The Queen v Colin Booth
[2012] ACTSC 187
THE QUEEN v COLIN BOOTH
[2012] ACTSC 187 (21 December 2012)
CRIMINAL LAW – Judge alone trial – Offences of Burglary, Theft and Going equipped for theft or burglary – Inferences available on the evidence – All counts proved
Criminal Code 2002 (ACT), ss 308, 311, 315
Supreme Court Act 1933 (ACT), ss 68B, 68C
No. SCC 149 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 21 December 2012
IN THE SUPREME COURT OF THE )
) No. SCC 149 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: THE QUEEN
v
COLIN BOOTH
ORDER
Judge: Burns J
Date: 21 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The accused is found guilty of all three counts on the indictment of 24 July 2012.
The accused, Colin Booth, was arraigned on an indictment dated 24 July 2012 in the following terms:
FIRST COUNT THAT on 29 February 2012 at Canberra in the Australian Capital Territory COLIN BOOTH dishonestly appropriated property belonging to Vicki Price with the intention of permanently depriving her of that property.
Particulars of property:
· One “Rosetti” handbag;
· One black folding leather wallet;
· Australian currency to the value of $47.85;
· One ACT drivers licence;
· One set of house keys;
· One set of building keys; and
· One set of Holden vehicle keys
SECOND COUNT AND FURTHER THAT on 29 February 2012 at Canberra in the Australian Capital Territory aforesaid COLIN BOOTH entered a building, namely 22 Bedourie Street in Dunlop, as a trespasser with intent to commit theft of any property in the building.
THIRD COUNT AND FURTHER THAT on 29 February 2012 at Canberra in the Australian Capital Territory aforesaid COLIN BOOTH did have with him an article with intent to use it in the course of or in relation to theft or burglary.
To each of those counts the accused entered pleas of not guilty. On 9 October 2012 the accused made an election under s 68B of the Supreme Court Act 1933 (ACT) for trial by judge alone. Section 68C of the Supreme Court Act 1933 provides:
68C Verdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
Directions
I give myself the following directions with respect to this trial:
a)the prosecution has the onus of proving the accused guilty of the charges laid against him. The accused does not have to prove anything in this trial, and in particular he does not have to prove himself innocent of the charges. He is presumed to be innocent until he is proven guilty by the prosecution;
b)to prove that the accused is guilty with respect to any of the charges, the prosecution must prove each of the elements of the charge to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to demonstrate that there is a suspicion that the accused is guilty, or even that he is probably guilty of an offence. The prosecution must prove the accused’s guilt with respect to each charge to the standard of beyond reasonable doubt;
c)if the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or to demonstrate that it is irrelevant; if the prosecution does not do so, then the accused is entitled to be acquitted;
d)my verdicts must be based on the evidence adduced at the trial, and only on that evidence;
e)in deciding what evidence I accept as being truthful or reliable I may take into account what a witness says, the manner in which they say it and the general impression the witness makes upon me when giving evidence.
f)while the accused was not obliged to give evidence, in this trial he did give evidence. I assess his evidence in exactly the same way that I assess the evidence of the other witnesses who testified in the trial;
g)I am not to draw any inference adverse to the accused from direct evidence unless it is the only rational inference that can be drawn in the circumstances.
The Evidence
The following witnesses gave evidence during the trial:
· Jeffrey Scott Price;
· Detective Sergeant Caroline Patricia Uhe;
· Senior Constable Bernard Anthony Neill; and
· The accused, Colin Maxwell Booth.
The following exhibits were tendered during the trial:
Exhibit 1Statements of Vicki Maree Price dated 29 February 2012 and 9 May 2012
Exhibit 2Statement of Kayla Maree Price dated 9 May 2012 with attached drawing
Exhibit 3Statement of Constable Glen Linton-Smith dated 22 May 2012
Exhibit 4Statement of Vicki Prymas dated 10 May 2012
Exhibit 5Transcript of 000 call by Jeff Price
Exhibit 6Ariel photograph of Dunlop
Exhibit 7Photographs of premises at Badourie Street Dunlop
Exhibit 8Photographs of items found at Lance Hill Avenue Dunlop
Exhibit 9Photograph of scene where accused was located, Lane Hill Avenue Dunlop.
