Criminal law - Trespass - 'Without lawful excuse' - Criminal Code (WA), s 70A - Differentiation between trespass and excuse - Relation to excuses for civil trespass - Existence of non-criminal purpose does not in itself provide lawful excuse

Words and phrases - 'Without lawful excuse' - Legislative history - Police Act 1982 (WA) - Criminal Code (WA)

Criminal Appeals Act 2004 (WA), s 13

Criminal Code (WA), s 59, s 70A, s 173, s 177, s 178, s 345, s 407

Criminal Law Amendment (Simple Offences) Act 2004 (WA)

Industrial Relations Act 1979 (WA)

Police Act 1892 (WA), s 66, s 82A, s 82B

Sentencing Act 1995 (WA)

Matter to be remitted for determination of sentence

Abbott v Pulbrook [1947] SASR 57

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605

Darce v Pre-Term Foundation Clinic [1983] 2 NSWLR 497

DPP v Wille [1999] NSWSC 661; (1999) 47 NSWLR 255

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1

Hancock v Birsa [1972] WAR 177

Jenal v Milner (1994) 11 WAR 264

King v The Queen [2003] HCA 42; (2003) 215 CLR 150

R v Barlow [1997] HCA 19; (1997) 188 CLR 1

Re Alcan Australia Ltd; Ex Parte Federation of Industrial, Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96

Roddan v Walker (1997) 94 A Crim R 170; (Unreported, SCt of WA, Library No 970252, 20 May 1997)

Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76; [2004] 1 ABC(NS) 610

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454

Wilkins v Condell [1940] SASR 139

Wills v Williams [1971] WAR 29

Wong Pooh Yin v DPP [1955] AC 93

1 A prosecution notice was issued against the respondent, Joseph McDonald, alleging that on 19 February 2007 he trespassed on a building site under the control of Doric Construction Pty Ltd (Doric) in Joondalup without a lawful excuse contrary to s 70A(2) of the Criminal Code (WA). Mr McDonald pleaded not guilty to that charge, and on 22 October 2007 the matter went to trial in the Magistrates Court. On 25 October 2007, the magistrate before whom the case had been tried gave his reasons for acquitting Mr McDonald and entered judgment to that effect. The appellant, a police officer, appeals from that decision. McKechnie J granted leave to appeal, and directed, pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA) that the appeal be dealt with by the Court of Appeal.

2 The magistrate found, as a fact, that the relevant building site was under the control of Doric. He further found that the relevant person who had the control and management of the site, with the authority of Doric, was Mr James Kemp.

3 In his reasons, the magistrate refers to a plan of the Doric site (exhibit 1). That plan shows that the site is bounded to the south by Collier Pass, to the north by Boas Avenue, to the east by Grand Boulevard, and to the west by Joondalup train station. The plan also shows that the site office used by Doric is located, very approximately, in the middle of the site.

4 The magistrate found that Mr Kemp first saw Mr McDonald after Mr McDonald had entered the site. Mr Kemp was at the site office when he had his attention drawn to the fact that Mr McDonald was on site. This was at about 10.42 am. Mr Kemp knew Mr McDonald from past dealings, and knew that he was an official of the Construction Forestry Mining Energy Union (CFMEU). Mr Kemp first saw Mr McDonald when he was about 300 metres from the exit to the site. He marked the point at which Mr McDonald was first seen by him on the site plan which was tendered in evidence. It appears to be at approximately the mid point between the southern and northern boundaries of the site, and relatively close to the site office.

5 After seeing Mr McDonald, Mr Kemp then returned to the site office and gave instructions to another employee to call the police and the Australian Building Construction Commission. This was because Mr McDonald's authority to enter work sites for the purpose of Div 2G of the Industrial Relations Act 1979 (WA) had been revoked by an order made in April 2006. Mr Kemp then attended upon Mr McDonald and instructed him to leave. In the course of his evidence, Mr McDonald acknowledged that he understood that Mr Kemp was telling him that he had to leave the site. The magistrate found, as a fact, that Mr Kemp's request was neither ambiguous nor uncertain. The magistrate further found that nothing Mr Kemp said was an invitation to Mr McDonald to delay leaving or to move further onto the site.

6 I will set out the terms used by the magistrate to describe his findings as to what then occurred:

The accused did not upon being requested to leave move in such a way as to directly commence a path to leave the place. He did not in effect turn on his heel and head back to the point from which he had entered the site. To the contrary, he moved further into the construction site. He moved further generally north and further away from the point of entering. Mr Kemp has described that path taken by the accused. It's clearly marked in yellow on exhibit 1, the plan. It is nonetheless simply a general indication of where the accused moved to and the court has not received that evidence as if it was some precise path.

Mr Kemp said the accused initially had indicated that he intended to go to an area which he referred to as an excavation area where there were certain machines in operation. Mr Kemp says the accused said, 'Are you going to stop me physically?' The accused said he told Mr Kemp that he did not intend to go there. Whilst there is a degree of uncertainty on the evidence of Mr Kemp and the accused as to where the accused walked, I find as a fact the accused deliberately moved in a direction further away from the exit and inconsistent with a direct and reasonably direct path back towards the point of entry or exit.

I find proved beyond reasonable doubt by the prosecution the accused remained at the place after being requested to leave. The accused's licence to remain had been revoked by Mr Kemp. To remain on a place on the basis of the findings of fact that I have made is a trespass and common law has said that even the minutest invasion of private property can be a trespass. The accused deliberately further progressed more into the site and that was not insignificant in terms of the distance covered or the time taken. These findings of fact proved by the prosecution beyond reasonable doubt make out a case of trespass subject to the very important issues of whether the trespass was without lawful excuse.

7 The yellow markings on the plan to which the magistrate referred in this passage indicate that after being asked to leave the site at a point relatively adjacent to the site office, instead of moving to the exit, which is to the south, Mr McDonald moved to the north, almost to the northern boundary of the site, and then towards the western boundary of the site, before returning, in an elliptical path, past the site office and exiting the site to the south.

8 The magistrate then correctly recorded that Mr McDonald had the onus of proving that he had a lawful excuse (s 70A(3)). He also correctly observed that the expression 'lawful excuse' is not defined by the Criminal Code. The magistrate then referred to a number of cases and the legislative history of the provisions that were enforced prior to the enactment of s 70A. He also referred to a number of previous decisions. Following that review, he set out his view of the law in the following terms:

As Mayo J said in Abbott v Pulbrook [[1947] SASR 57] in a colloquial sense the words connote a trespass which isn't excusable. His Honour said and I quote:

'They imply something more than mere simple wrong; that is, they connote a kind of trespass which transcends the mere infringement of civil right and calls for the protection of the law and punishment of the offender.'

