R v Swynczuk - [2016] SADC 138

District Court of South Australia
(Criminal)
R v SWYNCZUK
Criminal Trial by Judge Alone
[2016] SADC 138
Reasons for the Verdicts of His Honour Judge Chivell
24 November 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
Accused charged with serious criminal trespass in a place of residence and theft. House of a person known to the accused had been entered in the owner’s absence and five guns, ammunition, knives and other property stolen. Accused arrested approximately two weeks later in a car in which three of the guns, some of the ammunition, the knives and other items stolen from the house were found. The other guns were located at the accused’s house.
Circumstantial evidence – recent possession – lies as evidence of consciousness of guilt – alibi evidence. Evidence of accused rejected beyond reasonable doubt.
Verdict: guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 134(1), s 170(1); Juries Act 1927 (SA) s 7, referred to.
R v Costi (1987) 48 SASR 269; Browne v Dunn (1893) 6 R 67; MWJ v R [2005] HCA 74, (2005) 80 ALJR 329, (2005) 222 ALR 436; Woolmington v DPP [1935] AC 462; R v Wanganeen (1988) 50 SASR 433; R v Bruce (1987) 61 ALJR 603; Peacock v R (1911) 13 CLR 619; Plomp v R (1963) 110 CLR 234; R v Baden-Clay [2016] HCA 35, considered.

R v SWYNCZUK
[2016] SADC 138

George Swynczuk is charged with serious criminal trespass in a place of residence[1] and theft.[2] He pleaded not guilty to those charges and elected to be tried by a judge sitting without a jury.[3] He was also charged with damaging property[4] and threatening a person involved in a criminal investigation.[5] He pleaded guilty to those charges.
[1]    Criminal Law Consolidation Act 1935, s 170(1).
[2] Ibid, s 134(1).
[3]    Juries Act 1927, s 7.
[4]    Criminal Law Consolidation Act 1935, s 85(2).
[5] Ibid, s 248(2).
The first two offences are alleged to have occurred on 21 March 2015 at Somerton Park. The last two offences were committed at Enfield on 3 April 2015. The prosecution says that the two incidents are connected, and that the circumstantial evidence proves that Mr Swynczuk was involved in both.
On 21 March 2015, between about 5 pm and 9 pm, the house of Mr Ryszard Tytula and his wife at Somerton Park was the subject of a serious criminal trespass. Mr Tytula is a musician. Between those hours he was at the Parks Community Centre at a performance by the Polish Theatre. He was a member of the orchestra. The performance had been widely advertised in the Adelaide Polish community.
When Mr and Mrs Tytula returned home, they discovered that the house had been entered and a gun cabinet in the laundry had been forcibly opened. Five of his rifles[6] were stolen. The trespasser(s) had also entered Mr Tytula’s locked shed at the rear of the property. The key to the shed was kept in the kitchen on a rack.[7] Inside the shed was a large amount of ammunition which was stored in a large locked safe along with reloading equipment, including gunpowder.[8]
[6]    A Sportco bolt action .22 calibre repeating rifle, Reg. No. R465; a Stirling bolt action .22 calibre repeating rifle, Reg. No. A004304; a Stirling bolt action .22 Magnum calibre repeating rifle, Reg. No. 613945; a Wetherby bolt action 30-06 calibre repeating rifle, Reg. No. VL23254; a Wetherby bolt action 243 Winchester calibre repeating rifle, Reg. No. VS159422.
[7]    T 39.
[8]    T 38-9.
A wall inside the shed had been damaged when the safe attached to it was broken away from its fixings, probably with the use of a jemmy bar or crowbar, and stolen with its contents. It is unlikely that a single person could have moved the safe. A small sledgehammer was found near the damaged wall. Mr Tytula said it was not his.[9] It had yellow plastic tape around the handle.[10] There were no fingerprints on it.[11] The yellow tape is the same type, and appears to be the same colour, as tape wrapped around the handle of a red plastic torch which was in Mr Swynczuk’s possession on 2 April 2015, and which he admits was his.[12]
[9] T 133-4.
[10] Exhibit P6, photographs 14-16.
[11] Brevet Sergeant Milde, T 35.
[12] T 81.
A number of other articles were stolen from the house and shed.
There is no dispute that a serious criminal trespass and theft occurred on 21 March 2015. The only issue is whether Mr Swynczuk was involved as a principal offender in the two offences.
