Barker v The Queen

[1983] HCA 18

High Court of Australia|1979-12-28|Before: Dawson JJ, Mason J, Tadgell JJ, Starke J

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Source facts

Court

High Court of Australia

Decision date

1979-12-28

Before

Dawson JJ, Mason J, Tadgell JJ, Starke J

Source

Original judgment source is linked above.

Judgment (96 paragraphs)

[1]

The applicant then argues that the words "enters as a trespasser" in s. 76 were not intended to carry their common law meaning. He relies upon the Eighth Report on Theft and Related Offences by the Criminal Law Revision Committee in the United Kingdom, Cmnd. 2977 (1966), which led to the enactment of the Theft Act 1968. There is authority for the proposition that reports of committees investigating the subject matter of legislation, provided the Act does not depart substantially from the committee's recommendations, can be consulted in order to ascertain the mischief with which the Act is concerned (Black-Clawson Ltd. v. Papierwerke A.G. [25] ; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [26] ). Whether this proposition should be extended to embrace the reports of English committees in cases in which Australian legislation is based on United Kingdom legislation is another question. I am willing to assume, without deciding, that the question should be answered in the affirmative. Paragraph 75 of the Report says that the Committee thought of extending the scope of what later became s. 9 to "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 thought it unnecessary "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". This passage suggests that the Committee thought that the person who enters a shop with the intention of hiding there until after closing time at which time he will steal something does not enter as a trespasser because he has the authority of the owner to enter the shop. If that is what the Committee thought, the Report fails to disclose the reasons for their view. And the suggested inference is at best indirect, arising only from an illustration given by the Committee. It falls far short of establishing that the mischief with which the Committee was concerned in inserting the requirement of entry as a trespasser was to exclude from the scope of the offence of burglary persons entering premises with the limited authority of the owner, but with the intention to steal.

[23]

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.)

[47]

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.

[54]

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.

[58]

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.

[61]

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] ).

[65]

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).

[68]

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.

[70]

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.