R v Wellgreen

[2014] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v WELLGREEN

Criminal Trial by Judge Alone

[2014] SADC 10

Reasons for the Verdict of His Honour Judge Tilmouth

4 February 2014

CRIMINAL LAW

The accused stands charged with aggravated robbery. The evidence was that he and another man confronted the driver of a vehicle during which the driver's watch and a soft drink were taken whilst there were threats with a knife and a pistol on count (1) and that a ring was taken by the other man on count (2).

HELD:

1. The evidence did not support a conclusion that there was a joint enterprise to rob the driver or that such a contingency was contemplated as a possibility under the doctrine of common purpose on count 1, and there was no evidence of criminal involvement of the accused as to count 2, as he was not present at the time.

2. The accused was however guilty on count 1 of the alternative offence of robbery as an aider and abettor.

Criminal Law Consolidation Act 1935 (SA) s 4, s 5AA(1)(b), s 5AA(4), s 137(1), s 137(3); Evidence Act 1929 (SA) s 18(1)(d)(ii); R v FP (2012) 224 A Crim R 82, referred to.
Johns (TS) v The Queen (1980) 143 CLR 108; R v Brougham (1986) 43 SASR 187; Gillard v The Queen (2003) 219 CLR 1; R v Mirrless & Jones (1977) 65 Cr App R 250; R v Stokes and Difford (1990) 51 A Crim R 25, applied.
R v Nemeth [2008] SADC 112; R v Aljaroudi, Abdullah and El Awar [2012] SASCFC 117; R v Calabria (1982) 31 SASR 423; BRS v The Queen (1997) 191 CLR 275; R v Lowery and King (No 2) [1972] VR 560; R v Tangye (1997) 92 A Crim R 545, discussed.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AIDER AND ABETTOR

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS

WORDS AND PHRASES CONSIDERED/DEFINED

"jointly in the company", "offensive weapon"

R v WELLGREEN
[2014] SADC 10

The issues

1. The accused Dwayne Wellgreen is before the court on two counts of aggravated robbery and one count of robbery.  Before the trial, another judge of this court made an order that he be tried by judge alone.  His trial proceeded from 21-24 January 2014.  These reasons proceed to explain the verdicts entered at the conclusion hereof.

   Factual background

2. The following summary of the facts is taken – except where otherwise appears - from evidence which is undisputed, from the objective evidence contained in the video footage of a portion of the incident in question,[1] the statement of agreed facts,[2] and to some extent from the evidence of the alleged victim and Mr Wellgreen himself.

   [1]    Exhibit P1.

   [2]    Exhibit P4, T99.

3. At about 12.40 pm on 20 June 2013 the alleged victim II, left his home in Woodville North driving his Toyota Camry heading for his workplace.  He turned right into Hanson Road, travelling more or less south in the direction of the Arndale Shopping Centre.  In so doing he drove mostly in the right hand of two lanes for his direction of travel, overtaking a number of vehicles in the process. As he approached the intersection at Hanson and Torrens Roads, he turned left into Torrens Road, having just pulled more or less level with a red Ford sedan, previously ahead of him and upon which he had closed distance during the journey along Hanson Road.  In making the left hand turn he straddled the offside lane for his direction of travel.  Shortly thereafter the Ford indicated to turn right and pulled in front of him.  The evidence does not establish that II had to brake heavily to avoid impact, although it does appear he slowed down to allow the Ford to pass in front.

4. Both vehicles proceeded in the right hand lane of Torrens Road towards the city, before pulling up with the Ford to the front, in a line of cars stationary at a red light at the intersection of David Terrace.[3]  At that point two men alighted from the Ford and approached II in his seated position at the driver’s wheel of his car.  The Camry had reversed a short distance in the meantime.  The first man (as counsel referred to him) alighted from the rear passenger seat of the Ford, followed by the other who came from the front passenger seat.  He remained a pace behind the first man as they approached the Camry.  The second man was undoubtedly Mr Wellgreen.  It is clear the driver remained in the Ford.

