R v Ellis No. Sccrm-03-80

[2003] SASC 122

R v ELLIS
[2003] SASC 122

1. Court of Criminal Appeal: Duggan, Debelle and Lander JJ (Ex tempore) The appellant has appealed against conviction following his plea of guilty to a charge of criminal trespass in a place of residence contrary to s 170A of the Criminal Law Consolidation Act 1935.

2. The appellant was charged originally on an information alleging one count of aggravated serious criminal trespass in a place of residence, another count of assault with intent to resist lawful apprehension and a further count of being found by night in possession of implements of housebreaking.

3. He pleaded not guilty to the first count and guilty to counts 2 and 3.  A jury was empanelled and the trial proceeded on the first count.  During the trial, the appellant’s counsel indicated that the appellant was prepared to plead guilty to the lesser offence of criminal trespass in a place of residence.  The plea was accepted by the prosecution.  As the appellant was in the charge of the jury, the jury were directed to return a verdict of guilty of the lesser offence, which they did.

4. As the trial judge has indicated in his report to this court, he realised subsequently that an element of the offence of criminal trespass in a place of residence requires that a person be present in the premises at the time.  The premises in question consisted of a beach house and it is accepted that no-one was present in the house at the time of the entry by the appellant.

5. The learned trial judge advised counsel of the situation and then sentenced the appellant on counts 2 and 3.  No sentence was passed in respect of the criminal trespass charge.

6. An appeal against conviction following upon a plea of guilty may be allowed if the charge could not have been proved on the admitted facts.  The Director of Public Prosecutions has conceded that this is the situation in the present case and that the appeal should be allowed.  The Director of Public Prosecutions also concedes that, in the circumstances, it would not be appropriate to remit the matter to the District Court for any purpose.

7. Accordingly, the appeal will be allowed and the conviction on the charge of criminal trespass in a place of residence will be set aside.  There will be no further order.