R v Edwards

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Edwards
Citation:	[2020] ACTSC 243
Hearing Dates:	7 – 9 September 2020
DecisionDate:	11 September 2020
Before:	Mossop J
Decision:	See [138]
Catchwords: .	CRIMINAL LAW – TRIAL BY JUDGE ALONE – Particular offences – aggravated burglary – joint commission – whether a reasonable doubt exists as to the existence of an agreement between the two co-accused – it does – not guilty on both counts CRIMINAL LAW – EVIDENCE – Admissibility of co-accused’s statement of facts – hearsay – where co-accused denied any recollection of events in the statement – statement could substantially affect witness’s credibility – therefore admissible under s 60 of the Evidence Act 2011 (ACT) – no requirement for a limiting order CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – application to amend the indictment after the close of the defence case – unfairness to the accused – amendment would not affect finding of guilt – application refused
Legislation Cited:	Criminal Code 2002 (ACT), ss 45A, 308, 311, 312, 321 Evidence Act 2011 (ACT), ss 60, 103, 136 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 57, 72 Supreme Court Act 1933 (ACT), s 68C
Cases Cited:	Power v The Queen [2014] VSCA 146; 43 VR 261
Parties:	The Queen (Crown) Kerrod Edwards (Accused)
Representation:	Counsel S McFarland (Crown) S McLaughlin (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 275 of 2019

MOSSOP J:

Introduction

The accused is charged with two counts of aggravated burglary under s 312 of the Criminal Code 2002 (ACT). Both relate to an address in [redacted] in Kambah. Both allege that the offence was committed in company with Melissa Kate Baker. Both are alleged to be offences of joint commission under s 45A of the Criminal Code.

Count 1 alleges that the accused entered or remained in a building with intent to commit theft, reflecting the terms of s 311(1)(a) of the Criminal Code. Count 2 alleges that he entered or remained in a building “with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building”, reflecting the terms of s 311(1)(b).

The Crown case was made more difficult by the fact that two important witnesses who would be expected to be able to recall the events in question, and who were called to give evidence by the Crown, alleged that they had little or no recollection of what occurred.

Directions

Under s 68C(2) of the Supreme Court Act 1933 (ACT) I am obliged to set out:

(a)the principles of law applied; and
(b)the findings of fact which I make.

I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).

In this part of my reasons I set out the general directions and warnings that I would have given to a jury. My findings of fact and a discussion of the elements of the offence occur later in these reasons.

The Crown bears the onus or burden of proving the guilt of the accused. The Crown has asserted that the accused has committed criminal offences, therefore the Crown must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.

The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.

The accused is presumed by law to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.

As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.

I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.

I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.

I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.

In this case the accused gave evidence on oath. He was not obliged to do so. I must assess his evidence in the same way that I would assess the evidence of any other witness. Even if I do not accept his evidence, the onus at all times lies upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.

In this trial evidence was given by pre-recorded evidence-in-chief interviews and by audiovisual link. That is a usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given any greater or lesser weight because the evidence was given in that way: Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 57(2), 72(2).

The indictment

The two counts on the indictment were as follows:

The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on 12 August 2019 at Canberra in the Australian Capital Territory KERROD MATTHEW JAMES EDWARDS entered or remained in a building, namely [address], as a trespasser with intent to commit theft of any property in the building, in company with Melissa Kate Baker and at the time had an offensive weapon with them.
AND FURTHER THAT AND IN THE ALTERNATIVE, THAT on 12 August 2019 at Canberra in the Australian Capital Territory KERROD MATTHEW JAMES EDWARDS entered or remained in a building, namely [address], as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building, in company with Melissa Kate Baker and at the time had an offensive weapon with them.

It should be noted that the point of count 1 is that there was an agreement to commit theft of any property and that the point of count 2 is that there was an agreement to commit an offence that involved causing harm or threatening to cause harm to someone in the building.

It should also be noted that both counts include both circumstances of aggravation identified in s 312 of the Criminal Code (namely, being in company and having an offensive weapon). At the conclusion of the evidence I enquired of counsel for the Crown as to whether or not charges in these terms could be made out if one, but not both, of the circumstances of aggravation were established. Counsel submitted that if either one of the circumstances of aggravation identified in the charge on the indictment was made out then that was sufficient to establish the charge, even if the other was not. If, contrary to that submission, the court held that, because of the terms of the indictment, both of the identified circumstances of aggravation were required to be proven then counsel for the Crown sought to amend the charges on the indictment by inserting the word “or” in substitution for the word “and”. This amendment was opposed by counsel for the accused, on the basis that it was made too late in the trial and that a different approach may have been taken to the evidence if the charges had been amended earlier. I will return to this issue later in these reasons.

Elements of the offences

In order to establish an offence by joint commission under s 45A it is necessary to establish:

(a)The accused entered into an agreement with at least one other person to commit an offence: s 45A(1)(a).
(b)The accused and at least one other person to the agreement intended that an offence would be committed under the agreement: s 45A(4).
(c)Either an offence is committed in accordance with the agreement or an offence is committed in the course of carrying out the agreement: s 45A(1)(b).
(d)An offence is committed “in accordance with an agreement” if (s 45A(2)):
(i)the conduct of one or more of the parties makes up the physical elements consisting of conduct of an offence of the same type as the offence agreed to;
(ii)to the extent that a physical element of the joint offence consists of a result of conduct, the result arises from the conduct engaged in; and
(iii)to the extent that the physical element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.

(e)An offence is committed “in the course of carrying out an agreement” if the accused is reckless about the commission of an offence that another person in fact commits in the course of carrying out the agreement: s 45A(3).

The elements of burglary under s 311 are:

(a)the accused entered or remained in a building;
(b)the accused intended to enter or remain in a building;
(c)the accused was a trespasser (that is, he had no permission to enter or remain in the building);
(d)the accused was reckless as to whether his entry into or remaining in the building was without permission; and
(e)at the time of entering or remaining in the building the accused intended, either:
(i)to commit theft of any property in the building; or
(ii)to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building.

In order for the burglary to be an aggravated burglary under s 312 (and subject to the issue about the drafting of the indictment outlined earlier) one of the following two circumstances of aggravation must apply:

(a)Either:
(i)the accused was in company at the time of committing the burglary; and
(ii)the accused was reckless as to the fact of being in company with one or more persons.

