R v Colvin - [2021] NSWDC 390

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Colvin [2021] NSWDC 390
Hearing dates: 10 August 2021, 11 August 2021
Date of orders: 11 August 2021
Decision date: 11 August 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Verdict of guilty

Catchwords:
CRIME - Break and Enter and commit serious indictable offence
CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - onus of proof - uncalled witnesses - conflict of evidence – key issue was there a breaking? - reasons for accepting complainant - reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt

Legislation Cited:
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:
De Silva v The Queen [2019] HCA 48
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
R v Mifsud (2009) NSWCCA 313

Category: Principal judgment
Parties: Jason Keith Colvin (the accused)
Director of Public Prosecutions
Representation: Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the accused)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s): 2020/00229157

JUDGMENT

Introduction

On 10 August 2021 Jason Keith Colvin, the accused, was indicted and said he was not guilty of breaking and entering the home of his sister and committing the serious offence of intimidation in the circumstance of aggravation that he knew others to be there: 112(2) Crimes Act 1900. An earlier Indictment used the name Lilburn but I am told and accept that Mr Colvin does not use that name.
It is accepted that should I have a doubt about the element of “breaking” I could return an alternative verdict of guilty of the offence of intimidation: s 13 Crimes (Domestic and Personal Violence) Act 2007; R v Mifsud (2009) NSWCCA 313
Mr Colvin has elected for trial by judge alone. That application was not opposed by the Director of Public Prosecutions (DPP). 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 verdicts reached.

Directions

Onus

The prosecution must prove each element of the offence beyond reasonable doubt. 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 beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Colvin

Details

AGLC: R v Colvin [2021] NSWDC 390
Case: [2021] NSWDC 390
Decision Date: 11 August 2021

CaseChat Overview and Summary

In the case of R v Colvin, the defendant was charged with breaking and entering and committing a serious indictable offence. The matter was heard by the County Court of Victoria. The defendant was alleged to have unlawfully entered a residence and committed an act of violence against the occupants. The case hinged on the defendant's presence at the scene and whether there was a breaking and entering.

The legal issues that the court had to determine included the admissibility of the complainant's evidence and the defendant's evidence, the weight to be given to each, and whether the prosecution had proven the elements of the offence beyond reasonable doubt. The court had to decide whether the prosecution had established that the defendant had broken and entered the premises and committed an indictable offence.

The court examined the evidence presented and considered the complainant's testimony and the defendant's evidence. The court found that the complainant's evidence was credible and consistent, and the defendant's evidence was contradictory and lacked credibility. The court held that the prosecution had proved each element of the offence beyond reasonable doubt, including that there was a breaking and entering. The court found the defendant guilty of the charges.

The court ordered that the defendant be sentenced on a future date. The court noted that the defendant had a previous criminal history and that the offence was of a serious nature. The court held that the defendant's conduct warranted a significant penalty.

Orders

Orders of the court

Verdict of guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Colvin [2021] NSWDC 390
Hearing dates:	10 August 2021, 11 August 2021
Date of orders:	11 August 2021
Decision date:	11 August 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Verdict of guilty
Catchwords:	CRIME - Break and Enter and commit serious indictable offence CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - onus of proof - uncalled witnesses - conflict of evidence – key issue was there a breaking? - reasons for accepting complainant - reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	De Silva v The Queen [2019] HCA 48 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 R v Mifsud (2009) NSWCCA 313
Category:	Principal judgment
Parties:	Jason Keith Colvin (the accused) Director of Public Prosecutions
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the accused) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2020/00229157