R v Weismantel (No 2)

[2015] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:	R v Weismantel (No 2) [2015] NSWDC 213
Hearing dates:	26 June 2015; 2 - 3 July 2015
Date of orders:	03 July 2015
Decision date:	03 July 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Verdict of guilty
Catchwords:	CRIMINAL LAW – Trial by judge alone – Robbery with offensive weapon and infliction of grievous bodily harm – Crimes Act, s 98 – Whether victim of robbery and victim of grievous bodily harm must be same person – Robbery of restaurant cashier, infliction of grievous bodily harm upon owner – Cash takings of business property of and in custody of owner, despite takings being in immediate proximity of cashier – Owner sought to prevent robbery by physically intervening – Accused attacked owner to stop intervention – Accused only left restaurant when a different employee intervened – Necessary to look at transaction as a whole – Intention to steal continuing and contemporaneous with assault occasioning grievous bodily harm   CRIMINAL LAW – Whether grievous bodily harm – Spiral fracture of fibula at ankle – Required insertion of plate and screws – Favourable prognosis made soon after time of injury – Victim still symptomatic sixteen and a half months later –Injury interferes with ability to work and exercise
Legislation Cited:	Crimes Act 1900
Cases Cited:	Azzopardi v The Queen [2001] 205 CLR 50 Donnally’s case (1779) 1 Leach 193 Haoui v R [2008] NSWCCA 205 Smith v Desmond [1965] AC 960 Ryan v R (1967) 121 CLR 205 R v Foster (NSWCCA, 7 April 1995, 60325 of 1994)
Category:	Principal judgment
Parties:	Regina (Crown) Blake Weismantel (Accused)
Representation:	Counsel: Mr P Kerr (Crown) Mr S Schaudin (Accused)   Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Sydney Criminal Lawyers (Accused)
File Number(s):	14/1109
Publication restriction:	No

Judgment

1. HIS HONOUR: This is a criminal trial by judge alone. The accused was arraigned on an indictment containing one count. That count is this:

“On 31 December 2013 at Pennant Hills in the State of New South Wales, while armed with an offensive weapon, namely, a knife, did assault Sathaporn Wongsamak with intent to rob him and at the time of the assault he, the said Blake Weismantel, did inflict grievous bodily harm upon him.”

That is an offence contrary to s 98 of the Crimes Act 1900. The count in the indictment closely follows the wording of the provision. Section 98 is in these terms:

“Whosoever, be armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon such person, shall be liable to imprisonment for 25 years.”

A business and its owners

2. Situated at 1A Hillcrest Road, Pennant Hills is a restaurant known as the Tung Tong Roong Thai Restaurant. I shall merely refer to that restaurant hereafter as “the restaurant”. On the evidence before me, the owners of the restaurant business are Mr Sathaporn Wongsamak and his wife Mrs Laynookar Wongsamak. Mr Wongsamak goes by the moniker of “Paul” and his wife goes by the moniker of “Gail”. The evidence relevant to the ownership of the business is this. In a statement made on 30 January 2014, the officer in charge of the police investigation of the offence alleged, Detective Senior Constable Stephen Ireland said this in par 5:

“I spoke to an Asian male who was sitting down and holding his right lower leg. He introduced himself at Sathaporn Wongsamak, one of the owners of the restaurant.”

In a statement dated 17 January 2014, Mr Wongsamak said this:

“I have owned this business for the past four years. I am also the chef for the restaurant. I have nine staff that I employ at the restaurant not including my wife, Gail Wongsamak that works the counter.”

Mrs Laynookar Wongsamak in a statement dated 17 January 2014 said this:

“I currently own and operate the Tung Tong Roong Thai Restaurant situated at 1A Hillcrest Road, Pennant Hills and have done so for about five years. There are currently seven staff who regularly work at the location which includes some family members and my husband Sathaporn Wongsamak.”

Ms Pilasluck Chaiklongklaw made a statement on 7 March 2014. In it she said this:

“I now work as a manager in my older sister’s Thai restaurant in Pennant Hills. The name of the restaurant is Tung Tong Roong Thai, situated at 1A Hillcrest Road, Pennant Hills. I have worked there for the past five years. My sister, Gail Wongsamak and her husband, Paul Wongsamak own the restaurant.”

A statement was obtained from Ms Krisna Wongsamak. At the time that she made the statement of 31 December 2013, the date of the offence alleged in the indictment, she was 18 years old. She identifies her parents as being Laynookar and Sathaporn Wongsamak. In par 4 of her statement she said this:

“My parents own and operate Tung Tong Roong Thai Restaurant, situated at 1A Hillcrest Road, Pennant Hills. They have operated the business for the past five years. Ever since they had the restaurant, I have also worked there helping as a waitress.”

Another person who works at the restaurant is Mr Adisak Wongsamak, although his surname is spelt in his statement with a final “u” rather than the final “a”. He made a statement on 7 March 2014. He was then 30 years old. In par 3 of his statement he said this:

“I work at the Tung Tong Roong Thai Restaurant at Unit 1A Hillcrest Road at Pennant Hills. My uncle and aunty own this restaurant and I am chef there.”

Later in his statement he identifies his aunty as Mrs Laynookar Wongsamak. Another employee of the restaurant is Mr Borom Pingmuangkaew. He made a statement on 29 May 2014 when he was 28 years old. In par 3 of his statement he said this:

“I work as a chef at the Tung Tong Roong Thai Restaurant which is on Hillcrest Road, Pennant Hills and [I] have [worked] there for about five years. My aunty, Gail, owns the restaurant with my uncle‑in-law [whom] I call Paul.”

When Mr Sathaporn Wongsamak was taken to the Hornsby Ku-ring-gai Hospital late on 31 December 2013, he gave a history that he was at work when a man with a knife attempted to rob “the business” and that he twisted his ankle in the course of trying to evade the person who was attempting the robbery. The evidence is all one way that the owners of the business are Mr Sathaporn Wongsamak and his wife Mrs Laynookar Wongsamak.

Legal directions

3. Before I go further, I should give myself, as the tribunal of law, the directions which I would give to the jury, if a jury were the tribunal of fact. The first direction relates to the onus of proof. As this is a criminal trial of a most serious nature, the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before the Court. It is, of course, not for the accused to prove his innocence but for the Crown to establish his guilt. A critical part of the criminal justice system is the presumption of innocence. What that means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades the tribunal of fact that the accused is guilty beyond reasonable doubt.

4. The next direction of law which I give to myself concerns the standard of proof. The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof the Crown must achieve before I can convict the accused of the crime alleged in the indictment. At the end of my consideration of the evidence given in the trial and the submissions made to me by the Crown and by the defence, I must ask myself whether the Crown has established the accused’s guilt beyond reasonable doubt. In other words, I should ask myself: is there any reasonable possibility that the accused is not guilty? However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation that rests upon the Crown is to prove the elements of the charge, that is, the essential facts that go to make up the charge, and it must prove those facts beyond reasonable doubt. I shall in due course outline what the elements of the charge before me are. It is those elements that the Crown must prove beyond reasonable doubt. In a criminal trial there is only one ultimate issue that the tribunal of fact has to decide. That issue is whether the Crown has proved the guilt of the accused beyond reasonable doubt. If the answer to that question is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict that I must return is “not guilty”.

5. I now direct myself to the question of inferences. I may in my role as the judge of the facts draw inferences from the direct evidence. That is something that consciously and otherwise everyone does in daily life. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts, then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. In a criminal trial, where I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful about drawing any inferences. I must examine any possible inference that I draw to ensure that it is a justifiable inference. In the context of a criminal trial, I should not draw any inference from direct evidence unless it be a rational inference in the circumstances. Furthermore, if the inference I draw is to an essential element or essential fact that the Crown must prove, I can only draw such an inference if it be the only rational inference that might be drawn in the circumstance.

6. This is a case in which the accused has not given or called any evidence in response to the Crown case. I must direct myself in accordance with Azzopardi v The Queen [2001] 205 CLR 50. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. As I have already directed myself, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus of proof in respect of any fact that is in dispute. I must remind myself that the accused is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard of proof required in a criminal trial. I direct myself as a matter of law that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberation on the evidence before me. The accused’s decision not to adduce evidence or to give evidence cannot be used by me as amounting to some admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call any evidence. I cannot use the fact that he did not call or give evidence to fill in any gaps that I might perceive in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence, or what might have been said by any person not called to give evidence if that person had been called by the accused as a witness in the trial.

