Jaylon (a Pseudonym) v The Queen
[2019] VSCA 146
•26 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0072
| EDWARD JAYLON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | BEACH, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 June 2019 |
| DATE OF JUDGMENT: | 26 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 146 |
| JUDGMENT APPEALED FROM: | DPP v [Jaylon] (Ruling No. 1) [2019] VCC 357 (Judge Hogan) |
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CRIMINAL LAW — Interlocutory Appeal — Aggravated burglary — Application for leave to appeal against decision of trial judge that applicant did not have a statutory right to enter upon the premises — Certificate to appeal against decision of trial judge granted — Whether trial judge erred in deciding as a pre-trial issue whether applicant had a statutory right to enter upon the premises — Whether trial judge impermissibly inverted onus of proof on that issue — Whether trial judge erred in determining question by reference to subjective intentions — Whether depositions contained sufficient evidence to raise reasonable possibility that applicant had a right to enter premises as a co-tenant — Application for leave to appeal against interlocutory decision granted — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr A Bates | Bayside Solicitors Vic Pty Ltd |
| For the Respondent: | Ms M Mahady with Mr S Lee | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
WEINBERG JA:
The applicant was charged, on indictment, with aggravated burglary (charge 1), causing injury intentionally (charge 2), causing injury recklessly (charge 3), damaging property (two charges — charge 4 and charge 6), and making a threat to damage property (charge 5). By his response to the prosecution opening, the applicant denied that he entered the subject premises, at which the offences were alleged to have taken place, as a trespasser, because, it was contended, he was a co-tenant of those premises and thus had a legal right to enter them. After hearing argument concerning that matter, before the empanelment of a jury in the trial, the trial judge ruled that, as at the date of the alleged offences, the applicant did not, as a matter of law, have a statutory right to enter upon the premises pursuant to the provisions of the Residential Tenancies Act 1997 (‘the Act’).[2]
[2]DPP v [Jaylon] (Ruling No. 1) [2019] VCC 357 (‘Ruling’).
The applicant seeks leave to appeal to this Court from that decision. Upon being requested to do so, the trial judge granted to the applicant a certificate, pursuant to s 295(3) of the Criminal Procedure Act 2009, on the basis that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
Circumstances of alleged offending
The offences, that are the subject of the charges, arose from an incident (‘the incident’) that occurred on 21 May 2016 at premises in Carrum Downs (‘the Carrum Downs premises’). At that time, the premises were occupied by KT, her son RT, and MP. Two years previously, KT signed an agreement to lease the premises from its owner for a period of two years. At about that time, the applicant had commenced to have a relationship with KT. In due course, in 2014, he commenced to live with KT and RT at the premises. Approximately six weeks before the date of the incident, the relationship between KT and the applicant broke down, and he moved out of the premises, taking most, but not all, of his belongings with him. At the time of the alleged offences, he resided with his new partner at an address in Skye.
On 15 May 2016, the applicant’s vehicle was stolen from his driveway in Skye. He suspected that KT, RT and MP had been involved in the theft of his vehicle, as it appeared that it had been stolen using the spare key that he had left at the premises at Carrum Downs. On 17 May, in the lead up to the date of the incident, the applicant sent a text message to KT concerning those suspicions.
By 21 May 2016, the applicant had not recovered his vehicle. At about 9.30 am on that day, he left his residence in Skye, carrying with him an axe and a baseball bat. Shortly after, he arrived at the Carrum Downs premises. He entered the premises via an unlocked sliding door, while armed with the baseball bat and the axe (charge 1), and confronted RT in the lounge room, twice striking him with the baseball bat (charges 2 and 3). When RT continued to deny involvement in the theft of the vehicle, the applicant slammed the axe into a coffee table causing it damage (charge 4). He then entered KT’s bedroom, told her that if she had anything to do with the theft of his vehicle he would cut her dog’s head off, and, thereupon, held the axe to KT’s dog’s throat while it was sitting on the bed (charge 5). The applicant then left the bedroom, and as he did so he swung the axe into the door damaging it (charge 6).
Evidence as to the tenancy of the Carrum Downs premises
In his response to the prosecution opening, and in the course of pre-trial argument, the applicant contended that, based on his residence and occupation of the Carrum Downs premises for a period of two years, he had become a co-tenant of those premises. It was further contended that, when the applicant moved out of the premises approximately six weeks before the date of the offending, he did not thereby terminate the co-tenancy agreement or his liabilities under it. The pre-trial argument concerning that issue, and the judge’s ruling, was based on the evidence contained in the depositions. In order to determine the matters raised on this application, it is necessary, first, to summarise that evidence. Most of the relevant evidence, as to the status of the lease of the Carrum Downs premises, was elicited in cross-examination by counsel then acting for the applicant at the committal proceeding.
