Police v Hellyer No. Scciv-01-1723 - [2002] SASC 61

POLICE v HELLYER
[2002] SASC 61
Magistrates Appeal: Criminal

PERRY J. This is an appeal by the police against the dismissal by the Magistrates Court sitting at Adelaide of a charge of serious criminal trespass.
The basis of the dismissal was a finding by the learned trial magistrate that the prosecutor had failed to prove the necessary intention to commit the offence.
The charge was prosecuted on an information which alleged that the respondent:
“Between the 17^th day of June 2000 and the 24^th day of June 2000 at Hallett Cove .... entered the place of residence of John Mcpherson Southey as a trespasser with the intention of committing an offence to which this section applies.
Section 170(1) of the Criminal Law Consolidation Act 1935.”
I will address first the circumstances of the alleged offence.
At the relevant time the respondent and his wife Carolyn lived at 10 Constellation Street, Hallett Cove. The alleged victim and his wife, Mr and Mrs Southey lived next door at number 8.
In late April 2000 Mr and Mrs Southey left their house unoccupied while they took a caravanning holiday around Australia. Before they left, Mr Southey told the respondent that he and his wife would shortly be leaving on the holiday. He asked the respondent if he and the respondent’s wife would keep an eye on their property while they were away.
Mr and Mrs Southey left on their holiday on 27 April 2000. They left their house secured. All the doors and windows were locked with security locks.
They arranged for their daughter, Elena Williams, to keep an eye on the premises during their absence. She did so, periodically checking the house. When she worked on night duty, she stayed there.
On Sunday 18 June 2000, Ms Williams checked the house and found that it was secure. There was no sign of anything untoward.
Mr and Mrs Westerman live in a house which is directly behind the Southey’s property.
At about 10.00 am on Monday 19 June 2000 Mrs Westerman was in the backyard of her house, hanging clothes on the clothesline. She heard the sound of breaking glass, which appeared to be coming from the direction of the Southey’s house. She went inside to telephone her husband, but then noticed a neighbour, David Fagan, outside his house. She spoke to him, as a result of which Mr Fagan walked around to the front of the Southey’s residence. He looked over the fence at the side of the house and saw that the window had been smashed and that a rubbish bin was lying on its side near the fence. He also noticed that a hatchback car was parked in the driveway of the respondent’s house at number 10.
He returned to Mrs Westerman, and they telephoned the police.
While waiting for the police to arrive, Mr Fagan returned to the Southey’s house. After about five minutes he saw a person who was undoubtedly the respondent emerge from a garage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 61
Decision Date: 27 February 2002

CaseChat Overview and Summary

The case between Police and Hellyer No. Scciv-01-1723 involved the respondent who was accused of a break-in at the property of Mr Southey. The respondent, who had a history of drug and alcohol abuse, claimed that he had no recollection of entering Mr Southey's home and denied any intention to steal or harm anyone. The court was tasked with determining whether the respondent had the requisite intent to commit the crime despite his claims of memory loss due to substance abuse. The court also had to consider the credibility of the respondent's evidence and the impact of his substance abuse on his mental state and memory.

The court considered the evidence presented by the respondent, including his admissions of drug and alcohol use, and the expert psychiatric evidence from Dr Craig Raeside and Dr Cate McFarlane. The court needed to assess the reliability of the respondent's testimony and whether his substance abuse could have led to genuine memory loss. The court had to weigh the forensic evidence, such as the presence of the respondent's DNA in the crime scene, against his denial of involvement and memory loss. Ultimately, the court had to decide if the respondent had the necessary intent to commit the crime despite his claims of memory loss.

The court concluded that the respondent's drug and alcohol use could have impaired his memory, but this did not absolve him of criminal responsibility. The presence of his DNA at the scene, combined with other circumstantial evidence, was sufficient to establish his involvement in the crime. The court found that the respondent had the requisite intent to commit the crime, even if he could not recall the details due to his substance abuse. The court referred the matter back to the Magistrates Court for sentencing, taking into account the respondent's history and the need to address his substance abuse issues.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent gave evidence and called Dr Craig Raeside, a psychiatrist. As well, he tendered reports of Dr Raeside and another psychiatrist, Dr Cate McFarlane.The Respondent’s Evidence The respondent was 32 years of age at the time he gave his evidence, and had no criminal record. He had lived at 10 Constellation Street with his wife since about 1990. He said that he did not have a good relationship with Mr Southey. He said:“He always used to, like, look over the fence at what we were doing. We even caught him trying to stare in at my wife having a shower over the fence which offended me.” The respondent gave evidence that he had been using illegal drugs since about the age of 12, and that since then he had used marijuana, LSD, ‘speed”, “mushrooms” and “a lot of alcohol”. He said that when he drank alcohol, he would drink until he became intoxicated. He said that he had no recollection of entering Mr Southey’s home, and that he had never wished to do so, or ever formed the intent to steal anything. He denied that he ever intended to enter Mr Southey’s home “to teach him a lesson”. He could offer no explanation as to how his DNA was identified in a blood sample found in Mr Southey’s home. He said that he knew Mr Southey was going away on holidays because he saw that the Southeys were not home. When asked to describe the approximate quantity of alcohol he would drink “on a daily basis” at about the time of the break-in, he said:“In reference to beer, could be anything up to 12 cans. In reference to bourbon, it could be a bottle or almost 12 cans of pre-mixed bourbons ..... and also a whole flagon or like a whole cask of white wine.” He said that in conjunction with the alcohol, in around May and June 2000 he was taking marijuana, speed (daily), and “a lot of LSD all together”. He said he was working “on and off” and could not remember when it was that he was working. He remembered seeing Dr Raeside and Dr McFarlane, and remembered that he had been admitted to Glenside Hospital and Mt Gambier Hospital during the course of the year 2000. He said that initially he was put on anti-psychotic drugs and that currently he was on an anti-depressant known as Cipramil. Under cross-examination the respondent described the hallucinations that he had had from time to time associated with his drug and alcohol consumption. He said also that he had suffered lapses of memory, and occasionally passed out on the floor. The respondent did not recall meeting Mr Fagan or coming out of the garage with wet hair. He denied having put the wheelie bin, which had been observed fallen over at the side of the Southeys house, near the fence. When pressed as to the extent of his marijuana consumption at about that time, he said that it was up to 30 “cones” a day, and that he took a daily trip on LSD and also consumed amphetamines daily, at least a gram. The respondent said it was a “daily event” for him to “get drunk on alcohol”.

Decision

Reasons for decision

PERRY J

I would refer the matter back to the Magistrates Court for the respondent to be sentenced in the light of these reasons and any other matters which may be put forward on the question of penalty.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT[1] Taylor v Hayes (1990) 53 SASR 282 and Rowland v Police (2001) 79 SASR 569.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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