R v Taylor [2004] VSCA 189

[2004] VSCA 189

Court of Appeal (Vic)|2004-10-15|Before: CHARLES and NETTLE, JJ.A. and HANSEN, A.J.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2004-10-15

Before

CHARLES and NETTLE, JJ.A. and HANSEN, A.J.A.

Source

Original judgment source is linked above.

Judgment (95 paragraphs)

[1]

[ 2004] VSCA 189

[2]

Criminal law - Aggravated burglary - Entering building as trespasser with intent to commit assault to a person - Whether limited or unlimited authority to enter - Whether authority exceeded - Whether applicant knew or reckless as to whether authority exceeded - Whether entry pursuant to honest claim of right - Failure to direct jury sufficiently upon elements of trespass and the meaning of "reckless" - Failure to relate evidence to issues independently of counsels' arguments.

[3]

On 19 August 2002 the applicant, Marie Lana Taylor, was presented in the County Court at Morwell on one count of aggravated burglary (Count 1), one count of intentionally causing serious injury to Elizabeth Joy Krupa (Count 2) and, in the alternative, one count of recklessly causing serious injury to Krupa (Count 3). Following a mention on 9 October 2002, on 10 October 2002 she was arraigned on Counts 1 and 3 and pleaded guilty to both counts; and Count 2 was struck out of the presentment. The plea in mitigation was adjourned to 22 October 2002 to allow time for preparation of a psychological report and then further adjourned to 30 October 2002 when counsel for the applicant fell ill. On 30 October 2002, she sought leave to withdraw her plea of guilty and, after that application was heard on 7 February 2003 and 2 May 2003, on 9 May 2003 she was granted leave to do so. On 9 October 2003 she was again presented before the County Court (on that occasion at Bairnsdale) on one count of aggravated burglary (Count 1), one count of intentionally causing serious injury to Krupa (Count 2) and, in the alternative, one count of recklessly causing serious injury to Krupa (Count 3). On 17 October 2003 the jury returned verdicts of guilty on counts 1 and 2 and, after hearing a plea in mitigation, on 22 October 2003 the judge sentenced her on Count 1 to imprisonment for a period of nine months and on Count 2 to imprisonment for a period of three years, making for a total effective sentence of three years imprisonment, of which his Honour suspended two years for a period of eighteen months. By notices dated 5 November 2003 the applicant seeks leave to appeal against conviction and sentence.

[8]

Five to ten minutes later, Krupa was awoken when her bedroom light was switched on. The light blinded her and she could not see clearly without her contact lenses. But she saw that a person had entered her room and she heard that person talking very rapidly and she recognised the applicant's voice. Krupa said that she started to get out of bed but that the applicant came up and tried to push her back down on to the bed. Krupa gave evidence that she then saw that the applicant was holding a knife and that she heard the applicant say: "Don't you move". Krupa's legs were at that stage hanging out over the side of the bed and she felt a blow to her left calf just below the knee. She screamed out to Whykes as loudly as she could. Krupa said that the applicant then moved to close the bedroom door before coming back towards her again wielding the knife. At that point Krupa jumped up and proceeded to grapple with the applicant. Krupa said that she managed to pin the applicant's torso and arms on to the bed but that the applicant continued to move her left arm with which she held the knife. Krupa continued, however, to force the applicant to drop the knife and when she dropped it, Krupa looked up and saw that the bedroom door was open and that Whykes was standing outside. Krupa said that she shouted at Whykes to call the police but that the applicant told her not to call the police and so Whykes just froze and did not move. Whykes's evidence was that she ran through the sitting room into her baby daughter's bedroom and took the child into her own bedroom and closed the door. Krupa felt weak and light-headed and decided to try to escape. She got up and made her way towards the front door. She fumbled for a moment with the front security screen door but then unlocked it and stepped out onto the decking outside. At that point the applicant grabbed her from behind by her pigtail and her legs gave way and she fell back onto her bottom, and the applicant pulled her back into the house. Krupa said that she screamed for help and that the applicant attempted to shut the door and put her fingers into Krupa's mouth to stop her screaming. Krupa said that with that she choked a little and that the applicant then took her fingers out, but when Krupa tried to scream again she found that she was losing her voice.

