R v Shearer
[2018] ACTSC 91
•9 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Shearer |
Citation: | [2018] ACTSC 91 |
Hearing Dates: | 26, 27, 28 and 29 March 2018 |
DecisionDate: | 9 April 2018 |
Before: | Mossop J |
Decision: | On the charge of aggravated robbery (CC2017/1695), a verdict of acquittal is entered. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – aggravated robbery – joint commission – whether there was a non-verbal agreement between offenders to commit an aggravated robbery – whether aggravated robbery is an offence “of the same type” as an assault – held that it is not – accused acquitted – s 45A of the Criminal Code 2002 (ACT) |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 4733 Crimes Act 1900 (ACT), pt 2 |
Cases Cited: | Bruce v Williams (1989) 46 A Crim R 122 DPP v Maxwell [1978] 1 WLR 1350 R v Mulcahy [2010] ACTSC 98 |
Texts Cited: | Odgers SC, Stephen, “Joint Commission of Commonwealth Offences” (2010) 34 Criminal Law Journal 146 |
Parties: | The Queen (Crown) Brett David Shearer (Defendant) |
Representation: | Counsel J Walker (Crown) P Burgoyne-Scutts (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 128 of 2017 |
MOSSOP J:
Introduction
Brett David Shearer is charged with a single count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). He is alleged to have committed the offence by virtue of s 45A of the Criminal Code. The allegation is that on 1 January 2017, at Canberra, Brett David Shearer and Robert Dean Horner committed robbery in company with each other. Mr Horner had previously pleaded guilty to and been sentenced for the offence. He gave evidence in the Crown case.
The Crown case was that about 4:00am on 1 January 2017 the complainant, Vikram Singh, was driving his vehicle and was followed by the accused and Mr Horner who were driving in the accused’s vehicle. To try and escape the pursuing vehicle, Mr Singh drove into an apartment complex. The accused and Mr Horner followed him, parked him in, assaulted him and robbed him of various property including his wallet, keys and mobile phone.
I will set out the evidence in the case, the relevant statutory provisions and then consider whether or not the offence can be established beyond reasonable doubt. However first I must give myself relevant directions.
Directions
In R v Mulcahy [2010] ACTSC 98 at [13]–[22], [24], Nield AJ, when conducting a judge alone trial, gave himself directions about his role. The directions were adopted by Refshauge J in R v DM [2010] ACTSC 137 at [9]. Nield AJ set out the directions as follows:
13.A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14.The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15.The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16.The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17.In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18.As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19.I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20.I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21.I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22.I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
...
24.In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt…
I adopt these directions in relation to my role in the present case. See also R v Connors (No 2) [2016] ACTSC 333 at [6]–[8].
The accused gave evidence. His evidence is to be assessed in the same way as the evidence of any other witness is assessed.
The co-offender, Robert Horner, who had ultimately pleaded guilty and participated in two recorded interviews with police, gave evidence against the accused. I give myself the warning that I would give to a jury that his evidence may be unreliable and that it may be unreliable because the co-offender was seeking to advance his position and obtain a discount on sentence by giving evidence which would assist the Crown to establish its case against the accused. I therefore warn myself of the need for caution in determining whether to accept the evidence and the weight to be given to it.
Evidence
Vikram Singh
Mr Singh is a self-employed delivery driver who has a contract with The Canberra Times to deliver newspapers. On 1 January 2017 he was doing his usual run in Wanniassa. He started work at 2:00am. At about 4:00am he had delivered a newspaper to a house in Gair Place, Wanniassa. As he turned his car around to exit the street, he saw a silver Commodore. That vehicle started to follow him. It tailgated him, driving so close that at times he could not see its headlights. It followed him from Forlonge Street to Fincham Crescent, onto Sternberg Crescent then Wheeler Crescent, back onto Fincham Crescent and onto Athllon Drive. He turned left down Drakeford Drive and drove south. When some distance down Drakeford Drive, the silver Commodore overtook his vehicle and stopped suddenly in front of him forcing him to stop. Two men got out of the vehicle and approached his car in an aggressive manner. Mr Singh reversed his vehicle for about 50 metres in order to escape from the men. He did a U-turn and travelled in a northward direction along Drakeford Drive before turning left onto Athllon Drive again.
He was driving at 80 to 90 kilometres per hour but the other car was still tailgating him. The car got in front of his again and stopped. Although he had been intending to travel to a police station, Mr Singh then turned left onto Florence Taylor Street, left again onto Watts Street and then into a block of apartments there. He drove into the parking area for those apartments and the other car drove in behind him. There was some lighting in this area. The car that followed him in parked very close to the rear of his vehicle. Two guys got out of the vehicle, one from the driver side and one from the passenger side. They both went to the driver’s side window. His evidence was that “one of the guys starts smashing my window”. I understood this to mean that they were banging aggressively on the window as there was no evidence of the window being broken. They were abusive saying things such as “Motherfucker, get out of the car”. He opened the driver’s side door and picked up a tyre lever that he had in the vehicle. He said to them “What’s the problem?” One of them threw a punch at him. He tried to avoid the punch and held up the tool in front of him with the intention of deterring any further attack.
One of them wrapped his arms around his chest. The other threw him to the ground and stood over him punching his face and covering his mouth. He called for help.
The man who was not wrestling with Mr Singh reached into the car and got something from the car. He then said “Let’s go”, took the front number plate off the Commodore and both men got back into the car and reversed out. Mr Singh identified the colour and registration number of the vehicle.
A resident came out and asked whether he was okay. Mr Singh said that he was alright and was told that the police had already been called. He discovered that his phone, wallet and keys were missing from his vehicle. He used the resident’s phone to block use of his credit cards and spoke to the police on the resident’s phone.
