R v Mann [2009] ACTSC 5 (9 February 2009)

Last Updated: 16 March 2009

R v CHRISTOPHER DARRYL MANN [2009] ACTSC 5 (9 FEBRUARY 2009)

CRIMINAL LAW – trial by Judge alone – aggravated robbery – accessory after the fact – act of assistance – fault elements of knowledge and intent– Criminal Code 2002 (ACT), s 717.

Criminal Code 2002 (ACT), s 13, s 16, s 18, s 19, s 717

Evidence Act 1995 (Cth), s 91

Sykes v Director of Public Prosecutions [1962] AC 528

Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95

R v Holly [1963] 1 WLR 199

R v Hurley and Murray [1967] VR 526

The Macquarie Dictionary, (3rd ed, 1998)

Commonwealth Criminal Code: A Guide for Practitioners, 2002, Australian Institute of Judicial Administration

No. SCC 80 of 2007

Judge: Gray J

Supreme Court of the ACT

Date: 9 February 2009

IN THE SUPREME COURT OF THE )

) No. SCC 80 of 2007

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

CHRISTOPHER DARRYL MANN

ORDER

Judge: Gray J

Date: 9 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The accused be acquitted.

1. Christopher Darryl Mann (the accused) is charged on indictment that:

... on the 11th day of December 2006 at Canberra in the Australian Capital Territory [he] assisted David Larkin knowing the said David Larkin had committed an offence, namely aggravated robbery, and did so with the intention of allowing the said David Larkin to escape apprehension or prosecution.

2. On 14 August 2007, the accused elected to be tried by judge alone.

3. On 8 November 2007, he was arraigned and pleaded not guilty to the count on the indictment.

The facts

4. On 11 December 2006, at about 10:00 pm, the accused was driving his vehicle along Northbourne Avenue. He had a passenger in the car, David Larkin, whom he was intending to drive home. Mr Larkin asked the accused to pull over as he wanted to go to the toilet. The accused drove his car into a car park and stopped his vehicle. Mr Larkin got out of the vehicle and the accused waited for him. Mr Larkin went out of his sight.

5. At about that time, William Wilson was walking along a footpath on Northbourne Avenue towards the hotel where he was staying. He was approached by Mr Larkin who produced a Leatherman pocket knife which had a 7 cm blade. The knife was held to the right side of Mr Wilson’s throat and he was robbed of an iPod.

6. Mr Larkin returned to the accused’s vehicle and put the Leatherman into the centre console of the car. The accused drove away and as he did so, noticed a male on the side of the road holding his phone in the air who was, in fact, Mr Wilson. Mr Wilson had called 000 and was able to give the police a description of the car and the registration number.

7. On 6 January 2007, the police interviewed the accused. The prosecution relies upon this interview for the purposes of establishing the knowledge and intent on the part of the accused necessary to make out the offence. The defence says that the prosecution’s reliance upon the interview and what are said to be the admissions arising from it, cannot establish those elements of the offence beyond reasonable doubt.

The elements of the offence

8. The offence is constituted under s 717 of the Criminal Code 2002 (ACT) (the Code). That section provides:

717 Accessory after the fact

(1) A person (the accessory) commits an offence if—

(a) someone else (the principal offender) has committed an offence; and

(b) the accessory assists the principal offender—

(i) knowing the principal offender committed the offence; or

(ii) believing the principal offender committed the offence or a related offence; and

(c) the accessory does so with the intention of allowing the principal offender to—

(i) escape apprehension or prosecution; or

(ii) obtain, keep or dispose of the proceeds of the offence.

Maximum penalty:

(a) if the offence committed by the principal offender is murder—imprisonment for 20 years, 2 000 penalty units or both; or

(b) if the offence committed by the principal offender has a maximum penalty of at least 2 000 penalty units, imprisonment for 20 years or both (but is not murder)—1 500 penalty units, imprisonment for 15 years or both; or

(c) if the offence committed by the principal offender has a maximum penalty of at least 1 500 penalty units, imprisonment for 15 years or both but less than 2 000 penalty units, imprisonment for 20 years or both—700 penalty units, imprisonment for 7 years or both; or

(d) if the offence committed by the principal offender has a maximum penalty of at least 1 000 penalty units, imprisonment for 10 years or both but less than 1 500 penalty units, imprisonment for 15 years or both—500 penalty units, imprisonment for 5 years or both; or

(e) in any other case—the lesser of—

(i) 300 penalty units, imprisonment for 3 years or both; and

(ii) the maximum penalty for the principal offence.

