Truman v Buxton
[2009] TASSC 96
•26 October 2009
[2009] TASSC 96
COURT: SUPREME COURT OF TASMANIA
CITATION: Truman v Buxton [2009] TASSC 96
PARTIES: TRUMAN, Samuel Mathew
v
BUXTON, Colin Henry
FILE NO/S: 183/2009
DELIVERED ON: 26 October 2009
DELIVERED AT: Hobart
HEARING DATE: 7 October 2009
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – General matters – Ancillary liability – Complicity – Aid, abet, counsel or procure – Presence at commission of offence
Randall v R; Farmer v R [2004] TASSC 42, referred to.
Aust Dig Criminal Law [2124]
REPRESENTATION:
Counsel:
Applicant: C Hansen
Respondent: A Shand
Solicitors:
Applicant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 96
Number of paragraphs: 19
Serial No 96/2009
File No 183/2009
SAMUEL MATHEW TRUMAN v COLIN HENRY BUXTON
REASONS FOR JUDGMENT TENNENT J
26 October 2009
The applicant, Samuel Mathew Truman, has applied for a review of a finding of guilt made against him by a magistrate following a hearing in respect of two charges of stealing. The charges were in the following terms:
"Charge: Stealing
Breach of: Section 234 Criminal Code Act, 1924.
Particulars: You are charged with on the 20th September, 2007, at Ulverstone in Tasmania, stealing 2 x bottle of Cougar Bourbon to a total value of $72.00 the property of Furners Bottleshop.
AND FURTHER: 2 –
CHARGE: Stealing.
BREACH OF: Section 234 Criminal Code Act, 1924.
PARTICUALRS: You are charged with on the 20th September, 2007, at Burnie in Tasmania, stealing 1 x 700ml bottle of Jack Daniels whiskey, 1 x 700ml bottle of Canadian Club whiskey, and 1 x 700ml bottle of Ballantines whiskey to a total value of $110.00 the property of BWS Bottleshop."
The hearing before the learned magistrate
The hearing was limited to the tendering by consent of amended facts for the prosecutor and an edited transcript of an interview between police and the applicant conducted on 11 December 2007.
The facts for the prosecutor were as follows:
"On the 20th of September 2007 approximately 3.45pm the defendant, Samuel Matthew Truman entered Furners Bottleshop in Reibey St, Ulverstone with two youths. One of these youths placed 2 bottles of Cougar Bourbon up his jumper and they all left the store without offering payment. They were valued at $72.00. This was captured on video surveillance and the registration number of the vehicle they left in was obtained.
Shortly after this incident, the defendant one other male and the two youths entered the BWS bottleshop at the Regent Hotel in Burnie and removed 3x 700ml bottles of alcohol. The bottles were placed down the pants of a co-offender and they left the store. No offer of payment was made, despite being questioned by the store manager and one of the youths returning a bottle of Jack Daniels when the store security alarm activated as he left the store. This was captured on video surveillance and while the defendant did not actually remove any alcohol from the premises he was standing where he had full view of the youth's actions. The defendant made no attempt to notify staff or police of their actions.
….
The defendant returned to Devonport Police station and participated in a video interview where he made admissions to having known during travel from Devonport to Ulverstone and Burnie that the other male and two youths he was travelling with were going to steal from certain bottleshops. The defendant could not tell police what happened to the alcohol."
In the edited transcript of interview, the following exchanges relevantly occurred:
"CMIt's in relation to a stealing at the Regent Hotel bottle shop on the 20th of September 2007. We believe that you may be able to help us with our enquiries and know something about this matter. So you understand what we're wanting to talk about.
ST Is that in Latrobe.
CM It's in Burnie.
…
CM What can you tell me about that incident.
ST Um, they stole some bottles of alcohol
CM They
ST at the bottle shop. It was Spaz.
CM Yep. And what was your involvement.
ST I was just there.
CM How did you get there.
ST Um, drove with Ryan BROWN in a car.
CM Okay. So you're with Ryan Brown, Spaz, being Sebastian FEBEY.
ST Yeah I'm, I'm not really sure on that.
CM And yourself. Was there anyone else in the vehicle.
ST No, not that I can remember, I don't think so.
CM Okay. Whose car.
ST Ah, Ryan's.
CM Yep. Okay. And why did you go to Burnie.
ST Oh 'cos they wanted to steal alcohol I think.
CM So you went specifically for the purpose of stealing alcohol.
ST Oh they did, I just went for a drive, I just went with 'em.
CM Okay.