He said that of his assailants, the one wearing a grey t-shirt was the one who punched him and the one wearing a red t-shirt, who was taller, was the one that had taken items from his car. Both were Caucasian. Both smelt of alcohol.
When police arrived he gave them the t-shirt that he was wearing.
His Samsung Galaxy S7 Edge phone was recovered and returned to him in September 2017. His keys and wallet were not returned to him. A photograph of his face taken shortly after the incident shows that he suffered some minor superficial injury to the bridge of his nose and a scratch near the base of his nose as a result of the attempts to cover his mouth.
In cross-examination he said that when he initially saw the silver Commodore, he turned down his high beam lights. It was suggested to him that there was only one occasion when the silver Commodore stopped in front of him and he said that there were two occasions, although only one when the two males got out of the vehicle. He said that his observations of one of his assailants taking items from his car were made when he was on the ground in the garden bed at the front of the car while the other assailant was attempting to punch him and cover his mouth while he was trying to scream out for help. He said that the punch did not have much force because he was moving his head. He said there was no blurring of vision as a result of the punch. He said that he saw the man taking items from his car and, after the incident, checked and found that his phone, wallet and keys were gone.
In re-examination Mr Singh explained that the two occasions when the silver Commodore had pulled in front of him and stopped, first occurred on Drakeford Drive and secondly on Athllon Drive, although his pursuers only got out of the car on the first occasion.
Later in the trial Mr Singh was recalled and gave additional evidence to the effect that the person wearing the red t-shirt had been the driver of the vehicle and was the one that took the items from his car. He was also the one that removed the number plate from the vehicle. He was bigger and taller than the one wearing the grey t-shirt. He said that the passenger in the vehicle was the one wearing a grey t-shirt and was of average build and had a dark tooth. He denied the suggestion that he was not 100 per cent sure of this evidence.
Robert Horner
Mr Horner gave evidence that he knew the accused from a time when he lived in Sydney. Mr Horner moved to Canberra in 2013. The accused moved in with him and his wife in 2016. At that stage he described their friendship as “really good”. The accused moved out of Mr Horner’s house in October 2016.
On the afternoon of New Year’s Eve 2016, he had been to a wedding with his wife. He later invited the accused over to his house. When the accused arrived it was about 9:30pm-10:00pm. Mr Horner had a nip of whiskey prior to the accused arriving. After the accused arrived, he consumed another six nips. I understood the evidence that these were consumed as mixed drinks. These drinks were consumed over a period of about four hours. The accused left following the conclusion of the midnight fireworks. Mr Horner then went for a walk to catch a Pokémon using, I infer, the “Pokémon Go” application. When he returned home he had an argument with his wife about being out for so long and so he rang the accused asking him to return to collect him. The accused arrived sometime later. The two men sat out the front of the house for a while. Mr Horner described himself as “pretty intoxicated and angry”. They then got into the car of the accused and when they were on the way to the accused’s house, he saw what he described as a white Toyota Yaris which he and the accused thought was “high beaming them”. That was enough to provoke the accused, who was driving, to follow the vehicle. Mr Horner said that the accused said that the driver “needs to be taught a lesson”. Mr Horner thought that what would be involved would be to get the car to pull over and yell at the driver.
He said that they followed the vehicle to Drakeford Drive where they jumped out. The vehicle reversed and then did a U-turn over the median strip. Mr Horner described that he observed that the accused was very angry at this point and, as a result, Mr Horner became “a bit scared” as he thought “it’s going to get serious if we do catch him”. He thought that things may get violent but there was no conversation about violence.
They then followed the vehicle to Athllon Drive and overtook it again slamming on the brakes. The vehicle turned left and although Mr Horner lost sight of it, the accused spotted it parked in a block of apartments.
They jumped out of the car and walked to the driver’s side of the vehicle. They banged on the window. The accused opened the driver’s side door and yelled at the victim to get out of the car. Mr Horner observed the accused to be very angry. The driver jumped out and reached for a tyre lever. He waved the tyre lever and both Mr Horner and the accused tried to stop him using it. Mr Horner tried to grab the victim’s right-hand and the accused grabbed his chest. Mr Horner swung a punch at him but missed. The accused let go and Mr Horner scuffled with him resulting in both falling to the ground.
Mr Horner saw the accused leaning into the car. The victim was screaming out “Get off me! Leave me alone”. Mr Horner tried to muffle the screams of the victim. He hit him twice in the head. Mr Horner got up off the ground and got into the accused’s car. He observed the accused ripping the number plate off the front of his vehicle. The accused then got into the car and threw a wallet and some keys into the centre console.
They reversed out and drove off with the car lights off. As they left the accused said, “Don’t tell anybody what’s happened.” Mr Horner replied “Yeah, okay, I’m not going to be stupid enough to say anything.” There was no other conversation.
They drove along Athllon Drive, left through the Tuggeranong town centre, past McDonald’s, and stopped with the engine still running under a bridge. (The evidence is consistent with this being the bridge on Soward Way). The accused got out of the car and threw the keys and wallet into Lake Tuggeranong.
They arrived back at the accused’s home at about 4:30am and commenced working on the accused’s motorbike. Mr Horner arrived back home at about 7:00am. Sometime thereafter he realised that he had lost his key card. There was then a series of text message communications between him and the accused in relation to that key card later that morning.
The accused attended Mr Horner’s house later that day and asked if he or his wife could unlock the phone. They said they could not.
Mr Horner gave evidence about the two interviews that he had with the police. He said that in the first interview on the day of his arrest, he made it look like he was less involved than he really was. In the second interview, which was given shortly before he was sentenced in March 2018, he said that he told the truth.
