Smith-Towns v Tasmania
[2019] TASCCA 22
•23 December 2019
[2019] TASCCA 22
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Smith-Towns v Tasmania [2019] TASCCA 22 |
| PARTIES: | SMITH-TOWNS, Ricky Lee |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2178/2019 |
| DELIVERED ON: | 23 December 2019 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 12 November 2019 |
| JUDGMENT OF: | Wood J, Martin AJ, Porter AJ |
| CATCHWORDS: |
Criminal Law – Charge of robbery involving punching cyclist and taking his bicycle – Trial judge directions left open to the jury a basis for conviction not advanced by the Crown – Departure from particulars – Directions deficient as to the necessary findings of fact and the application of the elements of robbery to this new basis of liability – Meaning of "immediately" – Miscarriage of justice.
Criminal Code Act 1924 (Tas), ss 240(1), 311(1), 312 and 314.
R v Emery (1975) 11 SASR 169; R v Chong [2012] QCA 265, considered.
Johnson v Miller (1937) 59 CLR 467, referred to.
Aust Dig Criminal Law [3490]
REPRESENTATION:
Counsel:
Appellant: K Cuthbertson, H Phillips Respondent: L Mason SC, L Ogden
Solicitors:
Appellant: Tasmanian Aboriginal Community Legal Service Respondent: Director of Public Prosecutions
| Judgment Number: | [2019] TASCCA 22 |
| Number of paragraphs: | 89 |
Serial No 22/2019
File No CCA 2178/2019
RICKY LEE SMITH-TOWNS v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J MARTIN AJ PORTER AJ 23 December 2019 |
| Orders of the Court (12 November 2019) |
1 Appeal allowed.
2 Conviction set aside.
3 New trial.
Serial No 22/2019
File No CCA 2178/2019
RICKY LEE SMITH-TOWNS v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J 23 December 2019 |
1 I agree with the reasons for judgment of Martin AJ. They reflect the reasons why I joined in the making of orders on 12 November 2019 to allow the appeal, set aside the conviction and order a retrial.
2 22/2019
File No CCA 2178/2019
RICKY LEE SMITH-TOWNS v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 23 December 2019 |
| Introduction |
2 In a trial before Brett J, the appellant was convicted by a jury of robbery. The particulars of the indictment dated 20 May 2019 were as follows:
"Particulars
Ricky Lee Smith-Towns at Ravenswood in Tasmania, on or about the 12th day of October 2018, stole a bicycle and immediately before the time of stealing the bicycle, he used violence to [the complainant], by punching him to the face, in order to obtain the bicycle."
3 The appellant appeals against the conviction on three grounds:
"(1) The trial judge erred in the circumstances of the case in not directing the jury that in order to find the appellant guilty of the crime of robbery they must be satisfied beyond reasonable doubt that the violence used or threatened to be used by the appellant occurred immediately before the time of stealing the bicycle and was used in order to obtain the bicycle. (2) The trial judge erred in directing the jury to the effect that if at any point during the continuum of the taking of the bicycle the appellant formed an intention to permanently deprive the complainant of it, the stealing element of the offence of robbery was completed. The terms of s 240(1) of the Criminal Code and the circumstances of the case require the jury to be directed that they must be satisfied that the appellant formed the intention to permanently deprive the complainant of the bicycle at a time immediately proximate to when the violence relied upon by the Crown was used or threatened to be used by the appellant. (3) The trial judge erred in leaving the case of robbery to the jury on a basis not
advanced by the Crown."
4 At the conclusion of submissions the Court allowed the appeal, set aside the conviction and ordered a retrial. I now set out my reasons for agreeing to those orders.
Background
5 The crime of robbery is found in s 240 of the Criminal Code:
"(1) A person who steals anything and, immediately before, at, or immediately after the time of stealing that thing, uses or threatens to use violence to any person or property in order to obtain that thing or to prevent or overcome resistance to the stealing of that thing is guilty of a crime which is called robbery."
6 Although s 240(1) provides that the violence can occur "before, at, or immediately after the time of stealing", the particulars of the indictment asserted that the appellant used violence to the complainant "immediately before the time of stealing by punching him in the face to obtain the bicycle". In opening the prosecution case, counsel for the Crown informed the jury the complainant would give evidence that he was riding his bicycle along Blyth Street in Ravenswood when the appellant approached him on foot from behind, and punched him once in the face. As a consequence, the complainant was knocked off his bicycle, and the appellant walked off with the bicycle in the direction of units on Blyth Street.
3 22/2019
7 Counsel informed the jury the complainant would give evidence that he shouted at the appellant and asked for the return of his bike, but the appellant ignored him until he was some distance away where he tipped the bicycle upside down, and told the complainant that if he wanted his bike back, he was to "come here". The complainant responded that he was not that stupid and saw the appellant take the bicycle inside one of the units. There was no further contact between the appellant and the complainant that day.
8 Three days later, the appellant was interviewed by police. Counsel informed the jury that, in essence, the appellant said the complainant had got off his bicycle to talk to the appellant on the side of the road. He agreed he had thrown a punch at the complainant, but said it did not connect. He agreed he had taken the complainant's bicycle.
9 In explaining the nature of the charge to the jury, counsel repeated the particulars of the indictment, including the assertion that the violence had been used immediately before the time of stealing. He then read s 240(1) to the jury which he described as "a bit of legalese", after which he said he would "apply that law to what the State says happened in this case". The opening continued:
"The Crown basically alleges that the accused, Mr Smith-Towns, stole [the complainant's] bicycle, and the Crown further says to you that immediately before the accused stole the bicycle, he used violence by punching [the complainant] in the face. I also further suggest to you that the punch to the face had the practical effect of enabling Mr Smith-Towns to obtain the bike, because the punched knocked [the complainant] off his bike, and onto the ground where the accused then took the bike."
10 Through the terms of the indictment, and the opening, the Crown based its case solely on the punch being delivered for the purpose of obtaining the bicycle, and being delivered immediately before the act of stealing.
