R v Soun
[2021] SADC 32
•26 March 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SOUN
Criminal Trial by Judge Alone
[2021] SADC 32
Reasons for the Verdict of his Honour Judge Durrant
26 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused charged with the offence of Aggravated Robbery of a handbag - whether the accused had used force against another to commit the theft - meaning of 'force' - consideration of whether force used can be indirect against another through an object supporting that person.
VERDICT: Guilty.
Criminal Law Consolidation Act 1935 ss 1, 3, 4, 5AA, 137(1); Juries Act 1927 s 7(1); District Court Criminal Rules 2014 r 49(1); The Theft Act 1968 (UK) s 8(1); Evidence Act 1929 s 34P (1), 34R (2), referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Markou v The Queen [2012] NSW CCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Haines [2016] SASC 96; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; R v Dawson [1976] 64 Cr App R 170; R v Clouden [1987] Crim LR 56; R v Nieterink (1999) 76 SASR 56, considered.
R v SOUN
[2021] SADC 32
Introduction
The accused, Yika Soun, pleaded not guilty to aggravated robbery. Her alternate plea, of guilty to aggravated theft, was not accepted by the prosecution.[1] She therefore elected that I hear her trial without a jury. [2] The sole issue at trial was whether the accused had used force against another, in order to commit the theft.
The Information
Statement of Offence
On the 19th day of March 2019 at Kilkenny in the said State, used or threatened to use force against Barbara Taylor in order to commit the theft of a handbag and its contents, and the force was used, or the threat was made, at the time of, or immediately before, or after, the theft.
Section 137(1) of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstance of aggravation is that Yika Soun committed the offence knowing that Barbara Taylor was over the age of 60 years at the time of the offence.
[1] Criminal Law Consolidation Act1935, ss 1, 3, 4.
[2] Juries Act1927, s 7(1); Election for Defendant for Trial by Judge Alone dated 14 August 2020.
Elements of the Offence
The prosecution had to prove, beyond reasonable doubt, each of the elements of aggravated robbery as follows:
·first, that the accused committed a theft;[3]
·second, that the accused used force or threatened to use force against another, in order to commit the theft or to escape from the scene of the offence;
·third, that force or the threat of force was used at the time of or immediately before or after the theft; and,
·last, that the accused committed the offence knowing that the victim of the offence was at the time of the offence, over the age of 60 years.[4]
[3] Theft occurs where a person directly deals with another’s property without their consent, either intending to permanently deprive the owner of the property or to seriously encroach on the owner’s rights to the property
[4] Criminal Law Consolidation Act1935, s137(1), 5AA.
By her plea of guilty to aggravated theft, the accused admitted the commission of a theft and knowledge that the victim had been over the age of 60.[5] It remained solely for the prosecution to prove, beyond reasonable doubt, the second and third elements of the offence.
[5] T3 lines 26-30, T35 line 36 - T36 line 30, T35 line 35 - T36 line 8.
General Directions
As this was a trial without a jury, I must deliver considered and fully articulated reasons. Whilst sufficient reasons must be given to properly explain my verdict,[6] I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’.[7]
[6] BCM v The Queen [2013] HCA 48: Douglass v The Queen [2012] HCA 34 [14]: R v Keyte (2000) 78 SASR 68: AK v Western Australia [2008] 232 CLR 438: Aiken v The Queen [2014] NSWCCA 213.
[7] Markou v The Queen [2012] NSWCCA 64 [19]: R v R, R & R, LJ [2008] SASC 35, R v T, WA [2014] 118 SASR 382.
In reaching a verdict, I have applied the principles, relevant to this case, helpfully set out by Lovell DCJ (as he then was) in R v S, GJ.[8]
[8] R v S, GJ [2012] SADC 150, [11]- [21].
As the Judge of the facts and law, I must find the facts and draw the inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused always. The accused does not have to prove that she did not commit the offence as charged.
If the accused does adduce any evidence which is consistent with her innocence, she does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not prove its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of her guilt. I make findings contained in these reasons, beyond reasonable doubt, unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all the elements of the offence charged then she remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of the charge, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses are truthful and reliable, that is whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.
