New South Wales District Court CITATION: R v Little [2008] NSWDC 311 HEARING DATE(S): 24 to 27 November 2008 JUDGMENT DATE: 28 November 2008 JURISDICTION: Criminal JUDGMENT OF: Bennett SC DCJ DECISION: Guilty CATCHWORDS: CRIMINAL TRIAL – trial by judge alone – aggravated break enter and steal – circumstantial Crown case – whether there was a rational or reasonable alternative hypothesis consistent with innocence – accused did not give evidence – s 20 Evidence Act 1995 – comment on failure to give evidence – whether alternative hypothesis rational or reasonable in the absence of evidence from the accused Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 Azzopardi v The Queen (2001) 205 CLR 50 CASES CITED: Fleming v R [1998] 197 CLR 250 Weissensteiner v The Queen (1993) 178 CLR 217 PARTIES: The Queen Paul Anthony Little FILE NUMBER(S): 2008 / 00012119 COUNSEL: Mr F Veltro (The Crown) Ms P David (The accused) DECISION Introduction 1 On 24 November 2008 Paul Anthony Little appeared for trial in the District Court Sydney in respect of an indictment containing one count for an offence contrary to s 112 (2) of the Crimes Act 1900. It is alleged thereby that the accused: " On or about 2 September 2007 at Maroubra in the State of New South Wales did break and enter the dwelling house of Wallace Spicer at [omitted] and while in the said premises did steal certain property namely photographic and electrical equipment belonging to the said Wallace Spicer in circumstances of aggravation, namely, that at the time of the offence he knew that there was a person present in the said dwelling house. " The Trial 2 The trial was conducted before me sitting alone. The accused made his election to be tried by a judge alone on 21 November 2008. He signed a form 146 signed by his solicitor in which he represented that he sought and received advice from his counsel before making his election. The Crown countersigned the document expressing the consent of the Director of Public Prosecutions. I confirmed with the accused that his counsel gave advice as to the conduct of the trial by a judge alone and that it was his wish for the trial to proceed in this manner: Section 132 Criminal Procedure Act 1986 3 The election form is retained on the court file. General Directions 4 To comply with ss 133 (2) and 133 (3) of the Criminal Procedure Act and as required by the decision of the High Court in Fleming v R [1998] 197 CLR 250 I remind myself of the following principles of law. 5 As the accused has pleaded that he is not guilty and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge and to return my verdict according to the evidence. It is for me to assess the various witnesses and decide whether they are reliable. 6 I note that the reliability of any witness' evidence depends on two quite different but sometimes overlapping considerations. One is the witness' honesty and the other is the witness' accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say but also the impression that the witness made upon me. I have had the benefit of submissions from the Crown and the accused's counsel. I will consider those submissions and give to them such weight as I think they deserve. I note that in no sense are those submissions evidence in the case. 7 I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my commonsense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also to the whole community. I must, as the judge of the facts, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgment. 8 As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. The evidence in this trial includes the oral evidence of witnesses and exhibits, which in some instances include documents containing the representations made by persons who were not called to give evidence in the trial. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of a witness' evidence. Character 9 I note that the accused did not raise his character in this trial, but implicit in the circumstances from which he came before me is the proposition that there are matters that have combined to deny him bail. Moreover, counsel for the accused tendered a document produced by the Commissioner of Police from the electronic record of the break, enter and steal charge and the steps taken in the investigation, and which includes reference to the accused as a person of interest to those investigating the offence. This became exhibit 2 in the trial. 10 I have no information whatsoever before me regarding the accused's past apart from what is contained in that document and what his present circumstances imply. I treat the issue of character as irrelevant for the purpose of determining whether the essential ingredients of the offence and the accused's participation in the offence are established beyond reasonable doubt. Correspondingly, I completely disregard any reference to the accused's past in exhibit 2 and his present circumstances as irrelevant to the question of his guilt. The Burden of Proof 11 I now direct myself upon the onus of proof. This is a criminal trial. In these proceedings the Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charge and whether the accused participated in the offence. It is not for the accused to disprove those elements or to prove that he did not commit the offence, but for the Crown to prove each and every one of those facts and to prove them beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. 12 It is and always has been a critical part of our system of justice that persons tried in this court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving beyond reasonable doubt each and every one of the essential ingredients or elements of the charge, and that it was the accused that committed the offence, then the accused must be found not guilty of the charge. 13 The words "beyond reasonable doubt" are ordinary every day words and that is how I understand them. If at the end of my deliberations I am not satisfied that the Crown has established any one of those essential matters beyond reasonable doubt, having taken into consideration the evidence both for the Crown and for the accused, and after also taking into consideration submissions made to me by the Crown and the accused's counsel in their addresses, then it is my duty to bring in a verdict of not guilty because the Crown will have failed to do what the law requires it to do. It is vitally important that I clearly understand that the accused must be found not guilty if any one of the essential ingredients of the charge has not been proved to my satisfaction beyond reasonable doubt. 