Director of Public Prosecutions v Jay Williams

HER HONOUR: By way of summons filed on 11 July 2018 the plaintiff, the Director of Public Prosecutions, appeals, pursuant to s 56(1)(c) of the Crimes (Appeal and Review Act) 2001 (NSW), against an order of the Local Court made by Magistrate Mulroney on 26 March 2018 dismissing a charge against the defendant of aggravated enter dwelling with intent to steal contrary to s 111(2) of the Crimes Act 1900 (NSW).

The plaintiff seeks orders from this Court setting aside those of the learned Magistrate and for the remittal of the proceedings to the Local Court.

The matter came before me this morning and I have had the benefit of submissions from both parties and considered the evidence.

The Crown alleges that, on 28 February 2017, at about 5.30am, the defendant and two other men entered the secure underground car park of an apartment complex at Mentmore Avenue at Rosebery. One of the males, although not the defendant, smashed the window of a black BMW X3 which belonged to Mr Zhou Liu.

Mr Liu was an occupant of the apartment block and his car was parked in his allocated car space. Mr Liu's wallet was removed from the car.

The defendant was charged by police on 18 July 2017 by way of Court Attendance Notice in the following terms:

A plea of not guilty having been entered by the defendant to that charge, the matter was listed for hearing before the Local Court. On the date of the hearing, the matter was dealt with expeditiously by the tender of statements by the prosecution, they being statements from the investigating police officers and that of the owner of the property, Mr Liu, together with a disc which contained a recording from closed-circuit television security footage which the Crown alleged showed the defendant as one of the three individuals involved in the charged offence.

Although the defendant did not admit that he was one of the three men shown in the footage, his defence was to challenge the capacity of the Crown to establish the element of entry to a dwelling. The defendant argued that the car park of the apartment occupied by Mr Liu was not within the curtilage of a dwelling house as the curtilage ended at the apartment walls and did not extend to the car park situated below the apartment, albeit within the same building. It was argued that the car park was common property of the apartment block and was not caught by the relevant definition at s 4 of the Crimes Act. That definition is:

And, relevantly:

The Magistrate was referred by the defendant to two decisions, of this Court and of the Court of Criminal Appeal being, respectively, R v Tahau [1975] 1 NSWLR 479 and Nassr v R [2015] NSWCCA 284.

It was submitted to the Magistrate that the effect of those decisions is to preclude a car park linked to a dwelling house falling within the relevant definition at s 4 of the Crimes Act. His Honour was pointed to two sections of Tahau, a decision of Yeldham J, as follows; firstly, at page 482 of the decision, at about point A:

And, further, at page 483, at about point F:

Nassr v R was an appeal against conviction to the Court of Criminal Appeal for an offence of aggravated break enter, commit serious indictable offence, contrary to s 112 of the Crimes Act. At [10] of that decision, the Court said this, relied upon by the defendant in the Local Court:

Although the Crown, represented in the Local Court by a Police Prosecutor, argued that the interpretation of s 4 contended for by the defendant was too narrow and wrong at law, the Magistrate accepted the submission of the defendant. He said, at transcript 938:

His Honour thereupon quoted from Nassr at [10] (extracted above), before continuing:

His Honour proceeded to dismiss the charge that the Crown had brought against the defendant.

In challenging that decision, the Crown has referred the Court to a number of decisions of some assistance by way of analogy, being R v Clampett (1984) 11 A Crim R 103, Haberhauer v Simek (1991) 9 Petty Sessions Review 4235, Director of Public Prosecutions v Skewes [2002] NSWSC 1008, R v Rice (2004) 150 A Crim R 37; [2004] NSWCCA 384, Aguirre v R [2010] NSWCCA 115, R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197, R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287 and Hollyhomes v Hind [1944] KB 571.

The defendant before this Court maintains that the proper construction of s 4, applying Tahau and Nassr, is as contended before the Local Court.

Having considered the evidence that was before the Magistrate, the authorities and the arguments, I have concluded that his Honour was in error and his decision must be set aside. The error has come about, it seems, through a misapplication of what was said in both Tahau and Nassr, which then distracted the Local Court from its proper task in considering s 4 and applying the law to the evidence. Considerations of what might have been common property obfuscated the Court's true role in that regard.

R v Tahau is not authority for the proposition that the term "curtilage", when applied to an apartment, encompasses only the walls of individual apartments. It is authority for the conclusion that the term "dwelling house" does not extend to the whole of the structure in which a single unit is found, such as to encompass another unit or units; that is, the term "dwelling house" cannot be made to include an entirely separate dwelling, albeit one within the same large structure.

That decision, it seems to me, is of no real relevance to the present matter as the factual scenario is quite different and the conclusions are inapposite.

