High Court allows appeal against District Court conviction for trespass with intent to commit burglary.

Neutral Citation [2015] IEHC 774

THE HIGH COURT

[2015 No. 352 J.R.]

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA ANDREW DOYLE)

PROSECUTOR

AND

JIMMY CONNORS

DEFENDANT

JUDGMENT of Mr. Justice Hedigan delivered the 8th day of December, 2015

This case is an appeal by way of case stated. The case stated sets out as follows:-

“This is a case stated by me, Bridget Reilly, a Judge of the District Court pursuant to 52(1) of the Courts (Supplemental

Provisions) Act 1961 on the application in writing of the defendant, being dissatisfied with my determination in the above

entitled proceedings as being erroneous in point of law, for the opinion of the High Court.

1. At a sitting of Dublin Metropolitan District Court sitting at Tallaght District Court, Westpark, Tallaght, Dublin 24 on April

16th 2014, the defendant appeared before me to answer two complaints the subject matter of charge sheets bearing,

national charge sheets numbers 14413183 and 14413175. A copy of each of the charge sheets which form part of this

case stated, are attached at Annex I.

2. Charge sheet 14413183 alleged an offence contrary to section 11 of the Criminal Justice (Public Order) Act 1994 as

follows:

‘On the 10/01/2014 at 88 Mount Merrion Avenue, Blackrock Dublin ... entered the cartilage of a building, namely 88

Mount Merrion Avenue as a trespasser far the purpose of trespassing thereon in circumstances giving rise to a

reasonable inference that such presence was with intent to commit or to unlawfully interfere with any property

situate therein.’

3. Charge sheet 14413175 alleged an offence contrary to section 11 of the Criminal Justice (Public Order) Act 1994 as

follows:

‘On the 10/01/2014 at 86 Mount Merrion Avenue, Blackrock Dublin... entered the cartilage of a building, namely 86

Mount Merrion Avenue as a trespasser for the purpose o f trespassing thereon in circumstances giving rise to a

reasonable inference that such presence was with intent to commit or to unlawfully interfere with any property

situate therein.’

4. The defendant was at all stages represented by Aonghus McCarthy, solicitor; of Aonghus McCarthy & Co. solicitors of

11 Sunnybank, Conyngham Road, Dublin 11. Another defendant, Myles Connors, was similarly charged. The prosecutor

was represented by Liz Staunton, Solicitor of the office of the Director of Public Prosecutions.

5. The case proceeded to trial. The prosecutor called a single witness, Garda Andrew Doyle. The facts as proved or

admitted or agreed and as found by me were as follows:

(a) Garda Doyle gave evidence that on the 10th January 2014 at 2.00pm he was travelling along Mount Merrion

Avenue in Blackrock, Co. Dublin when the observed three males acting suspiciously at the front door of a house at

86 Mount Merrion Avenue. He observed them then going to another property next door, 88 Mount Merrion Avenue.

Garda Doyle described the Defendants as being ‘huddled around the front doorways of the houses’.

(b) Garda Doyle approached the three men identified himself as a member of An Garda Síochána and enquired as to

their identities. The three men identified themselves as Jimmy Connors, Myles Connors and Miley Connors. Garda

Doyle enquired as to why all the men were in the area and as to why they had been at the front doorways of 86

and 88 Mount Merrion Avenue. All three gave different reasons. The Defendants initially said they were looking for

work but they changed their minds; and each gave different reasons. One reason was that they were looking far

work another reason was that they were collecting money. Garda Doyle described the demeanour of the Defendants

as evasive and defensive in their responses to him.

(c) Garda Doyle also gave evidence that he enquired if each of them knew the residents at 86 and 88 (Mount

Merrion Avenue) and they stated that they did not. Each of the men huddled around the front door of each house

and did not give a reasonable explanation for being there. The Garda said that he had reasonable grounds for

believing that the presence of the three men at the houses gave rise to a reasonable inference that their presence

there was with the intent to commit an offence or to unlawfully interfere with property at the said residences.

