R v Alty

[2022] NSWDC 62

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Alty [2022] NSWDC 62

Hearing dates:

08 and 09 March 2022

Date of orders:

09 March 2022

Decision date:

09 March 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

1. I find the accused not guilty of count 1 and the alternative count.

Catchwords:

Criminal Law – Judge alone – accused COVID positive – proceedings conducted via virtual court with no personal appearances – Aggravated enter dwelling with intent – witness criminally concerned in the events – honesty and reliability of the witness – not guilty verdict

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Criminal Procedure Act 1986

Cases Cited:

Azzopardi v The Queen (2001) 205 CLR 50

Fleming v The Queen (1998) 197 CLR 250

Ilich v R (1986) 162 CLR 110

Category:

Principal judgment

Parties:

Regina (Crown)
Nathan John Alty (Accused)

Representation:

Counsel:
Mr M Pincott (Crown)
Mr C Watson (Accused)

Solicitors:
Director of Public Prosecutions (NSW)
David Davidge (Accused)

File Number(s):

2019/00404345

Publication restriction:

Nil

Judgment

1. In the trial of Nathan Alty, I find the accused not guilty in relation to both counts, and these are my reasons.

2. On 8 March 2022 the accused, Nathan Alty, was arraigned before me at the Griffith District Court on the following charge: on 10 May 2018 at Tooleybuc in the State New South Wales, did enter the dwelling-house of Glenn Marsh with intent to commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely knowing that persons were in the place where the offence was committed, contrary to s 111(2) of the Crimes Act1900.

3. The accused has been further charged in the alternative that on 10 May 2018, at Tooleybuc in the State of New South Wales, entered the dwelling house of Glenn Marsh with intent to commit an indictable offence, namely, larceny, contrary to s 114(1)(d) of the Crimes Act1900.

4. The accused pleaded not guilty to both charges. The matter proceeded as a judge alone trial, as consented to by the parties on 7 March 2022.

DIRECTIONS

5. In compliance with s 133(2) and (3), of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law: as the accused has pleaded that he is not guilty and elected trial by judge alone, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and return my verdict according to the evidence that I have heard.

6. I note that as the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also to the whole community. I must act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the witnesses called and various exhibits.

7. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw inferences from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

ONUS AND STANDARD OF PROOF

8. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of the most serious nature and the burden of proof of guilt of the accused is placed upon the Crown. That onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute of proof beyond reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found not guilty of the charges.

9. The accused is presumed to be innocent of any wrongdoing until I am satisfied beyond reasonable doubt that his guilt has been established according to law. This does not mean that the Crown has to satisfy me of its version of the facts where some dispute arises. What is required is that the Crown proves those facts that are essential to make up the charge, and proves those facts beyond reasonable doubt. These are sometimes referred to as the essential facts or ingredients of the offence. I will go through the essential facts of this particular case shortly.

10. The expression, proven beyond reasonable doubt is ancient and has been deeply ingrained in the criminal law of this State for a very long time. This is the highest standard of proof known to the law. It is not an expression that is usually explained by trial judges but can be compared with the lower standard of proof required in civil cases where matters need only be proved on what is called the balance of probabilities.

11. The test in a criminal case is not whether the accused is probably guilty. In a criminal trial, the Crown must prove the accused’s guilt beyond reasonable doubt. Obviously a suspicion, even a strong suspicion that the accused may be guilty, is not enough. A decision that the accused had probably committed the offence also falls short of what is required.

12. Before I can find Mr Alty guilty, I must consider all the evidence placed before me and ask myself whether I am satisfied beyond a reasonable doubt that the Crown has made out its case. Mr Alty is entitled by law to the benefit of any reasonable doubt that is left in my mind after considering the evidence before me.

AZZOPARDI

13. Mr Alty has not given, or called, any evidence in response to the Crown case. There are a number of important directions of law which I must follow in relation to that fact.

14. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond a reasonable doubt that the accused is guilty of the offence charged.

15. Mr Alty bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged.

16. Therefore it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. I direct myself as a matter of law that Mr Alty’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. I cannot use that fact to fill in any gaps that I think may exist in the evidence tendered by the Crown. It cannot be used in any way for strengthening the Crown case or assisting the Crown to prove its case beyond a reasonable doubt. I remind myself that I must not speculate about what might have been said in evidence if Mr Alty had given evidence.

SINGLE WITNESS

17. Wherever the Crown seeks to establish the guilt of an accused person in a case based largely or exclusively on a single witness, it is important that I exercise caution. Unless I am satisfied beyond reasonable doubt that Troy Nancarrow is both an honest and accurate witness in the account he has given, I cannot find the accused guilty. I must examine the evidence of Mr Nancarrow very carefully before I can safely act on that evidence to the high standard required in a criminal trial. While I am entitled to convict the accused upon the evidence of Mr Nancarrow, I can only do so after I have carefully examined his evidence and satisfied myself that it is reliable beyond reasonable doubt.

