IN THE SUPREME COURT OF THE 
TERRITORY OF PAPUA AND NEW GUINEA

THE QUEEN

-v- 

DONALD ROSS LAWTON, JOHN STANLEY LUCKIE, JAMES BIRCH and ARTHUR CHARLES RIGBY

JUDGMENT
(Oral)

delivered by The Chief Justice at 9030 a.m. on Friday, 10th December, 1954.

In this case the four accused, Donald Ross Lawton, John Stanley Luckie, James Birch and Arthur Charles Rigby, are jointly charged with having on the 30th October last entered upon certain land which was then in the actual and peaceable possession of one, James William Derbyshire, in such a manner as to be likely to cause a breach of the peace and, as the learned Crown Prosecutor has told us, that charge is laid under section 70 of the Queensland Criminal Code, as adopted for the Territory of Papua. That section reads:- "Any person who, in a manner likely to cause a breach of the peace,.... enters on land which 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".

As to the facts, these in the main were not disputed and the differences and discrepancies which occurred are largely explainable by the facts that there was a certain amount of excitement at Ielolo that Saturday morning (30th October), that it was some time ago, and that there had been, and still was, some tension between some of those present.

As to the accused, two of them are Directors of Papuan Constructions Limited, Mr. Lawton being the Managing Director and Mr. Luckie a Director. The accused, Birch, is an employee of that Company and the accused, Rigby, is a sawmiller on his own account and the possessor of a truck which was hired for use that day. The scene of the alleged offence was the Kokoda Track Sawmill which Derbyshire was running. Some excellent Police photographs have been produced which show that the sawmill is an open building, not a lock-up place; the ends are wide open. It appears from the evidence that it is situated mostly on, a small part of it possibly slightly off, the land held by Derbyshire under Agricultural Lease No. 1030, Vol. 5, which lease was still held by Derbyshire on the 30th October.

I shall now look at the antecedent history insofar as it may shed some light on what happened on that Saturday. It appears that, on the 2nd March, 1954, Derbyshire and one, Eustace, signed an agreement, the object of which was to transfer, to Eustace, Derbyshire's interest in fifteen acres of land that formed part of the lease I have mentioned, and on which fifteen acres the mill stood; also to transfer to Eustace the sawmill and machinery. But that agreement was subject to a number of conditions, one of which was the Administrator's prior approval. A little later, on the 30th of April, 1954, Eustace entered into an agreement with Papuan Constructions Limited and the object of that agreement was to transfer to them the interest in the fifteen acres of land I have already mentioned and the sawmill and the machinery: this agreement also was subject to certain conditions, one of which was the Administrator's prior approval. After that, apparently, and until early in July, the Company ran the mill with Eustace as their paid employee. But the accused, Lawton, says that, on the 9th July, when he was paying the staff out there, it was obvious to him that Eustace was not a willing employee: Eustace said to Lawton that he did not think the contract he had entered into was a binding one. A little later according to Lawton, Eustace told him that Derbyshire had withdrawn his proposal about the fifteen acres; he would not surrender the Agricultural Lease to get that bit carved out. Derbyshire said in evidence that he had withdrawn his original application and had refused to surrender the fifteen acres; because the condition of his agreement had not been carried out. Now the two agreements were produced by the Defence and, on that of the 2nd March, I see that there is an endorsement signed by the Administrator dated the 21st of July and that, on the agreement of the 30th of April, there is an exactly similar endorsement signed by the Administrator dated the 3rd of August, 1954: in both of those endorsements it is recited that Derbyshire had withdrawn his application to surrender Agricultural Lease 1030. Well, from that it seems pretty clear that in July, or at the latest early August, the Directors of Papuan Constructions Limited should have known that some hitch had occurred in implementing the agreements. On the 5th of August, they seized some machinery from the mill – about £50 worth they say – with the object of putting the mill out of action and thus forcing Eustace to carry out his agreement with them. I am not quite clear as to how this putting the mill out of action was to be effective on Eustace, especially as they must have known that it was Derbyshire who was the stumbling block. Perhaps the idea was to adopt a procedure like that of the shunting yards, where a bump into one truck causes it to bump into the next one.