(b)Or:
(i)the accused had an offensive weapon with him at the time of committing the burglary; and
(ii)the accused intended to have an offensive weapon with him at the time of committing the burglary.

In light of the requirements of s 45A, and the elements of the offence of aggravated burglary, the Crown case is that:

(a)The accused entered into an agreement with Melissa Baker to commit an offence. That offence was either:
(i)the offence of aggravated burglary with the intention of committing theft of any property in the building (count 1); or
(ii)the offence of aggravated burglary with the intention of committing an offence involving causing harm or threatening to cause harm to anyone in the building (count 2).

(b)The accused and Ms Baker intended that an offence be committed under the agreement.
(c)The offence was committed in accordance with that agreement within the meaning of s 45A because the accused engaged in the physical elements of that offence and, where the physical element consisted of a circumstance, the conduct engaged in happened in that circumstance.

The Crown did not make any reference to the requirements of s 45A in opening. In closing submissions counsel for the Crown only put the case on the basis that the offences were committed “in accordance” with the agreement and did not put the case on the basis of s 45A(1)(b)(ii): an offence committed “in the course of carrying out the agreement”.

The effect of that is that the Crown needed to prove:

(a)that there was an agreement between the accused and Ms Baker to commit the offence alleged in count 1 or count 2;
(b)that the accused and Ms Baker intended that an offence would be committed under the agreement;
(c)that the accused entered or remained in a building;
(d)that the accused was a trespasser because he had no permission to enter or remain in the building; and
(e)subject to the issue about the terms of the indictment, one or both of the following:
(i)That the accused was in company at the time he entered or remained in the building as a trespasser.
(ii)That the accused had an offensive weapon with him.

Evidence of the witnesses

NN

NN is TD’s adult son. He gave evidence in which he purported to have only an extremely limited recollection of what had occurred in August 2019. He said that a lot had happened last year and that he was going through a lot of stuff. His denial of recollection was very unconvincing. He gave the strong impression that he was trying to avoid saying anything that would tend to incriminate the accused by feigning a lack of recollection of what had occurred.

He did say, however, that a red hatchback Mazda 3 had been lent to him. He said that he had borrowed it for a couple of days. He said that he had returned it to “John” who lived in Kambah, just around the corner. He said it was “legit” and had registration. He said that the tyre was flat and that he had let “John” know.

He agreed that he had been picked up by police on 18 June 2019 and charged with driving while disqualified. He said that the vehicle had a flat tyre and that he had left it somewhere in Kambah. He could not recall the street. He said he left the keys near the car and he had let the owner know where they were. He could not recall being in his mother’s house on 12 August 2019. He could not recall what happened. He could not recall anyone coming into the house. He could not recall his mother or his sister screaming. He said that there were a lot of arguments at the time. He could not recall people being in his bedroom and something happening. He could not say whether the person who entered his bedroom was the accused. He said that he did not know Ms Baker.

In cross‑examination he denied having a Holden Commodore. He said that he did have a black vehicle which he had bought for “a couple of grand” and left with “another bloke”. He could not recall borrowing a Holden Commodore and damaging it. He could not recall any agreement to give the red Mazda 3 to the accused. When it was suggested that he came to an agreement to give the accused the red Mazda 3 he said, “Yes, I don’t – I don’t know whether that’s happening because it wasn’t really my car to give at the time”. He denied that the red vehicle belonged to Trinity and Jordan Hagan and said that it belonged to “John”. He did not accept that he even knew the accused, saying: “I don’t know. Like, I’ve bumped into a lot of people over the … last year.” He could not recall the accused visiting his house on 12 August 2019. He said lots of people came around. He denied that the accused had entered the house without permission. He could not recall anybody knocking on the window. He could not recall letting the accused into the house through the laundry door. He could not recall there being a discussion with the accused about the keys to the Mazda. He could not recall there being any home invasion nor could he remember anyone stealing anything from his bedroom or threatening him with a machete. He could not recall anyone being in his bedroom without his permission. He said it was too far back to remember whether he had asked anyone to leave. He denied that anyone had stood over him while he lay on the bed and threatened him. He denied that either his mother or he owned a machete.

In re-examination he said he did not know whether his mother or his sister had a machete.

TD

TD is NN’s mother. She knew and recognised the accused because he would come around to find her former partner. She was aware that something was going on between the accused and her son to do with swapping cars. On the evening in question her two sons and her daughter were at home. Each was in their own room. Her evidence was that she had been woken by NN shouting “no, no”. There was dispute about whether or not she had also heard her son saying “get out”, but the ultimate effect of her evidence was that she could not remember this.

She saw a female in the doorway of her son’s room. She told her to get out of the house and was told “No. Fuck off”. She said that she looked into the bedroom and saw Kieran on top of her son, with a knife in his hand. (The accused often appears to have been referred to as “Kieran” even though his name is Kerrod.) She said she told both the accused and the woman to get out of her house. She said that Kieran kept talking to NN and that the woman was there guarding the door to the bedroom. When TD’s daughter appeared, her daughter told the woman to get out and the woman came towards them and she and her daughter backed up. She said that her daughter rang the police first and that they both spoke to police. The audio recording of the 000 call which was then played was consistent with TD having made the telephone call.

The audio recording records TD asking police to come quickly and records her shouting at the intruders to get them to leave. There are some snippets of other people talking.

On the audio TD is in a highly agitated state and she urges police on a number of occasions to hurry up. She can also be heard shouting at the intruders.

She says that two people have just come into the house. She describes them as “Kieran and Alyssa”. She says that she has asked them to leave and that “they’re just in there threatening him”. She is asked “Are there any weapons involved?” and she says “No, I don’t know. They’re in my son’s room and I’ve got another son in there.” She can be heard shouting at them to get out of her house. She is then in a discussion which appears as though it is directed to the accused as well as to police:

TD: You can keep it, Kieran. Hurry up.
POLICE EMERGENCY: The jobs on the system, we’re on our way.
TD: Hurry up.
POLICE EMERGENCY: What’s happening at the moment?
TD: Sorry, Kieran, um, fucking he should have gave it to you. I know this shit, but fuck. I know. I know, he’s a fuck head. He’s fucking … (Indistinct) Can you hurry up?
(MALE IN BACKGROUND: This is what they forced me to do because no one wouldn’t tell me … Indistinct …)
POLICE EMERGENCY: Who’s that in the background?
TD: Would you hurry up they going ape - they’ve got fucking knives and that shit.
POLICE EMERGENCY: Did you say there’s a knife?

