Blair v Police - [2022] SASC 132

Supreme Court of South Australia
(Appeal to a Single Judge)
BLAIR v POLICE
[2022] SASC 132
Judgment of the Honourable Justice Blue
17 November 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE
The appellant was convicted by a Magistrate of two counts of serious criminal trespass in a place of residence in contravention of section 170 of the Criminal Law Consolidation Act 1935, after having pleaded guilty to those charges.
The appellant appeals against the convictions on the grounds that:
1on the admitted facts he could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence within the meaning of section 170 or he did not know and was not reckless as to that fact; and
2the circumstances in which his guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them.

The appellant applies for an extension of time in which to appeal.
Held (granting an extension of time and allowing the appeal):
1There is a real question as to whether the car park in which the appellant trespassed was part of a “place of residence” (at [74]).
2The appellant’s guilty pleas did not reflect a consciousness of guilt and he lacked an appreciation of the nature of the charges or the facts alleged against him (at [75]).
3The circumstances in which the appellant’s guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them: ground 2 is established (at [78]).
4The appellant has not established that on the admitted facts the appellant could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence or he did not know and was not reckless as to that fact: ground 1 (at [88]).

5 An extension of time in which to appeal should be granted (at [90]).
6 Appeal allowed. Convictions set aside. Parties to be heard on final orders on appeal (at [94]).
Criminal Law Consolidation Act 1935 (SA) s 168, s 169, s 170; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 59J(1)(a); Magistrates Court Act 1991 (SA) s 42(4); Sentencing Act 2017 (SA) s 53, referred to.
Chatterton v Police [2011] SASC 137; R v Forde [1923] 2 KB 400; R v Hamnett [2018] SASCFC 108, (2018) 132 SASR 155; R v Williams [2017] SASCFC 65; Tsavalas v Police [2016] SASC 103, considered.

BLAIR v POLICE
[2022] SASC 132
Single Judge Appeal: Criminal

BLUE J: The appellant Raymond Stewart Blair was convicted by a Magistrate of two counts of serious criminal trespass in a place of residence,[1] after having pleaded guilty to those charges.
[1] Criminal Law Consolidation Act1935 (SA) subsection 170(1).
Mr Blair appeals against the convictions on the grounds that:
1on the admitted facts he could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence within the meaning of section 170 of the Criminal Law Consolidation Act 1935 (SA) (the Act) or he did not know and was not reckless as to that fact; [2] and
2the circumstances in which his guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them.[3]
[2] This is not how ground 1 is worded in the notice of appeal. However, it represents the ground as argued at the hearing of the appeal.
[3] This is not how ground 2 is worded in the notice of appeal. However, it represents the ground as argued at the hearing of the appeal.
Background
In July 2020 the complainant was living in an apartment in a building (the building) containing several apartments. The building has a foyer and a car park on the ground floor. There are two other, relatively small, areas/rooms on the ground floor but they are irrelevant to the appeal.
The building has several apartments, being on the first, second and third floors (collectively the upper floors). The evidence was equivocal as to the number of apartments, although there were four numbered letterboxes in a wall at the front of the property. It appears that each floor has at least one and not more than two apartments.
The building has a frontage onto the street facing west. The foyer is in the front left-hand (north-western) corner. External entry into the foyer can be made through a glass door on the northern side (door 1) or a door on the western side (door 2). It is possible to walk from the front to the rear of the building using stairs on the northern side of the building.
In the eastern wall of the foyer is a lift and a stairwell, which are side by side. Although no evidence was adduced to this effect, it may be inferred that the lift and the stairs go up to the upper floors.
In order to operate the lift, it is necessary to have an electronic pass.[4] Although no evidence was adduced of it, it may be inferred that each apartment owner has at least one electronic pass (if not more) which they can use to operate the lift or give to others to do so.
[4] This is based on evidence to which the Police objected on the ground it is hearsay. I rule below that the evidence should be admitted for the purpose of ground 2.
There is an internal door (door A) which gives access between the foyer and the stairwell. There is an internal door (door B) which gives access between the foyer and the car park.
The car park is to the east of the foyer and is much larger than the foyer. Evidence was not adduced of the number of car park spaces in the car park but photographs tendered indicate that there are at least eight spaces.
