Prior v Queensland Police Service

[2016] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION: Prior v Queensland Police Service [2016] QDC 143

PARTIES: Tobias Charles Michael PRIOR

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S: Townsville 290/15

DIVISION: Criminal

PROCEEDING: Appeal

ORIGINATING

COURT: Magistrates Court, Charters Towers

DELIVERED ON: 17 March 2016

DELIVERED AT: Brisbane

HEARING DATE: 19 February 2016

JUDGE: Durward SC DCJ

ORDERS: 1. Appeal dismissed.

2.   The conviction of the appellant in the Magistrates

Court at Charters Towers on 18 August 2015, is confirmed.

3. No order as to costs.

CATCHWORDS: CRIMINAL LAW – SPECIFIC OFFENCES – BURGLARY
– STATUTORY CONSTRUCTION – S.419 Criminal Code

(Qld) – whether s 419(4) creates a separate offence from s 419(1) – whether specific intent to commit an indictable

offence an element of an offence charged in terms of s 419(4)

– observations about the development of the 1997

amendments to s 419 through the Working Advisory Group recommendations, Legislature consideration and the Explanatory Notes.

CRIMINAL LAW – ELEMENTS OF OFFENCE – BURGLARY – SPECIFIC INTENT – where defendant in premises committed an offence of wilful damage – charged under s 419(4) Criminal Code (Qld) – whether specific intent to commit an indictable offence an element of that offence –

whether intoxication thereby a relevant consideration in determining intent in that subsection.

LEGISLATION:	Section 419 Criminal Code (Qld); Section 72 Criminal Law Amendment Act 1997; Sections 222, 223 & 225 Justices Act
1886.
CASES:	R v Miles [1999] QCA 325; R v Lockwood, ex parte AG (1981) Qd R 209; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Rowe v Kemper [2008]
QCA  175.

COUNSEL: Mr K Robinson, solicitor for the Aboriginal and Torres Strait

Islander Legal Service, for the Appellant.

Mr A Walklate, of counsel, for the Respondent.

SOLICITORS:  Aboriginal and Torres Strait Islander Legal Service for the
Appellant.
Office of the Director of Public Prosecutions for the
Respondent.

[1] The defendant (hereinafter referred to as “the appellant”), Tobias Charles Michael Prior, was convicted under section 419(4) of the Criminal Code (Qld) (“the Code”)

in the Magistrates Court at Charters Towers on 18 August 2015 on a charge of burglary and commit indictable offence, namely wilful damage. He was sentenced to nine months imprisonment.

The appeal

[2] The appellant has appealed against his conviction pursuant to section 222 of the

Justices Act 1886 (“the Act”), on the following grounds:

1.          That the learned Magistrate erred in not properly directing himself in relation to matters of fact;

2.          That the learned Magistrate erred in applying the incorrect test to a finding of intent;

3.         That the learned Magistrate erred in not having proper regard to

‘intoxication’ under section 28 of the Code.

Factual circumstances

[3]     The appellant was intoxicated at the time that he attended the dwelling at Charters Towers. The appellant was known to the occupants, his aunt, Ms Sailor and her partner Mr Kennedy. The door was open and the appellant entered, lay down on the couch and was then told by Mr Kennedy to leave the dwelling. Ms Sailor was also present at the dwelling. An argument then followed between Mr Kennedy and the appellant and the appellant flipped a couch over and either threw or kicked (this fact is in dispute as the only eye-witnesses, Mr Kennedy and Ms Sailor, gave differing accounts) a small coffee table, breaking a table leg and damaging a phone that had been on that small coffee table. Ms Sailor called the police.

The principal issue

[4] Section 419 of the Code relevantly provides as follows:

“419 Burglary

(1) Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.

Maximum penalty—14 years imprisonment.

(2) If the offender enters the dwelling by means of any break,

he or she is liable to imprisonment for life.

(3) If—

(a) the offence is committed in the night; or

(b) the offender—

(i) uses or threatens to use actual violence; or
(ii) is or pretends to be armed with a
dangerous or offensive weapon, instrument or
noxious substance; or
(iii) is in company with 1 or more persons; or
(iv) damages, or threatens or attempts to

damage, any property;

the offender is liable to imprisonment for life.

(4) Any person who enters or is in the dwelling of another and
commits an indictable offence in the dwelling commits a

crime.

Maximum penalty—imprisonment for life.”

[5] The critical issue to be determined in this appeal requires a construction of section 419 of the Code:

(a) Does section 419 create two separate offences of burglary – one

under subsection 419(1), with aggravating circumstances in subsections 419(2) and 419(3), and a second under subsection 419(4)?; or

(b) Is section 419 a single charge of burglary in which specific intent is an element?

