7.5.1.2.1 - Robbery - Bench Notes1
Overview
1.
Robbery is an offence under Crimes Act 1958 s75.
2.
The offence has the following three elements:
i)
The accused stole something (i.e., committed “theft”);
ii)
Immediately before or at the time of the theft, the accused:
iii)
a)
Used force on any person; or
b)
Put any person in fear that s/he or another person would,
then and there, be subject to the use of force; or
c)
Sought to put any person in fear that s/he or another
person would, then and there, be subject to the use of
force.
The accused did so in order to commit the theft.
The accused committed theft
3.
The first element that the prosecution must prove is that the accused
stole something (Crimes Act 1958 s75(1)).
4.
A person “steals” (and thereby commits the offence of “theft”) if s/he
5.

Appropriates property belonging to another;

Does so with the intention of permanently depriving the other of
the property; and

Acts dishonestly (Crimes Act s72).
See Bench Notes: Theft for further information concerning each of
these requirements.
The accused used force or fear of force
6.
The second element that the prosecution must prove is that,
immediately before or at the time of the theft, the accused:
i)
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Used force on any person; or
This document was last updated on 26 March 2009
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ii)
Put any person in fear that s/he or another person would, then
and there, be subject to the use of force; or
iii)
Sought to put any person in fear that s/he or another person
would, then and there, be subject to the use of force (Crimes
Act 1958 s75(1)).
Use of force
7.
There is no legal standard for the minimum physical contact that can
constitute the “use of force” (Dawson & James (1976) 64 Crim App R
170; Hood v R [2000] WASCA 98).
8.
If there is an issue about whether the accused’s actions constituted a
“use of force”, it is for the jury to determine (Dawson & James
(1976) 64 Crim App R 170; cf. Hood v R [2000] WASCA 98).
9.
The “force” does not need to have been applied directly to the
victim’s body. It is sufficient if it was applied to items carried by the
victim (R v Clouden [1987] Crim LR 56).
Putting a person in fear of the use of force
10. Where it is alleged that the accused put the victim in fear that s/he
or another person would be subject to the use of force, the victim
must have feared that the force would be used “then and there”
(Crimes Act 1958 s75(1)).
11. While any physical contact may be legally sufficient to meet this
element where the “use of force” is relied upon, there is a minimum
standard for threats capable of meeting this element. The accused’s
threat must place the victim “in fear” of the use of force. This means
the threat must be sufficient to cause personal intimidation (R v
Butcher [1986] VR 43).
Seeking to put a person in fear of the use of force
12. It is not necessary for the victim to have actually feared that s/he or
someone else would be subjected to force for this element to be met.
It will be met if the accused “sought” to put the victim in such fear,
even if that attempt was not successful (Crimes Act 1958 s75(1)).
“Immediately before or at the time of theft”
13. The accused must have used force, or put or sought to put the victim
in fear of the use of force, “immediately before or at the time” of the
theft (Crimes Act 1958 s75(1)).2
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This requirement replaced the former common law requirement that the
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14. This element will therefore not be met if the force was applied, or the
fear induced, after the property was appropriated (R v Foster (1995)
78 A Crim R 517 (NSWCCA)).3
15. An act of appropriation may be a continuing act. If the accused used
force, or put or sought to put the victim in fear of the use of force, at
any point in time prior to the appropriation being complete, this
element will be satisfied (R v Hale (1978) 68 Cr App R 415).
16. If there is an issue about whether or not the appropriation was
already complete by the time the accused used force, or put or
sought to put the victim in fear of the use of force, it is for the jury
to determine when the appropriation was complete (R v Hale (1978)
68 Cr App R 415).
Victim may be “any person”
17. It is not necessary for the victim to have been the subject of the use
or threat of force. This element will be met if the accused used force
against any person, or put or sought to put the victim in fear that
another person would be subjected to force (Crimes Act 1958
s75(1)).
18. A “person” must have been the subject of the use or threat of force
(Crimes Act 1958 s75(1)). It is therefore not sufficient to prove that
force was used or threatened against property.4 However, if the
accused, by the (threatened) use of force against property, puts (or
seeks to put) the victim in fear that s/he or another person will
themselves be subject to the use of force, this element will be
satisfied.
Conduct was committed “in order” to steal
19. The third element requires the prosecution to prove that the force
was used or threatened “in order to” carry out the theft (Crimes Act
1958 s75(1)).
20. In determining whether this element is met, the jury must consider
the accused’s purpose when s/he committed the relevant acts. S/he
must have committed those acts so that s/he could steal.
property must have been taken from, or in the presence of, the victim of the
violence (see, e.g., R v McNamara [1965] VR 372). There is no reason to believe
that this “presence” requirement is preserved in the statutory offence.
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The accused may, however, be guilty of another offence, such as assault.
Where force is used or threatened against property, the accused may be guilty
of another offence, such as blackmail (Crimes Act 1958 s87).
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21. This test differs from the former common law test in two ways:

It does not require proof that the force, or the threat of force,
caused the victim to part with the property taken (see, e.g., R v
Foster (1995) 78 A Crim R 517 (NSWCCA)).

It does not require the force to have been used for the purpose
of overpowering the party robbed (rather than simply using the
amount of force necessary to get possession of the property)
(see, e.g., Hood v The Queen [2000] WASCA 98).
22. As the purpose of the use or threat of force must have been to
commit theft, this element will not be met if the accused used, or
threatened to use, force upon the victim for a different reason, but
upon seeing an unanticipated opportunity created by his or her
actions, stole the victim’s property.
Defences
23. Any defence to theft will also be defence to robbery. For example, as
an honest belief in a claim of right to property is a defence to theft
(see Theft: Bench Notes), it is not robbery if the accused honestly
believed in his or her entitlement to take the property (R v
Skivvington [1968] 1 QB 166).
24. For a claim of right to succeed, the accused does not need to have
believed that s/he had a legal right to appropriate the property by
the use of force. S/he merely needs to have believed that s/he had a
legal right to appropriate the property. The use of force was simply
his or her means of achieving that goal (R v Skivvington [1968] 1 QB
166; R v Robinson [1977] Crim LR 173. See also R v Salvo [1980]
VR 401; R v Bedford [2007] SASC 276).5
Alternative offences
25. A robbery charge expressly includes an allegation that the accused
committed theft. This means that if the jury finds the accused not
guilty of robbery, they may find him or her guilty of theft (Crimes Act
1958 s421(2)).
26. For more information on when to instruct a jury about alternative
offences and verdicts, see Bench Notes: Alternative Verdicts.
In such circumstances, the accused may be convicted of an offence relating to
the violence used (R v Bedford [2007] SASC 276; R v Salvo [1980] VR 401).
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