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District Court 11 August 2021

R v Colvin

[2021] NSWDC 390

Assault & violenceDomestic & family violence
CRIME TRIAL JUDGE ALONE REASONS OF TRIAL JUDGE ONUS OF PROOF UNCALLED WITNESSES

Citation: R v Colvin [2021] NSWDC 390
Court: District Court of New South Wales
Date: 11 August 2021
Judge: Haesler SC DCJ

Background

The accused was charged with breaking and entering a dwelling and committing a serious indictable offence, namely intimidation, in circumstances of aggravation under s 112(2) of the Crimes Act 1900 (NSW). The alleged victim was the accused's sister, at whose home in Warrawong he had been staying on the night of 27 to 28 July 2020. The accused had arrived at the home wet and distressed and was given dinner and a place to sleep.

During the night, the accused woke to find his bag missing and became convinced someone in the house had taken it. The complainant and a female friend locked themselves in the complainant's bedroom. The accused broke through the bedroom door, stood over his sister while she lay on the bed, and left only when she threatened to call police.

The central disputed factual question was whether the accused had at some point left the house and returned through a window, satisfying the "breaking" element of the charge. The accused elected trial by judge alone, and the Director of Public Prosecutions did not oppose that election.

  • Whether the prosecution proved, beyond reasonable doubt, each element of break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900, particularly the element of "breaking"
  • How to assess conflicting witness evidence where the accused gave evidence denying the complainant's account
  • What weight, if any, to give the absence of forensic evidence and the non-appearance of two witnesses who were present on the night
  • Whether, if the "breaking" element was not proved, an alternative verdict of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 should be returned

Decision

Haesler SC DCJ accepted the complainant's account that the accused left the house and re-entered through a window, thereby satisfying the element of breaking. That finding was supported by the complainant's immediate complaint to police (captured on audio-visual recording), as well as evidence of damage to a window screen. The judge noted the accused's own admissions in letters to the complainant, which included references to smashing in the bedroom door with enough force to take it off its hinges and threatening to burn out the complainant's cars, as consistent with acting irrationally and violently that night.

The accused gave evidence denying he had left the home or re-entered through a window. The judge applied the direction from De Silva v The Queen [2019] HCA 48: disbelieving the accused's evidence did not itself establish guilt, but having rejected that evidence as not reasonably possibly true, the judge found the prosecution's case was proved on the accepted evidence. The judge acknowledged the accused had mental health difficulties and gave evidence under stress via audio-visual link from custody, and took care not to draw adverse inferences from manner of giving evidence alone.

On the intimidation element, the judge was satisfied that the accused's admitted conduct, including smashing the bedroom door off its hinges and confronting the complainant while she lay on the bed, would have caused a reasonable apprehension of injury or violence. The judge found beyond reasonable doubt that the accused acted with the intention of causing the complainant to fear physical or mental harm. The accused's knowledge that persons were in the dwelling was not in dispute.

The absence of forensic evidence (DNA or fingerprints) and the non-appearance of two other persons present in the home did not, on the facts, generate reasonable doubt. The judge reasoned that forensic evidence would have been of limited significance given the accused had previously been in the home, and the absent witnesses did not create any doubt in the circumstances.

Orders Made

  • The accused is convicted.

Key Takeaways

  • A conviction for break, enter and commit a serious indictable offence requires proof of each element beyond reasonable doubt, including that a "breaking" occurred, such as by opening a door or window to infringe the security of the dwelling.
  • The District Court confirmed the approach in De Silva v The Queen [2019] HCA 48: where an accused gives evidence, the tribunal of fact must acquit if it believes that evidence, or if the evidence might be true, even if ultimately rejected; disbelief of the accused's account is not, of itself, proof of guilt.
  • Immediate complaint evidence and evidence of physical damage to a window screen can corroborate a complainant's account of breaking and entering, even in the absence of forensic evidence such as DNA or fingerprints.
  • Under the principle in Mahmood v Western Australia (2008) 232 CLR 397, a tribunal of fact may take into account the absence of an available witness when assessing whether reasonable doubt exists, though on the specific facts here that absence did not generate doubt.
  • In a judge-alone trial, the judge carries a duty to expose reasoning clearly, including articulating the applicable legal directions, the basis for accepting or rejecting witness evidence, and the resolution of each element, in a way that would otherwise be conveyed to a jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Cases:
- De Silva v The Queen [2019] HCA 48
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- R v Mifsud [2009] NSWCCA 313