Vehicular access for the car park is achieved through a roller door in the eastern wall of the building (the roller door). There is an external pedestrian door (door 3) immediately to the south of the roller door that gives pedestrian access for the car park shown in the photographs but no evidence was adduced concerning it. There is a second external pedestrian door (door 4) in the northern wall of the building that gives pedestrian access for the car park. Door 4 and door 1 are both in the northern wall of the building, with door 4 being east of the door 1.
The complainant kept a racing bicycle, valued at about $600, and a mountain bicycle, valued at about $100, in the car park.
Prior to 24 July 2020 Mr Blair regularly walked past the rear of the building. On at least one occasion, he saw that the roller door was up.
On 24 July 2020 Mr Blair walked along the northern side of the building and entered through the glass door, door 1. The door was not locked and he simply opened it. He walked through the internal doorway, door B, into the car park. Door B was open. He took the complainant’s racing bicycle and left with it through the roller door by riding the bicycle.
On 25 July 2020 Mr Blair returned to the building. His recollection when he gave evidence in August 2022 was that he entered through door 4, which he had left ajar on the day before, but when he was interviewed by the police in August 2020 it appears that he said that he entered through door 1 again, which was closed but unlocked. In any event, the door through which he entered was not locked. Mr Blair took the complainant’s mountain bicycle and left with it through door 4 by carrying the bicycle.
On 12 August 2020 the police arrested Mr Blair. They recorded an interview of him. He made full admissions to stealing the complainant’s bicycles. The recording or a transcript of the interview was not tendered at the hearing of the appeal. Mr Blair was refused police bail.
On 13 August 2020 a police officer filed an information in the Magistrates Court (the 13 August information) charging Mr Blair with two counts of entering a place of residence as a trespasser with the intention of stealing property and two counts of associated theft. He was also charged with one count of unlawful possession, which is irrelevant to the appeal.
On 13 August 2020 Mr Blair appeared in the Magistrates Court. The police prosecutor opposed bail. Mr Blair was represented by a duty solicitor. The Magistrate ordered a home detention report and remanded Mr Blair in custody to 19 August 2020. Mr Blair was shocked that he was not granted bail.
On 19 August 2020 Mr Blair appeared via audio visual link in the Magistrates Court. The same duty solicitor appeared for Mr Blair. The Department officer preparing the home detention report had been unable to contact the person nominated by Mr Blair for the home detention address. A home detention report was re-ordered. Mr Blair was remanded in custody to 25 August 2020.
On 25 August 2020 the same duty solicitor appeared for Mr Blair. However, the Court was unable to connect to the Adelaide Remand Centre and hence Mr Blair did not appear. Mr Blair was remanded to 7 September 2020.
On 7 September 2020 Mr Blair spoke by telephone to the same duty solicitor shortly before he was due to appear in the Magistrates Court. She told him that the Department officer preparing the home detention report had still been unable to contact the person nominated by Mr Blair for the home detention address. Therefore he could not get home detention bail at that point. Mr Blair thought that, if he pleaded guilty, he would not be sentenced to imprisonment for any longer than the time he had already spent in custody. He told the duty solicitor that he wanted to plead guilty. She told him that, as a duty solicitor, she could not appear for him on a guilty plea.
Mr Blair then appeared via audio visual link in the Magistrates Court. He pleaded guilty to the five counts together with another four counts the subject of two other informations. He wanted to have the matter dealt with so that he did not have to stay any longer in custody given his belief that he would not be sentenced to imprisonment for more than the time he had already spent in custody.
The Magistrate sentenced Mr Blair for the five counts the subject of the 13 August information to imprisonment for three months backdated to commence on 12 August 2020. The Magistrate sentenced him for the additional four counts to imprisonment for six weeks cumulatively on the first sentence. The Magistrate partially suspended the total of the sentences of four months and two weeks, after Mr Blair had served one month and two weeks, upon his entering into a bond to be of good behaviour for 12 months.
In due course Mr Blair was released after having served (at least) one month and two weeks upon entering into a bond to be of good behaviour for 12 months. However, he breached the condition of his bond and in due course served the total of the sentences of imprisonment for four months and two weeks.
In 2022 an information was filed against Mr Blair charging him with a new offence of serious criminal trespass in a place of residence.
