R v Caynn Zachary Fittler

[2016] NSWDC 226

District Court

New South Wales

Medium Neutral Citation:	R v Caynn Zachary FITTLER [2016] NSWDC 226
Hearing dates:	20, 21 September 2016
Date of orders:	21 September 2016
Decision date:	21 September 2016
Jurisdiction:	Criminal
Before:	A Haesler SC DCJ
Decision:	Guilty verdict to Count 1 on Indictment.
Catchwords:	Judge Alone; Break, Enter and Steal; Mild Intellectual Disability; Fingerprints; Joint criminal enterprise; Alibi.
Legislation Cited:	Evidence Act 1995
Cases Cited:	The Queen v Baden-Clay [2016] HCA 35 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 Parker v The King (1912) 14 CLR 681; R v Parker [1912] VLR 152 TWL v R [2012] NSWCCA 57 R v Zvonaric [2001] NSWCCA 505
Texts Cited:	Strengthening Forensic Science in the United States: A path forward, National Academies Press 2009. National Research Council "NRC". Suspect Identities: A History of Fingerprinting and Criminal Identification, S Cole, Cambridge MA, Harvard University Press, 2001. A Review of the FBI's Handling of the Brenda Mayfield case (2006) U.S. Department of Justice. House of Commons. Science and Technology Committee. Forensic Science. Second Report of Session 2013-2014, The Stationary Office Ltd, London, 2013: Forensic Science In Canada. A report of multidisciplinary discussion, MS Pollanen, MJ Bowes, SL Van Laerhoven and J Wallace, University of Toronto, 2013.
Category:	Principal judgment
Parties:	Director of Public Prosecutions Caynn Zachary FITTLER (Offender)
Representation:	Counsel: Ms H. Kemp. (Trial Advocate for ODPP) Mr P. Pearsall (Public Defender for offender)     Solicitors: Ms J. Azad (ODPP) Aboriginal Legal Service (NSW/ACT) Ltd (for offender)
File Number(s):	2015/213588
Publication restriction:	S15A Children (Criminal Proceedings) Act 1987No publication of names of children – pseudonyms used.

Judgment

A Judge Alone Trial

1. A person accused of a serious crime can, after receiving legal advice, waive their right to a trial by jury and elect for a trial by judge alone. Mr Fittler made such an election. The Director of Public Prosecutions consented to that course.

2. On 20 September 2016 an Indictment was presented at Wollongong District Court alleging that on 26 June 2015, Caynn Zachary Fittler, in company with another or others, broke and entered the dwelling house of Thomas and Marion Best at the Lake Windermere Caravan Park and committed the serious indictable offence of stealing property. That property included a TV, a computer monitor and keyboard, personal effects and jewellery, and importantly, bottles of alcohol. Mr Fittler said he was not guilty. His trial proceeded before me. Evidence and submissions concluded today 21 September 2016.

3. By consent, the bulk of the prosecution case was presented through the Officer in Charge, Acting Sergeant Walsh. Documents were tendered and read on to the record: see R v Zvonaric [2001] NSWCCA 505 at [42]. Photographs and aerial plans were tendered.

4. There was a defence case. The accused gave evidence; so too did his Grandmother, Ms Rien.

5. As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdict reached.

Elements

6. The prosecution must prove each element of the offence against this accused. I find that the evidence at trial established beyond reasonable doubt that there was a break and enter at the Best's home and that property was stolen by at least two individuals. So much was not in dispute at trial. What is in dispute is whether Mr Fittler was one of those responsible for the break in either as a principal or as part of a joint criminal enterprise.

Key Directions

7. Onus: The most important direction in any criminal trial is this: the accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved its case, that is; each element of the offence charged including the identity of the offender. If the prosecution fail to meet that high onus; or, if I have doubts about their case, Mr Fittler must have the benefit of any reasonable doubt and I must return a verdict of not guilty.

8. The Accused's evidence: Mr Fittler chose not to talk to police. His exercise of his right to silence must be recognised.

