Barker v R

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

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(Judgment by: Murphy J)

Between: Richard Ernest Barker
And: The Queen

Court:

Judges: Mason J

Murphy JBrennan J
Deane J
Dawson J

Subject References:
Criminal Law

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

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Judgment by:
Murphy J

The central question is whether the applicant, who entered a house with the owner's permission, but with the intention to steal goods from it, is guilty of burglary (as defined by the Crimes Act 1958 (Vict.)). Under that Act burglary is a serious crime, punishable by a maximum fourteen years imprisonment (twenty years if the offender is armed) (ss. 76(3) and 77). Theft is punishable by a maximum ten years imprisonment (s. 74). (at p349)

2. The criminal law should be clear and simple. Achieving this is not easy because in distinguishing criminal from non-criminal conduct, lines must be drawn, which inevitably throw up borderline cases. However subtle refinements and artificialities lead to injustice and public dissatisfaction. (at p349)

3. The law of burglary was once relatively simple. It was generally understood to be unlawful entry into enclosed premises for the purpose of stealing or committing a felony at night, that is between 9.00 p.m. and 6.00 a.m. (Stephen, A History of the Criminal Law of England, vol. 3 (1883), p. 150; East, Pleas of the Crown vol. 2 (1803), pp. 484-523; Hawkins, A Treatise on the Pleas of the Crown, vol. 1 (1824), pp. 129-137). The offence was punishable heavily because of the terror induced by invasion of privacy of the household at night and the possibility of a violent encounter (see Pollock and Maitland, History of English Law, vol. 2 (1895), p. 491; Blackstone, Commentaries on the Laws of England, vol. 4 (1778), p. 223). Housebreaking, that is breaking and entering with intent to steal in day time, was also often popularly regarded as burglary (Hale, History of the Pleas of the Crown, vol. 1 (1800), pp. 547-548.) However by judicial decision, breaking was extended to include even the turning of a door knob or other action which did not involve a breaking in the ordinary sense (see English and Empire Digest, vol. 15 (1977), pp. 1348-1351), and the crime became somewhat artificial. (at p349)

4. The United Kingdom Criminal Law Revision Committee in its Report (Cmnd. 2977(1966)) recommended that the crime be simplified. This led to the Theft Act 1968 (U.K.). Section 9 of that Act has been reproduced in slightly different wording in s. 76(1) of the Crimes Act 1958 (Vict.) which, so far as it is relevant, provides:

"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."

The time of entry is now immaterial. It is not now necessary to prove breaking (actual or notional). The element of unlawful entry is retained, it being represented by the phrase "as a trespasser". (at p350)

5. This case turns on whether a person who enters with intent to steal, but otherwise with the owner's authority, enters "as a trespasser". In the judgment under appeal the Full Court of the Supreme Court of Victoria (Anderson and Tadgell JJ., Starke J. dissenting) followed the English Court of Appeal in Reg. v. Jones and Smith (1976) 1 WLR 672 ; (1976) 3 A11 ER 54; 63 CrAppR 47 and held that anyone who entered a building or part of a building with an intent to steal was a trespasser within s. 76(1)(a). The Court's general approach was that an entrant's subjective purpose alien to the terms of a consent converts an otherwise lawful entry into a trespass. (at p350)

6. The applicant contends that a person does not enter as a trespasser if he has permission to enter even if that permission is limited to entry for a particular purpose and he or she enters for another, alien, purpose. (at p350)

7. Section 76(1)(a) must be construed strictly, and any ambiguity resolved in favour of the liberty of the accused by refusing to extend the category of criminal offences (Richardson v. Austin (1911) 12 CLR 463 , at p 474; Ingham v. Hie Lee (1912) 15 CLR 267 , at p 271; Beckwith v. The Queen (1976) 135 CLR 569, at p 576; Sillery v. The Queen (1981) 55 ALJR 509, at p 512). (at p350)

