Regina v Swain

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0788 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60250/03

HODGSON JA GROVE J HOWIE J

Wednesday 10 December 2003 REGINA v PETER WILLIAM SWAIN

1 HODGSON JA: I agree with Grove J. 2 GROVE J: The appellant was convicted upon a single count of aggravated breaking entering and stealing after a trial at Sydney District Court before Dodd DCJ and a jury. The circumstance of aggravation was that the appellant was in company of Ashleigh C, a juvenile, when the offence occurred. He was sentenced to four years imprisonment with a non parole period of two years. The latter will expire on 9 February 2005. 3 Five grounds of appeal against conviction are advanced, ground 4 originally containing two parts, the first of which is not now pressed.

FACTS 4 At 1.33 am on Saturday 2 March 2002 an intruder alarm was activated at Newtown Public School. It was a silent alarm activated by heat and motion. In response to the alarm a security officer, Mr Zylstra arrived to investigate at about 1.37 am. The school was surrounded by a 7 foot high wire mesh fence. All the gates were shut and padlocked and Mr Zylstra unlocked one and entered. 5 The exact sequence of events and observations thereafter was the subject of contest but Mr Zylstra positioned himself on the landing of a stairway and upon an observation of the appellant and Ashleigh, called upon them to halt. The appellant ran up the stairs and the security officer gave chase. The appellant jumped over a railing to the ground causing himself injury. He was unable to mobilise himself, and he was removed to Royal Prince Alfred Hospital at Camperdown. 6 On arrival at the school police officers examined a black bag and an orange box on the stairs which were found to contain computer equipment, the property of the school. Inspection revealed an open door to a classroom above which was a window operated by a winding mechanism, part of which was a steel rod. The window was found open and the steel rod was damaged. 7 Two days later, the appellant who had discharged himself from hospital, attended Newtown Police Station where he was interviewed and he gave a version of events. He said that at about 1 am he received a call on his mobile phone from a distraught Ashleigh who asked him to come to her at the school. Past experience persuaded him to go to her for the purpose, in effect, of ensuring her safety. Among other things, he denied that he, at any time, picked up the box later found to contain the computer equipment and said that he had tripped over it when he ran because he believed the security guard was about to attack him with a torch. 8 I shall refer to these and other facts, and disputes concerning them, when dealing with the individual grounds.

GROUND 1 - REFUSAL TO DIRECT A VERDICT OF NOT GUILTY 9 At the close of the Crown case counsel for the appellant applied for a directed verdict of acquittal on the ground that there was "no case" in relation to the necessary element of breaking pleaded in the indictment. The submission included "taken at its highest, the Crown case is so weak in relation to the element of break that there is not sufficient evidence at this stage to satisfy a jury beyond reasonable doubt of the element of break".

The question was, of course, whether the evidence even if inherently tenuous, weak or vague, was capable of supporting a verdict of guilty: Doney v The Queen 1990 171 CLR 207. 10 There was evidence from the teacher concerned with the particular classroom that he had a daily routine of checking the locks and windows. Examination of the window found open showed the rod damaged by bending. The school was alarmed and a detective gave evidence that there would not have been access to the classroom between lockup and 1.33 am, otherwise obviously the alarm would have been triggered by the earlier entry. It is true that the school had staff or contracted cleaners but in the absence of any evidence of their presence during the relevant period it was not incumbent on the Crown to exclude the speculative possibility that they entered the room (either having disarmed the alarm or somehow entering without setting it off) and departed, leaving open access to the classroom and, if they had in fact disarmed the alarm, resetting it. 11 The Crown relied upon a joint enterprise between the appellant and Ashleigh and the jury were entitled to observe the evidence of the damaged window rod, the open door and window, the routine for securing the room and the circumstance that the appellant had said he had received the phone call at about 1 am and the alarm was triggered at 1.33 am and that in fact both the appellant and Ashleigh were on the premises at 1.37 am when the Mr Zylstra arrived. 12 The evidence would enable a jury to find the element of breaking had been proved by the Crown.

