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. Directions Onus 1. The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count. Elements 1. Before I can convict I must be satisfied beyond reasonable doubt beyond reasonable doubt, that; at Warrawong, on 28 July 2020: 1. Jason Keith Colvin; 2. Broke and entered; 3. The dwelling of Ms Colvin; and, 4. Committed the serious indictable offence of intimidation; 5. Knowing there were persons present in the dwelling. 1. The failure to prove any element beyond reasonable doubt would mean that Mr Colvin is not guilty. * There is no dispute an incident took place at the home in Warrawong on the morning of the 28 July 2020. * "Break" – means where the security of the house is infringed; such as by breaking a window or opening a door or window. * "Entered" ­- means "went inside". * "Intimidation" – means here; conduct that causes a reasonable apprehension of injury to a person or of violence or damage to any person or property. The conduct must be done with the intention of causing the person to fear physical or mental harm. * "Serious indictable offence" - As a matter of law "Intimidation" is a serious indictable offence: s 13 Crimes (Domestic and Personal Violence) Act 2007. * "Dwelling" - includes a where somebody lives or resides such as a house, that is, where somebody dwells. Evidence 1. I heard from the complainant. Her complaint to police was audio and visually recorded by police soon after they arrived at the scene. That recording was played as part of her evidence in chief. One of the police first on the scene also gave evidence 2. I received into evidence; the recording of a 000 call made by the complainant, video still images of the interior of the home and photographs and Google images of the house and street: Exhibits A, B and C. Extracts of two letters written by the accused to the complainant were also before me: Exhibit D. The accused gave evidence. 3. The evidence must be considered as a whole. Some of the evidence is direct - some involves drawing inferences from facts I find proved. I may not, as a matter of law, find the accused guilty unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than his guilt. 4. Some evidence was not in dispute - most was contested. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make value judgments. Assessing witnesses 1. Critical to resolution of the issues at trial is the evidence of the complainant and the accused. As with most people giving evidence at trial, it was obviously a stressful experience for both of them. As the hearing was conducted by virtual court without anyone being present, particular care needs to be taken. When someone is appearing on a video screen visual clues can be missed. Giving evidence from a booth remote from the court can be unsettling. This is particularly so for the accused as his booth was at a gaol. At times connections were lost. At times people spoke over each other making hearing difficult. 2. Accordingly, I must take care; I must not jump to conclusions based solely on how a witness gave evidence. The manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision making process. 3. I am aware that people react and appear differently when stressed and this potential problem is exacerbated when everyone appears via audio visual means. Witnesses also have different capacities, abilities, values and life experiences. The accused has mental health problems. The complainant was upset and at times exasperated. I must take care not to stereotype a witness based on possibly false presumptions or misconceptions. Rather, I assess the evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. Uncalled Witnesses 1. Other than the photographs, there was no forensic evidence collected or presented at trial. No DNA or fingerprints link the accused to the window where it is alleged he broke and entered the home. 2. There were two other people at the home that night. One "Duke" was not said to be directly present but given the size of the home it would have been hard to have avoided hearing some of what occurred. Another woman was present. Although she spoke to police at the scene she made no statement and was not called at trial. 3. The prosecution should call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. As the prosecution must prove that the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused's guilt: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]. Accused's Evidence 1. The accused on arrest exercised his right to silence. He did give evidence in answer to the case led by the prosecution. By doing so he assumed no onus or responsibility for proving his innocence. There is no obligation on him to persuade me to accept his evidence. It is for the prosecution to satisfy me beyond reasonable doubt that I should reject what he said and find that it was not a reasonably possible version of the facts. 2. There is a significant conflict between the version of events given by the accused and the version of events given by the complainant. It would be wrong if guilt or innocence turned upon a simple choice between two inconsistent versions. My verdict should not be determined by my choice about which version I prefer. To the contrary: 1. If I believe the accused's evidence I must acquit; 2. If I do not accept that evidence but I consider it might be true, I must acquit; and, 3. If I do not believe the accused's evidence I must put that evidence to one side. The question then remains: has the prosecution, on the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt? De Silva v The Queen [2019] HCA 48. Evidence Summary Uncontroversial facts 1. It not controversial that Mr Colvin came to his sister's house on 27 July 2020. It was a wet day and he arrived drenched. He told her he had been having troubles. She let him stay. She cooked him and the other residents spaghetti bolognaise for dinner. He went to sleep but when he woke late in the evening or early in the morning he couldn't find his "bum-bag.' It had his smokes, money and other personal items in it. He thought someone at the house had taken it. He wanted it back and he became upset. At some stage the complainant and her female friend locked themselves in the complainant's bedroom. The accused broke in the door of the bedroom and confronted the complainant. He stood over her she while she was on the bed. He left when she said she was going to ring the police. The Complainant's version 1. The complainant told me that after the accused said his bum-bag had been taken she denied taking it he didn't believe her. He became more and more aggressive. She told him to leave as he was scaring her friend. He told her "go fuck yourself." She then went to her bedroom and locked the door. She said he has snapped before but had never been violent toward her but this time she feared for her safety and was concerned for her female friend, who was domestic violence victim. 