STANFORD, Andrew James v R [2007] NSWCCA 370

STANFORD, Andrew James v R [2007] NSWCCA 370

The Crown evidence showed only that Shaw entered by sliding further open a window that was already slightly ajar and unlocked, and did not prove that the appellant opened the window earlier or that any accused performed an act amounting to a "breaking". Under longstanding authority, further opening an already partly open window is not a breaking. Because both counts required proof of breaking, the conviction could not stand and no substituted verdict on the alternative count was available.

Jurisdiction
Australia
Judgment Date
20 December 2007
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From the District Court Conviction and Sentence
Outcome
Appeal allowed; conviction quashed; verdict of acquittal entered.
Legal Topics
['appeal Against Conviction' 'break, Enter and Commit Serious Indictable Offence' 'meaning of Break' 'specially Aggravated Offence' 'aggravated Offence' 'joint Criminal Enterprise' 'no Case Submission']
['criminal Law' 'criminal Procedure'] ['appeal Against Conviction' 'break, Enter and Commit Serious Indictable Offence' 'meaning of Break' 'specially Aggravated Offence' 'aggravated Offence' 'joint Criminal Enterprise' 'no Case Submission']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the evidence was capable of proving the element of "breaking" where entry was through a window that was already slightly ajar and unlocked and was merely slid further open.' 'Whether the trial judge erred in failing to direct verdicts of not guilty at the close of the Crown case.' 'Whether, after the Crown concession that the specially aggravated conviction could not stand, a verdict of guilty of the alternative aggravated offence could be substituted.']

Ratio Decidendi

The Crown evidence showed only that Shaw entered by sliding further open a window that was already slightly ajar and unlocked, and did not prove that the appellant opened the window earlier or that any accused performed an act amounting to a "breaking". Under longstanding authority, further opening an already partly open window is not a breaking. Because both counts required proof of breaking, the conviction could not stand and no substituted verdict on the alternative count was available.

Court Disposition

Appeal allowed; conviction quashed; verdict of acquittal entered.

Orders

  • ['Appeal allowed' 'Conviction quashed' 'Verdict of acquittal entered']