Prideaux v Director of Public Prosecutions

[1987] HCA 51

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

PRIDEAUX v. DIRECTOR OF PUBLIC PROSECUTIONS

(1987) 163 CLR 483

15 October 1987

Criminal Law (Vict.)

Criminal Law (Vict.)—Forcible entry—Entry upon land in manner likely to cause breach of peace—Whether intention to occupy or take possession essential—Crimes Act 1958 (Vict.),s. 207(1).

Decision

MASON C.J., BRENNAN, DEANE, DAWSON AND GAUDRON JJ. The applicant was presented in the County Court of Victoria on a count alleging that on 8 October 1984 he "made an entry upon land in a manner likely to cause a breach of the peace or reasonable apprehension of breach of the peace". To this charge he pleaded not guilty.

2. The case against him was that he had aided and abetted one McQuillan in his entry upon premises which were occupied by one Lisa Fenwick. The facts, as stated by the Court of Criminal Appeal of Victoria, are that McQuillan accompanied by the applicant went to Ms Fenwick's premises intending to speak to her regarding an allegation that she had informed the police of offences committed by McQuillan and the applicant, that McQuillan forced his way into the house saying to Ms Fenwick that her time was up and threatening her, that McQuillan was carrying a weapon with which he struck the door, and that the applicant, who was well aware of McQuillan's intentions, did not enter the house but remained in the driveway.

3. His Honour Judge Gorman directed the jury as to the elements of the principal offence as follows:

" The Crown must prove ... McQuillan ... made an entry into ... the house premises on this land. An entry in that context merely means to go or come into the premises. Secondly, the Crown must satisfy you that the entry into the premises was unlawful, that is, it was not with the consent at the time of Lisa Fenwick who was the person who answered the door and could have given or denied permission. Thirdly, the Crown must satisfy you that the entry was in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace. That merely can be defined as a breach of public order, and on the facts of this case that would be established if you were satisfied that there was proof of force or at least a show of force involved in the entry into the premises. Now, the Crown must satisfy you of each of those three matters."

The jury convicted the applicant. He sought leave to

appeal to the Court of Criminal Appeal on the ground, inter alia, that the trial judge erred in ruling that an intention on the part of an accused to take possession of the land the subject of a count of forcible entry is not an element of the offence charged. The offence was charged under s.207(1) of the Crimes Act 1958 (Vic.) which provides:

" No person except where entry is given by the law shall make an entry upon land in a manner likely to cause a breach of the peace or reasonable apprehension of breach of the peace. Except as aforesaid it is immaterial whether he is entitled to enter upon the land or not."

The Court of Criminal Appeal dismissed the application for leave to appeal, holding that:

" (t)he section applies ... to persons who go upon land otherwise than peaceably whether or not it was their intention to occupy or take possession of the land."

4. Section 207 has a long history. It follows closely the terms of the first of the statutes of forcible entry, enacted in 1381 (5 Rich.2, c.7), which provided:

" ... None from henceforth make any entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convict (sic), he shall be punished by imprisonment ..."

(the modern text of the original Norman French is as stated by Archbold, Criminal Pleading, Evidence

&Practice, 39th ed. (1976), par.3596).

The statute of 1381 was supplemented by statutes of 1391 (15 Rich.2, c.2), of 1429 (8 Hen.6, c.9), of 1588 (31 Eliz.1, c.11) and of 1623 (21 Jac.1, c.15).

