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7.5.3.2 - Charge: Armed Robbery (Extended)

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[This charge can be used where one or more elements of the offence are in issue. If the only issue relied upon by the accused, or raised by the evidence, is that the accused was not the offender, see Charge: Armed Robbery (Short).]

 

The Elements

I must now direct you about the crime of armed robbery. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused committed theft.

Two - that, immediately before or at the time of the theft, the accused either:

Three - the accused acted in that way in order to commit the theft.

Four - the accused had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of the theft.

I will now explain each of these elements in more detail. [1]

Theft

The first element that the prosecution must prove is that the accused committed theft. In order to do this, the prosecution must prove three things. [2]

First, they must prove that the accused appropriated property that belonged to another person. Although the word "appropriation" has a technical legal meaning, and includes many different types of acts, here it simply means to take something without the owner’s consent.

In this case, the prosecution alleged that NOA took [identify property] that belonged to [identify owner]. [Summarise prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

Secondly, the prosecution must prove that, when the accused appropriated the [describe property], s/he intended to permanently deprive the owner of it. That is, s/he intended that the owner would never get it back.

It does not matter whether the accused intended to keep, sell, give away, destroy or hide the appropriated property. If his/her intention was that the owner would not get the property back, then s/he will have had the necessary intention.

In this case, the prosecution alleged that NOA had such an intention. [Identify prosecution evidence and/or arguments.]

Thirdly, the prosecution must prove that, at the time of the appropriation, the accused was acting dishonestly. In this context, "dishonesty" does not have its ordinary meaning. It is given a special legal meaning, which says that the accused will have acted dishonestly if, when s/he took the property, s/he did not believe that s/he had a legal right to take it.

In this case there is no evidence that the accused believed s/he had a legal right to take the [identify property]. So if you are satisfied that NOA took that property, you should have no difficulty finding this requirement proved.

It is for you to determine, based on all the evidence, whether NOA committed theft. This will only be the case if you are satisfied that all three of the requirements I have just outlined have been proved beyond reasonable doubt.

Force or fear of force

The second element that the prosecution must prove is that, immediately before or at the time of the theft, the accused either:

In this case the prosecution alleged that NOA [identify relevant ground[s] and people involved, eg, "used force against NOC"] when s/he [describe relevant conduct]. The defence denied this, arguing [describe defence evidence and/or arguments].

[If it is alleged that the accused put, or sought to put, a person in fear, add the following shaded section]

You will note that it is not enough for the prosecution to prove that NOA put, or sought to put, NOC in fear that force was going be used on him/her/NO3P [3] at some distant or uncertain time. To prove this element on the basis of the threatened use of force, the prosecution must prove that NOA put, or sought to put, NOC in fear that force was going to be used on him/her/NO3P then and there.

You will also note that, while this element will be met if you are satisfied that NOC was actually fearful that such force was going to be used, this is not necessary. This element will be met if the prosecution can prove that NOA sought to put NOC in fear, even if that attempt was unsuccessful.

Conduct was committed "in order" to steal

The third element that the prosecution must prove is that the accused acted in the way s/he did in order to commit the theft. That is, NOA must have [used force on NOC / put NOC in fear of the use of force / sought to put NOC in fear of the use of force] for the purpose of stealing the [identify property], rather than for another reason.

[Insert any relevant evidence and/or arguments.]

The accused was armed

The fourth element that the prosecution must prove is that the accused had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of the theft. For this element to be met, there are three things that the prosecution must prove.

First, they must prove that, at the time of the theft, NOA had [identify item] either on him/her or readily available for use.

Secondly, the prosecution must prove that [identify item] falls within the category of [firearm / imitation firearm / offensive weapon / explosive / imitation explosive].

[Where there is a dispute about whether the article possessed was a firearm, add relevant parts of the following shaded section]

The law defines a "firearm" to be any device which is designed or adapted to discharge bullets or other missiles, either by the expansion of gases produced in the device by the ignition of strongly combustible materials, or by compressed air or other gases. The definition of "firearm" also includes anything which looks like such a device.

However, certain things are excluded from the definition of a "firearm". These include [identify relevant exception, eg, "underwater spear guns"].

To be a "firearm", the device does not need to be assembled, complete or operational. If it fits the definition I have just given you, it will be a "firearm", whether or not it actually works.

[Where it is alleged that the accused had an imitation firearm with him/her, add the following shaded section]

An "imitation firearm" is anything which has the appearance of being a firearm, whether or not it is capable of being shot.

[Where it is alleged that the accused had an offensive weapon with him/her, add the following shaded section]

An "offensive weapon" can be an item which is specifically made or adapted for the use of injuring or incapacitating a person. An ordinarily inoffensive item can also become an "offensive weapon" if the person carrying it intends or threatens to use it to injure or incapacitate a person.