On 16 May 2022 Mr Blair appeared via audio visual link in the Magistrates Court on the new information. The prosecutor informed the Magistrate that Mr Blair stood to be sentenced as a serious repeat offender under section 53 of the Sentencing Act 2017 (SA) because, in addition to the two counts of serious criminal trespass in a place of residence of which he was convicted on 7 September 2022, he had now committed a third offence of serious criminal trespass in a place of residence and these were “serious offences” within the meaning of section 53.
This prompted Mr Blair to instruct his solicitor to appeal against his convictions on 7 September 2020 of the two counts of serious criminal trespass in a place of residence.
On 24 June 2022 Mr Blair’s solicitors filed a notice of appeal against those two convictions.
The evidence
Affidavits and oral evidence
Mr Blair tendered two affidavits.
I received an affidavit sworn by Mr Blair on 24 August 2022 subject to an objection by the Police that the evidence does not meet the test for reception of new evidence on appeal (the fresh evidence objection). Mr Blair also gave oral evidence in chief and was cross-examined by counsel for the Police.
Although the objection was expressed to apply to the whole of Mr Blair’s affidavit and there was no explicit objection to his oral evidence, my understanding is that the objection is confined to Mr Blair’s evidence insofar as it is relevant to the question whether the objective and mental elements of serious criminal trespass in a place of residence existed. My understanding is that it does not apply to his evidence for example about the charges and his guilty pleas. My understanding is that it applies to both his affidavit evidence and his oral evidence.
I received an affidavit sworn by Andrew Graham on 29 August 2022 subject to the same fresh evidence objection. I received paragraph 9 subject to an additional, hearsay, objection. Mr Graham is Mr Blair’s solicitor and appeared at the hearing of the appeal as his counsel.
The Police tendered three exhibits. I received an affidavit affirmed by the complainant on 13 August 2020 being her police statement, excluding the last 22 words of paragraph 2. I also received the Facts of Charge dated 13 August 2020 and the Certificate of Record in relation to the Magistrates Court proceeding.
Ruling on objections
Under subsection 42(4) of the Magistrates Court Act 1991 (SA), this Court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence. The criterion for admission of evidence on appeal that was not adduced at first instance is the “interests of justice”.
On an appeal against a conviction after trial governed by section 158 of the Criminal Procedure Act 1921 (SA), the test for reception of evidence not adduced at trial was stated by the Full Court in R v Williams[5] in the following terms:
[5] [2017] SASCFC 65.
An appeal court can receive evidence (fresh evidence) not led at trial in order to assess whether the failure of the trial court to receive that evidence resulted in a miscarriage of justice. In assessing whether a miscarriage of justice has occurred, an appeal court is to have regard to three main considerations as stated by the High Court in Gallagher v The Queen:
The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial…Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.
Therefore there are three main considerations to consider when deciding whether a miscarriage of justice has occurred because evidence is now available that was not given at trial:
1Whether the evidence now relied upon could have been produced at trial with reasonable diligence.
2 Whether the evidence is apparently credible or at least capable of belief.
3Whether if believed, the evidence might reasonably have led the jury to return a different verdict.[6]
[6] At [69]-[70] per Lovell J (with whom Peek and Blue JJ agreed). (Footnote omitted)
On an appeal against a conviction after a trial in the Magistrates Court, the Court has regard to the same criteria but they are not applied in a rigid fashion given the statutory reference to “the interests of justice”.
However, on an appeal against conviction after a plea of guilty, the circumstances are quite different. When a defendant appeals against such a conviction on the ground of miscarriage of justice, it is necessary for the defendant to establish not only that the circumstances in which the plea was entered involved a miscarriage of justice but also (or as part of establishing that) that there is a real question as to the defendant’s guilt. Accordingly, it will ordinarily be necessary for the defendant to adduce evidence giving rise to such a real question.
Evidence adduced on appeal relevant to the defendant’s guilt in these circumstances is quite different to evidence adduced on appeal against a conviction following a trial. By definition, evidence will not have been adduced at first instance. The defendant will not have been called upon to adduce evidence relevant to the defendant’s guilt. The requirement in the case of an appeal against a conviction following a trial that the evidence could not have been adduced at first instance with reasonable diligence is simply inapplicable.
