FCT v Reynolds (1987) 77 ALR 543

McGinty v Webb, unreported; SCt of WA; Library No 8606; 27 November 1990

Molina v Zaknich [2000] WASCA 390; (2000) 117 A Crim R 346

Molina v Zaknich [2001] WASCA 337

1 WHITE AUJ: This is an appeal against the appellant's conviction on 2 January 2002 in the Court of Petty Sessions at Busselton on a charge of contravening s 82B(1)(b) of the Police Act.

(1) A person shall not, without lawful authority, remain on any premises, after being warned to leave those premises -

(a) ...

(b) in the case of premises other than premises occupied by the Crown or a public authority ... by a member of the Police Force.

'premises' includes any land, building, structure or any part thereof;

"On the 26th day of November 2001 at Nannup Jessica Mary BECKERLING without lawful authority remained on premises situated at Barrabup State Forest after being warned to leave those premises by one Senior Constable Kingma, a member of the Western Australian Police Force."

4 The appellant had, prior to the trial, requested further particulars of the premises the subject of the charge and the prosecutor had furnished a statement of material facts which contained, inter alia, the following passages:

"On Monday the 26th of November 2001, as a result of a telephone complaint, Police attended at the Barragup Forest Logging Coupe arriving at about 07:30 am.

The logging coupe was being harvested by B E & D M Wilson (logging contractors) ...

The Defendant was in a group of Forest Protestors who had been requested to leave the work site at the coupe by a Wilson's employee and an Officer of the forests Products Commission, prior to Police attendance.

Upon Police arrival the Defendant was and her associates were told by Police to leave the work site before Police returned with other police Officers otherwise they would be arrested

Police later reattended [sic] shortly after 10.00 am and the defendant was still on the work site. ... "

5 A reading of that statement with the charge indicates that the "premises" to which the charge related were the work site of B E & D M Wilson located in (and probably co-extensive with) the Barrabup Forest Logging Coupe located within the Barrabup State Forest. That was the position as stated by the prosecutor at the trial, where he said (AB15):

"I think it's a matter of evidence that the particulars have been provided, the premises are situated at the forest, they're not the forest itself, they are a work site within a logging coup in the forest."

6 Upon resumption of the hearing, counsel for the appellant at the trial said:

"Your Worship, I need the premises to be defined more clearly than they presently are; that simply the work site isn't sufficient definition of what the premises are and I invite the prosecution to clearly define the premises that are the subject of this charge."

"The learned magistrate erred in law and/or found against the weight of the evidence in finding the applicant guilty of without lawful authority remaining on premises by a member of the Police Force (S 82B (1)(b) Police Act) in that:

(a) he failed to order the prosecutor to adequately identify the alleged premises at the commencement of the proceedings;

(b) found that the alleged premises constituted an area of 1600 hectares which in all the circumstances unreasonable and oppressive to the applicant;

(c) wrongly found that an area of 1600 hectares of unmarked State Forest constituted premises within the meaning of S 82B of the Police Act;

(d) wrongly found that the Applicant had been shown a map of the alleged premises prior to the commission of the alleged offence;

(e) wrongly allowed a witness to refer to a map and wrongly allowed the map to be admitted into evidence;

(f) wrongly found that the alleged premises had been identified to the defendant;

(g) wrongly found that the applicant had been sufficiently warned to leave the premises;

(h) wrongly found that the applicant had sufficient opportunity to leave the premises."

8 The real thrust of the appeal is that the wording of the charge, namely, "premises situated at Barrabup State Forest", provided "insufficient definition of a public place [sic] the subject of the charge to enable the applicant to properly defend the charge."

9 The appellant submitted that the refusal by the learned Magistrate to order that the prosecutor provide "adequate particulars" of the definition of "premises" referred to in the charge is sufficient cause to conclude that there was a mistrial, leading to the quashing of the conviction and the appellant referred to Cochrane v Price [1943] St R Qd 122.

10 The appellant's further written submissions were:

"2. The wording of the charge, i.e., 'premises situated at Barrabup State Forrest [sic]', provided insufficient definition of a public place the subject of the charge to enable the Applicant to properly defend the charge. As Deane J said in Jago v District Court (NSW) (1989) 168 CLR 59:

'Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.'

3. The provision of the particular by the prosecution that: 'The premises are situated at the Barrabup State Forest ... [and] the premises are a work site within the forest' (p 15) was an inadequate particular to provide the Applicant with a proper opportunity to prepare a defence. That is particularly so when it later emerged in evidence that the so-called premises, to which the prosecution was adverting was a work-site compromising a 'coup' (or area of forest), which was defined only by boundaries which were marked on a map which was in the possession of the officers of the Forest Products Commission, 'displayed at the front office of the CALM office' (wherever that may be) and available to the Respondent (pp 17, 19-20, 23, 25, 27, 34, 35-36).

