R v Hardy

[2012] ACTSC 125

R v BERNARD HARDY

[2012] ACTSC 125 (19 July 2012)

CRIMINAL LAW – whether disguised man on roof of business premises was equipped with tools to commit an offence – whether the accused intended to use the tools in the course of an offence – whether intention can be inferred from conduct

Crimes (Sentencing) Act 2005 (ACT) s 17
Criminal Code 2002 (ACT) s 315(1)
Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1)
Supreme Court Act 1933 (ACT) s 68B

No. SCC 296 of 2011

Judge:             Nield AJ
Supreme Court of the ACT

Date:              19 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 296 of 2011
AUSTRALIAN CAPITAL TERRITORY )          

R

v

BERNARD HARDY

ORDER

Judge:  Nield AJ         
Date:  19 July 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The accused is not guilty of the charge of possessing articles with intent to use them to commit an offence

2. The accused’s articles be returned to him within 14 days

3. The charge of trespass, to which the accused pleaded guilty, is dismissed without conviction

As to the trial of Bernard Hardy:

1. The Waves Car Wash premises are located at 17 Lonsdale Street, at the intersection of Lonsdale Street with Eloura Street, in Brandon in the ACT.  The car wash premises can be seen in the photographs numbered 1, 3 and 5 in exhibit B.  The location of the premises can be seen in the photograph exhibit C.

2. Mr Robert Sacco is the managing director of the company which operates the Waves Car Wash business in Canberra.  The company operates car wash businesses in New South Wales.  Mr Sacco lives in Sydney for part of each week and in Canberra at the Waves Car Wash premises for the rest of the week.

3. At about midnight between 3 and 4 May 2011 Mr Sacco was in the residence of the Waves Car Wash premises when he heard a noise as if someone was walking on the roof of the Waves Car Wash premises.  He looked outside the window and saw a man walking on the roof.  This man was the accused, Mr Bernard Hardy.  The accused was wearing a black and blonde wig on his head, a white dust mask covering his nose and mouth, a pair of green gloves on his hands, a jacket with a hood, dark pants and shoes and he was carrying a backpack in his left hand. Unsurprisingly, Mr Sacco activated a security camera to capture what was happening on the roof and he contacted police by telephone to report what he had seen.

4. While awaiting the arrival of police, Mr Sacco kept watch on what the accused was doing, and he saw the accused hunched over near the corner of the roof quite close to the residential part of the premises and he heard the sound of metal against metal as if a panel of the roof sheeting was being lifted and he saw movements of the accused’s arms as if he was lifting something.

5. At about 12.11 am on 4 May 2011 Senior Constable Gareth Evans and Constable David McMennemin were directed by ACT Policing Operations to attend at the Waves Car Wash premises following the report by Mr Sacco of seeing the accused on the roof of the premises.  They arrived at the Waves Car Wash premises within a couple of minutes of having been directed to do so.

6. On their arrival at the premises, Senior Constable Evans went to the rear of the premises and Constable McMennemin went to the front of the premises.  Senior Constable Evans saw the accused crouched down on the roof of the premises.  Constable McMennemin also saw the accused crouched down on the roof of the premises and he called out, “Police, what are you doing up there?” to the accused.  On hearing Constable McMennemin calling out, the accused stood up and ran along the roof towards the front of the premises facing Lonsdale Street.

7. On his reaching the edge of the roof of the premises facing Lonsdale Street, the accused jumped from the roof to the ground and then walked towards Lonsdale Street before Senior Constable Evans ordered him to stop and to lie on the ground, which he did.  Senior Constable Evans then placed handcuffs on the accused, before he was joined by Constable McMennemin.

8. After joining Senior Constable Evans, Constable McMennemin searched the accused, finding his wallet, a packet of cigarettes and a cigarette lighter, and then searched the accused’s backpack, finding a pair of pliers, a screwdriver and a metal bar. 

9. After searching him and his backpack, Constable McMennemin asked the accused the purpose of the tools and he replied, “I am an artist and these are my tools”.  Then he asked him his reason for wearing the wig, mask and gloves, and he replied, “So I am not identified by video cameras”.  And then he asked him his reason for being on the roof and he replied, “I am an artist and from the roof I get a perspective of buildings in a different way”.  Then police took the accused to the City Watch House.

10. At the police station, Senior Constable Evans interviewed the accused in the presence of Constable McMennemin.  The interview commenced at 1.43 am and concluded at 2.22 am on 4 May 2011.  Senior Constable Evans asked 214 questions and the accused answered each question.  The interview was recorded.  A transcript of the interview is exhibit H. 