9. At trial however Mr Fittler gave and called evidence in his defence. He had no obligation to do so. I can use that evidence in my assessment of whether the prosecution have proved its case against him or not.

10. If, having considered that evidence, and the submissions of both counsel in relation to it, I accept what the accused says I must acquit him. If, having considered the evidence of Ms Rien and the submissions of both counsel in relation to it, and I find it provides an alibi for the time the offence was committed, I must acquit him.

11. There is no obligation on the accused to persuade me to accept the evidence he has given and called. It remains for the Prosecution to satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts. If that evidence leaves me with a reasonable doubt as to whether the Prosecution has made out its case in respect of any element of the offence or any essential fact that it must prove, then I am bound to bring in a verdict of "not guilty".

12. Evidence: The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial. Some evidence was not in dispute - some was hotly contested. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgement. In a circumstantial case, if a hypothesis said to be consistent with innocence puts an incredible strain on my human experience, I am entitled to be sceptical.

13. I cannot however use my personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to "common knowledge" set out in s 144 Evidence Act 1995 (NSW). I note the requirement in s 144(4) that necessary things be done to ensure a party is not unfairly prejudiced: see Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 at [68]-[69].

14. Assessing witnesses: For most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision.

15. There is evidence that Mr Fittler has a mild to moderate intellectual disability: exhibit 2. He has literacy, comprehension and learning problems. The term 'mild' refers to a comparison between levels of intellectual disability. It does not mean that the individual is only mildly affected in relation to the general population. An individual with mild intellectual disability has support needs but they are relatively low compared to those who are more severely or profoundly impaired. Care needs to be taken to avoid treating Mr Fittler’s genuine incapacity to convey concepts, in a negative way; when I come to consider the veracity and truthfulness of his evidence.

16. Good character: There is evidence from Acting Sergeant Walsh that Mr Fittler has no criminal convictions. Mr Fittler said he was an honest person who did not steal. His Grandmother confirmed this and told me he had fallen out with his friends because he had told police of their wrongdoing in an unrelated incident.

17. I can take that evidence into account when considering the question of his guilt. That he is a person of good character entitles me to consider the improbability of his having committed the offence alleged. Further, when considering his evidence and his assertion he was not involved in the break enter and steal offence, I must bear in mind that it was made by a person of good character and must take that fact into account in deciding whether I accept his evidence.

18. None of this provides the accused with some kind of defence as people of prior good character do commit offences. It is only one of the many factors that I can take into account when determining whether I am satisfied beyond reasonable doubt of his guilt

19. Joint Criminal Enterprise: The Prosecution must prove beyond reasonable doubt that Mr Fittler was a participant in the commission of the breaking, entering and stealing as part of a joint criminal enterprise with another or others: see TWL v R [2012] NSWCCA 57.

20. Where two or more people agree to carry out a particular criminal activity, each is held criminally responsible for the acts of another participant in carrying out that enterprise, regardless of the particular role played by any particular participant.

21. The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them. The agreement may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.

22. Inferences: As I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful about drawing any inference adverse to him. This includes any inference about his state of mind including any agreement he may have had with others. I must carefully examine all the evidence in relation to all the relevant circumstances and examine any possible inference to ensure that it is a justifiable inference. I must not draw any inferences from the direct evidence unless it is the only rational inference in the circumstances.

23. Alibi: There is evidence in the defence case that Mr Fittler was home at his Grandmother's at 12:20 AM on the morning of 26 June; at the very time Mr Best awoke to find two people in his bedroom. This evidence is intended to show that at the time the offence was being committed he was somewhere else and therefore could not have committed it.

24. The prosecution must prove beyond reasonable doubt that this alibi evidence is not relevant or should be rejected. I must not assume that because the alibi fails that the accused is guilty. I must still be satisfied beyond reasonable doubt, upon the evidence as a whole; that the prosecution has made out its case against the accused before I could bring in a guilty verdict.

