Police v Benz

[2023] ACTMC 40

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Benz

Citation: 

[2023] ACTMC 40

Hearing Dates: 

30 October 2023

Decision Date: 

6 November 2023

Before:

Magistrate Temby

Decision: 

See [91]

Catchwords: 

CRIMINAL LAW – CAMPING OFFENCES – Camping on unleased National Land – definition of ‘camping’ – s 68 Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth)

Legislation Cited: 

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) s 27

Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) ss 44, 45, 68

Criminal Code Act 1995 (Cth) ss 9.2(1), 58(7)

National Land Ordinance 1989 (ACT)

National Parks and Reserves Management Regulations 2019 (Tas)

Trespass on Commonwealth Lands Ordinance 1932 s 8A

West Beach Recreation Reserve Regulations 2003 (SA)

Cases Cited: 

Bloomfield v Brown [2003] ACTSC 43; 176 FLR 358

Ostrowski v Palmer [2004] HCA 30; 218 CLR 493

Parties: 

Jarrod Baldock (Informant)

Tobias Benz ( Defendant)

Representation: 

Solicitors

Commonwealth Director of Public Prosecutions

Self-represented ( Defendant)

File Number:

CC 349 of 2023

MAGISTRATE TEMBY:

Introduction

1․A single charge has been brought against the Defendant. It is: “That he, in the Australian Capital Territory, on 4 January 2023, did camp on unleased National Land and that camping was not authorised by permit.” It is alleged that the Defendant’s conduct contravenes section 68 of the Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) (Unleased National Land Ordinance).

2․Section 68 of the Unleased National Land Ordinance provides that:

(1)   A person commits an offence of strict liability if:

(a)the person camps on unleased National Land; and

(b)the camping is not authorised by a permit.

Note: Camping is only authorised under a permit authorising a separate regulated activity on public National Land (see section 44).

Penalty: 2 penalty units.

(2)   A person who contravenes subsection (1) commits a separate offence in respect of each day during which the contravention occurs.

3․As stated in section 68 of the Unleased National Land Ordinance, the maximum penalty for a contravention of that provision is 2 penalty units.

Principles

4․There are some preliminary matters which I must first address. The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that he did not commit the offence with which he is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.

5․The burden of proof on the Prosecution does not mean that the Prosecution must prove every fact in dispute beyond reasonable doubt, only that it must prove the elements of the charge beyond reasonable doubt. Evidentiary facts must, however, be clearly proved before they are treated as established.

6․I must determine whether each of the witnesses is a reliable witness.  That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.

7․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the Prosecution and the Defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. 

8․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence.

9․I must deliver my decision according to the evidence.

10․The Defendant gave evidence at the hearing. He was not required to do so. He could have elected not to give evidence. He thereby became a witness in the hearing and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse, because he is the Defendant, than the evidence of any other witness in the hearing and must be considered in the same way as the evidence of other witnesses. However, by giving evidence the Defendant did not assume any onus to prove anything at the hearing.

Elements of the offence and the parties’ respective cases

11․The elements of the offence with which the Defendant has been charged are that:

(a)the Defendant camped in an area;

(b)the area is unleased National Land; and

(c)the camping was not authorised by a permit.

12․The Prosecution case is that:

(a)the Defendant camped in an area by sleeping in his car between 1 am and 5 am on 4 January 2023;

(b)sleeping in a car constitutes camping as:

(i)    it is an act of staying and sleeping in an outside area for one or more nights; and

(ii)   camping does not always have to involve the use of a tent or be undertaken for enjoyment;

(c)the area was the National Rock Garden car park;

(d)the National Rock Garden is unleased National Land; and

(e)the Defendant did not have a permit to camp at the National Rock Garden.

13․The Defendant admits that:

(a)he slept in his car at the National Rock Garden car park; and

(b)he did not have a permit to camp there.

14․The Defendant’s case is that:

(a)the Prosecution did not establish that the National Rock Garden car park is unleased National Land;

(b)the relevant ACT road rules should apply, not the Unleased National Land Ordinance;

(c)he was targeted by police because he is a protestor;

(d)he was not camping as sleeping in his car involved no comfort, no setting up of a camp (with, for example, tables and chairs), and no recreation; and

(e)ultimately, as a homeless person, he was just trying to look after himself – staying in his car was an act of survival.