   [3]    Exhibit P1, 12:40:47.

5. These movements towards the vehicle of II were recorded by a video camera attached to the rear vision mirror of his car.  It did not have the capacity to record sound.  The two men are seen to approach in single file.  They slip completely out of view for at least 13 seconds.  There was obviously an exchange between them and II during that period of time.

6. His evidence was that both front windows of the car were down and that the first man put his hand into the car to open the driver’s door.  The first man is alleged to have said to him ‘well bad boy … what the fuck you want you want a problem … you want a problem with the bikies?’, whilst at the same time putting a knife of some 6-10cm in length to his throat.  II responded ‘I have a wife and a kid and I really don’t want any problem please forget what happened today’.[4]

   [4]    T29.15-.30.3, T31.24-.35.

7. Mr Wellgreen is alleged to have said ‘boy, don’t be a hero.  We are going to shoot you, we are going to shoot you’, whilst at the same time indicating with his right hand to a handle of what II took to be a pistol tucked under the lower right side of a vest worn by Mr Wellgreen.[5]  He was said to be ‘one step back’ from II at these times.[6]

   [5]    T32.12-.30.

   [6]    T34.30-.34, 35.1-.4.

8. An unopened can of ‘Mother’ energy drink stored in the centre console of the Camry must have been seen by the first man, because he demanded ‘bring me the drink’.  As a consequence II picked it up with his left hand, transferred it to his right and handed it over.[7]  As he did so he alleges a wrist watch was taken from him by the first man, who then exclaimed ‘We know the police.  We’re the bikers, we know the police if you say anything we’re going to know about you …’.[8]

   [7]    T34.1-.11.

   [8]    T34.20-.29, T36.12-.23.

9. The video footage Exhibit P1 shows as both men approach the vehicle, the first fiddling with something which II took to be opening a knife blade.  The images are consistent with that being the case.  Those images, such as they are, are less consistent with the object handled being a mobile phone as it appears to be too small for that to be the case.  As they come back into view, the first man can clearly be seen to carry what is entirely consistent with a can of drink.[9]  This incident forms the basis of the aggravated robbery charge on count 1.

   [9]    Exhibit P1, 12:41:21.

10. The first man who is known to the police and under suspicion for complicity in the charged offences, has fled the jurisdiction.  A warrant was issued for his arrest.  That fact is otherwise irrelevant for the purposes of considering the issues in this case, save that the evidence demonstrates two men were undoubtedly involved in approaching and confronting II.

11. Returning to the narrative, the two men returned to their original positions in the red Ford, which then moved forward into the ‘slip lane’ for traffic turning right into David Terrace, Kilkenny.  It pulled to a halt behind a white car, owing to a red traffic light.  II pulled up behind them.  At that point the first man again alighted from the rear seat of the Ford and again approached II, stating according to II, ‘if you go to the police, we are going to fuck you because … we have connections with the police, we welcome the police … I remember your car, your plate’.  He then demanded II to hand over a ring before returning to the Ford.[10]  He distinctly pointed to the area of the front number plate of the Camry whilst looking back to the driver’s position as he departed for a second time.  This supports II’s version of the latter conversation.  The accused remained in the front passenger seat of the Ford during the entire second encounter.  This second incident forms the basis of the robbery charge on count 2 of the Information.

    [10]   T38.12-.24.

    Count 1 – aggravated robbery

12. The first count of armed robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), charges Mr Wellgreen with aggravated robbery using force against II to commit the theft of the can of soft drink and the watch in the first incident, accompanied by threats made immediately before or at the time of the theft.  The offence is alleged to be aggravated, firstly by the fact that Mr Wellgreen committed the offence in company with another person (the first man) and secondly that an offensive weapon was used, namely a knife and a firearm when committing the offence.

