R v Berking CA56/06

[2011] NZCA 448

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA56/06

THE QUEEN

v

BIANCA MARIA BERKING

Hearing:         23 August 2006

Court:            Chambers, Randerson and John Hansen JJ Counsel:  P T R Heaslip for Appellant

H D M Lawry for Crown

Judgment:      4 September 2006         at 11 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B          The appeal is allowed.

C        The conviction for burglary is quashed.

D        A new trial on the charge of burglary is directed.

R V BERKING CA CA56/06  4 September 2006

EAn order is made that these reasons for judgment are not to be published in the news media or on the internet or in any other publicly accessible database until the final disposition of the new trial.  Publication in a law

report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]      The appellant was convicted after trial in the Auckland District Court on

7 December 2004 on one count of burglary under s 241(a) Crimes Act  1961 (a section then in force but since repealed and a new section substituted).   She was acquitted on one count of aggravated robbery arising from the same incident and later sentenced by Judge Kiernan to 120 hours community work and 12 months supervision.  The sentence has been suspended pending the outcome of this appeal.

[2]      The appellant now appeals against her conviction on the principal ground that the Judge misdirected the jury on the burglary count.

Background

[3]      The complainant and the appellant lived in the same street in West Auckland and were known to each other.  A dispute arose between them over babysitting fees which the appellant claimed were owed to her by the complainant. It is unnecessary to relate the complete background.  It is sufficient to deal with the events on the day of the alleged offending on 19 February 2003.  At about 5 p.m. that day there was a verbal altercation between the complainant  and the appellant  at  the door of the complainant’s home.   The appellant went away but returned that  evening to the complainant’s home about 10 p.m. at a time when the complainant had left for a short period.

[4]      There is no dispute that the appellant and a female friend (who has not been identified) entered the appellant’s home through a closed but unlocked ranchslider door.   It is common ground that the two women waited inside the complainant’s home in the dark with the lights turned off.  The appellant accepted in evidence that she was wearing a beanie and rubber gloves.

[5]      When the complainant returned a short time later, she went inside the house but, according to her evidence, before she could turn the lights on, she saw the shadows of the two women and began running towards the front  door.   On the complainant’s account, the appellant began yelling and swearing at her.   She was attacked and ended up face down on the floor with the appellant sitting on her back. She could not free herself and her head was being propelled into the heater in the lounge.  She did not know the second woman but described her as being large and shorter than the appellant.  The appellant grabbed her hair and continued to yell at her saying she wanted $10.  She heard the zip of her bag being opened and she ended up telling the appellant and her associate that she would give them the money.  The two women left and the complainant noticed that $120 and a mobile phone had been taken.

[6]      The appellant gave evidence on her own behalf.  She admitted going into the complainant’s  home  that  evening  and  that  she  was  angry  with  her  over  the babysitting fees.   She agreed she and her associate had remained inside the house with the lights off.  She was adamant that her intention was solely to confront the complainant about the money issue and that she had no intention of doing anything to  her  or  robbing  her.    She  accepted  she  had  assaulted  the  complainant  but maintained this was not  her intention when she entered the house.    Rather,  her intention was “to let her know I was angry at her”.  According to the appellant, when the complainant entered the house and before she turned the lights on, she (the complainant) screamed and that was why the appellant jumped at her and grabbed her.   She denied demanding money from her but admitted the two of them were “falling all over the place” and that she probably did grab the complainant’s hair. The appellant’s evidence was that the complainant unzipped her purse and handed a

$5 note to her.  She denied taking the cellphone and said she did not see the $120 taken.

[7]      When asked about the rubber gloves, she first gave an explanation that she and her child had been painting and then said she was wearing them because it was a freezing night.  Given that it was February in Auckland, this last statement strains credibility.

The issues at trial

[8]      Section 241 has since been repealed and a new s 231 substituted with effect from 1 October 2003.   But as it stood at the time of the alleged offending, s 241 provided:

(1)     Every one is guilty of burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a)     Breaks and enters any building or ship with intent to commit a crime therein; …

[9]      It  was  not  in  dispute  that  the  appellant  had  broken  and  entered  the complainant’s home without authority.  The real issue was whether, at the time she entered the complainant’s home, she intended to commit a crime therein.  It is clear from the Judge’s summing up that the Crown’s case was advanced on the footing that the  jury should  infer  from all the circumstances that  the appellant  and  her associate intended to rob the complainant.  The appellant’s defence on the burglary charge was that the appellant had gone to the complainant’s home to confront her about the money owing and that she did not intend to steal anything nor to beat up the complainant.

