R v Foster
[2015] ACTSC 144
•18 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Foster |
Citation: | [2015] ACTSC 144 |
Hearing Date: | 10 April 2015 |
DecisionDate: | 18 June 2015 |
Before: | Burns J |
Decision: | See [25]-[27] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Trial by Judge Alone – particular offences – property offences – dishonesty offences – trespass with intent to commit theft – dishonestly appropriating property – guilty verdicts entered. |
Legislation Cited: | Supreme Court Act 1933 (ACT) ss 68B, 68C |
Parties: | The Queen (Crown) Stephen Foster (Accused) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J De Bruin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 90 of 2014 |
BURNS J:
The accused, Stephen Foster, is charged with two offences:
Count 1: That on 30 November 2013 at Canberra in the Australian Capital Territory [he] entered or remained in a building, namely Shop 10, Mort Street trading as Gems and Gems, as a trespasser with intent to commit theft of any property in the building.
Count 2: That on 30 November 2013 at Canberra [he] dishonestly appropriated property, namely jewellery to the total value of $34,244.00 belonging to Chaminda Rukman Kahatapity Ralalage trading as Gems and Gems, with the intention of permanently depriving that person of the property.
To these charges he entered pleas of not guilty, and on 26 June 2014 he filed an election pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) to be tried by judge alone. By virtue of the provisions of s 68C of the Supreme Court Act, a judge trying a criminal matter without a jury may make any finding that could have been made by a jury as to the guilt of the accused person. Any such finding has, for all purposes, the same effect as a jury verdict. In such a trial, the judge must include in his or her judgment the principles of law applied, and set out the findings of fact made. In these proceedings, if a Territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, I must take the warning, direction or comment into account in considering my verdict: s 68C (3).
It is for the Crown to prove the charges against the accused. As such, there is no obligation on the accused to prove anything in this trial, and in particular there is no obligation upon him to prove that he is innocent of the charges. The onus of proving the accused guilty of each of the charges rests on the Crown throughout this trial. The accused is presumed to be innocent until his guilt has been proved to the standard required by the law, being beyond reasonable doubt. To prove the accused guilty of a charge, the Crown must prove each of the elements of the charge to the standard of beyond reasonable doubt. The accused gave evidence in the course of the trial, although he was not obliged to do so. By entering the witness box and giving evidence the accused does not take upon himself any obligation to prove anything in this trial. To the extent that the evidence given by the accused is consistent with his innocence, he is not to be convicted unless I am satisfied beyond reasonable doubt that his evidence is untruthful or unreliable. Even if I am satisfied that the evidence given by the accused was untruthful or unreliable, this is not evidence that the accused committed the offences charged against him. If I reject the evidence of the accused, I must still examine the remaining evidence which I do accept to determine whether that evidence satisfies me beyond reasonable doubt that the accused is guilty. If, with respect to either of the charges, the evidence does not satisfy me beyond reasonable doubt that the accused is guilty, then I must return a verdict of not guilty.
The accused does not dispute that he entered the premises referred to in Count 1 on 30 November 2013, nor does he dispute that he removed a quantity of jewellery from those premises on that occasion. There are really two matters in dispute. First, the accused says that he had, or believed he had, the permission of the owner of the premises to enter them and to remove the jewellery. Secondly, he disputes the quantity of jewellery alleged to have been taken, and the value of that jewellery. It was the accused’s evidence that he was approached by a third party who he understood to be acting on behalf of the owner of the store with a request, as the accused understood it, that he participate in a fake burglary so that the owner of the store could make a claim on his insurance. The accused referred to this as an “insurance job”, a description which, for convenience, I will adopt.
The evidence
The owner of Gems and Gems, Chaminda Rukman Kahatapiti Ralalage (Mr Rukman) was the first witness for the Crown. His statement to police dated 29 January 2014 was tendered by the Crown with the consent of the accused. In his statement he said that, at about 9.30 am on Monday 2 December 2013, his employee, Ms Ayosha Appuhhamige, called him and said jewellery had been stolen from the store. The store itself was located within the Arcade of City Walk Centre, Mort Street in Canberra. The store was in two parts; the main store where the administration of the business is housed and where sales were conducted, and a separate room (the display room) which faced onto City Walk adjacent to the entry to the Arcade where display cases had been set up to display items of jewellery which had been offered for sale. The display room faced onto City Walk, but had no entry from it. To enter the display room it was necessary to enter the Arcade and proceed through a door into the display room. This door was capable of being locked and, according to Mr Rukman, was usually locked. There was only one door into the display room which was secured by a one-key lock. Inside the display room were a number of glass cabinets in which jewellery was displayed. There was no alarm or closed-circuit television (CCTV) in the display room, but licensed premises adjacent to the Arcade had a CCTV camera covering the area outside the store. The jewellery which was said to have been stolen was taken from the display room.
