Howard v Senior Constable Risteski

Judgment 1On 6 March 2012, Mr Peter Michael Howard (the plaintiff) was convicted under s 4(1)(b) of the Inclosed Lands Protection Act 1901 ("the ILP Act") of the offence of remaining on inclosed lands after being requested to leave and a fine of $200 was imposed on him. Pursuant to Pt 5, s 52 of the Crimes (Appeal and Review) Act 2011, Mr Howard now seeks orders in this court setting aside that conviction on grounds that his Honour Magistrate I Cheetham, erred in law in holding that, at the relevant time, Mr Howard was situated on inclosed lands within the meaning of the ILP Act. 2At the time of the incident on 1 August 2011, Mr Howard had climbed onto a fig tree situated on the footpath of Laman Street, Cooks Hill. From 19 July 2011, barricades had been erected by the Newcastle City Council ("the Council") across the section of Laman Street between Darby and Dawson Streets, and fencing had been erected over the relevant section of Civic Park (Crown land) surrounding a group of fig trees (one of which was the one Mr Howard had climbed onto). It is accepted by the plaintiff that the barricades across Laman Street at the Darby and Dawson Streets intersections and the fencing were lawfully erected, and accepted by the defendant that the tree growing on the footpath can be said to be part of a road. 3The broad issue raised by the appeal is whether or not s 3(2) of the ILP Act applies to exclude the operation of s 4 to that portion of Laman Street in which Mr Howard was located when he refused to leave the site at the request of a council officer ("the Incident Location"). 4I set out the factual findings made in the Court below and accepted before me to be correct: "Firstly, Newcastle City Council lawfully erected a barrier bounded generally by part of Laman Street and part of Civic Park. Secondly, on 1 August 2011 [the plaintiff] was sitting in a large tree growing on the footpath of Laman Street within the area from which persons had been excluded by the erection of a barrier. Thirdly, [the plaintiff] was lawfully directed to come down from the tree and he refused. Fourthly, Laman Street is a public road under the control of Newcastle City Council. Fifthly, Civic Park is Crown land under the management of Newcastle City Council. Sixthly, the barrier which had been erected was temporary fencing creating a compound which included part of Laman Street and part of the park known as Civic Park. Seventhly, the parts of the land enclosed by the fencing were the adjoining or abutting street and park. The tree was on the footpath of the street. Eighthly, the barriers meant that part of Laman Street was at that time not available to the public for thoroughfare. And lastly, Laman Street is a public road under the Roads Act 1993." 5The relevant sections of the ILP Act provide as follows: "3 Definitions (1) In this Act: 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. Road means any land proclaimed, dedicated, resumed or otherwise provided as a public thoroughfare or way or any land defined, reserved or left as a road in any subdivision of lands. (2) Where a road is lawfully inclosed with the lands of any person, those lands, but not the road, shall be deemed for the purposes of this Act to be the inclosed lands of the person. 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." (emphasis added) 6I also set out four other legislative provisions to which reference will be made: Roads Act 1993 Dictionary public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. road includes: (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road. 5 Right of passage along public road by members of the public (1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road. (1A) The right conferred by this section extends to the right of passage of members of the public in a light rail or other railway vehicle. (2) The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law. (3) For example, those rights are subject to such restrictions as are imposed: (a) by or under the road transport legislation within the meaning of the Road Transport (General) Act 2005, or (b) by or under section 72 of the Crown Lands Act 1989 (Cultivation of enclosed roads). 115 Roads authority may regulate traffic in connection with road work etc (1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road. (2) The power conferred by this section may be exercised by [Roads and Maritime Services] for any purpose but may not be exercised by any other roads authority otherwise than: (a) for the purpose of enabling the roads authority to exercise its functions under this Act with respect to the carrying out of road work or other work on a public road, or (b) for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or (c) for the purpose of protecting earth roads from damage caused by heavy vehicles or by animals, or (d) for the purpose of protecting members of the public from any hazards on the public road, or (e)for the purpose of protecting vehicles and other property on the public road from damage, or (f) for the purpose of enabling a public road to be used for an activity in respect of which a permit is in force under Division 4 of Part 9, or (g) for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic. (4) A person: (a) must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and (b) must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section. Maximum penalty: 10 penalty units. Interpretation Act 1987 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 7The Magistrate held that s 3(2) of the ILP Act did not apply to the Incident Location because that section of the road was not available to the public as a thoroughfare as a result of the fencing and barricades erected by the Council. 