(d) At 2.15p m, Garda Doyle informed the three men that he was arresting them under Section 24 Criminal Justice

(Public Order) Act 1994 on suspicion of an offence contrary to Section 11 of the said Act and he cautioned each of

the men accordingly. Jimmy Connors was conveyed to Blackrock Garda Station by Garda Doyle arriving at 2.20pm.

Myles Connors and Miley Connors were conveyed by a Garda Seamus Timmons.

(e) Garda Doyle said that whilst bringing Myles Connors into the garda station, to noticed he was trying to conceal

an item on himself. A watch dropped from his wrist – a Baume and Mericer 18 carat gold watch valued at €4,350

which had been stolen from premises at 1 Richmond Hill, Monkstown about one hour before he stopped the

Defendants. Myles Connors was detained in relation to that matter and certain admissions were made by him in that

regard but he made no admissions as to why he was at the Mount Merrion residences. Myles Connors subsequently

pleaded guilty to the unlawful possession of the stolen watch on April 16th 2014.

(f) Under cross-examination Garda Doyle agreed that the three men were at the front doors of the houses in broad

daylight and were easily visible from the road. He further agreed that there was no suggestion of the men going

around the side or the back of the houses. He further agreed that there was no evidence that the men had house

breaking implements in their possession.

6. No further evidence was called by the prosecutor: An application was then made on behalf of the defence that there

was no case to answer as the prosecution had not proved that the accused had entered property as a trespasser as

required by section 11 of the Criminal Justice (Public Order) Act 1994 which provides as follows:

‘11(1) It shall be an offence for a person

(a) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser,

or

(b) to be within the vicinity of any such building or cartilage or part of such building or cartilage for the purpose of

trespassing thereon,

in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an

offence or with intent to unlawfully interfere with any property situate therein.

(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not

exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.’

7. Following oral submissions by Mr McCarthy and Ms Staunton I adjourned the case to May 12th 2014 to allow the

parties to submit legal submissions in writing to the court.

8. Mr McCarthy for the defendant argued that the golden thread of criminal law is that the onus lies on the prosecution to

prove each ingredient of the offence charged; that there are a small number of exceptions in law where reverse onus

provisions exist, but that no such reverse onus provision is contained within section 11 of the Act referred to herein. Re

submitted that the home owners would be required to give evidence that the three accused were present on their

property qua trespasser without lawful authority, permission or invitation. Mr McCarthy referred to Coonan & O'Toole,

Criminal Procedure in the District Court at p. 695, paras, 19-245 as follows: ‘Put simply, trespass comprises knowingly or

recklessly entering land (in this case a building or curtilage thereof) without invitation or lawful justification.’

9. Mr McCarthy also referred to R v Smith [1978] 3 All E.R. 54 in which case the Court of Appeal considered the meaning

of entry to a building ‘as a trespasser’ under the English Theft Act 1968 which provision is almost identical to the offence

of burglary under the Irish Criminal Law (Theft and Fraud Offences) Act 2001 wherein entry as a trespasser is a requisite

proof. The Court of Appeal decided that the term ‘trespass’ was the same as that under civil law except for the addition

of a mental element, viz.:

‘A person is a trespasser…if he enters the premises of another knowing that he is entering in excess of

the permission that has been given to him, or being reckless as to whether he is entering in excess of

the permission that has been given to him to enter’

In Mr McCarthy’s submission this requires evidence from the prosecution that there has not been any permission

given to the accused; that this evidence can only be given by the person entitled to give or withhold such

permission, by analogy with the burden of proof as to ownership of goods and lack of consent to appropriate goods

in a case of theft from a shop.

10 Ms Staunton for the prosecution in reply argued that there is a ‘low threshold’ in prosecutions of this type. She

submitted there was no need for the owners of the property to give evidence that no permission had been given to the

accused to enter their property. She further submitted that the inference could be drawn (that the defendants had no

such permission) from the evidence of the garda, the demeanour of the men when they were huddled around the

doorways of the houses, the evasive responses to the garda the confirmation to the garda that they did not know the

occupants of the houses. Ms Staunton submitted that the court should have regard to all the circumstances of the case.

Further the fact and circumstances of concealment of the stolen watch and plea of guilty by one of the three men should

also be taken into account by the court.

