Reported Decision : [1999] 47 NSWLR 255 [1999] 114 A Crim R 150 New South Wales Supreme Court CITATION : DPP v Wille & Ors [1999] NSWSC 661 revised - 08/07/99 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12954/98; 12956/98; 12957/98 HEARING DATE(S) : 01/06/99 JUDGMENT DATE : 6 July 1999 Director of Public Prosecutions (Pl/Appel) PARTIES : Jurgen Wille (Def/Resp) - 12954/98) Gregory John Archer (Def/Resp - 12956/98) Christopher Alan Bartlett (Def/Resp 12957/98) JUDGMENT OF : Kirby J LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1466/97 LOWER COURT JUDICIAL OFFICER : P O'Shane LCJ COUNSEL : P I Lakatos (Pl/Appel) M Ramage QC (Def/Resps) SOLICITORS : S E O'Connor (Pl/Appel) Bernard D Brassil & Co (Def/Resps) CATCHWORDS : Trespass (Criminal); Lawful excuse; Right of peaceful protest Justices Act, 1902 - s78A(2) ACTS CITED : Inclosed Lands Protection Act, 1901 - s4(1) Western Australia Police Act Black v Carrabs [1988] 9 PSR 4045 Wong Pooh Yin v Public Prosecutor [1955] AC 93 Mark & Anor v Henshaw (1998) 155 ALR 118 Taikato v Regina (1996) 186 CLR 454 Ex Parte Desmond [1866] 5 SCR 387 CASES CITED : Crafter v O'Reilly [1934] SASR 20 Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 Morris v Darby [1936] 53 WN (NSW) 136 Wills v Williams [1971] WAR 29 Hancock v Birsa [1972] WAR 177 Minkley v Monroe [1986] 8 PSR 3975 DECISION : Appeal allowed THE SUPREME COURT Amended OF NEW SOUTH WALES 8 July 1999 COMMON LAW DIVISION KIRBY J Tuesday 6 July 1999 12954/98 - DIRECTOR OF PUBLIC PROSECUTIONS v JURGEN WILLE 12956/98 - DIRECTOR OF PUBLIC PROSECUTIONS v GREGORY JOHN ARCHER 12957/98 - DIRECTOR OF PUBLIC PROSECUTIONS v CHRISTOPHER ALAN BARTLETT JUDGMENT 1 HIS HONOUR: This matter comes before the Court as a case stated by Ms Pat O'Shane, Local Court Magistrate. There are, in fact, three matters. They arise out of the same incident. They were heard together (s 78A(2) Justices Act, 1902). The informations were, in each case, dismissed. The informant appeals against that dismissal. Background to the Incident 2 Attached to the case stated is the transcript of the proceedings before the Local Court. I have been invited by both parties to have regard to that transcript. 3 In 1997 work began upon the Eastern Distributor, a Freeway linking the city with the airport. The road included a section of tunnel. An area known as the "Drivers Triangle" was set aside to construct the tunnel entrance. The land within the Drivers Triangle (and, one infers, part of the Freeway itself) was public parkland. It was held by the Centennial and Moore Park Trust. The Trust licensed the Road Traffic Authority to use certain land (including the Drivers Triangle) to construct the road. The Road Traffic Authority, in its turn, authorised a company (which was to manage the Freeway) to retain contractors to undertake the construction. 4 The contractors (Leighton Contractors) began work. A cyclone fence eight feet high was erected around the perimeter of the Drivers Triangle. Barbed wire was placed on top of the fence. Access to the area was by means of a gate, which was locked. There were a number of signs displayed on the fencing, and the gate. One sign read: "No unauthorised personnel Construction site" 5 Another sign carried the same message: "No pedestrian access" 6 Heavy equipment, including a crane, was moved into the Drivers Triangle. When work was not taking place, a security guard maintained watch over the area. The Incident Itself 7 On 28 September 1997, Mr Walter Hufschmid began his shift as security officer on the site at 7.00 pm. It was part of his duty to patrol the fence throughout the night. His shift was due to end at 6.00 am on 29 September 1997. On his 5.00 am patrol the fence was intact. However, at 5.40 am he noticed four persons (a child, and the three defendants) had gained access to the area. When he investigated he found that a section of the fence had been pulled apart. One of the defendants was sitting on the cabin of the crane. The other two (and the child) had attached themselves, by means of chains and piping, to the raised jib of the crane. 8 The lengths of piping were designed to make it difficult to remove the defendants once they had been secured to an object. The piping prevented ready access to the locking mechanism by which they had been secured. Ultimately, the piping was removed by the Police Rescue Squad some hours after the defendants had first been noticed. 9 The defendants were then arrested. They were each charged with an offence under the Inclosed Lands Protection Act, 1901. The charge against one defendant was in these terms: "That Jurgen Wille on the 29th day of September 1997, at Surry Hills in the State of New South Wales, without lawful excuse did enter into the inclosed lands of another person, situate at the Eastern Distributor Construction Site, Drivers Triangle, without the consent of the person apparently in charge of the same, Mr Walter Hufschmid." 