Evidence

15․Constable Jarrod Baldock and Ms Sujie Song (Director for estate management at the National Capital Authority) gave oral evidence for the Prosecution and a written statement of Detective Inspector Donna-Lea Hofmeier was tendered by the Prosecution with the consent of the Defendant. As noted above, the Defendant himself gave evidence.

16․I accept that each of the witnesses gave honest and reliable evidence.

17․There is little disagreement between the parties as to the facts relevant to the proceeding. They may be briefly stated.

18․On 30 December 2022, Acting Inspector Grant Bluett spoke to a number of people at the National Rock Garden and provided them with copies of legislation about camping. It is clear to me that the legislation that was provided was the Unleased National Land Ordinance (or, at least, the part of that legislation dealing with camping on unleased National Land) as that is the only legislation which deals with camping on National Land and it is the legislation that was ultimately relied on to arrest and charge the Defendant.

19․The Defendant was one of the people to whom Acting Inspector Bluett spoke and provided legislation. However, the Defendant did not consider that he was camping. He said in his evidence to the Court that he was of the view that he was legally parked in a car park. He said that nothing was set up as a camp and that he was homeless and just trying to survive.

20․The National Rock Garden is an area within the Lindsay Pryor Arboretum. It is located on Barenjoey Drive, adjacent to Lake Burley Griffin.

21․Ms Song gave evidence that the Lindsay Pryor Arboretum and, in particular, the location where the Defendant was situated, is within the area that is gazetted as National Land. Ms Song stated that it is currently public unleased land and that roads within National Land are part of National Land. She also confirmed that no permits had been issued for the Lindsay Pryor Arboretum during the relevant period. As noted above, the Defendant accepts that he did not have a permit to camp at the National Rock Garden.

22․On the evening of 3 January 2023, Detective Inspector Hofmeier was requested to monitor any illegal camps that had been set up by people intending to conduct protests that week. Constable Baldock, and other officers, were tasked to attend the National Rock Garden to monitor illegal camping in that area.

23․Constable Baldock attended the National Rock Garden car park at approximately 1 am on 4 January 2023. Constable Baldock saw campervans and camper trailers, but no other evidence of anyone camping.

24․Constable Baldock, and other officers, spoke to a number of people whose cars were parked at the National Rock Garden car park, including the Defendant, and gave them a direction to move on. The Defendant was sitting in the driver’s seat of his car.

25․Constable Baldock told the Defendant that he was at the car park illegally, and noted that he had been given a direction previously. He told the Defendant that he was being given a further chance to move on. The Defendant said that he was living in his car, including sometimes sleeping. He said that sometimes he sleeps in the back seat and sometimes in the front seat.

26․Constable Baldock left the location and returned at approximately 5 am. Detective Inspector Hofmeier also attended at that time, together with Constable Nigel Brookes.

27․The Defendant’s vehicle was in the same location as it was when Constable Baldock had left the National Rock Garden at around 1 am. The Defendant was asleep in the driver’s seat of the car.

28․The Defendant admits that he was at the location between 1 am and 5 am. He had walked away from his car after being spoken to by Constable Baldock but had returned to the car because it was too cold for him to remain outside the vehicle.

29․The Defendant did not accept that he was camping. He told Constables Baldock and Brookes, and Detective Inspector Hofmeier, that he was living in his car, homeless. He said that he was sleeping and living in his car and that he had not set up a camp. He told the officers that the area where he was situated was not a restricted car park. He also said that he could not drive away from the location as his licence was suspended, and that he had not driven his car since he was arrested there. No evidence was given as to the nature and circumstances of that arrest.

Issues in dispute

30․It is clear that the Defendant was at the National Rock Garden car park, within the Lindsay Pryor Arboretum. He did not have a permit to use the National Rock Garden at the relevant time.

31․The two issues for resolution are:

(a)whether the National Rock Garden car park is unleased National Land; and

(b)whether the Defendant was “camping”.

32․While the Defendant submitted that he was targeted because he was a protestor, it is apparent that the Defendant, and other protestors, were targeted because a view had been taken by police that they were contravening the Unleased National Land Ordinance. That is, it was not their status as protestors that was relevant to the actions of police, but rather that the conduct that they had engaged in together offended the prohibition against camping that is contained in the ordinance.

Whether the National Rock Garden car park is unleased National Land

33․“National Land” is defined in section 5 of the Unleased National Land Ordinance as having the same meaning as set out in the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). Section 27 of that Act provides for the Minister to declare, by notice published in the Commonwealth Gazette, specified areas of land in the Australian Capital Territory to be National Land.

