Ernest Joseph v. R., Crim. App. 5-M-69, 19/2/69, Seaton J.

 

Ernest Joseph v. R., Crim. App. 5-M-69, 19/2/69, Seaton J.

The appellant was convicted of “breaking into a building with intent to commit felony.” At about 3 a.m. the rear corrugated iron sheet-door of the court-yard of the complainant’s bar was cut. A night watchman, hearing the noise of the cutting, raised an alarm. Several persons came and arrested the appellant who was with three others running away about 30 yards from the scene, all carrying baskets. Nothing was stolen from the complainant’s bar which, apparently, was not entered.

Held: (1) The conviction was clearly wrong. An offence under s. 297 requires an “entering”, which was not established in this case.

(2) “Was any other offence established? The appellant was not found with any weapons or instruments which might constitute an offence under s. 298 of the Penal Code, nor did he enter on the Bar premises which might constitute criminal trespass under s. 299. There remains the possible offence of malicious damage c/s 326 of the Penal Code. However, learned State Attorney has submitted that the offence of malicious damage is not a minor offence to breaking and entering because “breaking” under s. 297 might be figurative only and not involve any actual damage. With respect, I would agree.” Appeal allowed and conviction quashed.