Lee & Rulfs v Police - [2009] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE & RULFS v POLICE
[2009] SASC 263
Judgment of The Honourable Justice Nyland
3 September 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY - WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO - DEFENCES - JUSTIFICATION
Appellants charged with being on a commercial premises, namely the roof of a pharmacy at night without lawful excuse - charge proved but fine imposed without conviction being recorded - appellants engaged in the sport of "parkour" - complied with police request to cease the activity - no evidence or damage or criminal activity undertaken or contemplated - what constitutes lawful excuse - finding by Magistrate that conduct of a kind which attracted criminal sanction - no error in reasoning of Magistrate - appeal dismissed.
Summary Offences Act (1953) s 17(1), referred to.
Samuels v Nicholson (1973) 6 SASR 479, applied.
DPP V Wille (1999) 47 NSWLR 255; Wilkins v Condell [1940] SASR 139; Crafter v O'Reilly [1934] SASR 20; Mark v Henshaw (1998) 155 ALR 118; Hancock v Birsa [1972] WAR 177, considered.

LEE & RULFS v POLICE
[2009] SASC 263

NYLAND J: This is an appeal against a decision made by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 19 November 2008. The appellants were charged on complaint that on 28 October 2007 they were on premises at 188 The Parade, Norwood (John Quinn Pharmacy) without lawful excuse, contrary to the provisions of 17(1) Summary Offences Act 1953.
The appellants pleaded not guilty to the charge. At the conclusion of the trial the learned Magistrate found the charge proved against both of them but without recording a conviction fined each of them the sum of $200 together with costs.
Background
At about 10.30 pm on Sunday, 28 October 2008 two members of the public observed the appellants on top of business premises on the Parade at Norwood. The police attended at about 11.00 pm and the appellants were located by the police on the roof of 188 The Parade, which were premises occupied by John Quinn Pharmacy and adjoined premises occupied by the ANZ Bank.
A search of the roof did not find any evidence of damage or criminal activity. All premises in the row of shops were closed and secure. The police searched the appellants and their vehicle but did not find any evidence suggesting any criminal activity had either been undertaken or contemplated. In her reasons for judgment the learned Magistrate said the facts were not in dispute. The appellants admitted they did not have permission to be on the roof of any of the buildings but explained that they were engaged in the sport of “parkour”. Parkour was described by the learned Magistrate in her reasons as follows[1]:
… Part martial art, part extreme sport, parkour (a name derived from the French word parcours, or “route”) is a kind of modern steeplechase, a way of getting from A to B in the quickest and most efficient manner. Rather than run around a park bench, participants vault over it. They scale walls and drainpipes. They jump from roof to roof. In short, they act as if they are being chased.
[1] Reasons of Magistrate at para [4].
The appellant Rulfs was apparently an exponent of parkour and was featured in the Adelaide Advertiser undertaking this sport and was a member of a club which practised it. On the night of this incident the appellants, who were best friends, were having a family dinner at Rulfs’ house. Rulfs’ evidence at trial was that he was excited by the sport and wanted to show it to Lee, so they drove to The Parade where he showed Lee some parkour manoeuvres. Rulfs admitted that he may have been on the rooves of all of the premises that night, but was adamant that his sole reason for being there was to demonstrate parkour to Lee and to coach him. The appellants had no intention of committing any offences and were not aware they were committing an offence by being on the rooves, although in evidence Lee admitted it was wrong to be on the rooftop
The argument before the learned Magistrate and on appeal was that in this case no-one had been disturbed by the appellant’s conduct. No-one was put in fear and no damage was caused. It was argued that the conduct was not deserving of punishment, the penalty for which could include a term of imprisonment. Counsel for the appellants likened the situation to skateboarding on premises where one should not, or retrieving a ball from a neighbour’s garden.
In Wilkins v Condell[2] Angas Parsons J formulated the test for the absence of lawful excuse in the following way:
The question the Court of summary jurisdiction should ask itself on a prosecution for this offence is, was the trespass of such a kind that it went beyond a mere matter of compensation between the citizens concerned so as to amount to a crime against the State and conduct deserving of punishment?
