R v Khammash - [2004] SASC 289

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KHAMMASH
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
17 September 2004
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - PROOF AND EVIDENCE
AGGRAVATED SERIOUS CRIMINAL TRESPASS - PRE-CONCERT
The appellant appealed against his conviction following a trial in the District Court on a charge of aggravated serious criminal trespass in a place of residence - the prosecution case was that he was a member of a group which included three other men, which forced an entry into a suburban house and stole six cannabis plants under cultivation in the house - the prosecution could not prove that the appellant actually entered the house, but it alleged that he was present and assisting, and that all four were acting in concert - the appellant contended that as a civil trespass could not be committed vicariously, the criminal law doctrine of common purpose or pre-co-concert, could not be of application to the offence - held that the statutory amendments which created the offence of serious criminal trespass, properly construed, did not oust the criminal law doctrines of common purpose or pre-concert - appeal dismissed.
Criminal Law Consolidation Act 1935 s 168 and s 170(2); Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999 ; Crimes Act 1958 (VIC) s 76(1); , referred to.
Barker v The Queen (1983) 153 CLR 338; Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36; Sharrod v London and North West Railway Co (1849) 4 Exch 580, 154 ER 1345; Bartonshill Coal Co v McGuire (1858) 3 Macq 300; Stoneman v Lyons and Ors (1975) 133 CLR 550; Osland v The Queen (1988) 197 CLR 316; R v McAuliffe (1994) 183 CLR 108; Gillard v The Queen (2003) HCA 64; Krakouer v The Queen (1998) 194 CLR 202; Project Blue Sky v ABA (1998) 194 CLR 355; Bropho v Western Australia (1970) 171 CLR 1; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Potter v Minahaw (1908) 7 CLR 277; Coco v R (1994) 179 CLR 427, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
On an appeal against his conviction in the District Court of aggravated serious criminal trespass in a place of residence, the appellant complained of the failure by the trial juge to exclude evidence of a conversation between the appellant and a detective - the detective had approached the appellant in a nearby street, close to the scene of the crime soon after its commission - the detective’s evidence was that he questioned the appellant to ascertain whether there was any basis to connect him with the offence under investigation, and that he did not have at that stage a reasonable suspicion that he had committed an offence - the detective’s evidence was accepted by the trial judge - held that in the circumstances there was no obligation either to record the discussion or to give to the appellant his rights pursuant to s 70A(1) of the Summary Offences Act 1953 - held on appeal, that there was no reason to interfere with the trial judge’s ruling.
Summary Offences Act 1953 s 74D and s 79A; , referred to.
R v Trotter and Ors (1991) 58 SASR 223; R v Szak (1980) 23 SASR 504; R v Bueti (1997-1998) 70 SASR 370; R v Day (2002) 82 SASR 85; R v Karger (2002) 83 SASR 135; Browne v Dunn (1893) 6 R 67; House v R (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Baker v The Queen (1998) 155 ALR 586; Johns v The Queen (1980) 143 CLR 108; Stephen Gray, "I Didn't Know I Wasn't There: Common Purpose and the Liability of accessories to Crime" (1999) 23 Criminal Law Journal 201, considered.

R v KHAMMASH
[2004] SASC 289
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. The appellant appeals against his conviction following a trial in the District Court on charges of aggravated serious criminal trespass in a place of residence, and larceny. By a majority verdict of the jury, he was convicted on both counts.
The charges both relate to a house property at 75 Barnes Road, Glynde, occupied at the time by Antonio Leone and Chandra Payne. The Crown case was that during the afternoon of Monday 29 April 2002, the appellant, in company with three other persons, Trevor Francis Weetra, Shane Leonard Campbell and Kevin Benbolt, broke into the premises and stole six cannabis plants, the property of Mr Leone and Ms Payne.
The appellant was charged jointly with the other three accused. Weetra and Benbolt pleaded guilty. Campbell did not appear in answer to the charge and a warrant was issued for his arrest. In the result, the trial proceeded as against the appellant alone.
The appellant raises three grounds of appeal:
“1.The learned trial judge ought to have directed the jury to acquit the [appellant] on count 1 [aggravated serious criminal trespass in a place of residence] because there was as a matter of law no case for [the appellant] to answer.
2.The learned trial judge erred in law in that she directed the jury that it was not necessary that the prosecution prove that the [appellant] entered the dwelling at 75 Barnes Road, Glynde, because the prosecution could rely on criminal joint enterprise in relation to count 1.
3.The learned trial judge erred in failing to exclude evidence of conversations between police officer Joseph Vincent Barry and the [appellant].”
Factual Background
The evidence of Mr Leone that he had been growing six cannabis plants hydroponically inside the house, was not challenged.
He and Ms Payne left the house on the day in question at about 12.30 pm, leaving all of the doors and windows locked.
They returned to the premises at about 4.15 pm. A number of vehicles, including a marked police vehicle, were parked around the house. The door to a sleep-out had been forced open and damaged. The fly screen to the rear screen door leading to the laundry had been cut and the door opened. The door leading from the laundry into the kitchen had been forced open and damaged.
A bedroom had been ransacked. However, the only items which were taken were the six cannabis plants, which were found laying on a path in the rear yard behind the premises.