GROUND 3 - DIRECTIONS BY THE TRIAL JUDGE ABOUT LIES TOLD BY THE APPELLANT AND AN ASSOCIATED REFUSAL TO DISCHARGE THE JURY 13 The appellant gave evidence at trial. He admitted that he had told two lies when interviewed by police, they being that he did not pick up the box (later found to contain computer equipment) and that he had tripped over it. In his charge to the jury, the learned trial judge correctly identified these lies but directed them that telling police that he had tripped over the box was not of any material significance to the offence charged and that they should not concern themselves with it. 14 The explanation by the appellant for lying to the police about touching the box was that he thought, if police had information that he touched the box, he might be charged with something he had not done. 15 The submission is that the trial miscarried as a result of the basis upon which the question of the appellant's lies had been put to the jury and, second, that the appellant lied because "he was caught red-handed and he knew that" was put to the jury for the first time by the judge after the evidence and addresses were concluded. 16 The transcript shows that there was considerable exchange between the bench and bar on the subject of directions about lies before the jury was charged. Discussion revolved around direction in accordance with Edwards v The Queen 1997 178 CLR 193 and in accordance with that suggested in Zoneff v The Queen 2000 200 CLR 234. 17 In the event, his Honour gave an Edwards direction. It was not suggested that what the jury were told did not comply with that authority, however after the jury retired and while debate was continuing about aspects of his Honour's charge, a note was received from them asking for repetition of directions concerning lies. The second part of the appellant's argument relates to the response to this note. 18 The learned trial judge did raise the question of proposed direction and did ask counsel for the appellant whether he wanted the Edwards direction or not, but the enquiry followed some expressed inconclusiveness about what his Honour thought had been argued to the jury. The transcript shows that the Crown argument to the jury relied upon the lies told by the appellant as evidence of his guilt. Among other things the Crown Prosecutor said: "……. He told lies to the police that evening because he wanted to put his best foot forward so as not to incriminate himself any further ……." 19 Criticism of the basis of his Honour's response to application to discharge the jury when he said "….. if the choice is between discharge and Edwards direction I will give the Edwards direction" becomes irrelevant when it is concluded that there was no error in electing to give the particular direction. 20 In further directing the jury after receiving the note, his Honour said in summarizing the prosecution contention: "….. the Crown says, well, the situation was that he was caught red-handed taking the computer equipment away in the box and he knew that and that is why he told the lie." 21 It is argued that the Crown made no such submission. Those words do not appear recorded but what was said is not an unfair summary of the Crown case on the issue. The passage earlier set out is to that effect and although "red-handed" may not appear in it, it is noteworthy that there was evidence from the appellant via his police interview that his mother had told him that one police officer had said he was "caught" with a box in his hand. 22 The final submission on this ground is that the trial miscarried as a result of the confusion which arose over the basis upon which the question of the appellant's lies should be put to the jury. As mentioned in a written submission, counsel addressed as to what his Honour should say about lies at some length and a number of options were canvassed. However, the issue is whether the jury were, in the event, given wrong or confusing directions. In my view they were not. Ground 3 should be rejected.