(2) However, if the offence the accessory believes the principal offender committed is not the offence the principal offender committed, the maximum penalty is the lesser of—

(a) the maximum penalty applying under subsection (1); and

(b) the maximum penalty that would apply under that subsection if the principal offender had committed the offence the accessory believed the principal offender had committed.

(3) For this section, an offence the accessory believes the principal offender committed is a related offence to the offence the principal offender committed if the circumstances in which the accessory believes the offence to have been committed are the same, or partly the same, as the circumstances in which the actual offence was committed.

(4) It is not an offence to attempt to commit an offence against this section.

Physical elements

9. The offence contains physical elements and fault elements. The physical elements are that –

(a) the principal offender has committed an offence; and

(b) the accessory assists the principal offender.

For these purposes I take the act of assistance as having the meaning of the Macquarie Dictionary definition, that is, “to give support, help, or aid in some undertaking or effort”.

10. In the present case, each of the physical elements is constituted by conduct. It was submitted by Mr Lundy, who appeared for the Director of Public Prosecutions, that as s 13 of the Code defines “conduct” as “means an act, an omission to do an act or a state of affairs”, in the present case the conduct which the prosecution alleges as conduct assisting the principal offender could include an omission to do an act. That submission overlooks s 16 of the Code which provides:

An omission to do an act can only be a physical element if—

(a) the law creating the offence makes it a physical element; or

(b) the law creating the offence impliedly provides that the offence is committed by an omission to do an act that, by law, there is a duty to do.

That qualification to conduct as an omission is important in considering whether this offence is made out. I do not consider that s 717, having regard to the terms of s 16 of the Code, makes an omission to do an act a physical element of the offence to which s 717 applies or that s 717 impliedly provides that the offence may be committed by an omission to do an act that by law there is a duty to do.

11. It was not suggested that there is a duty under the statute law applying in the ACT to inform the police as to the commission of an offence by oneself or by another. On the other hand, at common law, a person who knows that any other person has committed felony and conceals or procures its concealment, is guilty of the indictable misdemeanour of misprision of felony (Sykes v Director of Public Prosecutions [1962] AC 528).

12. Even if the common law offence of misprision of felony is still part of the ACT law, the existence of such an offence does not create the sort of duty to which s 16 refers. In this regard, reference may be made to the observation of Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 at 99:

Even if it be assumed that that common law offence still exists in at least some Australian jurisdictions , ... it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony. (My emphasis)

The emphasised description applies to the accused in this case.

Fault element - knowledge

13. As far as the fault elements are concerned, s 717(b)(i) provides that offence has as a fault element of “knowing that the principal offender committed the offence”. Knowledge is the element charged in the indictment and Mr Sharman, who appeared for the accused, takes the point that the prosecution has not charged the accused with the alternative fault element provided for in s 717(b)(ii) of “believing that the principal offender committed the offence or a related offence”. The prosecution did not seek to amend the indictment, nor was it suggested that I should make a finding on this alternative basis.

14. It seems to me to be clear from the formulation of the provision that the legislature intended to import into the provision the separate concepts of knowledge and belief. Section 19 of the Code provides that a person has knowledge of a circumstance if the person is aware that it exists. That, it seems to me, is the task the prosecution has undertaken of proving beyond reasonable doubt that the accused knew that Mr Larkin had committed the offence of aggravated robbery. In this case, the prosecution does so without relying upon the wider concept that the accused had a belief in the principal offender having committed the offence or a related offence.

Fault element - intention

15. Section 717(c)(i) provides that the fault element of the conduct constituting the offence is that it is done with the intention of allowing the principal offender to escape apprehension or prosecution.