The premises are situated on the corner of Barnes Road and a side street, Hann Street. The side and rear of the premises are secured by corrugated fencing and gates.
A witness, Bruce McDonald, was driving past the premises at about 2.00 pm when he saw what he took to be two Aboriginal men walking up a pathway to the house. He saw another man, whom he also took to be Aboriginal, pull himself over the side fence into the back yard.
Mr McDonald drove up the road, did a U-turn, and drove back past the house. He saw two Aboriginal men walking away from the front door. He drove to a nearby shop and called the police. About ten minutes later, he saw two Aboriginal youths running away from the house.
The first police officer at the scene, Constable Walsh, arrived at about 11 minutes past 2.00 pm. He looked over the side fence and saw a man in the back yard of the house standing near a pile of marijuana plants. He then went around to the front of the house, where he saw another man crouched by the front gate. The second man seemed surprised and ran to the back of the house where he joined the other man. The two then entered the back of the house. Within seconds, what Constable Walsh thought were four men emerged from the back of the house, ran across the lawn, jumped the back fence, and ran off. He thought that one of the men was bald headed.
Another witness, Robert Russo, was visiting 69 Barnes Road, a few houses up from the premises in question. He saw three men running down the road.
He then saw another man walking along Barnes Road. He described his head as “clean shaven”. He saw the man turn into Hann Street. Shortly afterwards, the same man emerged from Hann Street, walked along Barnes Road, and entered another side street, Castres Street.
There was a Ford sedan car parked in Castres Street not far from Barnes Road. He saw the man, who was then wearing a blue top with a stripe, get into the car and emerge soon afterwards wearing a red top.
Mr Russo spoke to detectives who were nearby, Detectives Mann, Barry and Phillips. He pointed to the man who was walking up the road.
The three detectives drove up the road towards the man. Two of them, Detectives Barry and Phillips, got out of the vehicle. Detective Barry had a conversation with the man. It was common ground that he was the appellant.
Detective Barry’s evidence was that when he approached the appellant, he told him that he would like to have a “quick chat” and that there had been a “bit of trouble back up the road”. The appellant gave his name and said that he had come by bus from Greenwith, where he lived, and that he was just going for a walk. He said that he had thrown his bus ticket away.
Shortly afterwards, the police officers searched the Ford sedan parked in Castres Street. They seized a number of items found in the car. I refer to some of those items in due course.
The appellant gave evidence at the trial. He said that he had travelled by bus from Parafield Gardens to Payneham, where he said that his brother was renovating a house. He said that he intended to visit his brother. He was walking from the bus stop looking for his brother’s house when he was apprehended by the police.
When asked why he did not tell the police that he was going to his brother’s place, he said:
“The reason being they wouldn’t tell me what was going on, so I felt I didn’t have to tell them what was going on.”
As for the Ford car, he said that he had sold that two or three months before to one of the accused, Shane Campbell. He admitted seeing the Ford in the vicinity after he had been stopped by the police, but he denied having had any association with it on that day.
He denied having entered it to change his top.
There was no evidence before the jury that the appellant had actually entered the property in question. The case against him was circumstantial. The essential elements in the circumstantial case were:
·the appellant was in the immediate area at the relevant time
·the presence of the Ford Falcon sedan parked in Castres Street just around the corner from the house in question
·the car was registered in the appellant’s mother’s name, whose home address was an address at Parafield Gardens, which was also the address of the appellant
·the appellant admitted in evidence that he knew all three of the other alleged offenders, Campbell, Weetra and Benbolt
·amongst the items found in the car was a wallet belonging to Weetra
·the motor registration papers for the car were in the appellant’s brother’s name and were found in the car
·the evidence of Mr Russo that the appellant entered the car and emerged from it wearing a different top
·a blue top was found in the car
Grounds 1 and 2
It is convenient to deal with these two grounds together, as they raise what is in effect a single issue, namely, whether a person can be convicted of the offence of aggravated serious criminal trespass in a place of residence, contrary to s 168 and s 170(2) of the Criminal Law Consolidation Act 1935 (“CLCA”), by application of the doctrine of joint enterprise, when the evidence falls short of proof that the accused has actually committed the act of trespass.
In this case, as I have already explained, there was no evidence capable of proving that the appellant actually entered the premises in question. The prosecution case was that he was a participant in a joint enterprise, in that it was alleged that the appellant was acting in concert with the others involved, or in pursuance of a common purpose, namely, to enter the house and steal the cannabis plants.
The Crown opening, the presentation of the Crown case, the manner in which the case was left to the jury by the Crown and the trial judge’s summing up, all proceeded on the basis that Weetra, Campbell and Benbolt between them effected the actual entry to the premises and transportation of the cannabis plants, and that in order to convict the appellant, the jury needed to be satisfied that the appellant was party to a joint enterprise between all four to carry out the offence.
The trial judge gave a summing up in conventional terms as to the elements of joint enterprise, and there was no complaint as to the terms of her summing up in that respect.
The argument advanced by Dr Bleby, who appeared on behalf of the respondent, took as its starting point the amendment to the CLCA effected by the Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999,[1] which came into operation on 25 December 1999.
[1] No 80 of 1999.
Before the passing of that Act, s 168 and s 169 of the CLCA defined in conventional common law terms the offence of burglary, and s 170 the offence of breaking and entering.
