R v Coleman (No 2) - [2014] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLEMAN (No 2)
Criminal Trial by Judge Alone
[2014] SADC 168
Reasons for the Verdict of His Honour Judge Lovell
19 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Circumstantial evidence - whether DPP case amounts to proof beyond reasonable doubt.
Verdict - Guilty on both counts.
Shepherd v The Queen (1990) 170 CLR 573, applied.
Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSW CCA 480; R v Hillier (2007) 228 CLR 618; R v Chamberlain (No 2) (1984) 153 CLR 521, considered.

R v COLEMAN (No 2)
[2014] SADC 168
Background

On 3 January 2013 Mr Loader and his family were staying at the address of 68 O’Loughlin Terrace, Ceduna.
At about 10pm Mr Loader secured the house and went to bed. He was awoken at about 2.30am by a banging noise. When he investigated the source of the noise he discovered that the back door had been damaged, and that someone had entered the house and taken his wife’s purse.
The DPP allege that the accused either entered the house and stole the purse or that he jointly participated in a criminal enterprise to do so. The accused was charged with one count of Aggravated Serious Criminal Trespass in a Place of Residence and one count of Theft. He pleaded not guilty to both charges before me on 17 June 2014 and the trial proceeded on that day.
Legal directions
As the judge of the facts and law, I must find the facts and draw the inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable. That is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence, or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
In this matter the accused elected not to give evidence. He remained silent. He was not bound to give evidence. He has the right to decline to give evidence. I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I remind myself that it is for the prosecution to prove its case beyond reasonable doubt.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally. I may use my commonsense, experiences and wisdom in assessing the evidence.
Where the case, as it does here, rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than 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 enable me to draw.
The accused is charged with two offences. I must consider each count separately and consider that charge only by reference to the evidence that applies to it.
Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. It would be quite wrong to say that simply because I found the accused guilty of one count that he must therefore be guilty of other counts. I must ask myself to consider each count separately: am I satisfied beyond a reasonable doubt, by the evidence that relates to that count, that the accused is guilty of that crime?
Circumstantial evidence
The prosecution bases its case against the accused upon circumstantial evidence. There is no direct evidence that he was on the premises that night.
The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously, and so can the weight of the various circumstances that are proved.
I remind myself that the weight of a case which depends (substantially) upon circumstantial evidence, in the result, depends upon the combined strength of all the facts that are proved.
As the prosecution case rests upon circumstantial evidence, I remind myself that I cannot return a verdict of guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before I can be satisfied that the accused is guilty of any offence, I must be satisfied not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw.
Indispensable intermediate steps in the reasoning process must be established beyond reasonable doubt.[1]
[1] Shepherd v The Queen (1990) 170 CLR 573, 579.
First, I must look at the facts upon which the prosecution relies as circumstantial evidence in the case, and decide which facts I accept as established by the evidence. Then I must consider what inference or inferences I am prepared to draw from those facts.
I will go through the facts relied upon by the prosecution later in these reasons.
Elements of the offences
As mentioned the accused is charged with two offences.
The first is that between 2 and 5 day of January 2013 he committed the offence of Aggravated Serious Criminal Trespass in a Place of Residence.
The second offence is that on the same occasion he committed the offence of Theft.
Before I deal with the question of the elements, the prosecution in this case allege that either he personally committed the offences or he did so in company as part of a joint enterprise.
If two or more persons join together in a joint criminal enterprise, every act done and word spoken in furtherance of that enterprise by any one of them is, in law, done and spoken by them all. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime. The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons concerned. The concept of a joint criminal enterprise implies that the persons concerned are, as it were, acting as a team to achieve a mutually agreed result.
Aggravated Serious Criminal Trespass in a Place of Residence
The first ingredient is that the accused entered or remained in a place of residence.
The second ingredient is that the accused did so intentionally as a trespasser. In other words, he entered or remained in a place of residence without the consent of the occupier, he knew he did not have the consent of the occupier, and he entered or remained notwithstanding. This ingredient will also be satisfied by a person who is recklessly indifferent as to whether he was a trespasser.
The third ingredient is that, at the time of his trespass, the accused intended to commit an offence, namely theft.
The fourth ingredient supplies the ingredient of aggravation. Namely, that another person was lawfully present in the place of residence and the accused knew of that person’s presence or was reckless about whether anyone was in the place.
Theft
For the purpose of this case the elements of theft are:
1.The accused dealt with property by taking the purse;
2.The accused did so dishonestly;
What is dishonest is a question of fact for the finder of the facts, using my own knowledge and experience, to determine in accordance with the standards of ordinary people. Further, the prosecution must prove that the accused must have known that his dealing was dishonest in terms of those standards.
