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District Court 17 May 2007

R v Mazzara

[2007] NSWDC 102

Assault & violenceTheft & property
TRIAL BY JUDGE ALONE ROBBERY ARMED WITH DANGEROUS WEAPON INTENT: ACCUSED'S CAPACITY DEFENCE OF CLAIM OF RIGHT ACCUSED'S BELIEF PRASAD DIRECTION

Citation: R v Mazzara [2007] NSWDC 102
Court: District Court of New South Wales
Date: 17 May 2007
Judge(s): Knox SC DCJ

Background

The accused was charged under section 97(2) of the Crimes Act 1900 with robbery while armed with a dangerous weapon, specifically an imitation self-loading pistol, at a Mitre 10 hardware store in Liverpool on 15 August 2006. The Crown alleged the accused entered the store, demanded money, and pointed an imitation pistol at the store owner before taking $40 in cash.

The circumstances of the incident were unusual. The accused attended the store in pyjamas, without shoes, wearing striped socks and a beanie on a winter morning. He had been pacing outside the store beforehand, made comments to staff that witnesses described as not making sense, and made repeated references to "the people upstairs" taking his crowbar. After the incident, he went to a nearby shop and spent the $40 on cigarettes. Police arrested him within thirty minutes.

The accused elected a judge-alone trial with the consent of the Director of Public Prosecutions. Defence counsel applied for a Prasad direction at the close of the Crown case, arguing the evidence could not safely support a conviction. A psychiatric report was prepared but the defence did not rely on it at that stage.

  • Whether the Crown had established the element of specific intent required for armed robbery, given the accused's apparent mental state at the time
  • Whether the accused held an honest and genuine belief in a claim of right to the $40 he took, which would negate the intent to steal
  • Whether a Prasad direction was appropriate at the close of the Crown case (that is, a direction that the court, sitting without a jury, may acquit where the evidence could not safely support a conviction even though some evidence technically exists)

Decision

The court identified the key contested element as specific intent. Robbery under section 97(2) of the Crimes Act 1900 is an offence of specific intent, requiring proof that the accused intended to permanently deprive the complainant of the property taken. The court noted, following the Court of Criminal Appeal in R v Minani [2005] NSWCCA 226, that proof of specific intention is particularly difficult where mental illness is involved, and that a finding of guilt on each element must be made beyond reasonable doubt regardless of whether the facts are otherwise agreed.

The court found that the accused held an honest and genuine belief he was entitled to the $40. He had purchased a crowbar from the same store the previous evening for $39.95. He believed it had gone missing from his balcony, and when he saw what he thought was his crowbar in the store, he demanded "his money back." He took only $40, the approximate purchase price, despite other funds being available in the store. His statements to the store owner at the time, and his consistent account in the police interview, supported this belief.

The court found no evidence capable of displacing or casting doubt on that honest and genuine belief beyond reasonable doubt. It also declined to treat the accused's possession of the imitation pistol as necessarily indicating a premeditated plan to rob the store. The overall evidence, including the accused's unusual presentation and behaviour, was consistent only with the claim of right defence rather than an intent to steal.

The court gave itself a Prasad direction at the close of the Crown case and returned a verdict of not guilty.

Orders Made

  • Verdict of not guilty entered
  • The accused acquitted of the count

Key Takeaways

  • The District Court confirmed that even where the physical acts constituting a robbery are not in dispute, the Crown must still prove specific intent to permanently deprive beyond reasonable doubt before a conviction can be entered.
  • A claim of right defence does not require the accused to hold a legally correct belief, only an honest and genuine one: where a defendant believed money taken was his own, the intent to steal may be absent even if the means of recovery were unlawful.
  • A Prasad direction is available in judge-alone trials, permitting the court to acquit after the close of the Crown case where, notwithstanding the existence of some evidence, that evidence could not safely ground a conviction.
  • Unusual behaviour, including the accused's disjointed comments, inappropriate clothing for conditions, and the limited, precise amount taken, formed part of the factual matrix supporting the finding that the claim of right was genuine rather than contrived.
  • Following R v Minani, proof of specific intent in offences involving mental illness requires careful scrutiny, and a court must make independent findings on intent regardless of agreement on other facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 428B(2)(b)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Weapons Prohibition Act (NSW), Schedule cl 3(2)
- District Court Rules

Cases
- R v Minani [2005] NSWCCA 226
- R v Damic (1982) 6 A Crim R 35
- R v Fuge [2001] NSWCCA 208
- R v Langham (1984) 36 SASR 48
- R v Lopatta (1983) 35 SASR 101
- Fleming v The Queen (1998) 197 CLR 250
- R v Prasad (1979) 23 SASR 161; 2 A Crim R 45