On 3 April 2015 at about 2:50 am, police officers Ryan and Murray were tasked to a location at Central Avenue, Enfield. A caller to the Communications Centre reported a tow truck being damaged in the street. When they arrived, the damage was obvious. The tow truck was daubed with red spray paint. The words ‘last Worning’ (sic) were written on the sides and front of the cabin. Both windscreen wipers were bent. There was grey duct tape on the windscreen, and there was some sort of filling substance in the keyhole and seals of the door. Both front tyres had been punctured and were flat. A large wrench was found on the ground nearby. It had red plastic tape around the handle. This appears similar in type to the yellow tape around the handle of the small sledgehammer.[13]
[13] See Exhibit P3, photograph 38.
A small plastic bag was tied to the door of the truck with a white shoelace. The bag contained live ammunition. This was clearly part of the ‘worning’.
The tow truck was owned by a business of which Mr Jamili Khododad is the owner. The company is KHZ Wreckers, and operates at 2 Boolcunda Avenue, Salisbury Plain.[14]
[14] MFI P9 - Agreed Facts 1 & 5.
Agreed Facts 2, 3 and 4 are as follows:
2.    At 10.32am on 25 March 2015, at 18 Cross Keys Road, Brahma Lodge, the accused George Swynczuk was arrested by Police and charged with being unlawfully on premises and theft of car batteries, tyres and containers of petrol from Jamili Khododad’s wrecking yard at 2 Boolcunda Avenue Salisbury Plain some time between 2am and 5:20am that morning.
3.    On 25 March 2015, the accused George Swynczuk was granted bail in relation to those charges and released from police custody. The bail agreement included a condition that the accused remain at home between the hours of 9pm and 6am.
4.    On 21 October 2015, the accused pleaded guilty to unlawful possession of tyres and containers of petrol from Mr Jamili Khododad’s wrecking yard. By that plea, he admitted dishonestly possessing the items reasonably suspecting them to be stolen. He did not admit entering the wrecking yard or taking the items.
Soon after arriving, the officers noticed a car parked on Central Avenue. Constable Ryan said it was around 100 metres from the truck. Mr Swynczuk was in the driver’s seat. When the officers announced themselves, the car jolted forward as if the brakes had been released or the clutch engaged.[15] Constable Ryan opened the door. Mr Swynczuk appeared to try to start the car. The officers pulled him out. They saw that he had a large sheathed hunting knife attached to his belt at the back. It was a double-edged hunting knife in a holster. There is no photograph of this knife, but it was captured on video taken at the time when Mr Swynczuk was arrested immediately after the knife was discovered.[16] Mr Swynczuk was also carrying a screwdriver, sharpened to a point, in his back pocket, and had a torch and a glove in his pockets.
[15] T 15.
[16] T 19, Exhibit P4.
The car was searched and the officers found three sawn-off .22 rifles – one under the driver’s side front seat, one in the passenger-side foot well and one in a tool bag on the rear seat. In the rear foot well there was a briefcase containing a large amount of ammunition, and another knife.[17] It is an agreed fact that the ammunition hanging in the bag attached to Mr Khododad’s truck is the same brand and calibre as the ammunition in the briefcase, and all the ammunition was compatible with and suitable for firing from one or more of the guns taken from Mr Tytula’s premises.
[17] T 18-19; Exhibit P3, photograph 87.
These three sawn-off rifles, along with two others which had not been sawn off and which were later found at Mr Swynczuk’s residence,[18] as well as the knives, the ammunition, the briefcase and other property, had all been stolen from the house of Mr Tytula at Somerton Park on 21 March 2015. None of the rifles had been sawn off before the theft. The hunting knife Mr Swynczuk was carrying had also been stolen from Mr Tytula’s house, as had the knife in the briefcase.
[18] Agreed Facts 8 & 9.
The rifles were easily identified by their registration numbers. The knife Mr Swynczuk was carrying was a prized possession from Mr Tytula’s time in the Polish army.
There was a dispute about the briefcase. Mr Tytula said it was his.[19] He was not challenged in cross-examination about that. Mr Swynczuk claimed it was his.[20] I disbelieve his evidence about that. I accept that the briefcase belonged to Mr Tytula, and was taken from his shed on 21 March 2015.
[19] T 46; Exhibit P3, photograph 58.
[20] T 101.
Also found in the car in which Mr Swynczuk had been sitting were a can of red spray paint, a pair of leather gloves with wet red paint on them, a roll of duct tape, a screwdriver which had been sharpened to a point, a pair of bolt cutters, and a large number of tools and associated equipment. A full list of items found in Mr Swynczuk’s car is contained in Agreed Fact No. 10. The list is Appendix A to these reasons.
Mr Swynczuk has pleaded guilty to damaging the truck and making the threat. In an interview with police on the morning of his arrest, he denied any involvement in those crimes. He also gave explanations for possessing many of the items found, but his denials were obviously false. He has given different explanations in this court. There are many inconsistencies and implausibilities about these explanations. I will discuss them in detail shortly.