In cross-examination it was suggested to him that he had lied to the police in March 2018 because he knew the Crown case and was attempting to obtain a discount in his sentence. He denied that he was the one that banged on the door or that he was the one that opened the door and he further denied that he had lied when he said that he was the one that assaulted the victim. Mr Horner said that the accused was the one that took the items from the victim’s car. It was suggested to him that he had thrown the keys and wallet from a bridge into Lake Tuggeranong. He did not accept that proposition. He also did not accept the proposition that was put to him that it was the accused who took the victim to the ground. He denied that an injury to his left wrist, which he had described to police in his first interview, prevented him from assaulting the victim. It was suggested to him that the evidence showing the times at which text message communications occurred were inconsistent with his evidence that the accused had visited his house at 11:00am on 1 January in order to get the phone unlocked. He accepted that his evidence about the time of the visit may be inaccurate.
In re-examination he said that the keys to the accused’s vehicle had remained in the ignition when he and the accused got out of the car at the apartments.
Julie Slader
Ms Slader gave evidence that she was woken on 1 January 2017 by the screech of a car stopping outside her door. She heard a “kerfuffle” and voices saying words to the effect “Get back here, you bastard, we’re going to get you”. She heard a person with an Indian accent saying something like “Oh my God, someone help me please”. She also heard two other voices with Australian accents. She described hearing noises of somebody being punched and kicked. She grabbed her phone and went to the back of her house so that her housemate could make a telephone call to police. She returned to the lounge and dialled 000 herself. She had a conversation with the operator during which she described what happened. At some stage she heard a big “bang” into her garage door. During the course of her conversation with police, things went quiet. Recorded as part of the police emergency call is a conversation with her neighbour, Mr Scullin, in which he indicated that the victim was okay.
David Scullin
Mr Scullin was a resident of the block of apartments where the victim stopped his car. He was woken up when he heard two cars come to an abrupt stop. He heard someone screaming words to the effect “Help me, help me, please help me”. He got out of bed and went to his front door. He saw a person in the garden with two people on top of him. The person being assaulted sounded frightened and in a state of desperation. He raced inside to get his mobile phone and a notebook. He dialled 000 and made a note of the registration of the car. He observed that people exited the garden bed and returned to the car. He described the passenger as being the bigger of the two and more solid. The victim came towards him and he asked if he was okay. He saw a graze on his nose. The victim asked him whether he got the registration number but when Mr Scullin read out the number, the victim suggested that one of the digits was different. Mr Scullin’s notebook was tendered as was an aerial photo which he annotated to show the location of the vehicles and his house. The audio recording of his 000 call was also tendered and was consistent with his oral evidence. There was no cross-examination.
Joel Kirby
First Constable Kirby was, at the time, part of Tuggeranong Response Team 2. He received two radio communications which resulted in him attending the apartments at Watts Street, Greenway. He found Mr Singh there, who was in a distressed state and initially difficult to understand. Mr Singh made a complaint to him in terms consistent with Mr Singh’s oral evidence. Mr Singh said that there were two people in the car but at that time he did not tell Constable Kirby which one was responsible for which part of the incident. He observed that Mr Singh had some redness at the top of his nose. Constable Kirby could not recall whether he noticed the swelling either then or later. He also noticed a small cut in Mr Singh’s nostril. He obtained Mr Singh’s t-shirt. He travelled with Mr Singh to Tuggeranong police station where Mr Singh made a statement.
On 18 January 2017 he obtained the 000 calls relating to the incident.
On 31 January 2017 he participated in the execution of a search warrant at the accused’s residence. During the course of that search there were various conversations between the accused and police which were recorded on a voice recorder. That recording was put into evidence. The Crown relied upon the statements made in that recording as lies told by the accused reflecting his consciousness of guilt.
At the conclusion of the execution of the search warrant the accused was arrested. He underwent a forensic procedure to obtain DNA. His phone was downloaded by the ACESO program and the relevant text messages extracted from the report that was generated.
On 2 February 2017, Mr Horner was arrested. Mr Horner did not undergo a forensic procedure because he made statements which indicated that he was involved in the incident and hence it was not necessary to use DNA evidence to connect him to the incident.
Both accused persons declined to participate in an identification parade. Their photos were used in photo boards.
Constable Kirby observed that the accused had a larger build than Mr Horner although he could not say who was the taller.
Constable Kirby said that although the accused said that he had purchased the phone that was found during the search using $200 withdrawn from his bank account, during the execution of the search warrant the accused made available, via his mobile phone, bank account records, and there was no transaction which matched that which had been described.
Constable Kirby gave evidence of the complaint that Mr Singh made to him which was:
•Mr Singh said the other vehicle stopped behind his own car and both males got out. Mr Singh said the passenger grabbed him and punched him in the face. Mr Singh stated the passenger continued to hold onto him whilst the driver reached into his vehicle and stole Mr Singh’s wallet, phone and keys. Mr Singh stated that as the males left, the driver of the vehicle removed the front number plate and drove away.
He had recorded in his notebook that Mr Singh reported that he had lost his wallet which contained $150 cash, bankcards, a health care card and his driver’s licence. He had also lost his mobile phone and keys.
He had recorded in his notebook that Mr Singh had told him that the person in the red t‑shirt had red hair. His evidence was that at the time of his arrest, Mr Horner had red hair. That evidence was consistent with Mr Horner as opposed to the accused being the driver and the one that took the items from his car.
He explained that no testing for fingerprints or DNA was done in the victim’s car. He could recall having a conversation with his sergeant and with Mr Singh about that issue but could not recall the reason for not requiring that test in the vehicle.
In cross-examination, Constable Kirby was asked whether the accused was “more solid” now than at the time of his arrest but the officer was unable to make any comparison.
Brett Shearer
The accused gave evidence. He said that he was slimmer at the time of his arrest. His evidence as to what had occurred in 31 December 2016 and 1 January 2017 was as follows.
