R v John Cain Darcy [2021] NSWDC 59

District Court New South Wales

Medium Neutral Citation: R v John Cain Darcy [2021] NSWDC 59 Hearing dates: 8 February 2021 – 16 February 2021 Date of orders: 19/02/2021 Decision date: 19 February 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [111] Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Detain for advantage — Circumstances of aggravation — Cause actual bodily harm Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Fleming-v-R (1998) 197 CLR 250 Texts Cited: Nil Category: Principal judgment Parties: Crown (Regina) Darcy (Accused) Representation: Oliver Crown Prosecutor

Pearsell Counsel for the Accused File Number(s): 2019/00260764 Publication restriction: Unrestricted

Judgment

Introduction 1. By an indictment dated 12 January 2021 John Cain Darcy, the accused, is charged with the following two offences: 1.1. That contrary to section 112(3) of the Crimes Act 1900 on 28 May 2018 at Bellingen in the State of New South Wales he did break and enter the dwelling house of Talwinder Singh at 10 Ford Street and did commit a serious indictable offence therein, namely to rob Talwinder Singh of money in circumstances of special aggravation namely that he was in the company of Jason Murray Elphick and did wound Talwinder Singh; and 1.2. That contrary to section 86(3) of the Crimes Act 1900 at the same date and place of Bellingen he did detain Talwinder Singh without his consent with the intention of committing a serious indictable offence namely larceny in circumstances of especial aggravation namely being in company with Jason Murray Elphick and at the time of or immediately after the offence actual bodily harm was occasioned to Talwinder Singh. 1. The trial was conducted as a judge alone trial. The application was made by the accused and consented to by the Crown. 2. The offences alleged did occur; Mr Elphick, named in the indictment, pleaded guilty to the offences and following a sentencing hearing on 19 August 2019 was sentenced on 28 August 2019. The question in this trial is whether the accused was Mr Elphick's accomplice. Mr Elphick was arrested on 3 December 2018 and the next day in an interview with police made a statement admitting taking part in the offending as now alleged against the accused and stating the accused was the other man who carried out the offending. On being sentenced Mr Elphick received a discount not only for his guilty plea but a further 25% for his assistance to police which included the giving of an undertaking that he give evidence consistent with his record of interview at the trial of the accused. On 21 August 2019 the accused was arrested. 3. In very broad terms the offending allegedly occurred by Mr Elphick and his accomplice attending firstly at the home of Mr Singh (which was next door to a business of a Mr Fuller), breaking and entering into that home, ("the first location") assaulting Mr Singh with a machete (the act being committed allegedly by the accused), tying him up, locating and stealing cash, and then detaining Mr Singh and taking him to another address some kilometres away being the home of Andrew Fuller ("the second location"), adjacent to another place of business of Mr Fuller. At that point Mr Singh was able to get away from Mr Elphick and the accomplice and Mr Elphick fled. 4. Throughout the offending Mr Elphick and the accomplice wore face coverings. That Mr Elphick was ultimately apprehended was due to the rope being used to tie up Mr Singh having DNA which was linked to Mr Elphick in relation to a crime scene in Victoria (and other evidence, which I accept, suggested he was in fact charged and convicted of what was a burglary; see T111). Following that evidence telephone intercepts were put in place which captured calls involving Mr Elphick that appeared to be admissions by Mr Elphick that he had taken part in the offences of 28 May 2018; see exhibit 2. 5. There is no physical evidence connecting the accused to the scene of the offending. 6. In support of the Crown case the officer in charge, Sgt English gave evidence as did Mr Fuller and Mr Singh. Mr Elphick also gave evidence, as did his partner Ms Terbeeke. When first called to the witness box Mr Elphick announced that he was not going to give any evidence. At that time the Crown made it known, on the understanding that Ms Terbeeke was not available, that without Mr Elphick's evidence the Crown had no case. 7. On the first day of the trial when Mr Elphick stated he would not give evidence he was made aware of the consequences of that which included the potential to be charged with contempt and also that he may be the subject of re-sentence and may lose the additional 25% discount that he had gained for undertaking to give assistance. On the second day of the trial Mr Elphick in fact gave evidence. The parties agreed that this conduct of Mr Elphick should not be taken into account adversely to him in assessing Mr Elphick's evidence.