John Leo Fisher v The Queen

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.