34․The Prosecution provided the Court with a copy of a Commonwealth Gazette (No. S 76, 2 March 1989) which notifies the declaration of National Land by the then Commonwealth Minister of State for the Arts and Territories, pursuant to subsection 27(1) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). However, while the Prosecution advised me that the National Rock Garden is located within one of the areas identified in the Gazette – specifically, the area described as the “National Museum of Australia” – there was nothing else before the Court to support this assertion. In particular, there was nothing before the Court which identified the boundaries of the “National Museum of Australia” area identified in the Gazette notice.

35․The question, then, is whether I am able to rely on the evidence of Ms Song, that the National Rock Garden is situated within areas of land declared as National Land in the Gazette (and her evidence that it is unleased National Land).

36․In my view, I can.

37․In Bloomfield v Brown [2003] ACTSC 43, the defendant was charged with an offence under the Public Order (Protection of Persons and Property) Act 1971 (Cth). One element of the offence charged was that the defendant was “in or on Commonwealth premises”.

38․In an appeal from a decision of the Magistrates Court, which found the defendant guilty of the offence charged, the defendant asserted that the Prosecution had not established that the land in question was part of “Commonwealth premises”. In dismissing this aspect of the appeal, Justice Connelly stated, at paragraphs 19 and 20:

[19] There is provision in the Act for the Commonwealth to issue a certificate to prove conclusively that an area was "Commonwealth premises", but it is common ground that no certificate issued in the present case. The only evidence lead at the hearing as to the status of the land was oral evidence given by Mr LS Evans, who was identified in the transcript as the Managing Director, Business, National Capital Authority (AB 65). He gave evidence at pages 62-64 of the transcript (AB 65-67) that Commonwealth Place was the construction site where this incident occurred, that that site is Section 56, Parkes, and that the land was declared to be national land in March 1989, and that since January 1993 the National Capital Authority had been responsible for the land in question.

[20] Mr Evans was not cross-examined on any of this evidence. No evidence was lead by Mr Bloomfield to the contrary, other than the assertion that the land was Aboriginal land. It seems to me that the learned Magistrate had sufficient evidence before her to satisfy herself, to the requisite standard this being a criminal Prosecution, that the incident occurred on Commonwealth premises, being land "occupied by the Commonwealth or a public authority under the Commonwealth". While the Prosecution was to some extent criticised by the appellant for failing to prove this aspect of the case by way of a conclusive certificate pursuant to s 13 of the Act, it seems to me that this criticism is misplaced, as by giving the evidence through Mr Evans the Prosecution, fairly, gave the appellant the opportunity to cross-examine or put on contrary evidence, an opportunity that would be denied if a certificate had been provided. A Prosecution authority can hardly be criticised for declining to resort to a conclusive certificate, and instead rely on oral evidence to prove a fact in issue, thus affording a greater opportunity to the accused person to challenge this aspect of the case. It seems to me that this aspect of the appeal must also fail.

39․Similarly in this case, nothing in the Defendant’s cross-examination of Ms Song undermined her evidence that the National Rock Garden car park is unleased National Land.

40․I accept that Ms Song, with over two years’ experience as the Director for estate management at the National Capital Authority – which is the custodian for National Land – has sufficient experience to give evidence as to the areas of National Land in the Australian Capital Territory. She was familiar with the relevant gazette notice (which I took to refer to the Commonwealth Gazette identified above) and also with a map that she said identified the areas of National Land in the Australian Capital Territory. She said that the Lindsay Pryor Arboretum falls within one of the areas of declared National Land and that the car park there is currently public unleased National Land.

41․I accept Ms Song’s evidence. Accordingly, I find that National Rock Garden car park, where the Defendant was located (being an area within the Lindsay Pryor Arboretum), is unleased National Land.

Whether the Defendant was camping

42․Whether the Defendant was camping on 4 January 2023 is not a straight-forward question. A significant reason why that is so is that the Defendant’s conduct did not involve a typical example of camping and the Unleased National Land Ordinance does not define what the word means. This makes it difficult to assess the nature of the Defendant’s conduct against the prohibition contained in section 68 of the Unleased National Land Ordinance.

