O v Wedd - [2000] TASSC 74

[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…

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.

Continue reading O v Wedd

Details

AGLC: O v Wedd [2000] TASSC 74
Case: [2000] TASSC 74
Decision Date: 26 June 2000

CaseChat Overview and Summary

The Supreme Court of Tasmania dealt with an appeal by the applicant, O, against a decision of the Magistrate's Court which found the applicant guilty of entering the Northgate Shopping Centre without the consent of the owner, occupier or person in charge of the land, under s14B(1) of the Police Offences Act 1935. The applicant was required to enter into an undertaking to be of good behaviour for a period of 12 months. The central issues in the case were whether the Magistrate's Court was correct in finding that the applicant had entered the shopping centre without the consent of the owner, occupier or person in charge, and whether the security manager, Mr Eagling, was the 'person in charge' of the shopping centre for the purposes of the statute.

The court held that the Magistrate's Court should have entertained a reasonable doubt as to the scope of Mr Eagling's authority to issue a 12-month ban on the applicant's entry to the shopping centre. There was no evidence that the applicant had misbehaved in any particular way, nor had she been given any warning. The security manager's authority to exclude her from the premises for any length of time was questionable, as it was not clear whether his authority (if any) to issue such notices was subject to any restrictions. The court concluded that the Magistrate's Court erred in finding the applicant guilty of the offence, and the order made in the lower court was quashed. The complaint was dismissed.

This case highlights the importance of establishing the authority of a security manager or a person in charge to exclude individuals from a shopping centre, as well as the need for proper evidence to support such claims. It also underscores the fact that shopping centres, like individual shops, are generally open to the public during ordinary shopping hours, and an individual's implicit invitation to enter can be revoked, provided that the person revoking it has the proper authority to do so.

Orders