R v Kean - [2009] NSWDC 435

CITATION: R v KEAN [2009] NSWDC 435

HEARING DATE(S): 16 November 2009

JUDGMENT DATE:
16 November 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The accused is found guilty of count one on the indictment

CATCHWORDS: CRIMINAL LAW - Judgment - Judge alone trial - Aggravated break enter and steal

LEGISLATION CITED: Crimes Act 1900

PARTIES: The Crown
Clayton Kean

FILE NUMBER(S): 2009/11/0795

COUNSEL: K Magnus - Crown
K Buckman - The Accused

SOLICITORS: Director of Public Prosecutions
O'Brien Solicitors

JUDGMENT

1 HIS HONOUR: This morning when the matter of Clayton Kean was called on for trial, the Crown presented an indictment. Mr Kean pleaded not guilty to a charge of aggravated break, enter and steal but pleaded guilty to a charge in the alternative; that is, break enter and steal, as well as pleading guilty to the larceny of a motor vehicle.

2 The Crown did not accept the plea of guilty to the alternative count in full satisfaction of the indictment, and so the trial proceeded. Mr Kean had previously made an election that the trial would be held before a judge alone, that is, without a jury. The Crown consented to that election. The relevant election was filed in the court on 13 November, well before the date set down for the trial. Before the trial got underway I satisfied myself that Mr Kean had received advice from his lawyer as to the election he had made, so the trial proceeded before me without a jury.

3 The circumstance of aggravation relied on by the Crown is that Mr Kean was alleged to have known that there was a person home when the offence was committed. In fact, the evidence revealed that a Mrs Campbell was at home at the time Mr Kean broke into her home and removed a bag and its contents. Of course, it is not enough for me to find that someone was home. The relevant issue in this case was whether Mr Kean knew that someone was home.

4 In contrast to what is almost invariably the case as far as the criminal law is concerned, as far as this particular circumstance of aggravation is concerned the onus is not on the Crown but on an accused. The circumstance of aggravation relied on by the Crown is to be found in s 105A(1)(f) of the Crimes Act. It reads:

“The alleged offender know that there is a person, or that there are persons, in the place where the offence is alleged to be committed.”

5 Subsection 2A provides that if there is a person in the place, and I quote:

“The defendant is presumed to have known that fact unless the defendant satisfies the court that he or she has reasonable grounds for believing that there was no-one in the place.”

6 As it is clearly the case, and I find beyond reasonable doubt, that Mrs Campbell was in the place where the offence was committed at the time it was…

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.

Continue reading R v Kean

Details

AGLC: R v Kean [2009] NSWDC 435
Case: [2009] NSWDC 435
Decision Date: 16 November 2009

CaseChat Overview and Summary

In the matter of R v Kean, the defendant was tried by a judge sitting alone in a court in New South Wales for aggravated break and enter and steal. The case involved an incident where the defendant unlawfully entered a dwelling house with the intent to commit an indictable offence therein. The defendant was alleged to have stolen a handbag from the premises.

The legal issues before the court were whether the prosecution had proved beyond reasonable doubt that the defendant had committed the offence of aggravated break and enter and steal as charged. The court had to determine if the evidence was sufficient to establish the defendant's guilt of the offence of aggravated break and enter and steal. Additionally, the court needed to consider whether the defendant had the requisite intent to commit an indictable offence at the time of the entry.

The court found that the prosecution had discharged its burden of proof beyond reasonable doubt. The evidence presented demonstrated that the defendant had unlawfully entered the dwelling house with the intent to commit theft, an indictable offence. The court found the defendant's actions to be consistent with the elements of the offence of aggravated break and enter and steal. The court rejected the defence's arguments and found the defendant guilty on the charge. The accused was sentenced to a term of imprisonment for the offence.

Orders

Orders of the court

The accused is found guilty of count one on the indictment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KEAN [2009] NSWDC 435
HEARING DATE(S):	16 November 2009
JUDGMENT DATE:	16 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The accused is found guilty of count one on the indictment
CATCHWORDS:	CRIMINAL LAW - Judgment - Judge alone trial - Aggravated break enter and steal
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown Clayton Kean
FILE NUMBER(S):	2009/11/0795
COUNSEL:	K Magnus - Crown K Buckman - The Accused
SOLICITORS:	Director of Public Prosecutions O'Brien Solicitors