25. Circumstantial evidence: The well settled principles relating to proof of a circumstantial case were recently set out by the High Court in The Queen v Baden-Clay [2016] HCA 35 at [47]- [50]. Omitting citations they are:

1. When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.'

2. To enable a trier of fact to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable the trier of fact to draw’.

3. For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a trier of fact from finding the accused guilty, if the inference of guilt is the only inference open to reasonable people upon a consideration of all the facts in evidence.

4. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed, in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

5. The evidence at trial is not to be looked at in a piecemeal fashion.

Evidence Summary

26. Evidence not in serious dispute: At about 8PM on 25 June 2015 Mr and Mrs Best went to bed in their transportable home at the Lake Windermere Caravan Park, Windang. That night of a number of young men broke into the Best's home. The Bests were apparently heavy sleepers for nothing disturbed them; not even the turning on of a light and the removal of their computer, their TV, some wine and other personal property.

27. The Best's home sits alongside other similar dwellings. It backs onto a creek. Two young persons, Harley and his brother Jessie, and at least one other, left their fingerprints at or near the point of entry - a side window of the study or office whose fly screen had been cut: exhibit G and testimony Acting Sergeant Walsh

28. Two of the burglars were disturbed by Mr Best when he woke at 12.20AM. They fled via the back door. The Best's possessions had been interfered with and property taken. Police were called. The Police Dog Squad and Police Dog ‘Dax’ attended. Photos were taken. Scene of crime officers took photographs of fingerprint impressions.

29. Outside the rear door, within a few meters, on the lawn toward the creek, were a computer monitor and screen. Nearby was a black bag containing bottles of alcohol: see photo Exhibit L 4. The bag had been taken from the rear study of the home. The bottles in it were taken from a wine-rack near the door between the study and the dining room. One of those bottles was a Galway Port still in its tube; another, a bottle of Chardonnay.

30. Three identifiable fingerprint impressions were found on the contents in the black bag. One - a left middle fingerprint was on bottom of the Tube containing the Port. On the Chardonnay bottle were a left ring and a left middle fingerprint impression. It is not in dispute those three prints match those of the accused.

31. Other property belonging to the Bests, including a small TV was found scattered along the edge of the Creek toward the North for about 100 meters. A glove was found. DNA was recovered from the glove but has yet to be matched with any person on the relevant database. The accused is now on that database.

32. Evidence in serious dispute: Mr Fittler gave evidence. He was asked," Did you break in?" He answered "No." He was asked had he ever been to the caravan park. He answered "no I haven't." He did not retreat from that position when cross-examined. When it was put to him that he ran from the Caravan Park after being disturbed by the Bests he said he could not run because of an injured ankle. His grandmother confirmed that he had trouble running.

33. He told me that when he received the police brief he tried, with the help of his Nan, to work out what night it could have been. He told me of a late afternoon in June 2015 when he meet up with his friend Jessie. The two walked to a vacant lot in Little Lake Crescent, Windang, near the beach: marked on Exhibit 1. That lot is roughly 750 metres from the Best's home.

34. Later in the evening they were joined by Jarrod, Jacob and Harley. Those boys had a black bag with them. In it were bottles of alcohol. Harley showed him the bag. He picked out a tube. He slid the bottle out. He was told he couldn't have it. He was given a small 6" high clear bottle of dark liquid. He drank it all. He got pretty intoxicated. He'd had enough, so he left the group and went home to his Nan's in Warilla. He was home before midnight.

35. He said the following day he meet Jessie and Harley who told him "we did over a house". He said he did not believe them.

36. His grandmother Cherie Rien gave evidence. Mr Fittler was living with her at the time the offence was committed. She told me that after Mr Fittler had been charged on 25 July 2015 she had thought back and come to the conclusion there was only one night during the relevant period that he had been out late. That one night he had come home at 10:55PM. She had not expected him home that night as he was supposed to be staying with his friend Jessie. He was very drunk. He went straight to bed. She had checked on him during the night. He did not leave. She remembered the time because she is an obsessive clock watcher. She has a clear recollection of checking the hands of the clock as he came in. She was so convinced of this she would undertake a lie detector test if necessary.