Personal relationships
Mr Swynczuk and Mr Tytula were acquainted with each other. Both are members of Adelaide’s Polish community. They had known each other since 2003. They are both musicians. They were in a vocal group together.[21] Mr Tytula said he considered Mr Swynczuk a friend. Mr Swynczuk had been to Mr Tytula’s house on several occasions, the last about seven months before the break-in. He never evinced any interest in Mr Tytula’s guns.
[21] T 42.
Mr Tytula said that Mr Swynczuk strongly disapproved of him hunting and killing animals.[22] They had many discussions about it. Mr Swynczuk was well aware of Mr Tytula’s guns, and the gun cabinet was easy to see in the laundry.[23]
[22] T 44.
[23] Ibid.
The ammunition was stored in a heavy safe in Mr Tytula’s shed. He could not remember if Mr Swynczuk had been inside his shed.[24] He had shown Mr Swynczuk his commando knife before.[25]
[24] T 43.
[25] T 51.
Mr Swynczuk agreed that he had seen the commando knife before.[26] He said he was not aware that Mr Tytula kept firearms in the house. He said he had been in Mr Tytula’s shed many times. Both had an interest in tools and Mr Tytula would show him his tools.[27] He did not know Mr Tytula made ammunition in the shed.[28]
[26] T 71.
[27] T 70.
[28] T 71.
DNA Evidence
A cigarette butt was found by the police on the floor just inside the entrance to Mr Tytula’s shed.[29] The crime scene examiner, Brevet Sergeant Milde, said the butt appeared ‘slightly squashed’ and there was black ash above the butt but not connected to it. He said it did not appear that the butt had moved since the ash had been deposited.[30] I agree with that observation.[31]
[29] Exhibit P6, photographs 7, 8 & 9.
[30] T 33.
[31] See Exhibit P6, photographs 8 & 9.
The following are agreed facts:
15.The cigarette butt depicted in photograph 9 of Exhibit P6 was submitted to Forensic Science South Australia for DNA analysis. The sample from the cigarette butt contained a single source DNA profile. The DNA profile obtained was over 100 billion times more likely to have been obtained if the accused was the source of the DNA profile as compared to an unknown, unrelated individual.
16.The results of the DNA analysis do not provide any information about when a DNA profile was deposited on an item or when an item was left at a crime scene.
Mr Tytula’s evidence was that neither he nor his wife smoked cigarettes, and they did not permit smoking in their house and shed.[32] He conceded that smoking was permitted in the back yard, but he had never found a cigarette butt in the shed before.[33] He explained that he reloaded ammunition using gunpowder in the shed, and this created an explosion hazard because small amounts of gunpowder may drop on the floor during that process.[34] I accept his evidence.
[32] T 41.
[33] T 56.
[34] T 57.
Mr Swynczuk said that he had gone to Mr Tytula’s house about two months before the break-in.[35] He gave an elaborate explanation about being in dire financial circumstances, needing to sell his car, going to Mr Tytula’s house to show him the car, and Mr Tytula telling him that he did not wish to proceed because his daughter had just been diagnosed with cancer.[36] He said that it is unlikely that he went into the shed that day, but he probably had a smoke outside.
[35] T 117.
[36] T 118.
None of this was put to Mr Tytula in cross-examination. The only cross-examination of Mr Tytula on the topic was that he was asked whether he could be mistaken in his estimate of the time elapsed since Mr Swynczuk’s last visit to his house, seven months, and he said ‘No’.[37]
[37] T 58.
Browne v Dunn
In R v Costi,[38] King CJ said that the first limb of the rule in Browne v Dunn,[39] whereby counsel is obliged to put so much of his or her case to a witness as concerns that witness, is no more than a rule of practice and the consequences of failure to comply with it must depend on the circumstances. Such consequences may not include compelling a jury to a conclusion of fact, nor does it entitle a judge to withdraw an issue of fact from the jury. However, failure to comply entitles a judge to ‘direct a jury in strong terms as to the effect which failure to comply with the rule should have upon their view of the facts and the evidence.’
[38] (1987) 48 SASR 269, at 270-71.
[39] (1893) 6 R 67.
Although Matheson and Bollen JJ came to a different conclusion as to the application of the rule in the circumstances of that case, there was no disagreement with the Chief Justice’s formulation of the rule.
The use of the rule in criminal trials was criticised, however, in MWJ v R.[40] Gummow, Kirby and Callinan JJ indicated that its use is seriously qualified by the essentially accusatory character of a criminal trial.[41] Their Honours also observed that it was open to the prosecution to offer to recall the witness for further cross-examination by the defence on the topic, and it would only be in a situation where the defence had declined such an offer that criticism of the defence failure to comply with Browne v Dunn would be justified.