14 It follows from this of course that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such essential ingredient or I am left unable to decide whether the Crown has proved beyond reasonable doubt that it was the accused who committed the offence, and even though I may suspect that the accused may have engaged in the conduct upon which the charge is brought, the accused is entitled to the benefit of that doubt and I must find him not guilty. 15 I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the ingredients of the charge and that it was the accused who committed the offence. Inferences 16 I remind myself that I may in my role as judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference adverse to the accused from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. This is a criminal trial, and as I have already noted I must be satisfied of each of the essential ingredients beyond reasonable doubt, and that the accused committed the offence, before he may be found guilty. Amongst other things this means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances that is an inference adverse to the accused. The Accused Did Not Give Evidence 17 The accused has not given any explanation by giving evidence in response to the Crown case. There are a number of important directions of law of which I must remind myself in relation to that. An accused person may always by giving evidence make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown's case, but there is no obligation to do so. 18 As I have already pointed out the Crown bears the onus of proving beyond reasonable doubt that the accused committed the offence with which he is charged. The accused bears no onus. The accused is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the Crown that the accused committed the offence with which he is charged. 19 Although the accused may give and call evidence in relation to the whole or any part of the Crown's case by way of explanation for it or by way of additional matters which the accused may wish to raise, the accused may equally elect to give no such explanation or call any evidence in that regard. 20 The accused is entitled to say nothing and make the Crown prove that he committed the offence charged. I direct myself as a matter of law that the accused's silence in court cannot be used against him as an election by him evidencing his guilt or that he believes that he is guilty. The accused's election not to offer an explanation for the whole or any part of the Crown's case by giving evidence constitutes no admission by the accused and no such inference must be draw from that fact. Nor may I use such an election to fill gaps in the evidence tendered by the Crown or as a factor to be added to the weight of the evidence led by the Crown in assessing whether the Crown has proved its case beyond reasonable doubt. 21 I must not speculate about what might have been said in evidence if the accused had himself given evidence. Whilst not overlooking these statements of principle the Crown submitted that in this case it was appropriate for the court to weigh for a discrete purpose the decision of the accused not to give evidence. The Crown submitted that use for the purpose ventured would not contravene the principles rehearsed above or the limitations imposed by s 20 of the Evidence Act 1995 which relevantly provides: " (1) This section applies only in a criminal proceeding for an indictable offence. (2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. " 22 Subs (3), (4) and (5) have no relevance to this question. The accused stands alone in this trial. 23 Accordingly, the decision not to give evidence may not be viewed as evidence of his guilt of the offence or his belief that he is guilty of the offence. 24 However, the Crown submitted that the court may use the election not to give evidence in accordance with what was said in Azzopardi v The Queen (2001) 205 CLR 50 at [64] where the majority wrote (emphasis added): " There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. " 25 The Crown submitted that in this case the evidence that might have been offered by the accused would be as to additional facts, namely, circumstances in which his fingerprints might have been left where found by those investigating the break, enter and steal. This evidence would be additional evidence extending beyond a mere contradiction of evidence already adduced in the Crown case. It was submitted that I should bring to account the election of the accused not to give evidence explaining the presence of his fingerprint impressions or contradicting the inferences to be drawn from the evidence presented by the Crown when considering the unsworn representations attributed to the accused by the police when he was confronted with the accusation. 26 It was submitted that I should entirely disregard what he said on that occasion, and that I should find that the accused can offer no explanation for the evidence from which his guilt is the only rational inference to be drawn. 27 I am not persuaded that the election not to give evidence should be used for the purposes for which the Crown contends, however I am of the opinion that I may weigh the election not to give evidence in this case when considering whether the hypotheses advanced by the accused's counsel are to be seen as rational or reasonable inferences in this trial. 