The Queen v Darian Bevan Butler

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 384/00

THE QUEEN

DARIAN BEVAN BUTLER

Hearing:	7 December 2000
Coram:	Keith J Robertson J Goddard J
Appearances:	W D McKean for the Appellant J C Pike for the Crown
Judgment:	7 December 2000

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

The appellant was convicted by a jury of robbery. The trial initially proceeded on the basis of a single count in the indictment, namely aggravated robbery. At the conclusion of the Crown case an amended indictment was presented, with leave, which contained the additional alternative counts of robbery and theft.
The Crown opened its case on the basis that the appellant and one other had planned an aggravated robbery with a firearm or an iron bar. This robbery was carried out by the appellant, with his co-offender acting as the driver of the getaway car.
Mr McKean for the appellant had also made an opening statement, immediately following the Crown’s opening. He said the appellant’s case was that he was guilty of theft but not of aggravated robbery: no shotgun or iron bar had been used; nor had there been any violence or any threat of violence in carrying out the theft.

Background Facts

The brief facts are these. The complainant was a proprietor of a car-wrecking yard. At the end of each business day he would leave the yard with his briefcase and lunch box and secure the premises on his way out. This involved switching on an alarm, pulling down a roller door, locking a security lock halfway up the door and then securing a padlock on the lower left-hand side of the door. Whilst attending to these security measures he would put his briefcase and lunch box on the ground beside him or sometimes on the bonnet of his car just beside the roller door. The complainant often carried significant amounts of money in his briefcase and was carrying $16,000 cash in the briefcase on the day of the robbery. His routine in securing the premises at the end of each day was apparently known to the appellant and his co-offender.
On the day in question the appellant and his co-offender borrowed a relative’s car and drove to the complainant’s car-wrecking yard. They drove past the address several times and on one occasion the appellant went into the premises to ascertain the layout of the building. At about 5.00pm his co-offender dropped him off across the road and drove the car around the corner to wait for him. The appellant then approached the complainant who was securing the padlock on the lower left-hand side of the door. What happened next was the subject of dispute between the complainant and the appellant in their evidence and there were no other witnesses to the incident. The complainant’s evidence was as follows:
…tell us what happened? … Well I locked that particular padlock and stood up and grabbed me briefcase and lunch box and turned around to be confronted by a robber.
…
Whereabouts are you when you are confronted by this robber, as you call him? … Straight up from the padlock, turned around facing back out … he was standing there looking [by] the car there, when I turned around.
How sure are you that you’d picked up your briefcase and your lunch box? … I’m sure yeah, positive.
… describe the person for us? … Tall, tallish, long black hair. I only know that now because I’ve seen him since. All at the same day. At that time he had a balaclava on, a tallish guy, dark clothes and a shotgun in his hand.
When you say a shotgun, how much could you see? … Barrel.
What about the rest of it? … The rest of it was covered, with a cloth over it.
How was it being held? … Just like that, with a rag over it and the barrel out here.
Indicating left hand, was it left hand or right hand? … Left hand.
…
What was your reaction? … I just froze actually.
And what happened? … Pulled the briefcase out of my hand and went away.
…
How soon is it that he grabs the briefcase? … Instantly.
All one sort of action? … Well it was for me yeah.
Do you remember now which hand you were carrying the briefcase in? … Left hand, I suppose. Oh I forget.
…
All right, he grabs it then what happened? … Scarper[ed].
In which direction? … Out the gate.
In cross-examination the complainant was asked whether he had put his brief case and lunch box on the bonnet of his car whilst he secured the premises but he refuted that.
The appellant in his video interview by the Police stated as follows:
… must have been just 5 o’clock or just after 5 o’clock and I watched everyone else leave and ah once everyone else had left I ah crossed over the road, stood right outside and um watched the guy with the money come out and then I put a singlet over my head, um, as I saw him, when he was crouched down, he walked out, put his uh briefcase and a pile of other stuff on top of the briefcase on his car boot which was directly behind him while he was um, leaning down locking this ah padlock which was on, at ground level. … I just saw that as my opportunity. Ran in, grabbed the briefcase. All the stuff that was on top of it, I just chucked it off onto the ground. And then started running up the street, out towards the street…
…
So you waited until he put the briefcase on the bonnet, on the boot of car? … Yes.
And you ran in and grabbed it. Did you say anything? … No, no. He was, he was yelling at me, I didn’t say anything, I just grabbed, took that stuff off, turned around and ran.
Okay. Did you have anything with you in your hand, when he went up there? … No, but um when, as soon as I started running away I pulled the singlet off my head and I had that in my hand, in one hand, and the briefcase in the other hand. But that’s, yeah, that’s all I had on me.
Okay. He said you had a bar or something in one of your hands? … No, there was no way I ever um planned to go in there with a weapon or anything like that. …because from what I knew he ah was not likely to, he wasn’t supposed to be the sort of guy who ah would chase after me or anything.
At the conclusion of the Crown’s case the trial Judge issued a short Ruling in relation to amendment of the indictment to include the further alternative counts.
Mr McKean advises that both he and counsel for the co-accused objected to the inclusion of a robbery count, on the basis that this was not part of either the Crown’s case or the defence case. The Judge’s Ruling is as follows:
After the Crown case was closed and before defence counsel have opened their cases this morning, although Mr McKean last night indicated that he would be calling one witness’s evidence, Mr Smith presented to me an amended indictment. I might say that this was a matter that I, myself, raised with counsel yesterday. The amended indictment expands the original indictment, which was initially one of aggravated robbery. That amended indictment has three counts, count one of aggravated robbery, count two robbery simpliciter, and count three theft. It is to the count two that the defence essentially object. They object because this gives the jury a middle ground.
