The University ofqueensland Law Journal Vol. 15 No.2 239 Forcible Entry, Legal History and the Griffith Code By R.S. O'Regan Q.C.* Summary It is a settled rule ofconstruction that, in general, the words ofa code should be given their ordinary meaning. This article discusses by reference to section 70 ofthe Queensland Criminal Code which defines the offence of forcible entry one of the exceptions to the rule. Where words used in a code have acquired a technical meaning in the law which the code supersedes that meaning may continue to apply. Forcible entry was an offence both at common law and by statute centuries before the Queensland Code came into force. It is submitted consistently with the pre-existing law that to constitute an offence under s. 70 the entry there referred to by the accused on to land in the peaceable possession ofanother must be one effected for thepurposeofassuming occupation oftheland. It is well settled that the Criminal Code which Sir Samuel Griffith drafted for Queensland and which also applies in Western Australia and Papua New Guinea should be construed according to the natural meaning of the words there used and without any presumption that it was intended to do no more than restate the 'existing law. 1 However, that rule admits of exceptions. One of them, as expressed by Windeyer J. in Mamote Kulang,2 is as follows: "... when the Code employs words and phrases that had before its enactment been part of the language of criminal law, and had been long used to embody and express ideas deeply rooted in its history, we should read those words in the Code in their established meanings, unless of course they be displaced by the context. "3 The decision of the High Court in Prideaux v. Director ofpublic Prosecutions (Vic.) 4 prompts the question whether the rule or the exception applies to the construction of s. 70 of the Code 5 which provides: "Any person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters on land which *of the Queensland Bar. 1. See, e.g., Brennan (1936) 55 C.L.R. 253, at 263 per Dixon and Evatt 11. and Stuart (1974) 134 C.L.R. 426, at 437 per Gibbs 1. 2. (1964) 111 C.L.R. 62. 3. Ibid., at 76. 4. (1987) 163 C.L.R. 483. 5. The corresponding sections of the Codes in force in Western Australia and Papua New Guinea are respectively s. 69 and s. 71.
240 R.S. O'Regan is in the actual and peaceable possession of another is guilty of a misdemeanour, and is liable to imprisonment for one year. It is immaterial whether he is entitled to enter on the land or not." 6 The obvious reading of the section is that the purpose of the accused in going on to the land is irrelevant. If he did so in the circumstances specified he has committed the offence. In particular it would not be necessary for the prosecution to show that his purpose in entering was to dispossess the occupier and occupy the land himself. In Prideaux the High Court construed s. 207(1) of the Victorian Crimes Act 1958, a provision in somewhat similar terms to s. 70, as requiring proof that the accused intended to assume or resume possession. That section provides: "No person except where entry is given by the law shall make an entry upon land in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace. Except as aforesaid it is immaterial whether he is entitled to enter upon the land or not." Itwill benoted thatthis section, like s. 70, says nothing aboutthe intention of the entrant. Nevertheless the High Court read down the generality of the provision because its language followed closely the terms used in the old English statutes of forcible entry which the Courts had until very recent times applied only to entries effected with an intention to occupy. The High Court set out the modern text of the first of these statutes enacted in 1381 7 as follows: "... none from henceforth make any entry into any lands and tenements, but in case where entry is given by law; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner. And if any man from henceforth do to the contrary, and thereof be duly convict [sic], he shall be punished by imprisonment..." 8 Certainly there is a striking similarity both in ideas and in language between this ancient provision and the Victorian section. Its resemblance to s. 70 of the Griffith Code is rather less pronounced because s. 70 uses the phrase "enters on land" rather than "makes an entry upon land" and because it provides no exception concerning "entry... given by the law". Thus the construction adopted in Prideaux is not necessarily applicable to s. 70. There are, as the High Court observed, "considerable textual 6. S. 71 is a complementary provision relating to forcible detainer. The corresponding provisions in the other Code jurisdictions are s. 70 (W.A.) and s. 72 (P.N.G.). 7. 5 Rich. 2 c. 7. Forcible entry and detainer were also offences at common law. The conduct complained of included something more than mere trespass e.g. violence or a breach of the peace. See Turner (ed.), Russell on Crime (12th ed., 1964) 279, 280 and Mountford [1972] 1 Q.B. 28, at 37 per Phillimore L.J. 8. This statute was supplemented by later statutes of 1391 (15 Rich. 2 c. 2), 1429 (8 Hen. 6 C. 9) 1588 (31 Eliz. 1 c. 11) and 1623 (21 Jac. I c. 15). The statute of 1381 is the only one relevant to the present discussion.