Meaning of “camping”

43․The word “camp” is not defined in the Unleased National Land Ordinance (and nor is “camps”, or “camping”, as used in section 68 of the ordinance). Neither party referred me to any case law considering section 68 of the Unleased National Land Ordinance or, indeed, considering the meaning of “camping” in any other context.

44․The Prosecution submitted that it should take its ordinary meaning. Given the purpose of the Ordinance (to provide for the protection and use of unleased National Land), and the way in which section 68 is drafted, including its context within the Ordinance, I accept that submission. Section 68 should be read by reference to the ordinary meaning of “camping”.

45․Having said that, “camping” is not well defined in the dictionary meanings I considered. During the hearing I found two definitions which are set out in online dictionaries – “Cambridge online” and “Britannica online” – the combination of which was accepted by the parties as a reasonable definition of “camping” for the purposes of section 68 of the Unleased National Land Ordinance. Accordingly, the definition I adopted was: “the act of staying and sleeping in an outside area for one or more days and nights, usually in a tent and usually for enjoyment”.

46․Relevantly, for the purposes of this definition:

(a)it is an essential aspect of the definition that a person will stay and sleep in an outside area over the course of a particular period (one or more days and nights);

(b)it is not a requirement that camping be undertaken at a “camp site” – camping, as an activity, can be undertaken anywhere;

(c)it is not a requirement that anything in particular be set up to enable a person to camp – what is required is that a person utilise some form of temporary accommodation in which they can “stay” and “sleep”;

(d)it is not a requirement that any particular structure (including a tent) be used – a person could camp in a tent, but could equally camp in a vehicle (a campervan being an obvious example); and

(e)it is not a requirement that camping be undertaken for enjoyment (or “recreation” as the Defendant suggested) – for example, a person of poor financial means may camp as an inexpensive way of living.

47․I note the following legislative definitions that exist in other jurisdictions, by way of comparison:

(a)National Parks and Reserves Management Regulations 2019 (Tas) – camping means “residing temporarily in a hide, tent, caravan, cabin, vehicle, trailer or building”; and

(b)West Beach Recreation Reserve Regulations 2003 (SA) (repealed) – camping “includes sleeping overnight in a motor vehicle parked in the Reserve”.

48․Like the definition I adopted, for these definitions:

(a)an important element of the activity is that it involves sleeping overnight and, in relation to the Tasmanian legislation, the need for the person to utilise a temporary residence;

(b)the act of camping does not require the use of a tent, or any other particular structure, and can involve the use of a vehicle; and

(c)the definition is not limited to recreational camping.

49․I note that sections 44 and 45 of the Unleased National Land Ordinance provide for a general prohibition on the use of National Land for “regulated activities” unless the use of the land is authorised, relevantly, by a permit or licence. “Regulated activities” are defined in section 44 and concern organised activities, generally falling within the description of an “event”.

50․As the “Note” to section 68 of the Unleased National Land Ordinance indicates, a person could obtain a permit authorising a regulated activity which involves camping, however the ordinance does not otherwise provide for a permit to be granted for a person to camp in unleased National Land. I note, conversely, that simply parking (not camping) at the National Rock Garden car park would not contravene section 45 of the Unleased National Land Ordinance unless that activity was undertaken as part of one of the regulated activities set out in section 44.

Relevant legislative history

51․I had regard to the legislative history which led to the making of the Unleased National Land Ordinance, and section 68 in particular, in order to confirm that “camping” in section 68 should be given its ordinary meaning. In my view, nothing in that history is inconsistent with the definition of camping that I adopted at the hearing.

52․I note that the Explanatory Statement that was prepared for the Unleased National Land Ordinance does not provide any explanation with respect to the meaning of the word “camps” or “camping” in section 68. Relevantly, the Explanatory Statement does state, in part, that:

The Australian Capital Territory National Land (Unleased) Ordinance 2022 (the Ordinance) deals with unleased National Land that is open to the public, such as parks and roads, and other unleased National Land in the Australian Capital Territory (ACT). Amongst other matters, the Ordinance provides for the grant of permits to use public unleased National Land for various activities including commercial events, provides for the declaration and closure of public roads and provides various measures to protect National Land. Most of the provisions are updated versions of laws that applied to National Land under the National Land Ordinance 1989 (NLO).