2. From her room she could hear him in the house. She then heard him go toward the front door. She left her room and saw him as he was leaving. She then ran to the front door and locked it. He was outside yelling. She locked up the rest of the house. She then went back to her bedroom and locked the door behind her. Within minutes she heard him in the bedroom next to her room and then heard him coming to her door. He then kicked in the door of her bedroom; smashing it off its hinges. He stood over her while she was on the bed and punched her head two times and slapped her head once. He threatened to burn her house and car. She kicked out at him and said she was going to ring the cops. He then ran out the door and she called 000. As a result of the blows she had "a headache a bit." 3. She said that later she saw the screen to the spare bedroom window had been cut. It was not like that before. 4. In cross examination she stuck to this version of events. Her credibility was tested by reference to the versions given in court, in the police video and the 000 call. There was some difference. For example: 1. Only in court did she say she saw the accused leave the home. 2. Only in court did she say she heard him come through the window. 3. In the 000 call she said she had been kicked by him. In evidence she said that was not correct but something she said only because she had just been hit in the head and was concussed. 4. She told 000 the whole house and windows had been smashed but said in Court that at this time she was frantic and scared and that he had only just left, and that she had heard something smash. The accused's version 1. Mr Colvin accepted that he was upset when he discovered his bum-bag was missing but said it was the complainant, not him, who "caused a scene" and had told him to "fuck off." He said he did get angry and that she did go back to her room and lock the door. He was "pissed off" because he had had his bum-bag taken and he had nowhere else to go. 2. He said however that he did not leave the house. Rather, he stayed inside and before he left punched and kicked in her door. When he entered her room he accepted he "got in her face" and she had "cowered up" but he said he did not hit or touch her. 3. When she said she was going to ring the police he left because he knew there were warrants out for him. He did leave and walked to another relative's home. Although he said he would come back for his bum-bag he did not come back. 4. He told me that although he has a long criminal record he is not violent. He would not, and did not, hit his sister. He said he'd "own to venting but I never hit her; I never would... I couldn't hit my sister despite the fact I hate her guts." He said he only "lost it when I punched the door." 5. He told me the accusations are "all bullshit." And, that he never went outside nor did he return through the spare bedroom window. That day he had not been in the spare bedroom. 6. Under cross-examination he reiterated these points. He said that if he he'd hit her as hard as he hit the door she would have been "black and blue". He said she had no injury because he didn't hit her. He said he had not threatened to burn the cars. In a non-responsive answer he did say "I wasn't thinking rationally cause I was on the ice - we both were." He told me the accusations are "not me… it's not me as a person." Submissions 1. I am indebted to Ms Hughes, Solicitor Advocate, for the Director of Public Prosecutions, and Ms Parkes, Solicitor Advocate, Legal Aid NSW for their careful addresses that identified and focussed on the critical issues. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determination. I hope this judgment does justice to them. 2. Ms Hughes submits that I would reject the accused's account and accept the complainant as a witness of truth. I would reject the accused because it is obvious he did more at the home than he was prepared to admit and the allegations fit with the level of violence that even he is prepared to admit. This was shown by what he did to the bedroom door. He was clearly very angry that night and his letters demonstrate continued animosity toward the complainant. 3. She took me to evidence; including what the complainant said on the 000 call about the cars, as evidence the complainant's initial accounts corroborated her later evidence. Ms Hughes noted how she told the 000 operator how reluctant she was to call the cops on her brother. Critically she noted that the complaint told the 000 operator about locking the accused outside and mentioned the window. The 000 call and the initial police statement were apparently uncontrived statements about what had just occurred. 4. Ms Parkes took me through the evidence and asked I give the accused the benefit of what she submitted where considerable doubts about the reliability of the complainant and her account. She took me through where the complainant's versions differed. She noted portion of the 000 call in particular where she had exaggerated damage to the house. On the critical issue of proof there was a breaking she noted three important aspects of the evidence: 1. Why would the complainant lock herself in her bedroom after she had locked the front door against the accused? 2. If he had entered through the bedroom window in a state of rage why was the room apparently undisturbed? 3. The complainant did not see this purported entry nor hear any damage being done to the flyscreen. Rather, she tells the 000 operator in an exaggerated fashion "he just smashed and broke back in" and "he's smashed the front of my windows:" Exhibit B lines 16 and 105. Consideration 1. If the complainant is accepted beyond reasonable doubt each element of the offence has been proved. Even on his own version of events, absent any physical assault, the accused's actions in breaking down the bedroom door and getting in his sister's face was an act of intimidation – a serious indictable offence. He knew the dwelling was occupied. While there are considerable and important differences in the two versions the critical element in dispute for me to determine is whether the prosecution can prove beyond reasonable doubt there was a breaking. 