R v Tanner - [2004] SADC 183

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TANNER
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Anderson
14 December 2004
CRIMINAL LAW
- Aggravated Serious Criminal Trespass in a Non-Residential Building - proved.
- Theft - proved.

R v TANNER
[2004] SADC 183

Brian James Tanner pleaded not guilty to the offences of Aggravated Serious Criminal Trespass in a Non-Residential Building and Theft. It is alleged in the Information that these offences occurred at Clearview between 12 August 2003 and 15 August 2003.
By a Rule 9 Notice he sought to have the police interrogation of him on 18 August 2003 excluded from evidence. For reasons which I delivered on 29 October 2004 that application was refused.
Thereafter, Mr Mancini, who appeared for the Accused, after a short adjournment, filed a Notice of Election for Trial by Judge Alone signed by the Accused, together with the necessary Certificate signed by himself. An oral application to dispense with strict compliance with the relevant rules was not opposed. The order was made and the trial proceed accordingly.
Ms Lam appeared for the Director of Public Prosecutions.
Without objection she tendered the Statement of Witness of Carl Barone, dated 29 August 2003; Detective Senior Constable Sheldon, dated 21 November 2003 (and the associated record of interview) and 18 October 2004; Senior Constable Francis, dated 17 March 2004; Richard Alexander Weber, dated 20 November 2003 and 27 February 2004 and Christopher John Sanders, dated 12 March 2004.
Tendered as exhibits were the video recording of the Accused’s record of interview, a handwritten diagram drawn by him during that interview and a booklet of photographs referred to in the second statement of Weber.
That constituted the case for the Crown. No evidence was called for the Defence.
The facts of this matter came to the attention of the investigating police officer from the mouth of the Accused before the police were aware of the commission of any offence. This occurred as a result of police attending a motel room in Waikerie where the Accused was located. Enquiries revealed that he was the subject of a first instance warrant and so he was arrested. He was then taken to the Berri police station where he was charged in relation to that offence.
In the course of a subsequent record of interview the Accused, who was in tears and highly emotional, told Detective Senior Constable Shelton that the cause of his distress was because he believed persons he feared were seeking him as a consequence of a break‑in he had been part of in Adelaide and from whence he had stolen some cannabis.
In that record of interview the Accused described a “rip” (Q85) which he and others carried out at a crash repair workshop at Northfield. At Q102 he described cutting into the shed, cutting through padlocks and finding and taking away both dry and wet cannabis. He said that it was his intention to sell the cannabis and that it was subsequently disposed of.
The Accused was not able to say precisely where the workshop was located and, in an attempt to describe the area, drew the diagram to which I have referred and which was tendered in evidence.
Subsequent enquiries by police led to the statement by the witness Barone. He described a workshop which he leased to pursue his hobby of car repairing and welding. He described how he grew cannabis in a portion of his leased premises in which he had located a shipping container.
He described the presence of cannabis plants, dry cannabis and recently cut cannabis in his premises when he left them secure on 13 August 2003 at about 3.30pm.
When he returned at 9.00am on 14 August 2003 he found that entry had been made to the rear of the shed by cutting the tin of the rear door. The padlocks on the shipping container had been cut and all of the cannabis had been taken. Because of the nature of his enterprise he did not report the break‑in and theft to police.
The Accused was then charged with these offences, whilst in custody in relation to the arrest warrant, at Berri on 19 August 2003.
In a trial such as this it is necessary that I remind myself that there is no onus of proof on the Accused and that it is for the Crown to prove each element of each offence beyond reasonable doubt before a verdict of guilty may be returned.
The elements of Count 1 are four.
Firstly, that the Accused entered a non‑residential building. It is necessary to be satisfied that the entry the Accused described was in fact the entry which Mr Barone described as occurred to his workshop. Whilst the Accused was not able to identify the precise location he identified an area of relevance. I am able to take judicial notice of the fact that Clearview, where the workshop is located, is adjacent to Northfield, where the Accused, in his record of interview said he thought it was. In addition, whilst he again lacked precision the Accused said that the event occurred about three days before he was speaking to Detective Senior Constable Shelton on 18 August 2003. Mr Barone described the entry to his premises as occurring overnight on 13 and 14 August 2003 - four days before that conversation.
What the Accused described as the method of entry is more particularly shown in the photographs in evidence. What he and his colleagues found and took is almost identical with what Mr Barone described.
I am satisfied that the premises described by the Accused as those into which he and others entered were the premises leased by Mr Barone in Clearview. I am further satisfied that this was a non‑residential building.
The second element requires it to be proved that the Accused entered as a trespasser knowing he had no permission to do so. It is plain from the statement of Mr Barone that he gave no person permission to enter his workshop and that someone indeed did. There is weighty similarity between his evidence of how that entry occurred and what was said by the Accused in his record of interview on this topic where he described his method of entry. I am satisfied that this element is proved beyond reasonable doubt.
The third element requires entry by the Accused with the intention of committing an offence. In his record of interview the Accused detailed how he and his colleagues could hear pumps and could smell cannabis before entering and that it was his intention to enter and steal. Having regard to the uncontested objective facts concerning the actual entering of the workshop I am satisfied that this element has been proved.
The final element is that the Accused was in the company of at least one other person at the time of entry. What he said in the record of interview is an admission that he was in the company of two other persons whom he names. I am satisfied that this element is also proven.
Count 1 is therefore proved beyond reasonable doubt.
Count 2 charges the offence of theft. Again, each element is to be proved beyond reasonable doubt. In addition, each count is to be considered separately.
Firstly, it must be proved that the Accused took the property of Mr Barone dishonestly. The uncontested facts show that property was taken without the consent of the owner and, from the record of interview, that the Accused knew he was so acting when he took it.
Secondly, it must be proved that the Accused intended to permanently deprive Mr Barone of his property. Acceptance of what the Accused said in the record of interview as to the disposition of the stolen cannabis enables me to be satisfied beyond reasonable doubt as to this element.
The evidence establishes that the third element - that the property was taken without consent - has been proved.
It is finally also proved from the evidence of Mr Barone and, from the inference to be drawn from the admissions made by the Accused, that he had no claim of right to the cannabis taken.
I am satisfied therefore that each of the elements of Count 2 have been proved beyond reasonable doubt.
I find the Accused guilty of each of Count 1 and 2.