The Defence has made the point that Derbyshire did not complain to Lawton and Luckie themselves about the taking of that machinery in August: Derbyshire says he did complain to the Police. Of Course, an explanation could be that everybody was in confusion as to just what the position was at that stage. However, after that pay day in July, the day the directors found that Eustace was not happy about working for them, it appears that Derbyshire took over the running of the mill, that he paid Eustace as an employee, and that that was the situation as far as they were concerned on the day of the alleged offence.

Lawton and Luckie say that they did not realise that Derbyshire had taken over the control of the mill again, but they admitted that they knew that the land was still his. So, then, on the 30th October the position, briefly, was this: Derbyshire appears to have considered himself as the owner of the sawmill and the machinery in it on the ground that his earlier proposed agreement to transfer the mill to Eustace had, as he said, "never been finalised". On the other hand, Papuan Constructions Limited claimed that the mill and the machinery belonged to the Company, but that Eustace had not carried out his side of his agreement with them.

Now, what the rights of that dispute may have been and what force these agreements may or may not have had on the 30th of October I cannot say, as I have not gone into these questions and in any case these are not the proper proceedings to do so. I abstain absolutely from any comment about the effect of these agreements or of the Administrator's endorsements on those agreements. The point is, that, rightly or wrongly, Lawton and Luckie claimed that the machinery at the mill, at any rate, was theirs. They would have appeared to have some doubt about it, because they sought and got legal advice, but ultimately they decided to remove the machinery and bring it away. As Sub-Inspector Fisher said in evidence, when he got there that Saturday morning he told Lawton to put the machinery back, but Lawton said he would not, and added:-"This will bring the matter to a head."

Now what happened on 30th October? It appears that Lawton and Luckie approached Rigby the previous day for the loan of his truck, or the hire of his truck. They themselves had a blitz truck but that was not enough for the job they intended to do. Rigby agreed to hire his truck to them. On the Saturday morning the party left Port Moresby for Ielolo. In Rigby's truck, which was driven by Rigby, there were Lawton and Birch and a number of natives. Luckie followed in his Company's truck, the blitz truck. I think that, in all, ten natives were taken along, and, of course, some lifting gear for the heavy material. Birch was not told about the trip, apparently, until that very Saturday morning: he was asked if he would like to work some overtime up at Sogeri and he said "yes". He said in evidence that he knew nothing of the background and that he knew nothing of the dispute; he thought he was just going up to assist in getting some machinery belonging to the Company. That really is Rigby's attitude, too. The Crown has made a suggestion that a party that size - four Europeans and ten natives - was designed to overawe or over-power any possible resistance. That does not necessarily follow. I do not think that this was too unweildy a party to handle a lot of heavy machinery. It happened that the mill was not working that Saturday; apparently they do not work on Saturdays up there, and Eustace was in town here at Koki. Darbyshire was at his house which was about four miles from the mill, getting ready to come into town with his family. Just before he was about to leave, along came the cavalcade from Port Moresby, with Rigby's truck leading, followed by the "blitz" truck driven by Luckie.

In view of what had happened in August, Derbyshire thought they are after the machinery at the mill, and he decided to follow them. Before doing so, however, he telephoned to Eustace at Koki, asking him to bring out the Police. Then, before locking up the house, he got a small revolver: he said that his intention in carrying that along was to scare the natives - to frighten the natives of the defendant's party away. Well, he put his family in the jeep and they drove along to the Kokoda Track and came to the mill, probably about a quarter of an hour or so after the Rigby truck had got there. Luckie had not been so lucky; he had got bogged about three hundred yards from the mill, and Derbyshire passed him by. So, when Derbyshire got to the mill, Lawton was there, Birch was there, Rigby was there and some natives were there, but not Luckie.

