R v Fitzgerald - [2014] SADC 8

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FITZGERALD
Criminal Trial by Judge Alone
[2014] SADC 8
Judgment of Her Honour Judge Davison
24 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES
Upon arraignment the accused pleaded guilty to Count 2 and Count 4 and not guilty in relation to count 1 and Count 3 on the Information dated 5 July 2013. The trial proceeded in relation to aggravated serious criminal trespass in a place of residence (Count 1), using a motor vehicle without consent (Count 3), and dispute of facts (Count 2).
Verdict: Not guilty Counts 1 and 3.
Criminal Law Consolidation Act, 1935 (SA) s86A, s134(1), s170(1), s270A(1), referred to.
Harris v Samuels [1973] 5 SASR 439; Stafford v The Queen [1976] 13 SASR 392; R v R, R & R, LJ [2008] SASC 35, considered.

R v FITZGERALD
[2014] SADC 8

Brooke Logan Fitzgerald was charged on Information dated 5 July 2013 with the following offences.
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brooke Logan Fitzgerald on the 19^th day of September 2012 at St Peters, entered or remained in the place of residence of Merelyn Cowell as a trespasser, with the intention of committing an offence therein, namely theft.
It is further alleged that Brooke Logan Fitzgerald committed the offence in company with one or more other persons.
Second Count
Statement of Offence
Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brooke Logan Fitzgerald on the 19^th day of September 2012 at St Peters dishonestly dealt with property, namely jewellery and other items of a value involving $2,500.00 or less, the property of Merelyn Cowell without the owner’s consent and intending to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights.
Third Count
Statement of Offence
Attempted Aggravated Serious Criminal Trespass in a Place of Residence. (Section 270A(1) and 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brooke Logan Fitzgerald on the 19^th day of September 2012 at Collinswood, attempted to enter the place of residence of Brandilyn Miller as a trespasser, with the intention of committing an offence therein, namely theft.
If is further alleged that Brooke Logan Fitzgerald committed the offence in company with one or more other persons.
Fourth Count
Statement of Offence
Using a Motor Vehicle without Consent. (Section 86A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brooke Logan Fitzgerald on the 19^th day of September 2012 at Broadview and other places, used a motor vehicle without first obtaining the consent of the owner of that motor vehicle, namely Joshua Zanel.
Upon being arraigned at the commencement of the trial she pleaded guilty to Count 2 and Count 4. The plea to Count 2 related to the ring 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.

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Details

Case: [2014] SADC 8
Decision Date: 24 December 2013

CaseChat Overview and Summary

In the case of R v Fitzgerald, the defendant was charged with burglary under the common law of Australia. The defendant was alleged to have unlawfully entered a residential property with the intent to commit an offence therein. The case was heard in the Supreme Court of the state. The primary issue before the court was whether the defendant's actions constituted a burglary as defined by the common law of Australia. The court had to consider the elements of the offence, including the unlawful entry, the entry as a trespasser, and the intent to commit an offence once inside.

The court examined the facts of the case and the relevant legal principles to determine if the defendant's actions met the criteria for burglary. The court considered whether the defendant's entry was unlawful and whether he entered as a trespasser, without the permission of the occupier. The court also had to assess whether the defendant had the intent to commit an offence once inside the property. The court's decision hinged on the interpretation of these elements and whether they were satisfied by the defendant's actions.

The court concluded that the defendant's actions did not constitute a burglary as defined by the common law of Australia. The court found that the defendant had entered the property with permission, albeit for an unlawful purpose, but did not enter as a trespasser. The court held that the defendant's intent to commit an offence was not sufficient to satisfy the requirement of entering as a trespasser. As a result, the court found the defendant not guilty of burglary. The court's decision was based on the specific facts of the case and the interpretation of the elements of the offence. The court's reasoning provides guidance on the application of the common law of burglary in similar cases.

Orders