Ward v Richardson
[2021] ACTSC 130
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ward v Richardson |
Citation: | [2021] ACTSC 130 |
Hearing Date: | 28 April 2021 |
DecisionDate: | 2 July 2021 |
Before: | Burns ACJ |
Decision: | See [45] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal against conviction – trespass onto property without reasonable excuse – whether appellant had explicit or implied licence to enter property – whether appellant had reasonable excuse to trespass on to property – where conceded by respondent that magistrate did not consider whether appellant had reasonable excuse to trespass on to property |
Legislation Cited: | Animal Welfare Act 1992 (ACT) |
Cases Cited: | Barker v The Queen (1983) 153 CLR 338 |
Parties: | Christopher James Ward (Appellant) Stephen Richardson (Respondent) |
Representation: | Counsel Self-represented (Appellant) T Lee (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 53 of 2020 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 6 November 2020 Case Title: The Police v Christopher James Ward Court File Numbers: CC 3707 of 2020 |
BURNS J:
This is an appeal from a decision of a Magistrate finding the appellant guilty of an offence contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Act). The particular charge alleged that on 23 March 2020 the appellant did, without reasonable excuse, trespass on certain property in the suburb of Holt in the Australian Capital Territory. The hearing of the charge commenced on
5 November 2020 and concluded the following day. Immediately after the conclusion of addresses the Magistrate gave ex tempore reasons for finding the appellant guilty and imposed a conviction and a fine. In the present appeal, the appellant does not challenge the sentence imposed, only the finding of guilt.
For the reasons that follow I am satisfied that the appeal should be dismissed.
The appellant was represented by a lawyer in the proceeding before the Magistrate, but he was unrepresented in the present appeal. He did, however, have the benefit of the assistance of a friend, Mr Hopper, who I understand has legal qualifications and training. The submissions made on behalf of the appellant were thoughtful and comprehensive.
The Amended Notice of Appeal on which the appellant proceeded listed a multitude of grounds. It is unnecessary to recite each ground of appeal, as the respondent conceded that the Magistrate made an error in the process of finding the appellant guilty of the offence. The respondent nevertheless submitted that the appeal should be dismissed as on the evidence and the factual findings made by the Magistrate the elements of the offence were established. It is convenient, therefore, to consider the appellant’s submissions in the context of the respondent’s assertion that the appeal should be dismissed notwithstanding the error by the Chief Magistrate. The submissions of the appellant may, however, be summarised as follows:
(a) the evidence in the proceeding below did not establish that he trespassed on the relevant property; and
(b) in the alternative, the evidence raised a reasonable excuse for him trespassing on the premises and –
(1) the prosecution had not proven that he did not have a reasonable excuse for trespassing on the premises; and
(2) the Magistrate had not addressed the question whether the prosecution had not proven that he did not have a reasonable excuse for trespassing on the premises.
Factual background
At the time of the offence the appellant was married to MX, although that relationship had broken down. By the date of the offence MX was no longer residing with the appellant, but was residing with her sister, TR, at the address in Holt where the offence occurred (the property). MX had in fact been charged with assaulting the appellant and was on bail for that charge at the time of the offence.
The appellant and MX have a son, who I will refer to as K. As at March 2020 K was
2 years old. For a period after MX was charged with assaulting the appellant, K lived with the appellant. There were no court orders in existence as at 23 March 2020 giving the appellant day to day custody, care or control of K to the exclusion of MX. In other words, as the Magistrate expressed it, both the appellant and MX had “ordinary parental rights and responsibilities” with regard to K.
Some time prior to 23 March 2020 the appellant returned K to the care of MX, but it was his expectation that K would later return to his care. In his evidence in chief, the appellant said that he believed he had an agreement with MX that they would have custody of K for alternating 10-day periods. By 23 March 2020 the appellant believed that under that arrangement he was entitled to have custody of K for a period of
10 days. The appellant testified that he had been told by a mutual friend that TR was living at the address in Holt, and the appellant suspected that MX was residing at that address with K. In the days prior to 23 March 2020 the appellant had electronic communications with MX asserting his entitlement to have custody of K for 10 days commencing on 23 March 2020. The appellant testified that the response provided by MX was “to wait for court orders”.