…

The laws applied by the NLO fall into three categories: unleased land (including public places and roads), leased land and lake areas (Lake Burley Griffin). This Ordinance deals with matters previously covered by the applied provisions of the following 5 laws that were given effect by the NLO …

53․Of the five laws given effect to by the National Land Ordinance 1989 (ACT) (NLO), only the Trespass on Commonwealth Lands Ordinance 1932 (Trespass Ordinance) is of relevance. In 1972, the Trespass Ordinance was amended to include provisions (in section 8A) which, amongst other things, prohibited a person from doing any of the following things without a permit:

(a)camping on unleased land (Commonwealth owned land in the “City Area” – being the area specified by the Minister pursuant to the City Area Leases Ordinance 1924);

(b)erecting a structure on unleased land; or

(c)parking or leaving a vehicle on unleased land that was specified by the Minister (additional exceptions were included for this offence).

54․Under subsections 8A(5) and (6) of the Trespass Ordinance, a police officer (and others) could remove a structure or vehicle that was on unleased land contrary to the prohibition discussed above. This could be done following an unheeded request of a person in control of the structure or vehicle to move it (subsection 5), or if more than two hours had passed without a person being in apparent control of the structure or vehicle (subsection 6).

55․By notice published in the Commonwealth Gazette (No. 64, 20 July 1972), a delegate of the Minister of State for the Interior specified the area of land upon which a person could not park or leave a vehicle for the purposes of section 8A of the Trespass Ordinance. The specified area was the area of land between Old Parliament House and Lake Burley Griffin which included the site of the Aboriginal Tent Embassy. That site had been established earlier in 1972 (on 26 January 1972). While a further amendment of the Trespass Ordinance was made in 1973, repealing section 8A, that amendment was disallowed by the Senate. As noted above, the prohibition on camping applied more broadly to unleased land in the city area of Canberra.

56․Of some relevance to the interpretation of the word “camping”, the Explanatory Memorandum for the 1972 amendments to the Trespass Ordinance stated that:

This legislation will not restrict in any way the traditional rights of freedom of speech or assembly. It is directed solely at camping, not at assembly.

57․In my view, it follows from this explanation that the purpose of a person who is alleged to be camping and, in particular, whether they are doing so as part of a political protest or other assembly, is not relevant to whether they are engaging in that activity.

58․The NLO commenced in 1989. While the NLO was amended on a number of occasions prior to its repeal by the Unleased National Land Ordinance, none of those amendments modified section 8A of the Trespass Ordinance (as applied by the NLO).

Impact of legislative history

59․Like the Unleased National Land Ordinance, the Trespass Ordinance did not define the word “camp”.

60․A feature of both ordinances is that, in general terms, they create a separate offence of camping from an obligation to comply with a direction to remove an object from unleased land. As discussed above, the Trespass Ordinance contained specific provisions dealing with structures and vehicles on unleased National Land (including providing a removal direction power), while the Unleased National Land Ordinance contains a more general obligation (in section 36) to comply with a direction to remove an object (which includes a vehicle).

61․I considered whether the creation of these separate offences indicates that I should exclude the use of a vehicle from the definition of “camps” and “camping” in section 68 of the Unleased National Land Ordinance. However, I do not consider that is how the provision should be interpreted.

62․As set out above (in discussing the meaning of “camping”), I consider that the ordinary meaning of camping encompasses the use of a vehicle to do so. I do not consider that the creation of a separate offence in relation to vehicles being on National Land, or anything else in the legislative history leading to section 68 of the Unleased National Land Ordinance, is inconsistent with that conclusion.

63․In particular, it is my view that the camping provision and the object removal provision serve different purposes. One is directed at preventing a particular activity and the other is directed at facilitating the removal of an object.

64․It is noteworthy that the Trespass Ordinance created separate offences with respect to camping and the erecting of a structure. As noted above, similar to section 36 of the Unleased National Land Act, subsection 8A(5) of the Trespass Ordinance permitted a police officer (and others) to remove a structure if the person in control of it did not comply with a direction to do so. A “structure” was defined in section 8A of the Trespass Ordinance to include a tent.

65․As the above demonstrates, there is nothing inconsistent in one provision in a legislative instrument regulating an activity and another provision regulating the use of an object that might be used in that activity. Of course, the objects which might be the subject of a removal direction under section 36 of the Unleased National Land Act are not limited to the kinds of objects that might be used for camping.

66․In my view, there is nothing in the legislative history leading to the making of the Unleased National Land Ordinance that is inconsistent with the definition of camping that I adopted. In particular, there is nothing in the legislative history to suggest that the word “camping” should be defined by anything other than its ordinary meaning.

