Court of Appeal (WA)|2000-12-14|Before: Owen J, Hasluck J

Molina v Zaknich [2000] WASCA 390 (14 December 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOLINA -v- ZAKNICH [2000] WASCA 390

Police Act 1892 - Industrial Relations Act 1979 - Union representative's power of entry to a building site - Meaning of "industrial matter" - Meaning of "the premises of an employer" - Meaning of "warned to leave" - Whether "claim of right" defence available pursuant to s 22 of the Criminal Code - Honesty of belief in alleged claim of right - Union representative's entry held to be without lawful authority where occupier of site was not an employer of union members bound by industrial award

Justices Act 1902, s 72, s 199

Police Act 1892, s 82B(1)

Australian Builders Labourers Federation Union of Workers v Heyring 68 WAIG 683

Desmond, Ex parte (1866) 5 SCR (NSW) 387

Pallot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995

RGC Mineral Sands Ltd & Anor v CMETSWU of Australia WA Branch & Ors [2000] WASCA 162

Shaw v Coco (1991) 102 ALR 75

Wiseman v Northen Pacific Railway Company (1943) 7 W 2d 672

1 HASLUCK J: This is an appeal against the decision of Mr Bromfield SM given in a Court of Petty Sessions at Perth on 31 May 2000, whereby the learned Magistrate found the appellant, Walter Vinicio Molina, guilty of the charge of unlawfully remaining on premises. The Supreme Court is required to determine the appeal on the material that was before the learned Magistrate. By s 199 of the Justices Act 1902, the Court has various powers upon the hearing of an appeal, including the power to quash or vary the decision of the Court below, but the Court is not required to quash or vary a decision because of an omission to make any necessary finding if the facts or evidence support the decision below, or justify the finding.

2 Mr Molina was charged by complaint that on 10 August 1999 at Canning Vale Prison without lawful authority he remained on premises, namely, a construction site situated at Canning Vale Prison, after being warned to leave those premises by a person in charge, namely, Steven Edwards, contrary to s 82B(1) of the Police Act 1892.

3 The learned Magistrate found on the evidence presented to him by the prosecution that a company, Homestyle Pty Ltd, trading as BGC Construction, was given the occupancy of the site at Canning Vale Prison at Easter 1999. Possession was retained by BGC until the completion of two accommodation units then being constructed at the prison, the completion occurring in February 2000.

4 Mark Parish, the BGC contract manager, described the situation at the construction site. It was apparent from his evidence that the Ministry of Justice retained control over the whole area and that a pass was required to get into the area. The only access was via the main gates where prison officers employed by the Ministry of Justice carried out security procedures. The BGC transportable site office was situated just inside the site. It seems that the area the subject of the BGC construction work was marked off by a temporary builder's site fence.

5 It was common ground at the hearing that the Building Trades (Construction) Award 1987 applied to employees throughout the State of Western Australia usually employed on construction work in the building and construction industry. Clause 19 of the Award concerned work affected by inclement weather. Clause 40 allowed to a duly accredited representative of a union designated by the award the right to enter any premises where employees were employed at any time during normal working hours for the purpose of interviewing employees, checking on wage rates, award breaches or safety conditions or regulations subject to presenting himself to a representative of site management prior to pursuing union duties on site.

6 The BGC construction manager, Mr Parish, said in evidence that his company did not employ any persons who were subject to the Building Trades (Construction) Award at the BGC construction site. BGC subcontracted all work to building industry subcontractors. Under cross-examination, he agreed that at the material time subcontractors on the site included Perth Rigging Company, Sanwell, G & N Conform, Sheehan Electrical, Uniway Crane and others. He conceded that it was quite likely that people working for these various subcontractors were union members. On his experience of BGC construction sites, if union officials wanted to talk to subcontractor employees, they would generally do so at the site gate.

7 The second prosecution witness, Steven Edwards, was the BGC site supervisor. He confirmed that BGC had a site shed and lunchroom inside the perimeter of the building site fence. He said also that in the vicinity of the Ministry of Justice guardhouse there was a BGC sign requiring visitors to report to the site office and forbidding access to "unauthorised personnel".

8 On the morning of 10 August 1999, Mr Edwards had a call from the gatehouse that a union representative was at the gate. When he met Vinnie Molina at the gatehouse, according to Mr Edwards, Molina asked "if he could come on and see his members and the guys had been working in the rain and it was unsafe conditions and things like that."

9 According to Mr Edwards, he told the union representative he was not allowed to come on site, but arrangements could be made to collect people to come outside and see him outside the gate. However, Mr Molina "continued onto the site" and went to the riggers.

10 Mr Edwards said in evidence that he then went up to Mr Molina and said: "Look, you can't speak to them on site but you can speak to them outside the gate. You're not allowed on site. You know you're not allowed on site but you can quite welcomely go outside the gate and speak to them outside."

