The Queen v Kevin Stanischewski

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 10 October 2001
• Neutral Citation: [2001] NTSC 86
• Docket Number: FILE NO: SCC/200202085
• Date: 10 October 2001

[2001] NTSC 86

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Mildren J

FILE NO: SCC/200202085

Between:

The Queen

Plaintiff

and

Kevin Stanischewski

Defendant

Appearances

Counsel for the Plaintiff: Mr A Elliott

Counsel for the Defendant: Miss H Spowart

REASONS FOR RULING

(Delivered 10 October 2001)

Mildren J

1 The accused, Kevin Stanischewski, was charged with that, on 21 July 1999 at Darwin, he robbed Klaus Werner of a television set, the property of Northern Freight Management Pty Ltd.

The Crown Case

2 The case presented against him alleged that he and another co-offender removed the television set off the back of a stationery flat top truck which had been parked in a delivery area at the Casuarina Shopping Centre. The truck belonged to Northline Freight Management Pty Ltd (the carrier) which was carrying a number of electrical items, including the television set in question, to be delivered to a tenant of the shopping centre. Mr Werner, an employee of the carrier and the truck driver, Mr Hester, had left the truck unattended whilst they delivered some of the items for delivery to the store. Upon returning to the truck, they saw the accused with the television set in his arms standing near the truck. Mr Hester yelled out. The accused dropped the television set and he and his co-offender ran into the shopping centre through a nearby doorway. Mr Hester gave chase but was unable to find them. Mr Werner also gave chase. He re-entered the shopping centre through another door hoping to cut them off. Both Mr Werner and Mr Hester ran through the shopping centre looking for the accused and his co-offender. The shopping centre is a very large one. They both came out of the shopping centre at different times and locations some distance away from the truck, near Trower Road.

3 Whilst on the way through the shopping centre Mr Werner had stopped briefly to enlist, unsuccessfully, the aid of a security guard. When he came out of the centre near the cinema complex, he caught sight of the offenders walking through the car park towards the premises of Kentucky Fried Chicken. He sprinted after them and, as he reached the premises of the ANZ Bank, he saw the offenders crossing Trower Road towards Casuarina Plaza, an office building on the other side of the road. He crossed Trower Road and caught up to them. As they were about to enter this building he said: ‘You guys look like you're off in a bit of a hurry’. The co-offender then sprinted through the door, but the defendant turned around and hit Mr Werner with his fist on the side of his head two or three times. Mr Werner fell to the ground. The defendant went to go through the door but Mr Werner grabbed him by the pants. The defendant punched him again on the top of the head and on the nose, causing an undisplaced fracture thereto. The defendant was then able to make good his escape. According to the evidence, between five and ten minutes had elapsed between the moment Mr Werner first saw the accused and the time he was assaulted.

4 Mr Hester in the meantime, had seen Mr Werner crossing Trower Road towards Casuarina Plaza and he followed him. By the time he arrived at the entrance to the building, he saw Mr Werner lying injured on the ground. The defendant and his co-offender were nowhere to be seen.

Robbery

5 Section 211(1) of the Criminal Code which provides for the offence of robbery is in the following terms:

Any person who steals and immediately before or at the time of his doing so, or immediately after his doing so, uses or threatens to use violence to any person in order to obtain the thing stolen, to prevent or overcome resistance to its being stolen or to prevent or hinder his pursuit, is guilty of a crime called robbery and is liable to imprisonment for 14 years.

The No Case Submission is dismissed

6 The Crown case was that the defendant stole the television set and immediately after his doing so, used violence in order to prevent or hinder his pursuit. Counsel for the accused, Miss Spowart, submitted there was no case to answer because on the facts so much time had elapsed and the assault was so far physically removed from the place where the television set had been stolen, that it would not be open to the jury to find that the violence was used immediately after the stealing. This submission was further elaborated upon in a number of ways which I will mention shortly. I held that there was a case to answer and left the charge to the jury. The defendant was ultimately convicted of robbery.

7 At the time I dismissed Miss Spowart's no case submission, I gave very brief reasons but reserved the right to deliver more detailed reasons at a later time. I now provide those reasons.

The submissions of Counsel for the Accused

8 The first submission was that the stealing had been completed at or about the time when the television set had been removed from the tray of the truck. The assault occurred some five to ten minutes later at a location in another building quite some distance away. At this time, the offenders were no longer in possession of the television set. As the pursuit had been in progress for some time after the stealing, it could not be said that the violence was used ‘immediately after’ the stealing.

9 Next, Miss Spowart submitted that the essence of robbery is the combination of theft and violence so as to form one transaction or episode. There is no evidence that the use of violence was part of any plan to prevent or hinder pursuit. The violence used was a separate and different episode, not part of the same transaction. No threats or violence were used towards Messrs Hester or Werner before the pursuit began. In order to be ‘immediately after’ the stealing, the violence used would have to have occurred whilst the accused was still at the truck. The violence was not a part of the circumstances of the stealing. Miss Spowart also referred me to three authorities in support of her argument which I will discuss later.

The submissions of Counsel for the Crown

10 Mr Elliott who appeared for the Crown, submitted that the provisions of s211(1) of the Code were unique because neither the common law nor any of the other Australian codes provided for the use of violence to prevent or hinder pursuit as an element of the crime of robbery. Further, there are no decisions of this Court as to the construction to be given to the expression ‘immediately after his doing so, uses … violence to any person in order … to prevent or hinder his pursuit…’. It is not unusual to...