Q. And again you agree that that's the truth?
A. Yep." (AB 502) (italics added)
35 At the conclusion of the Crown case trial counsel for the appellant sought a verdict of not guilty by direction (in respect of both counts) by reason of the deficiencies in the Crown proof of a breaking. Particularly from the italicised passages (elicited by the Crown in a leading fashion) it was clear that Shaw had done no more than further open a window that was already partly open - precisely the circumstance that, it was held in Smith, does not constitute a breaking.
36 After considerable discussion, leave was granted to the Crown, unopposed, to amend each count by substituting the words "on or about 1 November" for the words "on 1 November". This was because all involved appeared to be of the view that there was evidence that it was in fact the appellant who had opened the window on the previous evening. The argument that took place was as to whether this was sufficient to constitute a "breaking" for the purposes of the offence prescribed by the section; counsel for the appellant argued strongly that the section required a greater degree of temporal propinquity in order to qualify as a "breaking" in association with the "entering and stealing".
37 Closer examination of the passages extracted above however, shows that the evidence of Shaw was not capable of establishing that it was he who had opened the window. At most, Shaw said that the appellant told him that he "would make sure that it was open". There was no evidence that it was the appellant who had actually opened it. The argument about remoteness in time was therefore misconceived or involvement. It is because of the absence of identification of the individual who opened the window that the decision in Johnson and Jones become relevant. In the evidence, it may have been opened by somebody with lawful authority to do so - whether or not to facilitate a criminal endeavour.
38 The appeal must be decided on the basis that Shaw further opened an already partly opened window; if Smith is good law for 21st century NSW, the appeal must be allowed.
39 Strictly speaking, Smith may not be binding on this Court. The Court was not, initially, referred to any other binding authority in this jurisdiction which adopts Smith. Accordingly, the Court requested the further assistance of counsel. The best that could be provided was a decision of this Court in R v Sing [2002] NSWCCA 20; 54 NSWLR 31. There Hodgson JA, with whom Levine and Howie JJ agreed, dealt with a submission that an actual or constructive breaking is only demonstrated:
"… where the security of a house is infringed, and that it was not a breaking to further open a door or window which was partly open …"
40 Counsel in that case therefore criticised a direction that:
"… any unlawful entry will constitute a breaking and entering."
41 This Court did not directly deal with the submission, although it did appear to accept the proposition. Hodgson JA said:
"Had a direction to that effect been sought below, there is no reason to suppose that a correct direction would not have been given."
42 The Court then proceeded to dispose of that ground of appeal on the basis that, even had a correct direction been given, it was unlikely that the result would not have been any different.
43 Smith was not cited as authority in Sing. A Western Australian decision in R v Galea (1989) 46 A Crim R 158 was cited. In that case criticism was made of a trial judge who failed to direct a jury that breaking would not be established if they accepted that defendant's evidence that the door of the dwelling house was ajar and that he merely opened it further. The Western Australian Court of Criminal Appeal accepted that argument.
44 Whether or not Smith binds the Court, however, the distinctions outlined above, and the authorities, including Smith, have been taught to generations of law students in NSW as representing the law to be applied in this State and have appeared in criminal law textbooks as having established legal principle; no doubt has, so far as the researches of counsel show, ever been cast upon them. I consider it inappropriate for this Court to depart from the application of such longstanding and accepted authority.
45 Accordingly, on the evidence, the appellant could not have been convicted of an offence which incorporated the element of "breaking".
46 The result is that the verdict of guilty must be quashed and a verdict of acquittal entered. The appellant could not be convicted of the alternative charge because it includes the same element.
47 I would add, however, that I see no useful purpose to be served by perpetuation of the fine distinctions which have been set out above. 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 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. In that context I would add this. Both charges were brought under s 112. I will set out the relevant parts of that section:
" 112 Breaking etc into any house etc and committing serious indictable offence
(1) Whosoever:
breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any serious indictable offence therein … shall be liable to imprisonment for fourteen years."
48 From the catalogue of buildings the breaking and entering of which is forbidden by s 112, the prosecution chose to identify, as the subject of the offence charged against the appellant, a "pavilion". This, it appears, is what the prosecution perceived as the nearest of that catalogue to a recreational club. If the Sawtell Bowling and Recreation Club was not a pavilion, then breaking and entering it was, whatever else it might have been, not an offence against s 112. I have serious doubts whether it could properly be regarded as a "pavilion".
49 It appears that no club, or perhaps hotel, or perhaps many other kinds of building which do not presently spring to mind can rely upon the criminal offence created by s 112. This is another matter that might attract the attention of law reform authorities.
50 The orders I propose are: