Director of Public Prosecutions v C O'G
[1999] NSWSC 542
•8 June 1999
CITATION: DPP v C O'G [1999] NSWSC 542 CURRENT JURISDICTION: Supreme Court FILE NUMBER(S): 10728/99 HEARING DATE(S): 31 May 1999 JUDGMENT DATE:
8 June 1999PARTIES :
Director of Public Prosecutions v C O'GJUDGMENT OF: Grove J at 1
LOWER COURT JURISDICTION: Bidura Children's Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER: G.E. Bradd, Esq
COUNSEL : P. Lakatos (Applicant)
B. Donovan, QC (Respondent)SOLICITORS: D.P.P. (Applicant)
Bernard D. Brassil & Co (Respondent)CATCHWORDS: Stated Case - Inclosed Lands - Licensee in Possession - s4(1) Inclosed Protection Act - "of any other person" includes licensee in occupation ACTS CITED: Inclosed Lands Protection Act 1901 DECISION: Question asked in Stated Case answered in the affirmative
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMICHAEL GROVE J
Tuesday 8 June 1999
10728/99 - DIRECTOR OF PUBLIC PROSECUTIONS v C. O’G
JUDGMENT
1 HIS HONOUR : From 7 pm on 28 September 1997 until 7 am on the following day Walter Hufschmid was the person in charge of land known as Drivers Triangle which was enclosed by cyclone wire fencing and entrance gates to which were attached rows of barbed wire. Drivers Triangle was incorporated within the scope of works then being undertaken for construction of the (Sydney) Eastern Distributor carriageway. Mr Hufschmid was employed by a security company which contracted with the road builders. The owner of the land was the Centennial and Moore Park Trust (the Trust) and it had by written agreement granted licence to enter and use an area including Drivers Triangle to the Roads and Traffic Authority of New South Wales (RTA). Pursuant to a complex of various agreements which it is unnecessary for present purposes to elaborate the workforces of entities engaged in the construction and collateral activity were authorized to enter the land.
2 At about 5.40 am on 29 September 1997 Mr Hufschmid noticed four persons including the respondent (a juvenile) on the jib of machinery at the site. They had secured themselves with chains and the like. They were not part of the workforce authorized to enter the land. They refused a request by Mr Hufschmid that they quit the property. Eventually police were called and the respondent and the others were removed by the Rescue Squad.
3 An information was laid against the respondent charging an offence against s 4(1) of the Inclosed Lands Protection Act in that he :4 On 12 February 1998 at Bidura Children’s Court the learned presiding magistrate dismissed the information. The informant appealed by way of stated case wherein were set out the grounds of his Worship’s determination namely:
“…. without lawful excuse did enter the inclosed lands of the Roads and Traffic Authority, situate the Eastern Distributor construction site, Drivers Triangle, without the consent of the person apparently in charge of the same.”
5 Within the case the appellant’s contentions are set out in these terms:
“a) On 12.2.98 I accepted a defence submission that because the information alleged the defendant ‘did enter onto the enclosed lands of the RTA’ pursuant to Section 4(1) of the Inclosed Lands Protection Act 1901, the prosecution had to prove as an essential element of its case that the subject land was ‘of the Roads and Traffic Authority’.
b) I found that a licence granted by the Centennial and Moore Park Trust to the Roads and Traffic Authority did not entitle the Roads and Traffic Authority to exclusive possession of the licensed area.
c) I found that the subject land in this case was not ‘of the RTA’ because the Roads and Traffic Authority did not have an exclusive right to possession of that land.
d) I accordingly ruled that the prosecution had not established a prima facie case and I therefore dismissed the information.”
“I erred in law:
a) in the construction of the word ‘of’ as it occurs in the phrase ‘did enter onto the inclosed lands of’ in Section 4(1) of the Inclosed Lands Protection Act 1901.
b) in holding that the word ‘of’ as it occurs in the phrase ‘did enter onto the inclosed lands of’ in Section 4(1) of the Inclosed Lands Protection Act 1901 is restricted to proprietary interests in the land or interests conferring an entitlement to exclusive possession of the land.
c) in dismissing the information.”