Relevant Legislation – Criminal Law Consolidation Act 1935
137—Robbery
(1) A person who commits theft is guilty of robbery if—
(a) the person—
(i)uses force, or threatens to use force, against another in order to commit the theft; or
(ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and
(b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
Reasons on Voir Dire
Mrs Taylor provided to Police, on the day of the alleged offence, a signed and witnessed statement. By the commencement of trial, Mrs Taylor had died. Consequently, the prosecution made application to lead the evidence contained in the statement, pursuant to s 34KA of the Evidence Act1929.[9] Despite opposition, I allowed its tender[10] and said I would provide written reasons for doing so.
[9] Application to lead evidence pursuant to 34KA dated 21 January 2021.
[10] The accused separately sought an order the prosecution not be permitted to tender the statement; Application pursuant to r 49(1) District Court Criminal Rules 2014, dated 11 February 2021, I dismissed that application.
Section 34KA of the Evidence Act1929, allows the admission into evidence of out of court statements made by unavailable witnesses:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an "out of court statement ) is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the "relevant person ) is identified to the court's satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are as follows:
(a) that the relevant person is dead;
Section 34KD of the Evidence Act 1929, confers a statutory discretion and preserves the common law discretion to exclude evidence; even if the preconditions to admissibility under s 34KA are satisfied.[11]
[11] R v Haines [2016] SASC 96 [37]- [38], [40]; see also Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274, [26]- [43].
The statement of Mrs Taylor was brief:
‘I, Barbara Taylor of Blair Athol, in the State of South Australia, affirm and declare as follows:
I provided this statement to Probationary Constable Coghlan identification number 77123 of Port Adelaide Patrols at about 2.00pm on Tuesday 19 March 2019 at Woodville South.
At about 12.30pm on Tuesday 19 March 2019, I was at the Arndale Shopping Centre, 470 Torrens Road, Kilkenny, shopping with my daughter, Ruth. I walk with a walker, which has handles and four wheels. It has a seat on it, I was using this to hold my handbag and I wrapped the handle of the handbag around the handle of the walker. I had also fed my arm through it, as a precaution in case someone tried to take it.
My handbag is black and has a small red cord attached to the handle, with a figurine of a Welsh Dragon. I had just withdrawn my pension, I had $950 in cash in my bag. I carry a purse, photographs, pens, a camera and all my cards in my handbag. I think it would have cost about $1200 to replace it all.
Ruth left to go and do some shopping, I think she was just around the corner. I was walking outside Big W, I walked around the corner and towards the escalators.
Suddenly, I felt someone pull at my walker, they grabbed at me. I didn’t see the person, they took my bag. I think they pulled my walker.
I started to fall, I think I screamed out as I fell. I hit the ground on my right side. I felt pain in my right hip and shoulder. At the time I thought my shoulder might be broken.
I didn’t see anyone near me, or grab at my bag. I just saw a hand. I have trouble hearing, so I wouldn’t have heard the person.
I was lying on the ground, people came up and a woman got me something to put under my head. I was afraid to move, I was worried about broken bones. Then I saw that Ruth was back. People kept coming up to check I was ok.
I think a young man who chased after the person brought my bag back, because suddenly it was back in my hands. It was still closed and the contents have been checked and everything is still there.
A short time later, paramedics arrived. They checked me over and moved me down to the ambulance. They brought me to the Queen Elizabeth Hospital.
I am still suffering from sore shoulders; they both feel dull and achy. My right hip is still quite painful but not as bad as it was, this could be due to the pain relief that the staff at the hospital gave me.
I didn’t give anyone permission to take my handbag, the handbag is my possession’.
It was not in dispute that Mrs Taylor was satisfactorily identified in the statement (s 34KA (1)(b)) and was deceased (s 34KA (2)). [12]
[12] VDP1- Death Certificate of Barbara Taylor; VDP2- Statement of Barbara Taylor 19 March 2019.
As to the first pre-condition (s 34KA(1)(a))- that the character of the evidence was such that it would have been admissible if given by Mrs Taylor orally- the accused submitted the statement lacked clarity and did not go to prove a fact in issue and was irrelevant and inadmissible. That was because, it was submitted, the statement was not clear as to whether it addressed the time of the alleged offending or, what Mrs Taylor had been doing just prior to the alleged offending.[13]
[13] T31 line 32 - T33 line 22.
I considered the statement of Mrs Taylor to be clear. It addressed the events leading up to the theft, the way she secured her handbag and what had happened to her at Arndale that day. Given the character of such evidence, it would ordinarily be admissible evidence led orally from a complainant or an alleged victim as part of a prosecution case. I am satisfied therefore that the first pre-condition had also been satisfied.