11. After being interviewed, the accused was charged with:

    1. trespassing upon the Waves Car Wash premises, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth); and
    2. having with him, in a place other than his home, articles, namely the pair of pliers, the screwdriver and the metal bar, with intent to use them in the course of a theft or related offence, namely a burglary, contrary to s 315(1) of the Criminal Code 2002 (ACT);

    and, after being charged, he was granted bail to appear on 12 May 2011 before a magistrate in the Magistrates Court to answer the charges.

12. Accordingly, on 12 May 2011 the accused appeared before a magistrate in the Magistrates Court to answer the charges.  He pleaded guilty to the charge of trespassing and not guilty to the charge of having the articles with intent to use them in the course of an offence.  I understand that, at some time, he was dealt with by a magistrate in the Magistrates Court for the offence of trespassing.  The magistrate stood over the proceedings in relation to the other charge to 1 September 2011 for a case management hearing. 

13. Then, on 1 September 2011 the accused appeared again before a magistrate in the Magistrates Court on the case management hearing in relation to the charge of having the articles with intent to use them in the course of an offence and he was committed to this court to stand his trial.

14. On 29 November 2011 the accused filed a Notice electing, pursuant to s 68B of the Supreme Court Act 1933 (ACT), to be tried by a judge alone. I accept that the accused received advice from his solicitor as to the effect of electing to have a trial by judge alone, rather than a trial by a judge and a jury.

15. Also, on 29 November 2011 the Registrar of this court fixed the trial for 16 April 2013.  However, on 12 June 2012 the date for the trial was brought forward to 2 July 2012, later changed to 5 July 2012.

16. Thus, on 5 July 2012 the accused appeared before me to stand his trial.  He was arraigned with the charge and he pleaded not guilty to it.  I heard evidence from:

    1. Mr Sacco,
    2. Constable McMennemin, and
    3. the accused,

    and I received the following exhibits: 

    AStatement 5 May 2011 of Robert Sacco

    BNine photographs showing the Waves Car Wash premises and surrounding buildings

    CAn aerial photograph of the Waves Car Wash premises and surrounding buildings

    DStatement 9 June 2011 of Senior Const. Evans

    EStatement 23 May 2011 of Const. McMennemin

    FThree photographs showing the roof of the Waves Car Wash premises

    GEight photographs showing the accused’s jacket, backpack, wig, dust mask, gloves, pliers, screwdriver and metal bar

    H Transcript of the interview by Senior Const. Evans of the accused on 4 May 2011

    JDisc of CCTV film

    KEight photographs showing paintings by the accused taken from the accused’s website

    LThe metal bar

    1Transcript of the accused’s academic qualifications

    2References from the accused’s employers

    3A print-out of the accused’s website

    after which I heard submissions from the Crown prosecutor and the accused’s counsel and stood over the trial for my judgment. 

17. The essential elements of the charge brought against the accused are that:

    1. the accused had an article with him;
    2. in a place other than his home;
    3. with intent to use the article in the course of an offence. 

18. It is beyond argument that:

    1. the accused had articles with him, those articles being the pair of pliers, a screwdriver and a metal bar; and
    2. in a place other than his home, that is, the roof of the Waves Car Wash premises. 

19. The issue in the trial was whether the evidence would satisfy a tribunal of fact beyond reasonable doubt that the accused intended to use the pair of pliers, screwdriver and metal bar in the course of an offence of theft or burglary.

20. As I am the judge of the facts as well as the judge of the law, I recognise that the following principles, which are designed to ensure that the accused receives a fair trial according to law, govern the trial.

    1. The Crown has the burden to prove the guilt of the accused. 
    2. The accused does not have any burden to prove anything. 
    3. The level or standard or proof is proof beyond reasonable doubt. 
    4. The accused is presumed to be innocent unless and until his guilt is proved by the evidence beyond reasonable doubt. 
    5. I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process.
    6. I must assess the evidence rationally, using logic and common sense. 
    7. I may accept a witness’ evidence wholly or in part or reject a witness’ evidence wholly or in part. 
    8. As he gave evidence during the trial, something that he was not required to do, I must assess the accused’s evidence as I assess the evidence of the other witnesses.  His evidence is not any better or any worst than the evidence of any other witness simply because he is the accused.  By his giving evidence, he did not take upon himself any burden to prove anything.  Even if I reject his evidence, I must not find him to be guilty unless other evidence which I accept satisfies me beyond reasonable doubt of his guilt. 
    9. If the evidence satisfies me beyond reasonable doubt of the accused’s guilt, then the accused loses the presumption of innocence and I must find him to be guilty. 
    10. If, however, the evidence fails to satisfy me beyond reasonable doubt of the accused’s guilt, then the accused remains presumed to be innocent and I must find him to be not guilty. 