[10]     In relation to the aggravated robbery count, the Crown case was that the appellant and her associate were acting together with the joint intention or purpose of stealing the complainant’s property with accompanying violence or threats of violence.  The defence challenged the complainant’s account of matters and urged the jury to accept the appellant’s account that she had accepted $5 offered to her by the complainant and that she had colour of right (in that she honestly believed she was entitled to the money for the babysitting fees).

[11]     For the appellant, Mr Heaslip raised several grounds of appeal but, in the end, it is necessary for us to deal with only two of them.  Mr Heaslip’s first and principal point was that the Judge had misdirected the jury on the burglary count in relation to the issue of criminal intent.   His second ground was that the jury’s verdict on the burglary count was unreasonable or not supported by the evidence.   On the first issue, the Judge’s direction was:

Now the third element which is the element squarely in dispute in this trial is that the Crown must prove to you that at the time the accused entered the building she had the intention of committing a crime once inside it.

Now it is not necessary for that intention to have been actually carried out and most commonly of course, the crime that the Crown alleges is theft but that is not necessarily so.  It can be any crime at all.

So I have summarised that for you on the sheet.  The third element that must be proved that  at the time the accused  entered the building she had  an intention of committing a crime once inside it.   It is not necessary for that intention to have been actually carried out.  It can be any crime.

[12]     The direction given by the Judge was expressed in a similar form in the written elements statement which was prepared and given to the jury for the purpose of assisting them to reach their verdict.  The third element of the burglary count was stated in this statement as follows:

That at the time the accused entered the building she had an intention of committing a crime once inside it.   It is not necessary for that intention to have been actually carried out.  It can be any crime.

[13]     The Judge gave full and proper directions on the  legal elements of both burglary and aggravated robbery.  And later, when summarising the Crown case she stated:

In this case the Crown asks you to draw the conclusion from all the circumstances that the accused did have a certain intention at the time of the burglary, namely an intention to rob.  Theft accompanied by violence.

[14]     Mr Heaslip accepted that it is not necessary for a burglary indictment to specify the crime intended upon the breaking and entering.  That is well established

by a series of authorities:   R v Borland (1908) 10 GLR 241; R v O’Meara [1943] NZLR 328; R v Tracy [1978] 2 NZLR 91; and R v Hoko CA457/00 24 July 2001.

[15]     That follows too from s 329(3) Crimes Act which provides essentially that an indictment may be in the words of the enactment describing the crime.   Here, the crime of burglary was described in s 141 as breaking and entering “with intent to commit a crime …”.

[16]     But Mr Heaslip submitted it was incumbent on the trial Judge to be specific in directing the jury about the crime which the Crown alleged the appellant intended to commit.   That would require the Judge to obtain clarity from the prosecutor on that issue at an appropriate stage.

[17]     Mr Heaslip further submitted the Judge’s directions were confusing to the jury.  He supported that submission by the answers given by the Judge to two jury questions raised after retirement.  The questions were:

Count 2, does the “colour of right” mean that the accused must think their actions are lawful as well as justified in their view?

Count 1, if all parties agree to part 1 and 2 of count 1, does ‘intent to intimidate’ constitute a crime in part 3?

[18]      The Judge answered the first question “Yes” and the second one “No”.  She offered to repeat earlier legal directions if the jury felt that would assist.

[19]     Before the  Judge  answered  the  questions,  she  discussed  the  matter  with counsel and we have the record of those discussions.  This shows that trial counsel (not Mr Heaslip) raised a concern about opening up the possibility of other crimes when the Crown’s case  had been put on the basis that  the crime  intended was aggravated robbery.   He pointed out it had not been put to the appellant that she intended to intimidate and it would be unfair to widen the scope of the Crown case in that  respect.   Trial counsel mentioned crimes such as demanding with  menaces (s 239 Crimes Act).

[20]     After further discussion, trial counsel for the appellant indicated he would prefer a simple “No” answer be given without elaboration.

[21]     Mr Lawry submitted for the Crown on appeal that the trial Judge was correct to state the crime of burglary in broad terms which reflected the wording of s 241. He also submitted that the intended crime for the purposes of the burglary count was assault or theft or both.  However, at another part of the Crown’s written submission, it was accepted that, in the light of the acquittal on the aggravated robbery charge, the jury could not have been satisfied beyond reasonable doubt that a theft actually occurred (or at least not one to which the appellant was party).  The Crown’s written submission also  accepted it  would  be  unsafe  to  infer  that  the  appellant  had  an intention to steal on entering the premises.