Some changes were effected to the three sections by the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994, which came into effect of 1 January 1995. The amendments effected by that Act were essentially to abolish the classification of offences as felonies and misdemeanours. To that end, references in the three sections in question to the commission of a felony or intention to commit a felony, were replaced by references to the commission of, or intention to commit, specific offences to which the sections expressly applied. The essential common law concepts of burglary and breaking and entering were retained.
More fundamental changes were effected by the 1999 amending Act.
That Act repealed s 168, s 169 and s 170 in their entirety. It substituted in their place, and in place of “burglary” and “breaking and entering” a generic offence of serious criminal trespass, which may be committed with various circumstances of aggravation.[2]
[2] I do not pause to deal with the new s 170A which was enacted by the 1999 amending Act which deals with criminal trespasses in places of residence. For a general discussion of the effect of the 1999 amendments, see R v Delphin (2001) 79 SASR 429.
The substituted sections are as follows:
“Serious criminal trespass
168.(1)    For the purposes of this Act, a person commits a serious criminal trespass if the person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence to which this section applies.¹
(2)    A place is to be regarded as open to the public if the public is admitted even though-
(a)a charge is made for admission; or
(b)the occupier limits the purposes for which a person may enter or remain in the place by express or implied terms of a public invitation.
(3)    A person who enters or remains in a place with the consent of the occupier is not to be regarded as a trespasser unless that consent was obtained by-
(a)force; or
(b)a threat; or
(c)an act of deception.
(4)    A reference in this section to the occupier of a place extends to any person entitled to control access to the place.
Note-
¹ ie larceny or an offence of which larceny is an element; an offence against the person; or an offence involving interference with, damage to, or destruction of property punishable by imprisonment for 3 years or more.
Serious criminal trespass - non-residential buildings
169.(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.
“Serious criminal trespass-places of residence
170.(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 serious criminal 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.”
In this case, the appellant was charged pursuant to s 168 and s 170(2), with aggravated serious criminal trespass in a place of residence. The circumstance of aggravation was that referred to in s 170(2)(b), the Crown case being that at least two of the accused had entered the premises in company with each other.
Having regard to the nature of the amendments effected in 1999, the concept of “break and enter” was replaced with elements expressed in terms which may be summarised as follows:
That a person-
·enter or remain in a place;
·as a trespasser;
·with the intention of committing an offence to which s 168 applies.[3]
[3] Theft is such an offence.
It was common ground on the hearing of the appeal that the words “as a trespasser” have their ordinary meaning at common law. Support for that view appears in the judgment of the High Court in Barker v The Queen[4] where the court considered s 76(1) of the Crimes Act 1958 (VIC) which provided, inter alia, that:
“A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent-
(a)to steal anything in the building or part in question ….”
[4] (1983) 153 CLR 338.
In their joint judgment in that case, Brennan and Deane JJ held:[5]
“… there are no valid grounds for declining to give the word ‘trespasser’ in s 76(1) the established meaning which it bears under the common law.”[6]
[5] Ibid 363.
[6] This was expressed to be subject to one possible qualification, that is, the possibility that the old common law doctrine of trespass ab initio might still apply, although for the reasons which they give, it is doubtful that that doctrine has survived.
Mason and Dawson JJ were of a similar view, Murphy J dissenting.
Given that the words “as a trespasser” were being used in the context of the creation of a criminal offence, the court further held that mens rea must be proved; see per Mason J:[7]
“As we have seen, the character of the provision as one which creates the serious criminal offence of burglary provides a strong reason for introducing the element of mens rea so that the section only embraces a person who of his own volition and without any right or authority enters land in the possession of another with intent to steal, knowing that he has no such right or authority or being reckless as to whether he has any such right or authority or not.”
[7] Ibid 348.

Dr Bleby’s next proposition was that at common law, a trespass “cannot be committed vicariously”. He submitted that a person may only commit a trespass at common law if he or she is present at and have taken part in the trespass.
With respect to him, as I think he conceded during the course of argument, this may be pitching the principle too high.
The principle is expressed in the judgment of Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Long as follows:[8]
“The old action of trespass was confined to instances of the direct application of force. An indirect application of force would support only an action of trespass on the case. If a servant committed an act of force against a stranger, he was, of course, liable to the stranger in trespass. But, subject to a qualification which will be mentioned, the master was not so liable, even though the servant was acting at the time in the course of his employment. The master was liable in case only. ….. The qualification to which I have referred is made clear by this passage.[9] It was that a specific command to do the act complained of, or to do something necessarily involving that act, made the servant the master’s instrument for the very purpose, and that was considered sufficient for the conclusion that the act was the direct act of the master. But when the master’s only connexion with the act was that he had employed the servant for the work in the course of which the act was done, then although it was to be considered ‘the same as if it were the master’s own act’,[10] apparently the judges felt that to treat the act not only as the act of the master but as the direct act of the master was carrying strict logic too far. Consequently, although the master was held liable for the act, it was on a different cause of action.”
[8] (1957) 97 CLR 36 at 64-65.
[9] A passage from the judgment of Baron Parke in Sharrod v London and North West Railway Co (1849) 4 Exch 580 at 585, 154 ER 1345 at 1348.
