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[2013] NSWSC 1607
Supreme Court of NSW
2013-10-25
Barr AJ
Original judgment source is linked above.
Judgment 1This is an appeal under s 56 (1)(c) Crimes (Appeal and Review) Act 2001 against an order made by a Magistrate dismissing a summary charge brought against the defendant, Tamika Jade Trudgett. The right to appeal exists only on a ground that involves a question of law alone. 2The defendant was charged with breaking and entering a residence and stealing property contrary to s 112 Crimes Act 1900. Briefly, the prosecution case was that the defendant and her friend Sara Mitchell decided to steal goods from a dwelling house in Dubbo. They knew the house, having previously lived there. They had in mind a particular room in the house, occupied by a resident whose property they considered worth stealing. They intended to try to sell whatever they could steal to raise money to buy drugs. 3Unfortunately the Magistrate's findings of fact were incomplete and imprecise. The evidence was capable of proving that these things happened. The defendant was driving her car. She took Mitchell and herself to the vicinity of the house. They arranged that Mitchell should enter and steal whatever she could and that the defendant should remain nearby in the car, ready to take them both away when the time came. Mitchell entered the house through a window and went to the door of the room they had in mind. It was locked, so Mitchell left the house and telephoned the defendant, who told her to wrap something around her fist and break a window to get into the room. The room had its own bathroom. Mitchell broke the bathroom window, entered the bathroom and gained access to the room where the desired property was. She stole property and called the defendant by telephone. The defendant responded and drove the two away from the scene. 4Mitchell pleaded guilty before another Magistrate to one charge of breaking, entering and stealing. Her legal representative told the court that she would give evidence against the defendant. She was convicted and made subject to a bond. 5Mitchell gave evidence against the defendant and there were these questions and answers: Q. Now I'm going to ask you to remember back to 12 October 2011. On that day you were with Tamika Trudgett? A. Yes Q. And something happened that day? A. Yes. Q. And can you tell the court what happened? A. Break and enter. Q. When you say a break an enter can you just describe to the court exactly what happened? A. I broke into a house I can't remember what the address was but yeah I broke into a house that day with the help of Tamika Trudgett. Q. Now do you remember what time of the day that was? A. It was after lunchtime. Q. After lunchtime? A. (No verbal reply) Q. Now can you tell the court how you came to be at the house and what happened once you got there and what happened afterwards? A. Well I can't really remember how we come up with the plan but we were struggling with money we'd both previously been living at the premises and the only thing I can really remember is driving up to there Tamika dropped me off just down the road from it, from the house, I went into the house and- Q. I just stop you there. You said that you weren't sure how we came up with the plan, when you say that what do you mean by? A. The break and enter. Q. Okay and what do you mean by we? A. Tamika and I. Q. And why do you say you can't remember why how we came up with a plan? A. I can't remember who come up with the plan I don't. Q. You said that "We were struggling for money" is that right? A. Yes. ... Q. So when you say you were struggling with money, yourself and Tamika were struggling for money? A. Yes. Q. Were you living together or were you just friends or what was the? A. We were both living together at the time. Q. Yes? A. Yeah we were friends for about three months. Q. You were friends for three months or you were living? A. Living together about two months and friends for about three months, for three or four months. Q. And you said that you said "We were living in that house" which house is that? A. The house that we -I broke into. Q. Now so you said you can't remember "how we came up with the plan" do you remember any conversation about it? A. No. Q. And you say that you can remember driving up there? A. Yes. Q. What can you remember about driving up to the house? A. We - Tamika was driving I was in the passenger seat- Q. Yes? A. --drove up to the premises about four maybe five houses away from it-- Q. Yes? A. --and she said to me "When you've finished call me and let me (sic) when to come and pick you up". Q. And what did you do then? A. I got out of the car and went to the house. ... Q. So she said "When you finish"-- A. Yes. Q. --okay what - did you know what she meant by that? A. Yes. Q. And what did you think she meant by that? A. Well it was spoken - we both spoke about it as we drove up there about breaking into the house and getting anything that we could to get some money-- Q. Okay? A. -and so yeah. Q. So when you say you spoke about it, do you remember what was said? A. Not exactly. Q. Okay well not exactly, but what is your memory of what was said? A. I really cannot remember what exactly was said. Q. Okay but you said "That we spoke about it" what did you speak about? A. Just that I need to get something, anything to get us a bit of money. Q. You needed to get "something anything to get us a bit of money", is that right? A. Yes. Q. What was the money for? A. Drugs. Q. And so when Tamika said "When you finish give me a ring"-- A. Yes. Q. -- was that in reference to the conversation you'd had on the way up? A. Yes. ... Q. Now when you've said that the car was stopped I think you said four or five houses away-- A. Yes. Q. -- why was that? A. Actually I don't know why she stopped four or five houses away but it was I don't know maybe so people wouldn't see the car. Q. And she said "When you're finished give her a ring"? A. Yes. Q. And you got out of the car, is that right? A. Yes. Q. And what did you do then? A. I went to the house. Q. And what happened then? A. I climbed in one of the bedroom windows and went to the room where the girl that was staying in the door was locked so I went back out of the house and rang Tamika because I didn't know what to do-- Q. Yes? A. -- she told me to wrap a towel around or something around my hand and smash a window open so I could get in-- Q. Yes? A. -- so I did that and then went into the house I grabbed whatever I could see then when I was finished I called Tamika and she come and picked me up from the front door. Q. So when you say "Tamika said to wrap a" did you say a towel? A. Wrap my hand-- Q. Wrap your hand A. Around the towel or shirt something so that I wouldn't get yeah wouldn't get glass in it or anything like that. Q. And you said you did that? A. Yes. Q. And you smashed a window you said? A. Yes bathroom window. Q. Bathroom window? A. Yeah. Q. And after you smashed the bathroom window what happened then? A. I climbed in. Q. Climbed in? A. Climbed in it yeah. Q. And you mentioned taking things? A. Yes. Q. Do you remember what you took? A. There was two laptops, a camera and some clothes. Q. And you then said that you rang Tamika again? A. Yes. Q. Where were you when you rang Tamika? A. At the front door inside the house. Q. At the front door inside the house? A. Yes. Q. And do you remember what that conversation was? A. All I said to her was that she had to come and pick me up that I'd finished getting what I needed to get-- Q. Yes? A. --and then she yeah basically - she appeared within three, maybe four minutes. 