He treated Mr Horner as a brother and Mr Horner’s children were “like nephews to me”. He could not recall the time when he arrived at Mr Horner’s house. While he was there they drank Jack Daniels and other alcohol. Although he could not recall how much he had drunk, he described himself as “pretty intoxicated” when he left the house. He was subsequently contacted by Mr Horner and then returned to collect him. They stayed at the accused’s house. At some point they needed to go and get some cigarettes and got into his Holden Commodore to go to the service station to buy them. When they were driving out of his street, Mr Singh’s vehicle shone its high beams at them. He did not drop his lights when they flashed his own high beams at him. The accused explained that there had, around that time, been “some suss cars” out the front of his landlord’s house. The accused did a U-turn and went back into his street wanting to follow the vehicle and ask what it was up to. He followed the vehicle, tried to overtake it and described the vehicle as “coming across on top of me”. He said that the “adrenaline kicked in” because of the alcohol and he continued to follow, trying to get the vehicle to pull over stating, “I just wanted to ask him about what he was doing in the street at that time of the morning”. He then described that after the vehicle turned onto Drakeford Drive he overtook it, braked, and then braked again. He and Mr Horner got out of the vehicle in order to ask the driver what he was doing and why he had attempted to run them off the road. The car reversed and the accused turned around, although Mr Horner ran towards it. They got back in the car and did a U-turn and followed it into a side street past the Kambah turn-off. He said that they pulled up behind the vehicle to ask him what he was doing. He said that Mr Singh jumped out with a “breaker bar”. The accused said that he took a swing at Mr Singh with a closed fist. He said that Mr Horner had banged on the window and opened the door and that Mr Singh had the bar in his hand as he got out. He said that the punch was thrown in self-defence because Mr Singh had swung the bar. Although the first punch made no contact, the accused said he grabbed Mr Singh and they went to the ground. He said that he punched Mr Singh and put his hand over his mouth. He said he could not see what Mr Horner was doing. The accused said he got up and Mr Horner was already going back to the accused’s car. He said that as he approached the driver’s door, Mr Horner grabbed the number plate threw it into the back seat and said, “I ripped your number plate off so they can’t get your rego”. He said he pulled his keys out of his pocket as he was returning to the car in order to start it. He then said that as they were going over the bridge at Lake Tuggeranong, Mr Horner threw items out of the window saying, “We’ve got to get rid of these”, although he did not say where the items had come from. They then returned to the accused’s home and drove in his other car to get cigarettes, then returned to his house to work on his motorbike until about 6:30am-7:00am when Mr Horner asked for a lift home. The accused gave him a lift and then returned home to rest.
He said that on the 2nd or 3rd of January he went to Mr Horner’s house. On 31 January 2017 when the search warrant was executed, he said that he recalled telling police that he knew nothing about the incident and that he had bought the phone. He said that he told the police he knew nothing about the incident because he was worried and scared because he “didn’t know what Rob would do”. He said that he told them that he had bought the phone because he was “scared and worried”.
He said that Mr Horner had left the phone in his house on the night after the incident. He could not recall when. He did say that Mr Horner asked him to bring the phone over so that his wife could unlock it. He could not recall when that occurred. He said that the message in Exhibit 6 in which he said “Mate im so sorry if I have caused anything bro or if anything is my fault” was written to apologise for drinking with him and the argument between Mr Horner and his wife.
In cross-examination he said that he had lived with Mr Horner and his family for approximately two months after he moved to Canberra from Goulburn. He agreed with the proposition that Mr Horner had been friendly and helpful and that they had been very close, “like brothers”. He agreed that Mr Horner was shorter than him and of a slimmer build. He could not recall whether Mr Horner had a black or “dead” tooth.
He was unable to give detailed evidence about the volume of spirits that he had drunk. He accepted that they were taking turns to make each other drinks. He said it could have been more than 10 drinks in total although he was not sure. He did not think it was more than 20 drinks in total. He left Mr Horner’s house just after the fireworks at midnight.
In relation to text messages in Exhibit 6, he thought there might have been a phone call as well to Mr Horner about the bankcard. He was asked questions about the discovery of Mr Singh’s mobile phone in his bedroom cupboard. He assumed that Mr Horner had left it there, although he did not see him do so and he did not tell him that he had done so. The accused said that he had only touched it once on the morning when Mr Horner showed it to him at his house. He said that this occurred when he was sitting in the lounge and Mr Horner was standing up. He said that Mr Horner pulled it out and said: “I got this out of the car”. He said that he had a look at it and handed it back. He did not see whether it was on or off, locked or unlocked. He did not take the sim from it. He had it in his hands for a couple of seconds.
Record of conversation
Police executed a search warrant at the home of the accused on 31 January 2017. During the course of the execution of the warrant, conversations between police officers and the accused were recorded. During the course of those various conversations he said:
a)None of the items named on the search warrant (which included Mr Singh’s mobile phone) were located on the premises.
b)That he knew nothing about the allegation that he committed an aggravated robbery on 1 January 2017.
c)That he had bought the phone that was found on the premises (which in fact was Mr Singh’s phone) about a week ago “off Facebook”.
d)That he had paid $200 for it.
e)That he had communicated with the seller through “Facebook Messager”.
f)That he had collected it from a house in Chisholm, the address of which he could not remember.
g)That the Facebook site was “Tyson’s Buy, Swap, and Sell”.
h)That the seller had been a man in his late 20s or early 30s.
i)That he had paid for it by taking money out of an ATM of the ANZ bank at the Tuggeranong Hyperdome on the Thursday about a week and a half previously.
j)That on New Year’s Eve, he had a few drinks at a mate’s place and then came home and went to bed.
k)That he travelled there in his Honda vehicle;
l)That a mate had borrowed his Holden Commodore at about 10:30pm or 11:00pm;
m)That he was asleep at the time that the offence occurred.
n)That he had gone to put a sim card in the phone that he had bought and then decided to continue using his existing phone until it “completely dies”.
