Barker v The Queen

The applicant also submits that, if a person with limited authority to enter who enters with intent to steal must be considered to have entered as a trespasser, the words "as a trespasser" are superfluous, adding nothing to the requisite entry with intent to steal. I do not agree that the words are superfluous, despite an apparent willingness on the part of the respondent's counsel to concede this point. The words "as a trespasser" exclude entry by a person who is himself entitled to immediate and exclusive possession of the premises. Thus the owner of a hotel or boarding-house who enters the room of a guest with intent to steal would not enter as a trespasser with intent to steal, unless the guest's contract gives him the right to immediate and exclusive possession. Another possible area of operation of the words is to exclude those who enter premises with intent to steal but also with another intention within the scope of their licence to enter. A person cannot be at the same time a trespasser and a non-trespasser in respect of the same land (Healing (Sales) Pty. Ltd. v. Inglis Electrix Pty. Ltd. [27] , per Kitto J.; see also, per Barwick C.J. and Menzies J. [28] ). If a person enters premises for a purpose which is within the scope of his authority his entry is authorized; it is not made unlawful because he enters with another and alien purpose in mind. The performance of acts with a view to the attainment of that alien purpose does not relate back to his entry so as to endow it with a trespassory character. It is hardly to the point to say that the licensor would not have given that licence, had he known the alien intention of the licensee. It is the effect of the licence actually given that is decisive. I therefore reject the argument that the words "as a trespasser" are mere surplusage.

1. (1968) 121 C.L.R., at p. 606. 2. (1968) 121 C.L.R., at pp. 598-599.

The applicant then contends that if the term "trespasser" is given its common law meaning this will lead to the extraordinary consequence that a mere shoplifter would be an offender under s. 76. I am by no means sure that this consequence is extraordinary. True it is that the shoplifter is generally concerned to steal items of small value. This no doubt will be reflected in the imposition of a suitable penalty. Even so I would be inclined to concede that a conviction for burglary would ordinarily convey the impression that an offence more serious than mere shoplifting had been committed. The maximum term of imprisonment for the offence of burglary is fourteen years (s. 76(3)). On the other hand, the maximum term of imprisonment for the offence of theft is ten years (s. 74).

The argument assumes that the shoplifter enters as a trespasser within the meaning of s. 76(1)(a). In many instances it will be difficult, if not impossible, to establish that the accused entered as a trespasser. His intention to steal may have arisen after entry or it may have been accompanied by another intention or purpose which brought the accused's entry within the ambit of the shopkeeper's implied invitation. There is a strong element of generality in the shopkeeper's invitation to the public to enter his premises. It is not an invitation to enter only for the purpose of doing business or with a view to doing business. The invitation ranges more widely, though it certainly does not amount to an invitation to steal. It will always be necessary to make a close analysis of the implied invitation held out by the shopkeeper and of the belief of the offender as to his right to enter the premises.

These problems do not provide a reason for distorting the words "as a trespasser" from their ordinary meaning. As we have seen, the character of the provision as one which creates the serious criminal offence of burglary provides a strong reason for introducing the element of mens rea so that the section only embraces a person who of his own volition and without any right or authority enters land in the possession of another with intent to steal, knowing that he has no such right or authority or being reckless as to whether he has any such right or authority or not.

I turn to the application of the sub-section, as so interpreted, to the facts of the present case. In so far as the actus reus of the offence is concerned, the trial judge's direction to the jury was unexceptionable. The jury found, as it was entitled to do, that the applicant entered the building with the intention of stealing, a purpose alien to the authority given to him. His entry was quite unrelated to the invitation or licence which he had with the result that he entered without any right or authority. It remains only for me to say that the sufficiency of the trial judge's charge to the jury on mens rea was not an issue at the trial. Nor was it raised in argument before the Court of Criminal Appeal or before this Court.

In the result I would grant special leave to appeal and dismiss the appeal.

The central question is whether the applicant, who entered a house with the owner's permission, but with the intention to steal goods from it, is guilty of burglary (as defined by the Crimes Act 1958 Vict.). Under that Act burglary is a serious crime, punishable by a maximum fourteen years imprisonment (twenty years if the offender is armed) (ss. 76(3) and 77). Theft is punishable by a maximum ten years imprisonment (s. 74).

The criminal law should be clear and simple. Achieving this is not easy because in distinguishing criminal from non-criminal conduct, lines must be drawn, which inevitably throw up borderline cases. However subtle refinements and artificialities lead to injustice and public dissatisfaction.

The law of burglary was once relatively simple. It was generally understood to be unlawful entry into enclosed premises for the purpose of stealing or committing a felony at night, that is between 9.00 p.m. and 6.00 a.m. (Stephen, A History of the Criminal Law of England, vol. 3 (1883), p. 150; East, Pleas of the Crown vol. 2 (1803), pp. 484-523; Hawkins, A Treatise on the Pleas of the Crown, vol. 1 (1824), pp. 129-137). The offence was punishable heavily because of the terror induced by invasion of privacy of the household at night and the possibility of a violent encounter (see Pollock and Maitland, History of English Law, vol. 2 (1895), p. 491; Blackstone, Commentaries on the Laws of England, vol. 4 (1778), p. 223). Housebreaking, that is breaking and entering with intent to steal in day time, was also often popularly regarded as burglary (Hale, History of the Pleas of the Crown, vol. 1 (1800), pp. 547-548.) However by judicial decision, breaking was extended to include even the turning of a door knob or other action which did not involve a breaking in the ordinary sense (see English and Empire Digest, vol. 15 (1977), pp. 1348-1351), and the crime became somewhat artificial.

The United Kingdom Criminal Law Revision Committee in its Report (Cmnd. 2977(1966)) recommended that the crime be simplified. This led to the Theft Act 1968 U.K.. Section 9 of that Act has been reproduced in slightly different wording in s. 76(1) of the Crimes Act 1958 Vict. which, so far as it is relevant, provides:

A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent -

(a) to steal anything in the building or part in question; or

(i) involving an assault to a person in the building or part in question; or

(ii) involving any damage to the building or to property in the building or part in question -

which is punishable with imprisonment for a term of five years or more. The time of entry is now immaterial. It is not now necessary to prove breaking (actual or notional). The element of unlawful entry is retained, it being represented by the phrase "as a trespasser".

This case turns on whether a person who enters with intent to steal, but otherwise with the owner's authority, enters "as a trespasser". In the judgment under appeal the Full Court of the Supreme Court of Victoria (Anderson and Tadgell JJ., Starke J. dissenting) followed the English Court of Appeal in Reg. v. Jones and Smith [29] and held that anyone who entered a building or part of a building with an intent to steal was a trespasser within s. 76(1)(a). The Court's general approach was that an entrant's subjective purpose alien to the terms of a consent converts an otherwise lawful entry into a trespass.

1. [1976] 1 W.L.R. 672; [1976] 3 All E.R. 54; 63 Cr.App.R. 47.

The applicant contends that a person does not enter as a trespasser if he has permission to enter even if that permission is limited to entry for a particular purpose and he or she enters for another, alien, purpose.

Section 76(1)(a) must be construed strictly, and any ambiguity resolved in favour of the liberty of the accused by refusing to extend the category of criminal offences (Richardson v. Austin [30] ; Ingham v. Hie Lee [31] ; Beckwith v. The Queen [32] ; Sillery v. The Queen [33] ).

1. (1911) 12 C.L.R. 463, at p. 474. 2. (1912) 15 C.L.R. 267, at p. 271. 3. (1976) 135 C.L.R. 569, at p. 576. 4. (1981) 55 A.L.J.R. 509, at p. 512.

