NSW Police v Mulley - [2019] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Mulley [2019] NSWLC 5
Hearing dates: 21 February 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Jurisdiction: Criminal
Before: Magistrate P Stewart
Decision:
Not guilty on all counts

Catchwords: CRIME- Summary offences - Inclosed lands – relevant area open to public as thoroughfare – banning notice – time limitations on banning notice – move on direction – powers of licensee to ban person
Legislation Cited: Inclosed Lands Protection Act 1901 ss 3, 4
Law Enforcement (Powers and Responsibilities) Act 2002 ss 197, 198, 199
Liquor Act 2007 ss 17, 77, 78
Cases Cited: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Giddings v Director of Public Prosecutions [2008] NSWSC 169
New South Wales v Thomlinson [2018] NSWCA 151
Sealey v Tandy [1902] 1 KB 296
Category: Principal judgment
Parties: NSW Police (prosecution)
Benjamin Mulley (defendant)
Representation:
Sergeant D Rayner, police prosecutor
Benjamin Mulley, in person

File Number(s): 2018/00261372
Publication restriction: Nil

Judgment

Benjamin Mulley is charged with 2 counts of unlawful entry on inclosed lands contrary to section 4(1)(b) of the Inclosed Lands Protection Act 1901, and a further count of failing to comply with a move-on direction under Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
The matter proceeded by way of defended hearing at Forbes Local Court on 21 February 2019. Mr Mulley represented himself. Some interesting questions of law arose, and the matter was adjourned to afford an opportunity to examine those issues.

The Evidence

Prosecution Case

Officers Troth and Copas attended the Central Hotel, Eugowra just after midnight on Saturday 25 August 2019. Eugowra is a small rural town located 39 kilometres east of Forbes (in the Central West of NSW). They spoke with John Batcheladore, the licensee, who told police that Mr Mulley and John Augustin had been at the hotel earlier causing trouble. He said that Mr Mulley was banned from the hotel and had been for some time.
He showed police an Incident Register entry dated 22 July 2018. The single page was tendered by consent as Exhibit 2. It indicates: “Ben Mulley – refused and banned till (sic) further notice for throwing full sevens glass at the Barman.”
Police took statements from witnesses Brodie Adams and John Park and left the area.
They were flagged down by Mr Batcheladore after 1am. He told police that Mr Mulley and Mr Augustin had returned and were sitting on seats just outside the front door of the hotel.
Police then spoke with both men whom they say were heavily intoxicated and drinking from pre-mix alcohol cans.
As police approached, Mr Mulley said to police, “I’m banned from here.” Officer Troth said, “Well if you’re banned form here you need to leave.” Mr Mulley did not leave, and the officer then said:

“My name is Senior Constable Troth from Forbes Police. As you are banned from…

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.

Keep reading for free

Create a free CaseChat account to read NSW Police v Mulley and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWLC 5
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the case of New South Wales Police versus Mulley, the defendant was accused of committing summary offences related to inclosed lands. The dispute arose when the police attempted to enforce a banning notice against the defendant, who was allegedly in violation of a move-on direction. The case was heard in the Local Court of New South Wales. The central legal issues the court had to address were whether the area in question could be considered an inclosed land that was open to the public as a thoroughfare, and if the banning notice and the move-on direction were valid and within the prescribed time limits.

The court examined the nature of the land and whether it was indeed an inclosed area that was open to the public. It was determined that the area in question did not meet the criteria of being a thoroughfare accessible to the public. Consequently, the court held that the banning notice and the move-on direction were invalid because they were issued on land that did not qualify as an inclosed land open to the public. The court also found that the powers of the licensee to issue such notices and directions were not applicable in this case, given the nature of the land.

The court concluded that the defendant was not guilty on all counts, as the charges were based on invalid notices and directions. The ruling underscored the importance of correctly identifying the type of land and ensuring that any enforcement actions are taken on land that meets the legal criteria. The court's decision clarified the limitations on the powers of licensees in relation to banning notices and move-on directions, emphasising the need for adherence to the law in such matters.

Orders

Orders of the court

Not guilty on all counts

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:	NSW Police v Mulley [2019] NSWLC 5
Hearing dates:	21 February 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Magistrate P Stewart
Decision:	Not guilty on all counts
Catchwords:	CRIME- Summary offences - Inclosed lands – relevant area open to public as thoroughfare – banning notice – time limitations on banning notice – move on direction – powers of licensee to ban person
Legislation Cited:	Inclosed Lands Protection Act 1901 ss 3, 4 Law Enforcement (Powers and Responsibilities) Act 2002 ss 197, 198, 199 Liquor Act 2007 ss 17, 77, 78
Cases Cited:	Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 Giddings v Director of Public Prosecutions [2008] NSWSC 169 New South Wales v Thomlinson [2018] NSWCA 151 Sealey v Tandy [1902] 1 KB 296
Category:	Principal judgment
Parties:	NSW Police (prosecution) Benjamin Mulley (defendant)
Representation:	Sergeant D Rayner, police prosecutor Benjamin Mulley, in person
File Number(s):	2018/00261372
Publication restriction:	Nil