I therefore overrule the objection based on the lack of reasonable diligence ground. I receive the evidence of Mr Blair and, leaving aside paragraph 9 of his affidavit for the time being, the affidavit of Mr Graham.
I defer considering the hearsay objection until I address the specific grounds of appeal.
Summary of evidence
The evidence is reflected to a substantial degree in the Background section above.
Mr Blair in his affidavit admitted entering the car park and stealing the two bicycles. He said that, after he realised that he could not get bail, he wanted to finalise the matter as quickly as possible because he thought that would see him released.
Mr Blair in his affidavit said that, when he entered the building on 24 and 25 July 2020, he believed that he was unable to access any of the apartments upstairs because access was blocked by locked doors but in his oral evidence in chief he said that he had no intention of attempting to do so in any event.
Mr Blair in his affidavit said that he did not believe that he had broken into a house; he believed that he had gone into a car park which was not part of a house. He said that he was not aware of the distinction between trespass in a place of residence and trespass in a non-residential building.
In his oral evidence in chief, Mr Blair said that, when he pleaded guilty on 7 September 2020, he did not understand that he was admitting to trespassing in a place of residence.
In cross-examination, Mr Blair said that the police told him that he was under arrest for two charges of trespass, two charges of theft of the bikes and a charge of unlawful possession.
In cross-examination, Mr Blair said that he understood at the time of the trespasses that the building was an apartment building that did not have, for example, a restaurant. He believed that the car park area contained cars, bikes and other items stored by the occupants of the apartments.
In cross-examination, Mr Blair gave the following reasons for pleading guilty:
Q Just so that I understand. You say that after you realised you couldn't get bail, there wasn't a bail address available, that's when you decided you wanted to plead guilty.
AYeah, because - yeah, just to get out, I was pretty close to getting out, by that time it was three or four weeks. I figured there was a couple of stolen push bikes, I figured I wasn't going to get much more time for that, so.
…
QBut to go back, you understood it related to you going into the garage area of this apartment building, you understood that.
AI understood I stole two bikes and I thought I was going to get out that day, I just wanted it dealt with, I kind of, I was focused on that.
Mr Blair gave the following evidence about his understanding of the charges to which he pleaded guilty:
QSo if I was to suggest to you that when the charges were read to you that you knew, or you understood that you'd been charged with a residential trespass, a residential SCT, would you agree or disagree with that.
A Disagree, I should have - in hindsight I probably should have paid more attention.
…
QSo if I suggest that you pleaded guilty to the offences, back on 7 September 2020, because you knew that you'd entered part of an apartment building, what would you say to that.
A I'd disagree, I pled guilty because I stole two bikes, and they had footage of it.

Mr Graham in his affidavit said that he attended at the building on 25 August 2022. He spoke to a man who was standing inside the car park, who allowed him into the car park to take photographs. Mr Graham produced several photographs that he took of the building, inside the foyer and the car park. He described the building and produced a map of the ground floor.
Mr Graham said that he could open door 4 from the inside but not from the outside. He could not open door 1 from the inside, despite pressing a button that said “press to exit”. He could open the door in the foyer to the stairwell (door A). The door between the foyer and car park was shown in his photographs as open (door B).
At paragraph 9 (to which the hearsay objection was made), Mr Graham narrated what he was told by the man who allowed him into the car park. He said:
The gentleman explained to me that in order to enter the lift one needed to use an electronic pass. The gentleman also explained that each apartment was independently secure of each other and secure from the car park.
The complainant in her affidavit described her bicycles and their being taken without her permission. She did not describe the building, the foyer or the car park.
Legal principles
There is no issue on appeal as to the applicable legal principles.
Setting aside conviction following guilty plea
It is common ground that the relevant principles governing the circumstances in which a guilty plea will be set aside on appeal are as set out by Doyle J in Tsavalas v Police[7] in the following passage:
[7] [2016] SASC 103.
In the ordinary course, a plea of guilty is an admission of all of the essential elements of the charge. It is sometimes described as the most cogent admission of guilt that can be made, its significance resting in part upon the high public interest in the finality of legal proceedings. It follows that a court will ordinarily act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice by the person entering the plea.