11 Mr Edwards said in evidence that his words were ignored. When Mr Molina called the men into the smoko shed, Mr Edwards stuck his head in the door and said: "Look, you can't speak to the guys on site but you must go outside the gate and speak to them." Mr Edwards confirmed in evidence that at this moment in time he was the most senior BGC employee on the construction site. He said in evidence that his site assistant, Muin Qaqish, also told Vinnie Molina that he was not allowed on site and this evidence was affirmed in due course by Mr Qaqish himself.

12 Mr Edwards said that he then felt obliged to make telephone calls to his superior, Mr Martin Goddard, and to the "task force". As a consequence of these calls, a member of the task force, James Zaknich, an industrial inspector appointed under the Industrial Relations Act 1979 (WA), attended the site and approached Mr Molina.

13 Mr Zaknich said in evidence that he made some comments in opening to the effect that BGC was not bound by the award, to which Mr Molina replied: "Yes, I know that but have a look at the site. It's dangerous. There are men working in the rain." Mr Zaknich replied: "Well, there's no one working in the rain at the moment." He then said: "I believe you haven't got any authority to be on this site so I'm asking you to leave." He (Molina) replied: "Okay," or "All right" and agreed to leave. He then left the site.

14 Mr Molina adduced in evidence forms of accreditation in order to establish that he was a duly accredited representative of the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia - Western Australian Branch - for all purposes of the Building Trades (Construction) Award. Contrary to the evidence given by Mr Edwards, he went on to say that he showed his accreditation to Mr Edwards and Mr Qaqish when they "came out" and identified themselves as site supervisors, but "they weren't interested in seeing the card."

15 I pause to say that the Magistrate was satisfied that the defendant did proffer the appropriate accreditation that he was a representative of the union at the relevant time. Having reviewed the evidence bearing upon this point, I agree that such a finding was justified. I note also in passing that, in my view, the evidence was sufficient to justify the Magistrate's finding that Mr Edwards was the person in charge of the site at the time of the alleged offence.

16 Mr Molina said in evidence that he had started visiting the BGC construction site some months earlier on 28 April 1999. He said that during the first visit he introduced himself to the security guard and then went to the BGC office, but nobody was there, so that basically he was allowed on site. He also said in evidence in regard to his visits to the site on some occasions that he was told by Martin Goddard, who was a supervisor, that the union was not allowed on site. He agreed that on those earlier occasions and on 10 August 1999 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.

17 Mr Molina was not prepared to concede that he knew that BGC did not directly employ any persons on the site who were subject to the award or that permission was required to enter the site. His understanding was that there were subcontractors on the site who employed union members covered by the award and in his view he was entitled to go there to attend to an industrial matter pursuant to cl 40 of the award.

18 Mr Molina described the circumstances that brought him to the site. He said that on the morning of 10 August 1999 he received a telephone call from a BLPPU union member who was employed by Parker Concrete, a contractor on the site. According to Mr Molina, the employee "complained about all the workers been working in the rain and also he said that there were several safety problems on site."

19 Mr Molina was aware of cl 19 which, in essence, precluded employees from working in the rain, so he went to the site where he asked Mr Edwards and Mr Qaqish (who by that time had identified themselves as site supervisors) why people were working in the rain. According to Mr Molina, they replied that nobody was working in the rain. Mr Molina's evidence-in-chief continued to this effect:

"Then I say, 'Look, I receive a phone call.' I refused to identify the caller for obvious reasons and I invited them to walk the site with me and they say, 'Look, you are not welcome here. The union is not welcome here,' so I decide to walk in."

20 Mr Molina went on to say that he saw some workers securing a heavy concrete panel being lifted by a crane in pouring rain, so he called them into the shed and began talking with them. On his evidence, there were various workers in the shed, including workers from Perth Rigging, G & N Conform, Sheehan Electrical and the employee from Parker Concrete who had made the initial call. They were all union members. After listening to the workers' concerns on safety, he decided to walk the site for himself, and it was at that stage that he saw Martin Goddard who he knew to be a supervisor on site. Mr Molina raised safety issues with Mr Zaknich when he arrived. As far as Mr Molina was concerned, he had been invited to the site by a union member to deal with industrial matters.

21 In regard to his encounter with Mr Zaknich, Mr Molina said this in evidence:

"Well, he said, 'Vinnie, why haven't you left? You know you're trespassing and BGC doesn't employ anybody,' and when he mentioned trespassing and he ask me to leave I left immediately. I jump in my car and I left."

22 In the course of his evidence, Mr Molina agreed that he saw Mr Edwards twice: first upon his arrival on site when he was told by Mr Edwards that it was a non-union site and added, "You're not welcome here"; second, at the shed when, according to Mr Molina, "He mentioned something like, 'you're not welcome here'." He agreed under cross-examination that Mr Qaqish said, "You're not welcome here", but to him (Mr Molina) "that wasn't a warning". He also agreed that Mr Edwards put his head in the lunchroom door whereupon, on Mr Molina's account, this exchange occurred:

" ... he show up because Muin was against the door, I was next to him and just he says, 'Hey, Vinnie, I called the police and the task force.' That's when I have to tell Muin, 'That's good. I'm waiting for them'."