28 The reasoning in Weissensteiner to which their Honours in Azzopardi v The Queen referred appears in the judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at [227] (emphasis added): " We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them. " 29 Counsel for the accused advanced a number of propositions, which she said were consistent with innocence. Upon analysis these may be seen to be variations upon the one theme. She submitted that if true any one of these hypotheses would explain how the fingerprints of the accused might have been placed where they were found. She acknowledged that there was no evidence of any of her hypotheses direct or indirect and no material before the court from which one might infer the existence of any one of them. She submitted however, that I would accept each proposition as reasonably possible and sufficient to displace the inference of guilt for which the Crown contends. They were examples, she submitted, of conduct that might be expected of people in the circumstances she offered, of which the court would take judicial notice as the sorts of things that people do. 30 She submitted that any one of the hypotheses should be accepted as reasonably possible, and that they provide an innocent explanation for the presence of the accused's fingerprints impressions where found, which the Crown could not exclude as entirely consistent with them having been deposited there at some time other than when the break, enter and steal was committed. The propositions suggested were: 1. The accused could have gone to the house looking for some person and whilst there touched the door where the fingerprint impressions were found. 2. The accused could have visited the house with someone else known to the occupants and with a legitimate reason for attending in the course of which the accused touched the door where the fingerprint impressions were found. 3. The accused could have gone to the premises with another person believing that he or she lived there and whilst there the accused touched the door where the fingerprint impressions were found. 4. The accused could have been there for some unlawful purpose including the offence of entering enclosed lands with which he was charged in the Local Court as a back-up offence to the present offence, whether or not alone or with other young people, simply to hang around and perhaps consume alcohol, and whilst there touch the door where the fingerprint impressions were found. 31 In support of these propositions counsel pointed to the configuration of the house. It is not disputed that the front of the house faces to the north and that on the eastern side there is a driveway extending from the street to the rear of the house, that there is a gate at the side of the house that was not locked, and that the front door of the house was located on the eastern side some distance from the front of the building. She submitted that it was a reasonable assumption that any one who attended the house, but who received no answer to their knock at the front door, might go to other doors or windows where they might look inside to see if there was anyone at home, including to the back door where the fingerprint impressions were found. 32 Counsel also pointed to the fact that the police found no other fingerprint impressions or biological material connecting the accused to these premises other than the impressions that were found upon the exterior surface of the glass fitted to the rear door. If the accused was so careless as to leave fingerprint impressions there, he might have been expected to leave fingerprint impressions and biological material within the premises if he was the person who entered in the commission of this offence. 33 Without wanting to do injustice to these submissions, l find that in this trial and within the context of the evidence that has been placed before the court, in the absence of any material before the court upon which their existence might be supported the hypotheses ventured rest entirely upon conjecture. 34 This said, it might well be acknowledged that as general propositions the hypotheses might have some merit. It might be readily accepted that someone might have any number of legitimate purposes in attending the premises without the knowledge of the occupant, and without their express consent, and might even have had some unlawful purpose other than that with which the accused was charged. However, these general propositions are not to be weighed in the abstract, but within the context of the trial and the evidence that has been adduced. 35 The Crown case is a circumstantial case. The Crown led direct evidence of facts in respect of which there has been little if any challenge. These include the fact of the break, enter and steal, the evidence of damage to the premises consistent with there having been two points of attempted entry, the point of actual entry, the placement of the fingerprints on the rear door of the premises proximate to one of the points of attempted entry, the evidence of the quality of the fingerprint impressions found the morning after the break enter and steal occurred to be assessed against the exposure of the surface on which they were found to the elements and bird droppings, the evidence of the occupants of the house that the accused is not known to them, and that they have no knowledge of any legitimate reason why his fingerprint impressions might be found on their back door. 36 It is true, as was submitted by counsel for the accused, that there is no direct evidence of when the fingerprint impressions were left, but it is I believe a reasonable inference to be drawn from the evidence presented in the Crown case that the impressions were left there in the course of the commission of this break enter and steal. There was no evidence from the accused, although evidence was led in his case in the form of a photograph of the house exposed from the street and records from the Commissioner of Police in which there are particulars of his description including his height and weight. This is relevant to whether the accused was of a size that would allow him to enter the building through the aperture made in the roof and ceiling whereby entry was gained to the house. 37 Whether I may be satisfied beyond reasonable doubt that the guilt of the accused is the only rational inference to draw depends upon my assessment of the evidence from the Crown, the evidence if any led from or on behalf of the accused, and the submissions of counsel, and whether there are rational or reasonable inferences available that are consistent with the accused's innocence. 