Exhibit 10Photographs of property in situ Lance Hill Avenue Dunlop
Exhibit 11Ariel photograph Dunlop
Exhibit 12Ariel photograph intersection of Lance Hill Avenue, Coolgardie Street and Showbridge Circuit Dunlop
Exhibit 13Statement of Merrilyn Hurst of 10 July 2012
Exhibit 14Statement of Constable Patrick O’Brien of 23 May 2012
Exhibit 15Statement of Constable Timothy Ryan of 15 May 2012
The Oral Evidence
The first Crown witness was Jeffrey Scott Price. Mr Price testified that on 29 February 2012 he resided at premises in Dunlop in the Australian Capital Territory. He resided there with his wife, Vicki Price, and their two daughters. On 29 February Mr Price went to bed between 11 and 11:30pm. His wife came to bed shortly after. Before he went to bed he checked the front door was locked. The house in Dunlop had a front door, a rear door, an internal garage door between the house and the garage, and a roller door on the garage. The roller door had a manual lock. Mr Price testified that to the best of his recollection he locked the roller door before going to bed that night. Normally the door between the garage and the kitchen is locked, although Mr Price could not be sure that it was locked on the night of 29 February 2012.
Mr Price had two large dogs, which were kept inside the house at night. During the night he heard one of the dogs barking. Moments later his 19 year old daughter came into the hallway outside his bedroom and called out “Dad quick, someone is in the house”. Mr Price got out of bed and said “What do you mean?” His daughter said “Somebody’s in the house. I think they’re in the garage or they are going out through the garage”. Mr Price ran to the garage. He opened the internal door to the garage, stepped into the garage and at that point he could see that the roller door was partially open. Mr Price’s car was parked in the driveway outside the roller door, facing the roller door. When he entered the garage he noticed that his car lights were on, partially illuminating the inside of the garage. Light also reflected back from the garage door onto his car. He was able to observe, from the knees down, someone standing next to his car. The only description he was able to give of that person was that they appeared to be wearing a dark pair of trousers, and the shoes appeared to be dark although Mr Price was short sure of that because of the way the light was reflecting from the garage door.
Mr Price called out to the person standing next to his car. That person ran down the driveway of Mr Price’s house towards Coolgardie Street. Mr Price fully opened the garage door, and saw a person running up Coolgardie Street. He believed from the shape of the person, and the speed at which they left the area that it was a male. He described the person as medium but stocky build. He said the person was wearing a dark jacket with a hood which was hiding their head. He could not see that person’s hands.
The police were then called. About eight to ten minutes after being called, the police arrived. A subsequent inspection of the house revealed that Mr Price’s car keys were missing, as were his cigarettes, his mints and his wife’s handbag. Mr Price believed that they arrived at about 2:55am.
Mr Price testified that he was 100% sure about the description of the pants and the jacket that he gave police. However, he was not certain about his description of the offender’s shoes. Because of the way the light reflected back off the garage door, he was unsure of the colour of the shoes.
In cross examination Mr Price agreed that his initial description to police of the person that be observed beside his car was that the person was wearing dark shoes and dark pants. However, Mr Price stated that because of the way the car was parked, on an angle facing toward the garage door, the light reflecting from the garage door did not shine on the shoes. The light was shining up to a level about knee height. Mr Price agreed that in his statement to police he did not make any mention of the fact that the person that he saw running from his premises was wearing a hoodie. However, he said that he was certain that the person who was running away had dark pants, a dark jacket and a hood. Mr Price stated that after he opened the garage door, he saw the person sprinting away as fast as they could. At that time he probably had only three seconds at the most to observe the person.
