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District Court 9 March 2022

R v Alty

[2022] NSWDC 62

Theft & property
CRIMINAL LAW JUDGE ALONE ACCUSED COVID POSITIVE AGGRAVATED ENTER DWELLING WITH INTENT HONESTY AND RELIABILITY OF THE WITNESS NOT GUILTY VERDICT

Citation: R v Alty [2022] NSWDC 62
Court: District Court of New South Wales
Date: 9 March 2022
Judge: Grant DCJ

Background

The accused faced two charges arising from events on 10 May 2018 at Tooleybuc, NSW. The primary charge was aggravated entry into a dwelling house with intent to commit larceny, knowing persons were present, contrary to s 111(2) of the Crimes Act 1900. An alternative charge of entering a dwelling with intent to commit an indictable offence under s 114(1)(d) was also before the court.

The matter proceeded as a judge-alone trial by consent. Notably, the accused was COVID-positive at the time and the entire proceedings were conducted via virtual court, with no personal appearances.

The Crown case rested entirely on the evidence of a single witness, Troy Nancarrow, who was himself criminally involved in the relevant events. The accused did not give or call any evidence in his defence.

  • Whether the Crown proved beyond reasonable doubt that the accused entered the dwelling house with the requisite intent
  • Whether the sole Crown witness, who was criminally involved in the events, was sufficiently honest and reliable to support a conviction
  • The applicable directions in a judge-alone trial, including on onus of proof, the accused's silence, and reliance on a single witness

Decision

Grant DCJ delivered a verdict of not guilty on both counts after concluding that the Crown's case wholly depended on the honesty and reliability of Mr Nancarrow, and that this standard had not been met.

Mr Nancarrow's evidence was deeply problematic. During the proceedings, the Crown applied to cross-examine its own witness as unfavourable after he resiled from his earlier account. Mr Nancarrow told the court he had lied in his police interview, that the accused was not present at the relevant address, and that he had been bashed multiple times in prison in connection with the matter. He was unwilling to identify those responsible for the assaults, and his tone and demeanour made clear he did not wish to give evidence. A police officer's statement confirmed that Nancarrow had previously told her the accused "did not do it."

The Crown argued that Mr Nancarrow's change of position reflected loyalty among co-offenders rather than truth-telling. Grant DCJ rejected this characterisation. The judge directed himself in accordance with established principles requiring caution when a conviction would rest entirely on a single witness, particularly one criminally involved in the events: a conviction in such circumstances requires satisfaction beyond reasonable doubt that the witness is both honest and accurate. That threshold was not reached.

The judge also applied the standard Azzopardi direction (drawn from Azzopardi v The Queen (2001) 205 CLR 50), confirming that the accused's decision not to give evidence could not be used to fill gaps in the Crown case or otherwise strengthen the prosecution.

Orders Made

  • The accused was found not guilty of count 1 (aggravated enter dwelling with intent, s 111(2) Crimes Act 1900)
  • The accused was found not guilty of the alternative count 2 (enter dwelling with intent, s 114(1)(d) Crimes Act 1900)

Key Takeaways

  • Where the Crown case depends wholly on a single witness who is criminally involved in the events, the court must be satisfied beyond reasonable doubt that the witness is both honest and reliable before a conviction can follow.
  • A witness's in-court departure from a prior police account, combined with credible evidence of intimidation in custody and an unwillingness to testify, can fatally undermine the reliability of that account.
  • The District Court confirmed that an accused's election not to give or call evidence carries no adverse inference and cannot be used to supplement or bolster a Crown case that is otherwise insufficient.
  • Proceedings conducted entirely by virtual court, including where the accused is COVID-positive, are procedurally valid under the applicable framework.
  • Under the Fleming v The Queen directions applicable to judge-alone trials, the court must expressly direct itself on onus and standard of proof, the presumption of innocence, and the proper treatment of inferences from proven facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 114(1)(d)
- Criminal Procedure Act 1986 (NSW), s 133(2) and (3)
- Evidence Act 1995 (NSW)

Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- Fleming v The Queen (1998) 197 CLR 250
- Ilich v R (1986) 162 CLR 110