TD can then be heard shouting at the intruders. It is apparent that at this point they were leaving the house.

There is then a second telephone call made by police to TD. She tells them that the intruders have run down the alleyway. She describes the intruders as “Kieran and this … white girl”. She says she thinks they came in through the laundry door and that “I’ve just woke up to hear. I heard screaming.” She is asked whether they had any weapons on them and she said “Yeah, he had a big knife on him … A big knife and a, um, yeah that was my bloody knife, um, a big, big knife and a, um, like a, um, of metal.” The conversation is discontinued after it is apparent that the police patrol has arrived.

Her evidence‑in‑chief then continued. She said that when she first walked past the bedroom she saw the accused with “a little knife” in his hand, and then when the accused left he grabbed another knife that NN had beside him. She thought the little knife had a blade of about 15cm. The big knife was in the accused’s hand when he was walking out. She could not hear her son saying anything. She thought that Kieran was mumbling to her son in the bedroom. Notwithstanding that she asked them to leave, they did not.

In cross‑examination the witness had difficulty confining herself to answering the question that was asked. She was very insistent that the two intruders were not entitled to come into her house in the middle of the night.

She said that she had previously seen the accused when he came looking for her partner. She was cross-examined about whether or not she initially heard her son saying “get out” and ultimately accepted that she did not hear him saying that. She insisted that she did see the accused holding a small knife before seeing the big knife, which was also referred to as a ‘machete’. She explained any difference between her evidence at trial and what she had told the police was on the basis that, at that stage, she was hysterical.

She said that she saw the accused with a knife when she first saw him in NN’s bedroom. She accepted that she did not go inside the bedroom. She said she was telling both the woman and the accused to leave. She agreed that she had made a statement to police shortly after the incident. She was cross-examined about some of the statements she made during that interview. She was taken to questions in which she had only made reference to a black-handled “machete” and had only spoken of one knife, not two.

She was taken to some text messages which she had exchanged with the accused on 11 August 2019:

4.14pm from TD to the accused: Kieran I’m sorry I don’t know what to say he’s not here he came back but car had flat tyre or something I don’t know but we getting on to him n telling him to call u can’t believe he doing this it’s wrong especially 4 cloe n babies it’s making me sick he is doing this shit honestly and I will have told dickhead he needs to do Wrightthis is bullshit I am at Granddaughter BIRTHDAY party Il txt u when get home
4:20pm from the accused to TD: yeah I know [TD] it’s wrong what he’s doing I’m about to loose my family over something stupid like this, I haven’t seen my kids faces for days

It was suggested to her that the accused had attended the premises that afternoon and had a conversation with her in the lounge about where the red Mazda 3 was and where NN was. TD said that she could not recall this.

TD was very insistent during the course of her evidence that she had told both of the intruders to leave and that there was no entitlement for them to be in her house.

She denied that the only knife she saw was the machete. She denied having made reference to the small knife because she had spoken to her daughter, TN, and TN had said something about seeing a knife.

She agreed that the machete was hers or NN’s.

She said that the woman and the accused entered the house through the laundry door. She agreed that there was no damage to the laundry door because it was unlocked.

In re-examination she was taken to questions in her interview with police which refer to her having told both intruders to leave. She was also asked again about what she heard initially and her evidence was consistent with not recalling NN saying “get out”.

Scott Vandervalk

Senior Constable Vandervalk attended to the reported break-in. He was searching the nearby area. He obtained a description that the offenders were a male and female and that the female was wearing a headband, white jumper and black leggings. At about 4:05am he was at the corner of two streets in Kambah with Senior Constable Polosak and Constable Moliati. As a vehicle approached he moved his car into the middle of the lanes and activated its emergency lights. The vehicle went around his vehicle. He gave chase and the vehicle pulled over. Police identified the driver as Ms Baker. The accused was in the passenger seat. Senior Constable Vandervalk informed the accused that he was under arrest. The vehicle was searched by other police officers who informed him that they had located within it a knife, a tyre iron and other items.

In cross‑examination he said that he then attended the premises and spoke to TD. He did not examine the laundry door.

Chrisanto Moliati

Constable Moliati was attached to Tuggeranong Police Station. He attended the premises following a radio message at about 3:45am that reported that there were two people in the premises with a knife. He attended with Senior Constable Polosak. He did not talk directly to TD. He walked around the house to check that no one else was present. He used his torch for this as the house was dimly lit. The description that was obtained of the offenders included that the man was about 180 cm tall and was of Indigenous descent and probably named Kieran. The female was of larger build, was blonde and had a bandanna. Subsequently, he was with other police when a white vehicle was waved down. Initially it slowed down but then it speeded up and drove around police. Senior Constable Vandervalk followed it in his vehicle and it pulled over. When the male passenger was searched he had two sets of car keys. They were subsequently seized. Constable Moliati took photographs of various items that were located in the vehicle and which were seized. He was aware that the accused had been offered an opportunity to participate in a recorded interview.

In cross‑examination he said that he could not recall making any observations of the laundry or any damage to the laundry door. He could not say where in the vehicle the hammer or knife shown in the photographs were found. He described the lighting in the house as being “soft light” and fairly dark in the corners. He did recall using his torch. He recalled searching a room close to the entry, the hall and a couple of other rooms. He said that Senior Constable Polosak was also searching. He said that the rooms that he went into were dimly lit.