10 The charges against the other defendants were in the same terms. The Proceedings Before the Local Court 11 The cases were fought on one issue. The defendants asserted that their entry upon the "inclosed land", without the consent of the person in charge, was with lawful excuse. One defendant, Mr Bartlett, identified that excuse in these words: (T 21/22) "A. My lawful excuse was that I was making a protest to the eastern distributor, building of the eastern distributor and the destruction of Moore Park." 12 The case stated included the following: "d) The Defendants were voicing protests about the building of the eastern distributor motorway, the destruction of trees in Moore Park and the loss of part of Moore Park as public recreation land. The protests were in front of a number of film crews and a large number of photographers outside the fence, adjacent to the crane. This was acknowledged by Constable Morgan in his evidence. e) There was no evidence presented by the prosecution and none from which it could be inferred that the Defendants entered on the subject land for any criminal purpose." 13 The learned Magistrate identified the grounds upon which she made her determination in these words: "I accepted the defence submission that the Defendant had a right to protest peacefully. I held that in the absence of evidence of a criminal intent by the Defendant at the time of entering the inclosed land of another, the exercise of that right to protest upon inclosed land of another constituted a lawful excuse within the meaning of s4(1) of the Inclosed Lands Protection Act 1961. I therefore dismissed the information." The Offence 14 Section 4(1) of the Inclosed Land Protection Act, 1901, creates two offences, one being an offence of entering into inclosed lands without lawful excuse, and the other being remaining upon such lands (without lawful excuse) when asked to leave (Finlay J, Black v Carrabs [1988] 9 PSR 4045). The section creating the offence is, relevantly, in these terms: "4(1) Any person who, without lawful excuse, enters into the inclosed lands of any other person, without the consent of the owner or occupier thereof, or the person apparently in charge of the same … shall be liable to a penalty not exceeding 5 penalty units, and the proof of such lawful excuse shall be upon the defendant in any such case." Without Lawful Excuse 15 The case turns upon the meaning of the phrase "without lawful excuse". The statute is concerned with criminal trespass. The purpose of the Act is identified in the opening words, which are as follows: "An Act to consolidate the enactments relating to the protection of inclosed lands from intrusion and trespass." 16 The antiquity of the statute, which was a consolidating Act passed in 1901, can be seen, not only from the spelling of the "inclosed", but from the meaning given to the words "lawful excuse". It appears in s4(1), and is in these terms: "Without prejudice to the generality of the expression 'lawful excuse' a drover or person in charge of stock being driven upon a road lawfully inclosed with the lands of any person shall be deemed to have lawful excuse for entering such lands for the purpose of preventing the stock from straying or regaining control of stock which have strayed from such road." 17 The Privy Council (although in a somewhat different context) in Wong Pooh Yin v Public Prosecutor [1955] AC 93 said this: (at 100) "Their Lordships doubt if it is possible to define the expression 'lawful excuse' in a comprehensive and satisfactory manner and they do not propose to make the attempt. They agree with the Court of Appeal that it would be undesirable to do so and that each case requires to be examined on its individual facts." 18 In determining the meaning to be given to the words "without lawful excuse" only limited assistance is to be obtained from cases which construe phrases which are superficially similar, such as "without reasonable excuse" (Mark & Anor v Henshaw (1998) 155 ALR 118) or "for a lawful purpose" (Taikato v Regina (1996) 186 CLR 454). 19 Of greater assistance, in my view, is the law surrounding the companion tort, that is the tort of trespass. The tort of trespass does not require proof of damage. In this respect it differs from an action on the case. The tort was developed to protect a person's land from physical intrusion. Having proved entry, it was for the defendant to "justify" or "excuse" his conduct (Fleming, The Law of Torts (9th Edition) p 83). Various defences were recognised which would "excuse" trespass. Fleming, and other authors, have catalogued such defences under various headings, including: · Inevitable accident (as opposed to mistake). · Consent. · Incapacity. · Necessity. · A limited right to recapture chattels on another's land. · Entry under legal authority (such as a warrant, or authorisation by statute). (Fleming, ch 5, pp 83-109; Street on Torts (8th Ed) ch 6, p 74 ff; Halsburys Laws of Australia vol 26 Title 415 (Tort), para 415-525 ff; The Laws of Australia ch 33 at 33.9) 20 Mistake, as such, was no defence. The defendant was liable, even if he believed that he was on his own land. 21 The criminal law of trespass ameliorated the harshness of that rule. It recognised mistake as a lawful excuse. In Ex Parte Desmond [1866] 5 SCR 387, Stephen CJ said this: (at 389) "… for the entry on land, in the bona fide exercise of a claim of right, well or ill founded, if only it be honestly made, is clearly excusable." 22 In Crafter v O'Reilly [1934] SASR 20, Murray CJ said this: (at 24) "Mistake of law can never be pleaded, but an honest and reasonable belief in the existence of a state of facts which, if true, would make the act charged against the accused innocent would, I think, be a sufficient defence." 23 His Honour gave a number of illustrations, including: "Thus, if it can be shewn that he was in such a mental state from disease or otherwise that he was not responsible for his actions, or that he was forcibly taken to the house by some other person and left there in a helpless condition, or that he entered the house in the honest and reasonable belief that the house was his own dwelling, and that he was discovered before he found out his mistake, there would, in my judgment, be an answer to the charge." 