ABDUL AZEEZ and others, Appellants, and THE QUEEN, Respondent

019-NLR-NLR-V-67-ABDUL-AZEEZ-and-others-Appellants-and-THE-QUEEN-Respondent.pdf


[In the Privy Council]
Present: Viscount Dilhorne, Lord Morris of Borth-y-Gest, LordPearce, Lord Upjohn, and Lord DonovanABDUL AZEEZ and others, Appellants, and THE QUEEN,
Respondent
Privy Council Appeal No. 15 of 1964S. G. 799-807/59—M. G. Balangoda, 69020
Criminal trespass—“ Intent to annoy ”—Quantum oj evidence—Penal Code, se. 427,
433.
Such annoyance as may be caused to an occupier of property by the commis-sion of civil trespass upon that property is not sufficient to establish the offenceof criminal trespass. To constitute the offence of criminal trespass, it mustbe established beyond reasonable doubt that the intent or object with whichthe trespass was committed was one of those specified in section 427 of thePenal Code.
The accused-appellants were convicted on three counts, in each of which theoffence of criminal trespass was an essential ingredient. It was alleged bythe prosecution that the criminal trespass was committed by the accusedby entering into a certain tea estate with the intention of annoying the Superin-tendent who was in occupation of the estate and had refused them permissionto enter. The defence was that the purpose of the appellants, who were tradeunion officials, in entering the estate was to persuade certain labourers, whohad been on strike on the estate, to give up thoir “ sathyagraha ”. TheMagistrate who heard the case did not believe that the purpose of the appellantsin trespassing upon the estate wa® to get the strikers to abandon Sathyagraha.He found that, quite apart from the fact that there was direct evidence thatthe entry of the accused into the estate did cause annoyance to the Superinten-dent, it was quite clear that the natural consequence of the trespass was tocause annoyance to him.
Held, that the evidence in the case did not suffice to establish either directlyor by inference beyond reasonaole doubt that the object of trespassing on theestate was to annoy the Superintendent. While accepting the Magistrate’s con-clusion that the expressed intention to get the strikers to abandon Sathyagrahawas merely a pretext for entry, this finding by the Magistrate did not excludethe possibility that the real object of the trade union officials in making thetrespass was to meet the strikers, as stated by a witness, and to discuss theBtrike with them. Although a natural consequence of the trespass mighthave been to cause annoyance to the Superintendent, in the circumstancesof the present case it was not established with tne degree of certainty requiredto justify conviction, that the trespass was effected with intent to annoy theSuperintendent.
Held further, that, although the intent of the accused has in most cases to beinferred from the circumstances of the case, the fact that the entry into theestate was in defiance of the Superintendent did not warrant the inferencethat the trespass was committed with intent to annoy him. If that was thecase, then every trespass committed after the occupier of the property hadrefused permission to enter would constitute the offence of criminal trespass.
LXVTI—4
2B. 5775—1,865 (6/65)
Appeal from a judgment of the Supreme Court reported in(1963) 65 N. L. B. 553.
E. F. N. Oratiaen, Q.O., with John A. Baker and M. I. Hamavi Hanijfa,for the accused-appellants.
Mark Littman, Q.C., with Mervyn Heald, for the respondent.
Cur. adv. vult.
December 8, 1964. [Delivered by Viscount Dilhorne]—
The eight appellants were convicted on three counts in the Magistrate’sCourt at Balangoda on the 24th July 1959. Their appeal to the SupremeCourt of Ceylon was dismissed on the 28th October 1963, and their appealto the Judicial Committee was by special leave granted on the 26thMarch 1964.
The accused were charged as follows :—
“ You are hereby charged, that you did, …. at PettiagalaEstate on the 4th February 1959,
Being members of an unlawful assembly the common object ofwhich was to commit criminal trespass to the annoyance of A. S. Rasana-yagam the Superintendent of Pettiagala Estate, Balangoda, by enteringinto the said estate in the occupation of the said A. S. Rasanayagamand that you have thereby committed an offence punishable underSection 140 of the Penal Code.
