ALLEGED TRESPASS.

Dominion, Volume 1, Issue 240, 3 July 1908, Page 11

ALLEGED TRESPASS.

' A RACECOURSE CASE. IJfPORTANT JUDGMENT. ; : (BY TEIEORAPH.—SPECIAL CORBESPONDENT). : Ounedin, Jtily 1. ; ' . ; To-day.:tiioro was an i addition .to the case , law; of New Zealand on the subject- of racecourse trespass. Honi-y Clogg was convicted .; by : Mr. ; \Yiddowson of trespassing at Wingatui' on '.February 19, and .was fined £5., He .ihe'ii obtained an: ord6r nisi for prohibition, . and';to-da'y. Mi-.- Lemon moved ,to mako the order absolute. • Mr. Ilanlon, appearing for tho. Dunedin .Jockey; Club;. said .that.,the .conviction was jinder, Siibsection 3 of Section 6 of 'tho Polico ; : Oifencei ;'Act of 1884. . It was conceded that Clogg' was not" a'. bookmaker, : but it was proved at .the trial that ho was. "an un- ! aesiiable/' and it was contended that as tho Dunedin Jockey Club had passed a resolution that. fundesarables ; should be , excluded, tho oltib's '.private' detective having; warned Clogg' : offj/'hp'ithen.;became, a trespasser; refusing ; to leave-.after being warned so. to do. Tho : J . dccialoii; .of the Magistrate was . based upon the:,.dictum of Mr. Justice Denniston in , Loughliii v. Guinness, in which,his Honour ; . saidthat if'- an - unwitting trespasser learns < by. tlio fact of his being warned off another's property that. lie. is a trespasser, and re- , ttiseis -;to;. ; learo,'.- his: case complies; with . tho •• three" -conditions ;of tho by ; Mr; Justice Williams ,in'Regina v. Price, namely, that he. is /a/wilful .trespasser, .that lie ;is;warned .to leave, ;and: that. he neglects or. .refuses to do so.- This''interpretation had ; been . . upon', the .judgment riot. only by 'the Magistrate whose •decision V was;;riow- .under, review,' but ; also by 'other-' •;;%'©_^rat«'tm-:the : '. : -Poininion,,;'and l : if that. ,• view:of the judgment'could not be/sustained,; - ;\'bo A admitted that the - conviction woilld vbo.. supported.. .The 'Dunedin; Jcckey- • Club naturally wished io have His Honour's; rulingupon the question. . '•Mr. Lemon submitted that-tlio ordei;. must, bevmade,-absolute.'; , : This was a. case of; a first -warning .only, and- the. Act. prescribed . clearly that a nian only became a trespasser' wariiingrwas, given.- further,, theVpur-■ . eh aso ofa ticket was in tho nature of acontract, ; and/something ir.oro- than a . mero; license to. enter. " i Hanlon, in reply, contended tliat thero was no -real contract-in tho ticket of .admis-. si on, because it was against tho wish of the Club. . ;

His Honour: I do not think the Conviction should, stand. As I said iußegina v. Price, the .statute con templates 'three ingredients— 1 ■ a wiUul; trespass, a warning to leave, and v a neglect or-refusal to leave after such warning. Jlr. Justice. Deimistori says also that . ' inust b'e.a tre-spasser at.the tin:a the is :given.: Unless the appellant ; wis-!i'trespasser at' the timo'tho ,warning was given, the refusal, to leavo without a.further ' warning -would not'bring him within; the see-' tiori; "It. .would ■ require', a . further warning."/ Mr.' Justice Donriiston also sa.vs"Whether f. any'..'warning .would 'make him a trespasser, .the ' original • entry being lawful; would depend on . the fact ..of: his breach - of: the condition on\which ho 'en- ■ tered ; v'v That, being so, ? as. only one '\;wariiihgj';:^aa'.;{giveri ) - l \in:-'order ! .-. , tQ'.;sup--this; ; conviction r it would bo necessary. to show.'-that';at'jthetime-the Earning was given Clegg was a wilful trespasser.\ That; as a ,;iiiatter.'of fact ; has not been shown'.' Hg,* bought a .ticket ; to go on to tho race-course-unclogged by any'.conditions;' HavlDgjtnus' paid his money and having ..obtained . a.ticket/ho was told to. leave.: It'is impos- , ciblp to seo how at tho time iho was told' . ho could, bb. called in any way 'a trespasser. ; • It is' said ho' was.an undesirable, 'and that. the owners..had 'decided .110' undesirables should, ~ be.-admitted, and- that ;if. : ,they were. admitted they should'be'turned. out: Ho, -however, had ' rio.. ; n6tico~of'"any such resolution',' and he entered . absolutely. - A-',ticket was given him "without any. conditions 1 , at all. If this conviction were '• supported;;this ' would . follow: Supposmg- a person .took-a ticket for a theat- - ,■ rical; performance., and: entered an'd.-; ; tooli',,his seat, .Snd then the manager of th6',tlieatr6 . considered;.him an undesirable, did- not; like tho; look of him, and said to the man:. "Just' get out-.0f,. this,' -. and ihe. refused-to: go,-'and then ;'no; further--warning- was-'given.-' ■ It would be monstrous to. hold the man in that' caso v was a wilful trespasser. It is the samo here.' A man g-K-s to tho -races,'buys a . tickot Without any condition, and he is told to. go. It may be that after having been told to go in the first instance, and-being mado awar.Oi that he-, was' a trespasser, that if a subsequent warning had,been given he', would, then -be . a wilful .trespasser, although' even ' - then .tho point raised by Mr. Lemon .would have to! be considered that ho . was thero in pursuance- of a. contract; but that is not this case.;.,lt is a case where a man has paid ; his; money and is on' the ground lawfully, and then'a warning... is given' him.,; As. I' said before, ;he,:must bo ,a trespasser at the. timo .the warning is given;; That is not the caso . here;; ;■ ' The .rule was, made absolute; cost's five guineas-with disbursements. .