The Evidence
At trial, the prosecution tendered the following exhibits:
P1Statement of Barbara Taylor dated 19 March 2019.
P2Statement of Simon Lorenz dated 9 February 2021.
P3Statement of Simon Lorenz dated 12th February 2021.
P4Mud map.
P5USB of CCTV footage cameras 1-7.
P6Bundle of 12 still photographs.
P7Bundle of 6 still photographs.
P8Bundle of 2 photographs taken by Mrs Taylor-Hull of her mother.
P9Agreed facts.
Both statements of Mr Lorenz were accepted, without the need for him to be called, and proved the CCTV footage taken at Arndale on 19 March 2019.
As for the evidence of Mrs Taylor, I did not have the opportunity of seeing her or of listening to her cross-examination. While her statement was admitted into evidence, I have reminded myself that it is still an out of court statement and of the danger of relying on such. Whilst I have taken the evidence of Mrs Taylor into account, I have approached it with a degree of caution.
The prosecution also called: Mrs Ruth Taylor-Hull, the daughter of Mrs Taylor; Mr Sean Rooney, who witnessed the incident; and Detective Brevet Sargeant Winterfield.
The facts agreed by the parties and tendered by the prosecution were as follows:
1.The accused, Yika Soun, is the female depicted on the CCTV footage wearing a dark baseball cap, grey t-shirt with ‘Everlast’ printed on the front and black leggings.
2.The accused, Bounleng Vongkhamchanh, is the male depicted on the CCTV footage carrying a large bag and wearing grey shorts, a white t-shirt and sports jersey.
3.The complainant, Barbara Taylor, is the female with the walker wearing a pink and white patterned top and skirt.
Established Facts
As well as the agreed facts, the following further facts were also established from the oral evidence, the exhibits and my observations from the CCTV footage.
Mrs Taylor-Hull told me that, from about 2013, her mother had used a walker to support herself. On 19 March 2019, she had attended a medical appointment with her mother. They resolved, as they were in the area, to have something to eat at the Arndale Shopping Centre.
Mrs Taylor-Hull and her mother got out of the car in the Arndale car park. Consistent with her usual practice, Mrs Taylor: put her handbag on her walker; positioned herself on her walker for support; put the strap of her handbag around the left end handlebar of the walker; gripped the left end handlebar above the strap; and, placed her handbag on the walker seat.
Inside the shopping centre, Mrs Taylor used her bankcard at an ATM. As Mrs Taylor and her daughter moved away from the ATM, Mrs Taylor-Hull observed that the strap of her mother’s bag was around the left end handlebar of the walker and her mother had gripped one hand at each end of the handlebar; her left hand above the strap of the handbag.
Mother and daughter separated as they left the ATM and agreed to meet up later. Mrs Taylor-Hull did not see what happened next.
CCTV cameras, in and around the Arndale Shopping Centre, recorded what had occurred.[14] The following is based on my observations of that footage.
[14] Exhibit P5.
The accused, and her male companion Bounleng Vongkhamchanh, entered the shopping centre at 12:30:46 pm.[15] The accused and Mr Vongkhamchanh passed behind an elderly woman (not Mrs Taylor) sitting on a bench. The accused appeared to show an interest in the woman on the bench, particularly, in her handbag sitting next to her. The woman appeared to notice the accused and took hold of the strap of her handbag and placed it over her right shoulder. The accused turned away and followed Mr Vongkhamchanh.[16]
[15] Exhibit P5 – CCTV footage file 2.
[16] Exhibit P5 – CCTV footage file 2 at 12:31:10.
At 12.31pm- between the 27th and 50th seconds of that minute- the interaction involving Mrs Taylor and the accused was captured on CCTV.
Mrs Taylor is seen, with the support of her walker, moving slowly through the mall. The accused, passing behind Mrs Taylor, looks at her from an angle slightly to the left and behind. Mrs Taylor shows no sign that she has seen the accused and continues to move forward slowly with the support of her walker.[17]
[17] Exhibit P5 – CCTV footage file 4 at 12:31:36.
The strap of Mrs Taylor’s handbag is hooked over the left handlebar of the walker.[18] Mrs Taylor has hold of the left end of the handlebar of the walker with her left hand; in front of the strap and close to the left end of the handlebar. The placement of the left hand of Mrs Taylor in that position prevents the strap from coming off the end of the handlebar.