KT stated that she moved into the premises on 16 May (she was unsure of the year, but, as noted, the date of the lease was 2014). She stated that she signed a lease agreement when she moved in. The applicant moved into the premises about three months later. From then on, he resided at the premises nearly every night over the following two years, during which he shared a bedroom with her. He had keys to the house. KT said that when the applicant moved into the premises, he was meant to pay rent, but he only paid it about three times. The applicant also ‘helped out’ with one or two bills, but during the period that he resided at the premises he was not employed. She said that she thought that the applicant might have spoken to the landlord once or twice, because the applicant knew him. When the applicant moved into the premises, she let the landlord know that he had done so. The landlord did not raise any objection to the applicant living there.
KT stated that during the following two years, the applicant moved out of the premises, and returned, on at least two occasions, the first of which was at Christmas 2014.
KT further stated that MP was a friend of the applicant. She said that the applicant brought him to the premises, and asked if MP could move in. It was agreed that MP would help to pay the rent. MP and RT had their own rooms, and each of them were meant to assist in paying the rent and paying some of the bills.
KT said that her relationship with the applicant ended about six weeks before 21 May 2016. When the applicant moved out of the house, he left some of his belongings behind, and he also left his children’s toys and clothing, and the cot of his younger child, at the premises.
In his evidence, RT said that the applicant was already living at the Carrum Downs premises, as his mother’s partner, when RT himself moved in there. He said that the applicant’s children came to the house on weekends, and they would sleep in a bedroom, which RT would vacate to make available to them. The children had toys and other belongings at the house, and they had a bed there. RT said that he himself did not initially pay rent, because he was not planning to stay at the premises for long, but in the end he did pay rent. In re-examination, RT said that after the applicant left the house, he did not return to it until the day on which the incident, which gave rise to the charges, occurred.
MP gave evidence that he moved into the Carrum Downs premises in October or November 2014. He said that he had an agreement with KT that he would pay rent and some bills. He confirmed that the applicant’s children visited the premises each weekend.
The applicant was interviewed by police at Frankston Police Station on 21 May 2016. He described the Carrum Downs premises as ‘my old address’. He said that he had lived at those premises for two years as the partner of KT. He said that KT was the main person who was renting the premises. He said that he moved out of the premises about one and a half months previously when he met his new girlfriend. He said that KT was not happy when he met the new girlfriend. When asked why she was not happy with that, he responded:
Because I’ve been trying to get out of that house for months. Just this was my one way of getting out.
Pre-trial argument
As mentioned, in the response filed on his behalf to the prosecution opening, the applicant maintained that he did not enter the Carrum Downs premises as a trespasser, because he had been, and remained, a co-tenant of the premises on 21 May 2016, and, as such, he had a legal right to enter the house there.
When the matter first came before the judge, she raised with counsel a question as to how she was to direct the jury on the issue relating to leases, licences and the Residential Tenancies Act. Counsel for the applicant responded that that matter would be a ‘key issue in the trial’. Counsel told the judge that it would be contended on behalf of the applicant that he became a ‘co-tenant of the premises’ when he moved into the house, and that the co-tenancy did not terminate when he moved out of it. In response, counsel for the prosecution contended that the question, whether there was a sub-tenancy or co-tenancy, was not relevant, because the manner, in which the applicant attended at the premises on the day of the alleged offences, exceeded any authority or authorisation that he had to do so. After further discussion, the judge stated that ‘perhaps there needs to be a ruling’ about the matter, and she requested counsel to file written submissions relating to that matter.
In written submissions filed on behalf of the applicant, it was contended that the applicant became a co-tenant when he moved into the Carrum Downs premises with KT in 2014 as her partner. In particular, it was contended that, by virtue of his residence at the house over the following two years, there was either an implied variation of the existing lease, or the termination of that lease, and the creation of a new one. During the two years in which the applicant resided there, he used the whole of the premises, and his occupation of them was neither temporary nor intermittent. It was further contended that, by his conduct, the landlord of the premises acquiesced in the creation of a new tenancy agreement between himself as landlord, and KT and the applicant as co-tenants, with the existing written tenancy agreement with KT being surrendered. It was further submitted that, by moving out of the premises six weeks before 21 May 2016, the applicant did not terminate or abandon the co-tenancy agreement or his liabilities under it, so that he remained a co-tenant on 21 May 2016. Accordingly, it was submitted, he was entitled to enter the house on the morning of the incident that resulted in the charges against him.
