Supreme Court New South Wales

• Medium Neutral Citation: Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259
• Hearing dates: 1 April 2011
• Decision date: 08 April 2011
• Jurisdiction: Common Law
• Before: Johnson J

Decision

(a) Pursuant to s.59(2) Crimes (Appeal and Review) Act 2001 , the order made at the Burwood Local Court on 10 June 2010 dismissing proceedings against the Defendant under s.4(1)(b) Inclosed Lands Protection Act 1901 is set aside.

(b) The proceedings are remitted to the Burwood Local Court to be dealt with according to law.

(c) The Defendant is to pay the Plaintiff's costs of and incidental to the Summons.

(d) The Defendant is granted a certificate under s.6 Suitors' Fund Act 1951 .

• Catchwords: CRIMINAL LAW - offence of entering upon inclosed lands without lawful excuse - meaning of "inclosed lands" in Inclosed Lands Protection Act 1901 - held by Magistrate not to extend to retail premises open to public in commercial shopping complex - person prohibited from entry to premises - premises fall within definition of "inclosed lands" - error demonstrated - matter remitted to Local Court
• Legislation Cited: Inclosed Lands Protection Act 1901; Crimes (Appeal and Review) Act 2001; Criminal Procedure Act 1986; Summary Offences Act 1970; Inclosed Lands Protection (Summary Offences) Amendment Act 1979; Miscellaneous Acts (Education and Public Instruction) Repeal and Amendment Act 1987; Crimes (Sentencing Procedure) Act 1999; Suitors' Fund Act 1951
• Cases Cited: Webb v Epstein (1955) VLR 462; 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; Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388; Maybury v Plowman [1913] HCA 43; 16 CLR 468; Press v Tuckwell (1968) 69 SR(NSW) 17; R v Bacon (1977) 2 NSWLR 507; Black v Carrabs (NSW Supreme Court, Finlay J, 11 March 1988) 9 Petty Sessions Review 4045; Director of Public Prosecutions v Wille [1999] NSWSC 661; 47 NSWLR 255; Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497; Alla v Gleeson (NSW Supreme Court, Roden J, 25 October 1985, BC8500455); Minkley v Munro (NSW Supreme Court, Grove J, 22 August 1986; 8 Petty Sessions Review 3975); McDermott v Bogg (NSW Supreme Court, Carruthers J, 12 March 1991, BC9102240); Barns v Edwards (1993) 31 NSWLR 714; Dearing v Passi (NSW Supreme Court, Levine J, 4 November 1994, B9403632); Simpson v Bagnall [2000] NSWSC 930; Treweeke v Benson (1936) 53 WN(NSW) 151; YZ Finance Company Pty Limited v Cummings [1964] HCA 12; 109 CLR 395; Victims Compensation Fund v Brown [2002] NSWCA 155; 54 NSWLR 668; Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; In the Appeal of Thompson (1950) WN(NSW) 183
• Texts Cited: John Andrews "'Repeal' of the New South Wales Summary Offences Act" [1979] 3 Crim LJ 295; Pearce and Geddes, "Statutory Interpretation in Australia", 6th edn, LexisNexis, 2006
• Category: Principal judgment
• Parties: Director of Public Prosecutions (NSW) (Plaintiff); Graeme Edwin Strang (Defendant)
• Representation: Counsel: Ms CA Webster (Plaintiff); Mr GE Strang (In Person); Solicitors: Office of the Director of Public Prosecutions (Plaintiff); Mr GE Strang (In Person)
• File Number(s): 2010/318475

Judgment

1 JOHNSON J : By Summons filed on 24 September 2010, the Plaintiff, the Director of Public Prosecutions (NSW), appeals from a decision of a Magistrate dismissing a charge of entering inclosed lands, without lawful excuse, under s.4 Inclosed Lands Protection Act 1901 ( "ILP Act" ) against the Defendant, Graeme Edwin Strang.

2 The Plaintiff contends that the Magistrate erred in law in dismissing the charge and that an order should be made under s.59(2) Crimes (Appeal and Review) Act 2001 setting aside the order of dismissal and remitting the matter to the Burwood Local Court to be dealt with according to law.

3 As will be seen, the appeal turns upon the meaning of the term "inclosed lands" in the ILP Act in the context of the facts of this case.

4 Ms Webster of counsel appeared for the Plaintiff at the hearing of the appeal. The Defendant appeared for himself in this Court and resisted the claim for relief. The Defendant had been furnished with the Summons and supporting affidavit, the Local Court transcripts and the Plaintiff's written submissions well before the hearing in this Court.

The Charge Under the ILP Act

5 The Defendant was charged by Court Attendance Notice with the following offence under s.4(1)(b) ILP Act:

"... On 21 December 2009, at Burwood [he] did without lawful excuse enter into the inclosed lands of Best & Less situate at Burwood Plaza Burwood without the consent of Best & Less Pty Limited the owner of the said inclosed lands."

