Steve Shaw Managing Partner SMB Legal - Research Paper Example

Name: Tutor: Title: Evidence Law Legal Research Memorandum Institution: @2012 Evidence Law Legal Research Memorandum To: Steve Shaw Managing Partner SMB Legal From: Summer Clerk Date: 2nd August, 2012 Subject: Adam burglary Prosecution INTRODUCTION According to the law, burglary prosecution is supported (1) when a person is found outside the building next to an open window established to have been left open by the owner; (2) when the two sides have specified that no part of the individual got into the house although something under the individual’s control got into the house; (3) when a premises is principally an office edifice although has one residential apartment that cannot be accessed from a common space entrance and the apartment is utilized occasionally and was being used the night of the supposed burglary; (4) when it was 5 in the morning and dawn was breaking and lastly when the only evidence of intention is incidental1. Under Australian statute law, Adam can be found guilty of burglary if it is established that he entered Andrew’s building or part of a building as a trespasser with intention of: stealing something within the building or part in inquiry, committing an offence, assaulting an individual within the premises or part in inquiry or damaging the building or property within the building or part in question2. EXECUTIVE SUMMARY The defendant Adam was arrested, on suspicion of residential burglary. At the time of his arrest, Adam was found with a crowbar, a tool commonly used in burglary. During the search, a call came through reporting of burglary. The police bundled Adam in the car and Andrew, the owner of the house where Adam had broken into identified Adam as the person who had broken into his house. Adam was taken to the police station where he was charged with burglary under section 401 of the Criminal Code (WA) and was bailed. The police have a statement from Andrew, giving a description of the burglary and acknowledging that Adam was the one he had chased from his house, statement from a ten year child who identified Adam from a photo-board, police’s statement regarding the crowbar that is normally used in breaking houses and his uncooperative attitude, statement from Mr. James who had received supposedly stolen goods from Adam, statement from Adam’s daughter linking him to having stolen to pay for her lessons, and lastly a statement from a fellow student having received a seemingly stolen laptop. Adam did not admit to having entered Mr. Andrew’s building nor having an intention of entering. Since the prosecution will have difficult in proving at least some of the elements of burglary in Adam’s case, the facts indicate that Adam can have some hope since it would be difficult to establish that he committed burglary. However, statements given by several persons could corroborate prosecutor’s claim. For instance, Sumaiyah who lives near Andrew’s house saw Adam as he ran out of the house and later identified him from a photo-board. Adam also has a history of burglary. He has a police record of assault and two burglary convictions similar to the current charges. DISCUSSION According to the Australian statute law, and given this set of circumstances, it will be difficult to prove all the elements of burglary. Basically, the elements of burglary include the intention of committing an offence within a building and the action of getting into the supposedly building. In R v Dugan, the leading ruling was that the elements of a burglary, for presently pertinent purposes, are first getting into the building and second, entering the building with an intention of committing a felony. The actus reus is the act of entrance while the mens rea is the intention of committing a robbery within the building3. According to Western Australian law for burglary, if an individual breaks and gets into another person’s building during the night with an intention of depriving another of property, the person will be guilty of burglary. It will be difficult to prove breaking. There is no evidence linking Adams directly having broken the seal in order to enter the building. Burglary is a crime of precise intention4. After the police search, a crowbar was discovered which is used in house breaking and thus this can indicate that Adam had an intention. Below is a consideration of all burglary elements: Breaking When a person is found outside the building next to an open window established that the owner had left it open, under the statute, such a person has not broken the seal of the window. Probably Andrew has left the door open while he was sleeping and so Adam just tapped the backdoor and gained access. This indicates that Adam opened the door wider, an action that is tantamount to “breaking” according to the ruling in Paul v. Commonwealth, 424 Mason App. 712 (1992)5. In Paul, the ruling was that increasing an opening of a vaguely open window was equivalent to “breaking. Nonetheless, there is no statement indicating that Adam opened a window or a door wider. A witness Sumaiyah who stated that she saw Adam running out of Andrew’s house did not see Adam open a window or door wider. There is neither witness nor physical evidence to establish that Adam increased the opening of an entrance. If the prosecution established that Adam widened the opening of the entrance, breaking would be proved but the prosecution would have difficulties in proving beyond reasonable doubt that it was Adam who opened the door wider. Night time Under burglary law, night time implies between (9pm and 6am)6. Adam was arrested during the night and hence this provides some evidence that burglary could have taken place. As a result, it would be easy for the prosecution to convince the jury that Adam had committed the alleged burglary at night and hence there is tangible evidence on this element of burglary against Adam. WITH INTENTION TO DEPRIVE ANOTHER OF PROPERTY If the sole evidence of