16. Section 18(1) of the Code provides that a person has “intention in relation to conduct if the person means to engage in the conduct”.

Conduct constituting assistance

17. The prosecution’s written submissions particularise the conduct constituting the assistance as “he assisted Larkin by driving him away from the scene and by not notifying police that an aggravated robbery had occurred”.

18. I have already said that the assistance contemplated by s 717 of the Code does not encompass acts of omission. By not notifying the police, the accused has not engaged in conduct assisting the principal offender. It follows that a significant part of what is relied upon as conduct constituting the assistance cannot be made out.

19. As to driving away from the scene, I take it as significant that the accused in the record of interview does not appreciate what the principal offender’s activities might have been after he left the motor vehicle. It is not until he sees the victim and is driving away to take the principal offender home. It is after he has passed through a set of traffic lights, that the accused’s passenger says something to the effect that he “just rolled that dude”. The accused’s act of assistance therefore is to be more accurately characterised as continuing to drive the principal offender home rather than that of driving away from the scene of where an offence has been committed.

20. The prosecution relied upon R v Holly [1963] 1 WLR 199, a decision of the Court of Criminal Appeal in the United Kingdom, where the appellant drove her husband and another person from the scene of a house-breaking and larceny. The driving from the scene was characterised as being capable of being of assistance. The case was concerned with the point that the assistance was given to two offenders and in respect of the appellant’s husband, she alleged that she could claim coercion. An additional point was made in the case of the other offender where it was claimed by the appellant that she was not assisting the other offender at all, but her husband. The UK Court of Criminal Appeal rejected both arguments. That case was predicated on the fact that the appellant knew that the offenders had broken into the dwelling house and stolen the goods before she drove them home. That is not so in this case. In the present case, the conduct constituting assistance is open to more than one interpretation because it was commenced without any knowledge of the commission of the offence. That is why it is open to characterise the accused’s conduct, said to constitute assistance, as continuing to drive the principal offender home after learning that he had committed an offence. Such a circumstance, I would have thought, should have been taken into consideration as to whether a prosecution was justified notwithstanding that it may be technically capable of constituting assistance to the principal offender.

Conduct constituting knowledge

21. In any event, unlike R v Holly (supra), where the wife knew of the commission of the offence, the prosecution, in this case, is required to prove the accused’s knowledge of the commission of the offence by the principal offender. The task for the prosecution I take as that set out by the commentary on the Commonwealth Criminal Code: A Guide for Practitioners, 2002, Australian Institute of Judicial Administration at page 67:

A requirement that the prosecution prove knowledge is uncompromising in the sense that a person cannot be said to know a circumstance or result unless the person is certain of its existence and eventuality. (Author’s emphasis)

22. As I have earlier said, the prosecution relies upon what can be drawn from the accused’s interview with the police on 6 January 2007.

23. The following questions and answers in the interview were specifically referred to by both the prosecution and the defence:

Q112 Okay. I’ll just repeat the allegation to you. You were involved in an aggravated robbery on Monday the eleventh of December, two thousand and six about ten pm in Turner where a William WILSON had an iPod stolen by a person with a knife. What do you want to tell me about that allegation?

A112 Um, start from the top?

Q113 Yes, please.

A113 Um, I don’t know, what, just drinking. I wasn’t drinking, I’m always designated driver. Um, and LARKIN, nickname of David LARKIN, he, um, - we were taking him home, we were driving down Northbourne, and he had a lot to drink of Smirnoff double blacks. Um, we were driving down Northbourne and he said, “Pull over, I have to go to the toilet”. I’m, like, I was, oh, okay, so I just pulled in a car park next to some hotel, it’s on the left-hand side as you’re going towards Belconnen Way, or Ginninderra Drive sort of thing. And I pulled in and he said – he said, “Wait here at the car”, so I just waited there while he went to the toilet. And, um, I was sort of keeping an eye on him and he sort of disappeared up around the – one of the flats, hotel thing, and, like, he took a while and I was like – I started my car, turned it around, come out of the car park, and he was walking towards the car with his drink in his hand and something else.