6Mitchell went on to say that they had sold the computers for about $700 and had used the money to buy fuel for the defendant's car, cigarettes and speed. 7The defendant was interviewed by the police and a typed transcript came into evidence. There were these questions and answers: Q3 O.K. Tamika, as you're aware I'm making inquiries in relation to a break and enter that occurred at XXXXX Dubbo yesterday being the 12th of October 2011. Do you understand that? A Yes. Q4. As I've explained to you over the course of the investigation you don't have to say or do anything if you don't want to but anything you say or do is being recorded on this handheld recorder and may be used in evidence. Do you understand that? A. Yeah. Q5. Tamika, do you agree earlier this morning I had a conversation with you on the telephone? A. Yes. Q6. And you told me during that conversation that you were present when this break and enter occurred? A. Yes. Q7. O.K. And do you agree that as a result of that conversation you attended Dubbo Police Station with Sara? A. Yes. Q8. And you had a further conversation with me that was recorded electronically on this handheld recorder? A. Yes. Q9. Do you agree you were then brought back out to the custody officer and you were introduced to Sergeant Stephens? A. Yes. Q10. And he read you your rights titled, Part 9 of the Law Enforcement Powers and Responsibilities Act? A. Yes. Q11. Do you understand your rights? A. Sort of. Q12. Yes? What don't you understand? A. I don't really know. Q13. Yes? A. All of it. Q14. All of it? Do you understand that you don't have to say or do anything if you don't want to? A. Yeah. Q15. And so that means you don't have to talk to us if you don't want to. A. Yeah. Q16. Do you understand that? A. Yes. Q17. Are you happy to talk to us? A. Yes. Q18. Are you happy to tell us what happened? A. Yes. Q19. O.K. And you understand that by telling us what happened that can be used at court in the future? A. Yes. Q20. Do you understand that? A. Yeah. Q21. Do you agree that Sergeant Stephens gave you the opportunity to speak with the Western Aboriginal Legal Service - A. Yeah, yeah. Q22. - - - on the telephone? A. He did. Q23. Yes? Did you want to speak with them? A. No. Q24. O.K. And why is that? A. I just don't want to. Q25. O.K. So they are the people that could explain anything else that you don't have any questions about - - - A. Yeah. Q26. - - have you got any questions about your rights that you didn't understand? A. No. Q27. O.K. So you understand what's happening here at the moment? A. Yeah. Q28. O.K. Has anyone threatened you to take part in this interview? A. No. Q29. Has anyone promised you anything at all to take part in this interview? A. No. Q30. Has anyone said anything at all to you to make you take part in this interview? A. No. Q31. O.K. And you agree that I told you from the outset after what you told me in the front interview room that you wouldn't be being charged - - - A. Yes. Q32. - - - with this matter? A. Yes. Q33. Regardless of what you say in this interview? A. Yeah. Q34. O.K. Tamika, what can you tell me about the break and enter that occurred at XXXXXX yesterday? A. We dropped Sara off and she went in, it would've been about 10 minutes -- Q35. Yes? A. --15 at the most. She rang us to come and pick her up at the front of the house, she walked out with the two laptops and the camera. Q36. Yes? A. And we got in the car and just drove back to, like drove around and they fiddled around with everything. Q37. Yes? A. Then we went back to Narromine and by last night the camera and computer were gone. Q38. Yes? O.K. So-- A. l didn't have a part in this other one. Q39. - - - O.K. So I just want to speak to you in a bit more detail about how this all happened yesterday. A. Yeah. Q40. What time did this break and enter occur? A. It would've been afternoon, school kids were getting off the bus. Q41. O.K. And how did you guys get to the house? A. We drove. Q42. And what did you drive? A. Toyota Camry. Q43. O.K. Whose car is that? A. Mine. Q44. O.K. What year model is it? A. '98 I think. Q45. O.K. Do you know the rego of it? A. No. Q46. No? Is the car registered in your name? A. Yes. Q47. Yes? And do you own it outright? A. Yes. Q48. O.K. So where did you drop Sara off at? A. I dropped off, off the corner of, yeah XXXXX and that other street there --- Q49. Mmm. A. ---I don't even know what it's called, it goes straight up - - Q50. Yes? A. --- and yeah and then I just went up, did a loop and went around the block a few times. Q51. O.K. What did you think Sara was doing when she went up there? A. I knew she was going to get something I just didn't really know what she was getting. Q52. O.K. A. I thought she was more getting jewellery than - - Q53. Mmm Mmm. A. --- laptops. Q54. So when you say you knew she was going in to get something was the stuff she was going in to get hers or - - - A. No. Q55. --- no?---So did you know she was going in there to steal stuff? A. Yeah. Q56. O.K. And how did you think she was going to get into the house? A. I have no idea and usually when we used to live there they used to leave it unlocked all the time. Q57.Yes? A. So - -- Q58. O.K. And you said you used to live there? A. --- yeah. Q59. How long ago did you live there? A. We lived there together in June. Q60. Yes? A. We left to go to Jindabyne. Q61. Yes? A. And we came back and moved in probably 3 weeks ago. Q62.Yes? O.K. And what was the arrangement for living there? A. $110 for the room a week. Q63. Yes? And how did you get on to that? A. It's the same place we were before. Q64. So how did you get on to that originally? A. The paper. Q65. --- the paper? A. Yeah. Q66.Who else lived there with you? A. Sara lived with me. Q67. Yes? A. The girl that owned all the stuff, she was never there, I don't really know her. ... Q78. Yes? O.K. Can you describe--- A. --- Q79. ---the property for me? A. There was a Dell one, they're both Dells, one's grey and missing a few buttons. Q80. Yes? A. And the other one's a Dell as well with a flower screen thingy - Q81.Yes? A. ---colour. Q82. OK. What colour is it? A. It's like a pinky --- Q83. Yes? A. ---flower thing. Q84. And what else was taken? A. A camera. Q85. Yes? A. I have no idea what sort of camera it is. Q86. And what sort of colour is it? A. It was black. Q87. Anything else? A. I don't know what. Q88. No? Did you see any clothes? A. There was a couple of pairs of shorts. Q89. Yes? Anything else? A. Not that I know of. Q90. O.K. And so what did you do after the break and enter? A. We drove around and went and parked down the river... Q91. Mmm Mmm. A. --- and then went back to--- Q92. O.K. And where did you take the property to? A. We took it to Josh's house. Q93. And what's Josh's last name? A. McCauley. Q94. Yes? And then what