King v Police - [2007] SASC 93

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KING v POLICE
[2007] SASC 93
Judgment of The Honourable Chief Justice Doyle (ex tempore)
13 March 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS & ORDINANCES - SOUTH AUSTRALIA
Appeal against conviction – appellant was convicted in the Magistrates Court on a charge of trespass on premises in breach of s 17A of the Summary Offences Act 1953 (SA) – appellant refused to leave the campus of the University of South Australia after being instructed to do so by an authorised person – appellant set up stall for the distribution of political literature without prior permission – whether the nature of the trespass was such as to interfere with the enjoyment of the premises by the occupier – interpretation of s 17A(1)(b) of the Summary Offences Act 1953 (SA) – in the circumstances appellant interfered with the occupier’s right of management.
Held: appeal dismissed.
Summary Offences Act 1953 (SA) s 17A, referred to.
Semple v Mant (1985) 39 SASR 282, considered.

KING v POLICE
[2007] SASC 93
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): This is an appeal against a conviction recorded by the Magistrates Court.
The appeal raises the question of whether, when Mr King trespassed on land owned and occupied by the University of South Australia, the “nature of the trespass” was “such as to interfere with the enjoyment of the premises by the occupier”. Unless it was, Mr King is not guilty of the offence.
The offence charged is created by s 17A(1) of the Summary Offences Act1953 (SA). That provision reads as follows:
17A Trespassers on premises
(1) Where -
(a)a person trespasses on premises; and
(b)the nature of the trespass is such as to interfere with the enjoyment of the premises by the occupier; and
(c)the trespasser is asked by an authorised person to leave the premises,
The trespasser is, if he or she fails to leave the premises forthwith or again trespasses on the premises within 24 hours of being asked to leave, guilty of an offence.
There is no dispute about the Magistrate’s findings of fact. I will summarise them.
The University of South Australia owns and occupies land at Magill, which it uses for the purpose of teaching and for other University activities.
On 21 February 2006 Mr King, with a few other people, set up a small stall on that land. The stall comprised three card tables. On the tables Mr King and his companions displayed pamphlets and books, intended to promote the aims of a group to which he belonged. This was during what is called orientation week. It is the sort of activity that one would expect to occur at that time.
However, Mr King was not a student of the University, and neither he nor his companions had permission to set up the stall.
Mr Blacker, an employee of the University, and an authorised person for the purposes of s 17A(1)(c), saw Mr King there. After speaking to him, and after making some enquiries, Mr Blacker asked Mr King to leave the premises because he had no permission to set up the stall. He told Mr King that he was trespassing. Mr King refused to leave.
A little later Mr Blacker returned with two police constables. Mr Blacker again told Mr King that he should pack up the stall and leave. Mr King refused to leave the premises. He was arrested.
On these findings, the offence is established, subject to the issue that arises under s 17A(1)(b). Mr King was a trespasser and, once Mr Blacker spoke to him, he knew that he was trespassing. He was asked to leave by an authorised person, and he failed to leave the premises.
I am prepared to assume that the University permits members of the public to enter the premises without first obtaining permission. But once Mr King was told by an authorised person that he had no permission to be or to remain on the premises and that he must leave he knew that any implied permission to enter the premises had been revoked.
The issue is, then, whether “the nature of the trespass is such as to interfere with the enjoyment of the premises by the occupier”. This issue was considered by the Full Court in Semple v Mant (1985) 39 SASR 282. The effect of that decision is that the question is one of fact, although I add that it can raise questions of law, because it might be necessary to determine, in a given case, the extent of the rights of an occupier of premises to enable one to determine what amounts to enjoyment of the premises. However, that is not an issue here.
The University is entitled to decide who will and who will not be permitted to enter its premises or to remain on them having entered them. It is also entitled to decide who will and who will not be permitted to use its premises in the manner in which Mr King was using them. It is also entitled to decide where particular activities will take place on its premises if those activities are permitted. In other words, the University is entitled to decide how the use of its premises will be managed.
An aspect of the University’s enjoyment or use of its premises is that entitlement to exclude people from the premises, to limit and control what people can do on the University premises and to manage the use of its premises in the sense of deciding where particular activities will be allowed to take place and where they will not be allowed to take place.
Mr King interfered with this aspect of the University’s enjoyment of its premises, what I might conveniently call its right to manage the use of its premises, its right to decide what things will take place and where they will take place. He interfered with this by insisting on remaining on the premises and continuing with his activity at the particular place he did, when requested to remove his stall and to leave the premises.
I should also make the point that this was more than mere physical presence by Mr King. He had set up the stall. He was engaged in an activity, using the stall. Mr King interfered with the University’s enjoyment of the premises, by insisting on remaining on the premises, and continuing with the activity, contrary to the instruction of the authorised person. In that respect he challenged what might be regarded as a fundamental aspect of the enjoyment of premises. He interfered with, and resisted, the University’s exercise of its right to manage the orderly use of its premises.
This was not what might be called a bare or technical trespass, not interfering with the University’s enjoyment of the premises.
The fact that s 17A was enacted to deal with squatting in residential premises does not provide a basis for limiting the scope of the terms used by Parliament. It is not uncommon for Parliament, when dealing with a particular problem to use language of wider application. That is what has happened here. The language that Parliament has used clearly goes beyond the problem of squatters in residential premises.
Mr Blake, counsel for Mr King, submits that as the premises are occupied by a university and its functions include disseminating knowledge, and because Mr King was disseminating knowledge, his trespass is not of such a nature as to interfere with the enjoyment of the premises. I disagree.
It is for the University to decide how and when and by whom its premises will be used to disseminate knowledge, and be used for the other purposes of the University. As I have already said, the University is entitled to manage particular and possibly conflicting uses of its property, and to manage them by deciding where and when they will take place.
It is the entitlement to make that sort of decision which is an aspect of the enjoyment of premises. Mr King interfered with that aspect of the University’s enjoyment of its premises. He did so by acting in a manner that denied the exercise of that management right. The University is not obliged to permit or allow others to decide that they will use the University premises to disseminate knowledge, let alone obliged to allow those others to decide where and when they will do that. That is all part of the University’s right to manage the use of its own premises.
For those reasons, it was open to the Magistrate to find as he intended to find, although he did not do so distinctly, that Mr King interfered with the enjoyment of the premises by using them in the manner he did or by refusing to cease the use of them after being required to leave the premises.
Mr Blake also made the point that no evidence was led to prove that the trespass was of such a nature as to interfere with the enjoyment of the premises. There was no need for evidence on that point in this case. In some cases there might be a need for evidence of that kind. The aspect of the enjoyment of the premises with which he interfered is one that arises as a matter of law. It is what I have called the right of management. It was sufficient to prove what Mr King did, and possibly, as was done, where he did it, and its proximity to other things happening on the University premises. There was evidence before the Magistrate on this point.
What Mr King did involved the kind of activity that supports a claim by the owner to manage the activity, in the sense of deciding whether it will happen, when it will happen and where it will happen. In the circumstances proof of what Mr King did, proof of what was happening nearby and proof that he refused to leave the premises and to remove his stall was all that was needed.
The Magistrate’s decision was correct.
I dismiss the appeal against conviction.