24 In Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, Hunt J said this: (at 501/502) "I am satisfied that a very real distinction exists between 'reasonable excuse' and 'lawful excuse' …. section 4 therefore requires the defendant to establish mistake, rather than the prosecution to disprove it: cf Woolmington v Director of Public Prosecutions [1935] AC 462, at 481; Spautz v Williams [1983] 2 NSWLR 506. But s 4 does not permit such lawful excuse to be proved by establishing a reasonable but mistaken belief that he had a right to enter the premises unless the circumstances which he believes to be true would, if in fact true, give him such a right to enter them. Thus, a belief that a friend who had invited him to call lived in the premises would amount to lawful excuse if he entered the wrong premises. But if the facts believed to be true would not, if in fact true, give him a right to enter the premises, then there is no lawful excuse available under s 4." 25 Here the actions of the defendants were quite deliberate. They knew the land was enclosed land. They knew they had no permission to enter the land. They, no doubt, appreciated (although this aspect was not investigated) that, had they sought permission, that permission would have been denied them. 26 However, at the urging of the parties the Local Court Magistrate did not deal with the circumstances of entry, although plainly they were relevant. Rather, she focused upon the purpose of the defendants once they were upon the land. The purpose was, in each case, to peacefully protest. Peaceful protest is not unlawful. Hence, the trespass was not one "without lawful excuse". The Relevance of Purpose 27 Defendants, in a number of prosecutions, have sought to excuse their intrusion upon another's land by reference to their ultimate purpose. In Morris v Darby [1936] 53 WN (NSW) 136, the defendants were employed as inquiry agents to obtain evidence in divorce proceedings. The issue was defined by Owen AJ in these terms: (at 136) "The question raised is whether a person, who bona fide believes that he will be able to obtain evidence for use in divorce proceedings and enters enclosed lands without the consent of the owner or occupier thereof for the purpose of obtaining such evidence, is entitled to set up that he had 'lawful excuse' for such entry within the meaning of s 4 of the Act." 28 His Honour, without elaboration, stated his opinion in these terms: "I think that an entry upon land by a private detective or anybody else against the consent of the owner or occupier of the land in order to obtain evidence in connection with civil proceedings, even if the person charged has a bona fide belief that he will obtain such evidence if he does enter the premises, is an entry 'without lawful excuse' within the meaning of s 4." 29 In Wills v Williams [1971] WAR 29, Virtue SPJ, in the Supreme Court of Western Australia, made the following comment on a section of the Western Australia Police Act which, in the circumstances of criminal trespass, entitled the Court to declare someone a "rogue and vagabond": (at 32) "It is a criminal section and in this subsection the burden of proof is placed upon any person found on the premises: That person must show that his presence was not for any criminal purpose. If he does that his trespass is excused not merely because he had any right or any belief in any right, though that would be sufficient, but simply by the absence of any wrong intention. This excuse is lawful because he is honest and therefore he is not to be treated as a criminal." 30 The findings, and judgment of the Local Court in this matter, reflect that approach. 31 Shortly after that decision, the same issue came before the Full Court of the Supreme Court of Western Australia in Hancock v Birsa [1972] WAR 177. Burt J made the following statement with which I respectfully agree: (at 181) "… the first step in the reasoning would appear to equate the idea conveyed by the words 'without lawful excuse' with the idea of 'unlawful purpose', so requiring one to say that the absence of proof of an unlawful purpose prevents one from finding the absence of lawful excuse. In my opinion, this is not so. Proof of an unlawful purpose no doubt denies a lawful excuse. But the converse is not, I think, true. Proof of the absence of a lawful excuse does not require the finding of an unlawful in the sense of a criminal purpose. What it does require, and in my opinion all that it requires, is a judgment by the Court as to 'whether the defendant's presence on the premises is excusable in all the circumstances of the case …'" 32 In the same case, however, Hale J offered the opinion that "without lawful excuse" was a compendious expression meaning "without an excuse which would appear to a reasonable man to be adequate in the circumstances" (at 179). 33 In Darcey v Pre-Term Foundation Clinic, the defendant advanced as the "lawful excuse' for his trespass upon a private hospital, that he bona fide believed, on reasonable grounds, that unlawful abortions were being carried out upon such premises. Hunt J considered whether entry upon a person's land for such a purpose may provide the defendant with a lawful excuse: (at 502) "Assuming that his apparent belief that therapeutic abortions are unlawful is genuine - despite all the legal authority to the contrary - and that there were therefore unlawful activities being carried out on the premises, the existence of that circumstance would give him no right at all to enter the premises. … Not even a policeman can enter premises for that purpose without a warrant." 