Citation: STANFORD, Andrew James v R [2007] NSWCCA 370
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2007
Judge(s): Grove J, Hulme J, Simpson J
Background
The appellant was convicted in the Coffs Harbour District Court of specially aggravated break, enter and commit a serious indictable offence (stealing), contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence arose from an incident at the Sawtell Bowling and Recreation Club in November 2004. The Crown alleged that the appellant and a co-offender, Shaw, had pre-arranged to enter the Club unlawfully, steal money from an ATM, poker machines and a safe, and disable a cleaner who would be present.
The Crown's case was that Shaw gained entry to the Club through a window that had been left partly open by arrangement in advance. Shaw further opened the window and climbed through, carrying a crowbar. Once inside, he struck the cleaner with the crowbar, causing injuries severe enough to result in the loss of an eye. The only proceeds recovered were $30 taken from the cleaner's wallet.
The appellant remained outside the Club throughout. The Crown did not allege that he personally broke in, entered, stole, or wielded the crowbar. Instead, it sought to hold him liable for Shaw's acts on the basis of joint criminal enterprise. The jury returned a guilty verdict on the first (specially aggravated) count.
Legal Issues
- Whether there was sufficient evidence that the element of "breaking" was established, given that the window was left partly open by arrangement and the appellant himself never opened it.
- Whether the trial judge erred in not directing the jury to return a verdict of not guilty at the close of the Crown case.
- Whether the trial judge's directions on joint criminal enterprise were adequate, including whether the appellant could be held liable for acts not within his contemplation.
- Whether the sentencing judge erred in treating the offence as a specially aggravated break, enter and steal under s 112(3).
Decision
The Court of Criminal Appeal allowed the appeal and quashed the conviction, primarily on the basis that no "breaking" had been established. The Crown conceded this point, at least in part, and it was determinative of the result.
Simpson J (with Grove J and Hulme J agreeing) analysed the legal meaning of "break" as it appears in s 112. Drawing on longstanding English and Australian authorities, the court confirmed that "breaking" for the purposes of this offence requires some physical act of opening, forcing, or enlarging an entry point. Where a window or door is already partly open, taking advantage of that opening without further interference does not constitute a "break."
The evidence in this case showed that Shaw, not the appellant, further opened the partly-ajar window. More critically for the conviction, the window had been left partly open by prior arrangement. There was no evidence that the appellant himself opened the window or committed any act that could constitute a breaking. Because the Crown relied on joint criminal enterprise to attribute Shaw's conduct to the appellant, the court examined whether the required element of "breaking" could be made out on that basis. It could not, given the state of the evidence.
Both the specially aggravated count (s 112(3)) and the alternative aggravated count (s 112(2)) contained the same "break" element. Accordingly, a verdict of acquittal was entered on both. Simpson J added, obiter, that the fine distinctions in the law of "breaking" may no longer serve a coherent purpose in modern criminal law, and noted that the legislature's definition of covered premises in s 112 may not even extend to a recreational bowling club. Her Honour suggested the provision warranted attention from law reform authorities.
Orders Made
- Appeal allowed.
- Conviction quashed.
- Verdict of acquittal entered.
Key Takeaways
- A conviction for break, enter and commit a serious indictable offence under s 112 of the Crimes Act 1900 requires proof of an actual "breaking." Entering through a window that has been left partly open by prior arrangement does not satisfy this element.
- Where the prosecution relies on joint criminal enterprise to attribute a co-offender's act of breaking to an accused, the evidence must still establish that a breaking in the legal sense actually occurred. An absence of evidence of breaking is fatal to the charge, regardless of the enterprise theory.
- The Court of Criminal Appeal confirmed that longstanding common law principles continue to govern the meaning of "break" in s 112, requiring some positive physical act of opening or enlarging an entry point.
- Simpson J noted, in obiter remarks, that the distinction between exploiting a partly open window and actually opening it produces results that sit uneasily with the purposes of modern criminal law, and suggested the provision may warrant legislative review.
- A further concern was raised, also obiter, about whether the building in question (a bowling and recreation club) even fell within the category of "pavilion" in s 112, with Simpson J expressing doubt that many types of commercial or recreational premises are captured by the provision's listed building types.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1), s 112(2), s 112(3)
Cases Cited:
- R v Boyce (1954) 38 Crim App R 111
- R v Brown (1799) 2 East PC 487
- R v Chandler [1913] 1 KB 125
- R v Galea (1989) 46 A Crim R 158
- R v Hyams (1836) 7 C & P 441
- R v Johnson and Jones (1841) Car & M 218
- R v Lackey [1954] Crim LR 57
- R v Russell (1833) 1 Mood CC 377
- R v Sing [2002] NSWCCA 20; 54 NSWLR 31
- R v Smith (1827) 1 Mood 178
- R v Walker (1978) 19 SASR 532