Elements of the offence

7. The elements of the offence alleged in the indictment are five in number. The first is that the accused was armed with an offensive weapon, identified in the indictment as a knife. The second is that the accused assaulted the complainant, Sathaporn Wongsamak. The third is that the accused intended to steal property from Sathaporn Wongsamak. The fourth is that the accused used violence or put Mr Wongsamak in fear. The fifth and final element is that the accused immediately before or at the time of, or immediately after the assault, inflicted grievous bodily harm upon the victim, namely Mr Wongsamak. I shall direct myself at the appropriate time as to the meaning of the term “grievous bodily harm”. The mens rea for this offence is the intention to steal. No specific intent to inflict grievous bodily harm need be proved. All that the Crown needs to prove is that the act which caused the grievous bodily harm was a voluntary act of the accused. In that regard I am directing myself in accordance with Ryan v R (1967) 121 CLR 205.

Evidence of the facts

8. There are some inconsistencies in the evidence, but they do not raise any substantive issue before me. For example, Mr Sathaporn Wongsamak in his statement said that the restaurant was opened each day for dinner from 5.30pm to 10.30pm, although there is much evidence to suggest that the restaurant actually closed at 10pm. Nothing turns on such a minor inconsistency.

9. It is convenient if I commence the discussion of the facts by quoting from the first part of the statement of Mr Borom Pingmuangkaew, to whom I shall hereafter refer to merely as “Borom”. Borom’s statement was obviously given by a man whose first language was other than English. Much of his grammar and syntax is poor. However, it is clear what he means, and in quoting his statement I shall quote it in full English, rather than the abbreviated English that is recorded in his statement. Commencing at par 5 he said this:

“On 31 December 2013 I was working at the restaurant, I started in the morning at 10.30 to 11 in the night. The restaurant normally closes at 10 in the night and I stay to 11 to clean up. It was New Year’s Eve and a lot of customers were eating quickly so that they could go to Sydney to see the lights.

6. I’m not sure what time it was, but it would be close to closing time, as the last customers had finished their meal and had just paid. I think there were about five of them, I think three men and two women. Some were standing outside the front door waiting, and some were using the toilet. I went out front of the restaurant to bring in tables. When I did I saw a man across the road, I didn’t see anyone else, just him. I noticed him because he had a dark coloured jumper with a hood up on his head and it looked like he had his hands just inside the pockets of his jumper. He had short pants on, but I can’t remember the colour and he looked big and tall. He was looking at our restaurant and I thought he might be a customer.

7. I picked up one of the tables and carried it inside, right up to the back, next to the toilet where there is storage. I was arranging the table there with my uncle‑in‑law Paul. I heard my Aunty Gail yell out from the front of the restaurant in Thai, ‘Help!’”

10. I turn now to the description of events recorded by Mrs Wongsamak. I must point out that the photographic evidence before me, exhibit F3, shows that a number of steps lead from the footpath of Hillcrest Road up to the entrance to the restaurant. They can be shown in the photographs numbered 1 and 2. Those steps are within the front door of the restaurant itself. They lead up to the level of the restaurant where there are dining tables and chairs. As one mounts the steps, there is, on the right‑hand side, a counter. That counter extends from the side wall and forms an “L”‑shape, with the long side of the “L” being parallel to the side wall of the restaurant. The counter has on the right-angled bend of the “L” a seated Buddha statue and at the top end of the “L” is a standing Buddha statue. Between those two statutes on the long side of the “L” is a cash register. The counter has two levels, an upper level and a lower level which appears to me to be about 6 inches or 15 centimetres below the top level of the counter. On the bottom level of the counter is situated the cash register, such that only part of it appears above the top level of the counter.

11. Mrs Wongsamak said this in her statement of 17 January 2014, exhibit LX:

“On Tuesday, 31 December 2013, New Year’s Eve, the restaurant was open for business from 5.30pm until 10pm. There were seven staff on and my four kids were also there helping out. At about 10pm we had just closed and the last customers had just walked out the front and were standing in front of the St George Bank, which is...next door to the restaurant on the left when looking at the restaurant from the outside.

There were about six customers as they had just finished dining in the restaurant. The customers were three men and three women and they were all older, in their fifties or sixties.

5. A few minutes after the customers walked out the door I was standing behind the front counter with my sister, Pilasluck Chaiklongklaw, was standing right next to me. A male walked in, he was very big, about 180 centimetres tall with a solid build. He was wearing a long sleeve jumper; it was grey or black with a hood on it. The hood was up over his head and with his left hand he was pulling the hood across his face to cover it. He had a knife in his right hand. I could only see the blade and it was silver, very long and looked sharp. I couldn’t see what he was wearing on the lower part of his body because the counter is too high.

6. He held out the blade in his right hand and pointed the blade towards me and waved it around. The blade was very close to me, almost touching my chest and stomach area. He didn’t say anything and I was so shocked I didn’t do anything. He walked around the counter to the side where my sister and I were standing. There is only one way into this side so we had nowhere to go. When he walked around towards me I got very scared, but I noticed he was wearing shorts and I remember seeing red on them. He walked to the cash register and started hitting it with the blade of the knife and said, “Empty, empty”. He yelled these words and was looking right at me. I felt so scared and shocked that I started shaking.

7. I called, “Daddy, daddy!” which is what I call my husband who was in the back of the shop. I saw that my husband, two male staff members, Mr Adisak and Mr Borom, my daughter Krisna and nephew Suchadet came out to the dining area. I think two other staff, Ms Naree and Ms Rattanaporn was still in the back of the store, but I’m not totally sure. The man who had the knife was still standing near me behind the counter within arm’s reach. I heard my husband shout, “Stop” I’m not sure exactly what, it was, “Fucking!” something. The male walked out from behind the counter into the dining area and I saw Mr Borom throw one of the dining chairs towards him. The chair didn’t hit him and the male just stood there. My husband picked up a chair and held it at about chest height in front of him and pointing towards the male. He yelled something like, “Get out!” but the male grabbed the chair and pushed hard and my husband fell to the floor.

8. The male stood over my husband and was holding the knife in his right hand with the blade facing down. He raised the knife up to his head height and swung it down really quickly to about his chest height really quickly. He did this a few times towards my husband but he wasn’t saying anything. I saw Mr Borom throw another chair at the male and I think it hit him. I think when the chair hit him, he just turned around and walked out the front door.”

12. I should indicate that one of the inconsistencies in the evidence is whether Borom threw the first chair towards the robber before interaction of the robber and Mr Sathaporn Wongsamak or whether both chairs were only thrown by Borom after the interaction of the robber and Mr Sathaporn Wongsamak. Again, it does not make any material difference.

12. As stated by Mrs Wongsamak, her sister, Ms Pilasluck Chaiklongklaw, was behind the counter with Mrs Wongsamak. Her statement contains this matter:

“7. I was sitting behind the front counter where the cash register is situated. I had a clear view of the front door when I saw a man enter through this door from Hillcrest Road and lean over the counter where my sister was standing. I saw that he was holding a long knife in his right hand. The man was wearing a black coloured, long sleeved woollen jacket with a hood which covered his face. He was holding the hood with his left hand so his face was covered. He was very tall and very big build. I think he was well over 6 feet tall and very heavy. He was a very big man. I don’t remember what else he was wearing as I was in shock. I don’t recall if he wear[sic] gloves.

8. I saw this man reach over the counter and jab the knife at my sister’s upper chest. I heard the man say to my sister, “Empty, empty, empty”. I saw my sister step back from the knife quickly and then the man walked to the end of the counter where I was seated and he started to bang the tip of the knife blade on top of the cash register. I got up and walked away from the man and stood behind my sister. As the man continued to bang the knife on the cash register my sister called out to her husband, Paul, “Daddy, daddy”. Her husband (Paul) came running from the restaurant and picked up a chair. The man moved from the cash register area at the end of the counter where my sister’s husband was standing with the chair. Paul pushed the chair towards [the man] but the man pushed back against the chair which made Paul fall to the ground. The man was still holding the knife in his right hand when Paul fell to the ground. As Paul was laying on the ground the man walked from behind the counter to where Paul was laying on the floor and I saw the man poke the knife towards Paul’s chest. Paul has the chair in front of him. One of the staff members, Borom...picked up a chair and threw it at the man but it missed. Borom picked up another chair and threw it at the man and this time it hit the man. I can’t remember where it hit the man. The man then walked out the front door onto Hillcrest Road where I lost sight of him.”

14. Mrs Wongsamak’s sister confirms the entry of the would-be robber armed with a knife with which he threatened Mrs Wongsamak demanding that she empty the cash register. The proper inference to be drawn is that the would‑be robber wanted the contents of the cash register given to him, that is, the cash takings of the business.