The second Crown witness was Detective Sergeant Caroline Uhe. On 28 February 2012 Sergeant Uhe started shift as a supervisor at about 9:00pm. At approximately 2:44am she received a radio message from police operations to attend at an address in Dunlop. The radio message would have been transmitted to her immediately after the ‘000’ call was made by Mrs Price. Sergeant Uhe was alone in her police car at that time. Sergeant Uhe approached the address in Dunlop along Kerrigan Street, into Lance Hill Avenue, and then turned right at the roundabout at the intersection of Lance Hill Avenue and Coolgardie Street. There was some doubt as to whether the road at that point was named Coolgardie Street or Fairlight Street. However, there is no real doubt about the position of this roundabout, which is well displayed in the aerial photograph exhibit 12. For convenience, I will refer to it as the intersection of Lance Hill Avenue and Coolgardie Street. As Sergeant Uhe turned into Coolgardie Street the headlights of her vehicle shone upon a male person in the front yard of the house on the corner of Lance Hill Avenue and Coolgardie Street. Constable Uhe testified that it took about eight minutes for her to reach the intersection of Lance Hill avenue at Coolgardie Street after she had received the radio transmission to attend at the house in Dunlop. Constable Uhe said that the male person was crouched down in the front yard of the house. When she saw the man crouched down in the front yard she was probably 15 or 20 metres away. She stopped her vehicle and put on the external spot light on the roof bar of the police vehicle. She was driving a police station wagon, which was a fully marked police vehicle. The vehicle had reflective stickers on it, and could be identified as a police vehicle. Nothing obstructed her view of the male as she turned through the roundabout. She stated that from where the male was situated, he would have had a clear view down Lance Hill Avenue, the route upon which she was approaching. The male was crouching, and was not moving.
After she stopped the vehicle and illuminated the exterior light, she could see that the male was dressed in dark clothing. He was wearing a baseball cap and had a full beard. It was drizzling with rain. The weather was quite bad, with continuous rain that evening, it was also dark. As Sergeant Uhe was alone, she remained in the police car. She wound down the police car window and called the male person over to the car, at which time she then wound the window back up to about six inches from the top. She described the male as being reluctant to move at first, but then he got up and walked toward the passenger side of the police vehicle. She asked him why he was crouching down in the rain. He said he was waiting for a friend to pick him up, and he had been drinking at a friend’s place. Sergeant Uhe asked him who his friend was. He responded “Jay”. The male could not provide a surname for Jay, or an address. When asked to provide Jay’s address, he motioned with his arm pointing down Coolgardie Street. Sergeant Uhe described the accused as “a bit nervous”, and “a little bit shaky” when he was speaking to her. When he was speaking to Sergeant Uhe, the accused was standing beside the passenger door of the police vehicle.
Sergeant Uhe described the appellant as wearing black tracksuit pants with some sort of stripe. He had a dark coloured hoodie with a zip front and was wearing a black baseball cap. He had runners on, which she believed were white and blue combination colour. The accused provided identification papers in his name to Sergeant Uhe. Sergeant Uhe described the accused as medium to solid build, about 170 centimetres tall, Caucasian, full beard, goatee which was quite blonde, longish unkempt hair which came out from underneath his baseball cap. Whilst she was checking the accused’s documents another police patrol arrived. They parked in front of Sergeant Uhe’s vehicle on the kerbside.
At about that time Sergeant Uhe received a radio transmission confirming that a burglary had occurred and a handbag had been taken belonging to Vicki Price. Whilst other police spoke to the accused, Sergeant Uhe walked around the area where the accused had been standing and the general vicinity. During the search she located a handbag and a crowbar nestled in the tall grass. The handbag and its contents were the items earlier stolen from the burglary at the home of Mr and Mrs Price in Dunlop. A further search of the area located part of a Primus tool, similar to a Leatherman, in the gutter next to Sergeant Uhe’s police vehicle. One arm of that tool was missing, which was subsequently located in the handbag on the lawn.
Sergeant Uhe directed Constable Saliba to place the accused under arrest on suspicion of burglary. The property remained in situ until photographs were taken, after which the handbag was opened up and the contents examined. Sergeant Uhe testified that there was a brief struggle between the accused and Constable Saliba when he was arrested, with the accused saying “I’ve done nothing wrong” or words to that effect.