On 23 March 2020 the appellant went to TR’s property in Holt with the intention of taking K into his custody. He did not advise TR of his intention to go to her property for that purpose that day, and nor did he advise MX. In his evidence the appellant unequivocally accepted that he had not been invited either by TR or MX to attend at or upon TR’s property on that occasion. The appellant said, however, that he had known TR for 17 years, presumably in her capacity as his sister-in-law, at her previous address which the appellant had been in the habit of visiting with the consent, or apparent consent, of TR. For convenience, I will refer to this as the “alleged prior practice”. This was before the relationship between the appellant and MX broke down and MX was charged with assaulting the appellant. It was also before MX had effectively declined to return K to the appellant’s custody, telling the appellant to “wait for court orders”. It was also before TR changed addresses to reside at the property in Holt.
When the appellant arrived at TR’s property, he entered onto the property and knocked on the front door. When there was no answer he went to the side of the house where he could hear voices. He then walked down the side of the house and into the backyard. It was the uncontradicted evidence of MX that in doing so the appellant opened a closed, but unlocked, side gate. The appellant testified that K approached him and said “Daddy”. He said he was then accosted by MX and TR who blocked him from leaving the backyard the way he had entered. He walked through the house carrying K with MX and TR “grabbing me and pulling me”. Outside the front of the house MX and TR both tried to pull K away from the appellant. Neighbours intervened and the appellant released K before leaving the scene.
The Chief Magistrate’s decision
The relevant portions of the Magistrate’s reasons for finding the appellant guilty are set out below:
Mr Ward, before attending the premises in Holt on 23 March, had texted his now estranged wife indicating that he thought it was his turn to have [K] back. He had not indicated that he would be going to those premises on 23 March and had not had a response to his text in which he had indicated that he wished to have [K] returned to his care.
Mr Ward was aware of the address in Holt because it was provided to him by [LT]. Mr Ward’s evidence was that he had been friends with [LT] for about 30 years. [TR’s] evidence, undisputed, was that she had known [LT] for about 15 years and that he was someone akin to a godfather to her. He was clearly well-known to each of them and he provided [TR’s] address to Mr Ward. It is not clear if he did so with [TR’s] authorisation or with any intent other than letting Mr Ward know of it.
It is also not in dispute that historically there was the usual family relationship whereby these family members would attend at each other’s properties for visits, as one would expect between family members. Things were not usual as at 23 March 2020.
Those are the agreed facts. I will come back to more detail in due course, but I note at this point in time that this is a criminal prosecution and it is for the prosecution to establish each and every element of the offences beyond reasonable doubt. The defendant has no obligation to prove anything but if the defendant raises a plausible explanation consistent with innocence it is for the prosecution to disprove that beyond reasonable doubt. To the extent that there might be an evidential burden upon the defendant, particularly in relation to what is raised here of self-defence, remains the prosecution’s obligation to disprove that beyond reasonable doubt.
In considering the information and evidence before me the court is to approach the matter dispassionately and apply commonsense. The evidence of all witnesses is to be assessed neutrally. The status of a person as a defendant does not make their evidence of any greater or lesser value than that of any other witness in the matter, and I remind myself that witnesses may be reliable in some respects but not others. They may be unreliable for various reasons. That may be because of a lack of honesty or it may be because of simple unreliability arising from factors such as recollection or other issues which might impact upon their credibility.