[18] Exhibit P5 – CCTV footage file 4 at 12:31:39.
From her position behind Mrs Taylor, the accused has a clear, unobscured view of: the handbag; the strap on the left end of the handlebar; and, Mrs Taylor’s left hand gripped onto the left end of the handlebar above the strap. The accused crouches low behind Mrs Taylor; her eye line from behind and slightly to the left of the waist level of Mrs Taylor. Mrs Taylor appears to remain unaware of the attention and presence of the accused.[19]
[19] Exhibit P5 – CCTV footage file 4 at 12:31:42.020 to 12:31:42.0760.
The accused reaches in at speed and with both hands, between the handlebar, Mrs Taylor and the seat.[20] She takes hold of the strap of the handbag, with both hands, at a point between the bag and the handlebar.[21] The accused, having drawn her hands back towards her body in a pulling motion, causes the strap to tense and tighten between her hands and the left handlebar.[22]
[20] Exhibit P5 – CCTV footage file 4 at 12:31:43.070.
[21] Exhibit P5 – CCTV footage file 4 at 12:31:43.230.
[22] Exhibit P5 – CCTV footage file 4 at 12:31:43.550.
The accused adjusts her weight to stop her forward motion. The tension on the strap- held by the accused- against the left handlebar held by Mrs Taylor, causes the front wheels of the walker to both lift and turn sharply to the left and counter clockwise.[23] The fixed back wheels of the walker continue straight ahead. Mrs Taylor does not react at all; she appears to be unaware of the accused and continues to move forward.
[23] Exhibit P5 – CCTV footage file 4 at 12:31:43.627.
The accused comes to a halt, in anticipation of and necessary for an adjustment of her weight backwards. Her left leg fully extends as her left foot braces against the left front wheel of the walker. The walker handlebar moves leftward and counter clockwise, in the direction of the accused. The tension in the strap- between the walker and the accused- holds tight.[24] The left hand of Mrs Taylor remains on the left handlebar; albeit being pulled to the left.
[24] Exhibit P5 – CCTV footage file 4 at 12:31:43.773.
As the handlebar of the walker continues to veer left, the left arm of Mrs Taylor lifts slightly from its position at her left side. Her upper body is consequently turned– left hip in and right hip out- towards the accused, who remains behind her. The walker moves about 90 degrees counter clockwise to the left side of Mrs Taylor.[25] Mrs Taylor releases her left hand from the left end of the handlebar.
[25] Exhibit P5 – CCTV footage file 4 at 12:31:44.010.
Notwithstanding that Mrs Taylor has let go with her left hand, the strap remains around the left end of the handlebar.[26] The accused pauses to untangle the strap over the left end of the handlebar. To do so, she lets go of the strap held in her left hand and unhooks the strap with both hands over the left end of the handlebar.[27] She turns and runs with the handbag in her hands.[28] Without the support of the walker, Mrs Taylor falls.[29]
[26] Exhibit P5 – CCTV footage file 4 at 12:31:44.587.
[27] Exhibit P5 – CCTV footage file 4 at 12:31:45.587.
[28] Exhibit P5 – CCTV footage file 4 at 12:31:45.407.
[29] Exhibit P5 – CCTV footage file 4 at 12:31:46.
Mr Rooney told me that when he saw the accused grab the handbag he ran after the accused and retrieved it.[30]
[30] Exhibit P5 – CCTV footage file 4 at 12:31:47.
Prosecution closing address
Ms Ingleton, for the prosecution, submitted that I should apply common sense and ordinary life experience to determine whether the accused had used force against Mrs Taylor, in order to commit the theft of her handbag. She submitted that the force elements of this offence had two limbs. First, whether the accused had used force and second, what the purpose had been, in using that force. She noted that ‘force’, is not a defined term in the Criminal Law Consolidation Act1935, and she directed me to authority to assist my interpretation of s 137(1).
In R v Dawson,[31] the complainant had been surrounded by three men, Mr Dawson, Mr James and a third unknown male; standing one either side and one behind. The three men had nudged or jostled the complainant and he had lost his balance. His wallet had then been stolen from his pocket and the three men absconded. Mr Dawson and Mr James had been convicted of robbery by a jury. On appeal, it was argued there had been insufficient evidence of force, albeit ample evidence of theft, and that the trial judge should not have left the offence of robbery to the jury. The appeal was dismissed. The Court of Appeal held that, whether force had been used, was properly a question for a jury on the facts of the case.