happened? A. And then Sara dealt with it from there. Q95. So what do you mean Sara dealt with it? A. She went and sold it. Q96. O.K. A. I stayed at Josh's house. Q97. And what did Sara say she did with the property? A. She said she sold it. Q98. Yes? Do you know for how much? A. Not really no. Q99. No? Did she have any money yesterday? A. No. Q100. Did Sara have any money yesterday? A. No. Q101. Did you have any money after Sara came back? A. A little bit. Q102. How much? A. --just came back with some money and some gas. Q103. And some gas? A. Yeah. Q104. So what do you mean by that? A. Some speed. Q105. Yes? A. I don't know how much it's worth I don't know much about it. Q106. O.K. A. Just - -- Q107. And did you get any of that stuff? A. ---we had some of the gas this morning. Q108.Yes? Did you get any of the money? A. No. Q109. Where is the money now? What's left of the money? A. Gone. Q110. Gone? Where did it go? A. We just, I didn't get any of it, went to put fuel in the car and Q111. Yes? A. --- fuel and stuff yeah wasn't very much money. (Emphasis Added) 8The statement of the occupant of the room was tendered. It contained these paragraphs: I have been residing at [xxxx] Dubbo for about one and a half years. I rent a room from [name]. About 9.45am on Wednesday 12th October 2011 I left for work. I rent the front bedroom which has an ensuite. I have a lock on my bedroom. About 5.45pm on the same day I returned home from work. I opened the front door and unlocked my bedroom door, when I noticed my Dell XPS laptop was gone. I left my laptop on my bed before I left for work. I looked for my other laptop which was a Dell XPS and I realised it was also gone. I knew then someone had broken into my room. The newer XPS its like a red/pink in colour. I opened my bathroom door and I saw the glass window above the toilet had been smashed and entry had been gained. There were blood droplets on the toilet seat and tiles. I contacted [name] the owner of the house and advised him my room had been broken into. After I called [name] I looked around and realised my SLR camera (Canon ESOS 450P) had been stolen and had an extra lens which was still in the box. It is a Canon EF Zoom lens (22.55mm). The camera is worth $2000 the laptops I bought one for $2000 and the other was around $2200. 9Mitchell was cross-examined. She agreed that her solicitor had told the Magistrate who heard her case that she would give evidence against the defendant. She supposed that that might have gone in her favour. She agreed that she and the defendant were no longer on good terms. Surprisingly, in view of what the defendant had told the police in her interview (cf. QA 51-55, 67) it was put to Mitchell that the defendant did not know that Mitchell was going to the house to steal and that Mitchell had told the defendant that she, Mitchell, was going there to collect property she had left there. Unsurprisingly, Mitchell denied those suggestions. She repeated that although she could not remember in detail the words used, there was a plan to steal from the house. It was put to her that she had not spoken to the defendant before breaking the window. She reiterated that she had. 10The hearing began on 21 June 2012. The solicitor for the defendant objected to the tender of several pieces of evidence, including a transcript of the defendant's interview with Detective Sergeant Scott and a statement of Mitchell. The objections took a long time to deal with. On 23 October 2012 his Honour decided to admit the transcript but to reject Mitchell's statement. Accordingly her only evidence was that which she gave orally. The hearing began but was adjourned part heard to 31 January 2013. At the conclusion of evidence Counsel began to address and there were these exchanges between the police prosecutor, Mr Lawrence, for the defendant, and his Honour: PROSECUTOR: Your Honour the prosecution case is case of joint criminal enterprise ultimately your Honour. Your Honour is well aware of Tangye authorities in relation to joint criminal enterprise. In my submission your Honour the evidence is clear that there was certainly an agreement between the parties to commit the break and enter, to obtain items for profit in order to buy things for themselves. Your Honour has before you the evidence contained within the interviews. Your Honour I note in the interview with the accused she is asked clearly that whether she was aware at the time or prior to Miss Mitchell entering the house - I don't have the page number I do apologise your Honour - she is asked whether she was aware that Miss Mitchell was going to break into the house and she replies "Yes". ... In addition to that your Honour the evidence of Miss Mitchell is quite clear that it was something that had been planned on the way, if not before then certainly on the way to the property and she's given evidence of the accused's involvement. Your Honour of course the commission of any element by one person under a joint criminal enterprise is committed by both persons. That is a paraphrasing of course but that is the relevant principle. On that basis the evidence before you is that Miss Trudgett participated in conveying Miss Mitchell, picking Miss Mitchell up, assisted her in the method of entry, assisted her in disposing of the property afterwards and was certainly involved at all levels and at all times. Your Honour the evidence of Miss Mitchell is of course crucial to the prosecution case. Your Honour had an opportunity to view Miss Mitchell giving that evidence first hand in the box. That evidence your Honour, I would submit, is evidence that you would accept. It was given in a clear calm concise manner. It was given in a thoughtful manner. There was no attempt to hide her own involvement. There was no attempt to hide her use of drugs at the time and previously. She responded clearly without hesitation to matters which perhaps may have placed her in a bad light if I can put it that way. She was, in my submission, a witness of truth and your Honour would accept her evidence. Given her evidence, given the admissions contained in the records of interview your Honour in my submission the prosecution has proved and proved beyond a reasonable doubt the case before you. ... LAWRENCE: Thank you your Honour. Your Honour first it's my submission that my friends put it a little bit high when he suggests that the answers on p 5, 55 and 56 demonstrate knowledge of a plan to break, enter and steal. I think that was the phrase that he used. Though your Honour the answers are actually, "Q55. So did you know she was going in there to steal stuff? A. Yeah. Q56. Okay and how did you think she was going to get into the house? A. I have no idea and usually when we used to live there they used to leave it unlocked all the time." So your Honour not in my submission direct evidence of knowledge of the intention to break certainly. ... HIS HONOUR: What do you say the situation is if - the situation was is that I remember I limited the first interview which is the one that occurred with Sara Mitchell, on the basis that it was what informed the police decision to then arrest and there are all sorts of issues that were raised about that decision and those