PARTIES:	CLAYTON, Edward Vernon

	v

	THE QUEEN

TITLE OF COURT: 	COURT OF APPEAL

JURISDICTION:	IN THE COURT OF CRIMINAL APPEAL OF 
	THE NORTHERN TERRITORY OF AUSTRALIA EXERCISING TERRITORY JURISDICTION

FILE NO:	No CA8 of 1995
DELIVERED:	Darwin, 5 July 1996
HEARING DATES:	8 May 1996
JUDGMENT OF:	MARTIN CJ, GALLOP AND ANGEL JJ. 

CATCHWORDS:

Appeal and New Trial - Appeal - General principles - In general and right of appeal - Leave to appeal - Appeal against conviction for robbery following trial - Whether trial judge erred in law in failing to give any or any sufficient direction to the jury as to issue of intent to deprive - No deficiency found having regard to way in which matter was conducted.
Appeal and New Trial - Appeal - General principles - Points and objections not taken below - Fundamental impediment to grant of leave to appeal was the failure of counsel to take exception to alleged deficiency in summing up after directions to jury - Leave to appeal refused.
Criminal Law and Procedure - Appeal and new trial, pardon and enquiry subsequent to conviction - Appeal and new trial - Appeal against conviction for robbery - Whether trial judge erred in law in failing to give any or any sufficient direction to jury as to issue of intent to deprive - Objection not taken at trial to directions of trial judge by applicant - Leave to appeal refused.

Criminal Code Act (NT) s209 and s211 
Supreme Court Rules (NT) r86.08 

Caine (1990) 48 A Crim R 464, applied. 
Zorad 1990) 42 A Crim R 211, considered.

REPRESENTATION:

Counsel:
Appellant:   Ms C Gibson
Respondent: Mr P Bannon QC 
       Mr J Birch
Solicitors:

Appellant: NAALAS 
Respondent: DPP

Judgment category classification: 
Judgment ID Number:
Number of pages: 10

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
No. CA 8 of 1995

	ON APPEAL from Mildren J. in Proceedings No. 17 of 1995

BETWEEN:
	EDWARD. VERNON CLAYTON  
		Appellant
	AND:
THE QUEEN 
		Respondent

Coram:	Martin CJ, Gallop and Angel JJ. 
Darwin 

REASONS FOR JUDGMENT
(Delivered 5 July 1996)

MARTIN CJ: 
I have had the benefit of a draft of the reasons for the decision to refuse leave to appeal in this matter of Gallop and Angel JJ. I am in general agreement with their Honours, but would not join in the criticism of the earned trial judge's directions as to the elements of the charge. In a case such as this, with a limited area of contention, it was important that the emphasis be placed upon the elements touching upon that issue. That is what his Honour did, highlighting the matters which would probably command the jury's most earnest attention.

GALLOP & ANGEL JJ: 

This is an application for leave to appeal against conviction for robbery following the applicant's trial on 12 and 15 May 1995. Leave is necessary pursuant to Rule 86.08 because objection was not taken at the trial to the directions of the learned trial judge by the applicant.

On 12 May 1995 the applicant was arraigned on an indictment charging him with the offence that on 21 August 1994 at Palmerston in the Northern Territory of Australia he did rob Naomi Lee Lloyd of money valued at $300 the property of another, namely Coles Supermarkets Australia Pty Ltd. Upon his arraignment he pleaded not guilty. On 15 May 1995 the jury returned a verdict of guilty.

The only ground of appeal as set out in the Notice of' Appeal is that the learned trial judge erred in law in that he failed to give any or any sufficient direction to the jury as to the issue of intent to deprive. The substance of the ground of appeal is directed to the trial judge's directions to the jury about an element of the offence of robbery, namely the applicant's intention to deprive Coles Supermarkets Australia Pty Limited of the money.

The offence of robbery is prescribed in s.211 of the Criminal Code as follows:

"211. ROBBERY
(1)	Any person who steals and immediately before or at the time of his doing so, or immediately after 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.

(2)	If the offender is armed with a firearm or any other dangerous or offensive weapon or is in company with one or more person or persons, or if, immediately before, at or immediately after the time of the robbery he causes bodily harm to any person, he is liable to imprisonment for life."

