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

v.

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 person’s home at his or her invitation breaks and enters the dwelling house of another within the meaning of Chapter 39.

Likewise, a person who enters his or her home through an open door enters a building within the literal meaning of that Chapter, and according to ordinary understanding.

And a person who enters another person’s home through an open door at his or her invitation enters the dwelling house of another within the literal meaning of that Chapter, and according to ordinary understanding.

The appellants submit that the literal meaning of the provisions creating offences in Chapter 39 must be read down to accord with the legislative intent. Essentially, two reasons were advanced. One is related to the extension of what is deemed to be breaking and entering by sub-s. 418(3). The other concerns statements made in the Court of Criminal Appeal in R. v. Williams [1988] 1 Qd.R. 289. In that case, at least one member of the Court thought that the two points are connected (see pp. 305-306).

However, sub-s. 418(3) does not contain any extension of the concept of entry, and its extension of the concept of breaking and entering to include conduct which would not otherwise constitute breaking where entry is obtained by “threat”, “artifice” or “collusion”, or through a permanent aperture not intended for ordinary use as an entrance, gives no indication that the consent of the owner or occupier is otherwise relevant to whether a dwelling house, building or place has been entered or broken and entered within the meaning of Chapter 39. It is unnecessary for present purposes to consider whether, and if so how, the provisions of Chapter 5 of the Code, dealing with “Criminal Responsibility” might interact in various circumstances with the parts of sub-s. 418(3) which are concerned with entry by “threat”, “artifice” or collusion. The remainder of sub-s. 418(3) does no more, in substance, than extend the concept of breaking and entering to entry through a permanent aperture not intended for ordinary use as an aperture; as with breaking and entering or entering elsewhere in Chapter 39, that part of sub-s. 418(3) could be literally satisfied by entering one’s own home, or another’s home or building at his or her invitation, through such an aperture.

It is not easy to see why it should matter that patently innocent conduct should constitute breaking and entering or entering. Neither is, in itself, an offence: cp. R. v. Dugan (1984) 2 N.S.W.L.R. 554, 562. An offence against Chapter 39 is only committed if conduct, or an element of that conduct, even if otherwise innocent, is accompanied by a criminal intent. The same is true whether what is proscribed is entry, break and entry, being in, or breaking out of a dwelling house of another, a building or a place, or, in the case of sub-s. 425(1)(b), being armed with intent to break or enter etc. The provisions which create offences are not concerned with whether the same conduct, without the criminal intent, would be lawful or unlawful. The effect, and apparent purpose according to the language used, of Chapter 39 is to proscribe conduct, whether otherwise lawful or unlawful, if the specified criminal intent accompanies either the conduct or one of its constituent elements.

In Williams, referred to above, an appeal against conviction of an offence against s. 419(1)(a) was successful. Williams was charged with breaking and entering the dwelling house of another with intent either to assault an occupant or steal. His “defence” was that, when he opened a door and entered the premises, he had intended to commit another indictable offence, namely, to obtain possession of marijuana, and that he had an honest claim of right to open the door and enter the premises for that purpose (Code, sub-s. 22(1)), based on earlier discussions with some of the occupiers to come around at any time for that purpose. An alternative submission for the appellant, based on sub-s. 24(1) of the Code, that even if the invitation which he had earlier received did not extend to his opening the door and entering the premises on the night in question, he honestly and reasonably believed that it did, was not persisted in. However, on appeal, it was also submitted that there is an implicit limitation in ss. 418 and 419 so that an offence under the latter section is not committed if the person entering had the authority of the owner or occupier.

Macrossan J. left open the latter question, while apparently doubting that such a limitation should be imported, in part because he considered that it would usually, as in that case, be unnecessary because of s. 22: pp. 294-295. His Honour referred at p. 294 to earlier authority describing an offence against s. 419 as a “composite offence” (R. v. Johnston [1973] Qd.R. 303, 307, 309), and said that the effect of s. 22, as raised by the appellant, was to negative “one of the ingredients of the offence”. I cannot agree. The critical proposition begs the essential question by assuming the limitation which the appellant sought to have implied into ss. 418 and 419. Unless a limitation is imported to restrict the material element of the offence to unauthorised conduct (with the requisite intent), there is no scope for the operation of s. 22.

Carter J. recognised that. At p. 300, his Honour expressed the opinion that “the question whether an alleged offender entered a dwelling house with the consent of, or at the invitation of that occupier, either express or implied, is relevant to his criminal liability for the offence created by s. 419 of the Code”. Later, on the same page, his Honour said:

“Want of authority in the alleged offender is not an element of the offence of burglary as that offence is defined by ss. 418 and 419 of the Code. However, ... burglary is nonetheless an offence the proof of which necessarily involves proof that the alleged offender lacked authority.”

