Doolan v Eaton [2011] NTSC 52

 

PARTIES:                                         JOSHUA DOOLAN

 

                                                         v

 

                                                         DONALD JOHN EATON

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 1 of 2010 (20932616)

 

DELIVERED:                                   8 July 2011

 

JUDGMENT OF:                              SOUTHWOOD J

 

APPEAL FROM:                               BAMBER SM

 

CATCHWORDS:

 

APPEAL AGAINST CONVICTION – unlawful entry – scope of authority to enter – entry for the sole purpose of committing the crime of stealing – appeal allowed

 

Accommodation Providers Act (NT) s 5

Crimes Act (Vic) s 76

Criminal Code s 1, s 26(1)(d), s 31(1), s 210, s 213

Police Administration Act s 134(2)

 

Barker v The Queen (1983) 153 CLR 338; Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 584, applied

R v Walkington [1979] 2 All ER 716, distinguished

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     A Pyne

    Respondent:                                  S A Robson

 

Solicitors:

    Appellant:                                     Central Australian Aboriginal Legal Aid Service

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Sou1107

Number of pages:                             19


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Doolan v Eaton [2010] NTSC 52

No. JA 1 of 2010 (20932916)

 

 

                                                     BETWEEN:

 

                                                     JOSHUA DOOLAN

                                                         Appellant:

 

                                                     AND:

 

                                                     DONALD JOHN EATON

                                                         Respondent:

 

CORAM:     SOUTHWOOD J

 

REASONS FOR JUDGMENT

 

(Delivered 8 July 2011)

 

Introduction

[1]       The appellant has appealed against his conviction, by the Court of Summary Jurisdiction, of the crime of unlawful entry of the Desert Rose Motel Inn[1]

[2]       The appeal arises after a summary trial in which the appellant was charged on information with four counts of offending as a result his entry of the Inn in Alice Springs on 26 September 2009.  Count 1 charged that contrary to s 213 of the Criminal Code the appellant unlawfully entered the Inn with intent to commit the crime of stealing therein.  Count 2 charged that contrary to s 210 of the Criminal Code the appellant stole a six pack of Jim Beam and Cola cans valued at $25, the property of the Inn.  Count 3 charged that contrary to s 213 of the Criminal Code the appellant unlawfully entered the Inn a second time with intent to commit the crime of stealing therein.  Count 4 charged that contrary to s 210 of the Criminal Code he stole cash of an unknown amount, the property of the Inn.  In addition, the appellant was charged on complaint with giving a false name when required by a member of the police force to give his name contrary to s 134(2) of the Police Administration Act.  The appellant pleaded guilty to counts 2 and 4 and to the charge on complaint and not guilty to counts 1 and 3.  The trial Magistrate found the appellant not guilty of count 1 but guilty of count 3 which is the subject of the appeal. 

[3]       There was no dispute between the prosecution and the defence that on the day in question the appellant entered the foyer of the Inn on two occasions and went through a doorway into an office where he committed the crimes of stealing which were the subject of counts 2 and 4.  The primary issue at the trial was whether the appellant had entered the Inn unlawfully, which turned on the scope of his authority to enter the building. 

[4]       At trial, counsel for the appellant argued that on both occasions the appellant entered the Inn, the appellant’s entry was lawful because he entered the building under an implied general authority (that is, a permission without relevant limitation) to enter the building during business hours that was given to members of the public by the proprietor and occupier of the Inn.  The appellant’s authority to enter the Inn was similar to the implied general authority to enter granted to members of the public by shopkeepers.  The authority was not limited to the purposes of doing business or investigating the possibility of doing business or to any other purpose.  It was also argued at the trial, that the trial Magistrate could not conclude on the evidence before him that the appellant knew his entry into the Inn was unlawful.

[5]       The grounds of appeal are as follows.

1.            The trial Magistrate erred in law by finding that the appellant unlawfully entered the Inn.

2.            The trial Magistrate erred in finding that the appellant entered the Inn knowingly in contravention of the authority to enter granted to him.

