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 committed, the onus shifts to the accused to prove two things. He has to prove not only that he believed that there was no-one in the place, but also that he had reasonable grounds for that belief. That brings me to the circumstances of the offence.

7 On 29 September 2008, Mrs Campbell and her husband Mr Brougham were at home in the afternoon. Mr Brougham left at about 5.30pm. When he left, Mrs Campbell was in a study on the third storey of their home. Some time after Mr Brougham left, she heard some noises from downstairs. As it later turns out, this was the accused in the act of committing the offence of breaking, entering and stealing. Mrs Campbell called out but received no answer. She attempted to get her two dogs to go downstairs but they merely went down one flight of stairs before returning. Mrs Campbell decided that the noise was unexplained and went back to work.

8 In fact, what had happened is that the accused saw Mr Brougham leave the house. He looked through one of the windows and saw a bag on a chest of drawers. He attempted to break into the house through a window, removing a fly screen in the process, but because that window was deadlocked he was unable to open it. He therefore took a garden stake, reached in through the dog door fitted at the base of a set of French doors on the ground floor of the premises, put part of his body through the dog door and was able to lift the bag off the chest of drawers using the tomato stake. He was able then to take the bag out of the premises and he went away.

9 The unchallenged evidence is that the accused broke through the dog door, at least in a legal sense, and entered into the premises when part of his body went through. He then stole the bag. I find beyond reasonable doubt that he broke, entered and stole in the way I have just described - that finding being quite easily made because it is based not only on the Crown case but on what Mr Kean himself said in evidence today.

10 If I assume that the accused believed that no-one was home the issue before me is therefore a very narrow one - has the accused proved on the balance of probabilities that he had reasonable grounds for believing that no-one was home.

11 Mr Kean said that he formed the opinion that having seen Mr Brougham leave he did not think there was anyone left behind. If that was the state of the evidence then perhaps there would be evidence to justify a conclusion that the accused believed, that the home was empty after he had seen Mr Brougham leave. But Mr Kean also said other things, in particular he said that as he broke into the home there could have been someone home, and there couldn’t have been - indicating that the did not really give any consideration to whether or not there was anybody home. It is important to understand that Mr Brougham’s evidence was that, when he left, the lights were on in the kitchen dining area, the area where the bag was kept, and also on the stairway leading up to the study where his wife was working.

12 Even if the accused believed that there was no-one home when he committed his offence, he has not satisfied me on the balance of probabilities that there were reasonable grounds for that belief. Seeing one person leave a home says very little about whether there was anyone left behind. The home is a large one and whilst it is entirely possible that it was occupied by one person, given the size of the home, it is much more likely that it was occupied by more than one person.

13 Added to that is the circumstance that the lights were on. In those circumstances, even if the accused formed the positive opinion and had the positive believe that there was no-one left in the home after he had seen Mr Brougham leave, I am not satisfied on the balance of probabilities that that belief was a reasonable one. The evidence indeed would point to the contrary - the size of the home and the fact that the lights were on would tend to suggest that someone was home rather than to the contrary.

14 The result is that the accused is guilty of the offence of count 1 on the indictment. I note also he has pleaded guilty to the offence of count 3 - it is actually numbered count 2 but the count relating to the larceny of the Mercedes motor vehicle.

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