Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338
- Court: High Court of Australia
- Decided on: 7 June 1983
- Judges: Mason, Murphy, Brennan, Deane and Dawson JJ.
- Area of law: Burglary; Entering building as a trespasser with intent to steal
This case involves a legal question under section 76 of the Crimes Act 1958 (Victoria). For conviction of burglary under the said section: two elements viz. intent to steal and trespassing are necessary. The intent to steal was present but the question was: whether a person who has limited authority to enter premises but enters with intent to steal is considered a “trespasser.”
Facts of the case (Barker v The Queen)
In December 1979, Curl went on vacation and asked his neighbour, the applicant, to keep an eye on his house. He provided the applicant with a concealed key and authority to enter the house if necessary. While Curl was away, his sons visited the house and found the applicant and another man, McFarlane, there. The applicant claimed to be fixing windows. The next day, the sons discovered many items missing and notified the police. The applicant and McFarlane were charged with burglary.
Curl confirmed that the applicant had authority to enter the house but not to remove any items, although he conceded that the applicant could have done so if it was necessary for preservation. The applicant admitted taking the goods but claimed he did so to protect them. The jury, however, convicted him of burglary, rejecting his explanation and concluding that he had entered the house with the intent to steal.
The trial judge instructed the jury that if the applicant entered the house with the intent to steal, his purpose was beyond the authority given by Curl and thus constituted trespassing. His leave to appeal was refused by the Court of Criminal Appeal in Victoria. The applicant then sought a special leave to appeal to the High Court.
The legal issue
The key question was whether someone who is given limited authority to enter a property becomes a trespasser if they enter with intent to steal.
Relevant section
Section 76 of the Crimes Act provides:
“(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 property in the building or part in question –
which is punishable with imprisonment for a term of five years or more …….”
High Court’s Findings in Barker v The Queen
The Court agreed with the trial proceedings.
It held that the concept of trespass under common law is well established, with trespass being defined as entry onto another’s land without authority or right. Even when permission is granted, if the individual enters the premises for a purpose not authorized by the permission (in this case, theft or especially where that purpose is unlawful), that person becomes a trespasser. This is supported by case law such as Reg. v. Jones and Smith (1976), where the English Court of Appeal held that entering premises with the intention to steal, even if permission to enter was initially given, can render the person a trespasser.
Thus, under section 76 of the Crimes Act 1958, the applicant can be considered a trespasser because, while initially authorized to enter, his intent to steal exceeded the scope of the permission granted, rendering his entry unauthorized and, therefore, unlawful. The conviction for burglary under the said section is, hence, supported by the legal definition of trespass.
The court granted special leave to appeal but ultimately dismissed the appeal.
Quote from the case
“Accordingly, ………… the common law principle that a person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority, then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority.”
(By Mason J. at p346)
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