Mr Rukman went to the store after being alerted to the break-in, and observed that a quantity of jewellery had been taken. He then called police. He provided police with a list of jewellery which had been taken as well as the individual retail prices for each piece of jewellery. The total cost of the items claimed to have been stolen was $33,184.00. Mr Rukman testified that, when he attended the display cabinet on the morning of 2 December 2013, he saw that the door was open and that all the cabinets were open as well. He also observed scratches to the surface of the door to the display cabinet adjacent to the locking mechanism which had not been present when he locked the store on Friday 29 November 2013. The business did not trade over the weekend.
In oral evidence, Mr Rukman said that he had conducted the Gems and Gems business from the premises in Civic since 2012, but prior to that he had conducted it from premises at Gold Creek since 2008. Mr Rukman’s main business was conducting a cafe near to the Arcade. When the business of Gems and Gems moved to Civic,it initially carried insurance cover of $100,000.00. This was subsequently reduced to $30,000.00, and then further reduced to $10,000.00. At the time of the alleged burglary and theft, the insurance cover for theft held by the business was only $10,000.00. Mr Rukman made a claim on this insurance policy after the alleged burglary and theft, and was paid a total of just over $9.800.00. As a result of this alleged burglary, Mr Rukman testified that he decided not to continue with the business of Gems and Gems, and had to pay a penalty of $8000.00 in order to break his lease over the premises.
In cross examination, an ineffectual attempt was made to attack the credit of Mr Rukman on peripheral issues concerning statements he had made to his insurer in effecting the policy of insurance. In my opinion, nothing arose out of cross-examination on this point which would cause me to doubt the evidence given by Mr Rukman. Similarly, there was some attempt to suggest that Mr Rukman had attempted to mislead his insurers by suggesting that, in his claim documents, he had claimed that the door to the display room had been forced open when that was not the case. I accept Mr Rukman’s evidence that the door to which he was referring in this correspondence was the door from Mort Street into the Arcade, and not the door from the Arcade into the display room. Mr Rukman testified that he was told by management of the Arcade that the door from Mort Street into the Arcade had been forced open. There was nothing in this cross-examination which would lead me to doubt the evidence given by Mr Rukman. In cross examination, Mr Rukman agreed that the wholesale value of the jewellery stolen was stated in his claim documents as between $11,000.00 and $15,000.00.
Mr Rukman said, in cross examination, that the business of Gems and Gems was not in any financial difficulty in 2013. His businesses had never previously been the subject of burglary. He denied knowing the accused, or having asked any person to conduct, or arrange for a third party to conduct, a burglary at his business. He also denied knowing a person by the name of Mahmoud Ahsan.
Police investigating the alleged burglary obtained CCTV footage from the camera at the adjacent licensed premises. It is clear that the CCTV footage is discontinuous, perhaps as a result of the camera being motion activated. This showed that, at about 4 pm on Friday 29 November 2013, the accused entered the Arcade and appeared to inspect the contents of the window display inside the display room before subsequently leaving. At about 6.30 pm that night, the accused is seen to return to the display room, and again appears to observe those items in the window of the display room. He also appears to try to manipulate the handle of the door to the display room. He again then left the area. At about 4 pm on Saturday 30 November 2013, the accused again attended the store. He once again walked around the exterior of the display room, before appearing to make another attempt at manipulating the handle of the door to the display room. He then left the area. At about 6.30 pm the same day, the accused, in company with another man, approached the store again. The accused and the other male had a conversation whilst pointing at various items inside the display cabinets. They both subsequently left the area. At about 10 pm that night, the accused attended the store again. He entered the display room and removed items of jewellery from within the secured display cabinets before leaving the area.
Fingerprints located by police inside the display cabinet in the display room were found to match the appellant’s fingerprints.
