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Chapter 37: Robbery

Table Of Contents  

[37.0] Introduction 

This chapter will examine the offence of 'Robbery', as provided for by section 293 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In Toritelia v R [1987] SILR 4 the Court of Appeal examined the term 'fraudulently'. Whilst that term was examined in context of the offence of 'Embezzlement' as prescribed in section 273 of the Penal Code (Ch. 26), the legal reasoning should be adopted when interpreting the same term as prescribed in section 313 of that Code. 

White P stated at page 7: 

'In the United Kingdom the Theft Act 1968 replaced the Larceny Act 1916 but the Solomon Islands provisions have remained unaltered.' 

It is therefore appropriate only to refer to cases which refer to the latter Act for the purpose of interpreting the offence of 'Robbery'. In that regard see section 23 of that Act. 

Section 173 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with robbery, and it is proved that he committed an assault with intent to rob, he may be convicted of that offence although he was not charged with it.'

[37.1] Offences 

Section 293 of the Penal Code (Ch. 26) states (in part): 

'(1) Any person who – 

(a)                being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or 

(b)               robs any person and, at the time of or immediately after such robbery, uses or threatens to use any personal violence to any person, 

is guilty of a felony, and shall be liable to imprisonment for life. 

(2) Any person who robs any person is guilty of a felony, and shall be liable to imprisonment for fourteen years.'

[37.2] Wording Of Charges 

Section 293(1) 

(a) '[Name of Defendant] at [Place] on [Date] [being armed with an offensive (weapon or instrument) to wit a (specify the offensive [weapon or instrument]) or together with (one or [specify any number more than one]) person/s namely (specify the name of this/these person/s)] did [rob or assault with intent to rob] a person namely [specify the name of this person].' 

(b) '[Name of Defendant] at [Place] on [Date] did rob a person namely [specify the name of this person] and [at the time of or immediately (before or after)] the said robbery did [use or threaten to use] personal violence to [the said person or a person namely (specify the name of this person)].'

Section 293(2) 

'[Name of Defendant] at [Place] on [Date] did rob a person namely [specify the name of this person].'

[37.3] Elements 

Section 293(1)(a) 

A. Defendant 

B. Place 

C. Date 

D.        [i] Armed With An Offensive Weapon Or Instrument; or 

[ii] Together With Another Defendant 

E.         [i] Rob; or 

[ii] Assault With Intent To Rob 

F. Complainant

Section 293(1)(b) 

A. Defendant 

B. Place 

C. Date 

D. Rob 

E. Complainant 

F.         [i] At The Time; or 

[ii] Immediately Before Or After

The Said Robbery 

G.        [i] Use; or 

[ii] Threaten To Use 

H. Personal Violence 

I.          [i] Complainant; or 

[ii] Another Person

Section 293(2) 

A. Defendant 

B. Place 

C. Date 

D. Rob 

E. Complainant

[37.4] Rob 

'[R]obbery consists in the violent and forcible taking from the person of another or in his presence and against his will of any money or goods to any value of violence, or putting him in fear', see R v Harding (1929) 21 CrAppR 166 at page 170. 

The person robbed need not be the owner of the property, see R v Harding (supra). 

It is a question of fact as to whether property was in the complainant's immediate and personal protection and care, see Smith v Desmond & Hill (1965) 49 CrAppR 246.

[37.5] Assault With Intent To Rob

[37.5.1] Assault 

The term 'Assault' is examined commencing on page 564.

[37.5.2] Intent To Rob 

Section 293(1)(a) of the Penal Code (Ch. 26) requires that the defendant must assault another person with intent to rob. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to rob the complainant, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[37.6] Armed With An Offensive Weapon Or Instrument

[37.6.1] Armed 

The term 'Armed' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In R v Jones (1987) 85 CrAppR 259 [[1987] 2 AllER 692; [1987] 1 WLR 692] Tucker J, delivering the judgment of the Court of Appeal, held at page 266: 

'The expression "armed" is an ordinary English word. Normally, it will involve either physically carrying arms, or it will involve proof that, to his knowledge, a defendant knows that they are immediately available. In our judgment, it is not necessary to prove an intent to use those arms if the situation should require it, though clearly if a defendant does use them, or has used them, then that is an obvious indication that he is armed.' 