…
In respect of the charge of trespass, the factual circumstances are, as I have already alluded to, that there was a previous familial practice of attending at each other’s homes; that is, [TR] attending at Mr Ward’s and Mr Ward attending at [TR’s]. The address in Holt was [MX’s] new home whilst she was subject to bail. The information which had been provided as to the address from [LT] to Mr Ward was done so in circumstances which no doubt [LT] thought it was appropriate to do so, but it’s not clear if that was with the consent of [TR].
What is clear is that when Mr Ward attended at that address he did so uninvited on this particular occasion. Not only was he uninvited but as he very frankly said in his own evidence, he was aware that he may not have been welcome at the address. There had been no answer to his request for a return of K to his care.
His last exchange with TR was not a pleasant one. She had removed the phone from K when they were having a conversation and had been quite aggressive in her communication with Mr Ward.
The issue is raised as to a mistake of fact by Mr Ward’s lawyer. The mistake of fact to be considered pursuant to the definition of that in the Commonwealth Criminal Code at section 9.1. Without detailing the section in total, the real issue arises at subsection (2); that is, that in determining whether a person was under a mistaken belief about or was ignorant of facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
The mistaken fact or belief that’s referred to here, briefly, but infer [sic] from the submissions by the defence, is that Mr Ward considered that he was invited, effectively, to attend at those premises and would be welcome to do so. I am satisfied, on the evidence before me, that Mr Ward was not of that view, that clearly, on his own evidence, had he thought about it he would have been aware that he may well not be welcome but he certainly had no belief, no active belief that he was welcome at those premises and to that extent I am satisfied that the prosecution have proved the trespass beyond reasonable doubt.
There are issues which are relevant to this particular offence; that is, that Mr Ward, when he became aware that he was not welcome, simply retrieved K and left by the most direct route, but that, of course, goes to the level of culpability, not to whether or not the offence is made out.
The reference to self-defence in the above extract is explicable by the fact that the appellant was also charged with assaulting MX in the incident on 23 March 2020. The Magistrate dismissed that charge.
The nature of the appeal
The principles governing this appeal were summarised by Mossop J in Greenwood Barlee [2018] ACTSC 46 at [2] – [4]:
The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (MC Act). Such an appeal is by way of rehearing. The principles to be applied upon such an appeal are set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24] as follows:
24. Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
In determining such an appeal, the Court must have regard to the significant benefit that the magistrate at first instance has by reason of having seen and heard the evidence during the course of the trial: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25].
The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].
As previously noted, however, the respondent conceded legal error on the part of the Magistrate. I therefore approach the case on the basis that the appellant is entitled to succeed on the appeal unless the respondent establishes that on the evidence led before the Magistrate a conviction was inevitable.
The appellant’s submissions
The first submission advanced by the appellant was that the offence under s 11(1) had not been proved because the appellant had “actual, albeit implied” authority from the occupier, TR, to enter the property. The submission was based upon the evidence given by the appellant, and to a lesser extent given by TR, of the alleged prior practice of the parties visiting each other’s homes without notifying the other party. The learned Magistrate noted that there was a “previous familial practice” of the appellant and TR attending each other’s homes. The appellant complained that the Magistrate did not “follow-through” on this finding, and that her Honour should have considered whether that practice gave rise to implied consent on the part of TR to the appellant entering her property without her formal consent on 23 March 2020.
In the context of considering the question whether the appellant had the consent of TR to enter the property on 23 March 2020, the Magistrate noted that the appellant’s evidence satisfied her Honour that if he had turned his mind to whether he was “welcome” at TR’s property on 23 March 2020 he would have been aware that he may not be. The Magistrate went on to say that her Honour was satisfied that the appellant had no belief, or “active belief”, at the time that he entered the property on 23 March 2020 that he was welcome at the property. The appellant complained that in framing her Honour’s reasons that way, the Magistrate did not address the correct question, being whether the appellant had actual consent by TR to his entry to the property, or implied consent based upon the alleged prior practice.