On 5 December 2013, five days after the alleged burglary, the accused participated in a taped record of interview with police at the City Police Station, during which he was asked questions about his alleged involvement in the burglary at Gems and Gems. The accused was warned by police that he did not have to answer any questions that were put to him, but that, if he said anything, it could be used against him in evidence. The accused willingly answered the questions put to him by police. He denied any involvement in the burglary at Gems and Gems.
On 11 February 2015, the accused was spoken to by Constable Paul Yates about another matter. The accused told him that he was “in debit to a male named Daniel and that he had to go to court soon in relation to the burglary of the Gems and Gems store” and “that he did the burglary of the Gems and Gems jewellery store, but it was an insurance job” for which he was only paid $600.00.
It is obvious from the above that the Crown case against the accused was very strong.
In his oral evidence, the accused gave evidence that on “Wednesday morning” (which I take to be Wednesday 27 November 2013), he was in town and approached by a person named Mahmoud Ahsan, also known as Riaz, who said he had a friend “who had a shop that wasn’t going very well” and that “you’d get $500.00 for it”. The accused said he understood that he was being invited to stage a burglary at the shop so that the owner could claim on his insurance, for which he would be paid $500.00. The accused said he told Riaz “line it up for tonight”. He said that he was told that there was an old wooden drawer with three drawers in it, and the money would be left in the middle drawer. The accused, however, testified that he did not go to the shop on the Wednesday night or the Thursday night. He testified that he attended on the Friday night, being 29 November 2013, and “the doors were unlocked”. He said that he went in and the drawers were locked, so he pulled one open and broke it. There was no money in the drawer so he took the glass out of the cabinets and took about $800.00 worth of jewellery. He later sold that for $150.00, which he used to buy drugs. He described the jewellery as “just crap” and “just all rubbish” and said that nobody wanted it.
The following day, the accused said, he went to the licensed premises adjacent to Gems and Gems with a friend, Paul, who pointed out to him that there was a man in Gems and Gems. The appellant testified “the guy in the shop on Saturday night is the shop owner and he was putting the stuff back on the shelves that I’d taken out like – like that’s in the photos it’s the same from the Friday night – they’re the same. He was putting that stuff back in the shelves on the Saturday night.” He said that, by the time the owner left the shop, it was dark. He then approached the shop and found the doors were unlocked. He said that he opened the middle drawer and found an envelope containing $200.00. He took this money, but also pulled the glass off the display cabinets and took more jewellery. He then left. He later sold the jewellery for $250.00. He used this money to buy drugs.
The accused denied that he had taken anything like $34,000.00 worth of jewellery, saying that, at most, he took $2500.00 worth.
In cross-examination, the accused accepted that he had not told police in the interview on 5 December 2013 that he had attended the Gems an Gems store on 29 and 30 November 2013 and taken items of jewellery with the permission of the store owner as part of an insurance scam. He also agreed that, by the time he told Constable Yates that it was an insurance scam, he was aware of the fact that his fingerprints had been found inside a Cabinet inside the display room. He agreed that he had not received the $500.00, but he had not spoken to either Riaz or the store owner to recover the balance of the money he said he was promised. He said that Riaz was providing support for his partner and children while he was in custody, and that bail conditions had prohibited him from contacting the store owner.
Analysis
In order to convict the accused of these offences, I must reject the evidence given by the accused. The accused cannot be convicted of these offences if there is a reasonable doubt that he was acting with the permission, or at the request of, the owner of the Gems and Gems store when he entered the store and took the jewellery. He cannot be convicted of the offence of burglary if he did not enter the premises as a trespasser. He would not have entered the premises as a trespasser if he had the owner’s permission to enter the premises. Similarly, he could not be convicted of theft if he had the owner’s permission to take the jewellery which he took.
