Having found there is a sufficient temporal connection between theft and assault, Mr Halliwell is found guilty of robbery.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Robbery - Temporal connection between theft and assault

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82

Gwilliam v R [2019] NSWCCA 5

Hood v R [2000] WASCA 98; (2000) 111 A Crim R 556

R v Butcher [1986] VicRp 4; [1986] VR 43

R v Foster (1995) 78 A Crim 517

R v Watson [2021] ACTSC 339

The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

Explanatory Memorandum to the Criminal Code (Theft, fraud, bribery and related offences) Amendment Bill 2003

CC 8347 of 2025, CC 6620 of 2025, CC 6619 of 2025 and CC 4876 of 2025

MAGISTRATE ROBINSON:

Introduction

1. On 4 March 2026, I delivered my decision in this matter, finding the defendant guilty of one charge of robbery contrary to section 309 of the Criminal Code 2002 (ACT) and not guilty on one count of minor theft contrary to section 321 of the Criminal Code 2002. I said I would deliver my reasons later. These are my reasons.

1. On 30 April 2025 the defendant attended the Myer Department Store in Westfield Belconnen (Myers). Myers has CCTV cameras covering much of its floorspace. The CCTV captures images but not sound.
2. Relevant CCTV footage was tendered by the prosecution. It shows the defendant make his way down the cooking and appliances aisle, past a suitcase display and into the menswear department. After about a minute and a half of browsing, he picks up a Gazman labelled jumper (the jumper) from a display table and places it under his arm. He sits down in a chair for another minute or so and then walks into the accessories area and picks up a khaki Levi baseball cap (the cap). From there, he makes his way to a change room, situated behind the brightly coloured childrenswear department, where he remains for about a minute before emerging again.
3. The footage shows the Westfield loss prevention manager, Mr Hassan, approaching the counter outside the change room while the defendant is inside. Mr Hassan's evidence at hearing was that he was called there by other staff who recognised the defendant.
4. The CCTV footage then shows the defendant leaving the change room wearing the cap but still carrying the jumper under one arm. He walks straight past the counter without making any attempt to pay for the items.
5. The camera angle changes, and from this new angle, Mr Hassan can be seen walking near and slightly behind the defendant as he makes his way back through the department store, towards the suitcases. It appears from the footage that Mr Hassan is talking to the defendant. He has his phone in his hand. While the footage does not record what was said, I accepted Mr Hassan's evidence at hearing that he asked the defendant to either pay for the jacket or give it to him.
6. A few seconds later, the defendant turns around and moves in front of Mr Hassan. His body language is aggressive. Mr Hassan's evidence was that he could not recall exactly what the defendant said to him at this point, but that it was abusive. The footage shows Mr Hassan step back from the defendant and not engage. As the defendant moves away, Mr Hassan starts to follow him again, while apparently tapping a number into his phone. Mr Hassan's evidence was that he was calling Westfield security. Again, I accept his evidence.
7. The defendant continues through the store, with Mr Hassan following him, and for a few seconds the cameras lose sight of them. When the footage continues, the defendant is striding though the menswear section, without the jumper, but still wearing the cap. Mr Hassan is following him, now talking on his mobile phone. At one point Mr Hassan is holding his head.
8. The evidence of Mr Hassan, which I accept, is that while both he and the defendant were off camera, the defendant threw the jumper at him. Unfortunately, the plastic security tab attached to the jacket struck him in the head causing a wound and drawing blood. A photograph of the wound was tendered in evidence. Mr Hassan was by this stage on the phone to Westfield security. He was "praying that Westfield Security arrive on time and we can actually deescalate it [in a] much better way."[1]
9. The defendant can next be seen on the footage to turn to face Mr Hassan. He takes off the cap. He approaches Mr Hassan rapidly, appearing to yell at him. Several other customers look toward the scene. The defendant then pushes Mr Hassan with both hands to his chest. Mr Hassan is moved backwards behind a pillar. As he does this, the defendant drops or throws the cap. He then reaches down and picks it up, before turning and striding away, holding the cap in his hand.
10. Mr Hassan, still on the phone, again follows the defendant, albeit staying some distance back. The defendant again turns, strides back toward Mr Hassan in an aggressive manner and appears to yell at him again. Mr Hassan steps backwards several times.
11. The defendant turns back around and continues towards the door as Mr Hassan still follows him from a distance. As the defendant reaches the security gates, he turns and again moves aggressively toward Mr Hassan, holding out both his hands, the cap in one of them. Mr Hassan steps backwards again. The defendant then turns and walks out the doors and into the Westfield mall precinct.
12. The defendant was arrested shortly thereafter.
13. Mr Hassan's evidence at hearing was that at the commencement of the interaction with the defendant, his goal was to both recover the jacket and deescalate the situation.[2] The jumper was recovered when the defendant threw it at him. From then on, his goal was solely to de-escalate the situation. Mr Hassan did not know about the cap and was not trying to recover it or prevent it from being stolen. He was not trying to stop the defendant from leaving Myers. He had been injured, wanted help from security, and was only focused on deescalating the situation[3]. He remained commendably calm through the entire encounter.