The appellant submitted that TR’s consent to the appellant’s entry to the property should be implied because his purpose of entry to the property was a lawful one, being a desire to retrieve his son who was due to return to his custody under the agreement reached by the appellant and MX. The appellant referred to the provisions of Division 2 of Part VII of the Family Law Act 1975 (Cth) (the Family Law Act) which, he said, vested in him parental responsibility for K.
In summary, the appellant submitted that the Magistrate should have found that he had the implied consent of TR to enter the property and as such he had not been a trespasser.
The second submission advanced by the appellant was that the offence created by
s 11(1) is one that requires the prosecution to prove that the appellant intended to trespass on the property at the time that he was on TR’s property on 23 March 2020, citing the decisions in Sweet v Parsley [1970] AC 132 and He Kaw Teh v The Queen (1985) 157 CLR 523. In the circumstance of the present case, that required the prosecution to prove either that the appellant knew that TR was not consenting to him being on her property or that he was reckless as to the existence of that state of affairs.
Finally, the appellant submitted that the Magistrate had erred by not considering whether the prosecution had proven that he had no reasonable excuse for trespassing on the property (if that fact be proven). The appellant submitted that once the evidence raised the prospect of a reasonable excuse it was for the prosecution to prove to the standard of beyond reasonable doubt that he had no reasonable excuse: see Henshaw v Mark (1997) 95 A Crim R 115 (Henshaw v Mark) and Peden v Boxx [2016] ACTSC 86; 258 A Crim R 422 (Peden v Boxx). The appellant submitted that the evidence of the agreement between himself and MX regarding custody of K, evidence of the appellant and TR visiting each other’s homes without prior notice, and evidence of the lawful purpose for which the appellant went onto TR’s property, amounted to evidence of a reasonable excuse for him being upon the property on 23 March 2020 sufficient to discharge the evidential burden on him. The appellant further submitted that the Magistrate had not considered this issue, which amounted to an error of law.
The respondent’s submissions
The respondent accepted that the Magistrate had fallen into error by not considering whether the prosecution had negated the “reasonable excuse” suggested by the evidence. It submitted, however, that there had been no miscarriage of justice despite this error because the Magistrate’s reasons implicitly rejected the proposition that the appellant had a reasonable excuse. The respondent submitted that notwithstanding the Magistrate’s error the appeal should be dismissed.
Consideration
It is accepted by the respondent that the Magistrate erred in law by not determining whether it had been proven that the appellant had no reasonable excuse for his presence on TR’s property on 23 March 2020. The respondent accepted that the evidence was sufficient to satisfy the evidentiary onus placed on the appellant, such that the respondent had to prove that the excuse raised by the appellant was not a reasonable excuse. The failure of the Magistrate to deal explicitly with the issue of reasonable excuse is explained by the manner in which the proceedings before
her Honour were conducted by the parties; both parties focused on whether the appellant had a mistaken factual belief as to TR’s consent to him being on the property, and the Magistrate addressed herself to the issues raised by the parties. Nevertheless, the failure of the Magistrate to address that issue constitutes an error of law.
The first thing that the prosecution must prove in any prosecution of an alleged offence under s 11(1) is that the defendant trespassed on the property the subject of the charge. In the present case there is no dispute that the appellant went onto the property of TR. The first question is, was he a trespasser? The term “trespass” is not defined in the Act and one must look to its common law meaning as developed in tort law. This may be contrasted with the position regarding the offences of burglary and aggravated burglary in the Criminal Code 2002 (ACT), both of which require proof that an accused person entered or remained on premises as “trespasser”: see Saipani v The Queen [2021] ACTCA 5, [38] – [47]. In Barker v The Queen (1983) 153 CLR 338, Brennan and Deane JJ said, at 356:
[A]t common law, a person enters land as a trespasser if he enters land in the possession of another without justification (see Salmond and Heuston, Law of Torts, 18th ed. (1981), Ch 3). Justification may take a variety of forms including, inter alia, … the leave and licence of the person in possession….
