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…

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.

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Details

Case: [2009] SASC 263
Decision Date: 3 September 2009

CaseChat Overview and Summary

The case of Lee & Rulfs v Police involved two appellants, Lee and Rulfs, who were charged with being on a commercial premises without lawful excuse. The incident took place on the night of 28 October 2008, when the appellants were found on the roof of a pharmacy in Norwood. The appellants were engaged in the sport of "parkour," which involves various acrobatic manoeuvres over obstacles. Despite complying with a police request to cease their activity, they were fined but not convicted. The central legal issues revolved around the definition of trespass and the concept of lawful excuse, particularly in the context of the appellants' conduct and the absence of any damage or criminal intent.

The court had to determine whether the appellants' actions constituted a trespass that warranted criminal sanctions, even in the absence of direct harm or fear caused to others. The appellants argued that their conduct did not merit punishment as it did not disturb anyone, cause damage, or involve any criminal intent. The court referred to the test articulated by Angas Parsons J in Wilkins v Condell, which questioned whether the trespass amounted to a crime against the State deserving of punishment. The learned Magistrate found that the appellants' conduct, despite their good intentions and lack of harm, was of a kind that attracted criminal sanction.

In dismissing the appeal, the court held that the Magistrate's reasoning was sound. The conduct of the appellants, while not causing direct harm or fear, still constituted a trespass that went beyond mere compensation and warranted a criminal response. The court emphasised that the absence of immediate harm or fear did not absolve the appellants from the legal consequences of their actions. The appeal was dismissed, affirming the fines imposed on the appellants.

The Supreme Court upheld the fines imposed on the appellants by the Magistrate, thereby concluding the case. The court's decision underscored the importance of legal boundaries and the need for individuals to seek permission before engaging in activities on private property, even if no immediate harm is caused.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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