38 I am persuaded that it is appropriate to bring to account the election of the accused not to give evidence when considering whether the hypotheses ventured are rational or reasonable. If there was evidence to support the proposition that the accused was on some other occasion at the premises consistent with any of the hypotheses advanced, or indeed for any other purpose beyond the wit of counsel to construct, it must be evidence that is peculiarly within his knowledge. As was said in the passage quoted from Weissensteiner, in the absence of evidence to support hypotheses consistent with innocence, when the evidence if it exists at all must be within the knowledge of the accused, those hypotheses may cease to bear the descriptions rational or reasonable. The Accused's Right to Silence 39 When the accused was arrested he declined to the opportunity to be interviewed although he did utter a brief response described by the police officers with whom he spoke. I remind myself that all of us in the community have a right to refuse to answer questions put to us by the police if we do not want to speak with them, and I must not use the fact that the accused has said that he did not want to answer questions against the accused in any way. Circumstantial Evidence 40 I will now turn to the principles relevant to circumstantial evidence. Fundamental to these instructions is the direction I have given myself about the drawing of inferences. As I have said the onus of proving the accused's guilt is upon the Crown. The Crown must establish his guilt beyond reasonable doubt. This means that in respect of each of the essential ingredients or elements of the charge I must be satisfied beyond reasonable doubt that the Crown has established its case before I am entitled to bring in a verdict of guilty. 41 I have also said that my function as the fact finding tribunal in this case goes beyond coming to a conclusion as to whether or not I am satisfied that a particular basic fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find to be established. I have noted that the Crown relies upon circumstantial evidence, which is evidence of a basic fact or facts from which I am asked to draw a conclusion as to a further fact or facts. There is no direct evidence from someone to say that he or she saw the accused commit any of the acts that combine to make this offence and which the Crown says constituted the alleged crime. 42 The Crown relies upon evidence of basic facts from which I am asked to infer or conclude that the accused is guilty of this crime. Because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, including that the accused participated in the offence, any such inference or conclusion from basic facts relied upon by the Crown must of course be a conclusion reached beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown but also after having given careful consideration to the evidence presented by or on behalf of the accused and the submissions of counsel on behalf of the Crown and accused. 43 There are two steps in this exercise. I must first of all decide whether I am satisfied beyond reasonable doubt that the direct evidence establishes the basic facts. It is essential that I examine the evidence with care and consider whether it is reliable before taking the next step and drawing any conclusions from the facts that I regard as established by it. If in my view it is not of sufficient reliability to enable me to come to the conclusion which the Crown says I will come to after having taken into consideration and given due weight to the submissions of counsel on both sides, then I must acquit. 44 If, however, I am satisfied beyond reasonable doubt that the direct evidence has established the basic facts for which the Crown contends, then I must consider what inferences I might draw from those basic facts. A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending on the nature of circumstances relied upon when considered as a whole and not individually or in isolation, and the degree of clarity and certainty to which that evidence may lead inevitably to the conclusion that the Crown has established its case. 45 Before I may draw any inference of guilt I must be satisfied as to the existence of the facts and circumstances from which I am asked to draw that conclusion and I must avoid any speculation or conjecture in arriving at any such conclusion adverse to the accused. If such conclusion is to be drawn beyond reasonable doubt it must be on the basis of a rational and logical process of thought. If I draw an inference adverse to the accused and in favour of the Crown, it must be the only inference, which in my view can be drawn beyond reasonable doubt. 46 If at the end of my deliberations there is available more than one conclusion than that favourable to the Crown, then obviously the Crown has not proved its case beyond reasonable doubt and my duty would be to acquit. The Evidence 47 With the consent of the accused the Crown tendered a series of statements from witnesses who were not to be called and whose statements were to be read onto the record. These were from Viola Spicer and police officers named Jackson, Kemeny and Alderton. 48 Viola Spicer, who lived at this address with her husband Wallace for many years, does not know the accused. The door at the rear of the house into the kitchen from the landing at the top of stairs which rise from the backyard, and which I find was a point where entry was attempted in the course of this break enter and steal, was about four years old. 49 She cleaned the exterior surface of the glass fitted to that door every six weeks or two months. Birds would leave their mess on this door. She described the access down the eastern side of the house along the driveway to the rear and the position of the unlocked gate along that way. Constable Kurt Jackson attended the premises about 1 am on Thursday 2 September 2007, with Constable Morgan in response to a radio message. They took the initial report of the break enter and steal, and saw the disruption to the study from which property was stolen, and the holes in the ceiling and the roof. Constable Morgan entered the ceiling cavity and found where the tiles had been removed. 