sabian Roux is not guilty of count 12 on the Indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Roux [2015] ACTSC 307

Most Recent Citation

R v Roux (No 2) [2015] ACTSC 361

Cases Citing This Decision

Director of Public Prosecutions v Shang [2025] ACTSC 277
Citation 1

…165 R v Hillier [2007] HCA 13; 228 CLR 618 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Massey [2000] ACTSC 107 R v RH [2011] ACTSC 38 R v Roux [2015] ACTSC 307 Saipani v The Queen [2021] ACTCA 5 South v R [2007] NSWCCA 117…
Van Eyle v McFarlane [2024] ACTSC 50
Citation 2

…Queen [2020] HCA 12; 268 CLR 123 Pettit v Dunkley [1971] 1 NSWLR 376 Rawsthorne v Wilson [2018] ACTSC 342 Roberts v Rhodes [2014] ACTCA 20 R v Roux [2015] ACTSC 307 R v Schippani [2012] ACTSC 108; 265 FLR 197 Simic v The Queen (1980) 144 CLR 319 SKA v The Queen [2011] HCA 13; 243 CLR 400 Stevenson v R [2022] NSWCCA…
Fihelly v Bluett [2023] ACTSC 393
Citation 3

…R v FI [2017] ACTSC 190 R v Garland [2020] ACTSC 242 R v Ingrassia (1997) 41 NSWLR 447 R v Ramalingam [2011] ACTSC 86 R v RH [2011] ACTSC 3 R v Roux [2015] ACTSC 307 Ramalingam v McCue [2019] ACTSC 114 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Veen v The…
Director of Public Prosecutions v JJ [2023] ACTSC 318
Citation 4

…[2013] QCA 165 R v Currie [2002] NSWCCA 126 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Massey [2000] ACTSC 107 R v RH [2011] ACTSC 38 R v Roux [2015] ACTSC 307…
Director of Public Prosecutions v Higgins [2023] ACTSC 314
Citation 5

…v Commonwealth Director of Public Prosecutions [2004] SASC 86 McAuliffe v The Queen (1995) 183 CLR 108 Miller v The Queen (2016) 259 CLR 380 R v Roux [2015] ACTSC 307 The Queen v Markby (1978) 140 CLR 108…
Van Eyle v McFarlane [2022] ACTSC 1
Citation 6

…R v Roux [2015] ACTSC 307…
R v Massey [2022] ACTSC 3
Citation 7

…ughes (No 3) [2021] ACTSC 344 R v Minnis [2014] ACTSC 268 R v Palmer [2020] ACTSC 13 R v Parker [2018] ACTSC 55 R v Pearson [2020] ACTSC 375 R v Roux [2015] ACTSC 307 R v Seears [2015] ACTSC 109 R v Steen [2020] ACTSC 222…
Glanville v Harris [2017] ACTSC 110
Citation 8 (Para 1)

…of it then it is clear that he was acting dishonestly which is to be determined in accordance with the standards of ordinary decent people: R v Roux [2015] ACTSC 307 at [137]-[138].…
R v Connors (No 2) [2016] ACTSC 333
Citation 9 (Para 1)

…judge alone under s 68C of the Supreme Court Act . These principles have been applied regularly in this Court since then. See, for example, R v Roux [2015] ACTSC 307 at [9]-[21].…
Alcock v Director-General, Territory and Municipal Services (Administrative Review) [2016] ACAT 78
Citation 10 (Para 32)

…e concept of ‘damage’ the necessity that the damage be permanent or irreversible. [36] Samuels v Stubbs (1972) 4 SASR 200, see R v Roux [2015] ACTSC 307 per Refshauge J paragraphs [144] to [149] for a summary of authorities…
R v Roux (No 2) [2015] ACTSC 361
Citation 11 (Para 1)

…On 14 October 2015, I found Mr Roux guilty of one of those counts to which he pleaded not guilty, but not guilty of the remaining accounts: R v Roux [2015] ACTSC 307.…

See all citing cases →

Cases Cited

R v Calis [2013] QCA 165
Citation 1 (Para 1)

…Teague AJ followed this analysis in R v RH [2011] ACTSC 38 at [14], as did the Queensland Court of Appeal in R v Calis [2013] QCA 165 at [33].…
R v RH [2011] ACTSC 38
Citation 2 (Para 1)

…Teague AJ followed this analysis in R v RH [2011] ACTSC 38 at [14], as did the Queensland Court of Appeal in R v Calis [2013] QCA 165 at [33].…
R v DM [2010] ACTSC 137
Citation 3 (Para 1)

…at I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.…
R v Mulcahy [2010] ACTSC 98
Citation 4 (Para 1)

…hese are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.…
Director of Public Prosecutions v Fraser & O'Donnell [2008] NSWSC 244
Citation 5 (Para 1)

…Nevertheless, Simpson J pointed out in Director of Public Prosecutions v Fraser [2008] NSWSC 244 at [38]:…
Hann v Director of Public Prosecutions (Cth) [2004] SASC 86
Citation 6 (Para 1)

…As to “substantial risk”, Gray J in Hann v Director of Public Prosecutions (Cth) (2004) 144 A Crim R 534 at 541-2; [25], said:…
Macleod v the Queen [2003] HCA 24
Citation 7 (Para 1)

…In Macleod v The Queen (2003) 214 CLR 230 at 256; [100], McHugh J crystallised the approach of a trial judge as follows:…
Fleming v The Queen [1998] HCA 68
Citation 8 (Para 1)

…ated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act ), the High Court in Fleming v The Queen (1998) 197 CLR 250 at 263; [28], stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and t…
Peters v the Queen [1998] HCA 7
Citation 9 (Para 1)