15. I shall very shortly describe the scene as described by Mr Sathaporn Wongsamak. I should, however, prefix my quotation from his statement with the observation that the woman “Nuk” referred to by him is clearly a reference to Ms Naree Horarit, a waitress at the restaurant. Mr Wongsamak’s statement contains the following:

“On 31 December 2013, I had all my staff working as we are busy on New Year’s Eve. About 10.30pm on that night I was in the kitchen of the restaurant. My wife was working at the counter of the restaurant. We had just had a table of customers leave the restaurant but they were out the front talking. I was talking with some of the staff in the kitchen when all of a sudden one of the server’s, Nuk, came running out into the kitchen and said in Thai, “Someone wants to get the money!” I thought she was joking.

5. I walked out to the front and I saw a big guy who is taller than my wife, standing behind the counter with my wife. She was standing near the till. He had a dark coloured hooded jacket on which he had over his head and pulled around his face. He was holding the hood with one hand and a 25 centimetre kitchen knife in the other hand. I can’t remember what hand he was holding the knife with. The male was holding the knife over his shoulder with the point of the knife towards my wife. He was yelling, “Empty the till!” Empty the till!”

6. I yelled at the man to get out of the restaurant. I was scared for my wife. I grabbed a wooden chair that was from one of the tables and I picked it up and held it towards the male. He turned around and looked at me. He started to walk towards me. He kept coming at me. He was making stabbing motions towards me with the knife still over his shoulder. I was blocking the knife from hitting me.

7. The male let go of the hood of his jacket and grabbed the chair. He started pushing backwards which pushed me backwards. As a result of being pushed backwards for about half an metre I tripped over my feet. I fell down onto the floor on my left side and my right leg and foot was all twisted.

8. The male still was coming at me with the knife when Mr Borom came from out the back and picked up a wooden chair and threw it at the male. Mr Adisak came out from the back and was standing behind me. The male was still standing there and Mr Borom picked up another chair and threw it at him. The male then just walked out the front door casually as if nothing happened. I saw him walk out towards the left.”

16. I have already quoted the first part of the statement of Borom. It continues thus, describing what happened after he heard Mrs Wongsamak call out for help in the Thai language:

“8. Paul and I ran out into the front of the restaurant and Paul was in front of me. I am not sure if anybody else ran out with us as everything happened quickly. We ran out to the front of the screen which is across the hallway.

I remember I see a man standing behind counter near machine that keeps our cash. He was big and tall and had a dark colour jumper on with the hood up and short pants on. I thought it was the man that I saw standing across the road. He had a knife in his right hand and was stabbing cash machine with blade. I did not hear him say anything. I saw my Auntie Gail and my Aunty Teesar [Pilasluck Chaiklongklaw] standing near him behind the counter and they looked scared.

9. I think Paul yelled at man, “get out!” I see man walk out from behind counter and face me and Paul. He stand there with his knife in his right hand, the blade pointing at us. He was standing about 3 or 4 metres away from us. I cannot remember anything more about what he looked like or who was there as all I look at was the knife in his hand. I think this is dangerous situation so I throw chair at man but I miss.

10. I was scared for my Auntie Gail and my Aunty Teesar as they were still behind counter and man was standing near them.

11. I saw Paul pick up chair and hold it in front of him and walk towards the man and yell, “get out!” The man walked towards Paul. The man was holding out the knife towards Paul, Paul’s head and neck. Paul put the chair up and I saw the chair was touching the man’s chest. The man pushed his body into the chair and hold knife towards Paul’s head but the chair blocked him. I think the man’s left hand was up holding the hood of his jumper across his face.

12. The man pushed his body forward. He pushed forward on the chair Paul was holding and I saw Paul fall to the floor. Paul still hold the chair up between him and the man to protect himself. The man was standing over Paul and I saw him stab out with the knife two times towards Paul’s chest but Paul kept the chair up to stop him. I picked up another chair and threw it at the man and it hit him on the left side. The man ran out the front door and still knife in his hand and turned left and walked up the road.”

17. A sketch plan annexed to Borom’s statement, the plan being marked as exhibit M2, shows the counter, then position of Mr Wongsamak and the position of Mr Borom, who was standing behind Mr Wongsamak, and then a screen which covered the entrance to a hallway which hallway gave access to the kitchen and the toilets and the storage area to which Borom had earlier referred, the storage area being opposite the toilets.

18. As I have earlier stated, the police also obtained a statement from Ms Krisna Wongsamak, the daughter of Mr and Mrs Wongsamak. She was wiping dishes in the kitchen when she heard Ms Horarit running from the front of the restaurant where customers usually were, calling out for her father. She went into the hallway from the kitchen. In her statement she referred to the hallway as a “walkway”. Her statement continues in this fashion:

“When I was in the walkway, I could see a male standing at the front counter, near the front of the shop. I was about 5 metres from where the male was, I saw he had a knife, he was banging it on the counter; he was saying words similar to “open up”. I saw my mother and Auntie Pilasluck standing behind the counter at the cash register close to where the male was on the other side of the counter. I saw both were backing away into the corner, while the male continued to bang his hand with the knife on the counter.

10. I heard my father shouting out words similar to “what the fuck” and I saw him come from the kitchen and pick up a chair from the main seating area. At this time the male had gone behind the counter and as he saw my father, he came back from behind the counter to near where he had been when I first saw him. My father was between where I was standing and where the male was.

11. As my father went towards the male, he pushed the chair he was holding out towards the male. My father went towards him with the chair, the male held the knife in his right hand and swung it towards my father. My father pushed the chair towards him. At the same time, my male cousin Borom who had been in the kitchen came into the main seating area and picked up a chair and threw it towards where the male was standing near the front counter. About this time my father fell backwards and landed on his back and stayed on the ground. Another male cousin Adisak, who had also picked up a chair and threw it towards the male, who then slowly walked to the front door and out onto the footpath.”

19. The final statement from a member of the staff at the restaurant is that made by Mr Adisak Wongsamak. His statement contains this evidence:

“I was in the kitchen which is at the back of the restaurant. I heard a woman scream and it sounded like my Auntie Laynookar Wongsamak. It was really loud and I think she say, “help, help, help”. I got excited as I didn’t know what happened, so I stopped work and ran out to customer area.

I saw a big guy standing at counter. He was tall, I am 175 centimetres tall and he was taller than me. He was a large solid build. He wear a black jumper with a hood which was on his head. He wear shorts which with white and blue on them. He wear like a sport shoe but I don’t know colour. In his right hand he had a long knife. I saw it had a black handle and a silver blade. He was holding the knife by the handle the blade facing down. With the left hand he was pulling hood across face.

7. I saw my auntie Laynookar and my auntie Pilasluck were standing behind counter and they looked scared. I saw two customer standing outside shop. My uncle Sathaporn was standing one metre from man and he was holding a chair up. I was standing about arm length behind my uncle.

8. The man raised knife above his head. He was still holding in right hand with blade facing down. He swung knife down towards my uncle. My uncle kept chair between him and man to stop him. Man pushed the chair my uncle holding and my uncle fell to floor. The man came over my uncle as he laid on ground and still swinging with knife. My uncle was using chair to keep man away from him.

9. I picked up a chair to help my uncle. My staff member in kitchen, Borom, he was a chef too, was standing near me. I saw him pick up two chairs and throw at man. Both chair missed the man. The man then ran out the front door of the restaurant and go left up the street. I went out the front of the restaurant and saw man run up street.”

Factual findings

20. Based upon those statements it is clear that the would‑be robber entered the restaurant, walked up to the counter and threatened Mrs Wongsamak with the knife. He may have at that time demanded that she empty the cash register. Mrs Wongsamak was frightened, scared. She did not comply with the initial demand. The would be robber then walked around the counter and behind it forcing Mrs Wongsamak and her sister into the base of the counter, that is between the area between the cash register and the seated Buddha. He then made a demand (again) that the cash register be emptied, again threatening Mrs Wongsamak and her sister with the knife by striking the cash register with the knife. I accept that Mrs Wongsamak had shouted out for assistance by calling for her husband by her pet name “daddy”. She may have also called for assistance in her native language as two of the witnesses depose. In any event, it would appear that the waitress Naree Horarit perceived what was happening and ran into the kitchen and raised an alarm.