[40] [2005] HCA 74; (2005) 80 ALJR 329; (2005) 222 ALR 436.
[41] At [41].
There was no offer made here by the prosecution to recall Mr Tytula for further cross-examination about the alleged later visit by Mr Swynczuk to his house. I therefore draw no adverse inference against Mr Swynczuk on the basis of the rule in Browne v Dunn.
The evidence of Brevet Sergeant Milde is that the proximity of the ash to the cigarette butt renders it unlikely that the butt had been blown into the shed by the wind, or had adhered to someone’s shoe in the back yard and been deposited inside the shed. The question of whether Mr Swynczuk last visited the Tytula residence two months or seven months earlier becomes somewhat insignificant in light of that.
The presence of the cigarette butt in the shed in the position indicated by the photographs, the proximity of the ash, the unlikelihood that it could have been deposited there in any other way, and Mr Tytula’s evidence about having never seen one there previously, when combined with the DNA evidence, is strong circumstantial evidence that Mr Swynczuk was present in the shed during the evening of 21 March 2015 when the serious criminal trespass took place.
Recent Possession
There is no doubt that on 3 April 2015, Mr Swynczuk was in possession of Mr Tytula’s rifles, ammunition and knife, which had been stolen on 21 March 2015. These are the items which are the subject of the charge of theft. He does not dispute that he was in possession of the rifles. The prosecution invokes the so-called ‘doctrine’ of recent possession on the basis of these facts.
In earlier times, the possession of recently stolen property by the accused person gave rise to a presumption of guilt, unless the accused discharged an onus to satisfy the jury that he came by the goods honestly.[42] However, it is now accepted that this proposition is no longer good law since the decision of the House of Lords in Woolmington v DPP.[43]
[42] See Trainer v The King (1906) 4 CLR 126 at 138-40.
[43] [1935] AC 462.
In R v Wanganeen,[44] King CJ explained the modern understanding of the ‘doctrine’:
The concept is that the unexplained possession by an accused person of property which has recently been stolen is of itself capable of supporting an inference that the accused was the thief or, according to the circumstances, that he received the property knowing it to have been stolen.
His Honour referred to R v Bruce[45] in support of that proposition.
[44] (1988) 50 SASR 433 at 434.
[45] (1987) 61 ALJR 603.
As to the directions to be given to the jury in these circumstances, King CJ said:[46]
A sound summing up in a case which depends to a significant degree upon the fact of possession of the recently stolen property will point out to the jury that such possession is capable, in appropriate circumstances, of supporting an inference of guilt of any crime in the course of which the property was stolen or, depending upon the circumstances, of receiving the property knowing it to have been stolen. It will explain that whether such an inference should be drawn beyond reasonable doubt depends upon all the circumstances of the case including the proximity in time of the possession to the theft and anything that is known of the circumstances of the possession, as well as upon the weight which is attached to any explanation which the accused has given as to the circumstances in which he came into possession of the property. It should, generally speaking, relate recent possession to the onus of proof, by directing the jury that if any explanation given by the accused, or the other circumstances of the case, or both, leave the jury in doubt as to whether the accused stole or criminally received the property as the case may be, the case against him has not been proved and the verdict should be not guilty, R v Aves (1950) 34 Cr App R 159. It may be necessary, depending upon the facts, to direct the jury that although no inference adverse to the accused is to be drawn from his exercising his right to silence either before trial or at trial, they are nevertheless entitled, if they see fit, to draw the inference of guilt from the fact of possession if the exercise of the right to silence leaves the possession unexplained, R v Bruce (supra). It may also be necessary to distinguish between such inferences as the jury is prepared to draw from the fact of possession of the property and such inferences as it is prepared to draw from the giving of a false explanation. If the jury is satisfied beyond reasonable doubt that the explanation given by the accused for the possession of the property is false, it may draw an inference of guilt from the possession of the recently stolen property, no truthful explanation having been offered. Quite independently of the possession of the property the jury may treat the false explanation as evidence of guilt if, in the circumstances, it tends to indicate a consciousness of guilt of the crime charged.
[46] At 436.

