Barker v R
(1983) 153 CLR 338(1983) 57 ALJR 426
(1983) 47 ALR 1
(1984) 128 Sol J 251
(Decision by: Mason J)
Between: Richard Ernest Barker
And: The Queen
Judges:
Mason JMurphy J
Brennan J
Deane J
Dawson J
Subject References:
Criminal Law
Judgment date: 7 June 1983
Decision by:
Mason J
The unusual facts of this application raise an important question: Does a person who is given, by another person entitled to give it, limited authority to enter premises, but enters those premises with intent to steal, enter as a "trespasser" within the meaning of s. 76 of the Crimes Act 1958 (Vict.)? (at p340)
2. In December 1979 one Curl decided to go on a holiday for two or three weeks. Before leaving on his holiday Curl asked the applicant, a neighbour and acquaintance, to keep an eye on his (Curl's) house while he was away. Curl kept a concealed key to his house and he told the applicant where it was in case he needed to enter. (at p340)
3. Whilst Curl was away his two sons, James and Andrew, who normally lived with Curl, stayed elsewhere. However, on 28 December 1979 the two boys had occasion to visit Curl's house. There they say a truck parked in the driveway and the applicant and one McFarlane were present. The applicant told the boys he was looking after the house for Curl and he was going to fix a broken window or windows. The boys then went for a swim and returned to find the applicant and McFarlane inside the house. The two men left shortly afterwards and nothing appeared to be missing from the house. (at p340)
4. The next morning Curl's sons once again visited Curl's house and found many goods missing. They notified the police and the applicant and McFarlane were detained and charged with entering Curl's house as trespassers with intent to steal. (at p340)
5. Curl returned from his holiday in early January 1980 and learned of the removal of the goods and that the applicant had been charged in respect of their removal. On 16 January 1980 Curl left his house for most of the day with the stolen items still missing and returned home in the evening to find that all the property had been returned except a lounge suite which was in the hands of the police. A few days later the applicant telephoned Curl and told him that he had returned the goods. (at p340)
6. In an unsworn statement from the dock the applicant admitted taking the goods but said that he had removed them for their protection. (at p340)
7. Curl gave evidence in chief that the applicant had his authority to enter his house but had no express authority to remove goods, though he conceded in cross-examination that the applicant would have had his authority to remove goods had that been necessary for their preservation. He also said in cross-examination that his authority to the applicant "was just an open-asking for him to look after the place". (at p340)
8. The jury could not agree in respect of McFarlane and he was acquitted. The applicant was convicted of burglary under s. 76(1)(a). Clearly this involved a rejection of the applicant's explanation of his removal of the goods. The jury must have been satisfied that the applicant had an intent to steal when he entered the house. As to the second element in s. 76, entry as a trespasser, the trial judge directed the jury in these terms:
"However, if you were satisfied beyond reasonable doubt that Barker entered the building... 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 of licence given by Curl senior to Barker was one to guard, not to steal from the building." (at p341)
9. The Court of Criminal Appeal in Victoria by majority (Anderson and Tadgell JJ., Starke J. dissenting) refused leave to appeal. The applicant now seeks special leave to appeal to this Court. (at p341)
10. Section 76 of the Crimes Act provides:
- "(1)
- 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
- (b)
- to commit an offence -
- (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.
- ...
- (3)
- A person guilty of burglary is guilty of a felony and liable to imprisonment for a term not exceeding fourteen years." (at p341)
11. The word "trespasser" is a basic legal term with an established legal meaning. It should be understood in that sense unless the context reveals that it bears a different meaning (Attorney-General (N.S.W.) v. Brewery Employes Union of N.S.W. (1908) 6 CLR 469 , at p 531). The context - the creation of a serious criminal offence - unquestionably requires an additional element, mens rea. However, the applicant seeks to go much further than that, indeed to persuade us that the word is designed to exclude any person who has any right or authority at all to enter the premises in question. (at p341)
12. At the outset it is necessary to examine the common law concept of trespass because the applicant submits, incorrectly in my view, that in any event the common law concept supports his argument as to the effect of s. 76(1). The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession (Thompson v. Ward (1953) 2 QB 153, at pp 158-159). If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Thus a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enters for any other purpose, especially if that other purpose be an unlawful purpose. For good reason he stands in no better position than the person who enters without any permission at all. So much is established by the cases. (at p342)
13. In Reg. v. Pratt (1855) 4 E & B 860 (119 ER 319) the defendant was convicted under 1 & 2 Wm. 4 c. 32, s. 30, which made it an illegal trespass to enter or be upon land in search of game. He had entered on a highway, over which there was a public right of way, running through the land of one Bowyer, and fired at and missed a pheasant which flew across the road. The defendant was convicted of being on the land in search of game. Lord Campbell C.J. spoke in general terms of how it is the pursuit of a purpose alien to the terms of a right to enter which constitutes a trespass. His Lordship said (1855) 4 E & B, at p 865 (119 ER, at p 321):
"On these facts I think the magistrates were perfectly justified in concluding that" (the defendant) "was trespassing on land in the occupation of Mr. Bowyer in search of game.... Then" (the defendant), "being on that land, was undoubtedly a trespasser if he went there, not in exercise of the right of way, but for the purpose of seeking game and that only."