That view, in my view, in the judgment is consistent with what was said by the Full Court in Hancock v Birsa [[1972] WAR 177]and also what was said by the former Chief Justice, Malcolm CJ in Jenal v Milner [(1994) 11 WAR 264] which I cited earlier. The Chief Justice said as follows and I quote:

'On proof of facts establishing the defendant was a trespasser on premises a prima facie case would be established the defendant was there without lawful excuse and if nothing more appeared the defendant will be liable to a conviction if the circumstances were such that a trespass should be treated as an offence deserving of punishment under the criminal law.'

Put another way, the question for the court, the question for me is in the circumstances of this case, has the accused shown on a balance of probability the conduct of the accused does not deserve the application of penal law and therefore ought to be excused? The answer to that question is one of fact, the judgment of which will depend on the circumstances as found in the evidence. Parliament in effect left it to the court to decide by reference to the evidence.

9 In his reasons, the magistrate referred to the excuse proffered by Mr McDonald to the effect that he had entered the site in his capacity as assistant secretary of the CFMEU after unsuccessful attempts to contact the main contractor on site relating to payments of financial entitlements to CFMEU members. However, as the magistrate records, the prosecution was not brought on the basis that Mr McDonald had committed a trespass by entering the site, but rather on the basis that his trespass was committed by remaining on site after being requested by a person in authority (Mr Kemp) to leave the site.

As mentioned earlier, the accused acknowledges he moved further into the site. There was a conflict of how far he progressed further into the site. I find it was not a significant distance further north than the site office. The accused admitted he had spoken to workers. Some of the discussions, it would seem, were of a personal and friendly nature, as opposed to also being discussions about safety issues. The accused says that the workers approached him.

Mr King [a witness] admitted that from his observations, the workers seemed happy to speak to the accused and Mr Kemp accepted in cross-examination that some workers approached the accused. It needs to be noted that Mr Kemp said on five or six occasions during apparently these discussions, the accused was told that he had to leave. In my judgment, the accused did not move too far into the site, did not unduly interfere or hinder the workers, did not interfere or obstruct in any way the works or the work due to be undertaken.

Even on Mr Kemp's estimate of timings, it seems the accused was in the general area a matter of a few minutes. The view I take of it, it was of a very short duration. I have also formed the judgment that the accused was well received by at least some of the workers. The accused did not behave in an aggressive manner or an insulting way to Mr Kemp or any others.

...

The accused's conduct was such that it was reasonable and in my judgment, appears to be something that a reasonable person would consider to be adequate, even if the accused discussed matters with employees that might be seen to be conduct purporting to be conduct of an authorised representative, which the accused is not. Although the accused was slow moving in directly leaving the site, I am unable to detect any aggravated feature that in my judgment makes his remaining on the place something which went beyond civil trespass and appropriate for the application of criminal sanctions.

I have reached this conclusion, notwithstanding the accused had no permit under the Workplace Relations Act 1996 and his authorisation for the purposes of condition 2G of the Industrial Relations Act had been revoked, which to his clear knowledge had been the case since 21 April 2006. Also the accused's actions in discussing with the workers, including such matters as safety issues, indicates that he was purporting to act as an unauthorised union representative. That may in itself render him liable to civil penalties under the Industrial Relations Act, but that conduct, brief and limited as I have found it to be, is in my judgment not such that it warrants the imposition of criminal sanction.

The accused has satisfied me in the strict circumstances of this case - and I emphasise that - having regard to the facts as I have found them, there is a lawful excuse for remaining on the premises for such a limited period of time. The charge is not proved. I find the accused not guilty...

11 It must be said, with respect to the magistrate, that it is not pellucidly clear from the magistrate's reasons what he has found the lawful excuse to be. Although he refers to Mr McDonald's entry upon the site for union purposes, it seems clear from the reasons that the magistrate concluded that Mr McDonald's lack of authority to enter work places for industrial relations purposes under the relevant statutory regime precluded Mr McDonald from relying upon union purposes as his lawful excuse. The magistrate could hardly have concluded otherwise, and counsel for Mr McDonald stated clearly and unequivocally during argument on the appeal that Mr McDonald did not assert that union activities or interests provided any excuse for him to remain on site after being asked to leave.

12 When regard is had to the magistrate's reasons as a whole, and especially his reliance upon the passages from Abbott v Pulbrook [1947] SASR 57 and Jenal v Milner (1994) 11 WAR 264, which I have set out above, it seems clear that the magistrate regarded the criterion of 'lawful excuse' as providing the court with a broad discretion to determine whether, in all the circumstances, the conduct of the accused was such as to merit criminal sanction. Applying that test, the magistrate appears to have concluded that because Mr McDonald's trespass was of short duration, did not disrupt work on the site and did not involve any aggravating feature, it did not warrant criminal sanction and the case should be dismissed.

The grounds of appeal and the notice of contention

13 The appeal is brought on the ground that the magistrate applied the incorrect test to determine whether Mr McDonald had a lawful excuse, and on the further ground that having regard to the facts found by the magistrate, the only conclusion open as a matter of law was that Mr McDonald did not have a lawful excuse. Mr McDonald filed a notice of contention in which he asserts that the prosecutor failed to prove, beyond reasonable doubt, that the respondent failed to leave the place within a reasonable time of being asked to do so, or alternatively, that he had established, on the balance of probabilities, a lawful excuse, in that he had left the place within a reasonable time of being requested to do so.

14 The drawing of appropriate boundaries between civil and criminal trespass has attracted the attention of legislatures in different jurisdictions for many years. The first specifically Western Australian legislation on the subject of being unlawfully on land or premises can be traced back to s 10 of the Police Ordinance 1849, which in turn had its origins in s 4 of the Vagrancy Act 1824 (UK). That legislation later found expression in s 66(8) of the Police Act 1892 (WA), which provided that a person was to 'be deemed a rogue and vagabond ... and shall on conviction be liable for a penalty' if they were 'found in or upon any place, stable or outhouse for any unlawful purpose'. Of course, that provision required the prosecutor to prove the relevant unlawful purpose.

