R v Jackson - [2005] SASC 472

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACKSON
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Layton)
13 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - DWELLING, ETC
Appeal against conviction – appellant pleaded guilty to two counts of serious criminal trespass in a place of residence – appellant had entered and stolen from a unit – unit maintained by a charity for short term accommodation – whether unit was a place of residence – relevant principles – whether appellant entitled to withdraw plea of guilty – held, unit was a place of residence – appeal dismissed.
Criminal Law Consolidation Act 1935 s 169, s 170; Criminal Code Act 1899 (Qld) s 419; Copyright Act 1956 (UK) (repealed) s 12, referred to.
Stoke-on-Trent Borough Council v Cheshire County Council [1915] 3 KB 699, applied.
Attorney-General v Coote (1817) 4 Price 183; Australasian Temperance & General Mutual Life Assurance Society Co v Howe (1922) 31 CLR 290; British Motor Syndicate Ltd v Taylor & Son [1900] 1 Ch 577; Egmont National Park Board v Blake [1949] NZLR 177; Ex parte Breull; re Bowie (1880) 16 Ch D 484; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93; Fox v Stirk & Bristol Electoral Registration Officer [1970] 3 All ER 7; Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774; Henry v Boehm (1973) 128 CLR 482; Hillen & Pettigrew v ICI (Alkali) Ltd [1936] AC 65; Kardogeros v The Queen [1991] 1 VR 269; Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; O'Dowd v Police (1998) 198 LSJS 493; Phonographic Performance Ltd v Pontin's Ltd [1968] Ch 290; Price v Davies (2001) 120 A Crim R 183; R v Andrews [1943] SASR 44; R v Bennett (2004) 88 SASR 6; R v Brown [1996] AC 543; R v Bundy [1977] 1 WLR 914; R v Collins [1973] QB 100; R v Halloran & Reynolds [1967] QWN 34; R v Hammond (1852) 17 QB 772; R v King (1978) 19 SASR 118; R v Pauli (1991) 55 A Crim R 297; R v Smith and Jones (1976) 63 Cr App R 47; R v Stewart [1960] VR 106; Randwick Municipal Council v Rutledge (1959) 102 CLR 54; Robertson v Federal Commissioner of Taxation (1937) 57 CLR 147; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; Schwerzerhof v Wilkins [1898] 1 QB 640; Shell-Mex & BP Ltd v Clayton [1955] 1 WLR 982; Trustees of Wentworth Park v Glebe Municipal Council (1949) 17 LGR (NSW) 146; Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525; Wade v H J Heinz Co Aust Ltd [1982] VR 479; West v Coombes [1941] VLR 134, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"place of residence"

R v JACKSON
[2005] SASC 472
Court of Criminal Appeal: Debelle, Besanko and Layton JJ

DEBELLE J. The appellant pleaded guilty in the District Court to two counts of aggravated serious criminal trespass in a place of residence and two counts of theft from those premises. He was sentenced to a period of two years and eight months imprisonment. A non‑parole period of one year and eight months was fixed.
The appellant appeals by leave from his conviction. He seeks leave to withdraw his plea of guilty to the two counts of aggravated serious criminal trespass. He contends that the premises the subject of the charge were not a place of residence.
Once sentence has been pronounced, a convicted person has no right to withdraw a plea of guilty. However, the Court can entertain an appeal against conviction upon a plea of guilty but will do so only in exceptional circumstances. Those circumstances include where there has been a miscarriage of justice or where it appears the appellant did not appreciate the nature of the charge or did not intend to plead guilty to it or where, upon the admitted facts, he could not in law have been convicted of the offence charged: R v Stewart [1960] VR 106 at 108 ‑ 109; Kardogeros v The Queen [1991] 1 VR 269 at 274; R v Pauli (1991) 55 A Crim R 297 at 298; O’Dowd v Police (1998) 198 LSJS 493; Price v Davies (2001) 120 A Crim R 183. This Court may, therefore, set aside the conviction if the appellant could not in law have been convicted of the offence of aggravated serious criminal trespass.
The Statutory Offence
Section 170(1) of the Criminal Law Consolidation Act 1935 (“the Act”) provides that a person who commits a serious criminal trespass in a place of residence is guilty of an offence. Section 170(3) defines a “place of residence”. It is convenient to note all of the terms of s 170. It provides:
(1)A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2)A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if –
(a)     the person has, when committing the trespass, an offensive weapon in his or her possession; or
(b)     the person commits the trespass in company with one or more other persons; or
(c)     another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place.
Maximum penalty: 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.
Before examining the definition of “place of residence”, it is necessary also to note one other related provision.
Sections 168 - 170 were introduced into the Act in 1999 to replace the existing offences of burglary, entering a place of residence to commit an offence, and the offence of breaking and entering. For present purposes it is helpful to refer also to s 169. It is not necessary to refer to s 168.
Section 169 creates the offence of serious criminal trespass in respect of non‑residential buildings. It provides:
(1)A person who commits a serious criminal trespass in a non‑residential building is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2)A person who commits a serious criminal trespass in a non‑residential building is guilty of an aggravated offence if –
(a)     the person has, when committing the serious criminal trespass, an offensive weapon in his or her possession; or
(b)     the person commits the serious criminal trespass in company with one or more other persons.
