Citation: Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259
Court: Supreme Court of New South Wales
Date: 8 April 2011
Judge: Johnson J
Background
The defendant had been served with a written "notice of prohibited entry" by Best & Less Pty Limited, banning him indefinitely from all retail premises owned or operated by that company. The notice was issued following an incident of alleged indecent conduct at one of the company's stores. It was served on 31 October 2009 and its effect was explained to the defendant verbally, even though he refused to sign it.
On 21 December 2009, the defendant was observed inside the Best & Less store at Burwood Plaza, identifiable from security footage. He was subsequently charged under s 4(1)(b) of the Inclosed Lands Protection Act 1901 (ILP Act) with entering inclosed lands without lawful excuse and without the consent of the occupier.
At the Local Court hearing, the Magistrate was satisfied that a prima facie case existed on all elements of the offence except one. His Honour dismissed the charge on the basis that a retail store within a large commercial shopping complex, open to the public during trading hours, did not fall within the statutory definition of "inclosed lands." The Director of Public Prosecutions appealed that dismissal to the Supreme Court on a question of law.
Legal Issues
- Whether the Best & Less retail store at Burwood Plaza constituted "inclosed lands" within the meaning of s 3(1) of the Inclosed Lands Protection Act 1901.
- Whether the Magistrate erred in law by dismissing the charge on that basis.
- Whether the matter should be remitted to the Local Court for determination according to law.
Decision
Johnson J held that the Magistrate erred in law in concluding that the retail store could not constitute "inclosed lands" under the ILP Act. His Honour examined the statutory definition closely and reviewed the extensive history of case law considering its scope. The definition in s 3(1) includes land enclosed by, among other things, any wall or other erection, and the relevant question is whether the premises fall within that description.
The fact that a retail store is open to the public during trading hours does not take it outside the definition of inclosed lands. The physical enclosure of the premises by walls, combined with the capacity to exclude the general public (as occurs when the store is closed), satisfies the statutory description. The public invitation to enter during trading hours does not mean the occupier has lost the right to exclude particular individuals.
Johnson J also noted that, where an owner or occupier has specifically withdrawn consent for a particular person to enter, that person's subsequent entry is capable of constituting the offence under s 4(1)(b). The Magistrate had accepted that all other elements of the offence were made out on a prima facie basis. The legal error lay solely in the finding on the "inclosed lands" question.
The Supreme Court set aside the order of dismissal and remitted the matter to Burwood Local Court for determination on its merits. Johnson J expressly noted that questions of guilt and, if relevant, penalty remained entirely for the Local Court.
Orders Made
- The order dismissing proceedings against the defendant at Burwood Local Court on 10 June 2010 was set aside pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001.
- The proceedings were remitted to Burwood Local Court to be dealt with according to law.
- The defendant was ordered to pay the plaintiff's costs of and incidental to the Summons.
- A certificate was granted to the defendant under s 6 of the Suitors' Fund Act 1951.
Key Takeaways
- The Supreme Court confirmed that retail premises within a shopping complex can fall within the definition of "inclosed lands" under the Inclosed Lands Protection Act 1901, even where those premises are open to the general public during trading hours.
- A retail store enclosed by walls satisfies the physical requirement in s 3(1) of the ILP Act; the existence of a public entrance does not negate this, because the premises can be, and are, closed to the public outside trading hours.
- Where an occupier has expressly withdrawn consent for a specific individual to enter, that individual's entry is capable of constituting an offence under s 4(1)(b), regardless of whether the general public remains welcome.
- In dismissing the appeal argument advanced by the defendant, the Supreme Court applied the established principle that costs ordinarily follow the event, ordering costs against the unsuccessful defendant while granting him a Suitors' Fund certificate in recognition of the genuine legal complexity of the question.
- Under s 59(2) of the Crimes (Appeal and Review) Act 2001, a successful DPP appeal on a question of law from the Local Court results in remitter rather than the Supreme Court substituting its own verdict.
Legislation and Cases Referenced
Legislation:
- Inclosed Lands Protection Act 1901 (NSW), ss 3(1), 4(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), s 59(2)
- Criminal Procedure Act 1986 (NSW), s 194(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Suitors' Fund Act 1951 (NSW), s 6
- Summary Offences Act 1970 (NSW)
- Inclosed Lands Protection (Summary Offences) Amendment Act 1979 (NSW)
Key Cases:
- Director of Public Prosecutions v Butterworth (NSW Supreme Court, McInerney J, 6 November 1996)
- Giddings v Director of Public Prosecutions [2008] NSWSC 169; 181 A Crim R 536
- Director of Public Prosecutions v Wille [1999] NSWSC 661; 47 NSWLR 255
- Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497
- Barns v Edwards (1993) 31 NSWLR 714
- Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319
- Webb v Epstein (1955) VLR 462
- Maybury v Plowman [1913] HCA 43; 16 CLR 468
- Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388
- Victims Compensation Fund v Brown [2002] NSWCA 155; 54 NSWLR 668