Robert Polosak

Senior Constable Polosak gave evidence that he attended the premises with Constable Moliati. He found TD upset. He was told that the people had run from the house. He obtained from her descriptions of the offenders which included that the man’s name was Kieran. He and Constable Moliati then commenced patrolling. He described the incident where the white vehicle, in which the accused was travelling as a passenger, drove around police and was then stopped. He approached the passenger side of the vehicle and spoke to the accused. As the accused matched the description of the person who had been in the house and had a name that sounded like Kieran, he arrested him. He cautioned him. He obtained the car keys that were on the accused’s person. The officers then conducted a search of the vehicle. He took some photographs. He took the accused to the City Police Station where he was offered an interview with police. The accused made no comment. He took some photographs of the accused’s clothing. Seizure records identifying the items that were seized by police and where they were found were tendered through him and became Exhibit 7. He indicated that he did not make observations around the house at his initial attendance.

In cross‑examination he confirmed that TD had referred to “a big knife” and that there was no suggestion by her at the time of there being any more than one knife. He was asked about the lighting within the house. He said it was dark but it was 3:40am. That answer was not pursued any further. There was no re-examination.

TN

TN is the sister of NN and daughter of TD. TN had given evidence‑in‑chief at an evidence-in-chief interview conducted at her home. In that interview she said:

So I woke up in the middle of the night to my mum and that screaming and I ended up running down the hall to where my brother’s room was and I seen a girl, um, facing my mum, like, rowing with her and then I, like, looked into my brother’s room and he had a knife against him and he was laying down, and then I looked towards back to the other girl to try tell her to get out and she, like, just kept getting in my face and then she ended up going because Kieran told her to get out or something and then, yeah, they ended up leaving and that’s when youse rocked up.

She described her mum screaming “get out of my house” and “get away from my son too”. She said when she looked in the room, she saw her brother lying on the floor and Kieran was standing over him. She said she looked in for about two seconds and then she turned back around to the girl who was in her mum’s face. She had seen Kieran around four times previously. She was asked what she saw him holding and she said: “A machete. I’m pretty sure that it was the machete that was here”. She said it had gone after that night. She said that NN’s room has got no door on it. As to what words were exchanged between her mother and the girl, she said her mother was saying “get out of my house” and the girl was saying “no”.

In further examination‑in‑chief she said her mother told the accused and the co‑offender three or four times to get out. She said that she told them to get out as well. She said that as soon as they left, her mother called police.

In cross‑examination she said that when she woke up her mum was in the hall near the front door. She said that she (i.e. the witness) went further into the hallway to see into her brother’s bedroom. She said that from the position where her mother had been standing, her mother would not have been able to see into the bedroom but could have seen the accused when he left the room to leave the house.

She said that the bedroom had no lights on but there were no curtains on the window so there was some moonlight. She demonstrated that she saw the accused standing over NN with a machete, and that the accused held out the machete in front of him in a horizontal manner, above NN. She said the machete had been in NN’s room previously. She said that the accused was not facing the door but that she could see his face. She agreed that she only saw him briefly. She agreed that the female intruder was “in [her] mother’s face” and that it felt like she was going to hit her mother. She said that she told the accused a few times to leave but it was only when she brought up her little brother that the accused then went out of the room and left. She said the woman left when Kieran told her to leave.

She said that she was pretty sure that her mother did not see the machete. In a discussion after the incident she said that her mother had told her that she had seen the accused with “a little knife”. The witness had never seen that knife but she had seen the machete. She also told her mother that the accused “took our machete”.

She said that the police were only called after the incident had ended. She thought that she had called the police and then given the phone to her mother.

She said that she had only told the accused to leave once, although her mother had told them to leave multiple times. Soon after she told the accused to leave, both he and the woman left.

She was asked about whether or not the laundry door was kept locked. Her evidence was rather uncertain, suggesting that it might have been broken or that it might have been locked or might not have been locked.

In re-examination she said that in order for her mother to get from her mother’s bedroom to where she had seen her mother standing, it was necessary for her mother to walk past the entrance to NN’s room.

She also clarified her evidence about having asked the intruders to leave, saying that she asked them to leave three or four times but on the occasion when she asked the accused directly to leave, he left.

Melissa Baker

Ms Baker was the other intruder. She said in her evidence that she had no recollection of the event in question. She said that she was drug affected on the evening in question and at the time of giving evidence had only been sober for 57 days. She said that she pleaded guilty to the offence of aggravated burglary because she had been advised to by her lawyer. She said that she agreed to the content of a statement of facts and made amendments to that document on the basis of advice from her lawyer.

She said that she could not recall the meeting in February 2020 at which she spoke to an officer of ACT Corrective Services for the purposes of preparation of a pre-sentence report. She said that she could not recall having participated in a recorded interview with police on the evening of the incident.

It was suggested to her in cross‑examination by the Crown that it was inconceivable that she had pleaded guilty and agreed to those facts in circumstances where she had no recollection of the events in question and that she was feigning an absence of recollection in order to assist the accused. She did not agree with those propositions.

There was no cross‑examination of her by the accused.

By the conclusion of her evidence, I formed the view that Ms Baker was overstating a lack of recollection and doing so because of an unwillingness to assist the prosecution of the accused.

Angus Ferguson

Senior Constable Ferguson gave evidence that he and another officer arrived as the second or third car on the scene, after the accused’s vehicle had been stopped. He participated in the search of the vehicle. Among the items found were a black machete, a baseball bat, a wallet, a hammer and a black-handled knife in a black sheath. The black-handled knife was found in the passenger side door.

Kerrod Edwards

The accused gave evidence that he had known NN for greater than 12 months prior to the date of the incident. He knew him through his uncle, OC, who was TD’s partner. He had been to NN’s house on a number of occasions with OC and with NN. He said he had slept on the couch and that it felt like family. He said he knew the children.

He explained the arrangement between him and NN in relation to the red Mazda 3 as follows. He said that his partner owned a VY Commodore. He drove the car. There was an occasion when NN came over and asked to borrow the Commodore. NN left his red Mazda 3 with the accused. Subsequently, NN told the accused that the Commodore had been smashed but that he would fix it and bring it back. However, NN then had another accident in the Commodore. NN agreed to swap his Mazda 3 with the accused for the damaged Commodore.

The accused said that he had the red Mazda for about a month prior to 12 August 2019. On August 9 he had driven with NN to court. The accused attended court but when he returned NN and the red Mazda were gone. He tried to ring NN and his partner. He sent text messages which were not answered. He spoke to TD. He said that he walked through the city and went to NN’s father’s house. He said that all he wanted was his stuff out of the car because he had two children under two and his partner was pregnant. He said that as a result of not having the car, his partner would not have him back home.

