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
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
