R v Fitzgerald
[2014] SADC 8
•24 December 2013
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 19th 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 19th 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 19th 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 19th 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 had been stolen from the home of Ms Cowell and was located on the finger of Ms Fitzgerald at the time of her arrest. I have therefore dealt with the remainder of the items alleged in this count as a dispute of fact hearing. The trial proceeded in relation to Count 1 and Count 3. She elected for a trial by judge alone. I proceeded to hear the trial without a jury.
Pre-trial matters
There was an application pursuant to Rule 15 of the District Court Rules. The accused applied for exclusion of the record of interview. The grounds advanced in the Notice were that:
It was irrelevant;
There was unfairness as the interview continued after the applicant refused to answer questions.
I heard argument in relation to this matter. I viewed the interview. The prosecutor indicated that the Crown was relying upon the portion of the conversation that was recorded at the Police Station. A transcript was tendered.[1] The prosecution relied upon the portion of the conversation from line 336 onwards.
[1] VDP2
However, in order to determine the issues on the voir dire I was invited to look at all of the conversation that the police had with Ms Fitzgerald from the time that the recording equipment was activated. This conversation commenced at the time she was spoken to by the police at Tea Tree Plaza shortly after her arrest. The submissions advanced by Mr Graham were that the interview commenced with some fairly innocuous questions and these were irrelevant. He identified some questions about her being on bail at that time as being irrelevant. His main argument was that the accused had indicated to the police that she did not want to answer any questions and after that time the police put the allegations to her during the course of which she volunteered some further information. The argument put forward was that nothing further should have been said to her after she declined to answer questions. Mr Graham suggests that the questions preceding this should be excluded as his client is clearly “mucking around” and not giving genuine thought to her answers. I invited him to consider calling his client to give evidence to support that submission - he declined. I told Mr Graham that I was not prepared to accept his submission from the Bar table that the accused was attempting to tell the police that she did not want to answer questions although she was doing it in a crude manner and that is why not answering any questions took the form of “denial”. He relied upon the authorities of Ireland, Harris v Samuels[2] and Stafford v The Queen.[3]
[2] [1973] 5 SASR 439
[3] [1976] 13 SASR 392
Mr Hill made submissions that the accused had been properly cautioned on a number of occasions prior to the formal record of interview commencing and was then cautioned yet again in the interview. She was well aware of her right to decline to answer questions. He submitted that the volunteering of information should be seen against that background. He said that after she had declined to answer questions the police were entitled to ask her who the driver of the car was and she was required by law to answer it.
I then viewed the video VDP1 in addition to perusing the transcript VDP2. The interview with the police occurred after the accused had been given her rights on a number of occasions. She indicated that she understood these rights and had no request in relation to them. When the formal interview commenced at 4.13pm on Wednesday 19 August 2012, the police reiterated those arrest rights and then specifically repeated the caution. They ensured that she understood that by asking her what her comprehension of it was. Her reply indicates that she understood. There are a number of questions in the interview that are relevant to these proceedings including her knowledge and state of mind in relation to various suburbs. When the accused indicates to the police that she does not wish to answer any questions the police advise her of the charges that will be laid against her. In the course of advising her of these charges the accused volunteers further information. The police do not elicit this information from her. There is no unfairness in relation to the conduct of the police interview or the questioning in these circumstances. I declined to exclude the interview.
General Directions
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the court details every obvious and basic direction of law which might be given to a jury.[4]
[4] R v R, R & R, LJ [2008] SASC 35 at [42]
I remind myself of the following fundamental principles:
The accused is entitled to the presumption of innocence - she is to be regarded as innocent unless and until her guilt has been proved by the prosecution beyond reasonable doubt.
The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
The accused gave evidence on oath. She was not obliged to give evidence. She always had the right to remain silent in answer to the charges leaving it to the prosecution to satisfy me of all of the ingredients of the charges. In this case, however, Brooke Logan Fitzgerald elected to give evidence on oath and to expose herself to cross-examination.
Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
Prosecution case
The prosecution case was that the accused had been in the company of two other men. On 19 September 2012 they had attempted to break into a house in Collinswood. They were disturbed by the home owner and drove off. They then went to premises in Ninth Avenue, St Peters. Someone broke in through a rear bedroom door, ransacked the house and stole a number of items. The car in which the accused and two others were travelling was then seen by police on Ninth Avenue at St Peters and pursued. The car stopped briefly in Collins Street at Enfield when all occupants alighted and then the pursuit continued terminating at Tea Tree Plaza. The accused was arrested in Tea Tree Plaza. When she was arrested she was wearing a sapphire ring. That sapphire ring was one of the items stolen from the house at St Peters. In the car the police found a pillow case. Located within that pillow case were a number of items from the St Peters break-in.
Defence case
Mr Graham opened on behalf of the accused. He outlined the issues in dispute. He said that the main issue in dispute was that it could not be proven that Ms Fitzgerald was a party to a joint enterprise to break into the house at Collinswood and that there should be a reasonable doubt entertained by me that she had been present and a participant in a joint enterprise in relation to the premises at St Peters.
Prosecution evidence
The prosecution called Ms Kelli Christie. She was at Tea Tree Plaza just before 2.00pm on 19 September 2012. She was in the undercover car park when she heard a loud noise of a car approaching. The car came towards her quickly and then turned in front of her into a car park scraping the car parked alongside it. Two people got out of the car. They left the car running. A female got out of the passenger side window because the car was hard up against the adjoining car so that the door would not open. A male person got out of the right driver’s door. The male and the female looked around and then ran into the shopping centre. She subsequently identified the accused by photographs as the female who had got out of the car and run away. She was cross-examined. It was put to her that the female got out of the driver’s side door rather than the passenger side window. She disagreed with that. She said that her view was unobstructed and she saw her climbing out. Ms Christie said the passenger had to struggle quite a bit and it was quite noticeable that she was a female.
The Crown then called Brandilyn Miller. She lives at 15 Collins Street in Collinswood. On 19 September 2012 she was at home. At about 1.30pm she was at the back of the house and heard a noise at the front of the house. She went to the front of the house to see what it was. She saw a man standing at her front window. When she first saw him he appeared to be just standing there but then within a couple of seconds he appeared to be doing something to her window. She could see his shoulders moving and hear a noise. She decided to try and scare him off. She ran towards the window and banged loudly on the window and screamed at him. She put both of her hands on to the window to make a loud noise. With that the man walked away from the window. She watched him walk from the window. He walked towards the driveway where there was a car parked. The witness was shown the bundle of photographs.[5] In the first photograph there is a car parked in her driveway. She identified that this was the position that the car was parked and that the man walked back towards. As the man was walking back towards the car she saw a female standing, leaning up against the car watching him. She was leaning up against the passenger side door. It appeared that she was standing there waiting for him to come back. Ms Miller saw another male towards the back of the car. He was standing near the car. She had a clear view of the female. Nothing obstructed her view and she had her in her sights for at least 10 – 15 seconds. The male who had been at her window went back to the car and then got into the driver’s side. She thought he was carrying a screw driver of some description. After he got into the car the other two people got into the car and the car started and reversed out of the driveway fairly quickly. [6] They drove in a westerly direction down Collins Street. She memorised the number plate and wrote it down as they drove away. She called the police as quickly as she could and thought it was less than 30 seconds from the time they had driven away. She advised the police of the registration number and the description of the vehicle.
[5] P1
[6] TT39
Ms Miller was cross-examined. She agreed that in her original statement she said that the female was in the car. She said that she re-read the statement at the Police Station and realised she had made a mistake and that originally the female was standing outside the car.[7] She was also cross-examined about the statement that she made to the police that the man at the window had laughed and ran back to the vehicle parked in the driveway. She said that she could not recall whether he walked or ran back to the car but did recall that he went back to the car quickly. She said that her memory today is that he moved quickly back to the car. She was further cross-examined about what activity the female had engaged in outside her house. She said that the female was leaning against the car standing up supporting herself at the car. She said she had her back to the car. She did not see anything in her hands but could not say whether she was smoking or not. In relation to the third person she said she knew there was a third male there. She thought he had light brown hair that was not long. He was a regular build not overly tall and she did not see his face. When it was put to her that things happened pretty quickly she said, “reasonably quickly. They didn’t leave my driveway overly quickly because I had – I was watching the male and female but it happened reasonably quickly, yes”.[8] She said someone yelled out “Get in the car”. It sounded like a male but she did not know which male it was.