The Local Court Hearing

6 The hearing of the charge commenced before the Local Court on 19 March 2010, and continued to its conclusion on 10 June 2010. A police prosecutor appeared to prosecute the matter and the Defendant was unrepresented. It appears that on a prior occasion (14 January 2010) the Defendant failed or refused to enter a plea so that the Court directed that it should proceed to hear and determine the matter as if a plea of not guilty had been entered: s.194(1) Criminal Procedure Act 1986 .

7 The prosecutor called three witnesses - Constable Benjamin Collings, Genevieve Hamoir and Houda Omran. Ms Hamoir and Ms Omran were both employees of Best & Less Pty Limited. In addition, a document and photographs were tendered in the prosecution case.

8 The evidence adduced in the Local Court revealed what follows.

9 On 31 October 2009, there was served on the Defendant, addressed to "Graeme Strange" , a "notice of prohibited entry" (Exhibit 3). This notice had the effect of indefinitely prohibiting the recipient from entering or being on any retail premises owned or operated by Best & Less Pty Limited.

10 The notice, dated 31 October 2009, referred to the ILP Act. There is no provision in the ILP Act for the service of such a notice. It may be taken that the form of notice is used by Best & Less Pty Limited to indicate to the recipient that the person is prohibited from entering or being on retail premises owned or operated by that company, and that the ILP Act will be relied upon for that purpose. The issue in this Court is whether the ILP Act can apply to these premises.

11 The notice was issued by Ms Hamoir, an assistant manager for Best & Less Pty Limited. It was her evidence that she had seen the Defendant before, in numerous stores where she had worked. She completed the notice at the Best & Less Roselands store on 31 October 2009. The notice specified "indecent conduct" as the reason for its issue . Her evidence was that the Defendant refused to accept service or to sign the notice on 31 October 2009, but that she had explained its effect to him. Although the notice misspelt the Defendant's name ( "Strange" rather than "Strang" ), it contained his correct date of birth and address.

12 Under cross-examination by the Defendant, Ms Hamoir explained why she had issued the notice to the Defendant. She said (T43.11, 19 March 2010):

"I was instructed due to the fact that an incident happened in another store that some inappropriate behaviour had occurred, some things were said to a staff member and we cannot take that chance to have that possibly occur again in one of our stores hence why we issued the banning notice."

13 On 21 December 2009, Ms Omran, then an assistant manager at the Burwood Best & Less store, saw a male aged about 50 years, dressed in women's clothing, inside the store. She recognised the male as a person she knew to be banned from Best & Less stores. Ms Omran identified the male as the Defendant. It was her evidence that she called police, kept the Defendant under observation and followed him out of the store.

14 Constable Collings gave evidence that he attended the Burwood Best & Less store on 21 December 2009 and viewed security footage, showing a male approximately 50 years of age, wearing female attire, inside that store. Constable Collings said that he recognised the male as the Defendant, with whom he had had past dealings. A copy of the photographic images of the Defendant and the video recording, were admitted into evidence (Exhibits 1 and 2).

15 The prosecution closed its case at the conclusion of evidence on 10 June 2010. The Magistrate then raised with the prosecution the question of whether the Best & Less store could fall within the definition of "inclosed lands" in s.3(1) ILP Act. The prosecutor made submissions on this issue. The Magistrate did not call upon the Defendant to make submissions on this issue. This was an understandable approach given the legal nature of the question, the Defendant's unrepresented status and the fact that, if his Honour remained of that view, it would see the prosecution determined in the Defendant's favour.

16 After submissions from the prosecutor, his Honour gave judgment on the question of a prima facie case. His Honour was satisfied that a prima facie case existed on the other elements of the offence. He said (T29.34, 10 June 2010):

"The prosecution evidence is capable of establishing, at this point, that Mr Strang was given a notice and informed verbally that he was no longer permitted to enter premises anywhere that were occupied by Best and Less. He said that despite that express prohibition, nevertheless, he entered Best and Less premises on 21 December. There is evidence before me capable of establishing that on 21 December he did, indeed, enter premises occupied by Best and Less.

The notice given to him in writing and verbally, if I accept that it occurred, would have made it clear to Mr Strang that he had no authority to enter those premises and, therefore, [it] might be argued that his entry on to them was without lawful excuse. The evidence adduced in the prosecution case, therefore, is capable of satisfying each of the elements of the offence.

The question which I have raised is a legal one, and that is whether the lands in question are enclosed [sic] lands, as that term is defined in [s.3(1)] of the Act."

17 After reciting the definition of "inclosed lands" in s.3(1) ILP Act, his Honour continued (T30.9, 10 June 2010):

"Now, clearly just by recitation of the definition, and by examination of section 4 in its entirety, it is clear, or it becomes clear as the real origins and objective of the provision.

The building in question here is a one of multiple occupancy, a large shopping complex. In order to get to Best and Less, the defendant had to first enter through the entrance into the shopping centre proper, move someway through the shopping centre until he came to that part of the building, or the interior of the building, occupied by Best and Less, Best and Less being a commercial organisation and the building being occupied by many other commercial organisations, each of which has, I think, I can properly take judicial notice of, the control and management of the spaces assigned to them.