Maximum penalty: 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 will be noticed that the definition of “non‑residential building” is any building other than a place of residence. The Act, therefore, establishes a dichotomy between residential and non‑residential buildings.
It is relevant to note that the penalty for a serious criminal trespass in respect of a place of residence is higher than in the case of a non‑residential building. Similarly, the penalty for an aggravated serious criminal trespass is also higher in the case of a place of residence. In addition, the circumstances which constitute an aggravated serious criminal trespass in the case of a place of residence include one element not present in the case of a non‑residential building, namely, that a person is lawfully present in the place of residence and the offender knows of the presence of that person or is reckless about whether anyone is in the place of residence.
The Subject Premises
The premises the subject of the charge form part of a complex which contains five residential flats. The premises are on Anzac Highway at North Glenelg. The Childhood Cancer Association owns two of those flats, one of which is the subject of the charge on which the appellant was convicted. Each is set up as a fully furnished flat available for families needing respite for children suffering from cancer. The premises are provided with linen, cutlery, crockery and cooking utensils. The premises the subject of the charge were not occupied at the time of the offending. They had in the past been occupied and were to be occupied the day after the offending.
Counts 5 and 6 of the information alleged aggravated serious criminal trespass in respect of the other flat owned by the Childhood Cancer Association and theft from that flat. That flat was occupied at the time. However, the appellant pleaded not guilty to those counts and the prosecution accepted the pleas of guilty to counts 1 to 4 in satisfaction of the information.
The issue is whether fully furnished premises available for use and occupation, but untenanted at the time of offending, constitute a place of residence within the meaning of s 170.
Before considering that question it will be helpful to note how courts have considered the expression “place of residence”. I will then examine the definition and consider its application to the facts in this case.
Place of Residence
The expression “place of residence” is not a legal or technical term but is to be given its meaning in ordinary usage: Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774 per Dixon J at 777. 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: cf Ex parte Breull; re Bowie (1880) 16 Ch D 484 at 486. What constitutes a place of residence is a question of fact; it is not a question of law: Australasian Temperance & General Mutual Life Assurance Society Co v Howe (1922) 31 CLR 290 per Higgins J at 329; Gregory v Deputy Federal Commissioner of Taxation (WA) (supra). It is a question of fact and degree: Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97, 101, 103; cf R v King (1978) 19 SASR 118 at 119 – 120, 123. 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 expressions “place of abode” and “place of residence” may in certain contexts be almost interchangeable: Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525 at 531. A residence may denote a degree of permanence. Similarly, the verb “reside” may mean to dwell permanently or for a considerable time: Oxford English Dictionary and Macquarie Dictionary.
However, it would be wrong to conclude that there is a settled meaning for the expression “a place of residence” or that the expression “a place of residence” applies only to a permanent place of residence. The expression is capable of various shades of meaning. The words “reside”, “resident” and “residence” have been used in a variety of statutory contexts. They include revenue laws, laws relating to voting entitlements, planning laws, housing laws, social security laws, workers’ compensation legislation, and even copyright legislation. An examination of those decisions discloses that there is no fixed meaning for either the word “residence” or the expression a “place of residence”.
The place of residence of a person is the place where he eats, drinks and sleeps: Stoke‑on‑Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706 per Ridley J; see also R v Hammond (1852) 17 QB 772, (1852) 117 ER 1477. 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 [1977] 1 WLR 914, although that decision demonstrates that a car might not be a place of abode when it is in transit. Plainly, a place of residence may be constituted by a dwelling. It is also constituted by a flat in a residential flat building or a home unit: R v Andrews [1943] SASR 44 at 46. 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).
Although the definition of “place of residence” in s 170(3) includes a wide variety of premises, the section says nothing as to the question whether the premises must be occupied at the time. Nor does it address the question of how long a person must live in a particular place in order for it to constitute a place of residence.
There will be instances where the statutory context requires a degree of permanence: see, for example, Henry v Boehm (1973) 128 CLR 482 per Barwick CJ at 487 and per Gibbs J at 496 – 497; Re Adoption Application [1951] 2 All ER 931. In other statutory contexts, however, a degree of permanence may not be required. The law recognises, for example, that a person may have more than one residence: Attorney‑General v Coote (1817) 4 Price 183 at 188, 146 ER 433 at 435; Robertson v Federal Commissioner of Taxation (1937) 57 CLR 147; Gregory v Deputy Federal Commissioner of Taxation (WA) (supra) where the taxpayer was held to reside at both Broome and Darwin; and Fox v Stirk & Bristol Electoral Registration Officer [1970] 3 All ER 7 where it was held that, during term, a university student might have a place of residence at a university college or other accommodation in a university town and also have a residence at his parental home: see also R v Lomas [1998] EWCA Crim 2841. It is not unusual for a person to have a town house and a holiday house elsewhere and both will be a place of residence.
A corollary of the fact that a person may have more than one place of residence is that a person’s place of residence will continue to be a place of residence notwithstanding long periods of absence: Egmont National Park Board v Blake [1949] NZLR 177 at 181; Fox v Stirk (supra).