1. The defendant admitted that this series of events amounted to:

(a) common assault of Mr Hassan in contravention of section 26(1) of the Crimes Act 1900; and

(b) minor theft of the cap, contrary to section 321 of the Criminal Code 2002.

1. However, the defendant denied being guilty of robbery.

1. Section 309 of the Criminal Code 2002 provides that:

(a) the person commits theft; and

(b) when committing the theft, or immediately before or immediately after committing the theft, the person -

(i) uses force on someone else; or

(ii) threatens to use force then and there on someone else;

with intent to commit theft or to escape from the scene.

Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.

Note Theft means an offence against s 308 or s 321.

1. Theft is defined in section 308 of the Criminal Code 2002 to mean:

A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.

1. Minor theft is defined in section 321 of the Criminal Code 2002 to mean:

(1) A person commits an offence (also theft) if -

(a) the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and

(b) the property has a replacement value of $2 000 or less when it is appropriated.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (b).

(3) This section does not prevent a person being charged with an offence against section 308 (Theft) if the replacement value of the property appropriated is $2 000 or less.

1. It was conceded by the defendant that the elements of a charge of theft are made out on the facts, being that the defendant:

(a) appropriated the cap;

(b) intended to appropriate the cap;

(c) knew the cap was "property";

(d) knew the cap belonged to Myers; and

(e) knew the appropriation of the cap was dishonest according to the standards of ordinary people; and

(f) intended to permanently deprive Myers of the cap.

1. I am satisfied that the above elements are proved beyond reasonable doubt. It was also common ground that the elements of assault are established, and I was satisfied beyond reasonable doubt, having regard to the CCTV footage, that they were.
2. The defendant denied the other elements of the offence, being that:

(a) when committing the theft or immediately before committing the theft or immediately after committing the theft he used force on someone else or threatened to use force then and there on someone else; and

(b) he used force on someone else or threatened to use force someone else with intent to commit theft or escape from the scene.

1. Element (a) appears to have largely be conceded by the defence in summing up, and on the facts above. I am satisfied that it is proved beyond reasonable doubt that the defendant, in a temporal sense, used force immediately before or after committing the theft of the cap. The issue is really whether he did so with the necessary intention to steal the cap or escape from the scene of his offending, being Myers.

1. The prosecution submitted that the Court could draw an inference and be reasonably satisfied that the defendant used force on Mr Hassan to "effectively cow"[4] him from following the defendant out of the store or alerting Westfield security.
2. The prosecution submitted that offence required the Court to look to the defendant's intent when engaging in the violence; the intent of the person against whom the force is directed is not relevant to that determination. Given the footage and sequence of events, the only reasonable inference that could be drawn by the court was that the defendant's actions were intended to facilitate him if not stealing the cap than leaving the store after the theft of the cap.
3. The defendant acknowledged both the theft and the acts of aggression. However, the defence submitted that even on Mr Hassan's evidence, the event Mr Hassan was dealing with was a "behavioural control situation". He was not trying to prevent the defendant from stealing or from leaving the store; rather he was attempting to deescalate the defendant's behaviour. "Things got heated", the defence submitted, because the defendant "went off his head at the loss prevention officer [Mr Hassan] improperly", not because he was appropriating the cap. The defence submitted that the Court could not exclude the reasonable inference that the defendant's behaviour was only motivated by that, and hence could not be satisfied that the that defendant had the requisite intention to "use force...with intent to commit theft or escape from the scene", as opposed to using force as part of "going off his head" at Mr Hassan, and then leaving the store because of or consistent with that display or aggressive behaviour. The defendant had "effectively the benefit of good luck that no one noticed the cap."[5]

