CRIMINAL LAW - PARTICULAR OFFENCES - Judge alone trial - application for "Prasad direction" - burglary - theft - attempt to choke and render insensible - assault occasioning actual bodily harm - common assault - threat to cause property damage

Crimes Act 1900 (ACT) s 27(3)

R v Dardovska [2003] VSCA 4; (2003) 6 VR 628

R v Lloyd [1985] EWCA Crim 1; [1985] QB 829

R v Prasad (1979) 23 SASR 161

Sharp v McCormick [1986] VicRp 83; [1986] VR 869

1. At the close of the Crown case, the accused seeks a "Prasad direction" (see: R v Prasad (1979) 23 SASR 161) in relation to three of the matters before the Court:

(1) Remain in a building, being the complainant's apartment, as a trespasser with intent to commit theft of property in the building contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code);

(2) Dishonestly appropriate the complainant's mobile telephone with intent to permanently deprive her of that property (contrary to s 308 of the Criminal Code), and;

(3) Attempt to intentionally and unlawfully choke the complainant so as to render her insensible or unconscious (contrary to s 27(3)(a) of the Crimes Act 1900 (ACT) (Crimes Act) read with s 44 of the Criminal Code).

2. It is for the accused to satisfy the Court that the evidence supporting each charge is so lacking in weight and reliability that it cannot form a proper foundation for a conviction.

3. The Crown alleges that the accused was a friend and former partner of the complainant. On 26 October 2013, the pair went shopping before returning to the complainant's apartment. As they were about to enter the apartment, the complainant received an incoming call on her mobile telephone. Thereafter, the accused made repeated and insistent inquiries as to the identity of the caller. He suspected that the caller was a male. It is the prosecution case that, in the course of pressing the complainant for the information, the accused assaulted the complainant and threatened her in a variety of ways.

4. In relation to the charges of burglary and theft, the accused submits that the prosecution case is incapable of reliably supporting an element of those offences, i.e. that the accused intended to permanently deprive the complainant of her mobile telephone. The accused submits that all the evidence points to an intention to keep the telephone only for the limited and short-term purpose of accessing data on the telephone.

5. The Crown relies upon s 306 of the Criminal Code in support of its submission that there is sufficient evidence of the relevant element. Section 308 of the Criminal Code is as follows:

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.

(1) A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if -

(a) A appropriates property belonging to B without meaning B to permanently lose the property; and

(b) A intends to treat the property as A's own to dispose of regardless of B's rights.

(2) For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A's own to dispose of regardless of B's rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal.

Section 306 expands the definition of intention to permanently deprive but does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property: s 306(4).

6. The prosecution contends that the evidence shows that the accused intended to keep the complainant's mobile telephone until one of two events occurred:

(1) the complainant satisfied the accused about the identity of the caller, or

(2) the accused accessed the caller data within the telephone.

7. The accused, effectively, concedes that he had the purposes relied upon by the Crown. However, he contends that those purposes are not capable of establishing an intention to permanently deprive. The accused refers to the Report prepared by the Model Criminal Code Officers Committee dated December 1995, chapter 3, concerning theft, fraud, bribery and other offences. At p 67, the Report discusses the extended definition that has been enacted in s 306, and states:

"Disposals" and "borrowings" will need to have a quality of permanence about them before the section can be satisfied (e.g. the defendant melts down the victim's antique bracelet intending to give back the melted silver).

8. The accused submits that under the extended definition, the quality of permanence is established where, for example, there is an intention to return property in such a changed state that it can truly be said that all its goodness or virtue is gone. In this regard, the accused refers to R v Lloyd [1985] EWCA Crim 1; [1985] QB 829, which interpreted s 6 of the Theft Act 1968 (UK), a precursor to the Criminal Code provision. Referring to Sharp v McCormick [1986] VicRp 83; [1986] VR 869 and R v Dardovska [2003] VSCA 4; (2003) 6 VR 628, the accused submits that the circumstances in which he removed the telephone do not demonstrate the "quality of permanence" that must be present before the section is satisfied, nor do they show an intention as referred to in 306(1)(b) "to treat the property as (A)'s own to dispose of regardless of (B)'s rights." The accused emphasises that it is necessary to examine his intention when he appropriated the telephone and ask whether, at that time, he was treating the telephone as his own to dispose of as he saw fit.