13. These circumstances of aggravation are provided for by s 5AA(1)(b) of the CLCA in combination with the definition of ‘offensive weapon’ in s 4 thereof. An offensive weapon includes an ‘article … adapted for use for … threatening to cause personal injury’ as well as ‘an article intended to be taken for a firearm’. Plainly if a knife was wielded in the way alleged by II it would amount to using an offensive weapon to threaten harm, and if the accused indicated to what appeared to be the butt of a gun accompanied by the threats alleged, that too would amount to using an article intended to be taken for a firearm. Presumably the court is required to state which of the aggravating factors it finds to have been established pursuant to s 5AA(4) of the CLCA.

14. The elements of a charge of robbery are first that a theft was committed, in that for the purpose of this case property was taken dishonestly without consent with an intention to deprive the owner permanently thereof, and secondly that force was threatened in order to commit the theft.  Given the facts recited earlier and those to follow, there can be no reasonable doubt other than that at least a can of soft drink was stolen and at the time thereof threats of some kind were proffered by the first man at the time thereof.  At the very least it is proven beyond doubt that these threats were conveyed by such words as ‘ well bad boy … you want a problem … with bikies’, ‘bring me the drink’ and ‘do you have a problem …’ and ‘if you say anything we are going to know about you’.  The fact that they were taken to be threatening and intimidating is amply demonstrated by the fact that II mentioned that he had a wife and baby – he must surely have been in fear.

15. It is obvious enough that Mr Wellgreen was not the principal offender in relation to either count, so that proof of the case against him depends upon his complicity in the offences committed by the first man. Section 137(3) of the CLCA provides that ‘if two or more persons jointly commit robbery in company, each is guilty of aggravated robbery’.  As explained in R v Nemeth,[11] this statutory prescription imports common law concepts of complicity.  As explained by King CJ in R v Brougham:[12]

    A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required.

    This passage has since been quoted by approval in R v Aljaroudi, Abdullah and El Awar,[13] and interstate a number of times, including most recently in R v FP.[14]

    [11] [2008] SADC 112, [30].

    [12] (1986) 43 SASR 187 [191].

    [13] [2012] SASCFC 117, [50].

    [14] (2012) 224 A Crim R 82; (2012) NSWCCA 182, [117]-[120].

    Count 2 – Robbery (Basic Offence)

16. The second count charges the basic offence of robbery, comprised by the theft of the ring accompanied by threats immediately before or at the time thereof.  Once again the liability of Mr Wellgreen for this offence depends on the application of the principles of complicity.

17. The court found there was no case to answer against Mr Wellgreen on the second count, as he clearly played no physical role in it, and as the first incident was no longer on foot.  There was simply no evidence that he anticipated a second robbery might occur as an incident of the first, or that he otherwise assented to its commission.  The first man quickly left the Ford and again approached II’s car.  There is no suggestion of any discussion between the two men at any time.  This opportunity arose because the lights at the intersection had turned or remained red, thus preventing them from proceeding into David Terrace.  All the circumstances strongly suggest that the first assailant spontaneously and quite unexpectedly confronted II again for a period of just 15 or so seconds.

18. In those circumstances, even viewing the prosecution case at its highest, it is not open to infer that Mr Wellgreen held any awareness or expectation that the first man would affect a second robbery.  In any event, as he was not physically present there is simply no evidence of participation, still less any intentional encouragement of the commission of that second robbery.  That being so the verdict against him on count 2 can only be one of not guilty.  As expressed in the majority judgment in Johns (TS) v The Queen,[15] if any of the offenders commits a crime foreign to a common criminal purpose, ‘the others are neither principals in the second degree, nor accessories, unless they actually instigate or assist in its commission’.  Accordingly Mr Wellgreen is entitled to a verdict of not guilty on count 2.[16]

    [15] (1980) 143 CLR 108, 116.

    [16]   T117, Extempore ruling.