Then, after consideration of a number of decisions, his Honour said at p. 301:

“Accordingly, both the common law and the Theft Act 1986 (U.K.) acknowledge the relevance of permission or authority in the person alleged to have committed a criminal trespass or burglary. In my view the same can be said of the offence created by s. 419 of the Code although the section is silent on the point in defining the offence. That is not surprising having regard to the intrinsic nature of the offence and the provisions of Ch. V dealing with criminal responsibility.”

See also p. 303.

I am unable to accept his Honour’s views. The “intrinsic nature of the offence” is to be found in the language of the material statutory provisions, construed in their context by reference to the legislative purpose, and there is ample scope for the operation of Chapter 5 of the Code, and notions of consent or authority, by reference to the conduct constituting the indictable offence intended or carried out by the alleged offender, provided at least that it can lawfully be consented to or authorised.

de Jersey J. considered that sub-s. 418(3) “implicitly recognises that absence of consent on the part of the occupier or owner is necessary for there to be a breaking and entering” (pp. 305-306). However, his Honour went on to leave that question of construction open because he considered that it was unnecessary for it to be decided in view of s. 22 of the Code. He said (at p. 306) that it was necessary for the Crown to exclude the operation of s. 22. “There was evidence from which the jury might have concluded that the appellant honestly believed himself entitled to ‘break and enter’ [the premises] for the purpose he alleged.”

The flaw in this approach, in my opinion, is that it impermissibly runs together the entry and the intent dealt with in the statute. As to the entry, s. 22 was unnecessary and irrelevant because the lawfulness of the entry could not assist Williams if he had the requisite intent. And there was no suggestion that he believed that he could lawfully obtain marijuana in the premises as he intended, or that the occupier’s consent or authority could have affected the criminality of what he intended.

Dugan was not referred to in Williams, which cannot be distinguished. It is necessary to decline to follow Williams or to deal with other points raised by the appellant. In my opinion, Williams is incorrect and should be overruled.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 19th day of December 1995

The appellants were all convicted in the District Court on 2 June 1995 of entering a dwelling house in the night with intent to commit an indictable offence. That indictable offence was assault upon one of the occupants of the house, Russell Matheson. The offence is one under s.420 of the Criminal Code which provides:

"Any person who enters or is in the dwelling house of another with intent to commit an indictable offence therein, is guilty of a crime, and is liable for imprisonment for seven years. If the offence is committed in the night, the offender is liable to imprisonment for fourteen years."

At the end of the Crown case counsel for the appellants submitted that the Prosecution had not proved a prima facie case and sought a directed acquittal. There was evidence upon which the jury could have concluded that the appellants entered the house with intent to assault Matheson. But it was submitted on their behalf that a necessary element of the offence was absence of consent, on the part of a lawful occupier of the house, to that entry; and that such absence of consent had not been proved. The learned trial Judge accepted the first of these submissions but rejected the second. He therefore refused the application. It is that refusal which gives rise to this appeal.

If, as the learned trial Judge accepted, absence of consent by an occupier to the appellants' entry was a necessary element of the offence, other questions argued on this appeal will arise. But if it was not then, as the appellants conceded, the appeal must fail. It is necessary therefore to turn first to this question.

There is nothing on the face of s.420 which requires absence of consent to entry as a necessary element of the offence which it creates. The relevant elements stated in the section are:

1.         entry of the dwelling house of another;

2.         with intent to commit an indictable offence therein. Moreover to imply absence of consent as a necessary element of the offence

would have some curious consequences, particularly when one has regard to the alternative offence created by the section of being in the dwelling house of another with intent to commit an indictable offence. Plainly absence of consent to entry is not an element of the latter offence. The ordinary meaning of the section appears to be that the former offence involves entry with the relevant intent whilst the latter involves the formation of that intent after entry. This meaning was accepted by Street C.J. in interpreting s.114(1)(d) of the Crimes Act (N.S.W.) which is in similar terms to s.420: R. v. Dugan [1984] 2 N.S.W.L.R. 554 at 562, the other members of the Court agreeing.

