R v McLeod

[2008] NSWDC 188

CITATION:	R v MCLEOD [2008] NSWDC 188
HEARING DATE(S):	3, 4, 5 June 2008
JUDGMENT DATE:	5 June 2008
JURISDICTION:	Crime
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Not Guilty.
CATCHWORDS:	Judge alone trial - Larceny - Identification evidence - Voice identification
LEGISLATION CITED:	Evidence Act 1995 s 116, 165
CASES CITED:	R v Kirby [2000] NSWCCA 330 Festa v The Queen (2001) 76 ALJR 291
PARTIES:	Regina Robert Darren McLeod
FILE NUMBER(S):	2008/00000865
COUNSEL:	D: Ms J Healey
SOLICITORS:	C: Mr T M Fernandez

JUDGMENT

1 On 3 June, 2008, the accused elected to be tried by a judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from his barrister.

2 The accused is charged by the Crown that, on 30 August 2007, at Currarong, he:
(1) entered the Currarong RSL Club with intent to commit the indictable offence of larceny;
(2) stole nine bottles of alcohol from the Club; and
(3) maliciously damaged a glass door at the Club.

3 I now set out the principles of law which I apply and the findings of fact which I make for the purpose of arriving at verdicts.

General Principles of Law

4 I am aware that the Crown has the task of proving the accused's guilt beyond reasonable doubt. In other words, the accused is presumed to be innocent of each count unless and until the Crown proves him guilty of that count beyond reasonable doubt.
5 Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on any count, I must return a verdict of not guilty on that count.

6 I am aware that the Crown does not have to prove the truth of each statement of each Crown witness. What the Crown must prove beyond reasonable doubt is each legal element of each count (and the essential facts necessary to establish each legal element).

7 I am aware that the three counts are being tried together as a matter of convenience. They must be considered separately and separate verdicts must be returned.

8 I am aware that, in making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.

9 I agree with the parties that, as a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the accused was one of two offenders who, on 30 August 2007, entered the Currarong RSL Club, stole nine bottles of alcohol, and damaged a glass door at the Club.

Elements of the Charges
In relation to the first count, the Crown has the task of proving beyond reasonable doubt that:
(1) the accused entered (went inside) the Club;