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: Dawson J)

Between: Richard Ernest Barker
And: The Queen

Court:

Judges: Mason J
Murphy J
Brennan J
Deane J

Dawson J

Subject References:
Criminal Law

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

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Decision by:
Dawson J

The facts of this application are set out in the judgment of Mason J. and I shall not repeat them. (at p369)

2. Burglary, now that the new definition of that crime in the English Theft Act 1968 has been substantially adopted in Victoria, consists of entry by a person upon any building or part of a building as a trespasser with intent to commit any one of certain specified offences. The specified intent which is relevant in this case is "intent to steal anything in the building or part in question". See Crimes Act 1958 (Vict.), as amended, s. 76(i)(a). (at p369)

3. The introduction of entry as a trespasser as an ingredient of burglary was evidently intended to avoid the nice distinctions which had grown up around the older concept of breaking and entering. Trespass is, of course, a creature of the civil law and its meaning must be derived from cases in tort. However, its transposition to the field of crime brings with it at least one modification which is made necessary by the general principle of the criminal law that a crime requires a guilty mind or mens rea as well as a guilty act or actus reus . This principle must be applied to the trespass which now forms part of the offence of burglary. The requirement of mens rea can, of course, be negatived by statute but there can be no suggestion that such is the case with s. 76 of the Crimes Act. The Court of Appeal said of the equivalent provision in the Theft Act in Reg. v. Collins [1973] 1 QB 100 , at p 105:

"In the judgment of this court there cannot be a conviction for entering premises 'as a trespasser' within the meaning of s.9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party's consent." (at p370)

4. It is to be observed that the intention which is required by the criminal law is not merely an intention to enter but an intention to enter as a trespasser. By this is meant an appreciation of the lack of consent or other right to enter rather than the legal conclusion which follows. Recklessness as to whether the entry is as a trespasser or not will suffice but, having made that observation, I shall not, for the sake of simplicity, continue to refer to recklessness as amounting to a sufficient intent. Mens rea consists of an intention to do the forbidden act, the actus reus , and with trespass the forbidden act is not entry, but entry without consent or other lawful right. (at p370)

5. To require mens rea in order to establish entry as a trespasser is to impose a requirement which forms no part of the civil law. Trespass to land, which is the relevant form of trespass for present purposes, consists of a physical interference by one person with the possession of another and the commonest form is a personal entry upon land or buildings occupied by that other. Whether at civil law an entry which is accidental and in that sense unintentional can be a trespass may be a matter of doubt, but it is clear that to constitute a civil trespass the entry does not have to be intentional in the sense of an intentional entry without consent. The civil wrong of trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it. See Conway v. George Wimpey & Co. Ld. (1951) 2 KB 266, at p 273; Salmond and Heuston on the Law of Torts, 18th ed. (1981), pp. 36-37. (at p371)

6. To establish entry as trespasser for the purposes of s. 76 of the Crimes Act requires proof of mens rea, that is, intention in the criminal sense, and so entails different or additional considerations from those involved in the proof of entry as a trespasser for the purposes of the civil law. (at p371)

7. It is convenient to remark at this point that an intention to enter as a trespasser is not the only intention required by s. 76 of the Crimes Act. The offence of burglary is committed only if, at the time of entry as a trespasser, the entrant has an intent to stea. This is not the mental element required generally by the criminal law to constitute mens rea, namely, an intent to do the act which is forbidden. It is an added requirement of a mental element in the form of a specific intent which must accompany the doing of the forbidden act in order to constitute the whole of the mental element required for the particular offence. Perhaps no great help is to be derived from the use of terms such as basic intent or general intent in order to distinguish the mental element which must generally be proved as part of any criminal offence and the more specific or additional mental element required as part of many crimes. See R. v. O'Connor (1980) 146 CLR 64 . But in any analysis of s. 76 of the Crimes Act it is essential to recognize that the offence consists both of an intentional entry as a trespasser and an intent to steal at the time of entry. (at p371)