15 In 1962, s 66 of the Police Act was amended by adding to the category of persons deemed to be rogues and vagabonds and liable to penalty:

Any person who is or has been, without lawful excuse, in or upon any premises or the curtilage, whether enclosed or fenced or not, of any premises.

16 As the Law Reform Commission of Western Australia (LRCWA) observed in ch 8 of its 'Report on Police Act Offences' (LRCWA, Report on Police Act Offences, Final Report (1992)) the Parliamentary Debates at the time the subsection was introduced suggest that one of its main purposes was to deal with 'peeping toms' as in such cases it was difficult to prove an unlawful purpose. After the enactment of that provision, it was not necessary for a prosecutor to prove an unlawful purpose but only the absence of lawful excuse.

17 The Police Act was further amended in 1963 to introduce s 82A. That section provided that every person who, without lawful excuse, entered into the enclosed land of another person, without the consent of the owner, occupier or person in charge, and caused damage or injury to any property, was liable to pay the party aggrieved the amount of any damage or injury, and was also liable to a fine.

18 In 1975, s 66 of the Police Act was amended to delete the colourful reference to persons in contravention of the section being deemed to be rogues and vagabonds.

19 In 1980, the Police Act was further amended to introduce s 82B. That section provided that a person who, without lawful authority, remained on premises after being warned to leave those premises by the owner, person in charge or occupation of the premises or 'a member of the Police Force', was guilty of an offence.

20 Understandably, in 1992, the LRCWA recommended that the various provisions in the Police Act dealing with being unlawfully on premises should be rationalised. To that end, the LRCWA recommended that the sections to which I have referred should all be repealed, and replaced with a provision in the following terms:

(a) enters the premises of another for an unlawful purpose;

(b) enters the premises of another without lawful excuse; or

(c) remains on premises, without lawful authority, after being requested to leave by the owner, occupier or person in charge of the premises or, at the request of the owner, occupier or person in charge of the premises, by a police officer,

commits an offence.

21 The recommendation of the LRCWA to repeal the various provisions of the Police Act to which I have referred was accepted and legislation to that end introduced in 2004. However, the legislation recommended by the LRCWA to be enacted in its place, was expressed in rather different terms in s 70A of the Criminal Code which was introduced by the Criminal Law Amendment (Simple Offences) Act 2004 (WA). Section 70A provides a definition of 'trespass', which includes entry onto a place without the consent or licence of the owner, occupier or person having control or management of the place; remaining in the place after being requested by a person in authority to leave the place; or remaining in a part of the place after being requested by a person in authority to leave that part of the place. In that context, subsections (2) and (3) provide that:

(2) A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12,000.

(3) In a prosecution for an offence under subsection (2), the accused has the onus of proving that the accused had a lawful excuse.

22 At the time the legislation was introduced, the then Attorney General stated that the legislation took the form recommended by the LRCWA. While that was true in a general sense, there is a material difference between the provision recommended by the LRCWA in 1992, and the provision enacted in 2004, at least in respect of the offence of remaining on premises after being requested to leave. In the recommendation made by the LRCWA, the qualification to the offence was remaining on premises 'without lawful authority' whereas in s 70A, the language used is 'trespasses without lawful excuse'.

23 It is, of course, well established that the Criminal Code is to be construed according to its natural and ordinary meaning, without any presumption that it is intended to embody the common law (Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263 and R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 31). However, the civil law of trespass provides a context for the ascertainment of the intention of the legislature, when enacting s 70A of the Criminal Code. The intention of the legislature is, of course, to be deduced from the words used in s 70A, viewed not only in the context of the civil law of trespass, but also in the context of the construction which the courts had placed upon identical words ('without lawful excuse') used in a similar legislative context prior to the enactment of the provision - see Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76; [2004] 1 ABC(NS) 610 [18]; Re Alcan Australia Ltd; Ex Parte Federation of Industrial, Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, 106; and Pearce D C and Geddes R S, Statutory Interpretation in Australia (2006) at 3.43.

24 Historically, the tort of trespass was developed separately and distinctly from an action on the case, the most common of which is now the action for negligence. Unlike an action on the case, a plaintiff claiming trespass did not have to prove damage in order to obtain a remedy. That was in part because the tort served the purpose of providing a mechanism for the identification of the person entitled to the physical possession and occupation of land. It was a convenient means of resolving disputes about title. Accordingly, the tort was complete upon proof of entry upon land without the consent of the person entitled to the exclusive possession of that land. Mistake of fact was (and is) no defence to a civil claim of trespass (DPP v Wille [1999] NSWSC 661; (1999) 47 NSWLR 255 [20]). There are limited defences to the tort of trespass. They include necessity, a limited right to recapture chattels on the land of another, and entry under legal authority (DPP v Wille [19]).

25 Consent is often a critical question in cases of civil trespass. Commonly, landowners will grant an implied licence to the public to enter upon land for a particular purpose. As the High Court pointed out in Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, 7, the most common instance of an implied licence arises from the provision of a means of access, such as a path, driveway, or both leading to the entrance of a suburban house. Ordinarily that configuration will give rise to an implied licence in favour of any member of the public to use the path or driveway to access the entrance to the house for the purpose of a lawful communication with, or delivery to, any person in the house. However, as the High Court pointed out in Halliday, the question of whether or not a particular entrant falls within the scope of the implied licence will be a question of fact.

26 A licence to enter or remain upon land will ordinarily be revocable unless accompanied by a grant - such as the right to take wood or minerals from the land (Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605). Upon the revocation of the licence, it is the duty of the licensee to leave the premises forthwith:

A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence. (per Dixon J in Cowell at 631, relying on Cornish v Stubbs (1870) LR 5 CP 334)

27 Central to the present case is the meaning to be given to the expression 'without lawful excuse' in s 70A of the Criminal Code. There is authority at the highest level for the proposition that it is impossible to define this and similar expressions comprehensively (Wong Pooh Yin v DPP [1955] AC 93, 100; Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454, 488). However, because the same expression had been used in a similar context in s 66(13) of the Police Act prior to the enactment of s 70A, it is appropriate to give detailed consideration to the judicial views which had been expressed on the scope of that section prior to the enactment of s 70A. Moreover, in its report, the LRCWA made specific reference to some of the cases on s 66(13).

28 This case has been described as a 'peeping tom' case. A man was seen standing on the verandah of a flat, close to the window, looking into the lounge room of the flat. The magistrate was satisfied that the defendant's purpose was 'that of a peeping tom', but considered that because of the decision in Wills v Williams [1971] WAR 29, that conclusion did not justify conviction under s 66(13) of the Police Act, because the defendant's purpose was not that of committing a criminal offence.

