The Local Court Hearing
6The 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 .
7The 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.
8The evidence adduced in the Local Court revealed what follows.
9On 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.
10The 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.
11The 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.
12Under 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."
13On 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.
14Constable 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).
15The 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.
16After 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."
17After 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?"
18Although 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."
19It 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.
20The 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.
21The 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."