1. Robbery is serious because it is an offence of dishonesty as well as of violence: R v Watson [2021] ACTSC 339 at [38] per Refshauge J. It carries a higher degree of moral opprobrium than either of the alternative charges of minor assault and theft.
2. In the ACT, robbery is a statutory offence.
3. In considering the common law offence that preceded it, it was observed by the NSW Court of Criminal Appeal in R v Foster (1995) 78 A Crim 517 that:

There can, we think, following an examination of the cases, be little doubt but that at common law, robbery was always considered to be a crime of violence whether carried out by actual force or merely putting a person in fear. The violence, which included putting in fear, must precede or exist simultaneously with the taking. It is not sufficient to turn a larceny into a robbery, if the force or putting in fear is subsequent to the larceny: R v Butcher [1986] VicRp 4; [1986] VR 43; (1985) 16 A Crim R 1 (CCA), 47 (VR).

4. It other words, the common law crime of robbery required there be violence or force preceding or accompanying the theft, or at most as part of a continuous act which occurred over a very short period: see Hood v R [2000] WASCA 98; (2000) 111 A Crim R 556 at [13] per Pidgeon J. The offence did not cover actions done after the theft or to escape.
5. Under the statutory offence that is no longer the case. Section 309 of the Criminal Code 2002 makes it clear the offence includes where force is used after the taking, with the intent of 'escaping the scene'. As is set out in the Explanatory Memorandum to the Criminal Code (Theft, fraud, bribery and related offences) Amendment Bill 2003:

...The robbery offence in this clause differs from the offence in subsection 91(1) of the Crimes Act in a number of respects. First, clause 309 includes force or threats used immediately after the theft, as well as immediately before and at the time of the theft. This is already the law in most Australian jurisdictions. The change is significant because it will avoid hair-splitting distinctions about the precise moment of appropriation. Also, take a case where the defendant picks the victim's pocket and the victim then grabs the defendant's arm. If the defendant punches the victim to break away and make good the theft, it should not matter that the force was used moments after the appropriation rather than moments before, because the force is so intimately tied up in the theft. The defendant has used force in order to steal and ought to be found guilty of robbery.

6. The use of force must be temporally connected with the theft, or the attempt to escape and make good the theft, in the sense of being immediately before or after, but the order in which the events happen is not as aspect of the offence.

