[1]  HOLMES JA:  I agree with the reasons of White AJA and McMurdo J and the orders proposed by White AJA.

[2]  WHITE AJA:  The appellant was charged that on or about 2 October 2006 at Gympie he “entered the premises of [the complainant] with the intent to commit an indictable offence in the premises.”  He was further charged that on the same day he unlawfully assaulted the complainant and did him bodily harm whilst armed and in company.  The jury returned verdicts of guilty to both charges on 19 June 2008 after a trial.

The Grounds of Appeal

[3] The sole ground in the Notice of Appeal is that the verdict was “unsafe and unsatisfactory”.

[4] At the commencement of the appeal hearing, Mr D Kent, who appeared for the appellant, sought leave to add a new ground of appeal directed to count 1 and did not pursue the “unsafe and unsatisfactory” ground insofar as it related to count 2.  Leave was not opposed and was granted.  The new ground is:

“The learned trial Judge erred in his directions to the jury as to the meaning of ‘premises’.  His Honour applied the definition from s 1 of the Criminal Code rather than the definition from s 418(4), which was the appropriate definition in the circumstances.  Thus His Honour erred in directing the jury that ‘premises’ included the land on which the dwelling is situated.  Accordingly the verdict on Count 1 should be set aside.”

Circumstances

[5] Although the basis for seeking to set aside the verdict on count 1 is largely one of statutory construction some background facts are required. 

[6] The appellant and the complainant lived across the street from each other.  On the night of the incident the appellant, his wife, their daughter and her 16 year old friend who was visiting were drinking liquor.  The appellant’s daughter and her friend decided to throw eggs at the complainant’s house to see if he would then come out and yell.  It seems that the appellant had suggested that they do something to the complainant’s house.  The girls threw eggs at the house but the complainant did not react, so they then threw some rocks at the house at which the complainant came out and called out to them to stop.  The complainant came onto the street and yelled at the appellant and the appellant yelled back at the complainant.  The complainant did not enter the appellant’s land and returned to his own property.

[7] More shouting ensued and the appellant armed himself with a wooden stick and either opened the gate to the complainant’s land or jumped over it and entered onto his land.  Subsequently his wife and daughter and then their visitor followed.  The daughter and her friend were armed with shovels.  In the resulting altercation the appellant and his wife were defeated and returned home.  The complainant sustained injuries to his head when struck with an axe handle by the appellant.  At no time did the appellant enter the complainant’s house. 

The Directions to the Jury

[8] In the course of his directions to the jury the primary judge turned to the elements of the charges.  He said:[1]

“If I can start with count 1, that’s a charge which is shortly described as entering premises with intent.  The prosecution have to prove that Mr Smith entered the premises; entered means when any part of his body goes onto the premises.  There is no dispute about that; there’s certainly a dispute about how he entered.  So, you won’t have any trouble with ‘entered’.

Premises. Premises are defined in criminal law very widely to include not only the house with a dwelling in which a person lives but the land on which the dwelling is situated.  So again, you won’t have any trouble with that and no submission has been made to that effect.”

[9] His Honour continued with the balance of the charge:

“With the intent to commit an indictable offence.”

and directed the jury that the prosecution had to prove beyond reasonable doubt that when the appellant entered the premises either by jumping the fence or going through the gate he intended to assault the complainant.  He concluded in respect of this aspect of the charge:

“So, they have to prove that he had that intent at the time he entered the premises; and the indictable offence is assault.”[2]

[10]  The appellant was charged in respect of count 1 pursuant to s 421 of the Criminal Code which appears in ch 39.  Section 421 provides relevantly:

“(1)Any person who enters or is in any premises with intent to commit an indictable offence in the premises commits a crime...

...

(2) Any person who enters or is in any premises and commits an indictable offence in the premises commits a crime. 

...

(3) If the offender gains entry to the premises by any break and commits an indictable offence in the premises, he or she is liable to imprisonment for life.”

[11]  “Premises” is defined in s 418, the definition provision in ch 39, as follows:

“premises includes –

(a)a building or structure and a part of a building or structure other than a dwelling; and

(b)a tent, caravan, or vehicle; and

(c)any similar place.”

[12]  The general definition of “premises” in s 1 of the Criminal Code is as follows:

“‘premises’ includes –

(a)a building or structure, or part of a building or structure, of any type; and

(b)a group of, or part of a group of, buildings or structures, of any type; and

(c)the land or water where a building or structure or a group of buildings or structures is situated; and

(d)a vehicle, or a caravan; and

(e)a tent, or a cave; and

(f)premises in which more than 1 person has ownership.”