4. In the situation where the prosecution had failed to provide adequate particulars, it was then the duty of the magistrate to order that adequate particulars be given. If an application for particulars is made and refused by the prosecution and the Magistrate, no matter how strong the evidence might have proved, any conviction would be set aside on appeal: Cochran v Price [1943] St R Qd 122, per Webb CJ at 125.

5. Counsel for the Appellant at the commencement of the trial (p 17) sought particulars as to the definition of the premises, which defined them more clearly than they had been defined by the particular given, i.e., 'a work site within the Barrabup State Forest'. The Magistrate ruled that the definition given was a clear definition, and effectively refused the application for particulars.

6. An accused person has a right to apply for particulars, which goes beyond the description of the offence in accordance with the statutory provision upon which it is based. The accused also has a right to have that application considered according to the rules dealing with the exercise of a judicial discretion: Cochran v Price [1943] St R Qd 122, per Philp J at 129. In this case, as in Cochran's case, there was no ground for the refusal of the application for particulars.

7. It cannot be said what would have been the evidence if the defendant had not been deprived of her primary right to particulars, so it cannot be said that no substantial miscarriage of justice occurred. The conviction should be quashed upon the ground that there has been no trial according to the form of law: Cochran v Price [1943] St R Qd 122, per Philp J at 130; see also Lafitte v Samuels (1972) 3 SASR 1 per Bray CJ at 8-9, Mitchell J at 13-14, Zelling J at 16-17 and 20; Romeyko v Samuels [1972] 2 SASR 529; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Evatt J at 498.

8. In order for an offence to be committed which includes an element of remaining on premises, the premises in question must be clearly defined. Premises can only be such if they are 'specific and tangible', rather than 'notional or metaphorical': see Hasluck J in Molina v Zaknich [2000] WASCA 390; (2000) 117 A Crim R 346 at 355. As a matter of fundamental principle, before criminal responsibility could be attached to the fact of a person remaining in a particular place, it must be objectively possible for that person to be aware of the tangible and specific definition of the dimensions of the premises upon which it is alleged that person is remaining. In Molina v Zaknich Hasluck J said 'it was clear to anyone approaching the BGC site that it was a particular and defined area because there was cyclone fencing all around it' and it was 'clear from the evidence that the only area designated as a site or capable of being regarded as "the" premises was a fenced area occupied by BGC Constructions'. Similarly, in McGinty v Webb, unreported decision Nicholson J, 27 November 1990, SCWA Library No 8606, the Old Swan Brewery site was obviously defined by fencing and the natural features of the Swan River, Mt Eliza and Mounts Bay Road. By contrast, in the present case, the area, which the charge purported to include within the concept of premises, was an area delineated upon a map comprising 1600 hectares (Exhibit A) (pp 19, 27). That is a definition of premises which lacks the element of tangibility which must be present to attract the criminal liability contemplated by the offence created by section 82B of the Police Act.

9. The offence of remaining on premises can only occur following a warning to leave particular defined premises. In order for such warning to be complete it must convey to the offender sufficient information for the offender to know what the premises are which the offender must leave. In order for the Applicant to have had the requisite knowledge, it would have been necessary for her to have inspected the map which defined the area alleged to be the premises.

10. There was insufficient evidence upon which the Magistrate could reasonably conclude that the Applicant inspected the map, or otherwise acquired the requisite knowledge, for there to have been a warning given to her sufficient to satisfy that prerequisite to the commission of the offence. Mr Mammone's evidence (pp 28-29) is insufficient to support a conclusion that the Applicant was aware of the content of the map. The evidence of Constable Kingma (p 34) was that the map was shown to Lauren Caulfield and Simon Pettifry and that 3 or 4 other people, whom he could not identify, were in close proximity who would have been able to see that the map had been pulled out and an area was being pointed to. That evidence was insufficient for the Magistrate to conclude (p 41, para 4) that he was satisfied beyond reasonable doubt that the Applicant was 'within audible range of Constable Kingma at the time ... that he was describing' the area which comprised the premises the subject of the warning. Further, even assuming that the Applicant was within audible range of Constable Kingma, it would have been necessary for a person to not only hear what was being said, but also to inspect the map which was being referred to, in order to acquire the necessary knowledge of the area which Constable Kingma was describing to Lauren Caulfield and Simon Pettifry."

11 In the course of his evidence, Mr Mamone, a forest officer with the Forest Products Commission, described (AB20) the "Barrabup Harvesting Coup" as situated in the south sou'east corner of the Barrabup State Forest, bounded by Mowen and the Vasse Highway.

12 The evidence shows that at the material time, the appellant was present at the work site in question as a member of a group of protestors who were concerned to interfere with the operations of the logging contractors at that work site.

13 There is an air of unreality about the appellant's complaints of the definition of the "premises" in respect of which the appellant was charged. The appellant was well aware of the location of the work site in question as she had gone there as a member of a group of protestors seeking to disrupt the logging operations. In the circumstances that there was an area in which logging machines were operated, the term "work site" would, in my opinion, have a clear meaning. There is no reason to suppose that the appellant was in any doubt as to the premises to which the warning related. The police had available a map showing the relevant area and permitted any persons there who wished to do so to look at the map.