have all been decided. As it turns out its fallen against your client. But the question now is, is it on the basis of joint criminal enterprise if I were not to believe Sara Mitchell about the agreement to break into the house. The evidence of admissions in this record of interview only goes to an enter enclosed lands and a stealing, but not to the eminent breaking. LAWRENCE: That's the submission your Honour. HIS HONOUR: So if I was to be uncertain on the standard of criminal responsibility in relation to an agreement to break because I, for example, only have the evidence of someone who I must give myself directions about because they're criminal involved, then would you say that I would find your client not guilty? LAWRENCE: Yes your Honour. And that your Honour flows, in my submission, from the fact that the prosecutor has put his case as that of principal in the first degree. HIS HONOUR: Yes. LAWRENCE: Not your Honour on the basis of extended joint criminal enterprise or common purpose. And your Honour the submission about Miss Mitchell is that you wouldn't accept her beyond a reasonable doubt. Your Honour in addition to the things that you've averted to which I won't repeat I'd also ask you to take into account the fact that she was somewhat evasive in my submission on the question of assistance. Initially your Honour seeming to indicate that she wasn't aware that these matters will go in her favour but then eventually agreeing that she told her lawyer those things and he told the court those things because they would stand in her favour. Your Honour she has admitted that it was my client who ended the friendship and that was- HIS HONOUR: Look you can take it that I have doubts about the agreement to break so the question then becomes a legal one as to the extent of the joint criminal enterprise so I'll need to hear from the prosecutor about that. I mean it's - yes so Mr Prosecutor it's a situation assuming that there are difficulties because of the directions I must give myself in relation to the evidence about the agreement to break which you've just heard me address Mr Lawrence about. What do you say about whether I can be satisfied of that element in relation to the offence charged in terms of a joint criminal enterprise? 11His Honour read out the terms of the direction deriving from R v Lowery (No 2) [1972] VR 560 and cited with approval by Hunt CJ at CL with whom McInerney and Sully JJ agreed, in R v Tangye (1997) 92 A Crim R 545 at 557, commonly given to juries where the Crown relies on the principles of joint criminal enterprise. Then the debate continued: So there's a distinction between that example given that I've just read out and this example because that example involves everybody having formed a view because of the appearance of the house because of the newspapers out the front. The only direct evidence I've got is from Sara Mitchell but otherwise the admission of Miss Trudgett is to going to the house maybe to steal items but not with the element of breaking in that admission. PROSECUTOR: Well with respect your Honour my reading is not quite so clear in that regard. HIS HONOUR: Okay well what do you say. PROSECUTOR: That admission, looking at the questions and answers as a whole, at 54, "Q54. So when you say you knew she was going in to get something was the stuff she was going in to get hers or- A. No. Q55. No. So did you know she was going in there to steal stuff? A. Yeah." HIS HONOUR: Yes well that's - there's no difficulty about entering and stealing. The question is as to break. PROSECUTOR: Correct. The question is then, "How did you think she was going to get into the house?" and the answer is, "I have no idea and usually when we used to live there they used to leave it unlocked all the time." An unlocked house is not necessarily, even if it had been unlocked, is not necessarily a house which is wide open. Unlocked- HIS HONOUR: I've got to say I've got to look this up again. In terms of breaking- PROSECUTOR: An unlocked door which needs to be opened is still a break and enter, or still a break. LAWRENCE: I concede that your Honour. HIS HONOUR: Right well. The opening of an interior closed door is sufficient. And breaking to unlatch the window if the window is opened sufficient. A constructive breaking occurs when entry is obtained by fraud or threats or by the use of a key which the person is not entitled to use. I don't think it goes so far as to say breaking involves opening a door, an external door which was unlocked does it. Well it's an important distinction as turns out. Break means forcibly gained access. It is not breaking to walk through an open door. There's no definition of breaking in the Crimes Act. It's not breaking to open an already open window. Raising of a door, flat door. Opening a window which is shut but unlocked or lifting a latch or loosening any other fastening is being found to be a break. I don't think opening an unlocked door is a break. External door. PROSECUTOR: Your Honour as to, I have as to breaks, breaking may be actual or constructive. Actual breaking is where the security of the house is infringed though there need not be any actual breaking of any object. It's not breaking to further open a door which is partly open but the opening of an interior closed door is sufficient. HIS HONOUR: One would have thought that if the law was at the position that opening an external unlocked door was a breaking then it might have been made clear. Surely that's not asking for too much. The raising of a flap door, 1833 case, The Queen v Russell. What is a flap door, is that door in the floor I presume. Opening a window which is shut but unlocked. All right. All right there's a case of R v Lackey - sorry R v Brown, to open a shut but not locked door or window and is a breaking. Authorities for those propositions are discussed by Simpson J in the Court of Criminal Appeal case of Stanford v R (2007) NSWCCA 370. Well in that case the legislature was invited to consider reforming s 112 of the Crimes Act (NSW) which is what we're dealing with here. Simpson J said for example, "Well it hardly accords with the modern approach to criminal law to regard a breaking as identified in the authorities as criminal while taking advantage of a partly ajar door or window does not constitute a breaking. Any entry to a domestic or business premises for the purpose of committing criminal offences ought to be subject to the same criminal sanctions. Perhaps it is time s 112 attracted the attention of law reformers." This in the context of having discussed the fact that Smith is still good law which is a case which requires there to have been - well it suggests that to open, further open an already opened window not so secured is not breaking. All right. Well yes sorry Mr Prosecutor I think that the legal position as I see it is the law hasn't changed since this case. ... I'm happy to - I'll give you some time if you need it, the matter's gone on for a long time now, I'd like to finish it today but it appears that we're going to have some time today. I'm happy to stand the matter down for an hour for this to be considered. I think it's an important point, but I have to say on the face of it from