[10] Citing Bartonshill Coal Co v McGuire (1858) 3 Macq 300 at 306.
In Stoneman v Lyons and Ors,[11] an independent contractor employed by the owner of land, dug pockets under an adjoining wall during the course of excavating a trench, with the result that it collapsed.
[11] (1975) 133 CLR 550.
In discussing the question whether the owner in those circumstances was liable in trespass for the acts of the independent contractor, Mason J observed:[12]
“It follows, then, that the contract did not authorize and direct the builder to do what he in fact did. By proceeding as he did he failed to comply with the requirements of cl 57 and cl E4.01 as they applied to the digging of the pockets. In this circumstance the trespass by the builder cannot be attributed to the appellant. For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass: Sharrod v London and North Western Railway Co,[13] Darling Island Stevedoring and Lighterage Co Ltd v Long.[14]”
[12] Ibid 573-574.
[13] (1849) 4 Exch 580 at 585; 154 ER 1345 at 1347-1348.
[14] (1957) 97 CLR 36 at 64-65.
Mason J goes on to deal separately with the possibility that the owner might have been liable in negligence, but held that in that context, the general rule applied, namely, that a person is ordinarily not responsible for the negligence of an independent contractor.[15]
[15] See also League against Cruel Sports v Scott [1986] QB 240 per Parke J at 251-252.
On the other hand, an employer is ordinarily liable for the negligence of an employee, acting in the course of the employment.
I would accept, therefore, that there is a distinction between the rules as to vicarious liability in their application to acts of another constituting trespass, as opposed to negligence.
But the principles to which I have so far referred have been developed in the context of determining the extent of the liability of a principal for acts of another which may constitute civil trespass on the one hand or negligence on the other.
The concept of vicarious liability in that sense is alien to the jurisprudence of the criminal law. Clearly, in determining whether an employer of another may be criminally liable for the acts of an employee, or a principal for the acts of an independent contractor, different principles must necessarily apply. The civil common law principles defining the scope of the vicarious liability of an employer or principal in such circumstances have no application.
At common law, criminal responsibility for the acts of another may arise by reason of the principles which define accessorial liability, or by reason of the application of the doctrine of common purpose or pre-concert.
Accessorial liability is sometimes divided into two categories: where the defendant is present, liability may attach if he or she aids and abets the principal; if the defendant is not present, the defendant may be liable if he or she counsels or procures the commission of the offence.
Accessorial liability, in either of its forms, is strictly derivative, in the sense that it arises only where the principal is guilty.
However, liability which arises by reason of the application of the doctrine of common purpose or pre-concert, is direct or primary; it is not derivative. When it applies, the liability of the defendant arises because the law attributes to the defendant responsibility for the acts of the other or others who are acting in concert.
The relevant distinctions may be analysed in terms of degrees of responsibility: see the observations of McHugh J in Osland v The Queen:[16]
“70 At common law, a person who commits the acts which form the whole of part of the actus reus of the crime is known as a ‘principal in the first degree’. There can be more than one principal in the first degree. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. ………
71Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.
72However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. ………..
73…..they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8^th edition of their work on Criminal Law:
‘[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert. (Emphasis added.)’” (Footnotes omitted.)
[16] (1988) 197 CLR 316 at 341-343.
The importance in that case of the distinction between principals in the first degree and those liable as principals in the second or third degree arose by reason of the fact that the accused and her son were jointly charged with the murder of the accused’s husband (who was the son’s step-father). The case was one of common purpose or pre-concert. It followed that the acquittal of the son was held not to render unsafe the conviction of the accused for murder.
Turning to the legislation now in question, I am unable to accept the argument that the adoption by the legislature, as part of the amendments effected in 1999, of the common law concept of trespass, should be regarded as excluding or narrowing the common law principles of accessorial liability for a crime or of criminal liability arising by reason of the doctrine of common purpose or pre-concert.
Use of the word “trespass” simply serves to define part of the actus reus of the offence of serious criminal trespass. It is not an expression which has any impact upon the principles by which criminal liability for the acts of another may be attributed to the accused.
As was observed by Dawson J in the context of the comparable Victorian legislation:
“The introduction of entry as a trespasser as an ingredient of burglary was evidently intended to avoid the nice distinctions which had grown up around the older concept of breaking and entering.”[17]
[17] Barker v The Queen (supra) at 369-370.
As I have explained, consistently with the general requirement of the criminal law to require proof of mens rea, such a requirement must be regarded as implicit in proof of the newly defined offence.
But there is no reason to displace the common law principles applicable in criminal cases, relating to accessorial liability or liability for acts done in pursuit of a common purpose, in favour of principles applicable to vicarious liability in the context of civil proceedings.
Insofar as a person participating in a joint enterprise is a principal in the first degree, he or she must be regarded as equally responsible with the co-offenders for the actus reus, in this case, the act or trespass.
Putting it another way, use of the word “trespass” defines an element in the actus reus of the offence; it throws no light upon and does not disturb the norms which at common law define criminal responsibility for the acts of others.
In my view, the appellant has failed to make out grounds 1 and 2.
Ground 3
The appellant asserts that the trial judge erred in failing to exclude evidence of the conversation between Detective Barry and the appellant, when Detective Barry first approached him.