…ent is dishonesty. In R v Delly (2003) 180 FLR 344, Higgins J held that this Court should follow the approach of the High Court in Peters v The Queen (1998) 192 CLR 493, when considering the meaning of “dishonesty”.…
Cutter v The Queen [1997] HCA 7
Citation 10 (Para 1)

…ed the consequences of his or her act ( Parker v The Queen (1963) 111 CLR 610 at 632-3, 648-9). Further, as Kirby J pointed out in Cutter v The Queen (1997) 143 ALR 498 at 510:…
Barker v The Queen [1983] HCA 18
Citation 11 (Para 1)

…See also Baker v The Queen (1983) 153 CLR 338 at 347.…
Green v The Queen [1971] HCA 55
Citation 12 (Para 1)

…t it says; it is a doubt which I reasonably entertain in the circumstances, but not based on fantastic or unreal possibilities. See Green v The Queen (1971) 126 CLR 28 at 32-3.…
Parker v The Queen [1963] HCA 14
Citation 13 (Para 1)

…5) 77 A Crim R 333 at 345) and it is not the law that an accused is presumed to have intended the consequences of his or her act ( Parker v The Queen (1963) 111 CLR 610 at 632-3, 648-9). Further, as Kirby J pointed out in Cutter v The Queen (1997) 143 ALR 498 at 510:…
[1975] AC 55 [1975] AC 55
Citation 14

…n the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged [ Hyam v DPP [1975] AC 55 at 73]. Attempts have been made to define the meaning of ‘intent’ or its derivatives. [See, for example, R v Steane [1947] KB 997 at 1004-5; R v Will…
Samuels v Stubbs 169 ER 1017
Citation 15 (Para 1)

…Nevertheless, some parameters have been placed around it. Walters J in Samuels v Stubbs (1972) 4 SASR 200 at 203 pointed out, in a decision cited many times since it was delivered:…
[1985] AC 905 [1985] AC 905
Citation 16

…ng one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning [ R v Moloney [1985] AC 905 at 926].…
[1973] AC 854 [1973] AC 854
Citation 17 (Para 1)

…, the word should be given its ordinary English meaning and whether a structure is a building is a question of fact: Brutus v Cozens [1973] AC 854 at 863-4.…
[1947] KB 997 [1947] KB 997
Citation 18

…ged [ Hyam v DPP [1975] AC 55 at 73]. Attempts have been made to define the meaning of ‘intent’ or its derivatives. [See, for example, R v Steane [1947] KB 997 at 1004-5; R v Williams (No 2) [1985] 2 Qd R 413 at 418-9.] However, the better view is that the word, being one of ordinary acceptation, should not be d…
(1878) 3 App Cas 459 (1878) 3 App Cas 459
Citation 19 (Para 1)

…e also Stein v Henshall [1976] VR 612. One of the rights of an owner is the right to pass title by selling the property, as stated in Cundy v Lindsay (1878) 3 App Cas 459 at 463-4. Thus, to take the property and intend to sell it is to assume the rights of an owner of the property. In general terms, the taking of prope…
Smith v Brown 6 QB 729
Citation 20

…bly with the term 'injury' with reference to mischief wrongfully occasioned to the person’ (ct. Smith v. Brown [(1871) LR 6 QB 729] , per Cockburn C.J. at p. 732). It is my view, however, the word ‘damages, as it is used in s. 43, is sufficiently wide in its meaning to embrace injury, mischief or harm done…
Baker v The Queen [1983] 1 WLR 385
Citation 21 (Para 1)

…See also Baker v The Queen (1983) 153 CLR 338 at 347.…
Cundy v Lindsay (1873) 2 AC 459
Citation 22 (Para 1)

…of an owner. See also Stein v Henshall [1976] VR 612. One of the rights of an owner is the right to pass title by selling the property, as stated in Cundy v Lindsay (1878) 3 App Cas 459 at 463-4. Thus, to take the property and intend to sell it is to assume the rights of an owner of the property. In general terms, the t…
[1973] 1 QB 100 [1973] 1 QB 100
Citation 23 (Para 1)

…As to whether Mr Roux was a trespasser, the UK Court of Appeal in R v Collins [1973] 1 QB 100, made the position clear when discussing s 9 of the Theft Act 1968 (UK), the equivalent of s 311 of the Criminal Code . The Court, whose judgment was delivered by Edmund Davies LJ, said at 105:…
What is a building has been considered in Stevens v Gourley 141 ER 752
Citation 24 (Para 1)

…What is a building has been considered in Stevens v Gourley (1859) 7 CBNS 99 at 112-3; 141 ER 752 at 757-8 where Byles J accepted that it was “not only difficult but absolutely impossible, to define the word “building” with any approach to accuracy”. His Honour then ventured the suggestion that by a “building…
[1912] 3 KB 493 [1912] 3 KB 493
Citation 25

…law has more than one meaning, and care has to be exercised in examining the context in which the word appears (cf. Swansea Corporation v Harpur [1912] 3 KB 493] , per Fletcher-Moulton L.J. at p. 505). It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rul…
[1898] 1 QB 868 [1898] 1 QB 868
Citation 26

…n may be drawn between damage to property and the consequent loss or damage to the owner of it. (Cf. Roper v Knott [[1898] 1 QB 868], per Lord Russell C.J. at p. 872).…

Legislation Cited

Supreme Court Act 1933 (ACT) 68B, 68C
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 265
2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW) 33
2 mentions (from Para 1)
Evidence Act 2011 (ACT) 98
2 mentions (from Para 1)
National Bank of Australasia Ltd v Scottish Union & National Insurance Co 9
2 mentions (from Para 1)
Theft Act 1968 c.60 9
2 mentions (from Para 1)