21. Mr Wongsamak then left the kitchen in the company of Borom and Adisak and his daughter Krisna. Seeing his wife being threatened with the knife, he took up a chair and approached the would-be robber. He shouted out to the would-be robber, probably using foul language, the intent being that the would‑be robber quit the premises. The robber turned to confront him. The two advanced towards each other. The would-be robber still had the knife in his right hand and was threatening Mr Wongsamak with it but from a distance. Mr Wongsamak, who had picked up a chair, raised it to defend himself. The would-be robber had at that stage still the hood of his jumper pulled across his face in an attempt to conceal his identity. He let go of the hood and with his left hand grabbed the chair and pushed back against Mr Wongsamak. Mr Wongsamak was forced backwards. It is clear that the would‑be robber applied force to the chair forcing the chair against Mr Wongsamak. There was an application of force by the would-be robber on Mr Wongsamak who was pushed backwards and then, whilst still being pushed backward, fell. The action of the would be robber in grabbing hold of the chair with his left hand and pushing backwards with it was a voluntary act on the part of the would-be robber. It cannot be seen in any fashion to be an involuntary act.

22. I am persuaded beyond reasonable doubt that Borom threw two chairs towards the robber. The first would appear to have been before the interaction of the robber and Mr Wongsamak. The second was after Mr Wongsamak had fallen to the ground and whilst the robber was standing over Mr Wongsamak who still had the chair in his hands and was using it to fend off the robber. Borom threw a second chair which struck the robber and that caused him to desist from his interaction with Mr Wongsamak, and caused the would-be robber to leave the premises walking slowly, as the witnesses perceived it, perhaps not running but merely walking.

The witnesses outside the restaurant

23. The last group of diners was a group of 6. They were Mr Warren Craig Cardwell who was then aged 55 and his wife Rachel, Mr Malcolm Walker who was then aged 53 and his wife Katherine, and Mr Malcolm Logan and his wife Julianne Mary Logan who was aged 54 at the time. Statements were obtained by the police from Mr Cardwell, Mrs Cardwell, Mr Walker and Mrs Logan. The three couples were friends. They had met up with each other to enjoy a meal at the restaurant and either beforehand, or whilst dining, or immediately after dining, decided to take a train from Pennant Hills to Waverton and then to walk to Balls Head Reserve to watch the firework display at midnight.

24. Mr Cardwell drew a diagram which became exhibit Q2. That shows the path taken by the would-be robber into the restaurant and out of the restaurant and the relative positions of a number of persons. The sketch plan clearly shows the “L” shaped counter, the base of the “L” on its right side adjoining the side wall of the restaurant and the position of the two female staff members as Mr Cardwell perceived them, Mrs Wongsamak and her sister. It also shows how the would‑be robber walked around the top of the “L” to behind the counter and then his route from that place out of the restaurant. Marked on that plan is a place for two staff members, the one on the right hand side, I infer is, where Mr Wongsamak was, and the other position of a staff member, indicated by a drawing of a chair, was that of Borom. Mr Cardwell has marked his position immediately outside the entrance to the restaurant with a circle and initials, WC, with the note that he had a camera. There are two other persons identified as standing outside, they were his wife Rachel and Mrs Kathy Walker.

LUNCHEON ADJOURNMENT

25. The relevant part of Mr Cardwell’s statement is this:

“Upon finalising the account for the meal, three of our party went to the toilet whilst myself and two others left the restaurant and waited outside on the pavement.

4. From where I was standing I could see inside the restaurant as the lights were still on. I observed restaurant staff outside packing up the tables and weights. I noticed a man go into the building and at the time I thought it was a staff member because he was wearing [a] dark top, similar to the uniform that staff were wearing. The man walked over to the rear of the front counter, where there was a point of sale register and a female staff member who was cashing up the takings and closing the register down. The man at this stage had pulled the hood of his hoodie fully over his head. I then noticed him bang a carving knife a number of times on the counter and shout at the lady, ‘Give it to me, give it me’. At the same time he repeatedly banged the knife on the table next to the lady.

5. The knife was in his right hand. It had a silver blade which was like a carving knife with a tapered blade which was about 18 centimetres long; I don’t think I saw the handle [as] the man’s sleeve covered it. The lady appeared to be stunned from what was happening and was not able to do as he demanded, that is give him the money from the register.

6. Other staff who were close by attempted to fend off the man by throwing a chair and a cushion stool at the man. I then tried to take a photograph on my mobile Blackberry Z10 device whilst ensuring that it was not noticed. I managed to get a couple of photographs with one clearly showing the man leaving the restaurant and running in a westerly direction up Hillcrest Road, past the ANZ Bank, which has CCTV.

7. The man was about 5 foot 6 inches tall, Caucasian with olive skin, wearing a black‑coloured long‑sleeved hoodie, striped red and blue boardies, white ankle socks and dark-coloured running shoes. I saw the man’s face and could see he had a Caucasian olive complexion. I would recognise the man again if I saw him. He was clean shaven and about 25 [years] old. He was solid build, but didn’t have strong muscles.

8. I watched as the man ran from the restaurant and still carrying the knife in his right hand. I felt the man lacked full senses and was possibly drug-affected and not drunk. The man, after about 50 metres, walked up the hill in a dazed state. I phoned triple-0, as well as my wife, and gave a description of the man according to standard protocol.”

26. Exhibit Q3 is an image taken by Mr Cardwell on his Blackberry device. It shows the would‑be robber from the rear as he was going in a northwest direction up Hillcrest Road. It shows a person wearing what appear to be black shoes with white socks appearing above the black shoes, and shorts, which might be described as board shorts, having three horizontal bands, the upper band being white, the middle band being red and the bottom band being blue. The top of the person’s image is covered in what would appear to be a black or otherwise dark‑coloured hooded garment with long sleeves. In between the top white band of the board shorts and the bottom of the dark hooded garment is a segment that appears on the image to be light blue. I do not know whether that represents an underlying garment, such as a T‑shirt or pair of underpants, or whether it merely is an artefact and shows skin. It appears to be very light blue, but again the colour may represent an artefact.

26. Mr Cardwell sought to identify the accused from a photographic array in accordance with standard procedures. The accused’s image was numbered 6 of the 20 shown to him. He did not identify the accused, but identified the person shown in image 1. The person shown in image 1 has been identified and that gentleman has made a statement which has been marked exhibit BB. Suffice to say that he has an alibi as to his whereabouts on 31 December 2013. He was with his girlfriend at his home in Rozelle. He watched the early fireworks from the rooftop of his residence at Rozelle between 8.50pm and 9.50pm and at about 10pm on the same day went with his girlfriend to a friend’s house which is on the border of Rozelle and Balmain for a house party. He identified the owners of the house, a couple who were his friends. He stated that he never attended a restaurant at Pennant Hills and that he has never attended the restaurant.

27. The relevant portion of Mrs Rachel Cardwell’s statement is this:

“We stayed in the restaurant for approximately an hour and a half when we decided to leave at approximately 9.55pm. Kathy and Julie went to the bathroom just before we left the restaurant as Mal Walker went to pay the bill. A short time after that Mal Walker went to the bathroom as my husband and I walked outside of the restaurant with Julie and Kathy. Whilst we were standing outside I saw Kathy talking to the female workers before she joined us outside. I remember seeing two male workers come outside and start packing up the chairs and tables as they were preparing to close.

7. A short time later I heard a bit of commotion coming from inside the restaurant. I then heard Julie say ‘he’s got a knife.’ I then looked inside the restaurant and saw a male I would describe as being of Caucasian appearance, approximately 180 centimetres tall and of solid build. I recall this male to be wearing a dark‑coloured hooded top with white writing on the front. The male had the hood up over his head. I only saw this male from the waist up as my vision was somewhat obscured. The male appeared to be positioned so as to prevent the females from moving out from behind the counter area.

8. I saw the male holding a black handled kitchen knife which had a silver blade of approximately 15-20 centimetres in length. The male was holding the knife in his right hand. I then saw the male hitting the top of the counter with the knife. As the man hit the top of the counter I saw his actions as being threatening toward the female staff behind the counter area. I was concerned so I moved away from the restaurant and dialled triple 0 and requested police to attend.”

29. Mrs Katherine Walker made a statement on 2 January 2014. She confirmed that she noticed a male wearing a long-sleeved black‑coloured sloppy joe with the hood pulled over his head covering his face. He was carrying a carving knife which she also described as having a silver blade and a dark-coloured handle. She thought the blade was about 18 centimetres long. She saw him raise the knife and plunge it towards the counter where the two female staff were standing. She also heard the sound of employees of the restaurant shouting at the would-be robber. She saw one of the male employees lift a chair with which he was about to either hit the would-be robber with, or throw at the would-be robber. She, by that stage, had formed the view that the would-be robber was attempting to rob the restaurant and she stepped back from the window. She observed to Rachel Cardwell that there was a man with a knife attempting to rob the restaurant. She confirmed that she used her mobile phone to ring the police. She saw the would-be robber leave the restaurant. The relevant portion of her statement is this:

“It was moments later as Rachel was still on the phone to the police that I saw the man stumble outside the restaurant and walk across the road. He didn’t appear to be in a hurry but walked slowly and was unsteady on his feet as if he was affected by alcohol or drugs. I could see that he was still carrying the knife in his right hand which was behind his back. He was headed towards the Pennant Hills police station.