Now as to what happened on Derbyshire's arrival there is a discrepancy, but not, I think, a major one. It appears that Derbyshire rushed into the mill. Lawton was inside the mill directing the removal of machinery; by this time some of it had been dismantled and some bolts had been sawn through; Birch had had a hand in that. Then what happened? Now Derbyshire's story is this: - He says he found Lawton directing the removal, of the gear and he said to Lawton: "What are you doing"? Lawton said "I am taking my stuff". That is an interesting reply, - I am taking my stuff because it obviously related to machinery. Derbyshire then said: "Get out of here and leave my stuff alone", but Derbyshire says, Lawton took no notice,- he did not resist or do anything to Derbyshire, he just took no notice of Derbyshire. When he told some natives to lift up some machinery Derbyshire then fired his revolver. He says he fired it twice into the ground. Aisi, one of Derbyshire's boys, gave evidence about this and there was some difficulty in the interpretation of his evidence, he did not speak English as well as he thought he did. He said that Derbyshire fired before speaking to "the masters", but Aisi's evidence is obviously astray because he said the "masters" were Lawton and Luckie whereas everyone else says that Luckie was not there then. I do not feel I can put any great reliance on what Aisi said. But Lawton said in evidence that Derbyshire first said "leave that machinery alone" before he fired, and that it was after Derbyshire fired that he said - "Get out of here". Lawton also said in evidence that Derbyshire fired one shot into the roof and "several" shots into the ground; by "several", he says, he meant one, two, or perhaps three shots. Now Lawton is the only witness who said that. Birch gave evidence that Derbyshire ran into the shed and shouted out something which he did not catch, so he does not know what exactly Derbyshire did say: he then heard several shots, but he did not say how many. "Several" means more than one; and could mean two or more: Birch did not say and neither Counsel cleared that point up. Birch then went on to say that he heard Derbyshire say "I'll shoot you", but that bit of evidence was obviously somewhat recklessly given because Birch immediately thereafter said that he meant that he heard Derbyshire say "I'll shoot" and that he was not sure he heard Derbyshire say "I'll shoot you": When a witness changes his evidence like that, one does not know where he is. Birch says that Lawton then said to Derbyshire: "If you shoot you will go up for life" and that he heard Derbyshire reply: "You know damn well I won't shoot". Apparently there was no more shooting anyway. Rigby, who was at a discreet distance outside, said that he saw Derbyshire rush into the mill and shout out "something" and that he heard a "couple of shots". "couple", I think, is usually understood to mean two. So, on the whole of the evidence, I think that perhaps Mr. Lawton exaggerated a little about the shooting. Mr. Sturgess has suggested that I should not believe Derbyshire on this matter because he is an "interested" person: but I suppose it is conceivable that it could be suggested that Lawton and Luckie could be interested persons too. I see no reason to doubt Derbyshire's statement about the shots fired: after the analysis I have made of all the evidence about it, the balance is certainly in favour of his account of that incident.

Now very soon after that shooting Birch and Rigby seemed to have gravitated to the vicinity of Rigby's truck and neither seems to have taken any active part in what went on after that. So you have them outside and you have Lawton and Derbyshire inside. Lawton was trying to undo a shaft and Derbyshire was trying to push Lawton's hands away from the nuts to prevent him from undoing them. Then Lawton left the shaft and came to the winch which is outside the mill somewhere, at a corner of the building: he began to try and dismantle that. While he was doing that, Derbyshire was again trying to push Lawton's hands away and prevent him from undoing the nuts and, according to Derbyshire, he got hold of Lawton's spanner at this stage: but Lawton got another, a 14-inch spanner, and said:- "I will kill you if you try to stop me or push me around." Derbyshire says that he thought there was a possibility that Lawton might do something, but that he felt that he could cope with that possibility if it arose. Lawton, curiously, did not specifically deny having done and said that, but I do not think either Counsel directed Lawton's attention to that particular incident, when he was in the witness-box. It was at this stage that Luckie arrived at the mill: and he proceeded to help Lawton to try and get the winch free. But Derbyshire kept on pushing; and this squabble, this pushing and shoving, went on for some time. Then Lawton, by a masterpiece of tactics, split their forces: he went over to the shaft leaving Luckie at the winch. Derbyshire could not be in two places at once. He followed Lawton and that gave Luckie full opportunity to get on with the work of dismantling the winch, which he did. More scuffling went on inside the mill when Lawton was trying to undo the shaft and Derbyshire was trying to stop him. I should have mentioned that, earlier, when Derbyshire was trying to push Luckie away from the winch, Luckie stood up and looked to angry that Lawton spoke to him, saying, according to Lawton and Luckie, "Go easy Jack". After the winch had been dismantled, Lawton and Luckie lifted it on to Rigby's truck. Rigby says that he was a "neutral" in this business: but he made no objection whatever, after all he had seen, to that machinery being put on his truck. The next thing was, that as Derbyshire's jeep was parked just behind Rigby's truck and was, of course, blocking the way, Lawton went over and ordered Derbyshire to remove it and get his family out of it. Derbyshire refused. Derbyshire says that Lawton looked as if he was going to forcibly remove the jeep with the aid of native labour, but, when Derbyshire said "Don't do that" to the labour, they desisted. Apparently at this stage Luckie said "What is next"? and Lawton told him not to do anything more, just then, but to wait until the Police came. Derbyshire says that by this time he had told Lawton that the Police were on the way.