11 At the time of pleading not guilty to robbery, the appellant pleaded guilty to assault. That plea was not accepted by the Crown. In opening remarks to the jury, counsel for the appellant referred to the appellant's admissions that he attempted to punch the complainant, but missed. Counsel said the punch was thrown because of a "personal issue", and that this was an "assault case", not a robbery. She said it was "never about the bike", but was about a woman who was the appellant's partner.
12 The complainant gave evidence as anticipated in the Crown opening. He said he was punched off his bicycle by the appellant, who then walked away with the bicycle. At a distance of approximately 20 metres, the complainant asked the appellant to give his bicycle back, but he was not sure whether the appellant responded. When the appellant was at the end of nearby units, the appellant put the bicycle upside down and "then like waved to me to come up there". The complainant thought he said that he was not going over to the appellant, and he called his father and the police. There was no further contact with the appellant on that day.
13 The complainant gave evidence that approximately two months before the day he was giving evidence, the appellant came to his house and returned his bicycle. The appellant was very apologetic for what had happened, and said he took the bicycle "because he wanted me to go and just have a talk to him". The complainant told the appellant he would "try to get all this stuff, like revoked …".
14 In answer to counsel for the Crown, the complainant said that apart from apologising for taking the bicycle, the appellant did not speak about what had happened. Counsel was given leave to cross-examine, and elicited that the complainant previously said during a meeting at the Office of the Director of Public Prosecutions that the appellant had said he was sorry for punching the complainant. Subsequently in evidence the complainant said he remembered the word "punch" being used.
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15 During cross-examination, the complainant denied the appellant initially said "we need to talk, don't we". He maintained he was struck in the face and fell off his bicycle. He denied the appellant threw a punch which missed.
16 The appellant did not give evidence. In an interview with police on 15 October 2018, the appellant denied he had taken the complainant's bicycle or assaulted him. After admitting that he saw the complainant in Blyth Street, the appellant gave the following version of events:
"He was riding past. I said G'day to him cause I thought he was someone else and he's pulled over and said G'day; asked if he knew where one of me mates lived and ah that's when I realised that it wasn't who I thought it was and asked him I said, 'I need to talk to you about something don't I', and I jumped off my bike and he more or less jumped off his bike and took off."
17 The appellant told police he was "sort of" upset with the complainant because he had been messaging the appellant's partner and "trying to hook up with her". He denied punching the complainant or getting into a fight with him. He denied that the complainant fell off his bicycle, and said he wheeled the complainant's bicycle away to see if the complainant would come and get it. He did this "cause I wanted to get hold of him".
18 The appellant maintained that when the complainant would not come to him and retrieve his bicycle, he went inside, leaving the bicycle lying on the ground between the block of units. He denied taking the bicycle inside the unit. He maintained he did not know the whereabouts of the bicycle.
19 Asked by police if there was a fight or any scuffle, the appellant admitted throwing a punch, but said it completely missed the complainant. At that time the complainant was off his bicycle and, when the punch was thrown and missed, the complainant ran away.
20 At the conclusion of the evidence, and prior to addresses, the trial judge put to counsel that if the appellant had taken the bicycle and the jury was satisfied that the stealing was "virtually contemporaneous with the assault", those facts amounted to robbery. Counsel for the appellant responded that his Honour's proposition seemed to represent the law. However, counsel submitted that the jury had to be satisfied that the assault was "for the purpose of taking the bike". After discussion, counsel amended that submission to contend that the assault had to be perpetrated "in order to obtain the property", or to prevent or overcome resistance to the stealing of the bicycle. Counsel appeared to accept his Honour's proposition that the motive for stealing the bike was not the only possible motive and, if the appellant decided it would be a good idea to steal the bicycle in order to seek retribution, it would still be robbery.
21 The trial judge then provided a draft jury memorandum to counsel. As to robbery, the memorandum was in the following terms:
"3
A person who steals anything and immediately before, at, or immediately after doing so, uses or threatens to use violence to any person in order to obtain that thing or to prevent or overcome resistance to the stealing of that thing, is guilty of the crime of robbery.
4
Accordingly, the accused is guilty of robbery if the jury is satisfied beyond reasonable doubt of the following facts (elements):
a The accused stole the bicycle from [the complainant]. The accused will have
stolen the property if:
i he took it ii without the consent of [the complainant] iii dishonestly
iv with the intention of permanently depriving [the complainant] of it. 5 22/2019
b Immediately before, at or immediately after stealing the property, he used or threated to use violence to [the complainant] in order to obtain the bicycle or prevent or overcome resistance to the stealing."
22 Counsel for the appellant stated that she was "content" with the memorandum as drafted.
23 In his closing address, counsel for the Crown suggested that the "real issue" was whether the appellant punched the complainant in order to obtain the bicycle. In discussing the evidence, counsel plainly based the prosecution case on acceptance of the evidence of the complainant that he was punched and fell off his bicycle, immediately after which the appellant took the bicycle. On the basis of that evidence, counsel urged that the appellant intended to steal the bicycle at the time he struck the blow. In counsel's words, there was interaction and, in the course of the interaction, "the accused punched the complainant in the face and he did that in order to obtain the complainant's bicycle".
24 Counsel for the appellant urged the jury to accept that the appellant tried to punch the complainant, but missed. Specifically, counsel put to the jury that the jury could not be satisfied beyond reasonable doubt that the appellant took the bike "dishonestly, for the purpose of intentionally depriving him of it". Counsel submitted that the altercation related to the complainant texting or messaging the appellant's partner, but this was a completely separate issue from the Crown case as to the taking of the bicycle. Counsel pointed out that there was no evidence as to what happened to the bicycle after the appellant stopped outside the units and invited the complainant to come and get it.