It is clear that in order to be a trespasser, an entrant onto the property of another must do so without justification, commonly consisting of the express consent or licence of the person in occupation of the property. The common law, however, has been prepared to imply a licence to go upon the property of another in certain circumstances. In Roy v O’Neill [2020] HCA 54; 285 A Crim R 120 (Roy v O’Neill), Kiefel CJ said, at [11]:
It is well understood that the law of trespass requires that for a person lawfully to enter private premises there must be an invitation or permission from the occupier respecting that entry. The common law also recognises that such a rule would be unworkable in our society if it were strictly applied so as to render all visitors who did not have an express permission from the occupier, trespassers. It is recognises that it is in the interests of the occupier, entrants and society more generally that there be a qualification to the law of trespass. It effects that qualification by implying a permission, on the part of the occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes. It balances its recognition of that implied permission by acknowledging that an occupier may negate the permission, by sufficiently indicating that entry is not permitted, and that an occupier may revoke the permission at any time, by requiring the visitor to leave the premises…
Kiefel CJ went on to say, referring to the decision of the majority in Halliday v Nevill (1984) 155 CLR 1 (Halliday v Nevill), that the most common licence implied by law is that in favour of any entrant to go upon the path or driveway of the property of another in order to go to the entrance to a dwelling for the purpose of lawful communication with the occupant. This was not, however, the only purpose for which the law will imply such a licence. Her Honour continued, at [13]:
In Halliday v Nevill it was explained more generally that the path or driveway of premises is held out by the occupier “as a bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the occupier, his or her guests on his, her or their property” (emphasis added). These factors may be understood to provide the limits of the licence to enter which the law will imply…
(Footnotes omitted; emphasis in original).
It is worthwhile at this point setting out in full that portion of the majority judgment of the High Court in Halliday v Nevill regarding the implication of a licence to enter premises, quoted, in part, by Kiefel CJ above. Gibbs CJ, Mason, Wilson and Deane JJ said at 7-8:
[N]or, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. To adapt the words of Lord Parker C.J. in Robson, the law is not such an ass that the implied or tacit licence in such a case is restricted to stepping over the item of property or around the child for the purpose of going to the entrance and asking the householder whether the item of property can be reclaimed or the child led away. The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property.
(Footnotes omitted).
An explicit licence?
A licence to enter upon property may be explicit or implied by law. Whether an entrant to property has the explicit consent of the occupier to be upon the property on a particular occasion is a question of fact, directed to the state of mind of the occupant. Like all issues of fact, it may be proved by direct evidence or by inference from direct evidence. The appellant submitted that he had the “actual, albeit implied” authority of TR to come enter her property. In using the word “implied” in that context, I understood the appellant to be submitting that TR’s actual consent to his entry on 23 March 2020 should be inferred from the evidence. In the present case, TR gave evidence that she had not explicitly given the appellant permission to enter the property on 23 March 2020. She was not challenged in cross-examination that this evidence was untruthful, and the appellant himself gave evidence that TR had not given her explicit consent to him coming onto the property on 23 March 2020. The appellant gave evidence that he was given TR’s new address by a mutual friend, LT, but the appellant did not testify that the mutual friend (who was not called to give evidence in the hearing before the Magistrate) said that TR had expressed consent to the appellant entering onto that property, nor was TR cross-examined to that effect.
The evidence concerning the alleged prior practice of the appellant and TR visiting each other’s homes without seeking prior permission may be relevant to drawing an inference that TR’s state of mind of 23 March 2020 was, in fact, one in which she consented to the appellant being on her property, notwithstanding her evidence to the contrary. The difficulties with that proposition are the poor quality of the evidence regarding the alleged prior practice and the significant changes in circumstances that had occurred shortly prior to 23 March 2020.
The cross-examination of TR about this alleged prior practice was minimal. TR agreed that she had known the appellant for about 17 years and that during that time the appellant had been “allowed” to come to TR’s house “to visit” and that TR had visited the appellant’s house. This was the extent of cross-examination.