what I've seen I have difficulties seeing how you can overcome of it. PROSECUTOR: This is the issue of break your Honour? HIS HONOUR: The issue of break. I mean it requires me to have formed a reasonable doubt about the evidence of Sara Mitchell, which I can tell you now I have, that is that because she's a person - because of the directions that I must give myself about her being a person who is criminally involved in the proceedings and because there's no other evidence of an agreement about that element then I will - I have a doubt about it at this time. That is that Miss Trudgett may have had the view that they could go to the house because the house was always left open and therefore Sara Mitchell could enter the house easily because it was always left unlocked but with the doors closed. So the question then becomes if that's true - if that's the factual position I'm in on the standard - criminal standard of beyond reasonable doubt, this not being a civil case of course which would be different, then would that constitute a break and enter to have an agreement to go to a house which might be left unlocked. And the state of the law it doesn't look like it can be, but I'm happy to be corrected if I'm wrong. PROSECUTOR: Thank you for that time your Honour. As I understand it your Honour there was two propositions your Honour was considering. If I might turn firstly, the proposition your Honour raised in relation to whether a closed but unlocked door constituted a break. I don't have a case your Honour. What I can hand up is a printoff from Thomson Reuters from the commentaries. I've shown my friend. I have a copy for him if he requires. If I could draw your Honour's attention, the second paragraph, there is a breaking of a door or window which, without being fastened, was completely closed. That comes from a 1799 case of R v Brown, as your Honour can see it's subsequently affirmed in a number of decisions. Most recently in Galea v R which is a 1989 English case as I understand which I was not able to print off a copy of. HIS HONOUR: Yes. PROSECUTOR: That your Honour I rely on in my support for the submission that even if the house was unlocked, if in fact a door had to be opened in order to gain entry, then that constitutes a break. HIS HONOUR: Commonsense would suggest that's right but I don't think that's what the law is unfortunately. Yes, but I hear you, I hear your submission. Yes all right. PROSECUTOR: I can't take it any higher than those cases your Honour. HIS HONOUR: No well none of us are assisted by nothing being directly on point really are we. All right. PROSECUTOR: I could only - in addition to that sorry your Honour the case Hyams where to raise a closed but unfastened window I would submit is sufficiently similar to, in my submission, to support it, and I think a matter or case your Honour has already referred to, to raise a cellar flap that is kept down only by its own weight, it's a case of Russell which was an 1833 case which in my submission also supports the proposition. HIS HONOUR: Yes all right. Thank you for that. Well that's really the major issue that I've got in relation to the matters, if you follow the chain of logic that I've expressed through in relation to the witness Sara Mitchell. That being the main evidence in relation to what is alleged as a common, joint criminal enterprise. PROSECUTOR: Is your Honour satisfied in relation to, if that issue of the break is overcome is your Honour satisfied as to joint criminal enterprise or do you wish to be heard further. LAWRENCE: Look I had some further submissions on that point your Honour also, just before any firm view is expressed. HIS HONOUR: About the break? LAWRENCE: No on the issue of agreement. HIS HONOUR: All right well I don't know if we get to agreement because I don't think there's been a break. PROSECUTOR: May it please the court. HIS HONOUR: I don't think, I don't think that is that the - let me be specific. I don't think that there is any evidence apart from that of Sara Mitchell which I can't accept on the criminal standard that there was an agreement for a break to occur in light of the fact that Miss Trudgett was of the view that the house was generally left opened, that is unlocked but with doors closed. I take it to mean that is not actually expanded upon but that's what it would - I think that's the only inference that I could draw. LAWRENCE: Your Honour the only submission that I would make in relation to that, just in case your Honour's minded to express some views in the alternative, your Honour is that even if you were satisfied, speaking hypothetical, is that it was a break to open an unlocked but closed door, in my submission you wouldn't be satisfied in any event beyond a reasonable doubt of an agreement that she had turned her mind sufficient to form an agreement to open a closed but unlocked door. HIS HONOUR: Maybe a longer bow to draw but still on the same trajectory. Yes all right yes. LAWRENCE: Your Honour the other submission is that if you weren't prepared to act on the evidence of Miss Mitchell that while you might certainly on the admissions find that assistance was rendered, that you wouldn't however be able to find beyond reasonable doubt an agreement to steal either, or your Honour she might be an aid and abetter through with knowledge driving the perpetrator to the scene but your Honour the submission is that's not the same thing as forming a joint agreement to commit an offence and your Honour this has been put as a case of a principle in the first degree so it is necessary of course to prove a joint agreement to commit the crime together and your Honour that is a different thing from aiding and abetting conduct which is what I understand to be principle in the second degree. So if your Honour's minded to make those sort of findings in the alternative those are the two that I would also seek that the court find. HIS HONOUR: Yes. PROSECUTOR: Your Honour on the same vein your Honour, if I may just - and I'll keep it brief. In relation to joint criminal enterprise I can hand up a case of Tangye ... it's an unreported decision of 8th and 10th of April 1997. I refer to the decision of Hunt CJ, Chief Justice at Common Law. It's at 556 your Honour. He outlines what he believes should be the jury directions which as I understand it is accepted and settled as directions in relation to joint criminal enterprise. Your Honour at point 2 at the bottom of the page he makes the point that, "The joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express and its existence may be inferred from the all the circumstances." ... HIS HONOUR: Look I'm not at all worried about that aspect of the case. I don't get there on my current position but if the element in relation to the break was made out I would be satisfied that there had been a joint criminal enterprise by way of inference in the case so I don't need to hear from you any further in that regard. PROSECUTOR: The only other point I would make your Honour is in her interview at questions 51 and 52, the formal interview with Miss Trudgett, she makes reference that she thought Miss Mitchell was going to get jewellery. She also makes reference that the only persons