8A plan of the incident area (Exhibit A) depicts, in a dark line consisting of dots and dashes, the fencing erected; the barriers erected at the two ends of Laman Street are also clearly depicted. There is no fence erected between the northern perimeter of Laman Street and Civic Park. As a practical matter, there was no need to erect such a fence because there was a fence erected further north on the boundary of Civic Park. There was therefore an almost rectangular-shaped area surrounded on all sides by fencing and barricades with gate access controlled by the Council. Within the rectangle was that portion of Laman Street next to which was located the tree in question. All of the lands within the rectangle, including Laman Street, were managed or under the control of the Council. 9Mr C L Fraser of counsel appears for the plaintiff. The plaintiff contends that by reason of the definition of "road" in s 3 of the ILP Act, s 3(2) applies to prevent s 4 from applying to Laman Street in the circumstances. 10The plaintiff accepts that if s 3(2) does not apply, then his appeal must fail. 11Mr Fraser accepted that, had there been a fence erected on the northern side of Laman street, Laman Street would have been inclosed lands for the purposes of the ILP Act, but he submits that the absence of such a fence means that the Incident Location was not within "inclosed lands" as that term is defined in the ILP Act. Neither the public road nor the community land was, he submitted, "in respect of themselves inclosed". He also accepted that a road which has been proclaimed, dedicated, resumed or otherwise provided as a public thoroughfare can cease to have that character. The Roads Act by ss 33 - 42 contains provisions by which the status of "public road" can be lost or altered. He accepts also that by s 115 of the Roads Act, the Council, as a road authority, was permitted to effect a temporary closure of the road. His point is, however, that what was done pursuant to s 115 of the Roads Act, although lawful, did not preclude the road from continuing to be a road for the purposes of s 3(2) of the ILP Act and hence the road on which Mr Howard was located when asked to leave was expressly excluded from the definition of inclosed lands. 12In pars 27 - 29 of his submissions, Mr Fraser contended that land otherwise provided as a public thoroughfare should be read as a discrete alternative from land "proclaimed, dedicated or resumed" as a public thoroughfare, in the definition of "road" in s 3(1) of the ILP Act, and that the learned Magistrate erred in focusing attention only on the phrase "provided as a public thoroughfare". 13The defendant's case is that: (1)as at the date of the incident, Laman Street had been closed off and lawfully closed off pursuant to s 115 of the Roads Act; (2)by virtue of the lawful closure of Laman Street, Laman Street between Darby and Dawson Streets was not a public thoroughfare; (3)because it was not a public thoroughfare, it did not at the date of the incident meet the definition of "road" in s 3(1) of the ILP Act; and hence (4)s 3(2) of the ILP Act did not apply; (5)since s 3(2) did not apply, s 4 was not subject to any carve-out for Laman Street and therefore Mr Howard was in breach of the ILP Act because, having been asked to leave the land by a duly authorised officer of the Council, he remained on the land. 14The defendant does not challenge the contention that Laman Street was recognised as a public road and that, by virtue of s 5 of the Roads Act, it was a public thoroughfare within the meaning of the ILP Act up until the time of its closure, but relies on the fact that the status of roads within the Council's area is now exclusively governed by the Roads Act and that the road is only provided as a public thoroughfare subject to the qualifications imposed by the Roads Act. If the Roads Act permits closure (as it does and which has occurred in this case), then the defendant submits that Laman Street was not a public thoroughfare at the relevant time and therefore not a "road" within the meaning of s 3 of the ILP Act. 15The defendant also points out that even if it were necessary to trace back to the original dedication of Laman Street, it has done so and that dedication was also expressed to be "subject to all such and the like regulations, orders, powers, authorities and provisions to which land used as a public thoroughfare now or is hereafter shall be subject by law": see s 47 of the Towns Police Act (1838) 2 Vic No 2 (repealed). The defendant contends that on this approach the same result obtains, namely that the road when closed to public access is not a road for the purposes of s 3(2) of the ILP Act. 16The defendant contended that a road can be lawfully inclosed in the manner which Laman Street had been inclosed. 17The critical questions then are: (1)Did the fact that Laman Street ceased to be a public thoroughfare when closed pursuant to s 115 of the Roads Act mean that at the time of the incident it was not land proclaimed, dedicated, resumed or otherwise provided as a public thoroughfare? (2)Does the fact that Laman Street had no fence on its northern perimeter prevent it from being inclosed lands? 18I should note that both parties relied on a passage in the judgment of Allsop P in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12]: "However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, [as] a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect." 19Mr Fraser (and Ms B K Baker, solicitor-advocate appearing for the defendant) also referred to what was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]: "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (For example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v The Queen (1994) 179 CLR 427 at 437.) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out (3rd ed (1997) at 343-344): "The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)" and see also ss 33 of the Interpretation Act 1897 (set out at par [6] above). 20The history of the legislation is helpfully summarised by Johnson J in Director of Public Prosecutions (NSW) v Strang [2011] NSWSC 259 ("Strang") at [40]. The ILP Act commenced in a rural and agricultural context but it is clear that it applies to both rural and urban lands, and by amendment in 1979 and 1987 the definition of "inclosed lands" was extended. At [52] of his Honour's judgment, Johnson J comments "that the terms of ss 3 and 4 of the ILP Act are capable of extending to a variety of lands is apparent from the range of locations to which prosecutions have applied since 1979" and his Honour then recites examples of its application. In Strang it was held that the ILP Act included commercial and retail premises within a larger retail shopping centre and applied even to premises open to the public. 