Forcible Entry, Legal History and the Griffith Code 241 differences" 9 between the two Australian sections. This is suprising because the Victorian section was derived from the Queensland one. Section 207 was first enacted in Victoria as s. 52 of the Imperial Acts Application Act 1922, an Act which, inter, alia, repealed certain Imperial enactments and consolidated others. Among those consolidated were the st~tutes of forcible entry which had been held to apply in Victoria. lo The Act was a result of the work of a Joint Select Committee of the Victorian Parliament which had the benefit of advice from Sir Leo Cussen, a Judge of the Supreme Court of Victoria, who had prepared a draft Bill on the matter. II The Committee considered that in recommending the enactment of s. 52 it was merely adopting the formulation used by Sir Samuel Griffith 12 when he drafted his Code in 1897 and in s. 70 drafted a provision designed to displace the same English statutes considered to be in force in.queensland also. I3 However,. the sections are in rather different terms and it is necessary to consider whether, despite these differences, s. 70 should be interpreted in the same way. There is no reported authority on the point in Queensland or Western Australia. In Papua New Guinea there is only one authority and that is the unreported decision of a single judge. I4 This case will be referred to later. It is appropriate first to describe thegenesis ofs. 70. Thatwill at least help to explain what the draftsman intended to accomplish by it. As the first step towards the drafting of his Criminal Code Sir Samuel Griffith compiled a Digest in which he endeavoured to state the statute law in force in Queensland at the time. I5 That included Imperial statutes as well as New South Wales and Queensland enactments. But he did not merely transcribe Acts considered to be in force. As he explained in a letter of 1st June, 1896 to the Attorney-General forwarded with his Digest when it was published his aim was to set out the legislation "in the same form, as nearly as the nature of the work would allow, as if it were proposed to consolidate and re-enact the law without alteration of any of its substantive provisions, but in the shorter and simpler phraseology used in modern Acts of Parliament." 16 In accordance with this scheme Sir Samuel included as s. 39 of the Digest a restatement ofthe Act of 1381. That sectionprovided, "Any person who makes an entry upon any land with force or with a 9. (1987) 163 C.L.R. 483, at 486. 10. Reg v. Templeton, ex parte Moore (1873) 4 A.J.R. 39. 11. See Report from the Joint Select Committee of the Legislative Council and Legislative Assembly on the Imperial Acts Application Bill together with Minutes ofevidence, 1922. 12. Ope cit. 5, 24. 13. There was no Queensland decision to this effect but Sir Samuel Griffith thought the statutes applied there also. See S. 39 of his Digest referred to in n. 15 infra. 14. Lawton, 1954, unreported, Phillips C.J. 15. Griffith began the work in 1893 and completed it in 1896. It was published by the Queensland Government Printer in 1896 as A Digest of the Statutory Criminal Law in force in Queensland on the First Day ofjanuary, 1896. 16. The letterwas reprintedwiththe Digest. See Ope cit. vi.