[7] TT41
[8] TT45
The prosecution called Peter Cowell. He lives at 28 Ninth Avenue, St Peters. He shares that home with his wife. On 19 September 2012 their house was broken into. At that time his wife was in Melbourne. He had gone to work in the morning. He came home for lunch at around 12 o’clock and left again at about 1.00 o’clock. At the time he came home there was no sign of a break-in. He said that he was pretty confident that he had left home a little bit before 1.00 o’clock on this day. He got home from work between 4.30pm – 5.00pm. When he got home he noticed a filing cabinet in the room at the back of the house had been disturbed. He then noticed that the kitchen had been disturbed and went into the master bedroom and discovered clothes strewn around, wardrobe doors open, chest of drawers open and lots of clothes on the bed. He then inspected the rest of the house. In the lounge room the flu vent to the chimney was open and there was soot on the carpet. He inspected the house for points of entry. He noticed that the exterior door to the master bedroom had been broken. The double doors at the back of the family room were damaged and the front entry doors were ajar. He then took a series of photographs on his phone. Those photographs were tendered[9]. He telephoned the police. The police came and the crime scene examiner examined the scene. He was cross-examined. He conceded that there was a possibility that he could have left his home as early as 12.30pm after having his lunch. He said it could not have been earlier than 12.30pm. He said he left many of the items that were on the bed there until his wife came home the following week. He also recalled a red telephone box with a lid that was taken. The lid remained behind on the bed.
[9] P3
Merelyn Cowell was called. She confirmed that she was in Melbourne on the day of the break-in. She said that her husband had rung her at about 5.00pm to let her know that the house had been broken into. On her return she went through the property to see what was missing. She noticed jewellery that was missing. She also said that makeup had been removed from her wardrobe. She was in particular concerned about lipsticks. When she saw her lipsticks they had the lids removed from them. She immediately put the lids back on. She found the lids in the house. She made the observation that the lids had been taken off the more expensive designer brand lipsticks. These were the ones that were not in the makeup bag. She was shown a bundle of photographs[10] and identified the items shown in those photographs with the exception of four 20 Euro notes to be hers. She also identified a photograph of a pillow case and said that that was her pillow case. It was taken from a pillow on the bed. She gave evidence that she went to the Police Station on 15 October 2012 and she was shown a number of items including a sapphire ring. She identified that sapphire ring as being her own and a number of other items.
[10] P4
Ms Cowell was cross-examined. She said that the lipsticks in question were in the drawer. She was challenged whether they were on top of the table but she said they were not on top of the table.
Senior Constable Brooks was called. He is a Crime Scene Examiner. He went to the St Peters address on 19 September. He examined the premises. He determined that the point of entry into the house had been through the exterior door to the master bedroom and that a 6mm flat bladed screwdriver was used in the frame causing the lock tongue to pop from the striker plate and allow entry. No DNA testing was undertaken. He conducted a finger print examination but did not locate any suitable finger prints.
The prosecution called Senior Constable First Class Rosenhahn. He gave evidence that he was on duty on the afternoon of the 19 September 2012. He had been asked to keep an eye out for a stolen Toyota, Registration No SO57ASN. He sighted the vehicle on Ninth Avenue, St Peters at approximately 1.44pm. At the time he first saw the car it was travelling in a westerly direction on Ninth Avenue approximately 20 metres from the intersection with Stephen Terrace. He saw a male driver and other people in the car but he could not describe those people. Having sighted the car he then performed a U-turn and travelled back heading in a North/West direction up Stephen Terrace. He saw the vehicle travel across Stephen Terrace on to Ninth Avenue on the western side of Stephen Terrace.