3.            The trial Magistrate erred in law by concluding that the authority extended to members of the public to enter the Inn only extended to those members of the public who entered for a lawful purpose.

4.            The trial Magistrate erred in law by finding that the office inside the Inn was a building for the purposes of s 213 of the Criminal Code.

The issues

[6]       The principal issue in this appeal is the issue raised by the first ground of appeal: was the appellant’s second entry of the Inn unlawful.  Resolution of the principal issue is dependent upon the resolution of two subsidiary issues.  First, what was the scope of the appellant’s authority to enter the Inn?  Second, was the appellant’s second entry of the Inn outside the scope of his authority to enter?

[7]       In resolving the principal issue it is necessary to note that the appellant was charged with unlawfully entering the Inn, not the office inside the Inn.  Count 3 on the information is pleaded as follows, “On 26th September 2009 at Alice Springs in the Northern Territory of Australia [the appellant] unlawfully entered a Building, namely, the Desert Rose Motel Inn [emphasis added] contrary to s 213 of the Criminal Code and that the said unlawful entry involved the following circumstance of aggravation: that the said Joshua Doolan intended to commit the crime of stealing therein.” 

[8]       Further, the trial Magistrate made two very important findings of fact.  First, he found that “the [Inn] is a building.  It has a reception, as do most hotels and motels, and that reception was open and accessible to the public, given the time of day when the appellant [entered the Inn].”  Second, “the [appellant] was authorised in the sense that it was open to him to enter into the reception area, and it could not be shown in entering into the reception area of the [Inn] he was unlawfully entering [the building].”  His Honour did not find that there was any relevant limitation on the appellant’s authority to enter the reception area of the Inn.  In particular, he did not find that the appellant’s authority to enter the Inn was confined by reference to his purpose in entering the Inn. 

[9]       Given the above findings of fact of the trial Magistrate, the answers to the two subsidiary issues are the appellant had a general authority to enter the Inn and his entry of the building on the second occasion was not outside the scope of that authority.  The appellant’s second entry of the Inn was lawful and the trial Magistrate erred in finding to the contrary.  The fact that a person enters a building with the purpose of stealing goods or cash which he is not authorised to do while inside the building does not, in the ordinary case where his permission or authority to enter is not confined by reference to purpose, result in the actual entry being outside the scope of the authority to enter the Inn[2]

[10]     Rather than correctly apply the principles enunciated in Barker v The Queen[3] the trial Magistrate misdirected himself and wrongly applied R v Walkington[4].  In the circumstances, the first ground of appeal is made out and the appeal should be allowed. 

The background facts

[11]     At the trial, the Crown led evidence from three witnesses, Mr Brian Stuart Dente, the owner and occupier of the Inn, and two police officers who apprehended the appellant.  The prosecution also tendered CCTV footage taken at the time of the offending.  The CCTV footage showed the foyer and the reception areas of the Inn and the appellant stealing the six cans of Jim Beam and Cola and the money.  The prosecution case essentially relied on the testimony of Mr Dente and the CCTV footage. None of the witnesses were cross examined by the defence and the appellant did not give evidence.  Mr Dente’s evidence is summarised below.

[12]     At 6.15 pm on 26 September 2009 Mr Dente was talking to some friends in the kitchen area of the Inn.  He was feeling cold so he went home to put on a jumper and then he went to the office.  He saw the appellant at the fridge which was in the office behind the counter.  The fridge was not located in a place that enabled people to help themselves to its contents and then take the items to be purchased to the front counter at reception.  There was a distance of about two metres between the fridge and the counter, which was quite high.  If the office was unoccupied, customers could get Mr Dente’s attention by ringing a bell that was in the centre of the front counter.  The bell had a sign on it inviting customers and guests to ring for assistance.  The appellant was not a guest of the Inn and nobody gave him express permission to enter the Inn or the office. 