The significance of the issue from the point of view of the defence case is that the appellant lied to Detective Barry as to his reason for being in the vicinity.
I have already referred to the circumstances which led to the conversation taking place.
It took place at 2.25 pm. One or two minutes before the conversation took place, at a time recorded in a police log as 14.23.26, police communications received a call from either Detective Mann or Detective Barry (the entry does not make it clear which of them), which reads:
“From MOP [member of the public] one offender hiding on Barnes Road has changed clothing and now wearing red shirt and black pants.” (my emphasis)
At a voir dire hearing which preceded the trial, the submission was made by counsel for the appellant that evidence of the conversation should be excluded on the basis that the appellant was at the relevant time a suspect within the meaning of s 74D of the Summary Offences Act 1953, and that contrary to the requirements of s 74D(1), the conversation was not recorded by any of the procedures set out in the subsection.
He also submitted that the appellant should have been given his rights, as required by s 79A(1).
Detective Barry’s evidence on the voir dire was to the effect that at the time he spoke to the appellant, he did not have a reasonable suspicion that he had committed an offence, such as serious criminal trespass. He was simply questioning him to ascertain whether there was any basis to connect him with the offence under investigation. He did not arrest the appellant at that stage, nor did he consider that he had grounds upon which he might have arrested him.
The trial judge gave an ex tempore ruling rejecting the application to exclude the evidence of the conversation. In the course of her reasons for ruling, after explaining the circumstances leading up to the questioning of the appellant, she said:
“Against this background and against the background of the evolving situation and the fact that information was coming over the police radio literally minute by minute, I formed the view that Detective Barry’s actions in questioning the accused that afternoon was a legitimate course to determine whether or not the person was, in fact, an innocent bystander, as he claimed, and unhappily caught in the fracas in the vicinity of Barnes Road, or whether he was, in fact, connected with the events which unfolded that day. In view of those facts I have found that the accused was not a suspect at the relevant time such as to invoke the obligations upon the police officer pursuant to either s 79A of the Summary Offences Act or s 74D of that Act.”
In my view, the conclusion reached by the trial judge on this issue was correct.
While clearly the appellant was a person of interest, and while clearly Detective Barry thought that the appellant might have been involved, he had very little to go on at that stage. He was entitled to see what explanation the appellant might give for his presence near the scene, or what other information the appellant might be able to give.[18]
[18] See R v Trotter and Ors (1991) 58 SASR 223 per Perry J at 238.
As for the radio message, it was not established that this had emanated from Detective Barry as opposed to Detective Mann. In any event, the use of the word “offender” in the message might simply have been a form of operational shorthand. I would not regard it as evidence from which it would be proper to conclude that the author of the statement had reasonable grounds to suspect the appellant of having committed an indictable offence within the meaning of s 74D.
As for s 79A, the obligation to follow the procedures set out in that section, including the obligation to give the rights, only arises on apprehension, that is, arrest. No arrest had occurred at the time of the conversation.
At common law, there is a discretion to exclude evidence of confession or other statements made to a police officer, where a caution has not been administered, after the police investigation passes beyond a general inquiry into an unsolved crime, to the point at which it might be said that the accusatory stage has begun. Furthermore, evidence of a conversation may be excluded if a caution has not been given when “the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect …”.[19]
[19] Vandermeer v R (1988) 82 ALR 10 per Mason CJ at 18. And see R v Trotter and Ors (supra).
The stage at which a discretion might have arisen to exclude the evidence in question by reference to those principles, had not been reached in this case.
I would reject the third ground of appeal.
Conclusion
I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Perry J.
GRAY J: This is an appeal against convictions following a District Court jury trial.
The appellant, Edgar Elias Khammash, was charged with aggravated serious criminal trespass in a place of residence pursuant to section 170(2) and with larceny pursuant to section 131 of the Criminal Law Consolidation Act 1935 (SA). It was alleged that the appellant together with three co-offenders committed the charged offences.
Two issues arise for consideration on this appeal. Was the trial judge correct in her decision not to exclude, as a matter of discretion, evidence of statements made by the appellant to a police officer shortly after the offence. Does the doctrine of joint criminal enterprise have application to an offence against section 170 of the Criminal Law Consolidation Act.
The factual background and circumstances of the appellant’s offending are set out in the reasons of Perry J and are only referred to where necessary for the purpose of understanding these reasons.
On the Crown case, the appellant was one of a group of men responsible for breaking into a place of residence and for the larceny of six cannabis plants from that residence. It was alleged that the appellant was party to a joint enterprise. It was said that whilst the appellant may not have actually entered the place of residence and removed the cannabis plants he was a party to a joint criminal enterprise to enter the residence and to steal the plants. The Crown was unable to further particularise the appellant’s precise role in the offending. It was said that he should be treated as a principal offender.
