Stewart v Fletcher

[1988] TASSC 39

Serial No 29/1988
List “A”

CITATION:              Stewart v Fletcher  [1988] TASSC 39; A29/1988

PARTIES:  STEWART
  v
  FLETCHER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 66/1988
DELIVERED ON:  2 August 1988
JUDGMENT OF:  Neasey J

Judgment Number:  A29/1988
Number of paragraphs:  17

Serial No 29/1988
List "A"
File No LCA 66/1988

STEWART v FLETCHER

REASONS FOR JUDGMENT  NEASEY J

2 August 1988

1. The applicant on this motion to review was convicted on two charges, laid on one complaint.  They were –

(1)Trespass, under s14B(1) of the Police Offences Act 1935, in that the applicant on 26 September 1987 entered "on the land of another person, being Charge Room, Police Headquarters, Launceston the property of the Commissioner of Police without the consent of the owner or occupier of the land or the person in charge thereof".

(2)Refusing to give name and address, pursuant to s55A(1) of the Police Offences Act 1935, in that, on the same date, when required by 1/C Constable R D Price, a police officer, having reasonable grounds for believing that he had committed an offence under the Police Offences Act 1935, namely trespass, to state his name and place of abode, he refused without reasonable excuse to comply with that requirement.

1. The learned magistrate accepted the evidence of the police officers. The following is a brief summary of the relevant facts. The applicant, John Craig Stewart, a solicitor, was at an hotel in Launceston on the night in question, in company with a friend named Mr Lowth. Police officers came to the hotel. There was an incident between Mr Lowth and the police. Police officers apparently arrested Mr Lowth, but in any event took him away in a police car. The applicant asked Senior Constable Canning, who was present and whom he knew, what his friend was being charged with. Canning told the applicant to go to the charge room at Launceston Police Station and make enquiries there. Before Mr Lowth was taken away, he called out some words to the applicant, in effect asking the applicant to find out what he was being charged with, and to help him.

1. The applicant proceeded to the charge room. There, at about 9.00pm Sergeant Fitzgerald and Constables Price and Godfrey were present in charge of a prisoner. The charge room doors were closed. These doors lead onto a driveway at the back of the police station. Neither the charge room or the driveway are regarded by the police as open to the public. There were signs on the charge room doors which read "Staff Only" and "Police Personnel Only". While the prisoner was being charged, the applicant entered the charge room. 1/C Constable Price told him to leave as he was not permitted there. Price directed the applicant to the public waiting area, which was next door. The applicant asked what his friend had been charged with. He was told that Lowth had been charged with assaulting police. Price again directed the applicant to leave the charge room and wait in the public waiting area. The applicant stepped further into the charge room and refused to leave without his friend. Sergeant Fitzgerald said to Price in the presence of the applicant, "Get him out of here". Price and another officer took hold of the applicant by the arm, led him out of the charge room, closed the doors behind him and told him not to return.

1. Shortly afterwards, applicant again entered the charge room. Price physically removed him, against some resistance by the applicant. Price closed the doors of the charge room, but applicant entered a third time. Price removed him a third time, saying that if he returned he would be arrested for trespass as he had had ample warning. Price again closed the doors, but applicant entered the charge room a fourth time, whereupon Price arrested him for trespass. The applicant was informed that he had been arrested for trespass, and was asked to give his name and address, but refused to do so. He repeated his refusal upon being asked again; and was thereupon charged with the second offence.

1. The magistrate, Mr Shott, heard the charges. The applicant was represented by counsel. The case was fully contested and argued. The learned magistrate reserved his decision, and in due course delivered very thorough written reasons for judgment, in which he reviewed all questions of fact and arguments of law, and convicted the applicant on both charges.

1. I shall deal first with three additional grounds of appeal added by leave, which as I understand can be treated as one. These relate to a possible defence of honest and reasonable mistake of fact on the part of the applicant, as to whether or not he had the consent of the police to enter the charge room for the fourth time. This possible defence had to do with the wording of s14B(1) of the Police Offences Act 1935, under which the applicant was charged with trespass. That subsection states:–

"14B–(1)   No person shall, without reasonable or lawful excuse (proof of which lies on him), enter or remain on the land of another person, without the consent of the owner or occupier of the land or the person in charge thereof."

1. In his reasons for judgment, the learned magistrate found beyond reasonable doubt that the applicant did not have a reasonable or lawful excuse for entering the charge room on the fourth occasion. His Worship said that he had not been addressed in argument as to the possible relationship between the proviso in s14B and the "so called defence of honest and reasonable mistake of fact which under the law as it now stands and as I understand it places a burden of proof on the prosecution to negative the existence of an honest and reasonable mistake of fact, once of course a proper foundation has been laid for that so called defence". Nevertheless he then dealt with such possible defence by saying that even if the applicant had been honestly mistaken as to whether or not he had consent, it was clear beyond reasonable doubt that such a belief could not be reasonable; and so, a possible defence of honest and reasonable mistake could not be sustained.

1. The burden of these three grounds of appeal is, as I understand, that once the learned magistrate admitted the possibility of the applicant having an honest belief that he had police consent to enter the charge room, presumably because of what he had been told by Senior Constable Canning, it was no longer reasonably open to the magistrate to hold that such belief was not reasonable. The contention is clearly untenable. Obviously, a belief can be honest but not reasonable.

1. I shall deal with the other grounds in turn. The first is that the magistrate erred in law in holding that the applicant's excuse for entering the charge room on the fourth time was neither reasonable nor lawful. The third is that the magistrate erred in law in holding that members of the public did not have a lawful right to enter the charge room at the Launceston Police Station. The grounds are inter–related, and I shall treat them as one. It was argued that the applicant had a lawful excuse for entering the charge room because it was at the relevant time a public place to which he had a lawful right of entry. It is clear that a place may be a public place, both at common law and under this particular statute, at some times but not at others. See, eg, Ward v Marsh [1959] VR 26; McIvor v Garlick [1972] VR 129. A common example is the area of a post office to which the public is customarily admitted during business hours. Such area is only a public place during those hours.