In its initial written submissions in response, the prosecution accepted that, although the applicant was not a signatory to the lease agreement, nevertheless when he moved into the Carrum Downs premises he was either a co-tenant with KT, or a sub-tenant of her, under the Act. However, it was contended, the applicant’s rights, as a co-tenant or sub-tenant, ceased when he ended his relationship with KT and left the premises six weeks before 21 May 2016.
After the filing of the prosecution response, the judge caused an email to be forwarded to both parties. In that email the judge stated:
Her Honour is concerned to make clear to the parties that the question of whether the accused had a statutory right to enter the premises as a ‘co-tenant’ is a matter of law which needs to be determined by the court. It is not a matter of fact for the jury’s determination.
The judge then proceeded to note that she was concerned that she might be led into appellable error by the prosecution’s acceptance of the defence argument that the applicant was either a co-tenant or sub-tenant under the Residential Tenancies Act. In that respect, the judge drew the parties’ attention to s 81(1), s 81(3) and s 425(1) of the Act, which (her Honour considered) provided that any assignment or sub-letting of a tenancy agreement would be invalid in the absence of the written consent of the landlord.
Having received that email, the prosecution filed an amended response to the defence submission, contending that, because the landlord had not provided written consent to KT that she could assign or sub-let the whole or part of the rented premises under s 81(1) of the Act, the applicant did not, accordingly, have a ‘tenancy whether as a co-tenant or as a sub-tenant’. Thus, it was submitted, at the time at which the applicant entered the premises on 21 May 2016, he was not a tenant of the premises, and he had never acquired the rights of a tenant for the purposes of the Act.
The ruling by the trial judge
Having summarised the relevant evidence, the judge referred to the provisions of s 81(1) and s 81(3), and s 425, of the Residential Tenancies Act. Her Honour noted that there was no evidence of any compliance by the parties with the requirement of s 81 that the landlord provide written consent to any assignment of the lease by KT to the applicant and herself. Further, the judge considered that there was no evidence of an intention, either express or implied, by KT, the applicant or the landlord to create the relationship of co-tenancy contended for on behalf of the applicant.[3]
[3]Ruling [15]–[21].
In particular, the judge found that there was no evidence of any ‘meeting of minds’ by the applicant and KT to the effect that the applicant was to become a co-tenant.[4] The judge considered that the evidence suggested that the applicant was permitted to stay in the Carrum Downs premises by way of a licence from KT as her boyfriend, but that he left for periods of some weeks ‘when it suited him to do so’.[5] KT’s evidence was that she effectively had control over who lived at the premises, and that it was she who would give people the permission to stay there.[6] In addition, the judge noted that in his record of interview, the applicant failed to assert that he had a right to enter the premises on 29 May 2016; instead, he lied to the police by maintaining that he did not enter them at all, which supported the notion that he knew that KT was the tenant who had control over the premises.[7] The judge then stated:
In my view, the evidence supports that the permission or licence of the accused was terminated once the relationship with [KT] terminated in or about mid-April 2016 when the accused moved out from the premises to live with his new girlfriend.[8]
[4]Ibid [24].
[5]Ibid.
[6]Ibid [25].
[7]Ibid [26].
[8]Ibid [28].
Her Honour then proceeded to make the following finding:
In all the circumstances I am not satisfied that there was any agreement, either expressed or implied, between [KT] and the accused that they were to become co-tenants of the premises.[9]
[9]Ibid [29].
The judge further considered that, if she were wrong about that conclusion, in any event there had been a failure by the relevant parties to comply with s 81(1) of the Act, so that any ‘tenancy agreement’ was invalid pursuant to s 81(3) of the Act. In addition, there had been a failure by the parties to comply with the provisions of s 425 of the Act relating to notification to the Residential Tenancies Bond Authority.[10]
[10]Ibid.
The judge then turned to the question whether the landlord was aware, and had agreed, that the applicant had become a co-tenant of the premises. Having examined the evidence, she concluded:
In my view the evidence of the alleged ‘conduct’ of the landlord is an inadequate foundation for the inference that he agreed to enter into a legally binding lease agreement whereby the accused was to become a co-tenant with [KT].[11]
[11]Ibid [34].