However the construction urged by the appellants and accepted by the learned trial Judge would require an additional or alternative difference between the former and latter offences; that absence of consent is necessary for the first but not the second. It is difficult to see the logic of either view. If it is an additional requirement of the first then a person who has entered by consent and who forms the intent to commit an indictable offence after entry would be liable but a person who enters by consent not obtained by threat or artifice or collusion who has formed the relevant intent before entry would not. And if it is an alternative requirement it would have no point because, in that case, all cases coming within the first would be subsumed within the second.

It was not submitted on the appellants' behalf that the context in which s.420 is found requires a construction of it other than that yielded by its ordinary meaning. However it was submitted that there is authority which supports the construction contended for by the appellant. That was R. v. Williams [1988] 1 Qd.R. 289 or, more specifically, the judgment of Carter J. in that case.

That case concerned s.419. The appellant, on the night of the offence, entered the flat of another by opening a closed door with the intention he said of smoking marijuana there pursuant to an invitation which had been issued to him on an earlier occasion. The decision of the Court of Criminal Appeal was that he ought to have been allowed, in his trial, to rely on s.22 of the Criminal Code to support a defence that he honestly believed he was entitled to open the door and enter the flat for the purpose he said. During the course of their judgments each of the members of the Court considered the question whether the offence under s.419 was limited to the case where the entry occurred without the consent of the owner. Macrossan J. (as his Honour then was) found it unnecessary to determine whether "in certain circumstances" the suggested limitation may legitimately be read into the section: at 294-5. Carter J., in a number of passages relied on by the appellant in this case, concluded that such a limitation should be read into s.419 in reliance, it would seem, on the analogy of the common law position and that under the Theft Act 1968 (U.K.) which defines burglary as having been committed by a person who enters a building as a trespasser: at 300-303. de Jersey J., whilst not finding it necessary to resolve this question, found it difficult to accept that burglary might occur in cases of consensual or authorised breaking and entering of buildings because, he thought, the final paragraph of the definition of breaking and entering in s.418, which deems obtaining entry by means of any threat or artifice to be a breaking and entering, assumed an absence of consent or authority in a situation of burglary.

It is unnecessary to consider in this case whether, for the reason given by de Jersey J. in Williams, burglary cannot occur where the entry is authorised by the owner or other lawful occupier. But it is difficult to see how the relevant definition in the Theft Act, or for that matter the position under the common law, can assist in construing s.420 particularly where, as here, it would require a construction inconsistent with the plain meaning of the section. It was not suggested that that meaning gave rise to any absurdity, particularly when one has regard to the provisions of Chapter V of the Code. Indeed, as mentioned above, the construction contended for by the appellants gives rise to some absurd results. Nor was any policy reason advanced for the construction contended for.

In my view s.420 should be construed in accordance with its plain literal meaning. No words should be implied in it requiring, as a necessary element, absence of consent on the part of the owner or lawful occupier. It follows, as the appellants have conceded, that the appeal must be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 284 of 1995 C.A. No. 285 of 1995 C.A. No. 286 of 1995 C.A. No. 287 of 1995
Before	Fitzgerald P Davies JA Mackenzie J

[R v. Rigney, Ellis, Ellis & Brown]

THE QUEEN

v.

TIMOTHY ROBERT RIGNEY
GREGORY LOUIS ELLIS
LEONARD MALCOLM ELLIS and
MARK EDWARD BROWN

Appellants

JUDGMENT - MACKENZIE J

Judgment Delivered 19 December 1995

This is an appeal against convictions for entering a dwelling-house of Russell Jason

Matheson in the night-time with intent to commit an indictable offence therein. The offence

particularised was an unlawful assault upon Matheson. The appellants were acquaintances of a

young man named Troy Ricketts who had resided at the house in question for two or three months

prior to relevant events. On the evening of 11 January 1995 Matheson told Ricketts he had to leave

and, according to Matheson, gave him two weeks notice. Ricketts left the dwelling immediately

leaving his belongings behind.

On the evening of 13 January 1995 at about eleven o'clock or later Ricketts and the four appellants went to the vicinity of Matheson's residence while Ricketts retrieved his belongings. There was evidence that Ricketts had been told by Matheson that the four youths were not welcome

at the premises and that Ricketts had told them so at some previous time. The matter went to the

jury on the basis that Ricketts had asked them to assist him if Matheson caused trouble. There was

some evidence that Ricketts was concerned that there might be trouble. There was, in fact, an

altercation about money allegedly owing. There was evidence that Ricketts had tried to persuade

Matheson to accompany him into the yard, perhaps to get cuttings from a plant growing there, but