3.The accused dealt with the property without the owner’s consent; and
4.At the time he dealt with it, he intended to deprive the owner permanently of the property.
Prosecution evidence
Sean Nicholas Loader
Mr Loader gave evidence from Alice Springs via an audio visual link.
Mr Loader stated that he was on holidays in January 2013 in Ceduna with his wife and their three children. The family was staying in the house at 68 O’Loughlin Terrace that was owned by the Bennett family. While it was a rental property, they were not paying rent as they were family friends. A booklet of photographs was tendered including photographs of the house.[2]
[2] Exhibit P1.
The family went to bed ‘no later than 10pm’.[3] Mr Loader was able, by using the photographs, to identify the bedrooms the family used. He said that when they went to bed he secured the house and left a light on in the kitchen or dining room area. He was not sure whether it was the kitchen light or the dining room light (or both) that was left on.[4] The light was left on in case the children needed to go to the toilet. His car had been left parked in the backyard in front of the sheds. The doors were locked when they went to bed.[5]
[3]    T 30.
[4]    T 31.
[5]    T 34.
Mr Loader said that his wife, when they had gone to bed, left her purse on the table shown in photograph 44.
Mr Loader said that during the night he awoke after hearing a loud banging noise. He got up immediately and went down towards the back of the house. He saw the ‘wooden panels sitting on the dining room floor’.[6] The back door appeared to have been kicked in and part of the door was on the floor. The purse was missing. He thought the purse contained money, credit cards and a Medicare card.
[6] T 33.
A later search of the shed also revealed that two bikes had been stolen. They had been kept in the shed which was not locked.[7] Both were eventually recovered.[8]
[7] T 37.
[8] T 35.
Mr and Mrs Bennett, parents of the owner of the house, came over and helped them check out the property.
Mr Loader confirmed that the offending occurred only a couple of days into the holidays. It was a very tidy and clean house when they arrived.[9] He said there was nothing out of place and it had ‘obviously been cared for’.[10]
[9] T 36.
[10] T 36
Mr Loader’s evidence was not seriously challenged.
Statement of Senior Constable Mansi Price
This statement was tendered by consent.[11] Constable Price as at 4 January 2013 was Senior Constable of Police attached to the Port Lincoln Crime Scene Investigation Unit. She attended the address at 68 O’Loughlin Terrace, Ceduna at about 3.10pm on 5 January 2013.
[11] Exhibit P4.
Her evidence was not in dispute. On the rear external glass window adjacent to the left-hand side of the rear door she located what appeared to be five areas of fingerprints. They were identified by her using a barcode label (numbered 1-5). Also she located what appeared to be a fingerprint on the side of the aluminium flyscreen that had been removed from the kitchen window. This was labelled and marked P6.
These prints were made available to the Fingerprints Section.
Of relevance to the defence case were her observations relating to some window areas.
Adjacent to the front door was a window with no flyscreen. She observed the window to be dirty and dusty (photographs 6 and 7). On the southern side was a window where the screen had been removed. The window and windowsill area was ‘very dirty and dusty’ (photographs 10-14).
Further, on the southern side, was a small aluminium sliding window that she described as ‘very dirty’ (photographs 15-17).
Roberta Bennett
Mrs Bennett gave evidence via an audio visual link.
She lives in Ceduna and lives next door to the house owned by her son which is 68 O’Loughlin Terrace, Ceduna. Her son’s house is used as holiday rental accommodation. It is used quite often for that purpose and it is cleaned regularly.[12] Mrs Bennett said that she and her husband clean the house. The house had been cleaned the day before the Loader family had arrived.
[12] T 40.
Although Mrs Bennett could not be precise as to when the windows had been cleaned, she said they cleaned them every ‘two to four weeks’. Prior to the Loader family arriving she had cleaned the property and all the flyscreens were intact.[13] When cleaning she had removed flyscreens to clean the windows.[14]
[13] T 41.
[14] T 42.
Parts of Senior Constable Price’s statement were put to her for comment. When cross-examined about there being dust on a window near the front door, Mrs Bennett said that they could become dirty reasonably quickly.[15] She added that the front windows facing the beach get dirty quicker than the back windows.
[15] T 43.
Mrs Bennett was definite in her view that the windows would have been cleaned no longer than four weeks before the offending.
Mrs Bennett said that when cleaning the windows they always did the outside but not necessarily the inside.[16] Mrs Bennett was shown a photograph of the accused. She said she did not recognise him.[17]
[16] T 42.