Other evidence
Other evidence was tendered which established that Mr Singh’s mobile phone had been found in the bedroom cupboard of the residence of the accused. It also established that the cover of the mobile phone had been found on top of his fridge and that Mr Horner’s key card was found in the accused’s Commodore.
Reports from a forensic biologist demonstrated that the DNA of the accused had been found on Mr Singh’s shirt. As the evidence of Constable Kirby made clear, there had been no testing for DNA of Mr Horner on Mr Singh’s clothing.
Assessment of the witnesses
The evidence of Mr Singh was given in an unaffected manner. Nothing about his demeanour or manner of giving evidence would cast doubt on the reliability of his evidence. On the contrary, he appeared to be giving honest and reliable evidence. He had no reason to do otherwise. His evidence was consistent with his contemporaneous complaint made to Constable Kirby. Having regard to the circumstances in which the complaint was made to Constable Kirby immediately following the events, I consider that the complaint provides some evidence that the events occurred as he described them in the complaint as well as supporting the credibility of his evidence.
Mr Scullin and Ms Slader both appeared to be giving honest and reliable evidence. Their evidence was largely uncontroversial.
Mr Horner gave evidence in an unaffected manner. He appeared to be motivated to tell the truth. The second interview that he gave to police was one in which he incriminated himself to a greater extent than he had in his first interview in which he had attempted to place most of the responsibility upon the accused. I do not accept the submission that he was motivated to give a false version of events consistent with the Crown case against the accused in order to advance his position in sentencing for the offence. That is because in giving the version that he did he incriminated himself in relation to the assault upon Mr Singh, increasing the gravity of his conduct and hence exposing himself to a greater punishment. He is unlikely to have been motivated to falsely incriminate himself in that manner only in order to achieve a discount on sentence. His evidence was largely consistent with and corroborated by that of Mr Singh.
The evidence of the accused was given in a manner which was apparently plausible. He gave the impression of being relatively unsophisticated. His evidence clearly accepted his involvement in the conduct alleged but did so in a manner which reversed and the roles of Mr Horner and himself. His admissions about his involvement made his evidence more credible. However his evidence was inconsistent with that of Mr Singh and Mr Horner which was, except in minor respects, consistent.
The accused admitted lying consistently to police and, more significantly, to the Court. After some detailed questioning about what he had told the police and evidence that he had given to the Court (transcript at 124-130) the cross-examination on this topic concluded as follows:
So, sir, for almost everything you said to police when they did that search warrant was a lie?—-Yes.
You have told lies to the Court today?—-Yes.
You are prepared to say anything to advance your interests depending on what situation you find yourself in, aren’t you?—-Yes.
And the Court can have absolutely no faith that anything that you have said today is the truth?—-Yes.
Because everything you have said is a pack of lies?—-Yeah.
Counsel for the accused submitted that the significance of the lies to police is reduced by the fact that even on the offender’s version of events, he was involved in an assault upon Mr Singh. As a consequence he had a reason to lie to police. Although the lies told to police are indicative of consciousness of guilt, they are not necessarily consciousness of guilt of the offence charged. They are equally consistent with consciousness of guilt of an assault in a manner consistent with the evidence of the accused. This submission is somewhat undermined by the fact that the accused himself did not give evidence consistent with this explanation for his lies. Rather, his evidence was that he feared some consequence from Mr Horner if he told the truth. This alleged fear was not explained or developed in his evidence. However because of his admitted involvement in the incident, I have not placed weight on his lies to police as evidence of guilt of the charged offence. I have placed weight on them in assessing the credibility of the accused because they reflect upon the willingness of the accused to lie when he perceives that it advance his interests.
Notwithstanding his admissions of involvement in the incident, I reject his evidence where it is inconsistent with the evidence of Mr Singh and Mr Horner. His evidence does not cause me to have a doubt which I consider to be reasonable about what occurred during the interaction with Mr Singh.
Findings of fact
Having rejected the evidence of the accused to the extent that it is inconsistent with that of Mr Singh and Mr Horner, the matters that I find beyond reasonable doubt are as follows:
(a)Mr Singh was delivering newspapers in Gair Place using the lights in his vehicle on high beam.
(b)The accused and Mr Horner, who were both affected by alcohol, took offence at Mr Singh’s use of the high beam and the accused drove his vehicle in pursuit of Mr Singh’s car. He said to Mr Horner, “He needs to be taught a lesson.”
(c)Mr Singh was pursued along the route described in Exhibit 3.
(d)When Mr Singh’s vehicle was brought to a stop on Drakeford Drive, the accused and Mr Horner got out of their vehicle and approached him in an aggressive manner.
(e)The accused became visibly more agitated after Mr Singh drove away.
(f)When Mr Singh continued along Athllon Drive the accused overtook him again and braked, prompting Mr Singh to turn left off the road.
(g)When Mr Singh drove into the apartment complex in Watts Street, the accused parked his car close behind it so as to prevent any escape.
(h)Although there was little conversation between the accused and Mr Horner, by the time they exited the vehicle in the apartment complex, they both had an agreement (consisting of a non-verbal understanding) that they would aggressively approach Mr Singh and, at the very least, aggressively remonstrate with him for his perceived misbehaviour with his headlights. Both understood that they would thereby put Mr Singh in a position where he feared the immediate infliction of violence upon himself.
(i)The accused banged on Mr Singh’s window while Mr Horner stood just behind him. Mr Singh opened the door and got out holding a metal bar. At that point the accused and Mr Horner had an agreement consisting of a non‑verbal understanding that they would physically assault Mr Singh.
(j)Mr Horner threw a punch which missed. Both tried to grab the tyre lever.
(k)Mr Horner grappled with Mr Singh and fell to the ground with him. He attempted to punch him and did so on two occasions. He attempted to hold his hand over his mouth in order to muffle Mr Singh’s cries for help.