The Issues on Appeal
The Discretion to Exclude Evidence
A challenge was made to the learned trial judge’s discretionary ruling declining to exclude evidence of a conversation between a police officer and the accused. The evidence was challenged at a pre-trial voir dire hearing. It was contended that the police officer reasonably suspected the appellant of committing an offence and as a result was required to caution the appellant before questioning as required by section 79A of the Summary Offences Act 1953 (SA).[20] It was said that the police officer was also required to follow the procedures set out in section 74D of the Summary Offences Act 1953 (SA).[21]
[20] See also R v Szak (1980) 23 SASR 504 at 583, R v Bueti (1997) 70 SASR 370
[21] R v Day (2002) 82 SASR 85, R v Karger (2002) 83 SASR 135
The trial judge delivered ex tempore reasons for declining to exclude the challenged evidence:
It remained for me to consider whether the conversation with the accused, at the point when the three police officers Phillips, Barry and Mann first arrived in the vicinity of the alleged break-in at Glynde that day, should be excluded on the basis that the accused, at the relevant time, was already a suspect and should have been cautioned by Detective Barry, and on the further ground that the conversation was not recorded in compliance with the strict requirements of s74D of the Summary Offences Act.
On the view of the evidence which I have heard, I find the following facts are relevant: that the police officers Barry, Phillips and Mann were, at the relevant time, looking for what they believed to be three Aboriginal persons involved in a suspected offence on a property in Barnes Road at Glynde.
Second, after the car containing the three officers had first passed the accused in the street, the officers received some information from an independent witness, a man named Mr Russo, who gave those officers certain information, the salient features of which are that the man they had just passed in Barnes Road had been seen to have entered a Ford Falcon in a nearby street and when seen a few minutes later, was wearing a different top. On that basis, the police officers did a U-turn and went back to the point where the accused was then walking, and a conversation between Detective Barry and the accused followed.
The police were plainly at the very beginning of an investigation at that stage, an investigation which commenced in the heat of the moment, as it were, at or near the scene of an alleged criminal trespass. At the time when Detective Barry had stopped the accused to speak with him on Barnes Road, other police officers were at that time literally chasing other suspected offenders over fences in nearby streets.
Against this background and against the background of the evolving situation, and the fact that information was coming over the police radio literally minute by minute.
I formed the view that Detective Barry’s actions in questioning the accused that afternoon was a legitimate course to determine whether or not the person was, in fact, an innocent bystander, as he claimed, unhappily caught up in the fracas in the vicinity of Barnes Road, or whether he was, in fact, connected with the events which unfolded that day.
In view of those facts, I have found that the accused was not a suspect at the relevant time such as to invoke the obligations upon the police officer pursuant to either s79A of the Summary Offences Act or s74D of that Act.

Counsel for the appellant submitted that the evidence established that Detective Barry held a reasonable suspicion that the appellant had committed an offence. Counsel relied on an oral report made at the time by an unnamed investigating officer to police operations. It was said that the report described a man who was observed to be walking in the area as being the offender. This man was stopped and questioned. This man was the appellant.
Counsel for the appellant claimed that Detective Barry was a party to this conversation. Alternatively, it was said that he was aware of the conversation at the time. However there was no evidence to support these assertions. On the voir dire examination neither the fact of an oral report nor its contents were put to Detective Barry. He was not asked whether it was his report or whether he was aware of it.
In these circumstances it would be unfair to use the report as evidence to lay a foundation for attacking Detective Barry’s credit. Counsel had an obligation to put the report ‘fairly and squarely’ to Detective Barry to allow him to offer his explanation.[22] This did not occur.
[22] Browne v Dunn (1829) 57 ER 909
The trial judge had the benefit of seeing and hearing the witnesses. Her findings were open on the evidence. Those findings were supported by the evidence. No error of principle has been identified. No relevant material was overlooked. No regard was had to irrelevant material. No basis has been shown to interfere with the judge’s decision declining to exclude the evidence.[23]
Joint Criminal Enterprise
[23] House v R (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321
During the learned trial judge’s summing up the jury was directed in the following terms:
Because the accused has been charged jointly with others, that leads me to another legal principle about which I need to direct you. The basic legal principle is this: that if two or more persons act together in pursuance of a common unlawful purpose, then every act done in furtherance of that common purpose by any one or more of them, is in law, done by them all. In other words, the combined actions of two or more persons with a common criminal intent, which is previously agreed by them, will make them all guilty of the resulting crime.
The example which the prosecutor used in this instance is one which is often used to illustrate, in a very simple way, this principles of joint enterprise, and it is the example of the bank robbery, where you have one person who might go in and demand the money, one person who might stand at the door, one person might wait outside as the lookout or as a driver of a get-away car. If all of those persons are acting in accordance with an agreement to commit the offence of armed robbery, then they are all guilty of it. It doesn’t matter who carried the gun, who was the driver, who got the money, and you might think, ladies and gentlemen, that is just a matter of plain common sense.
If each of them were ready willing and able to assist in some way, then each is guilty at law. The concept of common purpose implies that persons concerned are therefore acting as if they were a team to achieve a mutually agreed result. That agreement might have been formed weeks, days, or months before. It could have been a spur of the moment agreement just prior to the commission of the offence.
As I said, it is fair to say, it is not in any real dispute in this trial, that the premises …were broken into, and cannabis plants were removed from the inside of the house to the back porch. The prosecution case is that either the [appellant] or one or more of the other offenders … broke into the premises with the intention of committing that larceny, and that was done pursuant to an agreement or arrangement between them to break into the premises with the intention of stealing that cannabis.