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 CodeAct 1899 (Qld) as it stood in 1967: R v Halloran & Reynolds [1967] QWN 34. 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. One example of how the statutory context will apply to persons occupying premises for short periods of time is Phonographic Performance Ltd v Pontin’s Ltd [1968] Ch 290. The Copyright Act 1956 of the United Kingdom (now repealed) by s 12(7) afforded protection for infringement of copyright where, among other things, sound recordings were caused to be heard in public at any premises where persons reside or sleep, as part of the amenities provided to them. Cross J held that the word “reside” in that context applied to visitors to a holiday camp.
Generally speaking, temporary residence at an address does not make a person resident there. As Lord Denning MR noted in Fox v Stirk, a guest who comes for a weekend is not a resident. A short‑stay visitor at one’s dwelling is not a resident. But, non constat that a place which people may stay for a short period of time is not a place of residence. So, as already noted, a room in a motel occupied by a person for a period of one week was a dwelling house for the purpose of s 419 of the Criminal Code Act 1899 (Qld): R v Halloran & Reynolds (supra). In Wade v H J Heinz Co Aust Ltd [1982] VR 479 it was held that “place of residence” in the Workers Compensation Act 1958 (Vic) included the place to where the worker intended to go to spend a night and from which the worker intended to depart to travel to work next day, notwithstanding that it was a place which was different from her usual place of abode.
However, in West v Coombes [1941] VLR 134 Gavan Duffy J held that an airman in camp at one town who had spent a few days leave at his sister’s house did not reside in that house. The issue was whether the airman who was returning to the camp was a bona fide traveller for the purposes of the Licensing Act 1928 (Vic) and whether his place of residence was more than 20 miles from the hotel at which the airman had been served liquor. It was held that he was because his place of residence was the camp (which was more than 20 miles distant from the hotel) and not his sister’s house (which was not). This decision illustrates how the statutory content can be very relevant. Thus, place of residence does not necessarily mean the place where a person normally resides, that is to say, that person’s home. The expression “place of residence” will include a person’s home as well as any other building or part of a building set up for residential occupation and occupied for a short period for residential purposes.
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. They demonstrate also that there is a wide variety of circumstances in which premises might constitute a place of residence. Premises may be a place of residence even if the occupation is for a short period of time. Much will depend on the statutory context and the intent and purpose of the legislation. The definition in s 170(3) of the Act recognises the wide variety of premises which might, according to circumstance, constitute a place of residence. There is no issue in this appeal as to the nature of the premises. Plainly, they are constructed for use as residential premises and are, in fact, used from time to time as a place in which persons reside. The question is whether, by reason of the fact that the premises were not tenanted at the time of the offending, the premises were not a place of residence as defined by s 170(3).
“Used as a Place of Residence”
One of the difficulties with the definition in s 170(3) is its circularity. The difficulty may be illustrated by limiting the definition to the case of a building. The definition says no more than “place of residence means a building … or part of a building … used as a place of residence”. It defines “place of residence” by reference to the fact that it is a building or part of a building and by reference to the mode of use of the building or part of the building. Section 170(3) proceeds on the footing that it is possible to say at the time of the alleged offending whether or not the building is used as a place of residence. However, the definition begs the question of what is meant by “used as a place of residence”. It is necessary, therefore, to determine by what criteria the decision can be made whether premises are used as a place of residence.

Mr Braithwaite submitted that the furnished flat in this case was not a place of residence because, at the time of the offending, it was not occupied by tenants and so was not then being used as a place of residence. He submitted that the flat could not be a place of residence unless at the time of the offending it was occupied by either a tenant or the owner. The effect of that submission is that premises used for residential purposes might satisfy the definition of residential purposes on one day but not on another, notwithstanding there had been no change in the character of the premises and no change in the purpose for which the premises were being used. The submission is expressed in terms which are too absolute. There will be occasions when premises constructed for residential purposes are not so used, for example, when converted to another use or when dilapidated or uninhabitable. However, for the reasons which follow, Mr Braithwaite’s submission does not have the universal application for which he contends.
The effect of Mr Braithwaite’s submission is to seek to insert the word “occupied” into the definition in s 170(3) so that it would read:
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used and occupied as a place of residence.
There is no justification for inserting those words. Had Parliament intended that meaning it could readily have employed the expression “used and occupied”. Furthermore, to construe s 170(3) in that way is, I think, to defeat the intention of the Parliament which has created a dichotomy between residential and non‑residential premises.
The resolution of the issue lies, I think, in the word “used” in the definition of “place of residence”. The primary meaning of the verb “to use” is to employ for some purpose: Shorter Oxford English Dictionary and the Macquarie Dictionary. In British Motor Syndicate Ltd v Taylor & Son [1900] 1 Ch 577 at 583 Stirling J said:
The first meaning assigned to the word “use” in Johnson’s Dictionary is “to employ to any purpose”; it is therefore a word of wide signification.
That passage was approved by Lord Evershed MR speaking for the Court of Appeal in Shell‑Mex & BP Ltd v Clayton [1955] 1 WLR 982 at 1004. In R v Brown [1996] AC 543 at 548 Lord Goff said:
Synonyms of the verb “use” are to “make use of”, or to “employ for a purpose”.