25 Of particular relevance to the grounds of appeal was the following submission made by counsel for the appellant:
"The Crown have to prove to you that Mr Smith-Towns, either before, at or immediately after the time of stealing used, or threatened to use violence in order to obtain that property. There is an argument about whether or not there was an actual punch or an attempted punch but one way or another you would have to be satisfied that he did those things for the purposes of stealing the bike and that's just not what happened here. Even [the complainant] said in his evidence that he knew that this wasn't about the bike. It doesn't make sense. Robbers do not tell someone to come and get the item back, to come and get it, here's your bike. 'Come and get it', to leave it outside, to put it upside down, gesture for them to come towards and get the bike:
It's never been about the bike and it's never been about Mr Smith-Towns intention – acting dishonestly or intention – intentionally acting to permanently deprive [the complainant] of his bike, therefore you cannot be satisfied beyond reasonable doubt that Mr Smith-Towns is guilty of robbery. This is an assault. This is an assault which Mr Smith-Towns has accepted and has offered a plea of guilty today."
26 Those remarks concluded the submissions for counsel for the appellant.
27 After addresses, and immediately before the summing-up commenced, counsel for the appellant informed the trial judge that she had considered the law concerning robbery overnight, and submitted that "the jury need to consider the purpose the violence was used or attempted to be used but which seem to be your Honour's view yesterday". Counsel provided written submissions to the trial judge.
28 Those written submissions contained the following propositions:
•
"It is the position of counsel for Smith-Towns that the jury need to be advised in summation to consider the purpose the violence, either attempted or actual, was used. That is, that they would need to be satisfied that the violence (actual or attempted) was used for the purpose of stealing.
•
Citing a passage from the judgment of Pidgeon J in Hood v The Queen [2000] WASCA 98, 111 A Crim R 556 at 558 [7]:
6 22/2019
'I consider the absence of definition has arisen by reason of the fact that the courts have seen the word speaking for themselves in plain English with no need for further definition and it is a matter for the jury in each case to determine whether there was actual violence or a fear of violence for the purpose of obtaining the property stolen.'
• First, in determining whether this element is met, the jury must consider
Mr Smith-Town's purpose when he committed the relevant act. He must have
committed the violence (either attempted or actual) for the purpose of taking the
bike, and that at the that time he had the intention to permanently deprive Mr
Hancock-Yost of it, that is that he would never give it back.
Secondly, given the purpose of the use or threat of violence must have been for the
purpose of taking the bike, dishonestly with an intention of permanently depriving
him of it, this element will not be met if Mr Smith-Towns used, or threatened to
use, force for a different reason, in this case, that Mr Hancock-Yost was
contacting his partner.
Thirdly and further to the scenario-above, the element will not be met if the
violence (actual or attempted) was for a different reason but upon seeing an
unanticipated opportunity created by his or her actions, stole Mr Hancock-Yost.
This would only be if the jury are of the view that after the unanticipated
opportunity was created, Mr Smith-Towns then dishonestly took the bike and
never intended on returning it.Summation 'in order to': attempted to use violence was to dishonestly take Mr Hancock-Yost's bike as retribution for what he had been doing but that is only if the jury are satisfied the violence (actual or attempted) was used to steal the bike."
29 The following discussion ensued:
"HIS HONOUR: He says he wheeled it away and said come and get it and that kind a thing but then didn't see it again. If the jury thought that that was reasonably possible and that's how you address it then there wouldn't be a stealing and there wouldn't be a – well I mean they I suppose they theoretically could decide that he'd taken it and then just left it, but – with the intention of permanently depriving but its likely they wouldn't find there was a stealing, so there wouldn't be a robbery.
If he initially attacked him physically without having any thought in his mind about the bike but then decides oh well I'll take his bike as well and resists any – the circumstance or resists any pressure to return it by the ongoing threat of violence it must be robbery mustn't it?
MS PHILLIPS: Well your Honour my submission is that it isn't and that the way that the section is drafted is that the stealing has to be a prerequisite and therefore the intention to permanently deprive must be in his mind at the time of the taking. I
accept what your Honour is saying in that afterwards if they accept that he was – well that his actions were threatening violence, but it would still come back to what his
intention was as to using the violence. If –
HIS HONOUR: But if he used the violence for another purpose – okay – let's say he wasn't even thinking about the bike when he used the violence initially, but then utilises the fact that he's used the violence in the – okay so the guy's – let's say the complainant's on the ground or running away or running around as a chook with his head cut off – whatever it was – because of the violence and he uses that opportunity then to steal the bike and when the fellow wants to get his bike back doesn't – doesn't accept the invitation to come over because he's still scared of him because of the ongoing threat of violence, that must be a robbery because the violence has been used – let's use the word for the purpose – not just for the purpose of seeking retribution, that's one of his motives, but also for the purpose of taking the bike. Now it might be that he's taken the bike because of retribution as well, but it doesn't stop the two being linked. The violence and the stealing.
MS PHILLIPS: Your Honour the jury in that situation would have to accept that it was a continued threat on Mr Smith-Towns' behalf –
7 22/2019
HIS HONOUR: Yes.
MS PHILLIPS: - of telling him to come and get the bike and he mentioned in his
record of interview that he just wanted to talk to him and there was evidence of when
he went round for the apology that he said he just wanted to talk to him, my
submission is that if – that the elements still would be met if he used violence for the
purposes of – well because of what had happened between the two, but then upon
seeing an unanticipated opportunity took the bike, then the elements wouldn't be
there.
HIS HONOUR: But the opportunity's there because of the violence.
MS PHILLIPS: But the violence –
HIS HONOUR: He's not going to get the bike otherwise.
MS PHILLIPS: But his intention at the time of using the violence is to steal the bike.
HIS HONOUR: Yes but this isn't a crime that's based on the – this isn't a crime that
starts with violence and with stealing tacked onto it. It's the other way round. So its
any person who steals anything and immediately before, at, or immediately after the
time of stealing that thing uses or threatens violence to any person in order to obtain a
thing or to prevent or overcome resistance to the stealing. Its wide enough to
encompass the situation we're talking about. I had thought about that and I'd thought
about whether well let's say that the punches finished and then afterwards he decides
well I think I'll keep this bike anyway, because there is an extended definition of
taking. Its not just the point at which you actually start to take. Taking extends over
the whole course of conduct that is involved in the taking and for, in my view in this
case, that would extend not just to originally wheeling the bike off but also to what he
does with it afterwards.
