Regina v Swain [2003] NSWCCA 364

Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From Conviction and Sentence in the District Court

Legal Issues

1. 1 ['Whether the trial judge should have directed a verdict of not guilty because there was insufficient evidence of the element of breaking.' 'Whether the directions about lies told by the appellant caused a miscarriage of justice or required discharge of the jury.' 'Whether a prior inconsistent statement by the security officer required further direction to the jury.' 'Whether the jury directions on breaking and joint criminal enterprise misstated the agreed crime by referring to stealing rather than breaking entering and stealing.' 'Whether the sentence of four years imprisonment with a non-parole period of two years was excessive.']

Ratio Decidendi

The evidence was capable of proving the element of breaking and participation in a joint criminal enterprise. The directions on lies and the handling of the security officer's inconsistent statement did not cause unfairness or confusion. Although the trial judge erred by refusing a supplementary direction after referring to the applicant's presence for the purpose of stealing equipment rather than for breaking entering and stealing, no substantial miscarriage of justice occurred because the Crown case was strong, the defence case was weak, and the jury had otherwise been directed on the need to prove breaking. No sentencing error was shown and the sentence was within the range of a sound...

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed.

Orders

• ['Dismiss the appeal against conviction.' 'Grant leave to appeal against sentence.' 'Dismiss the appeal against sentence.']