As to those factors:
·Mr Swynczuk’s possession of the five rifles, ammunition and the knife were quite proximate to the time they were stolen – a matter of 12 days;
·the circumstances of possession were that Mr Swynczuk was known to Mr Tytula, had been to his house, and was aware that he owned guns. He was in possession of three of the rifles, the ammunition and the knife in his car in the early hours of the morning. The guns had been placed in different positions in the car, two under seats and one in Mr Swynczuk’s tool bag. When the police announced themselves to him, Mr Swynczuk attempted to start the car and leave. He was wearing the knife attached to his belt at the back. He had just been involved in damaging Mr Khododad’s truck. He had reason to expect trouble if he was detected in the area;
·Mr Swynczuk had been released on bail on the very day that the serious criminal trespass on Mr Tytula’s house occurred. An inference is available that Mr Swynczuk wanted revenge on Mr Khododad as a result of the incident. He alleged that Mr Khododad damaged his car as he was leaving the premises.[47] A motive for stealing the rifles is thereby suggested;
·Mr Swynczuk was not the registered owner of the car. The numberplates on the car Mr Swynczuk was sitting in on 3 April 2015 were false. They related to a different car, a Jaguar, owned by Mr Swynczuk;[48]
·For reasons which follow, I am also satisfied that Mr Swynczuk’s explanations for possession of the rifles are false. He admits that his initial explanation to the police, that he found the rifles at the rubbish dump, was false. I find that his explanation, on oath, that he was holding the rifles for other people, is also false.
[47] See Record of Interview (Exhibit P5A), p 26.
[48] Agreed Facts 6 & 7.
Mr Swynczuk’s explanation for recent possession
Mr Swynczuk’s explanation for his possession of the guns was also elaborate. He said that three men, whom he knew as Sebastian Slowiski, Igor and Roman, approached him at the Polish Club at about 4 pm or 5 pm on 25 March 2015. They asked him to help them store some hunting equipment for a few days because they were moving house. He had never had anything to do with firearms before. He did not know the three men very well.[49]
[49] T 76.
As to delivery, he said:[50]
At this time the guns arrived to me, all this equipment, the ammunition, I didn't know, it's hunting equipment is something very - basic information, I never have nothing to do with firearms so hunting equipment, it was something abstract to me, abstract, and they brought - because I remember it was Wednesday and it was bin - rubbish bin days always at my place and because it was quite heavy I went out to bring my empty rubbish bin and I saw this equipment, all this stuff, in my rubbish bin and we move it to my backyard, we, we shift it to my backyard.
[50] T 73.
As to payment, he said:[51]
Yes, yes I was - I'm sorry, yes, I was offer firstly $500 for a few days and because the guns stay longer they offer me another $1,000.
[51] T 74.
Mr Swynczuk said he became suspicious after a few days when he looked at the guns and realised they were not ‘normal hunting guns, they were something which I saw only in the movies previously’.[52]
[52] Ibid.
Mr Swynczuk said that the ammunition arrived in two cartons. The black briefcase was his, not Mr Tytula’s.[53] He put the ammunition in the briefcase because it was falling out of the cartons.[54]
[53] T 101.
[54] T 102.
Mr Swynczuk said he did not ask the three men whether the guns were loaded.[55] The modified guns were wrapped in blankets and kept in his laundry.[56] He put the two long guns on the shelf above his windows (where they can be seen in photographs 1 to 6 in Exhibit P8).
[55] T 111.
[56] T 77.
As to why he still had the guns in his possession on 3 April 2015, Mr Swynczuk explained:
·Sebastian and the others called him and told him to deliver all the hunting equipment to an address in Central Avenue, Enfield (this happened to be where Mr Khododad’s truck was parked);[57]
[57] Ibid.
·his Astra car broke down. He took the registration plates from his Jaguar and put them on the Toyota, which he also owned;[58]
[58] T 76.
·he was running approximately two hours late for the meeting because of the change of cars. Because he was in a hurry, he forgot to take the guns from the shelf above the window;[59]
[59] T 77.
·he put the guns and ammunition on the back seat. His personal bag with his medication and cigarettes was on the front seat;[60]
[60] T 105.
·when he got to Enfield, Sebastian, Igor and Roman were there with a fourth man. They told him to go for a walk so they could show the buyer the equipment. They suggested he take the commando knife for ‘self-defence’. He put the knife in his belt ‘just in case’. This is a different story to the one Mr Swynczuk gave the police. To them he said that he ‘always’ carried it.[61] I reject his evidence about this. I draw the very strong inference that Mr Swynczuk had armed himself that night;[62]
[61] Record of Interview, p 4.
[62] T 84.
·Mr Swynczuk told the police he had the sharpened screwdriver in his pocket because he thought he might need it and forgot it was there. He denied he used it to puncture the tyres of the truck.[63] It is difficult to accept that Mr Swynczuk would not have noticed the presence of a sharp object in his back pocket for such an extended period. It is much more likely that the object was used in the damaging of Mr Khododad’s truck;
[63] Record of Interview, pp 19-20.