    The defence case

19. Mr Wellgreen elected to give evidence and thereby expose himself to cross examination, a course he was not obliged to take.  He gave evidence of being in the front seat of the Ford, first becoming aware of the Camry when he heard ‘him toot his horn’.[17]  He described looking back and seeing the driver ‘doing the fingers, but he may have just been lifting his hands like that’.[18]  He was not aware of the Ford having cut in front of it.  These events occurred as they were ‘coming around the corner’, obviously a reference to the corner of Hanson and Torrens Roads,[19] before pulling up.  Mr Wellgreen gave this evidence about what then transpired:[20]

    I think that we pulled up further up the road and stopped, jumped out, walked back to his car, he had stopped as well.  By the time I got there male one and him were arguing about who cut each other off.  I then said to him 'Do you have problem cunt?', I thought he actually said 'My wife is having a baby', but obviously he said 'I have a wife and a baby'.  I said to male one, 'Let's go' and I took a few steps to walk off and they were still arguing.

    [17]   T124.23.

    [18]   T124.28-.29.

    [19]   T125.23.

    [20]   T126.19-.27.

20. He went on to say that his intention in getting out of the car was to ‘ask him what his problem was’, that he was not angry but ‘I was sort of just off a little bit but not angry’,[21] ‘not that out of control but pissed off’.[22]  He denied being affected by drugs or alcohol, or of having a gun in his possession or of ever owning a gun, of having seen any items taken from II.[23]

    [21]   T127.3-.6.

    [22]   T127.10.

    [23]   T130.1- .16.

21. During the course of his evidence Mr Wellgreen made a number of other admissions against interest, namely:

    ·acknowledging an expectation that after getting out of the car ‘anything could have happened’;[24]

    ·accepting a preparedness ‘to physically engage if it came to that’;[25]

    ·that the first man grabbed the door handle and opened the driver’s side door of II’s vehicle from the outside;[26]

    ·of keeping an eye on what was going on between II and the first man;[27]

    ·being alert to the possibility that the first man might get into a fight with II.[28]

    Of course Mr Wellgreen does not have to prove anything.  There is no onus of proof on him.  The burden at all times remains on the prosecution to prove all elements of the charge beyond reasonable doubt.

    [24]   T127.15.

    [25]   T127.16-.18.

    [26]   T128.27-.38.

    [27]   T147.15-.19, T147.38-148.3.

    [28]   T147.25-.37.

22. It might be added that counsel for Mr Wellgreen cross-examined II in such a way as to involve imputations on his character, thus forfeiting the ‘shield’ preventing him from being asked questions showing he has been convicted of certain offences, provided for in s 18(1)(d)(ii) of the Evidence Act 1929 (SA). In fact his record of antecedents was tendered and he was asked questions about them by his own and prosecution counsel. His prior convictions, such as they are, do not assist either way in assessing the creditworthiness of his evidence or whether he was the type of person unlikely to commit the offences charged. The question whether proof of those offences can be used in some way for ‘discreditable conduct’ purposes, need not be pursued. It is sufficient to record that it was always open to the prosecution to rebut evidence of the accused’s good character: R v Calabria,[29] but not so as to provide evidence of guilt: BRS v The Queen.[30]

    [29] (1982) 31 SASR 423.

    [30] (1997) 191 CLR 275.

    Further findings of fact

23. The allegation about the theft of the can during the first incident is corroborated by the fact that the first man is seen to be carrying a can upon returning to the Ford.  He was holding no such item in the first approach toward the Camry.  The fact that he appears to be unfolding something, supports the evidence of II that a knife was produced.  Furthermore, his evidence about the content of conversations with the two men are in part supported by admissions made by the accused quoted above.  His evidence about the verbal exchange in the second incident is supported by the fact that the first man motioned towards the number plate afterwards.[31]

    [31]   T38.20-.24.

24. Whilst at times II was excitable, confusing and was prone to gesticulation, repetition and exaggeration, the general tenor of his evidence can therefore be accepted, except in the areas identified later.  For the most part these attributes might be ascribed to cultural differences and manner of expression, his first languages being Hebrew and Arabic,[32] quite apart from the frightening nature of the incident itself.

