Robbery
Crimes Act 1900 (NSW), s 94
Section 94 provides for offences of “robbery”, “assault with intent to rob” and “steal from the person”.
[5-6600] Elements of the offence of robbery
Robbery is a hybrid offence containing elements of larceny and assault —
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There must be an unlawful taking and carrying away of property with the intention of permanently depriving the owner or person in possession thereof: R v Salameh (1986) 26 A Crim R 353 at 358; R v Donnelly (1779) 168 ER 199. The property must be taken without the consent of the latter, and by force or by threat (putting that person in fear of violence): R v Hickman (1784) 168 ER 241.
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The property must be taken —
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from the person of another;
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in the presence of another;
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from the immediate personal care and protection of another.
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The property must be taken by actual violence or by putting the person in possession in fear of actual violence. R v Foster (1995) 78 A Crim R 517; R v Donnelly.
[5-6610] Suggested direction
The accused is charged with robbery. The Crown case is that [briefly outline the incident/s to which the charge relates].
To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following five elements:
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the accused intentionally took and carried away property;
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the accused intended to permanently deprive the owner [or person in possession] of the property;
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the property was taken from/in the presence of/from the immediate personal care and protection of another;
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the property was taken dishonestly; and
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the property was taken or carried away by force or through fear.
1. Intentional taking or carrying away of property
The first matter which the Crown must prove is that there was a taking and carrying away by the accused of the property of another.
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].
2. Intention to permanently deprive
The Crown must prove that the accused (at that time) had the intention to permanently deprive the [owner/possessor] of the property… [adapt the direction given as to Intention at [3-210]].
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.]
[Give suggested direction on Inferences at [3-150] or remind jury if already provided.]
3. Property taken from/in the presence of/from the immediate personal care and protection of another
The Crown must next prove that the property was taken from [another person] [or from the presence of that person or from their immediate personal care and protection]. [Summarise evidence relied upon by the Crown and by the accused if the matter is in issue].
4. Property taken dishonestly
The Crown must prove the property was taken dishonestly. That is, the accused knew the property belonged to another person. Whether the accused was acting dishonestly is for you to determine, applying the current standards of ordinary decent people.
[If claim of right is raised on the evidence:
The accused says they had a genuine and honest belief at the time that they took the property that they had a lawful right to do so. If a person is acting under such a belief, which is genuinely and honestly held, then it cannot be said that that person was dishonest in taking the thing in question, even if it was without the consent of the [owner/possessor].
It doesn’t matter whether in law there was no such right, or whether the accused mistakenly believed that they had such a right, or whether they had any reasonable grounds for such a belief. If that belief existed at the time the property was taken, then the state of mind of the accused would not have been dishonest. The Crown must prove that at the time the property was taken, the accused did not genuinely believe they had a legal right to it.]
5. By force or through fear
The Crown must prove that the property was taken without the consent of [the owner/possessor] by [force/putting the person in fear].
[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/possessor 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]. There must be violence or a threat of violence at the time of the taking which causes the person to part with the property.
[5-6620] Suggested direction — “assault with intent to rob”
The accused is charged with assault with intent to rob. The Crown case is that [briefly outline the incident/s to which the charge relates].
To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements:
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the accused assaulted [the complainant]; and
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the accused did so with the intention of robbing [the complainant/another person].
1. The accused assaulted [the complainant]
The Crown must prove, that there was an assault. An assault may, but need not, involve an actual application of force by the accused to another person. It is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence… [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 threat of force, add
The Crown must prove that in so threatening [the complainant], the accused intended to raise in the mind of that person an apprehension that actual force or violence (no matter how slight) would be inflicted. There need be no injury inflicted upon [the complainant] 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.]
2. With the intent to rob
The Crown must prove that the act was done with the intent to rob [the complainant/another person] … [as to which, see suggested directions under [5-6610]].
As to the accused’s intention…[adapt the suggested directions at [3-210] to the particular circumstances of the case at hand].