Having failed to get Derbyshire to move his jeep, the intruders sat down on some logs, near the mill, and made some tea. Then Luckie left with a few "boys" and went over to a pumping plant at the creek to remove that. According to Luckie and Lawton, that pumping plant is off Derbyshire's property: for that matter they say that the winch was, too. Derbyshire says the winch is on his property but that he could not be positive whether the pumping plant is just on or just off his property. Luckie got this pump and its engine dismantled and his "boys" were carrying it towards the "blitz" wagon when the Police party arrived. That party consisted of Sub-Inspectors Fisher and Dutton, and Mr. Eustace was with them. The Police told the natives to put the pumping plant down, which, after some demur on the part of Luckie and the natives, they did. Then the Police party and Luckie came down to the mill and it was at this stage that the Police gave Lawton and Luckie the option of putting the machinery back where they had got it from or having it brought to the Police station. As I have already stated, Lawton said that they would not put it back and it was then that Lawton said - "This will bring matters to a head." Well, that remark itself indicates that Lawton was aware that the Company's claim to the machinery was a disputed one. Indeed, one gets the impression that no-one out there seemed altogether sure of his ground that day because of the competitive citation of expert opinion: various "appeals to Caesar" were made, - that is, Lawton and Luckie cited legal advice they said they had received from Mr. Norman White, their solicitor in Port Moresby, and the Police cited directions of the Crown Law Officer: Derbyshire's secret weapon seems to have been to hint that not all of the machinery at the mill belonged to him - some of it was borrowed.

I think that broadly covers what happened out there that morning, though I should mention that Sub-Inspector Fisher has given evidence that both Derbyshire and Lawton were excited, and that Lawton wanted charges of assault preferred against Derbyshire. The Police took several statements and said that the assault could be dealt with civilly: they then took an inventory of the dismantled machinery and it was eventually brought into the Police Station.

This is a criminal charge and, of course, the onus is always on the Crown to prove a criminal charge beyond all reasonable doubt, and that means proving, beyond all reasonable doubt, each and every element of the offence charged. The onus is not on the accused to prove their innocence. So the question here is, has the Crown proved, with that high degree of proof, the charge against the accused; against each of the accused, or against some of them, or against none of them? Now Mr. Sturgess for the defence says, firstly, that the Crown has failed to prove the charge against two of the accused, Birch and Rigby, because the Crown has adduced no proof that they joined in a common intention to commit an unlawful purpose. He contends that the evidence shows that neither of them knew of the dispute between the Directors of the Company and Eustace and Derbyshire; and it is a fact that, after Derbyshire arrived at any rate, neither of those two accused took any active part in the proceedings. Mr. Sturgess contends, as to Lawton and Luckie, that their coming on the land that morning was peaceable, open and in no way secret, and with no reason on their part to expect any resistance or to expect that a breach of the peace would be likely to happen. Mr. Sturgess also contends that their going on that land that day was not an "entry on land" within the meaning of Section 70 of the Queensland Criminal Code. He contends that the words "enters on land", appearing in that Section, have a technical or a restricted meaning and means entering on land with the intention of getting possession of it. He submits that those words do not include an entry on the land solely to take possession of some goods on it, and he has cited some authorities in support of that submission. He also contended that nothing that Lawton or Luckie or any of the accused did that day could be fairly regarded as entry in a manner likely to cause a breach of the peace. He said that the accused had shown restraint throughout, and as for any pushing that occurred or scuffling that occurred, that occurred after Derbyshire had pushed them around, and therefore ought to be regarded as something independent of the entry - as detached incidents.