29 Hale J dealt with the meaning of 'lawful excuse' in the following way:

The question is what is meant by 'lawful excuse' ... The word 'lawful' wears a deceptive air of simplicity, but in truth it always takes its meaning from the context in which it is found. As was said by Napier J, in Crafter v Kelly [1941] SASR 237 at p 243, it can mean, simply, permitted, ie something which can be done without an infraction of the law, eg a lawful trade: or it can mean something which is supported by the law, eg lawful authority: or again it may imply the quality of being legally enforceable, eg a lawful demand which can be enforced in an action. Indeed in a given case it may be easier to see what the word does not mean than to define what it does mean.

In the context of s 66 one can discard the concept of legal right; a man does not need an excuse for being where he has a legal right to be. Nor, in view of the presence in the same section of subsections (8) and (13), do I think it permissible to treat 'without lawful excuse' as meaning 'for an unlawful purpose'. Subsection (8) reads: '(8) Every person being found in or upon any place, stable, or outhouse for any unlawful purpose.' Here 'unlawful' clearly means 'punishable by law', ie criminal. That provision has remained in the Act unaltered since 1892. In 1962 subsection (13) was added as an entirely new subsection, and the marked change of language must, I think, be accepted as involving a change of meaning.

...

One has then a concept which can be established without showing any legal right, but which may not be established notwithstanding that there is no purpose to commit a punishable offence: and of course the excuse must be present or absent irrespective of the trespass itself: it is the trespass which must be excused. It is here that one seems to part company from 'law' and to enter the realm of 'fact'. The law can pronounce as to what is a legal title, and as to what is a punishable offence: but there is no legal criterion as to what is a lawful excuse in the context of the present discussion. It is merely to talk in circles to say that a lawful excuse is one which the law (ie a court) thinks adequate in the circumstances: the court cannot resolve the question as a matter of law: it would in truth be a question for the jury if there were a jury: In all the circumstances is the excuse offered adequate to free the defendant from liability to punishment? In my opinion, in the context of this section 'without lawful excuse' is a compendious method of saying 'without an excuse which would appear to a reasonable man to be adequate in the circumstances'. (178 - 179)

30 In the light of later judicial pronouncements, it is particularly significant to note the focus given in these observations to the 'excuse'. As his Honour points out, it is the trespass which must be excused, and the excuse must be present independently of the trespass.

31 Burt J also concluded that it was unnecessary to establish an unlawful purpose in order to sustain a conviction under the section. As he observed:

Proof of an unlawful purpose no doubt denies a lawful excuse. But the converse is not, I think, true. Proof of the absence of a lawful excuse does not require the finding of an unlawful in the sense of a criminal purpose. What it does require, and in my opinion all that it requires, is a judgment by the court as to 'whether the defendant's presence on the premises is excusable in all the circumstances of the case, bearing in mind that the defendant is charged with an offence punishable by imprisonment and, therefore, that his conduct may well be innocent or excusable for this purpose although otherwise indefensible': Wilkins v Condell [1940] SASR 139, per Napier J, at 152. And the conduct may fail to satisfy that test although one is unable to say of it either that its purpose was to commit some offence known to the criminal law or that it was such as to render the accused person liable to be bound over to keep the peace. (181)

32 This passage also focuses attention upon the 'excuse' proffered for the trespass.

33 Wickham J cited the same passage from the judgment of Napier J in Wilkins v Condell [1940] SASR 139 with approval. However, his Honour took the matter a little further, and expressed the proposition rather more broadly in the following passage:

Put another way, the question for the tribunal of fact will be: In all the circumstances of the case, has the prosecutor shown beyond reasonable doubt that the conduct of the defendant is such that is deserves the application of the penal law and, therefore, ought not to be excused? The answer to this answer is one of fact and of judgment and will depend upon all the circumstances of the particular case and is one for the tribunal which tries the case. (183)

34 This passage appears to effect a shift from the focus of the other passages to which I have referred, being in each instance, upon the 'excuse' proffered for what would otherwise be a trespass. In this passage, the question is expressed more broadly and without reference to the 'excuse', thereby leaving it open to the court to consider whether the trespass itself was conduct which deserved punishment. This is not an approach which can be justified by the language of the provision, which requires a determination to be made as to whether or not there was a lawful excuse for the trespass.

35 It is of some significance that Wickham J also expressed the view that under s 66(13) the onus of proving lack of a lawful excuse rested at all times with the prosecutor (183). As I have observed, s 70A specifies that the onus of proving a lawful excuse rests upon the accused. This is a significant distinction between the two legislative provisions. The structure of s 70A serves to further reinforce the emphasis upon the need to make a determination as to the adequacy of the 'excuse', independently of a determination as to the question of whether there has been trespass.

36 This case concerned a television journalist who had entered, without any authority, upon the premises of a man who had died following a fatal shooting. His purpose was to obtain a photograph of the man for use in his report.

In my view, the learned magistrate was required to determine two questions. The first was whether or not there had been a trespass at common law. Clearly there had and the magistrate so decided. The second was whether, given that the conduct was actionable at common law so as to attract a civil remedy, it was sufficiently serious to go beyond a mere matter of compensation and should be treated as an offence deserving of punishment under the criminal law: Wilkins. (270)

38 With respect, the breadth of language used in this passage suffers the same vice as the terminology used by Wickham J in Hancock in that it elides any distinction between the trespass and the excuse proffered for the trespass. The terminology of s 66(13) of the Police Act directed attention to the excuse proffered for the trespass, which must be lawful. That is, with respect, a different question from the question of whether the trespass itself was of a kind which deserved punishment.