The prosecution case is that if you are satisfied beyond reasonable doubt that the accused was a party to such an agreement or arrangement, and any one or more of them broke in with the intention to commit the larceny, then the [appellant] is guilty of the offence charged. Therefore, I direct you that as far as the charge of aggravated serious criminal trespass is concerned, you cannot convict the accused unless it is proved beyond reasonable doubt that he was actually present there that day, on the street in Barnes Road, acting in pursuance of the common unlawful purpose, which was to break in and steal those plants.
As earlier observed the Crown did not seek to establish that the appellant entered the ‘residence’ the subject to the indictment. It was the Crown case that the appellant was a secondary party in the commission of the offences. It was not suggested that he was an accessory before the fact or that he aided or abetted the commission of the crime. The Crown case depended upon the appellant sharing a common purpose with the principal offenders.
The common law doctrine of joint criminal enterprise was addressed in R v McAuliffe where the High Court observed:[24]
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes are contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.
[24] (1994) 183 CLR 108 at 113-114
In Gillard v The Queen[25] the High Court revisited the doctrine of joint criminal enterprise. The majority of the court approved and applied the court’s earlier decision in McAuliffe. Hayne J observed:
As was pointed out in McAuliffe, the terms “common purpose”, “common design”, “concert”, “joint criminal enteprise” are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures in the second degree, who aids or abets in the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others.
In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.
The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. “[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose”. The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And “[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement”.
As McAuliffe reveals the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe “the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind”. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that “a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it”. The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.
[25] (2003) 202 ALR 202 at 226 to 227
In Osland v The Queen[26] the High Court discussed the doctrine of joint criminal enterprise. In that case both accused were present at the time of the offence. The fatal blow was struck by one accused in the presence of the co-accused. However Gaudron and Gummow JJ discussed the implications of McAuliffe with respect to a party to a joint criminal enterprise not present at the time of the commission of the alleged offence. Their Honours observed:[27]
… [P]rinciple dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all the parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied. The appellant’s submissions on this aspect of the case proceeded upon a false basis.
Recent High Court judgments and academic commentary discuss the wider implications of the doctrine of joint criminal enterprise.[28]
[26] (1998) 197 CLR 316
[27] (1998) 197 CLR 316 at 329-330
[28] For example see R v Barlow (1997) 188 CLR 1, McAuliffe v The Queen (1995) 183 108, Osland v The Queen (1998) 73 ALJR 173, Baker v The Queen (1983) 153 CLR 388; Johns v The Queen (1980) 143 CLR 108; Krakouer v The Queen (1998) 155 ALR 586. See also Stephen Gray, ‘I Didn’t Know, I Wasn’t There: Common Purpose and the Liability of Accessories to Crim’ (1999) 23 Criminal Law Journal 201
In the present case the application of the doctrine was direct and straightforward. The doctrine by its terms has application to a party to a joint criminal enterprise who is not present at the scene of the offence committed by a co-offender or co-offenders. The appellant, on the Crown case, which was accepted by the jury, reached an understanding or arrangement amounting to an agreement with another or others that they would commit a crime. If one or more of them committed the crime in accordance with the understanding or arrangement all are equally guilty of the crime regardless of the part each played in its commission. The doctrine of joint criminal enterprise has application to an offence against section 170 of the Criminal Law Consolidation Act.
Counsel for the appellant submitted that a particular issue arose from the terms of section 170 of the Criminal Law Consolidation Act. It was said that the section precluded a secondary party to a joint enterprise from being convicted as a principal offender. Section 170 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.
In Barker v The Queen[29] the High Court when considering the terms of section 76(1) of the Crimes Act 1958 (Vic)[30] considered that the word “trespasser” was to be given its ordinary common law meaning. Mason J observed:[31]
These problems do not provide a reason for distorting the words “as a trespasser” from their ordinary meaning. As we have seen, the character of the provision as one which creates the serious criminal offence of burglary provides a strong reason for introducing the element of mens rea so that the section only embraces a person who of his own volition and without any right or authority enters land in the possession of another with intent to steal, knowing that he has no such right or authority or being reckless as to whether he has any such right or authority or not.
In Barker the High Court did not consider the doctrine of joint criminal enterprise. The reference by Mason J to the section did not address the application of the doctrine of joint criminal enterprise nor the position of a secondary principal.
[29] Barker v R (1983) 153 CLR 338
[30] Section 76(1) of the Crimes Act 1958(Vic)
[31] (1983) 153 CLR 338 at 348
Counsel for the appellant submitted that in accordance with the decision in Barker, section 170 should be understood to have introduced into the criminal law an offence incorporating the common law elements of trespass. It was said that a person could not be convicted of an offence against section 170 unless that person of their own volition and without any right or authority entered a residence. There was no room for the operation of the doctrine of joint criminal enterprise. It was contended that the Crown could not prove that the appellant had entered the residence. The legislation should be strictly construed. As a result it was said that the appellant was entitled to be acquitted.
Counsel for the appellant accepted that under the repealed offence of break and enter[32] the doctrine of joint criminal enterprise could be invoked. However the submission was developed that as section 170 had introduced the common law definition of trespass into the offence, a person could not be convicted unless that person committed the trespass themselves and on their own volition. Counsel acknowledged that the doctrine of joint criminal enterprise had not been adverted to by the legislature. It was contended that the doctrine had been excluded inadvertently.