The evidence in chief of the appellant regarding the alleged prior practice was also very thin:
Your relationship with [TR], you’ve known each other for some 17 years. That’s accurate? Okay? – – Yes.
During that 17-year period, what was your understanding of visiting each other’s premises if…? – – We did it all the time. We – she – I’d go to her - I helped her in the garden, [LT] and I together helped her pull out a tree stump, and things like that. I – and she’d come over. We had a load of soil delivered. She helped me to take it to the backyard, shovel it.
So you’ve been to her house before? – – Yes, many times.
Has she been to your house? – – Yes, many, many times. In fact, the night she was arrested she – [MX] was arrested, she came to the house and wanted to take over the whole house, and I told her “No, please go”.
In cross-examination, the appellant agreed that while he had visited TR at her former property, he had never visited her at the property where she was residing on
23 March 2020. He agreed that he did not contact TR, or attempt to contact her, on 23 March 2020 before he went to her property. The appellant also accepted that his relationship with TR had deteriorated after her sister, MX, had been arrested and charged with assaulting the appellant. The appellant said that the last time he spoke to TR on the telephone before 23 March 2020, TR started screaming about MX being arrested. He described TR as “not a reasonable person to talk to”. When asked whether he felt that if he had contacted TR to ask her permission to come onto the property before he did on 23 March 2020 that TR would have refused permission, the appellant said:
If she understood what I was trying to do she probably would have said no, yes. I don’t know. I don’t know for sure. She might have. She – but knowing her temperament, she probably would have just said no and screamed at me.
The evidence said to establish the alleged prior practice of the appellant and TR visiting each other’s homes without prior approval is too tenuous to establish the asserted practice. No effort was made to describe the number of occasions on which these visits were said to have occurred, what conversations may have preceded such visits and, most critically, how the appellant gained access to TR’s property on the occasions that he visited her. There was no evidence that TR had previously given the appellant an open ended and unconditional invitation to enter her property, or that he had previously entered her backyard while attempting to contact her. The evidence concerning the alleged prior practice casts no doubt on the evidence of TR that her state of mind on 23 March 2020 was that she did not consent to the appellant being on her property.
An implied licence?
I now turn to the submission that the appellant entered the property pursuant to an implied licence, in the sense of a licence implied by the common law. The appellant cited the judgment of Kiefel CJ in Roy v O’Neill, set out above at [22], in which
her Honour stated that the common law implies “permission, on the part of an occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes”. The appellant submitted that his purpose for entering upon TR’s property was a lawful one, being to take custody of K in circumstances where he shared parental responsibility for the child.
In making that submission, the appellant focused on the lawfulness of his purpose for entering TR’s property; but while the lawfulness of the entrant’s purpose may be a necessary prerequisite to the implication of a licence by the common law, it is not a sufficient prerequisite. If lawfulness of purpose were a sufficient prerequisite then Henshaw v Mark and, on appeal, Mark v Henshaw (1998) 85 FCR 555, were wrongly decided. The offenders in those matters entered private premises on which a battery hen farm was situated to protest a lack of official action against the occupier for breaches of the Animal Welfare Act 1992 (ACT). It is not, and was not at the time, unlawful to protest a lack of official action against animal cruelty, so that the lawfulness of the entrants’ purpose for entering upon the property in those decisions was beyond doubt. That, however, was insufficient to avoid the conclusion that the offenders were trespassers. In addition, if lawfulness of purpose was the only prerequisite to the imposition of a licence to enter a property, this would suggest that entry into the dwelling itself in order to communicate with the occupant regarding the entrant’s purpose would be permitted by the implied licence. Clearly this is not so.