(l)As this was occurring the accused reached into Mr Singh’s vehicle and took his wallet, keys and mobile phone. He said to Mr Horner “Come on let’s go” and, when returning to his vehicle, took the front number plate off and put it in the car.
(m)When driving away in the vehicle he said to Mr Horner “Don’t tell anyone what’s happened.”
(n)The accused disposed of the wallet and keys that he had taken from Mr Singh’s car by throwing them into Lake Tuggeranong.
(o)The text message that he sent the next morning to Mr Horner which stated “Mate im so sorry if i have caused anything bro or if anything is my fault” related to the incident with Mr Singh.
(p)On the morning of 1, 2 or 3 January, the accused attended Mr Horner’s house seeking assistance with unlocking the mobile phone that he had taken.
I am not satisfied beyond reasonable doubt that the accused and Mr Horner had an agreement that they would rob Mr Singh. Similarly, I am not satisfied beyond reasonable doubt that there was any non-verbal understanding between them either before or at the same time as the robbery took place. I do not accept the submission that Mr Horner, as he grappled with Mr Singh and observed the accused reaching into Mr Singh’s vehicle, had a non-verbal understanding that the accused would steal items from Mr Singh’s car. Rather this appears to have been a fleeting observation of what was occurring and the fact that there had been a theft only became clear to Mr Horner at some time after he re‑entered the accused’s vehicle. That was a point in time after the physical elements of the robbery had been completed and hence, outside the scope of s 45A(5)(b).
Statutory provisions
The relevant provisions of the Criminal Code are as follows:
45A Joint commission
(1) A person is taken to have committed an offence if —
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b) either —
(i) an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2) For subsection (1)(b)(i), an offence is committed in accordance with an agreement if —
(a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct — the result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance — the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
(3)For subsection (1)(b)(ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
(4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.
(5) An agreement —
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
(6)A person must not be found guilty of an offence because of this section if, before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person —
(a) ended the person's involvement; and
(b) took all reasonable steps to prevent the conduct from being engaged in.
(7) A person may be found guilty of an offence because of this section even if —
(a) another party to the agreement is not prosecuted or found guilty; or
(b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.
(8)Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section.
(9)To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
309 Robbery
A person commits an offence (robbery) if —
(a) the person commits theft; and
(b) when committing the theft, or immediately before or immediately after committing the theft, the person —
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
310 Aggravated robbery
A person commits an offence (aggravated robbery) if the person —
(a) commits robbery in company with 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.
Application of statutory provisions
The manner in which the Crown case was put
It is important to note that the indictment itself made it clear that the allegation against the accused was one of joint commission and no attempt was made, either in the indictment or otherwise, to allege an offence on the part of the accused not reliant upon that provision. The case was argued upon the basis that the accused was guilty because of the operation of s 45A(1)(b)(i) rather than s 45A(1)(b)(ii).
During the course of submissions, counsel for the accused submitted that the case statement that had been prepared and filed pursuant to r 4733 of the Court Procedures Rules 2006 (ACT) alleged that the agreement between Mr Horner and the accused relied on for the purposes of s 45A was an agreement to commit robbery. She submitted that the case statement amounted to the particularisation of the charge and given that counsel for the Crown had not expressly sought to depart from that particularisation in his opening, the Crown case was confined to one based on an agreement to commit a robbery.
In relation to the agreement relied upon for the purposes of s 45A, counsel for the Crown had opened the case with maximum vagueness and hence maximum generality. He said simply “The prosecution case is that the aggravated robbery committed by the accused and Mr Horner was a joint commission offence.” He made no reference to the manner in which the Crown case had been articulated in the case statement. Counsel for the accused raised no issue in relation to the vague manner in which the case was opened and made no reference during the course of the hearing prior to submissions to conducting the defence case on the basis of the Crown case articulated in the case statement.
In R v Goodwin [2009] ACTSC 111; 233 FLR 473 at [26]-[35] Refshauge J outlined the history of the development of the case statement that is now required by the Rules. At [32]-[33] his Honour said:
32.It is, however, not a pleading, nor does it have formal binding status. Thus, it does not supply particulars of counts in the indictment. These must be supplied in the usual way, though a good case statement will, of course, have incorporated the facts which found the particulars. There is no reason why, as here, particulars are not included in the case statement, so long as it is clear that they are particulars of the pleading kind.
33. Until formally relied upon by the prosecution, which may never happen, the case statement does not constitute the prosecution opening by which certain elements in the trial are judged. In a pre-trial application, it can be added to or amended or relied on for the purposes of the application.
Having regard to the decision in R v Goodwin and the generality of the opening given by counsel for the Crown, I do not consider that the Crown was confined to the agreement that was articulated in the case statement. In the light of the generality of the Crown’s opening, it was open to it to establish an agreement to commit any offence. The real hurdle for it was to establish that the agreed offence was an offence “of the same type” as the robbery actually committed.
The conclusion that the case statement did not, having regard to the manner in which the issue was dealt with in opening and the failure by counsel for the accused to raise the issue, have the effect of confining the Crown case emphasises the significance of taking any point about the scope of the Crown case by way of formal particularisation prior to trial or at the point of the opening. It is often assumed that the case statement is, in effect, the particularisation of the Crown case. If a point is to be taken about the manner of particularisation at trial then care must be taken to ensure that the issue is clearly addressed before or at trial in order that the trial may be fairly conducted in a manner where the position of the parties is clear.
Was the offence of “same type” as that agreed to?
In order for the Crown to succeed, it must establish that the assault which Mr Horner and the accused agreed to commit is an offence “of the same type” as the robbery which was in fact committed: s 45A(2).