Now, the definition that I have just quoted refers to enclosed lands, which might be enclosed by, for example any wall or other erection, and I think that portion that [the] prosecution would rely on as describing the area occupied by Best and Less and satisfying, for the purpose of section 4, the concept of enclosed lands.

Now, on its face that appears to be so, but it is a space apparently enclosed by walls but with a significant public entrance. It is a commercial organisation and the public are invited to attend it during its open hours through a door or space, which remains open throughout its trading hours, and it is closed otherwise. Upon being closed, of course, it prevents any entry, except for those who have got some way of opening the door, but it would have the effect of excluding the general public. It is a barrier once closed.

This is, as I said, a retail store It is open to the public. The general public are invited to attend for the purpose of inspecting and purchasing the goods for sale therein. Now, the issue that arises is whether this large enclosed space, to which the general public are invited, does it fall within the notion of enclosed lands as appears in section 3?"

18 Although his Honour's reasons did not expand upon the proposition expressed in the first paragraph contained in the above quotation concerning "the real origins and objective of the provision" , some light is shed upon his Honour's approach from a discussion between the Magistrate and the prosecutor a little earlier in the course of submissions. The following discussion took place (T17.6, 10 June 2010):

"HIS HONOUR: Putting aside the matters of fact that have been traversed in the evidence of the witnesses from whom I've heard, it seems to me that there is an issue as to whether a store of this kind qualifies as enclosed lands.

PROSECUTOR: Yes, your Honour.

HIS HONOUR: Now the definition of enclosed lands is contained in section 3 of the Enclosed [sic] Lands Protection Act.

PROSECUTOR: Yes, your Honour.

HIS HONOUR: And it's an old Act, and I think its original application was intended to be more to rural or property enclosed by fences.

PROSECUTOR: Yes.

HIS HONOUR: But its [sic] been, sort of, pressed into modern service without any real attempt to modernise it, and the Act derives from 1901.

PROSECUTOR: Yes.

HIS HONOUR: And the definition of enclosed lands, or paragraph 8, it is clear, and there's been no submission that these are prescribed premises.

PROSECUTOR: No, your Honour.

HIS HONOUR: So, therefore, in order to succeed, you have to bring these premises within paragraph (b) of the definition, which is contained in subsection (1) of section (3), which is in these terms:

[His Honour quoted the definition]

Of course, that definition, sort of, betrays the real origins and the intent of the original Act or this part of it."

19 It will be observed that the final paragraph in this extract uses similar language to the first paragraph contained in the quotation at [17] above. This aspect assumed some significance given the arguments advanced to this Court on appeal.

20 The Magistrate identified the question as being a legal one, namely whether the lands in question are "inclosed lands" as defined in s.3(1) ILP Act. His Honour observed (correctly) that there was little authority available on the question. He referred to a number of decisions, none of which was directly on point. Reference was made by his Honour to Webb v Epstein (1955) VLR 462, Director of Public Prosecutions v Butterworth (NSW Supreme Court, McInerney J, 6 November 1996) and Giddings v Director of Public Prosecutions [2008] NSWSC 169; 181 A Crim R 536. His Honour had particular regard to the decision in Giddings v Director of Public Prosecutions , which related to a hotel.

21 The critical part of the Magistrate's reasons for finding no prima facie case is contained in the following extract (the word "enclosed" where it appears should be read as "inclosed" ) (T32-33, 10 June 2010):

"What can be taken from those decisions? Now, the decision of Mclnerney J in Butterworth clearly conveys the notion that the protection of privacy perhaps, or the right to possession and peaceful enjoyment of lands appears to be, in his opinion, the purpose of a scheme. That notion builds on the same concept that emerges from the Victorian decision of Webb v Epstein.

In the case of Giddings v DPP, therefore, James J, in the paragraph that I have just cited, was clearly of the opinion that the Enclosed Lands Protection Act did not extend to a hotel.

Now, regrettably, for my purposes, at least, he did not go on to explain exactly why, but the word that he used was, incapable of extending to the hotel, which clearly implies that there was something in the nature of a hotel which, in his opinion, disqualified a structure of that kind from inclusion within the notion of enclosed lands.

Now, the decision does not reveal exactly where in the hotel the person in question was situated but from paragraph 8, it seems, that the person was in an ordinary part of the hotel, where one might expect to be served drink or food. Hotels are frequently called, public house. It is a place to which members of the public are invited, and there to purchase and consume food, drink, and more often than not as well, to seek accommodation. It is a building with walls and doors in the usual way. Some hotels are free standing, others are part of other structures. The important thing, I think, ensues, or the important features ensures, for example, Best and Less, the matter before me, is a structure consisting of walls with doors through which member of the public may enter and to which members of the public are invited for commercial reasons, invited there for the purpose of sale to them of things which might be particular to hotels, but similar to the extent that Best and Less things are also sold to the public, although of a different kind. Now, I am left with this outcome, after surveying those authorities. For the purpose - James J, as I have said has decided that it is not possible for the Enclosed Lands Protection Act to extend to a hotel. As much as I can discern for the reasons for that, that conclusion is followed immediately by the words, 'Where there were members of the public who were drinking'.