The report of the Criminal Law Revision Committee may be used as a guide to legislative intent in order to resolve any ambiguity in s. 76(1)(a) (see Dillingham Constructions Pty. Ltd. v. Steel Mains Pty. Ltd. [34] ; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [35] ) or to displace what would be an absurd or startling result if the ordinary rules of interpretation were applied. The report recommended replacing "break and enter" with "enter as a trespasser", but there was no suggestion that burglary be so redefined and broadened that it would extend far beyond the common law concept. The Committee stated: "We thought of making burglary extend to committing any of the offences in question when trespassing in the building. This would include a person who, having entered lawfully, remained in the building as a trespasser (for example, a person who hid in a shop until after closing time) But it seems unnecessary to complicate the law in this way. The case is not important, because the offender is likely to go into a part of the building where he has no right to be, and this will be a trespassory entry into that part" (par. 75, p. 35). It can be seen that the Committee was not using the word "trespass" in the sense it was used by the majority in the Supreme Court. The Committee contemplated that there could be lawful, non trespassory, entry into a building even by a person who had an intent to steal. No mention is made of the scope of authority to enter, as would be expected if this element, outside the original notion of breaking and entering, were to be introduced. Professor Glanville Williams, a member of the Committee, has since criticised the decision in Reg. v. Jones and Smith and stated: "there is no hint in the Committee's Report that it contemplated this extension of the offence. The Committee's purpose was to simplify the law of burglary but not to deprive it entirely of an element of objective illegality. For this reason the offence was to require a trespassory entry. What reception would the Committee's Report have had if it had proposed that an ordinary shoplifter would be guilty of burglary if he was found to have intended to steal when he entered the shop?" (Glanville Williams, Textbook of Criminal Law (1978), pp. 813-814.)

1. (1975) 132 C.L.R. 323, at p. 332. 2. (1978) 140 C.L.R. 503, at p. 523.

The prosecution contended that entry with intent to steal was always entry as a trespasser, and conceded that this wide view virtually reads the words "as a trespasser" out of the section. Although I disagree with it, that contention has the virtue of simplicity appropriate for the administration of criminal justice. It was substantially the approach of the majority in the Supreme Court. However I do not accept that the presence of the words "as a trespasser" is explicable as exempting from burglary an owner or person in possession of a building who intends to steal anything in it.

The prosecutor's approach also does not give proper effect to the words "or part in question" in par. 76(1)(a). These cover the case where a person with intent to steal, enters (with permission) a building and then, still with that intent, enters a part of the building where he or she has no permission to go. The meaning of the section is that he or she does not become a burglar until entry to that part. However on the prosecution's approach, he or she would be a burglar upon entering the building.

Acceptance of the prosecution's view would mean that a person invited for dinner who came intending to steal a teaspoon would be guilty of burglary, even if he or she did not steal, or attempt to steal. The prosecution contended that even a tenant who entered the premises pursuant to a lease but with intention of stealing something from them at the end of the lease period was a burglar. Weinberg and Williams in The Australian Law of Theft (1977), at p. 256 declare:

It would appear to follow [from the reasons in Reg. v. Jones and Smith] that an accused who enters a shop for the purposes of shoplifting is guilty of burglary. If this is so then a person who is in substance no more than a thief may be found guilty of the much more serious crime of burglary. It is submitted that such a result would be unsatisfactory, and that the courts should avoid it by construing the word "trespasser" more narrowly for the purpose of s. 76 than is the case in the civil law.

The intending shoplifter's situation was argued at length. Unless a narrow view of "entry as a trespasser" is adopted, it seems that if a person enters a shop not to buy (or inspect with a view to buying) but if possible to steal, after seeing a notice "all members of the public may enter for the purpose only of buying or inspecting goods with a view to buying", he or she will have entered as a trespasser. Whether or not there was such a notice, the question of burglary or not should not depend on whether the person entered merely to shoplift, or to buy some goods and also to shoplift. Such an operation of s. 76 would be absurd. Similar consequences would occur under s. 76(1)(b).

The interpretation adopted by the courts below and that advanced by the prosecution ascribe to the legislature an intention to define as burglary conduct which departs very far from the traditional concept of burglary. If the object was to make it an offence to enter a building with intent to steal or commit another offence, it would be strange to call this "burglary", and to render the offender liable to the extremely heavy penalties appropriate to the traditional offence. These interpretations in substance achieve that effect. If interpreting "entry as a trespasser" according to its meaning in the civil law of tort leads to these consequences, then a more narrow meaning should be adopted in this criminal section.

The appellant's contention, which I accept, that an alien purpose does not convert an otherwise lawful entry into entry as a trespasser, irrespective of any expressed or implied limitation relating to purpose, also has the virtue of simplicity. This is achieved by reading s. 76 as meaning that the question of whether a person enters as a trespasser is to be resolved regardless of whether he or she has an intent to steal.

The question of entry as a trespasser does not depend on whether authority to be in the building was limited to some purpose or purposes and should not depend on whether orally, in writing or by implication, authority to enter was limited to entry for a particular purpose. Whether the person enters as a trespasser should be ascertainable objectively, at the time of entry.

Where absence of consent is the test of entry as a trespasser the application of the section should not require any close analysis of the permission. Fine points such as whether the motive for granting permission (that is for the entrant to houseclean or caretake) became a limitation on the authority to enter should not be critical to guilt. The obvious danger is that a slight change of words, or slight difference in emphasis will mean that motive for unqualified permission becomes a permission limited by purpose. An interpretation of s. 76 which makes such points critical, undermines the legislative intent. Parliament could never have intended that guilt of an offence carrying fourteen years imprisonment would depend on such fine points in regard to everyday circumstances, such as intended pilfering, by house or office cleaners, repairers, office workers, shop assistants and customers in shops.

Another area of sublety is the distinction between entry and being in the building. In a sense, an act of entry is for one purpose only and that is to be on the premises. Apart from contrived or artificial circumstances limitations of purpose (as distinct from limitations on time or manner of entry) would be on what is permitted to be done by an entrant when in the building.

The evidence relevant to permission to enter was as follows:

The owner of the building, Mr. Curl, in answer to the Crown, said he made arrangements with Mr. Barker as well as with others about keeping an eye on the place. He did not give authority to remove anything. Asked whether he gave anybody permission to enter his home and remove goods, he answered, "To enter yes, but to remove is something that just happened, I suppose." Asked whether he gave authority to any person to remove property from his home, he answered, "No, not in that sense." In cross-examination by Mr. Barker's counsel he stated that he asked Mr. Barker to keep an eye on the house and that he told Mr. Barker where the key was in the lacework; that he anticipated that if Mr. Barker was to come and look at the house that he would go inside, and that he did not place limits on Mr. Barker's judgment as to what he should do in looking after the place; that if Mr. Barker thought it was wise to remove some of the property out of the house to look after it, "the authority was sufficiently wide to cover that. It was just an open-asking for him to look after the place." The accused in his statement said that Mr. Curl, "asked me to keep an eye on the place He told me where the key was hidden in the iron-lace so I would be able to get into the house to inspect it. My understanding was that he wanted me to take whatever steps I might think necessary to protect the house and his property. I certainly thought I was entitled to move the goods out of the house for safekeeping if I thought they ought to be, and that's what I eventually did So far as I am concerned I had permission to go into the house. That's what Bob Curl asked me to do. I had a discretion to remove the goods and I thought I should."

Even if the theory of limited purpose is applicable, entry as a trespasser is proved only if the act of entry itself was limited by purpose and the entry was not for that purpose; it would not be enough to show that the limitation of purpose was upon what was to be done when in the building. This distinction was not put to the jury, nor was the distinction between motive for granting permission and permission for a limited purpose.