RN Did you know what they were going to do.
STOh well they do that sometimes so. I didn't know if they were going to do it that day though.
CM Well you just said then that you knew they were going to
ST Oh well they did end up doing it so yeah.
CM Yeah. All right what did they take.
ST Oh I can't remember. Just bottles.
CM And did you take any yourself.
ST Nuh.
CM What did they do with them once they'd taken them.
ST Um, drunk it I guess, I dunno.
RN So you didn't have any of it.
ST Nuh.
CM Well where did you go after you'd done that.
ST Um, back into Devonport I think.
CMOkay. What, and you just left them with the alcohol or did you drink it on the way home or
ST Oh it was just during the day so. I had to ride so I wasn't drinking anything.
…
RN So who drove down there.
ST Ryan.
…
RN All right. Did you see them take the alcohol.
ST No I was sitting in the car.
RN Okay. I'll just remind you that we've actually got surveillance videos
ST Oh.
RN okay
ST Uhum.
RN of the three of youse entering into the bottle shop. Okay.
ST Yep.
RNAnd what youse did in the bottle shop. Okay. So don't sit there and tell me you sat in the car.
ST Oh yeah.
RN Okay. So now let's say again, what happened when youse went in.
ST Oh yeah they went in there and stole the alcohol.
RN Mm, and what did you do.
ST I didn't really, I just standing there looking at bottles.
RN But you went in.
ST Yep.
RN Yeah. So you didn't take anything from this bottle shop.
ST Nuh.
…
RNOkay. Did you take any of the alcohol that they took, and take it back with you to your place.
ST Nuh.
RN Do you know what they did with it.
ST I have no idea.
RN So you're only assuming they drunk it.
…
CM Okay, who was in the vehicle with you. I need to confirm this.
ST Me and Ryan.
CM Yeah.
ST And Sebastian ……….. I only know him as Spaz.
CM Right. It wasn't Skin.
ST Oh I can't remember ……….
CMOkay. Well reading over this, it's saying that police have identified Jamie SOMERS as being one of the people at that, in that
ST Oh he was probably there too. I can't remember.
CM Well you just told me before that there were three people.
STYeah well I thought there was, I can't remember. I can't remember every trip I go on.
CM Okay. How many times do you steal from a bottle shop then …..
ST I didn't steal anything. I haven't stole anything.
CMWell go with others to steal. You'd think, well I know I would remember that incident. I would think oh this is a bit unusual.
STYeah that's, that's when I remember ……………. That was the same day. I think it was.
CMOkay. So you knew they were going to do that sort of thing 'cos that's what they do …
ST No I wasn't sure (inaudible)
CMOkay. And you left your bike here in Devonport and you jumped in the car with them and you scooted over there for a bit of fun.
STOh they asked me to go with 'em, I said why not. Had nothing else to do that day.
…
CMOkay. As I just stated, Furners Bottle Shop in Reibey Street, Ulverstone. Okay. It was prior, just prior, so it must have been on the way over to Burnie. There were, do you want to tell me the story or shall I go on.
ST Yeah keep going.
CM Okay.
RN What do you remember, no before you do, do you remember.
ST Oh yeah I think so …..
RN Okay so you tell us what you remember.
STWell they went there and then they stole some bottles of alcohol from the bottle shop.
RN And what did you do.
ST I didn't do anything.
RN Where were you when it happened.
ST Oh I was in the bottle shop as well.
RNOkay so are we talking about the same people again, the same three other people that ………… that are now established. Is that right.
ST Yeah.
CM Was there three or four.
ST Oh there was ah three others.
CM Three others.
…
RNSo if you have taken anything we'll see, but if you didn't, don't sit there and tell us that you didn't know what they were doing, 'cos it's quite obvious you did. Isn't that right.
ST Well the first time I didn't.
RN Okay. And when was the first time.
ST Oh I can't remember.
RN It wasn't these days though was it.
ST Yeah that's what I'm talking about, these days. Well the first bottle shop.
RN So how many bottle shops did you do that day.
ST I can't remember.
RN So it was obviously more than two.
ST Those two.
…
RNRight, but let's just get back onto this. So is this the first bottle shop you did that day.
ST Which one.
RN Ulverstone.
ST Yeah I think so. Can't remember.
RN You don't think so.
ST I think so.
RN Right. So how many did you do on that day.
ST Those two.
…
ST They went to the bottle shop and they stole ………..
RN No no no no no. You all went to the bottle shop. Okay.
ST Yeah okay.
RN Okay. What happened. Youse all go in.