6 Pursuant to notice dated 10 May 1999 the Director of Public Prosecutions has taken over the appeal. As stated the case raises a relatively short point concerning the construction of s4(1) of the Inclosed Lands Protection Act namely whether the expression therein “the inclosed lands of any other person” should be construed to mean that that person has either a proprietary interest or an exclusive right to possession of those inclosed lands. I reject that construction.
7 In the context of the section “any other person” distinguishes that person from the alleged unlawful entrant: cf Maric v Thompson, Supreme Court, (Mathews J) unreported 23 February 1990. The learned magistrate expressed reliance upon Cowell v Rosehill Racecourse Company Limited 1936 56 CLR 605, particularly per Latham CJ @ 617. There is nothing in s4(1) of the Inclosed Lands Protection Act to suggest that the scope of its protection is limited to those who hold interests in land as distinct from, for example, contractual licensees in actual occupancy of land. The issue in Cowell was a ruling on demurrer to a reply sought to be relied upon by the plaintiff in an action for assault who had been met with a defence that lawful force was applied to remove him as a trespasser. The reply asserted payment to the defendant for leave and licence to enter and remain on the land. There was judgment for the defendant on demurrer. In the course of judgment the Chief Justice discussed the distinction between proprietary interests and contractual rights to enter land. His remarks are not germane to construction of the phrase "of any other person” appearing in s4(1) and the conclusion in the court below is not supported by that authority.
8 At the hearing of the appeal, argument was more detailed and in deference to counsel’s adversions I should make reference to them.
9 The nature of the right of the RTA ceded by the Licence Agreement was explored. I extract some of the provisions of the agreement:
“3.1 Grant
Subject to this Deed, the Trust grants and the RTA accepts a non-exclusive licence to enter and use the Licensed Area for the Term for the Licence Purposes.
3.2 Nature
(a) The licence granted under this Deed is personal to the RTA and does not create a tenancy or any other estate or interest in the Licensed Area. Nothing in this Deed entitles the RTA to exclusive possession of the Licensed Area.
5.1 Access Times
Subject to this Deed, the RTA has access to the Licensed Area 24 hours a day, 7 days per week for the Licence Purposes. The RTA must not use the Licensed Area for any activity which is not contemplated by the Licence Purposes.
5.2 Trust’s right to enter
(a) at all reasonable times, give to the Director and all persons authorised by the Director access to the Licensed Area; and
(b) provide the Trust with every reasonable facility for the examination and testing of any thing on or near the Licensed Area.
10 The particulars within the information specified the relevant inclosed lands as being “of the Roads and Traffic Authority”. The terms of agreement above set out recognize the occupation of the land by the RTA, indeed, as counsel submitted, the declarations in clause 5.2 would only become necessary in the context of occupation by the RTA. In my view the RTA had a sufficient right in connection with the lands for them to be described as being “of the RTA”. For the purposes of s 4(1) that right need not amount to an interest in the land and a contractual right suffices.
11 Senior counsel for the respondent acknowledging (at least tacitly) that the issue was not raised by the stated case, pointed to the specification in the information “without the consent of the person apparently in charge” and the statute which refers to the absence of consent of the owner or occupier or person apparently in charge. He argued that to prove an offence under s 4(1) it would be incumbent upon the prosecution to prove the absence of consent of anybody from each of those categories. Commonly one person would be owner, occupier and in charge but it was contended that specification of only one of those categories, in this case the person apparently in charge, was bad as proof of the absence of only that person’s consent would be insufficient to establish guilt. I would not uphold that argument. I would construe the relevant words of s 4(1) as creating potential offences for entry without consent of a person in any one of the categories mentioned and would regard this as in conformity with the use of the disjunctive “or”. It is true that (assuming they are different) in a given case an entrant may not have the consent of, for example, the occupier but have the consent of the owner but such circumstance would meet the criterion of lawful excuse. I do not accept that the principles of construction of penal provisions in a statute require the extended proof contended by counsel.
12 The question asked in the Stated Case whether the determination was erroneous in law should be answered in the affirmative.
13 At the conclusion of the hearing it was indicated that the parties would wish to be heard on the question of costs. I make no order and grant liberty to apply in respect thereof.
**********
0
0
0