Phillips, R. v

For burglary by trespass, the prosecution must prove that the defendant knew that he lacked entitlement to enter, or was reckless because he did not care whether he was entitled to enter. A direction which merely states that recklessness suffices is better supplemented by an explanation of that state of mind.

Nevertheless, a conviction remains safe where the evidence makes it inevitable that the defendant appreciated that he was trespassing. A defendant with previous convictions is not automatically entitled to a good-character direction. The trial judge must decide whether fairness requires one, and no prejudice arises where the jury are firmly directed to disregard the previous matters.

The appellant appealed against his conviction for burglary. He and a co-accused entered the underground car park of a residential building. Access was controlled by gates, although one outer lock was broken. The co-accused climbed over a gate and the appellant said that he entered through the side gate to seek shelter.

The appellant maintained that it had not occurred to him that he was not permitted to enter. He also relied on the absence of a good-character direction, despite a warning for criminal damage and a spent conviction for common assault. The central issues were whether the Recorder’s directions rendered the conviction unsafe and whether the appellant had suffered prejudice from the approach to his character.

1. Appeal dismissed. Although the Recorder could more clearly have explained recklessness in relation to trespass, the conviction was safe.

2. The jury should have been directed that, if not sure that the appellant knew he lacked entitlement to enter, they had to be sure that he did not care whether he was entitled to enter. The bare statement that a person may be reckless as to permission did not give that further explanation.

3. That omission did not affect the verdict. The appellant had seen his co-accused climb over the secured gate, while the car park had double-gated access. On those facts, it was impossible realistically to accept that he did not appreciate that he was a trespasser. The court therefore rejected the suggestion that the jury might have convicted merely because entry was in fact restricted to residents.

4. A defendant with previous convictions or warnings is entitled to be treated as of good character only where fairness so requires. The question is for the trial judge. Here the issue had not been raised for a prior ruling, and the Recorder was entitled to decide that a good-character direction was inappropriate.

5. In any event, the Recorder gave a strong direction that the appellant’s previous matters had no bearing on the burglary allegation and must be disregarded. He consequently suffered no prejudice. There was no order for recovery of defence costs.

• Court of Appeal (Criminal Division): dismissed the appeal against the appellant’s burglary conviction. The lower-court citation was not stated in the judgment.
• Trial court: the appellant was convicted of burglary before a Recorder. No citation was stated in the judgment.