Mr. Mallon for the Crown claimed that he had proved that the accused came on to that land that day and that that land was in the peaceable possession of another, that is to say, of Derbyshire: and I do not think that that is really disputed. Mr. Mallon went on to suggest that it was probable that Birch, as an employee of the Company, and that Rigby, as somebody in the sawmilling business in this town, knew what was afoot or heard something said about it when going out to the mill that morning; and he said that Rigby did not object when he actually did see what was going on and when the machinery was being put in his truck.

Mr. Mallon referred to the size of the party - four Europeans and ten natives, with two trucks and a lot of heavy gear - and I think his suggestion was that that was perhaps the "multitude" that the books speak about, the "multitude" calculated to over-awe and intimidate possible resistance on the part of the occupier of the land; but, as I said before, the mere size of the party going on the land is not conclusive: it is the conduct of the party that matters and it must be, in a case of this kind, conduct likely to cause a breach of the peace. Mr. Mallon suggested that the behaviour of the accused did amount to conduct likely to cause a breach of the peace, because it had, in fact, provoked a breach of the peace on the part of Mr. Derbyshire.

As to Mr. Sturgess's argument that the entry on land referred to in Section 70 of the Code was restricted to an entry for the purpose of taking possession of it, Mr. Mallon contended that the words "enters on land", in that section, were plain English words, not technical words, and that, on the ordinary rules of construction, they should be given their simple prima facie meaning. He argued that the "entry" referred to in Section 70 included any crossing of the boundary of the land and any coming upon the land for any purpose, - not only coming on the land with the intention of taking possession of the land but also coming on the land with any other intention whatever.

In support of that argument Mr. Mallon contended that if it had been intended that entry, in Section 70 of the Code, should have this restricted meaning of entry to take possession, the draftsman would have said so: and he pointed out that in the very next Section, Section 71, which relates to the forcible detainer of land the word 'possession' appears three times. This does not impress me as a cogent argument because I find it difficult to see how the offence of forcible detainer of land could have been defined without use of the word "possession". From the fact that the word "possession" is used in defining forcible detainer of land, it does not conclusively follow that it should have been used after the word "enters", in Section 70: and if "enters", in that section, should happen to have a technical meaning, that would render the use of the word "possession" unnecessary in that section. Another of Mr. Mallon's supporting arguments was that the wording of sections 278 and 277 of the Code differ in what he considered to be a significant way. Section 278 of the Code permits a person in peaceable possession of any land and in possession of it with a claim of right to use such force as is reasonably necessary in order to defend his possession, even against a person who is entitled by law to the possession of the property, provided he does not do bodily harm to such person. Section 277 of the code provides that it is lawful a person in peaceable possession of - any land (it does not say whether under "claim of right" or not), to use similar force to prevent any person from wrongfully entering upon such land, or to remove him if he wrongfully remains. With respect, I am unable to see that the wording of Section 278 sheds any certain light on the meaning of "entering" in Section 277 or that either section bears on the meaning of "enters" in section 70 relating to "forcible entry". Incidentally, Section 277 relates to the defence by any peaceable possessor of land against trespassers, whereas, Section 278 permits the defence of land, peaceable possessed, against somebody trying to enter with a claim of right: these are the two different cases. However, apart from those supporting arguments, there still remains Mr. Mallon's main argument, namely, that the words "enters on land" in section 70 should have an unrestricted meaning, and therefore the accused did "enter on land" that was in the peaceable possession of Derbyshire, that morning.

Now, what is the court's view of section 70 of the Code? Let us look at the section again. It reads: - "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 the land which 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". As I have said before, it is not really disputed that the land on which this offence is said to have occurred was, on the 30th October, in the actual and peaceable possession of Mr. Derbyshire. As to the phrase "manner likely to cause a breach of the peace", most of us have a tolerable idea of what a breach of the peace is. An unlawful assault is a breach of the peace, but, to quote Halsbury, "mere annoyance and disturbance or insults to a person or abusive language or great heat and fury without personal violence" do not in general amount to a breach of the peace. The "peace" referred to is, of course, the Queen's peace; not, as seemed to have been thought by Derbyshire when giving evidence in this case, the "peace, of Mr. Derbyshire". If that were so, - if the "peace" was that of an individual, - it would mean that persistent ringing of his front doorbell, which no doubt would disturb that individual's peace, would be a "breach of the peace", which of course is not the case. The Question in this case is whether the conduct of the accused was such as was likely to cause a breach of the peace "the Queen's peace". With respect to Mr. Mallon, it does not necessarily follow, that, because certain conduct by 'A' is followed by a breach of the peace by 'B', 'A's' conduct was "likely to cause a breach of the peace"; ' B' may have been an unreasonably timid or apprehensive or preciptitate or excitable person.