Now if at that – during that point in time he forms the intention to permanently
deprive him of the bike and the jury is satisfied that immediately before, at, or
immediately after the time of stealing – so at any time during this continuum of taking
he used or threatened to use violence in order to obtain the thing or prevent or
overcome resistance, its robbery.
MS PHILLIPS: Well your Honour my submission is that his behaviour in walking
away and telling him to come towards isn't a threat of violence.
HIS HONOUR: Okay well the jury might have a different view about that. As a
matter of law I think its open to the jury to find that. That's how I intend to direct
them. So I'm appreciative of your submissions and I understand the point you're
making but I intend to direct the jury in that way.
MS PHILLIPS: If it please your Honour that's as far as I can take it."
30 Counsel for the Crown then raised with the trial judge the possibility that there was "middle ground", namely, an assault by threat or punch, followed by a "gratuitous taking of the bike" without any thought, at the time of the violence, of taking the bike. In effect, counsel raised the possibility of leaving alternative verdicts of assault and stealing. However, the trial judge questioned how the jury could be satisfied of assault and stealing, as separate crimes, but not satisfied of robbery. His Honour expressed the view that even if it was not the original intention to steal the bicycle, inevitably there was a clear link between the violence and the stealing during the continuum of taking which would amount to robbery.
31 During a reply by counsel for the appellant, his Honour emphasised that the taking of the bicycle could not be "segmented". Referring to formation of an intention to permanently deprive during the continuum of the taking, his Honour said:
"The whole thing forms the taking of the bike, and if – I just can't see any scenario in which, if he's used violence and he pleaded guilty to using violence of any form but that's not connected to the taking of the bike. It clearly is. And so I had thought about leaving assault stealing – I thought about leaving assault and stealing as independent, where they could just find one – if they had – but I just really can't see that there's any – there's any basis on which – if they find assault and stealing in the
8 22/2019
circumstances of this case it seems to me to be robbery. I just can't understand how
the jury could get there in any other way."
32 Further discussion occurred between the trial judge and counsel for the appellant during which his Honour again referred to the continuum of taking, and counsel urged:
"It's the start point in that he has to have an intention to permanently deprive at or immediately before at or after and or immediately after in my submission that that's not the case here but that's as far as I can take it."
33 A number of points should be noted:
• In the initial discussion with counsel for the appellant, the trial judge raised, for the first time, the issue of an "ongoing threat of violence". His Honour said: "If he initially attacked him physically without having any thought in his mind about the bike but then decides oh well I'll take his bike as well and resists any – the circumstance or resists any pressure to return it by the ongoing threat of violence it must be robbery mustn't it?"
•
In the discussion, the trial judge spoke of the appellant not thinking about the bike when he used the violence, but then utilising the violence to steal the bike while the complainant was running away. In that context, his Honour spoke of the complainant not accepting the invitation to come over because he was still scared of the appellant by reason of "the ongoing threat of violence" which would amount to robbery.
•
In response to a submission that the conduct would not amount to robbery if the violence was used for personal reasons, and then the appellant then saw an unanticipated opportunity to take the bike, the trial judge observed that the opportunity existed "because of the violence". In his Honour's view, s 240 was "wide enough to encompass the situation we're talking about".
•
During the discussion, the trial judge expressed the view that if, at any time during the continuum of taking, the appellant "used or threatened to use violence in order to obtain the thing or prevent or overcome resistance, it's robbery". Counsel responded with a submission that the behaviour in walking away and telling the complainant to come towards him was not a threat of violence, to which his Honour replied that the jury might have a different view.
•
During submissions of counsel for the Crown, the trial judge rejected the suggestion that there was any form of "middle ground" which would leave open alternatives of assault and stealing. His Honour expressed the view that even if the appellant did not initially intend to steal the bicycle, inevitably there was a clear link between the violence and the stealing during the continuum of taking.
The directions
34 The directions of the trial judge expanded on the directions found in the memorandum. In relation to the first element of stealing, his Honour spoke of the concept of taking the bicycle during the "entire transaction":
"Now, the taking of the bike can involve – well my direction to you is – it's – it includes the entire transaction which involves its taking. Now often in the case of taking it might be someone breaks into a home, takes something, leaves the home and – and it's gone. There's been asportation of the relevant item and it's gone. In this case, and this is a matter for your determination of fact, but the taking can include the entire transaction of picking the bike up off the ground after [the complainant] had come off it, wheeling it away to a place that was further away near another unit and then taking it further it that's what you conclude did happen. So all of that would be included in the term 'taking', that entire transaction. Now I'll come back to that because it's important to understand that in the context of this case."
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35 In the context of the requirement that the taking be carried out dishonestly, the trial judge spoke of the state of mind occurring at any time during the "continuum of taking":
"Now, there is a need for a state of mind so that the taking is one thing. That's why I referred to the fact that there's a continuum of taking. It's the entire transaction. It's not just the particular moment that he picks the bike up and walks away with it. It's not necessarily a particular moment that he does something with the bike after [the complainant] has gone home. The taking involves the whole process of taking it away from [the complainant]."
36 Later his Honour explained that "the taking is important because it ties into this question of intention". The directions continued:
"It's not enough just to take something. You have to intend to permanently deprive the person of it and that means at the point that you're taking it has to be in your mind that you're going to keep it, you're not going to give it back to him."
37 The trial judge reminded the jury of the defence case that the appellant did not form an intention to permanently deprive the complainant of the bike because he did not intend to keep it. Then, in the context of the prosecution case, his Honour said:
"If [at] any point during that continuum of taking he's decided, 'I'm going to keep this bike' then that would be evidence or a basis for you to conclude that he's formed an intention to permanently deprive [the complainant] of it."
