Rosenburg Joseph v The Queen

[2008] NSWDC 372

CITATION:	ROSENBURG Joseph v R [2008] NSWDC 372
HEARING DATE(S):	05/08/08
JUDGMENT DATE:	5 August 2008
JURISDICTION:	CRIMINAL- APELLATE JURISDICTION
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I dismiss the appeal and I confirm the conviction and the sentence of three months imprisonment to commence on the 27 July 2007 imposed by the learned Magistrate in relation to the second offence. The sentence has already been served. I confirm the fine of $250 and $70 court costs for the first offence.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - Unlawful entry on inclosed lands - Loitering by convicted child sexual offender
LEGISLATION CITED:	s 11G Summary Offences Act 1988 (NSW) s 4 Inclosed Lands Protection Act 1901 (NSW)
PARTIES:	Joseph Stephen ROSENBURG Regina
FILE NUMBER(S):	2007/115777; 2008/12/0328
COUNSEL:	Miss R Henderson (Respondent) Self- represented (Appelant)
SOLICITORS:	Direction of Public Prosecutions (Respondent) Joseph Rosenburg (self-represented) (Appelant)

1. HIS HONOUR: The appellant, Joseph Rosenburg, a convicted child sex offender, appeals against two convictions, one for entering enclosed lands without lawful excuse that being xxx Trafalgar Street, Annandale between 3.15pm and 6.54pm on 19 May and on the same day loitering in or near a public place frequented by children and at which children were present at the time of loitering.

2. The evidence against him comes from a number of different sources. Two young girls, one aged nine and the other I think aged 10, told police on that day they were out the front of the premises concerned.

3. On the other side of the street was a man looking in their direction, who then walked across to their side of the road, had a look at furniture and asked questions about the TV and furniture. The two girls went inside. A little later on they went back outside and he was still there. They walked down an alleyway but were unable to lock the gate because the bolt was too high for them.

4. About 6 to 7 pm that evening both of them were playing in the room of the young girl who lived in the premises; they went to the window as part of the game they were playing and saw the same man. He offered to give them $50 for a bike and said he would leave money under a mesh screen and then sought to engage in another conversation about boys and wanted to give them his telephone number.

5. It would then appear that two people were passing by and he then said: “I will wait here while they pass by, do not tell anyone, keep this between us.” They then told the parents of the girl whose premises this was occurring in. Each girl signed a statement on that day, each of them was asked to look at a group of photographs and see if they could identify anybody on it. Neither of them identified the appellant. If there were nothing more, then clearly there could be no conviction of the appellant for either of the alleged offences. There is evidence from the owner of the house, or one of the owners, that he gave no permission to the appellant to be present in the premises, if he was in the premises, nor to touch any part of his house, if he did.

6. There was evidence that establishes that the appellant was convicted of child sex offences in 1994 and given sentences that rendered him liable or eligible for parole on 16 June 1997. There was evidence that the premises concerned had a fence around it and thus were, within the terms of the law, enclosed premises.

7. A fingerprint expert retained by the Police Service attended the premises; a relevantly qualified fingerprint expert and scientist attended the premises on Sunday 20 May 2007. He conducted a fingerprint examination and developed a palm print on the exterior of the side bedroom brick windowsill. That side bedroom brick windowsill was the windowsill of the window through which the two girls looked. That palm print was examined by other expert fingerprint officers who determined that it was the palm print of the appellant.

8. On 27 July police interviewed the appellant at the Balmain Police Station. He denied allegations that he had been talking to either of the girls, he denied that he had placed his hand on a window. He claimed to have a routine and said that because of this routine he could not have committed this offence.

9. He claimed that he could not remember precisely what he was doing two months before on a particular day and a particular time, but that he stuck to a regular daily routine. He claimed to be a cleaner, he claimed to be cleaning in Kings Cross but he was not prepared to say where he was cleaning. He claimed to have lived in Surry Hills.

10. When the specific allegations of the two girls were put to him, he said he did not want to say anything about it.

11. When the allegation was put that the person concerned had offered the two girls $50 he claimed not to usually have $50 to give anyone anyway. He claimed to have a vague understanding where Annandale was and thought it was along Parramatta Road, he knew someone who lived there but was not prepared to say who they were, but he believed that this person or persons lived near Norton Street and claimed that was the only street which he knew.