In addition to requiring that the entrant’s purpose of entry be lawful, the authorities which consider the ambit of the implied licence to approach a dwelling refer to a restricted area of the property to which the licence will apply, typically a driveway or pathway leading from the street to the front door of the dwelling. This is the compromise arrived at by the common law, between the right of occupiers of property to enjoy their rights of occupation to the exclusion of others, and the practical need to moderate the strict consequences of those rights for policy reasons. Thus a licence to enter property will be implied for the purpose of the entrant going to the front door of a dwelling for the purpose of speaking to the occupant, or for any other lawful purpose.
An occupant of premises is under no obligation to respond to a knock on their door, or a ringing of their doorbell. They may choose to ignore the indication that someone wishes to communicate with them. The failure of an entrant to receive a response to such an indication that he or she has entered upon the property and wishes to communicate with the occupant does not extend the ambit of the implied licence. It does not justify the entrant going into the backyard, or entering the dwelling itself. To imply such a licence would be to negate, or at least seriously derogate from, the rights of the occupant. It is unnecessary in the present case to determine whether the implied licence referred to in Halliday v Nevill would extend to the appellant moving to the side of the house to get the attention of the occupier where, as here, he heard people in the backyard after receiving no response to a knock on the front door. The appellant went further than that; he opened a closed gate and entered the backyard.
I am unaware of any authority which supports the implication of a licence in such terms by the common law. There are, indeed, reasons to conclude that the implication of a licence in such terms is undesirable. The entry of persons into the rear yard of private dwellings without the explicit permission of the occupant is apt to cause confrontation and, potentially, a breach of peace, as occurred in this case.
The present case is not one concerning the retrieval of an errant child who has wandered onto the property of another. The fact that the appellant had rights and responsibilities as a parent of K, either under the Family Law Act or pursuant to a private agreement with MX, is relevant only to establishing the lawfulness of the appellant’s purpose for entry on TR’s property, such that the implied licence referred to in Halliday v Nevill is not negated by reason of unlawfulness of purpose. Those circumstances do not operate to imply a licence at law permitting the appellant to enter any part of TR’s property on which K or MX may be found.
It is also appropriate to observe that a right to enter upon property will only be implied where the lawful purpose of entry involves no “interference with the occupier’s possession, no injury to the occupier, his or her guests or his, her or their property”: Halliday v Nevill at 8. As Kiefel CJ pointed out in Roy v O’Neill, the word “injury” when used in this context has a broader meaning that in other areas of tort: [16]. The purpose of the appellant’s entry to TR’s property, or at least the backyard, being the removal of one of her guests, K, in circumstances likely to involve confrontation and a breach of TR’s peaceful occupation of the property, was one involving interference with TR’s rights of occupation and injury, in the relevant sense, to TR and her guests.
For these reasons, the submissions that the appellant entered TR’s property, or at least the backyard, pursuant to an implied licence must fail.
Did the appellant possess the required mental intent?
The respondent did not argue against the appellant’s submission that the intention required by s 11(1) of the Act is an intentional trespass on the property nominated in the charge. The appellant submitted that the evidence demonstrated that he did not have any such intention because he believed that he had the implied or inferred permission of TR to enter upon the property based on the alleged prior practice. This submission should be rejected.
The mental element required for establishing an offence under s 11(1) of the Act may be summarised as follows:
(a)knowledge on the part of the accused that he or she does not have the permission of the occupier to be on the property on the occasion in question; or
(b)knowledge or belief on the part of the accused that he or she may not have the permission of the occupier to be on the property on the occasion in question; or
(c)complete indifference on the part of the accused as to whether or not he or she has the permission of the occupier to be on the property on the occasion in question.