8. The report of the Criminal Law Revision Committee may be used as a guide to legislative intent in order to resolve any ambiguity in s. 76(1)(a) (see Dillingham Constructions Pty. Ltd. v. Steel Mains Pty. Ltd. (1975) 132 CLR 323, at p 332; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 , at p 523) or to displace what would be an absurd or startling result if the ordinary rules of interpretation were applied. The report recommended replacing "break and enter" with "enter as a trespasser", but there was no suggestion that burglary be so redefined and broadened that it would extend far beyond the common law concept. The Committee stated: "We thought of making burglary extend to committing any of the offences in question when trespassing in the building. This would include a person who, having entered lawfully, remained in the building as a trespasser (for example, a person who hid in a shop until after closing time).... But it seems unnecessary to complicate the law in this way. The case is not important, because the offender is likely to go into a part of the building where he has no right to be, and this will be a trespassory entry into that part" (par. 75, p. 35). It can be seen that the Committee was not using the word "trespass" in the sense it was used by the majority in the Supreme Court. The Committee contemplated that there could be lawful, non trespassory, entry into a building even by a person who had an intent to steal. No mention is made of the scope of authority to enter, as would be expected if this element, outside the original notion of breaking and entering, were to be introduced. Professor Glanville Williams, a member of the Committee, has since criticised the decision in Reg. v. Jones and Smith and stated: "there is no hint in the Committee's Report that it contemplated this extension of the offence. The Committee's purpose was to simplify the law of burglary but not to deprive it entirely of an element of objective illegality. For this reason the offence was to require a trespassory entry. What reception would the Committee's Report have had if it had proposed that an ordinary shoplifter would be guilty of burglary if he was found to have intended to steal when he entered the shop?" (Glanville Williams, Textbook of Criminal Law (1978), pp. 813-814.) (at p351)

9. The prosecution contended that entry with intent to steal was always entry as a trespasser, and conceded that this wide view virtually reads the words "as a trespasser" out of the section. Although I disagree with it, that contention has the virtue of simplicity appropriate for the administration of criminal justice. It was substantially the approach of the majority in the Supreme Court. However I do not accept that the presence of the words "as a trespasser" is explicable as exempting from burglary an owner or person in possession of a building who intends to steal anything in it. (at p351)

10. The prosecutor's approach also does not give proper effect to the words "or part in question" in par. 76(1)(a). These cover the case where a person with intent to steal, enters (with permission) a building and then, still with that intent, enters a part of the building where he or she has no permission to go. The meaning of the section is that he or she does not become a burglar until entry to that part. However on the prosecution's approach, he or she would be a burglar upon entering the building. (at p351)

11. Acceptance of the prosecution's view would mean that a person invited for dinner who came intending to steal a teaspoon would be guilty of burglary, even if he or she did not steal, or attempt to steal. The prosecution contended that even a tenant who entered the premises pursuant to a lease but with intention of stealing something from them at the end of the lease period was a burglar. Weinberg and Williams in The Australian Law of Theft (1977), at p. 256 declare:

"It would appear to follow... (from the reasons in Reg. v. Jones and Smith) that an accused who enters a shop for the purposes of shoplifting is guilty of burglary. If this is so then a person who is in substance no more than a thief may be found guilty of the much more serious crime of burglary. It is submitted that such a result would be unsatisfactory, and that the courts should avoid it by construing the word 'trespasser' more narrowly for the purpose of s. 76 than is the case in the civil law." (at p352)

12. The intending shoplifter's situation was argued at length. Unless a narrow view of "entry as a trespasser" is adopted, it seems that if a person enters a shop not to buy (or inspect with a view to buying) but if possible to steal, after seeing a notice "all members of the public may enter for the purpose only of buying or inspecting goods with a view to buying", he or she will have entered as a trespasser. Whether or not there was such a notice, the question of burglary or not should not depend on whether the person entered merely to shoplift, or to buy some goods and also to shoplift. Such an operation of s. 76 would be absurd. Similar consequences would occur under s. 76(1)(b). (at p352)

13. The interpretation adopted by the courts below and that advanced by the prosecution ascribe to the legislature an intention to define as burglary conduct which departs very far from the traditional concept of burglary. If the object was to make it an offence to enter a building with intent to steal or commit another offence, it would be strange to call this "burglary", and to render the offender liable to the extremely heavy penalties appropriate to the traditional offence. These interpretations in substance achieve that effect. If interpreting "entry as a trespasser" according to its meaning in the civil law of tort leads to these consequences, then a more narrow meaning should be adopted in this criminal section. (at p352)