242 R.S. O'Regan multitude of people is guilty ofa misdemeanour and is liable on conviction to fine and imprisonment at the discretion of the Court." 17 Fifteen months later Sir Samuel had completed his Draft Code and s. 39 of the Digest had become s. 71 of that Draft and in 1901 was adopted as s. 70 of the Code. I8 However, the language of the Digest provision had been considerably modified in the process. The phrase "with force or with a multitude of people" so redolent of the Act of 1381 had been replaced by the modern expression "in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace" and "enters" had been substituted for the more cumbrous but historic phrase "makes an entry". The marginal notes to s. 71 of the Draft Code reveal that its sources were the Act of 1381, s. 39 of the Digest and s. 95 of the English Bill of 1880 based on the famous Draft Code of Sir James Stephen. It is obvious that the last mentioned source accounted for these departures from the text of the Digest in the Code provision. Section 95 of the Bill of 1880 provided, so far as material, as follows: "Forcible entry is where a person whether entitled or not enters in a manner likely to cause a breach ofthe peace or reasonable apprehension thereof, on land in the actual and peaceable possession ofanother." This is in virtually the same terms as s. 70. However, as Philp J. observed in Martyr, "the marginal notes in the Draft Code are of no more than historical interest." 19 They cannot be taken into account for interpreting the provisions of the code as enacted. Nevertheless, if the words ofs. 70 had an established meaning when that provision was enacted that meaning should be applied unless the context dictates otherwise. It is submitted that the word "enters" in s. 70 is synonymous with the phrase "make any entry". There is no doubt that when the Griffith Code was enacted the latter phrase had acquired a technical meaning in the statutes of forcible entry. The word "enters" in s. 70 should be given the same meaning. There is nothing in the context of s. 70 to displace it. The reasoning in Prideaux is therefore applicable in the construction of the Code section. The Courts in Canada have consistently reached the same conclusion when interpreting the Criminal Code in that country. Section 89 of the Criminal Code of 1892 was in precisely the same terms as s. 95 of the Bill of 1880 which has been set out above and the latter provision is, as already indicated, almost identical with s. 17. In the letter (op. cit. viii) Sir Samuel explained the reason for placing certain words in this and other provisions of the Digest in italics as follows "... it appeared convenient when a Statute does not mention whether an offence created by it is a felony or a misdemeanour or does not mention the punishment which at Common Law is assigned to the offence defined in such language as is used in the Statute, to give that information. This has been done in italics." 18. When the Code came into force on 1st January, 1901. 19. [1962] Qd R. 398, at 410.
Forcible Entry, Legal History and the Griffith Code 243 70 of the Griffith Code. In Pike 20, the Court of Queen's Bench, Manitoba, held that an entry upon land for the purpose of seizing and taking away chattels, although made without permission of the occupant and in a manner likely to cause a breach of the peace, was merely a trespass and not a contravention of s. 89. After reviewing some of the English texts and authorities the Court concluded that Parliament should not be taken to have in enacting that section modified the pre-existing law requiring intention to take possession as an ingredient of the offence. Pike has been followed by other Provincial appellate courts in Canada. 21 In Australia the New South Wales Court of Appeal applied the decision in Waugh 22 and so too did the High Court in Prideaux. In 1971 the Court of Appeal in England held in Brittain 23 that, under the Act of 1381, gate-crashing not accompanied by any intention to occupy the premises could constitute an offence. Cairns L.J. who delivered the judgment of the Court acknowledged that "from 1381 to 1971 no case is to be found in the reports in which anybody has been convicted of forcible entry when he has not apparently entered with the intention of occupying." 24 However, he concluded that the words of the statute should be given their plain meaning in a modern setting, Le. entry with or without a view to occupation. He reasoned as follows: "The common law forbade forcible entry by people who were not entitled to enter. The weakness of the common law was that the peace might be broken by people who were entitled to enter going in with force and terror. The statute was passed, therefore, to include as its terms indicate, both the case of persons who had no lawful right to enter and those who had, and in the view of this Court, the intention of the statute was to prevent breaches of the peace in the case of a forcible entry whether or not the person entering had a right to enter peaceably and that it was quite immaterial whether it was the intention to occupy or not." 25 The High Court in Prideaux refused to accept this analysis. It noted that the Court of Appeal had not been referred to some of the authorities. Certainly there was no reference at all to the Canadian decisions. The High Court on the other hand expressly approved the reasoning in Pike and with reference to the object of the old English statutes observed: "The statutes of forcible entry protect the peacefulness of actual possession of land and that is an object as appropriate to a modern civilised society as it was to the society of fourteenth century England." 26 There appears to be only one decision in the Griffith Code jurisdictions in which the construction of s. 70 has been considered. 20. (1898) 2 Can. C.C. 314. 21. See Gordon (1947) 88 Can. C.C. 413 and Scribner (1968) 4 C.C.C. 126. In the latter case the relevant section was s. 73 of the Criminal Code adopted in 1955 but that was in materially the same terms as s. 89 ofthe 1892 Code. 22. (1934) 52 W.N. (N.S.W.) 20. 23. [1972] 1 Q.B. 357. 24. Ibid., at 359, 360. 25. Ibid., at 359. 26. (1987) 163 C.L.R. 483, at 487.