14 Senior Constable Kingma said in evidence at AB 32:

" ... I went to where the protesters were, in a set area where there was a harvesting - - harvesting machine and a machine they call a skidder. I observed about 20 persons there. There was one young girl on top of a - - the boom of a harvesting machine. There was another girl underneath the skidder, locked on. And there was a male person suspended on a bed about 12 metres, between the trees and the rest of them were just sitting around. A couple were walking around. A few were sitting around I identified a person, Lauren Caulfield. She approached me. I had a discussion with her. I then turned to the bulk of the group of which I saw Jessica Beckerling amongst that group.

Was Jessica known to you at that time? --- Yes, she was.

How many previous occasions have you seen or had dealings with her? --- I've had probably at least three or four other dealings with Jessica.

Okay. So you say you turned and addressed the group, of which Jessica was one? --- Jessie was amongst that group, yes. And I said in a loud, clear voice, that they were all in a work site and that they were required to leave the area. I advised them that I had extra police coming from Manjimup and when those officers arrived, whoever was left in the work site would be - - well I said 'Locked up', but they would be arrested. I then left the area and waited for the other officers to arrive."

15 Under cross-examination, Senior Constable Kingma identified the area of the work site as being the whole of the Barrabup logging coup, which is bounded by Mowen Road, St John's Brook and Vasse Highway.

16 Mr Rattigan, of counsel for the appellant at the trial submitted at the close of the case for the prosecution that there was no case to answer. That submission was rejected and the appellant chose to give no evidence at the trial and to make no submissions in answer to the prosecution.

17 In reply to the appellant's submissions, the respondent contended that the prosecution had supplied to the appellant prior to the trial, further particulars in the form of the statement of material facts to which I have referred above. On that basis, the respondent contended that the decisions in Cochrane v Price (supra), Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Lafitte v Samuels [1972] 3 SASR 1, Romeyko v Samuels [1972] 2 SASR 529 and Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 either do not apply or are to be distinguished. I would uphold this submission. In my opinion, the particulars sought were adequately provided by the prosecution in the statement of material facts.

18 In relation to the specific grounds of appeal, I would comment as follows.

19 Ground (a): The learned Magistrate declined to direct the prosecution to add to the description of the premises already provided. In my opinion, his Worship was right in so doing. The description of the work site which the appellant was asked to leave was quite clear and, in my judgment, left no room for genuine doubt.

20 Grounds (b) and (c): These grounds were not pursued.

21 Grounds (d), (e), (f) and (g): The appellant submitted that:

"10. There was insufficient evidence upon which the Magistrate could reasonably conclude that the Applicant inspected the map, or otherwise acquired the requisite knowledge, for there to have been a warning given to her sufficient to satisfy that prerequisite to the commission of the offence. Mr Mammone's evidence (pp 28-29) is insufficient to support a conclusion that the Applicant was aware of the content of the map. The evidence of Constable Kingma (p 34) was that the map was shown to Lauren Caulfield and Simon Pettifry and that 3 or 4 other people, whom he could not identify, were in close proximity who would have been able to see that the map had been pulled out and an area was being pointed to. That evidence was insufficient for the Magistrate to conclude (p 41, para 4) that he was satisfied beyond reasonable doubt that the Applicant was 'within audible range of Constable Kingma at the time ... that he was describing' the area which comprised the premises the subject of the warning. Further, even assuming that the Applicant was within audible range of Constable Kingma, it would have been necessary for a person to not only hear what was being said, but also to inspect the map which was being referred to, in order to acquire the necessary knowledge of the area which Constable Kingma was describing to Lauren Caulfield and Simon Pettifry."

22 The respondent submitted that it was open on the evidence for the learned Magistrate to find that the appellant had heard the audible description of the boundary. The fact that the appellant chose to exercise her right not to give evidence at the trial made it safer to draw the inference that she heard the words spoken by Senior Constable Kingma describing the area and warning the protesters to leave it. His Worship found that she was at the time within audible range of the officer who was expressly addressing the group of persons of whom she was one. Senior Constable Kingma was not cross-examined so as to suggest that the appellant was not within hearing range of his statements to that group.

23 The evidence was such that the learned Magistrate was entitled to find, as he did, that the appellant was warned to leave the work site and that she failed to do so in contravention of s 82B(1)(b) of the Police Act.

24 Ground (h): No submissions were directed to this ground. The evidence showed that a number of the persons who had been present when Senior Constable Kingma informed the protesters that they were required to leave the work site did in fact do so prior to the arrival of the other police officers. There is nothing to suggest that the appellant did not have a sufficient opportunity to leave the premises and no such proposition was put to the prosecution witnesses.

25 In my judgment, there is no substance in this appeal which must be dismissed.