The common threa [d] that runs through the Victorian case, the case of Butterworth before Mclnerney J and James J appears to be the notion that where the public are invited, in some general way, the Enclosed Lands Act has no application or, at least, this portion of it. As for the reasons for that conclusion perhaps the explanation lies in the notion as I have already mentioned, that arises from [Webb v Epstein] , that the intention is to be protective of people's right to privacy, the ability to exclude the public generally to protect the right of occupancy of land to protect the right to enjoy land to the exclusion of any others that the occupant desires to exclude and in that explanation possibly lies the reason why James J was of the opinion the Act has no application to a hotel.

Whatever be his reason, his decision is a fact, and one which I must take cognisance of. It seems to me that although there are very different commercial activities in a hotel compared to Best and Less, that the essential characteristics of each building for the purposes of this matter are the same. That is, commercial premises selling things to the public. The public are invited, en masse, to attend, and I cannot see any reason to distinguish Best and Less from a hotel that James J said was incapable of being included within the Act.

FOR THOSE REASONS, THEREFORE, I CONCLUDE THAT THE DEFINITION OF ENCLOSED LANDS PROTECTION ACT DOES NOT EXTEND TO BEST AND LESS IN THE CONTEXT IN WHICH IT HAS BEEN RAISED WITH ME. FOR THAT REASON THE COURT ATTENDANCE NOTICE IS DISMISSED."

Relevant Provisions in ILP Act

22 The terms "inclosed lands" and "prescribed premises" are defined in s.3(1) ILP Act in the following terms:

"Inclosed lands means:

(a) prescribed premises, or

(b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.

prescribed premises means land occupied or used in connection with any of the following:

(a) a government school or a registered non-government school within the meaning of the Education Reform Act 1990,

(b) a child care service,

(c) a hospital,

(d) a nursing home within the meaning of the Public Health Act 1991,

and any building or structure erected on that land, but does not include all or part of any building or structure that is for the time being occupied or used for a purpose unconnected with the conduct of such a school, child care service, hospital or nursing home."

23 Section 4 ILP Act provides as follows:

"4 Unlawful entry on inclosed lands

(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding:

(a) 10 penalty units in the case of prescribed premises, or

(b) 5 penalty units in any other case.

(1A) A drover or person in charge of stock being driven on a road lawfully inclosed within the lands of any person has a lawful excuse for entering those lands for the purpose of preventing the stock from straying, or regaining control of stock that have strayed, from that road.

(2) Where a road is lawfully inclosed with the lands of any person, and such road is not clearly defined but there is a reasonably defined track commonly used by persons passing through such lands, the centre of such track shall, for the purposes of this Act, be deemed to be the centre of the road.

(3) Where a road is lawfully inclosed with the lands of any person and such road is not clearly defined and there is no reasonably defined track through such lands a person passing through such inclosed lands shall not be guilty of an offence unless it is shown that the route taken by such person in so passing was, having regard to the circumstances, unreasonable.

(4) In this section, stock includes horses, cattle, sheep, goats, pigs and camels."

Appeal to this Court

24 The Plaintiff's Summons contended that his Honour erred in law in:

(a) ruling that premises to which the general public are invited could not in law be inclosed lands within the meaning of s.3 of the ILP Act;

(b) dismissing the matter.

25 Ms Webster submitted that the Best & Less premises at Burwood were capable of falling within the definition of "inclosed lands" in s.3(1) ILP Act. Counsel submitted that an examination of the legislative history of the ILP Act indicated a broadening of the definition of "inclosed lands" with particular reference to amendments effected in 1939, 1979 and 1987.

26 Ms Webster referred to a number of decisions which bear upon the meaning of the term "inclosed lands" in the ILP Act. Particular reference was made to Webb v Epstein , Director of Public Prosecutions v Butterworth and Giddings v Director of Public Prosecutions , it being submitted that these decisions did not support the construction adopted by the Magistrate.

27 Counsel submitted that the conclusion reached by the Magistrate involved an unduly restrictive interpretation of the ILP Act. She submitted that the correct approach was to construe the definition of "inclosed lands" and that, having done so, the subject premises in this case fell within that definition.

28 Ms Webster submitted that it was clear on the authorities that there is no need (in order for the ILP Act to apply) for there to be a continuous barrier, or perhaps any barrier, surrounding the subject lands. It was submitted for the Plaintiff that all that is required is some feature, whether natural or man made, which marks out the boundaries with sufficient clarity: Webb v Epstein ; Director of Public Prosecutions v Butterworth .