That definition and the definition in s 418 were inserted into the Criminal Code by amendment in 1997.

[13]  As is immediately apparent, the definition of “premises” for ch 39 is narrower than the definition in s 1.  A “dwelling” is expressly excluded, a “cave” is omitted, and a “tent” and a “caravan” are included.  “Dwelling” is defined in s 1 and is an inclusive definition directed to a building or structure kept for residence.  Of particular relevance is the omission in the s 418 definition of “the land or water where a building or structure... is situated” which is an aspect of the s 1 definition. 

[14]  In the Macquarie Dictionary, the plural of the word “premise” is given the meaning:

“a.  the property forming the subject of a conveyance.

b.a tract of land.

c.a house or building with the grounds, etc. belonging to it.”

Similarly the Oxford Dictionary defines premises as:

“A house or building together with its grounds, outhouses, etc. esp. a building or part of a building that houses a business.”

In Mowling v Justices of Hawthorn,[3] approved by the New South Wales Court of Appeal in Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd,[4] the Victorian Full Court held that “premises” included houses or lands at common law.

[15]  The appellant contends that the definition of premises in s 421 is exhaustive and therefore excludes the complainant’s land around his house.  The respondent, however, contends that the definition is expansive and therefore would include the yard associated with the complainant’s house. 

[16]  The definition of “premises” in s 418 is inclusive on its face.  This might, as a matter of ordinary language, suggest that in addition to its accepted meaning, Parliament was desirous of including other places which might not naturally be thought of as premises.  Accordingly, the offence contemplated by s 421 might be committed in places “on the margins” as it were, such as in a “tent, caravan or vehicle”.  Nonetheless, as a drafting device, its employment may be more subtle.  The origin of this more complex approach to the use of “includes” in a statute is attributed to a statement by Lord Watson in Dilworth v Commissioner of Stamps:[5]

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.”[6]

Lord Watson continued:[7]

“But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined.  It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

[17]  In YZ Finance Co Pty Ltd v Cummings[8] the High Court adopted this approach to “includes” although Kitto J cautioned against too literal an application of the dictum noting that “includes” cannot be equivalent to “means and includes.”  However, he added:[9]

“...a provision in which it [includes] appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes.

...

The question whether a particular provision is exclusive although ‘includes’ is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.”

[18]  The exhaustive approach to “includes” has not escaped criticism[10] although it has been accepted as an orthodox device to be utilised by a draftsman.  The Full Court accepted it in MacFarlane v Burke, ex parte Burke.[11]Connolly J, after referring to the observations of Lord Watson, said:[12]

“It will more readily appear that the definition is not exhaustive where that which is included goes beyond the natural import of the word.”

In the same case, Macrossan J (as his Honour then was) noted[13] that the decision in YZ Finance was not unanimous so that:

“[o]bviously this is not an area in which one can always proceed with complete confidence.”

[19] In Favelle Mort Ltd v Murray[14] Barwick CJ observed that:

“... there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined.  Of course, if the matter included by the extension of the definition does not otherwise or in any sense fall within the connotation of the word or expression being defined, the inclusion of such matter will not go beyond the terms in which the inclusion is expressed.”[15]

In The Queen v Gray; Ex parte Marsh[16] Gibbs CJ accepted that “includes” may have the meaning “means and includes” if the provision in which it appears reveals that intention.[17]  Similarly, in Corporate Affairs Commission (SA) v Australian Central Credit Union[18] the High Court said:[19]

“The function of such an inclusive “definition” is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases.”

[20]  The Criminal Code includes in its many definition provisions both “means” and “includes” and there are provisions where “premises” must be a reference to the s 1 definition.[20]  The inclusion of “tent, caravan or vehicle”, not naturally described as premises, suggests an expansive definition but s 418(4)(a), (b), and (c) reveal, a “means and includes” approach to the construction of the provision.  The general words “any similar place” in s 418(c) tend to restrict the meaning of “premises” to a place that is constructed and enclosed.  That limitation is supported by the failure to include “the land or water where a building... is situated” as is in the s 1 definition.  The omission of a “cave” may be explicable by reason of a cave being naturally open. 

[21]  The scheme of ch 39 tends to add further support for this construction.  The offence of burglary is created by s 419 which makes it an offence to enter or be in the “dwelling” of another with intent to commit an indictable offence.  It is an aggravating factor to enter by means of break.  Section 420 was repealed in the 1997 amendments.  Then s 421 makes it an offence to enter or be in any “premises” with intent to commit an indictable offence in the premises.  If the person enters the premises and actually commits an indictable offence a more serious crime is committed.[21]

[22]  It might be noted that s 427 makes it a crime to enter unlawfully another’s vehicle with intent to commit an indictable offence.  It is different from s 421 which, under the definition of “premises” in s 418 includes a “vehicle”, in that s 427 concerns an initial unlawful entry.  Section 421 would cover a person who lawfully entered or was in a vehicle. 

