The Victorian Burglary Legislation

Impact of Singh v The Queen on the Victorian Burglary Legislation.

1. Introduction

The main contentious issues in Singh v The Queen[1] are when should the mens rea element of the crime of burglary be proven to exist for a continuous act or series of acts, should the prosecution prove beyond reasonable doubt the existence of intent to commit the crime of burglary at the time of the first effective entry into the building or part of the building as defined by the Crime Act 1958 (Vic) s 76(1)?[2] And if so, what is the proper interpretation of the phrase ‘part of the building’?[3] To answer these questions, this essay will analyse the current Victorian burglary laws, explore some of the issues which do arise when applying s 76 of the crime act,[4] examine some of the principles formed by various courts during criminal proceedings especially when hearing burglar cases and finally summarise the potential impact of Singh v The Queen[5] case on Victorian Burglary Legislation.

2. Current Victoria Burglary and Aggravated Burglary Laws.

Originating from the Common Law and buried at the heart of the Criminal Law is the notion of blameworthiness which states that a criminal conviction connotes a moral evaluation of the defendant’s guilt as deserving sanction.[6] This principle of proving all elements of a criminal offence is referred to as Temporal Coincidence.[7] For the crime of burglary to be established, the current Victorian burglary laws have squarely placed the onus of prove on the prosecution to establish beyond reasonable doubt that the accused had entered a building or part of a building,[8] and at the time of entering the building the accused entered as a trespasser[9] and at the time of entering the accused intended to steal anything in the building or part in question[10] or to commit an offence involving an assault to a person in the building or part in question or involving any damage to the building or to property in the building or part in question.[11] For the aggravated burglary, the prosecution has to prove that the accused commits a burglary,[12] and at the time the accused has any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive[13] or at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.[14]

3. How the courts have formed principle when interpreting burglary laws.

The distinctive feature of the criminal law is its dualism in it approach to criminal behaviour.[15] For the accused to be convicted of a criminal offence, the actus reus and mens rea elements must exist at the same time.[16] However, the dualist approach encounters problem in situation where there has been series of act or continuing act. The dilemma is whether a men rea is required for each act. These are the exact issues which exhibited themselves in Singh v The Queen.[17] When deliberating on such cases, judges have apparently applied various approaches which have been categorised into three principles discussed below.

1. Continuing Act and Series of Act Approach

When dealing with series of acts, courts tend to treat the accused conduct as one indivisible transaction and that mens rea existed at the time the accused began the series of act.[18] The continuing act approach was clearly displayed in Fagan v Metropolitan Commissioner, [19] where the accused drove his car onto the foot of a police constable. When the victim told Fagan to move his car, he turned off the engine. Fagan eventually moved the car but was convicted for assault. On appeal, Fagan argued that driving onto the constable’s foot occurred without mens rea. The question before the court was whether there was a coincident of mens rea and actus reus. . The court held that the relevant act was a continuing one, which started with the wheel being driven onto the constable’s foot and ended with removal.[20] Therefore, assault was formed from the moment intention was produced in the apprehension of the continuing act.[21] There are some cases where the court tends to look at the impact of the accused conducts on victim even though the act might have started without clear evidence of mens rea. However, any intention formed later in the process of initial act could satisfy the existence of the mens rea element of the crime.[22] In cases where the prosecution cannot produce evidence that indicates directly that the accused knew that people were living in the building at the time of entry, the court may ask the jury to infer on the accused’s knowledge and intention at the time of entry based on motive evidence provided.[23] In Chimirri[24] the appellate court accepted that the accused was already a trespasser and that it was the formation of the intent to assault on the effective entry into the bedroom that made the accused a burglar on entry into that part of the building.[25] Such interpretation is debatable.[26]

2. The Principle of Temporal Coincidence

The doctrine of Temporal Coincidence states that the requisite mens rea of an offence must exist at the time of each and every volitional act or omission upon which it is necessary to rely in order to establish the actus reus of the offence.[27] For the prosecutor to press the charges of the aggravated burglary, the liability of the crime of burglary must first be established.[28] However, establishing burglary require that an accused enters a building or a part thereof and possesses the requisite mens reas of knowledge or recklessness as to being a trespasser and the intention to steal or commit one of the prescribed assault or damage offences at the time of entry.[29] Consistent with this principle, Dawnson J in Barker v The Queen stated that the offence of burglary is committed only if, at the time of entry as a trespasser, the entrant has an intent to steal.[30] This view was later made clearer in Doolan v Eaton[31] than in any other case, where the conviction of the crime of unlawful entry was successfully appealed and the appeal was allowed. For the aggravated burglary, the prosecutor has to establish beyond reasonable doubt that at the time of entry, the accused had a state of mind whereby the accused knew there were people inside the building and had an intention to commit the prohibited volitional act.[32] Therefore, in accordance with the temporal coincidence principle, establishing the intent at the entry is a central requirement for culpability for the offence of aggravated burglary.[33]

3. Applying Evidence of Premeditation or Plan to prove intend

Any proven evidence of premeditation or plan of the assault or burglary makes the accused culpable of the aggravated burglary.[34] In Peter John Gale v R[35] the court expressed the view that a plan with expressed purpose of committing an assault can culminate into a very serious offence of the aggravated burglary. Therefore, the act of planning such assault implied that the accused had knowledge of the victim being present in the building, thus the intention mens rea of the offence is present.[36]