[If it is alleged that the relevant article was made for the use of injuring or incapacitating a person, add the following darker shaded section]

In this case the prosecution argued that the [identify item] is an "offensive weapon" because it is made for injuring or incapacitating people. That is, it is an item that is normally used for this purpose.

[If it is alleged that the relevant article was adapted for the use of injuring or incapacitating a person, add the following darker shaded section]

In this case the prosecution argued that the [identify item] was an "offensive weapon" because it was adapted for the use of injuring or incapacitating people. That is, it was physically modified so that it could cause injury or incapacitate a person.

[If it is alleged that an ordinary article became an offensive weapon because of the accused’s use, threats or intention, add the following darker shaded section]

In this case the prosecution argued that the [identify item] was an "offensive weapon" because NOA [used / threatened to use / intended to use] it for the purpose of injuring or incapacitating a person.

[Where it is alleged that the accused had an explosive with him/her, add the following shaded section]

An "explosive" is any item which is manufactured for the purpose of producing a practical effect by explosion, or which is intended to have that purpose. Any item that fits this definition will be an "explosive", whether or not it actually works.

[Where it is alleged that the accused had an imitation explosive with him/her, add the following shaded section]

An "imitation explosive" is any item which might reasonably be taken to be, or to contain, an explosive.

Thirdly, the prosecution must prove that NOA had the [identify item] with him/her for the purpose of the robbery. That is, s/he intended to use the [identify item] to apply force to a person, or to put a person in fear that s/he or another person would, then and there, be subject to the use of force.

[If the accused may not have used the article for this purpose, add the following shaded section]

It does not matter whether NOA actually used the [identify item] for this purpose. What is important is whether s/he intended to use it for the purpose of the robbery.

In determining this matter you should focus on NOA’s intention at the time of the robbery. It does not matter what his/her intention was at the time s/he first handled the [identify item].

In this case the prosecution argued that all three of these requirements have been met. [Describe prosecution evidence and/or arguments.]

The defence [describe defence case [if any] in respect of this element, e.g.

It is for you to determine, based on all the evidence, whether all three of these matters have been proved beyond reasonable doubt. It is only if you are satisfied that NOA had [identify item] with him/her at the time of the theft, that [identify item] was a [firearm / imitation firearm / offensive weapon / explosive/ imitation explosive], and that NOA had that item with him/her for the purposes of the robbery that this element will be met.

Summary

To summarise, before you can find NOA guilty of armed robbery, the prosecution must prove to you, beyond reasonable doubt:

One - that NOA committed theft, by dishonestly appropriating property that belonged to another person, intending to permanently deprive the owner of that property; and

Two - that immediately before or at the time of the theft, NOA either:

Three – that NOA acted in this way in order to commit the theft; and

Four – that NOA had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of the theft. That is:

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of armed robbery.

Robbery

In this case, there are two alternatives to the offence of armed robbery. The first is the offence of robbery.

This is an alternative to the offence of armed robbery. That means that you will only be asked to return a verdict on this offence if you are not satisfied that the prosecution has proved the offence of armed robbery beyond reasonable doubt. If you decide that NOA is guilty of armed robbery, then you do not need to deliver a verdict on this alternative.

The offence of robbery is very similar to the offence of armed robbery, with one important difference: the accused does not need to have had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of the theft.

In other words, if you are satisfied that the prosecution have proved the first three elements I just described beyond reasonable doubt, but are not satisfied that they have proved element four, then you should find the accused guilty of robbery. However, if you find that any of the first three elements have not been proved beyond reasonable doubt, then you must find the accused not guilty of robbery.

Theft

The second alternative offence is theft. As theft is an alternative to the offences of robbery and armed robbery, you will only be asked to return a verdict on the offence of theft if you are not satisfied that the prosecution have proved either of those offences beyond reasonable doubt. If you decide that NOA is guilty of either armed robbery or robbery, then you do not need to deliver a verdict on this alternative.

I have already explained the elements of theft to you, when instructing you about the first element of armed robbery. They are:

One – that the accused appropriated property belonging to another person; and

Two – that the accused intended to permanently deprive the other person of that property; and

Three – that the accused appropriated the property dishonestly, in that s/he did not believe that s/he had a legal right to take it.

For NOA to be guilty of theft, you must be satisfied that the prosecution has proved all of these matters beyond reasonable doubt. If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of theft.

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be explained briefly, and followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meet the element], and you should have no difficulty finding this element proven."

[2] This part of the charge is designed for use in cases where the theft element does not raise any technical issues. If such issues do arise, the charge should be adapted or expanded accordingly. Guidance can be obtained from Charge: Theft (Extended).

[3] Name of third party.

 

Last updated: 27 March 2013

See Also

7.5.3 - Armed Robbery

7.5.3.1 - Charge: Armed Robbery (Short)

7.5.3.3 - Checklist: Armed Robbery