[If there is an issue as to the matter, summarise evidence relied upon by the Crown and the accused.]
You will recall the direction I gave to you about the care that needs to be applied to the drawing of inferences which included that you must consider whether there might be alternative explanations for the evidence. You should bear in mind those directions in deciding whether you can draw the inferences contended for by the Crown. [see also [3-150] Inferences].
[5-6630] Suggested direction — “steal from the person”
The accused is charged with steal from the person. The Crown case is that [briefly outline the incident/s to which the charge relates].
To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements which make up the offence:
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the property belonged to someone other than the accused;
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the accused took and carried away the property;
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the property was taken without the consent of the [owner/possessor];
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the property was taken dishonestly;
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the accused intended to permanently deprive the [owner/possessor] of the property; and
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the stealing was “from the person” of another.
1. The property belonged to someone other than the accused
The Crown must prove that at the time the property was taken, it was owned, controlled or possessed by someone other than the accused.
2. The accused took and carried away the property
The Crown must prove there was some physical movement of the property, no matter how slight, by the accused [if appropriate: or someone acting on their behalf].
3. The property was taken without the consent of the owner/possessor
The Crown must prove that the property belonged to [name of owner/possessor]. You must then be satisfied that the property was taken without [owner’s/possessor’s] consent.
4. The property was taken dishonestly
The Crown must prove the property was taken dishonestly. That is, the accused knew the property belonged to another person. Whether the accused was acting dishonestly is for you to determine, applying the current standards of ordinary decent people.
5. The accused intended to permanently deprive the owner/possessor of the property
The Crown must prove that the accused intended to permanently deprive the [owner/possessor] of the property. It is insufficient if the accused intended to only deprive the [owner/possessor] temporarily.
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.]
[Give suggested direction on Inferences at [3-150] or remind jury if already provided.]
6. The stealing was “from the person” of another
The Crown must prove the stealing was “from the person” of another. “From the person” means taking something that is on the actual person of the complainant or in their immediate presence and control. There must be complete removal of the property.
[It may be necessary to direct the jury as to other issues such as claim of right, depending on the circumstances of the particular case: see [5-6105] Larceny — Suggested direction .]
[5-6640] Alternative verdicts for robbery and stealing from the person
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. Where the charge is under s 95 of the Crimes Act, alleging robbery etc in circumstances of aggravation, an alternative verdict under s 94 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.
[5-6650] Notes
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For robbery, there must be violence or a threat of violence which causes the complainant 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.
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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.
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Although the actual or threatened application of force must precede or occur simultaneously with the taking, the complainant need not be shown to be physically present when the taking occurs: Smith v Desmond [1965] AC 960.
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“From the person” in the offence of steal from the person means taking something that is on the actual person of the complainant or in their immediate presence and control: Delk v R (1999) 46 NSWLR 340 at [21], [30]. There must be complete removal, though partial removal may sustain an alternative verdict of guilty of larceny or attempted stealing from the person: R v Thompson (1825) 168 ER 1192.
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Recent possession may apply, as to which see [4-000] Recent Possession.
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Intoxication may raise doubt as to intention to rob. The effect of a substance on the accused is a question relating to the formation of the requisite intent (not the “capacity” to form that intent). In R v Makisi [2004] NSWCCA 333, the court held that directions referring to the accused’s capacity to form an intent while intoxicated are unnecessary and confusing: [12].
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Judges sitting in judge-alone trials should ensure all the essential legal elements of the offence are set out in their reasons, even if they are not in dispute: Schoffel v R [2023] NSWCCA 88 at [79]. In Schoffel v R, the trial judge’s judgment did not outline all the elements of robbery, including the taking of property with an intention to deprive the complainant of it permanently: [71].
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As to the admission of coincidence evidence in respect of multiple charged acts of robbery see Glover v R [2015] NSWCCA 285 at [41]–[50].
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As to the elements of the offence for a joint criminal enterprise to rob in company, see Youkhana v R [2015] NSWCCA 41 at [9], [15].