21It is clear from Strang at [52] - [64] and [70], and see Colonial Sugar Refining Co Ltd v Pedley [1911] St R Qd 255, that the delineations of land in the ILP Act and analogous legislation are not restricted literally to a fence. 22I regard the central purpose of the ILP Act as to prevent persons from entering onto land to which they have no right to enter and requiring them to leave that land when requested to do so by the owner of the land or person having relevant authority over the land (and also, but with no relevance to this case, to refrain from offensive conduct (s 5) after being asked to leave). Section 4 creates two offences (see Strang at [51]): one of entering into inclosed lands without lawful excuse and one of remaining upon such land without lawful excuse when asked to leave, so that even if a person may have a right to enter, he will commit an offence if, having been asked to leave, he does not do so. Mr Fraser and Ms Baker both made reference to the Second Reading Speech of Sir Henry Manning at the time of the introduction of s 3(2) in 1939 in which he said: "In the second place the [Inclosed Lands Protection (Amendment) Bill] deals with the case where a road is inclosed with a property. The object of the amendment is to make the boundary of the property the boundary, not the road itself. Therefore a person would be entitled to go within the fence for the purpose of making use of the road." (New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 August 1939 at 5877) Ms Baker submitted that "the clear intent of s 3(2) of the ILP Act was to ensure that the public had unimpeded rights of passage along public thoroughfares, even where the land surrounding the public thoroughfare was enclosed. There can be no purpose in the ILP Act carving out an exemption for land which cannot lawfully be used as a public thoroughfare." Mr Fraser did not advance a purpose of ss 3(2) or 4 that would be promoted by the construction for which the plaintiff contends. 23In my view, s 3(2) of the ILP Act did not apply to the Incident Location and for the following reasons: (1)I have made reference to what I take to be the central purpose of the ILP Act. The purpose of s 3(2) is to ensure that a person does not infringe the Act by entering on (or remaining on) a public thoroughfare which is inclosed on all sides by a fence, gate or other delineations and to make it clear that entry upon the land adjacent to the road, except in the specified circumstances in s 4, will constitute an infringement. That is the "mischief" to which s 3(2) is directed. The subsection and the definition appear to me to proceed upon the assumption that the reason that the person is on the inclosed land (that is, the road) is that they are making use of it, and are entitled so to do, as a public thoroughfare. Section 115(4) of the Roads Act prohibits a person from passing along or driving a vehicle along the barricaded area - there is no reason to treat a road that has been closed to the public as a public thoroughfare for the purposes of the ILP Act. (2)Although "public road" is defined in the Roads Act, its meaning is not identical with "road" as defined in s 3(1) of the ILP Act. The word "road", by the dictionary in the Roads Act, includes airspace and the soil and bridges and tunnels and similar features, but it is not otherwise defined. There is no inconsistency in holding that Laman Street did not lose its status as a public road for the purposes of the Roads Act but did lose its status as a road for the purposes of the ILP Act. (3)I can see no warrant for requiring permanent closure of a road pursuant to the Roads Act before s 3(2) is excluded. Mr Fraser's concession that, had an additional fence been installed on the northern side of Laman Street, it would have been inclosed land, is inconsistent with his contention that permanent closure under the Roads Act is required for s 3(2) to cease to be relevant. (4)The notion that the Council should have to erect a fence on the northern perimeter of Laman Street to avail itself of the protection of the ILP Act demonstrates the unrealistic view of the legislation which is advanced on behalf of the plaintiff. Once it is conceded, as it is, that Laman Street was lawfully closed, its status as a road, which a person could enter (and not be required to leave) was removed. (5)The plaintiff's argument that the road itself must be fenced on all sides seeks to impose a requirement which is not found in the legislation. Once it is determined that a road is not a road as defined in s 3(2), the only question is whether the road is part of an area of inclosed lands. The road in question here is clearly part of inclosed lands by virtue of the fence to the north of Laman Street, in conjunction with the other sides of the rectangular area. The Council was in charge of all the land within the inclosed area, including Laman Street. (6)It is possible to read the definition of "land proclaimed" or "dedicated" as a public thoroughfare literally to mean that once a road has been proclaimed or dedicated as a public thoroughfare, it remains a road for the purposes of the ILP Act. Mr Fraser's acceptance that a road proclaimed, dedicated or resumed as a public thoroughfare can cease to have the character of a road, if the processes in ss 32 - 40 of the Roads Act are complied with, I think recognises that an interpretation which treats the status of land so proclaimed or declared as fixed or immutable is not correct. Conclusion 24It follows that, in my view, the learned Magistrate's conclusion was correct in law and the appeal should be dismissed and conviction and penalty confirmed. 25The defendant does not seek costs so there will be no order as to costs.