The Court nevertheless has power to permit a defendant to withdraw his or her plea of guilty, both prior to a conviction being entered and also upon an appeal against conviction. The test on an appeal against conviction is whether the circumstances in which the plea was entered involved a miscarriage of justice. The appellant bears the onus of establishing such miscarriage.
While a miscarriage of justice remains the ultimate test, there are a number of circumstances which the authorities recognise will be relevant. These include:
·    Whether the plea reflects a consciousness of guilt.
·    Whether there is a real question as to the guilt of the appellant.
·    Whether the plea was based on imprudent or inappropriate advice.
·    Whether the defendant lacked an appreciation of the nature of the charges, or the facts alleged against him.
·    Whether the plea was the result of a free choice on the part of the defendant, and not the product of his will being overborne by inappropriate pressure or threats.
None of these matters is necessarily decisive in a particular case.[8]
[8]     At [13]-[16]. (Footnotes omitted)
Historically two specific circumstances were recognised as justifying allowing an appeal against conviction following a guilty plea. In R v Forde[9] Lord Hewart CJ, Avory and Slater JJ said:
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it, or (2) That upon the admitted facts he could not in law have been convicted of the offence charged.[10]
[9] [1923] 2 KB 400.
[10] At 403.
In R v Hamnett[11] the Full Court said:
A person may plead guilty to an offence for reasons that extend beyond a person’s belief in their guilt. For the Court to allow the appeal and set aside the convictions, it must be established that a miscarriage of justice has occurred.
In R v Caruso von Doussa J held that in certain circumstances s 352 of the CLCA confers power upon the Court of Criminal Appeal to set aside a conviction recorded on a plea of guilty. Von Doussa J adopted the principle enunciated by the Court of Criminal Appeal (Eng) in R v Forde that the Court of Criminal Appeal can set aside a conviction recorded on a plea of guilty where it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged.
Plainly, this is a case which falls into the second category identified in R v Forde... A miscarriage of justice has occurred because, upon the admitted facts, the appellant could not in law have been convicted of a contravention of s 244(3).[12]
[11] [2018] SASCFC 108, (2018) 132 SASR 155.
[12] At [23]-[25] per Kourakis CJ, Stanley and Lovell JJ. (Footnotes omitted)
Place of residence
Sections 170 and 169 of the Act respectively create the offences of serious criminal trespass in a place of residence and serious criminal trespass in a non-residential building. Section 168 defines “serious criminal trespass” for the purpose of those sections. The maximum penalty for serious criminal trespass in a place of residence is higher than the maximum penalty for serious criminal trespass in a non-residential building.
By reason of the definitions of “non-residential building” and “place of residence” in sections 169 and 170 respectively, the definitions and the sections are mutually exclusive. Because the definitions refer to a building or part of a building, the question whether a place is a place of residence or not is to be determined by reference to a part of a building where the building contains both a place of residence and a non-place of residence.
Section 170 of the Act relevantly provides:
170—Serious criminal trespass—places of residence
(1)A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for life.
…
(3)     In this section—
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.
Section 168 and 169 of the Act relevantly provide:
168—Serious criminal trespass
(1)For the purposes of this Act, a person commits a serious criminal trespass if the person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence to which this section applies.¹
(2)A place is to be regarded as open to the public if the public is admitted even though—
(a)a charge is made for admission; or
(b) the occupier limits the purposes for which a person may enter or remain in the place by express or implied terms of a public invitation.
(3)A person who enters or remains in a place with the consent of the occupier is not to be regarded as a trespasser unless that consent was obtained by—
(a)force; or
(b)a threat; or
(c)an act of deception.
(4)A reference in this section to the occupier of a place extends to any person entitled to control access to the place.
Note—
1 ie theft or an offence of which theft is an element; an offence against the person; or an offence involving interference with, damage to, or destruction of property punishable by imprisonment for 3 years or more.
169—Serious criminal trespass—non-residential buildings
(1)A person who commits a serious criminal trespass in a non-residential building is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 20 years.
(3)In this section—
non-residential building means a building or part of a building that is not a place of residence.
It is common ground that the meaning of the phrase “place of residence” in section 170 is as set out by Debelle J (with whom Besanko J agreed) in R v Jackson[13] in the following passage:
[13] [2005] SASC 472, (2005) 93 SASR 373.
