R v POLANSKI - [2005] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v POLANSKI
Criminal Trial by Judge Alone
Judgment of The Honourable Justice Nyland
19 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Accused charged with offences of aggravated serious criminal trespass in a place of residence and theft - trial by judge alone -whether joint enterprise with co-accused who pleaded guilty - circumstantial evidence - proximity to co-accused insufficient to prove joint enterprise - verdict not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 5, 134, 170(1)(2) and (3); Firearms Act 1977 (SA) s 29A(1); Juries Act 1927 (SA) s 7(1), referred to.

R v POLANSKI
[2005] SASC 361
Trial by Judge Alone
Nyland J:
The Charge:

The accused is charged on information with two offences. The first count alleges the crime of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (CLCA). The particulars of the offence are that the accused, together with Edgar Elias Khammash (Khammash), on 7 November 2003 at Parafield Gardens, entered or remained in a place of residence of David Schrenk-Mariner, as trespassers, with the intention of committing an offence, namely theft, and at the time of the trespass they had in their possession weapons, namely, a replica firearm and a folding knife.
The second count alleges the crime of theft, contrary to s 134 CLCA. The particulars of that offence are that on 7 November 2003 at Parafield Gardens, together with Khammash, the accused dishonestly dealt with property, namely, cannabis plant material, without the consent of David Schrenk-Mariner, the owner of that property, intending to permanently deprive him of the property, or to make a serious encroachment upon his proprietary rights.
Upon his arraignment, the accused entered a plea of not guilty to both charges. The prosecution then asked that a nolle prosequi be recorded with respect to a third count of possessing a silencer, contrary to s 29A(1) of the Firearms Act 1977.
The trial thereafter proceeded before me as a judge sitting alone, pursuant to an election filed by the accused in accordance with s 7(1) of the Juries Act 1927 (SA).
Onus of Proof:
In considering the issues which arise for determination I have at all times borne in mind that the accused does not have to prove his innocence. The accused is to be presumed not guilty of the charges against him unless and until I am satisfied of his guilt beyond reasonable doubt. It is for the prosecution to prove that the accused is guilty of each of the charges against him and nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, nor to show that the accused is probably guilty. The requirement…

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 POLANSKI

Details

AGLC: R v POLANSKI [2005] SASC 361
Case: [2005] SASC 361
Decision Date: 19 September 2005

CaseChat Overview and Summary

In the matter of R v POLANSK, the accused was charged with aggravated serious criminal trespass in a place of residence and theft. The case was heard by a magistrate in the Magistrates Court of South Australia. The accused was arrested on 7 November 2003 and charged with the offences. The accused declined to answer any questions the police put to him during the interview. The accused elected not to give evidence and did not call any witnesses in his defence.

The legal issues the court had to decide were whether the accused was guilty of the charges of aggravated serious criminal trespass in a place of residence and theft. The court had to consider whether the accused was part of a joint enterprise with a co-accused who had already pleaded guilty. The court also had to consider the circumstantial evidence presented by the prosecution and whether it was sufficient to prove the accused's guilt beyond a reasonable doubt. The court had to determine whether the accused had an offensive weapon in his possession and whether he committed the trespass in company with one or more other persons. The court also had to consider whether another person was lawfully present in the place and whether the accused knew of the other’s presence or was reckless about whether anyone was in the place.

The court found that the evidence presented by the prosecution was circumstantial and imprecise. There was no direct evidence linking the accused to the offences. The evidence regarding the location of the jemmy bar and the subsequent dealings with it was unsatisfactory. The destruction of the knife taken from the accused, which might have linked the accused to some of the co-accused’s activities, further weakened the prosecution’s case. The court was also unable to exclude the possibility of contamination of the beanie taken from the accused on which cannabis fragments were detected. The court found that the accused’s proximity to the co-accused at such an early hour of the morning was highly suspicious, but that alone was insufficient to establish a joint enterprise with the co-accused. The court was left with a reasonable doubt about the accused’s involvement in either of the offences and therefore returned a verdict of not guilty to each charge.