39 However, in a later passage in his reasons, Malcolm CJ directed what I would respectfully suggest is appropriate attention to the question of whether there was in fact a lawful excuse. He observed:

It may be accepted that the question whether there was a lawful excuse for the purpose of s 66(13) is a question of fact to be decided on the evidence: Hancock v Birsa (at 179) per Hale J; and (at 183) per Wickham J. Whether the excuse proffered is capable of constituting a lawful excuse is a question of law: Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1 at 9, per Gibbs CJ, Mason, Wilson and Deane JJ. If, as in Samuels v Nicholson [(1973) 6 SASR 479] the learned magistrate had correctly applied the correct legal test to findings of fact properly made by him, there would be no justification for interfering with his conclusion. The correct test was whether, on facts properly found, the excuse proffered by the respondent was one which would appear to a reasonable person to be adequate in the circumstances. This required an evaluation of the respondent's conduct by reference to contemporary standards of reasonableness to determine whether the trespass was committed in circumstances which took the case beyond one that could be sufficiently dealt with by any available civil remedy and warranted punishment under the criminal law. (274)

40 This passage rather suggests that, consistently with the views expressed by Hale and Burt JJ in Hancock, the question is whether the excuse proffered for the trespass is one which, by the application of contemporary standards of reasonableness, would lead to the conclusion that the trespass does not merit criminal sanction.

41 The judgment of Anderson J does not deal specifically with this point, although appears to sit somewhere between the broader approach suggested by the first passage in the judgment of Malcolm CJ which I have cited, and the narrower approach suggested by the later passage in that judgment. Seaman J agreed with each of Malcolm CJ and Anderson J.

Later cases in other jurisdictions and on other sections of the Police Act

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454

42 In Taikato, the High Court was concerned with a statutory provision which penalised possession of certain dangerous objects unless the defendant satisfied the court 'that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose'. The defendant was found in possession of a pressurised canister of formaldehyde, which she stated she carried for self-defence.

43 The statutory provision did not contain the expression 'lawful excuse'. Rather, the terms used were 'lawful purpose' and 'reasonable excuse'.

44 In the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ it was observed:

As a general rule, interpreting 'lawful purpose' in a legislative provision to mean a purpose that is not forbidden, rather than positively authorised, by law is the interpretation that best gives effect to the legislative purposes of the enactment. This is because statutes are interpreted in accordance with the presumption that Parliament does not take away existing rights unless it does so expressly or by necessary implication. Nevertheless, the purpose, context or subject matter of a legislative provision may indicate that Parliament has used the term 'lawful purpose' to mean a purpose that is positively authorised by law. That seems to be the best interpretation of the term in the present case. (460)

45 Their Honours went on to give the reasons for their conclusion in the context of the particular legislation under consideration. Because of the view formed by their Honours, it followed that self-defence was not a 'lawful purpose' because the existence of a right of self-defence could not be determined until after the fact of a particular attack or threatened attack (463 - 464). Accordingly, before any such attack, the defendant could not point to any positive legal authority or right to possess the canister.

46 On the subject of 'reasonable excuse' their Honours observed that an expression cast in those terms effectively gives the courts the power to determine the content of defences (466) - in essence by prescribing the relevant rule of conduct after the fact of its occurrence. As the court observed, this gives rise to the danger that a criminal provision might not operate uniformly in circumstances which are not materially different, because the outcome of each case will depend upon a value judgment made by the court (465 - 466).

A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse. (470)

Roddan v Walker (1997) 94 A Crim R 170; **(**Unreported, SCt of WA, Library No 970252, 20 May 1997)

48 The decision in Taikato was applied in Roddan v Walker. That case concerned s 66(4) of the Police Act, which provided that it was an offence for any person to have 'in his custody or possession without lawful excuse (the proof of which excuse shall be on such person), any picklock, key, crow, jack, bit or other implement of housebreaking or any explosive substance'. Steytler J held:

[T]he word 'lawful', taken in its context, does not mean 'positively authorised by law' but means 'not forbidden' by law and the kind of 'excuse' to which reference is made is one which relates to the reason or purpose for which the item or items in question is or are in the possession or custody of the accused person. ... In that context the word 'lawful' connotes no more than that, if a purpose is offered by way of excuse, that purpose must be one which is not forbidden by law, that being the construction which best gives effect to the legislative purpose of the section. (175)

49 This case concerned a statutory provision which created the offence of entering into the enclosed lands of any other person, without the consent of the owner or occupier thereof, without lawful excuse. The defendants had entered enclosed land and chained themselves to a crane in order to protest against the construction of a freeway. They contended that because their purpose was not criminal, they had a lawful excuse, within the meaning of the statutory provision. Kirby J referred to other cases in which defendants charged with criminal trespass had sought to bring themselves within the scope of the expression 'lawful excuse' by reference to a non criminal purpose. In Darce v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, the defendant believed that unlawful abortions were being carried out on premises. He entered those premises for the purpose of gathering evidence to support his assertion. In Minkley v Munro (1986) 8 PSR 3975, the defendant was a television journalist who entered enclosed lands at an airport in order to demonstrate the deficiencies in the security arrangements. In each of those cases, and in Wille, it was held that the existence of a non criminal purpose did not, of itself, provide a lawful excuse (see Wille at [37]). The significance of these cases is that they focus attention (correctly in my view) upon the excuse proffered for the trespass.

50 However, Kirby J went further than any previous authority in this area and expressed the view that:

[T]he limits of those excuses which may be characterised as lawful excuses for the purposes of s 4(1) of the Act, are to be found by analogy to the categories which apply in civil trespass, supplemented by honest and reasonable mistake, where the facts assumed would, if true, give a right of entry. [40]

51 With respect, this conclusion is inconsistent with the previous authorities to which I have referred, and does not appear to be sustained by the language of the statutory provision under consideration. If the legislature had intended to create an offence which was co-extensive with liability for civil trespass, but to add a defence of honest and reasonable mistake, one might expect words to that effect to be used.

52 There are passages, to which I have referred, in each of Hancock v Birsa and Jenal v Milner, which appear to me to blur the distinction between the commission of the trespass and the existence of a lawful excuse, by rolling them into a single indivisible question of whether the conduct of the defendant merits the imposition of a criminal sanction. If that approach to the construction of s 66(13) of the Police Act was ever justifiable, it cannot be sustained in relation to s 70A of the Criminal Code. That is because the legislature has directed that the onus of proving a lawful excuse rests upon the trespasser. It necessarily follows that when a prosecution is brought for contravention of s 70A, the court must resolve two separate and distinct questions. The first is whether the prosecutor has established, beyond a reasonable doubt, that the defendant committed a trespass as defined by the section. The second question is whether the defendant has discharged the onus of proving, on the balance of probabilities, that he or she had a lawful excuse for the trespass (as to the standard of proof, see King v The Queen [2003] HCA 42; [2003] HCA 42; (2003) 215 CLR 150).