[31] R v Dawson [1976] 64 Cr App R 170.
Ms Ingleton, submitted that, as in Dawson, the use of force need not be significant or excessive or lengthy; it could be quick, limited and brief. In Dawson, she said, mere jostling had been sufficient ‘force on any person to steal’.[32]
[32] The Theft Act 1968 (UK), s 8(1), was in such terms.
The prosecution submitted that, in this case, the words of s 137(1)-[33] ‘using or threatening to use force against another’- were much broader than the legislation under consideration in Dawson. In the context of the Criminal Law Consolidation Act1935, it was submitted, force could be used against a person who was the owner of the property the subject of the theft, or, against another person, being someone other than the owner of the property.
[33] Criminal Law Consolidation Act 1935 (SA).
In that respect, it was submitted, ‘another’ – in s 137(1)- simply means someone other than the accused. Further, it was submitted, the Criminal Law Consolidation Act 1935, anticipates that the use of force, or the threat of the use of force, need not be direct. That means, it was submitted, that the intention of s 137(1) is such that an offender can be guilty if they use force without applying or using that force directly to another. That is, the force need not be used directly to the physical person; but could be used against an object in the possession of ‘another’.
R v Clouden,[34] said the prosecution, supported that submission. In that case, the act of pulling a shopping basket out of the hands of the victim had been sufficient for robbery to be established. In doing so, the Court of Appeal held that the statute in that case had eliminated the old distinctions between force on the actual person and force on the property which in fact causes force on the person.
[34] R v Clouden [1987] Crim LR 56.
The prosecution speculated a hypothetical example, in further aid of its submission. I was asked to conjure a street performer on stilts holding a box, containing their takings. An offender, who kicked the stilts out and made off with the box, would, it was submitted, have applied force indirectly to the performer. In such a case, said the prosecution, a robbery, would have been committed.
The prosecution said that in this case, analogously, Mrs Taylor had been entirely reliant on her walking frame as a mobility aid. Her entire weight and balance had been over the frame and force had been applied to it by the accused. As the walking frame had been an extension of Mrs Taylor; force, it was submitted, had been used against Mrs Taylor.[35]
[35] T79.
The prosecution submitted that I could be readily satisfied that force had been used to commit the theft in this case. I could also be satisfied, submitted the prosecution, that force had been used against Mrs Taylor; by reference to the CCTV footage and the still photographs. Force, said the prosecution, could be plainly seen because the wheels of the walker had changed direction. In that sense, it was submitted, whether Mrs Taylor had the handbag strap in her hand, under her arm or wound up in the walker, did not matter. The walker had been an extension of Mrs Taylor and force had been used against the walker to commit the theft.
Submissions of the accused
Mr Vadasz, for the accused, submitted I could not be satisfied, beyond reasonable doubt, that an intention to use force had been proved.
By reference to the street performer hypothesised by the prosecution, the accused accepted that the scenario put, included an intention to use force. That was because, in order for the thief to get the money being held out of reach, a deliberate application of force to the object keeping the performer out of reach (i.e. the stilts) had been required.
Mr Vadasz constructed his own hypothetical to demonstrate the lack of intention in this case. He postulated a pedestrian walking down a street and coming across a unicycle rider on the footpath. He asked me to visualise the pedestrian accidentally bumping the unicyclist and knocking them off; the belongings of the cyclist spilling in the process. If, he submitted, the pedestrian then picked up the cyclist’s sunglasses and made off with them, it would not be a robbery. That was because, he said, there would have been no intentional application of force to commit the theft. Extending the hypothetical further, Mr Vadasz asserted the same proposition, if a pedestrian, who disapproved of unicycles on footpaths, deliberately knocked the unicyclist to the ground. The taking of the sunglasses, in such a scenario, he submitted, would have been only an opportunistic theft.
The accused did not accept the submission of the prosecution that force could be used against an object only. The accused submitted that, where force was applied to an object upon which a victim had been reliant, an intention to apply force to the victim would be still required, to prove the offence. The accused submitted that, in this case, I must be satisfied beyond reasonable doubt that the accused intended to apply force or maintain force against Mrs Taylor.
