R v Millard [2006] ACTSC 56 (6 June 2006)

Last Updated: 12 February 2007

THE QUEEN v MATTHEW JOHN MILLARD [2006] ACTSC 56 (6 June 2006)

CRIMINAL LAW - trial by judge alone - charges of burglary and theft - Crown case substantially dependent upon fingerprint found on allegedly stolen item - whether sufficient

Supreme Court Act 1993 (ACT), s 68C

Evidence Act 1995 (Cth), s 144

No SCC 233 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 6 June 2006

IN THE SUPREME COURT OF THE )

) No SCC 233 of 2005

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

MATTHEW JOHN MILLARD

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 6 June 2006

Place: Canberra

1. The accused was arraigned before me yesterday on an indictment containing the following counts:

1. . . . that on 20^th day of October 2003 at Canberra in the Australian Capital Territory [he] entered a building namely, 73 Alfred Hill Drive Melba (`the house in Melba') as a trespasser with intent to steal; and

2. . . . that on 20^th day of October 2003 at Canberra aforesaid [he] stole one Sony Trinitron Television valued at $1500 belonging to Ian McAlister.

2. The accused elected to be tried by judge alone and I was bound by the provisions of s 68C of the Supreme Court Act 1993 (ACT) which is in the following terms:

"(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 shall implement the principles of the law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

3. As in other trials, the accused is entitled to a presumption of innocence, the Crown bears the burden of proving each element of each charge, and the standard of proof is proof beyond reasonable doubt.

4. When, as in the present case, the Crown case is dependent upon circumstantial evidence, guilt must be not merely a rational inference but the only rational inference that could be drawn from the circumstances proven in evidence or, to put it in another way, the facts must exclude any reasonable hypothesis consistent with the innocence of the accused. Furthermore, when any one fact is an indispensable link in a chain of reasoning leading to an inference of guilt, then that fact must itself proven beyond reasonable doubt.

5. Any verdict had to be based upon the evidence admitted at the trial or if relevant, any matters of common knowledge that could be taken into account by reason of s 144 of the Evidence Act 1995 (Cth).

6. To establish the offence of burglary charged in the first count of the indictment it was necessary for the Crown to prove the following elements:

(a) that on 20 October 2003 the accused entered the hose at Melba;

(b) that he did so as a trespasser; and

(c) that he did so with the intention of stealing something inside the house.

7. To establish the offence of theft charged in the second count of the indictment it was necessary for the Crown to prove the following elements:

(a) that the accused took the televisions set;

(b) that the television set belonged to Ian McAlister;

(c) that the taking was carried out dishonestly; and

(d) that the accused intended to permanently deprive Mr McAlister of the television set, at least in the sense of treating it as his own, to dispose of regardless of Mr McAlister's rights.

8. The evidence relied upon by the Crown may be briefly described.

9. Ms Claire McAlister gave evidence that she had been living with her parents at the house in Melba and that on the day in question she had returned home at about 3.30 pm. She saw a small blue hatchback car parked in the carport. She parked behind it but did not get out of her vehicle immediately because she was puzzled at the presence of the blue car and uncertain as to who might have owned it. She then saw a man walk from a flight of stairs adjacent to the carport towards an open door of the blue car. He seemed surprised to see her and, after looking at her for a few seconds, turned and ran back around the side of the house.

10. She described him in evidence as a tall and lanky man with a long face and olive skin. She said that he had been wearing a red T-shirt, khaki shorts and a black cap. In cross-examination she agreed that she had previously told the police that the man had been of medium height, though the balance of the description given to them was generally consistent with that given during her evidence in chief. She confirmed that he seemed to be in his early twenties and said that he looked similar to a former school friend who had been of Lebanese origin. She also confirmed that she had noticed that his hands had been large and shaking.

11. She got out of her vehicle and went over to the blue car. She was surprised to find a television set in it. She walked down to the house and noticed that a fly screen had been pulled from the bathroom window and that a rear door was ajar. She went into the house and found that the cabinet that had formerly housed the television set had been moved. She called her father, Mr Ian McAlister.

12. Mr McAlister gave evidence that he arrived home shortly after 3.45 pm and found that the police had already arrived. He saw his Sony Trinitron television set in the back of the blue car in the carport. He explained that he had bought the television set as part of a package deal some nine months earlier and said that it had then been worth about $1,800.