Shortly thereafter Leading Senior Constable Neil and Constable Linton-Smith arrived in a caged vehicle and they parked on the opposite side of the road adjacent to where first Constable Saliba and Constable O’Brien and the accused were standing. Shortly thereafter, a vehicle stopped on Lance Hill Avenue nearby. It was a dark coloured sedan and a female got out of the vehicle and approached police. She identified herself as Jeanette Brownley. She produced a proof of age card as evidence of her identity. Ms Brownley stated that she received a call to pick up the accused from that intersection. Once Sergeant Uhe had taken note of her identity and contact details, Ms Brownley was allowed to leave. Ms Brownley told Sergeant Uhe that she was a friend of the accused.
Sergeant Uhe stated that the accused was nervous when she spoke to him just prior to his arrest, but he could understand her questions and he was speaking quite well. She could understand what he was saying. She could smell a slight odour of alcohol. In her opinion, he was slightly to moderately affected by alcohol.
By reference to two aerial photographs which became Exhibit 11, Sergeant Uhe considered the two direct routes from the house where the burglary occurred to the point where the accused was found. One route was 500 metres, which Sergeant Uhe estimated would take a person approximately six minutes to walk at normal walking pace. The other route was 270 metres, which she estimated would take three minutes to walk at normal walking pace. The first ‘000’ call was received at 2:41am, and Sergeant Uhe arrived at the intersection where the accused was located at 2:52am.
In cross examination Sergeant Uhe agreed that she had made her statement on 10 May 2012, about two and a half months after this incident. She agreed that she had used case notes that she prepared on the night of 29 February 2012, having resumed duty at 8:30pm that evening. As such her case notes, whilst they were prepared the same day as her conversation with the accused, was not prepared until the next shift.
Sergeant Uhe agreed that on route to the reported burglary she was alert for any suspicious activity. She was alone and the first to respond, however she knew that other police were approximately 60 seconds behind her. She stated that when she saw the accused he was a fair way back into the front yard of the premises on the corner of Lance Hill Avenue and Coolgardie Street. When she saw the accused, she did not see the handbag. It was suggested to Sergeant Uhe that the white runners the accused was wearing stood out when she saw him. She stated that the vast area where he was squatting was quite overgrown and unkempt, and the light was not reflecting off his shoes when she first saw him. When she saw the accused he was squatting and stationary in the rain. He did not change that position until she called him over. She agreed that at that time she was suspicious.
Sergeant Uhe stated that she was aware that at the watch house the accused was assessed as being too intoxicated to undertake a recorded interview. That assessment occurred at about 3:45am.
Sergeant Uhe agreed that at the time the accused was being placed into the police vehicle after being arrested, he was shouting out. She did not remember exactly what she was saying. She did not recall him saying “fingerprint everything”.
Sergeant Uhe confirmed that when she asked the accused where his friend lived, he pointed down Coolgardie Avenue. She agreed that in her police statement she said that it was Lance Hill Avenue. She said that she had made an error in her statement.
Sergeant Uhe said that she was not aware of Jeanette Brownley being known by the name Jay, and was unable to hear what the accused was saying when he was placed in the police vehicle.
It was suggested to Sergeant Uhe that the accused said that he had been at a mate’s house, a friend named Trev or Trevor. She denied that suggestion. She said her conversation with the accused was quite brief and he offered no other name than Jay.
Sergeant Uhe testified that Jeanette Brownley told her that she was there to pick up the accused, and that she had received a call from him to come and pick him up.
Sergeant Uhe agreed that the accused provided her with a document from ACT Correctional Services to prove his identity. At that point she had not confirmed that a burglary had occurred and had not searched the area and found the bag. She agreed that at that point she was not going to let him leave the area. Subsequently she received a radio communication confirming that a burglary had occurred, and she searched the area and found the bag. At that point the accused was arrested. She stated that when she first saw the accused he was about four to five metres from the house and squatting in its yard. He was about four to five metres from where she stopped her vehicle. It was suggested to her that he could have been five to six or even seven metres away from the property when he was squatting. Sergeant Uhe said “possibly, but I would have thought four to five would have been a more accurate” estimate.