5. Prior to 1922, the statute of 1381 was in force in Victoria: Reg. v. Templeton; Ex parte Moore (1873) 4 A.J.R. 20. And, presumably for the reasons given in that case, the later statutes of forcible entry would also have been in force in Victoria. At all events, the Joint Select Committee of the Victorian Parliament which considered the bill for the Imperial Acts Application Act 1922 (Vic.) believed that all these statutes of forcible entry were in force. The purpose of that Act was to repeal certain Imperial enactments in so far as they applied in Victoria and "to transcribe or consolidate other Enactments". The statutes of forcible entry were repealed and their provisions were consolidated in ss.52, 53 and 54 of that Act. (The Joint Select Committee of the Victorian Parliament believed that s.52 merely adopted s.70 of the Criminal Code of Queensland which had been drafted by Sir Samuel Griffith to replace the statutes of forcible entry - see their Report of 1922, pp.97-98 - but there are in fact considerable textual differences between s.52 of the Victorian Act and s.70 of the Code. The Victorian provision adhered more closely to the 1381 statute than did the Code.) The text of s.52 was transcribed first into s.197 of the Crimes Act 1928 (Vic.) and ultimately into s.207 of the Crimes Act 1958 (Vic.). The text of s.207 employs words and phrases that have long been part of the criminal law and express ideas deeply rooted in its history, and those words and phrases should be read according to the established meanings unless the context displaces them: Mamote-Kulang v. The Queen (1964) 111 CLR 62, at p 76.

6. The meaning of "entry" in the statute of 1381 and in its statutory successors is well established. The "entry" of which they speak is an entry by which the offender takes possession of the premises or which the offender makes with the intention of taking possession: see Blackstone's Commentaries, Bk IV, Ch.11, pp.147-148; Hawkins, Pleas of the Crown, 8th ed. (1824), Bk 1, Ch.28, ss.20 and 21, p.500; R. v. Child (1846) 2 Cox CC 102. The meaning of "entry" in the statute accords with its primary legal meaning. The Oxford English Dictionary (Murray, 1897) defines the legal meaning of "enter" thus: "To make entry (into lands) as a formal assertion of ownership; to take possession", and defines "to enter on" in corresponding terms. The Macquarie Dictionary contains a similar definition for "entry": "the act of taking possession of lands or tenements by entering or setting foot on them". Legal dictionaries agree that the primary legal meaning of "entry" is not a mere going or coming onto land. Thus Jowitt's Dictionary of English Law, 2nd ed. (1977), defines "entry" to mean "the act of going on land, or doing something equivalent, with the intention of asserting a right in the land". An earlier legal dictionary (Tomlins' Law-Dictionary, 4th ed. (1835)) and an American legal dictionary (Bouvier's Law Dictionary, 8th ed. (1914)) accord. The statutes of forcible entry protect the peacefulness of actual possession of land (Lows v. Telford (1876) 1 App.Cas.414; Hemmings and Wife v. Stoke Poges Golf Club (1920) 1 KB 720, esp. at p 752) and that is an object as appropriate to a modern civilized society as it was to the society of 14th-century England.

7. In Iron Mountain &Helena Railroad v. Johnson (1887) 119 US 608 Miller J., who delivered the opinion of the Supreme Court, said (at p 611):

" The general purpose of these statutes is, that, not regarding the actual condition of the title to the property, where any person is in the peaceable and quiet possession of it, he shall not be turned out by the strong hand, by force, by violence, or by terror."

8. In Canada, where there is a similar but not identical provision in the Canadian Criminal Code, Bain J. in Reg. v. Pike (1898) 2 Can CC 314, at p 319, construed the provision as making no change in the old law and said that "it is clear that the intention to take possession of the lands and tenements entered upon is an essential element in a forcible entry". That decision was followed in R. v. Gordon (1947) 88 Can CC 413.

9. In this country, the question arose in R. v. Waugh (1934) 52 WN (NSW) 20, where Jordan C.J., delivering the judgment of the Court of Criminal Appeal, referred to Reg. v. Pike. He said that, in Pike's Case -

" the Court of Kings Bench of Manitoba, after considering the relevant authorities and text writers, came to the conclusion and decided that to constitute a forcible entry on land under the Criminal Code of Manitoba and under the earlier statutes also, the act of going upon the land must be done with the intention of taking possession of the land itself, and that an entry upon land for the purpose of seizing and taking away chattels thereon is not a forcible entry within the meaning of the Act of Richard II, although made contrary to the will of the occupant and in such manner as to be likely to cause a breach of the peace, but that such an entry is a mere trespass.