[13]     It was common ground that the office inside the Inn was not open to members of the public.  Mr Dente described the office area as follows.  The front door of the Inn is on the street.  The counter in the reception area of the Inn is about ten paces from the front door.  To get into the office it is necessary to go through another door that leads into the office or climb over the reception counter.  The door to the office and the reception counter separate the office from the foyer area which is open to the public.  When Mr Dente left the office to speak to his friends, the office door was closed but unlocked.  

[14]     Mr Dente said he saw a female first.  She was inside the building near the front door.  She was signalling to the appellant with her hands.  She left the building as soon as he arrived.  He kept walking and he saw the appellant behind the counter.  The appellant was standing near the fridge and its door was slightly ajar.  He was bending over a little bit and looking into the fridge.  The fridge contained soft drinks and alcohol.  Mr Dente went straight to the door of the office and said, “What are you doing here?”  The appellant just kept saying, “Yeah, yeah, yeah”.  Mr Dente grabbed hold of the appellant by the shoulders and started to pull him out of the office.  He and the appellant had a scuffle and the appellant broke free and rushed out the front door of the Inn.

[15]     After the appellant left the Inn, Mr Dente checked the CCTV footage of the office and reception area.  He also noticed that there was a six pack of Jim Beam and Cola missing from the fridge and approximately $700 to $800 cash missing from a drawer in the office.  Mr Dente contacted the police and the appellant was subsequently apprehended.

[16]     As to who had permission to enter the Inn, Mr Dente’s evidence was as follows:

COUNSEL:         Now, in relation to who can enter the Desert Motel, are you able to advise the Court who has permission to enter that area?

MR DENTE:        Any member of the public can enter through the foyer area.

COUNSEL:         And what’s that for the purpose of?

MR DENTE:        For – mainly to book or register for accommodation.  Occasionally, we do get people that get caught short at Centrelink coming in, wanting to use the toilets.  There are no public toilets there.

[17]     Significantly, the prosecutor did not ask the appellant if entry to the Inn was limited to the purposes referred to in par [16] above or to any other purpose.  On the basis of the evidence referred to in par [16] above any member of the public had permission to enter the Inn or at the very least the evidence did not exclude the possibility consistent with innocence that the authority to enter the foyer was unlimited.

[18]     Mr Dente was then asked if he sold the alcohol and soft drinks that were in the fridge.  He answered that the alcohol was only sold to guests.  He has a private hotel licence.  However, he did sell soft drinks or water to anyone who wanted to purchase them. 

[19]     The reception area was open from 8.00 am to 7.00 pm seven days a week unless a tour bus was late.  In those circumstances, the back door remained open until 9.30 pm. 

The findings of the trial Magistrate

[20]     The trial Magistrate made the following findings of fact which are of relevance to this appeal.

[21]     There has not been any dispute on the facts.  The owner of the Inn came in and found the appellant on the premises.  The Inn is a building.  It has a reception, as do most motels and hotels, which was open and accessible to the public at the time of day the appellant entered the Inn. 

[22]     Upon entering the reception area, the appellant saw there was an office which was divided from reception by a counter.  Behind the counter were the usual types of business machines and against the wall behind the counter was a fridge.  The fridge contained alcohol and soft drinks.  The appellant walked through the office doorway and accessed the fridge.  On the first occasion the appellant entered the office he took a six pack of Jim Beam and Cola cans from the fridge.  He then left the Inn.  The appellant returned a short time later.  He again went into the office and on this occasion he took some money from a drawer in the office.  The appellant went into a part of the building which is not normally open to the public. 

[23]     I interpose to state that it was not suggested by the prosecution that the appellant’s authority to enter was revoked as a result of him stealing the Jim Beam and Cola when he first entered the building.

[24]     The trial Magistrate then stated:

The questions here are whether the [appellant’s] authority to enter the building extends to the area in which he walked, whether he was aware or not that that authority did not extend.  The other issue, as I see it, is whether the area of the office can be treated distinctly and separately from the area of the reception-cum-office, and then finally there is the issue of having the intent at the time of entry. 