who resided in the house apart from her and Miss Mitchell were a male called Bernie, a female whose name she didn't know and she couldn't give any further details of. The female provided a statement as to victim [Name]. Her statement at para 3 says that she's lived there for one and a half years and therefore encompassing the time that both the accused and Miss Mitchell lived there. At para 4 she states, "I have a lock on my bedroom", therefore there is a lock on the internal bedroom. Miss Trudgett's indicated jewellery as being the target of the property, she thought that it was jewellery that was going to be obtained. Your Honour the only other submission I could make is the inference could be drawn that it was to obtain the jewellery from the female's room which she would have known to have been locked as it had been locked the entire time that she resided there or had a lock on the door. It's an internal door. Your Honour has case law supporting the proposition that to open an internal door is a break. That would be the only other submission I could put if your Honour was not satisfied as to the house itself being- HIS HONOUR: All right so that because it was jewellery that was the subject of the alleged stealing is evidence that there is jewellery in a room that was locked. PROSECUTOR: Your Honour- HIS HONOUR: It might have been locked, they had a lock on the door. PROSECUTOR: Had a lock on the door your Honour. HIS HONOUR: A long bow too isn't it. Meaning the door may or may not being unlocked for...(not transcribable). I hear what you say, it's possible. PROSECUTOR: I simply place that before you. It goes to the overall inference of being aware that - but if your Honour is against me in relation to an unlocked door- HIS HONOUR: I'm afraid I am. PROSECUTOR: -not being a break then- HIS HONOUR: I'm conscious of the fact that- PROSECUTOR: -I can't take it any higher. HIS HONOUR: All right, all right thank you very much. I don't think need to hear from you any further I don't think Mr Lawrence. 12His Honour gave judgment thus: HIS HONOUR: In the matter of Tamika Trudgett, Miss Trudgett was charged with breaking and entering a house and stealing therein. The case has been unusual in any number of respects. Firstly Miss Trudgett and Sara Mitchell the co-accused attended to police having decided to come forward about having committed the break and enter and there is certainly ample evidence that Sara Mitchell was involved in the break and enter, she has in fact been sentenced and already given evidence about it. Tamika Trudgett's role seems to be at first blush fairly clear, which was that she was the driver and was involved in some way or means in the discussion about what they were going to do. They were both needing money for amongst other things, the use of amphetamines at the relevant time. In any event admissions have been allowed into evidence despite a raft of objections which were very ably argued but quite complex to decide over a number of days and there is evidence certainly before me that Miss Trudgett by way of admissions was the driver and that she knew that Sara Mitchell was proposing to steal items from the house. At the very last moment it has become clear - to me at least at the very last moment - that there might be an issue in relation to the matter because of the element of breaking entering and stealing of breaking. It is said that Miss Trudgett is a principal in the first degree in a joint criminal enterprise to break enter and steal the premises. Miss Mitchell of course has given evidence that she was involved in the discussion at the beginning, in the driving and indeed into advising her how it was best to enter the premises when she found the door of the house locked. And if I was to accept Miss Mitchell's evidence on the stand beyond reasonable doubt, which is of course the standard I must apply to all of the evidence of the prosecution in this criminal hearing in the Local Court, then I would certainly have evidence that Miss Mitchell was involved as a principal in the first degree. Miss Mitchell of course gave evidence in a manner which suggested to me that she was probably telling the truth, but I am not a human lie detector and the days of magistrates or judges for that matter are trying to apply their forensic skills to see wherever a witness is lying or not are I think probably largely behind us. It is a matter where I have to rely on objective evidence to see if the matter is proven beyond reasonable doubt, and it is a matter where of course Miss Mitchell is a person who is criminally concerned in matters. She received a benefit in relation to providing evidence for the prosecution in this matter in her sentence matter and indeed she has since this matter occurred fallen out with Miss Trudgett. There is absolutely no doubt that Miss Trudgett was involved in driving Miss Mitchell There is absolutely no doubt that she was involved in a joint criminal enterprise to steal property from the house, and indeed that that occurred and I note that she is also responsible for returning the property ultimately and for going forward to police. Which, apart from anything else, is as unusual as the fact that she came forward in the first place and suggests that she has a moral compass which it is irrelevant for me to go into, because the element of breaking in this case is not made out. The law is with respect ridiculous in this regard, as I think Justice Simpson alluded to in the decision which I have referred to earlier in this judgment. Unless the structural integrity of a building externally is interfered with, that is a door which is left open and unlocked but closed is opened, the current state of the law as I read it, having regard to the case of Smith and the line of authority which Justice Simpson refers to, that follows is that that does not constitute a break of a house. Consequently as that element cannot be "demonstrated to be within the contemplation of Miss Trudgett by evidence that I am prepared to accept beyond reasonable doubt, because in her record of interview with police she says that she thought that the house was generally left unlocked, and therefore it may have well be in her mind that Miss Mitchell could enter the house without legally breaking into it as the law currently stands. Then it is that the case of the prosecution must fail because that element remains unproven beyond reasonable doubt. I should add that my decision of course is depended upon firstly my apprehension of the element of breaking being correct. And secondly my correct apprehension of that Miss Mitchell's evidence cannot be accepted beyond reasonable doubt even though I am inclined to the view that she was probably telling the truth on the civil standard. This is a criminal prosecution, the onus is on the prosecution to prove all of the elements of the offence including the offence of breaking on the standard of beyond reasonable doubt and until the legislature contemplates what it is that is meant by that and the Common Law remains as it stands it cannot be proven in this case that such an offence has occurred because of the absence of that element. Consequently Miss Trudgett is acquitted, not guilty.