Senior Constable First Class Pytlik was called. She gave evidence that she was on mobile patrol with David Thomas when they sighted the suspects’ vehicle on Stephen Terrace. They commenced following the car on Nottage Terrace, then onto Main North Road and then on Fitzroy Terrace. At that stage the vehicle was stationary in the far left lane. Senior Constable Pytlik got out of the car, walked up to the suspect vehicle and as she approached the passenger door the vehicle took off. She saw a female sitting in the passenger seat with a male driver and another female in the back passenger seat. The vehicle then turned right on to Prospect Road and they lost sight of the vehicle.
The prosecution called Senior Constable Goreing a police officer with the State Tactical Unit. On 19 September he was on duty with Detective Brevet Sergeant Mothersole They were looking for the suspect vehicle. They saw it on Nottage Terrace. This was at approximately 1.45pm. They pursued the vehicle. Eventually the vehicle ended up on Prospect Road and then it went through a number of different side streets. They lost the vehicle near Beatrice Avenue in Prospect. They became aware that the helicopter was involved in the search. They lost observation at 1.50pm. They became aware that the vehicle had pulled up to a block of units at 7 Collins Street in Enfield and that there was then a pursuit that ended at Tea Tree Plaza. Senior Constable Goreing arrested the male driver, Joshua Salter, in Tea Tree Plaza. When he was arrested he had a yellow screwdriver in his possession. That screwdriver was tendered[11]. The tip of the screwdriver measures 7mm.
[11] P7
In addition to this evidence a number of statements were tendered. These statements related primarily to the pursuit of the car that contained the accused and Mr Salter. There was also a DVD of the pursuit as it was filmed from the police helicopter[12] and a DVD[13] of the interview of the accused by the police after her arrest.
[12] P13
[13] P14
No case submissions
Mr Graham made a no case submission. He submitted that there was no case to answer in relation to Counts 1 and 3. The main thrust of his submission was that there was no evidence that there had been any joint enterprise in respect of which the accused, Ms Fitzgerald, was a party. I ruled that there was a case to answer in relation to both charges.
The defence case
The accused gave evidence. She is 22 years old. She is currently in the Adelaide Women’s Prison. She has been there for 10½ months. Before that she was living at 56 Bagsters Road, Salisbury North. She was living there with her mum and dad. On the 19 September 2012 she began her day at her mother’s house. She was babysitting her nephew and niece. After her mother and father returned from the methadone clinic Joshua Salter rang her and asked her what she was doing. She gave evidence that she was in a relationship with Joshua Salter. She said that he drove her around so that she could shoplift to support her heroin habit. On this day he came to pick her up in a “Chaser” and they went to Hanson Road where they got some heroin and ingested that heroin at Torrens Road before driving towards the city. They were in a side street, he pulled over and left her on the side of the road and after she had a sleep she recalled him coming back and shutting the boot. He and his mate jumped into the car with some stuff.[14] They passed her a tin box and then drove off. They pulled up in someone else’s driveway and she lit a cigarette, she dropped the cigarette beside the seat. She then jumped out of the car to retrieve the cigarette. She was standing by the car for approximately four or five seconds, she heard a lady scream. The two other men ran from the house saying “get the fuck in the car”. She jumped in the car and they then drove through the back streets and the police started chasing them. She gave evidence that the other man’s name was Doug and that they called him “Duck”. She said that there was a pillowslip with jewellery in the car and that she had been inspecting the jewellery for stamps. She also had put on a ring at some stage although she was not sure at what stage this was.
[14] TT107
During the course of the chase the car pulled into a car park, all the occupants jumped out and Josh Salter said “quick, quick get back in the car” – she said “no, I don’t want to get back in the car” and he was telling her he was going to bash her.[15] She got back in the car and then they drove away from the police into Tea Tree Plaza. She panicked when she got out of the car and ran through the shopping centre. She was arrested by the police in the shopping centre.
[15] TT113
Prosecution address
The prosecutor addressed on the basis that the events at Collinswood has occurred at about 1.30pm and that the car was sighted by police officer Rosenhahn at 1.44pm. He submitted that the break in at St Peters had occurred in between these times and that there was ample time for the vehicle to have driven from Collinswood to St Peters covering 2.8 kilometres and the break in at Ninth Avenue, St Peters to have then occurred. The prosecutor submitted that the claim by the accused that she did not know what was happening at Collinswood was ridiculous and is obviously incorrect if the St Peters break in occurred first. If this was the case she would have handled the stolen property first from St Peters before they even arrived at Collinswood. In any event, the Crown maintained that the Collinswood break in had occurred first.