21. I do not doubt the evidence of Mr Sacco as to what he saw and as to what he heard.  I accept that he honestly believed that the accused was doing something to gain access into the space between the roof and the ceiling of the Waves Car Wash premises, although, frankly, I have difficulty in seeing what the accused would have achieved if he had gained access into the roof space, because I expect that sarking had been installed before the metal roofing sheeting had been fixed, although, I suppose, he could have then gained access into the main section of the premises. 

22. Also, I do not doubt the evidence of Senior Constable Evans or Constable McMennemin.  Nothing that each wrote in his statement and nothing that Constable McMennemin said in his evidence about what had happened really differed from what the accused said when interviewed or in his evidence.

23. Intention to do something may be proved by words or by conduct or by a combination of words and conduct.  The Crown relies upon the accused’s conduct to prove his intention.  The accused says that his intention cannot be inferred from his conduct alone and that what he says about his intention must be taken into account. 

24. As I have said already, the accused was interviewed by Senior Constable Evans at the police station after being arrested.  He answered every question asked of him.  He admitted being where he was found, what he was wearing and what he had in his backpack, but he denied intending to use his tools to break into the Waves Car Wash premises.  He maintained in his evidence before me that he did not intend to use the tools to break into the Waves Car Wash premises.  As I said during the trial, I consider some of his answers to be implausible, however, the fact that I consider some of his answers to be implausible does not mean that his answers are necessarily untrue or that I should reject his evidence. 

25. One fact that I must take into account in the accused’s favour is that before midnight between 3 and 4 May 2011 the accused was a man of unblemished character.  I must take his character into account in his favour on the question of whether or not the Crown has proved his guilt beyond reasonable doubt and also on the question of whether or not to accept what the accused said about his possession of the tools. 

26. The accused is, as his counsel said, a strange man.  He is a man of hitherto unblemished character, yet he intentionally trespassed on the roof of the Waves Car Wash premises wearing a disguise.  He is a man with a Bachelors Degree in Planning and Design and a Bachelors Degree in Architecture from the University of Melbourne, yet he is unemployed and reliant upon the unemployment allowance from Centrelink.   He is a talented artist who is unable to sell his artwork, although his website says that he has “Millions of Satisfied Customers”, an exaggeration if ever there was one.  He is a loner who walks the streets of Canberra late at night, yet he is well liked by his former employers.

27. Therefore, the question is this – can a valid inference be drawn from the proved facts, those facts being that at about midnight between 3 and 4 May 2011 the accused was on the roof of the Waves Car Wash disguised by a wig on his head, a mask on his face, and gloves on his hands and carrying a backpack, with a pair of pliers, a screwdriver and a metal bar in his possession, that he intended to use the pair of pliers, screwdriver and metal bar in the course of an offence of theft or burglary, when the accused denied intending to use those tools for that purpose?

28. I have decided that, considering everything to which I have referred and notwithstanding the objective evidence of the accused’s conduct, I cannot reject the accused’s evidence that he did not intend to use the tools in the commission of an offence of theft or burglary.  Accordingly, I am not satisfied beyond reasonable doubt that the Crown has proved the essential element of intention in its case against the accused. 

29. In the result, I find the accused to be not guilty of the offence with which he has been charged. 

30. I order that the DPP or police return the accused’s jacket, backpack, pair of pliers, screwdriver and metal bar to the accused within 14 days of today. 

31. As to the charge of trespassing, to which I have referred and mistakenly understood that it had been dealt with, the accused has pleaded guilty to the charge and, as this is his first charge and as he was hitherto a man of good character, albeit it as I have said already, a strange man, although the accused is guilty of the offence, without proceeding to conviction I dismiss the charge, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).

I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:          Katie van den Bos           

Date:                 31 July 2012

Counsel for the prosecution:  Mr B Allison
Solicitor for the prosecution:  The ACT Director of Public Prosecutions
Counsel for the accused:  Mr J Lawton
Solicitor for the accused:  ACT Legal Aid
Date of hearing:  4 July 2012
Date of judgment:  19 July 2012