Citation: Regina v Swain [2003] NSWCCA 364
Court: NSW Court of Criminal Appeal
Date: 10 December 2003
Judge(s): Hodgson JA, Grove J, Howie J
Background
The appellant was convicted in the Sydney District Court of aggravated breaking, entering and stealing following a trial before Dodd DCJ and a jury. The aggravating circumstance was that the appellant was in the company of a juvenile at the time of the offence. The offence occurred at a Newtown public school in the early hours of 2 March 2002, when a silent security alarm was triggered and a security officer arrived to find the appellant and the juvenile on the premises with school computer equipment nearby.
The appellant was arrested and, two days later, interviewed by police. He gave an account that he had attended the school in response to a distressed phone call from the juvenile and denied touching the box containing computer equipment, claiming he had tripped over it. At trial he admitted these were lies, explaining he feared being charged with something he had not done.
The trial judge sentenced the appellant to four years imprisonment with a non-parole period of two years. The appellant appealed against both conviction and sentence.
Legal Issues
- Whether there was sufficient evidence of the element of "breaking" to withstand a no-case submission at the close of the Crown case
- Whether the trial judge's directions to the jury on the appellant's lies were appropriate, including the response to a jury note requesting further directions
- Whether a single reference to "stealing" alone, rather than "breaking entering and stealing," in the charge constituted a misdirection causing a miscarriage of justice
- Whether the sentence imposed was excessive, particularly having regard to the subsequent death of the appellant's mother
Decision
On the sufficiency of evidence of breaking, the Court held that the evidence was capable of supporting a guilty verdict. The relevant test, drawn from Doney v The Queen, is whether the evidence, even if tenuous or weak, is capable of supporting conviction. The Court found the combination of the damaged window winding rod, the open door and window, the teacher's daily locking routine, and the timing of the alarm and the appellant's own account collectively entitled the jury to find the element of breaking proved.
On the jury directions concerning lies, the trial judge had given an Edwards direction (warning the jury that lies told by an accused may only be used as evidence of guilt, not as proof of guilt in themselves, and that innocent reasons for lying must be excluded). The Court found no error in adopting that direction or in the trial judge's response to the jury's note requesting further directions. Although the trial judge summarised the Crown's position in terms that the appellant "was caught red-handed," the Court was satisfied this accurately reflected the Crown's case as put to the jury during addresses.
The Court acknowledged that a single reference to "stealing" rather than the full offence description during the charge was an error, but concluded it caused no substantial miscarriage of justice. Taking into account the strength of the Crown case, the weakness of the defence and the minor nature of the error, the Court applied the proviso and dismissed the conviction appeal.
On sentence, the Court acknowledged the anguish caused to the appellant by his separation from his terminally ill mother, who died shortly before the appeal was heard. Nonetheless, the Court found no error in the sentencing exercise. The appellant's extensive prior record, including multiple robbery offences in the Children's Court and a recent sentence for breaking and entering, and the fact that he was still on unexpired parole at the time of this offence, presented substantial obstacles to leniency. The sentence was held to be well within the appropriate range.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Sufficient evidence of breaking can be established circumstantially, including through evidence of a daily locking routine, a damaged entry mechanism and the timing of a security alarm, without direct eyewitness evidence of the act of breaking.
- Under the Edwards direction, lies told by an accused may only be used as an indicator of guilt where the jury is satisfied the lies were told to conceal involvement, not for some innocent reason. No error arose here from giving that direction.
- A trial judge's summary of the Crown's case to the jury will not constitute misdirection where it accurately reflects the case as put in the Crown's own addresses, even if framed in forceful terms.
- A minor misdirection (a single reference to "stealing" instead of the full offence) does not necessarily produce a miscarriage of justice. The Court of Criminal Appeal applied the proviso after weighing the strength of the overall Crown case and the limited significance of the error.
- Compelling personal circumstances, including a parent's death during the sentence period, do not automatically enliven the appellate court's power to vary sentence where no legal error in the sentencing exercise is demonstrated and the term imposed sits within the proper discretionary range.
Legislation and Cases Referenced
Cases:
- Doney v The Queen (1990) 171 CLR 207 (test for no-case submissions)
- Edwards v The Queen (1997) 178 CLR 193 (jury directions on lies told by an accused)
- Zoneff v The Queen (2000) 200 CLR 234 (jury directions on lies)
- Wilde v The Queen (1988) 164 CLR 356 (assessment of miscarriage of justice and application of the proviso)
Legislation: No specific legislation was cited in the provided text.