[2] [1940] SASR 139 at 148.
In the same case, Napier J (as he then was) expressed the test in similar terms. He said[3]:
I agree that it is difficult, and perhaps impossible, to define “lawful excuse” in this context. The expression bears some resemblance, in that respect, to “reasonable doubt” and “criminal negligence”. But I think that the question for the Court is whether the defendant’s presence upon the premises is excusable, in all the circumstances of the case, bearing in mind that the defendant is charged with an offence punishable by imprisonment, and, therefore, that his conduct may well be innocent or excusable for this purpose, although otherwise indefensible. I think that Parliament has left it to the Courts to distinguish between a wrongful act for which compensation is an adequate remedy, and conduct which goes beyond a mere matter of compensation, and should be treated accordingly, ie as a crime deserving of punishment.
[3] Ibid at 152.
Those statements of principle were affirmed by Bray CJ in Samuels v Nicholson[4], who said that it was:
…prima facie unlikely that Parliament intended to make every civil trespass a criminal offence …
[4] (1973) 6 SASR 479 at 483.
In that case an inquiry agent seeking evidence for the purpose of divorce proceedings went to a flat to which access was obtained by a staircase and a balcony and although told by an occupant of the flat to go away, he remained on the balcony for about a quarter of an hour. The charge of being on the balcony of the flat without lawful excuse was dismissed by the Magistrate and that decision was affirmed on appeal. In the course of his reasons, however, Bray CJ said[5]:
I can readily conceive that to some minds the respondent’s conduct might appear as outrageous and deserving of criminal punishment while to others it might appear comparatively venial. After all, the occupiers of the flat had their civil remedy and if the disturbance of the occupiers of the flat had their civil remedy and if the disturbance of the occupiers or their neighbours was grave enough to warrant it, the respondent could have been prosecuted under s 50 the Police Offences Act with disturbing them by wilfully knocking on the door without reasonable excuse. He might or might not have been able to establish such an excuse. The balcony was the last stage in the regular means of access from the street to the front door of the flat and his real sin, it seems to me, was not in entering on to the balcony or in knocking on the door, but in staying there after he had been told to go. If it had been for me, I do not know whether or not I would have held that the trespass went beyond a mere matter of civil compensation, but I cannot say that the learned Special Magistrate was wrong in holding that it did not. It must be remembered that the onus was on the prosecution “to satisfy the tribunal beyond reasonable doubt that the defendant was on the premises without lawful excuse in the sense explained”.
[5] Ibid at [485].
On the hearing of the appeal, Mr Edwardson QC, who appeared for the appellants, referred to Samuels v Nicholson and pointed out that in that case, notwithstanding that the conduct of the Respondent amounted to a civil trespass, it was nevertheless not treated as a crime deserving of punishment. He argued that in this case the appellants were on the roof of business premises and not domestic premises, as was the case in Wilkins v Condell and Samuels v Nicholson. The premises were not occupied and there was no attempt to breach the security of the inner dwellings of those premises. As soon as the appellants were asked to leave, they did so. They were not intending to commit any offence and they were engaged in a legitimate activity. There was no evidence to suggest that any damage was likely to be caused as a result of their conduct. Mr Edwardson submitted that the prosecution had failed to discharge the onus of proving that the appellants were on the roof without lawful excuse. Their conduct was no more than a simple trespass and was not the type of trespass which:
…went beyond a mere matter of compensation between the citizens concerned so as to amount to a crime against the State and conduct deserving of punishment.[6]
[6] Williams v Condell (supra).
Mr Lesses, who appeared for the respondent on the hearing of the appeal, acknowledged that once a defendant had adduced evidence of lawful excuse the prosecution was obliged to rebut the existence of that excuse beyond reasonable doubt for there to be a conviction. He referred to Crafter v O’Reilly[7] wherein Murray CJ said it was impossible to provide an exhaustive definition of what will constitute a lawful excuse, but offered the following illustrations by way of guidance:
(i)    acting with leave or licence, express or implied of the occupier or owner;
(ii)    acting under superior authority, eg lawfully issued warrant;
(iii)     acting without sufficient mental capacity;
(iv)     acting under compulsion or necessity ;
(v)     acting under an honest and reasonable mistake of fact.
