Citation: [2016] NSWDC 226
Court: District Court of New South Wales
Date: 21 September 2016
Judge(s): A Haesler SC DCJ
Background
The accused, a young man with a mild to moderate intellectual disability, was tried by judge alone on a charge of breaking and entering a dwelling house at a caravan park in Windang on 26 June 2015, in company with others, and stealing property including a television, computer equipment, jewellery, and bottles of alcohol.
The prosecution case rested substantially on circumstantial evidence, with three fingerprint impressions matching the accused found on two bottles of alcohol recovered outside the rear of the premises. The accused denied ever attending the caravan park and offered an alternative explanation for how his fingerprints came to be on the bottles.
The accused gave sworn evidence and called his grandmother as a witness. She gave alibi evidence that he had arrived home drunk at 10:55 PM on the evening of 25 June 2015, before the time the victims were disturbed in their bedroom.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that the accused participated in the break and enter as a principal or as part of a joint criminal enterprise
- Whether the accused's fingerprints on the bottles established his presence at the scene of the offence, given his alternative explanation for how the prints were left
- Whether the alibi evidence provided by the accused and his grandmother raised a reasonable doubt
- How the accused's mild intellectual disability and prior good character bore on the assessment of his evidence and the likelihood of guilt
Decision
Identity and the Fingerprint Evidence
The court found that three fingerprint impressions matching the accused were left on two bottles of alcohol taken from a wine rack inside the Best home (at [30]). The position of the prints on the underside and base of the bottles was consistent with the accused having removed them from the wine rack or handled them as they were placed in the bag (at [56]). The bottles were found outside the rear of the premises alongside other stolen property, indicating they had been placed there while the burglars returned to retrieve more items (at [58]).
The Defence Hypothesis
The accused's explanation was that he had handled the bottles at a vacant lot some 750 metres away, where his associates had brought them after the break-in, and that those associates later returned the bottles to the premises. The court rejected this hypothesis as beyond the realms of possibility (at [55]). It required the burglars to carry the bag of bottles back through the caravan park or along the creek, and required Jessie, who had not been at the property during any initial entry, to have left his fingerprint at the point of entry on a return visit when the rear door was already open (at [52]-[53]). The court found it implausible that the bottles specifically would have been returned, as distinct from the bag itself (at [58]).
The Alibi
The court accepted that the grandmother was an honest witness doing her best to assist, but remained sceptical of her capacity to recall the precise time her grandson arrived home when she could not recall the day or week (at [44]). The court also held that even if the accused was home around midnight, he could have walked the approximately two kilometres from the premises to his home after the property was taken but before the victims were disturbed at 12:20 AM, meaning his presence at midnight was not essential to the prosecution's case (at [45]).
Good Character and Intellectual Disability
The court accepted the accused appeared to be a fundamentally honest young man and gave appropriate weight to his good character and intellectual disability when assessing his evidence (at [15]-[18], [46]). However, it found that his association with known thieves, his cannabis use affecting memory, his intoxication that night, and his proximity to the caravan park did not compel acceptance of his denials (at [47]-[48]). Having rejected the defence hypothesis and found the fingerprint evidence inexplicable by any other rational means, the court was satisfied beyond reasonable doubt that the accused participated in the joint criminal enterprise (at [54]-[59]).
Orders Made
- Guilty verdict to Count 1 on the Indictment
Key Takeaways
- In a judge-alone trial involving circumstantial evidence, the District Court is required to expose its reasoning process, identify the applicable legal principles, and resolve all issues of law and fact sufficient to justify the verdict reached (at [5]).
- A defence hypothesis offered by sworn evidence must be considered by the court, but may be rejected where it places an incredible strain on human experience and is found to be beyond the realms of possibility rather than merely improbable (at [49], [55]).
- Alibi evidence given by a witness accepted as honest may still be rejected where the court is sceptical of the witness's ability to recall precise times weeks after an event, particularly when the witness cannot identify the relevant day or week (at [44]).
- Where fingerprints matching an accused are found on items removed from the scene of a break and enter, and the accused's innocent explanation for those prints is rejected, the fingerprint evidence can support a finding of participation in a joint criminal enterprise beyond reasonable doubt (at [56]-[58]).
- A finding of mild intellectual disability requires care in avoiding any negative interpretation of a defendant's genuine difficulty in conveying concepts when assessing the veracity and truthfulness of the defendant's evidence (at [15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- The Queen v Baden-Clay [2016] HCA 35
- Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
- Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
- Parker v The King (1912) 14 CLR 681; R v Parker [1912] VLR 152
- TWL v R [2012] NSWCCA 57
- R v Zvonaric [2001] NSWCCA 505