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R v Jackson

R v Jackson

Case [2005] SASC 472 13 December 2005

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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Criminal Law Consolidation Act 1935 s 169, s 170; Criminal Code Act 1899 (Qld) s 419; Copyright Act 1956 (UK) (repealed) s 12, referred to.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jackson

Details

AGLC: R v Jackson [2005] SASC 472
Case: [2005] SASC 472
Decision Date: 13 December 2005

CaseChat Overview and Summary

The appeal in the matter of R v Jackson involved the appellant who had pleaded guilty to two counts of serious criminal trespass in a place of residence. The appellant had entered and stolen from a unit that was maintained by a charity for short-term accommodation. The central issue in the appeal was whether the unit qualified as a place of residence under the relevant legislation, and whether the appellant was entitled to withdraw his plea of guilty. The case was heard in the court of appeal, which was tasked with examining the particulars of the case and the statutory definitions applicable to the offence of serious criminal trespass.

The legal issues central to this appeal revolved around the interpretation of the term "place of residence" within the context of the statute. The court needed to determine whether the unit, which served as temporary accommodation, met the criteria for being classified as a place of residence. Additionally, the court had to consider whether the appellant's plea of guilty could be withdrawn given the circumstances of the case. The appeal hinged on the specific facts and the legislative intent behind the definition of a place of residence.

In delivering the judgment, the court found that the unit in question was indeed a place of residence. The unit was used for purposes of eating, drinking, and sleeping, which are activities typically associated with residential accommodation. The appellant's knowledge of the unit's use at the time of the offence further supported this classification. The court held that the legislative policy aimed to protect the sanctity of places where individuals carry out basic residential activities, and the unit clearly fell within this scope. Consequently, the appeal was dismissed, and the appellant's conviction was upheld.

The court's final orders confirmed the dismissal of the appeal and upheld the appellant's convictions for the two counts of serious criminal trespass in a place of residence. The court's reasoning underscored the importance of the legislative intent to safeguard residential spaces, irrespective of the temporary nature of the accommodation.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J BESANKO J LAYTON J

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Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J, BESANKO J, LAYTON J

Full text does not contain this section.

Citations

AGLC Citation

R v Jackson [2005] SASC 472

Most Recent Citation

CHATTERTON v Police [2011] SASC 137

Cases citing this decision · 6 of 6 shown

Blair v Police
[2022] SASC 132 Para 13

…se “place of residence” in section 170 is as set out by Debelle J (with whom Besanko J agreed) in R v Jackson [13] in the following passage: [13] [2005] SASC 472, (2005) 93 SASR 373. The expression “place of residence” is not a legal or technical term but is to be given its meaning in ordinary usage. In addition,…
Taylor v Commissioner of Police
[2017] QDC 23 Para 1

…ons by Debelle J, in R v Jackson ,[18] also exemplify the problematic nature of a similarly terse reference to the term “place of residence”: [18][2005] SASC 472, at [16]-[18].…
Hammond v Commissioner for Act Revenue
[2015] ACAT 12

…WADT 154 Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307 Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41 R v Jackson [2005] SASC 472 Re Alcan Australia Limited: Ex Parte Federation of Industrial Manufacturing & Engineering Employees [1994] HCA 34 Re Islam (2010) 4 ACTLR 235 Sons of…
Betts & Anor v Commissioner of State Revenue
[2013] QCAT 283 Para 22

…f the Supreme Court of South Australia) and Jackman v Commissioner of Land Tax [14] , a ruling of the Queensland Land Court. [13] (2005) 93 SASR 373; [2005] SASC 472. [14] [2010] QLC 3.…
CHATTERTON v Police
[2011] SASC 137 Para 17

…esidence for the purposes of s 170A(2) of the Act. She stated that whether the balcony is part of the residence is a question of fact. In R v Jackson [2005] SASC 472, Debelle J stated at [12]: [12]The expression “place of residence” is not a legal or technical term but is to be given its meaning in ordinary usage:…
SZMWQ v Minister for Immigration
[2009] FMCA 1197 Para 4

…ething of a settled character: Re Chief Commissioner of State Revenue and Ferrington (2004) 57 ATR 170 at 178 [30]; R v Jackson (2005) 93 SASR 373 at 378ff [12]ff.…

View all 6 citing cases →

Cases cited in this decision · 24 of 24 shown

The Queen v King
[2009] NZCA 194 Para 12

…er 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 b…
R v Bennett
[2004] SASC 52 Para 15

…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.…
Price v Davies
[2001] WASCA 81 Para 3

…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…
Barker v The Queen
[1983] HCA 18 Para 15

…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.…
Ryde Municipal council v Macquarie University
[1978] HCA 58 Para 3

…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 Hosp…
Henry v Boehm
[1973] HCA 32 Para 17

…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…
Randwick Corporation v Rutledge
[1959] HCA 63 Para 4

…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…
Council of the City of Newcastle v Royal Newcastle Hospital
[1957] HCA 15 Para 3

…ralia 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 con…
Commissioner of Taxation v Miller
[1946] HCA 23

…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…
Gregory v Deputy Federal Commissioner of Taxation
[1937] HCA 57 Para 12

…idence” 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…
Robertson v Federal Commissioner of Taxation
[1937] HCA 32 Para 17

…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 & Bristo…
Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe
[1922] HCA 50 Para 12

…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 Mil…
[1991] TASSC 2
[1991] TASSC 2 Para 3

…mitted 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…
[1973] QB 100
[1973] QB 100 Para 14

…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) […
[1936] AC 65
[1936] AC 65 Para 14

…sion 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.…
Collector of Customs v Agfa-Gevaert Ltd
[1996] AC 543 Para 3

…d 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…
[1955] 1 WLR 982
[1955] 1 WLR 982 Para 3

…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 th…
[1915] 3 KB 699
[1915] 3 KB 699 Para 15

…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 drin…
R v Hammond
(1852) 17 QB 772 Para 15

…re 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…
(1852) 117 ER 1477
(1852) 117 ER 1477 Para 15

…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 Bu…
Attorney-General v Coote
146 ER 433

…yright 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;…
[1949] NZLR 177
[1949] NZLR 177 Para 18

…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).…
[1977] 1 WLR 914
[1977] 1 WLR 914 Para 15

…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…
[1898] 1 QB 640
[1898] 1 QB 640 Para 13

…ple, 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 bake…

Legislation cited in this decision · 6

Criminal Code Act 1899 (Qld)
419 2 mentions (from Para 19)
Criminal Law Consolidation Act 1935 (SA)
169 2 mentions (from Para 4)
Copyright Act 1956 c.74
12 1 mention
Licensing Act 1928 (Vic)
1 mention (from Para 22)
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs
12 1 mention
Workers Compensation Act 1958 (Vic)
1 mention (from Para 21)