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District Court 2 May 2019

R v Schick

[2019] NSWDC 245

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPLICATION FOR COSTS COSTS IN CRIMINAL CASES ACT 1967 NOT GUILTY VERDICT ROBBERY ARMED WITH DANGEROUS WEAPON

Citation: R v Schick [2019] NSWDC 245
Court: District Court of New South Wales
Date: 2 May 2019
Judge: Conlon SC ADCJ

Background

The accused was charged on indictment with robbery while armed with a dangerous weapon, arising from events in November 2017. The underlying facts involved a drug transaction in which the complainant supplied cannabis to the accused in a parked car. The accused then produced what appeared to be a firearm and ordered the complainant out of the vehicle before driving away with the drugs.

Following a plea of not guilty, the trial proceeded on 5 March 2019. On 6 March 2019, the judge directed the jury to return a verdict of not guilty, concluding that the evidence was incapable of sustaining the elements of robbery. The accused then applied for a costs certificate under the Costs in Criminal Cases Act 1967.

  • Whether the evidence at trial was capable of establishing the elements of robbery, specifically whether the threatened violence preceded or accompanied the taking of property.
  • Whether it was reasonable for the prosecution to have instituted "the proceedings" (that is, the robbery charge specifically) given the facts known to police and the Crown.
  • Whether any act or omission by the accused contributed to the institution or continuation of the proceedings, within the meaning of s 3(1)(b) of the Costs in Criminal Cases Act 1967.

Decision

Directed acquittal. The judge directed an acquittal because the asportation (the taking and carrying away of property) was complete before any weapon was produced. By the time the accused pointed the apparent firearm at the complainant, the drugs had already been handed over, placed into a sock, and locked in the boot of the vehicle. The complainant had therefore parted with possession voluntarily, not under any threat or compulsion. The subsequent threat was used only to remove the complainant from the car, not to obtain the property. Relying on R v Foster and R v Butcher, the court held that violence or the threat of violence must precede and exist simultaneously with the taking, and a threat made after the taking is complete cannot transform larceny into robbery.

Costs certificate application. The applicable test under Allerton v The DPP is a hypothetical one: would it have been reasonable to institute the proceedings if the prosecution had possessed evidence of all the relevant facts at the outset? The court applied the principles summarised by McColl JA in Mordaunt v The DPP, which confirmed that all relevant facts must be considered regardless of when they came to the prosecution's knowledge. The court found that the facts underpinning the directed acquittal were known to both police and the Crown from the outset, and the legal principle that a threat following completed asportation cannot constitute robbery is well established. Accordingly, it was not reasonable to have instituted the robbery proceedings.

Act or omission by the accused. The Crown submitted that the accused had not challenged the indictment before or during trial, and that this omission was relevant under s 3(1)(b). The court rejected that submission. The section is directed at situations where material has been withheld or the prosecution has been misled, neither of which occurred here. The court also noted that when it raised its concerns about the evidence during trial and gave the Crown the opportunity to seek further instructions from the DPP, the prosecution nonetheless elected to proceed. This made it highly unlikely that any earlier representation by the accused would have produced a different result.

Orders Made

  • A costs certificate was granted under s 2(1) of the Costs in Criminal Cases Act 1967 in favour of the accused.

Key Takeaways

  • Robbery requires that violence or the threat of violence precede and accompany the taking of property. A threat deployed only after the property has been fully appropriated cannot elevate larceny to robbery.
  • The District Court confirmed that the costs certificate test under the Costs in Criminal Cases Act 1967 is hypothetical: the question is whether it would have been reasonable to institute the specific proceedings charged if the prosecution had known all the relevant facts from the start.
  • Under s 3(1)(b), an accused's failure to challenge an indictment before trial does not constitute a relevant "act or omission" for the purposes of the costs regime. That provision is directed at conduct such as withholding information or misleading the prosecution.
  • Where the legal defect in a charge arises from well-settled principles applied to facts that were always within the Crown's knowledge, a costs certificate is likely to follow a directed acquittal.
  • The scope of the costs inquiry is confined to the specific proceedings instituted. The court noted that other charges, such as larceny or weapons possession, could have been brought without raising the same concern about unreasonableness.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3(1)(a), 3(1)(b), 3A
- Criminal Procedure Act 1986 (NSW), s 141(1)(a)

Cases
- Allerton v The DPP (1991) 24 NSWLR 559
- Mordaunt v The DPP & Anor [2007] NSWCA 121
- R v Butcher (1985) 16 A Crim R 47
- R v Foster (1995) 78 A Crim R 517