intention to commit burglary is circumstantial, intention can be deduced from circumstances. In Mathews sv. Commonwealth, 323 Mason 572 (1984)7, the ruling was that when a prohibited entrance is made into a building, the assumption is that the entrance takes place for an illegal purpose. The precise purpose, implying specific intention, whereby such an entry occurred can be deduced from the surrounding details and circumstances8. It would be judges to question of Adam had intent. The circumstance against Adam include: (1) Adam’s criminal record where he has a record of several assault charges as well as two burglary convictions. In addition, the two burglaries were in circumstance similar to the charge Adam is currently facing; (2) Adam was in a possession of a crowbar that is used in house breaking; (3) Mr. James Irrich’s statement that previously he purchased stolen laptops and jewelry from Adam; (4) Nicola Narrowfield’s statement that Adam’s daughter made a confession indicating that her dad (Adam) was acquiring the money to pay her ways illegally; (4) Ayen Mayor, Adam’s fellow student’s statement alleging that Adam had given her a laptop which seemed to have been stolen. There are also circumstances in Adam’s case that can be argued against intent: Whereas police claim that Adam was uncooperative and unhelpful, Adam’s distressed state can be attributed to his previous argument with his step brother. In addition, Adam has a witness who will be able to confirm Adam’s claims. Finn is willing to provide evidence that Adam had left his house just minutes before his arrest and that there was an argument between them. This provides a tangible alibi for Adam. Even though Sumaiyah identified Adam from a photo-board, Adam is certain that Andrew could not identify him clearly. The fact that Andrew cannot clearly identify Adam as the accused person provides a strong defense against Adam’s alleged burglary. Moreover, there is no forensic evidence against Adam since he was wearing gloves and a beanie and thus the defense can insist on prosecution providing forensic evidence to confirm if it was Adam who was actually in Andrew’s house and evidently the prosecution will not be able to prove this. Court room introduction of Adam’s criminal record would be evaded if he were kept off stand9. The judges could go either way in settling on if there was intent. FURTHER INQUIRIES Our own experts should examine the Adam’s notes as well as police’s report and carry out investigations basing on this. Additional investigation into the furnishings inside Mr. Andrew’s house and frequency of visitors would be important in establishing the strength of the prosecution’s case. Our experts should carry out f forensic examinations to establish that Adam was not in the dwelling because the forensic would be negative in Adam’s case. Further enquires should be carried out to establish if Andrew’s house is a dwelling. To be regarded as a dwelling, a structure is supposed to be both physically located close to and easily accessible from the main house and used for daily living activities State v. Villain, 123 P.3d 444, 44510. Adam’s brother will also be examined to verify if he hold substantial evidence to present an alibi for Adam. If convincingly so, especially by Finn, this evidence will prove helpful, however if not Sumaiyah’s report reports are privileged. We should carry out further investigations to establish how sure Andrew is that Adam is the person who entered in his house. In addition, it should be established if Sumaiyah’s statement and identification of Adam as the person who was running out of Andrew’s house can be proved beyond any reasonable doubt. Our experts should carry out investigations and find out if there is a likelihood of Adam’s wife confessing when out on stand regarding the many burglaries Adam had confessed to the wife for having carried out. Since Adam’s burglary accusation cannot be linked to him assaulting any person within the building, damaging the building or building’s property, and also there was no possession or item that Adam was caught with, our experts should seek to prove this. CONCLUSION We probably can give Adam hope of avoiding a burglary conviction. The facts and evidence provided by the police do not strongly support a burglary prosecution. Of all elements of burglary as a crime, the prosecution will have some difficulties in proving breaking, usage or Adam’s threaten to use actual violence, and in company since there is no evidence to prove that Adam and one or more individuals were physically present for the purpose of getting into the building. Moreover, prosecution would also have difficulty in proving intent. As the defense, we would be able to argue that there was no breaking of a seal since there is evidence or a witness who saw Adam entering in the building and also there is no evidence regarding identification of Adam as the accused person since Andrew can not undoubtedly identify Adam as the person who was in his dwelling as well as absence of forensic evidence will refute further identification claims by the prosecution. Accordingly, there would be a credible defense put on for Adam since the prosecution should prove all elements of burglary beyond reasonable doubt which will be difficult. Bibliography Books Bill, N., Guide to Computer Forensics and Investigations, (Cengage Learning, 4th edition 2010). Brent, W., Australian Cartel Regulation: Law, Policy and Practice in an International Context, (Cambridge University Press, 2011). Donald, J., Law and Order in Australia: Rhetoric and Reality, (Federation Press, 2004). Edney, R., Australian Sentencing: Principles and Practice, (Cambridge University Press, 2007). Larry, S., Criminology, (Cengage Learning, 11the Edition, 2011). Cases Paul v. Commonwealth, 424 Mason App. 712 [1992]. State v. Villain, 123 P.3d 444, 445 R v Dugan [1984] 2 NSWLR 554: 191 Legislations Australian statute law Western Australia: Criminal Code Act Compilation Act 1913 Read More