244 R.S.O'Regan This is Lawton and Ors. an unreported decision of Phillips C.J. of the Supreme Court of Papua and New Guinea in 1954. The accused had entered upon certain land in order to remove machinery to which they claimed to be entitled. It was. held that as they had not intended to assume or resume possession of the land they had not committed any offence under s. 70. Phillips C.J. noted that forcible entry was an offence both at common law and by statute long before the adoption of the Code in Papua New Guinea. He considered that s. 70 was meant to embody the old common law offence of forcible entry and not the offence created by the statute of 1381 because it referred to entry by such force as constituted a breach of the peace rather than, in the words of the statute, "by strong hand".27 This, it is submitted, is not so. Sir Samuel Griffith in his marginal note had referred specifically to the statute and the difference in phraseology is, as has been submitted, explained by the fact that he had recourse to s. 95 of the Bill of 1880. However, the argument then developed by Phillips C.J. is instructive. He said: "The question then narrows down to this:- Is the phrase, 'enters on land', in Section 70 of the Code, to be interpreted as referring to a mere physical going on to the land or is it to be interpreted, as it has been interpreted for some centuries in English law, as entryfor the purpose of assuming or resuming the possession of land? That long standing meaning of the phrase in English law must have been known to the drafter of Section 70 ofthe Code. It will be noticed that he, himself, uses the wellworn expression 'Forcible Entry' as a heading for the section, and, as I have said, I think he obviously meant to embody the old common law offence of forcible entry in that section rather than the offence defined in the Statute of 1381. It seems inconceivable that he intended that the phrase 'enters on land', appearing in a Criminal Code and in a section of the Code headed "Forcible Entry" should be construed in an entirely new way as meaning a mere physical going on the land. Surely, if he had meant that, he would have avoided the use of the word 'enters' and would have used some such word as 'goes' or 'comes' on the land. So, as at present advised, and I say that bearing in mind that the point has not been really exhaustively argued in this case, I am inclined to the view that the entry referred to in Section 70 of the Code is an entry on land with the intentionof assuming or resuming possession of the land. That was the meaning familiar to lawyers over some hundreds of years and I see no 'sufficient expression of intention' 28 in Section 70 to exclude that meaning." The "heading" to s. 70 to which Phillips C.J. referred was not a "heading" within the meaning of the Ordinances Interpretation Ordinance 1949-1954 then in force in that jurisdiction. Rather it 27. Jordan C.J. in Waugh (1934) 52 W.N. (N.S.W.) 20, at 21 noted that an indictment for the common law offence required an allegation of a breach of the peace whereas an indictment for an offence under the statute of 1381 required an allegation ofentry with a strong hand. 28. The quotation is from Mullen (1938) 59 C.L.R. 124 per Dixon J. at 136. In that case the High Court held that the Code did not disclose an intention to exclude the common law rule requiring the prosecution to negative a defence of accident beyond reasonable doubt.
Forcible Entry, LegalHistory and the Griffith Code 245 was a marginal note which was deemed not to be part of the Code 29 and which could not, according to orthodox doctrine, be used to assist in the construction of the section. 30 However, it is submitted that the Chief Justice was correct in reading s. 70 by reference to pre-existing English law relating to forcible entry. At the present time provisions such as s. 70 are invoked very seldom. Australia's newest Code, the Criminal Code ofthe Northern Territory 31 which is based on the Queensland Code, contains no such provision. There are indeed other provisions in the Griffith Code relating to unlawful assault, unlawful assembly and riot which may often be apt to deal with violent behaviour but, as the High Court pointed out in Prideaux, there remains good reason for proscribing conduct involving the disturbance of peaceful possession of land by violent means. Moreover, the section still merits discussion because of its theoretical interest. It demonstrates in a striking way the proposition that codification involves no absolute renunciation of the past. Rather the section is like provisions of the Tasmanian Code which Windeyer J. in Vallance v. The Queen described as "written on a palimpsest with the old writing discernible behind." 32 This is one occasion where the old writing is sufficiently distinct to be read together with what was later written over it. 29. See Ordinances Interpretation Ordinance 1949-1954, S. 27(3). 30. See the cases referred to in Pearce, Statutory Interpretation in Australia (2nd ed., 1981) para. 73. 31. Adopted by the Criminal Code Act 1983. There is a forcible entry provision in the only other Australian Code jurisdiction, Tasmania, but the provision in that Code explicitly requires that the entry be "for the purpose of taking possession" See S. 79(1). S. 91 of the New Zealand Crimes Act 1961 includes the same requirement. 32. (1961) 108 C.L.R. 56, at 76.