6. The man was wearing surfboard shorts; they were white with blue and red stripes on one leg of the shorts. I can’t remember what shoes or thongs he was wearing. He was solid build and I estimate he was in his twenties. He was about 175 centimetres to 180 centimetres tall. At the time I did not see his face.”

30. The statement of Mrs Julianne Mary Logan is lengthy. What it does, however, is to confirm the observations previously made by Mr and Mrs Cardwell and Mrs Walker. I shall not cite it in full. She confirmed that she saw the robber after the event walking up Hillcrest Road in a north-westerly direction. She observed that he was wearing a pair of shorts. She remembered that the colour of the shorts was white, red and blue. Her observations were sufficient to enable her to attest that the man she saw walking up Hillcrest Road wearing those distinctive shorts was the same man who had entered the restaurant and had brandished the knife therein.

31. The only discrepancy that can be seen from the observations of the three former patrons of the restaurant made from outside the restaurant is whether what was thrown in the direction of the would-be robber was a chair and a stool or two chairs deposed to by the staff of the restaurant. Again, little turns on that.

Police attend the scene

32. Police attended promptly to the triple 0 request for assistance. The first police to arrive were a Senior Constable Neil Wilford and Constable Laura Hoy, both performing general duty police work for the Ryde Local Area Command. I infer from Constable Hoy’s statement that the vehicle in which they were driving was called Ryde 36. Also responding were Senior Constable Alex Smith and Constable Nicholas Brylynsky, again general duties police from the Ryde Local Area Command, driving Ryde 16. Inspector Jason McSweeney and Sergeant Ronald Fornston attended together. I infer that their car may have been called Ryde 13.

33. The dog squad was also called and Senior Constable Brad Atkins attended in car numbered Dog 62 which carried a police sniffer dog. The dog could not pick up the robber’s scent. Senior Constable Atkins arrived at the restaurant at about 10.24pm. He was told that the would‑be robber appeared to be of Middle Eastern appearance, was in his early twenties, was wearing a dark-coloured hooded jumper and shorts which had three horizontal sections made up of red, white and blue. As his dog was unable to locate the offender’s track, he left the “crime scene” at 10.34. He drove out onto Pennant Hills Road and headed in a southerly direction. About 100 metres north of Beecroft Road he saw a man walking south on the footpath on the eastern side of Pennant Hills Road. He noticed that the male was wearing shorts matching the description given to him by other police at the restaurant. He drove his police vehicle onto the footpath and alighted from it. He approached the man and asked him to stop there for a short while. He pointed to a brick wall and asked the man to take a seat there.

Arrest of the accused

34. Senior Constable Atkins then made a cursory search of the pockets in the front of the man’s jumper and located only a mobile telephone. This conversation was then recorded:

“I said, ’Is that all you have on you?’

He said, ‘Yep’.

I said, ‘You got any ID?’

He said, ‘Nope’.

I said, ‘My name is Senior Constable Atkins from the Police Dog Unit’. He shrugged his shoulders and said, ‘What?’

I said, ‘You are wearing clothing similar to that of a male involved in an offence down the road, just sit there and if it’s got nothing to do with you, you will be on your way very shortly’.

He said, ‘Okay’.”

Senior Constable Atkins then attempted to obtain a detailed description from VKG of the male involved in the attempted robbery of the restaurant. There was some delay in his being provided with the description. He had a further conversation with the man whom he had asked to be seated. The conversation was this:

“I said to the accused, ‘Where have you just come from?’

He said, ‘Just a street over there’ pointing generally south.

I said, ‘Where are you going now?’

He said, ‘Just going for a walk’.

I said, ‘Where do you live?’

He said, ‘Artarmon’.

I said, ‘Righto, won’t be much longer’.

He said, ‘Okay, how has your night been?’

I said, ‘Busy’.”

35. By this stage Inspector McSweeney and Sergeant Fornston had pulled up near to Senior Constable Atkins’ vehicle. A conversation ensued between the Senior Constable and the Inspector. The Senior Constable then heard a description from VKG of the suspected would-be robber. He was also advised in that broadcast to exercise caution as the offender was armed with a knife. Senior Constable Atkins then approached the man and took hold of his arms and helped him stand up and asked Inspector McSweeney to search the man. Inspector McSweeney was by this time standing behind the man. Inspector McSweeney found a knife in the waistband of the back of the man’s shorts. He called out “knife”. Senior Constable Atkins saw the knife being removed and being handed by Inspector McSweeney to Sergeant Fornston. The senior constable then secured the man’s arms behind his back and handcuffed him. Sergeant McSweeney then advised the man that he was under arrest for the attempted armed robbery of a restaurant at Pennant Hills. The man who had been arrested is the present accused.

36. In the statement made by Inspector McSweeney, a conversation is recorded in which the man admitted that he was Blake Weismantel, that his date of birth was 11 May 1992 and that he lived at Artarmon. Inspector McSweeney asked the accused where he had been in the last hour. The accused replied: “Up the road”. When asked what he was doing there the accused said: “I don’t know.” According to Inspector McSweeney, it was only after he recorded those facts from talking with the accused that he found the knife in question and then proceeded to formally arrest the accused. The accused was then unwell. An ambulance was called and he was taken to Hornsby Ku-ring-gai Hospital. His clothing was then taken into possession of the police. Photographs of the accused’s clothing are contained in exhibit A3, seven photographs attached to the first statement of Detective Senior Constable Stephen Ireland.

The accused was the would-be robber

37. The shorts are very distinctive. They are comprised of three horizontal bands of equal thickness, white, then red, then blue. They match the photograph taken by Mr Cardwell on his Blackberry device. The accused was wearing black joggers and white socks which had a red sole but only the white material would be visible when a sock was on a foot and the foot was encased in a shoe. The clothing also included a white Adidas T-shirt. The hooded pullover is black with white writing on the front.

38. The knife found on the accused had a black handle and a silver blade. The photograph does not show the colour of the blade adequately but is clearly different to the black handle and if one allows for colour differences in photographs, is probably silver. It is about 29 centimetres long and the handle and the blade appear to be of equal length or close to equal length. It can be validly described as a kitchen carving knife.

39. A police crime scene examiner attended the scene and besides taking photographs, also lifted two fingerprints from the door frame of the entrance door of the restaurant. However, those fingerprints have never been identified in the evidence before me and there was no suggestion that they were the accused’s fingerprints.

40. There is no direct photographic evidence of the accused taken at the scene of the crime. There is no fingerprint evidence of the accused’s presence at the scene of the crime. There is no DNA evidence of the accused’s presence at the scene of the crime. However, it was accepted by the accused that he was the relevant actor. The concession has been made by his Counsel prior to the formal commencement of the hearing.

41. In any event, the evidence persuades me beyond reasonable doubt that the would‑be robber was the accused. Shortly stated, my reasons are, firstly, the board shorts are very distinctive and can be clearly seen in the photograph taken by Mr Cardwell on his Blackberry device as the would-be robber was leaving the restaurant after the attempted robbery. Secondly, all the witness describe a relatively tall man of sturdy build and the accused can be so described. Thirdly, the majority of the descriptions indicate that the offender was in his twenties and this current accused was in his twenties. Thirdly, the accused is described in various fashions as Caucasian or of Middle Eastern appearance or having swarthy skin or olive coloured skin. The accused does have olive coloured skin.

42. The next matter to be borne in mind, the fourth, is that the would-be robber was thought by the former patrons of the restaurant who were standing outside to be acting erratically as if he were somehow affected by a substance such as alcohol or drugs. Immediately after his arrest, the accused was described by Sergeant Fornston in this fashion:

“5. At this time the accused was speaking in an incoherent manner and I formed the opinion the accused was possibly affected by drugs and he then rolled onto his stomach and appeared to fade in and out of consciousness. He was consequently placed into the recovery position and due to his state an ambulance was requested.

7. At about 11.45pm an ambulance attended and assessed the accused and advised that he needed hospitalisation. As a consequence, police then accompanied the accused to Hornsby Hospital in the ambulance where medical staff sedated the accused. At this time I seized the clothing of the accused and handed the clothing to Constable Brylynsky and bagged and sealed the clothing. I then remained with the accused whilst the hospital staff completed the sedation of the accused before I returned to Eastwood Police Station to complete my duties.”