29 It was submitted that, in the present case, the boundaries were clear. The entry to the Best & Less store was clearly marked by a change in colour of the floor tiling, by the presence of clothing goods on racks just inside the door, and by other visible signs. She submitted that, whilst the premises were a retail store, which might be seen as extending an "invitation" to members of the public to enter for proper purposes, they nonetheless remained private property. There could be no doubt, she submitted, that the Defendant was aware that the interior of any Best & Less store was a place to which he was not invited and, in fact, was specifically prohibited from entering.

30 To put the argument another way, Ms Webster submitted that the authorisation of a limited number or class of persons to enter a piece of land is not necessarily inconsistent with the land being "inclosed lands". She provided examples of a family home to which immediate family members are permitted access, or a part of a worksite to which authorised employees are permitted entry. There may be no barrier of any substance on lands such as these, but this will not necessarily deny their status as "inclosed lands" under the ILP Act, provided the boundaries are sufficiently clear.

31 Ms Webster submitted that it is both artificial and contrary to the terms of the ILP Act to deny its application in the circumstances of this case. She submitted that, in effect, the Magistrate had elided two issues - the question of whether the premises were "inclosed lands" (a question to be answered by reference to the physical description of the premises) and the question whether there was a "lawful excuse" for persons to enter the premises (a question to be considered by reference to the giving of access to the public at large and the restriction of access to identified members of the public). Ms Webster submitted that the determination whether the premises were capable of being "inclosed lands" did not involve any consideration as to whether the premises were open to the general public.

32 Ms Webster submitted that the order dismissing the proceedings against the Defendant should be set aside and the matter remitted to the Local Court to be dealt with according to law.

33 The Defendant, who impressed as an articulate and intelligent person, advanced a number of submissions on the appeal. He took the Court to the history of the ILP Act and submitted that its origins lay in a rural and agricultural context and that, despite amendments since 1901, those aspects still control effectively the application of the statute.

34 The Defendant observed that he had not been called on in the Local Court to make submissions on this point and that, if he had been, he would have advanced further arguments to the Local Court. He developed those arguments on appeal to this Court.

35 He pointed to the terms of s.4, and the references in s.4(1A) to a "drover" and "stock" , as providing a flavour to the legislation which demonstrated its true application. He submitted that the Act does not apply to commercial or retail premises, in particular in an interior space within a shopping centre complex. Rather, the Defendant submitted that the ILP Act is concerned with application in an agricultural or rural context.

36 The Defendant submitted that, if the legislature wished to extend the definition of "inclosed lands" to premises such as retail premises contained within a commercial shopping complex, then that object could be achieved by an amendment to the definition of "prescribed premises" in s.3(1) ILP Act. However, he submitted that the words contained in paragraph (b) of the definition of "inclosed lands" were not capable of extending to premises such as those of Best & Less at Burwood.

Determination

37 The question for determination on appeal is whether the Magistrate has erred in law in finding that the Best & Less store at Burwood is not capable of falling within the terms of paragraph (b) of the definition of "inclosed lands" in s.3 ILP Act.

38 It will be apparent that his Honour did not have the benefit of the detailed analysis of the legislative history and case law which is available to this Court, and which follows.

39 The starting point involves construction of the ILP Act and, in particular, ss.3 and 4 of that Act. An understanding of the legislative history of these provisions will assist in construing the sections in their present form: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 393 [26].

40 The first ILP Act was passed in 1854. The 1901 Act was described, in 1913, as a consolidation of the 1854 Act and an intervening statute which amended that Act: Maybury v Plowman [1913] HCA 43; 16 CLR 468 at 473.

41 Despite its original rural and agricultural flavour, it has been said in a number of decisions that the ILP Act applies to both rural and urban lands: In the Appeal of Thompson (1950) WN(NSW) 183; Press v Tuckwell (1968) 69 SR(NSW) 17 at 19.

42 In Treweeke v Benson (1936) 53 WN(NSW) 151, Owen AJ, at 152, described the ILP Act in the following way:

"The Act makes trespass on inclosed lands a penal offence. It is clear from the definition of 'inclosed land' in the Act that the legislature intended that a criminal charge of trespass to land should lie only where the limits of the land upon which the trespass occurs are clearly defined so as to be known and recognised."

43 An important amendment was made to the ILP Act in 1979. At that time, an offence of trespass was contained in s.50(1) Summary Offences Act 1970 , which provided as follows:

"A person who enters or remains in or upon any part of a building or structure, or any land occupied or used in connection therewith, and has no reasonable cause for so doing is guilty of an offence.

Penalty: $200.00 or imprisonment for three months."

44 Aspects of this provision were considered by the Court of Criminal Appeal in R v Bacon (1977) 2 NSWLR 507, a decision dealing essentially with the concept of "reasonable cause" .