I am satisfied beyond a reasonable doubt that the version given by the accused is not truthful. There are a number of problems with his evidence. First, he gave no evidence that Riaz ever gave him the address of the shop where he was supposed to conduct the pretend burglary. Secondly, he testified that his arrangement with Riaz was that the pretend burglary would take place on the night of Wednesday 27 November 2013. He did not, of course, go to the Gems and Gems store that night. He gave no evidence of any further conversations with Riaz arranging for the pretend burglary to occur on Friday, 29 November 2013 or at any other time. It is implausible that the owner would have left the doors to the display room unlocked on both Friday 29 November 2013 and Saturday 30 November 2013 if the accused had not attended as planned on 27 November 2013, and no other arrangements had been made. In addition, if, as the accused asserted, he had conducted the pretend burglary on Friday 29 November 2013, why would the owner have entered the store on Saturday 30 November 2013 and replaced the items which the accused had removed? That simply makes no sense. On the accused’s version of events, as far as the owner would have been concerned, he had achieved his end on Friday 29 November 2013 and he would have been able to make a claim on his insurance. By replacing the items that were taken by the accused prior to calling police, the store owner effectively stymied the supposedly plan to make a fraudulent claim on his insurance. On the accused’s own version of events, there had been no communications between himself and Riaz or the store owner so that the store owner would have expected him to repeat the pretend burglary on Saturday 30 November 2013. By acting as the accused said he did, the store owner would have placed at risk the benefit he was supposed to receive from this enterprise. It makes no sense to suggest that the store owner replaced the items of jewellery because he had not left any money in the middle drawer on Friday 29 November 2013. If the problem was, from the store owner’s point of view, that he had not left the money for the accused on Friday 29 November 2013, he could have arranged for the money to be conveyed to the accused through Riaz. More importantly, there was no basis for him to think that the accused would return to the store on Saturday 30 November 2013.
I also observe that the accused gave no evidence of ever having met the owner of the store prior to Saturday 30 November 2013, so how he identified the male he saw in the store that night as the owner, Mr Rukman, is entirely unclear.
The fact that the accused lied to police in his recorded interview on 5 December 2013 is also relevant to his credibility. The fact that he lied is not evidence that he is guilty of the offences with which he is charged, but is a fact that I may take into account in assessing his credibility.
I reject the version of events given by the accused in his evidence as being utterly implausible.
I accept the evidence of Mr Rukman that he was not a party to any arrangement for a pretend burglary to occur at his store for the purposes of making an insurance claim. The evidence of Mr Rukman that the business was not in financial trouble was essentially unchallenged. This was not a case where retail premises were covered by a significant policy of insurance, or where an increase in the amount insured took place prior to the alleged burglary; to the contrary, the amount insured had significantly reduced prior to the burglary taking place. There was no evidence, except that of the accused, to contradict the evidence of Mr Rukman that the cost value of the items taken was between $11,000.00 and $15,000.00. I accept the evidence given by Mr Rukman. His version of events is plausible and has remained consistent. I also accept his evidence that, as a result of this burglary, he ceased trading in the jewellery business and surrendered his lease, costing him $8000.00. It is clear that the most that Mr Rukman could have hoped to receive from his insurer after a burglary was $10,000.00. Even if the accused’s estimate of the value of the goods that he took ($2500.00) is correct, Mr Rukman still lost money on the arrangement. All of this appears implausible.
Conclusion
I am satisfied beyond reasonable doubt that, on the night of Friday 30 November 2013, the accused entered the display room which was part of Shop 10, Mort Street and from which the business of Gems and Gems was conducted. I am satisfied that the door to the display room was locked and that the accused somehow manipulated the lock to gain entry. The scratch marks around the lock speak of an implement being used to manipulate the lock. I am satisfied beyond reasonable doubt that he entered the display room without the permission of the owner, Mr Rukman, and as such he entered as a trespasser. Based upon his conduct after he entered the display room, I am satisfied beyond reasonable doubt that he entered into the display room with intent to commit theft of property in that room. I am therefore satisfied beyond reasonable doubt that the accused is guilty of the first count on the indictment.
I am also satisfied beyond reasonable doubt that the accused took a quantity of jewellery, as identified by Mr Rukman, from the store on the night of Friday 30 November 2013. I am satisfied that the retail value of the jewellery was $34,244.00 and that it belonged to Mr Rukman. I am further satisfied that the accused did not enter the store and remove the jewellery on 29 November 2013 as he alleged, and that his entry and the removal of jewellery occurred only on 30 November 2013. I am satisfied beyond reasonable doubt that the accused did not have the permission of Mr Rukman to remove the jewellery, and that he had an intention to permanently deprive Mr Rukman of the jewellery. I am therefore satisfied beyond reasonable doubt that the accused is guilty of the second count on the indictment
Verdicts of guilty will be entered to both counts on the indictment.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 18 June 2015 |
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