That at the same time and place aforesaid and in the course of thesame transaction, you did commit Criminal Trespass by entering intothe said Pettiagala Estate, in the occupation of the said A. S. Rasanaya-gam, which offence was committed in the prosecution of the commonobject of the unlawful assembly or was such as the members of the saidassembly knew to be likely to be committed in prosecution of the saidobject and you being the members of the said assembly at the time of thecommitting of the said offence, are thereby guilty of an offence punish-able under Section 433 read with Section 146 of the Penal Code.
That at the same time and place aforesaid and in the course ofthe same transaction, you did, in furtherance of the common intentionof you all commit criminal trespass by entering into the said PettiagalaEstate in the occupation of the said A. S. Rasanayagam, with intent tocause annoyance to the said A. S. Rasanayagam and thereby you havecommitted an offence punishable under Section 433 read withSection 32 of the Penal Code.”
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Criminal trespass is defined by section 427 of the Penal Code asfollows:—
“ Whoever enters into or upon property in the occupation of anotherwith intent to commit an offence, or to intimidate, insult, or annoy anyperson in occupation of such property, …. or having lawfullyentered into or upon such property unlawfully remains there withintent thereby to intimidate, insult, or annoy any such person, or withintent to commit an offence, is said to commit * criminal trespass
The second and third counts both charge criminal trespass. The firstcount charged the appellants with being members of an unlawfulassembly, the common object of which was to commit the criminaltrespass they were charged with committing in the third count.
An unlawful assembly is defined by section 138 of the Penal Code, thematerial parts of which read as follows :—
“ An assembly of five or more persons is designated an ‘ unlawfulassembly ’ if the common object of the persons composing thatassembly is—
Thirdly—To commit any mischief or criminal trespass or otheroffence ; or
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It is to be noted that the first count alleges that the object of the unlaw-ful assembly was to commit criminal trespass “ to the annoyance of A. S.Rasanayagam ” and the third count alleges criminal trespass “ with intentto cause annoyance to A. S. Rasanayagam ”, but that the second countdoes not specify the intent with which the criminal trespass was alleged tohave been committed.
It is not necessary for their Lordships to decide whether in the absence ofany allegation of the intent with which the criminal trespass was commit-ted, the second count was a valid count. Proof of one or other of theintents specified in section 427 of the Penal Code is essential to justify con-viction of the offence of criminal trespass. For the purpose of this judg-ment it will suffice to treat the second count as if it contained an allegationthat the trespass was committed with intent to annoy Mr. A. S.Rasanayagam.
The first point taken on behalf of the appellants was that there was noevidence before the Magistrate’s Court sufficient to justify the conclusionthat the appellants had met together to trespass on the Pettiagala Estatewith the intention of annoying Mr. Rasanayagam and no evidence tojustify the conclusion that they trespassed with that intention. Theappellants contended that consequently their conviction on the threecounts was wrong and that the Supreme Court of Ceylon was wrongin dismissing their appeal.
At the trial evidence was given in support of the prosecution by theSuperintendent, Mr. Rasanayagam, an Inspector of Police, S. G. Muna-singhe, and by a conductor and a gatekeeper employed on the PettiagalaEstate. The only witness called for the defence was the first appellantAbdul Azeez.
Mr. Rasanayagam gave evidence that labourers on the PettiagalaEstate had been on strike since the 24th December 1958 and that negotia-tions in relation to the dispute were being conducted between theEmployers’ Federation and the Democratic Workers’ Congress, a tradeunion.
He said he had told the appellant Suppiah who was the District Repre-sentative of the Trade Union that till the negotiations were completed, noofficial of the Union should enter the estate.
He also said that on the 1st February the first appellant Abdul Azeezwho was President of the Trade Union spoke to him on the telephone andsaid that he w ished to enter the estate and go to where the strikers w ereperforming “ Sathyagraha ” in order to persuade them to give it up andgo to their fine rooms. Some time before this date some of the strikers hadengaged in squatting in front of the factory and on occasions in front of theSuperintendent’s residence and some of them had gone on hunger strike.This is called Sathyagraha.
