New South Wales District Court CITATION: R v Scott Owen BROWN [2009] NSWDC 112 HEARING DATE(S): 12-13 May 2009 JUDGMENT DATE: 13 May 2009 JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ CATCHWORDS: CRIMINAL LAW - particular offences - offences against the person - property offences - break and enter a dwelling house and commit larceny - in company - joint criminal enterprise - damage property - intimidate LEGISLATION CITED: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Director of Public Prosecutions v Fraser [2008] NSWSC 244 McAuliffe v The Queen (1995) 183 CLR 108 CASES CITED: R v Brougham (1986) 43 SASR 187 R v Jacobs and Mehajer [2004] NSWCCA 462 R v Tangye (1997) 92 A Crim R 545 Taufahema v The Queen [2006] NSWCCA 152 PARTIES: Regina Scott Owen BROWN FILE NUMBER(S): 2009/00000740 COUNSEL: M Pincott for the Crown G Brady for the accused SOLICITORS: Department of Public Prosecutions Pogson Cronin Solicitors & Notary The Trial 1 On 11 May 2009, the accused filed an election to be tried by judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from a barrister. 2 When arraigned on 12 May 2009, the accused pleaded not guilty to the following offences, each of which allegedly occurred on 2 September 2008 at Lavington: 1. Break and enter a dwelling house and commit larceny in the company of P and M. 2. Intentionally damage a freezer, carpet and wardrobe the property of the complainant. 3. Intimidate the complainant with the intention of causing her to fear physical or mental harm. 3 The accused pleaded guilty to a fourth offence of stealing a bottle of alcohol in the complainant's dwelling. Outline of Evidence 4 The accused lived in the same street as the complainant. On the night of 1 - 2 September 2008, there was a party at the flat of the accused and his sister. P and M were present. The accused became very intoxicated. Late in the night, a female partygoer observed the accused holding a black plastic object containing a set of five coloured lights. She heard the accused say something like "I'm going to go across the road to sell these lights to Brett". He mentioned trading the lights for drugs. The accused walked out of the flat holding the lights. He began to run across the road towards a block of flats. As he started running, P and M followed behind him. 5 At about 4 a.m. on 2 September 2008, the complainant was at home asleep. She was woken by the sound of voices outside her bedroom window, which was close to the locked front door of her residence. Within seconds of hearing the voices, she heard the front door bang. Later, it was discovered that the front door lock had been forcibly broken. 6 Two young men (P and M) came into the complainant's bedroom, demanding drugs and demanding to know the whereabouts of "Ben". They became "manic", yelling and moving in and out between her bedroom and the lounge room, which was immediately outside the bedroom. She realised that a third person (the accused) was in the lounge room. She could hear noises consistent with shuffling and things being opened, although she could not see what the accused was doing. Then he walked past her bedroom door and she saw that he was carrying a bottle of Malibu. About 30 seconds later, the accused stood in her bedroom door holding an object (consistent with the set of lights) under his arm and "smirking". Unlike the P and M, he didn't yell or rifle through her property. The three men left. 7 Within a short time, P and M returned. One punched the complainant and the other kicked her. One threatened her with a knife and the other threatened her with an uplifted ironing board. One threatened to kill her. The two young men then left. 8 A neighbour observed the accused. He was carrying a bottle of Malibu and standing at the front door to the complainant's residence. When asked what he was doing, the accused said "One of me mates doors just got kicked in. Some young kid's done it". He ran off. 9 The accused ran back to his flat and handed the lights to the female partygoer, saying "Quick, take these inside." She observed that P and M had returned. 10 When police arrived at his flat, the accused admitted attending the complainant's residence. He told Sergeant Watson: "We went over there to buy speed. My friend used to live there, Ben. He was in G. block. They went in saying where's the drugs, where's the drugs. They just kicked the front door in and smashed the place. I was there, she was so scared that girl. I saw what they did. I went in so you probably want to arrest me and take me to the station." 11 The accused was arrested. He participated in an electronically recorded interview. 12 I set out the principles of law that I apply and the findings that I make concerning relevant contested facts for the purpose of arriving at verdicts. General Directions 13 The three charges to which the accused has pleaded not guilty have been tried together as a matter of convenience. Each charge must be considered separately and a separate verdict returned on each charge. 14 The Crown has the task of proving the accused guilty beyond reasonable doubt. The accused is presumed to be innocent of each charge unless the Crown proves him guilty beyond reasonable doubt. Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on a particular charge I must return a verdict of not guilty on that charge. 15 The Crown must prove each legal element or ingredient of a charge beyond reasonable doubt. The Crown need not prove the truth of each statement of each Crown witness. 