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[2025] ACTSC 386
General information, not legal advice.
Supreme Court of the ACT
2025-08-18
Baker J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Stewart-Reid Citation: [2025] ACTSC 386 Hearing Date: 18 August 2025 Decision Date: 18 August 2025 Reasons Date: 29 August 2025 Before: Baker J Decision: Application is allowed. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury Trial – application for directed verdict – burglary – theft – take motor vehicle without consent – whether the evidence establishes trespass as an element of burglary – where alleged burglary occurred at a gym – where co-offender was a member of the gym – where gym members could bring a guest pursuant to the gym’s membership agreement – whether the accused was a trespasser having regard to the gym’s membership agreement – contractual construction – question of law versus question of fact – role of judge and jury – trespass not available on construction of the contract – jury directed to acquit burglary count Legislation Cited: Criminal Code 2002 (ACT), s 311 Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 26; 129 CLR 99 Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 Dib Group Pty Ltd v Cancian Nominees Pty Ltd [2013] NSWSC 1878 Doney v The Queen [1990] HCA 51; 171 CLR 207 J & P Marlow (No 2) Pty Ltd v Hayes [2023] NSWCA 117; 112 NSWLR 29 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; 256 CLR 104 R v A2 [2019] HCA 35; 269 CLR 507 Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 Texts Cited: Dyson Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1 Perry Herzfeld and Thomas Prince, Interpretation (Thompson rd Reuters, 3 ed, 2024) Parties: ACT Director of Public Prosecutions Sherri Paigan Stewart-Reid (Accused) Representation: Counsel M Rabsch (DPP) J Purnell SC (Accused) Solicitors ACT Director of Public Prosecutions CODA Law (Accused) File Number: SCC 100 of 2024 BAKER J:
Overview
This is an application by the accused, Ms Sherri Paigan Stewart-Reid, for a directed verdict concerning count 1 on the indictment, which charges that she entered or remained in a building as a trespasser with intent to commit theft (burglary).
After hearing submissions from both parties, I allowed the application. My reasons for so concluding are set out below.
Background
As well as the charge of burglary, the accused is charged with two counts of dishonestly appropriating property; and two counts of dishonestly taking a motor vehicle.
In brief, the prosecution alleges that on 12 June 2023 at around 5:30pm, the accused and her friend Ms Sara Winters entered Anytime Fitness Gym in Condor (the Gym) by following another gym member as he entered the Gym. The 12 June 2023 was the Monday of the King’s Birthday long weekend. Ms Winters was a member of the Gym, but she did not use her pass to gain entry. The accused was not a member of the Gym.
The prosecution further alleges that once in the Gym, one or both of them took two sets of car keys from gym members’ property, and subsequently took two Toyota Corollas (one white, one blue) using those keys. When the gym members discovered that their cars and car keys had been taken, they immediately contacted police.
Police attended the Gym shortly after 6:30pm. At the Gym, police spoke to the owners of the stolen cars and other gym members. A male member of the Gym said that approximately an hour earlier, two females dressed in activewear had followed him into the Gym by holding the door ajar after he swiped his pass to enter the Gym. He did not see whether either or both of the females had used a swipe pass to enter. Prior to entering the Gym, that member had seen the two females speaking to a male in the carpark. He later saw one of the females hand the other female a tampon into the toilet cubicle.
Police obtained CCTV footage from the Gym which depicts the two females and their movements in the Gym. Police also obtained CCTV footage from a nearby business which depicts the gym carpark. There is no dispute that the females depicted on the CCTV were the accused and Ms Winters. (Ms Winters has entered pleas of guilty to various charges relating to these events, including charges of theft and take motor vehicle without consent.) The CCTV footage depicts: (i) the accused holding the door open after the Gym member enters; (ii) the accused and Ms Winters walking to the end of the Gym where personal belongings of gym members are stored in cubby holes near the toilet; (iii) the accused entering the toilet, where she remains for some three minutes; (iv) Ms Winters remaining in the vicinity of the cubby holes whilst the accused is in the toilet; (v) Ms Winters entering the toilet; (vi) The accused and Ms Winters leaving the Gym and meeting with a male in the Gym carpark; (vii) The white and blue Toyota Corollas being driven out of the carpark of the Gym; (viii) The accused getting into the passenger seat of the blue Toyota Corolla as it departs from the Gym carpark.