2. The alleged breaking here has two factual bases that must be proved beyond reasonable doubt: 1. Did the accused leave the house, so that the door could be closed behind him and the house secured. If he didn't leave whatever offence he did commit was not a s 112(2) Crimes Act aggravated break and enter. 2. Did he damage the fly screen and enter through the spare bedroom window. 1. The 000 call is a close to contemporaneous record of the allegations. It appears to have been made from the complainant's bedroom. The accused had only just left the room and the house. 2. In the call she says: "He just smashed and broke back in after I got him out through the window." Line 16. "I got him outside because I said I'm calling triple zero. Then he smashed back in and broken back through my house: Operator "did he break the window did he? Caller: "yes he did he also threatened to burn our cars as well:" lines 68 to 71. "He's smashed the whole front of my windows. I already know he's still out there but I got him out of the house once and he smashed straight back in. He smashed in and he come and hit me." Lines 104 to 107. 1. In her initial video interview less than an hour later she gave police a narrative that, while it focussed on what occurred in the bedroom, unambiguously noted that the front door was locked after the accused had exited and that he had come back in through the window. She took police into that room and showed them the window. It was open and the fly screen had been slit. 2. The complainant in evidence yesterday had a fairly obvious distaste for her brother but given what he admitted he did, this is understandable. The 000 call does show how concerned she was about calling the police despite what he had done. 3. When she was speaking to 000 she may have exaggerated the damage done to her home but she had at that stage only seen what was done to her room. At that point she had had little chance to assess what he had done elsewhere in the home other than from the noises he made. When she spoke to police later she was direct and accurate. She did not exaggerate or invent her injuries. She was at pains to say that the accused had never hit her before nor had he smashed her house up or cut her windows: Exhibit C Answer 66. In describing the impact of the assault was matter of fact; "A headache a bit…. I may have bruises tomorrow, I don't know:" Exhibit C answers 27 and 28. 4. Although not the most persuasive witness, as her anger and negative emotional attitude toward the accused was obvious, her early accounts, of the accused leaving, locking the front door and his breaking back in, were compelling. That she also retreated to and locked her bedroom door does undermine her account. The accused was angry at her and had threatened her. Her house was not very secure and she could not prevent anyone determined to enter it from doing so. 5. It is not in serious dispute that the screen to the window was slit open. I accept that the room does not appear to be otherwise disturbed, although in the 000 call the complainant does mention glass and a broken light. But the photos, Exhibit B 1 and 2, show parts of the screening material coming through the open window and inside the room. 6. The accused's letters to his sister empathically deny any assault on her. They do however contain important statements against his interest. In both letters he mentions a threat to the cars at her home. In evidence he told me no threat to cars was made that night, only in the letters. This assertion cannot be accepted, given what is recorded in the 000 call at line 71; see [37] above. 7. Further, in his second letter he says "you hurt me that much you nilly lost your Life that night I was that angry and I was going to burn ur cars out…but ! lol I didn't hit you cause I wouldn't have stopped if I did you hid under your arms made me sick." 8. The accused in evidence was adamant - he did not hit his sister - he did not leave the house and return via the window. He does, however, accept that he was very angry that night and not thinking rationally. If a person for whatever reason becomes angry and damages property to the extent proved and admitted that can be evidence they are acting irrationally. What he did that night understandably made him feel sick. 9. I accept that he now believes the acts the complainant describes are "not me as a person." Now after a time for reflection I am quite sure he believes he did not hit his sister and that he did not leave the home or break in. But, and it's an important "but" his denials cannot be accepted. 10. I do not believe fingerprints or DNA could have made a significant difference in this case given the accused had been in the home and the spare room on previous occasions. I take note of the absent witnesses but here their absence does not create any reason for doubt in my mind. Conclusion 1. Accepting, as I do the complainant's account about the accused leaving and returning through the window, which was corroborated by immediate complaint evidence and the evidence of the damage to the window screen I find the prosecution has proved beyond reasonable doubt that the property was broken into and entered that night. 2. It is not in dispute that the accused knew persons were present in the dwelling. 3. I accept that the accused hit his sister but that fact alone is not the basis for my finding he committed the serious indictable offence of intimidation. Rather, even his admitted actions that night would have caused a reasonable apprehension of injury or of violence or damage to any person or property. He was angry that night. He did smash in the bedroom door with sufficient force to take it off its hinges. I have no hesitation in finding beyond reasonable doubt he did what he did with the intention of causing the complainant to fear physical or mental harm. 4. Accordingly, each element of the count in the Indictment has been proved beyond reasonable doubt. I do not need to consider the alternative count. Orders 1. The accused is convicted. ********** Amendments 23 August 2021 - Typographical error only DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2021