[23]  Prior to the 1997 amendments to the Criminal Code these provisions were differently arranged and slightly differently worded.  Formerly s 419 defined burglary as breaking and entering[22] the dwelling house of another with intent to commit an indictable offence.  What is now the first limb of s 419 – any person who enters or is in a dwelling house with intent – was a separate provision – s 420.  Previously s 421 provided that any person who breaks and enters a place and commits an indictable offence commits a crime.[23]  “Place” was not defined.  Finally, former s 422 provided that any person who “breaks and enters a place with intent...” was guilty of a crime.  While “place” was apt to include the land or yard around a house where the offence was merely being there with intent, the entry had to be accompanied by a break. 

[24]  The process of reorganising the provisions in ch 39 in 1997 did not, therefore, set out to add a new crime of being in “premises” with intent which would encompass the curtailage of a building.  To the extent that the legislature wished to punish a person for being without lawful excuse in the yard associated with a building or dwelling there were the various provisions of the Vagrants Gaming and Other Offences Act 1931.[24]

[25]  Nothing in the Explanatory Notes or Second Reading Speech in respect to the 1997 amendments assists in the construction of the provision.

[26]  There is no basis for concluding that the definition of “premises” is intended to include the land (or water, for that matter) around premises.  Accordingly, it follows that the primary judge ought to have directed the jury that the appellant could not be guilty of count 1 because he was not in or on premises within the meaning of s 421.  The appellant ought not to have been charged with that offence.  There was no evidence that he had ever entered the complainant’s house.  It may be noted that the annotations to s 421 in Carter’s Criminal Code erroneously direct the reader to the s 1 definition of “premises” when discussing the elements of the offence and future annotations ought replace it with the s 418 definition. 

[27]  It follows that the appellant should succeed and his conviction on count 1 be quashed.  Mr Kent did not seek to agitate any argument as to why the conviction on count 2 was “unsafe and unsatisfactory.”  There was ample evidence upon which the jury could be satisfied beyond reasonable doubt that the appellant was guilty of the assault offence charged in count 2. 

[28]  The sentence imposed for count 1 was one of 12 months imprisonment to be served concurrently with a sentence of 18 months imprisonment for count 2.  Mr Kent made no submission that the sentence for count 2 ought to be reduced if the conviction on count 1 were quashed and it was correct not to do so as count 2 was a serious assault and the penalty was not affected by a conviction on count 1.

[29]  I would make the following orders:

1. Allow the appeal.

2. Quash the conviction and enter an acquittal in respect of count 1.

[30]  McMURDO J: I agree with the orders proposed by White AJA and with her reasons.

[31]  Ordinarily, the use in a statute of the word “includes” in a definition is to enlarge the ordinary meaning of the word, so that what is within the term as defined are those things according to its ordinary meaning together with those things which are specifically included.[25]  That use is further indicated when there is something which is within the ordinary meaning of the term but which is not expressly included, and where, in the context of the statute, there would seem to be no reason for its exclusion.[26]  On the other hand, the specific reference to things which would be within the ordinary meaning of the term might indicate that “includes” has the same effect a “means and includes”.[27]

[32]  In this definition in s 418, the surrounding land of a building is not specifically included although, as White AJA has explained, this would be within the ordinary meaning of “premises”.  Against that however, on any view the word “building” would be within the ordinary meaning, yet it is specifically included.

[33]  The question, of course, is one of the construction of this particular provision in its statutory context.  There are two matters which particularly indicate that the definition in s 418 is both inclusive and exclusive.  The first is that the Parliament has decided to define the term “premises” distinctly for ch 39 and departing from the general definition in s 1 by making no specific reference to “the land or water where a building or structure or a group of buildings or structures is situated”.  It must be assumed that this difference was intended to have some effect.  Secondly, those things which are specifically included in the s 1 definition, but not within the s 418 definition, are things which could not be susceptible to a “break”, as that term is also defined within s 418, and which is an aggravating circumstance of an offence under s 421.  The apparent intention is that “premises” for ch 39, and for s 421 in particular, should not include a building’s surrounding land or water because ordinarily it could not be “broken”.

[34]  Accordingly, there was no case that the appellant had entered “premises” as that term is used in s 421.