He exchanged text messages with TD on 11 August. He said that at about 6pm on 11 August he went and met with TD at her house. She said that NN was coming and going from the house and had not been himself. He said that he just wanted the baby stuff back and did not care about the car.

He said that he attended the house between 3:30am and 4am because he knew that NN may be around then. He got a lift with Ms Baker because he had no car.

He said he went to the front door and knocked but there was no response. They then went through the side gate on the right-hand side of the house and around to NN’s window. He knocked on the window and woke him up. NN then let them in through the back door and into the laundry. He then went to NN’s room. NN apologised to him. The accused denied that he had any weapons with him when he entered the premises. He said that NN gave him two sets of car keys, one for the VY Commodore and one for the red Mazda.

He agreed that there was a point where NN was yelling and the accused’s evidence was that NN must have thought he was going to be hit. The accused said that NN was “strung out” from days of drugs and alcohol. He denied saying or doing anything to give NN the impression that he was going to be assaulted. He said that he did not threaten NN while he was at the house. He did agree that he may have threatened NN in text messages when the vehicle first went missing.

He said that Ms Baker was outside the room. He could hear screaming and shouting but he denied hearing what TD was saying. He said that he was having a conversation with NN. He said that at no point did NN ask him to leave. He said that he left when TN came to the door and asked him to leave. He grabbed the machete on the way out because he did not trust NN and he feared for his safety. He said that as he was leaving, he was called back by NN who said he was sorry and shook his hand and then the accused left the house. Ms Baker was already outside. She had left when he had told her to. He said the closest the machete came to NN was a distance of about 1 m or 1.5 m. He denied raising it up or threatening NN with it. He denied that anyone else apart from TN had told him to leave.

After they left, he said they drove around Kambah looking for the car as they had only got a poor description from NN about where it was located.

In relation to the events in the bedroom, he said he picked up the machete because he thought he would be stabbed by NN. He said that, aside from the machete, neither he nor Ms Baker had a weapon at any time. He denied standing over NN while NN was seated or lying. He said he had been at the premises for about five minutes before NN called out.

In cross‑examination counsel for the Crown asked the accused why, if there was a pleasant conversation for about five minutes, NN would then call out in a manner so as to wake up the rest of the household. The accused repeated that it was because NN thought the accused was going to hit him.

He was also cross-examined about text messages in which he had said to his partner that people would get "fucked up” and it was suggested that that is exactly what he intended to do. He denied hearing TD scream at him to get out. It was suggested that he did not have permission to enter the premises. His evidence remained that he was let in by NN. He said that he left when he was asked to leave. The audio of the police emergency call was played back to him and he was asked about what he heard on the audio. He said that he could not understand what was being said between the three women outside the room. He denied standing over NN with a weapon. He pointed to the fact that NN never told him to get out and that he was called back by NN. He agreed that he was on drugs at the time.

Other evidence

A number of exhibits were tendered. It is not necessary to recite them all.

There were a number of police statements which were admitted without objection. They included statements concerning the red Mazda 3 being pulled over on 18 June 2019 when driven by NN and that vehicle being found on 10 August 2019 in a street in Kambah with a shredded back tyre. The statement established that a Mr Damien Brown was the registered operator of the red Mazda 3. Police were unable to contact Mr Brown by telephone and unable to locate him when they attended the address associated with that registration. Police were told that he lived at that address and left a card with a request that he contact the police but police were never contacted in relation to the vehicle, notwithstanding that it had been seized by police and taken to the AFP evidence management centre.

Of significance was an extraction report relating to the data on the accused’s mobile phone which was seized by police when he was arrested. Most significant in this report were the text messages that were sent in the period from 9 August 2019 until the arrest of the accused on 12 August 2019. In this time (approximately two days and 15 hours) he sent or received 612 text messages. These text messages corroborate the evidence of the accused that he was left at court when NN drove away in the red Mazda and that over the subsequent days he was taking steps to try to locate NN and the vehicle. It corroborates the evidence of the accused and of TD that there were text message communications between them in relation to the vehicle and that TD appeared to accept that NN was in the wrong. The text messages also confirm that the accused had what could be described as a very difficult relationship with his then partner which appeared to be on the verge of breakdown. He also had a large number of other communications with other persons. The impression left by the communications disclosed in the extraction report is consistent with that of a methamphetamine user who was leading a chaotic and complicated life.

Consideration

I will deal with each of the elements which have been identified at [26] above and record my reasons for finding them established or not. This involves an initial consideration of whether or not there was an agreement between the accused and Ms Baker, before turning to the physical elements of the joint offence, and then returning to the question of the agreement.

It is convenient to first deal with Count 1.

Count 1 – agreement

That there was an agreement between the accused and Ms Baker to commit the offence alleged in count 1.

That the accused and Ms Baker intended that an offence would be committed under the agreement.

These first two elements may be dealt with together. The Crown case was that an inference could be drawn beyond reasonable doubt that there was an agreement between the accused and Ms Baker to commit the offence of aggravated burglary involving theft of any property in the building.

In relation to count 1 it is first necessary for the Crown to prove an agreement to commit aggravated burglary involving theft of any property. There must be an agreement to enter or remain in a building as a trespasser with the intent of committing theft of any property in the building. The reference to theft in s 311, and hence s 312, must be a reference to theft as defined in ss 308 and 321. That involves dishonestly appropriating property belonging to someone else with the intention of permanently depriving the other person of the property. For present purposes, two components of that definition are significant: first, that the appropriation be “dishonest” and second, that the property belonged to someone else. It is appropriate to start with the second issue, namely, whether or not the property belonged to someone else.