Questions of mens rea and honest or bona fide claim of right did not arise at the trial or in the appeal. They do not seem to have emerged in the cases. If a narrow view is taken of s. 76, they would be far-fetched in a case of traditional burglary, and would not be reached in cases such as the customer or housecleaner who enters with intent to steal.

It may be accepted that mens rea in regard to entry as a trespasser is an implied element of the offence, so that the prosecution must prove that the accused intended to enter as a trespasser. However this does not overcome the artificialities of the wide view of s. 76, because if entry as a trespasser embraces entry with a purpose alien to permission to enter, the intent to enter as a trespasser would be equally wide. If the wide view is adopted, a case involving entry for other than a limited purpose in which issues of honest claim of right arise may well present questions more suitable for metaphysics than for a criminal trial.

Special leave should be granted; the appeal should be allowed. The conviction should be quashed.

The applicant, Richard Ernest Barker, was convicted in the County Court at Melbourne of the offence of burglary under the provisions of s. 76(1) of the Crimes Act 1958 Vict. ("the Act"). That sub-section provides that a person "is guilty of burglary if he enters any building or part of a building as a trespasser" with the intent either to steal anything in the building or to commit an offence involving an assault to a person therein or damage to the building or property therein. The Full Court of the Supreme Court of Victoria, by majority, refused the applicant leave to appeal from his conviction. He now seeks special leave to appeal from that refusal to this Court.

The charge against the applicant was that he had entered as a trespasser a building in the Melbourne suburb of Brighton with intent to steal certain items of furniture and domestic equipment therein. The building in question was the home of Robert James Curl ("Curl"). The applicant had been asked by Curl to "look after" or "keep an eye on" the house while Curl was away from Melbourne on holidays. Curl had informed the applicant of the location of a key to the house and had impliedly authorized the applicant to enter the house at least for the purpose of safeguarding its contents. Under cross-examination, Curl agreed that his authority to the applicant would extend to authorizing the removal of items from the house for the purpose of safeguarding them. On the jury's finding of guilty, the applicant had entered the house not for the purpose of safeguarding it or its contents but for the purpose of stealing part of the contents. The question which the applicant seeks to raise on an appeal from his conviction is the effect, in those circumstances, of the requirement of s. 76(1) that the entry in question be "as a trespasser".

Section 76(1) was introduced in its present form into the Act in 1974. It follows, for relevant purposes, the words of s. 9 of the Theft Act 1968 U.K.. That Act substantially reformed the law of theft in the United Kingdom. In particular, its provision relating to burglary repealed the then existing offence of breaking and entering of which the element of entry "as a trespasser" was not, in terms, a requirement. As the English Court of Appeal said in Reg. v. Jones and Smith [36] , "[e]ntry as a trespasser was new in 1968 in relation to criminal offences of burglary. It was introduced in substitution for, as an improvement upon, the old law which required considerations of breaking and entering and involved distinctions of nicety which had bedevilled the law for some time." The new requirement had, however, close connection with the original law of burglary (see "The Rationale of The Law of Burglary", Columbia Law Review, vol. 51 (1951), 1009, at pp. 1020-1021).

1. [1976] 1 W.L.R. 672, at p. 674; [1976] 3 All E.R. 54, at pp. 57, 58; 63 Cr.App.R. 47, at p. 51.

The penal character of s. 76(1) requires that any real ambiguity as to the meaning of its provisions be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, an ambiguity which persists after the application of the ordinary rules of statutory construction (R. v. Adams [37] ; Beckwith v. The Queen [38] ). One of those rules is of particular relevance to the ascertainment of the correct construction of the phrase "as a trespasser" in s. 76(1). It is the "well known" rule of statutory construction that, where a technical legal word such as a "trespasser" is used, it is to be presumed that the legislature intends it to have its ordinary common law meaning "unless a contrary intention clearly appears from the context" (per O'Connor J. in Attorney-General (N.S.W.) v. Brewery Employés Union of N.S.W. [39] ).

1. (1935) 53 C.L.R. 563, at pp. 567-568. 2. (1976) 135 C.L.R. 569, at pp. 576-577. 3. (1908) 6 C.L.R. 469, at p. 531.

The elements of the statutory offence of burglary under s. 76(1) are (i) entry (ii) "as a trespasser" (iii) with the specified "intent". The argument on the hearing of the application was directed to the indentification of the circumstances in which a person with some authority to enter another's building will, for the purposes of the sub-section, enter it as a trespasser. For the Crown, it was submitted that, in accordance with the above-mentioned presumption, the word "trespasser" in s. 76(1) bears its established common law meaning. This meant, so it was said, that, for the purpose of ascertaining whether a person who entered premises in the possession of another entered as a "trespasser" within that meaning, any permission or licence of the person in possession must be construed as limited by reference to those purposes which might legitimately be pursued after entry. It would follow that every person who enters premises in the possession of another with intent to steal therein would enter "as a trespasser". For the applicant, it was argued that the presumption that the word "trespasser" bears its common law meaning in s. 76(1) is displaced by a number of considerations. According to the applicant, a person who enters a building in the possession of another with any permission or licence, however limited, of that other person will only enter "as a trespasser" for the purposes of the sub-section if the permission or licence is vitiated by fraud or duress. While counsel for the applicant did not concede the correctness of the wide common law meaning which the Crown attributed to the word "trespasser", his argument against giving the word its common law meaning was, to a considerable extent, based upon the assumption that that meaning includes every person who enters premises in the possession of another with intent to steal therein. In the circumstances, the appropriate starting point for considering whether "trespasser" bears its common law meaning in s. 76(1) is the identification of what, for relevant purposes, that meaning is.

At common law, a person enters land as a trespasser if he enters land in the possession of another without jusitification (see Salmond and Heuston, Law of Torts, 18th ed. (1981), Ch. 3 ). Justification may take a variety of forms including, inter alia, a paramount right to possession, some other statutory or common law right of entry, the leave and licence of the person in possession and, in the absence of negligence, involuntary and inevitable accident. While the old common law forms of action prevailed, the action for trespass to land was restricted to trespassory entry: if the actual entry was and remained lawful, subsequent presence or action on the land would not found an action in trespass. Under the modern law of tort however, a person who has lawfully entered and been upon land which remains in the possession of another is liable in trespass if his justification for being upon the land ceases or if he performs acts upon the land which take him outside the scope of his justification for being thereon. When the permission or authority ("leave and licence") of the person entitled to possession is relied upon to justify what would otherwise constitute a trespass, a person enters land as a trespasser at common law if his entry is beyond the scope of the permission. If the entry is within the scope of the permission, he will become a trespasser at common law only when the permission to be upon the land is revoked or exhausted or when his conduct upon the land is such that his presence thereon is outside the scope of the permission.