At 562 Lord Hoffmann agreed with that reasoning. The meaning of “to use” has been adopted in Australia where it has been described as a word of wide import: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 per Taylor J at 515; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 per Gibbs ACJ at 637 and per Stephen J at 651. Its meaning will, of course, depend on its statutory context and the purpose of the legislation: Newcastle City Council v Royal Newcastle Hospital (supra) per Taylor J at 515; Ryde Municipal Council v Macquarie University (supra) per Stephen J at 651; North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1989) 67 LGRA 247 per Kirby J at 248 – 249, 252 – 253.
When determining whether a building is used for residential purposes, it is necessary, therefore, to examine for what purpose the premises were employed at the time of the offending. The approach taken by Sugerman J in Trustees of Wentworth Park v Glebe Municipal Council (1949) 17 LGR (NSW) 146 at 149 is apposite. In that case, Sugerman J had to decide whether land was used for public recreation. He expressed the test in these terms:
As the law now stands, I think that the question which I must ask myself with respect to the subject land is whether, having regard to what has been done with and on it in the past and to what it is intended should be done with and on it in the future, to the structures and improvements existing upon it, and to the provisions of the agreement affecting it, it may justly be described as “land which is used for public recreation”. The precise point of time as at which I ask myself this question does not matter in the present case, for it is not suggested that any material change has occurred during either of the relevant years.
That test is very similar to that identified by Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 88 where it was necessary for the Court to determine whether the trustees of the land used as the Randwick Race Course were using it in a manner which exempted the land from rating. His Honour said that the test was to “consider how in fact it [the land] is used and has been used”. As Sugerman J noted, in some cases it will be necessary to examine the intent of the owner or occupier of the land or building. For example, where the subject premises are advertised for sale, it might be necessary to know if they are being sold for use as a place of residence or for some other purpose. In Randwick Corporation v Rutledge it was unnecessary to examine the intent of the trustees because the future use of the land was not in issue. I respectfully suggest that, if there had been an issue as to the future use, Windeyer J would have adopted the test propounded by Sugerman J. However, here as in Randwick Corporation v Rutledge, there is no issue as to the future use of the building. It is acknowledged that from time to time the premises of the Childhood Cancer Association will be used for residential purposes on those occasions when they are tenanted.
The use in the definition of the past participle “used” requires regard to be had to the question how the premises have in fact been used, that is to say, to examine for what purpose they have in fact been employed. The determination of that question requires regard to be had not only to the actual use of the premises but also to the purpose or intent of the owner of the premises. In the case of premises owned and occupied by the same person and used for residential purposes, clearly the intent is that the premises will be used as a place of residence. In the case of premises owned by one person but made available for use by others, the premises might be let for a rental or some other fee or, as here, provided free of charge but, notwithstanding the different terms on which the premises might be occupied, the purpose is the same, namely, to make the premises available for residential use. I repeat. The question is for what purpose are the premises used? As long as the owner of the premises has the purpose of making the premises available for residential purposes, the premises will be employed for residential use.
In some instances, the intention of the owner might not be relevant. For example, vacant non‑residential premises might be used as a place of residence by squatters. That only serves to emphasise that each case must be examined on its own facts. The important point is that, notwithstanding that the intent or purpose of owners of residential premises might vary as to the reason for making the premises available for residential purposes, those owners do in fact make them available for residential purposes, that is to say, the premises are employed for a residential purpose.
For these reasons, I think that, when determining whether premises are used as a place of residence at the time of the offending, it is necessary to consider whether the premises are a building or structure or part of a building or structure, then to consider how they are set up, and finally to consider for what purposes the premises were being used at the time of the offending. When considering that last question it will be necessary to enquire for what purposes the premises had been employed in the past and for what purpose the premises were being employed at the time of the offending. In some cases it might be necessary to consider for what purpose it is intended to employ the premises in the future.
In this case, the Childhood Cancer Association owns these premises with the intent of making them available for short‑term occupancy by parents of children suffering from cancer. The premises are constructed as residential premises and are fully furnished for use as residential premises. The premises have in the past been used by the Association for this residential purpose and it is the present intent of the Association to continue to use them in this way. In other words, at all material times, the Association has employed these premises for the purpose of providing a place of residence for those whom it permits to use them. On any view the premises are, therefore, a place of residence within the meaning of s 170(3) of the Act.
The conclusion may be tested this way, one begins with the fact that a person will be guilty of a serious criminal trespass contrary to s 170(1) if he enters, say, a dwelling which is occupied by the owner, notwithstanding that the occupier of the dwelling is absent for some hours. The next step is the example of a person owning and occupying two dwellings, one used as a town house during the week, and the other which is out of town and used at weekends or on other occasions. Each is used as a residence, albeit at different times. The clear intent of the legislation is that, if the person unlawfully entered the town house while the owner was spending a day or two at the other house, that person would be guilty of a serious criminal trespass notwithstanding that the town house was unoccupied for a day or two. Mr Braithwaite properly acknowledged that in both instances the person making the unlawful entry would be guilty of a serious criminal trespass.