The court ordered that the accused be acquitted of both charges of aggravated serious criminal trespass in a place of residence and theft. The court found that the evidence presented by the prosecution was insufficient to prove the accused's guilt beyond a reasonable doubt. The court emphasised the importance of the prosecution proving its case with direct and precise evidence. The court also highlighted the importance of the preservation of evidence and the need for police to take reasonable steps to prevent contamination of evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The accused was arrested on 7 November 2003 and taken to the Elizabeth police station where police conducted an interview with him. The accused then declined to answer any questions the police. I draw no adverse inference against the accused as the result of him exercising the right given to him by law not to answer questions put to him by the police officers.Accused elects not to give evidence: At the conclusion of the prosecution case, Mr Sykes, for the accused, made a submission that there was no case to answer. In the alternative, Mr Sykes asked that I give myself a Prasad direction due to the unsatisfactory nature of the evidence given by the prosecution witnesses. I subsequently ruled that the accused had a case to answer and declined to give myself a Prasad direction. The accused then elected not to give evidence nor call any witnesses in his defence. I draw no adverse inference against the accused as a result of his election not to give evidence at the trial.The charges: The first charge against the accused is that of aggravated serious criminal trespass in a place of residence. Section 170(1) CLCA provides that a person who commits a serious criminal trespass in a place of residence is guilty of an offence. Section 170(2) provides that A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if –(a)the person has when committing the trespass, an offensive weapon in his or her possession; or(b)the person commits the trespass in company with one or more other persons; or(c)another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place. There are a number of elements to be proved by the prosecution with respect to a charge under s 170(2) CLCA. First, the prosecution must prove that the accused entered or remained in a place of residence. Section 170(3) CLCA defines a place of residence for the purposes of this charge as:… a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence. The place of residence in this case is alleged to be the house property situated at 20 Tecoma Court, Parafied Gardens, in the State of South Australia. David Schrenk-Mariner says in his statement (Exhibit P16) that he is the owner of that house and that he has lived there for the last nine years, although he was absent from those premises from about 6 pm on 6 November 2003, to about 3.15 pm on 7 November 2003. There is no dispute that this was a place of residence as defined by the Act and I so find. The defence maintain, however, that there is no evidence to prove that the accused entered or remained upon those premises at any time and I will return to that aspect of the matter later in these reasons. Secondly, the prosecution must prove that the accused entered or remained on those premises as a trespasser, and thirdly, that he knew he was a trespasser. A trespasser is a person who deliberately enters a place without authority or permission to do so.

Decision

Reasons for decision

Further, there was a paucity of evidence about the knife which the police say was located upon the accused. Constable Anesbury was unable to give any description of it, other than it was a fold-up and not a multi tool. There was no photograph taken of the knife and it had since been destroyed.Conclusion: I am satisfied that Constable Anesbury and Constable Groves were honest witnesses who did they best they could to give an accurate account of what occurred. Regrettably, however, there were aspects of their evidence which was imprecise, particularly with respect to the location of the jemmy bar and the subsequent dealings with it. The evidence as to the dealing with the items seized was generally unsatisfactory, as evidenced by the destruction of the knife taken from the accused. The prosecution was also unable to exclude the possibility of contamination of the beanie taken from the accused on which cannabis fragments were detected and which might otherwise have been probative of the guilt of the accused. The accused’s proximity to Khammash at such an early hour of the morning is highly suspicious, but that alone is insufficient to establish a joint enterprise with Khammash. I am unable to be satisfied that the accused had the jemmy in his possession, nor can I be satisfied that he knew that Khammash had a firearm in his possession. The knife taken from the accused was a significant piece of evidence which might well have linked the accused to some of Khammash’s activities, but in view of its destruction, and the inability of the police to give any meaningful description of it, I am unable to find that it was an offensive weapon according to s 5 CLCA. Having considered all of these matters, I am left with a doubt about the role that the accused might have played in the activities undertaken by Khammash on the night in question. The evidence falls short of satisfying me to the requisite degree that the accused was involved in a joint enterprise with Khammash which included the unlawful entry upon the premises at 20 Tecoma Court and the theft of the cannabis therefrom. I am therefore left with a reasonable doubt about the accused’s involvement in either of these offences and I therefore return a verdict of not guilty to each charge.

Ratio Decidendi

Legal Principle Established

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