See also: Rowe v Conti; Threlfall v Panzera [1958] VR 547; [1958] ALR 1038.

[37.6.2] Dangerous Or Offensive Weapon Or Instrument 

The terms 'Dangerous Or Offensive Weapon Or Instrument' are not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include 'a weapon or instrument made or adapted or intended for causing injury to human being', see Sinaje v Balmer [1965] 2 AllER 248. A 'firearm' would be classed as a 'dangerous weapon', whereas a large knife may be classed as a 'dangerous instrument'.

[37.7] Personal Violence 

Any degree of violence is sufficient, there need no be excessive violence or serious injury, see R v Harrison (1930) 22 CrAppR 82, but mere fear of violence is not sufficient, see R v Parker [1919] NZLR 365; [1919] GLR 238. 

In R v Broughton [1986] NZLR 641 it was held: 

A threat of violence in its natural and ordinary meaning was the manifestation of an intention to inflict violence unless the money and property was handed over. The threat could be directed or veiled, and it could be conveyed by words or conduct or combination of both. Whether or not the conduct complained of was capable of amounting to a threat of violence must be assessed in the context in which it occurred. Although it was the conduct of the defendant which had to be assessed, and not the presence or absence of fear on the part of the complainant, the reaction of the person against whom the conduct was addressed was relevant when characterising the conduct of the defendant.

[37.8] Honest Claim Of Right 

Section 8 of the Penal Code (Ch. 26) states: 

'A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.' (emphasis added) 

In Alick Fefele v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 5 of 1987) it was argued that the defendant had a honest claim of right to commit the offence of 'Robbery' because the victim had sex with his wife. Ward CJ stated at pages 2 – 3: 

'Counsel refers to the case of R v Skivington (1967) 1 AER 483 [(1967) 51 CrAppR 167]. That was an appeal against the judge's direction to the jury that where, on a charge of robbery, the accused raised a defence of claim of right, he had to show he had an honest belief that he was entitled to the goods and also that he had a honest belief he was entitled to take them in the way in which he did. 

The Court of Appeal held that this was a misdirection. Lord Parker CJ at page 484 reiterates the principle that a claim of right exists whenever a man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact and continues:- 

"The question is whether that defence to larceny applies equally when the offence with which one is concerned is really an aggravated larceny, such as in this case of robbery, or whether the honest belief must extend to being entitled to take the money by force. In the opinion of the court, both on principle and on the cases, it is clear that it can be a defence. So far as principle is concerned, it can be stated in the simple form that larceny is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence is not made out. That principle simply stated as such has been upheld in case after case."

Counsel for the appellant suggests that means the court must decide the question of claim of right to the stealing without looking at the means by which it was taken and only to consider those when and if he does not accept it was an honest belief. 

That is an interpretation that strains commonsense. In deciding any issue, the magistrate must use all relevant matters available in the evidence. Of course, the violence here was an extension of the stealing to which claim of right was the defence but the very fact that he was willing to resort to such threats in order to pursue what he claimed was a genuine right must be a matter the magistrate might consider in assessing the accused's bona fides.' 

The law in relation to 'Honest Claim Of Right' is examined commencing on page 431.

[37.9] Doctrine Of Recent Possession 

In R v Fallon (1963) 47 CrAppR 160 Lord Parker CJ, delivering the judgment of the Court, stated at page 163: 

'It is well known that the doctrine of recent possession can afford evidence upon which in certain circumstances a jury can convict of the taking, stealing or housebreaking and stealing, or, as the count conceives it, robbery.' 

The law relating to the 'Doctrine Of Recent Possession' is also examined commencing on page 477.

[37.10] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Robbery' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[37.11] Related Offences 

The following offences are related to the offence of 'Robbery' as provided for in the Penal Code (Ch. 26):: 

·                     'Assault With Intent To Rob', section 293(3) of the Penal Code (Ch. 26); and 

·                     'Demanding Property With Menaces', sections 294 and 295 of the Penal Code (Ch. 26) which is examined commencing on page 912;