The Identification of Error 13In this Court, Senior Counsel for the defendant accepted that his Honour erred and there was no substantial disagreement about the manner in which the case miscarried. 14The principal matter of concern to his Honour was whether the breaking that undoubtedly occurred, that of the bathroom window, fell within the scope of the joint criminal enterprise of the defendant and Mitchell. His Honour erred in diverting himself instead into a consideration of whether opening a closed but unlocked door, something that never happened, would have constituted a breaking. 15In fact his Honour's view that to open a closed but unlocked door would not be to break was erroneous. In R v Walker (1978) 19 SASR 532, the Full Court of the Supreme Court of South Australia said this at 533: It is a breaking to push open a closed but unsecured door, or to open a closed but unfastened window. 16The result in R v Hyams (1836) 7 C& P 441 at 442; 173 ER 196 was to the same effect. That case was referred to by Simpson J, with whom Grove and Hulme JJ agreed, in R v Stanford [2007] NSWCCA370; (2007) 70 NSWLR 474. That was the judgment of Simpson J to which his Honour referred.
The Scope of the Joint Criminal Enterprise 17The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution: Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 614 at [37] per the Court, citing McAuliffe v The Queen (1995) 183 CLR 108 at 114; Gillard v The Queen [2003] HCA 64 (2003) 219 CLR 1 at [110] per Hayne J. In its simplest application, the doctrine means that "if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission": Gillard at [110] per Hayne J. However, as Hayne J observed in Gillard, the doctrine is not limited to the specific crime which the parties to the agreement intended to be committed. Quoting from the Court's earlier decision in McAuliffe, his Honour stated (at [111], footnotes omitted): '[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose'. The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And '[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement.' 18The culpability lies in participating in the joint criminal enterprise with the necessary foresight, consistently with the general principle that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it: McAuliffe at 118. 19The police prosecutor correctly referred his Honour to the statement of Hunt CJ at CL in R v Tangye at 556 -7 and would if permitted have gone further. Mr Lawrence, also, would if permitted have said more about joint criminal enterprise. Unfortunately, his Honour prevented the debate from continuing. The result was that his Honour failed to answer the question whether Mitchell's undoubted breaking fell within the scope of the enterprise. So the proceedings miscarried. 20His Honour appears to have accepted that the defendant and Mitchell had an understanding or arrangement that Mitchell would enter the house and steal. However, his Honour appears by his question to the Police Prosecutor to have considered that the scope of the agreement was limited by the evidence of what the defendant said in answer 56 of the interview, that when she and Mitchell lived at the house they "used to leave it unlocked all the time." That part of the answer to the question, whatever it meant, was relevant to the question his Honour had to answer, and its meaning was for his Honour to determine. But there was other evidence, namely:
The Disposal of the Appeal 22By s 59(2) Crimes (Appeal and Review) Act 2001 the Court may determine an appeal against an order referred to, inter alia, in s 56(1)(c) by setting aside the order and making such other order as it thinks just or by dismissing the appeal. Mr Nicholson SC submitted that the words "may determine" conferred a discretion to dismiss the appeal even after concluding that the order appealed from was vitiated by error. 23An ordinary result of a finding of error is a remittal to the Local Court to permit the proceedings to be heard and determined according to law. But that is not an inevitable result and there are instances where this Court, having found error, has for reasons it has stated declined to remit, for example, Director of Public Prosecutions (NSW) v Chresta (2005) 62 NSWLR 604 at [22]-[25] per Greg James J; Director of Public Prosecutions (NSW) v Fraser & O'Donnell [2008] NSWSC 244 at [24], [50]-[51] per Simpson J; Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265 at [17]-[18] per Rothman J; Maritime Authority of NSW v Rofe [2012] NSWSC 5 at [104] - [108] per Brereton J. 24In Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182, Sully J remitted a matter to the Local Court without finding it necessary finally to determine whether the discretion existed. His Honour was satisfied, however, that there was no discretion to dismiss an appeal, error having been shown, on the so-called ground of double jeopardy. 25In Director of Public Prosecutions (NSW) v Gramelis [2010] NSWSC 789 at [58], [59] Price J was not persuaded that the discretion existed but, in remitting the matter to the Local Court, stated that he would not in any event have exercised it. 26There are numerous other examples in which judges of the Court have remitted matters without deciding whether the discretion exists. 27The matters put forward by Mr Nicholson as justifying a dismissal of the appeal were these: (i)An appeal under s 56 is like a Crown appeal to the Court of Criminal Appeal against sentence. In such appeals it is accepted that there exists a discretion to dismiss an appeal even though the sentence is erroneously lenient. This is because the primary purpose of such appeals is to lay down principles for the governance and guidance of sentencing courts. As well, successful appeals bring with them an element of double jeopardy. Mr Nicholson referred to the remarks of the justices of the High Court of Australia in Green v The Queen [2011] HCA 49; (ii) The 2 year time lapse between charging and finalisation of this appeal; (iii)The stress experienced thus far by the defendant as the matter progressed before the Local Court - 15 months and 11 mention or hearing days; (iv)The initial co-operation by the defendant with the police, including returning the property and going forward to police; (v)As consequence of the defendant's action the victim's loss has been mitigated; (vi)The defendant had no prior dealing with police and was a person of good character; (vii)The defendant has had no subsequent dealings with police; (viii)The co-accused received a bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 for a duration of two years. Given the lack of prior dealings with police it is likely that the defendant would have been dealt with similarly. A significant portion of that bond would have expired by the time this appeal is finalised; (ix)The defendant was a young woman with no previous custodial experience; (x)The defendant was promised by police that she wouldn't be charged with this matter regardless of what she said in her interview [ERISP Q&A 31 -33]; (xi)Apart from some petrol and speed there was no other gain from her involvement in the offence [ERISP Q & A 110 -111]; The error made by His Honour did not come about as consequence of defence submissions - indeed the defence conceded that the prosecutor was correct in his submission of what constituted a break; and (xii)Mr Lawrence was unable to fully develop his arguments in respect of the absence of foresight of damage to property at the hearing in January 2013. 