And then he got to my car and he threw the Leatherman knife – he threw the Leatherman knife in the middle of the centre console, and he said, “Look, I found an iPod,” and, um, I was, like, you know, has found it, like – I’m like, you know, chances ...(indistinct)... you know. And, um, when we come out onto Northbourne and turned left, um, there was this dude standing on the side of the road and, um, LARKIN said something to him and this dude was holding his phone – phone in the air or something. And then I’ve - - I’ve – he lived in – he lived in Lyneham or Turner or something – Lyneham I think it was. I just dropped him home in Lyneham and went to my girlfriend’s house.

...

Q144 So I’ll just get it right again, some time late Monday LARKIN has rung you to catch up with you, is that correct?

A144 Um, yeah, we were having a drink – that’s right, I dropped a boy, Eddie, I dropped him off in Tuggeranong.

...

Q154 Okay, but then you say – but now you said you just dropped LARKIN home. Was this on the way, dropping him home?

A154 Yeah, like - - -

Q155 Okay.

A155 Yeah.

...

Q161 Yep.

A161 Yeah, um, somewhere in Lyneham. It’s a – it’s close to the shops, Lyneham shops.

...

Q214 So, was it past these hotels or near them?

A214 Around near them. Somewhere around there, and I come like – I was looking for a place to pull over. There’s no other path to like pull over on the Northbourne Avenue.

Q215 Yeah.

A215 But I found a small road and then pulled into like a small car park and then, um, yeah, he got out with his drink and, um, like started walking towards the road and, um, I was just sitting there listening to some music, waiting for him and then like he did – he took over all the normal to take – like the attitude it takes to take a piss. So, I turned to look for him and he wasn’t there, like I couldn’t see him anywhere, so I turned my car around to head out of the car park and I was just pulling out of the car park and he comes around the corner and, um, with his drink and something in his hand. And I stopped there and he – he gets in and throws the, ah, Leatherman, ah, pliers/knife thing and, um, he said, “Oh, I found an iPod”. And, um like I had a bit of a laugh to him and, um, “Well, okay”, you know, I didn’t believe it. Then we come and round the corner this dude’s standing on the corner with his phone, waving us. Um, I don’t know what he said, he said something there and, um, I just drove off. I drove him home and then just went to Shakira’s.

Q216 Okay. This Leatherman that you’re talking about - - -

A216 Yeah.

Q217 - - - is that the same one that we seized out of [y]our vehicle today?

A217 Yes.

Q218 Okay. So, that’s the Leatherman that you’re saying LARKIN used to rob this person, is that correct?

A218 Yes.

...

Q248 Did he say how he got the iPod?

A248 Um, like yeah, when we were driving back he was like, “Yeah, I rolled that dude”, and I went, “All right”. And the other dude was – he said the other dude was asking him to come inside this – what did he say his name was, someone WILSON – William WILSON. He said, um, he was asking LARKIN – LARKIN said he asked him to come inside or something.

...

Q252 So, do you not think something was seriously wrong if he’s just got back into the car with a knife and said he’s just rolled a dude?

A252 No, he didn’t say it like when he got straight in the car. Like, while we were driving and we passed him, he said, “Yeah, I found an iPod, you know”, and, um, he’s like, when we got past the dude they’ve said something – like they’ve said something to each other and he’s holding his phone and waving his phone. And then we get up like to the lights and then I take off and he’s like – he goes, “Oh” – he goes, um, he said, “I just” – “I just rolled that dude”. Of course it’s wrong, you know, I can – I can imagine like putting myself in their shoes, I wouldn’t like it.

Q253 What did you think he meant by that comment, “I’ve just rolled that dude”?

A253 Oh, like mugged him, like, you know.

Q254 Did it cross your mind, considering he threw the Leatherman back into the car when he jumped back in and that he may have used that to toll the dude?

A254 Yes.

Q255 Did you consider calling police about the incident?

A255 Not really.

...

Q257 Yep. So what was your – what was your actual reason for not contacting police and telling them what happened?