GROUND 4(b) - PRIOR INCONSISTENT STATEMENT BY MR ZYLSTRA 23 The inconsistent statements relied upon are identified as a record in a policeman's notebook that, at the scene, Mr Zylstra spoke of seeing two people inside the classroom and waiting for them to emerge in contrast with his testimony that he had no recollection by the time of trial of seeing a female in the classroom but he did have a clear recollection of seeing one man only in the room. 24 Counsel at trial advanced an argument inviting the jury in terms "do you reckon there's only two" apparently based upon a statement by the appellant to police that he (unaided) could not "move all that gear". His Honour remarked that he did not understand the argument. The presence of an offender in addition to the appellant and Ashleigh is entirely speculative. Counsel's hypothesis was not supported by evidence from the appellant about the presence of a third person. 25 The credibility of Mr Zylstra was obviously important as he testified that he saw the appellant carrying a box. Reference is made to his inconsistent statement above described but the matter scarcely needed emphasis or special direction in the light of argument by counsel to the jury which included: "and we know the point where he (Mr Zylstra) sees the male inside the classroom is apparently the point where he sees two people inside the classroom. Genuine but mistaken, things are what they appear to be, things are what the (sic) appear to be". (T206). 26 What the jury accepted Mr Zylstra as having seen was a matter for them to determine in weighing all the evidence including evidence of lighting conditions, time during which observations could be made, tensions arising out of the mere fact that he was there in response to intruder alarms and the like. I detect no unfairness in the way the issue was left to the jury for determination nor am I persuaded that some further direction was required and certainly not, I am moved to comment, in terms suggested by counsel: "Your Honour should finally - and this is my last submission - clearly indicate to the jury that if the jury comes to a view that you have taken a view in terms of certain facts, they're entitled to reject that view as to the facts". (SU 56).

GROUNDS 2 and 5 - DIRECTIONS ON BREAKING AND JOINT CRIMINAL ENTERPRISE 27 These grounds were argued together and it is convenient so to deal with them. Early in his charge to the jury his Honour reminded them that the way the trial had been conducted did not involve dispute about the appellant being, for a time, physically in the presence of Ashleigh, but what was in dispute was whether he was with her for the purpose of gaining entry to the premises to steal property. There is no complaint about this direction nor of his Honour's directions as to the concept of breaking. 28 During their deliberations a note was sent by the jury saying: "Your Honour, we are having trouble coming to a unanimous decision. The issue of division involves doubt over the presence of the defendant in the classroom - that he committed a break and enter". 29 The jury were brought back into court and his Honour expressed some doubt about his precise understanding of the difficulty being encountered and he invited further enquiry if need be, however he gave further instructions which included: "The Crown does not rely ultimately upon a finding by you that the accused actually himself broke and entered the classroom. The Crown relies upon what is referred to as a joint criminal enterprise alleged to have been entered into between Ashleigh (surname) and the accused and the Crown says that if you find beyond reasonable doubt that either of them or, in particular for instance, Ashleigh (surname) broke and entered that classroom and that the presence of the accused at the school with her, was for the purpose of stealing the equipment referred to in the charge, then, having found those matters to be made out beyond reasonable doubt you would be entitled to find the accused guilty. On the other hand, if you were not so satisfied of any of those matters beyond reasonable doubt and otherwise were not satisfied of the guilt of the accused beyond reasonable doubt, then you should find him not guilty." 30 His Honour then proceeded to elaborate upon the concept of liability for participation in joint criminal enterprise. In the course of this he gave an illustration of three offenders in a motorcar, one of whom remains in it with the engine running to facilitate departure, one breaks a glass door panel and opens the door latch but does not enter and the third who enters the house and brings out the loot. He said: "Only one of them broke into the house, that is the person who broke the glass panel and put his hand inside to unlock the latch".