ELEMENTS OF THE OFFENCE

18. To be guilty of aggravated enter dwelling with intent the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused entered a dwelling house, and

2. The accused intended to commit the serious indictable offence alleged; namely, larceny in that house.

3. In circumstances of aggravation; namely, knowing that the persons were in the place where the offence was committed.

19. Larceny is committed by a person who, without the consent of the owner, fraudulently, and without claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof: Ilich v Regina (1986) 162 CLR 110.

20. ‘Intent’ and ‘intention’ are very familiar words. They carry their ordinary meaning.

21. The Crown charges the accused on count 2 in the alternative to count 1. To be guilty of entering a building/land with intent to commit an indictable offence, the Crown must prove the following elements beyond reasonable doubt:

1. The accused entered or remained on any part of a building or land occupied or used in connection therewith, and

2. The accused intended to commit an indictable offence, namely, larceny, in or upon that building.

EVIDENCE

22. The Crown called the following witness:

1. Troy Douglas Nancarrow.

23. The following exhibits were tendered on behalf of the Crown:

1. Agreed facts;

2. Agreed facts for the co-accused, Ryan Martin;

3. Transcript of Troy Nancarrow’s electronically recorded interview with a suspected person, dated 20 November 2018;

4. Troy Nancarrow’s adoption of the electronically recorded interview with a suspected person;

5. Statement of Sergeant Sarah Lugsdin;

6. Judge alone application and consent of the Crown.

AGREED FACTS PURSUANT TO SECTION 191 OF THE EVIDENCE ACT 1995

24. For the purpose of these criminal proceedings the accused and the Crown, pursuant to s 191 of the Evidence Act 1995, have agreed upon the following facts tendered as exhibit 1 in the trial:

[1] – [2] …

[3] In the early hours of the morning of 10 May 2018, Emily Marsh was in her room and William and Glen Marsh were asleep in their respective beds in the room they shared. Glen Marsh was woken by a massive bang from the kitchen door near his room. His television was still on and his bedroom door was shut. His bedroom door flew open. The centre panels of the bedroom door flew inwards. The kitchen light was on which shed light into the bedroom. Glen Marsh saw three people standing in the kitchen right outside the bedroom door. Glen Marsh recognised Troy Nancarrow as one of the three men. The other two men were wearing black or very dark coloured clothing and balaclavas. One of these men, was Ryan Martin who was holding a sawn off shotgun.

[4] Glen Marsh jumped straight out of bed and went to grab a small ornamental sword which was on the cupboard next to his bed. As he reached for the sword Glen Marsh heard Troy Nancarrow state ‘shoot him in the legs now’. Ryan Martin shot Marsh in the leg from just outside the bedroom door. This was witnessed by his son, William Marsh. Glen Marsh grabbed a little round table that was near William’s bed. He saw that a fourth man had now entered the room. He too was wearing dark clothing and a balaclava.

[5] Troy Nancarrow came up to Glen Marsh and grabbed Glen Marsh by the scruff of his neck. Troy Nancarrow pulled Glen Marsh towards him. Troy Nancarrow said, ‘where’s your fuck’n money’. Glen Marsh said ‘I don’t have any’. Troy Nancarrow or Ryan Martin said ‘Where’s your phone, your wallet’ and ‘Where are the keys, give them to me now’. He was pointing to the garden shed. Glen Marsh told his son William to get the keys. William got the keys and passed them to Glen Marsh. Glen Marsh passed the keys to Troy Nancarrow.

[6] Two of the four men left the room. Ryan Martin and Troy Nancarrow remained in the room. Troy Nancarrow continued to yell at Glen Marsh. Troy Nancarrow took Glen Marsh’s wallet and phone.

[7] Emily Marsh had come into the bedroom straight after the shot was fired. Martin pointed the firearm at her head and said ‘fuck off’. Emily Marsh walked back towards her room. Troy Nancarrow then left Glen Marsh’s room. As Troy Nancarrow left he said to Martin ‘keep the gun on him Trippy’. Glen Marsh tried to move but could not. He fell over. He tried to crawl to the door but Martin was there and pointed the gun at Glen Marsh. Martin told Marsh not to move.

[8] Glen Marsh heard Troy Nancarrow yelling at Emily demanding her phone. Glen Marsh could see that the two other men were rummaging through the house.

[9] Ryan Martin sat on Glen Marsh’s bed. He looked at Marsh’s leg. Marsh’s calf had two massive holes in it and blood was squirting out of it. Martin said ‘oh shit, oh shit’ and got up and left the room. Less than a minute later Glen Marsh heard the wheels of a car spin and take off and. The four men had all gone.

[10] –[14]…

EVIDENCE OF TROY NANCARROW

25. The Crown relies upon the evidence of Troy Douglas Nancarrow. The Crown asserts that he is a person who was involved in the alleged crime. Over the years, the Courts have had a great deal experience concerning the reliability of evidence given by a witness who was involved in an alleged crime. That experience has shown that evidence given by such a witness may be unreliable. I warn myself that the evidence of such a witness may be unreliable, and I must approach that evidence with considerable caution.