Similarly, where a married couple owns and occupies a dwelling which is their only place of residence and while the couple is travelling overseas for a period of, say, six months and an unlawful entry is made, that unlawful entry will constitute a serious criminal trespass of that dwelling notwithstanding that it was vacant while the couple were travelling overseas. That is the clear intent of the Act.
In each of these three instances the dwelling is being used as a place of residence, notwithstanding that the owner who is also the occupier is absent for either a short or long period of time. In each case the owner/occupier intends returning to the dwelling after that period of absence. In each case, the building satisfies the definition of a place of residence because it is a building used or employed for the purpose of residential premises. In order to determine how premises are used one does not simply consider how they are being used at a particular hour or on a particular day. Instead, regard is had to how the premises have been used over a period of time and, when necessary, the intention of the owner and the occupier as to the future use of those premises. So, when determining whether premises are a place of residence, regard will be had as to how the premises have been used and to the intention of the owner or occupier of the premises as to their future uses. There will, of course, be instances when premises used as a place of residence will no longer be used for that purpose. For example, a dwelling might be sold for use as a shop, an office, a consulting room or for some other purpose. In cases of that kind, it will be necessary to have regard to intention.
This conclusion might also be tested by considering what directions might have to be given to a jury if, in a trial, there was an issue whether the premises were a place of residence. The jury would be directed in the manner which reflected the test identified earlier in these reasons. They would be directed that, when considering whether a building is a place of residence within the meaning of s 170(3), they should first determine whether they are satisfied that the premises are a building or part of a building. They should then have regard to the purpose for which the premises have been used or employed and the manner in which they were used or employed at the time of the alleged offending. In some cases, for example, where a dwelling has been sold and the unlawful entry occurs in the interval between the vendor quitting the dwelling and the purchaser occupying it, it might be necessary for the jury to consider the intended future use of the building. If they are satisfied that the premises have been used or employed and are being used or employed for residential purposes, they would be entitled to find that the premises are a place of residence.
This conclusion is consistent with the ordinary meaning of the expression “a place of residence”. In ordinary usage a place of residence is premises where people reside for long or short periods of time. Premises used as a place of residence do not change in character because the premises are occupied by the owner or occupied by a tenant. Nor does the character of the premises change if they are untenanted or unoccupied for a period of time. In some cases, the fact that no person occupies the premises might be relevant. For example, in a case of residential premises which have become dilapidated and uninhabitable, the fact that they are not occupied might be a relevant fact in determining whether they are residential premises. However, generally speaking, a lack of occupation for a period of time does not alter the character of the premises. The position is no different from other kinds of uses of land. For example, a shop or hotel will remain a shop or hotel notwithstanding that for a time the premises might not be occupied. So in Schwerzerhof v Wilkins [1898] 1 QB 640 the question was whether, at the time when an Act of Parliament commenced operation, premises were used as a bakehouse. They had long been used as a bakehouse but were vacant at the commencement of the Act because the tenant had left and the owner had advertised them for lease as a bakehouse. It was held the premises were a bakehouse. At 641 – 642 Wright J said:
Here, however, the premises had been used as a bakehouse until October, 1895. Then the tenant goes out, and the landlord puts the place in repair as a bakehouse, and advertises it to be let as a bakehouse. I cannot think that in law there was any interruption of its use as a bakehouse. It is clear that the mere fact of a change of tenancy would not operate as such an interruption. If one tenant had immediately succeeded to another no question could have arisen. No doubt in one sense it is a question of degree, and that of course is a question of fact; but the question of law here is whether, on the facts as found by the learned magistrate, there was an interruption of the use of the premises as a bakehouse. I do not think that there was.
If pressed to its ultimate conclusion, Mr Braithwaite’s submission might lead to absurd results. In the case of premises which are let by a landlord, the period between tenancies could be very short. For example, during the summer months a house at a popular seaside resort might be continuously let to a number of different tenants. In some instances, the interval between tenancies might be a matter of an hour or two. During the interval between tenancies, the character of the building remains the same. The premises continue to be used for residential purposes notwithstanding the short interval between tenancies. The owner intends to let them for residential purposes and the tenant intends to occupy them for residential purposes. It is manifestly absurd to conclude that the premises are not used as a place of residence during the interval between tenancies, whether that interval be an hour or two, a matter of days, or an even longer period.
The test suggested above may be applied in other factual situations. For example, the owner of a dwelling which has been occupied as a residence might have sold it to a purchaser who intends to continue to use it as a dwelling. The vendor and purchaser complete the contract and the vendor vacates the premises. In the interval between the vendor vacating the premises and the purchaser occupying them, a person unlawfully enters the dwelling. It is apparent that the premises continue to retain their character as a place of residence in the interval between the two occupancies.
One question which was not argued is whether newly constructed premises, which are intended to be used as a place of residence but have not been occupied as such, will be a place of residence within the meaning of s 170(3). Consider the position where a person has contracted with a builder to construct a dwelling and, after the builder has completed construction and locked the dwelling, but, before the owner has occupied the premises, a person unlawfully enters the dwelling. The definition of a “place of residence” in s 170(3) requires that a building has been used as a place of residence. It is a nice question whether a newly constructed dwelling has in fact been used for residential purposes if the owner has not occupied them or slept in them. It is unnecessary to decide that issue here. It cannot, I think, be assumed that those facts constitute an offence against s 169 because the premises might not be a non‑residential building within the meaning of s 169(3). If there is a hiatus, it should be amended by the Parliament.
