R v Coleman Criminal Trial by Judge Alone - [2014] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLEMAN
Criminal Trial by Judge Alone
[2014] SADC 57
Reasons for the Verdicts of His Honour Judge Tilmouth
16 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
The accused is charged with serious aggravated criminal trespass in a place of residence and theft therefrom. The circumstantial case against him is based entirely on his thumb print on a chair outside the premises below the point of entry, and two fingerprints on the inside window still at the point of entry which although not proven to be his, could not be excluded as his.
Held: The combination of circumstances and the position and direction of the finger prints in conjunction with the thumb print, leads to the inevitable conclusion beyond reasonable doubt that the accused was the intruder.
R v Laz [1998] 1 VR 453; Edwards v The Queen (1993) 178 CLR 193; Weissenteiner v The Queen (1993) 178 CLR 217, 229; Dreezer v Duvnjak (1996) 6 Tas R 294, referred to.
Mule v The Queen (2005) 79 ALJR 1573; Azzopardi v The Queen (1993) 178 CLR 217; Sheppard v The Queen (1990) 170 CLR 573, applied.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Evidence of finger prints, even if the only evidence of identity can be sufficient and cogent enough to support a conviction.
R v Blacker (1910) 10 CLR 604; R v Castleton (1909) 3 Cr App R 74; Parker v The King (1972) 14 CLR 681; Moreshead v Police [1999] SASC 162; R v SMR [2002] NSWCCA 258; R v Peel [1999] 2 Qd R 400; Woolmington v The Director of Public Prosecutions [1935] AC 462; King v The Queen (2003) 215 CLR 150; R v WG (2010) 199 A Crim R 218; R v Waugh (2005) 93 SASR 274; R v B & D (1993) 66 A Crim R 192, referred to.

R v COLEMAN
[2014] SADC 57
The charges

Jerome Coleman was arraigned and pleaded not guilty to charges of aggravated serious criminal trespass in a place of residence and theft. Sometime earlier a judge of this court made an order that he be tried by judge alone. The case against him is entirely circumstantial based around fingerprints found in and about the subject premises.
The circumstances are largely undisputed, the central question being whether the established or objective facts lead to an inevitable inference drawn beyond reasonable doubt that he committed the two crimes. All the evidence apart from some agreed facts in the case was taken by video link from Port Augusta to Ceduna, Port Lincoln and Adelaide.
Uncontested facts
The complainant, an 86 year old woman who was 87 at the time of giving evidence, lived alone in a Unit within an Aged Care facility in O’Loughlin Street Ceduna on the far west coast of this State. On Saturday 2 February 2013 she was at home doing some sewing in her garage. At some time between 7-7:30 pm she returned her car to the garage, closed the roller door and entered her Unit through an internal door from the garage. She left the remote control for the roller door on the windscreen wiper of the car. The car keys themselves were normally kept on a cupboard in her kitchen although she was not sure where she left them this evening.
At some time around 10:00 pm or perhaps a little later that evening, but no later than 11:00 pm, she went to bed after locking all the external windows except one, which could not be opened from outside. She emerged at about 3:00 am having a backache, to use a massage chair kept in the garage, only to find the car was missing. The roller door was ‘wide open’, the garage window was missing, and a kitchen window was broken. A white plastic outdoor chair normally kept under the laundry window near her back door was found adjacent to the garage window down the side of the house. The position in which she found it is shown in photograph 2 of Exhibit P1, and the position in which it was normally kept appears in photograph 13. Some ornaments she placed on the inside kitchen window sill were found in some pots outside, below the window.
Brevet Sergeant Gornall a crime scene investigator from the Port Lincoln police examined the residence at about 3:25 pm the following day. He observed the damage to the garage window leading to a side garden, and also damage to the laundry and rear windows facing the backyard, from which rubber seals and flyscreens had been removed. These can be seen in photographs 13, 16 and 18 of the bundle Exhibit P1. Gornall found three sets of fingerprints, two on the inner window frame of the garage window and a third on the top of the plastic chair. These can be seen in photographs 4-9 and 10-12 respectively. He photographed the prints and forwarded them to the fingerprint bureau for examination. Items atop a cupboard inside underneath the garage window may have been disturbed by the intruder however the evidence about that is inconclusive.
The only other witness in the prosecution case was Brevet Sergeant Lewis from the Fingerprint Bureau of SAPOL. He examined the images photographed by Gornall in order to make fingerprint comparisons. There was no issue as to his expertise or experience to give that expert evidence. It was an agreed fact that fingerprint impressions were taken from the accused on 8 July 2013 at Port Augusta and that these were used as the basis of comparison.
His evidence was to the following effect:
·the two impressions on the inner left hand side of the garage window sill, one had insufficient detail to make a positive identification. As to the second, a right index finger pointing downwards, the accused could not be excluded, there being eight points of similarity or identification;[1]
·the two downwards impressions on the inner right side of the garage window sill, one had insufficient clear ridge detail for making an identification, but the other could not exclude the left middle finger of the accused, once again there being eight clear points of identification;[2]
·an impression of the right thumb of the accused on the upper right lip of the plastic outdoor chair.[3]
[1]    T35.1-36.32, photograph 7.