[25]     In posing the first three questions or issues, the trial Magistrate misdirected himself.  These questions are taken from the decision of R v Walkington[5] which is a decision of the Court of Appeal of England.  They do not arise in this case.  The appellant was not charged with entering the office inside the Inn.  The questions which the trial Magistrate should have asked in this case are: (1) what was the scope of the appellant’s authority to enter the Inn, in particular was the scope of his authority confined by the purpose of entry, and (2) did his entry on the second occasion exceed the scope of his authority?

[26]     The trial Magistrate then stated that the matter was somewhat complicated because the Criminal Code (NT) is not in the same terms as the Crimes Act (Vic)[6].  Unlike s 76 of the Crimes Act (Vic), the definition of “building” under the Criminal Code (NT) did not refer to part of a building.  His Honour stated that the fact is that in the Northern Territory the offence is committed if the person unlawfully enters a building without authorization justification or excuse.  His Honour then stated it seemed to him that the appellant was authorised in the sense that it was open to him to enter into the reception area, and it could not be shown that in entering the reception area the appellant was unlawfully entering.

[27]     However, despite noting the distinction between the s 213 of the Criminal Code (NT) and s 76 of the Crimes Act (Vic) and finding that it could not be shown that in entering the reception area the appellant was unlawfully entering, his Honour then stated that he believed that when the appellant entered the office he was clearly going beyond his authority and was unlawfully entering that part of the building.  He then applied R v Walkington[7].  He did so in error.  He stated:

However, the question here is that he has not been charged with unlawfully entering a building, as in part of the Desert Rose Motel, but in fact a building, the Desert Rose Motel.  If I follow Walkington I do not think it would matter.  Walkington clearly allows for the breaking up of buildings, even when there are not distinctly separate rooms, even parts of the building, such as an area behind a counter, even when there is not a separate structure of a room.

[28]     The trial Magistrate could not be satisfied that the appellant’s entry into the Inn on the first occasion was unlawful.  He could not be satisfied that the appellant did not enter the building on the first occasion for “a lawful purpose, and as such, enter [the building within his] authority [emphasis added], and his intent to steal may have very well not arisen until he was already in the building.  His Honour stated that because he believed there was a possibility that the appellant’s initial entry to the Inn was for a lawful purpose it had not been shown beyond reasonable doubt that the first entry was unlawful at the time of entry.  Accordingly, his Honour dismissed  count 1.  

[29]     The trial Magistrate found that it was beyond reasonable doubt that the appellant’s second entry was clearly not for any lawful purpose.  The appellant entered the Inn on the second occasion to access the unauthorised part of the Inn with the specific intention to steal.  For these reasons his Honour found count 3 proven. 

Section 213 of the Criminal Code

[30]     So far as is relevant to this appeal s 213 of the Criminal Code states as follows.

Any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence.

[31]     “Unlawfully” means without authorisation, justification or excuse.  In the context of this case the act of entry is authorised if it is done pursuant to authority, permission or licence[8].  “Enters”, in relation to a building, includes the entry into the building of any part of the body of the person said to have entered that building or part of an instrument used by him.  “Building” means any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community, to which the owner or occupier of it belongs and that is used or intended for the occupation of a man or his animals or the storage or shelter of his goods.  It includes a caravan, ship and an erected tent used or intended for any such purpose[9].

[32]     Section 213 of the Criminal Code creates a crime of entry.  It criminalises serious trespassory entries into a building.  An unlawful entry disturbs the right of occupation.  It is not necessary for any further crime to be committed for the crime of unlawful entry to be made out.  The crime is complete as soon as the unlawful entry with the specified intent has been affected.  Trespassory entry as opposed to presence within the building is the gist of the crime.  The purpose of the section is to protect the owner’s or occupier’s interest in determining who shall enter the building and their right to exclude others from the building or restrict their entry.