Now as to this phrase 'enters on land' in Section 70:- Is that to be interpreted in an unrestricted way as Mr. Mallon suggests, or in the restricted way suggested by Mr. Sturgess? It will be noted that Section 70 is headed 'Forcible Entry', which is the phrase used and known in English law for centuries past. For hundreds of years in English law 'forcible entry into lands' has, under certain circumstances, been indictable. Thus the Statute of 5 Richard II, Statute 1, a statute of 1381, forbade anyone to "make any entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy "manner". As to the "multitude of people", it was held as long ago as 1765, in a case concerning sixteen accused, that mere numbers were not enough; violence on their part had to be proved. It does not depend merely on the numbers: The King v. Blake; (1765) 3 Burrow, p. 1731. It was essential, in an indictment laid under that Statute of Richard II, that entry "with strong hand" should be alleged and proved. But forcible entry was also indictable under the common law; but, in common law indictments, the force that had to be proved was such as constituted a breach of the peace, and that is not necessarily always the same as the force described by the words "by strong hand". Pausing here a moment, I may remark it would seem that the drafter of Section 70 of the Code decided to follow the common law offence rather than the offence described in the Statute of Richard II of 1381, because he refers to a "breach of the peace", not to "by strong hand or with a multitude of People". Forcible entry has also for hundreds of years been actionable in civil proceedings and carried a liability for damages. The old lawbooks report many instances of actions of that kind, civil actions of that kind; curiously, these civil actions were in many cases based on the Statutes, although the Statutes themselves did not provide for civil proceedings. However, a person forcibly entering land with legal right on his side is in a better position, in civil proceedings, than he would be if he were indicted for the same thing: that is clearly explained by the Court of Appeal in Hemmings v. Stoke Poges Golf Club, (1920) 1 K.B., p.720.

Long ago, in English law, forcible entry was clearly distinguished from trespass. If you look at the case The King v. Wilson, (1799) 8 T.R. p.357 you will see that Lord Kenyon said:- "It is perfectly clear that a mere trespass, which is the subject of a civil action and where the words vi et armis are introduced as a matter of form, cannot be converted into an indictable offence". He went on to say there could be no doubt that the offence of forcible entry was indictable at common law. Even as long ago as 1765, counsel were protesting against the efforts of some people to have trespass treated as indictable so that they should not run the risk of losing the case and having to pay costs. That is not new: and you will see an instance of it reported in Rex v. Storr (1765) 3 Burrow p.1698. Now there, is a statement in Hawkins' "Pleas of the Crown" written a long time ago, that "perhaps" – "perhaps" - after a forcible entry, the taking away of goods would also constitute a forcible entry. The soundness of that tentative opinion must be questioned now in view of the trend of the cases over the years. I do not intend to go into all those cases but will come at once to the decision of the Court of Criminal Appeal in New South Wales in The King v. Waugh (1934) 52 W.N. (N.S.W.) p.20: also noted in 8 A.L.J. p. 420. In that case, Jordan, C.J. said:- "In this case, the appellant was prosecuted under an indictment "by which it was apparently intended to charge an offence under the "Statute of Forcible Entry, of Richard II. The indictment charged "that on the 18th day of July, 1934, at Pyrmont, in the State of New South Wales, the appellant and another person whose name is "unkown did make forcible entry upon the lands and tenements of "Jean Blanch, of which said lands and tenements the said Jean Blanch "was then in occupation. The evidence discloses that the entry, "which was in fact made forcibly, was for the purpose, not of taking "or attempting to take possession of the land, but for the purpose "of taking possession of and removing certain chattels which were "erroneously supposed still to be on the premises.