Sergeant Uhe agreed that the accused’s behaviour in becoming violent after he was informed that he was under arrest was consistent with a moderate level of intoxication. She agreed that the accused was adamant that he did not know that the bag was there, and in denying that he had been involved in a burglary.
Sergeant Uhe stated that the contents of the bag had not been tested for fingerprints. She stated that the bag was open when she found it, and the bag and the items next to the bag were wet. It was her experience, based upon her 29 years as a police officer attending burglaries, that the conditions under which the bag and other items had been located would have made obtaining fingerprints impossible. She agreed that fingerprint testing had been done at the scene of the burglary, but that none had been located. With respect to the car located in the driveway where the burglary occurred, due to the wet exterior and unsuitable surface for examination, no fingerprints were developed.
Sergeant Uhe testified that as she approached the roundabout she did not see any other person in the vicinity. The first person that she observed was the accused.
Sergeant Uhe testified that when Jeanette Brownley attended the accused was already in the back of the caged police vehicle. She thought that was five to seven minutes after she had originally arrived at the scene.
The last Crown witness was Leading Senior Constable Bernard Neill. On the morning of 29 February 2012 he was rostered on duty with Constable Linton-Smith. That morning he and Constable Linton-Smith were called to the area of Dunlop to assist other police after a reported burglary. He and Constable Linton-Smith were in a caged police vehicle. When they arrived at the intersection where the accused had been arrested, the accused was in handcuffs. The accused was placed in the back of the police vehicle, and he was then transported back to the watch house. He was later told that the accused was deemed to be intoxicated after a breath test was done. He was told that as a result the accused could not be interviewed. He did not know what blood alcohol reading the accused had returned, nor what level of blood alcohol reading would prompt the watch house Sergeant to determine that an accused person was too intoxicated to be interviewed.
Leading Senior Constable Neill agreed that a list of the possessions found on the accused at the watch house did not include a mobile phone.
In cross examination Leading Senior Constable Neill agreed that in his statement he had recorded that the accused was wearing blue and white Nike runners when he was arrested. Leading Senior Constable Neill stated that he was not involved in any search of the accused.
The accused gave evidence. He was 28 years old, and currently living at the Alexander Maconochie Centre. When he is not living at the AMC he resides with his father, Tony Booth. He testified that before being found by Sergeant Uhe, he had been at a mate’s place at the back of Charnwood, just on Dunlop, drinking. His mate was named Trevor. He said that he left Trevor’s house at around 2 or 2:30am. He was going to another mate’s place, Steve, in Macgregor. He said that he got lost on the way, and was walking in circles. He said that he was drunk and couldn’t remember which way to go. The first landmark that he recognised was the Woolworths in Dunlop.
When he realised where he was, he rang his ex girlfriend Jeanette Brownley. He stated that she doesn’t like being called Jeanette so everyone calls her Jay. He told her that he was lost and drunk in Dunlop and asked her to come and pick him up.
A few minutes later Sergeant Uhe attended.
The accused stated that he had commenced drinking at about 11:00 on 28 February 2012. He started drinking at his father’s house. He was drinking Bundaberg Rum and Coke in cans. He drank there for an hour or so, and then he walked to his mother’s house, which is also in Spence. It is approximately a five minute walk from his mother’s to his father’s house. At his mother’s house he continued to drink Bundaberg and Coke. He stated that he had consumed “maybe two six packs” at his father and his mother’s houses. He said that he then went over to Jeanette Brownley’s house in Braddon. He had met her at his mother’s, and she drove him back to her place. At Jeanette Brownley’s they sat down and talked and he drank wine. He had half a cask of wine. He thought that he arrived at Jeanette Brownley’s at about 8:00pm. At that time he thought that he was about “six out of ten” drunk, with ten being paralytic.
