This decision concerns an appeal against conviction and sentence. Of note, the Court of Appeal considers the interpretation of s 418(1) of the Criminal Code, which defines a “break”, and concludes that lifting an already ajar garage door cannot constitute entry by means of a break. The decision also considers interventions by the trial judge which were unnecessary and undesirable, but did not create a miscarriage of justice.
Holmes CJ and Gotterson and McMurdo JJA
12 June 2018
The appellant was convicted, relevantly, of one count of burglary by breaking while armed and in company (count 1). . The appellant was self-represented at trial and on appeal. The grounds of the appeal against conviction were amended by leave to reflect the litany of complaints raised in the appellant’s submissions. .
In relation to count 1, the appellant argued that the trial judge erred by directing the jury that further opening an already partly opened garage door could constitute “breaking”. . Chief Justice Holmes, with whom Gotterson and McMurdo JJA agreed, considered s 418(1) of the Criminal Code which defines “break” in broad terms. Her Honour noted that although the definition might appear wide enough to encompass the appellant’s actions, a different conclusion has been reached in respect of the identical definition in s 400 of the Criminal Code (WA): see Halley v The Crown (1938) 40 WALR 105 and Galea v The Queen (1989) WAR 450. The logic in those decision is not explicit, but seems to be that one cannot open something which is already in an open state. .
The point had not been considered in Queensland, but where the decisions from Western Australia were not “plainly wrong”, the court attributed to same meaning to the words used in s 418(1). The trial judge ought to have directed the jury that the aggravating circumstance of entry by means of a break was not made out. . The court substituted a verdict of guilty of burglary while armed and in company, without the aggravating circumstance of breaking. .
The appellant also complained about interventions by the trial judge, each of which is considered in the reasons. –. The interventions included sarcastic, ridiculing questions and contained elements of cross-examination. , . Her Honour observed that the overall question was whether the trial had in consequence been rendered so unfair as to produce a miscarriage of justice. That is a question to be decided “in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions”: Galea v Galea (1990) 19 NSWLR 263, 281. The Court of Appeal concluded that although the interventions were unnecessary and undesirable, they were not, in the context of the trial as a whole, of such proportions as to create a miscarriage of justice. .
K Gover of Counsel