The accused conceded I would have little difficulty in finding that the strap of the handbag had been over the left handle of the walker. The accused submitted that, on the available evidence, I would not be able to find that the strap had been placed through the left arm of Mrs Taylor.
The accused accepted that, the act of pulling a handbag attached to a person, would constitute a robbery. However, the accused submitted, the removal of an item out of a basket attached to a walker or the like – as in this case - was not robbery. The question here, submitted the accused, was whether the connection of Mrs Taylor to the walker and the connection of the walker to the handbag - and the force used to remove the handbag from the walker- was enough to establish the offence. Mr Vadasz said the answer to that question required a consideration of remoteness and proximity, and most importantly intention.
In support of his contention that there had been a lack of requisite intention, in this case, Mr Vadasz relied on the accused’s interaction with the unknown elderly woman seen in the footage when the accused first entered the shopping centre. That interaction, submitted the accused, established that her intention had been limited to snatching a handbag from someone who did not have control over their bag. That was because, the moment the unknown elderly woman had put her arm through her handbag – thereby securing it - the accused had turned away and lost interest. That showed, it was submitted, that the accused only had an interest in unsecured handbags; she had lacked the requisite intention to commit a theft of a secured handbag.
In any event, the accused submitted, a theft always required some application of force to the object stolen. The level of force used to support a robbery, it was submitted, had to be more than that and was not present in this case. Mr Vadasz cautioned me against reaching a conclusion about the extent of the force applied to lift the handbag of Mrs Taylor, based upon the still photographs tendered by the prosecution. He urged me to conclude that there had been a continuous movement - a crouch, to a grab of the handbag, to standing and, to running in the opposite direction. He submitted that those actions did not constitute “force” against Mrs Taylor. Rather, that continuous action constituted the force required to move (or commit a theft of) the handbag.
Importantly, submitted the accused, she had never grabbed the walker; only the bag or the strap. Therefore, she submitted, any force applied had not been against Mrs Taylor. It took, said the accused, just 0.8 of a second to commit what was only a theft; carried out in one fluid movement. The accused could not have, it was submitted, stopped her movement the moment she had felt resistance on the strap. It happened too quickly for her to become aware the handbag had been attached to the walker. There had, accordingly, been insufficient time, during the act of theft, to form the requisite intention for the use of force to commit the theft.[36]
[36] T98.
Consideration
The prosecution had to prove, beyond reasonable doubt, each of the elements of the offence: first, that the accused committed a theft; second, that the accused used force or threatened to use force against another, in order to commit the theft or to escape from the scene of the offence; third, that force or the threat of force was used at the time of or immediately before or after the theft; and, last, that the accused committed the offence knowing that the victim of the offence was at the time of the offence, over the age of 60 years.[37]
[37] Criminal Law Consolidation Act1935, s137(1), 5AA.
I am satisfied that, by her plea of guilty to aggravated theft, the accused admitted the first element – the commission of a theft – and the fourth element –knowledge that the victim had been over the age of 60 years.[38] I find those elements proved beyond reasonable doubt.
[38] T3 [26]- [30], T35 [36]-T36 [30], T35 [35]-T36 [8].
In respect of the second and third elements, the accused submitted that, in order to find her guilty, I must be satisfied beyond reasonable doubt, that she had used force against Mrs Taylor and, had intended to use that force to commit the theft. The prosecution submitted that I had to be satisfied, first, that the accused had used force against Mrs Taylor and, second, if she had used force, that her purpose in doing so had been to commit the theft.
The alternate formulations by the accused and the prosecution, are not materially different. What is required of me is to use my commonsense, experiences and wisdom to assess the evidence and consider whether I am satisfied, beyond reasonable doubt, that the accused intended to commit a theft of the handbag by using force against Mrs Taylor.
In my consideration, the word “force”, as it is contained in s 137(1) of the Criminal Law Consolidation Act 1935, must be given its ordinary and everyday meaning; “strength or power exerted upon an object; physical coercion; violence.”[39]
[39] Macquarie Online Dictionary, Macmillan Publishers 2021.