[12]

The applicant told police that she stood outside Krupa's door and fumbled before turning on the light in Krupa's room. She then stepped inside and looked at Krupa, placed the form in front of her face and said: "Sign them" (Questions 413 - 426). According to the applicant Krupa thereupon lashed out at her and she panicked and took the knife out of the bag with her left-hand (Question 430). She said that she then held the knife out in front of Krupa, and that Krupa began thrashing about. She said that she then noticed that Krupa had a small cut, maybe half an inch, on her left arm (Question 442) and that Krupa got out of bed quickly and pulled the applicant down on the floor (Questions 446 - 453). She said that she felt the knife go into "some flesh" as they were struggling but that she was not aware of what she had hit (Question 490) and that she did not see any blood at that stage and that she did not intend to do it. A few seconds later, however, she noticed a huge amount of blood on the floor when she and Krupa stood up (Question 505). The applicant denied swinging the knife at Krupa during the struggle and she said that she was trying to get away from her (Questions 492 - 497). She added that she did not try to swing the knife into Krupa's body (Question 511). She admitted, however, that Krupa had attempted to leave through the front door and that she grabbed Krupa by the hair and tried to pull her away from the doorway (Question 518). She alleged that she tried to shut the door in an attempt to calm the situation as Krupa was calling out "call the police, call the police". She said that she thought that she might be able to calm the situation, collect her belongings and leave (Questions. 518 - 519). She admitted, however, that she had grabbed the steering wheel lock, and swung it at Krupa's body when she was trying to get away from her and she believed that she had made contact with her two or three times (Questions 536 to 543). She further admitted that upon her arrest she had told police that she took the knife with her to scare Krupa. She explained that she meant by that that she took the knife in case she needed it, but that she honestly did not think she would need it (Question 586); she did not intend to use it (Question 624); and that she only wanted it to protect herself (Questions 633-635).

[29]

"In this case the Crown alleges that the accused burgled the bedroom of Libbie Krupa in the home at 10 Campbell Court, Sale, with the intention of assaulting Libbie Krupa. So that is how the Crown puts its case. So the offence of burglary charge in this case consists of those first three elements there that you have listed,[3] each of which as I say the Crown has to establish to your satisfaction beyond reasonable doubt, and they are firstly, that the accused entered a part of the building, that is Libbie Krupa's bedroom; secondly, that she did so as a trespasser; and thirdly, that she did so with a particular forbidden intention at the time of entry to the bedroom. That is important, it is at that point in time. So I want to say something about each one of those elements. Firstly, entry to the part of the building, to the bedroom, poses no difficulty in this case because it is common ground that the accused did enter the bedroom. Secondly, as a trespasser, the accused was a trespasser if she entered Libbie Krupa's bedroom knowing that or being reckless whether she was so entering in excess of or for a purpose alien to any permission or licence or consent or other right given to her to enter the bedroom. Perhaps I will repeat that for you, because in the final addresses there was some focus upon this particular element so I will say that again. The accused was a trespasser if she entered Libbie Krupa's bedroom knowing that or being reckless whether she was so entering in excess of or for a purpose alien to any permission or licence or consent or other right given to her to enter the bedroom. All right? Thirdly, with intent to assault. In this case the forbidden intention which I referred to earlier at the time of entry to the bedroom was that of committing an offence, being an assault to a person in the bedroom, namely Libbie Krupa. The assault [which] was here relied upon by the Crown [w]as not what you commonly think of as assault, which is actually hitting someone, but rather by intimidation. That is, that there was an intention to cause Libbie Krupa to fear that she, the accused, was about to apply force to her. So they are the three elements that you would need to be satisfied upon for there to be burglary. Those first three elements are set out there. But then the Crown goes a step further and alleges that the accused is guilty, not only of burglary, but of aggravated burglary. And in this case the element of aggravation alleged to have existed is that at the time of entering the house the accused had with her an offensive weapon, namely the knife, and it is alleged to be an offensive weapon because the Crown alleges that the accused intended or threatened to use the knife to cause injury to Libbie Krupa. So in order to establish this offence as being committed, the Crown has to have established to your satisfaction beyond reasonable doubt, firstly that the accused entered as part of a building, here the room of Libbie Krupa's where Libbie Krupa was , and there is no issue on that one. Secondly, as a trespasser, which is in issue, as you have heard from the final addresses. Thirdly, that there was the intention to assault at the time of entry. Again, that is in issue as to whether that intention existed at the time of entry to the bedroom, the intention to assault, as I define it. And fourthly, that she had with her a knife which she intended or threatened to use to cause injury. And as I say, those two, the second and the third elements there, are where you should particularly be focussing."