Robbery

[5-6600] Elements of the offence (s 94) Under review

Robbery is a hybrid offence containing elements of larceny and assault —

1.

There must be an unlawful taking and carrying away of property with the intention of permanently depriving the owner or person in lawful possession thereof. The property must be taken without the consent of the latter, and “consent” obtained by force or by threat (putting that person in fear of violence) is no consent. It may be necessary to direct the jury as to other elements of the offence of larceny depending on the circumstances of the particular case. For instance, a claim of right may be raised. As to larceny generally, see [5-6100].

2.

The property must be taken —

(i): from the person of another;
(ii): in the presence of another;
(iii): from the immediate personal care and protection of another.

3.

The property must be taken by actual violence or by putting the owner or person in lawful possession in fear of actual violence. Section 94 also creates offences of “assault with intent to rob” and “steal from the person”.

[5-6610] Suggested direction Under review

The first matter which the Crown must prove beyond reasonable doubt is that there was a taking and carrying away by [the accused] of the property of another, and that [the accused] (at that time) had the intention to permanently deprive [the owner/lawful possessor] of it.

All that is required to establish a taking and carrying away is that the property must be moved by [the accused] … [summarise evidence for the Crown and, if in issue, any evidence relied upon by the accused].

As to the intention to permanently deprive the owner or person in lawful possession of the property … [adapt the direction given as to Intention [3-200]].

In general, an intention to permanently deprive may be inferred or concluded from the forceful taking of property … [if there is an issue as to the matter, summarise evidence relied upon by the Crown and the accused].

[Where there is an issue as to a claim of right, add

The taking of the property must be unlawful. Here [the accused] claims that [he/she] was legally justified in taking the property. A genuine claim, even if legally wrong, means that the taking is not unlawful. Since this issue has been raised for your determination in this trial, it is for the Crown to establish that [the accused] had no such genuine belief. [The accused] does not have to prove that [he/she] did have such a legal right.

The onus rests on the Crown to prove beyond reasonable doubt that [he/she] did not have that as a genuine belief … [canvass the evidence for the Crown and the accused, and opposing submission].]

The Crown must next prove that the property was taken from [the owner/lawful possessor] [or from the presence of that person or from [his/her] immediate personal care and protection] … [summarise evidence relied upon by the Crown and by the accused if the matter is in issue].

The Crown must prove that the property was taken without the consent of [the owner/person in possession] in that it was taken by [force/by putting the person in fear]. The law is that the taking of property with the intention of permanently depriving the person from whom the property is taken from possession of it by inducing that person to hand over the property under threat or fear, is not consent in law … [if in issue, summarise evidence for the Crown and for the accused. If it is suggested that there was a surreptitious taking, for example, where the owner or person in lawful possession was asleep, so that there was no conscious mind affected by any threat of force, or if there was no threat of force, then this issue will also have to be canvassed, as will the question of any alternative verdict].

[5-6620] Suggested direction — where the charge is “assault with intent to rob” Under review

The first essential matter which the Crown must prove, if it is to establish its case, is that there was an assault. An assault may, but need not, involve an actual application of force by [the accused] to another person. It may equally be proved by a threat of the application of force … [specify whether the Crown relies upon an assault or a battery].

To establish an assault, the Crown must prove that the act of [the accused] … [specify whether it be the actual application of force or the threatened application of force] was deliberate and not accidental.

[Where the Crown relies on a threatened application of force, add

The Crown must prove that in so threatening [the owner/person in lawful possession of the goods], [the accused] intended to raise in the mind of that person an apprehension that actual force or violence (no matter how slight) would be effected.

As to [the accused’s] intention … [adapt the suggested directions at [3-210] to the particular circumstances of the case at hand].

There need be no injury inflicted upon [the owner/person in possession] in the case of an assault constituted by a threat.]

[In the case of an assault constituted by an actual application of force, add

In the case of an assault constituted by an actual application of force, the force applied need only be of the slightest kind to constitute an assault, for example, a mere touching may sometimes be sufficient to constitute an assault.

The Crown must also prove that the act was done with the intent to deprive the owner or person in possession of property without [his/her] consent … [as to which, see suggested directions under [5-6610]].]

[5-6630] Where the charge is “steal from the person” Under review

The suggested directions as to Larceny [5-6100] should be adapted to the particular case, but an essential element of the charge is that the stealing must be “from the person” of the owner or person in lawful possession. There must be complete removal, though partial removal may sustain an alternative verdict of guilty of larceny or attempted stealing from the person. Provided there is complete removal “from the person”, it does not matter whether the removal is by force or by stealth.

[5-6640] Notes Under review

1.: For robbery, there must be violence or threat of violence which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken: R v Foster (1995) 78 A Crim R 517.
2.: The element of larceny is not satisfied by proof of larceny in one of its “deemed” forms, as in s 154A: R v Salameh (1986) 26 A Crim R 353.
3.: Although the actual or threatened application of force must precede the taking, the victim need not be shown to be physically present when the taking occurs: Smith v Desmond [1965] AC 960.
4.: As to threats involving something less than an application of physical violence, see s 102 of the Crimes Act 1900 on accusing or threatening to accuse of a crime with intent to extort property. In light of the existence of this offence, it seems unlikely that the Crown would rely on a case of robbery in like circumstances. Nor is it considered that a threat to property would sustain a charge of robbery, although there is no Australian authority on this.
5.: Recent possession may apply, see [4-000].
6.: Alternative verdicts — On any charge under s 94 of the Crimes Act 1900, an alternative verdict of “attempt” is available. On a charge of robbery or stealing from the person, an alternative verdict of an assault with intent to commit the offence is also available: Criminal Procedure Act 1986, s 162. On a charge of robbery or stealing from the person there may be a conviction for larceny under s 117 of the Crimes Act 1900. Where the charge is under s 95 of the Crimes Act 1900, alleging robbery etc in circumstances of aggravation, an alternative verdict under s 94 of the Act may be returned, as may a verdict under s 117. Where an alternative verdict is sought to be left to the jury for consideration, it should be opened by the Crown and, in any case, must be raised before closing addresses: R v Pureau (1990) 19 NSWLR 372.