[17] T 43.
I generally accept the evidence of Mrs Bennett. She was a good witness. I accept that she cleaned the front and back windows as regularly as she said.
Constable Jeremy Bretag
Constable Bretag was on mobile patrol on 4 January 2013. He was tasked to attend the address at 68 O’Loughlin Terrace, Ceduna. He arrived there at about 2.40am with Community Constable Laughton. He left and went alone to look for suspects. There were three males nearby at a service station about a kilometre away from the house.[18] He took down their details and then returned to the house.[19]
[18] T 57.
[19] T 47.
He took a number of photographs and they were tendered.[20] These photographs, as opposed to those contained in Exhibit P1, show the damage done to the back door. They also show the location of some flyscreens before they were moved.
[20] Exhibit P6, T 48.
Constable Bretag had moved the flyscreen seen in photograph 2 of Exhibit P6 to where it can be seen in photograph 42 of Exhibit P1. He thought there were no other windows on that side of the house that matched the flyscreen which is why he shifted it there later.
When he inspected the house that night he found numerous flyscreens had been removed from the windows of the house. He took photographs and they form part of Exhibit P6.
He saw some marks on a window that he believed may have been fingerprints. He took a photograph – photograph 14 of Exhibit P6. He advised the Crime Scene Unit in Port Lincoln to attend which they did the next day.
He made a general search of the area and its surrounds but found nothing. He did not locate any bikes.[21]
[21] T 59.
Brevet Sergeant John Edward Lewis
Mr Lewis is currently a Brevet Sergeant of Police. He commenced his training with the police academy in 1974. He is currently stationed with the Finger Print Bureau. He has been attached to the Finger Print Bureau since January of 1993.
His daily duties include the classification, examination, identification and filing of fingerprints received at the bureau. He also attends scenes to make an examination for fingerprints.
His work is constantly monitored and assessed and he holds a Certificate of Expertise issued by the New South Wales Fingerprint Bureau. He holds a Certificate of Expertise from the Australian Forensic Field Sciences Accreditation Board.
In his time as an examiner of fingerprints he has never heard of, or known of, two fingerprints being identical unless they were left by the same finger of the one person. This is a fact that is recognised in literature worldwide.
Brevet Sergeant Lewis stated that fingerprint identification as a method of identification is used worldwide.
Brevet Sergeant Lewis stated that when a finger or palm of a person comes into contact with a surface there is always a transfer from one surface to the other. In the case of fingerprints, the friction ridge skin has pores on the raised surface in which natural secretions form over the surface, and when this friction ridge skin is touched, a residue is transferred onto the surface being touched. Some surfaces are clearly more susceptible to having fingerprints left on them than others. Glass is a good example of a surface that retains fingerprints well. He conceded that the fingerprints cannot be aged.
Brevet Sergeant Lewis said that prior to January 1998, South Australia had what was called the ’12-point rule’ which meant that there had to be a minimum of 12 characteristics. Since that time they have converted to the national standard which is the unknown pre-determined number of the characteristics.
By reference to his file he stated that he received six impressions provided to him via police officer Price. They had been placed on the register and he accessed the register and examined the images in Adelaide. He was also provided with the reference fingerprints bearing the name of Jerome Coleman having been taken at Port Augusta on 8 July 2013.
Photograph 42 shows the window from which fingerprint impressions were taken, as do photographs 45 and 46. Photographs 47 and 48 are close-up photos of the impressions. The barcodes mentioned by Brevet Sergeant Lewis can be seen in photographs 47 and 48.
The first impression that was taken with and shown next to barcode 901010762 was examined and he formed the opinion that the impression was identical to a portion of the left palm on the fingerprint card bearing the name Jerome Coleman.
He formed the same opinion in relation to barcode 901010771.
Again in relation to barcode 901010780 he formed the same view, namely that it was identical with a portion of the left palm on the fingerprint card bearing the name Jerome Coleman.
In relation to barcode 901010794 and the fingerprint impression appearing alongside, he formed the view that it was identical with the left index finger appearing on the fingerprint card bearing the name Jerome Coleman.
In relation to the print adjacent to barcode 901010800, again he formed the opinion that this impression was identical with a portion of the left palm on the fingerprint card bearing the name Jerome Coleman.
The last impression adjacent to barcode 901010811, upon examination, he found, was not suitable for any identification.
Brevet Sergeant Lewis was cross-examined about other marks on the window but he was of the view that there was nothing that would be ‘suitable for identification’.[22]
[22] T 25.