The judge noted, further, that on 21 November 2016, the landlord addressed a notice to vacate the premises to KT alone. Subsequently, proceedings in the Victorian Civil and Administrative Tribunal were taken by the landlord against KT alone to recover the outstanding rent. Her Honour considered that in the circumstances in which the amount of outstanding rent was substantial ($9,551.97):
[I]t beggars belief that the landlord would not have named the accused as a party to those proceedings to recover outstanding rent had he impliedly or actually consented to the accused becoming his tenant.[12]
[12]Ibid [35].
Having made those findings, the judge then expressed her conclusion in the following terms:
Accordingly I rule that on 21 May 2016 the accused did not as a matter of law have a statutory right to enter upon the premises pursuant to the provisions of the Residential Tenancies Act. The evidence before me indicates that his residence at the premises was at all times subject to the permission or licence granted by [KT] which was dependent upon the existence of an ongoing sexual/de facto relationship between the two of them. That relationship was brought to an end when the accused left the premises in order to go and live with his new girlfriend in or about mid-April 2016, approximately 1 ½ months prior to the alleged offending on 21 May 2016.
Obviously it is still incumbent upon the prosecution to prove the elements of trespass, namely that the act of entry onto the premises, together with the requisite mental intent accompanying that act, namely, that he committed such act knowing that he had no permission or other lawful right to do so or was reckless whether he had such permission or lawful right.[13]
[13]Ibid [37]–[38].
Proposed grounds of appeal
The applicant relies on three proposed grounds of appeal. As drafted in the Notice of Application for Leave to Appeal, they were expressed in argumentative form. In summary, the grounds are as follows:
(1)The judge erred in deciding, as a pre-trial issue, that as a matter of law the applicant did not have a statutory right to enter upon the premises, because that question involved issues of fact which should have been left to the jury. In particular it was for the prosecution to prove, on the evidence, beyond reasonable doubt, that the applicant had no right or authority to enter the premises. The prosecution would fail to prove that element of the offence, if the jury were to conclude that there was a reasonable possibility that the applicant had become a co-tenant of the premises under the Residential Tenancies Act during the time that he lived at the premises.
(2)The judge erred in finding ‘on the evidence’ (contained in the depositions and the record of interview) that as a matter of law the applicant did not have a statutory right to enter upon the premises pursuant to the Act. The pre-trial argument proceeded on the basis that the applicant was required to prove such a right to enter the premises. That underlying premise, of the argument and the ruling, impermissibly reversed the onus of proof.
(3)The judge erred in finding that even if there was a ‘tenancy agreement’ between [KT] and the applicant, any such agreement would be invalid pursuant to s 81(3) of the Act; in fact that provision was not relevant to the case, because it was not put on behalf of the applicant that there had been an assignment of the tenancy to himself and [KT] as co-tenants.
Submissions
In his written case, counsel for the applicant addressed grounds 1 and 2 together. He noted that, in order to prove the charge of aggravated burglary, the prosecution must establish, beyond reasonable doubt, first, that the applicant entered the Carrum Downs premises as a trespasser. Counsel submitted that the question, whether the applicant was a co-tenant (lessee) of the premises with a right to enter them, or a licensee of the premises with authority to enter while he lived there, was a question of fact for the jury, and not the judge, to decide on all the evidence.
Counsel further contended that the evidence, contained in the depositions, was sufficient to raise a question whether there was a reasonable possibility that, at the time at which the applicant entered the premises on 21 May 2016, he was entitled to do so as a co-tenant of those premises. Counsel referred to the fact that, until six weeks before that date, the applicant had lived at the premises for a period of two years, albeit that he did so in an ‘on again off again’ relationship with KT. In her committal evidence, KT said that when the applicant first moved into the premises, ‘he was pretty much staying there every night’. RT gave evidence that, when he moved into the premises, the applicant was already living there permanently as his mother’s partner. Further, there was evidence that the applicant had agreed to pay $150 a week in rent and agreed to help with payment of the bills when he could. The applicant had his own keys to the premises, his children stayed there on most weekends, and they had their toys and clothes at the house. In addition, the applicant had his belongings there. It was submitted that there was sufficient evidence for the jury to consider whether, by reason of the applicant’s residence at the premises, in those circumstances, there was an implied agreement between himself and KT that he become a co-tenant of the premises.