The Crown case based on an intention to commit theft was that the property to be stolen was the keys to the red Mazda 3. In order for there to be a theft, it would be necessary to prove that the keys to the red Mazda were property that did not belong to the accused, but instead belonged to NN or at least that NN had a better claim to possession of the keys than the accused. The Crown has not proved that beyond reasonable doubt. The principal evidence on this issue was the evidence given by the accused himself. His evidence was that there was an arrangement to swap vehicles as a result of damage caused to a VY Commodore that belonged to his partner. That evidence was corroborated, to some extent, by his text message exchanges that followed him being left at court without the red Mazda, his unchallenged evidence that he had been in possession of the red Mazda for about one month prior to being deprived of it on 9 August 2019, the statements made by TD which appeared to accept that NN was in the wrong by failing to return the vehicle and the limited evidence given by NN that there was some arrangement in place involving swapping cars. The evidence that the registered owner was someone else is, in this case, not of great significance, both because the registration does not prove beneficial ownership and the registered owner appeared to have no interest in seeking to recover the vehicle when it was seized by police. The latter fact is consistent with the vehicle having been the subject of sale or less formal arrangements for the passing of possession of vehicles between persons involved with illicit drugs.

It is not possible to exclude beyond reasonable doubt the possibility that, as a result of the agreement between the parties, beneficial ownership of the vehicle (and, necessarily, its keys) resided with the accused or, at least, that the accused had a better claim to possession of the vehicle than NN. In those circumstances, it is not possible to conclude beyond reasonable doubt that any agreement relating to the entry onto the premises to take the keys would have involved the appropriation of property belonging to NN. Further, it would not be possible to conclude beyond reasonable doubt that any appropriation would be dishonest. It therefore could not have been a theft. It therefore could not have been the subject of an agreement with Ms Baker to commit theft when on the premises.

That conclusion is sufficient to dispose of count 1 on the indictment in its entirety.

Count 2 – agreement – part 1

That there was an agreement between the accused and Ms Baker to commit the offence alleged in count 2.

That the accused and Ms Baker intended that an offence would be committed under the agreement.

It is necessary for the Crown to prove an agreement to commit an offence that involved causing harm or threatening to cause harm to anyone in the building.

The Crown case was not sufficient to establish that there was any such agreement prior to entry onto the premises. Clearly the accused was interested in getting the red Mazda back into his possession. He had expressed himself in extravagant terms in the preceding days, suggesting the possibility of violence in text messages with his partner. Those text messages included:

Partner to accused: His still at his mum’s just run in on them FCK them all
…
Accused to partner: Don't talk to her and you don’t know where I am if anyone asks they getting what’s coming the motherfuckers
Partner to accused: OK bub don’t kill the poor cunt
Accused to partner: I don’t give a fuck I’m going mad and I won’t stop they all getting fucked up whoever wanna get involved, something will be removed
Accused to partner: Don’t talk to his woman or anyone that associated with them they peaking and tripping out where I am they are gone bub, boom boom

However, I consider that great weight cannot be given to the terms of those text messages insofar as they are relied upon as circumstantial evidence supporting an intention to commit an offence involving harm or the threat of harm. When the text message communications are viewed as a whole, those messages are readily able to be characterised as chest-beating by the accused who was under pressure from his partner to retrieve the car or its contents. The statements were made some time before the morning of 12 August and communications subsequent to the communications in which violence is apparently threatened do not have the same threats in them, nor are they indicative of the level of violent agitation that might be inferred from the earlier messages.

The accused clearly did travel in company to the premises. However, that is a circumstance of little weight when it is understood that the whole point of the exercise was to recover a vehicle and, without that vehicle, the accused had no transport unless he borrowed another car or got a lift with someone.

It is correct for the Crown to point to the various items that were found within Ms Baker’s vehicle as being consistent with an intention to threaten harm or to cause harm to a person. The items that were recorded as being in the cabin of the vehicle were a knife, a machete and a baseball bat. There was no evidence as to where a hammer or a tyre iron were located within the vehicle and they do not appear to have been seized by police.

It is significant that in fact no harm was caused, notwithstanding that there was plenty of opportunity for it to have been caused. It is therefore not possible to reason backwards that the likelihood of an agreement to cause harm is increased by the fact that harm was caused.

There was no evidence from Ms Baker of any agreement with the accused. The evidence in the statement of agreed facts for her sentencing hearing does not specifically refer to any agreement with the accused prior to entry into the premises. The statement she is recorded as having made to police on the evening was that she was “just taking [the accused] to [TD’s] house so that he could get his keys” and that he had “asked her to drive him to the Residence so he could get his car keys from someone” and that “she believed she was just going to the residence to help “a cuz or friend”. Although those statements may well have been self-serving ones, there is no evidence to directly contradict them.

The evidence supporting the proposition that either a tyre iron or a knife was brought into the premises by the accused is limited.

The evidence concerning the presence of a knife (as distinct from a machete) is in the evidence of TD. I do not consider that to be reliable having regard to her very limited opportunity to observe what occurred in the bedroom and the fact that in her telephone call to police it was only after she had observed the accused leave with the machete that she made any reference to a knife.

The only reference to a tyre iron is that which was found by police in the car. TD made some references in the police emergency call to something metal although her reference to that possibly involved describing some aspect of the machete. In her evidence‑in‑chief, when asked to describe the weapons that she saw, she said:

But I don't know if he had another - like, a metal - I don't know what that was. He might have had a metal on him. See, it was a while ago too, and like - you know.

In cross-examination she said, in response to a question:

But you don't remember the metal bar, you said?---No. No, I could - no.

There was reference to the accused holding a tyre iron in the statement of facts from Ms Baker’s sentencing proceedings. Notwithstanding that, for the reasons given below, I have found the statement to be admissible and also found that Ms Baker’s denial of any recollection of what occurred on that evening was unreliable, I do not consider that her agreement to the statement of facts can be taken as a positive statement by her that she recalls each fact there set out. It is simply not possible to tell which of the facts stated in the statement of facts are those which have been agreed to because of a positive recollection on her part and those which are matters that she is prepared to accept for the purposes of sentencing because she was advised that the Crown would otherwise prove those facts or for some other reason. As a consequence, the reference in the statement of facts to the tyre iron does not materially add to the evidence about its presence during the burglary.

This aggregation of circumstances is not sufficient to prove beyond reasonable doubt that there was any agreement entered into prior to entry into the house to commit an offence involving causing harm or threatening to cause harm to anyone in the building.

That means that if there is any agreement, it must be an agreement which was entered into after entry onto the premises.

