District Court New South Wales Medium Neutral Citation: R v Thoral [2015] NSWDC 263 Hearing dates: 28 - 29 September 2015 Date of orders: 29 September 2015 Decision date: 29 September 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The accused is found guilty of charge on indictment Catchwords: CRIMINAL LAW – Judgment – Judge alone trial – Posses housebreaking implements - Larceny Category: Principal judgment Parties: The Crown Alexander Thoral Representation: Counsel: A Seeto – The Director of Public Prosecutions Solicitors: The Director of Public Prosecutions Legal Aid Commission –The accused File Number(s): 2014/232497 Judgment 1. HIS HONOUR: At about 2.20 am on Thursday 7 August 2014 two police officers, Constables Hicks and Burnell were driving along the Pacific Highway at Lindfield. They stopped another car being driven by Karas Costas after they saw it turn out of Balfour Street onto the Pacific Highway and head north. The accused, Alexander Thoral was in the passenger seat. 2. A search of the vehicle revealed a number of things which later proved to be connected to a break enter and steal offence of Christophe's Patisserie, a cake shop situated about 20 metres away from where the car was first seen. These things included a padded post office bag addressed to "Christophe's Patisserie, 364 Pacific Highway, Lindfield", three flat head screwdrivers (described as Phillips head screwdrivers by one police officer,) three unopened Coca Cola bottles which were still cold and had condensation on the outside, two Berri orange juice bottles, one of which was unopened and still cold and had condensation on the outside and the other being empty with a small amount of juice at the bottom, a quiche, and several meringues which were on the back seat without being in any form of packaging. 3. Other police arrived. When police visited the location of the patisserie they discovered that it had been broken into. The door had been forced, and jemmy marks on the door were, from my observations, capable of being made by a flat headed screwdriver. Inside police found a fridge which contained Coca Cola bottles and Berri orange juice bottles identical to those found in the car and the door to that fridge was open. Police also found items for sale identical to the quiche and meringues found on the back seat of the car. Indeed one police officer expressed the unchallenged opinion that some meringues appeared to be missing from the top of the counter. Ms Pang, the proprietor, later told police when she inspected the premises she found that bottles of Coke, bottles of orange juice, some meringues and a quiche were missing. 4. It could not seriously be suggested, and Mr Townsend who appears for the accused did not suggest it, that the items found in the car were not the proceeds of the offence of break enter and steal committed on Christophe's Patisserie. 5. The issue for me to decide in this judge alone trial is whether I am satisfied beyond reasonable doubt that the accused was criminally involved in that offence. 6. Before I discuss the evidence called in the trial and the conclusions which I draw from it I will set out some preliminary matters. They are the sorts of things that I would tell a jury where there is a trial when a jury decide the guilt or otherwise of the accused. I will determine all relevant issues of fact according to the evidence. The evidence in this case is made up of what witnesses said in court and the exhibits which have been tendered. I have made no enquiries of any kind about anything that came up in this trial. Both the Crown and the accused are entitled to my judgment free of prejudice and sympathy. In particular some of the police evidence suggested that the accused was a man who was known to them. Some evidence referred to other suspicious activity of the accused which the Crown said was relevant to some matter appearing later on a s 166 certificate. I have not used the fact that the police apparently knew the accused or the material later to be relevant to the matter on the s 166 certificate against the accused in any way. I heard evidence that the accused exercised his right to silence when he declined an interview by police. No adverse inference can be drawn from the fact that the accused declined to be interviewed and I do not use that in any way at all against him. The accused did not give evidence. I have also not used that in any way against him. The accused was entitled to say nothing in court. The fact that the accused did not give evidence does not effect the fundamental proposition which I must apply, namely that the Crown has to prove his guilt beyond reasonable doubt. 7. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from a position that he is presumed to be innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt he is guilty. 8. Quite clearly the case against the accused is a circumstantial one, no one saw him break and enter Christophe's Patisserie, no one heard him say that he intended to or had broken into the shop. Instead the Crown relies on a number of circumstances which she suggests demonstrate the accused's guilt beyond reasonable doubt. Of course the corollary of the idea that the Crown has to prove the guilt of the accused beyond reasonable doubt is that if there is a reasonable version inconsistent with guilt then the accused must be acquitted. 9. Given that it is clear that at least one of the occupants of the car had committed the offence of break enter and steal the Crown has to satisfy me beyond reasonable doubt that it was either the accused acting alone who committed the offence or the accused and Mr Costas acting as part of a joint criminal enterprise. Thus if there is a reasonable possibility that Mr Costas committed the offence without the criminal involvement of the accused then I would find the accused not guilty. 