The accused gave evidence in the trial. In her evidence, she stated that she had met up with Ms Winters the previous day, having not seen her previously for many years. The two arranged to go ‘clubbing’ together. They then spent the night attending nightclubs, consuming alcohol and methylamphetamine. The following morning, they visited various friends of Ms Winters. Eventually, at around 5pm, Ms Winters and the accused, together with another male were dropped at the house of a friend “Maz”, who turned out not to be home. The accused, Ms Winters and the male then walked to the shops. The accused said that Ms Winters told her that her car was at the shops and that she could drop the accused home. The accused said that she had unexpectedly got her period, and that Ms Winters told her that she could use her gym membership to access the gym toilets. The accused said that when they left the Gym, Ms Winters told her to get into the male’s car, as he would give her a lift home. The accused maintained that she did not see Ms Winters take the keys from the Gym; she did not know that either car was stolen; and was not party to any agreement to take property from members of the Gym.
Following the conclusion of the defence case, senior counsel for the accused applied for a directed verdict of acquittal with respect to count 1 on the indictment (namely, the count of burglary). In particular, senior counsel contended that because Ms Winters was a member of the Gym, the evidence is not capable of demonstrating that the accused was a trespasser, that being one of the elements of burglary under s 311 of the Criminal Code (ACT).
Section 311(4) of the Criminal Code provides as follows: (4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building— (a) for a purpose that is not the person’s intended purpose; or (b) because of fraud, misrepresentation or someone else’s mistake.
As the prosecutor very properly accepted, the effect of this subsection is that if the accused was “permitted” to enter the building, she would not be a trespasser, even if the accused and Ms Winters had intended to steal property from members of the Gym at the time of their entry: see Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [38] – [54].
Accordingly, the question whether the accused was a trespasser is not determined by the accused’s purpose when entering (or remaining) in the Gym. The only question to be determined is whether the accused was “permitted” to enter into or remain in the Gym at 5:30pm on 27 June 2023.
The evidence before the jury includes the agreement which applied to gym membership at that time (the Agreement). The Agreement includes the following relevant provisions under the heading “Agreement Details”: (i) Under the heading “Services Supplied”: “We will provide access to Club and its facilities for use of our Members, in accordance with the terms of this Agreement”; and (ii) Under the heading “Services Exclusions”: “This Agreement and the services provided under it are subject to the following exclusions, limitations and restrictions: (a) Access to our Club (and any other Club) is only provided to Members. If you wish to provide access to any person who is not a Member, additional Fees will apply in accordance with the terms of the Agreement…”
Under the heading “Other Fees”, the Agreement relevantly includes: Type of fees Goods or Services Amount Payment Timing Relevant to Fee Guest Fee (per visit) For admission of one $30.00 (Maximum) Payable upon entry of guest into a Club. the guest. Tailgate Fee For unapproved $60.00 (Maximum) Payable if you allow admission of one guest another person to into a Club. access a Club without permission.
Under the heading “Terms” are the following clauses: 5.2 Your Member Access Key (a) You will need your Member Access Key to access Clubs and must swipe this each time you use the Facilities and Services. You may have either a digital key or a fob key. A member can only have one Member Access Key. … (c) If you lose access to or forget your Member Access Key you may access a Club during Staffed Hours if you show a photo ID to Club staff but this will be at the discretion of the Club. You should not ask or expect another person to let you into a Club at any time. (d) You must not let anyone else into a Club without the approval of Club staff or let anyone else use your Member Access Key. If you break this term, you may be charged the Tailgate Fee and/or your Membership may be suspended or cancelled.
The parties have suggested two possible interpretations of the agreement.
The prosecution submitted that the effect of clause 5.2 is that any member of the gym who does not swipe their pass whilst the gym is unstaffed is not permitted to enter or remain in the gym; nor are they permitted to allow entry to any other person to enter the gym.
In response, the accused submitted that clause 5.2 does not have this effect. The accused submitted that a member of the Club is conferred a right to enter the Club by the Agreement, regardless of whether the person uses their pass.
If the prosecution’s construction is accepted, it would follow that the element of trespass would be demonstrated for count 1 (of course, questions would still remain as to whether the accused knew that she did not have permission to enter the Gym).
The test to be applied
There is “no doubt that it is a trial judge's duty to direct [a verdict of acquittal] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict”: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212. However, such a verdict may not be entered: ... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: at 214 – 215.
More recently, in R v A2 [2019] HCA 35; 269 CLR 507. Kiefel CJ and Keane J at [91] explained that: Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution's case or that supports the accused's case.