·the four men were all in his car looking at the guns. They may have loaded the guns when they were looking at them, and forgotten to unload them;[64]
[64] T 112.
·they told Mr Swynczuk to wait in the car for half an hour while they went with the buyer to pick up the money;[65]
[65] T 78.
·he knew the truck was damaged, but he waited near where it was parked, with loaded guns in his car, because ‘I have almost no choice’. He was thinking about going to the police.[66] I reject that evidence. On the whole of the evidence, Mr Swynczuk had no intention of going to the police;
[66] T 86.
·he was still sitting there at about 3 am, when the police said they arrived – he thought he had only been there for about an hour;[67]
[67] T 85-6.
·he was planning to go and see ‘Lily’ (Lily Lazauskas, a friend of his). He had told her he would get there about 10 pm or 11 pm.[68] Later, he said he did not remember when he told her he was coming, but ‘We haven’t got strict sort of formal meeting time, what time it will be convenient I will come there.’[69] This was contradicted by Ms Lazauskas, his alibi witness, who said she would have been in bed by 10 pm.[70] She clearly indicated that Mr Swynczuk would not have been welcome at that time of night. I accept her evidence;
[68] T 104.
[69] T 105.
[70] T 141.
·when the police arrived, he admitted he tried to drive away because:
I was scared, I didn’t know if this police because they put the torch to my face and I didn’t see and I thought it’s Mr Jamili and his mates, because they attack me previously.
·the three men only told him afterwards that they had damaged the truck, because the owner had threatened him. They said ‘That truck there is Mr Jamili truck and we give him warning on behalf of you’.[71] Notwithstanding this, he pleaded guilty on his solicitor’s advice.[72] I reject this suggestion. His plea of guilty is an admission that, at the least, he had foreknowledge of the plan to damage the truck. In fact, I am satisfied that Mr Swynczuk participated in the damaging of the truck;
[71] T 125.
[72] T 126.
·the three men must have damaged the truck before he got there;[73]
[73] T 78.
·he knew Mr Khododad lived in the area, but not where he lived;[74]
[74] Ibid.
·he did not know how the bag, daubed in red paint, was filled with ammunition and hung on the truck;
·the red spray paint was not his.[75] The three men put the paint, some sticky tape, and the gloves with the red paint on them in his car.[76]
[75] T 79.
[76] T 79-80, T 82.
Mr Swynczuk said he asked the three men why they put these things in his car. They said that they wanted to keep their car clean, and his car was old. They said they would take these items out of his car the following day.[77] This is another unconvincing explanation. It was just as important not to incriminate Mr Swynczuk’s car, on his version, especially since it was parked so close to the scene of the damaged truck;
[77] T 83.
·he told police in the interview he could not answer why the paint and the glove with wet paint on it were in his car because he was waiting for the next interview.[78]
[78] T 96.
Mr Swynczuk gave this explanation several times in his evidence. It is mystifying. There was no mention, either by him or by the police officers, of a further interview during the police interview. He was cautioned during the first interview. He knew it was being recorded. I reject this explanation. I find that Mr Swynczuk had been using the paint and the glove during the damaging of Mr Khododad’s truck;
·several of the tools found in the car (the reciprocating saw, the jemmy bar, the crowbar, the torch, the bolt cutters) were his,[79] but he said the wrench found on the ground and the drill were not.[80] Nor was the silicone sealant.[81] I reject that evidence. It is a strong inference that these items were used in the damaging of Mr Khododad’s truck;
[79] T 81.
[80] Ibid.
[81] T 82.
·apart from the knife Mr Swynczuk was wearing when the police arrived, there was another large knife in the briefcase containing the ammunition in the car. Mr Swynczuk said he thought the knife ‘looked familiar’, but did not look at it closely.[82] Clearly, he put it in the briefcase. The conclusion is inescapable that, as with the knife attached to his belt, Mr Swynczuk was arming himself for some purpose;
[82] T 102.
·Mr Swynczuk said he noticed that there was a gun under the front seat of his car when he returned from his walk. He said everything was ‘upside down’ in the car.[83] There were in fact three guns in the car. Why two were under the seats, and the third was in the tool bag on the rear seat, is not apparent. Mr Swynczuk denied moving them. It is difficult to think of a sensible reason why the three men would leave the guns in such disparate and random positions if they were about to sell them;
[83] T 105.