Brevet Sergeant Lewis confirmed that he was one of four people that checked these fingerprints. He did his examination for the purpose of giving evidence.[23]
[23] T 26.
He agreed that fingerprints can remain on a surface such as glass for quite some considerable period of time. This would be particularly so where it is a protected surface away from wind, rain, sun and bacteria.[24] He agreed that having observed the photographs of this particular window that a fingerprint could last for a considerable period of time if the surface was protected. Having been shown the photographs of the back area he said if the windows had not been cleaned the print could last up to 12 months.[25]
[24] T 27.
[25] T 27.
Brevet Sergeant Lewis said that the direction of the fingerprints, as seen on photograph 48, appear to be going in ‘an upward diagonal to the right’.[26]
[26] T 20.
Record of Interview
Mr Coleman was interviewed by police on 8 July 2013 by Detective Everlyn.
He denied ever having been at the premises of 68 O’Loughlin Terrace, Ceduna. He was shown a photograph of the premises and he was asked if he had ever been there.
He replied: ‘Nup, never been there in my life’.
He was unable to give any explanation for his fingerprints being found at the scene other than the fact that they ‘must be transportable’.
Agreed facts
The agreed facts were:[27]
At about 11.15am on Monday 8 July 2013 Constable Michael Oakes obtained fingerprints from the accused using the LIVESCAN fingerprint machine at the Port Augusta cells.
On 19 November 2012 the accused was bailed to 14 Tonkin Street, Ceduna.
On 8 July 2013 Detective Everlyn conducted a record of interview with the accused. A portion of this interview is attached.
[27] Exhibit P5.
Circumstantial evidence
When the case against an accused person rests substantially upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[28] To enable me 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 me to draw’.[29]
[28] Peacock v The King (1911) 13 CLR 619, 634.
[29] Plomp v The Queen (1963) 110 CLR 234, 252.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[30]
[30] Martin v Osborne (1936) 55 CLR 367, 375.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[31]
[31] Knight v The Queen (1992) 175 CLR 495, 502.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[32] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence. [33]
[32] Peacock v The King (1911) 13 CLR 619, 662.
[33] R v Micallef [2002] NSW CCA 480 [41]-[42].
It is of critical importance to remember that 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.[34]
[34] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[35]
[35] R v Hillier (2007) 228 CLR 618 [48].
As was said in Chamberlain v R (No 2):[36]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence: cf Weeder v The Queen.
[36] (1984) 153 CLR 521, 535.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp v R:[37]
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[37] (1963) 110 CLR 234, 242.
Findings on the evidence
The accused did not dispute much of the prosecution case. However, it was submitted that I should not accept Mrs Bennett’s evidence in relation to the time of the window cleaning.
Mrs Bennett was an impressive witness and I generally accept her evidence. I have no doubt that generally she did clean the windows around the back and the front at least about every two to four weeks. Given the state of the evidence I could not be satisfied that she necessarily cleaned the southern side windows as regularly. She may have but I could not be satisfied of that. Those windows only opened up to the side garden and that area was very narrow. One of those windows would have been difficult to reach.
However, I find beyond a reasonable doubt that she regularly cleaned the front and back windows. A person renting the house would look through those windows the most. It would be important to keep them clean.
It was accepted that the accused must have lied in his record of interview. It was conceded that his fingerprint and palm print were found on the window so he must have been there at some stage. Ms Burgess submitted that I should not draw any inference that involved ‘consciousness of guilt’ reasoning. It was not put to me by the prosecution that I should do so.
I accept her submission about that. I find that he did lie when he said he had never been there. I will simply reject his denial of the offending.
Defence and submissions
Ms Burgess conceded that the accused’s finger and palm print were located on the kitchen window as alleged by the prosecution. She submitted, however, that no ‘age’ could be put on when the accused may have touched the window. Ms Burgess submitted that I should not accept Mrs Bennett’s evidence that she cleaned the windows. I have already discussed that issue earlier in these reasons. I accept that she cleaned the window where the prints were located within about four weeks.
Ms Burgess pointed to the evidence that suggested that three men were at a nearby service station as suggestive of the fact that they may have been the offenders. Constable Bretag spoke to the men and as he put it checked them for ‘bona fides’. He did not pursue that matter further. He was not cross-examined in any detail about why he was satisfied of their bona fides. I dismiss this suggestion as being simply too speculative.
Further, Ms Burgess submitted that it was possible that her client was not there that night but had been there on some other occasion and touched the window. She conceded that there was no evidence of that but it was a circumstance that could not be ruled out. I note the address to which he was bailed is some distance from O’Loughlin Terrace.
