O v Wedd
[2000] TASSC 74
•26 June 2000
[2000] TASSC 74
CITATION: O v Wedd [2000] TASSC 74
PARTIES: O
v
WEDD, Nicola
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 24/2000
DELIVERED ON: 26 June 2000
DELIVERED AT: Hobart
HEARING DATES: 16 June 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Torts - Trespass - Remedies - Summary proceedings - Entry without permission - Shopping centre.
Police Offences Act 1935 (Tas), s14B(1).
Barker v R (1983) 153 CLR 338; Bethune v Heffernan [1986] VR 417, referred to.
Aust Dig Torts [207]
REPRESENTATION:
Counsel:
Applicant: R A Browne
Respondent: K Brown
Solicitors:
Applicant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 74
Number of Paragraphs: 12
Serial No 74/2000
File No LCA 24/2000
O v NICOLA WEDD
REASONS FOR JUDGMENT BLOW J
26 June 2000
The applicant was charged with under the Police Offences Act 1935 ("the Act"), s14B(1) with entering without reasonable or lawful excuse on land, namely the Northgate Shopping Centre at Glenorchy, without the consent of the owner or occupier of the land or the person in charge thereof, on 2 July 1999. The learned magistrate found the charge proven but, pursuant to the Youth Justice Act 1997, s47(1)(c), dismissed the charge and required the applicant to enter into an undertaking to be of good behaviour for a period of 12 months. The applicant has moved the Court to review the order whereby the learned magistrate found the charged proven.
Only two witnesses gave evidence in the court below. Both were called by the prosecutor. The first, Mr Eagling, described himself as "self employed as a security agent". The second, a Mr Duggan, was an employee of Mr Eagling. Mr Eagling said his primary location of work was Northgate Shopping Centre where he acted as the security manager. He said he saw the applicant walking through that shopping centre on the day of the alleged offence. He said that he had "been active working at Northgate for a bit over three years" at that time. He said that he had issued a notice addressed to the applicant. Mr Duggan gave evidence that he had served that notice on the applicant. A copy of the notice was tendered as an exhibit. It was on the letterhead of "Northgate shopping centre". Apart from the applicant's name, it read as follows:
"TRESPASS NOTICE
Re: NORTHGATE SHOPPING CENTRE
I, Grant Archie Eagling, as authorised agent of the person in charge of the land situate at Main Road Glenorchy, in Tasmania, and known as Northgate Shopping Centre, hereby advise that due to your past unacceptable conduct and behaviour, you are no longer invited, permitted or welcome to enter either the land or premises situate at Main Road Glenorchy, in Tasmania, and known as Northgate Shopping Centre for a period of twelve months from the date of this notice, or until further notice to you.
You are further notified that in the event that you do enter or remain on the said land you will be treated as a trespasser and liable to arrest and prosecution under section 14B of the Police Offences Act 1935, as amended, without further notice to you.
Signed: …………………….. Date: 16 / 6 /19 99
G A EAGLING
Q A SECURITY
as authorised agent of the person incharge of Northgate Shopping Centre."
Although Mr Eagling purported to be the agent of the person in charge of the shopping centre, his notice contained no information as who that person was. The assertion in the notice that he was the authorised agent of that person was hearsay and therefore not admissible evidence of any such fact: G (A) v G (T) [1970] 2 QB 643. There was no evidence before the learned magistrate as to who owned the shopping centre, who occupied it, or who had engaged Mr Eagling, nor was there any precise evidence as to what authority he had been given to eject or exclude members of the public. There was evidence that Mr Eagling had a practice of signing notices like the one given to the applicant, and giving them to Mr Duggan for service.
The Act, s14B(1) provides as follows:
"14B ¾ (1) A person shall not, without reasonable or lawful excuse (proof of which lies on him), enter or remain on land, without the consent of the owner or occupier of the land or the person in charge thereof."
The learned magistrate considered the status of Mr Eagling and said the following:
"So far as the question of the witness' position is concerned, it's perfectly clear that he is not the owner and he is not the occupier and he is not even one of the occupiers in the sense in which that word is used in this section and there is absolutely no basis upon which a reasonable jury could conclude other than that. So it comes down to whether he is the, or a, person in charge because I agree with Mr Browne's submission that the evidence insofar as there is evidence that he was appointed as an authorised agent of the owner or occupier is lacking …".
His Worship went on to conclude that the phrase, "the person in charge" included "the person on the ground doing the job of security", and concluded that that person at the shopping centre in question was Mr Eagling. He continued:
"I have referred to the evidence already and the only reasonable conclusion that a jury could possibly reach is that he is the person doing that job and I am prepared to infer that the person in charge of security is the person in charge of the decision of whether or not to exclude a particular person or persons from the shopping centre and that's what I conclude as a matter of law the phrase 'person in charge' includes. It includes no doubt other people as well but it includes him and although I acknowledge that this cuts across issues of agency and appointment, I think that in all the circumstances it's appropriate to infer from the evidence, from what Mr Eagling was doing and how he was doing it, that he was the person in charge of security and that that person has the say so himself of whether or not a trespass notice is to be issued, whether or not the person subject to it is to be excluded from the shopping centre."