Subsequently he and Jeanette Brownley went back to his mother’s house in Spence. He was drinking rum and coke again. He didn’t know what time he left his mother’s, but he then went down to Trevor’s. He could not recall Trevor’s address, but said that he could “take you there straight away” in a car. He stated that he arrived at Trevor’s at around 11 to 11:30pm. He consumed further alcohol at Trevor’s. Subsequently he left Trevor’s and became lost before finding himself at the roundabout at Woolworths in Dunlop.
The accused testified that when Sergeant Uhe arrived he had just finished speaking to Jeanette Brownley on the phone. He said that he was crouching on the footpath. He said that Sergeant Uhe called him over, and he told her that he had just finished drinking at his mate’s place and was waiting for Jay to turn up to take him home. He said that Sergeant Uhe asked him for identification, and he gave her a prison release paper. He said that another police officer turned up and they said that he was under arrest for break and enter. He said that he told them that he hadn’t done anything, and that they should fingerprint everything. He said that it was not until after they arrested him and handcuffed him that police conducted a search using torches in the area. He did not see the handbag located by police at all prior to being arrested.
The accused denied having any tools with him when he left Trevor’s, denied having placed a tool on the ground next to the police car, and denied breaking into the house and stealing the bag.
The accused stated that he had telephoned Jeanette Brownley using his mobile phone. He said that he put the mobile phone down his pants, into his underpants, when he saw the police car approaching him, and it remained there when he went back to the watch house. He was not strip searched at the watch house and hid the mobile phone in a padded cell in the Magistrates Court holding cells whilst he was taken to court. After being remanded in custody he apparently retrieved the mobile phone and took it to the AMC. He stated that he had it with him for about five months and then Corrections Officers found it at the AMC.
In cross examination the accused stated that he was not sure of Trevor’s last name. He stated that he had been friends with Trevor on and off for a few years, but did not know his last name. He said that he does not know many of his friend’s last names. He further indicated that he would not be able to indicate Trevor’s address on a map, if he was provided with one. He was not able to recall any landmarks such as service stations or shops or anything near Trevor’s house. He was not able to describe the route that he took from his mother’s house to Trevor’s.
The accused stated that when he left Trevor’s house he intended walking to his mate Steve’s. He indicated that at that time Steve lived in Macgregor. He stated that Steve’s last name was Waters, but that he has subsequently moved from Canberra to Nowra.
The accused stated that he recognised the Woolworths, because there were only two Woolworths stores close to where he lived, one being in Charnwood and one in Dunlop. He knew that it wasn’t Charnwood because he goes to Charnwood regularly.
At the time that he arrived at the Woolworths at Dunlop, he described himself as being “eight or nine out of ten” in terms of the level of his intoxication. He agreed that he saw the marked police car coming around the roundabout. He denied the suggestion that when he saw the police vehicle he panicked and threw away the handbag. He denied that he had been involved in the burglary, or that he had been in possession of the handbag. He denied being on the lawn of the property at the intersection where he was located, stating that he was on the footpath. He denied having dropped part of a tool beside the police vehicle when he was called over to speak to Sergeant Uhe.
The accused stated in cross examination that he told Sergeant Uhe that he was just waiting to get picked up. He stated that he told her he had just been drinking at a friend’s place.
In cross examination the accused agreed that he put the mobile phone in his underpants as he saw the police car approaching him. He denied that the reason he did so was because he was aware that he had just committed a burglary, and was concerned that he would be arrested. He stated that he was on parole at the time and thought that he could get locked up for being intoxicated in a public place. He was not 100% sure but he did not think that he was subject to any parole condition prohibiting him from using alcohol.
Consideration
I am satisfied beyond a reasonable doubt that when the accused was first seen by Sergeant Uhe he was squatting in the front yard of the house on the corner of Lance Hill Avenue and Coolgardie Street Dunlop. I do not accept the accused’s evidence that he was squatting on the footpath. The accused was intoxicated to a degree, and Sergeant Uhe was not. Further, Sergeant Uhe had a good opportunity of observing where the accused was squatting after she stopped her vehicle, illuminated the exterior lights and called on the accused to come to the police vehicle.