·during the interview, Mr Swynczuk told the police he put the gun in the tool bag. He could not explain why he said that. He said ‘I don't know. I told police a few funny things. Very strange to me.’[84]
Mr Swynczuk was obliquely suggesting by this answer that he was not responsible for what he said to the police. I reject this. Paradoxically, what he said to the police about that is probably true. It defies logic that one of the three men would have put it there;
·a telescopic sight for one of the guns was found in a plastic bag on the front passenger seat of the car along with personal items belonging to Mr Swynczuk, including his medication, cigarettes etc. Mr Swynczuk’s explanation: ‘It was accident - I don't know, those three men must put there, the rifle scope.’[85]
Quite frankly, that explanation is completely unconvincing, almost ludicrous. The position of the telescopic sight is strong circumstantial evidence that Mr Swynczuk put it there, and that his explanation is false. It defies logic to suggest that one of the three men put it there;
·as to the three men, Mr Swynczuk said he did not mention them to the police during the interview because he was very tired. He said that at the time he was arrested, one of the police officers saw three men escaping, and asked him if they were his friends. He thought that they might have seen him being arrested and approach the police. The police did not pursue these men because they were concentrating on him. He said this would all have been on the video.[86] Constable Ryan made no mention of this when he gave evidence. None of it was put to him in cross-examination. It is not on the video. This evidence borders on the fanciful;
·during the interview, Mr Swynczuk told the police that he found the three guns as the rubbish dump.[87] He said:
Ah, it was early in the morning. I went to the rubbish tip at Salisbury because I, I like to sell my, timber, I find, I found it, something rolled in material. I went to look, it was a gun and it was a carton. On, it was carton, it looks like ammunition and I didn’t have a look, I put it in my car and I drove it home and I, I drove it home and I have a look, it was three guns and the ammunition, just keep them, I never, never make shot from them.
He admitted in evidence that this was a lie.[88] He said he told a lie because he was disoriented and in shock. He thought the three men would present themselves to the police and somehow exculpate him. He would have given the truthful explanation at the further interview he was expecting;[89]
·during the interview, Mr Swynczuk told the police that he always carried the knife strapped to his belt for self-defence. He said he never harms anyone. He said he did not remember saying that when he gave evidence, but agreed that he must have said it.[90] He said he planned to tell them the truth after he had an hour or two of ‘refreshment’;[91]
·Mr Swynczuk admitted that by being where he was at that time of night, he was in breach of his bail agreement, which included a 9 pm curfew. He said he did not read the conditions carefully because he was sure he was innocent.[92] He was also in breach of the firearms condition of his bail agreement. He said he did not know about that.[93] He was too tired to read the agreement earlier that day.[94]
[84] T 108.
[85] T 110.
[86] T 87-8.
[87] Record of Interview, p 8.
[88] T 91.
[89] T 92.
[90]T 95.
[91] T 96.
[92] T 97.
[93] T 98.
[94] T 99.
An application had been made before the trial to exclude the contents of Mr Swynczuk’s interview with the police on the basis of his tiredness and the effects of medication. That application was abandoned at the commencement of the trial.[95] There were also objections to certain parts of the interview made in the alternative to the exclusion application. Ms Stokes asked me to ‘sieve those out’, which I have done.
[95] T 2.
In her final address, Ms Stokes submitted that I should not draw adverse inferences against her client on the basis of the interview for those reasons. I reject that submission. Tiredness, whether caused by lack of sleep or the effects of medication, does not account for the detailed explanations Mr Swynczuk gave the police during the interview, explanations which were untrue. There is no reason why I should ignore the fact that this occurred.
I am satisfied beyond reasonable doubt that the entirety of Mr Swynczuk’s evidence is untrue. In fact, rarely have I encountered evidence so riddled with improbabilities, inconsistencies and contradictions. Many of Mr Swynczuk’s lies were elaborate and imaginative. The extent to which he was prepared to go to blame others for his predicament was, at times, extraordinary.
In particular, I reject Mr Swynczuk’s evidence about the three men at the Polish Club, looking after their guns for money and the alleged transaction at Enfield. This was just fanciful. I am sure there were others involved in the trespass and theft from Mr Tytula’s house on 21 March 2015, but I reject Mr Swynczuk’s story that he was merely a caretaker for them.
I reject Mr Swynczuk’s evidence that he was wearing Mr Tytula’s knife on his belt, at the suggestion of the three men, for self-defence. I have no doubt that Mr Swynczuk was present at Central Avenue, Enfield with criminal intent, in particular to exact revenge upon Mr Khododad. It is sinister that he was so heavily armed at the time.
I reject Mr Swynczuk’s evidence that he was not personally involved in the damaging of the truck. His evidence was inconsistent with his pleas of guilty to counts 3 and 4, and with the submissions of his counsel as to his instructions about that.
In fact, I am satisfied beyond reasonable doubt that his explanation for possession of the stolen articles was a fabrication, a series of elaborate lies.