The first question is whether these facts afford any evidence "of an offence under the Statute of Richard II. We have been "referred by Mr. Sturt to the case of Reg. v. Pike (2 Canadian "Criminal Cases 314), in which the Court of Kings Bench of Manitoba, "after considering the relevant authorities and text writers, came "to the conclusion and decided that to constitute a forcible entry "on land under the Criminal Code of Manitoba and under the earlier "statutes also, the act of going upon the land must be done with "the intention of taking possession of the land itself, and that an "entry upon land for the purpose of seizing and taking away chattels "thereon is not a forcible entry within the meaning of the Act of "Richard II, although made contrary to the will of the occupant "and in such manner as to be likely to cause a breach of the peace, "but that such an entry is mere trespass.

"I see no reason for doubting the correctness of that decision, "and I think it is to be preferred to the case to which we were "referred by Mr. Solicitor R. V. Bullock and another (BB J.P.335). "Entry, in the sense in which it is used in the Statute, appears "upon the authorities, to mean something more than a mere physical "going upon the land; it means an entry effected for the purpose of assuming or resuming possession."

Davidson and Maxwell J.J. concurred with Jordan C.J. in that judgment.

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 entry for 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 of the Code. It will be noticed that he, himself, uses the well-worn 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 intention of 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" in Section 70 to exclude that meaning. In inclining to that view, I feel I have the support of what was said by Mr. Justice Dixon, as he then was, now the Chief Justice of the High Court of Australia, in the case of The King v. Mullen, (1938) 59 C.L.R. p.124, at p.136.

Now as to my findings: after carefully considering the evidence given in this case and the inferences which may fairly be drawn from that evidence, and after hearing and seeing the witnesses give their evidence, I find that the four accused did, on Saturday, 30th October, 1954, go, in the physical sense, on to land that was in the peaceable possession of James William Derbyshire. As to whether they did so in a manner likely to cause a breach of the peace: - I find that they went there as a large party of four Europeans and ten native labourers in two trucks, but this was not an unreasonable number of people for the work they intended to do and cannot of itself be regarded as conclusive proof that they took out that number with the intention of over-awing or over-powering any resistance. As to their behaviour when they got to the sawmill:- they went openly to the mill; they commenced dismantling the machinery that they rightly or wrongly thought was theirs and, when Derbyshire arrived, made no attempt whatever to molest or threaten him personally. They took no notice of him, as he himself has said. It was not until after he had fired his revolver in a melodramatic way and had repeatedly tried to prevent Lawton from undoing the nuts that Lawton commenced pushing and scuffling with him and possibly threatened him with the spanner.

It seems to me doubtful whether Lawton's retaliation at that stage can properly be said to be part of an entry in a manner likely to cause a breach of the peace. It may have amounted to an assault or a series of assaults, but I think that any such assault or assaults were incidents that were independent incidents, something independent of the entry, as I think the later scufflings that went on also were. I propose to give the accused the benefit of any doubt about that, and I find that their entry was not one made in a manner likely to cause a breach of the peace. That finding, of course, really disposes of the charge, because the Crown has to prove every element of the charge and has failed to prove that one. For that reason it is really unnecessary to go any farther, but may indicate that I think there was no intention on the part of any of the accused to enter on that land that day for the purpose of assuming possession of it. The intention of Lawton and Luckie was clearly to remove the machinery that they claimed and thus bring the dispute, as Lawton said, "to a head". For these reasons, I do not consider that their going on Derbyshire's land that day was an entry within the meaning of Section 70 of the Code. For the reasons I have given I find the four accused and each of them "Not Guilty" of the charge, and they will be acquitted.

That verdict relates, of course, solely to the charge that was preferred against the accused, and I wish to stress that nothing I have said in my summing-up has been intended to be, and nothing is to be regarded as being, any expression of opinion by me, one way or the other, about other matters which may be in dispute.

One word more: - I hope that the verdict in this case will not lead the accused, or others, to think that people may with complete immunity and without any liability whatever as to legal consequences and legal proceedings, enter upon land in the peaceable possession of another, without the consent of that other, and there help themselves to goods which they rightly or wrongly claim as theirs. That would be a grave mistake.

The accused are discharged.