R v Shane Cringle
[2011] ACTSC 208
•6 December 2011
R v SHANE CRINGLE
[2011] ACTSC 208 (6 December 2011)
EX TEMPORE JUDGMENT
No. SCC 47 of 2010
No. SCC 47A of 2010
Judge: Higgins CJ
Supreme Court of the ACT
Date: 6 December 2011
IN THE SUPREME COURT OF THE )
) No. SCC 47 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 47A of 2010
THE QUEEN
v
CRINGLE
ORDER
Judge: Higgins CJ
Date: 6 December 2011
Place: Canberra
THE COURT FINDS THAT:
The accused is guilty on counts one, two, three and five of the indictment dated 24 October 2011.
This is a trial by judge alone as the accused has waived his right to trial by jury. That means that the function that I perform is a dual function. One is to instruct myself as if I was a jury, and then, to decide the case as a jury would. In that context, I have to give myself certain directions and the first of those to note is that the onus of proof of the accusations made in this indictment is upon the prosecution. It remains with the prosecution throughout the trial.
The burden of proving anything never shifts to the accused. Whether the accused gives evidence or not, as he did, whether he makes a statement to police or not, as he did; the burden still remains with the prosecution and does not shift to him. What follows from that, of course, is that even if I were to disbelieve everything the accused told me, the accused would still have to be proved to be the perpetrator of these offences by the prosecution. That burden would have to be accepted by the prosecution to a standard that is the criminal standard; that is, beyond a reasonable doubt.
If, at the end of the day, after considering all the evidence, a reasonable doubt arises as to any element of any of the offences, the accused must be given the benefit of it. In that event, an acquittal on that count would have to follow.
The elements of the offences which are charged are these; first of all taking the first count which is commonly referred to as burglary, and it is entering a building, 21 Boote Street, Spence, as a trespasser, with intent to commit theft of property in that building.
The first of those elements, trespass, is to enter without the consent of the owner in circumstances where there is no legal justification for so doing. Certainly, the circumstances which Mr Neame gave evidence of would amount to such an entry. There is certainly no likelihood that anybody would suggest that the person found by him had any legal justification for being there. In fact quite the contrary, you might as well have a black mask and a bag inscribed with the word, “loot.” Clearly that person was a burglar.
And the intent to commit theft; that often is demonstrated by the actions of the person concerned. If the person had entered with the intent just to have an exploration, there would not be an intent to commit theft. But in this case, clearly a wallet and a set of keys were taken away from the premises.
That raises the second element which is theft. Intent is something where somebody wants to do or his in mind to do. Theft is the taking of property without the consent of the owner and with intent to permanently deprive the owner thereof.
One wonders why the trespasser would have taken the keys unless the trespasser intended to take the car. Nevertheless, that is what happened. It may be that the trespasser thought that to take the keys might inhibit being followed. In any event, the car was not taken, obviously because the offender was disturbed in the middle of the taking. The wallet of course is a different matter.
That is the first offence, that is, the intent to commit theft of property. The intent, as I say, is indeed evidenced by the theft itself and that theft itself forms the second count; that is, taking property dishonestly.
“Dishonestly” means with no claim of right, with no legal justification, taking property belonging to Mr Neame with the intent of permanently depriving him of that property. There is certainly no likelihood that, other than it being found as it was, the property would have been returned to him by the person who was in the premises. One would infer from that, that the person had the intent to steal that property in that sense.
The third count is a count of attempting to enter property, 14 Edmunds Place, Spence. An attempt is sufficiently proved if the actions of the persons concerned are directed towards the commission of the completed offence other than being a mere preparation to do so. Clearly, if one is talking about entering as a trespasser, the entry may be effected by any part of the body. It is not required that the whole of the person of the trespasser be upon the premises. It is enough that any part of the person is. It is the building with which we are concerned here, not the premises themselves which include the surrounding grounds.
A person who breaks a window is, even without breaking it, a trespasser, because it is trespass to damage the property or to impact the property without legal justification. In this case the window was of course broken. The question to be inferred then is whether there was intent to commit theft of property in the building.
Theft has the meaning I have just mentioned. Intention has the meaning I have just mentioned. That issue will have to be established also.
The fourth count is causing damage to property, namely, the glass window, to which the accused has pleaded guilty. That is simply that the damage was done; it was done deliberately and it was a glass window at 14 Edmunds Place, Spence. I need say no more about that.