In Nassr, the other decision relied upon by the defendant, the question was whether s 4 of the Crimes Act could include open space adjacent to a dwelling house; that is, a yard or garden space which did not form part of any building or structure associated with a dwelling. Again, that decision is, to an extent, inapposite.

In this case, the serious indictable offence allegedly intended to have been committed occurred within the garage associated with a dwelling, the dwelling being particularised in the evidence as that of Mr Liu. His Honour was, in my opinion, in error in concluding that no dwelling had been particularised. Whilst the charge, as laid, could certainly have been better worded, the particular was provided by the evidence which established that the particular dwelling was that of Mr Liu.

It is important to pay attention to the relevant provisions of the Crimes Act. Section 4(1)(c) is the relevant provision. It defines a dwelling house as:

Curtilage, for the purposes of s 4, means a piece of ground or land belonging to and lying near a dwelling house: see Pilbrow v St Leonard Shoreditch Vestry [1895] 1 QB 433.

The land belonging to and lying near Mr Liu's dwelling is that on which the apartment block is situate. The car park alleged to have been entered by the defendant is, as a matter of fact, on the evidence, a building or other structure within the same curtilage as Mr Liu's dwelling. It was clearly occupied by Mr Liu, this meeting the first limb of s 4(1)(c) of the definition of dwelling house; in that a car park is also ancillary to the occupation of a dwelling, it also meets the second limb of s 4(1)(c) of the definition of dwelling house.

The parties directed some argument to the meaning of common property and to the intention of the legislature in protecting dwelling houses from incursion by those intending to commit crimes but I think those issues simply serve to cloud the real issue, which is a simple matter of applying law to fact.

Mr Liu's apartment is a dwelling house. It was particularised by the evidence that was before the learned Magistrate. The dwelling sits within the land on which the apartment building was constructed. The building itself is thus a building within the same curtilage as the dwelling house and occupied therewith, or whose use is ancillary to the occupation of the dwelling. To enter the building with intent to steal from it, and specifically from a part of it which is occupied and used ancillary to the dwelling, is to enter a dwelling with intent to steal. Accordingly, his Honour fell into error. I propose, therefore, to make the orders sought by the Director of Public Prosecutions.

[Her Honour heard submissions as to costs]

Having made orders concluding that the plaintiff's application is properly brought and that the learned Magistrate in the Local Court was in error, the Court is now asked by the plaintiff to make orders for costs payable against the defendant.

It is submitted to the Court that, in matters such as these, as distinct from first instance criminal prosecutions before a criminal court sitting in its criminal jurisdiction, there is provision for costs orders against defendants who are unsuccessful; costs ordinarily flow as a consequence of the order of the Court in favour of the plaintiff; and such an order should be made.

Mr Correy for the defendant has advised the Court, and I accept, that the matter was defended with the legal representatives acting pro bono. The defendant, I am told, and again accept, is an indigenous man who has a very lengthy history of drug use. It is probably reasonable to conclude from the fact that he has a lengthy history of drug use and is presently, the Court is advised, incarcerated, that he also has a criminal history. When not incarcerated, the defendant's ordinary means of support is a Centrelink benefit and, in such circumstances, he has no capacity to pay any order for costs.

The Court is asked, if it is to make such an order, to grant a certificate such that the defendant can have access to the Suitors' Fund and the costs paid in that way. The Director of Public Prosecutions would have no opposition to the Court making an order with respect to a certificate so that its costs might be paid.

There is, as the Director submits, power for the Court to make an order for costs, both by statute and in the Court's inherent power at common law. That is so even though these proceedings, whilst not of themselves criminal proceedings, are related directly to criminal matters before the Local Court.

It is certainly open to the Court to make an order for costs. It seems to me, from having considered all of the material that was before the learned Magistrate, that the learned Magistrate was unintentionally led into error by the defendant and the defendant's argument, and that error that the Court was led to has been the direct cause of the proceedings before this Court, they being, I think it is reasonable to observe, very expensive proceedings.

In that sense, there is a clear basis for the Court to make the order which is sought. However, I am conscious of the fact that these proceedings are directly related to criminal proceedings, that the defendant is an indigenous man with no capacity whatsoever to pay costs and that he, himself, no doubt simply accepted advice from his lawyer and took the course which was suggested to him. His real defence, one infers, is denying that he is the person shown in the footage.

The argument that has come before this Court on appeal is one that, in my view, simply was not ever available. That is not something, however, one would expect a defendant in a criminal matter to understand or have any independent knowledge of.

The Court can grant the certificate that is sought, but that has the effect of simply transferring money from one government department to another, it seems to me, and I wonder at the utility of it.

In all of the circumstances, while the Court has the power to make an order for costs, whilst there is a basis upon which the order can be made, it is a matter in the discretion of the Court and I do not propose to make any such order.