Singh v The Queen: A Path Toward Confusion, Redundancy and Doctrinal Inconsistency

In Walkington v The Queen, the English Court of Criminal Appeal enunciated criteria for determining whether a building contains parts thereof for purposes of ss 76 and 77 of the Crimes Act 1958 (Vic): burglary and aggravated burglary respectively. In Singh v The Queen, the Victorian Court of Appeal was confronted with a situation in which a trespassory entry had been made into a building that, according to the principles enunciated in Walkington, did not consist of any part or parts. Recognizing that there was scant evidence with which to prove that the accused’s entry had been accompanied by an intention to commit one of the crimes specified in ss 76 and 77, the court nonetheless affirmed the applicant’s conviction for aggravated burglary under s 77. In so doing, the court reaffirmed its earlier decision in The Queen v Chimirri which held that a trespassory entry into a building results in continuing trespass for as long as the accused remains in the building. In Chimirri, it was further held that if an accused forms an intention to commit one of the specified crimes subsequent to the initial trespassory entry and enters a part of the building with that intention, he or she has committed burglary, aggravated burglary, or both by virtue of the continuing trespass doctrine. The discussion to follow will demonstrate that the court’s reasoning in both Chimirri and Singh is not only flawed, but flies in the face of the very passages from the judgment of Lane LJ in Walkington that were quoted with apparent approval in Singh. The discussion will further demonstrate that the continuing trespass doctrine adds nothing of value to the law of burglary as it existed prior to Chimirri and Singh; rather, its only effect is to add confusion and uncertainty to what had been a settled area of the law.