Where an authority to enter the land of another without his permission is conferred by the general law, whether statutory or otherwise, it will ordinarily be limited to entry for the purpose for which the authority exists (City of London Land Tax Commissioners v. Central London Railway [40] ; Harrison v. Duke of Rutland [41] ). The same cannot, however, be predicated when the authority to enter is a specific permission of the particular person in possession of the particular land. Such a permission may be subject to express or implied limitations regarding the time, place, manner or purpose of entry (see Inglis Electrix Pty. Ltd. v. Healing. [42] ; Harper and James, Law of Torts (1956), vol. 1, pp. 38-39; Restatement (2d), Torts, ss. 168-170). If it is so limited, it will operate only to authorize an entry which comes within the scope of its limited terms (see, e.g., Gross v. Wright [43] ). A specific permission to enter land need not, however, be limited as regards all or any of those matters. In particular, it need not be limited (in its character as an authority to enter land) by reference to the things which the person whose entry is permitted may legitimately do after he has entered or to the range of purposes which were or might have been in the contemplation of the grantor of the permission. If it is a general permission to enter in the sense that it is not limited, either expressly or by necessary implication, by reference to the purpose for which entry may be effected, it is not legitimate to cut back the generality of the permission to enter merely because it is probable that the grantor would, if the matter had been raised, have qualified it by excluding from its scope any entry for the purpose of committing an unauthorized act. When the permission is not in fact so limited, an unanticipated or illegitimate purpose on the part of the entrant does not, at common law, affect the status of his entry or make him a common law trespasser.

1. [1913] A.C. 364, at p. 372. 2. [1893] 1 Q.B. 142. 3. (1967) 69 S.R. (N.S.W.) 311, at pp. 329-330. 4. [1923] 2 D.L.R. 171, at p. 185.

In support of the general submission that any permission to enter premises in the possession of another must be limited by reference to the purpose for which it was given with the consequence that an entry for the purpose of committing an unauthorized act will always be beyond the scope of the permission, senior counsel for the Crown relied upon judicial comments in a number of cases and the decision of the English Court of Appeal in Reg. v. Jones and Smith [44] . Some of the judicial comments were in nineteenth century English cases involving poaching or interference with a shoot (see Reg. v. Pratt [45] ; Harrison v. Duke of Rutland; Taylor v. Jackson [46] ). In none of those cases was the critical question whether the actual entry had been as a trespasser. In Pratt, as the terms of the conviction and the judgments on appeal make clear, the question was whether the particular accused was guilty of "being" upon the relevant land in search of game. In Harrison v. Duke of Rutland, the question was whether Harrison was using a highway, the soil of which was owned by the Duke, in exercise of the only right which the public had, namely, the right to pass and repass. He was not exercising that right at the relevant time which was after he had entered upon the Duke's land and commenced to interrupt the Duke's grouse shoot. He was at that time using the land for a purpose unauthorized either by the general law or by the Duke, and he was therefore a trespasser. In Taylor, the defendants, who had pursued hares when they were only entitled to pursue rabbits, were convicted of "being" upon the relevant land contrary to the game laws. The New Zealand case of Strang v. Russell [47] and Reg. v. Jones and Smith warrant more detailed consideration.

1. [1976] 1 W.L.R. 672; [1976] 3 All E.R. 54; 63 Cr.App.R. 47. 2. (1855) 4 E. & B. 860 [119 E.R. 319]. 3. (1898) 78 L.T. 555. 4. (1905) 24 N.Z.L.R. 916.

Strang was an action for trespass to land. The defendant claimed that he had a legal right to enter upon the plaintiff's lagoon and that he had entered upon it in pursuance of that right. He also claimed that he had the plaintiff's implied permission to enter upon the lagoon. It was held that his entry, not in pursuance of any such implied permission but in pursuance of his own asserted legal right and with the intention of contesting the plaintiff's title, was trespassory. The case would appear to support the general proposition that, notwithstanding that a person has the general permission of the occupier to enter premises, he will enter as a trespasser if he intends to enter not in pursuance of that permission but in pursuance of some unfounded claim of independent right. In our view, that general proposition is not supported by authority or principle and is not good law. We agree with Professor Street (Law of Torts, 6th ed. (1976) p. 75) that Strang is inconsistent with the decision in Byrne v. Kinematograph Renters Society Ltd. [48] - where it was held that entry by a licensee for a purpose alien to the purpose contemplated by the licensor did not render the entry trespassory - and was wrongly decided. Unless the consent to enter is limited by reference to purpose, an entry which is otherwise lawful does not become trespassory because it is effected for a purpose of which the person giving the consent is ignorant and of which he would not have approved.

In Reg. v. Jones and Smith, Jones and Smith entered the home of Smith's father during the night and stole two television sets. Smith was not living in the house but, according to his father's evidence on the trial, had "unreserved permission" to enter it (see the report in [1976] 3 All E.R., at p. 57). The father had, however, made a previous statement inconsistent with that evidence and the Crown was permitted to treat him as a hostile witness. The jury was directed by the recorder, in a comment of which no complaint was made, that they might think it "by far the wiser course to disregard [his] evidence in its entirety" (ibid.). In those circumstances, as the English Court of Appeal pointed out [49] , "it was a matter for the jury to consider whether, on all the facts, it was shown by the prosecution that the defendants entered with the knowledge that entry was being effected against the consent or in excess of the consent that had been given by Mr. Smith senior to his son, the defendant Smith". The appeal by the accused against their conviction was dealt with on that basis and was dismissed. In the course of their joint judgment however, James and Geoffrey Lane L.JJ. and Cobb J. discarded as "without any foundation" the "novel argument" that "a person who had a general permission to enter premises of another person cannot be a trespasser" [50] . Their Lordships neither defined what was meant by "a general permission to enter premises" nor referred to the distinction between entry as a trespasser and being on land as a trespasser after entry. We take it that their Lordships were expressing elliptically the proposition that presence on land may become trespassory though entry upon the land was not. If, however, their Lordships were referring to a proposition that a person cannot enter land as a trespasser if the person in lawful possession has given him a general permission (that is, a permission without relevant limitation) to enter, we could not subscribe to the view that that proposition was either novel or lacked foundation. To the contrary, the proposition appears to be no more than a conclusion from basic principle. An entry by a person which is within the scope of a permission given by the person in lawful possession is not a trespass. If a particular entry by a person who has a valid permission to enter is not covered by the permission, it must be because the permission is relevantly limited at least to the extent necessary to exclude that entry.

1. [1976] 1 W.L.R., at p. 675; [1976] 3 All E.R., at p. 59; 63 Cr.App.R., at p. 52. 2. [1976] 1 W.L.R., at pp. 674-675; [1976] 3 All E.R., at pp. 58-59; 63 Cr.App.R., at pp. 51-52.

The considerations advanced on behalf of the applicant against "trespasser" being given its established common law meaning can be divided into four distinct arguments. First, it was said that mens rea was a necessary ingredient of an offence under the sub-section and that that precluded "trespasser" being given the meaning which it had for the purposes of the civil law. Secondly, it was argued that to give trespasser its common law meaning would be productive of results which were plainly not intended by the legislature. Thirdly, it was claimed that the phrase "as a trespasser" would be devoid of any real effect if "trespasser" were given its common law meaning. Finally, reliance was sought to be placed upon the Eighth Report of the English Criminal Law Revision Committee, Cmnd. 2977 (1966), whose recommendations formed the basis of the United Kingdom Theft Act. We shall consider these arguments in the order in which we have mentioned them.

When the United Kingdom Act was enacted, it was assumed by some commentators (see, e.g., Archbold, Criminal Pleading, Evidence and Practice, 37th ed. (1969), par. 1505) that the requirement of entry as a trespasser in the new offence of statutory burglary was to be determined simply by reference to whether the entry would be trespassory under the civil law. It would follow that a person who entered premises as a result of negligence or a reasonable mistake on his part would satisfy the requirement of entry "as a trespasser". That approach did not accord with the rule of interpretation that, in the absence of express or implied provision to the contrary, a requirement of mens rea is to be read into each element of a statutory criminal offence. In Reg. v. Collins [51] , the English Court of Appeal recognized that a requirement of mens rea must be read into each of the components of statutory burglary under s. 9 of the United Kingdom Act including the element that entry be "as a trespasser". The same requirement of mens rea must be read into the corresponding element of entry as a trespasser in s. 76(1). That requirement does not however bear directly upon the meaning of entry "as a trespasser" for the purposes of what constitutes the actus reus of an offence under s. 76(1) or militate against giving the word "trespasser" its established common law meaning in the definition of the proscribed act. Mens rea does not affect the meaning: it simply describes the state of mind that must exist in order to render a person who commits the actus reus criminally responsible for his conduct.