In my view that submission is simply speculative and I reject it.
Ms Burgess also pointed to the fact that it was likely that more than one person was involved in the offending that night and that I could not be satisfied beyond reasonable doubt that Mr Coleman was part of any joint enterprise. For reasons discussed later, if there was more than one offender there is clear evidence of a joint enterprise.
I reject all of Ms Burgess’s submissions in this regard. The suggestion that the accused may have attended the premises at some other time is quite simply speculative and I reject it.
Discussion
Being a circumstantial case the prosecution relied on a number of facts from the combination of which I could draw the inference of guilt of the accused beyond a reasonable doubt.
They are as follows:
1.   That someone tried to and did break into the house in the early hours of the morning of 4 January 2013. The back door was damaged indicating the method of entry into the house.
2.   As at 19 November 2012 Mr Coleman was bailed to the address of 14 Tonkin Street, Ceduna.
3.   Many of the flyscreens for the windows had been removed that night including the window area where the fingerprints were found.
4.   Senior Constable Bretag was able to observe the marks consistent with fingerprints when he looked that night.
5.   The fingerprint evidence of Brevet Sergeant Lewis established that the accused’s palm and fingerprints were found on the ‘kitchen window’.
6.   Mrs Bennett cleaned the windows out the back of the house (as I have found) at least every four weeks.
7.   The house, before the Loader family took possession, was clean and tidy.
8.   The accused denied ever being near the premises. I simply reject his denials about that (as discussed).
9.   The car of Mr Loader was parked around the back of the house near the shed where the bikes were taken from.
10. There was a light on in the back area of the house.
11. The purse of Mrs Loader was taken from the table.
There is no doubt in this case that the house was a place of residence. The real issue in the case is whether the accused participated in the events on that night and, if he did so, to what extent.
I have carefully considered each defence submission individually, and also collectively.
I reject the defence submissions. That does not absolve me from considering the prosecution’s case to decide whether I can be satisfied beyond reasonable doubt that the accused committed the offences.
The strength of the prosecution case lies in the combination of the factors mentioned above. It is not appropriate for me to attempt to assign a ‘weighting’ to the various factors mentioned. The finding of a fingerprint, without more, can still lead to a conviction. However, in this case there are other factors which, when taken together, make the prosecution case simply overwhelming.
The window on which the accused’s prints were found had been cleaned within the last four weeks. When the Loaders took possession of the house it was generally clean and tidy. The accused lived in the Ceduna area generally.
I am satisfied beyond a reasonable doubt that the accused was present at the house that night and committed the offences or as an alternative, he was part of a joint enterprise to commit the offences. Joint enterprise is proved on the basis that two bikes were stolen in conjunction with the number of flyscreens removed. The accused’s role is determined by the fact that his prints were found on the window which clearly indicates an attempt by him to gain entry into the house. If he did not actually enter the house, that someone would, was clearly the plan. Theft was undoubtedly the reason for an attempt to enter the residence.
That a person, and likely more than one, was involved in breaking into the house is not seriously in dispute. The removal of the flyscreens demonstrates that attempts were made to find an ‘easy’ entry into the house via a ‘hopefully’ open window. I note that the flyscreen from the window area (generally) where the accused prints were located was removed. The ‘direction’ of the prints is suggestive of the accused trying to open the window. The significant damage to the back door and amount of force required to damage it, suggests that whoever entered the house did so by that method, as an ‘easy’ entry by way of an already open window was not available. The fact that the purse could be seen on the table due to the light being left on was simply too much of a temptation.
There can be no doubt in my view that the house is a place of residence, that whoever entered did so as a trespasser, that the intention was to steal the purse and finally that it must have been obvious that someone was home from the presence of the motor vehicle and the fact of the light having been left on. The rapidity of the entry and departure is very suggestive of the fact that the person was well aware someone else was in the house or at the very least was reckless as to that fact.
I find beyond reasonable doubt that someone took the purse that night. It was either the accused or someone acting as part of a joint enterprise with him. The circumstances of the theft establish beyond reasonable doubt that the person did so dishonestly and he/she knew as much. The person took the purse and intended to deprive the owner of it.
The breaking of the back door and stealing of the purse clearly shows the intent of the person(s) was theft and indeed it was achieved.
I am satisfied that not only is it a rational inference that the accused was involved in the offending on that night but that it is the only inference available on the evidence.
I find the accused guilty of Count 1 and Count 2 on the information.