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Present: Grenier J.Aua- 9S<1911
500—P. C. Colombo, 29,001.
Trespass on the railway line—Offence under s. 32 of Ordinance No. 9 of1902—“ Trespass ” defined—Mens rea.
A person who goes on the railway line without the permissionof the railway authorities would be guilty of an' offence underseotion 32 of Ordinance No. 9 of 1902.
The term “ trespass ” in seotion 32 has not the same meaning ascriminal trespass.
“ Where the law says a certain act must not be done, and youconsciously do it, the law presumes intention or knowledge onyour part, and you have committed an offence."
rjlHE facts are set out in the judgment of Grenier J.
Van Langenberg, for the accused, appellant.—There must be some-thing in the nature of mens rea before the accused could be convicted.
Trespass under the Railway Ordinance is not the same thing ascriminal trespass under the Penal Code ; yet there must be proofof mens rea before a person can be convicted under section 32.
Counsel cited Queen v. Tolston1 ; Stroud’s Judicial Dictionary,
“ Trespass ”.
The public has a right of access to the seashore. '2 WalterPereira's Laws of Ceylon, pp. 179 and 180 ; the Attorney-General v.
Pitched The crown could not shut out any one from the seashore.
The ayah went to rescue the child.
Walter Pereira, for the respondent.—Necessity is no longer adefence to a criminal charge, though it is an element to be takeninto consideration on the question of sentence. Dudley v. Stephen.
The mens rea necessary for the commission of this offence is onlythe intention to go on the line ; that element is present in this case.
No further intention is necessary. The railway line is Governmentproperty ; and trespass on it is an offence. Whether the Govern-ment can keep people out of the seashore is a question that has to befought out in another arena.
[At the close of the argument counsel for the appellant obtainedpermission to submit an authority (Langendorff v. PennsylvaniaRailway Co?) referred to by Mr. Advocate Canekeratne.]
Cur. adv. vult.
• 23 Q. B. D. 6.1S,5 (1892) 1 S. C. It, 11,3 18 Ohio 310.
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. Aug. 2r>jou August 25, 1911. Grenier J.—
Shaikaii a. in this case the appellant was convicted of an offence punishablejcwaiamy urKjer section 32 0f Ordinance No. 9 of 1902. That section runs asfollows :—
Any person who shall trespass upon the railway, or upon any of thelands, stations, or other premises appertaining to the railway, shall beguilty of an offence, and liable to a fine not exceeding twenty rupees ;and if any such person shall refuse to leave the railway, or any land,station, or other premises appertaining thereto, on being requested to doso by any railway official or by any other person on behalf of a railwayofficial, he shall be guilty of an offence, and be liable to a fine notexceeding fifty rupees, and may be immediately removed therefrom bysuch railway official or other person *as aforesaid.
The word “trespass.” has not been defined in the Ordinance,and I take it that it must be understood in the ordinary sense inwhich it is used. It clearly has not the same meaning as the words“ criminal trespass ” in the Penal Code. The word “ trespass ”when used in connection with land under the English law means anentry or intrusion upon another’s ground without lawful authority,and doing some damage, however inconsiderable, to his realty. I donot think it was in this sense that the word “ trespass ” was used inthe Ordinance in the absence of any definition in it. In Tomlin'sLaw Dictionary, vol. 11., I find the word “ trespass ” defined asfollows :—
Trespass in a limited and confined sense as relates to land signifiesno more than an entry on another man’s ground without a lawfulauthority and doing some damage to his real property. For the right ofmeum and tuum or property in lands being once established, it followsas a necessary consequence that this right must be exclusive ; that is,that the owner may retain to himself the sole use and occupation of hissoils. Every entry therefore thereon without the owner’s leave, andespecially if contrary to his express order, is a trespass or transgression.
For every man's land is in the eye of the law enclosed and set
apart from his neighbours, and that either by visible or material fenceas one field is divided from another by a hedge ; or by an ideal invisibleboundary existing only in the contemplation of law, as when one man’sland adjoins to another's in the same field. And every such entry orbreach of a man’s close carries necessarily along with it some damageor other ; for if no other special loss can be assigned, yet still the wordsof the writ itself specify one general damage, namely, the-treading downand bruising his herbage.