	By definition, (s.209) "steals" means unlawfully appropriates property of another with the intention of depriving that person of it whether or not at the time of the appropriation the person appropriating the property was willing to pay for it, but does not include the appropriation of property by a person with the reasonable belief that such property has been lost and the owner thereof cannot be discovered.

	Likewise, by definition, "appropriates" means assumes the rights of the owner of the property and includes, where the person has come by the property without stealing it, any later assumption of a right to it •by keeping or dealing with it as owner.

	"Depriving" by definition means permanently depriving and appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as his own to dispose of (including to dispose of by lending or under a condition as to its return that he may not be able to perform) regardless of the rights of the person to whom it belongs.

The Crown case against the applicant was that at the relevant time the applicant had an intent to deprive Coles Supermarkets Australia Pty Ltd of the money. The defence case was that there was no such intent to deprive. Otherwise, the facts of the offence were not in dispute. The substance of the ground of appeal was that the trial judge failed to relate the facts proved in evidence to the statutory meaning of "depriving". It was submitted that, in other words, the trial judge at no time made a reference to any factual basis upon which the jury could find that the applicant had an intention to "dispose" of the money inconsistent with the rights of the owner without intending to permanently deprive it of the money. Further, the jury may have taken the trial judge's remarks as meaning that the applicant could be convicted if the jury were satisfied that the applicant intended to retain possession until "made to give it back to the police", It was submitted that such a direction would be an error of law.

It is necessary to have regard to the structure of the summing up and how the issue of intent to deprive was debated and presented to the jury. The trial judge handed to the jury a document called "Aide Memoire to the Jury". In that document his Honour purported to set out, inter alia, the charge of robbery. Before handing it to the jury, he handed copies of the Aide Memoire in draft form to counsel for the Crown and for the applicant respectively and invited comment. Neither counsel expressed any dissatisfaction with the terms of the Aide Memoire. During the course of his summing up, his Honour then circulated copies of the Aide Memoire among the jury and spoke to the terms of it in the course of his summing up.

Returning to the structure of the summing up, we make some comment about the terms of the Aide Memoire. The elements of the charge were stated as follows:

"The Elements of the Charge
1	Robbery consists of the following four elements:
1.1		That the accused appropriated from Naomi Lee Lloyd money 
		valued at $300 the property of another, viz. Coles Supermarkets 
		Australia Pty Ltd;

1.2	That at the time of the appropriation the accused intended to deprive Coles Supermarkets Australia Pty Ltd of the said money;

1.3	That the appropriation was unlawful.

(These first 3 elements together constitute stealing).

1.4	That immediately before the appropriation the accused threatened
violence to Naomi Lee Lloyd in order to obtain the said money."

The first element referred to is that the accused appropriated money valued at $300. That is not the first element of the crime of robbery as set out in s.211 of the Criminal Code. The first element as stated in the section is stealing. The next step is the meaning of the word "steals" which means "unlawfully appropriate the property of another with the intention of depriving that person of it" etc. However, His Honour accurately noted in the section in brackets that the first three elements together constituted stealing. In any event, no point was taken on the application for leave to appeal about the structure or content of the Aide Memoire.

Returning to the structure of the summing up, after circulating copies of the Aide Memoire among the jury, his Honour referred to the elements of the offence of robbery. As stated above, he mistakenly referred to the first element as that the accused appropriated the money. We say no more about that element. He then recited the second element as being that at the time of the appropriation the applicant intended to deprive Coles Supermarkets Australia Pty Ltd of the money. He moved to the other elements of the offence and gave examples of what could amount to appropriation.

Because the statutory definition of stealing includes an intention of depriving, his Honour had to deal with the meaning of depriving. He said:

"the word 'depriving' is defined to mean: 'Permanently depriving and appropriating or borrowing without meaning the person to whom it belongs permanently to lose the money. lf the intention of the person appropriating or borrowing is to treat property as his own to dispose of regardless of the rights of the person to whom it belongs.

So you can deprive somebody of something if you intend to permanently deprive them of the object, and that's a simple case of stealing. The sort of thing that you would all be familiar with. Somebody comes up to your desk and takes something from it intending to keep it for themselves and to deprive you of it permanently. That's a simple of case of stealing but sometimes people take things without permission intending not to deprive you of that thing but having an intent to borrow or to appropriate it, that is to take it or have it or use it as if the property were their own to dispose of regardless of the rights of the person to whom it belongs. So that's another kind of stealing."