[6]     The other issues in the appeal can be dealt with upon a shorter consideration of merit.

Submissions on the appeal – Appellant

[7]     Ground 1: the appellant submitted that, where there was doubt as to the police case theory, the Magistrate could not rule on intent to commit an indictable offence, because to do so required a specific act against which intention was to be assessed, namely the act by which the table was damaged. The appellant submits that the evidence was ambiguous, the table either being kicked or thrown and a leg of the table being broken. The Magistrate did not state whether he preferred the evidence of one witness over the other. The appellant submitted that there was insufficient evidence to prove the police case beyond reasonable doubt and that therefore the Magistrate erred in finding that there was an intent to commit the indictable offence.

[8]     Ground 2: the appellant submitted that if intent is accepted as an element of the burglary offence then it is of specific rather than general intent: that is entering or remaining in a dwelling with intent to commit an indictable offence (wilful damage). The appellant submitted that the Magistrate erred in convicting him

on the basis of the ‘reasonable foreseeability’ of the damage (the broken leg of

the table) resulting from his act since burglary is an offence of specific intent.

[9]     Ground 3: the Magistrate declined to consider intoxication because he did not consider it necessary to do so. The appellant submitted that if his submission in ground 2 regarding specific intent being a relevant element of the offence is

correct, then evidence of the appellant’s intoxication ought to have been

considered in assessing whether a specific intent was capable of being formed,
as a question of fact.

[10] However, it was agreed that the critical issue was whether section 419(4) was a discrete offence of burglary: that is, a separate offence to that in section 419(1).

Submissions on the appeal – Respondent

[11] Mr Walklate submitted that burglary is not always an offence of specific intent; that section 419(4) of the Code created a separate offence of burglary and different elements applied. Insofar as the mental element was concerned, wilful damage did not involve a specific intent. He referred to R v Lockwood (discussed infra). The critical element was the damage caused by the appellant.

How he did it was not a critical matter. He submitted that the Magistrate’s

decision contained findings on each of the elements of section 419(4) and
wilful damage.

[12]     Hence his submission about intoxication was simply that it cannot be a defence if self-induced; and that in any event the Magistrate found that the appellant was capable of forming an intent.

[13]     With respect to findings of fact, he submitted that the Magistrate specifically found that the appellant either kicked or threw the table and it broke as a result; and that it did not matter which version was correct as there was no material difference between them; either version was open to support a conviction; and the appellant was not prejudiced in any way.

Discussion

[14] There is authority for the proper construction of the Code, which is binding on

this Court: R v Miles [1999] QCA 325 (“Miles”).

[15]      In the joint reasons of McMurdo P and Pincus JA, their Honours unequivocally

stated that “the present scheme of section 419 is that subsection (1) creates an

offence of, to put it simply, entering or being in a dwelling with intent and subsections 2 and 3 provide for life imprisonment, if that is done in certain circumstances. Subsection (4) creates a separate offence and it is that which

most closely corresponds with the drafting of count 1” [the Court considered

the drafting of the charge to be defective] (my underlining).

[16]     Miles has not been overruled. Counsel and Mr Robinson have researched the subsequent authorities, as has my Associate. I have therefore applied it to what

emerged as the principal issue (in the context of Ground 2 – intent to commit an

indictable offence) in the appeal.

[17]     Insofar as the specific grounds are concerned, it does not matter whether the table was kicked or thrown, with the result that a leg of the table was broken. That result constitutes damage. On the evidence (in respect of both versions) the act of kicking or throwing the table was a voluntary and deliberate act. It was reasonably foreseeable (that is, the result was a likely consequence) that violence of any type upon that type of moveable property might result in damage to it. The act of the appellant was reckless and the risk of damage to the table was assumed by the appellant, on whichever of the two versions was preferred. The act was wilful. The conduct was unlawful: R v Lockwood, ex parte AG (1981) Qd R 209. Insofar as intoxication is concerned, in the absence of an element requiring proof of a specific intent, it is not a relevant consideration.

[18]     Whilst I am bound to follow Miles, the majority in that case simply made the statement to which I have referred, without further discussion. In this appeal, there was an analysis of the issue in greater detail, which I will now discuss.

[19]      The Criminal Law Amendment Act 1997 (clause 72) substantially amended

section 419 of the Code.

[20]      In the ‘Home Invasion and the Criminal Law Amendment Bill 1996’,

Legislation Bulletin No 2/97 at chapter 8 there is a discussion about the offence

of ‘burglary’.