16 In this trial, there is no dispute that P and M committed each of the offences to which the accused has pleaded not guilty. The contentious issue is whether the accused was part of a joint criminal enterprise to commit those offences. The Crown case on joint criminal enterprise depends on circumstantial evidence. Consequently, in this trial the critical issues are: 1. Whether the only available rational inference is that the accused was party to a joint criminal enterprise to break, enter and steal from the complainant's premises. 2. If so, whether the crimes of intentional damage and intimidation were within the scope of the common purpose of the foundational crime of break, enter and steal. Joint Criminal Enterprise 17 The model direction in relation to a "straight forward joint criminal enterprise" is found in R v Tangye (1997) 92 A Crim R 545 at 556 – 557. 18 A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement that they will commit a crime. The understanding or arrangement need not be express. It may be inferred from all the circumstances. The circumstances in which two or more persons participate in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement between them to then and there to commit the crime. 19 A person may participate in a joint criminal enterprise although he or she does not commit be agreed crime itself. If the person is present at the time when the crime is committed and is ready to give aid if required, that is sufficient to render the person a joint criminal participant. Mere presence alone is insufficient. 20 Where the Crown charges an offence other than the offence the subject of the alleged joint criminal enterprise (an incidental offence), the Crown may rely upon "extended joint criminal enterprise". The Crown must show that the incidental crime was within the scope of the common purpose, ie that it was within the contemplation of the accused as a possible incident of the agreed joint criminal enterprise. The Crown must identify the mode by which it is contended that the incidental crime was within the scope of the common purpose. The scope of the common purpose is to be determined by a subjective test: McAuliffe v The Queen (1995) 183 CLR 108, Taufahema v The Queen [2006] NSWCCA 152. Aggravated Break Enter and Steal 21 In relation to an offence of aggravated break, enter and steal, the Crown must prove four legal elements beyond reasonable doubt. 22 First, the Crown must prove that there was a breaking and entry into premises. To break into premises means to forcibly gain access. There was uncontested evidence that P or M broke the locked front door of the premises by kicking or otherwise forcing it open. 23 To enter premises means to go inside the premises. There was uncontested evidence that P, M and the accused each went into the premises and remained within the premises for some minutes. 24 The second element to be proved beyond reasonable doubt is that the premises were a dwelling house. "Dwelling house" includes any building intended for occupation as a dwelling and capable of being so occupied. There was uncontested evidence that the complainant and her friend occupied the premises, and the premises appeared to be designed for that purpose. 25 The third element is that a serious indictable offence, namely larceny, was committed in the premises. The Crimes Act defines "serious indictable offence" as an indictable offence punishable by imprisonment for at least five years. Larceny is an offence so punishable. Therefore, it is a "serious indictable offence". 26 To steal property means to take property without the consent of the owner, intending to permanently deprive the owner of her property. The Crown must establish some physical movement of property, that the owner did not consent to removal of the property, and that, when the property was moved, the offender moved the property with the intention (for the purpose) of permanently removing the property from the owner. There was uncontested evidence that P and M removed valuable property (including a mobile telephone, handbag and contents, digital camera valued at $400 and the DVD player) from the premises without the complainant's consent. She acquiesced only because she was fearful. Through sheer good fortune, some of the property was later recovered. The only available inference is that, at the time when they removed the property, P and M intended to permanently deprive the complainant of the property. 27 The fourth element is that there was a circumstance of aggravation, namely that the offence was committed "in company". Inter alia, if a person makes his presence known to a victim so that the victim is confronted by the combined force or strength of two or more persons, then that will suffice to prove the element of "in company" even if, as it happened, the person did not intend to physically participate in the offence: R v Brougham (1986) 43 SASR 187 at 191, R v Jacobs and Mehajer [2004] NSWCCA 462. There was uncontested evidence that P, M and the accused were present together in the complainant's residence and that the presence of all three was made known to the complainant. 28 Based on uncontested facts that I accept, I am satisfied beyond reasonable doubt that the offence of break, enter and steal in company was committed by P and M. 29 The contentious issue is whether the accused was party to a "straight forward joint criminal enterprise" to commit that "foundational offence". Intentional Damage 30 The Crown must prove two elements beyond reasonable doubt. 