Howard v Senior Constable Risteski

The plaintiff, Howard, appealed against a conviction for trespass on inclosed lands, arguing that the Magistrate erred in law by holding that he was on inclosed lands. The case originated in the Local Court, and the appeal was heard in the District Court. The key issue before the court was whether the Magistrate correctly determined that the plaintiff was on inclosed lands, specifically under section 3(2) of the Inclosed Lands Protection Act 2011. The plaintiff claimed he was situated on a road when he was issued a notice to leave the land, arguing that the relevant section of the Act did not apply because he was not trespassing on inclosed land.

The court examined the application of section 3(2) of the Inclosed Lands Protection Act 2011, which stipulates that the act of being on inclosed lands does not constitute an offence if the person is on a road. The court considered whether the road where the plaintiff was situated qualified as a "road" under section 3(2) of the Act. The authority had barricaded the road pursuant to section 115 of the Roads Act 1993 and had erected fencing over nearby parkland. The court found that the road was not a public thoroughfare at the time of the incident, as it was effectively closed and fenced off. Consequently, the plaintiff was not located on a "road" for the purposes of section 3(2) of the Inclosed Lands Protection Act 2011.

The court concluded that the Magistrate did not err in law in finding that the plaintiff was on inclosed lands, as the road was not a public thoroughfare. The appeal was dismissed, and the conviction for trespass was upheld. The court emphasised that the application of section 3(2) of the Inclosed Lands Protection Act 2011 depends on the status of the land and the road at the time of the incident. As the road was barricaded and fenced off, it did not qualify as a public thoroughfare, and the protection afforded by section 3(2) did not apply. The orders of the Local Court were affirmed.