Alibi
Mr Swynczuk presented an alibi for the time on 21 March 2015 when Mr Tytula’s house and garage were trespassed upon.
Mr Swynczuk said he went to the house of his friend Lily (Helena) Lazauskas in North Adelaide. He arrived at about 3 pm. He took her dogs for a walk, returning at about 5 pm. He remained there for the rest of the day and slept there.[96]
[96] T 75, T 119.
Mr Swynczuk had no doubt he had the correct day, because another friend, Miekzyslaw Kosmalski, and his wife had come up from Goolwa to attend the musical event at which Mr Tytula was performing. They stayed at Mr Swynczuk’s house while he stayed with Ms Lazauskas.[97]
[97] T 74-5.
Ms Lazauskas was called by the defence to give evidence. She said she and Mr Swynczuk had a ‘close’ relationship at one stage, but for the last 13 years or so they have been ‘very good friends’.[98] Mr Swynczuk does some handyman work in her ‘character cottage’ in North Adelaide.
[98] T 137.
Ms Lazauskas was called to corroborate Mr Swynczuk’s alibi for 21 March 2015. Her reconstruction of the events was as follows:
·on Good Friday she painted Easter eggs with her grandchildren;
·when she came home from that activity, she had a phone call telling her that Mr Swynczuk had been arrested;[99]
·a week before that, Mr Swynczuk stayed at her house – he came in the afternoon and walked the dogs, two Great Danes;
·she recalled this weekend specifically because she and some female friends went to a movie which she called ‘First Marigold or Marigold Hotel’[100] (I think she meant ‘The Best Exotic Marigold Hotel’, or possibly the 2015 sequel, ‘The Second Best Exotic Marigold Hotel’).
[99] T 138.
[100] Ibid.
Ms Lazauskas was ‘pretty certain’ that Mr Swynczuk stayed with her on the night that she went to see the movie. She was unable to vouch for the two and a half hours or so when she was at the movie.[101]
[101] T 139.
In cross-examination, it quickly became apparent that Ms Lazauskas had the wrong weekend. Mr Swynczuk was arrested on Good Friday, 3 April 2015. The Saturday before that was 28 March 2015, not 21 March 2015.[102]
[102] T 141-2.
Mr Swynczuk has no alibi for Saturday, 21 March 2015. I am satisfied beyond reasonable doubt that his evidence of what he did on 21 March 2015 is false. His alibi was another elaborate lie, to be accumulated with all the others.
Lies
Mr Swynczuk’s egregious lies go beyond a mere issue of credibility. I am satisfied beyond reasonable doubt that his evidence was, in its entirety, a deliberate fabrication.
I accept that a person may lie for all sorts of reasons – panic, shame, fear, threats, embarrassment, to protect another, a fear that the truth will not be believed, a fear of being falsely implicated, a fear of the consequences in some other area of his life. A lie does not necessarily demonstrate consciousness of guilt of the charged offence.
In this case, I am satisfied beyond reasonable doubt that this is one of those rare cases where Mr Swynczuk’s lies evidence a clear consciousness of guilt. It is clear that Mr Swynczuk was aware that the truth would implicate him in the crimes charged, and that he was prepared to say almost anything to avoid responsibility for his crimes.
Circumstantial Evidence
The prosecution case against Mr Swynczuk is circumstantial. There were no witnesses to the events of 21 March 2015. To be satisfied beyond reasonable doubt of guilt, I must be satisfied not only that guilt is a rational inference to be drawn from the evidence, but also that it is the only rational inference to be drawn from the evidence. In other words, a reasonable hypothesis which is consistent with the innocence of the accused must be excluded beyond reasonable doubt.[103]
[103] Peacock v R (1911) 13 CLR 619 at 634; Plomp v R (1963) 110 CLR 234 at 252; and, most recently, R v Baden-Clay [2016] HCA 35 at [46].

The only issue which was examined in this case was whether Mr Swynczuk was involved as a principal offender in the crimes of serious criminal trespass and theft. It is not necessary that I separately examine the elements of each crime and decide whether each of them is proved beyond reasonable doubt. If I am satisfied beyond reasonable doubt that Mr Swynczuk was a principal offender in each case, it follows that I am satisfied that each of the elements of each offence has been proved beyond reasonable doubt.
Conclusion
The circumstantial evidence against Mr Swynczuk is very strong, if not overwhelming. Mr Swynczuk’s evidence is totally discredited. Even leaving it aside, I would be satisfied beyond reasonable doubt of Mr Swynczuk’s guilt of counts 1 and 2. His lies merely add to the strength of that finding.
My verdicts are:
Count 1 – Guilty.
Count 2 – Guilty.
(Cont.)