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Court of Criminal Appeal 22 November 2013

Geitz v R

[2013] NSWCCA 289

Theft & property
CRIMINAL LAW APPEAL CONVICTION BREAK, ENTER AND STEAL APPEAL CONVICTION

Citation: Geitz v R [2013] NSWCCA 289
Court: Court of Criminal Appeal, New South Wales
Date: 22 November 2013
Judge(s): Beazley P at [1]; Johnson J at [126]; Price J at [127]

Background

The appellant was convicted by a jury in the District Court on two counts arising from events on 20 October 2011 at an apartment complex in Coffs Harbour. The Crown case was that he broke into the manager's unit, stole keys to two apartments and an American Express card, and then used those keys to enter a separate unit while armed with a knife. A 13-year-old girl inside that unit saw the intruder leaning over her sleeping sister, holding a knife, before he fled.

Police apprehended the appellant a short distance from the premises within 20 to 30 minutes of the offences. He was found in possession of the stolen credit card and the keys to one of the units. The keys to the unit he had entered were found still in its lock.

The appellant's defence was that he had been walking past with his de facto partner's nephew, found the card and keys abandoned on the footpath, and intended to hand them to police the next day. His de facto partner gave alibi evidence. The jury rejected these accounts and returned guilty verdicts on both counts.

  • Whether the trial judge erred in law by failing to leave to the jury an alternative offence of receiving stolen property under section 188 of the Crimes Act 1900
  • Whether the jury verdicts were unreasonable or could not be supported having regard to the evidence

Decision

Ground 1: Failure to leave receiving as an alternative offence

The Court found that it was not legally permissible for the trial judge to leave the alternative offence of receiving stolen property to the jury. The relevant provisions of the Crimes Act 1900 (sections 115 and 121) and Schedule 3 of the Criminal Procedure Act 1986 governed which alternative offences could be substituted or included in relation to a break and enter charge. Receiving stolen property under section 188 was not among the permissible alternatives in that statutory framework.

The Court considered the English and Australian authorities, including R v McCarthy and Ryan and R v Springfield, and concluded that a person who breaks and enters and commits the theft cannot also be convicted of receiving property arising from the same act of stealing. Because the alternative was simply unavailable at law, the trial judge committed no error in declining to leave it.

Ground 2: Unreasonable verdict

The Court conducted an independent assessment of the whole of the evidence, as required by M v The Queen. Beazley P examined the circumstantial case carefully, including the identification evidence from the 13-year-old witness, the appellant's possession of the stolen items shortly after the offences, and his proximity to the scene. Her Honour also considered the alibi evidence and the appellant's innocent explanation, and was satisfied the jury's verdicts were open beyond reasonable doubt.

The Court noted that inconsistencies in the eyewitness's evidence, including minor discrepancies about a kitchen knife being retrieved to assess size, did not compel a conclusion that her evidence on the essential facts was unreliable. All three judges independently assessed the evidence and each agreed the verdicts were reasonably open.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the alternative offence of receiving stolen property under section 188 of the Crimes Act 1900 cannot lawfully be left to the jury as an alternative to a charge of break, enter and steal. The permissible alternatives are governed by specific statutory provisions, and receiving does not fall within them.
  • A person who personally steals property in the course of a break and enter cannot simultaneously be convicted of receiving that same property. The two offences are legally incompatible in that factual scenario.
  • In dismissing the appeal on the unreasonable verdict ground, the Court applied the test in M v The Queen, requiring an independent assessment of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt.
  • Inconsistencies in witness evidence do not automatically require an acquittal. As the Court noted drawing on Libke v The Queen, the existence of some contrary evidence does not compel the conclusion that the jury should have entertained a doubt about guilt.
  • No request had been made at trial for additional or alternative directions. While this did not prevent the appeal ground from being raised, the absence of any trial objection was relevant context to the Court's consideration of whether error had occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1)(a), 113(2), 115, 121, 188
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), Schedule 3, Part 3, s 7

Cases
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Mifsud v R [2009] NSWCCA 313
- Nguyen v R (1992) 60 A Crim R 196
- R v Aldrich (1993) 67 A Crim R 371
- R v McCarthy and Ryan (1993) 71 A Crim R 395
- R v Springfield (1969) 53 Cr App R 608
- SKA v The Queen [2011] HCA 13; 243 CLR 400