John Leo Fisher v The Queen - [2019] NSWDC 297

District Court

New South Wales

Medium Neutral Citation: John Leo FISHER v R [2019] NSWDC 297
Hearing dates: 27 June 2019
Date of orders: 27 June 2019
Decision date: 27 June 2019
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Appeal allowed, conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018 set aside

Catchwords: CRIME – APPEAL FROM LOCAL COURT – Inclosed Lands Protection Act 1901 – Charge of trespass to inclosed land, Whether appellant using a public right of way – Semble – Public right of way created in 1895 and still shown on most recent map of 2016 – Offence alleged in 2017 – Crown failed to prove right of way did not exist – Appellant proved on balance of probabilities that right of way existed and therefore fell within the proviso in section 4(1) of the Act
Legislation Cited: Inclosed Lands Protection Act 1901, Local Government Act 1919, Roads Act 1993
Cases Cited: None
Texts Cited: B.A. Helmore, The Law of Real Property in NSW, 2nd Edition, 1966
Category: Principal judgment
Parties: John Leo Fisher – Appellant
Crown – Respondent
Representation:
Solicitors:
(Appellant)
Mr P. O’Brien - O’Brien Criminal and Civil Solicitors
(Crown)
Ms T. Lumsden - ODPP

File Number(s): 2018/00048997
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Goulburn Local Court

Jurisdiction:

Criminal

Judgment

HIS HONOUR: This is an appeal against a conviction recorded and sentence passed by Magistrate Beattie, sitting in the Local Court at Goulburn on 15 May 2018.
On an unspecified date Senior Constable Garry Handsaker, the officer in charge of the police station at Tarago, issued a New South Wales Police Force penalty notice to the appellant. It alleged that on 20 November 2017, a Monday, at approximately 3.45pm, the appellant entered inclosed lands without lawful excuse. The offence was said to have occurred at the property known as 5888 Federal Highway, Collector. The penalty notice was for $350. It obviously was not paid because on 5 February 2018 a Court Attendance Notice was issued by Senior Constable Handsaker, charging the appellant with that same offence, an offence contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901. The appellant pleaded not guilty to that offence, but was found guilty by the Magistrate.
The maximum penalty for the offence is a fine of $550. Her Honour in fact imposed a fine of $500, despite the fact that she accepted that the appellant was a man of prior good character, with no prior convictions, and having responsibility as a grazier and a sole parent. One can understand in the circumstances that the fine imposed was excessive, towards the top of the range for an offence contrary to the Inclosed Lands Protection Act 1901 s 4(1)(b). However, the appeal has been brought not merely against penalty, but against the conviction.
The property known as 5888 Federal Highway, Collector, contains three parcels of land. The major parcel of land is Lot 2541 in Deposited Plan 1116965. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 297
Decision Date: 27 June 2019

CaseChat Overview and Summary

The appellant, John Leo Fisher, was convicted in the Local Court at Goulburn for an offence under the Inclosed Lands Protection Act 1901. The conviction arose from an allegation that Mr Fisher trespassed on enclosed land. The central issue was whether Mr Fisher was using a public right of way, which would have exempted him from liability under the Act. This appeal challenged the conviction on the basis that the Crown failed to prove the absence of a public right of way.

The court was required to determine whether the appellant was using a public right of way when he was on the enclosed land. The appellant argued that a public right of way had been established in 1895 and was still indicated on a map from 2016. The Crown contended that the right of way did not exist, but the court found that the appellant had proved on the balance of probabilities that such a right of way existed. The court held that since the appellant had demonstrated the existence of a public right of way, he fell within the proviso in section 4(1) of the Act, and therefore, the appellant's actions were not a breach of the Act.

The appeal was allowed, and the conviction and sentence were set aside. The reasoning was grounded in the appellant's successful demonstration that a public right of way existed at the time of the alleged offence. The court determined that the Crown had not met its burden of proving that the right of way did not exist, and therefore, the appellant's actions did not constitute an offence under the Act. Consequently, the conviction was quashed, and the sentence was nullified.

Orders

Orders of the court

Appeal allowed, conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018 set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	John Leo FISHER v R [2019] NSWDC 297
Hearing dates:	27 June 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Appeal allowed, conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018 set aside
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – Inclosed Lands Protection Act 1901 – Charge of trespass to inclosed land, Whether appellant using a public right of way – Semble – Public right of way created in 1895 and still shown on most recent map of 2016 – Offence alleged in 2017 – Crown failed to prove right of way did not exist – Appellant proved on balance of probabilities that right of way existed and therefore fell within the proviso in section 4(1) of the Act
Legislation Cited:	Inclosed Lands Protection Act 1901, Local Government Act 1919, Roads Act 1993
Cases Cited:	None
Texts Cited:	B.A. Helmore, The Law of Real Property in NSW, 2nd Edition, 1966
Category:	Principal judgment
Parties:	John Leo Fisher – Appellant Crown – Respondent
Representation:	Solicitors: (Appellant) Mr P. O’Brien - O’Brien Criminal and Civil Solicitors (Crown) Ms T. Lumsden - ODPP
File Number(s):	2018/00048997
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Goulburn Local Court Jurisdiction: Criminal