Court of Appeal dismissed appeal on trespassing charges, upholding High Court's finding of sufficient evidence for conviction.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 134

Record No. 2016/264

Birmingham J.

Mahon J.

Edwards J.

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/

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA ANDREW DOYLE)

PROSECUTOR/

RESPONDENT

- AND–

JIMMY CONNORS

DEFENDANT/

APPELLANT

JUDGMENT of Mr. Justice Mahon delivered on the 15th day of May 2018

1. This is an appeal against the judgment of the High Court (Hedigan J.) delivered on the 8th December 2015 and the Order of that

court dated 27th January 2016. The matter came before the High Court by way of case stated by Judge Bridget Reilly of the District

Court on the 9th March 2015 in the following terms:-

“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 he 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 for 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, he 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 cartilage 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?”

2. The learned High Court judge answered the five questions posed by Judge Reilly as follows:-

(i) Yes

(ii) No

(iii) Yes

(iv) No

(v) Yes

3. The grounds of appeal on which the appellant relies are, that:-

(1) The learned trial judge erred in law in holding that there was adequate evidence before the District judge to allow her

to convict the defendant / appellant of either charge before the court;

(2) the learned trial judge erred in law in holding that there was sufficient evidence before the District judge to allow an

inference to be drawn that the defendant / appellant was a trespasser in relation to either offence before the court, and

(3) the learned trial judge erred in law in holding that the District judge was entitled to take into account admissions made

by other people who were not prosecution witnesses in determining the guilt of the defendant / appellant on the charges.

4. In the appellant’s Notice of Appeal it is stated that the relief sought is an order answering the questions posed by Judge Reilly as

follows:-

(i) Yes (no issue is therefore taken with the answer to this question by the learned High Court judge);

(ii) not necessarily;

(iii) yes (this is in agreement with the answer provided to this question by the learned High Court judge);

(iv) no (this is in agreement with the answer provided to this question by the learned High Court judge); and

(Emphasis italicised in brackets added).

The appellant also seeks an order reversing the High Court Order awarding costs to the respondent.

5. It was confirmed in the course of the oral submissions made to this court on behalf of the appellant that the only live issue in the

appeal related to question (v). That question was:-

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

offences?”

6. However, question (v) can only be meaningfully answered in the context of consideration of the questions poised in (ii), (iii) and

(iv).

7. Section 11 of the Criminal Justice (Public Order) Act 1994 (as amended) 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 curtilage or part of such building or curtilage 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

€2,500 or to imprisonment for a term not exceeding 6 months or to both.”

8. The appellant faced two summonses at the Dublin Metropolitan District Court sitting at Tallaght on the 16th April 2014. Charge

Sheet number 14413183 stated: “On the 10/01/2014 at 88 Mount Merrion Avenue, Blackrock Dublin ... entered the curtilage 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.”

Charge Sheet number 14413175 stated:- “On the 10/01/2014 at 86 Mount Merrion Avenue, Blackrock Dublin... entered the curtilage

of a building, namely 86 Mount Merrion Avenue as a trespasser for 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.”

9. The evidence against the appellant was that on the 10th January 2014 at about 2 p.m. Garda Doyle was travelling along Mount

Merrion Avenue, in Blackrock, County Dublin when he observed three males, including the appellant, acting suspiciously at the front

door of 86, Mount Merrion Avenue. He then observed them walking into an adjacent property, number 88, Mount Merrion Avenue. He

described the three men as being “huddled around the front doorways of the houses”. The three men were confronted by Garda

Doyle. When asked to explain what they were doing at the front doorways of the two houses the three men gave different reasons.

One reason was that they were looking for work, another was that they were collecting money. Garda Doyle described the demeanour

of the defendants as evasive and defensive in their responses to him. The three men acknowledged that they were unknown to the

residents of both houses. Garda Doyle expressed the view that the three men were unable to give any reasonable explanation for

their presence in both properties. He therefore formed the view their presence in both properties was with intent to commit an

offence or to unlawfully interfere with property at the said residences. The three men were then arrested and cautioned. While one of

the men was been taken into the garda station (not the appellant) Garda Doyle stated that he saw that man attempting to conceal

an item which transpired to be a watch, and which then dropped from his wrist. The watch had a value of €4,350, and it was

discovered it had been stolen from a premises in Monkstown, County Dublin approximately one hour before the three men were found

at Mount Merrion Avenue. The individual in question subsequently pleaded guilty to the unlawful possession of the stolen watch in the

District Court.