The issue at the heart of this application concerns the effect of a contract entered into between Ms Winters and the Gym. This adds an additional layer of complexity into the application of the Doney test. Specifically: is the proper construction of the Agreement a question of law for the trial judge to determine? Or is the proper construction of the Agreement a question of fact, or mixed fact and law, for the jury to determine?
If the former, it would follow that the Doney test would not apply; rather, I would need to determine the proper construction of the Agreement. If I were of the view that, on a proper construction of the Agreement, Ms Winters was authorised to bring the accused into the Gym, then it would follow that the element of trespass could not be made out, and a directed verdict of acquittal would be required to be entered for Count 1.
On the other hand, if the proper construction of a contract is a question of fact (or mixed fact and law) for the jury to determine, then, applying Doney, it would follow that a directed verdict of acquittal could not be ordered provided that one available construction of the Agreement is that Ms Winters was not authorised to bring the accused into the Gym. rd
In the text Interpretation (Thompson Reuters, 3 ed, 2024) at 492 [19.20], Herzfeld and Prince state that “[t]he proper construction to be given to a private legal document is a question of law”. Similarly, in Dib Group Pty Ltd v Cancian Nominees Pty Ltd [2013] NSWSC 1878 at [26], Beech-Jones J observed that the proper construction of agreements “was always, and still remains, a question of law”. However, neither Dib, nor the authorities referred to in Interpretation were dealing with the division of responsibilities between judge and jury in a criminal trial.
The correct construction of the agreement
The principles to be applied when determining the proper construction of a contract are well established. Such principles were succinctly articulated by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; 256 CLR 104 at [46]: The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
The first issue to be determined is whether the prosecution’s submission that the effect of the contract is that a gym member’s permission to enter the Gym is conditional upon the gym member first swiping their pass, such that a gym member will be a trespasser if the member enters without swiping their pass.
As noted above, the Agreement Details states that: Services Supplied: We will provide access to Club and its facilities for use of our Members, in accordance with the terms of this Agreement. Services Exclusions: Access to our Club (and any other Club) is only provided to Members. If you wish to provide access to any person who is not a Member, additional Fees will apply in accordance with the terms of the Agreement.
Whilst the “services supplied” makes reference to access being supplied “in accordance with the terms of this Agreement”, it is notable that there is no express mention of the use of a swipe pass as being a condition of entry to the Gym in either of these clauses.
Turning to the terms of the contract, as the prosecutor submitted, cl 5.2(a) states that the member “must swipe” their Member Access Key “each time you use the Facilities and Services”. However, the Agreement does not prescribe any consequences for a member who fails to swipe the Member Access Key. Other provisions of the Agreement are also expressed in mandatory language (for example, that a member “must wear security lanyards when appropriate, for example, if exercising alone or outside staffed hours”). It could not be suggested that the Agreement intended that a member’s right to access the Gym would be conditioned upon whether they were wearing a security lanyard at the relevant time.
A construction of the contract which rendered a gym member a trespasser for failing to comply with clauses of this nature would lead to arbitrary or capricious results. Such a construction should be avoided: J & P Marlow (No 2) Pty Ltd v Hayes [2023] NSWCA 117; 112 NSWLR 29 at [90], citing Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 26; 129 CLR 99 at 109, per Gibbs J (as his Honour then was, in dissent); see also Herzfeld and Prince, Interpretation at 567 [25.50].
Not only is there no express provision in the Agreement conditioning a member’s permission to enter upon the member first swiping their Member Access Key, the language of cl 5.2(c) strongly suggests the contrary. It states that a member “should not ask or expect another person to let you into a Club at any time”. This non-prescriptive language does not indicate that it is intended that a member will be a trespasser if the member fails to swipe their Member Access Key prior to entering the gym.
Should a directed verdict of acquittal be entered?
For the reasons outlined above, I have determined that, on a proper construction of the Agreement, the Agreement does not render a person a trespasser if the person is a gym member, nor does it render a person a trespasser if the person attends as the guest of a gym member or as a person allowed to enter the Gym by a gym member.
The prosecutor next submitted that a directed verdict of acquittal should not be entered because there is an anterior question of fact that must be determined by the jury: namely, whether the accused attended the Gym as a guest or was allowed to enter the Gym by Ms Winters.
However, as Mr Purnell SC submitted, the prosecution case was that Ms Winters was acting in concert with the accused, such that the only available inference was that Ms Winters allowed the accused into the Gym. In response, the prosecutor submitted that this was only the case for counts 2 – 5. I did not accept that the prosecution should be permitted to advance a case on count 1 which differed from its case on counts 2 – 5.