14. The appellant's contention, which I accept, that an alien purpose does not convert an otherwise lawful entry into entry as a trespasser, irrespective of any expressed or implied limitation relating to purpose, also has the virtue of simplicity. This is achieved by reading s. 76 as meaning that the question of whether a person enters as a trespasser is to be resolved regardless of whether he or she has an intent to steal. (at p352)

15. The question of entry as a trespasser does not depend on whether authority to be in the building was limited to some purpose or purposes and should not depend on whether orally, in writing or by implication, authority to enter was limited to entry for a particular purpose. Whether the person enters as a trespasser should be ascertainable objectively, at the time of entry. (at p353)

16. Where absence of consent is the test of entry as a trespasser the application of the section should not require any close analysis of the permission. Fine points such as whether the motive for granting permission (that is for the entrant to houseclean or caretake) became a limitation on the authority to enter should not be critical to guilt. The obvious danger is that a slight change of words, or slight difference in emphasis will mean that motive for unqualified permission becomes a permission limited by purpose. An interpretation of s. 76 which makes such points critical, undermines the legislative intent. Parliament could never have intended that guilt of an offence carrying fourteen years imprisonment would depend on such fine points in regard to everyday circumstances, such as intended pilfering, by house or office cleaners, repairers, office workers, shop assistants and customers in shops. (at p353)

17. Another area of sublety is the distinction between entry and being in the building. In a sense, an act of entry is for one purpose only and that is to be on the premises. Apart from contrived or artificial circumstances limitations of purpose (as distinct from limitations on time or manner of entry) would be on what is permitted to be done by an entrant when in the building. (at p353)

18. The evidence relevant to permission to enter was as follows:

"The owner of the building, Mr. Curl, in answer to the Crown, said he made arrangements with Mr. Barker as well as with others about keeping an eye on the place. He did not give authority to remove anything. Asked whether he gave anybody permission to enter his home and remove goods, he answered, 'To enter yes, but to remove is something that just happened, I suppose.' Asked whether he gave authority to any person to remove property from his home, he answered, 'No, not in that sense.' In cross-examination by Mr. Barker's counsel he stated that he asked Mr. Barker to keep an eye on the house and that he told Mr. Barker where the key was in the lacework; that he anticipated that if Mr. Barker was to come and look at the house that he would go inside, and that he did not place limits on Mr. Barker's judgment as to what he should do in looking after the place; that if Mr. Barker thought it was wise to remove some of the property out of the house to look after it, 'the authority was sufficiently wide to cover that.... It was just an open-asking for him to look after the place.' The accused in his statement said that Mr. Curl, 'asked me to keep an eye on the place.... He told me where the key was hidden in the ironlace so I would be able to get into the house to inspect it.... My understanding was that he wanted me to take whatever steps I might think necessary to protect the house and his property. I certainly thought I was entitled to move the goods out of the house for safekeeping if I thought they ought to be, and that's what I eventually did.... So far as I am concerned I had permission to go into the house. That's what Bob Curl asked me to do. I had a discretion to remove the goods and I thought I should.'" (at p354)

19. Even if the theory of limited purpose is applicable, entry as a trespasser is proved only if the act of entry itself was limited by purpose and the entry was not for that purpose; it would not be enough to show that the limitation of purpose was upon what was to be done when in the building. This distinction was not put to the jury, nor was the distinction between motive for granting permission and permission for a limited purpose. (at p354)

20. Questions of mens rea and honest or bona fide claim of right did not arise at the trial or in the appeal. They do not seem to have emerged in the cases. If a narrow view is taken of s. 76, they would be far-fetched in a case of traditional burglary, and would not be reached in cases such as the customer or housecleaner who enters with intent to steal. (at p354)

21. It may be accepted that mens rea in regard to entry as a trespasser is an implied element of the offence, so that the prosecution must prove that the accused intended to enter as a trespasser. However this does not overcome the artificialities of the wide view of s. 76, because if entry as a trespasser embraces entry with a purpose alien to permission to enter, the intent to enter as a trespasser would be equally wide. If the wide view is adopted, a case involving entry for other than a limited purpose in which issues of honest claim of right arise may well present questions more suitable for metaphysics than for a criminal trial. (at p354)

22. Special leave should be granted; the appeal should be allowed. The conviction should be quashed. (at p354)