[32] The offence of ‘break and enter’ was previously contained in section 170 of the Criminal Law Consolidation Act 1935 (SA). It was repealed and replaced with the language of the current section in 1994 by section 8 of the Criminal Law Consolidation (Amendment) Act 1994 (SA)
In Krakouer vThe Queen[33] McHugh J observed with reference to provisions of the Western Australian Criminal Code:
Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion, as it is in this case. Nothing in the Act supports the respondent's contention that s 11(a) applies to attempts and conspiracies under s 33. Moreover, the respondent did not refer us to any material outside the text of the Act that would provide a foundation for concluding that the legislature intended s 11(a) to apply to offences derived from the operation of s 33.
[33] (1998) 194 CLR 202 at 223
Counsel for the appellant relied on these observations and submitted that the legislature, when enacting section 170, omitted language that expressly preserved the doctrine of joint criminal enterprise so that it could operate with respect to the statutory offence. It was contended the language of the legislation was clear and should be interpreted in accordance with its ordinary meaning. The court should not imply that the doctrine of joint criminal enterprise could have any operation where the legislation has failed to address that doctrine.
It is to be observed that Krakouer involved the interpretation of a statutory provision creating an entirely new offence. It did not replace or update an existing statutory offence. Section 170 is of a different character.
In Project Blue Sky v Australian Broadcasting Authority[34] McHugh, Gummow, Kirby and Hayne JJ addressed the duty of the court when interpreting statutory provisions:
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[34] (1998) 194 CLR 355 at 384
There is a presumption that clear and unambiguous statutory words are required to abolish or modify a common law principle. In Bropho v Western Australia this rule of construction was discussed by the High Court: [35]
One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights … which would operate retrospectively … which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction … or which would take away property without compensation …. The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" …. If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.
[35] (1970) 171 CLR 1 at 17- 18

This approach was reinforced in Balog v Independent Commission Against Corruption[36]:
If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred: ….
The Court applied the observation of O’Connor J in Potter v Minahaw:[37]
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
[36] (1990) 169 CLR 625 at 635-6
[37] (1908) 7 CLR 277 at 304
In Coco v R[38] the High Court recognised that there could be circumstances in which the presumption could be displaced by implication. This would occur if such an implication were necessary to prevent the statutory provision becoming inoperative or meaningless. The court considered that such a case would be rare where general words were used, as such words can almost always be given a scope for operation that does not involve an abrogation of the presumption.
[38] (1994) 179 CLR 427
The doctrine of joint criminal enterprise is one which ordinarily applies to criminal offences unless legislation expressly provides that it should not. Although words of relevant legislation may be said to be clear, there does not exist a presumption that the doctrine cannot have application because the legislation has failed to deal with it – whether by inadvertently or otherwise.
Section 170 of the Criminal Law Consolidation Act replaced a statutory provision which provided for the offence of break and enter. The second reading speech demonstrates that the intent of the legislature was to substitute or replace that earlier offence with language more relevant to contemporary times. This was not the statutory enactment of a new offence where no previous offence existed. It was the replacement and updating of an earlier offence.
The purpose of the introduction of section 170 was not to codify the common law action of trespass as a criminal offence. The evident purpose of the amendment was to strengthen the perceived outdated law of break and enter. This was a reaction to a public outcry at the increase in home invasions.[39] It is evident, therefore, that the legislature did not intend to exclude the doctrine of joint criminal enterprise.
[39] Matthew Goode (2004) 28 Australian Criminal Law Journal 226
The common law of vicarious liability for trespass generally arises for consideration when determining the legal relationships of master and servant and independent contractor. The common law of trespass has no criminal element. The doctrine of joint criminal enterprise is fundamentally different to that of vicarious liability. There is no reason why two offenders, acting in concert, cannot both be convicted as principals with respect to an offence of serious criminal trespass. There is no reason when considering the application of the doctrine of joint criminal enterprise to distinguish the offence of serious criminal trespass from its predecessor offence of burglary, or for example, from other offences such as murder or rape. It is for this reason that the authorities referred to by the appellant concerning vicarious liability do not address the situation where two or more persons act together in pursuance of a joint criminal enterprise.
Conclusion
There is nothing in the wording of section 170 to suggest that the doctrine of joint enterprise had been excluded inadvertently. The doctrine of joint criminal enterprise has application to an offence against section 170 of the Criminal Law Consolidation Act.
The summing up of the trial judge on the issue of joint criminal enterprise was entirely appropriate. On the Crown case the appellant was at least a secondary party by reason of a common purpose shared with the principal offender or offenders. Apart from the issue of the interpretation of section 170 there was no complaint about the terms of the trial judge’s summing up or suggestion that it was not open for the jury to convict the appellant.
This appeal should be dismissed.

(1) A person is guilty of burglary if he enters any building or part of a
building as a trespasser with intent-
   (a) to steal anything in the building or part in question; or
   (b) to commit an offence-
   (i) involving an assault to a person in the building or part in question;
     or
   (ii) involving any damage to the building or to in the building or
     part in question-
which is punishable with imprisonment for a term of five years or more.
property