23 I pause to note that in his reasons for decision the learned Magistrate was of the view that the defendant did remain on the site after the discussions with Edwards, the person in charge of the site. In the learned Magistrate's view, the exchanges that took place between Edwards and the defendant amounted to a direction by Edwards to the defendant that he should leave. Mr Molina persisted in remaining until the conversation took place with Mr Zaknich, whereupon he left.

24 The Magistrate found that Mr Molina was brought to the site by a complaint regarding safety issues involving working in the rain whilst operating heavy lifting equipment. It is apparent, however, from the transcript that there was also evidence before the Magistrate of the kind I have touched on earlier that, in addition to the safety issue, there was an issue concerning the inclement weather clause of the award.

25 The principal objects of the Industrial Relations Act 1979 are set out in s 6 and include to provide means for preventing industrial disputes and to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes. By s 7, an industrial matter means any matter affecting or relating to the work, privileges, rights, or duties of employers or employees in any industry and, without limiting the generality of that meaning, includes any matter relating to the conditions of employment and the privileges, rights, or duties of any officer or member of any organisation in or in respect of any industry. By s 7(3), a matter that is within the jurisdiction of a safety and health Magistrate is not an industrial matter.

26 Section 23 deals with the jurisdiction of the Industrial Relations Commission. By s 23(3)(c)(iii), the Commission, in the exercise of its jurisdiction, shall not make an award or order empowering a representative of an organisation to enter any part of the premises of an employer unless the employer is the employer, or former employer, of a member of the organisation. The preceding subparagraphs reflect other limitations concerning premises comprising the employer's household or a private home.

27 Section 49AB(1) provides that where an award, order or industrial agreement empowers a representative of an organisation to enter the premises of the employer or former employer of a member of the organisation, that power may only be exercised by the representative for the purpose of dealing with an industrial matter involving that member. Following provisions allow for the representative to make a declaration to be given to the registrar and to the employer that the representative intends to exercise the power of entry. An employer is at liberty to apply to the Commission to determine any question as to whether premises may be entered.

28 It is apparent from these provisions that the power of entry is subject to various limitations. I note also that the power of entry is in respect of "the premises of the employer". There is no reference to a power of entry in respect of a site or an area where the employer is working. The premises must be the premises "of" the employer. There is no definition of "premises" in the Industrial Relations Act.

29 Clause 40 of the Building Trades (Construction) Award is preceded by the heading "Right of Entry". The clause reads as follows:

"Consistent with the terms in the Labour Relations Legislation Amendment Act 1997 and section 23(3) (c) (iii) of the Industrial Relations Act, a representative of the union shall not exercise the rights under this clause with respect to entering any part of the premises of the employer unless the employer is the employer or former employer of a member of the Union.

Subject to the foregoing:

Building Trades (Goldmining Industry) Award. No. 29 & 32 of 1965 & 4 of 1996 Vary Award:

The secretary or any other duly accredited representative of the union shall have the right to enter any place or any premises where employees are employed at any time during normal working hours or when overtime is being worked, for the purpose of interviewing employees, checking on wage rates, award breaches or safety conditions or regulations so long as they do not unduly interfere with the work being performed by an employee during working time and provided that they present themselves with their authority as prescribed by this award to a representative of site management prior to pursuing their union duties on site.

A representative of the union shall be a duly accredited representative if he/she is the holder for the time being of a certificate signed by the secretary of that organisation and bearing the seal of that organisation in the following form or in a form not materially differing therefrom."

30 It follows from earlier discussion that Mr Molina, as an accredited representative of a prescribed union, claimed to be lawfully on the premises under and by virtue of cl 40 for the purpose of attending to industrial matters, being an issue arising under cl 19 of the award concerning inclement weather and an issue concerning safety.

31 I have already noted that s 7(3) of the Industrial Relations Act adds an important qualification to the definition of industrial matter that might otherwise apply. Section 7(3) provides that a matter that is within the jurisdiction of a safety and health Magistrate under the Occupational Safety and Health Act 1984 or the Mines Safety and Inspection Act 1994 is not an industrial matter for the purposes of either of the definitions of industrial matter contained in s 7(1).

32 It was common ground at the hearing before me that the effect of this provision in the circumstances of the present case was to override any possible reliance by Mr Molina upon the apparent entitlement in cl 40 for an accredited representative to enter premises for the purpose of reviewing "safety conditions". Accordingly, an important determination has to be made in the circumstances of the present case as to whether Mr Molina came to and was on the BGC site for the purpose of inquiring into a possible breach of cl 19 concerning inclement weather. I will return to this issue in a moment.

33 The powers of entry and the entitlement to remain upon premises allowed to a union representative by the Industrial Relations Act 1979 and industrial agreements or awards made thereunder must be considered in conjunction with s 82B of the Police Act 1892, being the provision giving rise to the charge brought against Mr Molina in the present case.

34 Section 82B(1), which was enacted in its present form in 1980, creates an offence of unlawfully remaining on premises and reads as follows:

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

(a) in the case of premises occupied by the Crown or a public authority, by a person in charge of the premises or by a member of the Police Force;

(b) in the case of premises other than premises occupied by the Crown or a public authority, by the owner or a person in charge or occupation of the said premises or by a member of the Police Force."