45 In 1979, the Summary Offences Act 1970 was repealed. Amongst the legislation enacted as part of that repeal process was the Inclosed Lands Protection (Summary Offences) Amendment Act 1979 . Section 3 of the 1979 Act amended the ILP Act in the following way:

"3. The Inclosed Lands Protection Act, 1901, is amended -

(1) by inserting in the definition of 'Inclosed lands' in section 3 after the word 'recognised' the words ', and includes any building or structure or any part thereof, and any land occupied or used in connection with a building or structure or any part thereof';

(2) by omitting from section 4(1) the words 'in charge of the same.' and by inserting instead the words 'apparently in charge of the same or remains upon the inclosed lands of another person after being requested by the owner or occupier or person apparently in charge of those lands to leave those lands,';

(3) by inserting after section 4 the following section:-

4A. Any person, who remains upon the inclosed lands of another person after being requested by the owner or occupier or the person apparently in charge of those lands to leave those lands and while remaining upon those lands behaves, without reasonable excuse, in such a manner as would be likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted, shall be liable to a penalty of $200."

46 In the second reading speech with respect to the Summary Offences (Repeal) Bill and cognate Bills, including the Inclosed Lands Protection (Summary Offences) Amendment Bill , the Attorney General and Minister of Justice, Mr Walker, said (Hansard, Legislative Assembly, 23 April 1979, page 4917 at page 4925):

"The Inclosed Lands Protection (Summary Offences) Amendment Bill reformulates the law currently contained in sections 49 and 50 of the Summary Offences Act. These sections relate to the entering or remaining in or upon buildings, or land used in connection therewith, without lawful excuse. Clause 3 (a) of the bill extends the definition of inclosed lands in section 3 of the Act to include any building or structure or any part thereof, and any land occupied or used in connection with a building or structure or any part thereof. Subclause (b) extends the offence of unlawfully entering upon enclosed land to include remaining upon such land after having been requested to leave by the owner, occupier or person apparently in charge of the land. Clause 3 (c) inserts a new section in the Act making it an offence for a person remaining upon the inclosed lands of another person after being requested by the owner, or occupier, or the person apparently in charge of these lands to leave, to behave in such a manner as would be likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted. Thus the offence is in terms similar to the offence under clause 5 of the offences in public places bill. A similar penalty of $200 will apply."

47 The effect of the 1979 amendments was to abolish the trespass offence previously contained in s.50 Summary Offences Act 1970 and to utilise the ILP Act to cover trespass offences of that type. That this was the intention of the amendment is confirmed in an article by John Andrews (as his Honour then was) entitled "'Repeal' of the New South Wales Summary Offences Act" [1979] 3 Crim LJ 295 at 300-301.

48 It is necessary to keep in mind the nature and purpose of the 1979 amendment to the ILP Act in considering earlier decisions concerning the meaning of "inclosed lands" in the ILP Act. The critical part of the 1979 amendment was to include in the definition of "inclosed lands" the words "and includes any building or structure or any part thereof, and any land occupied or used in connection with a building or structure or any part thereof" . In my view, these are words of considerable breadth and the effect of the amendment was to alter in a significant respect the meaning of "inclosed lands" in s.3 ILP Act.

49 In 1987, the definition of "inclosed lands" was amended again by the Miscellaneous Acts (Education and Public Instruction) Repeal and Amendment Act 1987 . Following that amendment, the definition of "inclosed lands" was in the following terms:

"'Inclosed lands" means -

(a) a school; or

(b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognized, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure."

50 It will be apparent that there was some alteration to the wording of the definition in paragraph (b) from that which had been inserted as part of the 1979 amendments. However, the alterations do not appear to affect the substance of that part of the definition and its meaning.

51 It has been said that s.4(1) ILP Act creates two offences, one being an offence of entering into inclosed lands without lawful excuse, and the other an offence of remaining upon such lands (without lawful excuse) when asked to leave: Black v Carrabs (NSW Supreme Court, Finlay J, 11 March 1988) 9 Petty Sessions Review 4045 at 4047; Director of Public Prosecutions v Wille [1999] NSWSC 661; 47 NSWLR 255 at 257-258 [14].

52 That the terms of ss.3 and 4 ILP Act are capable of extending to a variety of lands is apparent from the range of locations to which prosecutions under the section have applied since 1979. These include a private clinic ( Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497), part of a police station ( Alla v Gleeson (NSW Supreme Court, Roden J, 25 October 1985, page 10, BC8500455)); part of an airport complex ( Minkley v Munro (NSW Supreme Court, Grove J, 22 August 1986; 8 Petty Sessions Review 3975), the Sydney Cricket Ground ( Black v Carrabs ), rented suburban residential premises ( McDermott v Bogg (NSW Supreme Court, Carruthers J, 12 March 1991, BC9102240)), community housing in Casino ( Barns v Edwards (1993) 31 NSWLR 714), the carpark of the Cronulla Sutherland Leagues Club ( Dearing v Passi (NSW Supreme Court, Levine J, 4 November 1994, B9403632)), the M2 construction site ( Director of Public Prosecutions v Butterworth ), the eastern distributor site near Sydney airport ( Director of Public Prosecutions v Wille ) and rural tracks in the Macksville area ( Simpson v Bagnall [2000] NSWSC 930).

