R v Colvin [2021] NSWDC 390

District Court New South Wales

Medium Neutral Citation: R v Colvin [2021] NSWDC 390 Hearing dates: 10 August 2021, 11 August 2021 Date of orders: 11 August 2021 Decision date: 11 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Verdict of guilty Catchwords: CRIME - Break and Enter and commit serious indictable offence CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - onus of proof - uncalled witnesses - conflict of evidence – key issue was there a breaking? - reasons for accepting complainant - reasons for rejecting accused's evidence - each element proved beyond reasonable doubt Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: De Silva v The Queen [2019] HCA 48 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 R v Mifsud (2009) NSWCCA 313 Category: Principal judgment Parties: Jason Keith Colvin (the accused) Director of Public Prosecutions Representation: Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the accused) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions) File Number(s): 2020/00229157

JUDGMENT

Introduction 1. On 10 August 2021 Jason Keith Colvin, the accused, was indicted and said he was not guilty of breaking and entering the home of his sister and committing the serious offence of intimidation in the circumstance of aggravation that he knew others to be there: 112(2) Crimes Act 1900. An earlier Indictment used the name Lilburn but I am told and accept that Mr Colvin does not use that name. 2. It is accepted that should I have a doubt about the element of "breaking" I could return an alternative verdict of guilty of the offence of intimidation: s 13 Crimes (Domestic and Personal Violence) Act 2007; R v Mifsud (2009) NSWCCA 313 3. Mr Colvin has elected for trial by judge alone. That application was not opposed by the Director of Public Prosecutions (DPP). As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdicts reached.