[2]    T36.33 – 37.33, photographs 8 and 9.
[3]    T37.34 – 38.27, photographs 10-12.
The other aspect of the prosecution case was the tender of three agreed facts, relating to a record of interview with the accused on 8 July 2013, a portion of which was tendered in the prosecution case. In that interview Mr Coleman denied any involvement in these offences. He told police that he never used to (or needed to) go into Ceduna. A third agreed fact was that the accused was bailed on 19 November 2012 to an address in Ceduna. However the prosecutor rightly accepted that this apparent contradiction could not be evidence of guilt, as evidence of lies would simply be entirely circular: R v Laz,[4] Edwards v The Queen.[5] By the same token the denials of involvement of the accused carry very little probative weight in the defence case in the circumstances: Mule v The Queen.[6]
[4] [1998] 1 VR 453.
[5] (1993) 178 CLR 193, 209.
[6] (2005) 79 ALJR 1573, [22-23].
At the close of the prosecution case Mr Coleman elected not to give evidence. This is his right and in no sense does it constitute evidence against him or amount to any kind of admission by him, and of course it may not be used to fill gaps in the evidence tendered by the prosecution or used as a make weight in assessing whether the prosecution has proven its case beyond reasonable doubt: Azzopardi v The Queen.[7] Mr Plummer did not claim that this was one of those rare and exceptional cases where it would be open to comment on the failure of Mr Coleman to give evidence in accordance with the principles discussed in Azzopardi,[8] and Weissenteiner v The Queen.[9]
[7] (2001) 205 CLR 50, [51].
[8] Above [68].
[9] (1993) 178 CLR 217, 229.
Of course, as in all cases in the criminal court, the prosecution bears the onus of establishing each element of both charges beyond reasonable doubt if it can: Woolmington v The Director of Public Prosecutions.[10] Accordingly if the evidence raises a doubt as to guilt the accused is entitled to the benefit of that doubt: Woolmington,[11] King v The Queen.[12] Moreover even if the accused is probably guilty or even if it is more likely than not that he committed the offences, that would be insufficient: R v WG.[13] Still further this being an entirely circumstantial case, it there remains a reasonable hypothesis consistent with innocence, the accused is entitled to an acquittal: Sheppard v The Queen.[14]
[10] [1935] AC 462, 481.
[11] Above 481.
[12] (2003) 215 CLR 150, [18].
[13] (2010) 199 A Crim R 218, [19].
[14] (1990) 170 CLR 573, 579.
Analysis of the evidence
The case for the prosecution therefore is an entirely circumstantial one. The underlying facts giving rise to the inferences against Mr Coleman are proven beyond reasonable doubt. His thumb print is undoubtedly on the outer upper lip of the chair found below the point at which entry into the garage through the broken window. That leads to the further inference that the chair was used to gain height and leverage to effect and that it was moved that night by the intruder from near the back door for that very purpose.
It may be accepted that the fact two prints on the inner side of the wooden surface of the window frame are not proven conclusively to belong to Mr Coleman. Although inconclusive in themselves, they are consistent with the prosecution case that it must have been Mr Coleman who affected entry. So to say does not mean that consistency is necessarily synonymous with ‘confirmatory of’ for as King CJ explained in R v B&D,[15] such evidence does not of itself ‘implicate [the] accused’. As explained in R v Peel:[16]
[40] That is not to say that fingerprints alone may never justify a conviction. Much will, as is often the case, be dependent on all the surrounding circumstances. In a situation such as existed in R v Morris (No 2) [1914] St R Qd 274 a conviction will be justified; however, in circumstances such as were before the court in R v Barbera noted at (1972) 1 NSWLR 612 any conviction would have to be regarded as unsafe and unsatisfactory. Usually one will find in the evidence some link between the commission of an offence and the accused person other than a fingerprint; for example, the fact that a murder weapon (knife or revolver) was owned by the accused and in his possession until a short time prior to the offence would make the presence of the accused fingerprints on that weapon of much greater significance. All of that demonstrates that each case must be dependent upon its own facts.
[15] (1993) 66 A Crim R 192, 196.
[16] [1993] 2 Qd R 400, [40].
Then again as can be seen from such cases as R v Blacker,[17] R v Castleton,[18] Parker v The King,[19] Moreshead v Police[20] and R v SMR[21] demonstrate that evidence of finger prints even if the only evidence of identity, can be sufficient and cogent enough to support a conviction.
[17] (1910) 10 CLR 604.
[18] (1909) 3 Cr App R 74.
[19] (1912) 14 CLR 681.
[20] [1999] SASC 162.
[21] [2002] NSWCCA 258.