53 In Alla v Gleeson , Roden J noted the width of the definition of "inclosed lands" (at page 10):

"It may well be that his refusal to leave that private part of the police station constituted an offence under the Inclosed Lands Protection Act, 1901 as amended. Indeed the definition of 'inclosed lands' in that Act is so wide that a refusal to leave the foyer of the police station, which is a 'public place', may also be an offence. If that be so, then under the provisions of s 5(5) of the Intoxicated Persons Act, the plaintiff could not be lawfully detained under that Act by reason of that conduct."

54 I do not think that the Victorian decision in Webb v Epstein provides great assistance in resolving the question of construction and application to the New South Wales Act. The decision involves a different factual context to this case. To the extent that the decision states that a continuous barrier is not required to delineate the relevant boundaries, it provides assistance to the Plaintiff.

55 Likewise, the decision of McInerney J in Director of Public Prosecutions v Butterworth assists the Plaintiff and not the Defendant on the present appeal. In that case, the Magistrate had concluded that, for lands to be "inclosed lands" within the meaning of the ILP Act, it was necessary that the fence or erection by which the lands were inclosed at the M2 construction site be of some enduring nature, and that it was insufficient if it took the form of a temporary structure which was moveable on a daily basis.

56 McInerney J held that the Magistrate had erred. His Honour held that a permanent or enduring structure was not required. In the factual context of that case, his Honour said that:

"... the importance of the definition is that an area is clearly defined so as to be known and recognised as a particular area to which members of the public have no right of entry."

57 I do not take his Honour's statement as requiring in every case that "inclosed lands" might involve an area to which members of the public have no right of entry. It was apparent that a boundary with that attribute was required in that case so that there would be a clearly defined boundary for members of the public to see in the area of a construction site.

58 There is no doubt here that the boundaries to Best & Less at Burwood were clearly identified.

59 Similarly, I do not think that the decision in Giddings v Director of Public Prosecutions provides any real assistance for the conclusion reached by the Magistrate in this case. As his Honour acknowledged in his reasons (see [21] above), that case involved a hotel, and only part of the judgment touched upon the ILP Act. What the Magistrate has done in the present case is to infer or assume that James J was building in to the definition of "inclosed lands" in the ILP Act, a requirement that the relevant premises or area be reserved for the use of the occupier and persons authorised by him to enter and not be open to members of the public. With respect, I think this is reading too much into the relatively short passage in James J's judgment where the ILP Act was mentioned.

60 In any event, it is necessary to apply the definition of "inclosed lands" in s.3 ILP Act by reference to the factual circumstances of the present case. I accept that James J's conclusion involved a determination based upon the particular facts of that case. However, it did not constitute a type of general statement concerning the proper construction of s.3 ILP Act and the requirements for premises to fall within the meaning of "inclosed lands" . As James J observed, that particular part of the decision was made with reluctance as the issue had not been raised in the Local Court, and was expressed relatively briefly in his Honour's judgment.

61 I think that the decision in Giddings v Director of Public Prosecutions is distinguishable and does not constitute a foundation for the conclusion reached by the Magistrate in this case, based upon a type of extrapolation of the reasons of James J.

62 I accept the Plaintiff's submission that the approach taken by the Magistrate in this case elided the question whether the premises are capable of falling within the definition of "inclosed lands" and the separate question whether persons who may have access to the premises have a lawful excuse for doing so.

63 To the extent that the present appeal raises a question of construction of ss.3(1) and 4 ILP Act including the term "inclosed lands" , the objective of statutory construction is to give to the words of the statute the meaning which the legislature is taken to have intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 384 [78].

64 The definition of "inclosed lands" does not purport to exclude commercial or retail premises. Nor does it purport to exclude premises which are contained within a larger building such as a commercial shopping centre or complex. Nor does it require that the boundaries exclude members of the public.

65 It is common ground in this case that the Best & Less premises at Burwood are not "prescribed premises" for the purpose of paragraph (a) of the definition of "inclosed lands" .

66 However, there is the second leg of the definition contained in paragraph (b). That definition is expressed in wide terms, as Roden J observed in Alla v Gleeson . The statutory device utilised in the 1979 and 1987 amendments was to add words to the definition upon the basis that "inclosed lands" in paragraph (b) "includes" certain places or, as the definition now stands, "including" those places.

67 In my view, the use of this terminology has an expansive operation upon the meaning and extent of the term "inclosed lands" in s.3(1) ILP Act: YZ Finance Company Pty Limited v Cummings [1964] HCA 12; 109 CLR 395 at 398-399, 401-403; Pearce and Geddes , "Statutory Interpretation in Australia" , 6 th edn, LexisNexis, 2006, [6.56]-[6.60]. The word "includes" has been said to have an exhaustive meaning where the context in which it appears indicates an intention to confine a general word by providing a limited list of words: Victims Compensation Fund v Brown [2002] NSWCA 155; 54 NSWLR 668 at 674 [30]. However, the words "includes" or "including" do not indicate an intention to confine the general earlier words in paragraph (b) of the definition but, rather, to expand those words by the use of very general terms, and thus to point to a broad definition of "inclosed lands" . This construction is confirmed by the legislative history, whereby those words were added to the definition in 1979.