The argument that the consequences of giving the word "trespasser" its common law meaning would be such as could not have been intended by the legislature was founded on the assumption that to give the word that meaning would have the result that every person who entered premises in the possession of another with an unlawful purpose, such as an intending shoplifter entering a shop, would be guilty of statutory burglary under s. 76(1). Whether that result would be "so extreme or irrational as to compel the conclusion that the Parliament necessarily intended to say something else" (Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [52] ) is open to question since some at least would seem to regard the transformation of the intending shoplifter into a burglar as a gratifying development (see, e.g., Smith & Hogan, Criminal Law 4th ed. (1978), at p. 586 ). A more compelling answer, however, is that the underlying assumption is ill-founded. As has been said, a permission to enter land need not be confined by reference to the purpose of the entry and, except in the case where it is so confined, a purpose of subsequently doing an unlawful act will not, under the common law, convert entry which was otherwise within the permission into entry as a trespasser. In particular, to take the example on which most reliance was placed, the implied invitation to enter which a shopkeeper extends to the public may ordinarily be limited to public areas of the shop and to hours in which the shop is open for business: it is not, however, ordinarily limited or confined by reference to purpose. Indeed, in the context of the importance of "impulse buying", the mere presence of the prospective customer upon the premises is itself likely to be an object of the invitation and a person will be within the invitation if he enters for no particular purpose at all. The fact that a person enters with the purpose or some thought of possibly stealing an item of merchandise or of otherwise behaving in a manner which is beyond what he is authorized to do while on the premises does not, in the ordinary case where the invitation to enter is not confined by reference to purpose, result in the actual entry being outside the scope of the invitation and being trespassory.

The argument that the phrase "as a trespasser" would be denied any real effect if trespasser in s. 76(1) were given its common law meaning is likewise based on the assumption that, at common law, any person who enters premises in the possession of another with the purpose or intention of committing an unauthorized act therein will enter the premises as a trespasser. As has been said, that assumption is ill-founded. A person with a permission or licence to enter premises which is not limited by reference to purpose or intention will not enter them as a trespasser merely because he enters with an intent to commit one or other of the unlawful acts specified in s. 76(1). In such a case, the requirement of entry as a trespasser and the requirement of entry with an intent to commit one or other of the specified acts are distinct and substantive elements of the offence.

Nor, as we see the matter, does anything is the Eighth Report of the English Criminal Law Revision Committee militate against giving "trespasser" its ordinary common law meaning. The provisions of s. 76(1) can be indirectly traced (through s. 9 of the United Kingdom Theft Act) to the recommendations contained in that Report. Where legislation embodies the recommendations of a specialist committee, reference can properly be made to the committee's report as an aid to understanding the mischief with which the legislation was designed to deal. It is an open question whether such resort can be had to a report of a committee in another country upon which an enactment of that country is based for the purpose of construing local legislation which has substantially followed the foreign enactment. It is, however, unnecessary to examine that question in the present case since, once the notion that every permission to enter premises must be confined by reference to purpose is rejected, there is nothing in the Report which is inconsistent with giving to the word "trespasser" its ordinary common law meaning.

In the light of the foregoing and subject to one possible qualification, there are no valid grounds for declining to give the word "trespasser" in s. 76(1) the established meaning which it bears under the common law. The possible qualification relates to the old common law doctrine of trespass ab initio under which a person who had an authority under the general law to enter and be upon land would become a trespasser ab initio if he abused his authority: "When an entry, authority, or licence is given to any one by the law, and he abuses it, he shall be a trespasser ab initio" (per Coke C.J. in The Six Carpenters' Case [53] ). The doctrine, which only applied in a case where the authority to enter was under the general law as distinct from the permission of the owner or occupier (see Healing (Sales) Pty. Ltd. v. Inglis Electrix Pty. Ltd. [54] ; Winfield and Jolowicz on Tort, 11th ed. (1979), p. 346), was an artificial one to be explained by the requirements of the old common law pleading under which the actual entry had to be trespassory. Its rationale has, at least in part, disappeared with the disappearance of the old forms of action and the development of the modern law of tort under which a person who has entered under a valid authority to enter and be on land which remains in the possession of another becomes a trespasser from the time when the authority to be on the land is effectively terminated or when action in excess of the authority takes him outside its ambit. In Chic Fashions (West Wales) Ltd. v. Jones [55] , Lord Denning M.R. expressed the view that the doctrine of trespass ab initio is obsolete having been "interred" with the bones of the old forms of action. Diplock L.J. referred to the doctrine as "antiquarian" and commented that "[w]hat application, if any, the rule has in the modern law of tort, may some day call for re-examination" [56] . In Inglis Electrix Pty. Ltd. v. Healing (Sales) Pty. Ltd. [57] , Sugerman J.A. in effect rationalized the doctrine out of existence by treating it as based on the ordinary principle that conduct after entry is evidence of the purpose with which entry was effected. On the other hand, one can point to strong support, particularly from Lord Denning M.R. himself, for the contrary view that the doctrine represents a living and important safeguard against abuse of authority or administrative excess (see Cinnamond v. British Airports Authority [58] and Sir Alfred Denning, Freedom under the Law (1949), pp. 109-110). If the doctrine of trespass ab initio survives, it is, in a modern context, perhaps best seen as an anomalous rule of evidence which is applicable in a case of an alleged civil trespass by a person who relies upon an authority under the general law and which precludes the alleged trespasser from denying that he entered the land for the purpose of doing thereon the precise things which he subsequently did. So stated, the effect of the rule is that, in the ordinary case where an authority under the general law must be used bona fide for the purpose for which it was conferred (see O'Reilly v. State Bank of Victoria Commissioners [59] ), subsequent abuse of the authority will establish that the entry itself was for an alien purpose and was therefore not within the authority. It is, however, unnecessary to determine whether, if the doctrine remains operative, trespass ab initio is to be seen as a rule founded upon an evidentiary estoppel or as a rule of substantive law involving the notion that, contrary to the general rule (see, e.g., Wiltshire v. Barrett [60] ), subsequent conduct can make a contemporaneously lawful entry unlawful by virtue of some doctrine of relation back. In either case, there is no room in the criminal law for such a doctrine in a case where the gist of the alleged offence is the actual entry in the specified role and with a specified intent. If the relevant entry is not, at the time it occurs, entry "as a trespasser", no offence is committed and subsequent abuse of any authority to be on the land or premises entered does not retrospectively constitute an offence under s. 76(1) (see Archbold, Criminal Pleading, Evidence and Practice, 37th ed. (1969), par. 1505 (par. 18-50 in 41st ed. (1982), cited with approval in Reg. v. Collins [61] ).

1. (1610) 8 Co. Rep. 146a, at pp. 146a-146b [77 E.R. 695, at p. 696]. 2. (1968) 121 C.L.R. 584, at p. 606. 3. [1968] 2 Q.B. 299, at p. 313. 4. [1968] 2 Q.B., at p. 317. 5. (1968) 69 S.R. (N.S.W.) 311, at pp. 330, 331. 6. [1980] 2 All E.R. 368, at pp. 372-373; [1980] 1 W.L.R. 582, at p. 588. 7. Ante, 1, at p. 48. 8. [1966] 1 Q.B. 312, at p. 323. 9. [1973] Q.B., at p. 107.

