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Local Court 9 October 2020

Police v Robinson

[2020] NSWLC 5

Theft & property
CRIMINAL LAW BREAK, ENTER AND STEAL

Citation: Police v Robinson [2020] NSWLC 5
Court: Local Court of New South Wales
Date: 9 October 2020
Judge: Magistrate Tsavdaridis

Background

The defendant faced two charges of break, enter and steal under s 112(1)(a) of the Crimes Act 1900 (NSW), arising from incidents in the early hours of 28 July 2019 in the Bankstown shopping district. The first charge related to a coin laundry shop, where a black suitcase, a white dress, confectionery, and approximately $50 in coins were alleged to have been stolen between 4.36 am and 5.10 am. The second charge concerned a clothing store at Bankstown City Plaza, where Korean brand cosmetics, an Apple iPad, an EFTPOS machine, and various tools were alleged to have been taken between 5.10 am and 10.00 am.

The defendant pleaded not guilty to both charges, and the matter proceeded as a defended hearing. Although much of the documentary evidence was tendered by consent, the prosecution's case rested on a combination of direct evidence (including CCTV footage) and circumstantial evidence. The defendant did not give evidence and did not provide a record of interview.

  • Whether the prosecution had proved beyond reasonable doubt each element of break, enter and steal under s 112(1)(a) of the Crimes Act 1900 (NSW) for both incidents.
  • Whether the two shops constituted an "other building" within the meaning of the offence.
  • How cautionary criminal trial directions governing circumstantial evidence applied to a magistrate sitting alone.
  • Whether any reasonable hypothesis consistent with the defendant's innocence remained open on the evidence.

Decision

Magistrate Tsavdaridis began by setting out the applicable framework in detail. Citing Fleming v R (1998) 197 CLR 250, the Magistrate confirmed that cautionary criminal trial directions apply equally to a magistrate sitting alone as they do to a judge directing a jury. The Magistrate directed herself that guilt, where inferred from circumstantial evidence, must be not merely a rational inference but the only rational inference available, and that any reasonable hypothesis consistent with innocence required an acquittal.

On the facts, the Magistrate made a series of specific findings drawn from the evidence. CCTV footage captured a male walking along Stewart Lane after the offences were committed, pushing a shopping trolley containing a black luggage bag. The Magistrate was satisfied, by direct comparison with the defendant in the dock, that the person depicted was the defendant. The Magistrate also found that the black bag in the trolley was the bag stolen from the coin laundry, and that a white garment visible as the defendant rummaged through it was the dress also taken from that premises.

A particularly significant factual finding concerned blood discovered on a plastic container inside the clothing store. The Magistrate was satisfied that the blood was the defendant's and had been deposited by him during the ransacking of the premises. Additionally, CCTV footage showed the defendant pushing and testing multiple doors along the shopping strip in the period before the offences, which the Magistrate characterised as reconnoitring. Taken together, the direct and circumstantial evidence left no reasonable hypothesis consistent with innocence open on the evidence.

The Magistrate was satisfied that both premises constituted an "other building" within the meaning of s 112(1)(a), and that the thefts committed within each premises constituted serious indictable offences. All elements of both charges were proved beyond reasonable doubt, and guilty verdicts were entered on both counts.

Orders Made

  • Guilty verdict entered on Sequence 1: break, enter and steal at the Bankstown Coin Laundry Shop, 56 Restwell Street, Bankstown (between 4.36 am and 5.10 am on 28 July 2019).
  • Guilty verdict entered on Sequence 2: break, enter and steal at the Ozly Clothing Store, 5 Bankstown City Plaza, Bankstown (between 5.10 am and 10.00 am on 28 July 2019).

Key Takeaways

  • Cautionary criminal trial directions, including those governing circumstantial evidence and the standard of proof, apply to a magistrate sitting alone in the same way they apply to a judge directing a jury, as confirmed in Fleming v R.
  • Where a prosecution relies on circumstantial evidence, guilt must be the only rational inference available; the tribunal of fact cannot convict if any reasonable hypothesis consistent with innocence remains open on the evidence.
  • A tribunal of fact may draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference, provided it does not treat any intermediate fact as indispensable unless satisfied of that fact beyond reasonable doubt.
  • Physical evidence (here, blood on items inside the premises) combined with CCTV identification and possession of stolen goods can, in combination, support a finding of guilt even where no single item of evidence is conclusive on its own.
  • Under s 112(1)(a) of the Crimes Act 1900 (NSW), "breaking" does not require damage or force; it may be actual or constructive, and even unloosening a fastening on a partially open door or window is sufficient.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 105A, 112(1)(a), 117
- Evidence Act 1995 (NSW), s 38(1)(c)

Cases
- Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Fleming v R (1998) 197 CLR 250
- Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195
- Peacock v R (1911) 13 CLR 619
- Pitkin v R (1995) 130 ALR 35
- Plomp v R (1963) 110 CLR 234
- R v Boyce (1954) 38 Crim App R 111
- R v Manunta (1990) 54 SASR 17
- Shepherd v R (1990) 170 CLR 573
- Stanford v R [2007] NSWCCA 370
- Woolmington v DPP [1935] AC 462