35 One finds in s 82B(2) that a person who warns some other person to leave premises may, at the same time as he gives the warning, indicate to such a person that part of the premises which the person concerned is required to leave and in any such circumstances the part of the premises so indicated shall constitute the premises for the purposes of that subsection. By s 82B(3), a person shall not, without lawful authority, prevent, obstruct or hinder any lawful activity which is being, or is about to be, carried on upon any premises. The term "premises" is defined to include any land, building, structure, or any part thereof.

36 I digress briefly to note that the issue of "without lawful authority" is a matter that was specifically averred in the complaint brought against Mr Molina. This brings into play s 72 of the Justices Act 1902 which provides that if the complaint in any case of a simple offence or other matter negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative in his defence.

37 I share the view expressed by the learned Magistrate in his reasons for decision that the consequence of this provision in the circumstances of the present case was this: the prosecution carried the burden of establishing all the elements of the charge beyond reasonable doubt. However, the effect of s 72 of the Justices Act was that the defendant carried the burden of proof in regard to the issue of lawful authority.

38 This view is supported by the decision of the Full Court (WA) in McGinty v Webb, unreported; FCt SCt of WA; Library No 8606 ; 27 November 1990. In that case the appellant was charged that without lawful authority she remained on the old Brewery site after being warned to leave by a police officer.

39 Nicholson J said that it is often a nice question whether a statutory provision such as s 82B(1) contains the element of an offence or is merely an exception thereto. In construing the statutory provision in question he noted that the cases in which the courts have held that the burden lies on the defendant are those in which the burden is easily discharged. He held that this was the case in relation to s 82B(1) with the result that the words "without lawful authority" constitute an exception to the general offence. Hence, s 72 of the Justices Act applies and the burden of proof rests upon the defendant to show that he was upon the premises with lawful authority.

40 I must now apply the various statutory provisions to the circumstances of the present case.

41 I have already noted that, in my view, Mr Edwards was the senior representative of BGC on the site at the relevant time. He is the person who was alleged to have given the warning to Mr Molina to leave the premises in the manner contemplated by s 82B(1) of the Police Act. I have already noted that, in my view, being a view I share with the learned Magistrate, Mr Molina was an accredited representative of a union designated in the award and had presented his accreditation to Mr Edwards as the person in charge of the site before the words said to comprise the warning to leave were uttered. I must therefore proceed to the question of whether Mr Molina was on the site as an accredited representative of the union in order to address an industrial matter, bearing in mind, for the reasons previously given concerning the application of s 7(3) of the Industrial Relations Act, that it will not be sufficient in the circumstances of the present case for him to rely upon the alleged presence of unsafe working conditions.

42 In my view, the learned Magistrate erred in deciding that there was no industrial matter in issue. Rights and privileges under an award are defined as industrial matters by s 7 of the Industrial Relations Act. I consider that there can be several matters in issue at any one time. It is apparent from my review of the evidence that Mr Molina spoke of being summoned to the site in response to a call from a union member concerning employees working in the rain. His evidence that he was aware of cl 19 and that he saw men working in the rain when he arrived at the site was not seriously contested or controverted. There are indications in the evidence given by the witnesses for BGC that working in the rain was thought to be an issue independently of concerns about safety, even though, as matters developed, a greater emphasis may have been placed upon the safety factors in due course. Accordingly, I am prepared to hold that, prima facie, and subject to the observations that follow concerning the nature of "premises", Mr Molina came to and was on the site as a union representative attending to an industrial matter.

43 It must be remembered, however, that by cl 40 of the award his right of entry was subject to certain limitations, these being additional to the requirement that he be there for the purpose of checking on award breaches or attending to other industrial matters. Clause 40 recognises, in its own terms, that it must be read consistently with s 23(3)(iii) of the Industrial Relations Act so that entry is only allowed to "the premises of an employer" who is the employer of a union member.

44 Counsel for the respondent submitted that, in the circumstances of the present case the term "the premises of an employer" refers to land, or a building with related grounds, belonging to or in the possession or control of an employer. There was no evidence that the premises in this matter belonged to or were in the possession or control of an employer which was the employer or former employer of a member of the union. The evidence was that the premises visited by Mr Molina on 10 August 1999 were in the possession or under the control of BGC and that it was not such an employer because BGC itself did not directly employ any union labour. It was not sufficient to point to evidence that there was union labour on the site (in that certain subcontractors engaged by BGC were the employers of union members) because the site could not be regarded as the premises "of" these employers. They were simply employers working on or at the site.

45 Counsel for the respondent went on to submit that the provisions of the Industrial Relations Act and cl 40 of the award itself make it quite clear that powers of entry are subject to various restrictions. The Industrial Relations Act should not be construed so as to allow the general objects of the Act to override common law rights associated with the law of trespass, and especially in the context of legislation which, upon a literal interpretation of the relevant provisions, makes it clear that powers of entry are limited to certain specific occasions. Rights of entry in respect of private homes and households are curtailed. Clause 40 requires that an accredited representative present himself with his authority to a representative of site management prior to pursuing union duties on site. Against this background, counsel for the respondent submitted, Mr Molina had no authority to enter or to remain on the site and could be required to leave in the manner allowed for by s 82B of the Police Act after being given the appropriate warning.