53 As to the meaning of the word 'lawful', in the context of s 70A(2) of the Criminal Code, it means an excuse that is not forbidden rather than an excuse which is positively authorised by law. That conclusion is strongly suggested by the reasoning in Taikato and Roddan, and is reinforced by the subject matter of the provision. It is further reinforced by a consideration of the same expression - 'without lawful excuse' - in other sections of the Criminal Code.

54 Section 59 of the Criminal Code creates the offence of failing to attend as a witness pursuant to a summons issued by either House of Parliament, without lawful excuse. As there can be no positive lawful authority for failing or refusing to answer a summons issued by a House of Parliament, plainly in this context 'lawful' means 'not forbidden' rather than 'positively authorised'.

55 Section 173 creates the offence of perverse refusal by a public officer to perform his or her duty 'without lawful excuse'. Because the offence can only be committed if the relevant officer is under a duty to perform the relevant act, it is again impossible to conclude that, in this context, the word 'lawful' means 'positively authorised'. If an officer had positive legal authority to refrain from doing something, the officer would not be under a duty to do that thing. Accordingly, in this context also the word 'lawful' must mean 'not forbidden'. A similar observation applies to the offence created by s 177 of the Criminal Code, of failing to perform a statutory duty without lawful excuse, and s 178, of disobeying any lawful order issued by any court of justice or by any person authorised by any public statute in force, without lawful excuse.

56 Section 407(c) now creates the offence previously created by s 66(4) of the Police Act, and which was considered by Steytler J in Roddan. That case is therefore authority for the proposition that, in that context, the word 'lawful' means 'not forbidden' rather than 'positively authorised'.

57 The only other provision of the Criminal Code in which the expression 'without lawful excuse' is used is s 345, which concerns criminal defamation. That section was enacted in 2005, after s 70A had been enacted. Subsections (2) and (3) of s 345 expressly provide that an accused person only has a lawful excuse within the meaning of the section, if, having regard only to the circumstances before or at the time of publication, that person would have had a defence to civil proceedings for defamation.

58 It follows that in five of the six provisions of the Criminal Code in which the expression 'without lawful excuse' is used, it is clear that the word 'lawful' means 'not forbidden' rather than 'expressly authorised'. There is no reason to think that the legislature intended the expression to bear any different meaning in s 70A. In the sixth provision of the Criminal Code using 'without lawful excuse', the legislature has expressly stipulated that the expression is to be equated with a defence to civil proceedings. No such stipulation has been included within s 70A.

59 Turning then to the meaning to be given to the word 'excuse' in that expression, as I have observed, the relevant excuse must be an excuse proffered for the trespass. While the nature of an excuse which might be considered sufficient by a court may well depend upon the nature of the trespass committed, it is a mistake in principle to conflate the issues relating to the trespass and the issues relating to the excuse into a single issue.

60 Although the appellant submitted in his written submissions that 'without lawful excuse' should be construed by analogy with the common law defences to civil trespass, I do not consider the proposition that the only excuses within the scope of this section are those which would provide a defence to a civil claim for trespass to be sustained by the authorities to which I have referred (other than the decision in Wille), nor by the language of the section. If that had been the intention of the legislature, one would expect it to have included within s 70A an express stipulation to that effect, as was done in s 345.

61 Rather, as the High Court observed in Taikato, by enacting legislation in this form, the legislature has specifically left it to the court to determine, after the occurrence of the relevant facts, the metes and bounds of the conduct proscribed by the statute. The legislature can be taken to have concluded that the uncertainty which such a provision generates is justified by the flexibility which follows from a provision which operates in this way.

62 It would defeat the implied legislative objective of flexibility to endeavour to prescribe criteria which should be applied by a court to the assessment of the adequacy of an excuse proffered in any particular case (even if that were possible). The outcome in any particular case will depend critically upon the facts and circumstances of that case. Essentially what will be required in each case is a value judgment by the court as to whether the excuse established by the defendant justifies the trespass established by the prosecutor. One of the matters properly taken into account by a court when making that value judgment is the context of the normative assessment, that is, that the determination differentiate that conduct which is criminal from that which is not. However, that will only be one of many factors properly taken into account, and its significance may depend entirely upon the facts and circumstances of the particular case.

63 The question of whether any and, if so, what penalty should be imposed in the event of conviction is a quite separate question which should not be conflated with the determination of guilt or innocence. Section 46 of the Sentencing Act 1995 (WA) empowers a court to release an offender without sentence in the circumstances specified in that section. However, that power only arises for possible exercise after guilt has been determined.

64 It follows from the views I have expressed as to the proper construction and effect of s 70A of the Criminal Code that in this case, the magistrate erred in the approach which he took to the case. The findings of fact which he made compelled the conclusion that Mr McDonald had committed a trespass, because he remained on the site after any licence to be on that site had been expressly revoked. The magistrate found that after being required to leave, '[t]he accused deliberately further progressed more into the site and that was not insignificant in terms of distance covered or the time taken'. If Mr McDonald had moved only in the direction of the exit from the site, and had only taken a reasonable time to exit the site after being requested to leave, he could not be said to have committed a trespass by 'remaining' after being requested to leave (Cowell). However, the magistrate's findings of fact compelled the conclusion reached by the magistrate that Mr McDonald had trespassed, in contravention of the section.

65 The next question which the magistrate was required to address was whether Mr McDonald had established, on the balance of probabilities, a lawful excuse for remaining on the site. As I have noted, the only excuse identified by the magistrate was the reason given by Mr McDonald for attending the site in the first place. It was not suggested to the magistrate, nor on appeal, that such a purpose provided Mr McDonald with an excuse for remaining on site after being requested to leave. Any such contention would have been doomed to failure, in light of the fact that his authority to enter for those purposes had been revoked, and in light of the authorities referred to by Kirby J in Wille.

66 There was therefore no 'excuse', lawful or otherwise, established by Mr McDonald. It follows that the magistrate erred in the approach which he took to the case, because, having found that Mr McDonald was a trespasser, he failed to identify any excuse proffered by Mr McDonald and then assess whether that excuse justified the trespass. Rather, the approach taken by the magistrate was simply to assess whether or not, in his view, the trespass committed by Mr McDonald warranted the imposition of a criminal sanction. That was not the right question.

67 It follows that each ground of appeal has been made out. The magistrate did not apply the correct test to the determination of guilt, and on the facts found, only one conclusion was open, being the conclusion that Mr McDonald was guilty of the offence charged.