It will be seen that this definition of trespass more particularlyapplies to actions at common law in England, and I am inclined tothink, looking to the whole scope of Ordinance No. 9 of 1902 andthe object sought to be attained by section 32 in particular, that theintention of the Legislature was to prevent persons from enteringupon or intruding upon any of the lands, stations, or other premisesbelonging to the railway without lawful authority, irrespective
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of any damage, however inconsiderable, being caused. The pro* Aug.in.iotivisions of section 32, therefore, as I read it, would apply to the case 0ltl~ ~t ,rof any person who goes on the railway line without the permission — -of the railway authorities. It is a well-known fact that persons are Lehahami/to be seen almost daily trespassing on the railway line who are liableto prosecution under section 32, and the mere fact of the railwayauthorities not taking action against them must not be construedto mean that the right to prosecute them is not available. All therailways in this Island are the property of the Ceylon Government,and if our Statute law says that no person shall trespass upon therailway, and makes such trespass a punishable .offence, it goeswithout saying that the law must be obeyed. And I do not see thatthe provisions of section 32, especially where it relates to trespasson the railway line itself, will work any hardship, when it isconsidered that by reason of passing trains the lives of carelesstrespassers are frequently placed in the most imminent danger. Inmy opinion section 32 was enacted as much in the interests of thepublic as of the railway authorities, and the provisions of it mustbe strictly complied with.
Now, let us see what the facts of this particular case are. Accord-ing to the evidence of Mr. G. F. Beven, who was driving the 5.20 p.m.train from Maradana to Mount Lavinia, as he was approachingWellawatta bridge he saw two small children on the line. One ofthe children evidently heard his whistle and ran away, leaving theother on the line. The child seemed unable to make up his mindto run, though Mr. Beven whistled again ; and Mr. Beven thereuponshut off steam, using his brake gently. At this juncture the appel-lant came from the left side of the line aind took away the child.. Itis clear that were it not for Mr. Beven’s prompt action a fatalaccident might have taken place. In her defence the appellantstated that she took the children to the seashore, presumably aftercrossing the line, and that they strayed to the' line under the Wella?watta bridge. The elder child on seeing the train coming ran toher, but the smaller child, who was on the far side of the line, madeno movement, and the appellant crossed the line in front of theapproaching train and picked the child up. On these facts it seemsto me plain that, although the appellant acted with considerable,courage in rushing forward at the risk of her own life to save thechild’s life, she has nevertheless, in law, committed the offencecharged against her, but in circumstances which hardly, called, forany punishment or, indeed, for any serious prosecution. Her actwas a transgression of the mere letter of the law, but all the sameit was an offence, however, technical, under section 32. 1 must,confess that I do not quite understand the defence that was, .raised’for her in the Court below, and in appeal, that there was an absenceof mens rea in her case. Where the law says a certain act musit dotbe done, and you consciously do it, the law presumes intention, or
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knowledge on your part, and you have committed an offence. Ifail to see, therefore, how the question of mens rea arises. Anotherground of defence was that the appellant committed no trespass,because she had a right to have access to the seashore. Upon thispoint the Magistrate thought that it was not open to him in theseproceedings to concern himself about the policy of the railwayauthorities in shutting off access to the seashore. I do not seemyself how the alleged common law rights of the appellant can bediscussed or settled in this case, or used as a weapon of defence, norcan I see in what way the appellant was justified in committing anoffence under section 32 in order to assert those rights. Thoserights must form the subject of inquiry and adjudication in properlyconstituted civil proceedings ; but so long as our Statute law saysthat it is an offence to trespass on the railway line, the law must beobeyed, as I have said before. In this view the American caseLagendorff v. Pemyshania Railway Co.} cited by the appellant’scounsel, does not apply. I would affirm the conviction, but in viewof the exceptional circumstances, in this case, which are verycreditable to the appellant, I would reduce the fine to a nominalone of one cent.
' Conviction affirmed; fine reduced.
• 4R Ohio. Sin.
SHJAIKALI v. LEISAHMAY