And Crompton J. said (1855) 4 E & B, at pp 868-869 (119 ER, at p 322):
"... I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser." (at p342)
14. Taylor v. Jackson (1898) 78 LT 555 was a later case involving a conviction under s. 30. The appellants had permission to go on the land of one Cole and hunt for rabbits, but their purpose in going on the land was to course hares. Wills J. said (1895) 78 LT, at p 556:
"In order to convict there must be a trespass, and a trespass in pursuit of game. Now, there is evidence that the appellants had permission to go on the land and hunt for rabbits... But there certainly is evidence that they went to hunt for hares, and on that the tribunal may conclude that their real purpose was to course hares. That is evidence of trespass in pursuit of game."
Kennedy J. (15) also made the point that a limited permission to enter for another purpose does not prevent the conclusion that a person is a trespasser if he has an unlawful purpose in mind. (at p343)
15. In Harrison v. Duke of Rutland [1893] 1 QB 142 the defendant owned a grouse moor crossed by a highway. The plaintiff went on the highway for the purpose of preventing grouse from flying towards the butts occupied by the shooters. The defendant's keepers forcibly prevented the plaintiff from such interference and the plaintiff brought an action for assult. The defendant pleaded justification on the ground that the plaintiff was a trespasser. It was held that, though it was lawful to use the highway to pass and repass (or, in the view of Lord Esher M.R., to use it in any of the ordinary and usual modes in which people use a highway), to be on the defendant's land for any other purpose, lawful or unlawful, was a trespass (1893) 1 QB, at pp 146-147, 153-154, 158. (at p343)
16. The defendant in Pratt and the plaintiff in Harrison had a right to enter on the land which was the site of the highway. The appellants in Taylor had permission to go on the land and hunt for rabbits. The reasoning on which the decisions were based is inconsistent with the suggestion made by the applicant that it is the commission of acts exceeding the limits of the right or authority, not entry for an unlawful or unauthorized purpose, that constitutes the trespass. It is true that both Pratt and Taylor concerned a statutory definition of trespass, but the reasoning in the judgments is of more general application. The correctness of this reasoning is confirmed by the later decisions relating to licences. (at p343)
17. In the Canadian case of Gross v. Wright (1923) 2 DLR 171 , at p 185, Anglin J. (with whom Davies C.J. agreed) said that the defendant - "having obtained a license to enter upon the plaintiff's land only for a defined purpose, his entry for a different purpose was... clearly a trespass". Further, in Farrington v. Thomson & Bridgland (1959) VR 286, at p 297, Smith J. said that it is unnecessary to examine the conduct of the entrant on the premises after entry. If he entered for a purpose not within the scope of any invitation or licence that he may have had then that, without more, constitutes him a trespasser. (at p343)
18. In Reg. v. Jones and Smith (1976) 1 WLR 672 ; (1976) 3 A11 ER 54; 63 CrAppR 47 the two defendants entered a bungalow belonging to the father of one of the defendants and removed two television sets. The defendants were charged with burglary under s. 9(1)(b) of the Theft Act 1968 (U.K.), which provides that a person is guilty of burglary if, having entered as a trespasser, he steals or attempts to steal anything or inflicts or attempts to inflict grievous bodily harm on a person. It was submitted that a son to whom a father has given permission generally to enter the father's house cannot be a trespasser if he enters it, even if he enters solely with the intention of committing a theft against the father. The English Court of Appeal rejected this submission (1976) 1 WLR, at p 675; (1976) 3 A11 ER, at p 59; 63 CrAppR, at p 52, holding that "a person is a trespasser for the purpose of section 9(1)(b) of the Theft Act 1968 if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter". (at p344)
19. The principle expounded in Jones and Smith accords with the cases which I have discussed. The Court, recognizing the necessary element of mens rea in the creation of a criminal offence, added the element of knowledge that entry is in excess of permission or of reckless indifference to whether entry is in excess of permission. Whether the application of the principle so as to make the son a trespasser can be supported is another question. The authority of the son to enter his father's house might well have been regarded as so general that his entry for the purpose of theft did not make him a trespasser. But this is not a matter which I need pursue. (at p344)