Nevertheless those two fingerprints are probative to the extent that those inside finger prints are not inconsistent with them being the accused’s. It was argued by Ms Burgess that there is a reasonable hypothesis consistent with innocence in that Mr Coleman may have accidently stumbled upon the premises and handled the chair, even though he and the occupant were not known to each other, perhaps in a drunken condition. However there is simply no evidence to support such a hypothesis which is purely speculative and inherently unlikely, especially given what he said in his record of interview. There is no evidence pointed to the proximity or otherwise between the subject premises and the bailed address in Ceduna.
The circumstantial case against the appellant lies in the conjunction of circumstances. The thumb print on the outside chair directly under the window through which there is no doubt access was gained, and the two prints on the inside pointing downward are wholly consistent with taking the chair from its original position and using it to facilitate entry, and the juxtaposition of the partial print on the inside are equally consistent with grabbing the sill with both hands to raise the body up to and over the window. It is this combination and conjunction of circumstances that lead to the inevitable conclusion that there can be no reasonable doubt other than that Mr Coleman was the person who gained entry through that garage window on that evening. In light of that conclusion attention can be turned to the offences and the individual elements thereof.
The offences as charged
Dealing first with the second count of theft charged contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), it is clear beyond doubt that the intruder took the vehicle from the garage. There is no proof that the keys were stolen to effect its removal, as opposed for instance to ‘hot wiring’ or removed in some other way. There was scant evidence about the fate of the vehicle, however it was conceded by Mr Plummer that it was found later. There is no evidence at all as to what condition it was found in. The offence of theft comprise:
1dealing with property (partially defined by s 130)
2the dealing is without the owner’s consent (partially defined by s 130 and s 132);
3the dealing is with the intention of depriving the owner permanently of the property or making a serious encroachment on the owner’s proprietary rights (defined by s 134(2)); and
4the dealing is dishonest (defined by s 131): R v Kerin,[22] and R v Kerin.[23]
[22] (2013) 116 SASR 316; [2013] SASCFC 56; BC201310400 at [168] – [174].
[23] [2014] SASC 19; BC201400757 at [9]-[10].
Nevertheless there can be no doubt that removing the vehicle over a short distance, was a serious encroachment on the complainant’s proprietary rights in the ownership of that vehicle within the purview of s 34(2)(a) and (b) of the CLCA. In any event the illegal use of the motor vehicle is sufficient proof for that purpose: R v Waugh.[24] The circumstances do not enable the conclusion that there was any intention to deprive the owner permanently of the property; indeed the fact that the car was left elsewhere suggests otherwise. Accordingly a conviction will be entered against Mr Coleman on count 2 of theft, the particulars being dishonest dealing with property, namely the motor vehicle of the complainant without her consent by making a serious encroachment on her property rights in relation thereto.
[24] (2005) 93 SASR 274, [13].
Turning then to count one, this charges an aggravated serious criminal trespass in a place of residence charged under s 170(1) of the CLCA. There can be no doubt that the trespassory entry was made, that this was a place of residence and that the intention of the intruder was to commit theft on account of the known fact that the car was taken. Accordingly the basic offence is made out.
However, there is a question mark over the aggravating feature namely that the offence was committed when the owner was home (which has been proven) and that the accused ‘knew of her presence or was reckless about whether anyone was in the’ residence. There is no evidence of actual knowledge. The prosecutor relied upon recklessness. He pointed, not without some force, to the fact that the offence occurred late at night, that this was a retirement village and the fact that the car was in the garage, which would have alerted the intruder to the fact that persons might be home. There is however no satisfactory evidence that this was obviously an aged care facility.
Recklessness requires a realisation or contemplation of the chance that someone might be home and an indifference to that consequence by proceeding to commit the trespassory entry: Dreezer v Duvnjak.[25] The evidence here strongly suggests that Mr Coleman at first attempted to gain entry through the laundry window, and then the kitchen window. Entry was partially gained to the latter, because of the removal of the ornaments from the inside window sill to the pots outside. Those rear windows were probably respectively damaged and shattered by the use of broken bricks which are visible in photographs 16-18 of Exhibit P1.
[25] (1996) 6 Tas R 294, 299-300.
Irrespective of that, considerable noise must have been generated in damaging the two rear windows. For whatever reason Mr Coleman backed off and made the third brazen attempt at gaining entry to the garage which was successful. On that basis there is enough evidence to suggest that the intruder tried at least twice to affect a noisy entry and may well have formed the view that no one was home. Nevertheless on that view of the facts he must have necessarily adverted to the risk that someone might have been home and yet he proceeded to effect entry notwithstanding. Accordingly the element of aggravation is proven.
Verdict and conclusion
For the above reasons Mr Coleman is found guilty of the offence of aggravated serious criminal trespass in a place of residence and guilty of theft of the motor vehicle from the subject premises, so that verdicts of guilty will be entered accordingly. He is now entitled to be heard in mitigation of sentence.