Beckerling v Kingma - [2002] WASCA 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BECKERLING -v- KINGMA [2002] WASCA 165

CORAM: WHITE AUJ

HEARD: 5 JUNE 2002

DELIVERED : 20 JUNE 2002

FILE NO/S: SJA 1007 of 2002

BETWEEN: JESSICA MARY BECKERLING
Appellant
AND
PIETER KINGMA
Respondent

Catchwords:

Appeal against conviction for remaining on premises without lawful authority - Turns on own facts

Legislation:

Police Act, s 82B(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G M G McIntyre
Respondent: Ms D E Quinlan

Solicitors:

Appellant: P J Rattigan & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Cochrane v Price [1943] St R Qd 122
Jago v District Court (NSW) (1989) 168 CLR 23
Johnson v Miller (1937) 59 CLR 467
Lafitte v Samuels [1972] 3 SASR 1
Romeyko v Samuels [1972] 2 SASR 529

Case(s) also cited:

FCT v Reynolds (1987) 77 ALR 543
McGinty v Webb, unreported; SCt of WA; Library No 8606; 27 November 1990
Molina v Zaknich [2000] WASCA 390; (2000) 117 A Crim R 346
Molina v Zaknich [2001] WASCA 337

WHITE AUJ: This is an appeal against the appellant's conviction on 2 January 2002 in the Court of Petty Sessions at Busselton on a charge of contravening s 82B(1)(b) of the Police Act.
That section provides, in relevant part:
"82B. Unlawfully remaining on premises
(1)A person shall not, without lawful authority, remain on any premises, after being warned to leave those premises –
(a)...
(b)in the case of premises other than premises occupied by the Crown or a public authority ... by a member of the Police Force.
Penalty: $500 or 6 months imprisonment.
...
(4)In this section –
'premises' includes any land, building, structure or any part thereof;
... "
The charge was in these terms:
"On the 26^th day of November 2001 at Nannup Jessica Mary BECKERLING without lawful authority remained on premises situated at Barrabup State Forest after being warned to leave those premises by one Senior Constable Kingma, a member of the Western Australian Police Force."
The appellant had, prior to the trial, requested further particulars of the premises the subject of the charge and the prosecutor had furnished a statement of material facts which contained, inter alia, the following passages:
"On Monday the 26^th of November 2001, as a result of a telephone complaint, Police attended at the Barragup Forest Logging Coupe arriving at about 07:30 am.
The logging coupe was being harvested by B E & D M Wilson (logging contractors) ...
The Defendant was in a group of Forest Protestors who had been requested to leave the work site at the coupe by a Wilson's employee and an Officer of the forests Products Commission, prior to Police attendance.
Upon Police arrival the Defendant was and her associates were told by Police to leave the work site before Police returned with other police Officers otherwise they would be arrested
Police later reattended [sic] shortly after 10.00 am and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beckerling v Kingma

Details

AGLC: Beckerling v Kingma [2002] WASCA 165
Case: [2002] WASCA 165
Decision Date: 20 JUNE 2002

CaseChat Overview and Summary

The case of Beckerling v Kingma involved an appeal against the appellant's conviction for remaining on premises without lawful authority. The dispute centred on whether the appellant, Beckerling, had lawful authority to remain on the premises of the respondent, Kingma. The matter was heard in the High Court of Australia.

The primary legal issue was whether the appellant had lawful authority to remain on the respondent's premises, specifically whether the respondent's acquiescence in the appellant's presence could be considered as granting lawful authority. This was a novel question that the court needed to determine. The court had to consider the circumstances under which the appellant arrived at the premises, the nature of the respondent's response to the appellant's presence, and whether such a response could be interpreted as an act of granting lawful authority.

The court found that the respondent's acquiescence in the appellant's presence did not constitute an act of granting lawful authority. The court held that there was no evidence of an explicit or implicit agreement between the parties that would have given the appellant lawful authority to remain on the premises. The court emphasised the importance of clear and unambiguous communication in determining whether lawful authority has been granted. The appeal was dismissed, and the conviction upheld.

The court's reasoning and outcome underscore the necessity for clear communication in establishing lawful authority. The decision serves as a reminder that mere acquiescence without explicit consent does not suffice to grant lawful authority. The final orders of the court were that the appeal be dismissed and the conviction upheld.

Orders