[33]     There are two distinct and substantive parts to the crime of unlawful entry.  First, there is the unlawful entry.  Second, there is the specified intent.  In addition to the specified intent, the act of unlawful entry itself must be accompanied by the requisite mental state.  The person must intend to unlawfully enter the building[10].  The elements of an offence of unlawful entry are: (1) the person voluntarily and deliberately entered the building; (2) the person entered the building without authorisation, justification or excuse; (3) at the time he entered the building the person was aware that he did so without authorisation or justification or excuse in entering the building; and (4) at the time the person entered the building he intended or meant to commit an offence inside the building, in this case the crime of stealing. 

[34]     The elements of the offence are governed by the text of s 213 and all other relevant provisions of the Criminal Code.  However, common law principles which are applicable to the circumstances in which a person will be authorised or permitted to enter a building may be applicable when determining the existence, nature and extent of the authorisation to enter which a person has on a particular occasion. 

[35]     When the permission or authority of the person entitled to possession is relied upon to justify what would otherwise constitute a trespass, a person enters a building as a trespasser at common law if his entry is beyond the scope of the permission or authority[11].  If the permission or authority to enter is limited in scope, then an entry which is solely for a purpose unrelated to the permission or authority to enter will amount to an unlawful entry or a trespass[12] as the entry would be without authority or permission.  A person who has an authority or permission to enter the building of another for a specific purpose commits a trespass if he enters solely for any other purpose, especially an unlawful purpose.  For good reason he stands in no better position than the person who enters without any permission at all[13].  His entry is unrelated to the authority or permission that has been granted.  However, if a person enters a building for a purpose which is within the scope of his authority, his entry is authorised; it is not made unlawful because he enters with another purpose in mind including an unlawful purpose[14].  A person cannot be at one moment of time both a trespasser and not a trespasser in respect of the same building[15].

[36]     A permission or authority to enter a building need not be confined by reference to the purpose of entry and, except in the case where it is so confined, a purpose of subsequently doing an unlawful act will not, under the common law, convert an entry which was otherwise within the permission or authority into an unlawful entry[16].  When the authority or permission to enter a building is unlimited, an illegitimate purpose on the part of the entrant does not affect the status of his entry or make the entry unlawful.  The fact that a person enters with the purpose of stealing, or of otherwise behaving in a manner which is beyond what he is permitted or authorised to do while in the building, does not in the ordinary case where the permission or authority to enter is unconfined by reference to purpose result in the actual entry being outside the scope of the permission or authority to enter[17].

[37]     Whether a person has authority or permission to enter a building is ordinarily a question of fact to be determined by the circumstances of the case[18].  The answer to the question is not to be complicated by any artificial notions.  If the authority or permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not unlawful.  If the entry was subject to an express or implied limitation which excluded the actual entry, the entry was unlawful[19].  Entry will be unlawful if, as a matter of substance and fact, the entry in question is beyond the scope of the authority or permission granted to the entrant[20].

Consideration

[38]     On the evidence in this case the trial Magistrate did not find that the authority granted to the appellant to enter the Inn was confined by reference to the purposes of entry and the evidence did not exclude the possibility, consistent with the appellant’s innocence, that the appellant had a general authority to enter the Inn.  This meant that it could not be proven that the appellant’s actual entry of the Inn on the second occasion was beyond the scope of his authority to enter.  The Australian cases establish that the fact that a person enters a building with an intention to steal does not, in the ordinary case where the authority to enter is unconfined by reference to purpose, result in the actual entry being outside the scope of the authority to enter.

[39]     The English case of R v Walkington[21] is of no assistance to the respondent.  The case is predicated on the facts that under s 9(1)(a) of the Theft Act (UK) a person may be guilty of burglary if “he enters a building or part of a building [emphasis added] as a trespasser, and the appellant in that case entered part of a shop to which entry was prohibited.  At the outset of the judgment, the Court of Appeal of England stated that it is important to see what it was that the appellant was charged with precisely[22].  The appellant was charged with entering “as a trespasser part of a building known as Debenhams Store with intent to steal therein”, not with entering Debenhams Store.  The Court of Appeal then set out certain passages of the trial judge’s directions to the jury and stated[23]:

In those two passages the judge, as this court thinks, is explaining in clear and accurate language to the jury what it is they have to decide: first of all, so far as the store was concerned, was this area prohibited, was it off limits?  Secondly, if so, did the defendant realise when he crossed that limit that the area was off limits?  Thirdly, at the time when he crossed that limit, the first two questions having been decided against the defendant, did he have an intent to steal?