ST Yes.
RN And what happened when youse are in there.
ST They went over to the show bottles section.
RN What, all three of them.
ST Yeah I think so.
RN And where were you.
ST Oh I think I was just standing behind 'em just with 'em.
RN Okay, so youse all went over to there, right.
ST Uhum.
RN What happened then.
STAnd then, oh they're looking around to see if anyone was looking and they stole some alcohol.
RN Yeah. How did they steal the alcohol.
ST Oh I think they just put it down their top.
RN Who though. Did all of them do it or
ST Yeah I think so.
RN Right, so all three of them removed what, how many bottles.
ST Oh I can't remember.
RN Do you remember what the bottles were.
ST Nuh.
RN Okay. Any attempt was made to pay for them at all.
ST Nuh.
RN No. So you saw them taking the bottles.
ST Oh yep.
RN Okay, but you're saying you didn't take any.
ST Nuh.
…
RN You trotted out of that bottle shop, hopped back in the car,
ST Yeah.
RN and then went to Burnie did you.
ST Yeah I think so.
RN Did you stop anywhere else.
ST Oh yeah I think we looked around Burnie a little bit.
…
CM Did you say anything to them when they were taking the bottles. Did you
ST No I don't think so.
CM Okay. Did you attempt to tell anyone what they were doing.
ST What, in the bottle shop.
CM Mm.
ST No.
CM Okay.
RN And you don't remember what was taken.
ST No not really, just bottles, straight bottles.
CM Did you end up drinking any of that alcohol from Ulverstone.
ST Nuh.
CM Did they give you any.
ST Nuh.
RN All right.
CM Okay."
Following the tendering of the evidence, the police prosecutor and counsel for the applicant both made brief submissions. Counsel for the applicant addressed the learned magistrate as to the bases upon which the applicant could be found to be criminally responsible for the thefts, namely as a principal offender, an instigator, an aider or an abettor. He submitted that the applicant was simply present, and that mere presence was not sufficient to make the applicant an abettor. Given the state of the evidence, the applicant could not be found guilty in any category. There was a passing reference to a case by the name of Smith, for which neither a citation nor any material from it was provided.
The police prosecutor contended that the applicant knew what was going to take place, he went into the bottle shops with the youths who physically stole the alcohol, stood near them while they took the alcohol, and left the bottle shops with them and the stolen alcohol. He conceded there was no evidence of an active encouragement by the applicant. He referred however to R v Mundy A58/1966, where an accused was convicted of certain offending in circumstances not unlike those in which the applicant was involved.
Immediately following the submissions, the learned magistrate gave his decision orally. He found the charges proved, and, shortly after, dealt with the applicant pursuant to the Sentencing Act 1997, s7(f). The reasons of the learned magistrate were:
"This is a matter based on the documents. The evidence that is before me is that a bottle shop in Ulverstone, a bottle shop in Burnie were entered by three individuals, one of them being the defendant in relation to each shop. Some alcohol was stolen, not a large amount – but an amount was stolen. It is agreed that the defendant made a record of interview and he made admissions that he'd known during travel from Devonport to Ulverstone and Burnie that the other males and the two youths he was travelling with were going to steal from certain bottle shops and his reply in the record of interview were contradictory and were somewhat inconsistent.
I am satisfied in this particular case that he was actively participating in the theft. There is no suggestion at all, and he hasn't any obligation of course, to interfere – there is no obligation that he did interfere – or to try to stop them doing so. The contrary of that of course, there is no evidence that in fact he actively physically helped them putting bottles away or carrying bottles or keeping watch for them. But I am satisfied in this case on the evidence that's before me that he did actively by his presence, participate. He was with them for some time. It wasn't as though he was a stranger to them and it would appear from the interview that they were – the three of them were seen together on the video. He went into each bottle shop, he could have wanted if he stand by – he could have stood by and waited in the car or gone somewhere else. He chose to go into the bottle shops with each of the other two and the mere fact that he didn't physically pick up a bottle and take it out in my view doesn't make him any less culpable of these offences. He actively participated in their visit to the shops and the removal of the alcohol from them.
I find the offences proved of both counts."
The review
The grounds of review are as follows:
"1No Magistrate acting reasonably could have been satisfied on the evidence before him or her the Applicant was guilty of either charge of stealing.
2The Magistrate erred in law in misdirecting himself as to the law in relation to abetting.
3The Magistrate erred in fact and in law in failing to give adequate reasons for his decision to find the charges proved beyond reasonable doubt."