A257 Um, probably just, like, a dumb thing, like, what other people would do to me because, oh, you know, “He dobbed”, you know, you dob, you tell people in on the police and stuff like that, so I said it’s his actions, you know, he wants to do it. It’s like, he’s going to like, you know, he’s got to go to court one day, you know. So.

...

Q281 And again, what was your reasoning for not advising police that he’d just stolen property?

A281 Probably friends think it was disrespectful or, you know, other words I’d be a dog or, you know, sort of I’ve got to be faithful to my friends, yeah.

...

Q284 Did you drive straight from this incident to home?

A284 Yes.

24. In my view, the highest inference that can be drawn from the interview is that it is not until the accused has driven past the traffic lights that he was informed and could be said to have knowledge of the robbery when he was told by the principal offender, “I just rolled that dude”. The fact that the accused assents to a proposition that it “crossed” his mind that the principal offender may have used the Leatherman “to roll that dude”, is not to my mind sufficient to establish beyond reasonable doubt that he knew that the offence that the principal offender committed constituted the elements of an aggravated robbery. This being the position, I am of the view that the prosecution has not made out the fault element of the offence namely that the accused was certain in his knowledge that the principal offender committed the offence of aggravated robbery as opposed to what the accused may well have believed namely that the principal offender had committed such an offence or a related offence.

Intention

25. I also entertain a reasonable doubt that the prosecution has proved that it was the accused’s intention to assist the principal offender to allow him to escape apprehension. Mr Lundy referred to a comment made in R v Hurley and Murray [1967] VR 526 a decision of the Full Court of the Supreme Court of Victoria. The appellants in that case had appealed from their convictions of being accessories after the fact to the felony of escape on the part of the notorious criminals Ronald Ryan and Peter Walker. In that case, Winneke CJ and Pape J said (at 531):

Mr Cullity also argued that the trial judge’s reference in his charge to the failure of Hurley to inform the police of the presence of Ryan and Walker at his home was capable of being understood as indicating that such failure constituted an act of assistance, and he submitted that such a failure could form no part of the offence of being an accessory after the fact, which required proof of an act of commission, and which was not proved by showing an act of omission. But when it was pointed out that such a failure was relevant to prove an intention to assist the felons, he conceded that he could not pursue this argument.

26. That passage reinforces what I earlier said about the fact that an omission would not form part of an offence of the nature constituted by s 717 of the Code. Insofar as the failure to inform the police is concerned, its relevance, as the passage cited implies, can only relate to acts of assistance that occurred after it can be said that the intention to assist had been formed. In the present case, there were no acts of assistance that can be said to have taken place after the principal offender had been taken to his home by the accused. The only act alleged is the accused continuing to drive the motor vehicle to the principal offender’s home.

27. In the present case I accept, as a reasonable possibility, that the accused did not intend to assist the principal offender to leave the scene of the crime but simply completed the journey that he had intended to make with the principal offender by taking the principal offender home. The prosecution has failed to persuade me beyond reasonable doubt that it has made out this element of the offence.

28. For these reasons, the accused must be acquitted in that I cannot be satisfied beyond reasonable doubt that he had either the knowledge or intention that are required to constitute the offence.

The requirement for formal admission

29. At the time of hearing this matter, I expressed concern that the prosecution tender of the certificate of conviction in relation to Larkin was not sufficient evidence of the fact that there was an aggravated robbery which the principal offender had committed. Section 91(1) of the Evidence Act 1995 (Cth) provides:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

30. On the other hand, Mr Sharman indicated that the accused would formally admit the commission of the offence by the principal offender. He indicated he would do so on filing his written submissions. In fact, the formal admission did not accompany those written submissions which, in any event, were filed but not served for a number of months after the matter had been heard. As I have now come to the view that the accused should be acquitted, that formal admission is not required.

31. The confusion on this aspect has delayed my decision in this matter far beyond what should have been the case.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 9 February 2009

Counsel for the plaintiff: Mr J Lundy

Solicitor for the plaintiff: Director of Public Prosecutions (ACT)

Counsel for the defendant: Mr T Sharman

Solicitor for the defendant: Rachael Bird & Co

Date of hearing: 8 November 2007

Date of judgment: 9 February 2009