R v Shearer - [2018] ACTSC 91

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 Crimes (Serious Organised Crime) Amendment Act 2010 (ACT) Criminal Code Act 1995 (Cth), s 11.2A Criminal Code 2002 (ACT), ss 45A, 310, ch 3
Cases Cited:	Bruce v Williams (1989) 46 A Crim R 122 DPP v Maxwell [1978] 1 WLR 1350 R v Ancuta (1990) 49 A Crim R 307 R v Bainbridge [1960] 1 QB 129 R v Connors (No 2) [2016] ACTSC 333 R v Goodwin [2009] ACTSC 111; 233 FLR 473 R v DM [2010] ACTSC 137 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…

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 Shearer

Details

AGLC: R v Shearer [2018] ACTSC 91
Case: [2018] ACTSC 91
Decision Date: 9 April 2018

CaseChat Overview and Summary

The defendant, Shearer, faced a trial in the Supreme Court of the Australian Capital Territory on charges of aggravated robbery. The case revolved around the contention of whether there was a non-verbal agreement between Shearer and another individual to commit the aggravated robbery and whether such an offence is categorised as "of the same type" as an assault. The trial was conducted without a jury, as per the provisions of section 45A of the Criminal Code 2002 (ACT).

The court was required to determine whether the aggravated robbery was a joint commission and if the offence could be deemed as being "of the same type" as an assault. The critical legal issue was whether there was a non-verbal agreement between the offenders that constituted a joint commission, and if aggravated robbery could be classified under the same type of offence as an assault for the purposes of section 45A. The court needed to interpret the statutory language and consider the legal precedents relevant to the definition and classification of offences.

The court concluded that there was insufficient evidence to prove that there was a non-verbal agreement between the offenders to commit the aggravated robbery. Additionally, the court found that aggravated robbery is not an offence "of the same type" as an assault. As a result, the court acquitted the defendant on the charge of aggravated robbery. The reasoning was based on the interpretation of the statutory language and the established legal principles regarding joint commission and the classification of offences.

The court entered a verdict of acquittal on the charge of aggravated robbery.

Orders

Orders of the court

On the charge of aggravated robbery (CC2017/1695), a verdict of acquittal is entered.

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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