Counsel for the applicant abandoned grounds 2 and 3 at the hearing.
The submissions of counsel for the applicant focused on the law relating to criminal responsibility as an aider and/or abettor, although the ground of review pursued did not specifically confine the review to that issue.
The law
The Criminal Code Act 1924, s3(1)(a), (b) and (c), provides:
"(1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:
(a) every person who actually commits the crime;
(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;
(c) every person who abets another person in committing the crime; …".
There was no evidence before the learned magistrate that the applicant physically stole any alcohol at either bottle shop. There was no evidence he instigated either theft. The only basis therefore for criminal responsibility of the applicant could be as an aider and/or abettor.
In Randall v R; Farmer v R [2004] TASSC 42 at par40, Cox CJ dealt with the concepts of aiding and abetting. He said:
"40 The concepts of aiding and of abetting, as the learned trial judge acknowledged, can overlap. In respect of aiding, the Criminal Code, s3, requires that there be an act done or an omission made for the purpose of enabling or aiding the principal offender to commit the crime. Abetting requires not merely wilful encouragement by the abettor, but the communication of that encouragement to the offender with the consequence that the offender is in fact encouraged. In either case, some active step must be taken with intent to bring about the commission of the crime by the principal offender. In most cases of aiding, some physical act or deliberate omission can be readily identified and in many cases of abetting, the communication of encouragement may take an identifiable physical form such as gestures or spoken words. In R v Coney & Ors (1882) 8 QBD 534, Hawkins J said at 557 - 558:
'In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.'
Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance, if required, is not sufficient (R v Jones & Mirrless (1977) 65 Cr App R 250 at 252; Roughley v R (supra) at 12)."
In Randall and Farmer, his Honour went on at par41 to say that more than mere presence was proved against Farmer. He then detailed what the evidence was as to Farmer's connection with the matter.
The learned magistrate's decision and the evidence
There were two charges of stealing. The evidence was that the applicant was a passenger in a car belonging to a Ryan Brown. The car was driven from Devonport to Ulverstone initially. There were three other males apart from the applicant in the car. The car was driven to Furners Bottle Shop in Reibey Street. All four, including the applicant, entered the bottle shop. One of the males in the group put two bottles of alcohol up his jumper and the group left the bottle shop and drove away. The alcohol was not paid for. The applicant told police that "they" went there and then they stole the alcohol. He said however that he did not do anything.
The car was then driven to Burnie with the same occupants to the BWS bottle shop at the Regent Hotel. Again, all four males, including the applicant, went into the bottle shop. The police facts recorded that "the defendant one other male and two youths entered the BWS bottle shop at the Regent Hotel in Burnie and removed 3 x 700ml bottles of alcohol." On that occasion, the alcohol was placed down the pants of one of the other males and the group left the store without paying for the alcohol. As they were leaving, the security alarm went off and staff spoke to one of the youths. As a consequence, that youth returned one bottle of alcohol. Security surveillance showed the applicant standing where he had full view of what the youth was doing.
The applicant agreed (see the facts for the prosecutor) that he knew during the travel from Devonport to Ulverstone and then Burnie that the other male and the two youths he was travelling with were going to steal from certain bottle shops. The applicant also told police in his interview that, while he knew the others were going to steal alcohol, he just went for the drive. He did not steal the alcohol and did not have any of it. Initially, in relation to the Burnie incident, the applicant said he had stayed in the car. When, however, he was told of security footage, he admitted he went in to the bottle shop, but said he just stood looking at bottles.
The learned magistrate identified that the applicant made admissions that he knew what the other males were going to do. He identified that the applicant's replies to police were contradictory and somewhat inconsistent. He acknowledged that the applicant had no obligation to interfere or stop the males from doing what they did. However, he found that the applicant actively participated in the thefts. He noted the applicant was with the others for some time, he was not a stranger to them, and he entered each of the bottle shops with them.
This was clearly, on the material before the learned magistrate, not a case of just mere presence of the applicant. It involved his travelling in a car for some distance with the other three males, and knowing they were going to go into bottle shops and steal alcohol. It involved the applicant actually going into the two bottle shops with the other three males, standing nearby in one case in full view while the youth or youths physically took the alcohol and concealed it, remaining with them at Burnie when one of the youths activated an alarm, and then, in each case, leaving the bottle shops with the males and getting into a car with them and the stolen alcohol. The finding by the learned magistrate that the applicant actively participated in these thefts, as opposed to his simply being incidentally present, was, in my view, open to him on the evidence.
Conclusion
The notice to review is dismissed.
0