20. Counsel for the applicant submits that the principle established by the earlier cases to which I have referred has been controverted by other decisions. However, on examination they do not affect the principle. In The Six Carpenters' Case (1610) 8 Co.Rep. 146a (77 ER 695) and McGrath v. Marshall (1898) 14 WN (NSW) 106 the Court refused to apply the distinct and different doctrine known as trespass ab initio , a doctrine now said to be obsolete (Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 QB 299 , at p 313). (at p344)
21. In Byrne v. Kinematograph Renters Society Ltd (1958) 1 WLR 762 ; (1958) 2 A11 ER 579 cinema inspectors visited a cinema to investigate suspected fraud. The inspectors purchased tickets and saw a performance, but did so only to check numbers on the tickets and count numbers of patrons so as to obtain evidence against the plaintiff. The submission that the inspectors were trespassers was rejected on the ground that their motives were immaterial and they did nothing that they were not invited to do (1958) 2 A11 ER, at p 593. No doubt the invitation by the lessee of the cinema to the public to enter the cinema was in very general terms and could on no view be said to be limited in the way in which it was contended. (at p345)
22. The fourth case relied upon by the applicant is Reg. v. Collins (1973) 1 QB 100. The defendant looked into an open window of a house and saw the complainant asleep in bed close to the window. The defendant undressed and crouched on the window-sill. The complainant woke up and, assuming that the defendant was her boyfriend, allowed him to enter the room and have sexual intercourse with her. The English Court of Appeal held that the defendant should not have been convicted of burglary under s. 9(1)(a) of the Theft Act, which is similar to s. 76(1), because the jury had not been invited to consider whether the defendant entered the room knowing that he had no invitation to enter or reckless of whether or not his entry was with permission (1973) 1 QB, at p 107. (at p345)
23. It has been suggested that Collins is inconsistent with Jones and Smith (1976) 1 WLR 672 ; [1976] 3 All ER 54 ; 63 CrAppR 47; [1973] 1 QB 100 (see Williams, Textbook of Criminal Law (1978), pp. 810-815). The suggestion seems to turn on the notion, not discussed in the judgments in Collins and unsupported by the evidence, that when Collins entered the complainant's bedroom he still had the intention of using force if necessary, notwithstanding the complainant's invitation to him. On this view the effect of the decision in Collins is that "A person who has a licence in fact to enter does not become a trespasser by reason of his criminal intent" (op. cit., p. 812). To my mind the foundation for this conclusion is too frail. It rests on a finding of fact as to intention which was neither made nor discussed in the judgments. The decision and the judgments on which it is based are entirely consistent with the existence of an invitation by the complainant to Collins to enter for the purpose of intercourse and knowledge on his part that he was so invited, with the consequence that his earlier intention to commit rape lapsed. So understood, Collins is consistent with the other authorities I have mentioned. (at p345)
24. Lord Atkin in Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [1936] AC 65 , at p 69, stated that so far as an invitee "sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser". This is to say that an invitee whose entry is within the terms of his invitation and who subsequently exceeds the scope of that invitation then becomes a trespasser; cf. Healing (Sales) Pty. Ltd. v. Inglis Electrix Pty. Ltd. (1968) 121 CLR 584 , at p 606, per Kitto J.; contra Barwick C.J. and Menzies J. (1968) 121 CLR, at pp 598-599. The statement says nothing about the person whose entry is quite unrelated to his invitation because it is for an unlawful purpose foreign to the specific purpose contemplated by the invitation. (at p346)
25. Accordingly, these cases leave unaffected the common law principle that a person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority. (at p346)
26. 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. [1975] AC 591 ; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 ). 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. (at p347)
27. 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. (1968) 121 CLR, at p 606, per Kitto J.; see also, per Barwick C.J. and Menzies J. (1968) 121 CLR, at pp 598-599). 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. (at p347)
28. 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). (at p348)
29. 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. (at p348)
30. 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. (at p348)
31. 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. (at p348)
32. In the result I would grant special leave to appeal and dismiss the appeal. (at p348)