Barker v R

(1983) 153 CLR 338
(1983) 57 ALJR 426
(1983) 47 ALR 1
(1984) 128 Sol J 251

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(Decision by: Brennan J, Deane J)

Between: Richard Ernest Barker
And: The Queen

Court:

Judges: Mason J
Murphy J

Brennan J
Deane JDawson J

Subject References:
Criminal Law

Hearing date: 15, 16 February 1983
Judgment date: 7 June 1983

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Decision by:
Brennan J
Deane J

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. (at p354)

2. 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". (at p355)

3. 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 (1976) 1 WLR 672 , at p 674; (1976) 3 All ER 54, at pp 57, 58; 63 Cr App R. 47, at p. 51., "(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). (at p355)

4. 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 (1935) 53 CLR 563 , at pp 567-568; Beckwith v. The Queen (1976) 135 CLR 569 , at pp 576-577). 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 Employes Union of N.S.W. (1908) 6 CLR 469, at p 531). (at p356)

5. 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 p356)

6. At common law, a person enters land as a trespasser if he enters land in the possession of another without justification (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. (at p357)

7. 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 (1913) AC 364, at p 372; Harrison v. Duke of Rutland [1893] 1 QB 142 ). 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. (1967) 69 SR (NSW) 311, at pp 329-330; 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 (1923) 2 DLR 171 , at p 185). 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. (at p358)

8. 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 (1976) 1 WLR 672 ; (1976) 3 A11 ER 54; 63 CrAppR 47. Some of the judicial comments were in nineteenth century English cases involving poaching or interference with a shoot (see Reg. v. Pratt (1855) 4 E & B 860 (119 ER 319); Harrison v. Duke of Rutland; Taylor v. Jackson (1898) 78 LT 555). 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 the 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 (1905) 24 NZLR 916 and Reg. v. Jones and Smith warrant more detailed consideration. (at p358)

9. 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 Bryne v. Kinematograph Renters Society Ltd. (1958) 1 WLR 762 ; (1958) 2 A11 ER 579 - where it was held that entry by a licence 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. (at p359)

10. 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 A11 ER, 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 (1976) 1 WLR, at p 675; (1976) 3 A11 ER, at p 59; 63 CrAppR, at p 52, "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" (1976) 1 WLR, at pp 674-675; (1976) 3 A11 ER, at pp 58-59; 63 CrAppR, at pp. 51-52.

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. (at p360)

11. 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. (at p360)

12. 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 burlgary 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 (1973) QB 100, 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. (at p361)

13. 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. (1978) 140 CLR 503 , at p 519) 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 underying 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. (at p362)

14. 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 is 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. (at p362)

15. 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. (at p362)

16. 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 (1610) 8 Co Rep 146a, at pp 146a-146b (77 ER 695, at p 696)). 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. (1968) 121 CLR 584 , at p 606; 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 [1968] 2 QB 299 , at p 313, 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" (1968) 2 QB, at p 317. In Inglis Electrix Pty. Ltd. v. Healing (Sales) Pty. Ltd. (1968) 69 SR (NSW) 311, at pp 330, 331, 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 [1980] 2 All ER 368 , at pp 372-373; (1980) 1 WLR 582 , at p 588 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 (1983) 153 CLR at p 48), 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 [1966] 1 QB 312, at p 323), 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 (1973) QB, at p 107). (at p364)

17. 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 trespaser 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. (at p365)

18. 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. (1968) 121 CLR 584 ). 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. (at p365)

19. 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 (1937) 59 CLR 279 , at p 306) 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 (1962) QWN 13; R. v. Gilson & Cohen (1944) 29 CrAppR 174, at p 180). 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 (1975) LR 10 CP 662; Dickinson v. Ead (1914) 111 LT 378). The game laws, however, stood in a special category. Lindley J. in Watkins v. Major (1875) LR 10 CP, at p 666 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). (at p366)

20. 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. (at p366)

21. 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. (at p367)

22. 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." (at p368)

23. 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 (1909) 2 CrAppR 217, at p 246, "(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 (1911) 6 CrAppR 228, at pp 231-232; R. v. Murray (1924) VLR 374, at p 383; Reg. v. Melville (1956) 73 WN (NSW) 579; Reg. v. Deen (1964) Qd R 569, at pp 572-573). 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 (1909) 2 Cr App R, at pp 245-246). 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. (at p369)

24. 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. (at p369)

25. The application for special leave to appeal should be granted but the appeal dismissed. (at p369)