1. The defendant was presumed by law to be innocent of the offences with which he stood charged unless and until evidence which I accepted satisfied me beyond reasonable doubt of his guilt in relation to every element of the offences. The onus was on the prosecution to bring this evidence and to satisfy the burden. Therefore, to find the defendant guilty of robbery as charged, I had to be satisfied beyond reasonable doubt that he assaulted Mr Hassan with the intention either of stealing the cap or escaping "the scene" of the theft.
2. A defendant is not required to give evidence of his intention and the defendant did not. No adverse inference can be drawn from this. I could not peer into his mind as see what he intended through his actions; rather I had to draw inferences about his intention from the surrounding circumstances. Because his intention was an element of the offence, and the prosecution had to prove every element of the offence beyond reasonable doubt, I had to exclude other reasonable hypotheses consistent with innocence before finding an intention consistent with guilt: e.g.: Gwilliam v R [2019] NSWCCA 5 at [104]; The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [46]; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; Thomas v R [1960] HCA 2; (1960) 102 CLR 584 at 605-606.
3. On the evidence before me, I was satisfied beyond reasonable doubt that the defendant committed a theft as soon as he took the cap. The only reasonable inference from his actions is that he intended to take it and did not intend to pay for it: see R v Foster (1995) 78 A Crim R 517 at 527. However, even if I am wrong on this, and the act of theft was not completed until the defendant left the store, the outcome is the same.
4. On the evidence, while in possession of the cap and heading toward the exit of Myers, the defendant pushed Mr Hassan, yelled at him and tried to intimidate him. The most obvious and straightforward intention that could be inferred from this conduct is that he did this with the intention of having Mr Hassan leave him alone so he could leave the store with the misappropriated cap. This conduct meets the definition of a robbery, irrespective of whatever Mr Hassan's purpose was.
5. The alternative explanation, put by the defence, was that the Court could infer from the defendant's conduct was driven solely by his anger about being questioned by Mr Hassan, (or for some other reason) and had nothing to do with the cap. In considering whether that is a reasonable interpretation, it was submitted, I had to bear in mind that Mr Hassan was at no time trying to recover the cap, never mentioned it, and indeed did not ask the defendant to return it. He was following the defendant through the store, on his phone, and the defendant yelled at him because he was annoyed by Mr Hassan's proximity and attention.
6. In considering what may reasonably be inferred from the circumstances of this matter, I accepted that Mr Hassan's state of mind was relevant for this limited purpose: it added context to the silent and somewhat blurry CCTV footage. Mr Hassan gave oral evidence explaining what he was doing. The defendant's state of mind would of course have been influenced by what he observed Mr Hassan doing, and this may not have been as obvious from the CCTV as it was at the time. On this basis, I accepted that some of the defendant's actions were consistent with an inference that he was being abusive and obnoxious, independent of any intention to misappropriate the cap. The defendant approaching Mr Hassan aggressively when he had almost left the store, for example, was supportive of the argument that the defendant was being aggressive for the sake of it rather than for the purpose of stealing the cap or fleeing the scene. However, the defence's submissions do not explain the defendant's actions, taken as a whole. The defendant's momentum was, very clearly, toward the exit and away from the scene of the theft.
7. Further, the defendant dropped the cap during a confrontation with Mr Hassan, and then went back for it. The only inference I could draw from that conduct was that stealing the cap was at least part of his motivation at that point. The inference that the defendant intended only to vent his spleen at Mr Hassan for unrelated (or perhaps, tangentially related) reasons, was not a reasonable inference to draw.
8. I was therefore satisfied beyond reasonable doubt that defendant used force and threatened to use force on Mr Hassan with the intention of escape the scene, and indeed escaping the scene with the cap.
9. Accordingly, I found the defendant guilty of robbery, contrary to section 309 of the Criminal Code 2002. I dismissed the 'back up' charges of common assault and minor theft.

1. This was an additional allegation that on 18 October 2024, the defendant stole items, being men's toiletries, from Myers, and thereby committed a minor theft in breach of section 321 of the Criminal Code.
2. The evidence in support of this charge was limited. Before the Court was a screen capture from video footage captured on the date of the alleged incident.
3. Mr Hassan gave evidence that following the incident in April, he reviewed CCTV camera footage of previous incidents, and he recognised the defendant in what could be described as archival footage from 19 October 2024. He printed a screen capture of the man.
4. The screen capture was tendered. It shows a male, walking toward the camera. The Court was asked to draw its own conclusion as to whether the man was the defendant.
5. The actual CCTV footage was not before the Court. In his evidence, Mr Hassan was able to describe what he had seen on it. He said it showed the defendant approach goods in the store, pick them up, and then remove them from the store. His recollection was that the goods were in a red packet and with some form of men's grooming product. An inventory or stocktake has identified what the items were, based on what was missing, but Mr Hassan could not precisely recall that that was.
6. While I accept Mr Hassan as a truthful and honest witness, the evidence before the Court was not sufficient for me to conclude beyond reasonable doubt that the Defendant stole items form Myers.
7. Accordingly, on Count 4, minor theft, I found the defendant not guilty.

I certify that the preceding [48] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Robinson.