The expression “place of residence” is not a legal or technical term but is to be given its meaning in ordinary usage. In addition, its meaning must be understood in every case in accordance with the object and intent of the Act in which the expression occurs. What constitutes a place of residence is a question of fact; it is not a question of law. It is a question of fact and degree. Although it is a question of fact, reference to authority provides assistance for determining what kind of premises are comprehended by the expression a “place of residence”.
The expression “place of residence” is a familiar one. It indicates the place where a person usually resides. In ordinary usage, a residence is one’s usual dwelling place or abode: Oxford English Dictionary and Macquarie Dictionary…
…
The place of residence of a person is the place where he eats, drinks and sleeps. That is a convenient starting point. However, a person might eat, sleep and drink in a variety of habitats. So, a car may constitute a residence: R v Bundy, although that decision demonstrates that a car might not be a place of abode when it is in transit... Some reside in caravans or other kinds of mobile homes. Others on boats or barges. The variety of premises which might constitute a place of residence is recognised by the very width of the definition in s 170(3).
…
When determining whether a building or part of a building is a place of residence, it is not, I think, helpful to classify buildings by type. For example, a person such as a caretaker may have a place of residence within, say, an office building. In some hotels, one might find persons who permanently reside there and have no other place of residence. Occupation of that kind might have to be contrasted with persons staying for short periods only. It has been held that a room in a motel occupied by a person for a period of one week was a dwelling‑house for the purposes of s 419 of the Criminal Code Act 1899 (Qld) as it stood in 1967. However, it is not necessary in this case to decide whether a room in a hotel or motel is a place of residence. I refer to these examples for the purpose only of emphasising the fact that the question of what constitutes a place of residence is a question of fact and degree and may vary according to the statutory context or the purpose of the legislation.
Other kinds of premises might constitute a place of residence. Youth hostels are, generally speaking, used by young people for a few nights’ accommodation only. It is an interesting question whether such a hostel constitutes a place of residence. By contrast, some institutions accommodate elderly people in a form of hostel with one or two rooms for occupation by that person. Those rooms constitute the permanent abode of the persons occupying them. There could be no doubt that each room or set of rooms was the place of residence of each occupant. Again, rooms in a boarding house would constitute a place of residence for those occupying them. ..
…
These decisions demonstrate that the question whether the premises are a place of residence is determined by considering first the nature of the premises and then the manner in which the premises are used... [14]
[14] At [12]-[13], [15], [19]-[20], [23]. (Citations omitted except to the extent shown)
Chatterton v Police[15] is a case that illustrates how each case must be determined on its own facts. The complainant resided in an apartment on the first floor of a building. The apartment included a balcony that was only practically accessible from within the apartment. Anderson J held that the balcony was part of the complainant’s place of residence. Anderson J said:
Ms Amos submitted that the balcony is part of the residence as it comes under the same roof structure as the rest of the apartment and has direct access into the main living area of the apartment. It is a private elevated area to which there is no other designated means of access except through the main living area of the apartment. Ms Amos submitted that this is quite different to a private courtyard or backyard which is easily accessible to visitors who may be complete strangers.
…
In terms of the balcony itself, it is in my view, for the reasons submitted by Ms Amos, an integral part of the house that does not have a designated means of access other than from inside the apartment. It is “part of a building” used as a “place of residence” for the purpose of s 170A of the Act. It clearly comes within the definition in my view.[16]
[15] [2011] SASC 137.
[16] At [18], [20].
Miscarriage of justice
I first address ground of appeal 2, namely that the circumstances in which Mr Blair’s guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them.
In relation to the second factor identified by Doyle J in Tsavalas v Police mentioned above at [54], Mr Blair contends that there is a real question as to his guilt in respect of two elements of the section 170 offence, namely the physical element that the car park was or was part of a place of residence and the mental element that he knew or was reckless as to its being or being part of a place of residence. I first address the physical element.
It was an essential element of the section 170 offence that the car park was or was part of a “place of residence”. It is not possible to make a definitive finding whether this element exists because of the limited evidence adduced on appeal. At a trial, the onus of proof beyond reasonable doubt that the car park was or was part of a “place of residence” would lie on the prosecution and it may be expected that it would adduce detailed evidence from an occupant of the building or otherwise concerning access from outside into the car park and access from the foyer to the upper floors. This evidence would permit a definitive finding.