Constable Brylynsky said this in par 10 of his statement:

“The accused was initially compliant, however was incoherent. He appeared unsteady on his feet. It was at this point that he was assisted to the ground for his safety. We formed the opinion that the accused may have been affected by drugs and/or alcohol, and subsequently an ambulance was called to the scene to assist the accused.”

43. A fifth factor which I take into account is that when the accused was confronted by police he gave no explanation of what he was doing in the vicinity of Pennant Hills at the time of his meeting up with Senior Constable Atkins.

Elements 1, 2 and 4

44. I turn to the elements of the offence. I am satisfied that the accused was armed with a knife. An offensive weapon is defined in s 4 subs(1) of the Crimes Act 1900 in this fashion:

“Offensive weapon or instrument means:

(a) a dangerous weapon, or

(b) any thing that is made or adapted for offensive purposes, or

(c)any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.”

A kitchen knife of nearly 30 centimetres length with a blade of approximately 15 centimetres is capable of causing harm and can be used for an offensive purpose as it was used on this evening. I am persuaded beyond reasonable doubt that the accused was armed with an offensive weapon.

45. The next element is that the accused assaulted the victim. I have already found that the accused assaulted Mr Sathaporn Wongsamak by applying force to his body by pushing the chair back against Mr Wongsamak’s body forcing him backwards and causing him to fall. In any event antecedent to that he clearly threatened Mr Wongsamak with a knife.

46. The third element is that the accused intended to steal property from Mr Wongsamak. This is the element in dispute in the current trial. There is no doubt that the accused intended to steal property that belonged to the business.

47. It is clear that the fourth element is established because the accused used violence towards Mrs Wongsamak as well as Mr Wongsamak and he put each of those persons in fear.

48. The final element I will describe later, that is, the infliction of grievous bodily harm.

Element 3 and the principal defence

49. The defence has submitted that the inference to be drawn from the evidence is that the accused intended to steal from Mrs Wongsamak who had charge of the cash register containing the takings of the business which the accused wished to steal, that he threatened her with force, demanded that she open the till and was seeking to rob her of the takings. The argument clearly requires me to dissociate the attack upon Mr Wongsamak from the attempted robbery.

50. Learned counsel for the accused referred me to the decision of the Court of Criminal Appeal in R v Foster (NSWCCA, 7 April 1995, 60325 of 1994). The Court, comprised of Hunt CJ at CL and Smart and Levine JJ, said this:

“The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft: Smith v Desmond [1965] AC 960 at 985 - 987, 997-998. It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide, R v Emery (1975) 11 SASR 169 at 173.”

The defence submits that it was Mrs Wongsamak who stood between the offender and the cash register from which it was desired to take the money. It was Mrs Wongsamak whose resistance the accused sought to overcome by his threatening her with the knife.

51. The submission lays stress on the literal application of the dictum derived from Smith v Desmond. It is instructive to consider the facts of that case as well as the relevant dicta. In Smith v Desmond the defendants were convicted on a count in an indictment charging them with robbery with violence. The evidence showed that Lai, a maintenance engineer, and Scott, a nightwatchman, were working by night in a bakery, when, at about 11.50pm, they were attacked by the defendants, pushed into the workshop, blindfolded and their hands tied up. They were then taken to a lavatory where their feet were tied up and they were left there while the defendants broke and entered the cash office, some 33 yards away and separated from them by two doors, at least one of which was locked. Throughout the period while they lay bound and blindfolded, which lasted some three and a half hours, Lai and Scott heard the sounds of breaking glass, heavy banging and crashes and the noise of an oxy-acetylene burner. In fact the safe in the cash office was burned and opened and money taken. The jury in the Liverpool Crown Court found each of the accused guilty of robbery with violence. The Court of Criminal Appeal comprising Lord Parker CJ and Winn and Widgery JJ allowed the appeal. However the verdicts of the jury were restored by the House of Lords.

52. The senior member of the House of Lords, Lord Reid agreed with the judgments of his colleagues. Lord Morris of Borth-Y-Gest delivered a lengthy speech. At 979 his Lordship pointed out that the case then before the house called for an examination of the concept of what is involved when writers use such phrases as “the taking of anything from the person of another or in his presence”, part of the classic definition of robbery, that is, larceny from the person with force.

At 982 his Lordship refered to a very early case. His Lordship said this:

“In a case in 1651 (Crosthwayt and the Hundred of Lowden) money was taken out of a postmantle which was carried by a post boy though his master had his hand upon one end of the postmantle. For the purposes of the case it was important to decide whether the master as opposed to the post boy was robbed. It was held that there was no question but that it was a robbery of the master: ‘and it is all one as where my servant is robbed in my presence, and there the goods shall be said to be in my possession’.”

His Lordship then considered Donnally’s case (1779) 1 Leach 193 and quoted from Willes J:

“But as the judges declared, they did not mean to draw the exact line what should or what should not be construed a robbery, but that every case must depend on its own particular circumstances, it will sufficient for me to show that the facts proved in the present case are within the definition I have given of that offence.”

At 983 his Lordship said this:

“It was, however, clearly stated that a taking in the presence of the party would be sufficient to establish the third ingredient. Approval was also given to the view that there could be robbery even though the person robbed was unconscious, as in the case where somebody is knocked down ‘without any previous warning to awaken his fears, and lieth totally insensible while the thief riles his pockets’. This view had also been expressed by Blackstone (see Vol 4 p 242). This serves to illustrate that particular expressions of particular writers must not be given a wider meaning than the context would warrant. Thus when Hawkins referred to a taking of anything from someone “openly and before his face” he cannot be regarded as meaning that it is not robbery if by violence somebody is made unconscious so the moment when the thing is taken he is unaware of the taking. No real help, is, however, to be found in Donnally’s case.”

At the foot of 984 his Lordship said this:

“My lords, in an examination of the episode the moment when it began must first be considered. Scott was the night watchman. Prominent among his duties must have been that of safeguarding the things of value that were in his charge. Though Lai had primarily the responsibilities of a maintenance engineer his duties would necessarily also involve giving reasonable support and assistance to Scott. When they were pounced upon and overpowered they were in charge of the building. Its contents were under their care and protection. The design of the accused and their associates was to reach and to take away the money in the safe. They could only achieve their purpose if Scott and Lai were mastered and then were kept under continuing and effective restraint. That was because the safe was under their protection. It was nonetheless under their protection even though they had no need to finger its contents or means to unlock its doors, and even though at some particular moment they may not have been in the part of the building nearest to the safe. They were there to guard and to protect. It could neither have been carried away (had it been of a size and weight to make this feasible) nor could it have been forced open unless their resistance was completely overcome, and the ability to give the alarm or to seek outside help entirely frustrated. Under these circumstances it seems to me that the safe was, to adopt Hawkins’ words, under their “immediate and personal care and protection”.

If this was so then the circumstance that during the period of the actual safe-breaking process and also at the moment when the accused departed with its contents Scott and Lay were some yards away from the safe and were imprisoned in another room and were unable to see what was happening did not, in my view, prevent the crime from being that of robbery. The important moment in time which has to be considered is the moment when by the application of force (or its equivalent) the care and protection of a custodian is overborne. If somebody had a number of chattels in his immediate care and protection and was then overpowered and was taken some distance away and was then left bound, gagged and blindfolded, it would still be robbery even though the actual moment when the chattels were taken away he could neither hear anything nor see anything, and even though the actual removal of the chattels only took place sometime later than the actual application of the force. It will be the same if someone was made unconscious and either left where he was or carried some distance away. There might, however, be cases in which some act of violence was designed to facilitate some stealing which was planned to be a later and separate episode. Questions of degree may, therefore, arise as to whether the violence and theft are or are not joint features of the one crime. Questions of degree may also arise where the goods are or are not in someone’s immediate and personal protection and care. Questions as to distance may in some cases arise. All such questions of degree will be for the jury to determine. In the present case there can be no doubt that the violence and theft were essentially linked. Scott and Lai were in the building to give care and protections to its contents. In a central part of the building there was money which could only be reached if they were made powerless - powerless to resist, powerless to defend, powerless to gain help:”.

At the end of that paragraph his Lordship said this:

“It is open to a jury to convict of robbery if someone through force or fear is compelled to submit to the taking of goods from his person or is compelled to relinquish or to surrender or is made powerless to prevent the taking of goods which at the time of the force or fear are in his immediate and personal care and protection”.