26. Such a person may be motivated to give false evidence in order to qualify for a reduction in his own sentence. In this case, Mr Nancarrow received a combined discount on his sentence imposed by me on 26 January 2020 at the Albury District Court, which included a discount for future assistance.

27. In the prosecution of the trial against the accused, the Crown called Troy Douglas Nancarrow. On 26 October 2020, I sentenced Mr Nancarrow for his involvement in what I previously described as a drug run through. He pleaded guilty to three counts, namely, specially aggravated break and enter and commit serious indictable offence, discharge firearm with intent to cause grievous bodily harm, and intimidation to cause physical harm. I imposed an aggregate sentence of eight years and nine months with a non-parole period of six years and one month. He will be eligible for parole on 19 December 2024. He received a combined discount of 50% which was broken up as follows: 25% for plea, 15% for past assistance and 10% for future assistance.

28. At sentence, the offender, through his counsel, indicated his willingness to give evidence in any trials against Ryan Martin, Thomas Kirby and
    Nathan Alty. At the time of sentence, Martin and Alty had been charged. Subsequent to sentence Martin pleaded guilty to his role. He pleaded guilty to one count contrary to s 112(3) of the Crimes Act. On 19 August 2021 I sentenced Martin to five years with a non-parole period of three years.

29. Mr Alty has maintained his innocence and pleaded not guilty before me yesterday.

30. Exhibit 2 is the agreed facts between R v Ryan Martin. The agreed facts refer to Martin and Mr Nancarrow. The accused is not mentioned by name. There is a reference to co-offenders but they are not named.

31. On 20 November 2018, Mr Nancarrow participated in an electronic interview (exhibit 3). He signed a statement the same day saying he would be prepared to give evidence in accordance with his interview (exhibit 4).

32. In summary, the interview identifies the involvement of Mr Alty as follows: at questions 67 to 69, he says Alty was present. At questions 90 to 91, he identifies Alty travelling with him and others to Mr Marsh’s house. At question 109, he says that earlier in the day there was a discussion about the prices of cannabis. At questions 303 and 307, he says Mr Alty was sitting in the rear of the vehicle when they drove to the house. Questions 383 and 384, he said Mr Alty stayed in the car. At question 436, he said he was unable to say what Nathan was wearing. At question 558, he said “Nathan was aware we were going to take the “bud”. Questions 962 to 964, he said “Nathan had never walked into the house at all”. At questions 1042 to 1057, he said that “After the shot Nathan backed the car up. He didn’t help us get the drugs”.

33. On 7 March 2022, Sergeant Lugsdin spoke to Mr Nancarrow by telephone at the Clarence Correctional Centre. He acknowledged that he had said to Nathan Alty “I’m sorry I threw you in” and “I know I lied, I’m fucked up”. He went on to tell Sergeant Lugsdin that he had lied and that Nathan Alty was not there and that he would not give evidence against anyone else except Ryan Martin.

34. Sergeant Lugsdin asked him why he did not tell her this earlier and Troy told her that he told her this when she contacted him some time ago and she replied, “Mate you said to me that he did do it, then that he didn’t do it. You told me to work it out and you hung up on me”. Troy then went on to say that he was angry as he had just been bashed in gaol over the matter, and had been bashed four times because of this matter. At paragraph 6 of her statement, she says “I said `Why did you lie?’”. He replied that he was on ice at the time.

35. The statement of Sergeant Lugsdin is exhibit 5.

36. During evidence-in-chief, Mr Pincott, Crown Prosecutor, applied to cross-examine the witness on the grounds that the witness was unfavourable. This was not objected to by Mr Watson, counsel for Mr Alty.

37. He told the Crown Prosecutor that he had lied in his interview with police. He did not read the facts on sentence. He believes he was agreeing to the presence of Ryan Martin. He said Nathan Alty was not there. He said he had been bashed several times in prison and had changed his mind about giving evidence. He would not identify who bashed or threatened him. He made it clear by his tone, delivery, and demeanour that he did not want to give evidence.

38. In cross-examination, he was asked about Sergeant Lugsdin’s statement. He said that he told her that he had lied in the past about Alty’s involvement. He said to her two years ago that he (Alty) did not do it. He said Nathan Alty was not at Tooleybuc or at Mr Walsh’s house.

39. In dealing with what could be described as a backflip by Mr Nancarrow, Mr Crown submitted that the evidence demonstrated that there was honour amongst thieves and that Mr Nancarrow had not given a true account before this Court.

40. The Crown case was wholly dependent upon the honesty and reliability of
    Mr Nancarrow. I am not satisfied beyond reasonable doubt that Mr Nancarrow is an honest and reliable witness to the high standard required in a criminal trial.

41. I find the accused not guilty of count 1 and the alternative count.

**********

Amendments

16 March 2022 - Amended jurisdiction to Criminal jurisdiction.

16 March 2022 - Address removed

Decision last updated: 29 March 2023