The notice to review challenged the learned magistrate's findings in relation to Mr Eagling and his notice on two grounds which were expressed as follows:
"1 The Learned Magistrate erred in law in finding he was satisfied beyond a reasonable doubt that the prosecution had proved that the applicant had entered land known as Northgate Shopping Centre without the consent of the owner or occupier of the land or the person in charge thereof.
2 That the Learned Magistrate erred in law in finding that Mr G A Eagling, as the person doing the job of security at Northgate Shopping Centre, was the 'person in charge' of Northgate Shopping Centre for the purposes of s 14B of the Police Offences Act, 1935."
Shopping centres, like individual shops, are prima facie open to the public during ordinary shopping hours. There is an implicit invitation to members of the public to enter a shop, either for the purpose of doing business, or with a view to doing business, or for no particular purpose at all: Barker v R (1983) 153 CLR 338, per Mason J (as he then was) at 348, and per Brennan and Deane JJ at 361 - 362. In my view, the position is no different in relation to the public areas of a shopping centre on private land that includes shops occupied by a number of retailers. There is no reason why the arrangements as to the ownership, occupancy and control of a particular shopping centre should make any difference to the prima facie right of members of the public to enter the premises during ordinary trading hours. But an individual's implicit invitation to enter can no doubt be revoked. In this case, the prosecution needed to prove that the applicant's invitation to enter the Northgate Shopping Centre had been revoked. Whether Mr Eagling had the right to revoke that invitation must depend on who engaged him to do his security work, the status of the person or corporation that engaged him, and the scope of the authority that he was given to exclude individuals from the shopping centre.
Although the lack of "the consent of the owner or occupier of the land or the person in charge thereof" is an ingredient of the offence created by s14B(1), it does not follow that, in this case, the prosecution needed to prove that the revocation of such consent was done by either the owner of the land, the occupier of the land, or the person in charge of the land. If, as is likely, the land was leased, the owner might have had no legal right to withdraw the invitation to an individual member of the public to enter the land during trading hours. The occupier of the public areas of the shopping centre (as distinct from the individual shops), whether the owner or a tenant, must have had the right to withdraw such an invitation from an individual member of the public. No doubt that right could have been exercised by any agent who was authorised by the occupier to exercise it, subject to any restrictions on the scope of the agent's authority. A person in charge of the land who was neither the owner nor the occupier would no doubt have had some authority to act as the agent of the owner and/or the occupier, but there may well have been limits on the scope of such a person's authority. For example, the person in charge might have been authorised only to eject troublesome individuals, and not to withdraw their permission to return at a later date. Or the person in charge might have been authorised to prohibit troublesome individuals from entering the shopping centre only after first giving a warning, or only in a limited number of situations, or only for a finite period. Such restrictions might have been imposed for commercial reasons. I do not think it is self-evident whether any such restrictions would ordinarily have been imposed by the proprietor of a shopping centre on the authority of its security manager.
I think the learned magistrate was right to conclude that Mr Eagling was the person in charge of the land in question, by which I mean the public or common areas of the Northgate Shopping Centre. In fact, he might even have constituted the occupier of those areas for the purposes of s14B(1). Nathan J observed in Bethune v Heffernan [1986] VR 417, which involved a statutory provision which referred only to owners and occupiers and not to persons in charge, that railway station masters, officers in charge of fire and ambulance stations, and a constable temporarily in charge of a police station while other police were at lunch, could all be occupiers for the purpose of the section in question. Plainly Mr Eagling was making his living out of acting as security manager at the shopping centre. It can be inferred that he had been engaged by or on behalf of the occupier of the public or common areas. It can be inferred that he had authority, as the agent of an unidentified principal, to take reasonable steps for the purpose of maintaining the security of the premises. I think it can be inferred that he must have had authority to eject troublemakers whenever there was a disturbance. However, I do not think it can be inferred from the fact that he was the security manager that he must have had anyone's authority to ban individuals from the premises for any length of time. There was evidence that he had a practice of doing just that, but no evidence that anyone had given him unrestricted authority to do that, nor even restricted authority to do that.
In my view, the learned magistrate should have entertained a reasonable doubt as to the scope of Mr Eagling's authority to withdraw, in relation to the applicant, her invitation as a member of the public to enter the shopping centre for the 12 month period specified in the notice. On the evidence there is room for doubt as to whether his authority (if any) to issue such notices was subject to any restrictions. There was no evidence that the applicant had misbehaved in any particular way, nor that she had been given any warning. Mr Eagling said only that she had been pointed out to him probably 15 or 16 months before the alleged offence, and that she had "ongoing problems and anti-social behaviour". A security manager in his position would not necessarily have had authority to exclude her from the premises for any length of time.
The order made in the court below is quashed. The complaint is dismissed.