Further, in s 137(1), “force’ is contained within a phrase of broad concept; ‘using or threatening to use force against another to commit the theft’. That phrase reflects the physical requirement that an object will not change unless a force acts upon it [40] and, that the use of force can be quick, limited and brief or slow, extensive and lengthy; and, everything in between. Further, force can be used both against a person who is the owner of the property the subject of the theft, or, it can be used against another person; someone other than the owner of the property. The force used can be direct or indirect; s 137(1) is concerned with an offender using force “against” (or in opposition to) another. In this case, the prosecution contends that force was used against another through the object that wholly supported that person. The prosecution says the walker was an extension of Mrs Taylor.
[40] Isaac Newton, Philosophiae Naturalis Principia Mathematica (1687); Newton’s First Law.
The accused conceded that I would have little difficulty in finding that the strap of the handbag had been over the left handle of the walker. I have found that Mrs Taylor had, on 19 March 2019, and at the time of the theft and consistent with her longstanding practice, put her handbag on her walker and put the strap of that handbag around the left end of the handlebar of the walker.
I have also found that, consistent with her longstanding practice, Mrs Taylor had, at the time of the theft, gripped the walker by the left handlebar in a manner which prevented the strap of the bag from being able to come loose from its position on the left handlebar. I have further found that Mrs Taylor had hold of the handlebar of the walker because she had been entirely reliant on the walking frame; it provided aid to her mobility.
I have not found that the strap had been placed through the left arm of Mrs Taylor.
I am satisfied, beyond reasonable doubt, that the accused, in committing the theft, used force against another, Mrs Taylor, through the walker she was holding. The force used did not have to be, but was, significant; the force on an object being equal to its mass multiplied by its acceleration.[41] The force used to pull the strap caused it to tighten and tense against the handlebar, moving in another direction. The force used caused the front wheels of the walker to lift and turn sharply. The force used caused both the left arm of Mrs Taylor to move from its position at her left side and her torso to turn from her hip towards her left and the accused behind her. The force used caused the walker to rotate 90 degrees to the left from its intended course, and out of the grasp of Mrs Taylor.
[41] Newton’s Second Law.
In my consideration of whether the accused intended to use that force against Mrs Taylor to commit the theft, I have had regard to the evidence of interaction between the accused and the other woman in the shopping centre, for a single limited purpose only. That is, to consider the submission of Mr Vadasz that the interaction should lead me to doubt the accused held the requisite intention to snatch a handbag from someone who had control over their bag.
Having had regard to that evidence for that single limited purpose, I have not been persuaded as Mr Vadasz advocated. The premise which underpins the doubt he contended, is false. Both Mrs Taylor and the other woman had secured and had control over their handbags. The other woman; over her shoulder. Mrs Taylor; by placing the handbag strap around the left end of the handlebar of her walker and by gripping the left end of the handlebar above the strap. Further, any decision made by the accused in her selection of a victim, would factor a range of considerations including; the element of surprise, the age, alertness and physical condition of the intended victim, the location within the shopping centre, and the presence of others. The evidence of the interaction with the other woman does not lead me to doubt the accused held the requisite intention to snatch a handbag from someone who had control over their bag.
Having had regard to that evidence for the single limited purpose explained, I have not had regard to it, as suggested by both the prosecution and the accused, to establish that the accused had gone to the shopping centre that day to commit a theft. I have also not had regard to it to reason that the accused is the type of person to commit the offence charged.[42] Further, I have not used that evidence to prove, beyond reasonable doubt, that force had been used by the accused against Mrs Taylor to commit the theft of her handbag.[43]
[42] R v Nieterink (1999) 76 SASR 56; [1999] SASC 560, [86].
[43] Evidence Act1929, ss 34P (1), 34R (2).
I am satisfied, beyond reasonable doubt, that the accused intended to use the force generated by her arms, hips, legs and torso, against Mrs Taylor, in order to commit the theft of the bag. The accused made a considered selection of Mrs Taylor that day. The accused, having paused to observe the position of the handbag and the strap, resolved to strike. In coming to that decision, the accused had seen that Mrs Taylor needed the support of her walker; she was obviously old and she carried her weight forward and wholly on the walker frame. Further, the accused had seen from the unobscured view she had of the handbag and its strap, that the left hand of Mrs Taylor was gripped in front of the strap.
The accused, in order to commit the theft of the handbag, used surprise, speed and power to get the strap off the handlebar. She intended to grab hold of the strap with both her hands and, by use of the force generated by pulling with her arms and by changing direction through her hips and running away, free the strap from the left end of the handlebar and gain possession of the handbag.
I find the accused guilty.
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