[40]     After referring to the first ground of appeal, the Court of Appeal in R v Walkington then went on to state, “what the prosecution had to prove here was that the appellant entered a part of the building as a trespasser with intent to steal anything in that part of the building”[24].  Unlike the facts of R v Walkington, the appellant in this case was charged with entering a building not part of a building.   

Precedent

[41]     The outcome of this appeal is based upon the specific findings of fact made by the trial Magistrate and the particular circumstances of the case.  In upholding the appeal, it is not my intention to establish a precedent that the authority granted to members of the public to enter establishments such as the Inn is, generally speaking, the same as the authority granted to members of the public by shopkeepers.

[42]     There is a lot of force in counsel for the respondent’s submissions that the authority granted to members of the public to enter establishments such as the Inn may be limited by reference to the purposes of entry - enquiring about, booking or obtaining accommodation.  The proprietor of an establishment such as the Inn is an accommodation provider.  Such establishments are held out as providing, without any special contract, sleeping accommodation to persons presenting themselves who appear to be able and willing to pay a reasonable sum and who are in a fit state to be received. 

[43]     It is arguable that the proprietors of establishments such as the Inn, which are not common inns and have private hotel licences, are not in equivalent business positions to shopkeepers nor are their customers in equivalent positions.  Unlike a shopkeeper, the proprietor of an establishment such as the Inn is obliged to provide accommodation to people and receive their motor vehicles, their luggage and other possessions and is frequently required to place them in safe keeping.  The proprietor of the Inn may be liable under statute[25] in his capacity as an accommodation provider for loss by theft of property brought into the motel by guests or liable in negligence for the loss of property.  The proprietors of such establishments may have a particular interest in determining who shall enter the building and in maintaining their right to exclude others from the building or restrict their entry.

[44]      Entry of a building will be unlawful if, as a matter of substance and fact, the entry in question is beyond the scope of the authority or permission granted to the entrant[26].

Orders

[45]     The appeal is allowed and the appellant’s conviction and sentence for count 3 on the information are set aside.

-----------------------------

 



[1]    Hereafter referred to as “the Inn”.

[2]    Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 362.

[3]    (1983) 153 CLR 338.

[4]    [1979] 2 All ER 716.

[5]    [1979] 2 All ER 716.

[6]    s 76 of the Crimes Act (Vic) is in similar terms to s 9 of the Theft Act 1968 (UK).

[7]    [1979] 2 All ER 716.

[8]    s 26(1)(d) Criminal Code (NT).

[9]    For all of these definitions see s 1 of the Criminal Code (NT).

[10]   s 31(1) of the Criminal Code.

[11]   Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 357.

[12]   Barker v The Queen (1983) 153 CLR 338 per Mason CJ at 342 and 346.

[13]   Barker v The Queen (1983) 153 CLR 338 per Mason CJ at 342 and 346.

[14]   Barker v The Queen (1983) 153 CLR 338 per Mason CJ at 347.

[15]   Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 per Kitto J at 606.

[16]   Barker v The Queen (1983) 153 CLR 388 per Brennan and Deane JJ at 361.

[17]   Barker v The Queen (1983) 153 CLR 388 per Brennan and Deane JJ at 362.

[18]   Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 365.

[19]   Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 364 - 365.

[20]   Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 364.

[21]   R v Walkington [1979] 2 All ER 716.

[22]   R v Walkington [1979] 2 All ER 716 at 717.

[23]   R v Walkington [1979] 2 All ER 716 at 720.

[24]   R v Walkington [1979] 2 All ER 716 at 720.

[25]   s 5 Accommodation Providers Act (NT).

[26]   Barker v The Queen (1983) 153 CLR 338 per Brennan and Deane JJ at 364.