R v Richards

The appellant was convicted of murder, having fatally shot an arrow at a man on his property. The appellant argued on appeal that the trial judge had erred by directing the jury that the defence of a dwelling, under s 267 of the Criminal Code 1899, was not available. The trial judge had ruled the concrete slab area, where the man was shot, did not constitute a “dwelling” for the purposes of s 267. The Court of Appeal held the trial judge had not erred. The concrete slab, between the appellant’s house/carport and shed, could not constitute a structure that could be entered or remained in, nor did it form part of the structure of the house/carport or shed (which were both considered dwellings). The Court of Appeal therefore dismissed this ground of appeal.

McMurdo and Flanagan JJA and Freeburn J

7 February 2023

Background

The appellant was convicted, after trial, of murder after he shot a man with a bow and arrow. [1]–[2]. The man had attended the appellant’s house and demanded he come outside. [1]. The appellant did so with the bow and arrow aimed at the man, telling him to stay back. [1]. The man “jolted” towards the appellant and the appellant fatally shot him. [1].

The appellant contends, on the evidence of a witness to the murder, that the victim was standing on the concrete slab between the appellant’s carport (attached to the side of the house) and shed when he was struck by the arrow. [7].

At trial, the judge ruled the concrete slab was not part of dwelling for the purposes of s 267 Criminal Code but the shed, “by virtue of the degree of connection as between the house and the shed” was ruled part of the dwelling. [8].

The appellant raised two grounds of appeal (only the first is the subject of this note). The appellant argued the trial judge wrongly decided a question of law or, alternatively, a miscarriage of justice was occasioned by his direction on s 267. [3]–[4].

Decision of the Court of Appeal

The Court of Appeal rejected ground one of the appeal. The Court held the concrete slab was not a dwelling for the purposes of s 267.

Section 267 provides that it is lawful for a person in “peaceable possession of a dwelling” to use force to repel another from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds that the other is intending to commit an indictable offence in the dwelling and it is necessary to use that force.

“Dwelling” is defined in the Criminal Code 1899 as including:

“any building or structure, or part of a building or structure, which is for the time being kept by the owner or occupier for the residence therein of himself or herself, his or her family, or servants, or any of them, and it is immaterial that it is from time to time uninhabited.

A building or structure adjacent to, and occupied with a dwelling is deemed to be part of the dwelling if there is a communication between such building or structure and the dwelling, either immediate or by means of a covered and enclosed passage leading from one to the other, but not otherwise.”

The Court of Appeal explained a dwelling “as defined must be a building or structure and it must be accepted that a structure in this context need not be a building”. [18]. That definition, however, “must be applied according to the context or subject matter of s 267”. [18]. That section refers to a person unlawfully entering or remaining in the dwelling. [19]. Therefore, a structure which is not a building would have to be such that, for s 267 purposes, a person could enter or remain in it. [19]. Here, the open concrete slab could not constitute such a structure. [19].

Similarly, the appellant’s contention that the concrete slab was part of the structure of the dwelling shed was rejected. [20]. The Court considered the slab no more part of the shed than the parallel concrete tracks that led to the slab. [20].

Additionally, although there may be some “communication” between the shed and house/carport, the slab still failed to satisfy the second paragraph of the definition of “dwelling”. [21].

The trial judge was therefore correct in his direction as to the inapplicability of s 267, as the concrete slab between the house/carport and shed did not constitute a “dwelling”.

A Hughes of Counsel