I see no reason for doubting the correctness of that decision, and I think it is to be preferred to the case to which we were referred by Mr. Solicitor R. v. Bullock and or (88 JP 335). Entry, in the sense in which it is used in the Statute, appears, upon the authorities, to mean something more than a mere physical going upon the land; it means an entry effected for the purposes of assuming or resuming possession."

Moreover, the statutes of forcible entry prohibit only such entries as are forcible (Hemmings and Wife v. Stoke Poges Golf Club, at pp 749-750), that is, such as use or show force calculated to prevent resistance: R. v. Smyth (1832) 5 Car &P 201 (172 ER 939). The statutes do not prohibit peaceful entries which are effected for the purpose of assuming or resuming possession. Both the purpose of the entry and the means of effecting entry are material in determining whether the conduct of an entrant is prohibited by the statutes of forcible entry.

10. In construing s.207, the Court of Criminal Appeal dismissed the authorities which construed the statutes of forcible entry. The old reasoning, it was said, "pays no regard to the plain meaning of 'entry' in the setting of the modern language of the statute". Their Honours took that "plain meaning" to be "the act of going on land". But if so broad an interpretation be given to s.207, the offence it creates would be committed whenever a person goes onto any land in a manner likely to cause a reasonable apprehension of a breach of the peace, whether or not any other person's right to possession of the land is challenged and whether or not the breach of the peace which is apprehended consists in the use of force. A person who carries a contentious placard into a public place might be caught by the section though the manner of actual entry onto the public place was not accompanied by any force, and though the entry was not intended to challenge the right of other members of the public to be in the public place and did not impair in any way their right to be there.

11. Although the Court of Criminal Appeal accepted that the phrase "except where entry is given by the law" referred to lawful entry on land pursuant to a writ of possession, their Honours mistakenly believed that "entry" had no technical legal meaning in the following parts of s.207. They were therefore attracted by some observations by the Court of Appeal in Reg. v. Brittain (1972) 1 QB 357 where the "ordinary meaning" of "entry" was said not to connote an intention to occupy. The attraction of the reasoning in that case is diminished by the realization that their Lordships were not referred to some of the authorities affecting the interpretation of the statutes of forcible entry. Their Lordships seemed to infer that, because actual expulsion of the person in occupation is not an element of the offence, an intention to occupy on the part of the offender is not essential. One may respectfully doubt the validity of that inference. Reg. v. Brittain marks a departure, as their Lordships acknowledged, from the long history of the statute's application - a history which shows "that from 1381 to 1971 no case is to be found in the reports in which anybody has been convicted of forcible entry when he has not apparently entered with the intention of occupying": at pp.359-360. There is no reason for departing from the established construction of the statutes of forcible entry when it is clear that s.207 is the statutory successor of the statute of 1381 and contains no language which casts doubt on the applicability of the established construction. Section 207 is to be found in sub-division (2) of division 3 of Pt I of the Crimes Act which is headed "Injuries to Buildings &. by Rioters and Forcible Entries and Detainers". That heading forms part of the Act (Interpretation of Legislation Act 1984 (Vic.) s.36(1)) and reference must therefore be had to that heading in construing s.207. It follows that a mere "going on land" is not a forcible entry within s.207.

12. In this case, McQuillan did not enter with the intention of taking possession of the property occupied by Ms Fenwick. Nor did the applicant, in aiding or abetting McQuillan in what he did, intend that McQuillan should take possession of that property. It follows that the applicant was wrongly convicted of an offence under s.207. Special leave to appeal should be granted, the appeal allowed, the judgment of the Court of Criminal Appeal set aside and in lieu thereof the appeal to that Court should be allowed, the conviction quashed and a verdict of acquittal entered.

Orders

Application for special leave to appeal granted.

Appeal allowed.

Order of the Full Court of the Supreme Court of Victoria, sitting as the Court of Criminal Appeal, dated 1 October1986 set aside and in lieu thereof allow the appeal, quash the conviction and enter a judgment and verdict of acquittal.