The evidence does not reveal how long before 23 March 2020 the appellant had last entered TR’s former property pursuant to the alleged previous practice. The evidence does, however, reveal that some significant changes had occurred shortly before
23 March 2020 which carried implications for the relationship between the appellant and TR. First, TR had moved from the property where the alleged prior practice had developed and she had not informed the appellant of her new address. Secondly, the relationship between the appellant and MX (TR’s sister) had broken down and MX had been charged with assaulting the appellant. Thirdly, the last communication between TR and the appellant prior to 23 March 2020 had been acrimonious, with TR screaming at him about MX being arrested. Finally, the appellant knew that MX was refusing to return K to his custody without court orders in place. In these circumstances it was not surprising that the appellant conceded in cross-examination that if he had telephoned TR to seek her prior permission to come to her home on
23 March 2020 she would probably have refused. The evidence clearly establishes that the appellant was aware that TR may not give her consent to him being on her property on 23 March 2020, but determined nevertheless to enter onto the property. If the appellant had restricted his entry to a purpose and over an area of the property consistent with the implication of a licence by the common law, as expounded in Halliday v Nevill, the fact that he was aware that TR may not consent to his entry onto her property if asked would not be sufficient to operate as a revocation or negation of the implied licence. In the circumstances of his case, there was no implied licence to enter TR’s backyard, and the appellant otherwise had the mental state required for an offence under s 11(1) of the Act.
A reasonable excuse?
In his written summary of argument, the appellant submitted that his “evidence as to his reasonable belief in his entitlement to visit [TR’s] property, and the circumstance that he went there in order to retrieve his son, amply met the comparatively low requirement to show a reasonable excuse”. This formulation on the part of the appellant may suggest his acceptance of some legal onus on him to establish a reasonable excuse for him being on TR’s property on 23 March 2020, but a full reading of his submissions shows that he is, in the quoted material, referring to the evidentiary onus of pointing to evidence that may constitute a reasonable excuse. The appellant in that regard referred to the decisions in Henshaw v Mark and
Peden v Boxx. It is unnecessary to further pursue the issue of evidentiary onus because the respondent accepted that the evidence of the appellant before the Magistrate satisfied the evidentiary onus and that it fell to the respondent to prove beyond reasonable doubt that the matters raised by the appellant did not constitute a reasonable excuse for him being upon TR’s property on 23 March 2020.
The appellant pointed to two circumstances which either singly or in combination amount to evidence of a reasonable excuse, being his “reasonable belief” that he was entitled to visit TR’s property and that his purpose for doing so was to take custody of his son. The Magistrate found that the appellant did not, in fact, hold the view that he had been invited to attend TR’s property and that TR would “welcome” his attendance on 23 March 2020. With respect, I agree with that finding. The appellant sought to quibble with the Magistrate’s use of the word “welcome”, but it was clearly used in the sense of TR consenting to the appellant being on her own property. In any event, any such belief that the appellant may have had about TR’s attitude to him being on her property was not a reasonable belief in the light of the most recent interactions between himself and TR and the change in circumstances to which I have referred. This is particularly so when it comes to the appellant’s entry into the backyard of TR’s property.
This was not a case where a child had wandered onto the property of a third party and the appellant went onto the property to retrieve the child. The child, K, was in the custody of his mother and the presence of his aunt. There was no situation of emergency or urgency regarding the child’s welfare or safety. To the extent that the appellant felt that MX was acting unreasonably or contrary to an informal agreement about custody of K, he was able to make an application to an appropriate court to resolve the matter. He could also seek to have the issue resolved through mediation. The appellant chose to take matters into his own hands. The fact that in these circumstances the appellant entered the backyard of TR’s property to take custody of K does not amount to a reasonable excuse for entering her yard without her consent. An ordinary member of the community in the position of the appellant would not consider it reasonable to enter TR’s backyard for the purpose asserted by the appellant. The evidence before the Magistrate clearly established that the appellant had no reasonable excuse for entering TR’s backyard on 23 March 2020.
Conclusion
Despite the failure of the Magistrate to determine whether the respondent had established that the appellant had no reasonable excuse for trespassing on TR’s property on 23 March 2020, the evidence establishes that the appellant had no reasonable excuse. Accordingly, the appeal will be dismissed.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: |
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