What then are the circumstances in which a person, who has some permission to enter from the person in possession, enters premises as a trespasser for the purposes of s. 76(1)? Common sense indicates the answer that entry will be as a trespasser if, as a matter of substance and fact, the entry in question is beyond the scope of the permission. The above discussion compels the conclusion that the law and common sense coincide. The answer to the question is not complicated by artificial notions that a permission must be qualified by reference to authorized purpose or by artificial doctrines of relation back. When the only suggested justification for entry is the permission of the person in possession, the question whether entry was as a trespasser involves no more than identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission. If the permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not as a trespasser. If the permission was subject to an actual express or implied limitation which excluded the actual entry, the entry was as a trespasser.

It is possible that the question whether a particular entry is within the scope of a limited permission can involve difficulty in the identification of the limits of the permission and the definition of the actual entry. An obvious example is the case where the permission is confined by reference to a particular purpose and an entry is made for that purpose and some other illegitimate purpose (see, generally, Healing (Sales) Pty. Ltd. v. Inglis Electrix Pty. Ltd. [62] ). In such a case, if the permission extends to authorize every entry for the particular purpose, it covers the entry for both purposes since the entry satisfies the requirement that it be for the designated purpose: if the permission extends only to authorize an entry which is exclusively for the particular purpose, entry for both purposes does not satisfy that requirement and is beyond its ambit. Except where an authority under the general law or a question of construction of a written document is involved, the identification of the limits of the authority, like the definition of the actual entry for the purpose of ascertaining whether it comes within those limits, is essentially a question of fact to be determined by reference to the circumstances of the particular case.

The fact that an entry was, in a particular case, as a "trespasser" within the common law meaning of that word will satisfy that element of the offence created by s. 76(1). It will not, however, satisfy the requirement that the actus reus must be accompanied by mens rea before an offence under s. 76(1) will be committed. A person who enters upon another's property as a trespasser, though he has the specific intent mentioned in s. 76(1), is not guilty of an offence under that provision unless he knows the facts which make him a trespasser or, at the least, he is reckless as to the existence of those facts. Moreover, as the gist of the offence created by s. 76(1) is a trespassory entry, it is an offence with respect to the property entered, and mens rea is excluded by an honest claim of right to enter. The common law in this respect is stated "with complete accuracy" (per Dixon J. in Thomas v. The King [63] ) in s. 22 of The Criminal Code 1899 Q. which provides: " a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud." For present purposes the "intention to defraud" relates to the act of entering, not to an act which the trespasser intends to do or omit to do thereafter. It is difficult to envisage a case in which that limitation upon the defence of an honest claim of right to enter might operate. A trespasser who enters in exercise of an honest claim of right, even if he knows or is reckless as to the existence of the facts which make him a trespasser, is not liable to conviction though he be wrongheaded in asserting that claim (Reg. v. Pollard [64] ; R. v. Gilson & Cohen [65] ). An apparent exception to this doctrine occurred under the game laws in England: it was held in the cases under the Game Acts that an honest claim of right was no defence to entry or presence upon the land unless the accused had reasonable grounds for his belief (Watkins v. Major [66] ; Dickinson v. Ead [67] ). The game laws, however, stood in a special category. Lindley J. in Watkins v. Major [68] said that the Game Acts "are not mere criminal statutes, but are statutes passed for the purpose of protecting the peculiar rights of those entitled to shoot game". The Game Acts cases are quite anomalous and, as Professor Glanville Williams said in comment on the two last-mentioned cases, "he would be a bold lawyer who would argue from the Game Acts to any general principle of law" (Criminal Law, 2nd ed. (1961), p. 329).

1. (1937) 59 C.L.R. 279, at p. 306. 2. [1962] Q.W.N. 13. 3. (1944) 29 Cr.App.R. 174, at p. 180. 4. (1875) L.R. 10 C.P. 662. 5. (1914) 111 L.T. 378. 6. (1875) L.R. 10 C.P., at p. 666.

It follows that, even though a jury is satisfied that an accused's entry upon land or into a building or into part of a building in the possession of another was trespassory because the accused did not have any permission to enter or because his permission was so limited that it did not cover the entry charged against him, he cannot be convicted unless the jury is satisfied also that he knew or was reckless as to the existence of the facts which made him a trespasser and that he did not enter in assertion of an honest claim of right to do so.

In the present case, the applicant was charged with an alleged accomplice, named Terrence McFarlane, who was acquitted. The material before the Court indicates that, by the time the learned trial judge came to sum up to the jury, there was a not inconsiderable area of common ground between the applicant and the Crown as to the extent of Curl's authority to the applicant and as to the applicant's actions. It was not suggested that Curl had given the applicant any express general permission to enter the house. Any authority to enter had to be implied from the request to "look after" or "keep an eye on" the house accompanied by the information as to the location of a key. In those circumstances, Curl's permission to the applicant to enter the house was plainly limited to an entry for the purpose of complying with the request from which the permission was implied and it would appear to have been common ground that that was so. Thus the applicant himself, in his unsworn statement, confined the authority to enter the house to entry for the purpose of inspecting it. During the afternoon or evening of 28 December, the applicant and McFarlane visited the house. While they were there, Curl's two infant sons, who were temporarily residing with Curl's estranged wife, and two friends visited the house and saw the applicant and McFarlane there. The applicant had driven to the house in a borrowed truck which the boys saw parked in the driveway. The boys went swimming in a neighbour's pool. The applicant and McFarlane were still at the house when the boys returned but left before them. Later in the evening, the applicant and some person returned to the house in the borrowed truck. The applicant, with that person, entered the house for the purpose and with the intent of removing the items of furniture and domestic equipment. The essential issue between the Crown and McFarlane was whether McFarlane was the person with the applicant when he returned to remove the goods. The essential issue between the Crown and the applicant was, as has been indicated, whether the applicant intended, as the applicant alleged, to take the goods to ensure their safekeeping or whether he intended, as the Crown alleged and the jury found, to steal them.

In his charge to the jury, the learned trial judge was at pains to stress that the jury needed to be satisfied beyond reasonable doubt that Curl had not consented to the entry of the house which was alleged to constitute the gravamen of the offence under s. 76(1). It is in that context that one must see his Honour's specific direction regarding the limited permission to enter the house which Curl had impliedly given to the applicant. His Honour said:

Curl senior, of course, has said that he asked the accused Barker to keep an eye on that building or house, that he told Barker where he had left a key to the premises, that Barker had his authority to enter this building for the purpose of keeping an eye on it and, indeed, that Barker had his consent to remove items of furniture from the building. When I say furniture, that is any personal items there including the electrical equipment that is in the kitchen, but if I can compendiously refer to all those items as furniture, that Barker had his consent to remove items from the building if that was necessary in order to safeguard them. Thus it was clear enough, I think, that Barker had authority from Curl to enter the building and, if necessary, to handle and, indeed, remove property from therein, if he was legitimately acting in furtherance of the request made of him to keep an eye on the premises. Thus, if Barker entered the building and removed the various items of furniture, which you have been told were taken in furtherance of keeping an eye on the building, to safeguard those items for Curl senior, then I direct you, as a matter of law, that such an entry was not a trespass nor, indeed, did Barker steal those items. However, if you were satisfied beyond reasonable doubt that Barker entered the building at 16 Byron Street with the intention of stealing items of furniture therein - that is with a purpose which was alien to the authority which had been given to him by Curl senior to enter the building - then I direct you, as a matter of law, that he entered as a trespasser. In other words, the authority or licence given by Curl senior to Barker was one to guard, not to steal from the building. However, you must remember that it is not for the accused Barker or McFarlane to prove or disprove why either or each entered the building, if you are satisfied that one or both did so, rather, it is for the Crown to satisfy you beyond reasonable doubt that such entry was without the consent or authority of Curl senior.

