NSW Police v Barker

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Local Court


New South Wales

Medium Neutral Citation: NSW Police v Barker [2022] NSWLC 9
Hearing dates: 2 December 2022
Date of orders: 5 December 2022
Decision date: 05 December 2022
Jurisdiction:Criminal
Before: Nash LCM
Decision:

Sequence 1 dismissed – verdict: not guilty

Sequence 2 dismissed – verdict: not guilty

Sequence 3 dismissed – verdict: not guilty

Catchwords:

Crime – sequence 1: enter inclosed lands - whether accused had implied consent or a lawful excuse to enter land – existence of implied licence at common law to enter land – availability of ‘claim of right’ defence – sequence 2: malicious damage – whether evidence sufficient to sustain proof of the offence – prosecutor concedes charge not sustainable - sequence 3: intimidation – whether accused intended to cause fear of physical or mental harm – whether accused’s conduct amounted to ‘intimidation’ – availability of ‘claim of right’ defence

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Inclosed Lands Protection Act 1091

Cases Cited:

Awad v The Queen; Tambakakis v The Queen [2022] HCA 36

De Silva v The Queen (2019) 268 CLR 57

Director of Public Prosecutions (NSW) v Chaheh [2017] NSWSC 1061

Fuge v R [2001] NSWCCA 208

Liberato v The Queen (1985) 159 CLR 507

Macleod v R (2003) 214 CLR 230

P E v M U [2010] NSWDC 2

R v Bedford (2007) SASR 514

R v Grant (2002) 55 NSWLR 80

R v Murray (1987) 11 NSWLR 12

R v Steele [2022] NSWDC 603

Roy v O’Neil [2020] HCA 45

Veira v Cook [2021] NSWCA 302

Walden v Hensler (1987) 163 CLR 561 at 591

Texts Cited:

Nil

Category:Principal judgment
Parties: NSW Police (Prosecutor)
Nathan Barker (Defendant)
Representation:

Counsel:
N/A

Solicitors:
Sgt Batterson (Prosecutor)
Kevin Henshaw, Aboriginal Legal Service (Defendant)
File Number(s): 2021/359607
Publication restriction: Nil

Judgment

A.   INTRODUCTION

  1. Nathan Barker (the accused) is charged with 3 offences:

  1. Sequence 1: on 19 December 2021 at Hat Head, the accused did without lawful excuse enter into the inclosed lands of Dana Duke situated at [REDACTED] Street, Hat Head, without the consent of Dana Duke, the occupier of the said inclosed lands, contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901;

  2. Sequence 2: on 19 December 2021 at Hat Head, the accused did intentionally or recklessly damage property, to wit, aluminium fly screen window panel the property of Dana Duke, contrary to s 195(1)(a) of the Crimes Act 1900; and

  3. Sequence 3: on 19 December 2021 at Hat Head, the accused did intimidate Dana Duke with the intention of causing the said Dana Duke to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  1. I have redacted part of the residential address where the incident the subject of these proceedings occurred, for confidentiality reasons.

  2. The accused entered a plea of ‘not guilty’ to these charges on 17 January 2022, and the hearing of these proceedings occurred on 2 December…

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Details
Case
[2022] NSWLC 9
Decision Date

CaseChat Overview and Summary

In the case of NSW Police v Barker, the defendant was charged with three separate offences: entering enclosed lands without lawful excuse, malicious damage, and intimidation. The matter was heard in the Local Court of New South Wales. The defendant contested the charges, resulting in a trial before a magistrate. The police argued that the defendant had no lawful excuse to enter the lands, had caused damage to property, and had intimidated a person. The defendant, on the other hand, claimed that they had an implied licence to enter the land, denied causing any damage, and argued that their conduct did not amount to intimidation.

The court was required to determine whether the defendant had an implied licence or lawful excuse to enter the land, whether the evidence was sufficient to prove the offence of malicious damage, and whether the defendant's conduct amounted to intimidation. The court also needed to consider the availability of the 'claim of right' defence in relation to all three charges. The prosecution had to prove beyond reasonable doubt that the defendant was guilty of the offences charged.

The court found that there was an implied licence at common law for the defendant to enter the land, thus dismissing the first charge. The magistrate accepted the prosecution's concession that the evidence was not sufficient to sustain a conviction for malicious damage, resulting in the dismissal of the second charge. Regarding the third charge, the court determined that the defendant's conduct did not amount to intimidation as the defendant did not intend to cause fear of physical or mental harm. The court also held that the 'claim of right' defence was available in this case. Consequently, all three charges were dismissed, and the defendant was found not guilty on all counts.

The court ordered that all charges against the defendant be dismissed, and a verdict of not guilty be entered for each offence.

Orders

Orders of the court

Sequence 1 dismissed – verdict: not guilty

Sequence 2 dismissed – verdict: not guilty

Sequence 3 dismissed – verdict: not guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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