9. There was no suggestion that the accused would throw away the complainant's telephone, give it to someone else, pawn it, seriously damage the telephone or convert it to his own use. At the time that the accused removed the mobile telephone, he was angry. While in the apartment and before removing the telephone, the accused attempted to access the caller data and identify the unknown caller, but without success. Once the accused obtained her telephone, the complainant repeatedly demanded its return. It is true that, at or about the time that the accused placed the complainant's mobile telephone in his pocket, he said, "I could use a new phone" and "I'm not going to give your phone back". But in the context of the evidence generally, those statements do not reliably support a finding that the accused had an intention to permanently deprive. Both within the apartment and in the aftermath of the incident within the apartment, the concern of both the complainant and the accused was about the accused accessing information, rather than keeping the telephone itself. At the suggestion of her sister's partner, the complainant arranged for the mobile telephone to be "barred". After the accused removed the telephone, with the assistance of her sister and the sister's partner, the complainant communicated with the accused for the purpose of retrieving her telephone. The circumstances of the communications between the parties show that, at that time, both the accused and the complainant remained focused on whether the accused would be given an explanation concerning the identity of the caller. The negotiations regarding return of the telephone all concerned whether information about the caller could and should be given to the accused. Once the accused was satisfied of the caller's identity, he immediately returned the complainant's telephone.

10. As the Crown submits, on the prosecution evidence the inevitable conclusion is that the accused intended to use the complainant's mobile telephone to identify the caller, either by holding the complainant to ransom until she released that information or by accessing the data himself. On the prosecution case, it is clear that he was not interested in the telephone as an item of property; he was only interested in the data on it. The circumstances in which the telephone was taken did not display the "quality of permanence" that is necessary to support an intention to permanently deprive, having regard to the extended definition in s 306 of the Criminal Code. Insofar as there was any intention on the part of the accused concerning the future of the complainant's mobile telephone, it was an intention to return it to her as soon as his conditions were satisfied.

11. For these reasons, I propose to give myself a "Prasad Direction" in relation to these charges.

12. Section 27(3)(a) of the Crimes Act provides:

(a) chokes ... another person so as to render that person insensible or unconscious or, by any other means, renders another person insensible or unconscious ...

(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

14. In order to prove the offence, the Crown must prove that the accused intended that, by choking the complainant, he would render her insensible or unconscious.

15. On the evidence in the Crown case, there is no doubt that the accused intentionally choked the complainant. According to the complainant's evidence, he placed his hands around her throat and constricted her breathing in a determined fashion. The evidence of Dr Parekh regarding the complainant's history of symptoms is entirely consistent with the complainant's version of events.

16. The issue is whether the evidence is capable of reliably supporting an intention on the part of the accused that, by choking the complainant, he would render her insensible or unconscious. The Crown case is that, at the time that the accused had his hands on the complainant's throat, he harboured an intention to render her insensible or unconscious, albeit perhaps only for a matter of seconds.

17. The complainant said that the accused forcibly pushed her onto her bed, pinned her down and put his knees on either side of her body. He put his hands around her neck and started squeezing with such force that she began to struggle for air. She had difficulty in breathing for between three and six breaths and she began to feel faint. It was when she felt that she may be on the verge of passing out that, in her opinion, the accused noticed that she was having difficulty breathing and stopped at that point. At page 55, line 22 of the transcript she said:

Have I got that right? So there are these three to four breaths where you're not getting much in, you think he notices, and it's because he stops right at that point. Is that correct? ---Yes. I feel he let go because he could see that I wasn't getting any more air in after that.

18. The evidence is not capable of reliably establishing that the accused had the intention to render the complainant insensible or unconscious. One can choke another person without having the intention to render them insensible or unconscious. One can, for example, do it for the purpose of making them extremely frightened, with the intention of stopping before they become unconscious. In this case, the accused desisted when saw that the complainant was struggling for breath. It is speculative to suggest that, when he began to choke her, he intended to render her insensible or unconscious.

19. For these reasons, I direct myself to return a verdict of not guilty in relation to this charge.

20. Verdicts of not guilty are returned on the counts of burglary, theft and attempt to intentionally and unlawfully render insensible or unconscious.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.