The issues in this appeal concern only buildings or parts of buildings used for residential purposes. Different considerations might apply in the case of a vehicle or vessel used for residential purposes. For example, a yacht might, when moored, be used as a place of residence but might not be so when engaged in racing. As already noted, although a motor car might be a place of residence when it remains at one site, it might not continue to be so when in transit: R v Bundy (supra). A vehicle constructed as a mobile home would constitute a place of residence and remain so, even in transit. But assume, say, a radio is stolen from a vehicle constructed as a mobile home, whether new or used, which is located in the yard of a dealer in new and used motor vehicles. Is the vehicle a place of residence while located in the yard? A number of questions may exist which are particular to vehicles and vessels. It is not necessary to resolve them now. The particular difficulties which might arise in the case of vehicles and vessels used as a place of residence should be examined if and when they should arise.
For these reasons, the premises which were entered by the appellant were a place of residence. He was, therefore, properly convicted. The appeal must be dismissed.
BESANKO J. In my opinion, this appeal should be dismissed. I agree with the reasons for judgment of Debelle J.
LAYTON J. The relevant facts are set out in the reasons of Debelle J. I agree with the conclusion of his Honour that the appeal should be dismissed. My approach to the interpretation of the legislation differs in some aspects from Debelle J and I therefore publish separate reasons.
The essential point raised on the appeal is the interpretation of s 170 of the Criminal Law Consolidation Act1935 (SA) (“the Act”) and particularly the meaning of the definition of “place of residence” contained in s 170(3) of the Act and its application to the facts.
Contentions of the parties
The major contention of the appellant in seeking to withdraw from the plea of guilty is that the building to which the appellant had gained access by deceit was not occupied by any person at the time when access was obtained and therefore it was “not being used as a place of residence” within the meaning of s 170(3) of the Act. It was submitted that this was a question of law.
It was conceded by counsel for the appellant that the flat owned by the Childhood Cancer Association was capable of being a place of residence, but it was not at the time of the alleged offence used as a place of residence as it was unoccupied. However, it was not argued that a person had to physically be present in the flat at the time of the offence.

In stating the arguments of the appellant it immediately becomes apparent that words other than those in the section were being added. I agree with the observation made by Debelle J in his reasons that the contention of the appellant is effectively seeking to insert the word “occupied” into the definition so that the requirement for the offence becomes that the place be “used and occupied” as a place of residence, when that insertion is unwarranted.
The contention of the DPP is that the expression “used as a place of residence” is protean, should not be the subject of rigid judicial definition and should be treated as a question of fact and degree. It was submitted that the section did not require the place to be actually occupied at the time, but that it must be “lived in”.
The legislation
Section 169 of the Act sets out the offence of serious criminal trespass in a non-residential building as follows:
(1)A person who commits a serious criminal trespass in a non-residential building is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2)A person who commits a serious criminal trespass in a non-residential building is guilty of an aggravated offence if –
(a) the person has, when committing the serious criminal trespass, an offensive weapon in his or her possession; or
(b) the person commits the serious criminal trespass in company with one or more other persons.
Maximum penalty: 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.
Section 170 of the Act provides:
(1)A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2)A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if –
(a)     the person has, when committing the trespass, an offensive weapon in his or her possession; or
(b)     the person commits the trespass in company with one or more other persons; or
(c)     another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place.
Maximum penalty: 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.
Question of fact
I agree with Debelle J that what constitutes a “place of residence” is a question of fact and not a question of law. However, to state this proposition does not mean that the phrase “used as a place of residence” and its meaning in the context of the section is solely a matter of fact. There were many issues and uncertainties raised in the course of the argument during the appeal which suggest that legal clarification of the meaning of the phrase is necessary. The application as to whether a place is “used as a place of residence” in a particular case will be a matter of fact and degree in the circumstances of each case.
“Used as a place of residence”
As the many cases referred to by Debelle J indicate, the phrase “place of residence” has been discussed in many different types of legislation and in many contexts, most of which have not been criminal.
In this case there are two distinguishing features.
Criminal offence
The first distinguishing feature is that the phrase under consideration forms the basis for a criminal offence and the legislation draws the distinction between an offence committed in “a place of residence” (s 170) as distinct from an offence committed in a “non - residential building” (s 169). Sections 169 and 170 of the Act were inserted by Act No 80 of 1999 and replaced the offences of burglary and break and enter. Prior to Act No 84 of 1994, the offence of burglary was committed when a person broke into and entered a “dwelling-house”. In 1994 the word “dwelling-house” was replaced by “place of residence”.