38 The trial judge continued with directions in which he repeated that it was sufficient if the intention to permanently deprive was formed "during this continuum of taking" and "at some point during that act of taking". His Honour informed the jury that if, during the continuum of taking, the appellant formed an intention to permanently deprive the complainant of the bicycle, the crime of stealing was "completed".
39 As to the aspect of violence, the trial judge read par 4(b) from the memorandum and followed with an explanation that stealing becomes a robbery "when violence is used immediately before, at or immediately after stealing the property and violence is used in order to effectively obtain the property or prevent or overcome resistance to the stealing". His Honour then reminded the jury of the prosecution case that the complainant was punched off his bicycle which was immediately taken, from which the jury could conclude that the violence was used in order to obtain the bicycle.
40 The trial judge then reminded the jury of the defence case that the appellant did not punch the complainant off his bicycle but, rather, swung a punch that missed. Further, that the appellant wheeled the bicycle away, but did not take it any further and did not steal it.
41 The trial judge then described the next question as whether violence was used "before, at or immediately after the stealing". His Honour then reminded the jury of the submission of counsel for the appellant that if violence was used, "it wasn't used in order to obtain the bicycle or prevent or overcome resistance to the stealing". His Honour explained the appellant's case that violence occurred because the appellant was upset about the complainant sending messages to the appellant's partner; "and that if he has taken the bike he's taken it after that has occurred".
42 The trial judge then emphasised to the jury that it was necessary to be satisfied that the violence was used or threatened to be used "before, at or immediately after the stealing" and used "in order to either obtain the bicycle or prevent or overcome resistance to the stealing." That direction was followed by a direction that the existence of another motive did not necessarily prevent the taking from being robbery. His Honour identified that question as: "Did he use or threaten to use violence in order to obtain the bicycle or prevent or overcome resistance to the stealing?"
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43 Subsequently, in directing the jury that a motive is not an element of the crime, his Honour
said:
"What is needed here is proof of a connection between the violence and the stealing and the connection that the legislation requires is that he has used the violence in order to obtain the bicycle or prevent or overcome resistance to the stealing. So the defence position is that there is a clear distinction between the violence and whatever he's done with the bike.
If he's stolen he bike though and he's taken the opportunity to – if he's initially used violence for a particular reason because he's upset with the man and then later formed the intention to steal the bicycle but has still used the violence in order to obtain the bicycle or prevent or overcome resistance to the stealing it would still amount to robbery. If you're not satisfied that that link is – that that link exists or that that link has been proven then that element would not be satisfied."
44 It is that passage which the appellant highlights in submitting that the directions unfairly left to the jury a basis for conviction which was contrary to the Crown case, and resulted in a miscarriage of justice.
45 The trial judge then turned to the alternative of assault. In addition to the application of force, his Honour directed the jury that the assault could be committed "by a threatening gesture". In that context his Honour referred to the appellant's version that he threw a punch which missed.
46 The trial judge then directed that the jury could take into account the appellant's admission through his plea of guilty to assault. Specifically, his Honour informed the jury that the jury could use the plea as "some evidence of an admission that an assault was committed, either in terms of an application of force or threatening gesture".
Discussion
47 The essence of the appellant's case on appeal is found in the appellant's written submissions:
"23 The direction as to the formation of the requisite intent at any point in the continuum of the taking left open a path to conviction not open on the case as presented by the Crown and the terms of s 240(1). The jury were in effect invited to convict on a basis that did not require them to be satisfied that the offence of stealing the bicycle was completed, incorporating both the physical and mental elements of the crime, at a time at or immediately proximate to the violence being used or threatened to be used by the appellant."
48 It is apparent from the terms of the indictment and the conduct of the trial that the Crown case was based exclusively on the evidence of the complainant that the appellant punched him off his bicycle and immediately took possession of the bicycle. From the outset, the only basis advanced for robbery was the initial punch delivered in order to obtain the bicycle, and delivered immediately before the appellant stole the bicycle. On the Crown case, the intention to permanently deprive the complainant of the bicycle existed at the moment the appellant first took possession of the bicycle. At no time did the Crown suggest that the appellant formed the intention to permanently deprive at a later point in the events. In addition, it was common ground that there was no contact between the appellant and the complainant after the initial confrontation, and there was no evidence of a subsequent verbal threat.
49 The defence case was equally clear. The appellant swung a punch which missed, and did so because he was angry with the complainant, but not for the purpose of obtaining the bicycle. Importantly, it was the defence case that the appellant did not, at any time, form an intention to permanently deprive the complainant of his bicycle.
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50 On appeal, counsel for the appellant did not suggest that the directions that the act of "taking" the bicycle could occur at any point across the "entire transaction", the continuum of taking, were legally incorrect. However, counsel contended that these directions were inappropriate and inadequate given the terms of the indictment and the issues in the trial.
51 As to the formation of the intention to permanently deprive, counsel for the appellant submitted that as the Crown relied upon a case that the violence occurred immediately before the act of stealing, the Crown case "necessarily required proof that the intention to permanently deprive was formed at a time immediately proximate to the violence being offered and the bicycle being taken". In other words, counsel contended that the trial judge erred in directing the jury that it was sufficient if the appellant "initially used violence for a particular reason because he is upset with the man and then later formed the intention to steal the bicycle". It must be said, however, that his Honour followed with the words "but has still used the violence in order to obtain the bicycle or prevent or overcome resistance to the stealing".
52 It is clear from the terms of s 240 that there were three essential facts that had to be proven in order to establish the crime:
• First, that the accused stole the bicycle; and • Immediately before, or at, or immediately after the act of stealing, the appellant used violence to the complainant; and • The appellant used the violence in order to obtain the bicycle or to prevent or overcome resistance to the theft of the bicycle. 53 I leave aside for this discussion the effect of the indictment which alleged that the violence was used immediately before the theft of the bicycle, and that the violence was a punch to the face delivered in order to obtain the bicycle.
54 As the trial judge left to the jury the possibility that the act of "taking" the bicycle could have occurred at any time during the events in question, in my opinion, it was essential that the attention of the jury be drawn specifically to the time the stealing occurred. In other words, it was essential that the jury determine when the appellant formed the intention to permanently deprive the complainant of the bicycle.