10. The core issue in this case stated concerns the nature of the proof required when an individual charged with an offence pursuant

to s.11 and, more particularly, what evidence is required to establish that a person charged had entered “any building or the curtilage

of any building or any part of such building or curtilage as a trespasser..”

11. Evidence heard by the learned District judge did not include any of the residents or representatives of the residences of both

houses. The nub of the decision of the learned High Court judge can be ascertained by reference to the following extract in his

judgment:-

“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 huddled together around the door of first No. 86 Merrion Avenue, then No. 88, differing and

changing explanations of why they were 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.”

12. A number of written and oral submissions were made on behalf of the appellant. They can be summarised as follows:-

(a) Evidence from an owner or resident of both properties was a necessary proof for the prosecution, as only such

evidence could prove that the appellant had entered a building, or was within its curtilage without lawful reason;

(b) comments or statements made by any of the three men were inadmissible as against others not party to those

comments or statements;

(c) the evidence relating to the stolen watch was inadmissible as against the appellant;

(d) the evidence from Garda Doyle to the effect that the appellant was huddled close to the doorway of both houses in

broad daylight was suspicious but “..falls short of evidence sufficient to demonstrate the appellant was anymore than a

milkman or a postman would be.”

13. The respondent submits that in the particular circumstances of this case there was sufficient evidence to justify conviction, and

that the question of the sufficiency of evidence in any particular case is primarily a matter for the trial court.

14. In the course of his judgment, the learned High Court judge accepted the respondent’s submission to the effect that a passage

from Smith and Hogan on Criminal Law (12th Edition 2008), at p. 908, correctly represented what is the law in this jurisdiction in

relation to the issue in contention in these proceedings. The relevant extract from Smith and Hogan is in the context of Burglary and

Related Offences (Chapter 26), and states as follows:-

“Trespass is a legal concept and resort must be made to the law of tort in order to ascertain its meaning. It would

appear that as a matter of civil law any intentional, reckless, or (possibly) negligent entry into a building is a trespass if

the building is in fact in the possession of another who does not consented to the entry. In all cases of burglary it must

be shown that D entered the building as a trespasser, although evidence from the occupier in person is unnecessary.”

15. This extract is based upon a reference to an extract from the judgment in the case of R v. Maccuish [1999] EWCA Crim. JO504-

20. 16. Undoubtedly the best proof to establish that an individual is present in a building, or is within its curtilage, as a trespasser, is

evidence from the owner or a resident or an occupier of the property to the effect that the individual has no lawful purpose to be

there. If it was the only proof acceptable obvious practical problems would arise in relation to a host of situations, including where

the property was unoccupied, or where the owner or resident was deceased or unknown. Difficulties would arise where for example a

property was let in a number of apartments or where large numbers of people had ordinarily lawful assess to the property. In those

situations it could hardly be necessary that every resident or all the persons who had such lawful entry to the property should have

to give evidence to the effect that an accused person had not been lawfully invited onto the property.

17. Evidence of trespassing may arise from observation as to behaviour, activity, demeanour or to the reaction to being so observed,

or indeed being confronted or challenged. In this context evidence as to explanations given by a number of suspected trespassers

when confronted by a garda officer may be relevant, and particularly so when such explanations are inconsistent as between each

other or otherwise confused or suspicious. Whether or not such evidence is sufficient to establish criminality such as satisfies s. 11 of

the Act of 1994 (as amended) is entirely a matter for the trial judge.

18. And so it was in relation to the instant case. There was, in my view, sufficient evidence tendered by Garda Doyle to discharge the

onus of establishing that the appellant was on the two properties as a trespasser, and therefore guilty of both charges.

19. I am satisfied that the learned High Court judge correctly answered the questions posed in the Case Stated, and I would

therefore dismiss the appeal.