Section 45A of the Criminal Code was inserted by the Crimes (Serious Organised Crime) Amendment Act 2010 (ACT). The Explanatory Statement in relation to s 45A provided:
The first requirement is that the joint offence that is actually committed must be an offence of the same type as the offence agreed to. The requirement is broad enough to cover situations where the exact offence agreed to may not have been committed by the parties to the agreement, but a joint offence of the same type was committed. For example, where people agree to commit a specific drug offence, but the quantity of the drugs, or the type of drug varies from the offence agreed to, joint commission will apply.
Shortly prior to the amendment of the Criminal Code, the Commonwealth Criminal Code Act 1995 had been amended to insert s 11.2A in almost identical terms. The Explanatory Memorandum was also in almost identical terms but continued:
For example, if two people agree to import 1 kg of cocaine (marketable quantity) , and instead import 1.5 kg of heroin (commercial quantity), this definition is broad enough to capture the offence of importing 1.5 kg of heroin, because it is an offence of the same type as the offence agreed to.
Although this example is more specific than the example provided in the ACT Explanatory Memorandum, having regard to the chronology of enactments and the almost identical terms of the provisions, the ACT provision was clearly intended to have the same effect as the Commonwealth provision.
The parties did not identify any authorities involving the taxonomic exercise required to determine whether offences are “of the same type”. In relation to what constitutes an offence “of the same type”, shortly after the introduction of the provision, Stephen Odgers commented on the scope of the provision in “Joint Commission of Commonwealth Offences” (2010) 34 Criminal Law Journal 146 at 146-7 as follows:
Thus, if A agrees with B to commit an offence C, A is taken to have committed the offence D if the conduct physical elements of offence D are performed by “one of more parties in accordance with the agreement” and offence D is “of the same type” as offence C. Obviously enough, if the offence committed (offence D) is the same as the offence agreed (offence C), these requirements will be satisfied. However, considerable uncertainty is introduced by the extension of liability to an offence “of the same type” as offence C.
No criteria are provided for determining what constitutes a “type” of the offence. Some assistance may be obtained from common law authority. Assuming that it is a question of law to decide the “type” of the offence to which offence D belongs, it will be for the court to direct that tribunal of fact as to the physical and fault elements of that type of offence. The tribunal of fact will then decide whether A entered into an agreement to commit an offence of that type. The difficulties presented by such a scenario are obvious.
…
However, the question remains-what are the parameters of a “type” of the offence? Are assault and murder offences of the same type? Acts of indecency and sexual assault? Importing 100 g of ecstasy and importing 100 kg of cocaine or heroin?
Significantly, liability may be imposed for offence D even if it was not in fact committed. Thus even if offence D has a fault element in relation to a physical element of result or circumstance, A will be taken to have committed an offence D if that physical element occurred without fault so long as the offence A agreed to (composed of both physical and fault elements) is of the same type as offence D.
(footnote omitted)
The “common law authorit[ies]" referred to in the second paragraph of the article quoted above were as follows.
In R v Bainbridge [1960] 1 QB 129, a bank had been broken into by means of oxygen cutting equipment. This had been purchased by the appellant some weeks earlier. He was charged with being an accessory before the fact to office breaking. He admitted that he had suspected that the equipment was wanted for something illegal but denied that he had knowledge that it was to be used for the purpose for which it was in fact used. On appeal he alleged that the judge had misdirected the jury as to what must be satisfied in order to convict him of being an accessory before the fact. The Court of Criminal Appeal held that it was sufficient to show knowledge of the intention to commit a crime of the type which was committed and it was not necessary to show knowledge of the particular date and premises concerned. In delivering the judgment of the Court, Lord Parker CJ said (at 133-4):
The court fully appreciates that it is not enough that it should be shown that a man knows that some illegal venture is intended. To take this case, it would not be enough if he knew –he says he only suspected – that the equipment was going to be used to dispose of stolen property. That would not be enough. Equally, this court is quite satisfied that it is unnecessary that knowledge of the particular crime which was in fact committed should be shown to his knowledge to have been intended, and by “particular crime” I am using the words in the same way in which Mr Simpson used them, namely, on a particular date and particular premises.
It is not altogether easy to lay down a precise form of words which will cover every case that can be contemplated but, having considered the cases and the law this court is quite clear that the direction of [the trial judge] in this case cannot be criticised. Indeed it might well have been made with the passage in Fosters Crown Cases (3rd ed. (1809) at p. 369) in mind, because there the author says: “If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand a single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation,” the converse, of course being that if the principle does not totally and substantially vary the advice or the help and does not wilfully and knowingly commit a different form of felony altogether, the man who has advised or help, aided or abetted, will be guilty as an accessory before the fact.
The Court found that the trial judge’s reference to the type of offence intended as being breaking and entry into premises and stealing of property from those premises did not involve an error.
In DPP v Maxwell [1978] 1 WLR 1350, the House of Lords was dealing with an appeal from Northern Ireland. The defendant had been convicted of aiding or abetting the placement of a pipe bomb. He was a member of an organisation, the Ulster Volunteer Force (UVF), that used firearms and bombs to carry out attacks against Roman Catholics and their property. He was told by a member of the organisation to drive his car to an inn in the locality where he lived in a manner that would guide three or four men, who were unfamiliar with the area, to that inn. Having reached the inn, he drove off and one of the men in the following car placed a bomb in the hallway of the inn. The defendant later learned that what he described as a “job” for the organisation was in fact an attempt to bomb the inn. The question was whether his knowledge was sufficient. Lord Hailsham said that he would consider that “the bullet, bomb, or incendiary device, indeed most if not all types of terrorist violence, would all constitute offences of the same ‘type’ within the meaning of R v Bainbridge [1960] 1 QB 129”. Lord Edmund-Davies simply adopted the judgment of the Court of Criminal Appeal of Northern Ireland and made no specific reference to the “type” issue. Lord Fraser considered that he must have known that murder or a bombing or other form of attack which was practised by the UVF was to be expected, and that “[t]he possible extent of his guilt was limited to the range of crimes any of which he must have known were to be expected that night”. Lord Scarman considered that the Court of Criminal Appeal in Northern Ireland had gone beyond the formulation in Bainbridge in that it refused to limit criminal responsibility by reference to the knowledge by the accused of the type or class of crime intended. The formulation was that where the accused contemplates the commission of one or more of a number of crimes by the principal and intentionally lends his assistance in order that such a crime will be committed, he will be guilty. However, it would only be in an exceptional case that there would be evidence to support the allegation that the accomplice had given the principal a completely “blank cheque”. In those circumstances, because the defendant knew that a military style “job” was to be carried out involving an attack by a bomb, incendiary device or bullet on persons or property, he was rightly convicted.