For the above reasons, I directed the jury to return a directed verdict of acquittal as follows: I am now required to direct you, members of the jury, as a matter of law that the accused must be found not guilty of count 1. The other counts on the indictment will remain for you to determine. Nothing about this directed verdict will affect your consideration of any of those remaining counts. As you'll soon hear in my summing up, those counts do not have trespass as an element. My ruling says absolutely nothing about your assessment of the strength of the prosecution case on those counts and it says absolutely nothing about your assessment of the accused's response to those counts. So what I'll do now is explain the procedure that has to be followed following my ruling. I direct you that you must return a verdict of not guilty in respect of count one. As you are required to follow my directions of law, you must follow that direction. You will not need to retire to do that. In a moment, I'll simply say to your foreperson, which is the person sitting closest to me, “Do you, in accordance with my direction, find the accused, Sherri Paigan Stewart-Reid not guilty of count one, burglary?” And then you, the foreperson, will respond, “Yes.” I must tell you that it’s not an option for you to say anything other than, “Yes,” when I ask you that question.
The jury then returned a verdict of not guilty on count 1 pursuant to my direction.
I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date:
DPP
Stewart-Reid [2025] ACTSC 386
However, in Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23, Nettle JA (as his Honour then was) considered the division of responsibilities between judge and jury (at [33]): Strictly speaking, the ascertainment of the terms of a contract in writing is a three stage process. The first step is to decide whether the words of the contract have been used in the sense which they have in ordinary English or in some legal, technical or other special sense. That is a question of law for the judge. Secondly, if the words have been used in the sense which they have in ordinary English, it is necessary to decide the meaning of the words. That is ordinarily described as ‘interpretation’, and it is a question of fact for the jury. If the words have been used in some non-legal technical sense, the ascertainment of their meaning is also a question of fact for the jury. But if it is decided that the words have been used in the sense of some legal meaning, the ascertainment of that meaning is a question of law for the judge. Thirdly, once the meaning of the terms of the contract has been ascertained, it is necessary to determine the legal effect of the meaning of the terms as so found. That process is ordinarily described as ‘construction’, and it is also question of law for the judge.
Baiada Poultry concerned an occupational work health and safety prosecution of a company engaged in the business of processing poultry. The company engaged independent contractors, inter alia, to catch the chickens to be transported for processing. An employee of an independent contractor was killed when loading a forklift. The employee driving the forklift was not licensed to drive a forklift, and the company was prosecuted for failing to provide and maintain a safe working environment.
The relevant contract in Baiada Poultry was relevant to the question of whether the company had contractual power to direct the independent contractor as to the safety measures to be adopted whilst loading and unloading trailers: Baiada Poultry at [20]. The prosecution contended that the contract gave the company express contractual power to so direct the independent contractor. The company contended that the relevant contract did not apply to the site where the death occurred.
The appeal judgment records that the “only issue as to the meaning of the terms of the Heads of Agreement, as opposed to their legal effect, was whether they applied only to operations of [an unrelated processing plant(s)] or also to loading operations at [the site in question]”: Baiada Poultry at [35]. It as accepted that “if the meaning of the terms was that they were applicable to [the site], their legal effect was to arm Baiada with contractual power to control loading operations at the [site]”: Baiada Poultry at [35].
The trial judge directed the jury as follows: The defence maintains that in this regard that [the] requirement [to abide by Baiada’s directions as to loading operations] relates to Laverton and/or other processing sites, but not to grower sites. These matters as it was submitted, would have been expressly included, that is if they were to apply to grower sites had the parties so intended. I tell you that, as a matter of law that if you were satisfied that the prosecutor’s contention is correct then that is evidence that there was a power of control [to] direct the subcontractors, particularl[y] [DMP] Poultech, as to what it should do with regard to the matters set forth in the particulars [of offence]. Ultimately, it’s a matter for you to assess.
Justice Nettle held that this direction “accorded precisely with the required division of responsibilities between the jury, to find as a matter of fact the meaning of the terms of the contract, and the judge, to determine the legal effect of that meaning”: Baiada Poultry at [37].
Although Nettle JA was in dissent (his Honour having found that the proviso could not be applied to an unrelated error in the directions), the other members of the Court (Neave JA and Kyrou AJA) agreed with his Honour’s reasoning concerning this ground of appeal. A subsequent appeal to the High Court was allowed, but only on the issue of the application of the proviso: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92. The High Court did not comment upon the findings discussed above, and the passage extracted at [33] above remains authoritative: Dyson Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 222) 11008 [11010].