50 Senior Constable John Kemeny with Constable Alderton spoke with the accused on 7 December 2007 and took a set of his fingerprints, which were returned to Maroubra police station for despatch to have them compared with those found at the scene. Senior Constable Lisa Alderton described the conversation she had with the accused on 7 December 2007, when she informed him that fingerprint impressions matching his were found at the scene. The official caution was administered and he responded, "Yeah, what's this all about?" Implicit in this response is a denial of wrongdoing. 51 In further conversation in which he was once again formally cautioned, when asked whether he would participate in an interview he said, "I can't explain to you how my prints got there, I can't remember. No I don't want to participate." I have already instructed myself upon the principles relevant to the decision of the accused not to take part in an interview with the police officers. 52 Constable Christopher Kruit gave evidence of his attendance at the Spicer premises about 1:10 am on Sunday 2 September 2007 with Constable Hicks. He saw damage to the guttering near the landing consistent with some downward pressure leaving it bent downwards. The admission of this evidence was challenged, but for reasons that I shall give shortly it was admitted. He also saw dirt on the railing around the landing of the back door. This too was challenged. For reasons that will follow I rejected that evidence. 53 On 21 May 2008 Constable Kruit exposed photographs depicting the rear door of the premises where the fingerprints were found and damage in the vicinity of the door handle, including the broken tip of an implement consistent with a knife left embedded in the rubber seal between the glass and the metal frame. He also described damage to the laundry window. The evidence from Mr Spicer was that the laundry is located beneath the house and is accessed from the rear at ground level. There is no access into the house from within the laundry. 54 Constable Kruit described the property. He said the land slopes and where it is higher there is a water tank at the side of the house. 55 Wallace Spicer was called next. He is seventy-eight years of age. He described his house and the events surrounding the offence, the commission of which he interrupted. He described the damage to the rear door and to the laundry and to the roof and ceiling. His description was consistent with the photographs of the door and the roof and ceiling exhibited in the trial. He gave evidence of the damage to the roof guttering that was brought to his attention some weeks after the break and enter by his son in law. He saw no damage to the rear door prior to the day of the offence. He did not know the accused and knew no reason why he would be at the back door of his home. 56 With regard to the roof guttering he gave evidence that there had been no repair carried out to the guttering. He said that some two years before the present time the water tank was installed at the house and at that time the guttering was in good repair. He had seen no damage to the guttering at all between that point in time and when his son in law brought it to his attention a few weeks after the break and enter. 57 David Wilson was the crime scene officer who attended the premises the morning after the break enter and steal and found the fingerprint impressions on the external side of the glass on the rear door. He exposed photographs of the door and the position of the fingerprints that he found. He also photographed the hole in the ceiling, and the hole in the roof where tiles had been removed. 58 The position of the fingerprints, which are of the right thumb and right middle finger, is toward the top of the glass in the upper section or upper half of the door. The thumbprint, identified as W1, is adjacent to the left hand edge of the glass as one faces the door from outside. The imprint of the middle finger marked as W2 is to the right of W1 and a little above. I should note, in addition to what I have said about the evidence from Constable Kruit, he acknowledged that the top of the water tank was a potential point of access to the roof. 59 Returning to the evidence of Mr Wilson. He described the examination he made of the crime scene and the photographs that he exposed, which were marked exhibit F and tendered through Constable Kruit. He described the position of the railing on the landing outside the rear door; the railing extended around the edge of the landing and connected to the rear wall near to the window into which security bars were fitted. It is common ground that the window opens into the study from which the property was stolen. 60 The hole in the roof was forty-one centimetres by twenty-seven centimetres. It gave access to the roof cavity. He said the hole was too small for him to enter. He is six foot one tall and I think he weighed ninety kilograms from my recollection. He noted the bars in the study window. He said there was a distance of fifteen metres between the hole in the roof and the hole in the ceiling. He agreed that the offender who gained entry could not have been very tall or very large. There was much evidence sought in cross-examination regarding the capacity of one who might seek to access the premises through the holes that were made. None of the evidence touched upon the proposition that a person with agility regardless of their size might be able to access the premises through these apertures. 61 The damage to the rubber seal on the door was described and was exhibited in photographs he exposed. He said that it had been partly pulled away. He said he applied white fingerprint powder using a soft brush and he observed that the fingerprints found were of good quality and were, in his words, very heavy. He said quality of the fingerprint left depends upon the quantity of the material deposited. He said in his opinion there was no significant deterioration of the fingerprints that he was able to harvest in this way. He placed those fingerprints onto the case management system so that the appropriate expert might compare them for the purposes of their identification. 