[7] [1934] SASR 20 at 23-4.
Mr Lesses submitted that upon the defendant proffering a reason as a lawful excuse the trier of fact must identify and examine the excuse as part of the determination of the offence, although the critical issue for determination is not confined to be belief or state of mind of the defendant. He referred to the decision of the Full Court of the Federal Court in Mark v Henshaw[8] wherein Gallop, O’Loughlin and Finn JJ, in a joint judgment said:
Whilst those factors are relevant and may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers’ beliefs and state of mind: it requires the application of community standards. In particular, it requires the trier of fact to determine whether the trespassers’ conduct is acceptable to the community.
[8] Mark v Henshaw (1998) 155 ALR 118 at 120.
In Hancock v Birsa[9] Wicken J adopted the comments of Napier J in Wilkins v Condell and went on to say:
It is to be observed that it is not necessary that the conduct should be a crime or an offence (other than by force of the subsection itself), but merely that it should be of such a kind as the tribunal of fact considers should be treated as deserving of punishment. This is a matter in every case for the judgment of the tribunal of fact. That there was a criminal purpose may be relevant but not conclusive, eg the proposed criminal purpose may be trivial, such as a man going into the front garden of a house to “steal” a drink of water from a tap; similarly, that there is no criminal purpose may be relevant but not conclusive; and again it may be relevant for the purpose of beginning to form a judgment, although not conclusive, that the conduct is such as would justify binding over. The same view has been taken by Hart J in Queensland – Roffey v Wennerbom[1965] Qd R 42 at p 58 – and I respectfully think it correct. Put another way, the question for the tribunal of fact will be: In all the circumstances of this case, has the prosecutor shown beyond reasonable doubt that the conduct of the defendant is such that is (sic) deserves the application of the penal law and, therefore, ought not to be excused? The answer to this question is one of fact and of judgment and will depend upon all the circumstances of the particular case and is one for the tribunal which tries the case.
[9] [1972] WAR 177 at 183.
In DPP v Wille[10]Kirby P reviewed a number of authorities dealing with trespass offences where offenders had not acted with a criminal or unlawful purpose and made the following observations:[11]
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 Munro (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 that 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 the cases did the defendant have a right to enter the premises in order to accomplish his purpose.
[10] DPP v Wille (1999) 47 NSWLR 255.
[11] DPP v Wille (1999) 47 NSWLR 255 at 261.
In this case, the learned Magistrate having reviewed the authorities concluded:[12]
While I accept that the absence of permission to be on the premises does not equate the absence of a lawful excuse, in my view the conduct is more than conduct that calls only for civil compensation. Parliament has legislated to make trespass without lawful excuse an offence and has thereby sought to penalise such conduct and deter entering on to private property without a lawful excuse. The defendants were climbing on to private property in the night. They had no regard to the possible consequences of their actions – whether as regards to the rights of the property owners, the damage that may have been caused to the property or the possible response to concerns raised by anyone who saw them. In my view the community expects the law to protect premises against this type of conduct and for conduct of this kind to receive criminal sanction. I am satisfied beyond reasonable doubt that the defendants’ conduct was of the type envisaged by the legislators and the courts as warranting the intervention of the Criminal Law.
[12] Reasons of Magistrate at [20].
In this case the learned Magistrate had regard to the relevant authorities. She applied the law to the facts and circumstances of the case and concluded that the prosecution had proved beyond reasonable doubt that the defendants were on the premises without lawful excuse. The appellants had climbed on to and remained on a commercial property late at night. They had no permission to do so. Members of the public who saw them on the roof were alarmed by their presence. The appellants acted without regard to the possible consequences of their conduct. They did not have permission to be present on those premises. I find myself in a similar quandary to that of Bray CJ in Samuels v Nicholson (supra). If I had heard the matter at first instance I do not know that I would necessarily have reached the same conclusion as the learned Magistrate. I am however not persuaded that the learned Magistrate fell into error in reaching the conclusion she did. The penalty recorded by the Magistrate appropriately reflected the low level of culpability of the appellants. The appeal is therefore dismissed.