Counsel further contended that there was sufficient evidence that the landlord of the premises impliedly consented to, and agreed with, that arrangement. KT gave evidence at the committal hearing that the landlord knew that the applicant had moved in to the premises. She also said that the landlord visited the premises every fortnight to collect the rent. Accordingly, there was plenty of time during that period for the landlord to become aware that the applicant was living in the premises in circumstances in which he impliedly consented to that arrangement.
Counsel further contended that the fact, that the applicant left the premises some six weeks before 21 May 2016, did not conclusively have the effect that the co-tenancy arrangement that he had with KT was thereby terminated. Counsel noted that Part 6 of the Act provides a strict process by which a tenancy agreement may be terminated, and that process did not take place in this case.
In respect of the third ground, counsel noted that s 81 of the Act prohibits the assignment or sub-letting of premises without the written consent of the landlord. However, this case involved the termination of the original tenancy between the landlord and KT, and the creation of a new implied tenancy. The applicant had not raised any issue of an assignment or sub-letting of the premises, and accordingly s 81 and s 425 of the Act did not apply to the case.
When the application came before this Court for oral argument, at the commencement of the hearing, counsel for the applicant agreed that the submissions made by him could be encapsulated in the following propositions:
1. The judge erred in deciding, as a pre-trial issue, whether the applicant had a statutory right to enter upon the premises. In particular, the judge erred in deciding that matter as a pre-trial issue, because:
(a) the question, whether the applicant had such a statutory right, was one of mixed fact and law for the jury;
(b) in any event, the resolution of that issue depended on the evidence that was to be adduced at the trial, and could not be decided, as a pre-trial issue, on the evidence contained in the depositions.
2. In determining that the applicant did not have a statutory right to enter upon the premises as an existing co-tenant of them, the judge impermissibly inverted the onus of proof on that issue. At trial, it will only be necessary for the applicant to raise a reasonable possibility that he had a right, as an existing co-tenant of the premises, to enter them on the day of the alleged offences.
3. The judge erred in determining the question, whether the applicant had such an existing right to enter the premises as a co-tenant, by reference to the subjective intentions of the parties; the question, whether there was an existing co-tenancy between the applicant and KT, is to be determined objectively by reference to the evidence that reflected their intentions.
4. On the evidence contained in the depositions, there was, in any event, sufficient evidence to raise a reasonable possibility that, on the day of the alleged offences, the applicant had a right to enter the premises as an existing co-tenant of them.
5. The judge erred in relying on s 81 and s 425 of the Residential Tenancies Act. Those provisions were not relevant to the determination of the issue, since the applicant did not maintain that he had taken an assignment of the existing lease from KT. Rather, the applicant, at trial, would seek to raise the issue that the existing tenancy between the landlord and KT had terminated, and, by a process of implication, it had been replaced by an agreement between the landlord, KT and the applicant whereby the applicant became a co-tenant of the premises.
In response to that formulation of the issues, counsel for the respondent accepted the validity of the proposition contained in the first point adumbrated above. She accepted that the issue, as to whether the applicant had a statutory right to enter upon the premises, was one of mixed fact and law for the jury, which must be determined on the evidence that is adduced at trial relevant to that question.
In our view, for the reasons that follow, counsel for the respondent was correct to make that concession. We shall set out, briefly, our reasons for that conclusion.
Analysis
In order to establish the aggravated burglary, that is the subject of the first charge on the indictment, the prosecution must prove, beyond reasonable doubt, that the applicant entered the premises as a trespasser. In Barker v The Queen,[14] the High Court held that, subject to one qualification, s 76 of the Crimes Act 1958 incorporates the common law principles of the tort of trespass. The qualification is that, as s 76 creates a criminal offence, the prosecution must prove, not only that the offender entered the premises as a trespasser, but that the offender did so knowingly, or that the offender was reckless as to the facts that made him or her a trespasser.[15]
[14](1983) 153 CLR 338.
[15]Ibid 348 (Mason J), 365 (Brennan and Deane JJ), 370 (Dawson J); Marks-Vincenti v The Queen (2015) 45 VR 313, 319 [25]–[26].