The penalties for ss 169 and 170 differ. The offence of criminal trespass committed by an accused in respect of a non-residential building (s 169 (1)) attracts 10 years imprisonment. The offence of criminal trespass committed by an accused in respect of a place “used as a place of residence” (s 170(1)) attracts 15 years. The offence of aggravated criminal trespass in respect of a place “used as a place of residence” (s 170(2)) attracts imprisonment for life. The amendments and the increase in penalties for offences committed in respect of trespass of a place of residence reflect a legislative response to community concerns about “home invasion.”[1] There is a 50 per cent increase in penalty for committing an offence under s 170 (1) in comparison with s 169. The offence of aggravated criminal trespass indicates a penalty of an extremely high order, namely life imprisonment.
[1] South Australia, Criminal Law Consolidation (Serious Criminal Trespass) Amendment Bill, Second Reading Speech, House of Assembly, Thursday 18 November 1999, 559.
In addition, I note that s 169, which creates the offence in relation to a “non-residential building”, is limited to “a building or part of the building” that is not a place of residence. The section does not refer to other places identified in the definition of “place of residence” in s170; namely “structure, vehicle or vessel.” My conclusion from this difference in the definitions is that the words “structure, vehicle or vessel” in the context of s 170 have real significance in demonstrating the broad scope of what is a place of residence. However, this difference in the wording between the two sections also means that a “structure, vehicle, or vessel” which is non-residential is not caught by either s 169 or s 170 and no trespass offence would be committed.
Therefore, whether a place is “used as a place of residence” has great significance as to the nature and seriousness of the offence and the consequential penalty. The difference depends fundamentally upon the characterisation of the building, structure, vehicle or vessel which has been trespassed.
Since the definition forms the essential foundation of a criminal offence, it is important that a “building, structure, vehicle or vessel” or part thereof (hereinafter referred to as “the place” in lieu of repeating the words in the section each time) which is “used as a place of residence” is able to be differentially identifiable from a “non–residential” building at the time of the offence. It is in my view inappropriate for a person to be convicted of either the more serious offence or aggravated offence under s 170, if the place is not able to be differentiated and identifiable as “used as a place of residence” until after the accused has entered the place, or even until subsequent investigations.
It is fundamental to ordinary principles of criminal law that an accused should know the facts which comprise the offence at the time when the offence is committed; or to state that proposition in traditional terms, the mens rea of an offence should occur at the same time as the actus reus.
In the context of s 170, trespass at criminal law requires not merely the actus reus of reckless or negligent entry of a place which is “used as a place of residence” without consent; it also requires the mens rea that the accused know the facts or be reckless as to the facts which make the entry a trespass of a place which is “used as a place of residence”. This proposition is analogous to the accepted requirement that in relation to the element of trespass which requires that the entry be without consent, no offence is committed if the accused did not know the facts which enabled the accused to realise that he/she was acting in excess of any permission or was reckless as to whether he/she was exceeding permission.[2]
[2] R v Collins [1973] QB 100; Hillen and Pettigrew v ICI (Alkali) Ltd [1936] AC 65; R v Smith and Jones 63 Cr App R 47 as cited in Archbold Criminal Pleading Evidence & Practice (1998) [21-116] 1668.
A similar point has been made by the Full Court in R v Bennett and Others,[3] in which Doyle CJ, with the concurrence of Perry and Gray JJ said at [28]:
It is consistent with principle to treat s 170 (1) of the Criminal Law Consolidation Act 1935 (SA) as requiring proof that the person charged knew that he or she was a trespasser, or was recklessly indifferent as to whether he or she was a trespasser. The section creates a serious criminal offence. Parliament should not be taken to have intended to punish merely unknowing or careless conduct that amounts to a trespass at law. The law is complex in some respects. Requiring proof that the person charged knew that a trespass was occurring, or was reckless as to that, will help ensure that the application of the section is appropriate. As well, High Court authority dealing with a somewhat similar provision indicates that the state of mind of the accused should be treated as an element of the offence: Barker v The Queen (1983) 153 CLR 338 at 344, 348, 361, 365-356.
[3] (2004) 88 SASR 6.
Consequentially, it seems to me that no offence is committed if an accused did not know the facts which enabled the accused to realise that the place which he/she was entering was “used as a place of residence” or was reckless as to whether the place he/she was entering was “used as a place of residence” as distinct from it being a “non-residential” place.
In summary on this point, the legislative policy at the heart of the offence is to differentiate between, on the one hand, the trespass of a place used as a special place of comfort and refuge and which may well be occupied at the time of an offence, and, on the other, a building or structure which does not have that special feature. This special feature should be capable of being differentiated before the point of the commission of the offence. The trier of fact must be satisfied beyond reasonable doubt that the accused either knew or was reckless as to whether the place was “used as a place of residence”, as distinct form a “non-residential” place before the offence is made out.
Structure and not the user
A further distinguishing feature between the phrase in the context of this legislation and its use in other legislation or other situations, is that the definition of “place of residence” is focused on the characteristics of the place itself, and not on the characteristics of any user of the place. Many other contexts of defining a “place of residence” have concerned whether a particular person did or did not have a place of residence and if so where. In such cases the “place of residence” has been interpreted more narrowly in the nature of a dwelling-house of the person.