    [32]   T47.26-.30.

25. At this stage it is necessary to consider what the catalyst of the incident was causing it to erupt as it did.  If anything, the video evidence suggests that it was clear the red Ford indicated to veer right and managed to move in front of the Camry.  This manoeuvre was not one on any view of the events, demonstrating aggressive driving by the Ford itself.  Judged from his evidence, II was the very kind of person who was likely to have sounded his horn and motioned with his hands or fingers as suggested by Mr Wellgreen.  By the same token nothing in what he may have done, or his manner of driving, provided any justification for the belligerent confrontation that followed.

26. Both men alighted from the Ford immediately after it came to a halt.  They approached quite quickly, more or less in single file.  They had serious and determined expressions on their faces and to outward appearances, a unity of purpose.  Clearly they intended to confront II about his manner of driving and to engage in verbal abuse.  Furthermore, Mr Wellgreen admitted contemplating a physical exchange if it came to it.  Because he followed so closely behind and remained nearby at the driver’s door, and in light of the admissions noted earlier, there can be no doubt that he thereby encouraged the first man in whatever he did, and stood ready and willing to assist him in that regard, if necessary or if called upon to do so, at least in so far as a potential physical confrontation was concerned.

1. Counsel for the prosecution pitched the liability of Mr Wellgreen on a number of alternative bases.  First he contended there was a joint criminal enterprise to rob II.  However the incident erupted too spontaneously and occurred too quickly to support any conclusion that robbery was in mind – there remains a substantial doubt about that much.  Likewise as to extended common purpose, there is fundamentally no foundation from which to infer robbery was contemplated by Mr Wellgreen as a possible incident of a physical confrontation.  For those reasons it is not possible to draw an inference beyond reasonable doubt of any joint enterprise or common purpose to commit robbery, or that the accused even contemplated the first man might rob the driver of the Camry.[33]  It is inherently more likely they intended to confront and abuse the driver over the manner of driving, foreseeing that a physical confrontation might ensue.

   [33]   Gillard v The Queen (2003) 219 CLR 1, [112]-[119].

2. For some reason the first man instantaneously departed from a more benign confrontation.  More than likely he had a knife judged from the video images – particularly the unfolding like motion – in combination with the evidence of II.  The video images show the unfolding occurred close to the body out of view from Mr Wellgreen.[34]  Even if used in the manner described by II, Mr Wellgreen’s view is more than likely to have been completely obscured.  The same can be said with reference to the taking of the watch, assuming both events occurred.  There is further room to doubt that the knife was held to the neck, because it is difficult to appreciate how the first man could take hold of the soft drink can and then the watch, whilst still holding a knife.  In the combined circumstances the prosecution have failed to prove beyond reasonable doubt that a knife was used in the threatening manner alleged, and more to the point that Mr Wellgreen had knowledge of the knife or that it was used to threaten II.  That aggravated feature of count 1 is therefore not made out.

   [34]   Exhibit P1, 12:40:53.

3. The question of whether it is proven that what appeared to be the butt of a firearm was shown to II by Mr Wellgreen is not so clear.  The video shows that he was wearing a vest and it appears anything could be underneath on the right side.  It is inconclusive as to whether there is something to the right lower portion of the vest, but it does appear more clearly there is an object stuffed under the vest towards the right shoulder.[35]

   [35]   Exhibit P1, 12:40:53-12:41, 12:41.15.

4. As an objective matter it is difficult to appreciate how the gun could be been exposed in the precise way described, or as to how that was achieved, given that Mr Wellgreen stood behind the first man and given the entire event occupied a space of 13 seconds, leaving little time for the exposure of the gun to have been squeezed in during this first incident.  As noted earlier, there were some imperfections in the evidence of II.  Given the exchange about bikers, there is a significant chance he assumed there may have been a pistol about the person of the accused.  However there remains a reasonable doubt about that.  That aspect of aggravation has therefore not been established by the prosecution either.

   Accessorial liability?