I am of the view that the way the case was opened and has been presented that there is no prejudice to the accused in this case by the inclusion of count two, and indeed, on the evidence that [i]s presently being given, this is an issue that is, in my opinion, properly for the jury to consider, namely if a weapon was not used whether on the facts it constituted robbery simpliciter.
For that reason I am of the opinion that the amendment to the indictment should be allowed.
Neither the appellant or his co-offender gave evidence at trial or called any evidence.
The jury, by their verdict, were clearly not satisfied beyond reasonable doubt that the appellant was carrying a gun or other offensive weapon at the time he took the briefcase. However they were clearly satisfied either that violence was used, in terms of snatching the briefcase from the complainant’s hand, or that the circumstances in which the appellant took the briefcase amounted to the threat of violence.
The Crown case, as summarised by the Judge in his summing up, was that an offensive weapon was carried by the appellant and briefcase taken from the complainant’s hand. The appellant was wearing a balaclava or something around his head at the time. The Crown’s contention was that:
… even a balaclava in certain circumstances could imply a threat of violence.
The case for the defence was introduced by the Judge as follows:
Now the defence case for Mr Butler is that Mr Butler did not use violence or threats of violence when he took the briefcase. The case must be proved beyond reasonable doubt that as you must be sure first that violence or threats of violence was used or that a weapon was used by Mr Butler. That is important. First of all the weapon issue is important on the issue of aggravated robbery, and the violence or threats of violence is important on the issue of robbery.
The Judge then went on to summarise the case for both accused. The essence of the defence for the appellant was put to the jury as absence of proof of a gun or any other weapon having been used, and that no physical confrontation occurred and the briefcase was not taken from the complainant’s hand but simply uplifted from the bonnet of his car where it was sitting. The appellant, who had familiarised himself with the complainant’s routine had spent all afternoon in the heat watching and waiting for the opportunity to simply grab the briefcase when the complainant put it down, as he knew he would. The Judge in his summing up described the appellant’s position in this regard as follows:
The defence says that Mr Gundry conceded that he used the same procedure every day in locking up his premises, and that what was described was in fact consistent with the way the defence submits has happened, namely that the bag was taken and it was theft only. The defence says it was careful planning here. He waited all afternoon, and quite clearly he waited for his opportunity and when it arose he took it, and that opportunity did not involve violence or threats of violence or the use of a weapon. No demand was made and all he did was pick up the bag while Mr Gundry’s back was turned.
Mr McKean argued that the trial Judge had failed to properly direct the jury on the evidence relevant to the count of robbery. He submitted that the verdict of robbery was not open to the jury on either the complainant’s version of events or the appellant’s version of events, as given in his video interview. This was because there was no evidence of violence or threats of violence. Mr McKean submitted that that verdict of not guilty on the count of aggravated robbery meant the jury had rejected the complainant’s evidence on the issue of a weapon. This, he submitted, rendered the whole of the complainant’s unreliable. Thus the complainant’s version of events as to whether the briefcase had been snatched from his hand or uplifted from the bonnet of his car should have been preferred as the only credible account.
Mr McKean submitted that the Judge did not direct the jury correctly, or at all, on what amounts to violence or threats of violence. He drew on the definition of “violence” provided in The Shorter Oxford English Dictionary (Third Edition) and cited the decisions in Police v Raponi [1989] 5 CRNZ 291; Peneha v Police (unreported, HC Gisborne, 16 August 1996, AP 8/96); and R v Broughton [1986] 1 NZLR 641.
In Police v Raponi, Wylie J discussed the meaning of violence in terms of s 5 Criminal Justice Act 1985. He found that violence is not necessarily imported into an assault charge which may relate to a mere touching. A review of various definitions led Wylie J to the view that “substantial force, great physical action, the exercise or application of power and so on” ruled out the type of factual situation he was dealing with from a s 5 Criminal Justice Act 1985 consideration.
In Peneha v Police, Williams J considered the situation of a forcible bag snatching which resulted in hurt to the complainant’s hand and wrist. Williams J held that “violence” in a charge of robbery countenanced more force than the minimum for an assault but less than the infliction of bodily injury. He found:
It is enough to constitute violence under s 234 [Crimes Act 1961] if, the actions of the Oxford English Dictionary definition, the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort.
In R v Broughton, this Court considered whether the correct test for a “threat of violence” and the definition of robbery in s 234 Crimes Act 1961 had been applied by the trial Judge:
Those words in the section should be given their ordinary meaning which is the manifestation of an intention to inflict violence – unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both. That actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than “the strength of the nerves of the person threatened” (R v Smith (1849) 2 Car & Kir 882, 887; R v Pacholko (1941) 75 CCC 172, 175). … The focus of the inquiry in relation to this ingredient of the offence must be on the quality of the accused’s conduct and to meet the statutory test that conduct itself must be such as to convey a threat of violence. Whether or not the conduct complained of is capable of amounting to a threat of violence must be assessed in the context in which it occurred. That requires consideration of all the circumstances.
The focus of Mr McKean’s argument narrowed to a submission that the trial Judge had never directed the jury that even if they accepted the appellant’s version of events, the fact that he was wearing a balaclava could satisfy the elements of a charge of robbery.