In this case, the breadth of “place of residence” is indicated by the scope of the words “building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel”. It was submitted by the DPP that the use of the phrase “place of residence” has a broader connotation than “dwelling-house”, in that the latter suggests a greater degree of settled occupation. I think this is correct. The definition in the context of it being an offence as to property is not concerned with whether any person is present, or who uses the place, or for how long the place is used. Who, when and for how long a person(s) uses a place becomes relevant only in relation to the aggravated offence in s 170(2)(c). It is otherwise not necessary to consider whether a person permanently or temporarily resides at such a place, as this is a characteristic of the person(s) using the place rather than a characteristic of the place itself.
The Court heard detailed arguments as to whether the place was “used as a place of residence” if a person has either bought a house or entered into a lease to rent a house, but had not taken up residence. Another example was if a person bought or rented a house and after a period of occupancy left the house for an extended period, whether the place was still “used as a place of residence” during the person’s absence. In my view these examples focus on actual occupancy by a user and not on the characteristics of the place itself and its use.
Characteristics of use
I agree with Debelle J that the starting point is that a “place of residence” is where a person eats, drinks and sleeps.[4]
[4] Stoke-on-Trent Borough Council v Cheshire County Council [1915] 3 KB 699, 706; R v Hammond (1852) 17 QB 772; (1852) 117 ER 1477.
A place is “used as a place of residence” if, at the time of the offence, it has characteristics of use as a place where a person eats, drinks and sleeps.
The definition of “place of residence” has circularity because the phrase which is being defined, “place of residence”, includes the same phrase in its definition, “used as a place of residence”. This apparent circularity is overcome if one considers the whole of the phrase “used as a place of residence” instead of regarding the words “used as” separately from the rest of the phrase “place of residence”. There is no need to separately consider whether the place “was used”, or “will again be used”, so long as at the time of the offence there are characteristics of use as a place where a person eats, drinks and sleeps.
A place has the characteristics of being “used as a place of residence” if the usual purpose or common use of such a place is that it is a place where a person eats, drinks and sleeps. Examples would be a place such as a house, hotel, motel, hospital, hostel, shack, caravan, yacht or camping tent.
In addition, a place may commonly have multiple purposes or uses such as a car, combie-van, boat, shed, or a room in a larger building, but at the time of the offence the place may have the characteristics of use as a place where a person eats, drinks and sleeps, having regard to the facts and circumstances which render the place identifiable as “used as a place of residence” at the time. For example,
§where it is situated (eg in a park, or on private land); and
§what it has on it or immediately around it, such as window coverings, furniture, bedding, domestic or household items etc.
In addition, the provisions of s 170(2)(c) suggest that if a place was actually known by the offender as being a place which was used by a person to eat, sleep and drink, this special knowledge would also bring the place within the definition.
Qualifications
Even though the place is a house, caravan, shack or similar, as set out above, and would prima facie be identifiable as “used as a place of residence”, there may be other characteristics which indicate that it was not “used as a place of residence” at the time of the offence. For example by reason of other facts and circumstances, for example,
§where it is situated (eg in a car yard, or in a show room);
§its condition (eg clearly dilapidated or uninhabitable or abandoned).
In this situation the place would not fit within the descriptor of “used as a place of residence”.
A place “used as a place of residence” for the purposes of this section does not include a moving place, such as a caravan being towed, a car being driven, or a boat sailing. The indication in ss 169 and 170 by the use of the words “building, structure, vehicle or vessel” is that the place must be stationary at the time of the commission of the offence in order for it to be “used as a place of residence”, as distinct from being used as a means of transportation.
Summary
In summary, it is necessary for the prosecution to prove beyond reasonable doubt that the accused has trespassed in a place which the accused either knew was used or was reckless as to whether it was used as a place of residence. This will be a matter of fact and degree in the circumstances of the case. Indicia as to whether an accused knew or was recklessly indifferent as to whether it was used as a place of residence would include:
·the usual purpose for such a place;
·the common usage of such a place;
·the overt characteristics on and around the place;
·actual knowledge by the accused of such use of the place.
The commission of an offence under s 170 (1) does not depend on whether a person was actually present in the place at the time of the offence. It does not depend upon whether the place is used permanently, temporarily, occasionally or from time to time as a place where a person eats, drinks and sleeps. It does not depend on whether a place is used for holidays, or leased; whether or not persons have a current lease, or arrived at or left the place; or whether the place is in between being occupied by a different person.
It is inappropriate for there to be strict liability so that an accused is guilty of the offence simply by the prosecution proving that the place was in fact used as a place of residence at the time of entry.
There will no doubt be a myriad of circumstances which may be conjured up or which may in fact occur, particularly where the place is one which is not commonly used as a place of residence, which may make the distinctions between the two types of places in ss 169 and 170 borderline. Such cases will be heavily dependent on the particular facts and circumstances, bearing in mind the overall legislative policy.
Application to the facts of this case
In this case, the appellant deceitfully entered a building which was identifiably used as a place for a person to eat, drink and sleep, as this was its common usage and purpose. In addition, the appellant had actual knowledge of this use at the time of the commission of the offence. In fact, the trespass was committed for the purpose of stealing goods which are used by persons who eat, drink and sleep in the place. It is irrelevant that the appellant had grounds to think that at the time of the offence the building was not currently occupied. This was a clear infringement of the section.
I agree that the appeal should be dismissed.