R v Daniel Lewis Buda-Kaa
[2011] ACTSC 115
R v DANIEL LEWIS BUDA-KAA [2011] ACTSC 115 (13 July 2011)
EVIDENCE LAW – burglary and theft charges – no case submission – no evidence of accused’s entry into building – no evidence linking accused with disappearance of television – absence of provision permitting findings of guilt on basis of joint commission of offence – evidence at its highest could not establish burglary or theft by accused – jury discharged – verdicts of acquittal entered.
Crimes Act 1900
(ACT), s 287(1)(a),(b)
(ACT), ss 45, 45A, 308, 312
Criminal Code 2002
Doney v The Queen (1990) 171 CLR 207
EX TEMPORE JUDGMENT
No. SCC 109 of 2010
Judge: Penfold J
Supreme Court of the ACT
Date: 13 July 2011
IN THE SUPREME COURT OF THE )
) No. SCC 109 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
DANIEL LEWIS BUDA-KAA
ORDER
Judge: Penfold J
Date: 13 July 2011
Place: Canberra
THE COURT ORDERS THAT:
(a)Pursuant to s 287(1)(a) of the Crimes Act 1900 (ACT), the jury be discharged from returning a verdict in respect of the burglary and theft charges on the indictment dated 20 April 2010.
(b)Pursuant to s 287(1)(b) of the Crimes Act 1900, a verdict of acquittal be recorded in respect of the burglary and theft charges on the indictment dated 20 April 2010.
Introduction
[Daniel Buda-Kaa was charged with aggravated burglary and theft respectively under ss 312 and 308 of the Criminal Code 2002 (ACT). The Crown case was that Mr Buda-Kaa was one of three men who had, in December 2009, entered a house occupied by Mrs Gene Moore and removed her television set. The other two men had not been identified. At the close of the prosecution case counsel for Mr Buda-Kaa made a no-case submission. ]
The law
Doney v The Queen (1990) 171 CLR 207 is the leading High Court case about no case submissions. In that case the High Court said (at 214-215):
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
Burglary charge
In this case I am not satisfied that Mrs Moore’s evidence about whether the third man actually entered her house is “capable of supporting a verdict of guilty” on the charge of burglary.
Ms Jowitt concedes that to commit a burglary it is necessary to cross the threshold – that is, the accused must have put at least part of his body inside the building. She also concedes that the evidence that the accused was one of the three men does nothing to establish which of the three men he was.
Mrs Moore’s first statement was that “there was a third man coming in the back door, and I hadn’t seen him before.” This statement is at best ambiguous – it could mean that the man had crossed the threshold when she saw him, or it could mean that he was approaching the door with an assumed intention of coming through it. The ambiguity was not resolved by further questioning of Mrs Moore, so it can only be resolved by reference to other evidence, and the other evidence does not enable it to be resolved in favour of the meaning that the man had crossed the threshold. Mrs Moore’s other evidence about the third man was first, that “he had been outside”, “up on the lawn”, and was coming down towards the other two men as they left the house, and secondly, when asked about “the three males that you saw in your laundry”, she was very clear that “the third male was not in my laundry ... He was still outside, two of them were in the laundry and the other man was outside”.
Mrs Moore’s evidence about whether the third man ever entered her house is not vague or tenuous; she has said clearly, several times, that the third man was not in her house. Rather, taken as a whole there is a defect in the evidence such that at its highest it could not establish the third man’s entry into the house and therefore could not sustain a verdict of guilty on the burglary charge in relation to the third man, and there is a complete absence of evidence that the accused was one of the two men who did enter the house.
Theft charge
There is then the question of the theft charge. The evidence that the television set disappeared during the burglary of Mrs Moore’s house is vague, but not so vague that it could found a no case-submission. The fingerprint evidence is evidence of the accused’s presence at the back door of Mrs Moore’s house at some time before police came to the house, but goes no further than that. The fingerprint on the television remote found outside the house was not the accused’s, and there is no other evidence linking the accused specifically with the disappearance of the television set.
Joint commission of offences
Where an offence appears to have been committed by two or more persons acting together, s 45A of the Criminal Code as now in force would permit one of those persons to be found guilty of the offence in certain circumstances, even if not all the elements of the offence can be proved against the particular person. However, that section of the Criminal Code was not in force in December 2009, so no reliance can be placed on it in this trial. There may be other offences that could have been charged, such as aiding and abetting under s 45 of the Criminal Code, but they have not been charged in this trial.
Alternative charges
Finally, I note that there are no alternative charges available to the charges laid against the accused.
Conclusions and verdicts
That seems to mean that the case needs to be taken away from the jury, and my understanding of the position then is that, rather than directing the jury to enter verdicts of acquittal, I can record them myself under s 287 of the Crimes Act1900 (ACT). I now record verdicts of acquittal on the charges of aggravated burglary and theft brought against Mr Buda-Kaa.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 22 July 2011
Counsel for the crown: Ms S Jowitt
Solicitor for the crown: ACT Director of Public Prosecutions
Counsel for defence: Mr R Livingston
Solicitor for defence: Bevan Snell Lawyers
Date of hearing: 12 and 13 July 2011
Date of judgment: 13 July 2011
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