The fifth count is one in which the offender must, in order to be guilty of it, “have with him,” (the word “have with him” is equated with possession, but it is a more loose concept), “an article,” (that may be any article), “with the intent to use it in the course of in relation to a theft or related offence”. In this case, that accusation would be that these items, or some of them, were in the possession of the accused with the intention by him of using them in relation to a theft. That is, either for the purpose of entering premises to take items, or, it might be; although in this case I do not think it is appropriate, to take them away; such as taking a bag, in which the stolen property might be placed. That is not really the case here. To my mind, the items which are alleged to be such items are: the black glove; the torch; the knife and; either the punch or the item which seemed to be some sort of exercise weight, which might be used to break windows.
That being the elements of the offence, the crown sought to prove them by the evidence of certain witnesses. I will just mention those witnesses and briefly summarise the evidence they gave.
Mr Neame was awakened by his wife who said that someone in the house. He heard movement himself. He turned on the light and walked up the passage and saw a person in the kitchen area who ducked behind a wall. The person was, he said, about 180 centimetres tall. That might be a little bit of exaggeration, but in any event, certainly not quite as tall as the description he gave over the telephone. That is Mr Neame’s description; a caucasian, a male, a black cap and clothing. He saw his face as he ducked away. He was not asked to identify the accused in a line up or anything of that kind later so that cannot be taken as evidence identifying this accused, although it is not inconsistent with his description.
Mr Neame noticed that the kitchen window was open after the offender left, and he quite sensibly let him go and rang the police. I have heard the recording of his conversation with police and he said that the person then appeared to him to be about five feet and seven inches, black cap, jeans, shirt, caucasian, and looked 17 or 18.
Mr Neame saw nothing of any identifying nature; like tattoos or beards or anything of that kind. And the person was out over the back fence. He did not touch anything, not that he need have bothered. The police apparently did not seem to bother to forensically examine either the window or any part of the place inside where the accused, or the offender, having been described as not wearing anything on his hands, might well have left some identifying material. As I have already remarked, this is a defect in the prosecution case, and that has been conceded to be so.
Mr Neame also noted that the offender was carrying a small light which emitted a white blue-ish light.
Bags on the breakfast bar were disturbed, as well as a chequebook on the bench. The photograph clearly shows that one cheque form has been torn out with the butt to it. Mr Neame did not then notice the missing items, that is, the wallet and the BMW keys, but he was later informed that a person had been apprehended with such. He was able to identify those items as his and they were indeed missing. There is no doubt those items came from his premises and were later found in the possession of the accused.
Also of significance is the fact that the fly screen was cut, and was clearly cut in a U-shape. The window, Mr Neame said, had been left unlocked and partly open. It would have been quite simple for the intruder to have cut the fly screen, as was done, and enter that way. That is presumably the way in which the entry was effected. The window was fully open when Mr Neame next saw it, and it is quite clear that the offender had done that. The relevance of that is that Mr Cringle was later found in possession of various items which included a bladed tool. It is not inconsistent with all of that but he was capable of cutting that fly screen and entering through that window.
Passing on to the next premises, Ms Sophie Singh gave evidence of hearing a loud bang about 5.30 or thereabouts in the morning. Ms Singh went downstairs, along with her husband, and they noticed the window that was clearly broken to the lounge room at the back of the house. There were Christmas gifts about there. There was a Christmas tree which could be seen through the window and there was clearly an attempt to do something. It may be to gain entry or to gain a sufficient access to obtain things inside. But whatever was the truth about that, there was nothing missing, but clearly the window was broken.
Clearly there was a bang. Ms Singh said it was about five minutes or so, in fact even up to 10 minutes after the bang before the couple went downstairs to find out what had been happening.
Sergeant Tink, who attended at Boote Street, Spence, was summonsed first at about 5.04 am. He noticed the fly screen. He later gained possession from the accused of the wallet and keys and Mr Neame identified them. He said forensics were logged to attend, but it does not seem that they did. Senior Constable Bowden had spoken to Sergeant Tink, and observed the accused in the area of 14 Edmunds Place coming out of the garage area and walking away. His description of the accused was as having no cap. Indeed a cap was not found there but was found at 23 Boote Street Spence.
The accused walked out of the carport; he had no bag with him. He went down the laneway, which led to Scattergood Place, and when he was found there, as the police reasoned he might be going there, the police went around and intercepted him. He did have a bag with him, which was the blue and black bag. He was searched and the bag was searched. On his person there was the multi-tool, the glove and a cigarette that I presume was in the packet. The bag contained, of course, the wallet and car keys amongst other items which are tools, a steel pipe or spike, the weight and other things including sunglasses, hat, lighters, tape and a couple of other items which are listed in the property report. Photographs were taken.