11. On May 29th 2014 having considered the case, I ruled that in a prosecution pursuant to section 11 of the Criminal

Justice (Public Order) Act 1994 the prosecution must prove that an accused was on property as a trespasser, that the

preferable method of proof was evidence given by the owner/occupier of the property. However I found on the facts of

the present case that there was in my view sufficient evidence to allow me to draw an inference sufficient to prove that

the accused has no permission express or implied to enter the curtilage of the residences, was present as a trespasser

and that the accused had a case to answer. No evidence was called by the defence. I proceeded to convict the accused

and adjourn the matter for sentence. On September 9th 2014 I imposed sentence.

12. The opinion of the High Court is sought on the following question:

(i) In a prosecution pursuant to s. 11 of the Criminal Justice (Public Order) Act, 1994 as amended by Section 22 Of

the Intoxicating Liquor Act, 2008, must the prosecution prove that the accused entered the premises as a

trespasser?

(ii) If the answer to (i) is yes, must the prosecution adduce evidence from the owners/occupiers that they did not

give permission to the accused to enter the premises?

(iii) Is a court entitled to conclude where owner/occupier has not given such evidence, that on the basis of other

evidence adduced there is an inference that the entry was without the requisite permission or invitation?

(iv) If the evidence is such that the court concludes that the circumstances give rise to a reasonable inference

that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any

property situate therein, does this obviate the necessity for the prosecution to prove absence of permission to

enter?

(v) Was sufficient evidence tendered by the prosecutor in order to discharge the burden of proof in relation to both

offences?”

The opinion of the Court

1. The answer to question 1 is agreed. It is yes.

2. Question 2 is the crux of this appeal by way of case stated. The primary purpose of s. 11 is to criminalise conduct which may

reasonably be considered as amounting to preparation for another or further offence such as burglary. It is their presence in a

building, the curtilage thereof or in the vicinity of either that is criminalised. They must be shown to have been there for the purpose

of trespassing on the property or some part thereof. The circumstances must be such as to give rise to a reasonable inference that

their entry or presence thereon was with an intent to commit an offence or to unlawfully interfere with any property situate therein.

The presence of a person on the property is easy enough to establish. Proving they are there as a trespasser is what gives rise to

difficulty herein. The offence is linked with that of burglary – a far more serious offence. In that offence, it is unnecessary in every

case to have evidence from the occupier, see p. 955 Smith and Hogan Criminal Law, 13th Ed. which cites as authority for this

proposition, the case of R. v. MacCuish [1999] EWCA Crim J0504-20. I accept this as a statement of law that is applicable in this

jurisdiction. In the case of an offence under s. 11 which is summary with a sentence of six months and a fine not exceeding €2,500 or

both, the same must surely apply. It may well be that there are certain circumstances where such evidence would be necessary to

explain an ambiguity. This could be, for instance, where an initial limited permission was exceeded and evidence of that would be

necessary. It is not possible to list exhaustively the circumstances where such evidence of the occupier would be needed.

In the circumstances of this case, however, I think the learned District Judge was entitled to rely on the evidence she heard; i.e.

three men huddle together around the door of first No. 86 Merrion Avenue then No. 88, differing and changing explanations of why

they there, evasive and defensive responses to the arresting garda. In my view, this evidence provided ample grounds upon which

she could be satisfied beyond reasonable doubt that the accused were present on the property as trespassers with intent to commit

an offence. It was not necessary to call evidence from the occupier.

3. For the reasons outlined above, the answer to this question is clearly yes.

4. As to question 4, for the reasons outlined above, the prosecution have, in fact, proved the absence of permission to enter by the

arresting garda’s evidence of the circumstances in which he encountered the defendant and his conduct. Thus, the answer is no. The

prosecution must always prove each and every part of the offence that is charged. In this case, they have, in fact, done so.

5. As to question 5, I have already decided that there was sufficient evidence to discharge the burden of proof in both charges. It

should be noted though that this is a matter for the trial judge.

6. Thus, the answers to the questions posed are as follows:-

(i) Yes

(ii) No

(iii) Yes

(iv) No

(v) Yes