8. The distinction must be maintained because a person accused of burglary may enter premises with an intention to steal but nevertheless in the belief that he is entitled to enter. A person who enters premises with apparent consent but with intent to steal, such as an ordinary shoplifter, is likely to believe at the time he enters the premises that he has the same right of entry as other persons notwithstanding the criminal purpose for which he enters. If intercepted before attempting to steal anything, no doubt he would say that he had done nothing wrong and was entitled to be on the premises. And if he believed that to be so, as he very well might, the mental element required to prove entry as a trespasser would be lacking, notwithstanding evidence of that other aspect of intent required for burglary, an intent to steal at the time of entry. Before there can be burglary there must be an entry as a trespasser with intent to enter as a trespasser as well as with intent to steal. (at p371)

9. Because there must be an entry as a trespasser as well as an intention to enter as a trespasser means, of course, that apart from the question of intent, it is necessary to have regard to the requirements of the civil law to find whether or not there was an entry as a trespasser or, to express it in terms of the criminal law, whether there was an actus reus . It would, no doubt, be simpler if it could be said that entry as a trespasser is the physical act of entering another's premises without the permission of that other or some other right or entitlement to do so and that it is irrelevant that a person given permission to enter for one purpose may do so for another. That would avoid the introduction to the criminal law of the notion of purpose, which may be something different from intent and in some cases, at least, must look very like motive. Trespass is concerned with the physical violation of possessory rights and it would seem to do no harm to principle to say that there is no violation of possessory rights where the act which would otherwise constitute the violation is permitted even if it is done for a purpose other than the purpose for which the permission was granted. There are, however, cases which say that a person who has a right of entry to the premises of another for a particular purpose commits a trespass if he enters for any other purpose and without any other lawful right or entitlement. (at p372)

10. The best known authorities are, perhaps, Reg. v. Pratt (1855) 4 El & Bl 860 (119 ER 319) and Harrison v. Duke of Rutland [1893] 1 QB 142 . Each of those cases was concerned with the use by a member of the public of a highway over the land of another for purposes other than passing and repassing which was the extent of the right of way. In the first case the defendant came on to the highway carrying a gun and accompanied by a dog. He waved his hand to the dog, which entered the adjoining cover; a pheasant rose; the defendant, being on the highway, fired at it and missed it. In the second case, the plaintiff interfered with the defendant's shooting of grouse on the defendant's land over which the highway ran, by standing on the highway and doing such things as waving his pocket handkerchief and opening and shutting his umbrella for the purpose of keeping the grouse away. In each case these activities on the highway were said to constitute trespass at common law. I am by no means certain that the cases could not be adequately explained upon the basis that the physical acts involved amounted to more than passage along the highway and so were not acts which were permitted whatever the purpose in committing them.

But the judgments speak in terms of purpose. For example, in the latter case Lord Esher says (1893) 1 QB, at p 146:

"Therefore, on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser."

See also Lopes L.J. (1893) 1 QB, at p 150; Kay L.J. (1853) 1 QB, at p 158. Moreover, there are dicta in other cases which suggest that a person enters another's premises as a trespasser if he enters for a purpose other than the purpose for which he is invited or permitted to enter. See Taylor v. Jackson (1898) 78 LT 555, at p 556; Hillen and Pettigrew v. I.C.I. (Alkali) Ltd. [1936] AC 65, at p 69; cf. Byrne v. Kinematograph Renters Society Ltd. (1958) 1 WLR 762 , at p 776; [1958] 2 All ER 579 , at p 593. In Farrington v Thomson and Bridgland (1959) VR 286 it was held that the secondnamed defendant trespassed upon the plaintiff's hotel premises when he entered them for a purpose which was not within the scope of any tacit permission or licence that he may have had from the plaintiff. In Strang v. Russell (1905) 24 NZLR 916 it was held that, although the defendant may have had a licence to enter upon the property of the plaintiff, if he entered not in pursuance of that licence, but with the intention of contesting the plaintiff's right as owner, the licence was no defence in an action for damages for trespass. See also Gross v. Wright (1923) 2 DLR 171 , at p 185. (at p373)

