R v WHITEHEAD

[2016] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application for Stay of Proceedings)

R v WHITEHEAD

[2016] SADC 3

Ruling of His Honour Judge Cuthbertson

21 January 2016

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

Application for a permanent stay based on abuse of process on charge of Aggravated Serious Criminal Trespass as prosecution doomed to failure.

Ruling: Applicant could not be said to have "entered as a trespasser" into premises in respect of which he was registered proprietor with the complainant notwithstanding the existence of an interim intervention order requiring the applicant not to "enter" or remain in the vicinity of the protected person's (the complainant's) place of residence.

Element of charge cannot be made out and prosecution must fail.

Orders: Charge of Aggravated Serious Criminal Trespass permanently stayed.

Criminal Law Consolidation Act 1935 (SA) s 168 & s 170; Intervention Orders (Prevention of Abuse) Act 2009 s 12(1)(a) & 12(1)(b), referred to.
Barker v The Queen (1983) 153 CLR 338; R v Khammash (2004) 89 SASR 488 [38], considered.

R v WHITEHEAD
[2016] SADC 3

1. The applicant is charged on information with one Count of Aggravated Serious Criminal Trespass in a Place of Residence.  He applies for a stay of proceedings on the basis that the prosecution can never make out the charge and that to proceed with the prosecution in these circumstances would be an abuse of process.

2. The prosecution alleges that on 13 February 2015 at Campbelltown the applicant entered or remained in the place of residence of the complainant (at Campbelltown) as a trespasser with the intention of committing an offence of assault contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA).

3. The following are agreed facts between the prosecution and the defence.

   1       The complainant is the former spouse of the applicant.

   2       After an alleged incident of domestic violence the applicant and the complainant separated in June 2014 and the applicant moved out of the family home in Campbelltown.

   3       An interim intervention order against the applicant was put      in place on 26 June 2014.

   4       The interim intervention order required the applicant to not,

   1assault, threaten, harass or intimidate the protected person(s).

   2follow or keep the protected person(s) under surveillance.

   3be within 50 metres of the protected person(s).

   4contact or communicate with the protected person(s) either       directly or in any way (including phone, letter, cards, SMS,        messages, E-mail, Facsimile, etc) except with respect to contact and access to children pursuant to any order or direction of the Family Law Court or other Courts exercising jurisdiction under the Family Law Act.

   5enter or remain in the vicinity of the protected person(s) place of residence, place of employment or any other place at which the protected person(s) is staying or working.

   6damage or interfere with the premises where the protected       person(s) is staying, residing or is employed.

   7damage or take possession of personal property belonging to the protected person(s) or the following specified property:        PROPERTY OF PROTECTED PERSONS

   8enter or remain in the vicinity of the following locations:

   
   

   9 KENWYN DRIVE, CAMPBELLTOWN SA 5074

   
   

   (HOME ADDRESS) PENFOLDS WINERY, 78 PENFOLD ROAD,MAGILL 5072 (KELLIE’S WORK ADDRESS)

   9enter or remain in the vicinity of any education or care facility attended by the protected person(s) and at the moment the protected person(s) are attending these facilities at FELIXSTOW COMMUNITY SCHOOL – 5-11 BRIAR ROAD, FELIXSTOW 5070 (CHARLIE’S SCHOOL)        IL NIDO COMMUNITY CENTRE – 22 CAMPBELL ROAD, PARADISE 5075 (JACK AND ELLA’S CHILDCARE CENTRE)

   11publish on the internet, by E-mail, SMS or other electronic means any material about the protected person(s).

   12encourage another person to do anything forbidden by this order.

   5          The applicant and the complainant are both registered     proprietors of the premises at 9 Kenwyn Drive, Campbelltown         and neither has alienated the right of the registered             proprietors to immediate possession of the premises.

4. The prosecution alleges that on 13 February 2015 the applicant entered the back courtyard of the Campbelltown home by climbing over the timber side gate.  He then grabbed a large timber beam and used it to smash the glass sliding door.  He entered the property and chased the complainant towards the bedroom and hit her with the timber beam to her arms and head causing bruising.

5. In order to prove the offence of Aggravated Serious Criminal Trespass in a Place or Residence pursuant to s 170(1) of the Criminal Law Consolidation Act 1935, it is necessary for the prosecution to prove beyond reasonable doubt inter alia that the accused entered or remained in the place as a trespasser.[1]

   [1]    See Criminal Law Consolidation Act 1935 s 168(1).

6. The phrase ‘enter as a trespasser’ should bear its ordinary meaning at common law.[2]

   [2]    Barker v The Queen (1983) 153 CLR 338, 341.

7. This is confirmed by the decision of the South Australian Full Court in R v Khammash.

   … 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.[3]          

   [3]    R v Khammash (2004) 89 SASR 488 [38].

8. The offence was enacted in South Australia in 1999 to operate from 25 December 1999[4] and to replace the old common law offence of housebreaking and enter.

   [4]    Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999.

9. The Intervention Orders (Prevention of Abuse) Act 2009 commenced as from 9 December 2011.  The Act empowers the Court to make orders which inter alia prohibit the subject from being on premises at which a protected person resides or works[5] or prohibit the subject from being on specified premises frequented by a protected person.[6]      

   [5]    Intervention Orders (Prevention of Abuse) Act 2009 s 12(1)(a).

   [6]    Intervention Orders (Prevention of Abuse) Act 2009 s 12(1)(b).

10. The prosecution agrees that the only basis upon which it can argue that the applicant when he entered upon the premises and assaulted the complainant was a trespasser is by reliance on the interim intervention order which prohibited the applicant from being on the premises of the complainant.

11. I am of the view that while the intervention order may, and in this case did, prohibit the applicant from being on the premises of the complainant at the address of 9 Kenwyn Drive, Campbelltown, it does not do so by redefining the definition of a trespasser and by deeming the applicant to be a trespasser.

12. Indeed in the absence of the Intervention Orders (Prevention of Abuse) Act 2009 the applicant cannot possibly be said to be a trespasser on the prosecution allegations.

13. The prosecution agrees that in order for there to be a case to answer on the charge it would require that the Intervention Orders (Prevention of Abuse) Act 2009 somehow redefines the definition of ‘trespasser’ in the Criminal Law Consolidation Act 1934.

14. I am unable to find that it does so.

15. While on the prosecution version of facts the applicant has clearly committed an offence consisting of a breach of the Intervention Orders (Prevention of Abuse) Act 2009, he has not committed an offence against s 170(1) of the Criminal Law Consolidation Act 1934.He has not entered as a trespasser because, being the registered owner of the property and not having alienated his right to possession, he is entitled to be on the premises at any time except by virtue of the intervention order under the Intervention Orders (Prevention of Abuse) Act 2009.  That Act does not make him a trespasser on his own land but merely makes it an offence against that Act for him to be in breach of that Act.

16. Accordingly, I order that the proceedings against the accused on the charge of Serious Criminal Trespass on the information filed in the District Court for arraignment on 7 September 2015, as Count 1 be stayed until further order.

17. The prosecution do not seek to proceed on an alternative charge of Attempted Aggravated Serious Criminal Trespass.