68 The first assertion made in Mr McDonald's notice of contention is to the effect that the prosecution had failed to prove, beyond reasonable doubt, that he failed to leave the place within a reasonable time of being asked to leave. That proposition is directly inconsistent with the findings of fact made by the magistrate, which were plainly open on the evidence adduced. It must be rejected.

69 The second ground advanced in the notice of contention is to the effect that Mr McDonald had established, on the balance of probabilities, a lawful excuse, in that he had left the premises within a reasonable time of being requested to do so. This proposition misconceives the structure of the statutory provision. If Mr McDonald had left the place within a reasonable time of being requested to do so, he could not be said to have 'remained' on the premises, and could not be found to have committed a trespass, with the result that no question of lawful excuse would have arisen. That a trespass constituted by remaining after being requested to leave was of only a short duration cannot amount to an excuse for the trespass. Put another way, the proposition impermissibly conflates the issues of trespass and excuse. It must also be rejected.

70 For these reasons the appeal should be allowed and the decision of the magistrate acquitting Mr McDonald set aside and in place thereof, a verdict of guilty entered. The matter should be remitted to the magistrate for the determination of sentence.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILSON -v- McDONALD [2009] WASCA 39 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Practice and procedure - Costs - Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3) - Appeals in which a police officer, acting in an official capacity, is a party to proceedings - Point of law of 'exceptional public importance' - Discretion - Consideration of analogy of civil proceedings - No general rule that costs should ordinarily follow the event - Application under s 10 of the Suitors' Fund Act 1964 (WA)

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3)

Suitors' Fund Act 1964 (WA), s 10(1)

Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA)

Haynes v Hughes [2001] WASCA 169

Hoskins v Ramsden [2008] WASC 28(S)

Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S)

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133

Papas v Papas [2004] WASCA 6

R v Kelly (Attorney-General's Reference No 53 of 1998) [1999] UKHL 4; [2000] 1 QB 198

1 MARTIN CJ: On 12 February 2009 the court published its reasons for concluding that this appeal should be allowed. On that occasion, orders were made setting aside the decision of the magistrate (acquitting the respondent and awarding him his costs of the trial) and directing that in their place a verdict of guilty be entered. Orders were also made remitting the matter to the magistrate for the determination of sentence and to deal with the question of the costs of the trial. A timetable was set for the exchange of written submissions in relation to the costs of the appeal, with a direction that that issue be determined on the papers. The parties have now filed and exchanged submissions pursuant to those directions. These are my reasons for the orders which will be made in relation to the costs of the appeal.

2 The appellant submits that the respondent should be ordered to pay his costs of the appeal to be taxed, on the basis that costs should follow the event, and the appellant was successful in his appeal. The respondent accepts that s 14(1)(h) of the Criminal Appeals Act 2004 (WA) empowers the court to make an order as to the costs of the appeal, subject to the specific provisions contained in s 20(2) and (3) of that Act relating to appeals in which a police officer, acting in an official capacity, is a party to proceedings. The appellant in this case is a police officer, acting in that capacity. The respondent submits that a significant issue in the case, being the proper construction of s 70A of the Criminal Code (WA) was resolved adversely to the submissions of the appellant. The respondent further submits that the appeal involved a point of law of exceptional public importance, with the result that, pursuant to s 20(3)(b) of the Criminal Appeals Act, the court should make an order that the respondent be paid his costs of the appeal by the state, and that he should not be ordered to pay the appellant's costs. In the alternative, the respondent seeks an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA).

The court's general discretion with respect to costs

3 Section 14(1)(h) of the Criminal Appeals Act provides, relevantly:

(1) In deciding an appeal, the Supreme Court may do one or more of the following -

...

(h) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.

4 The general power to award costs conferred by that provision is, however, constrained by s 20 of the Criminal Appeals Act which is in the following terms:

1. Costs against Attorney General, JPs or police officers

(1) If the Attorney General is an appellant in proceedings under this Part, the Supreme Court must not order the Attorney General to pay the costs of any of the respondents, but the Supreme Court may order that a respondent be paid costs, and in such a case -

(a) a registrar of the Supreme Court must give that respondent a certificate sealed with the seal of the Supreme Court showing the amount of the costs; and

(b) the person may recover that amount in a court of competent jurisdiction as a debt due by the State.

(2) If a JP or a police officer, acting in an official capacity, is a party to proceedings under this Part, the Supreme Court must not order that the JP or officer is to pay any costs.

(3) Despite subsection (2), if a police officer is an appellant in an appeal under this Part and the decision appealed against -

(a) is confirmed; or

(b) if not confirmed, has in the opinion of the Supreme Court involved a point of law of exceptional public importance,

the Supreme Court may order that a respondent be paid costs, and in such a case -

(c) the Supreme Court must give that respondent a certificate sealed with the seal of the Supreme Court showing the amount of the costs; and

(d) the person may recover that amount in a court of competent jurisdiction as a debt due by the State.

5 So, the general effect of the Criminal Appeals Act is to confer upon the court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, unless the case comes within the specific provisions of s 20, in which case those provisions will apply.

6 In the context of statutory provisions conferring upon the court a discretion with respect to the costs of criminal proceedings, judges of this court have from time to time expressed the view that the ordinary rule is that costs should follow the event: see for example, Hoskins v Ramsden [2008] WASC 28(S) [17]; Haynes v Hughes [2001] WASCA 169 [34]. That is of course the ordinary rule in civil proceedings in this court: see Rules of the Supreme Court 1971 (WA), O 66 r 1.

7 However, the analogy between civil proceedings and appeals to this court in respect of criminal proceedings before magistrates is far from perfect. By the express provisions contained in s 20 of the Criminal Appeals Act, the legislature has recognised that particular provisions with respect to costs are required because of the public component of appeals in criminal proceedings, including the particular role of public officials in relation to those appeals. Although some appeals to this court from the decisions of magistrates may arise in respect of offences that have a regulatory character, and which may be more analogous to civil proceedings in this court, many appeals, including this one, relate to the enforcement of the criminal laws of the state. There is a strong element of public interest in the enforcement of those laws, which is an element that is often lacking in civil proceedings in this court.

8 The appellate jurisdiction of this court with respect to the decisions of magistrates in criminal proceedings also has a supervisory character. Amongst the interests served by the exercise of that jurisdiction is the clarification and elucidation of the law to be applied, and the practices and procedures to be adopted by magistrates in the exercise of their criminal jurisdiction. The public importance of that jurisdiction cannot be overstated, as it is the magistrates of this state who hear and determine the vast majority of criminal charges brought.

