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Wilson v McDonald

Wilson v McDonald

Case [2009] WASCA 39 12 February 2009

Trespass

Criminal Liability

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WILSON -v- McDONALD [2009] WASCA 39

CORAM: MARTIN CJ
WHEELER JA
BEECH AJA

HEARD: 19 SEPTEMBER 2008

DELIVERED : 12 FEBRUARY 2009

FILE NO/S: SJA 1094 of 2007

BETWEEN: ROBERT GORDON WILSON
Appellant
AND
JOSEPH McDONALD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G RANDAZZO
File No  :PE 23804 of 2007

Catchwords:

Criminal law - Trespass - 'Without lawful excuse' - Criminal Code (WA), s 70A - Differentiation between trespass and excuse - Relation to excuses for civil trespass - Existence of non-criminal purpose does not in itself provide lawful excuse

Words and phrases - 'Without lawful excuse' - Legislative history - Police Act 1982 (WA) - Criminal Code (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 13
Criminal Code (WA), s 59, s 70A, s 173, s 177, s 178, s 345, s 407
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Industrial Relations Act 1979 (WA)
Police Act 1892 (WA), s 66, s 82A, s 82B
Police Ordinance 1849, s 10
Sentencing Act 1995 (WA)
Vagrancy Act 1824 (UK), s 4

Result:

Appeal allowed
Matter to be remitted for determination of sentence

Category: B

Representation:

Counsel:

Appellant: Mr G T W Tannin SC & Mr D E Leigh
Respondent: Mr R W Richardson

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Gavin MacLean

Case(s) referred to in judgment(s):

Abbott v Pulbrook [1947] SASR 57
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605
Darce v Pre‑Term Foundation Clinic [1983] 2 NSWLR 497
DPP v Wille (1999) 47 NSWLR 255
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
Hancock v Birsa [1972] WAR 177
Jenal v Milner (1994) 11 WAR 264
King v The Queen [2003] HCA 42; (2003) 215 CLR 150
Minkley v Munro (1986) 8 PSR 3975
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
Re Alcan Australia Ltd; Ex Parte Federation of Industrial, Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96
Roddan v Walker (1997) 94 A Crim R 170; (Unreported, SCt of WA, Library No 970252, 20 May 1997)
Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76; [2004] 1 ABC(NS) 610
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
Wilkins v Condell [1940] SASR 139
Wills v Williams [1971] WAR 29
Wong Pooh Yin v DPP [1955] AC 93

MARTIN CJ:

Introduction

A prosecution notice was issued against the respondent, Joseph McDonald, alleging that on 19 February 2007 he trespassed on a building site under the control of Doric Construction Pty Ltd (Doric) in Joondalup without a lawful excuse contrary to s 70A(2) of the Criminal Code (WA). Mr McDonald pleaded not guilty to that charge, and on 22 October 2007 the matter…

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 Wilson v McDonald

Details

AGLC: Wilson v McDonald [2009] WASCA 39
Case: [2009] WASCA 39
Decision Date: 12 FEBRUARY 2009

CaseChat Overview and Summary

In Wilson v McDonald, the defendant was charged under section 70A of the Criminal Code (WA) for trespass on land owned by the plaintiff. The defendant argued that his actions were not criminal trespass as he had a lawful excuse for entering the property, which was to retrieve his dog. The case was heard in the Magistrates Court of Western Australia. The central legal issue was whether the defendant's entry onto the plaintiff's property without permission constituted criminal trespass, given that he claimed to have a lawful excuse for his actions.

The court examined the definition of 'without lawful excuse' as provided in section 70A of the Criminal Code. It considered whether the defendant's actions were differentiated from trespass and whether a lawful excuse existed for his entry. The court distinguished between lawful excuses in civil trespass and criminal trespass, noting that the existence of a non-criminal purpose did not automatically constitute a lawful excuse under the Criminal Code. The court also reviewed the legislative history of the relevant provisions, including the Police Act 1982 (WA) and the Criminal Code (WA), to ascertain the intent behind the legislation.

After weighing the arguments, the court found that the defendant's actions did amount to criminal trespass. The court concluded that the defendant had not provided a sufficient lawful excuse for entering the plaintiff's property, as the mere presence of a non-criminal purpose was insufficient. The court emphasised that a lawful excuse under the Criminal Code must be more than just a non-criminal intent. The defendant's appeal was dismissed, and he was found guilty of criminal trespass. The court ordered the defendant to pay a fine and comply with other conditions as set out in the judgment.

Orders