Discussion

We are satisfied that the jury could have been in no doubt as to the competing merits of the Crown and defence cases. The Crown’s case was that the bag was snatched from the complainant by the appellant wearing a balaclava or similar on his head and that a weapon was used. The defence case was that the appellant watched and waited for the complainant to put his briefcase down and then approached and grabbed it whilst the complainant’s back was turned: at the time he had his singlet wrapped around his head. Presented with those clear alternative scenarios, it was open to the jury to find the appellant guilty on any of the three counts in the indictment. Clearly by their verdict they were not satisfied that a weapon was used. But equally as clearly, they were satisfied either that the bag was snatched from the complainant’s hand or that it was taken under threat of violence. Even if they accepted the appellant’s explanation that he had grabbed the bag from the bonnet of a car, it would have been open to them to conclude that the sudden appearance of a tall man wearing a balaclava in circumstances where the complainant was securing his premises for the night and had a large amount of cash in his briefcase was inherently violent and thus amounted to a threat of violence. Such a combination of circumstances could well cause a person so confronted to ‘freeze’, thus facilitating a theft. There is no reason why the jury should not have accepted the complainant’s word that he had turned around and was confronted by the appellant, rather than the appellant’s version that the complainant had his back turned to him at the crucial time. Although Mr McKean submitted that the appellant’s evidence could not be regarded as “impeccable” because the jury had not accepted his evidence that a weapon was involved, that is not a justified analysis of the jury’s verdict. The complainant’s evidence was that the gun he believed was presented at him was wrapped in some clothing, so there was room for a reasonable doubt about what he had seen, as opposed to rejection of the complainant’s evidence as untruthful.
The Judge’s summing up as a whole was fair, focused and correct in its legal directions. The jury was directed both as to actual violence or threat of violence in relation to the robbery charge and could have been in no doubt that it was open to them to find on either basis. It was, at the end of the day, eminently a jury issue to determine whether all of the circumstances attested to constituted actual violence or a “direct or veiled” threat of violence. Taking the briefcase directly from the appellant’s hand would have constituted the former and sudden confrontation by a balaclava-clad assailant would constitute a direct threat.

Judgment

The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington
Webb Ross Johnson, Whangarei, for the Appellant

[2000] NZCA 371

7 December 2000