I accept that the accused was waiting on that corner because he expected Jeanette Brownley to pick him up there in her car. It is more probable than not that the accused had telephoned Ms Brownley using his mobile phone, which he then secreted in his underwear when he saw the marked police car driven by Sergeant Uhe approaching.
Two questions arise from the above:
a)why was the accused crouching in the front yard of the house when Sergeant Uhe approached? and;
b)why did he place his mobile phone in his underwear when Sergeant Uhe approached?
In his evidence the accused stated he was squatting on the footpath before he saw Sergeant Uhe. As I have already said, I reject the proposition that he was on the footpath. If, as the accused asserted, he had phoned Ms Brownley at his mother’s residence in Spence and asked her to collect him, he must have expected her arrival not long after he made the call. It was raining, and the ground was wet. It would make no sense for the accused to squat in the wet grass unless he was trying to make himself less visible. I am satisfied that he was attempting to make himself less visible in two ways: firstly, by retreating towards the house and away from the street; secondly, by squatting down.
Based upon the evidence of Sergeant Uhe I am satisfied beyond a reasonable doubt that the accused was slightly to moderately affected by alcohol. This finding is not inconsistent with the view apparently taken by the watch house sergeant later that morning that the accused was too intoxicated to be interviewed.
The evidence given by the accused about where he had been before he was seen by Sergeant Uhe, and his conversation with her at Dunlop, was most unconvincing. I am satisfied on the evidence of Sergeant Uhe that she asked the accused why he was crouching in the rain, and that he replied that he was waiting for a friend to pick him up, and had been at a friend’s house drinking. Sergeant Uhe asked the accused who the friend was, and he answered “Jay”. The fact that the accused understood the friend referred to by Sergeant Uhe to be the one he had been drinking with, and not the one who was coming to pick him up, is shown by the accused actions when then asked by Sergeant Uhe where Jay lived. The accused pointed down Coolgardie Street. The accused knew that Jeanette Brownley did not live in Dunlop. The accused knew she lived in Braddon, as he had been drinking at her residence the previous day. It is quite clear that the accused was saying that he had been drinking with “Jay”, and that Jay lived in the direction he indicated to Sergeant Uhe.
This was markedly different to the version of events given by the accused in his evidence. In evidence he said he had been at “Trevors” house in Charnwood.
The accused’s evidence about “Trevor” was highly unsatisfactory. Despite having known Trevor for some years he did not know his last name, did not know his address and could provide no information which may have led to Trevor’s identification.
I am satisfied that the accused is not a credible witness. His evidence as to what he was doing before he was seen by Sergeant Uhe is very different to what he told Sergeant Uhe on the night. I am also satisfied that he sought to exaggerate the extent to which he was intoxicated on the evening, and was not truthful in his evidence that he was crouching on the footpath, as opposed to the grass front yard of the house at the intersection of Lance Hill Avenue and Coolgardie Street, when seen by Sergeant Uhe. This does not constitute evidence that the accused committed the crimes alleges against him, but instead forms the basis for me rejecting his version of the events of that night.
In the light of the close proximity in time between the burglary and the discovery of the property at the intersection of Lance Hill Avenue and Coolgardie Street, it is an inevitable inference that the burglar conveyed the property from the scene of the crime to where it was located. It is also an inevitable inference that those tools and other items located with the property the subject of the burglary belonged to the burglar. In the light of the fact that money and other valuables had not been removed from Mrs Price’s handbag, it may be inferred that the handbag had been hastily abandoned by the burglar. As the burglar had to travel at least 270 metres to the point where the handbag was abandoned, and it was not abandoned in the course of that journey, it may be inferred that whatever happened to cause the burglar to abandon the handbag, and his own tools, occurred at the place where those objects were found. That was the place where the accused was located.