31 First, the Crown must prove that damage was occasioned to a freezer, carpet and wardrobe the property of the complainant. Damage includes "physical derangement", but it is not necessary that the physical arrangement be permanent, or even lasting: Director of Public Prosecutions v Fraser [2008] NSWSC 244. There was evidence that a freezer was kicked and dented, the bedroom wardrobe door was kicked in and "dented off" its rails, and bottles of white wine were smashed into the carpet (inferentially, staining the carpet). Although the photographs do not clearly corroborate the complainant's evidence about damage, as her evidence was uncontested I find that there was minor damage to the nominated possessions, sufficient to amount to damage at law. 32 Second, the Crown must prove that the damage was caused intentionally, i.e. that the perpetrator deliberately caused the damage. The complainant gave evidence that the two young men (P and M) appeared agitated and angry (she used the word "manic") when they failed to find "Ben" in the premises. From the deliberate and otherwise pointless nature of the conduct that caused the damage (kicking and smashing) and the fact that the evidence of agitation, I infer that the perpetrator/s must have intended to cause the damage that resulted. 33 I am satisfied beyond reasonable doubt that the offence of intentional damage was committed by P and/ or M. 34 As the offence of intentional damage flowed from the foundational offence of break, enter and steal in company, the first contentious issue is whether the accused was party to a joint criminal enterprise to commit the foundational offence. If so, the second contentious issue is whether the offence of intentional damage was within the scope of the common purpose associated with the foundational offence. Intimidation 35 The Crown must prove two legal elements beyond reasonable doubt. 36 First, the Crown must prove intimidation. Intimidation includes harassment or molestation and any conduct that causes a reasonable apprehension of injury. For the purpose of determining whether conduct amounts to intimidation, any pattern of violence may be taken into account: s 7 of the Crimes (Domestic and Personal Violence) Act 2007. The prosecution does not have to prove that the complainant actually feared physical or mental harm: s 13(4). In this case, taking into account the forcible breaking into the complainant's premises in the early hours of the morning, the verbal and physical threats that were made to the complainant when P and M returned to the premises undoubtedly amounted to intimidation. 37 Second, the Crown must prove that the intimidator acted with the intention (purpose) of causing the complainant to fear physical or mental harm. Pursuant to section 13 (3), a person intends to cause fear of physical or mental harm if he or she knows that his/her conduct is likely to cause fear in the other person. Having regard to the nature of the conduct, which involved direct and unambiguous threats to the complainant by both P and M, it must be inferred that each intended to cause fear. 38 I am satisfied beyond reasonable doubt that P and M committed the offence of intimidation. 39 As the offence of intimidation flowed from the foundational offence of break, enter and steal in company, the first contentious issue is whether the accused was party to a joint criminal enterprise to commit the foundational offence. If so, the second contentious issue is whether the offence of intimidation was within the scope of the common purpose associated with the foundational offence. Lies 40 The Crown contends that the electronically recorded interview is a "pack of lies" in which the accused tried to distance himself from the joint criminal enterprise. The Crown relies upon lies as evidence of guilt. In particular, the Crown relies on the following aspects of the electronically recorded interview. (1) The accused said that he went to the premises to obtain drugs from "Ben", who was living at the premises two months earlier. Upon arrival, the accused realised that Ben that must have moved out (questions 61 and 96). However, it was the complainant's uncontested evidence that she resided in the premises from January 2008. (2) The accused said that, after he realised that Ben did not live at the premises, P and M kicked the door open and ran in. The accused determined that he would not become involved and informed P and M of his intention (questions 115, 315). However, the accused admitted entering the premises and remaining within the premises for five minutes (question 211). (3) The accused said that, in the presence of the complainant, he told P and M that they should leave (questions 105 and 110) and that he apologised to the complainant and reassured her that he was not involved (questions 210, 214, 231). However, the complainant gave no evidence of hearing such statements. (4) The accused said that he did not steal anything. He now admits to stealing the Malibu bottle. (5) The accused told the neighbour that a "mate's door" had been kicked in. However, the accused did not know the complainant. 41 A lie may be taken into account as evidence of consciousness of guilt only if it is a deliberate lie that relates to a material issue, it reveals knowledge of an aspect of the relevant offence, and the Court is satisfied that it represents an attempt to avoid implication in the relevant offence. If these requirements are not satisfied, then the lie is merely taken into account in relation to credit. 