55 In order to amount to the crime of robbery, the violence used to obtain the bicycle, or to prevent or overcome resistance to the stealing, had to occur immediately before, or at, or immediately after the act of stealing. If the "taking" of the bicycle, in the sense of stealing, occurred later in the sequence of events after the appellant had called upon the complainant to "come here", a real question arose as to whether the initial punch (or attempted punch) was used "immediately" before the time of stealing. This issue was never specifically brought to the attention of the jury. Only general directions were given which were not related to these particular facts.
56 In the discussion with counsel before the directions to the jury, it appears that the trial judge had in mind a continuing effect of the initial violence and, possibly, an ongoing threat of violence through the appellant telling the complainant to "come here". However, this was never explained to the jury. In fact, the notion of a second act of violence based on a later threat was not mentioned to the jury. If a later threat had been left to the jury as a second act of violence, potentially, an issue of duplicity would have arisen. Leaving aside duplicity, if the case was to be left to the jury on the basis of such an ongoing threat of violence, it was important that the attention of the jury be drawn to the question whether the behaviour of the appellant in telling the complainant to "come here" was, in the view of the jury, an ongoing threat of violence. In addition, if it was an ongoing threat of violence, was it immediately before, at, or immediately after the appellant formed the intention to permanently deprive the complainant of his bicycle?
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57 The nearest the directions came to identifying these issues was the following passage:
"If he's stolen the bike though and he's taken the opportunity to – if he's initially used violence for a particular reason because he's upset with the man and then later formed the intention to steal the bicycle but has still used the violence in order to obtain the bicycle or prevent or overcome resistance to the stealing it would still amount to robbery. If you're not satisfied that that link is – that that link exists – or that that link has been proven then that element would not be satisfied."
58 Coupled with the other directions, in my view this passage is likely to have led to confusion in the minds of the jury. His Honour instructed the jury that even if the violence was initially used for some reason other than obtaining the bicycle, if, later in the events, the appellant formed the intention to steal, in some unexplained way the jury could find he had "still used the violence in order to obtain the bicycle or prevent or overcome resistance to the stealing". In this passage his Honour introduced a concept that although the initial violence was not used in order to obtain the bicycle, if the appellant later formed the intention to steal the bicycle, he could be regarded as still using the initial violence in order to obtain it or prevent or overcome resistance to the stealing. In my view, such an approach was not only contrary to the terms of the indictment, it was legally flawed.
59 In my opinion, the effect of these directions was to leave to the jury the possibility that the appellant could have committed the crime of armed robbery notwithstanding that when he punched the complainant he did not do so "in order to obtain" the bicycle. In these circumstances, the only way the appellant could have committed a crime was if he had used further violence, or a threat of violence, "to prevent or overcome resistance" to the theft of the bicycle. Not only was there no evidence of further violence, it was common ground that after the initial blow (or attempted blow on the appellant's case), the appellant and complainant remained separated by some distance. The trial judge apparently had in mind a threat of violence with the words "come here", but this was never explained to the jury and, as mentioned, such an approach would raise a question of duplicity.
60 Even if the jury was satisfied that the initial violence was used in order to obtain the bicycle, if the jury was not satisfied that the intent to permanently deprive was formed at the outset, but occurred later after the appellant had said "come here", the jury could only have convicted the appellant if the jury was satisfied that the initial violence occurred "immediately before" the formation of the intention to permanently deprive. On the facts established on the evidence, such a finding would not have been open. In this scenario, the violence would not have been applied "immediately" before the stealing. The word "immediately" imports a very close connection in time between the violence and the theft. In the circumstances under consideration, if the violence was not used for the purpose of obtaining the bicycle, the appellant's conduct would have amounted to an assault followed by a subsequent theft.
61 The meaning of the word "immediately" will vary with the context in which it is used. In the Oxford English Dictionary, 2nd ed reprint 1991, the following appears:
"4 a Of time: Present or next adjacent; of things: pertaining to the time current or instant.
b Occurring, accomplished, or taking effect without delay or lapse of time;
done at once; instant."
62 A useful passage with reference to authorities appears in Statutory Interpretation in Australia; 8th ed Pearce and Geddes:
"Immediately
12.19 The effect of the word 'immediately' varies with its context and it may be
thought impossible to lay down any hard and fast rule as to its meaning: per Cockburn13 22/2019
R v Justices of Berkshire Loizos' case. On the other hand, the context may determine that 'immediately before' an event means the last moment of time before the event: Equity Trustees Executors & Agency Co Ltd v Commissioner of Probate Duties (1976) 135 CLR 268; 10 ALR 131: 'immediately before death'."
CJ in (1878) 4 QBD 469 at 471. However, there are some respectively. But the circumstances will determine the proximity to the event that is necessary. It may not, for example, be possible to give notice forthwith after an event because a person is not available to receive it. In such a case, 'immediately' means 'as immediately as the circumstances permit':
indications as to its effect that are worth noting.
It is clearly a term that requires more rapid action than 'within a reasonable time'
(Dorsmans v Nichol (1978) 20 ALR 231 AT 237) and presumably than 'as soon as
possible' and 'as soon as practicable'. Kearney J in Loizos v Carlton and United
Breweries Ltd (1994) 94 NTR 31 at 34; 117 FLR 135 at 138, in what is perhaps the
fullest discussion of the word in Australia, followed a description in Lister v Forth
Dry Dock & Engineering Co Ltd [1990] 1 AC 546 at 567 that the word 'in its ordinary
signification … involves the notion that there is, between two relevant events, no
intervening space, lapse of time or event of any significance'. If action is to be
immediate, it must be prompt, vigorous and without any delay: Dorsman's case,
above.