46 Counsel for the appellant said that s 49AB of the Industrial Relations Act operates in conjunction with award provisions conferring rights of entry upon representatives of industrial organisations to enter the premises of the employer of a member of the organisation. The subcontractors who employed employees on the site in the area of building and construction were bound by the award. In this context, the phrase "the premises of the employer" should be purposively construed as meaning the premises on which the employees of the relevant employer work or are performing work (ie, the place of work of the employees of the employer concerned).

47 Counsel for the appellant submitted further that a principal object of the Act is to provide for the observance and enforcement of awards made for the prevention or settlement of industrial disputes. A narrow interpretation of s 49AB, in light of the purposes of the Act, would invite the most transparent stratagems of evasion. It would remain open for all head contractors on building sites to avoid scrutiny by subcontracting all work and services being performed on the site. The freedom of association and the right of representation should be regarded as fundamental rights. In interpreting the provisions of the legislation, such rights should not be reduced or impeached, except by provisions denoting an unambiguous intention to abrogate fundamental rights.

48 In support of these submissions, counsel for the appellant suggested that the State legislation is to be approached on the basis that it is intended to provide benefits to organisations and members: Bridge Shipping Pty Ltd v Grand Shipping [1991] HCA 45; (1991) 173 CLR 231 at 260; Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 284. If there are two competing interpretations, the advantage lies with that interpretation which produces a fairer or more convenient operation so long as it conforms to legislative intention: Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 35 ALR 151 at 170. Further, s 18 of the Interpretation Act (WA) requires that in the interpretation of the provision of a written law, the construction that would promote the purpose or object underlying the written law (whether expressly stated in the written law or not) is to be preferred to a construction that would not promote that purpose or object.

49 In my view, it is apparent from s 23(3)(iii) of the Industrial Relations Act (this being reflected in cl 40 of the award made thereunder) that the legislation aims at striking a balance between rights of property at common law and the exercise of those powers that are required to give proper and workable effect to the objects of the Industrial Relations Act.

50 It would have been a comparatively easy task for the industrial legislation to have been formulated in the manner contended for by the appellant in this case, that is to say, to provide explicitly that "the premises of an employer" means any premises or area where union members in the employ of an employer are to be found at work. However, a provision to that effect was not enacted. One must proceed from the premise that statutory authority to engage in what would otherwise be a trespass must be clearly expressed in unambiguous language. Coco v R [1994] HCA 15; (1994) 179 CLR 427. Thus, in the present case, an interpretation of the key phrase which would allow a union representative access to any place where an employer of union labour happened to be at work must be viewed with caution.

51 To my mind, the term "the premises of the employer" in its natural and ordinary meaning refers to premises or an area under the control of the subject employer. It is for this reason that in the second part of cl 40 provision is made for an approach to a representative of site management prior to performing union duties on site.

52 In the circumstances of the present case, it is clear from the evidence that the only area designated as a site or capable of being regarded as "the" premises was the fenced area occupied by BGC Construction. The evidence established that BGC itself was not the employer of union employees and it therefore follows that Mr Molina entered and sought to remain upon premises which could not accurately be described as "the premises of an employer" of union labour within the meaning of the Industrial Relations Act. The interpretation I have just outlined gives weight to the possessory connotation implicit in the definite article "the", a word suggesting in this context that there is a specific and tangible set of premises to be entered rather than a notional or metaphorical area which is to be regarded as the premises of an employer. It also gives weight to the word "of", that is to say, premises held by or belonging to the employer.

53 Before leaving this aspect of the matter, I should say that the ruling I have just made disposes of the six grounds of appeal that were grouped under the heading in the notice of appeal "Proper Application of the Act and the Award". These grounds, (iv) to (ix), were expressed in various ways, but were generally directed to the proposition that the phrase "the premises of the employer" means premises on which the employees of the relevant employer or subcontractor work or are performing work rather than premises occupied or under the control of an employer of union labour.

54 My determination that the phrase bears a more restricted meaning does not (contrary to the suggestion in grounds (iv) and (ix)) import a finding that the Building Trades (Construction) Award had no operation or did not bind the employees of the subcontractors, nor does it overlook the prescription contained in s 37 of the Industrial Relations Act that an award extends to and binds all employees employed in any calling to which the award applies and all employers employing those employees. In the present case, I am only concerned with the narrow question of whether a union representative has power to enter and remain upon the premises of an employer, in this case BGC, which does not itself employ employees to which the award applies. In my view, the phrase "premises of the employer" denotes some degree of control over the relevant site.

55 If this were not so, then there would be no point in provisions of the kind reflected in s 49AB of the Industrial Relations Act and in the second part of cl 40 of the award which allow for approaches to be made to the employer before an entry is effected. The creation of a power of entry suggests that, absent such a power, there would be an entitlement to resist an unauthorised entry and this, in turn, suggests that a characteristic of an employer likely to be affected by the exercise of such a power is a capacity to control access to the subject premises.