I first address the admissibility of paragraph 9 of Mr Graham’s affidavit. That paragraph contains hearsay evidence that would not be admissible at trial. However, if the man who provided that information to Mr Graham gave evidence at trial, it is likely that it would be admissible because it is likely that the man was speaking of his own first-hand knowledge.
Section 59J(1)(a) of the Evidence Act 1929 (SA) empowers a court to dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute. The Police do not submit that the information provided by the man to Mr Graham is in dispute. In any event, I find that it is not genuinely in dispute. First, it is inherently likely that the building contains protection for the occupants of the other floors by preventing use of the lift except by an electronic pass or some other form of preventing unauthorised access. Equally it is inherently likely that the upper floors have doors preventing access from the stairwell into any of the apartments. Secondly, it is inherently unlikely that the man to whom Mr Graham spoke provided false information to him.
If this ground is established, it will result in setting aside Mr Blair’s convictions and remitting the matter to the Magistrates Court to proceed to a committal and trial. It is neither necessary nor possible in considering this ground to make a definitive finding whether the car park was or was part of a “place of residence”. In the circumstances, it is appropriate to exercise the power under section 59J and admit paragraph 9 of Mr Graham’s affidavit.
The question whether the car park was or was part of a “place of residence” turns primarily on two questions of fact. The first question is the extent to which persons other than the occupants of the apartments have access to the car park. The second question is whether a person who is in the car park or the foyer is able to gain access to the apartments on the upper floors.
There is limited evidence on the first question. Mr Blair’s evidence establishes that door 1 was not locked on 24 July 2020 and he entered through it. Mr Graham’s evidence establishes that he could not open it from the inside (but he did not try to open it from the outside) two years later on 25 August 2022. I will assume in favour of the Police that the general practice in July 2020 was that all of the external doors giving entrance into the car park or the foyer were generally locked such that only occupants, owners or those authorised by them could gain entry. I infer that it would have been relatively common for occupants or owners to authorise others to gain entry, such as persons temporarily staying in an apartment, tradespersons and other service providers.
There is more evidence, albeit not definitive, regarding the second question. On the basis of the information provided by the man to Mr Graham and inherent likelihood, it is likely that the lift can only be used to access the upper floors if one has an electronic pass to operate it. On the basis of Mr Graham’s observation, it appears likely that the door to the stairwell off the foyer is not generally locked. On the basis of the information provided by the man to Mr Graham and inherent likelihood, it is likely that there is some form of locking mechanism on the doors to the upper floors that prevents unauthorised access from the car park and foyer to the upper floor apartments.
The question whether the car park was or was part of a “place of residence” is a question of fact and degree. On the one hand, a garage that is physically separated from the house would not ordinarily be regarded as or part of a place of residence. Nor would a garage that is attached to a house in the sense that they share a common wall if there is no doorway or other access from the garage into the house. On the other hand, if there were no wall between the garage and the house, the garage would ordinarily be regarded as or part of a place of residence.
Similarly, if a garage is separated vertically from a house such that the garage is in the basement and the house is on the ground floor with no access from the garage into the house, the garage would not ordinarily be regarded as or part of a place of residence. However, if there were an open spiral staircase leading from the garage to the house, it would ordinarily be regarded as or part of a place of residence.
In the present case, on the basis of the limited evidence adduced on appeal, it is likely that, if definitive evidence were adduced at trial, the car park would not be regarded as or part of a place of residence. This is sufficient to entail that there is a real question as to the guilt of Mr Blair. Given this conclusion, it is not necessary to consider the mental element.
In relation to the second and fourth factors identified in Tsavalas v Police mentioned at [54] above, based on the evidence of Mr Blair, his pleas of guilty did not reflect a consciousness of guilt of the offences of serious criminal trespass in a place of residence. They did reflect consciousness of guilt of the offences of serious criminal trespass but he did not turn his mind to the offence including as an element that it was in a place of residence and did not believe that it was a place of residence. Mr Blair also lacked an appreciation of the nature of the charges insofar as they included this element.