62 He noted that the screen to the laundry window was cut. He conducted a fingerprint examination of that location. He said there were three points of possible access to the roof: a neighbour's fence, the balcony rail at the rear door, and the water tank. 63 He was cross-examined about what the size a person would have to be to be able to enter the house through the roof for the holes found in the roof of the ceiling. He said a person of five foot nine inches could enter but a person of five foot eleven inches would have difficulty. Again, there was no consideration to the agility that such a person might have. 64 There was an attempt to have him consider the particular entry regarding the person of interest, said to be the accused, in the document produced from the Commissioner of Police, but this was not pursued after the Crown's objection. That document was ultimately tendered, it's provenance having been well established by the subpoena that brought it into court. The Crown did not challenge the proposition that it was a business record and was not otherwise excluded from use by the provisions in the Evidence Act. 65 He confirmed that the photograph of the house, exhibit 1, exposed from the street, represented what he saw of the house, and what he saw of the features there depicted of the house when he visited the premises. 66 He was followed by Detective Sergeant Martin Swatridge, who is the fingerprint expert. He has extensive qualifications, which were acknowledged on behalf of the accused. He gave evidence of the comparison made and the identification of the latent impressions found as matching the fingerprints of the accused. He told me that glass is one of the best surfaces for holding fingerprint material, which is the deposit of fluid from the finger surfaces of someone who touches the glass. Glass is shiny and the fluid will not penetrate. He referred to environmental factors. He referred to the impact of cleaning the glass. He said that the fresher fingerprints were, the darker they would come up whether using white or black powder. I understood his evidence to mean that the take up of the powder in either case was greater if the prints were fresher. He said if the powder readily adheres to the print it is an indication that it is fresher. If a lot of powder is absorbed it is an indication of freshness. 67 He was shown a folder of photographs which became exhibit J. These were close up photographs of the fingerprint impressions harvested by Mr Wilson. The sergeant said there was no evidence of decay or breakdown that he could see in what was depicted in those photographs. He agreed in cross-examination that there were case studies with regard to the time during which fingerprint impressions might remain where placed, but he said that care must be taken when considering those case studies, particularly when they were performed at different places or different environmental conditions applied. Environmental conditions will vary from place to place and from country to country. 68 The cross-examination did not extend to any questions, as I recall, with regard to the quality of the print that might be left after an extended period of time. 69 That was the last witness called by the Crown, and argument was then heard upon the admissibility of the evidence relevant to the damage to the guttering. Decisions Upon Admissibility of Evidence 70 In the course of the trial I was called upon to rule upon the admissibility of evidence, and I indicated that in addition to my immediate remarks I would provide more fulsome reasons when delivering my judgment and the verdict. This enabled the trial to continue with minimum disruption. 71 The first challenge was to evidence from Constable Kruit regarding the presence of dirt on the railing on the landing outside of the kitchen door, which he believed to be from shoes coming into contact with the railing surfaces. 72 He was unable to say precisely where this was or the extent of the dirt of the soil. There were no photographs exposed of this material. There was no evidence from any other person regarding the presence of the dirt, including from Mr and Mrs Spicer, as to whether or not it was the product of some other activity. 73 Although such evidence if more precise and detailed might have been used to support the proposition that the offender or offenders had stood on the railing to gain access to the roof, from which tiles were removed for entry to the roof cavity, in the form presented in my assessment it had no probative value and I took the view that it should be excluded as not meeting the minimum requirements of s 55 of the Evidence Act. 74 There was also a challenge to evidence from Constable Kruit regarding the damage to the roof guttering in the vicinity of the rear door. It was said that it did not meet the test of s 55 of the Evidence Act, but even if it did, it engaged the operation of s 135 and 137 of the Evidence Act requiring that it be excluded. 75 The constable said that when he attended the premises shortly after the offence he noticed that the guttering at this point appeared as if someone had pulled or stepped on it. Photographs exposed that day were inconclusive, but before concluding his evidence he returned to the house and exposed further photographs showing the damage of which he spoke. 76 I pause to note that Mr Spicer had given evidence that there had been no repair to the guttering after he saw the damage, when it was pointed out by his son in law. 77 It is in my assessment damage that is consistent with what might have been occasioned by someone ascending onto or descending from the roof at that point, which is proximate to the rear door where the fingerprints were found, and where there was evidence of an unsuccessful attempted entry. Moreover this point was proximate to the window to the study upon which security bars were installed. The hole in the ceiling over the study was about fifteen metres from the hole in the roof. Mr Spicer said, as I have noted, that the damage was brought to his attention some weeks after the break in and that he had not had it repaired since that time. He said that the guttering was intact and undamaged when he had a rainwater tank installed about two years ago, that is from the time of this trial, and he did not notice that there was any damage to it after that time until it was brought to his attention by his son in law. 78 There was no question that the entry was made by way of the roof after the removal of the roof tiles and the hole in the ceiling. It is reasonable to infer that the offenders were intending to enter the study, which, from the photographs, appears to be the only room protected with security bars. This room is adjacent to the kitchen into which opened the door where the fingerprints were found, and which exhibited marks and a broken tip consistent with an attempted break in at that point. 