42 In relation to lie (4), I am satisfied that the lie evidenced consciousness of guilt in relation to the offence of stealing the Malibu bottle. However, it reveals no knowledge of anything beyond stealing from within the dwelling. 43 Lie (1) may not be a deliberate lie. Perhaps the defendant was just confused. The accused is inarticulate, he was extremely intoxicated at the time of the incident, and he was intoxicated and/or otherwise unwell at the time of the interview. 44 As to the other lies, they are deliberate untruths. They reveal knowledge of uncontroversial aspects of the offence of break, enter and steal. For example, they reveal that the accused was present. They also reveal that the accused felt "guilty" about being present at the incident. He may have felt guilty because he led P and M to the premises where they wreaked havoc. However, the lies say nothing about whether the accused was a party to a joint criminal enterprise and they shed no light on the scope of any common purpose. Right to Silence 45 The accused did not give evidence. He was entitled to exercise his "right to silence" and I draw no adverse inference from the fact that he did so. I am aware that his silence cannot be used to bolster the prosecution case. Circumstantial Evidence 46 The Crown case on joint criminal enterprise was a circumstantial case. I am required to consider the established circumstances as a whole for the purpose of determining whether the only available rational inference is an inference that the accused was a party to a joint criminal enterprise to break, enter and steal from the premises in the company of P and M. 47 Relevant circumstances include the circumstances that the accused attended the premises with P and M and, on his own admission, entered the premises and remained therein for about five minutes. The complainant did not hear any knock preceding the forcible entry. She was woken by the sound of voices. After the three men entered her premises, the complainant heard noises consistent with the accused searching for valuables in the lounge room. The accused stole the Malibu bottle. 48 Another circumstance upon which the Crown relies is that the accused stood at the complainant's bedroom door "smirking" and watching the two young men ransack the room. Given the accused's presentation in Court and the fact that interpretation of facial expressions is always value-laden, I am not prepared to draw the inference that he was "smirking" in approval of the conduct of P and M. 49 The Crown also relied upon the circumstance that the accused told lies in the electronically recorded interview. I have determined that the established lies cannot be relied upon as evidencing consciousness of guilt in relation to participation in a joint criminal enterprise. 50 The accused contends that, on the evidence, there is an available rational inference that he went to the premises in a highly intoxicated state for the purpose of seeing "Ben", a person from whom he had previously acquired drugs. He intended to exchange lights for drugs. To the extent that his behaviour was irrational, it can be explained by intoxication. P and M decided to accompany him because they were interested in acquiring drugs from Ben. Of their own volition, they decided to break into the premises and, when Ben was nowhere to be found, they proceeded to ransack the premises, intimidate the complainant and steal her property. The accused did not participate, although he did use the opportunity to pilfer a bottle of Malibu. 51 At first blush, this scenario seems bizarre. For the reasons advanced by the Crown in support of its argument about lies, I place little reliance on the accused's statements in the electronically recorded interview. However, the scenario advanced by the accused does gain significant support from the evidence of two Crown witnesses. Importantly, the female partygoer heard the accused say that he was going to see "Brett" for the purpose of exchanging lights for drugs and she saw an object resembling the lights in his possession before he left and after he returned. Police found lights of a similar description at the residence of the accused. Further, according to the complainant, P and M demanded to know the whereabouts of "Ben", and when it became clear that he was not at the residence they became "manic". The complainant confirmed that, while he was present, the accused behaved quite differently from P and M. She also confirmed that he was holding an object consistent with the lights. Because the accused's scenario is supported by the evidence of the complainant and the partygoer, I find that there is an available rational inference which is consistent with the accused being present at the break, enter and steal otherwise than as a joint criminal participant. 52 Further, I note that there is insufficient evidence that any common purpose extended to the incidental crimes of intentional damage or intimidation. In this case, the intentional damage was caused by the gratuitous acts of agitated young men and was not associated with stealing property. P and M were responsible for the intimidating conduct. Such intimidation is not ordinarily or necessarily associated with an offence of break, enter and steal. The intimidation occurred primarily after the accused had left the premises. 53 I return a verdict of not guilty on each of the three offences. 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