His Honour then stressed that the intention to deprive must co-exist at the same time as the appropriation. He referred to the submission on behalf of the applicant made to the jury that there was no intention to deprive at the time the applicant got the money from the check-out. Having discussed the various elements, his Honour reminded the jury that each element had to be proved beyond reasonable doubt and if the Crown failed on any one of the elements, their verdict must be one of not guilty.

His Honour then turned to the facts of the case about which there was little dispute. Having reviewed the facts, his Honour posed the question: "Has the Crown proved that it was his intention to deprive Coles of the money?" He said he would deal with matters of intention in more detail later, but observed that a person can have more than one intention at the same time. It is possible, his Honour said, for a person to have an intention to steal as well as another intention. It may be another intention, in this case to get arrested, was also present. He said that it was also possible that the applicant had no intention to steal and that all he wanted to do was to get arrested, but it was also possible that he had both intentions. He reminded the jury the Crown did not have to prove an intent permanently to deprive, and that it would be sufficient if the Crown proved the intent to appropriate or to borrow or to treat the money as his own to dispose of regardless of the rights of Coles.

His Honour reminded the jury of the submissions put on behalf of the applicant to the jury and of the primary submission that the jury could not be satisfied beyond reasonable doubt that the applicant had an intention of permanently depriving Coles of the money or appropriating the money at all. The applicant's intention, so it was submitted on his behalf, was simply to call attention to himself so that he could get arrested.

His Honour then put the Crown submission that the applicant intended to deprive Coles of the money and, accordingly, even if he had another intention as well to draw attention to himself, he ought to be found guilty of the charge. His Honour then said:

"Those, ladies and gentlemen, are the main matters that you will have to 
consider. You might think that, from what he's told the police, that he 
wouldn't have given up the money unless he was arrested. So, at least to 
this extent, he had the intent to hold on to possession of the money until  
he was made to give it back by the police. If that's the way you think, well then it's a question of whether that gives rise to proof that he intended to deprive Coles of the money at the relevant time."

It is this passage which is criticised by the applicant on the application for leave. Having concluded his summing up, the trial judge asked counsel for the applicant whether she sought any further directions to the jury and counsel did not seek any such further direction.

Counsel for the applicant relied upon the observation in Zorad (1990) 47 A Crim R 211 at p.225:

"A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522-523; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323 and Alford v Magee (1952) 85 CLR 437 at 466."

If it were necessary to examine the summing up to see whether it included not only directions as to the ingredients of the offence which the Crown had to establish and an explanation of how the relevant law may be applied to the facts of the particular case, and whether it included a collected resume of the evidence which relates to each of those ingredients, and a brief outline of the arguments which had been put in relation to that evidence, we would be prepared to conclude that the summing up complies with those requirements.

But the fundamental impediment to the grant of leave to appeal in this case is the failure of counsel, after the directions to the jury, to take exception to the alleged deficiency in the summing up. The following passage from Caine (1990) 48 A Crim R 464 at 475 is entirely apt:

"The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client's case is put to the jury in a way which is as favourable to the client's interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial:

And later:
"The general rule is that it is not open to an applicant to rely on an error which could have been cured if exception were taken, where no exception has been taken: Clarke and Johnstone [1986] VR 643 at 661-662; (1986) 21 A Crim R 135 at 155."

No doubt counsel did not take exception to the alleged deficiency in the summing up in this case because of the way in which the matter had been conducted. It was the Crown case that at the relevant time the applicant had the relevant intention to deprive. It was the applicant's case that the Crown had not established beyond reasonable doubt that the applicant had the necessary intention. The learned trial judge squarely directed the jury's attention to that issue and to the necessity that that element be proved beyond reasonable doubt. If the applicant's counsel at trial had drawn attention to the alleged deficiency in the summing up, his Honour could have cured the deficiency immediately. The fact is that there was no such deficiency having regard to the way the matter was conducted. There was no miscarriage of justice in the circumstances.

It is for these reasons that we refused leave to appeal.