79 If the damage to the guttering was occasioned at the time of the of the offence in the pursuit of that enterprise, an available inference in my view, evidence of its existence is relevant. It is probative of the fact that the offenders were attempting to access the study in their enterprise, which included an unsuccessful attempt upon the kitchen door, proximate to that room, and upon which the fingerprints were found. 80 Counsel is correct in her submission that there is no evidence from Mr or Mrs Spicer as to when that damage might have been first occasioned, but that must be balanced against the observations of the constable that it was seen on the morning after the offence and the evidence of its proximity to the other features to which I have referred. There is in my assessment no unfair prejudice to the accused from this evidence. It is not misleading or confusing and its admission could not result in an undue waste of time. I do not believe that ss 135 or 137 of the Evidence Act are engaged. I admitted the evidence. The Essential Elements 81 The essential elements, which combine to create the offence with which the accused is charged, are that he: 1. On or about 2 September 2007 at Maroubra 2. In circumstances of aggravation 3. Did break and enter the dwelling house at 7 Nichol Street; and 4. Did steal there from 82 There has been no question raised in the course of the trial regarding the fact that of this break enter and steal. Notwithstanding this, it remains that I must consider the evidence and decide whether it proves beyond reasonable doubt that the offence was committed at the time and place alleged. The evidence relevant to this came from Mr Wallace Spicer, who with his wife has been at all material times the owner and occupant of these premises. Mr Spicer gave evidence in the trial, and a statement provided by his wife was read onto the record of the trial by the Crown with the consent of the accused. There was no question asked of Mr Spicer to suggest that the offence did not occur as is to be inferred from his description of the event. 83 He said that in the early hours of 2 September 2007, he was asleep with his wife when he heard a noise that prompted him to investigate by looking through a window in the direction of his neighbour. He saw nothing and returned to bed but was disturbed once more and went to his study from which he heard more noises. He attempted to open the door, but a lever style handle was positioned in an upward configuration, and try as he might he could not turn it down as to be able to open the door and enter the room. He concluded that there was someone on the other side of the door holding the handle fast to prevent him from entering. He abandoned this endeavour and telephoned the emergency telephone number. Shortly after the police arrived. 84 The point of entry to the house was found. Two video cameras and other items were found to have been stolen. The offender or offenders made good their escape. The investigation continued into the daylight hours with the scene of crime officer attending. Mr Spicer inspected his property. The damage to the rear door was found. The door is a metal frame construction with a glass insert. There was damage in the vicinity of the lock consistent with an attempt to force it. There was a piece of metal comparable to the point of a knife or similar implement wedged between the glass and the doorframe into the rubber seal in a position such that it must have broken in an attempt to lever the glass insert at that point. 85 At a time that Mr Spicer could not exactly specify, but estimated to be some weeks after the offence, he saw that the roof guttering over the rear door was damaged and that it was bent down consistent with there having been some downward force applied to it. He saw no damage to the door prior to this time, but he said that the roof guttering in the house was in good condition beforehand. However, the evidence available does not allow a finding other than that there was no occasion before when the damage to the guttering was noticed by him or brought to his attention. 86 Upon the evidence of Mr Spicer and the evidence of the observation of the police officers at the scene, in respect of which there was no challenge, there is only one conclusion to be drawn, and that is that all of the elements of the charge have been established beyond reasonable doubt. 87 I should however comment with regard to the circumstance of aggravation upon which the Crown relies, namely the presence of Mr and Mrs Spicer in the house at the time. The definition of circumstances of aggravation is found in s 105A of the Crimes Act. It provides as a circumstance of aggravation that the alleged offender knows that there is a person or that there are persons in the place where the offence is alleged to have been committed. Section 105A (2A) provides that for the purposes of this circumstance of aggravation, if there was a person or there were persons in the place in relation to which the offence is alleged to have been committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no-one in the place. There has been no evidence at led upon this question and accordingly the presumption is engaged. 88 The issue in the trial is whether the Crown has proven beyond reasonable doubt that the accused committed the break enter and steal. 89 The evidence connecting the accused to this premises is the fingerprint evidence. The fingerprint impressions were found on the glass rear door proximate to the damage to which I have already referred. There is no challenge to the fact that the fingerprint impressions were found or that they matched the fingerprints of the accused. All of that evidence in any event establishes those facts beyond reasonable doubt. 