As in Baiada Poultry, there is no suggestion that the terms of the Agreement were used in a sense other than their ordinary English meaning: see Baiada Poultry at [34]. Nor is there any dispute as to the meaning of the words used in the agreement. Rather, the dispute concerns the legal effect of the agreement. Applying Baiada Poultry, I find that this is a question of law to be determined by myself as the trial judge. It follows that the issue is not whether the construction advanced by the prosecutor is an available construction; rather, I must determine what the correct construction of the agreement is.
Accordingly, I find that on a proper construction of the Agreement, Ms Winters had permission to enter, and remain, in the Gym by reason of her status as a member of the Gym, even though she did not swipe her pass on entry.
The next question is whether the legal effect of the Agreement was to confer permission upon the accused to enter and remain in the Gym, as a guest of a member or a person allowed by a member to enter.
Again, the starting point is with the opening clauses of the Agreement. As can be seen from the extract at [13] above, that opening clause states that if a member wishes to provide “access to any person who is not a Member, additional Fees will apply in accordance with the terms of the Agreement” (emphasis added). In other words, the concern of the contract in this clause is with the payment of fees; not with denying a member a right to bring in a guest.
The clauses relating to “other fees” confirms this interpretation: A “Tailgate Fee” of $60 apples for an “unapproved admission of one guest into a Club”; those latter words appearing in a column under the heading “Goods and Services relevant to fee” (emphasis added). Under the heading “Payment Timing”, the Agreement states “Payable if you allow another person to access a Club without permission”.
Clause 5.2(d) provides that a member “must not let anyone else into a Club without the approval of Club staff…” This clause states that if this term is broken, the member “may be charged the Tailgate Fee and/or [the member’s] Membership may be suspended or cancelled”. Significantly, however, this clause appears to apply not only to a “guest” of a member, but also to any carelessness of a member when entering which enables a person unknown to the member to enter the Gym.
Clause 5.5 provides that a member may bring a guest into a Club “but only if they register with Club staff, pay a Guest Fee and meet our other reasonable conditions. For example, they will need to be the Minimum Age, show photo ID, complete the Pre-Exercise Questionnaire and other standard forms”. However, the term “Guest Fee” in the table of fees clearly relates to an approved guest, the cost of admission being a maximum of $30, “payable upon entry of the guest”. Clause 5.5 must be read together with the opening clause of the contract and the schedule of fees, which as stated above, describe an “unapproved admission of one guest into a Club” as “goods or services” which attract a “tailgate fee”.
No doubt in view of the above clauses, the prosecutor accepted that the Agreement permitted a member to allow a guest into the Gym, whether or not the person had been the subject of prior approval by the Gym. However, the prosecutor contended that such permission was conditional upon the gym member first swiping their pass to gain access. The prosecutor did not identify any clause of the Agreement in support of this submission, other than the requirement in cl 5.2(a) to which I have already referred. Having rejected the prosecution’s contention that the gym member’s permission to enter is conditioned on the gym member first swiping their pass, and in the absence of any clause in the contract requiring a gym member to swipe their pass at the time of entry to authorise the entry of their guest, I did not accept this submission.
The task of construing the Agreement is not easy. It is apparent that the Agreement was drafted primarily with a view to ensuring financial recovery, rather than with an eye attuned to the criminal law of trespass. Nonetheless, when read objectively, and as a whole, I found that the Agreement conferred upon a gym member a right to enter and remain in the Gym, regardless of whether or not the member swiped their pass on entry. I also found that any person who attended as a guest or person allowed to enter the gym by a member was permitted to enter and remain in the Gym under the Agreement.
In so concluding, I have not overlooked the contentions of the prosecutor concerning the difficulty in policing the “tailgate fee” if a member does not swipe his or her pass on entry. I accept that, if the member does not swipe their pass on entry, the administrators of the Gym will find it more difficult (albeit not impossible) to enforce the contractual provisions relating to payment of the tailgate fee. However, as outlined above, the task of construing the Agreement is directed at the intention of the parties as expressed in the text of the document. For the reasons outlined above, the text of the Agreement does not render a person a trespasser if the person is a gym member, nor does it render a person a trespasser if the person attends as the guest of a gym member or as a person allowed to enter the Gym by a gym member.