5. There is no reasonable doubt other than that the can of soft drink was taken under the threat of force, even if a knife was not used to threaten, so that the basic offence of robbery is made out with respect to the first man to that extent.  The threats are those identified earlier.

6. The question then becomes whether Mr Wellgreen took part in the robbery in such a way that renders him criminally responsible?  There can be no doubt that he was present at the time, within ear and eye shot and that he also uttered words intimidating and threatening to II.  In light of the finding that what appears to be the butt of a pistol may not have been exposed, there must equally be a doubt that threats in the nature of ‘we are going to shoot you’ were heard.  Nevertheless the admitted affront ‘do you have a problem cunt’, the exchange with the first man about bikers, coupled with opening the driver’s door (confronting of itself whether from the inside or outside) were, in combination, quite intimidating.

7. The circumstances are such that although his view was obstructed, Mr Wellgreen must have seen at some point the can either being handed over from the centre console, or taken by the first man.  This was a more overt and extensive operation than the alleged knife incident and transacted much more away from the body of the first man.  The video demonstrates that the can is fairly obvious, unlike the watch and the knife, as well as the actual circumstances in which it was said to be taken.[36]  On the basis of these conclusions, there is no doubt that he must have held the required knowledge of all the essential facts amounting to robbery, namely that the can of drink was taken under threat without consent, thus rendering Mr Wellgreen guilty as an aider and abettor to that crime.  For those reasons, his evidence that he did not see the can taken, or that there is a reasonable possibility that he did not see that, is rejected.[37]

   [36]   Exhibit P1, 12:41:21.

   [37]   T130.11-.16, T162.33-163.21.

8. Of course mere presence at the scene of a crime, even if it has the effect of encouraging the principal offender to commit it, is insufficient, for it must be accompanied by an intention to render assistance if required: R v Jones & Mirrless.[38]  As demonstrated earlier, Mr Wellgreen had the intention of assisting the first man if required or if called upon and he was in close proximity and in readiness to provide reinforcement at the very least to the extent that a physical encounter might result.  The words uttered by him and his accomplice, even on his own account, were clearly intended to encourage the offender.  These considerations coupled with his presence and behaviour and the intention to assist, are sufficient to convey an assent and concurrence in taking the can of drink under threat: R v Lowery and King (No 2),[39] R v Tangye.[40]  Mr Wellgreen therefore falls within the requirement of committing that crime ‘in company with at least one other person’.  Expressed in another way, the objective circumstances demonstrate that Mr Wellgreen must have known the can of soft drink was stolen under verbal threats by the first offender and with that knowledge he remained intentionally present in order to assist or encourage if required: R v Stokes and Difford.[41]

   [38] (1977) 65 Cr App R 250 at 252.

   [39] [1972] VR 560 at 561.

   [40] (1997) 92 A Crim R 545, 557.

   [41] (1990) 51 A Crim R 25 at 37.

   Conclusion

9. The evidence conclusively demonstrates without doubt that Mr Wellgreen accompanied the first man with the expectation that violence might erupt and that he stood nearby to encourage and assist if it did.  He further participated in conveying threats of his own.  On the other hand it is not possible to infer beyond doubt that he expected or even anticipated a robbery might occur.  However by reason of his close proximity and the very attributes of the incident, he must have surely known the can of drink was stolen.  His close proximity at the time, coupled with words of encouragement, inherently mean that he thereby intentionally assisted or encouraged the first man in the commission of the offence of basic robbery. 

   Verdicts

10. Since it is open on an aggravated charge of robbery to return an alternative verdict of robbery: R v Aljaroudi Abdullah and El Awar,[42] the appropriate verdict is one of guilty to the basic offence of robbery of the can of drink.  The finding of no case to answer with respect to count 2 is affirmed for the reasons outlined above.  Accordingly a verdict of guilty of robbery on count 1 will be entered, and a verdict of not guilty of robbery on count 2, will be recorded.

    [42] [2012] SASCFC 117, [25].