53. Lord Hodson gave a speech in which he quoted from the 1824 edition of Hawkins’ Pleas of the Crown. He quoted this dictum:

“Not only the taking away a horse from a man whereon he is actually riding, or money out of his pocket, but also the taking of anything from him openly and before his face, which is under his immediate and personal care and protection, may properly enough be said to be a taking from the person; and therefore he who having first assaulted me takes away my horse standing by me, or having put me in fear drives my cattle in my presence out of my pasture, or takes up my purse which I in my fright cast into a bush, or my hat which fell from my head, or robs my servant of my money before my face, may be indicted as having taken such things from my person”.

His Lordship then continued thus:

“These citations support the view that commends itself to me, namely that the whole of the robbery including the violence (or putting in fear) and the asportation must be taken as one transaction and not divided into component parts”.

54. Lord Pearce also delivered a speech with which Lord Donovan specifically concurred. At 997 his Lordship said this:

“The essence of the offence is that violence is done or threatened to the person of the custodian who stands between the robber and the property in order to prevent or overcome his resistance and oblige him to part with the property and to submit to stealing it. Thus the offence against the person and the theft are combined.

Where the sequence of events is not planned, but there is an assault which happens to be followed by a theft, there may be room for niceties of argument. But where the whole sequence appears to be one planned transaction one must regard the events as a whole to see if together they amount to robbery. A thief cannot escape the charge of robbery by merely planning his crime in two stages, namely first violently removing the owner or custodian of the property from its vicinity to a distance at which he cannot see or hear the actual stealing of the property and then, secondly, stealing the property”.

His Lordship went on to say this:

“The only relevance of the victim’s awareness is this. Is he aware of the theft or intended theft and is he compelled by force or fear to submit to it? Or has he been prevented by violence or threat from becoming aware of the theft and has that enabled the thieves to steal? If the answer to either of these questions is yes, the offence against the person and theft are combined and the offence of robbery is constituted.

But the offence can only exist where the victim has sufficient care or personal possession of the goods to allow the Court to say that constructively the goods were taken ‘in his presence’. Were the night watchman or the maintenance engineer sufficiently the custodians of the safe and its contents to render the rifling of it a robbery ‘in their presence’? The Court of Criminal Appeal in view of some of the old cases felt a difficulty which I can well understand. They would have preferred to hold this a robbery but they felt that to do so would be an extension which they were not justified in making. With respect to that view I think that your Lordships should take a contrary view. If the night watchman had been carrying out the duty of sitting by the safe to guard its contents with his hand upon it, no one would have felt any difficulty about this case. His forcible abduction from the property which he was guarding and touching would clearly have constituted robbery with violence. He was not, however, in fact in the room where the safe was kept. It was locked and he was some distance away from it when he was set upon. But it was within the area of his vigilance. He had a duty to go his rounds every half-hour to see that all was secure. And he had a telephone at hand for summoning the police if any unlawful attempt was made on the property that he was guarding. Had he not been overpowered no doubt he would have done so. He was the temporary custodian who stood between the thieves and the money which they intended to steal. And it was in that capacity and because of it that he was overpowered and bound.

It is a question of degree for the jury to decide whether the victim of the violence was sufficiently the custodian of the property stolen, whether he had sufficient possession and care of it, to constitute the stealing as being in his presence.

The fact that the thieves thought it necessary or desirable to overpower the night watchman and his companion is cogent evidence that their possession and control stood between the thieves and their objective. There might be cases where that consideration is not cogent, where for instance, a night watchman is overpowered because he has strayed into portion of premises which he was not intended to guard, and his unauthorised and unexpected presence has led to their attacking him. But here he was performing his duty within the proper sphere of his vigilance and part of his duty was to see that the office and the safe were not broken into. There was, therefore, ample evidence on which the jury should have found a verdict of guilty on the charge of robbery with violence”.

55. I am compelled by the reasoning of Lord Hodson to look at the transaction in question as a whole rather than to divide it into parts. I am also required by the speech of Lord Pearce to consider the question of whether the property that it was the intention of the accused to steal could be seen to be in the custody of the complainant, Mr Wongsamak. When Mr Wongsamak called out to the accused to require him to leave the restaurant, the accused did not do so. He confronted Mr Wongsamak and assaulted him, ultimately causing him to fall to the floor. The question really is when did the accused cease to intend to steal? The accused did not comply with Mr Wongsamak’s demand. He confronted him and sought to stop him interfering with the attempt that he was making to obtain the contents of the cash register. On any view of it, the accused must still have had the intention of making off with the takings. What stopped him was the fact that Borom threw the chair or a stool at the accused which struck him and caused him to leave.

56. When a person intent on robbery enters premises, he might be confronted by any number of people. There might be persons standing near the property which the robber intends to carry away, but there may be other people nearby who, appreciating what is being sought to be done, attempt to prevent that occurring. Mr Wongsamak had an interest in protecting his own property as well as in protecting his own wife. The contents of the cash register belonged jointly and severally to the proprietors of the business, Mr and Mrs Wongsamak.

57. It is a otiose exercise, in my view, to try to discern some different intention. The intention of the accused was to take money, the takings in the cash register. Mr Wongsamak may have had a greater concern for his wife than for his money, such is understandable. However, he sought to prevent the crime which the accused was attempting to perform. The accused did not desist immediately on Mr Wongsamak’s demand that he leave the premises but the accused turned to Mr Wongsamak to stop him interfering with what the accused wanted to do, which was to take the money. I must look at the whole transaction. The whole transaction was an attempt to rob the business. There was an attempt to rob Mr Wongsamak and Mrs Wongsamak and any of their employees who might have custody of the cash register. The accused’s intention cannot be discerned to have changed until he decided to quit the premises, which only occurred after Borom threw a second chair or a stool at the accused which struck him, and perhaps drew to his attention the fact that there might be persons to overcome other than the two ladies near the till and Mr Wongsamak who had already sought to stop him performing the act upon which he was intent.

58. I decline, with the utmost respect, to draw the inference that the defence asks me to draw, in essence, that the accused desisted from his intention to steal when he confronted Mr Wongsamak. The only thing which might lead me to the view that the accused had desisted in his desire to continue with the attempted robbery was his leaving the premises. The only reason to confront and drive off Mr Wongsamak could only be the persistence of the intention of robbing the business. I am, therefore, persuaded beyond reasonable doubt that the accused intended to steal property of Mr Wongsamak from him and in the course of that endeavour assaulted Mr Wongsamak.

Jury knowledge only

59. The remaining question is whether the complainant, Mr Wongsamak, sustained grievous bodily harm. Thus far in these reasons I have eschewed completely any knowledge I have previously acquired of the accused from dealing with an evidentiary matter in an earlier trial in which the accused eventually pleaded guilty and in dealing with the application for trial by judge alone in this case. I have based my determination solely on the evidence presented in court, all of which was documentary. As I said, I have eschewed completely any prior knowledge of the accused and his antecedents and personal circumstances. Before the next part of my deliberation, I completely eschew any knowledge or expertise I may have gained in practising for 39 years as a solicitor, barrister or judge in medico‑legal fields. I approach the matter entirely in the same way that a jury would.

Element 5: grievous bodily harm

60. The law differentiates between actual bodily harm and grievous bodily harm. When charging juries I provide to them a written explanation of both the terms “actual bodily harm” and “grievous bodily harm”. Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the complainant, but such hurt or injury need not be permanent but must be more than merely transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm. The last of those directions is contained in the Criminal Trials Bench Book and is used in charging a jury where actual bodily harm is inflicted in a case of kidnapping. Grievous bodily harm requires that the injury be a really serious one. However, it does not require that the injury be permanent or that the consequences of the injury be life threatening or long lasting. In the definitions contained in s 4 of the Crimes Act 1900 grievous bodily harm includes any permanent or serious disfiguring of the complainant, in other words, scarring.

61. The latter part of Mr Wongsamak’s statement of 17 January 2014 contains this matter:

“10. I tried to get up off the floor but I couldn’t as I felt a lot of pain to my right ankle. It was twisted back at an abnormal angle. I just lay on the floor as I was in too much pain.

11. I believe that the customer rang 000. A short time later police and an ambulance came to help. My wife later took me to the Hornsby Hospital later in our car. The next morning I had surgery to have pins put into my ankle. They put a cast [on] my right leg which I have to wear for the next ten weeks. As a result I will not be able to work in the restaurant. I have had to hire a chef to fill in for me while I am not at work.”