56 It follows from my interpretation of the crucial phrase that when Mr Molina entered the BGC site his entry cannot be regarded as pursuant to a lawful authority. It is true that on my earlier findings he was an accredited union representative and had presented his accreditation to Mr Edwards as a representative of site management. It is also true that, prima facie, he was attending to an industrial matter, namely the application of the award to inclement conditions. The fact remains, however, that he was only at liberty to enter and remain upon the premises of an employer employing union labour and the consequence of my interpretation of the relevant provisions is that the BGC site cannot be regarded as premises of that kind. He was there unlawfully.

57 This brings me to grounds (ii) and (iii) in the notice of appeal in which a contention is advanced on behalf of the appellant that the communication from the person in charge of the construction site at Canning Vale Prison was insufficient to constitute a "warning to leave" within the meaning of the phrase in s 82B of the Police Act. A submission is also made that the appellant was "warned to leave" whilst not being present on the premises.

58 The learned Magistrate noted that the term "warned" has been variously defined to include the following: "to give timely notice of impending danger as misfortunate; to order under penalty; to notify a person to go from out of the place" - and in later use - "to summon officially."

59 According to the Concise Oxford Dictionary to "warn" means to give notice to, put on guard, admonish.

60 The case for the appellant was that there was no "warning" in the form of an ultimatum. The purpose of a warning is to apprise a party of the existence of a danger of which he is not aware to enable him to protect himself against it. There must be notice or caution of consequences which will follow an event. Counsel for the appellant also emphasised that in the context of s 82B the requirement is that a warning be given to leave the premises, otherwise an offence will be committed of remaining on the premises after such a warning, and this clearly indicates that the words said to constitute the warning must have been uttered while the person was actually on the premises. Words uttered prior to the entry were not relevant.

61 At the hearing before me, both parties placed some reliance upon the decision in Owen v Hassell, unreported; SCt of WA (Nicholson J); Library No 920038; 18 February1992. In that case, the complaints against the respondents were that contrary to s 82B(1)(b) of the Police Act they remained on a construction site after being warned to leave by a member of the police force. The suggestion was that the police officer did not warn the respondents to leave the premises. He simply told them that they had one minute to move and clear a path for an incoming vehicle. There was some evidence before the Court that the respondents were told that they could be arrested if they failed to comply. Nicholson J held that the Magistrate erred in finding that the direction given by the police officer did not constitute a warning to leave the premises. The effect of s 82B(2) was that in circumstances where a warning was given to leave a part of the premises, the part so indicated could constitute the premises for the purpose of s 82B.

62 Counsel for the appellant submitted that Owen v Hassell was an authority for the proposition that in order to constitute a warning for the purposes of s 82B(1) the party warned must be advised of the consequences of failing to comply. It is true, as I have noted, that there was some evidence before the Court that an arrest might follow if the warning was ignored, but that consideration does not seem to have been central to his Honour's reasoning. It was for this reason that counsel for the respondent in the present case submitted that it is sufficient that there be a firm request to leave and Owen v Hassell should be viewed in that light.

63 When the words "warned to leave" the subject premises are viewed in context, it is clear that something more than a request is required. The warning must be in the nature of a demand or a firm requirement amounting to an assertion of a position that is not open to debate. I am not persuaded to the view that the words relied upon must incorporate an explicit description of the consequences in order to be characterised as a warning.

64 In the context of s 82B, I accept that the warning must be given after the person being warned has entered the premises, but it follows from my conception of what constitutes a warning that one is entitled to take account of events leading up to the crucial utterance and the tone of voice in which the demand is made in order to determine whether a warning has been given.

65 It follows that, in my view, in looking at the words used by Mr Edwards regard should also be had to the conversation that took place before the entry was effected. At their initial encounter at the gate, Mr Edwards made it clear to the appellant that he could only talk to union members off the premises. Nearby, there was a sign forbidding access to the site to "unauthorised personnel". When Mr Molina continued on to the site, Mr Edwards followed, saying words to the effect that the union representative could not speak to the employees on site, but could speak to them outside the gate. He said: "You're not allowed on site. You know you're not allowed on site but you can quite welcomely go outside the gate and speak to them outside."

66 It is clear from the evidence that by the time these latter words were spoken Mr Molina was on the site. The clear implication was that he was being warned to leave the site. There was evidence to much the same effect from both Mr Edwards and Mr Qaqish as to what was said to Mr Molina in the shed. Accordingly, in my view, when the various words are taken together this amounted to a firm demand or warning that Mr Molina was being required to leave the premises in question by a person in charge of the premises, namely, Mr Edwards.

67 In summary, then, to this point I consider that the constituents of the offence under s 82B of the Police Act were established beyond reasonable doubt and the learned Magistrate was correct in entering a conviction. Mr Molina was warned to leave premises occupied by BGC as a construction site by Mr Edwards as a person in charge, but, in disregard of the warning given, Mr Molina remained on the premises. He did not leave until a further warning was given at a later stage by a member of the task force, Mr Zaknich.