9 Considerations of this kind led a majority of the High Court to conclude that where a general discretion was conferred in relation to the costs of summary criminal proceedings before magistrates, there was no direct analogy with civil proceedings, with the result that there was no general rule to the effect that costs ordinarily follow the event: see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 per Mason CJ at 543, per Dawson J at 547 - 561 (Brennan J concurring), per McHugh J at 568 - 569; also see Papas v Papas [2004] WASCA 6 [9].

10 Accordingly, with respect to those who may have expressed a contrary view, the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, outside the specific topics covered by s 20 of that Act, the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.

11 The respondent asserts that this case falls within s 20(3)(b) of the Criminal Appeals Act, because the appellant was a police officer, the decision appealed against was set aside, and the case involved a point of law of exceptional public importance.

12 There is no doubt that the case involved a point of law. That point was the proper construction of s 70A of the Criminal Code. The point was restricted to the proper construction of that provision, and had no implications beyond that particular provision. There is no evidence before the court as to the frequency with which charges are brought under that section of the Criminal Code. However, it is clear from the authorities referred to in this court's substantive decision that the particular issue of construction, concerning the meaning to be given to a 'lawful excuse' for a trespass, has arisen from time to time in this and other jurisdictions. When assessed by reference to the maximum penalty provided in relation to the offence created by s 70A, it is obviously one of the less serious offences created by the Criminal Code. Yet its precise scope is of some significance to those in occupation of land in this state, and to those who enter land occupied by others.

13 The expression 'public importance' comprises words of plain and ordinary meaning. The expression connotes that the point of law must be of importance to the public. There are many ways in which a point of law might meet that description. One is through its capacity to affect a large number of people: see for example Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133 [55]. Another might be the significance of the point to the maintenance of public order. It is neither possible nor desirable to attempt to exhaustively define the circumstances in which a point of law might meet that simple description.

14 The point of law which arose in this case is properly described as a point of public importance. The previous authorities in this area required reconciliation, and although infringement of s 70A of the Criminal Code will seldom give rise to the imposition of a substantial penalty, the terms and effect of the section have a significant impact upon the sanctity and privacy of those occupying land in this state, and upon the obligations of those who enter land occupied by others.

15 However, in order to enliven the discretion conferred by s 20(3)(b) of the Criminal Appeals Act, it is necessary that the point of law involved in the appeal be of 'exceptional public importance'. The adjective 'exceptional' is another ordinary English word:

It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

(R v Kelly (Attorney-General's Reference No 53 of 1998) [1999] UKHL 4; [2000] 1 QB 198, 208 per Lord Bingham of Cornwall CJ; with reference to the importance of the word 'exceptional' in s 20(3)(b) of the Criminal Appeals Act also see Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S) [12]).

16 The characterisation of a particular point of law as being one of 'exceptional public importance' obviously involves questions of degree, in which subjective impressions are likely to be more significant than attempts at rational evaluation. However, the construction of a particular statutory provision, involving an issue with no implications beyond that particular provision could not be said to be exceptional. To the contrary, it is the ordinary course in this court. Nor could the need to reconcile previous decisions be said to be out of the ordinary or uncommon. Further, there was nothing else about the point of law raised by this case which elevates it to being of exceptional public importance. In my view, although the point of law raised by this appeal was of public importance, it should not be characterised as being of exceptional public importance.

17 It follows that the precondition to the exercise of the power conferred by s 20(3) of the Criminal Appeals Act is not met, and the respondent's application for an order for costs in his favour pursuant to that provision should be rejected.

The proper exercise of the general discretion in this case

18 Returning then to the proper exercise of the general discretion in this case, the following factors are relevant. First, the appellant succeeded in the appeal. Second, the point of law was a point of public importance, albeit not of exceptional public importance. Third, the point involved did require the reconciliation of previous authority. Fourth, the public interest is served by the judicial enunciation of the proper construction of s 70A of the Criminal Code, because of its impact upon the rights of property owners in this state, and of the obligations of those who would seek to

enter land occupied by others. Fifth, the legal uncertainty created by the particular language used by the legislature, in the context of the earlier authorities, meant that it was reasonable for the respondent to oppose the appeal. Sixth, the fact that the respondent was put in a position of having to decide whether or not to respond to the appeal came about as a consequence of an error of law by the magistrate. Seventh, and perhaps most significantly of all, although the appellant was ultimately successful in the appeal, the construction of the statutory provision for which he contended was not accepted by the court. Argument with respect to construction occupied a significant proportion of the written and oral argument.

19 Weighing all these considerations, in this case the proper exercise of the general discretion with respect to the costs of the appeal is that there be no order as to those costs.

The application for the Suitors' Fund Act certificate

20 Section 10 of the Suitors' Fund Act provides that where an appeal to this court on a question of law succeeds, the court may grant to the respondent to the appeal a certificate under the Act. There is no doubt that this was an appeal on a question of law, so that the conditions for the grant of a certificate in favour of the respondent are met. Further, having regard to the circumstances to which we have already referred, including the public importance of the point of law and the previous uncertainty of the law, there is no reason in this case why a certificate should not be granted in favour of the respondent. The effect of that grant will be to enable the respondent to recoup his reasonable costs up to the maximum amount of $2,000 specified under the Suitors' Fund Act and regulations.

21 For these reasons, there should be no order as to the costs of the appeal. However, the respondent should be granted an indemnity certificate under the Suitors' Fund Act.

22 WHEELER JA: I have had the advantage of reading in draft the reasons for decision to be published by the Chief Justice. I agree with his Honour's conclusion that the point of law involved in this appeal was not one of "exceptional public importance" within the meaning of s 20(3)(b) of the Criminal Appeals Act 2004 (WA).

23 It is not, in my view, necessary for me to consider whether, as his Honour suggests, there is in appeals of this kind a general and

unconstrained discretion with respect to costs, or whether, as has sometimes been suggested, the general rule is to the effect that costs should ordinarily follow the event in such a case. That is because, whatever the starting-point, it is my view that the seven factors referred to by his Honour at [18] - and particularly the sixth and seventh of those factors - would, in either case, lead to the conclusion that the proper order in the present case is that there be no order as to costs.

24 Finally, I agree with his Honour that there should be a certificate granted under s 10 of the Suitors' Fund Act 1964 (WA), as proposed by his Honour.