Citation: R v White [2021] NSWDC 577
Court: District Court of New South Wales
Date: 26 October 2021
Judge: Abadee DCJ
Background
The appellant was convicted in the Sutherland Local Court of two offences arising from events in the early hours of 5 December 2017. The first was entering or remaining on railway running lines without authorisation, contrary to the Passenger Transport (General) Regulation 2017 (NSW). The second was intentionally damaging property, being three carriages of a Tangara-class train belonging to Sydney Trains, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW).
The Crown's case was that the appellant filmed others applying graffiti to the stationary train and acted as a lookout. Police found the appellant driving away from the scene minutes after the offending. In the boot of his car were a paint-stained glove and a spray paint nozzle. An SD card, concealed in the vehicle, contained film footage in which the appellant's voice could be heard speaking to those applying the graffiti.
The appellant's defence was that he had attended the area to photograph a steam locomotive and to meet friends. He claimed that the graffiti group, fearing identification, intimidated him into crossing onto the restricted rail land and that he participated under duress. The Magistrate rejected this account and convicted him. He appealed to the District Court on multiple grounds.
Legal Issues
- Whether the Magistrate erred in rejecting the appellant's duress defence in relation to the running lines offence
- Whether the evidence was sufficient to establish that the appellant intentionally encouraged or assisted the damage to the train carriages, as required for the s 195 offence
- Whether the Magistrate erred in admitting the SD card and boot contents obtained during a vehicle search (raising questions under s 138 of the Evidence Act 1995 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))
- Whether the prosecution was required to prove the identity of the train's owner as an element of the property damage offence
- Whether the convictions were overall unsafe or unsatisfactory
Decision
Abadee DCJ dismissed the appeal on all grounds. The District Court reviewed the Magistrate's reasons, as is required in appeals of this kind, and found no demonstrated error in the approach taken below.
On the duress defence, the Court found the Magistrate was entitled to reject the appellant's evidence. The credibility findings were not contrary to incontrovertible facts or to testimony so compelling that no reasonable tribunal could have disbelieved it. Without acceptance of the appellant's account, the duress defence necessarily failed, though the Magistrate still had to be satisfied of guilt on the evidence as a whole before convicting, and was so satisfied.
On the encouragement and assistance element of the property damage charge, the Court accepted that the Crown's case was circumstantial but found the combination of circumstances, including the filming, the voice on the footage, the paint-stained glove, the spray nozzle, and the concealed SD card, made it open to the Magistrate to conclude beyond reasonable doubt that the appellant intentionally encouraged or assisted others to cause the damage. The Court noted the Crown's concession that the case rested on circumstantial evidence, but held the inference of participation was available on those facts.
On the admissibility challenge, the Court noted that the appellant had declined to give evidence on the voir dire (the preliminary hearing on admissibility) and had not placed his written submissions before the District Court. The Magistrate had concluded the search was lawful under ss 35 to 36 of the LEPRA, and the appellant provided no basis on appeal for disturbing that conclusion. On ownership, the Court accepted that the prosecution need not identify the specific owner: it was sufficient that the property plainly did not belong to the appellant.
Orders Made
- The appeal against conviction on both charges is dismissed.
Key Takeaways
- In a Local Court conviction appeal, the appellant must demonstrate specific error in the Magistrate's reasoning; the District Court confirmed that this requirement is practically indispensable and applied the standard from Lunney v DPP [2021] NSWCCA 186.
- A conviction for intentionally damaging property as an aider or abetter can rest on circumstantial evidence, provided the combination of circumstances makes the inference of participation available beyond reasonable doubt.
- Where a defendant declines to give evidence on a voir dire concerning the admissibility of seized items, it becomes significantly harder to challenge the evidentiary ruling on appeal, particularly where the written submissions relied upon below are not placed before the appellate court.
- Under s 195(1)(a) of the Crimes Act 1900 (NSW), the prosecution is not required to prove the identity of the property's owner; it is sufficient to establish that the property did not belong to the accused.
- No error was established in the Magistrate's credit findings where those findings were not shown to contradict incontrovertible facts or testimony so overwhelming that rejection of the defendant's account was unreasonable.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 11
- Crimes Act 1900 (NSW), s 195
- Evidence Act 1995 (NSW), s 138
- Graffiti Control Act 2008 (NSW), s 4
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 35, 36
- Passenger Transport (General) Regulation 2017 (NSW), s 68J
Cases:
- Charara v R (2006) 164 A Crim R 39
- De Silva v The Queen (2019) 268 CLR 57
- Fox v Perry (2003) 214 CLR 118
- Grajewski v Director of Public Prosecutions (NSW) (2019) 264 CLR 470
- Liberato v The Queen (1985) 159 CLR 507
- Lunney v DPP [2021] NSWCCA 186
- M v The Queen (1994) 181 CLR 487
- R v Murray (1987) 11 NSWLR 12
- Walton v Salmon (NSWSC, Loveday J, 24 April 1992)