[21] It refers to the ‘Report of the Criminal Code Advisory Working Group to the Attorney General, July 1996’ and its recommendation that sections 419 and 420 of the Code be amalgamated into “one offence” (with section 420 being

repealed), to be known as burglary, and to be defined as entering, or being in, a dwelling with intent. The proposed new section 419 comprised these subsections.

[22]     There was a consultation period after the delivery of the Report to the Attorney General. The proposed new section 410 was different: firstly, in respect of a modernisation of the language used; and secondly, by the creation of a new provision as proposed sub-section (4). There were also changes to penalties but they are not relevant to this discussion.

[23] The proposed new section 419(4) was said to “cover[s] this situation where

someone enters or is in someone else’s dwelling and commits an indictable

offence while there.”

[24]     In the Second Reading of the Criminal Law Amendment Bill (Hansard 04.12.96, pp 4872-4873), the Attorney General said, with respect to the offence

per se (not the punishment), that “… section 419 ‘burglary’ will be replaced by

clause 72 so that any person who enters or is in the dwelling of another with

intent to commit an indictable offence therein, will be guilty of a crime …”.

[25]     The Explanatory Notes to the Criminal Law Amendment Bill 1996 state (so far as is relevant):

“Clause 72 replaces section 419 (Housebreaking – Burglary) with a

new offence of ‘Burglary’. It will be a crime to enter or be in the

dwelling of another with intent to commit an indictable offence

therein … [and] further, any person who enters or is in the dwelling

of another and commits an indictable offence therein…”

[the notes otherwise describe punishments].

[26]      The Second Reading Speech is not as specific as the Explanatory Notes, the

latter clearly distinguishing between an offence accompanied by an ‘intent to commit an indictable offence’ and an offence where an indictable offence is actually committed ‘in the dwelling’, that is the distinction between section 419(1) and section 419(4). Proof of an ‘intent’ is necessary in section 419(1) but not in section 419(4). As a matter of simple construction, ‘intent’ would be

irrelevant if an offence is or has been committed after an entry into a dwelling or whilst a person already in the dwelling commits an offence. The actual commission of the offence is sufficient regardless of the reason for the entry into or the presence in the dwelling.

[27] I note that the Bench Book (May 2014 Amendments) does not specifically refer to the offence in section 419(4). That may be a matter for consideration by the Bench Book committee.

[28]      In the course of submissions, reference was made to offence provisions said to

support the appellant’s contentions (Dangerous Operation of a Motor Vehicle

simpliciter and Dangerous Operation of a Motor Vehicle causing Death or Grievous Bodily Harm) where the offences are dealt with separately in the

Bench Book (although the term ‘operates a motor vehicle’ requires reference in

the latter offence, to the direction in respect of the offence simpliciter).

[29] The meaning of a legislative provision requires a construction of the provision itself. Extraneous materials (such as I have referred to) may be of assistance but do not displace a proper construction of the words of the provision itself. Similarly, the Bench Book does not purport to cover every specific offence in the Code.

[30] In my view, a proper construction of section 419(4) is that it creates a separate

offence: that is one where the offender’s ‘intention’ when entering or whilst in

the dwelling is irrelevant because the offence per se will have been committed,
if section 419(4) is to apply.

The nature of the appeal

[31] The appeal is made pursuant to section 222 of the Act. It is conducted as a hearing de novo, on the evidence that was before the Magistrate: section 223 of the Act. I am required to review the evidence and draw my own inferences and conclusions and thereby determined the relevant facts in issue from the

evidence, giving proper deference to the magistrate’s view: Warren v Coombes

(1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; and Rowe v Kemper
[2008] QCA 175.

[32] In determining the appeal I may set aside, confirm or vary the appealed order: section 225(1) of the Act.

Determination

[33]     The Magistrate made sufficient and appropriate findings of fact. There was no error. His reasons were adequate and his reasoning process sufficiently clear to enable me to understand how he arrived at his findings and his decision.

[34] The appeal must fail on the agreed critical issue. Section 419(4) is a separate offence of burglary. Miles provides the answer to the principal issue in the appeal. Proof of a specific intent to commit an indictable offence is not an element of burglary charged in that subsection. Voluntary intoxication of the offender is irrelevant. However, an intent may have to be proved for the indictable offence charged, depending on the type of offence committed. It was open for the appellant to be convicted.

Costs

[35] The principal issue involved the construction of section 419 of the Code and was a determination of a matter of law. The appeal involved a matter that at first consideration was of some significance. I make no order as to costs.

Orders

1. Appeal dismissed.

2.         The conviction of the appellant in the Magistrates Court at

Charters Towers on 18 August 2015, is confirmed.

3. No order as to costs.