'Immediately before' or 'immediately after' a designated event refers to a more
confined period than simply 'before' or 'after': Loizos' case, above; Commissioner for
63 In R v Emery (1975) 11 SASR 169, the appellant was charged with robbery with violence. The particulars in the Information alleged robbery, and that "immediately before such robbery", the appellant used personal violence to the victim. The charge was laid pursuant to s 158 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) which provided that the violence could be applied "at the time of or immediately before or immediately after" the robbery.
64 In the course of his judgment, Bray CJ made the following observations (at 173):
"It is undoubted law that robbery is a crime in which violence and dishonesty must coincide; see Smith v Desmond, per Lord Maurice of Borth-y-Gest at pp 985-986, per Lord Pearce at pp 997-998. If the appellant had no intention of stealing at the time he used violence towards Sullivan, and only formed the intention of stealing when he saw the money in the till after the fight with Sullivan had been broken off, then he would be guilty of larceny not robbery."
65 The remarks of Bray CJ were delivered in the context of an Information which charged the use of violence "immediately before" the robbery. The charge was particularised in this manner notwithstanding that s 158 of the CLCA also encompassed the use of violence at or immediately after the robbery. In Foster (1995) 78 A Crim R 517, in the context of a charge of murder on the basis of a stabbing carried out in connection with an attempted armed robbery, the New South Wales Court of Criminal Appeal explained that the "essence" of 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". Citing Emery, the Court continued:
"It is not sufficient that the threat of violence is made after the property has been
taken; both elements of the offence must coincide."
66 These authorities demonstrate the historical context of s 240, namely, that the robbery and the violence must "coincide". In defining the crime of robbery in s 240, the legislature chose to require that the violence or threat of violence be used "immediately" before or after, or at the moment of, "stealing". In this way the legislature maintained the concept of close coincidence between the violence and dishonesty.
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67 In the context of s 240, in my view the word "immediately" imports a significantly closer temporal connection between the violence and the stealing than would have existed if the initial punch was inflicted for some purpose other than to obtain the bicycle, and the intent to permanently deprive did not occur until after the appellant had upturned the bicycle and told the complainant "come here". In that factual scenario, the violence was not inflicted "immediately" before the theft.
68 For these reasons, in my opinion, a miscarriage of justice occurred.
69 The appellant also submitted that the directions resulted in a miscarriage of justice because the "path to conviction" was not advanced by the Crown, and was not raised by either the Crown or counsel for the appellant until after the closing addresses. In these circumstances, counsel contended that the appellant was forensically disadvantaged in the following way:
"The forensic decisions required and which were not able to be anticipated included what was required to be addressed in the closing submissions to the jury, whether or not to adduce evidence in the defence case, and what matters were required to be pursued during the course of cross-examination and how that should be done."
70 In view of my conclusion that a miscarriage of justice occurred by reason of the directions, it is unnecessary to examine whether, in itself, the departure from particulars in the indictment, and from the way the Crown case was presented, caused such unfairness to the appellant as to amount to a miscarriage of justice. However, there remains a separate question concerning the departure from the terms of the indictment.
The indictment
71 During submissions this Court questioned whether the trial judge erred in leaving a factual basis for conviction which was not encompassed by the particulars of the indictment. As discussed, although the indictment charged the crime of "Robbery", the particulars contained in the indictment asserted that the appellant stole a bicycle and "immediately before the time of stealing the bicycle, he used violence to [the complainant], by punching him to the face, in order to obtain the bicycle". In these circumstances, was it permissible, or appropriate, to leave to the jury the possibility that the theft of the bicycle occurred later in the continuum of taking if the appellant "still used the violence in order to obtain the bicycle"? Such an alternative not only departed from the terms of the indictment, but also from the way in which the Crown presented its case.
72 At the invitation of the Court, the parties were given time to provide further written submissions concerning this issue. The Crown submitted that the provisions of the Code reflect the requirements that an accused person must be afforded a fair trial and duplicity must be avoided. In the circumstances under consideration, the Crown submitted it would have been open to the trial judge, either on his own motion or on application by either party, to exercise the power to amend the indictment to include a wider basis than specified in the particulars of the indictment. The Crown also referred to the decision of the Queensland Court of Appeal in R v Chong [2012] QCA 265, which is discussed later in these reasons. However, the Crown did not articulate a position as to whether it was permissible or appropriate for the trial judge, without amendment of the indictment, to leave a basis for conviction not encompassed by the particulars set out in the indictment.
73 Counsel for the appellant submitted that "particulars play a crucial role defining the issues in a trial and ensuring that it is conducted in fairness to all parties". Referring to the judgment of Fryberg J in Chong, the appellant contended that as the indictment was not amended, "his Honour was bound to direct the jury in accordance with the particulars" in the indictment.
74 For present purposes, ss 311(1), 312 and 314 identify the essential requirements with which an indictment must comply:
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"311 Form and contents of indictments (1) An indictment shall be intituled 'In the Supreme Court of Tasmania', with the addition of the name of the place of trial, and shall contain and be sufficient if it contains a statement of the specific crime or crimes with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.
…
312 Statement of crimes
(1) The statement of a crime in an indictment shall describe the crime shortly, in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the crime.
(2) The words following the word 'Charge' at the foot of any section or subsection of the Code or of any statute, together with a reference to such section or subsection, shall be a sufficient statement of a crime under that section or subsection.
…
314 Particulars
After the statement of the crime particulars of such crime shall be set out in ordinary language, avoiding as far as possible the use of technical terms.
(1)
(2) Where any statute limits the particulars of a crime which are required to be given in an indictment, nothing in this section shall require any more particulars to be given than those so required.
(3) The omission of any fact from the particulars shall not vitiate the count to which they are appended if the particulars are sufficient to describe with reasonable clearness the nature of the charge."
75 It is apparent from these provisions that the legislature was concerned to ensure that an indictment provides to an accused "reasonable information as to the nature of the charge" and that the particulars are sufficient to "describe with reasonable clearness the nature of the charge". In Johnson v Miller (1937) 59 CLR 467 at 489, in the context of a complaint alleging a breach of the Licensing Act 1932-1935 (SA) because persons were seen exiting licensed premises on a Sunday, Dixon J said:
"[A] defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge."