Constable Leach corroborated, in effect, that which Senior Constable Bowden had seen. She saw the male person turn and run up the walkway, and described him in a similar way. The only other car she saw in the area, or other person she saw, was the person who was in the car; a male who was delivering newspapers. When the accused was found he was cautioned, property was logged, and was later taken back and engaged in a record of conversation with Constables Milner and Wilkinson. Constable Wilkinson was not called but clearly had no different evidence to give than what was given by Constable Milner.
Senior Constable Houlihan could only add that it was Senior Constable Bowden who searched the accused and could give no other really interesting details. Constable Milner took the statement from the accused which was cross-examined on by Mr Hickey and contained some matters which will be referred to a little bit later. In effect, he said he knew nothing about the burglary at Boote Street. He admitted - he did not really admit that he had broken the window - but did not deny it.
He said he was basically wandering around having had an argument with his partner and he did not quite explain when it was that that argument had taken place; I think he said about 10.00 pm. Accepting that to be not accurate, it was some four to five hours before he was found in Scattergood Place. The difference between those two times given the distance between the various addresses is not really explained.
In any event, I bear in mind that the recollection of witnesses, particularly that of an accused giving evidence, may not always be accurate and there may be good explanation for that; particularly where an accused, as this accused says, he was, affected by drugs. That would clearly render his recollection less than perfect. I do, however, also bear in mind that he was not obliged to speak to police; he was warned of that. Indeed, that is the law. Had he chosen not to speak to police at all I could draw no adverse inference from that.
The accused gave evidence in these proceedings; he was not obliged to do that, and indeed, I could have drawn no adverse inference from the fact that he gave evidence in these proceedings had he chosen not to do so. Having said that, I will have a look at the evidence that he gave and evaluate it as any other witness’ evidence would be evaluated.
The accused says that he was at 5/25 O’Neill Street, Spence. It has been noted on the map the proximity of that address to the other two addresses concerned. It is about equi-distant from each of them, and each of them is about equi-distant again from the other. It is pretty well a triangle. He says that he argued with Ms Haber, particularly about the fact he stole some of her Benzodiazepines and took them. He also added later that he had in fact taken a few more and taken them with him. That was about 10.00 pm he thought.
The accused had a car over in Emu Ridge which had broken down near, or, at the premises of a Mr Jake Fleury. He got his tools together to go to his car to fix it, he said, then to either drive to Lanyon or stay there, or maybe, I suppose, even come back to where he had come from. But whatever it was, that was not a particularly fixed intent. He had a vague idea of where he was going and says he got lost. He is not clear where it was that he wandered to or about. He has a vague memory of it. He remembered, he said, something about smashing the windows. The pills were wearing off. He cannot recall or assist as to why he might have done that.
The accused agreed that he had an Aldi re-useable shopping bag, an Aldi plastic bag and a Footlocker plastic bag. He denied that he had with him, when he left the premises, the blue/black bag, which was later found in his possession, and which was later found to contain the incriminating wallet and keys. He said he had never seen the black cap before, though he had some baseball caps. He said as to some of the items that were found in the bag he was not sure whether they were his. That was the weight and the sunglasses. He was sure that the two lighters were his and the packet of cigarettes containing a cigarette.
The accused agreed the multi-tool that was found on his person, and the glove, were his. The head lamp which was found in the bag he agreed was his. The steel peg he did not think was his. The screwdrivers, multi-grip pliers, ordinary pliers and flat screwdriver he agreed were his. He said when he left O’Neill Street he had no intention of breaking in anywhere and recalls nothing about 21 Boote Street, though he did recall being at the back, he said, of 14 Edmunds Place, and knows that he broke the window.
In cross examination, the accused was taken to his statement to police where he had admitted to smoking some marijuana earlier but not to any other drugs. It may be not of great significance and I, of course, discount entirely the fact that he said he was accompanied by a mop. There does not seem to be any reason for me to have found that and indeed it probably was a mistranslation of something which was said. Nobody was able to explain that anyway.
The blue/black bag, he said, he found in the alley. Here it gets a bit complicated, because the accused has, in effect, given two different versions of coming across the blue/black bag; one being that he located it after he had been in the premises at Edmunds Place, and the other that he found it before then and left it outside before he went in. The latter seems to have become the preferred version; in any event, there is that difference.
He agreed in cross-examination that the tools which were in the bag might, if he had carried them in a bag with him, made a noise, and that could be why he had left them outside. He was aware that his multi-tool had a knife on it. There was some difference too in relation to the wallet as to whether he pulled it out of the bag before he had entered the premises at Edmunds Place or whether he had only found it afterwards when the police produced it from the bag. There seems to be some discrepancy in his statement about that and indeed in his evidence.