10. Both the accused and Mr Costas explain the accused's presence in the car by telling police that Mr Costas had just picked up the accused from Chatswood Railway Station. Mr Costas explained where he was in Lindfield by telling police, in the presence of the accused, that he and the accused were going home to Ashfield. The accused also told police that they were on their way home. When asked why they were on Balfour Street which was 20 metres away from where the shop was located Mr Costas said, again in the presence of the accused, that they wanted to buy something from a Coles supermarket and there was a Coles supermarket on Balfour Street. 11. Although there was evidence that there were no trains running to Chatswood Railway Station at that time in the morning it is important to understand that whilst the police were told that the accused was picked up at the railway station neither Mr Costas nor the accused said the accused got a train to that location. It is also important to note that whilst there was evidence that Coles supermarkets close at midnight, again there was no suggestion that this was understood by the accused or Mr Costas. 12. However I am satisfied that the explanation given did not in any way explain the presence of the car driven by Mr Costas in a location very close to where the patisserie had been broken into. One of the versions of events inconsistent with guilt postulated by the accused is that Mr Costas committed the offence, then drove from Lindfield to Chatswood where he picked up the accused and then returned to within 20 metres of the patisserie so that they could go to a Coles store. It is inconceivable that a person having broken into premises, having some of the proceeds of that offence clearly on display in the car, and having driven some suburbs away to pick up another person, would then return to a location so close to where he committed the break enter and steal offence simply to go to a supermarket, especially when there would be many supermarkets between Chatswood Railway Station and Ashfield where they were ultimately headed. This is particularly the case where it was the intention of the two men, so Mr Costas said, to go from Chatswood to Ashfield. The suburb where the car was stopped, Lindfield, is in the opposite direction. 13. Further when the car came out of Balfour Street it did not turn south in the direction of Ashfield, it turned north. I appreciate that people do not always act logically but to postulate a scenario where Mr Costas, having broken into the cake shop and having driven to Chatswood Railway Station to pick up the accused, then returns to near the scene of the crime, thus heading away from his desired destination and making it more likely that the police would notice the incriminating items in the car and would be able to connect him to the offence committed on the cake shop is so illogical that I reject this as an impossible version of events. 14. I am satisfied beyond reasonable doubt therefore that when police observed the motor vehicle for the first time the shop had only recently been broken into. I am fortified in that conclusion by observations made of the temperature of the drink bottles and condensation appearing on those bottles. I am satisfied beyond reasonable doubt that Mr Costas did not break into the shop and steal items from it and then go to pick up the accused. 15. Another version of events inconsistent with guilt which I must consider did involve the accused being in the car, but not in any way participating in the break enter and steal offence. Mr Townsend emphasised the lack of any forensic evidence such as fingerprints or DNA found on any of the proceeds of the offence, or in the premises, or on the screwdrivers which appear to have been used to force entry. They are, as I said, flat head screwdrivers easily capable of making the damage on the door of the cake shop as shown in photograph number two. 16. Mr Townsend suggests that there is no evidence that the offender was criminally involved in the offence at all. Whilst it maybe a possibility, perhaps even a reasonable possibility, that a person would commit a break enter and steal offence whilst a companion of his remain seated nearby in the car minding his own business, I do not consider this was a reasonable possibility in the circumstances of this case. While some of the property was found on the back seat of the car a number of relevant items were found in the foot well of the front passenger seat where the accused was seated. These include the flat head screwdrivers, the drink bottles, one of which had been opened and the contents consumed, the envelope addressed to the Lindfield bakery and a padded post office bag addressed to Christophe's Patisserie. This tends to suggest that one person, Mr Costas, put the quiche and the meringues in the back seat of the car and another, the accused, placed the other property in the foot well. Further, the property taken from the patisserie was more than one person could comfortably carry in one trip and of course the most important circumstance is that people committing offences do not usually want an audience. 17. I do not believe that there it is reasonably possible that Mr Costas broke into the shop alone, made two or more trips from the shop to the car carrying items he had stolen from it, placed those two items in two different locations within the car, including the front passenger seat foot well where the accused was sitting, all without the accused being part of a joint criminal enterprise with Mr Costas. 18. When I carefully consider the circumstances relied on by the Crown I am satisfied that there is no reasonable version of events which is inconsistent with the accused's guilt. I am thus satisfied that either the accused or Mr Costas, a person with whom he was acting in a joint criminal enterprise, broke into the cake shop, entered into it and took property from the shop with the intention of stealing. Accordingly I find the accused guilty of the charge on the indictment. ********** 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: 10 November 2015