62. Dr Charles Lawrie, the deputy director of the Emergency Department of the Hornsby Ku‑ring‑gai Hospital, has prepared an expert certificate. Dr Lawrie is a fellow of the Australasian College for Emergency Medicine. He made his certificate from the hospital records. The certificate bears date 20 May 2014. It contains this matter:

“Presented on 31/12/2013 at 2353. History obtained by hospital staff was the following allegation: that he was at work, a man with a knife attempted to rob the business, and he twisted his ankle in the course of trying to evade him.

7. On examination the right ankle was swollen over the lateral malleolus and the patient was unable to weight bear. X‑rays demonstrated a spiral fracture of the fibula at the ankle. He was admitted to hospital under the care of Dr Ben Gooden, orthopaedic surgeon. He had an operation on the afternoon of 1/1/2014, with open reduction and internal fixation of the fracture with a metal plate and screws. He was discharged from hospital on 2/1/2014. One of the screws was removed on 7/3/2014. He was making satisfactory progress when last seen in the orthopaedic clinic on 24/3/2014.

8. He will likely require a further procedure to remove the remaining metal hardware. He may have ongoing pain in his ankle.

9. Based wholly or substantially on the above knowledge, I am of the opinion that the findings on examination are consistent with the history obtained by hospital staff, that is, these injuries could have been caused by an alleged assault.”

63. Of greater utility is an expert’s certificate from Dr Benjamin Gooden, an orthopaedic surgeon, whose usual rooms are at the Mater Clinic at Wollstonecraft. The relevant part of Dr Gooden’s certificate is this:

“Mr Wongsamak was admitted under my care to Hornsby Hospital on 31 December 2013 following an alleged assault. The patient was allegedly assaulted at work and during this event, he suffered a twisting injury to his ankle and was unable to weight bear afterwards. He was admitted to Hornsby Hospital and an x-ray demonstrated an oblique fracture of his distal fibula extending to the level of the syndesmosis. There was widening of the ankle [mortice] in keeping with instability of the ankle joint.

Mr Wongsamak was taken to theatre on 1 January 2014 and underwent an open reduction, an internal fixation of the fibula, a fracture with a 7 hole one third tubular plate and screws. The syndesmosis was found to be unstable on stressing and he therefore had two diastasis screws inserted through the plate. He was kept non weight bearing for a period of eight weeks post operatively, and was then mobilised weight bearing following this. On 7 March 2014 he returned to the operating theatre to have the diastasis screws removed. This is a standard part of treating this type of fracture.

With regards to the questions that were asked of me from Senior Constable Steven [sic] Ireland on 9 July, this particular fracture is a reasonably common one. It does require significant force to lead to fracture of the fibula in association with disruption to the syndesmosis. The metal plate and screws were required to reduce the fracture into an anatomical position and this is standard treatment for this kind of displaced fracture.

The patient underwent two procedures, the first being on 1 January 2014 to have the plate and screws inserted and the second being on 7 March 2014 to have the two diastasis screws removed. It is usual to leave the remaining fibular metal work in place, this is not routinely removed unless there are overt problems with the metal work.

The prognosis for this gentleman is good. Most people who suffer these fractures will return to full activities as tolerated over the ensuing 3-6 months post operatively. There is an incidence of patients who suffer from ongoing pain and swelling in their ankle after this and there is an incidence of the development of post-traumatic arthritis in the long-term. Post-operatively, patients require 3-6 months of physiotherapy to help regain their range of motion and full function of their ankle.”

64. I should comment that there is an obvious error in the certificate of Dr Lawrie in that it is clear from Dr Gooden’s certificate that the two diastasis screws were removed at the second operation on 7 March 2014. Furthermore as far as Dr Gooden is concerned there is no need to remove the remaining “hardware” from the complainant’s ankle, that is 7 hole one third tubular plate and ordinary screws.

65. Unfortunately the prognosis initially suggested by Dr Gooden does not appear to have been achieved. Dr Lawrie noted that the complainant might have ongoing pain in his ankle. Dr Gooden said that there is an incidence of patients, that is a number of patients, will suffer from ongoing pain and swelling in the ankle after such an injury, the prognosis being not a full recovery within six months of operative treatment.

66. The complainant made a statement on 14 May 2015, sixteen and a half months after the initial surgery. In that statement Mr Wongsamak said this,

“My ankle is constantly numb to this day around the outside. Before I broke my ankle I exercised quite a bit. I used to walk on a treadmill two or three times a week. But since I broke my ankle I can’t do this as I get pain and soreness in my ankle very quickly when I try to walk for a long period of time.

“I had noticed it has affected my work, I work as a chef in my restaurant which means I stand up. I get soreness and pain when I stand up for a long time which I never had before I broke my ankle.

“Sometimes when I am sitting down and relaxed my ankle starts to ache which never happened before it was broken.”

In that same statement Mr Wongsamak reported that he wore the cast on his leg for “about two months”. It appears likely to me that the cast that the complainant was required to wear was between the first operation on 1 January 2014 and the second operation on 7 March 2014. The same statement also tells me that during that period the complainant needed daily injections “to stop blood clots”. I know from Dr Gooden’s certificate that after the cast was removed that there was a course of physiotherapy required for between three and six months. The evidence before me does not allow me to say for how long that physiotherapy lasted in this case. It appears that the minimum time would have been three months. Three months from 7 March 2014 takes one to early June 2014.

67. I am persuaded, beyond reasonable doubt, that the complainant suffered a really serious injury, that he has sustained grievous bodily harm. Counsel referred me to the decision of the Court of Criminal Appeal in Haoui v R [2008] NSWCCA 205 in which Johnson J, with whom McCallum J agreed on the point, upheld a finding of grievous bodily harm. The principal judgment was given by Beazley JA (as she then was). Commencing at [130] her Honour discussed the particular facts of that case. Her Honour was of the view that the injury sustained by the victim in that case did not amount to grievous bodily harm. The majority, however, felt otherwise but agreed with the view of the trial judge, Berman DCJ, that it was at the lower end of what amounts to grievous bodily harm. In that case the victim was 67 years old at the time of the accident. He spent two days in hospital having sustained a subconjunctival haemorrhage to the right eye and a depressed right malar or cheek fracture. The accident also caused his dentures to become loose for which rectification work needed to be undertaken. The victim in that case had no problems with his right eye after the accident. The swelling which he had went away within a few days and the victim was able to go to a party about a week later at which he played a musical instrument. That party was his son’s wedding which he would not in any event have missed.

68. My reasons for concluding that the complainant suffered a really serious injury can be shortly stated. Firstly this is not a simple fracture. This was an oblique spiral fracture of the distal fibular extending to the level of the syndesmosis, with widening of the ankle mortice in keeping with instability of the ankle. Plates and screws were required to put the fractured bone back into anatomical position. Open reduction surgery was required. The second procedure on 7 March 2014 was of little moment. But the fact that the 7 hole one third tubular plate and screws remain in force is a greater consideration. Mr Wongsamak was required to wear a cast on his leg for a period from 1 January 2014 to 7 March 2014, or for most of that period. Thereafter there would have been a period of at least three months physiotherapy to seek to get the complainant’s ankle back to normal function. There has not, however, been a complete recovery. Sixteen and a half months post-surgery the complainant had ongoing symptoms in his ankle which were impeding his ability to exercise and interfered with his ability to work. He also experienced at times pain in his ankle when at rest. In the circumstances it appears that the rosy prognosis initially expressed by Dr Gooden has not occurred and it seems likely that the complainant be left with ongoing symptoms referable to the fracture in his right ankle.

69. The complex nature of the fracture, the extended period of treatment and the fact that there is ongoing symptomatology which interferes with the complainant’s ability to exercise and to stand up for long periods, as his work requires him to do, indicate to me that this is a really serious injury. I am satisfied beyond reasonable doubt that Mr Sathaporn Wongsamak sustained grievous bodily harm as a result of the assault upon him by the accused. Therefore the final element of the offence has been established beyond reasonable doubt.

70. Gentlemen it’s now 25 to 5, do either of you require any further reasons for judgment.

CROWN PROSECUTOR: No your Honour, no from the Crown.

SCHAUDIN: No your Honour.

HIS HONOUR: I have inquired of counsel for the parties if any further reasons for judgment are required and I am told that none is so required.

Verdict

71. Blake Weismantel, on the charge that on 31 December 2013 at Pennant Hills in this State, whilst armed with an offensive weapon, namely a knife, you did assault Sathaporn Wongsamak with intent to rob him and at the time of the assault you did inflict grievous bodily harm upon Sathaporn Wongsamak, I find you guilty.

DISCUSSION REGARDING DATES

72. HIS HONOUR: Stood over for sentence on Thursday 1 October 2015 at 10am.

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Decision last updated: 16 May 2016