He agreed he may have even had a sleep otherwise than being wandering around for four to five hours. Either way, his movements are somewhat murky and perhaps tellingly, in his latter part of his cross examination, he agreed that his recollection was so bad, no doubt as a result of the Benzodiazepines that he had taken, that he may have entered the premises at Boote Street but could not now remember it. In re-examination he said he had cobwebs on his clothing which may indicate that he had been rolling around on the ground.
In submissions Mr Hickey simply pointed out the fact that accused was found in possession of the stolen property, that is, the property clearly stolen from Boote Street. His explanation for that was less than satisfactory, and indeed one could therefore infer from that that he was the person who had taken it. He matched the description given and the black cap was found very close to 21 Boote Street, clearly left at that scene, so there was no mystery about the fact that when he was later apprehended he had no cap.
Mr Hickey pointed out the inconsistencies in the accused’s record of interview; in particular about his possessing and then dealing with the blue/black bag, and, not to put too fine a point on it, the story about wandering about for four or five hours or more, just simply trying to find Belconnen.
Mr Livingston, on behalf of the accused, suggested that nevertheless there was a reasonable doubt, or should be found to be so, having regard to the accused’s evidence and indeed the gaps in the evidence, otherwise particularly the fact that the prosecution had not taken steps which might otherwise be thought to be reasonable about testing for DNA and/or fingerprints. Of course, one understands that such things may or may not produce any incriminatory evidence.
It was also pointed out that, even though Mr Neame had had a good view of the offender in his premises, it would have been prudent to have arranged an identification parade. It does not appear that any was suggested, certainly none was arranged, and no explanation was given for it not being so.
Mr Livingston further suggested that the breach in the window at Edmunds Place was not really consistent with someone trying to enter it but perhaps more with someone doing something random. There was no evidence that any of the goods that were on display within the window were within reach, and again, it was not obvious as to why nothing was taken or nothing pursued.
I acknowledge that Mr Livingston’s points are well made, but nevertheless it seems to me that the evidence given by the accused does not persuade me that anything he said was either convincing or believable. It is hard to believe that he would have left his premises, or the premises of his girlfriend, with all these items, even allowing for the non-presence of the blue/black bag, simply for the purpose of going over to Emu Ridge and then find himself still wandering about four to five hours later in the same suburb of Spence.
In short, I do not believe that he left the premises as early as he said he did. I believe he left later than that with the tools and other items with the intent to find a place to burgle. I believe he did so, firstly at Boote Street and he took the wallet and the keys which were later found in his possession, and that is recent possession of stolen goods, which certainly justifies an inference that he was the thief.
There does not seem to be any credibility in his story that whoever was the thief had conveniently left these goods about for him to find and that he, by coincidence, came across them, was unhappily found by police with them, and then wrongly blamed for the offence which those items evidenced.
As far as the entry or attempted entry to Edmunds Place is concerned, it may be that the accused thought that the breach he had made in the window might allow him to open it, not realising it was a fixed window, or it may be he thought he could reach inside sufficiently to gain access to anything that might be of use or concern to him that he could take. Either way, I cannot see any other purpose he might have had in breaking the window other than to gain entry with a partial entry in the way in which I have mentioned it or perhaps even possibly full entry.
There is no doubt that it would have made a great noise and he conceded that it had, so he may well have thought that it was time to leave. In leaving, he saw the police, and I am sure that he probably wished he had not picked the bag up again. But he did, and was found in possession of it by police who, quite with foresight, circled around into Scattergood Place and found him there. As I say, his explanation for all of these things is totally unconvincing.
That leads me to the last matter which is the possession of the items that he had. I accept that many of the items may have been for purposes other than breaking into houses, but certainly several of them were, in my view, plainly in his possession for that purpose; particularly the multi-tool and certainly glove. If you are going to break a window, it would be nice to have a glove on your hand rather than do it with your bare hand.
I note he apparently had bare hands when he was at Mr Neame’s place although it may of course have been one bare hand. Mr Neame could not, I imagine, be terribly certain about that, but he did not need to break anything there to enter, so there was no need for the glove. The glove may have been simply a contingency plan. I am satisfied that count is made out at least in the sense of the multi-tool and possibly several of the other items.
It follows that I find the accused guilty on each of the counts with which he is charged, bearing in mind there is of course a plea of guilty to the fourth count.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 3 January 2012
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr R Livingston
Solicitor for the Defendant: ACT Legal Aid Office
Date of hearing: 5 and 6 December 2011
Date of judgment: 6 December 2011
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