Submissions

37. Ms Kemp, solicitor, for the Director of Public Prosecutions, submits that regardless of what both Mr Fittler and Ms Rien now assert, and which Ms Rien may well believe, the objective fingerprint evidence establishes Mr Fittler handled the bottles at some point in the burglary. She goes further and submits that a review of all the evidence compellingly establishes it was Mr Fittler who took the bottles from the wine rack in the Best's home. The defence hypothesis she submits defies common sense. There was only one break in. The bottles were not removed and later returned after they had been innocently touched by the accused.

38. She says Mr Fittler’s version of how his fingerprints came to be on the bottles found outside the premises was not rational and that no reasonable person could accept it. Accordingly, she submits that Ms Rein's alibi cannot stand against that evidence and she must be mistaken as to the day and/or hour she says her grandson returned home late and drunk.

39. Mr Pearsall, Public Defender, for Mr Fittler, took me through the evidence and asked, "What’s so absurd about the defence hypothesis?" He said there is no reason to reject Mr Fittler an honest young man who, despite his disability, gave a credible account of how his fingerprints came to be on the bottle and tube. He noted Mr Fittler's firm, unembellished evidence that was given in a manner that showed no signs of fabrication.

40. He said there is no reason to reject Ms Rien. And, if her evidence stands, so too does Mr Fittler's alibi: he cannot have been in the Best's home around and after midnight on 26 June 2015 as he had arrived home at 10:55 on the evening of the 25th.

41. He correctly asked that I not speculate about what was not in evidence. For example what the burglars intended. He took me carefully through the known and largely undisputed facts that supported the defence hypothesis. Each step of which he said was "rational, possible and reasonable." Particularly so if the initial burglars presumed, all-be-it wrongly, the house was unoccupied and thought they could, as unsophisticated young people might, take their time and return to take more property after they had split up from Mr Fittler.

Consideration

42. Fingerprints: As long ago as 1912 the High Court of Australia affirmed a Victorian Court of Appeal decision that a jury could safely convict on the basis of a fingerprint found on a bottle at the scene of a break and enter offence: see Parker v The King (1912) 14 CLR 681; R v Parker [1912] VLR 152. This century there has been a renewed interest in the veracity of pattern recognition identification evidence including criticisms of the certainty with which expert but subjective opinions of identity are expressed: see Strengthening Forensic Science in the United States: A path forward, National Academies Press 2009. National Research Council "NRC". Suspect Identities: A History of Fingerprinting and Criminal Identification, S Cole, Cambridge MA, Harvard University Press, 2001. A Review of the FBI's Handling of the Brenda Mayfield case (2006) U.S. Department of Justice. House of Commons. Science and Technology Committee. Forensic Science. Second Report of Session 2013-2014, The Stationary Office Ltd, London, 2013. Forensic Science In Canada: A report of multidisciplinary discussion, MS Pollanen, MJ Bowes, SL Van Laerhoven and J Wallace, University of Toronto, 2013.

42. This trial does not give rise to such issues however. It is accepted that Mr Fittler handled the bottle and tube, and that his fingerprint impressions were left on them.

43. Alibi: If Mr Fittler was home at 10.55PM on 25 June 2015 a reasonable doubt would arise. Ms Rien was an honest person doing her best to help the court. I accept she is an obsessive clock watcher. I remain sceptical however of her capacity to go back weeks after an event and recall the exact time her grandson came home, given she could not remember the day or week the event occurred. It is, with great respect, all too easy to misread the hands of a clock.

44. In any event even if Mr Fittler was home around midnight he could have walked the 2 or so kilometres from the Best's home to his own after the property was taken but before the other burglars were disturbed. It is not critical to the Crown case that he was there at 12.20AM.

45. Good character: I accept that for Mr Fittler to commit a crime such as this would be against his character. He appears to be a fundamentally honest young man, who as he told me "knows right from wrong."