This raises issues as to the timing of any agreement in relation to other events. That is because any agreement must be entered into before the conclusion of the conduct making up any of the physical elements of the joint offence were engaged in: s 45A(5). It is therefore necessary to consider, at this point, the evidentiary position in relation to the conduct making up the physical elements of the joint offence.

Count 2 – other physical elements of the joint offence

The accused entered or remained in a building.

I am satisfied beyond reasonable doubt that the accused entered and remained in a building.

The accused was a trespasser (that is, he had no permission to enter or remain in the building).

Even though I have doubts about substantial parts of the accused’s evidence, I cannot reject beyond reasonable doubt his evidence that he was let into the residence by NN through the laundry door. Although I have doubts about the very limited evidence of NN, his evidence was consistent with the accused not having entered the premises as a trespasser.

I am satisfied beyond reasonable doubt that the accused was a trespasser from the point in time at which he was asked to leave the premises by TD. I reject beyond reasonable doubt his evidence that he had not realised he was being asked to leave by TD and that he left when he realised he was being asked to leave by TN. Having regard to the nature of the communications that can be heard on the audio of the first telephone call to police, the relationship between the rooms shown on Exhibit 3 and the layout of those rooms shown during TN’s evidence-in-chief interview, it is not plausible that he did not hear that both the intruders were being told to leave by TD.

I do not accept the submission that in circumstances where he had been told to leave by TD, who he knew was NN’s mother, he could rely upon any consent from NN in order to avoid being a trespasser.

The accused was in company at the time of committing the burglary.

I am satisfied beyond reasonable doubt that when entering and remaining in the building he was in company with Ms Baker.

The accused had an offensive weapon with him at the time of committing the burglary.

I am not satisfied beyond reasonable doubt that the offender had a weapon with him when he entered the premises. However, I am satisfied beyond reasonable doubt that he had the machete in his possession when he departed the premises. I am satisfied beyond reasonable doubt that after the point at which he was asked to leave he had the weapon in his possession, and therefore this element is established beyond reasonable doubt. I do not accept the submission that if possession of the machete was for defensive purposes, that would mean that this element was not satisfied if the other elements of the offence were satisfied.

Count 2 – agreement – part 2

In these circumstances, the question is whether the Crown proved beyond reasonable doubt that there was an agreement entered into with Ms Baker to commit the burglary, involving remaining in the building as a trespasser with intent to commit an offence involving causing harm or threatening to cause harm to anyone in the building. Because of the terms of s 45A(5)(b), such an agreement must have been entered into before the accused left the building at which time he ceased to be a trespasser. Further, it would be sufficient if the agreement was “a non-verbal understanding”: s 45A(5)(a).

Resolution of this issue involves considering the situation of the accused, Ms Baker, TD and TN in the period after the accused was told to leave the premises by TD.

During that period the position of those persons was as follows:

(a)The accused was in NN’s bedroom with NN.
(b)Ms Baker was outside the bedroom interacting with TD and TN. Ms Baker was affected by methamphetamine. There is no evidence that she was violent. She was however “in the face” of TD.
(c)TD was very loudly interacting with Ms Baker and also talking to the police on the telephone. TD had walked past NN’s bedroom when she initially got up but spent the balance of the time in a position where Ms Baker was between her and the bedroom.
(d)TN was involved in the interaction between her mother and Ms Baker. At some point she briefly got on the bedroom side of Ms Baker and observed what was going on in that room for a period of two seconds.

TN’s evidence was that there was no door to NN’s room. She had briefly observed the accused standing over NN with the machete in his hand. However, there is no direct evidence that Ms Baker could see, or in fact saw, what was occurring in the bedroom between NN and the accused. There is no evidence that she could hear what was occurring between NN and the accused. The circumstances of her interaction with TD, as recorded on the audio of the call to police, are inconsistent with her being able to hear what was occurring within the bedroom. It is certainly possible that, as a result of NN calling out as he did in a manner that led to his mother getting up, Ms Baker was aware that the accused intended to do something involving harming or threatening to harm NN, and hence formed a non-verbal understanding with him prior to the point where they became trespassers, which continued after they had become trespassers. However, I cannot be satisfied beyond reasonable doubt of that fact. It is simply not possible to tell.

The evidence does not exclude the possibility that Ms Baker, in her methamphetamine affected state, understood that the accused was recovering the keys from NN without an intention to commit an offence involving causing harm or the threat of harm. It would have been clear to her that TD and TN were hostile to her continuing presence in the house but that, as she was there to support the accused and he was recovering the keys, she did not comply with their request to leave. However, that is not sufficient to establish to the requisite standard that she reached at least a non-verbal understanding that he was to commit an offence involving harm or the threat of harm.

Because I am not satisfied beyond reasonable doubt that there was an agreement entered into between Ms Baker and the accused to commit an offence involving harm or the threat of harm to NN after the accused was told to leave by TD, count 2 is not proved beyond reasonable doubt.

In reaching this conclusion there is no difference that arises depending on whether the indictment is in the original or proposed amended form. That is because in the circumstances in which the agreement was alleged to have occurred, when both the accused and Ms Baker were already in the building and became trespassers as a result of a demand to leave, it is clear that any agreement must have been an agreement to commit an offence in company. Even if the agreement was only one to commit the burglary in company, if in fact the joint offence was both in company and with an offensive weapon then that would be an offence of “the same type” as the offence agreed to: s 45A(2)(a). Therefore, the agreement element of the offence would be able to be satisfied. As indicated below, if the indictment remained in its unamended form then, because of the terms of the indictment, it would also be necessary to establish that the accused or Ms Baker had an offensive weapon at the relevant time.

Remaining issues

Admissibility of Ms Baker’s agreed facts

The Crown sought to tender the statement of facts which had been agreed between the Crown and Ms Baker to form the basis upon which she pleaded guilty to and was sentenced for what is recorded as “One count of Aggravated Burglary – in company”. The Crown contended that the document was admissible under s 103 of the Evidence Act 2011 (ACT) – being a document the content of which “could substantially affect the assessment of the witness’s credibility”. The Crown then argued that having been admitted for that purpose, it could be relied upon in order to prove the facts stated therein, notwithstanding the hearsay rule, because under s 60, that rule did not apply as the document had been admitted as relevant for a purpose other than proof of an asserted fact.