He referred to the participation of the others and concluded his illustration "all three in that situation would be guilty of the offence of break, enter and steal." 31 On resumption by the jury of their deliberation, counsel sought redirection concerning the instant case on the ground that his Honour had not directed the jury that the agreed crime was breaking entering and stealing as distinct from the crime of stealing. 32 His Honour's statement that "the presence of the accused at the school with her was for the purpose of stealing the equipment" was incorrect in the light of the sole count of the indictment charging breaking entering and stealing. Counsel's application for supplementary direction should have been acceded to. Although the point raised should be decided in favour of the appellant it is apt to consider whether the appeal should nevertheless be dismissed because no substantial miscarriage of justice has actually occurred. 33 As was acknowledged by counsel opening the argument on appeal, on one view it might be said that the appellant was caught red-handed in the commission of the offence. Objectively he attempted to flee from the scene and the security guard and his explanation was a matter for the jury to assess. Whilst attention must remain focussed on the onus of proof, there were significant matters concerning the appellant's explanation for being at the scene. As noted, the alarm activated at 1.33 am and the appellant was on the scene at 1.37 am when Mr Zylstra arrived. The appellant claimed that he came to the scene in response to a phone call to his mobile phone some time after 1 am from Ashleigh. A witness from Telstra Corporation gave evidence that the records showed no call received on the appellant's mobile service from any other mobile phone between midnight to 2 am. There was recorded a call to his mobile phone from a landline at Beecroft at 1.05 am. The appellant in evidence denied acquaintance with the subscriber to the Beecroft telephone service. It was for the jury to assess any possibility of faulty recording by the telephone service provider. It is true that a statement by the appellant's mother (too ill to give evidence in person) deposed to hearing a mobile phone call being received and the appellant leaving shortly thereafter but there was no explanation as to why she would not have heard two phone calls if indeed Ashleigh had made a call as asserted by the appellant in addition to the call corroborated by Telstra records. 34 As was at least tacitly acknowledged, it was a strong Crown case and the question arises then how significant was his Honour's error. Counsel appearing for the appellant had made it plain to the jury in his address that there were two "fundamental" issues on which he relied, which were described by him as first, technical and second, mental issues. The former challenged the Crown's proof of the essential element of breaking whilst the latter raised the appellant's alleged innocent purpose for being at the scene. In summing up the elements of the offence his Honour defined breaking and, inter alia, said: The Crown must satisfy you beyond reasonable doubt that the accused Peter William Swain broke and entered the premises, the school. Break means forcibly gained access."

Later he made reference to the two issues raised on behalf of the appellant and reminded them of the submission "that you would not be satisfied there was a break in the sense of a break and enter". 35 The omission of reference to breaking in the passage of the charge to the jury which has been determined erroneous was immediately followed by the illustration of breaking entering and stealing above described. There was no suggestion that his Honour indicated to the jury that any of his previous directions on the element of breaking were withdrawn or somehow had become inoperative. 36 In my opinion assessment of the strength of the Crown case, the weakness of the defence and the significance of the error (see Wilde v The Queen 1988 164 CLR 356) lead to a conclusion that no substantial miscarriage of justice has actually occurred. I would dismiss the appeal against conviction. 37 The appellant seeks leave to appeal against severity of sentence. A factor noted by his Honour in his remarks was the grave ill health of the appellant's mother who was present in court on the day sentence was pronounced (28 March 2003). An affidavit tendered to this court shows that she died on the night of 30 September/1 October 2003. The appellant is a young man born on 13 July 1981 and was the only child of his mother. 38 There were obstacles to leniency being granted to the appellant, principal among which were entries on his antecedent sheets. In 1997 and 1998 the appellant had been dealt with in Children's Courts on four separate occasions for six offences of robbery in company, one offence of robbery whilst armed with a dangerous weapon and for other offences. In 2001 he was sentenced to imprisonment at Central Local Court for breaking entering and stealing, receiving and stealing from a person. The longest sentence imposed was eighteen months with a non parole period of nine months. His release to parole date was specified as 2 August 2001 and therefore he was at liberty for less than nine months at the time of this offence (2 March 2002) and still subject to unexpired parole. 39 His Honour found special circumstances and adjusted the non parole period in favour of the appellant. 40 No error in the sentencing proceedings is identified. The attention of the Court was directed to the circumstances of the appellant's enforced separation from his mother at the closure of her life. The anguish of the appellant can be recognized, however the power of this Court to intervene and vary sentence is prescribed by statute and authority and no applicable ground for so doing is demonstrated. The imposition was well within the range of sound discretionary exercise. 41 I would dismiss the appeal against conviction, grant leave to appeal against sentence but dismiss that appeal also. 42 HOWIE J: I agree with the orders proposed by Justice Grove and generally with his Honour's reasons. **********

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