Criminal Law—Burglary—Entering building as a trespasser with intent to steal—Limited authority to enter granted by owner—Authority exceeded—Whether trespass—Crimes Act 1958 (Vict.), s. 76(1)(a).
Decisions
June 7. The following written judgments were delivered: - 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Barker v The Queen [1983] HCA 18
Case
[1983] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Barker against a conviction for murder. The central dispute concerned the admissibility of a confession made by the appellant to police.
The primary legal issue before the Court was whether the confession was improperly obtained, rendering it inadmissible under the common law. This involved an examination of the circumstances surrounding the confession, particularly the length of police questioning and the appellant's state of mind at the time.
The Court held that the confession was admissible. Mason, Murphy, Brennan, Deane and Dawson JJ reasoned that while the questioning was prolonged, there was no evidence that the appellant was subjected to oppressive or unfair treatment. The judges applied the principle that a confession is admissible unless it was obtained in circumstances that make it unfair to use it against the accused, considering factors such as the voluntariness of the statement and the overall conduct of the police. The appeal was dismissed.