46. That said there were aspects to his evidence that were not convincing. He was not under curfew at the time. He told his grandmother that his friends were thieves and could not be trusted. But he was with Jessie “24/7”. He was at times using cannabis to excess. That cannabis use impacted on his memory "pretty bad". He was intoxicated this night. He was with Jessie near to the Caravan Park. His grandmother says at times when he is confronted with things he doesn't understand his anxiety is such that while he does not lose consciousness he "blacks out". She said, this means "he becomes so distressed his minds shuts off until his emotions catch up".

47. None of this means he did not commit the offence: None of this makes his denials compelling. To the contrary; they provide a reason why he having participated in the break and enter might leave the scene and go home and want to forget doing it. And to deny, to himself and others, he had done something so out of character.

48. Hypothesis consist with innocence: It is not for the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference: see Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 105. That said, here the defence, by sworn evidence, do put forward a hypothesis. Accordingly, I do not need to consider other alternatives that might be consistent with innocence: Baden-Clay at [63].

49. It is not beyond the realms of possibility that those who broke into the Best's home via the side study window took the property stolen out of the rear door. It is not beyond the realms of possibility that they were unaware the Bests were asleep in the main bedroom until 12:20AM when Mr Best woke and yelled at them.

50. It is not beyond the realms of possibility that the burglars made multiple entries into the home. In fact it seems fairly obvious they did, whether two, three or four of them were involved. It is enough that the accused participated in one of those entries. Some property was placed on the lawn, some strewn along the creek and some taken away. The Bests went to bed about 8 PM on 25 June. The initial entry could have been at any time after that.

51. If the defence evidence is to be accepted, Harley and possibly others committed the initial break enter and steal after 8 PM. They then took the bag containing bottles of alcohol to the vacant lot where they meet up with Mr Fittler and Jessie. They then drank some of the stolen alcohol. Mr Fittler would have left them around 10:30PM to get home by 10:55PM. They then took the bag containing the items touched by Mr Fittler back to the Best’s home. This would have meant going through the caravan park or along the creek. This would have meant carrying a bag of bottles with them and not placing it somewhere out of the way.

52. This scenario would also have required Jessie, who had not been there earlier to have touched the inside centre bottom rear office window, where his fingerprint was found, even though by then the earlier burglars had in all probability opened the rear door in order to get the bag of bottles out. They were then disturbed, leaving the bag of bottles outside the rear door, and a trail of property along the creek.

53. The prosecution case does not require that Mr Fittler was there when Mr Best woke only that he a participated in the burglary. Having considered all the evidence including everything led in the defence case, that case cannot be accepted.

54. I believe myself to have a good imagination. In my long career I have heard many improbable tales that ultimately were proved to be true but this scenario is beyond the realms of possibility. I reject the defence hypothesis.

55. The prosecution's onus: The position of the fingerprints on the chardonnay bottle and the Port tube indicate that the accused held the bottom of each item in his left hand. The bottles were kept inside the Best's home on a wine rack as shown in exhibit D. The fingerprints’ position is consistent with the accused having removed them from the wine rack or handled them as they were placed in the bag.

56. Jessie's fingerprint was found at the point of entry - the study window. If he had returned to the home after Mr Fittler had left him it seems improbable he would have needed to be anywhere near the study window.

57. The tube and bottle with the fingerprints were found outside the rear of the premises. It seems clear that they had been placed there, near the computer monitor and keyboard while the burglars returned to get more property. If the bottles had been taken much earlier that evening it seems improbable that they would have been taken back. The bag may have been but not the bottles! I do not know how long the burglars were in the Best's home. I do not know when Mr Fittler chose to leave but he was in or at the home long enough to handle the bottles found at the site of the break, enter and steal, as a party to the joint criminal enterprise. Those bottles were not removed and then returned by others. The prosecution have proved each element of the offence beyond reasonable doubt.

58. Accordingly I find Caynn Zachary Fittler guilty of the charge in the indictment, that he on 26 June 2015, while in company with another or others, broke and entered the dwelling house of Thomas and Marion Best at the Lake Windermere Caravan Park and committed the serious indictable offence of stealing property including a TV, a computer monitor and keyboard, personal effects and jewellery, and bottles of alcohol.

**********

Decision last updated: 22 September 2016