90 It is said on behalf of the accused however that the fact that the impressions were found there on the day immediately following the break and enter is neither here nor there in the absence of other evidence to show precisely or even approximately when those impressions were left. In my respectful view the submissions advanced have given insufficient weight to the inferences that are to be drawn from the circumstances that were identified by the Crown. These were that the Spicers' have occupied this house for fifty years; the rear door was somewhere up to four years of age; the door was cleaned by Mrs Spicer on the outside every six weeks to two months; it was the rear door at the top of the landing where the fingerprints were found. 91 The Crown pointed to the placement and orientation of the fingerprints on the door. Neither of the Spicers know the accused. Neither of the Spicers can say why his fingerprints would be on the back door. 92 The Crown submitted that there were no circumstances consistent with innocence to be inferred from the material that has been presented in this trial. The Crown submitted that it is fanciful to think that the accused just happened to go to this house. The Crown pointed to the proposition that there were two points of attempted entry and one point of actual entry. The fingerprints were found proximate to one of those attempted points of entry. The fingerprints were found shortly after the commission of the offence. 93 The quality of the fingerprint impressions was said to be good and exhibited characteristics from which one would conclude that they were freshly placed. There was evidence of environmental factors that would impact upon the quality of fingerprints if left exposed in that location for extended time. There was no evidence of any deterioration or decay apparent according to the expert. 94 The fingerprints were also proximate to the damage to the guttering which itself was consistent with an attempted access or indeed access to and from the roof from the landing at the back door. 95 The Crown submitted that the description of the accused as a person of interest in exhibit 2 was of itself to be given little weight when assessing whether he would be a person capable of entering the house through those apertures. The relevant entry is on page 6 of that document toward the bottom at about point 8. This portion I am about to quote is immediately above the section dealing with hair, eye and facial hair. The relevant passage is: "Build/Height/Weight: MEDIUM 175 TO 180 cms 70 to 80 kgs." There is a significant range in that description. The Crown also asked that I take note of the presentation of the accused here in court in the course of this trial to make an assessment. 96 There are difficulties with these propositions and indeed difficulty with the proposition that is being urged by counsel for the accused. I am not an expert in biomechanics. I have no more than the actual dimensions of the roof aperture and the ceiling aperture. I have an imprecise description of the offender's height and weight. I have no evidence of his agility. l have no evidence of his height, weight or level of agility at the time of the break enter and steal. Moreover, although one could not find beyond reasonable doubt that this offence was committed in company with another person, which is itself a circumstance of aggravation, it is not possible to say that the offence was committed by the accused alone, and whether or not he had at that time the capacity to enter the house through those apertures does not answer the question whether or not he was accompanied by someone who might have that capacity. 97 I tend to put to one side what has been offered and what has been said regarding the size and weight of the accused. Findings and Verdict 98 I am satisfied beyond reasonable doubt that the break enter and steal occurred at the time alleged in the charge contained in the indictment. I am satisfied beyond reasonable doubt that the evidence establishes that there were two attempts to gain entry to these premises, one by way of the laundry but from which access was not available to the inside of the house, the other by way of the rear door where some implement consistent with a knife was used in an attempt to lever the glass panel, and after which the point of that implement was left embedded in the rubber seal. 99 I am satisfied beyond reasonable doubt that the break enter and steal was committed by way of the roof and the ceiling and I am satisfied that it is a reasonable inference to draw that in the course of the execution of this crime the offender or offenders accessed or departed from the roof at a point proximate to where the damage to the roof guttering was found. It is not possible to say precisely in which sequence each of these events occurred other than it must be the case that the actual penetration of the building was the last in time, when the offender or offenders were detected by Mr Spicer. 100 I am satisfied that the evidence allows as the only rational inference in the circumstances that the fingerprint in each instance was left in the course of the prosecution of this enterprise. The hypotheses that have been advanced on behalf of the accused in the absence of evidence, which if it did exist would be peculiarly within his knowledge, does not displace the inference that is available from the evidence in the Crown case, and they diminish to the point of being of no value. The hypotheses that have been presented are not to be seen as rational reasonable inferences. 101 I am persuaded beyond reasonable doubt that the accused is guilty of this charge, and accordingly, upon the charge that Paul Anthony Little on or about 2 September 2007 at Maroubra in the State of New South Wales did break and enter the dwelling house of Wallace Spicer at 7 Nichol Avenue and while in the said premises did steal certain property, namely photographic and electrical equipment belonging to the said Wallace Spicer in circumstances of aggravation, namely that at the time of the offence he knew that there was a person present in the said dwelling house, I find the accused guilty. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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