68 I am satisfied that the Best & Less premises at Burwood, as revealed by the evidence, fall within the terms of the definition of "inclosed lands" , which extends to the "whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure" .

69 The fact that the Best & Less store lies within a larger multi-storeyed commercial shopping complex does not prevent it from falling within this definition. The Best & Less premises constitute part of the building or structure. They are open during certain parts of the day and closed at other parts of the day. They are private commercial premises. The boundaries of the Best & Less premises at Burwood are clearly delineated by the doorway to the premises and the internal walls which surround the premises. The fact that members of the public may enter the premises for the purposes of perusing merchandise and shopping does not prevent the premises being "inclosed lands" for the purposes of s.3(1) ILP Act.

70 Whether members of the public are allowed access to premises does not, in my view, bear upon the question of the status of the premises as "inclosed lands". As a matter of law, the subject premises are capable of falling within the statutory definition.

71 Of course, it may be that the application of s.4 ILP Act to "inclosed lands" such as this is confined, in a practical way, to two scenarios.

72 Firstly, the offence of entering into inclosed lands may be confined, in practice, to persons who have been expressly prohibited from entering the premises, because otherwise a member of the public will be able to demonstrate a lawful excuse for entering the premises as a shopper.

73 Secondly, a member of the public who has entered the inclosed lands as a shopper may commit the second type of offence under s.4(1) by remaining on those lands, after being requested to leave. Such a scenario may arise if the person is requested to leave the retail premises for any reason and remains on those lands, refusing to leave. The second scenario would arise where there is an event giving rise to an ad hoc request to leave, with the person refusing to leave.

74 In my view, both of these scenarios are open and available within the terms of the ILP Act. Whether an offence is committed will, of course, depend upon the facts of the particular case. However, for the purpose of assessing whether a prima facie case exists, either of these scenarios would involve a prima facie case by reference to all elements including the status of the premises as "inclosed lands" .

75 I am satisfied that the Magistrate erred in law in this case in his construction and application of the definition of "inclosed lands" in the ILP Act.

Remittal of Proceedings

76 In the event that the Court determined that the Magistrate had erred in law, the Plaintiff submitted that the order of dismissal should be set aside and the matter remitted to the Local Court to be determined according to law.

77 The Defendant submitted that the Court should, in the exercise of discretion, decline to remit the matter having regard to the availability only of a monetary penalty and what he submitted was the likelihood of an order under s.10 Crimes (Sentencing Procedure) Act 1999 if the offence was found proved, and also his impecunious state.

78 I have found that the Magistrate erred in law in his conclusion that there was no prima facie case and that the proceedings ought be dismissed. I consider that the appropriate course is to remit the matter to the Local Court to enable that Court, as the trial Court, to hear and determine the matter according to law. Such an approach is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: Director of Public Prosecutions v Belani [2005] NSWSC 1013; 64 NSWLR 319 at 333 [68].

79 It will be a matter for the Local Court, at the remitted hearing, to determine the matters and to conclude whether the Defendant is guilty of the offence charged. In the event that the offence is found proved, the question of penalty will be a matter for the Local Court. In the circumstances of the case, it could not be assumed that the matter would be dealt with by way of an order under s.10 Crimes (Sentencing Procedure) Act 1999 although that, of course, remains a matter for the Magistrate if the offence is proved.

Costs

80 Ms Webster submitted that, in the event that the appeal succeeded, the Defendant ought be ordered to pay the Plaintiff's costs of the proceedings, but that it would be appropriate, in the circumstances of the case, to grant a certificate under the Suitors' Fund Act 1951 .

81 The Defendant submitted that he is impecunious and that no order for costs should be made.

82 The ordinary rule is that costs should follow the event. The Defendant has appeared in this Court to unsuccessfully oppose the claim for relief by the Plaintiff. Although the Defendant did not advance the submission to the Magistrate which has led to the erroneous conclusion, he has submitted in this Court that the decision of the Magistrate was correct. I have not accepted the Defendant's submissions on the appeal.

83 In all the circumstances, I consider that it is appropriate that costs follow the event and that the Defendant be ordered to pay the Plaintiff's costs of the proceedings, but that he be granted a certificate under the Suitors' Fund Act 1951 .

Orders

84 I make the following orders:

(a) pursuant to s.59(2) Crimes (Appeal and Review) Act 2001 , I set aside the order made at the Burwood Local Court on 10 June 2010 dismissing proceedings against the Defendant under s.4(1)(b) Inclosed Lands Protection Act 1901 ;

(b) the proceedings are remitted to the Burwood Local Court to be dealt with according to law;

(c) the Defendant is to pay the Plaintiff's costs of and incidental to the Summons;

(d) I grant to the Defendant a certificate under s.6 Suitors' Fund Act 1951 .

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Decision last updated: 11 April 2011