The Superintendent told Mr. Abdul Azeez that he could not give per-mission to him to enter the estate without first consulting the Employers’Federation. He undertook to consult the District Convenor of theFederation and let him have a reply. A few’ minutes later Mr. Rasanava-gam telephoned to Mr. Abdul Azeez and told him that he was not able tocontact the District Convenor and therefore he was sorry he could notgrant his request.
On the 4th February two cars drove up to the main gates of the estate.According to the gatekeeper about ten people got out and entered theestate by a side entrance next to the main gate w hich is kept locked. Thegatekeeper reported this to the conductor who in turn reported this bytelephone to the Superintendent. Mr. Rasanayagam immediatelytelephoned the police. A few minutes after he had done so InspectorMunasinghe came to the Superintendent’s bungalow in the course of aroutine patrol. In consequence of what Mr. Rasanayagam said theInspector went with other police to the road leading from the main gateto the Factory. Mr. Rasanayagam followed them. He saw that theparty approaching consisted of the first appellant Abdul Azeez and nineor ten others. He said that he was annoyed by the presence of the firstappellant and his party on the estate and worried lest their presencewould lead to trouble.
The Inspector told the first appellant that Mr. Rasanayagam hadprotested at their entry upon the estate and at his request some of thosewith the first appellant turned back and left. The first appellant asked
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VISCOUNT DILHORNB—Abdul A**m w. TKm Qu*#n
for a few minutes to discuss the matter with his friends. The Inspectortold them they were committing an offence. After a short discussionthe first appellant said that they were going ahead along the road. TheInspector told them that he could not allow them to proceed further, andthen as they persisted in trying to go further into the estate arrestedthem. The eight appellants then arrested were taken tothepolicestation.The first seven are all officials of the trade union, the Democratic Workers’Congress. According to the first appellant the eighth appellant had notgone to the estate with them hut had joined them on the estate.
The Inspector also testified that when he first spoke to the first appellantthe latter said that he wanted to meet the strikers. The Inspector couldnot remember whether Mr. Abdul Azeez had told him that he wanted todo so in order to persuade them to give up the hunger strike.
Mr. Rasanayagam also testified that on the 20th February the firstappellant, accompanied by a police officer and a Labour officer withpermission entered the estate to call off the strike.
On this evidence it is clear that the first seven appellants who wereofficials of the trade union trespassed when they entered the estate. Theposition with regard to the eighth appellant is not clear. There was noevidence that he was a trespasser on the estate when he joined the otherappellants on the estate.
Mr. Abdul Azeez gave evidence that his purpose in going to the estateon the 4th February was to persuade the strikers to give up the hungerstrike and return to their lines, the same purpose as that he had statedwhen he telephoned asking permission to enter the estate on the 1stFebruary. He said that he did not for a moment imagine that his actionwould cause any embarrassment to the estate management.
The learned magistrate in the course of his judgment said :
“ After careful examination of the evidence given by the first accusedand the circumstances of this case, I am of the view that the claim putforward by the first accused was merely a pretext for the first accused **and the other trade union officials “ to enter the estate against thewishes of the Superintendent of the estate who was in occupation”.
It is clear from this passage that the learned magistrate did not believethat the purpose of the appellants in trespassing upon the estate was to-got the strikers to abandon Sathyagraha. His rejection of this evidenceof Mr. Abdul Azeez does not establish that their trespass was committedwith intent to annoy Mr. Rasanayagam.