In Bruce v Williams (1989) 46 A Crim R 122, Priestley JA (with whom Samuels and Meagher JJA agreed) was addressing a situation where the defendant had been charged with aiding and abetting another person to drive a motor vehicle while that other person had in his blood a high-range prescribed concentration of alcohol. His Honour, having referred to Maxwell and Bainbridge, said (at 129-30):
It seems to me that for purposes of the rule described in Maxwell and Bainbridge the offence of driving under the influence is very much in the same type and category of crime as that which Mr Hill was charged.
In R v Ancuta (1990) 49 A Crim R 307, the Queensland Court of Appeal applied Bainbridge and Maxwell and held that it was sufficient for the Crown to show that the accused had knowledge of the intention to commit a crime of the type which was in fact committed. In that case the accused had supplied compliance plates and it was sufficient that they had been supplied with the knowledge that an offence of unlawful possession of a motor vehicle was contemplated rather than the commission of that offence in relation to a particular car.
As with any exercise in taxonomy, the aggregation of items into groups of sufficient similarity or their separation into different groups on the basis of particular criteria can be a matter of difference and debate. In relation to s 45A, this taxonomic exercise must be undertaken in a context in which criminal liability is being imposed upon a person in relation to an offence other than an offence which the person agreed to carry out.
The common law authorities may be summarised as follows:
(a)Bainbridge held that knowledge of the particular premises to be broken into and stolen from was not necessary.
(b)Maxwell aggregated together armed attacks on persons or property in circumstances where the organisation’s controlling principals had a track record of such attacks by various methods.
(c)Bruce v Williams held that the offence of driving under the influence and the specific offence of driving with a high range prescribed concentration of alcohol were “of the same type”.
(d)Ancuta, like Bainbridge, held that it was sufficient that what was contemplated was the offence of possessing a stolen vehicle rather than the offence of possessing of the particular stolen vehicle.
The examples given in the ACT and Commonwealth Explanatory Memoranda in relation to drug offences contemplate the aggregation of offences involving different types and quantities of drugs.
Having regard to the lack of guidance in the legislation, it is clear that what constitutes an offence “of the same type” will be a matter which will need to be worked out in the context of particular fact situations. Clearly, having regard to the failure by the legislature to disclose a taxonomic method, what constitutes an offence “of the same type” is uncertain and will inevitably generate contestable judgments.
In the present case, the only agreement for the purposes of s 45A that has been proved beyond reasonable doubt is an assault. Prior to Mr Singh exiting the car the agreement was in relation to an assault involving the immediate apprehension of violence (but without a battery). Following his exit from the vehicle the agreement extended to an assault involving a battery. The issue is, therefore, whether robbery is an offence of the same type as these forms of assault. Robbery involves theft and either the use of force or threat of the use of force with intent to commit theft or to escape from the scene: Criminal Code, s 309. The offence of assault is an offence of the same type if that question is approached at the level of abstraction of offences involving violence against a person or the threat thereof. However, in my view, whether categorised having regard to the elements of the offences (such as in Bruce v Williams) or by reference to a taxonomic scheme dictated by the particular facts of the case (such as in Maxwell), the offence of robbery is not “of the same type” as a common assault. If regard is had to the elements of the offences, while a robbery is an offence involving violence or threat of violence against the person, the essence of the offence is that it is a more serious example of theft and involves the element of dishonesty. That is consistent with its classification within the criminal law being located in ch 3 of the Criminal Code (Theft, Fraud Bribery and Related Offences) rather than with assault in pt 2 of the Crimes Act 1900 (ACT) (Offences against the Person). The approach in Maxwell would not justify the classification of the offences together in this case because, in contrast to that case, the factual circumstances were not such as to provide a basis for the aggregation of the offences. There were no antecedent facts such as those relating to what constituted a “job” of the UVF that would allow an assault and a robbery to be categorised together in this case or to suggest that those otherwise disparate offences should in the circumstances of the case be categorised as of the same type.
I have not accepted the Crown’s submission that it is sufficient if the offence committed shared an element with the offence agreed to. While this would provide a mechanical and hence certain approach to the operation of the provisions, it differs from the actual language used by the legislature (“type” rather than any reference to element) and is likely to create too great an aggregation of offences.
For this reason the Crown has failed, for the purposes of s 45A(2), to establish that the offence committed was “in accordance with” the agreement that existed between the accused and Mr Horner. Because the Crown has failed to establish that the offence committed was “of the same type” as the offence which was agreed to be committed, the requirements of s 45A have not been established. The Crown case was run on the basis that the liability to be established was by reason of s 45A and not independently. As a consequence the accused must be found not guilty of the offence. There was no backup charge of theft. The accused must be acquitted.
Order
The order of the Court is:
On the charge of aggravated robbery (CC2017/1695), a verdict of acquittal is entered.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 5 November 2018 |
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Amendments
5 November 2018 Correct paragraph numbering Paragraphs: following [84]
5 November 2018 Replace “seventy-seven [77] with “ninety [90]” Certification block
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