If the above direction, to which no objection was taken at the trial, is viewed out of the context of the manner in which the trial had been conducted and the essential issue which had emerged between the Crown and the applicant, it would be open to criticism: it contains no specific application of the requirement of mens rea to the element of entry; it does not, in terms, require the jury to consider the scope of the permission to enter in order to determine whether the actual entry was outside it. The learned trial judge's summing up to the jury cannot, however, properly be read independently of the context of the conduct of the trial. As the English Court of Criminal Appeal (Lord Alverstone L.C.J., Darling, Phillimore, Bray and A. T. Lawrence JJ.) observed in R. v. Stoddart [69] , "[e]very summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively" (see, also, R. v. Nina Vassileva [70] ; R. v. Murray [71] ; Reg. v. Melville [72] ; Reg. v. Deen [73] ). The charge plainly reflects the issues raised by the conduct of the trial. In that context and in the absence of any complaint at the trial, the charge is not properly open to the criticisms noted; it contains no misdirection or failure to direct of a kind that would warrant the intervention of an appeal court (see Stoddart's Case [74] ). Indeed, counsel for the applicant has not, as we followed the argument, sought to maintain that the learned trial judge's summing up to the jury was defective by reason of any failure to deal adequately with the requirement of mens rea or by reason of any assumption that the permission to enter the house was a permission limited to entry for the purpose of safeguarding it and its contents.

1. (1909) 2 Cr.App.R.217, at p. 246. 2. (1911) 6 Cr.App.R. 228, at pp. 231-232. 3. [1924] V.L.R. 374, at p. 383. 4. (1956) 73 W.N. (N.S.W.) 579. 5. [1964] Qd R. 569, at pp. 572-573. 6. (1909) 2 Cr.App.R., at pp. 245-246.

The ground upon which the applicant seeks to attack the trial judge's summing up is stated, in the notice of motion for special leave to appeal, as being that his Honour erred in law "in ruling that the applicant could be guilty of burglary if he entered the premises with the intent to steal notwithstanding that he had permission from the owner to enter ". The essence of this ground was summarized in the judgment of Tadgell J. in the Full Court of the Supreme Court as being "that a person cannot be a trespasser in terms of s. 76(1) unless either he has no actual consent to enter the premises in question or any consent he has is vitiated by fraud on his part". Provided he has some consent to enter, entry cannot, according to the submission, be as a trespasser for the purposes of s. 76(1) even though the consent be limited so as to exclude from its scope entry for the purpose for which entry was effected. If follows that the whole basis upon which the applicant seeks to attack the summing up is inconsistent with the conclusions reached earlier in this judgment that the word "trespasser" in s. 76(1) bears its common law meaning and that a person will, for the purposes of that sub-section, enter a building in the possession of another as a trespasser if the actual entry does not come within the actual limits of the permission to enter upon which he relied.

The application for special leave to appeal should be granted but the appeal dismissed.

The facts of this application are set out in the judgment of Mason J. and I shall not repeat them.

Burglary, now that the new definition of that crime in the English Theft Act 1968 has been substantially adopted in Victoria, consists of entry by a person upon any building or part of a building as a trespasser with intent to commit any one of certain specified offences. The specified intent which is relevant in this case is "intent to steal anything in the building or part in question". See Crimes Act 1958 Vict., as amended, s. 76(i)(a).

The introduction of entry as a trespasser as an ingredient of burglary was evidently intended to avoid the nice distinctions which had grown up around the older concept of breaking and entering. Trespass is, of course, a creature of the civil law and its meaning must be derived from cases in tort. However, its transposition to the field of crime brings with it at least one modification which is made necessary by the general principle of the criminal law that a crime requires a guilty mind or mens rea as well as a guilty act or actus reus. This principle must be applied to the trespass which now forms part of the offence of burglary. The requirement of mens rea can, of course, be negatived by statute but there can be no suggestion that such is the case with s. 76 of the Crimes Act. The Court of Appeal said of the equivalent provision in the Theft Act in Reg. v. Collins [75] :

In the judgment of this court there cannot be a conviction for entering premises "as a trespasser" within the meaning of s. 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party's consent. 1. [1973] 1 Q.B. 100, at p. 105.

It is to be observed that the intention which is required by the criminal law is not merely an intention to enter but an intention to enter as a trespasser. By this is meant an appreciation of the lack of consent or other right to enter rather than the legal conclusion which follows. Recklessness as to whether the entry is as a trespasser or not will suffice but, having made that observation, I shall not, for the sake of simplicity, continue to refer to recklessness as amounting to a sufficient intent. Mens rea consists of an intention to do the forbidden act, the actus reus, and with trespass the forbidden act is not entry, but entry without consent or other lawful right.

To require mens rea in order to establish entry as a trespasser is to impose a requirement which forms no part of the civil law. Trespass to land, which is the relevant form of trespass for present purposes, consists of a physical interference by one person with the possession of another and the commonest form is a personal entry upon land or buildings occupied by that other. Whether at civil law an entry which is accidental and in that sense unintentional can be a trespass may be a matter of doubt, but it is clear that to constitute a civil trespass the entry does not have to be intentional in the sense of an intentional entry without consent. The civil wrong of trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it. See Conway v. George Wimpey & Co. Ld. [76] ; Salmond and Heuston on the Law of Torts, 18th ed. (1981), pp. 36-37.

To establish entry as trespasser for the purposes of s. 76 of the Crimes Act requires proof of mens rea, that is, intention in the criminal sense, and so entails different or additional considerations from those involved in the proof of entry as a trespasser for the purposes of the civil law.

It is convenient to remark at this point that an intention to enter as a trespasser is not the only intention required by s. 76 of the Crimes Act. The offence of burglary is committed only if, at the time of entry as a trespasser, the entrant has an intent to steal. This is not the mental element required generally by the criminal law to constitute mens rea, namely, an intent to do the act which is forbidden. It is an added requirement of a mental element in the form of a specific intent which must accompany the doing of the forbidden act in order to constitute the whole of the mental element required for the particular offence. Perhaps no great help is to be derived from the use of terms such as basic intent or general intent in order to distinguish the mental element which must generally be proved as part of any criminal offence and the more specific or additional mental element required as part of many crimes. See R. v. O'Connor [77] . But in any analysis of s. 76 of the Crimes Act it is essential to recognize that the offence consists both of an intentional entry as a trespasser and an intent to steal at the time of entry.

The distinction must be maintained because a person accused of burglary may enter premises with an intention to steal but nevertheless in the belief that he is entitled to enter. A person who enters premises with apparent consent but with intent to steal, such as an ordinary shoplifter, is likely to believe at the time he enters the premises that he has the same right of entry as other persons notwithstanding the criminal purpose for which he enters. If intercepted before attempting to steal anything, no doubt he would say that he had done nothing wrong and was entitled to be on the premises. And if he believed that to be so, as he very well might, the mental element required to prove entry as a trespasser would be lacking, notwithstanding evidence of that other aspect of intent required for burglary, an intent to steal at the time of entry. Before there can be burglary there must be an entry as a trespasser with intent to enter as a trespasser as well as with intent to steal.