28Two of these matters call for particular comment. The first is the comparison with sentence appeals to the Court of Criminal Appeal. While every judgment on appeal governs the court appealed from and should provide guidance to that court, appeals under s 56 have not, as far as I am aware, been said to have the didactic quality contended for. I do not find attractive the contention that a successful appeal should not lead to a retrial on the ground that the retrial itself might be unfair or oppressive because of so-called double jeopardy. To allow the operation of such a principle would seem to me to strike at the reason why s 56 exists. I apprehend that it exists to allow the Court to put right what has gone wrong. I respectfully agree with the remarks of Sully J in Director of Public Prosecutions (NSW) v Wunderwald at [33]-[37] thus: [33] I have twice referred to a perceived entitlement "in principle" on the part of the plaintiff to some relief. That has been because of a submission put by learned counsel for the first defendant to the effect that the power conferred by s 59(2) of the Appeal and Review Act is a discretionary power akin to the discretionary power reposing in the Court of Criminal Appeal pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). [34] The submission is, that is to say, that even in a case in which this Court finds that there have been errors of law apt to vitiate the relevant order of the Local Court, there remains in this Court nevertheless an overriding discretion to refuse relief because of what is conventionally described as "double jeopardy". [35] Insofar as I have been persuaded that the learned Magistrate did make an error of law apt to vitiate her Worship's order, I accept at once that no fault in that connection can be laid at the feet of Mr Wunderwald. I accept as of course that it is only to be expected that he will be certainly disappointed, and probably indignant, to think that the order dismissing the information laid against him is defective in law, and that there opens up before him the prospect of a rehearing in the Local Court. [36] As to all of those considerations, I would say this: I am not persuaded that the words "may determine" which appear in s 59(2) of the Appeal and Review Act do confer an overriding discretion of the kind to which the submissions of learned counsel for the first defendant refer. It is, however, unnecessary to determine finally that point, because even if I were persuaded that the statutory expression carried with it such an overriding discretion, I would not think it right to exercise such a discretion adversely to the plaintiff in the present proceedings. [37] If it be correct to suppose that a Local Court magistrate has made an order vitiated by fundamental error of law; and more so, if one of those fundamental errors of law is a failure to accord procedural fairness to the prosecution; then I cannot suppose it to be correct, either in principle or in practice, to refuse to intervene in order to correct such a state of affairs. To do so would be, in my view, not to give effect to the statute, but to deprive it of the effect which, as it seems to me, the Legislature clearly intended that it should have. 29The second matter deserving of comment is the assertion that the interviewing police officer told the defendant that she would not be prosecuted for this matter. I notice that the defendant was represented by careful and capable practitioners throughout her trial. They raised a number of matters in their thorough but ultimately unsuccessful objections to the tender of the transcript of the interview between the defendant and Detective Sergeant Scott. 30I think that the submissions in this Court are based on a misunderstanding of what happened and what was said. As I have said, Detective Sergeant Scott interviewed the defendant in another part of the police station before this interview began. A particular matter was mentioned. It was referred to in questions and answers 31 and 32. The defendant's unresponsive remark recorded as an answer to question 38 confirms that the two had discussed another offence, possibly one that had some features in common with the present offence. It sufficiently appears that the defendant denied any responsibility for it. In my opinion the remarks of Detective Sergeant Scott recorded at Questions 31 and 32 were intended to inform the defendant that she was not to be charged with the matter previously discussed. The Statement made by Detective Sergeant Scott on 14 February 2012 shows that a recording was made of things said by the defendant and Mitchell on the earlier occasion but it does not disclose any other offence, and it appears possible that things were said but not recorded. The recording was not tendered. The charge the subject of this appeal was the only charge brought against the defendant. 31Those representing the defendant at trial would have read the transcript of her interview. They had read Detective Sergeant Scott's statement. They would have taken instructions from the defendant. She would presumably have told them what would had been discussed in the other part of the police station. She might have said something about questions and answers 31 and 32. She might have told them what she meant by the answer recorded at 38. They did not submit that Detective Sergeant Scott had told the defendant, or that the defendant understood, that she would not be charged with the offence subject of this appeal. Although the evidence before this Court does not reveal the subject-matter referred to in answers 31, 32 and 38, all the known facts combine to show that it was not the offence with which the hearing was concerned. 32It is not surprising that this matter was not raised below. I think that it has no substance. 33I have considered the other matters put forward as possibly justifying a dismissal of the appeal. I will not deal with them individually. They do not combine to persuade me to exercise any existing discretion in the manner contended for. In my opinion justice will be done if the matter is remitted to the Local Court to be dealt with according to law. 34 In my opinion it would be unjust if Mitchell, the offender who confessed to the police and pleaded guilty, were the only one of the two dealt with by the court. I doubt whether, if that were the result, Mitchell would consider that justice had been done. She would be entitled to feel aggrieved, and if she did she would have no redress. Although the offence was not a serious one of its kind, it is important that those apprehended for breaking, entering, stealing and disposing of goods to feed their drug addictions be manifestly dealt with for those offences. 35I make the following orders: (1)Allow the appeal; (2)Order pursuant to s 59(2) Crimes (Appeal and Review) Act 2001, that the order of Magistrate A. Eckhold made on 31 January 2013 at Dubbo Local Court dismissing proceedings commenced against the defendant for the offence of break and enter residential dwelling and steal property therein be set aside; (3)Order that the matter be remitted to the Local Court to be dealt with according to law. 36Although costs were sought in the Summons, the plaintiff did not press the application. I make no order as to costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2013
Director of Public Prosecutions (NSW)
Trudgett
[2013] HCA 6
(2005) 62 NSWLR 604
(2011) 244 CLR 462
(2013) 295 ALR 614
(2003) 219 CLR 1
(1995) 183 CLR 108
(2007) 70 NSWLR 474
(1978) 19 SASR 532
(1990) 170 CLR 573