Discussion

[22]     While we accept  that  the Crown is entitled to  present  an  indictment  for burglary which does not particularise the crime intended, it is open for an accused to seek particulars of the Crown’s allegation at an appropriate stage.   If this has not occurred by the commencement of the trial the trial Judge should ensure that the prosecutor specifies what crime or crimes the Crown alleges were intended when the breaking and entering occurred.  Otherwise, the accused does not have a clear picture of the case he or she is facing and the Judge is not in a position in summing up to give the jury proper directions about the Crown’s allegations including whether or not the intended conduct amounts to a crime.   In the absence of such directions, a jury may be left to speculate as to whether the intended conduct amounted to a crime.  We add that the Crown may, if necessary, seek leave to amend the particulars to conform to the evidence as it emerges during trial, and the trial Judge will have a discretion to grant an amendment if the justice of the case so requires.

[23]     Here, the Crown had clearly advanced its case on the basis that the appellant and her associate entered the property for the purpose of committing an aggravated robbery.  While the Judge made it clear to the jury at one point of her summing up that this was the Crown’s allegation, she had earlier expressed herself in general terms (“it can be any crime”) and this was repeated in the written elements statement

given to the jury on their retirement.  The jury’s question about whether “intent to intimidate” constituted a crime for the purposes of the burglary count shows that the jury was giving consideration to the possibility of other crimes beyond aggravated robbery and lends support to Mr Heaslip’s submission that the jury may have been confused on this issue.

[24]     The Judge correctly directed the jury that  a person may be convicted of burglary even though the intended crime is not actually carried out.   But, as the Crown rightly concedes, it would be unsafe to infer that the jury could have been satisfied beyond reasonable doubt that a theft actually occurred given the acquittal on the aggravated robbery count which necessarily required a finding of theft accompanied by violence or threats of violence.  There was a tenable case of colour of right and the jury could quite reasonably have entertained a doubt on that issue.

[25]     As the Judge ruled out the existence of a crime of “intent to intimidate” and since assault as such was never advanced by the Crown to the jury as the intended crime (except as one element in the aggravated robbery charge), we have concluded that the jury’s verdict must be regarded as unsafe.  We cannot rule out the possibility that the jury may have reached their verdict on the burglary count on the basis that the appellant intended a crime other than aggravated robbery when that was the only intended crime relied upon by the Crown and the only intended crime upon which the Judge had directed.  The risk is that without assistance from the Judge, the jury may have decided that certain conduct intended by the appellant was a crime when it may not have been.

[26]     In summary:

a)       An indictment for burglary need not state the crime intended to be committed by the accused after gaining entry to the premises.

b)       But the trial Judge should ensure at the outset of the trial that the Crown specifies the intended crime for the purposes of the burglary charge. The Judge has a discretion to grant leave to the Crown to

amend the particulars given at a later stage should the interests of justice so require.

c)       While the Judge may properly direct the jury that any intended crime is  sufficient  for  burglary under  s  241,  the  Judge  should  stipulate exactly what intended crime the Crown relies upon for the purpose of the charge.

d)If a written statement of elements is given to the jury, it is desirable in order to avoid the risk of confusion to specify the intended crime rather than simply stating as here that “it can be any crime”.

e)       Generally, it is not necessary to give any detailed statement of the elements of the intended crime for the purposes of a burglary count. It may be helpful to explain the issue to the jury by reference to the facts of the case.  For example, a jury could be directed that if they were to conclude that the accused intended to enter a dwelling house to beat up the occupant then this would amount to an intention to enter for the purposes of committing the crime of assault.  This is however a general rule and it may be necessary to give more detail in other cases.   For example, where theft  is the  intended crime  it  may be necessary to direct on colour of right if that could be an issue in the circumstances of the case.

[27]     As to  Mr  Heaslip’s submission that  the verdict  was unreasonable or  not supported by the evidence, we are satisfied there was ample evidence on the complainant’s account to support the burglary count and that it was open for the jury to accept her evidence.  Having reviewed the evidence, we consider the most likely inference in the circumstances of this case is that the appellant and her associate went to the complainant’s home with the intention of demanding the money to which she considered she was entitled and extracting that money by intimidation, threats of violence and the use of actual violence if her demands were not met.  While a claim of colour of right may be a defence to a charge of demanding with menaces under

s 239(2) Crimes Act, an intention to use violence would undoubtedly constitute an intention to commit the crime of assault.

Result

[28]     There being no objection to the application for leave to appeal out of time, leave is granted accordingly.  The appeal will be allowed on the footing that there was a real risk of a miscarriage of justice.  A retrial is ordered on the burglary count.

Solicitors:

Paul Heaslip Lawyer, Auckland

Crown Law Office, Wellington