76 In Saffron v The Queen (1988) 17 NSWLR 395, the New South Wales Court of Criminal Appeal was concerned with the charge of conspiracy and particulars given by the Crown of overt acts and of the terms and conditions of the conspiracy. Hunt A-JA discussed the essential requirements of a valid indictment at common law (445):
"At common law, a valid indictment must identify the essential factual ingredients of the offence charged; it must specify the time, place and manner of the acts or omission of the accused upon which the Crown relies, and it must provide fair information and reasonable particularity as to the nature of the offence charged."
77 Hunt A-JA drew a distinction between the binding nature of allegations pleaded in an indictment, and particulars provided by the Crown in support of an indictment (446 and 447):
"The appellant relies, however, upon the following statement by Gavan Duffy CJ and Starke J in R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 501:
'… the generality of the statement of the offence in the opening paragraph of the information must be limited and understood in the sense particularly stated in the relevant averments or particulars which follow it.'
But the context of the extraordinary case in which that view was expressed makes it clear that their Honours were speaking of those particulars which were in
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fact pleaded in the information or indictment in that case. They were not asserting that particulars given by the Crown before or after an indictment is presented are to be treated as if they were pleaded as part of the indictment itself.
Nor was Brennan J asserting such a proposition in Gerakiteys v The Queen (1984) 153 CLR 317 at 329, where his Honour referred to the fact that the particulars in that case had remained unaltered. That particulars are not treated as if they are pleaded as part of the indictment was made clear by Deane J in the same case (at 336), when his Honour considered the possibility that the particulars there supplied by the Crown may have been either abandoned or effectively varied in the course of the trial. That could not have been a possibility if particulars are to be regarded as if they were part of the indictment."
78 After discussing the relevance of particulars in civil cases, and having observed that an accused is not able to plead to a charge "unless he knows the precise case which is the basis for the charge preferred against him" (447), Hunt A-JA noted that it was permissible for the Crown to lead evidence outside its particulars although such a course should not be encouraged. His Honour again noted the distinction between particulars provided by the Crown and allegations contained in an indictment (448):
"R v Landy does not elevate particulars given by the Crown to the status of allegations
in the indictment so that the Crown case must by law be circumscribed by them".
79 After referring to the historical obligation to include in an indictment a statement of every essential factual ingredient of the offence charged, Hunt A-JA said (448):
"The progressive reduction by the legislature in the amount of information which must be included in an indictment – in order to overcome the crippling of the criminal law by technicalities such as that for which the appellant here contends – has underlined the distinction between the indictment and any particulars supplied otherwise. One consequence of that continuing distinction is that the inherent jurisdiction of a court to order particulars in a criminal case must be exercised more frequently: Johnson v Miller (at 497). But it provides no warrant for the appellant's submission that the Crown is bound by its particulars as if those particulars had been pleaded in the indictment." [My emphasis.]
80 In Chong, the appellant was convicted of assaulting a police officer. At the outset of the trial the Crown provided particulars of the assault, namely, that "Ms Chong threw, or threatened to throw a rock or a piece of concrete in the direction of [the complainant]". In response to a direction by the trial judge to elect whether the assault was based on the throwing of the rock, or a threat to throw the rock, the Crown prosecutor specified the throwing of a rock or piece of concrete in the direction of the complainant.
81 At the conclusion of the Crown case, the evidence was equivocal as to whether the rock was thrown, or there was merely a threat to throw it. The trial judge indicated he would direct the jury that a threat to thrown the rock would satisfy the definition of assault. Counsel for Ms Chong did not object to such a direction.
82 Ultimately, Holmes JA, with whose judgment in this respect North J agreed, held that a miscarriage of justice had occurred by reason of the directions of the trial judge concerning the basis upon which the jury could convict of assault. In the course of her judgment, however, her Honour observed that the Crown was not bound by particulars given at the commencement of the trial. In making this observation, Holmes JA was not addressing the critical question as to whether the Crown is bound by allegations set out in an indictment.
83 Fryberg J concluded that having provided amended particulars, the prosecution was bound by those particulars unless they were further amended. His Honour was of the view that as particulars
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are part of the Court record, a judge should not give directions which are inconsistent with that record
[35].84 As the appeal has been allowed on other grounds, it is unnecessary to discuss the principles further. In addition, in view of the limited research undertaken with respect to this question, it would be inappropriate to endeavour to provide a definitive answer as to whether a jury can ever be invited to convict on a basis not encompassed by the allegations in the particulars section of an indictment.
85 As a matter of principle and fairness, an accused is entitled to be informed "of the particular act, matter or thing alleged as the foundation of the charge" (per Dixon J in Johnson v Miller). The starting point in this process is the indictment and, specifically, the necessary information is provided by the allegations set out in the particulars section of the indictment.
86 Speaking generally, the Crown is bound by the allegations set out in the indictment. If the evidence departs from those allegations, and particularly where the allegations are as specific as those provided in the indictment under consideration, if the Crown wishes to press for a conviction on a basis not encompassed by those allegations, it is incumbent upon the Crown to seek an amendment to those allegations. Similarly, if a trial judge considers that the evidence leaves open a conviction on a basis different from the allegations stated in the indictment, the trial judge should raise the question of amendment in order to provide the parties with a reasonable opportunity to make submissions as to whether an amendment should be made.
87 In my view, in the circumstances under consideration, without an amendment to the indictment, the trial judge should not have left to the jury a basis for conviction not encompassed by the specific allegations in the indictment. Such a departure from the specific terms of the indictment will ordinarily lead to a conclusion that a miscarriage of justice has occurred. The Crown did not seek to contend that the proviso should be applied.
88 For these reasons, I agreed that the appeal should succeed.
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File No CCA 2178/2019
RICKY LEE SMITH-TOWNS v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PORTER AJ 23 December 2019 |
89 I agree with Martin AJ. His Honour's reasons explain the views I took when I joined in making the orders allowing the appeal, setting aside the conviction, and ordering a retrial.
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