In the present case, the applicant seeks to put in issue the allegation that he was a trespasser when he entered the premises on the day of the alleged offences. In doing so, he has raised the issue that he was, on that day, a co-tenant of the premises. Plainly, he was not a party to, and had not signed, the written lease originally entered into between the landlord and KT. Rather, the applicant maintains that, by implication, he entered into an agreement with the landlord and KT, by which the original tenancy agreement between the landlord and KT was terminated, and by which a new tenancy arose between the landlord and himself and KT. In such a case, in the absence of a written lease agreement, the question whether such an implied tenancy agreement came into being must depend on the circumstances in which the applicant occupied the premises and the conduct of the parties, including the landlord, in the relevant period.[16] That question is to be determined by reference to the evidence as to the intentions of the parties, objectively ascertained. As such, it is essentially a question of fact.
[16]Varella v Marsicovetere [1954] VLR 550, 552.
Accordingly, in the present case, the issue, that has been raised on behalf of the applicant, is necessarily one of mixed fact and law. Ultimately, the resolution of that issue must depend on the evidence that is adduced in the trial before the jury. With respect to the trial judge, it was premature to seek to resolve that issue before any evidence was adduced in the trial.
The onus of proving that the applicant entered the premises as a trespasser, on the date of the alleged offending, is on the prosecution. On that issue, the applicant will, of course, bear an evidentiary onus of adducing, or being able to point to, evidence that raises the issue of whether, on that date, he was entitled to enter the premises as a co-tenant. However, the legal onus, of disproving that he was a co-tenant on that date, will lie on the prosecution. If, on the evidence, there is a reasonable possibility that, in the circumstances, the applicant had become and remained a co-tenant of the premises, then the prosecution will not have discharged that onus of proof.
Accordingly, the judge could only rule that the applicant had no legal right to enter the premises on the date of the offending, if, after the conclusion of the evidence in the trial, the judge were to determine that there was no evidence on which the jury could have a reasonable doubt as to that issue. That is, the judge could only so rule if, on the evidence, it could be concluded that the jury could not rationally consider that there was a reasonable possibility that, on the date of the alleged offending, the applicant had a right to enter the premises as a co-tenant.
It follows, from the foregoing, that the first two points, and seemingly also the third point, advanced on behalf of the applicant, which we have outlined above, are correct. It is for those reasons that counsel for the respondent was correct to concede that the application for leave to appeal, and the appeal, must succeed.
The fourth point, advanced on behalf of the applicant, was that the evidence contained in the depositions was sufficient to raise a reasonable possibility that the applicant was, and had remained, a co-tenant on the date of the alleged offending. Clearly, the evidence contained in the depositions, as to that issue, was quite slim. Further, the circumstances in which the applicant had left the premises some weeks before the incident that gave rise to the charges, strongly support the proposition that, if he had been a co-tenant of the premises, he had abandoned that co-tenancy pursuant to s 220 of the Act. Nevertheless, if the evidence on those issues at the trial does rise no higher than that contained in the depositions, and to which we have referred, we consider that that evidence would be sufficient to raise an issue, for the jury, as to whether the applicant had a right to enter the premises as a co-tenant on the date of the alleged offending. For those reasons, the fourth proposition, advanced on behalf of the applicant, should be accepted.
We also consider that the fifth proposition is correct. The applicant did not maintain that he had taken an assignment of the existing lease between the landlord and KT. Rather, as we have noted, his position is that, after he commenced to live at the premises, by a process of implication, the existing written tenancy agreement between the landlord and KT was terminated by agreement, and a new tenancy agreement was entered into between the landlord and KT and the applicant as co-tenants. Accordingly, s 81 and s 425 of the Act were not relevant to the resolution of the issue considered by the judge.
It is for those reasons that we grant leave to the applicant to appeal the ruling by the judge dated 28 March 2019, and we allow the appeal. We will grant a certificate to the applicant pursuant to s 15A of the Appeal Costs Act.
Before we depart from this matter, we make two observations.
First, in fairness to the respondent, it is clear that the prosecution at the trial did not seek to raise, as a pre-trial issue, the question whether the applicant was entitled to maintain that he had a statutory right to enter upon the premises. Rather, the position taken by the prosecution, in the course of pre-trial argument, arose as a result of the judge requiring the parties to make submissions relating to that issue.
Secondly, it is understandable that the trial judge sought to address that issue as a pre-trial matter. The question, whether the applicant was and remained a co-tenant of the premises, and the question whether, if he was such a co-tenant, he had abandoned that tenancy, will raise matters of some complexity in charging the jury. It is therefore understandable that the judge sought to analyse that question, and to identify the issues in relation to it, in a pre-trial context. It must also be recorded that her Honour’s ruling was comprehensive and detailed.
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