In relation to the other two factors identified in Tsavalas v Police mentioned at [54] above, Mr Blair’s guilty pleas were not based on imprudent or inappropriate advice. However, it is relevant that he did not receive any advice at all in relation to the pleas or the elements of the offences and, if he had done so, it is likely that he would have been advised, at the least, that there was a real question whether he was guilty of serious criminal trespass in a place of residence as opposed to in a non-residential building. There is no suggestion that Mr Blair’s guilty pleas were not the result of a free choice on his part or that they were the result of his will being overborne by pressure or threats.

This case falls within the specific circumstance referred to in R v Forde[17] and R v Hamnett[18] where the defendant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it. However, considered more broadly, the circumstances referred to above in combination entail that the circumstances in which the pleas were entered involved a miscarriage of justice.
[17] [1923] 2 KB 400.
[18] [2018] SASCFC 108, (2018) 132 SASR 155.
This ground of appeal is established.
Not guilty on the admitted facts
I turn to ground of appeal 1, namely that on the admitted facts Mr Blair could not have been convicted of serious criminal trespass in a place of residence.
Mr Blair contends that, on the admitted facts, two essential elements of the offence were missing, namely the physical element that the car park was or was part of a place of residence and the mental element that he knew or was reckless as to its being or being part of a place of residence.
The reference to “the admitted facts” in the formulation of this ground on which a conviction following a plea of guilty may be set aside is a reference to facts that are common ground or facts that are not in contention.
I first address the physical element. To give a hypothetical example of “admitted facts”, if a defendant entered a factory that was used exclusively for manufacturing and not used by a caretaker or anyone else as a residence and the defendant pleaded guilty to serious criminal trespass in a place of residence, it could be said that on the admitted facts the defendant could not be guilty of that offence.
In the present case, the facts involving access into the car park and access from the foyer to the upper floors are unclear to a significant degree, as described at [70] to [74] above. Those facts were simply not addressed during the hearing before the Magistrate.
For the purposes of this ground of appeal, it is not appropriate to admit paragraph 9 of Mr Graham’s affidavit. In any event, although there is sufficient basis to establish that there is a real question as to the guilt of Mr Blair, there is not a sufficient basis to establish that he is not guilty on the admitted facts insofar as the objective element of entering a place of residence is concerned.
I turn to the mental element. Section 170 does not explicitly identify the mental element in respect of the physical element that the defendant enters a place of residence. The parties do not cite any authorities on this question. I assume that the mental element is that the defendant must know that, or be reckless as to the fact, that the place that the defendant enters is a place of residence.
To give an example, if a defendant entered a factory believing it to be a factory but, unknown to the defendant, a factory employee was surreptitiously living in the factory, the mental element would not be established. On the other hand, if a defendant entered a bedroom of a house in the belief that a bedroom is not part of a place of residence, the mental element would be established.
In the present case, if the car park is not objectively a place or part of a place of residence, the mental element will be irrelevant. On the other hand, if the car park is objectively a place or part of a place of residence, determining whether the mental element is established would involve complex questions which cannot be determined given the summary manner in which the appeal was conducted. It cannot be said that, on the admitted facts, Mr Blair could not be guilty of the requisite mental element.
This ground of appeal is not established.
Extension of time to appeal
Mr Blair is obviously well out of time to appeal against his September 2020 convictions. He applies for an extension of time in which to do so. This application is not opposed by the Police.
In the circumstances, it is appropriate to grant the application for an extension of time.
Conclusion
Mr Blair has established that the circumstances in which his pleas of guilty to the two counts of serious criminal trespass in a place of residence were entered involved a miscarriage of justice. His convictions based on those pleas must be set aside. Subject to the following observations, the matter must be remitted to the Magistrates Court to proceed to committal for trial and, if committed for trial, to proceed to a trial in the District Court.
On the hearing of the appeal, Mr Blair indicated that he is willing to plead guilty to two counts of serious criminal trespass in a non-residential building in lieu of his original guilty pleas. He further indicated that he does not seek to disturb the sentence that was imposed, noting that he has already fully served the term of imprisonment imposed.
On the hearing of the appeal, counsel for the Police indicated that, if the appeal were to be allowed and the matter remitted to the Magistrates Court, instructions would be sought on whether the Police would accept a plea of guilty to two counts of serious criminal trespass in a non-residential building.
I will give the parties the opportunity to consider the future course of the matter before making final orders. I will then hear the parties on the final orders that are sought.