R v Rigney - [1995] QCA 571

IN THE COURT OF APPEAL	[1995] QCA 571
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.

[R. v. Rigney & ors.]

C.A. No. 284 of 1995 C.A. No. 285 of 1995 C.A. No. 286 of 1995 C.A. No. 287 of 1995

T H E Q U E E N

TIMOTHY ROBERT RIGNEY
GREGORY LOUIS ELLIS
LEONARD MALCOLM ELLIS
and

MARK EDWARD BROWN Appellants
Fitzgerald P.
Davies J.A.
Mackenzie J.

Judgment delivered 19/12/1995

Separate reasons for judgment by each member of the Court, each concurring as to the order.

APPEAL AGAINST CONVICTIONS DISMISSED.

R. v. Williams [1988] 1 Qd.R. 289.

Counsel:	Mrs. K. McGinness for the appellants Ms. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellants Queensland Director of Public Prosecutions for the respondent
Hearing Date:	12 October 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/12/1995

The circumstances giving rise to this appeal are set out in the judgment of Davies J.A.

Chapter 39 of the Criminal Code “Burglary: Housebreaking: and Like Offences” is contained in Part V “Offences Relating to Property and Contracts”, “Division I “Stealing and Like Offences”. (Division II is headed “Injuries to Property”. ) Definitions for the purpose of Chapter 39 in ss. 418 and 425A give wide meanings to “break”, “enter”, “building” and “place”. Further, by sub- s. 418(3), a person is deemed to have broken and entered a building who obtains entrance by various means, including “any threat or artifice used for that purpose, or by collusion with any person in the building”. Although capable of meaning no more than an “understanding”, in context “collusion” seems to me to denote an understanding for an improper purpose.

Various offences are then provided for by reference respectively to “the dwelling house of another” (ss. 419, 420 and 425(1)(a)), “any place” (ss. 421 and 422), and “any building” (sub-s. 425(1)(b) and (f)). (Sub-sections 425(1)(c), (d) and (e) can be ignored for present purposes.). Neither the “place” nor the “building” referred to in the various offences is expressly required to belong to “another”.

The term “dwelling house” is defined in s. 1 of the Code to include “any building or structure ... which is for the time being kept by the owner or occupier for the residence therein of himself [or] his family ...”, even if “from time to time uninhabited”. It has been held that a caravan is a “structure” within the meaning of the definition (R. v. Rose (1965) Q.W.N. 35, Gibbs J.), and that the definition is not exhaustive and a motel unit occupied for a week can be a dwelling house (R. v. Halloran and Reynolds (1967) Q.W.N. 34, Hanger J.).

A dwelling house is a “building”, although not a “place” (sub-s. 425A(2)(a)), for the purpose of Chapter 39. A person who unlocks the door and enters his or her home breaks and enters a building within the literal meaning of Chapter 39.

Similarly, a person who opens a door and enters another…

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 Rigney

Details

AGLC: R v Rigney [1995] QCA 571
Case: [1995] QCA 571
Decision Date: 19/12/1995

CaseChat Overview and Summary

The case of R v Rigney and others involved an appeal against convictions for entering a dwelling house with intent to commit an indictable offence. The appellants argued that the trial judge erred in law by not accepting that the lack of consent to enter the premises was a necessary element of the offence. They relied on R v Williams, which suggested that absence of consent could be an implicit limitation on the statutory provisions. The Crown argued that consent was irrelevant, and relied on R v Dugan, which held that the mere entry with the requisite intent was sufficient to constitute the offence. The court had to decide whether the absence of consent was a necessary element of the offence under s.420 of the Criminal Code. The court held that the plain meaning of the section did not require absence of consent as an element, and that to imply such an element would lead to absurd results. The court also rejected the appellants’ reliance on R v Williams, which was inconsistent with the plain meaning of the section and the purpose of the legislation. The appeal was dismissed, and the convictions were upheld.

Orders