Matheson declined. Ricketts left the house and, shortly afterwards, returned. The four youths also

went into the house and Matheson was assaulted but in the process managed to wound two of the

appellants. The case was left to the jury on the basis that the youths said that they did not enter the

dwelling-house with intent to unlawfully assault Matheson but to protect Ricketts. By its verdict the

jury must have been satisfied beyond reasonable doubt that the four youths entered the dwelling-

house with intent to unlawfully assault Matheson. The case was also left to the jury on the basis that

notwithstanding that they had been told that they were not welcome at the house the jury had to be

satisfied that they did not honestly think that they were entitled to enter the dwelling-house on the

basis that Ricketts had asked them to help him if Matheson caused trouble. In a redirection the jury

was told if they honestly thought they were entitled to enter the dwelling house to protect Ricketts

they would have the protection of s.22. By its verdict, the jury must have excluded this defence.

The sole ground of appeal in each case is that the trial judge erred in law in ruling that there

was a case to answer at the conclusion of the case for the prosecution. The basis for this submission

was that the evidence that the appellants knew that they were not welcome at the premises emerged

only in the defence case during which Ricketts and each of the accused persons gave evidence. The

argument was that at the end of the Crown case, the prosecution could not prove beyond reasonable

doubt that there was a lack of consent to the appellants entering the premises. There had been a submission of no case to answer but the learned trial judge ruled against it. The trial judge accepted

that lack of consent was an element of the offence but held wrongly that there was sufficient

evidence to establish a prima facie case. It was submitted that the offence of entering the dwelling-

house of another with intent to commit an indictable offence involved proof that the alleged

offender lacked permission to enter. Particular reliance was placed on R v. Williams

(1988)1Qd.R.289.

On the other hand the Crown submitted that the consent of an occupier to enter is irrelevant

on a charge of entering a dwelling-house with intent. Reliance was placed on R v. Dugan (1984) 2

NSWLR 554. It was submitted that unlike the position under the Theft Act (UK) and other laws

based on the concept of entry as a trespasser there was no justification to imply an element of

nonconsensual entry into s.420.

Under legislation where an element of the offence is that the offender is a trespasser the issue

of actual consent or a belief in consent to entry is a critical issue. The intention of such legislation

was to sweep away the complexities which existed under previous law which depended on concepts

of breaking and entering (R v. Collins (1972) 56 Cr App R554). For example under the pre-existing

law there was a technical meaning of breaking not unlike that in the first two lines of s.418(3) of the

Code.

In my view it is inconsistent with proper principles of interpretation of the Code to have

regard to statutory provisions based on trespass in interpreting sections 418 to 420. In R v. Dugan it

was argued that under a statutory provision identical in material respects for present purposes proof

of an unlawful entry to premises was required. Street CJ with whom Moffitt P and O'Brien CJ of

CrD agreed said the following:

"Its ingredients, as the section states, for presently relevant purposes, are first entering a building, and, secondly, with intent to commit a felony in the building. It was alleged and proved by the Crown, to the satisfaction beyond reasonable doubt of the jury, that the appellant did enter the service station building and that at the time he had the intent to commit a robbery in that building. The circumstances of the entry do not appear to me to be called in question by the terms of the section. The actus reus is the act of entry. The mens rea is the intent to commit the robbery in the building. The coincidence in point of time of these two ingredients is what is encompassed within the Act, and, Mr Papayanni not having been able to point to any satisfactory basis either in logic or in any decided case to the contrary, must fail in the contention that there is a character to be placed upon the entry beyond the mere fact of its being accompanied by the intent referred to in the section."

In my opinion s.420 bears a similar interpretation. It is sufficient for the Crown to prove the

external element of an entry to the dwelling-house of another with which the mental element of an

intent to commit an indictable offence coincides temporally. The fact that there is a cognate offence

of being in a dwelling-house of another with intent to commit an indictable offence strengthens this

interpretation. Any question of consent to presence in the dwelling-house under such offence is

irrelevant. It is not in my view appropriate to resolve the question of criminality by inferences as to

what the presumed scope of authority to enter or be in the premises is. If this interpretation is

alleged to create anomalies, particularly in cases where the indictable offence intended to be

committed is one to which consent cannot be given even though entry or presence on the premises

for the purpose of committing it may be consented to (as, for example, in Chapter 22 or the Drugs

Misuse Act) any abuse of the offence provision can be adequately controlled by sensible prosecution

policies and, if necessary, guidelines (Director of Public Prosecutions Act 1984, s.11). With respect

to R v. Williams, I agree with what has been written by the President. On this analysis of the matter,

there was a case to go to the jury at the end of the Crown case. In my opinion the appeal should be

dismissed.