1. In this case, the magistrate held that the charge room of the police station was at no time a public place. I agree with him. Relevant statutory provisions are s3(1) of the Police Offences Act 1935, and s46 of the Acts Interpretation Act 1931. The former provides that "public place" includes–

"… any police office or police station, or any courthouse or court of petty sessions, or any yard or enclosure used therewith respectively, to which the public have access."

The words "to which the public have access" apply to all of the places mentioned, and they are the governing words. They mean, in substance, "to which the public are customarily freely granted access by the occupier of the police station, either generally or subject to conditions". Section 46 of the Acts Interpretation Act 1931 provides that in any Act a public place shall mean any place to which at the relevant time the public have access whether on payment of money for admission thereto or otherwise.

1. I have no doubt that, having regard to the evidence, the charge room was not a public place, either at common law or within these wide statutory meanings, at any relevant time. I am satisfied that the evidence amply justified the learned magistrate in holding that any belief which the applicant might have had that he was lawfully entitled to enter that room, notwithstanding the thrice repeated indication of 1/C Constable Price in the presence of Sergeant Fitzgerald that he had no such right, and after being ejected thrice therefrom and told that he would be arrested for trespass if he returned, was not a reasonable belief. The magistrate consciously avoided deciding the question of reasonable or lawful excuse in relation to the burden of proof which the subsection lays upon the defendant, by holding that in any event he was satisfied beyond reasonable doubt that there was no such reasonable or lawful excuse. In the circumstances of this case that was a legitimate reasoning process. On the evidence, he was entitled to be so satisfied.

1. The other limb of the argument was that it was reasonable for the applicant to believe that Senior Constable Canning's suggestion to him that he go to the charge room and make enquiries was a reasonable excuse for his entering the charge room. His Worship held that that was probably a reasonable excuse on the first occasion, but after he had been told what the friend had been charged with, and had himself been expelled more than once and told not to return, any such reasonable excuse had been thoroughly dissipated. I agree with that conclusion.

1. The second of the original grounds claims that the magistrate erred in law in holding that the applicant on the evidence had not gone to the charge room in a professional capacity; which is to say, as a solicitor acting within a solicitor–client relationship between himself and Mr Lowth. I need not go into the evidence on this point, because on the applicant's own sworn testimony it is clear that the learned magistrate correctly found that the applicant admitted he was not so acting.

1. The other two grounds relate to conviction on the second charge. It was argued that the magistrate was not entitled to find, as he did beyond reasonable doubt, that the applicant had no reasonable excuse for declining to give his name and address when requested by Constable Price. On his own evidence, the applicant did refuse. The question was whether he had a reasonable excuse. Section 55A(1) of the Police Offences Act 1935 provides that when a police officer becomes aware, or has reasonable grounds for believing, that a person has committed or is committing an offence under the Act, he may require that person to state his name and address, and that a person who fails or refuses to comply with such a requirement, or in response to such a requirement states a name or address that is false, is guilty of an offence. Section 55A(2) provides that a police officer making a requirement under subs(1) may arrest without warrant a person who fails or refuses to comply with that requirement, or who in response to the requirement gives a name or address that the police officer has reason to believe is false.

1. The learned magistrate said, "I accept the Constable's evidence as to those matters. To the extent that it is necessary for the prosecution to prove that the defendant did not have a reasonable excuse for declining that information I am so satisfied beyond reasonable doubt". The reference to reasonable excuse appears to relate to the New South Wales case of Hazell v Parramatta City Council and Ors [1968] 1 NSWR 165. This concerned a somewhat similar statutory provision to s55A, though it is different in important respects. The subsection in question stated that any servant of the Council or member of the police force who finds a person committing an offence under the Act shall (my emphasis) demand from the person his name and place of abode. Isaacs J. held that the provision obviously had to be read down, and did not mean that the Council officer was obliged to make such a request if he in fact knew the information already. He held further that the provision did not contemplate that the officer would "be required to exercise or perform the duty capriciously, tyrannically, oppressively or arbitrarily" – ibid, at p176. Part of the burden of his Honour's judgment is that the subsection in question did not empower a Council or police officer in the relevant circumstances to demand information if he knew it already.

1. The learned magistrate cited Hazell's case and distinguished it, on the basis that on the evidence before him the police officers did not know the applicant's full name and address. The applicant's claimed reasonable excuse for declining to give the information was that he had known Sergeant Fitzgerald for some years, and in his belief she knew it already. However, his Worship accepted Sergeant Fitzgerald's evidence that although she knew the applicant, she did not know his full name and address. Although the matter was not argued, I would not wish to be taken as accepting that a person to whom s55A(1) applies, and who has been required to state his name and address, commits no offence if he has a reasonable excuse for failing or refusing to comply. In the first place, s55A(1) and (2) make no reference to reasonable excuse for failure or non–compliance. Secondly, with respect, I would not wish without argument to be taken as accepting the reasoning of Isaacs J., if it was sought to apply it to these provisions in s55A. I would have thought that whether a police officer believes he knows, or in fact does know, the person's full name and address, he is still entitled to have the person identify himself so that he can be charged under the name and address he gives, unless the officer has reason to believe that the information is false. I would have thought s55A intends that, and that it is reasonably necessary in order to enable police officers to carry out their relevant duties. However, as the matter stands, I am satisfied there was no error in the way the learned magistrate dealt with the second charge, and that on the evidence it was clearly open to him to find the charge proved, for the reasons he gave.

1. The motion will be dismissed.