4. Interpretation of the Phrase ‘Part of a building’ in s 76 and Development of the Burglary laws in Victoria.

The interpretation of the phrase ‘part of a building’ in s76 has continuously been a subject of debate since the enactment of the Crime Act 1958.[37] It can be argued that the purpose of the ‘part of a building’ in s 76 was not to undermine the principle of Temporal Coincidence but to cover offences of burglary that can occur and do occur in sections or areas of the building where right of entry is limited and the licence of the person is required,[38] especially where a building has been divided into parts with physical partitions or artificially divided with limitation placed and the accused is aware of such limited permission.[39]

The Judicial College Victoria in its Criminal Charge Book (2014)[40] has divided the building into two distinctive parts, the part of a building that the accused could lawfully enter, and the remainder of the building.’[41]

The question of whether a room or an area within a building can be treated as ‘part of a building’ has always been left by judge for jury to decide.[42] However, in many cases, the court interpretation of the Victorian burglary legislation has been purposive rather than literal approach.

5. Potential Impact of Singh v The Queen on the Victorian Burglary Legislation

If the appeal is allowed, this case will then set a precedent which may be used as an authority in courts. It may also be used as a defense against aggravated burglary charges in cases where a crime involved series of acts or continuing act. Such an interpretation would be the unintended consequence that was not foreseen by the Victorian Parliament when the legislation was passed. On the contrary, rejecting the appeal will be contravening the principle of the Temporal Coincidence, which is the core of criminal law. This doctrine is imbedded on the question of whether an accused has made an effective entry into a building or part of a building,[43] which then banks on resolving the question of what was the purpose of inserting the phrase ‘part of a building’ into s76 of the Crime Act 1958 (Vic).[44] The verdicts for criminal cases are reached when the whole evidence proves the elements of the offence beyond reasonable doubt.[45] But due to lack of consensus by various courts and among judges when interpreting the phrase ‘part of a building’ in s 76 of the Crime Act 1958[46] and dilemmas it creates when dealing with a continuing act like the Singh v The Queen [47] case, whichever way the appellate court rule, the Singh v The Queen[48] case has a potential to prompt the Victoria parliament to categorically redefine the phrase ‘part of a building’ in s 76(1) of the Crime Act 1958 (vic)[49] and such change to the legislation is imminent, it is just a matter of time but it is envisaged that the Victorian parliament will eventually amend the legislation.

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[1] Singh v The Queen [2013] VSCA 300. [2] Crime Act 1958 (Vic) s 76(1). [3] Ibid. [4] Ibid. [5] Singh v The Queen [2013] VSCA 300. [6] Trisca Mann, Australian Law Dictionary (Oxford University Press, 2nd ed, 2013). [7] Arenson, Ken, Mirko Bagaric, Peter Gillies, Criminal Laws in the Common Law Jurisdictions, (Oxford University Press Australia Higher Education, 3rd Edition,2011)(Emphasis added). [8] Ibid s 76(1); Nash, G., M., Annotated Criminal Legislation Victoria, 2013 – 2014, LexisNexis. [9] Ibid. [10] Crime Act 1958 (Vic) s 76(1)(a). [11] Ibid s 76(1) (b). [12] Crime Act 1958 (Vic) s 77(1). [13] Ibid s 77(1)(a). [14] Ibid s 77(1)(b). [15] Lawskool.com.au. [16] Ryan v The Queen (1967) 121 CLR 205; Simon Bronitt and Bernadette McSherry, Principal of Criminal Law (LBC Information Services, 2001) 161; Arenson et al, above 7, 445. [17] Singh v The Queen [2013] VSCA 300. [18] Thabo Meli v The Queen [1964] 1 WLR 228. [19] Fagan v Metropolitan Commissioner [1969] 1 QB 439. [20] Lawskool.com.au. [21] Fagan v Metropolitan Commissioner [1969] 1 QB 439; Lawskool.com.au; See also R V Miller (1983) 2 AC 161. [22] The Queen v Dinsley [2013] VSC 631. [23] R v Steve Verde [2009] VSCA 16. [24] Chimirri [2010] VSCA 57. [25] Ibid, cited in Singh v The Queen [2013] VSCA 300. [26] Singh v The Queen [2013] VSCA 300. [27] Arenson et al, above 7. [28] Crime Act 1958 (Vic) s77(1). [29] Ibid s 76; Arenson et al, above 7, 461. [30] Barker v The Queen (1983) 47 ALR 1 (emphasis in original) (citation omitted). [31] Doolan v Eaton [2011] NTSC 52. [32] R v Hilton Munro [2006] VSCA 94. [33] See especially, Joshua Denman v R [2012] VSCA 261. [34] Pryor v Western Australia [2014] WASCA 143. [35] Peter John Gale v R [2014] VSCA 168. [36] Ibid; David Christopher Smith v R [2013] VSCA 219. [37] Crime Act 1958 (Vic). [38] R v Walkington [1979] 2 All ER; Singh v The Queen [2013] VSCA 300. [39] R v Walkington [1979] 2 All ER. [40] Judicial College Victoria, Criminal Charge Book (2014) https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#5141.htm.(citations omitted). [41] Ibid. [42] R v Walkington [1979] 2 All ER. [43] Arenson et al, above 7. [44] Crime Act 1958 (Vic) . [45] Douglass v The Queen [2012] HCA 34. [46] Crime Act 1958 (Vic). [47] Singh v The Queen [2013] VSCA 300. [48] Ibid. [49] Crime Act 1958 (vic) s 76.

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