Because there must be an entry as a trespasser as well as an intention to enter as a trespasser means, of course, that apart from the question of intent, it is necessary to have regard to the requirements of the civil law to find whether or not there was an entry as a trespasser or, to express it in terms of the criminal law, whether there was an actus reus. It would, no doubt, be simpler if it could be said that entry as a trespasser is the physical act of entering another's premises without the permission of that other or some other right or entitlement to do so and that it is irrelevant that a person given permission to enter for one purpose may do so for another. That would avoid the introduction to the criminal law of the notion of purpose, which may be something different from intent and in some cases, at least, must look very like motive. Trespass is concerned with the physical violation of possessory rights and it would seem to do no harm to principle to say that there is no violation of possessory rights where the act which would otherwise constitute the violation is permitted even if it is done for a purpose other than the purpose for which the permission was granted. There are, however, cases which say that a person who has a right of entry to the premises of another for a particular purpose commits a trespass if he enters for any other purpose and without any other lawful right or entitlement.

The best known authorities are, perhaps, Reg. v. Pratt [78] and Harrison v. Duke of Rutland [79] . Each of those cases was concerned with the use by a member of the public of a highway over the land of another for purposes other than passing and repassing which was the extent of the right of way. In the first case the defendant came on to the highway carrying a gun and accompanied by a dog. He waved his hand to the dog, which entered the adjoining cover; a pheasant rose; the defendant, being on the highway, fired at it and missed it. In the second case, the plaintiff interfered with the defendant's shooting of grouse on the defendant's land over which the highway ran, by standing on the highway and doing such things as waving his pocket handkerchief and opening and shutting his umbrella for the purpose of keeping the grouse away. In each case these activities on the highway were said to constitute trespass at common law. I am by no means certain that the cases could not be adequately explained upon the basis that the physical acts involved amounted to more than passage along the highway and so were not acts which were permitted whatever the purpose in committing them. But the judgments speak in terms of purpose. For example, in the latter case Lord Esher says [80] :

Therefore, on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser. See also Lopes L.J. [81] ; Kay L.J. [2] . Moreover, there are dicta in other cases which suggest that a person enters another's premises as a trespasser if he enters for a purpose other than the purpose for which he is invited or permitted to enter. See Taylor v. Jackson [3] ; Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [4] ; cf. Byrne v. Kinematograph Renters Society Ltd. [5] . In Farrington v Thomson and Bridgland [6] it was held that the secondnamed defendant trespassed upon the plaintiff's hotel premises when he entered them for a purpose which was not within the scope of any tacit permission or licence that he may have had from the plaintiff. In Strang v. Russell [7] it was held that, although the defendant may have had a licence to enter upon the property of the plaintiff, if he entered not in pursuance of that licence, but with the intention of contesting the plaintiff's right as owner, the licence was no defence in an action for damages for trespass. See also Gross v. Wright [8] . 1. (1855) 4 El. & Bl. 860 [119 E.R. 319]. 2. [1893] 1 Q.B. 142. 3. [1893] 1 Q.B., at p. 146. 4. [1893] 1 Q.B., at p. 150. 5. [1893] 1 Q.B., at p. 158. 6. (1898) 78 L.T. 555, at p. 556. 7. [1936] A.C. 65, at p. 69. 8. [1958] 1 W.L.R. 762, at p. 776; [1958] 2 All E.R. 579, at p. 593. 9. [1959] V.R. 286. 10. (1905) 24 N.Z.L.R. 916. 11. [1923] 2 D.L.R. 171, at p. 185.

I think that I must, therefore, conclude that entry upon another's premises for a purpose other than a purpose for which permission has been given by that other, in the absence of some other lawful right to enter, is entry as a trespasser for the purposes of the civil law and, this concept having been borrowed for the purposes of s. 76 of the Crimes Act, it is also entry as a trespasser for the purposes of that section. Of course, where permission is given to enter premises for a limited purpose, the limitation must appear expressly or by implication. No unrevealed reservation of purpose by the person giving the permission will restrict its extent if the limitation is not otherwise apparent at the time. Whether or not in any case the permission was limited to entry for a particular purpose will be a question for the jury in all the circumstances.

That, of course, means that a person who enters another's premises with intent to steal will ordinarily enter as a trespasser because permission to enter is not normally given for such a purpose. But it does not necessarily follow that such a person is guilty of burglary, because he must also have intended to enter as a trespasser. Unless that intention is established there is merely an actus reus with no mens rea.

In the two cases cited concerning s. 9 of the English Theft Act, namely, Reg. v. Collins [9] and Reg. v. Jones and Smith [10] it was not found necessary to deal with this precise point. In Reg. v. Collins the question was whether the charge to the jury was defective because it disregarded the intention of the defendant in entering the premises in question and failed to require the jury to consider whether the defendant entered the premises knowing he had no permission to enter or reckless whether he had permission or not. The case is important because it authoritatively lays down the requirement of mens rea for entry as a trespasser so far as burglary is concerned but it was unnecessary in that case to carry the matter further than that.

1. [1973] Q.B. 100. 2. [1976] 1 W.L.R. 672; [1976] 3 All E.R. 54; 63 Cr.App.R. 47.

In Reg. v. Jones and Smith, on the other hand, the question was whether there was a trespass when permission to enter premises had been given by the occupier but the defendants entered "in excess of the permission". It was held that there could be a trespass in those circumstances but the Court recognized the requirement that the defendants should have intended to trespass. The Court said [11] :

In this particular case it was a matter for the jury to consider whether, on all the facts, it was shown by the prosecution that the defendants entered with the knowledge that entry was being effected against the consent or in excess of the consent that had been given by Mr. Smith senior to his son, the defendant Smith. The jury were, by their verdict satisfied of that. 1. [1976] 1 W.L.R., at p. 675; [1976] 3 All E.R., at p. 59; 67 Cr.App.R., at p. 52.

The trial judge in the present case did not, in my view, correctly charge the jury as to the intention required to constitute the applicant a trespasser for the purposes of s. 76 of the Crimes Act. He directed the jury that the entry upon Curl's premises must have been intentional but he did not direct them that it must have been with knowledge that Curl did not consent or reckless of whether or not Curl consented. Moreover, the trial judge appears to have confused the requirement that there be an intent to steal at the time of entry with the requirement that there be an intent to trespass. He regarded an intent to steal, if established, as providing the intent to trespass but they are, as I have said, two different things. It was matter for the jury whether the applicant intended, when he entered Curl's house, to do so without Curl's consent or reckless whether or not Curl consented, but it was not left to the jury. What was put to them was:

However, if you were satisfied beyond reasonable doubt that Barker enter the building at 16 Byron Street with the intention of stealing items of furniture therein - that is with a purpose which was alien to the authority which had been given to him by Curl senior to enter the building - then I direct you, as a matter of law, that he entered as a trespasser.

That direction, as far as it went, was accurate, but it failed to go further and point out that the applicant must not only have entered as a trespasser but must have intended to enter as a trespasser or have been reckless as to whether he did or not, to be guilty of burglary under s. 76 of the Crimes Act. In my view, this failure resulted in a material defect in the charge.

However, the omission was not raised by the ground upon which special leave to appeal was sought, nor was any attempt made to argue it before this Court or the Court below. The ground upon which special leave was sought was that the trial judge erred in ruling that the applicant could be guilty of burglary if he entered the premises with an intention to steal, notwithstanding that he had permission from the owner to enter. Argument was limited to whether the applicant was or was not a trespasser for the purposes of s. 76(1), having regard to the expressed purpose for which the permission was given. It did not address itself to the question of the need for an intention on the part of the applicant to enter as a trespasser. In those circumstances, I would grant special leave upon the ground upon which it was sought and dismiss the appeal.