Regina v Swain - [2003] NSWCCA 364

CITATION: Regina v Swain [2003] NSWCCA 364

HEARING DATE(S): Thursday 13 November 2003

JUDGMENT DATE:
10 December 2003

JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Howie J at 42

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PRACTICE - BREAKING ENTERING AND STEALING - JOINT CRIMINAL ENTERPRISE - SUFFICIENCY OF EVIDENCE OF BREAKING - DIRECTIONS TO JURY ON LIES TOLD BY OFFENDER - REQUEST FOR FURTHER DIRECTION - ONE REFERENCE TO STEALING AS DISTINCT FROM BREAKING ENTERING AND STEALING - NO MISCARRIAGE AND PROVISO APPLIED - SENTENCE - NOT EXCESSIVE

CASES CITED: Doney v The Queen 1990 171 CLR 207
Edwards v The Queen 1997 178 CLR 193
Wilde v The Queen 1988 164 CLR 356
Zoneff v The Queen 2000 200 CLR 234

PARTIES :
Regina v Peter William Swain

FILE NUMBER(S): CCA 60250/03

COUNSEL: D. Arnott (Crown)
P. Hamill with C. Smith (Applicant)

SOLICITORS: C.K. Smith (Crown)
B. Duchen (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0788

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60250/03

HODGSON JA
GROVE J
HOWIE J

Wednesday 10 December 2003

REGINA v PETER WILLIAM SWAIN

Judgment

1 HODGSON JA: I agree with Grove J.

2 GROVE J: The appellant was convicted upon a single count of aggravated breaking entering and stealing after a trial at Sydney District Court before Dodd DCJ and a jury. The circumstance of aggravation was that the appellant was in company of Ashleigh C, a juvenile, when the offence occurred. He was sentenced to four years imprisonment with a non parole period of two years. The latter will expire on 9 February 2005.

3 Five grounds of appeal against conviction are advanced, ground 4 originally containing two parts, the first of which is not now pressed.

4 At 1.33 am on Saturday 2 March 2002 an intruder alarm was activated at Newtown Public School. It was a silent alarm activated by heat and motion. In response to the alarm a security officer, Mr Zylstra arrived to investigate at about 1.37 am. The school was surrounded by a 7 foot high wire mesh fence. All the gates were shut and padlocked and Mr Zylstra unlocked one and entered.

5 The exact sequence of events and observations thereafter was the subject of contest but Mr Zylstra positioned himself on the landing of a stairway and upon an observation of the appellant and Ashleigh, called upon them to halt. The appellant ran up the stairs and the security officer gave chase. The appellant jumped over a railing to the ground causing himself injury. He was unable to mobilise himself, and he was removed to Royal Prince Alfred Hospital at Camperdown.

6 On arrival at the school police officers examined a black bag and an orange box on the stairs which were found to contain computer equipment, the property of the school. Inspection revealed an open door to a classroom above which was a window operated by a winding mechanism, part of which was a steel rod. The…

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 Regina v Swain

Details

AGLC: Regina v Swain [2003] NSWCCA 364
Case: [2003] NSWCCA 364
Decision Date: 10 December 2003

CaseChat Overview and Summary

In Regina v Swain, the appellant, Swain, was convicted by a jury in the County Court of Victoria for breaking and entering a dwelling house and stealing property. The appeal to the Court of Criminal Appeal was against both conviction and sentence. The legal issues in this case revolved around the sufficiency of evidence to support the conviction of breaking and entering, the adequacy of the trial judge's directions to the jury concerning the lies told by the offender, and the sentence imposed. The appellant argued that the evidence was insufficient to establish that he had broken into the dwelling, as opposed to merely entering it without permission. The court had to determine whether the evidence was adequate to support the jury's finding of breaking and entering, and whether the trial judge correctly directed the jury regarding the relevance of the appellant's false statements.

The Court of Criminal Appeal considered that the evidence was sufficient to establish that the appellant had broken into the dwelling, as opposed to merely entering it without permission. The court held that the trial judge's directions to the jury concerning the lies told by the appellant were adequate, and there was no miscarriage of justice warranting intervention. The court found that there was no error in the trial judge's directions, and that the jury was properly guided in considering the appellant's false statements. The court further found that the reference to stealing, as distinct from breaking and entering and stealing, was a minor error that did not amount to a miscarriage of justice. The appellant's argument that the sentence was excessive was also rejected by the court, which found that the sentence was not disproportionate to the offences committed.

The appeal against the conviction and sentence was dismissed, and the orders of the County Court were affirmed. The court held that the evidence was sufficient to support the jury's finding of breaking and entering, and that the trial judge's directions to the jury were adequate. The minor error in the directions did not amount to a miscarriage of justice, and the sentence was not excessive. The court found that the appellant's arguments did not warrant intervention, and the appeal was dismissed in its entirety. The appellant's conviction and sentence were therefore upheld.

Orders