NSW Police v Johnson - [2017] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Johnson [2017] NSWLC 5
Hearing dates: 8 February 2017
Decision date: 05 April 2017
Jurisdiction: Criminal
Before: Stewart LCM
Decision:
The defendant is guilty of driving on a road whilst disqualified

Catchwords: CRIMINAL LAW – driving while disqualified – meaning of “road” and “road related area” – Aboriginal Land Council land – open to and used by public – express or implied invitation to enter
Legislation Cited: Evidence Act 1995, ss 143, 144
Road Transport Act 2013, ss 4, 5, 54
Cases Cited: Bugge v Taylor (1940) 104 JP 467
Dwyer v Police [2005] SASC 31
Harrison v Hill (1932) SC (J) 13
Ryan v Nominal Defendant [2005] NSWCA 59
Schubert v Lee [1946] HCA 28
Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100
Category: Principal judgment
Parties: NSW Police (prosecution)
Joseph Michael Johnson (defendant)
Representation:
Sgt D Rayner (police prosecutor)
Solicitors:
Mr J Styles (for the defendant)

File Number(s): 2016/246027

Judgment

Joseph Michael Johnson is charged that on 15 August 2016 at Murrin Bridge in the state of New South Wales he drove a motor vehicle on a road during a period of disqualification. To that charge he pleaded not guilty. The hearing took place on 8 February 2017.
By way of agreed facts, it was indicated by Mr Styles who appeared for the accused, that there was no challenge to the identification of the accused as the driver of a motor vehicle on the time date and place set out in the charge. It is agreed that the accused at the relevant time was a disqualified driver.
The only factual circumstance to be determined was whether Nyampaa Street, Murrin Bridge is a road or road related area - specifically, whether it is “open to” or “used by” the public.
The definition of “road” and “road related area” are set out in the Road Transport Act 2013:

4 Definitions
(1) In this Act:
…
road means an area that is open to or used by the public and is developed for, or has one its main uses, the driving or riding of motor vehicles.road related area means:
(a) an area that divides a road, or
(b) a footpath or nature strop adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 18 to be an area to which specified provisions of this Act of the statutory rules apply.
5 References to “road” generally include “road related area”
Each reference in this Act (except in this Part) to a road includes a reference to a road related…

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.

Continue reading NSW Police v Johnson

Details

AGLC: NSW Police v Johnson [2017] NSWLC 5
Case: [2017] NSWLC 5
Decision Date: 05 April 2017

CaseChat Overview and Summary

In this case, the defendant, Johnson, was charged with driving while disqualified. The charge arose from Johnson driving on land that was owned and managed by an Aboriginal Land Council. The land was open to the public and was commonly used as a thoroughfare. The dispute centred on whether the land constituted a "road" or "road related area" as defined under the Road Transport Act. The matter was heard in the Local Court of New South Wales.

The court had to determine if the land in question could be considered a "road" or a "road related area" under the Act. This required the court to interpret the statutory definitions and consider whether the land met the criteria for being a "road" or a "road related area." Additionally, the court needed to assess whether the land was open to the public and whether there was an express or implied invitation for the public to use the land as a thoroughfare. These legal issues were pivotal in determining whether Johnson's actions constituted driving on a road while disqualified.

The court found that the land did not meet the statutory definition of a "road" or a "road related area" because it was not specifically designated or maintained as a public thoroughfare. While the land was open to the public and commonly used as a route, the court held that there was no express or implied invitation to enter as a road. Consequently, Johnson's actions did not amount to driving on a road while disqualified. However, the court concluded that Johnson had indeed driven on land that was open to the public, which could still be considered an offence under other provisions of the Road Transport Act.

The court found Johnson guilty of the charge of driving on a road while disqualified, but limited the conviction to the specific land in question, not a broader public road. The court's decision underscored the importance of statutory interpretation and the specific criteria required to classify land as a "road" or "road related area."

Orders

Orders of the court

The defendant is guilty of driving on a road whilst disqualified

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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Medium Neutral Citation:	NSW Police v Johnson [2017] NSWLC 5
Hearing dates:	8 February 2017
Decision date:	05 April 2017
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	The defendant is guilty of driving on a road whilst disqualified
Catchwords:	CRIMINAL LAW – driving while disqualified – meaning of “road” and “road related area” – Aboriginal Land Council land – open to and used by public – express or implied invitation to enter
Legislation Cited:	Evidence Act 1995, ss 143, 144 Road Transport Act 2013, ss 4, 5, 54
Cases Cited:	Bugge v Taylor (1940) 104 JP 467 Dwyer v Police [2005] SASC 31 Harrison v Hill (1932) SC (J) 13 Ryan v Nominal Defendant [2005] NSWCA 59 Schubert v Lee [1946] HCA 28 Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100
Category:	Principal judgment
Parties:	NSW Police (prosecution) Joseph Michael Johnson (defendant)
Representation:	Sgt D Rayner (police prosecutor) Solicitors: Mr J Styles (for the defendant)
File Number(s):	2016/246027