The admission of the document was opposed by counsel for the accused. That was principally on the basis that, insofar as the document was said to be a representation as to the facts made by Ms Baker, she denied in her evidence that she had any recollection of the circumstances of the offending and had only agreed to the statement of facts because her lawyer advised her to. Counsel for the accused submitted that the objection would be overcome if an order was made under s 136 of the Evidence Act limiting the use of the statement to Ms Baker’s credibility.

As recorded earlier in these reasons, by the end of her evidence I concluded that Ms Baker was understating her recollection of the events in question in order not to assist the Crown in establishing the guilt of the accused.

Although the document was sought to be tendered prior to the close of the Crown case, with the consent of the parties a ruling on that evidence was deferred. The fact that the accused gave evidence meant that the significance of the statement of facts was much reduced. That was because the accused’s version of events was, in many respects, consistent with the Crown case and the areas in which his version of events departed from the Crown case were areas where the statement of facts provided little assistance.

A number of points should be made about the statement of facts:

(a)So far as the statement discloses, the offence to which Ms Baker pleaded guilty was a count of aggravated burglary in company with intent to commit theft (not to commit an offence involving harm or a threat of harm). The statement does not indicate that it was a joint offence under s 45A. (Although Ms Baker agreed in cross-examination to the proposition that she had pleaded guilty to “joint commission aggravated burglary”, I am not confident that in agreeing to that proposition her evidence is reliable as to the Crown’s reliance upon s 45A.) The existence of the statement therefore does not provide support for the proposition that Ms Baker agreed to the existence of an agreement between herself and the accused in relation to the commission of any offence.
(b)That conclusion is consistent with the terms of the statement itself which do not support an agreement to commit theft of the keys (as opposed to appropriating them without a theft) or any agreement to commit an offence involving harm or the threat of harm to any person.
(c)The statement does, however, support the proposition that the accused was holding a machete and the tyre iron when he entered NN’s bedroom.

In my view, the statement is admissible under s 103 as it could substantially affect the credibility of Ms Baker. That is because it was used as a basis for challenging the reliability of her evidence as to a lack of recollection of the events in question.

As a result, it may be used in accordance with s 60 in order to prove the facts stated in the document.

I decline to make any order limiting its use under s 136 because the risk of unfair prejudice in the present case is that it might be given a weight or status that it does not deserve. That would clearly be the case if this was a case before a jury. However, I do not accept that there is a danger that it would be unfairly prejudicial to the accused because I would misunderstand the weight that it should properly be given. I therefore admit the document as Exhibit 8.

As pointed out earlier, there are significant limitations on the use to which the statement may be put. That is because it is not clear whether the statement reflects the positive recollection of Ms Baker as to what occurred or an acceptance by her that evidence that would be adduced by the Crown of which she had no relevant recollection would establish those facts beyond reasonable doubt. Assuming it would be some combination of those two, it is not clear what facts fall into the first category and what facts fall into the second category. It therefore cannot be treated by her as a positive representation as to facts that she can recall occurring. This case is distinct in that regard from the circumstances in Power v The Queen [2014] VSCA 146; 43 VR 261 where the earlier representations were, relevantly, derived from a record of interview and police statement, rather than a statement of facts which was arrived at by an unidentified process.

As will be apparent from what I have said earlier, I have taken the contents of that document into account in relation to the conclusions that I have reached above. Most relevantly, I do not consider that the statement can be given any significant weight insofar as it asserts that the accused had in his possession the machete and the tyre iron prior to going inside the premises. That is because in relation to the machete, the preponderance of evidence is that this was a machete that was inside NN’s bedroom and not taken into the premises by the accused. Further, in relation to the tyre iron, TD’s evidence did not identify that it was present. I have, however, given some weight to the statements as to Ms Baker’s understanding of the purpose of her driving the accused to the premises. While the statement may well have been self-serving, in the absence of other evidence that would demonstrate a more sinister purpose on her part, recovery of the keys not involving theft of the keys is a possibility that cannot be excluded.

Amendment of the indictment

As pointed out above, the indictment was drafted in a way which included as part of the charged offence both aggravating circumstances identified in s 312, namely, being in company and having an offensive weapon at the time of the burglary. In my view, because the indictment includes the word “and”, it is incumbent upon the Crown to establish both of those elements in order for the charge to be proved. That arises as a straightforward requirement of procedural fairness. Notwithstanding that it is necessary, in order to establish the charge of aggravated burglary, to establish only one of the aggravating factors, having included both on the charge, it would be unfair to the accused to find at the end of the case the charge established on a basis different to that which is in the indictment.

That leads to the Crown’s application for leave to amend the indictment. The application was only made after the end of the defence case, immediately prior to commencement of oral submissions. The day before, after the evidence had been concluded, I enquired, in anticipation of hearing submissions the next day, whether, having regard to the terms of the indictment, the charge could be proved if only one of the aggravating factors was established. The application made by the Crown was to amend the indictment by deleting the word “and” and replacing it with “or”. In this way, the indictment would correspond to the terms of s 312.

It is sufficient to dispose of this application on the basis that even if the amendment was made, the charges would not be proved beyond reasonable doubt. That is because the Crown has not established that an agreement to commit the offence of aggravated burglary existed. That finding does not turn upon whether or not both aggravating elements formed part of the agreement because it would be sufficient that only one element formed part of the agreement. That is because even if the ultimate offence involved both aggravating elements, it would still be an offence of the same type and hence, be an offence committed “in accordance with” the earlier agreement.

Therefore, the application for leave to amend the indictment is refused.

Orders

Because the elements of the offence have not been established, the appropriate verdicts are not guilty.

The orders of the Court are:

1. Exhibit A1 is admitted as Exhibit 8.

2. The application by the Crown to amend the indictment is refused.

3. On count 1 on the indictment dated 9 December 2019, a charge of aggravated burglary, the accused is found not guilty.

4. On count 2 on the indictment dated 9 December 2019, a charge of aggravated burglary, the accused is found not guilty.

I certify that the preceding one hundred and thirty‑eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 24 September 2020

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Citations

R v Edwards [2020] ACTSC 243

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Power v The Queen [2014] VSCA 146

[2020] ACTSC 243

11 September 2020