34 In Minkley v Monroe [1986] 8 PSR 3975 the defendant was a TV journalist. He quite deliberately entered enclosed lands at the aviation fuel installation at Kingsford Smith Airport. He was dressed as a Caltex employee. He did so in order to demonstrate the deficiencies in the security arrangements at that installation. He had no criminal purpose. The issue was whether, within the terms of s 4(1), he had a "lawful excuse". The Magistrate in the Local Court, following Hale J in Hancock v Birsa, found that the defendant had an excuse which appeared to be adequate in the circumstances. He, therefore, dismissed the information. 35 Grove J rejected that approach. He made the following statement with which I respectfully agree: (at 3975) "Such facts would result in an accused being able to say 'I am aware that I had no right to be there; I deliberately broke the close; nevertheless because, once I got there, I did not intend to do anything unlawful I therefore have no unlawful purpose. This is equivalent to a lawful excuse and my deliberate trespass must therefore go unpunished.' I reject such hypothesis." 36 Grove J added: (at 3981) "I do not accept that 'reasonable excuse' is a coterminous expression with 'lawful excuse' and I would construe the latter compatibly with Darcey , and hold that a lawful excuse cannot be proved upon the postulation of circumstances which would, if in fact true, give a right to the entrant to be present within the close. The reasonable but mistaken belief is thus comprehended." Application of these Principles 37 In each of these cases, entry upon the land was necessary in order to accomplish the purpose, which was then put forward as the lawful excuse. Morris v Darby (the attempt to obtain evidence for divorce proceedings), Darcey v Pre-Term Foundation Clinic (the attempt to obtain evidence of illegal abortion), and Minkley v Monroe (the need for the journalist to demonstrate the absence of security), are all cases where the person charged was obliged to trespass in order to fulfil the purpose. The fulfilment of that purpose, however, was not a lawful excuse. The fact that their ultimate purpose was not criminal did not make the trespass excusable. In none of these cases did the defendant have a right to enter the premises in order to accomplish his purpose. 38 Applying these principles, it can be seen, with respect, that the Local Court was wrong. First, unlike the examples just given, entry to the premises by these defendants was not necessary to accomplish their purpose. Their purpose was to show their opposition to the proposed road. They could have protested outside the perimeter fence. Such a protest may not have been as dramatic, but that cannot matter. Were it otherwise, a person could invade another's property because their purpose might be better accomplished in that location rather than elsewhere. Upon that basis someone would be entitled to enter inclosed land, publicly or privately held, to sunbathe, or hold a dinner party, because they preferred that location to another area, not enclosed. 39 Secondly, the person who entered the land, in each of the cases referred to, did not have a criminal purpose. That, however, is not determinative, although it is relevant. Effecting entry itself may involve a crime (such as malicious damage to the fence). It would obviously be relevant for the prosecution to prove that the defendants had committed a crime in gaining entry, or intended to commit a crime once on the premises. In either case, and certainly in the latter case, it is difficult to see how a person who entered in such circumstances could assert that they had a lawful excuse. It is possible, perhaps, to imagine circumstances of necessity where beyond the fence there is a person in distress, such that damage to the fence, and entry, is necessary to alleviate that distress. Damage to the fence in such circumstances would not be malicious. Such person, in any event, would have lawful excuse for entry (cf the defence of necessity). 40 Returning to the present matter, the local Magistrate identified the purpose (peaceful protest), and the fact that it was not criminal, and determined the matter upon that basis. The issue was, however, whether that purpose in that location (on another's "inclosed land") was a lawful excuse. That question has not been addressed. In my view, the limits of those excuses which may be characterised as lawful excuses for the purposes of s 4(1) of the Act, are to be found by analogy with the categories which apply in civil trespass, supplemented by honest and reasonable mistake, where the facts assumed would, if true, give a right of entry. Order 41 I therefore make the following orders: 1. I allow the appeals. 2. I hold that the determination by the Local Court Magistrate was erroneous in point of law. 3. I remit the three matters to the Local Court to determine according to law. 4. I order the respondents before me to pay the appellant's costs. They should, however, in each case, have a certificate under the Suitors Fund Act. ********** Last Modified: 06/30/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.