13. It was clear from this evidence that someone had broken into the house at Melba, obviously as a trespasser, and had proceeded to take the television from that house and place it into the back of the blue car in circumstances plainly amounting to an asportation. This had obviously occurred with the intention of permanently depriving Mr McAlister of it. Mr Doig, who appeared for the accused, quite properly conceded that the only real issue in relation to each count in the indictment was one of identity.

14. Ms McAlister had not purported to identify the accused and her description of him had clearly been insufficient to enable me to be satisfied that it was him that she had seen in the carport. Indeed, Mr Doig argued that her description was inconsistent with the appearance of the accused. In particular, he pointed out that the accused was obviously not of Lebanese extraction. A "photofit", prepared at Ms McAlister's direction was also tendered in evidence and Mr Doig submitted that the facial features depicted in that document were also inconsistent with those of the accused. I accepted that this evidence did not support the Crown case and, on the contrary, provided some limited support for Mr Doig's contention that the person she saw may not have been the accused, though it was obviously necessary to make some allowance for the fact that she had been able to observe the features of the man only for a matter of seconds, that he had been standing in the shade, and that she had been surprised by his presence.

15. The real strength of the Crown case lay in the fingerprint evidence. Ms Lam, a crime scene investigator, attended the scene at about 4.45 pm. She found a number of fingerprints, including some left on the television set, and both photographed them and took tape lifts from them. Mr Comber, a fingerprint expert, gave evidence that he had compared a fingerprint lifted from the television set with a fingerprint identified as that of the accused on the National Automated Fingerprint Identification System (`NAFIS"). He found that the two prints had both been made by the middle finger of the same left hand. There was no challenge to Mr Comber's methodology or as to the accuracy of this conclusion. I found him to be an impressive witness and accepted his evidence. It was not suggested that the fingerprint obtained from NAFIS had been incorrectly attributed to the accused and I was satisfied beyond reasonable doubt that the print had been left on the television set when touched by the accused.

16. Whilst Mr Doig did not cavil at this conclusion, he did contend that it did not prove that the accused was guilty of either offence. He pointed out that, on Mr McAlister's evidence, the house had been empty since about 8.30 am and suggested that it was impossible to know how long the car had been parked in the carport or even whether it had been driven to and from the house on more than one occasion. He also submitted that it was unlikely that a man who had not been wearing gloves and had left one fingerprint on the television set would not have left any other fingerprints on the car or on objects in the house. It was unclear when the fingerprint had been put on the television set and there was no basis for an assumption that it must have occurred prior to its removal from the house. It was at least theoretically possible that it had been put there in circumstances not involving criminal activity on his part. In any event, the allegation of burglary was based purely and simply upon the presence of a single fingerprint, not shown to have been placed on the television set whilst it was still in the house. This was insufficient. Similarly, the absence of any evidence as to when the fingerprint had been made, precluded any finding that the accused had been the thief, rather than merely a person who had come into contact with the television set at some subsequent time.

17. The accused did not give evidence. As Mr Doig quite properly observed, his failure to do so did not provide any basis for an adverse inference to be drawn against him. The onus rested upon the Crown throughout the trial to prove each element of each charge beyond reasonable doubt.

18. Viewed overall, the evidence adduced by the Crown provided a compelling case that someone had broken into the house at Melba for the purpose of stealing property and had thereupon stolen the television set by removing it from the house and placing it in the blue car. Neither Mr McAlister nor his daughter recognised the accused or was familiar with his name and it was not suggested to either of them that he had ever been into their home. In these circumstances, it seemed inescapable that the fingerprint could only have been placed upon the television set after Mr McAlister had left for work that morning. It was, in my opinion, fanciful to suggest that some unidentified person may have broken into the house at Melba, stolen the television set and then made it available for the accused to touch, whether whilst still parked in the driveway or at some other place, before reappearing alone at the time of Ms McAlister's return. I did not accept that this was a reasonable hypothesis consistent with the innocence of the accused.

19. In all of the circumstances I was satisfied beyond reasonable doubt that the accused was guilty of both offences.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 June 2006

Counsel for the Crown: Mr M Clark

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr A Doig

Solicitor for the Accused: Darryl Perkins

Date of hearing: 5 June 2006

Date of judgment: 6 June 2006