The prosecutor submitted that the car in which they were travelling was stolen and that she must have known it was stolen at the time she got into it given that there was broken glass in the rear of the car and there was damage to the lock. In addition to this, she knew that this was not the car that Mr Salter ordinarily drove.
The prosecutor made a submission that I should find beyond reasonable doubt that the break at St Peters had an involvement by a female. The basis of this was that whoever had broken into the house had removed the top of the lipsticks on a number of lipsticks within the wardrobe and had then left them behind. It was submitted that only a female would have engaged in this activity.
Defence address
Mr Graham submitted that Ms Fitzgerald was not a sophisticated lady. That she was not precise with her language and that I should excuse any frailties in her evidence because of this. He said despite this she did of course give evidence when she was not obliged to and submitted herself to cross-examination. He said her evidence was consistent with someone who had gone along for the ride but did not realise that the breaks were going to be committed and had not participated in a joint enterprise nor was she guilty on the basis of aid and abet. He submitted that there was evidence that supported the fact that she had simply been there but not participating and there was no evidence proved beyond reasonable doubt that she was participating in a joint criminal enterprise at either of these premises.
Mr Graham submitted that I should accept the evidence given by Ms Fitzgerald that she had taken drugs and was unaware of what was happening when she was at the house that is probably the house at St Peters. Thereafter she had gone along for the ride to the Collinswood address. He submitted that there any number of reasons why she would have got out of the car and that her explanation for having done this for a smoke could not be rejected.
Discussion
The Crown case rests on the fact that the attempted break at Collinswood occurred first in time. The timeframes in relation to this matter are very narrow. On the evidence of Ms Miller the attempted break at Collinswood occurred at 1.30pm. Mr Cowell gave evidence that he probably left his home at St Peters just before 1pm but possibly left as early as 12.30pm. In order for the Crown case theory to be correct Ms Fitzgerald and her companions would have left the house at Collinswood shortly after 1.30pm, travelled to St Peters, chosen the place to break into, affected the break-in at St Peters, ransacked the house and left the house driving away by 1.44pm. Whilst this may be possible I am unable to find that it happened in this way beyond reasonable doubt.
On the defence evidence Ms Fitzgerald says that the incident at St Peters occurred prior to the incident at Collinswood and when she had been handed an item, she was unaware of the origin of that item, being the red money box. The sapphire ring that was later found on her finger had also been stolen at that stage although she does not admit that she received it at that time. Thereafter she and the other occupants of the car went to Collinswood. This could be possible. However they then needed to return to St Peters by 1.44pm in order to be sighted by the police.
Whilst it is unlikely that Ms Fitzgerald had no part to play in respect of a joint criminal enterprise in respect of the attempted break in at Collinswood I cannot be satisfied that she was a party to a joint enterprise nor that she was aiding and abetting Mr Salter as he attempted to break in.
On the evidence I cannot be satisfied beyond reasonable doubt that she was engaged in a joint enterprise at St Peters. The evidence in relation to the lipsticks is far from convincing that she was involved as a participant in a joint criminal enterprise in relation to this break in. Whilst my suspicions are enlivened in relation to her involvement in both of these offences, I am not satisfied beyond reasonable doubt that she was a participant in a joint criminal enterprise in respect of either of them, nor am I satisfied beyond reasonable doubt that she was aiding and abetting the principals in respect of either of these offences. I therefore find her not guilty of counts 1 and 3 on the Information.
I now turn to the allegation in relation to the other items that were stolen from the Cowell house and found in the front passenger foot well of the car that Ms Fitzgerald and her companion abandoned at Tea Tree Plaza. Ms Fitzgerald has pleaded guilty to the theft of the ring. This item she said in evidence was handed to her during the course of the police pursuit. By that time she was of course aware that there were other items in the car that had been obtained unlawfully. I am satisfied beyond reasonable doubt that she was by that stage dishonestly dealing with all the property found in the car by the police that had been taken from the Cowell premises, without the owner’s consent and with the relevant state of mind.
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