Later in his judgment, the learned magistrate said :
“ Quite apart from the fact that there is direct evidence that theentry of these accused into the estate on the day in question didcause annoyance to Rasanayagam ; it is also quite clear that thenatural consequences of the accused’s act would be to cause annoyance
2*R. 5776 (5/65)
to Rasanayagam. I am therefore satisfied that the real intentionof the 1st to the 8th accused ” (the 1st to 7th appellants, the 8thaccused having died) “ at the time they entered this estate wasto cause annoyance to Rasanayagam, the person in occupation,and that they thereby committed the offence of criminal trespass.On the evidence before me I am also satisfied that the 1st to 8thaccused ” (the 1st to 7th appellants) “ were also members of anunlawful assembly the common object of which was to commitcriminal trespass by entering to the estate and that they did, inpursuance of the common object of the unlawful assembly, commitcriminal trespass. ”
Counsel for the respondent before their Lordships sought to sustain theconvictions on a similar line of reasoning. It was urged that the naturaland probable consequence of their trespass was that annoyance wouldbe caused to Mr. Rasanayagam and that in the absence of any evidenceaccepted by the magistrate pointing to any other intent, the Court wasentitled to infer that that was their intent.
It may well be the case that the commission of civil trespass doescause annoyance in the majority of cases to the occupiers of the propertytrespassed upon, but to constitute the offence of criminal trespass, itmust in the Lordships’ view be established beyond reasonable doubtthat the intent or object with which the trespass was committed wasone of those specified in Section 427 of the Penal Code, namely, tocommit an offence or to intimidate, insult or annoy any person inoccupation of the property.
In their Lordships’ view the evidence in this case did not suffice toestablish either directly or by inference beyond reasonable doubt thatthe object of trespassing on the estate was to annoy Mr. Rasanayagam.While accepting the learned magistrate’s conclusion that the expressedintention to get the strikers to abandon Sathyagraha was merely apretext for entry, this finding by the learned magistrate does not excludethe possibility that the real object of the trade union officials in makingthis trespass was to meet the strikers, as Mr. Abdul Azeez said to theInspector, and to discuss the strike with them.
Although a natural consequence of the trespass might be to causeannoyance to Mr. Rasanayagam, in the circumstances of this case it is,notwithstanding the learned magistrate’s finding, not established withthe degree of certainty required to justify conviction, that the trespasswas effected with intent to annoy Mr. Rasanayagam.
For these reasons in their Lordships’ opinion the appeals of all theappellants should be allowed and their convictions quashed. Theyhave humbly advised Her Majesty accordingly.
The learned magistrate went on to say,, immediately after the passagealready cited :—
“ In any event there is not the slightest doubt that, when allthese nine accused, after consultation among themselves, deliberatelydefied Inspector Munasingha and the Police party and persisted ingoing into the estate, they not only contributed (sic) themselvesinto an unlawful assembly, the common object of which was tocommit criminal trespass, but also did, in pursuance of the commonobject of the said unlawful assembly, commit criminal trespassagain. ”
In relation to this passage it suffices to point out that in the firstcount the appellants were charged with forming an unlawful assembly,the common object of which was to commit criminal trespass by enteringthe estate, and that in the second and third charges the criminal trespassrelated to entry into the estate. There was no charge preferred againstthe accused in relation to their conduct when upon the estate.
The appeals of the appellants to the Supreme Court of Ceylon weredismissed. In the course of his judgment, with which his brother judgesagreed, Chief Justice Basnayake said :—
“ The entry of the accused after permission to enter had beenasked for and not granted by the Superintendent in our opinionbrings the accused within the ambit of Section 427 of the PenalCode …. The intentof theaccusedis one that has to be inferredfrom the circumstances of the case. In the instant case the 1staccused asked for permission to enter the estate and was not grantedpermission. Despite that he and the others entered the estateclearly in defiance of the Superintendent whose permission theyhad sought. ”
Their Lordships do not take the view that every trespass comes withinthe ambit of section 427. They agree with the learned Chief Justicethat the intent of the accused has in most cases to be inferred from thecircumstances of the case, but the fact that the entry was in defianceof the Superintendent does not warrant the inference that the trespasswas committed with intent to annoy him. If that was the case thenevery trespass committed after the occupier of the property had refusedpermission to enter would constitute the offence of criminal trespass.
Their Lordships having formed the opinion that by the evidencegiven in this case it was not established that the intent of the accusedwas to annoy the Superintendent, did not find it necessary to considerthe other grounds put forward in support of the appeals.
Appeal allowed.