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District Court 16 November 2009

R v KEAN

[2009] NSWDC 435

Theft & property
CRIMINAL LAW JUDGMENT JUDGE ALONE TRIAL AGGRAVATED BREAK ENTER AND STEAL

Citation: R v Kean [2009] NSWDC 435
Court: District Court of New South Wales
Date: 16 November 2009
Judge(s): Berman SC DCJ

Background

The accused was charged with aggravated break, enter and steal following an incident on 29 September 2008 at a residential property. The victim, Mrs Campbell, was working in a third-floor study while the accused observed her husband leave the house. Having spotted a bag through a ground-floor window, the accused attempted to enter through a deadlocked window before resorting to using a garden stake inserted through a dog door to retrieve and remove the bag.

The accused pleaded not guilty to the aggravated charge but offered a guilty plea to the alternative count of break, enter and steal, along with a plea of guilty to larceny of a motor vehicle. The Crown declined to accept the alternative plea in full satisfaction of the indictment, and the matter proceeded as a judge-alone trial, following an election made by the accused with the Crown's consent.

The central dispute was not whether the accused had committed the break-in, which he effectively conceded in his own evidence, but whether the aggravating circumstance was established: specifically, whether the accused knew that someone was present in the premises at the time.

  • Whether the accused had broken, entered and stolen from the premises (the underlying offence)
  • Whether the Crown could establish the aggravating circumstance under s 105A(1)(f) of the Crimes Act 1900 (NSW), namely that the accused knew a person was present in the premises
  • Whether, given the statutory presumption of knowledge that arises when a person is in fact present, the accused discharged the onus of proving on the balance of probabilities that he had reasonable grounds for believing no one was home

Decision

The court had little difficulty finding the break, enter and steal proven beyond reasonable doubt. The accused himself confirmed the essential facts in evidence: he had watched the husband leave, attempted to enter through a window, and ultimately extracted the bag through a dog door using a garden stake.

On the aggravated charge, the court explained an important reversal of the usual burden of proof. Under s 105A(2A) of the Crimes Act 1900, once it is established that a person was in fact present in the premises, the accused is presumed to have known that fact. The onus then falls on the accused to prove, on the balance of probabilities, both that he genuinely believed no one was home and that he had reasonable grounds for that belief.

The court accepted it was possible the accused believed the premises were empty after watching the husband leave. However, the accused also conceded in evidence that there "could have been someone home, and there couldn't have been," indicating a lack of any real consideration of the question. This equivocation undermined his case from the outset.

Even setting that aside, the court found the accused had not established reasonable grounds for any such belief. Two factors weighed heavily against him: the size of the home made it much more likely than not that more than one person occupied it, and the lights were on throughout the kitchen, dining area and stairway when the offence was committed. Those circumstances pointed toward someone being present rather than away from it.

Orders Made

  • The accused was found guilty of count one on the indictment (aggravated break, enter and steal).
  • The court noted the accused's guilty plea to the count relating to larceny of a motor vehicle.

Key Takeaways

  • Under s 105A(2A) of the Crimes Act 1900 (NSW), once a person is found to have been present in the premises at the time of a break and enter, a statutory presumption of knowledge arises against the accused, reversing the ordinary criminal burden of proof on that element.
  • To displace the aggravated circumstance, an accused must satisfy the court on the balance of probabilities of two things: a genuine belief that no one was home, and reasonable grounds for that belief. Both requirements must be met.
  • The District Court found that seeing one person leave a premises says very little about whether others remain inside, particularly where the property is large and lights are on.
  • An accused's own equivocal evidence, here acknowledging that someone "could have been" home, can undermine a claimed belief that the premises were empty.
  • A judge-alone trial under these circumstances requires the accused to have received legal advice about the election, a precondition the court confirmed was satisfied before proceeding.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 105A(1)(f) and s 105A(2A) (aggravated break, enter and steal; presumption of knowledge of occupancy)

Cases cited: None cited in the judgment.