68 The plea put up by Mr Molina by way of answer to the case against him was that he was on the premises with lawful authority in that he was an accredited representative of a union designated in the Building Trades (Construction) Award. On his case, he had a right of entry and an entitlement to remain upon the premises because he was inquiring into an industrial matter concerning employees subject to the award who were working upon the premises. It emerges from earlier discussion, however, that, in my view, his entitlement to be present depended upon a finding being made in his favour that he was upon the "the premises of an employer" of workers subject to the award. BGC was not an employer of that kind because it did not employ the union members in question directly. It was not sufficient that there were subcontractors on the site who employed union labour because the subject premises, being under the control of BGC, could not be characterised as the premises of the subcontractor. Accordingly, although at first sight Mr Molina appeared to be upon the premises in response to an industrial matter affecting employees subject to the award, he was in fact there unlawfully because he was not upon the premises of an employer of the prescribed kind in the manner allowed for by s 49AB of the Industrial Relations Act and cl 40 of the award.

69 There is, however, a further issue to be addressed which is reflected in grounds (xiv) and (xv) of the appeal documents. The appellant contends that the learned Magistrate erred in law in failing to consider the appellant's submissions regarding s 22 of the Criminal Code (WA), and erred in law and in fact in failing to find that s 22 provided a defence that excused the appellant of any criminal liability in the circumstances.

70 It is apparent from the learned Magistrate's reasons that he did fail to give proper consideration to the submissions made to him regarding s 22 of the Criminal Code. Nonetheless, for present purposes, bearing in mind the powers allowed to me on appeal, the critical question is whether s 22 of the Criminal Code is applicable to the circumstances of the present case.

71 Section 22 of the Criminal Code is included in Div V concerning criminal responsibility. It is in these terms:

"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

72 Section 36 of the Criminal Code deals with the application of ch V and asserts that the provisions of ch V apply to all persons charged with any offence against the statute law of Western Australia. A preliminary question arises, however, whether the "claim of right" exception in the second paragraph of s 22 should be confined to offences relating to property in which the elements expressly mentioned of lack of honesty and intention to defraud are constituents of the offence.

73 I note that the term "property" is very broadly defined in s 1 of the Criminal Code to include real and personal property and everything, animate or inanimate, capable of being the subject of ownership. I notice also that Pt VI of the Criminal Code refers to various "offences relating to property and contracts", including stealing and like offences. By s 371(1) a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.

74 In Pearce v Paskov [1968] WAR 66, Virtue J held that the phrase "offences relating to property" in s 22 of the Criminal Code is to be construed as applying exclusively to offences relating to the wrongful interference with the property of others, that is to say, to offences of the character of those defined in Pt VI of the Code which is headed "Offences Relating to Property and Contracts". This meant that the accused in the case before him - a licensed fisherman charged with being in possession of undersized crayfish - could not be excused responsibility under s 22 on the ground that he had acted in the exercise of a bona fide claim of right without intent to defraud. His plea that he was lawfully entitled to retain the crayfish until measurement did not fall within the protection afforded by s 22, notwithstanding that he claimed to be exercising a bona fide claim of right.

75 Virtue J said that in his view the accused's contention involved a fundamental misconception as to the scope and extent of the proviso contained in s 22. He went on to say this at 72:

"It will be noted that the protection is of a limited kind. Though it extends to all acts with respect to property done in the exercise of a bona-fide claim of right and without intent to defraud, it only protects against liability for an offence relating to property and not to any other type of offence.

Part VI of the Criminal Code is headed 'Offences relating to property and contracts', and I have no doubt that the phrase 'offences relating to property' in s. 22 should be construed as applying exclusive1y to offences of the character of those defined in that Part of the Code. These offences can be classified under the headings of wrongful or fraudulent interference with the property of others which involve deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others. I consider that such a construction is supported by the provision that the existence of an intent to defraud would deprive a defendant of the benefit of the protection.

The offences the subject of the present charge are clearly not offences relating to property as so defined. They do not involve as an element any interference by the person charged with the proprietary and possessory rights of others. They come within the prohibition in the Code of acts injurious to the public in general and involve an interference by the State with the proprietary and possessory rights of the individual in the interest of the State and for the protection of an industry which is of benefit to the community as a whole.

Accordingly, s. 22 can confer no immunity on the defendant."

76 Counsel for the appellant accepted that Pearce v Paskov (supra) had not been directly overruled. Nonetheless, he drew attention to various cases in other jurisdictions in support of his contention that s 82B of the Police Act creates an offence for trespass which should be regarded as an offence relating to property to which the proviso in s 22 of the Criminal Code should be regarded as an avenue of defence. In that regard, he referred to Barker v R [1983] HCA 18; (1983) 153 CLR 338 at 366: Margarula v Rose [1999] NTSC 22; (1999) 149 FLR 444 and Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561.