The burglar is linked to a particular spot on the edge of Coolgardie Street by part of the Primus tool being located in the gutter at that spot. The other part of that tool was found to be in the handbag. That spot was the position where the accused stood when he was speaking to Sergeant Uhe through the partly opened window of the police car.
When the accused was located by Sergeant Uhe, he was dressed consistently with the description of the clothing worn by the burglar some 11 minutes earlier. The only possible difference is the fact hat the accused was wearing mainly light coloured shoes, whereas Mr Price initially described the burglar’s shoes to police as dark. However, Mr Price stated in his evidence that he could not be certain of the colour of the offender’s shoes. I accept Mr Price’s evidence.
The accused was found within 4 to 5 metres of the stolen property. His behaviour in crouching down within the front yard of the house strongly suggests that the accused had a reason to avoid detection by Sergeant Uhe. His explanation that he was on parole and afraid he may get into trouble for being intoxicated is not credible. The accused was not aware of any condition attached to his parole prohibiting him from drinking alcohol, and in any event was not heavily intoxicated. For the same reason, his actions in placing his mobile phone in his underpants cannot be explained by a belief that he may get into trouble for being intoxicated. The burglar knew that the hue and cry had been raised by the Prices, and would have been aware of the probability that police would soon be looking for the offender. The accused’s conduct in trying to avoid police attention and secreting the mobile phone is consistent with him having knowledge that the police was looking for someone, and that if he was seen, suspicion would fall on him.
Findings
Returning to the two questions I posed at paragraph 52 above, in all of the circumstances to which I have referred, I infer that the accused crouched down inside the property at the corner of Lance Hill Avenue and Coolgardie Street, and placed his mobile phone in his underwear, because he knew that police were looking for a burglar and he knew that the proceeds of the burglary were located only metres away from him.
The accused was found in close proximity to the goods stolen in the burglary. He was located some 270 metres from the scene of the burglary about 11 minutes after it occurred. He was observed to be wearing clothing similar to that worn by the burglar. He later stood next to the Sergeant Uhe’s police car and, subsequently, part of a Primus tool was found discarded in the gutter at that spot. Another part of the same tool was located in the stolen handbag. I am satisfied that the accused was aware that police were looking for an offender, and that they may arrest him. I am satisfied that he was aware of the handbag and other items that were located some 4 or 5 metres from him. The inevitable inference is that the accused was the burglar.
The only other available inference is that someone else, wearing similar clothing, conducted the burglary, coincidentally ended up at the intersection of Coolgardie Street and Lance Hill Avenue minutes before the accused arrived, for some unknown reason abandoned the handbag, coincidentally depositing part of the Primus tool exactly where the accused would come to stand next to Sergeant Uhe’s vehicle, before leaving the area unseen by the accused. This scenario is so improbable as to be dismissed out of hand.
I am satisfied beyond a reasonable doubt that the accused committed the offences of burglary and theft at the Price’s residence in Dunlop. He carried the handbag to the intersection of Coolgardie Street and Lance Hill Avenue, where he expected to meet Ms Brownley. He saw a vehicle approaching on Lance Hill Avenue, and when he realised it was a police car, he threw the handbag away and tried to make himself less visible by moving away from the street and crouching down. When Sergeant Uhe stopped her vehicle and called the accused over, he realised he still had part of the Primus tool on him and he dropped it on the ground next to the police car.
The accused has offered no explanation for possession of the Primus tool. Of course, he was not obliged to. However, this means that the evidence is left in a state where I must decide the third count based solely on the facts that the accused took that item with him when he went to the Price’s residence to commit the burglary, and later divested himself of it when he thought he may be apprehended by the police. The inevitable inference is that the accused had the Primus tool with him for use in a burglary or in a theft.
I find each of the offences proved.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 21 December 2012
Counsel for the appellant: Ms Clarke
Solicitor for the appellant: Director of Public Prosecutions
Counsel for the respondent: Mr Hopkins
Solicitor for the respondent: Darryl Perkins Solicitors
Date of hearing: 17 October 2012
Date of judgment: 21 December 2012
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