11. I think that I must, therefore, conclude that entry upon another's premises for a purpose other than a purpose for which permission has been given by that other, in the absence of some other lawful right to enter, is entry as a trespasser for the purposes of the civil law and, this concept having been borrowed for the purposes of s. 76 of the Crimes Act, it is also entry as a trespasser for the purposes of that section. Of course, where permission is given to enter premises for a limited purpose, the limitation must appear expressly or by implication. No unrevealed reservation of purpose by the person giving the permission will restrict its extent if the limitation is not otherwise apparent at the time. Whether or not in any case the permission was limited to entry for a particular purpose will be a question for the jury in all the circumstances. (at p373)

12. That, of course, means that a person who enters another's premises with intent to steal will ordinarily enter as a trespasser because permission to enter is not normally given for such a purpose. But it does not necessarily follow that such a prson is guilty of burglary, because he must also have intended to enter as a trespasser. Unless that intention is established there is merely an actus reus with no mens rea. (at p373)

13. In the two cases cited concerning s. 9 of the English Theft Act, namely, Reg. v. Collins (1973) QB 100 and Reg. v. Jones and Smith (1976) 1 WLR 672 ; [1976] 3 All ER 54; 63 Cr App R 47 it was not found necessary to deal with this precise point. In Reg. v. Collins the question was whether the charge to the jury was defective because it disregarded the intention of the defendant in entering the premises in question and failed to require the jury to consider whether the defendant entered the premises knowing he had no permission to enter or reckless whether he had permission or not. The case is important because it authoritatively lays down the requirement of mens rea for entry as a trespasser so far as burglary is concerned but it was unnecessary in that case to carry the matter further than that. (at p374)

14. In Reg. v. Jones and Smith, on the other hand, the question was whether there was a trespass when permission to enter premises had been given by the occupier but the defendants entered "in excess of the permission". It was held that there could be a trespass in those circumstances but the Court recognized the requirement that the defendants should have intended to trespass. The Court said (1976) 1 WLR, at p 675; (1976) 3 All ER, at p 59; 67 CrAppR, at p 52:

"In this particular case it was a matter for the jury to consider whether, on all the facts, it was shown by the prosecution that the defendants entered with the knowledge that entry was being effected against the consent or in excess of the consent that had been given by Mr. Smith senior to his son, the defendant Smith. The jury were, by their verdict satisfied of that." (at p374)

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

"However, if you were satisfied beyond reasonable doubt that Barker enter the building at 16 Byron Street with the intention of stealing items of furniture therein - that is with a purpose which was alien to the authority which had been given to him by Curl senior to enter the building - then I direct you, as a matter of law, that he entered as a trespasser." (at p375)

16. That direction, as far as it went, was accurate, but it failed to go further and point out that the applicant must not only have entered as a trespasser but must have intended to enter as a trespasser or have been reckless as to whether he did or not, to be guilty of burglary under s. 76 of the Crimes Act. In my view, this failure resulted in a material defect in the charge. (at p375)

17. However, the omission was not raised by the ground upon which special leave to appeal was sought, nor was any attempt made to argue it before this Court or the Court below. The ground upon which special leave was sought was that the trial judge erred in ruling that the applicant could be guilty of burglary if he entered the premises with an intention to steal, notwithstanding that he had permission from the owner to enter. Argument was limited to whether the applicant was or was not a trespasser for the purposes of s. 76(1), having regard to the expressed purpose for which the permission was given. It did not address itself to the question of the need for an intention on the part of the applicant to enter as a trespasser. In those circumstances, I would grant special leave upon the ground upon which it was sought and dismiss the appeal. (at p375)