77 In Walden v Hensler (supra) a question arose as to whether the taking of protected fauna could be regarded as an offence relating to property so as to afford to an elder of the Gungalida people a "claim of right" defence based on s 22. A majority of the High Court held that such a defence was not available in the circumstances of the case. Toohey J indicated at 599 that there was no warrant for reading down s 22 in the manner outlined by Virtue J in Pearce v Paskov (supra) and the tenor of the judgments by other members of the High Court certainly suggests that the reasoning of Virtue J should now be read with caution.

78 Nonetheless, it is apparent from Walden v Hensler that the "claim of right" provision in s 22 is to be given a restricted application. Brennan J held that it applied only to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property is an element. According to Dawson J at 592, it is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner. It is a claim with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under the civil law.

79 When the "claim of right" provision is viewed in that light, it is difficult to see in what manner the proviso could be applied to an offence in the nature of a trespass of the kind addressed by s 82B of the Police Act. The appellant was not asserting a civil right in respect of the property in question. He was seeking to exercise a power of entry. He was asserting a freedom to act in a particular manner. According to Dawson J this does not amount to a claim of right, and I am inclined to agree. The legal position may have been complex but, in the final analysis, the appellant was setting up an ignorance of the law by way of defence; in particular, ignorance about the true meaning of "the premises of an employer". Section 22 expressly provides that ignorance of the law does not afford an excuse.

80 It follows that, in my view, the claim of right proviso in s 22 of the Criminal Code is not available to the appellant as a line of defence in the manner proposed. However, even if I be wrong in that regard, a question then arises on the facts of the present matter as to whether the acts and conduct of Mr Molina can be characterised as acts done by him with respect to any property in the exercise of an honest claim of right.

81 Let me briefly review the evidence bearing upon this further issue.

82 The appellant gave some evidence that prior to the date of the offence Mr Goddard, who the appellant understood to be the senior site supervisor, had told him that the union was not allowed on site. This evidence by the appellant conflicted with evidence he gave later to the effect that on the first occasion he went to the site there was no-one at the site office and thereafter he went to the site without restriction in the belief that he was entitled to do so as a union representative inquiring into industrial matters. Nonetheless, it appears from Mr Molina's own evidence that there is a degree of ambiguity as to whether his visit to and entry upon the BGC site on 10 August 1999 was pursuant to an honest belief that he was entitled to be there and that no-one was likely to object to his presence.

83 I must also take account of the evidence of Mr Edwards and Mr Qaqish to the effect that before the appellant entered the site it was made clear to him that he was not allowed on site and that the basis of his claim to be there as a union representative was in dispute. The BGC sign was a reminder that access to the site was restricted. It is significant that when the appellant was approached later in the morning by Mr Zaknich and asked to leave, he left immediately without bothering to debate Mr Zaknich's allegation that he was trespassing. The evidence as a whole strongly suggests that he was testing his rights rather than making an honest claim of right.

84 This brings me to the case of Margarula v Rose (supra). In that case, the appellant, a traditional owner of land occupied by Energy Resources of Australia, was found guilty of having trespassed on a large storage container owned by the company contrary to s 5 of the Trespass Act 1987 (NT). Riley J considered that an honest claim by an Aboriginal landowner of an entitlement to enter upon traditional land may ground a defence of "honest claim of right". It is then for the prosecution to show beyond reasonable doubt that the Aboriginal landowner was not exercising an honest claim of right. For the defence to apply, the belief of the appellant must be genuinely held. It need have no foundation in law or fact and it need not be reasonable. Reasonableness is, however, a factor which is part of the objective circumstances which may be considered in determining the issue of genuine belief.

85 Riley J then went on to consider whether the appellant in that case held a genuine belief that she was entitled to enter upon the land in the circumstances that prevailed. He reviewed the evidence carefully, but was ultimately inclined to agree with the Magistrate in the court below that the appellant did not hold a genuine belief that she was entitled to enter the land in question. She knew she had to ask Energy Resources for permission to go into the port or compound and that she did not have permission to go on the container. The consistent theme was that although the appellant had some belief that she was able to test some undefined rights in relation to entry upon the land, when she entered the land she was not exercising an honest claim of right in so doing. Accordingly, the appeal against conviction on that ground failed.

86 I arrive at a similar conclusion in regard to the circumstances of the present case. It is true that the learned Magistrate did not deal with s 22 of the Criminal Code, but, in my view, his failure to do so did not result in a miscarriage of justice. I am not persuaded that any claim of right was honestly held. The weight of the evidence shows that Mr Molina entered the site under protest and with an awareness that the right of entry he claimed to be asserting was in dispute. He may have genuinely believed that his cause was just and that there were good reasons why he should determine whether the award was being breached and whether the working conditions were unsafe. Nonetheless, the weight of the evidence indicates that against a background of disputation it could not be said that he entered the site pursuant to an honest claim of right. Accordingly, I am not prepared to uphold these two grounds of appeal.

87 It follows from earlier discussion that the appeal will be dismissed.

Safety and Health Act 1984

Safety and Inspection Act 1994

Labour Relations Legislation Amendment Act 1997

Molina v Zaknich [2000] WASCA 390

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (108 paragraphs)

Molina v Zaknich [2000] WASCA 390 (14 December 2000)

Parties

Legislation Cited (4)

Cases Cited (8)