King v The Queen [2003] HCA 42

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

RODNEY NATHAN KING APPLICANT

AND

THE QUEEN RESPONDENT

King v The Queen

[2003] HCA 42

6 August 2003

P28/2001

ORDER

1. Special leave to appeal granted. 2. Appeal dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

J A Sutherland for the applicant (instructed by McDonald & Sutherland)

S E Stone with C C Porter for the respondent (instructed by Director of Public Prosecutions (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

King v The Queen

Criminal law – Burglary – Offence of committing an offence in the place of another person when in that place without that other person's consent – Criminal Code (WA), s 401(2) – Onus of proof – Onus on prosecution to prove beyond reasonable doubt absence of consent under s 401(2) – Where offence alleged to be committed was breach of restraining order – Where restraining order prohibited entry onto premises – Statutory provision for defence to offence of breach of restraining order if defendant proves on balance of probabilities existence of consent to be on premises – Whether provision relevant – Whether Court of Appeal erred in dismissing appeal from trial judge's jury direction that onus was on prosecution throughout to negative consent.

Criminal Code (WA), s 401(2).

Restraining Orders Act 1997 (WA), ss 61, 62.

1. GLEESON CJ. This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia. Following a trial in the District Court, the appellant was convicted of an offence against s 401(2) of the Criminal Code (WA) ("the Code") (described by Wheeler J in the Court of Criminal Appeal as "aggravated burglary and committing an offence (breach of restraining order)") and also of an offence of deprivation of liberty contrary to s 333 of the Code. It is the first that is presently relevant. The issue to be determined arises out of the compound nature of the offence as charged, and the interrelationship of its elements.