12. He claimed that he had not gone to Annandale. He thought roughly he might have had an accident a couple of years ago, that would be the only time he could recall his going through Annandale on Parramatta Road. It is perhaps pertinent to observe that Norton Street Leichhardt is in Leichhardt, not Annandale and is some distance from Trafalgar Street Annandale. He claimed not to know where Trafalgar Street was and that he had not been to Annandale for at least 6 to 12 months. As far as Leichhardt and Annandale he did not know the difference between them.

13. When asked the questions again about approaching these girls and going to the window, he said it was not him. He then talked about his routine at Kings Cross, he claimed not to have gone to any house in the area, not to have worked in any house in the area, not to have mowed any lawns, not to have done anything. It was then put to him that his fingerprints were on the windowsill and was asked to explain how they could be there and his explanation was, that he did not have an explanation.

14. When the case went to Court he made a point of telling the Magistrate that he had severe scaring on his face at the time because of skin cancer, there was some evidence that he did suffer from skin cancer and may have had a scar on his face. He also gave evidence, he pointed out that he had tattoos on his arm, he pointed this out to me today, indeed today he is wearing a shirt with very short sleeves and there appear to be tattoos underneath the sleeve that are visible down about the elbow. He described to the learned Magistrate the tattoos and how far they extended and it would seem to me he even took off his jacket and put it on again.

15. He claimed to be a cleaner at the Moulin Rouge Night Club in Darlinghurst Road, Kings Cross to have been there all day long cleaning the premises and that he would have left the premises only about 6 o’clock at night. He said he set up tables, picked up laundry, part of his duties involved picking up laundry. The first thing in the morning was to pick up some laundry and The Crest Hotel or drop off laundry at The Crest Hotel and first thing in the afternoon to pick it up. There were two receipts that were tendered before the learned Magistrate. One showing that on 19 May at 2.54 in the afternoon laundry was paid for, another showing at 7.53 in the morning, the laundry was paid for and both paid for at The Crest Hotel Kings Cross.

16. When taken to what he had said to the police, by his own lawyer, he claimed to know two people in Annandale, one was his sister and the other was a supplier of marijuana. He claimed to have been smoking marijuana in May of 2007. He had been living at xx xxxx Street, Surry Hills and he claimed that he would normally walk to his marijuana supplier in Annandale. This, of course, was somewhat contradictory of his claim given to the police in the interview that he had not been to Annandale in the last two years or at least the last six months and he just passed through going along Parramatta Road.

17. He then claimed that on a particular weekday he decided to walk his mother’s disobedient dog, the dog ran off, he ran after the dog to retrieve him, ran into the side of a house, noticed a mobile phone on the windowsill, picked it up out of curiosity, looked at it, thought it was an old Nokia and put it back. He claimed that he assumed this was Annandale and it sounded somewhere near where it was. He claimed he had not told the police at the time because under pressure it had just slipped his mind; after all they were asking about two girls, he has never spoken to two girls. At the time he was on bail and he was placed under arrest as a result of these matters.

18. In submissions today he pointed to all these factors, spoke at some length and said that it was not possible for me to be satisfied beyond reasonable doubt of his guilt. I am unable to agree with that proposition. The fact that his palm print was on the windowsill, in my opinion cannot be explained by his claim that he picked up a mobile phone from some premises, the windowsill of some premises at some point and looked at them. His explanation that he would be walking a dog and it would go off the leash and the dog just happened to run into a house, it just happened to have a windowsill which just happened to have a mobile phone it does not ring true.

19. The answers he gave to the police in my opinion were quite evasive. He is a man who gives a very strong impression of having being used to appearing in Courts and facing charges on other occasions, of course as part of the proof of this, these offences it was necessary for the Prosecution to prove he had been convicted of child sex offences and it may be that it was his involvement with those offences. However, in the course of submissions he referred at great length to his cell mates in recent times and various gaols and their organisation. His story does not ring true, he has got no explanation in my opinion for the palm print being found on the windowsill. The fact that his palm print being found on the windowsill establishes in my opinion that he was at that place at that windowsill, the two girls saw a man in that place and conducted a conversation with him as I have said.

20. They clearly got wrong their identification of him by a photograph but his fingerprint identified him better than any photograph could ever have done. I am satisfied that there is sufficient evidence to convict him beyond a reasonable doubt.

21. I dismiss the appeal. I confirm the conviction and the sentence of three months imprisonment to commence on the 27 July 2007 imposed by the learned Magistrate in relation to the second offence. The sentence has already been served. I confirm the fine of $250 and $70 court costs for the first offence.

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