The Defendant was camping

67․Whether a person is camping will depend on the circumstances of their particular use of the location at which they are alleged to have undertaken that activity. While camping can be undertaken in a variety of ways, a key element of the definition of camping is that it involves sleeping overnight. As discussed above, the definition of camping that I adopted involves the utilisation of some form of temporary accommodation in which a person can “stay” and “sleep” over the course of at least a day and a night.

68․If a person is using a location as a place of temporary residence over several days and nights, it is likely to be clear that they are camping, although subsection 68(2) of the Unleased National Land Ordinance makes clear that camping, as a prohibited activity, is not limited to a person staying at a location over multiple days. A person commits a separate offence in respect of “each day” during which a contravention of subsection 68(1) occurs.

69․This reflects the definition of camping that I have adopted, which includes a requirement that a person has stayed and slept in an outside area for one or more days and nights.

70․Nevertheless, where the use of a location is less than a day, it may be difficult to determine whether a person is camping. Having regard to the definition I have adopted, a person is not camping, for example, if they sleep in their car at lunch time. It is also unlikely that a person, for example a truck driver, will be camping if they need to pull over to the side of a road to have a couple of hours of sleep if they are too tired to drive safely, even if that occurs at nighttime.

71․It is alleged that the Defendant was camping at the National Rock Garden car park on 4 January 2023. The evidence of Constable Baldock is that the Defendant was at the location at approximately 1 am and 5 am. The Defendant admits that he was at the location between those hours, and used his car as shelter for at least part of that period. It is also clear that he slept in his car at some point during that period as well.

72․If that was the only evidence as to the Defendant’s use of the area, I would have some doubt as to whether the Defendant was camping. It is not clear to me that the use of the area for a period of only 4 hours meets the definition of “staying and sleeping in an outside area for one or more days and nights”, even if the Defendant did sleep for some of that period.

73․However, it is clear that the Defendant had been using the area as a place of temporary residence for a number of days.

74․In circumstances where:

(a)he was visited at the location on 30 December 2022 by Acting Inspector Bluett; and

(b)Acting Inspector Bluett raised the issue of the Defendant camping there, and gave him legislation in relation to camping on National Land,

I consider that the Defendant’s evidence – that Acting Inspector Bluett did not ask him to move on – was given by way of explanation for why he had stayed at the National Rock Garden between 30 December 2022 and 4 January 2023.

75․In the above circumstances, and in circumstances where he told the officers he spoke to on 4 January 2023 that he was sleeping and living in his car and that he had not moved his car since he had been arrested previously (which the Defendant did not suggest had occurred between 30 December 2022 and 4 January 2023), I am satisfied beyond reasonable doubt that the Defendant was staying and sleeping in his car at the National Rock Garden car park for one or more days and nights, being the period 30 December 2022 to 5 am on 4 January 2023.

76․As the period 1 am to 5 am on 4 January 2023 falls within that period, I am satisfied that the Defendant was camping at the National Rock Garden car park during that period, as alleged.

There is no mistake of fact

77․A contravention of section 68 of the Unleased National Land Ordinance is an offence of strict liability. Pursuant to section 6.1 of the Schedule to the Criminal Code Act 1995 (Cth) (the Code), the defence of mistake of fact under section 9.2 is available.

78․Subsection 9.2(1) of the Code provides that:

(1)   A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

(b)had those facts existed, the conduct would not have constituted an offence.

79․While the Defendant, who was unrepresented, did not expressly seek to rely on the mistake of fact defence, I considered whether he could avail himself of it.

80․The Defendant’s position is that he did not consider that he was camping because the act of him living and sleeping in his car was one of survival, not recreation. In my view, the Defendant’s interpretation of the nature of his conduct is not a mistake of fact but an incorrect interpretation of the meaning of camping. That is a matter of law.

81․In Ostrowski v Palmer [2004] HCA 30, the defendant had been charged with fishing for rock lobster in a prohibited area. He had been led to believe, by an employee of Fisheries WA that the area was not so prohibited.

82․The court concluded that the mistake was one of law. As Gleeson CJ and Kirby J found at [13]:

This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or [the relevant provisions of the WA legislation] to what are sometimes describes as mixed questions of fact and law. Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition in reg 34, that is to say, ignorance of the law.

83․The Defendant was not mistaken as to the area where he was located (a mistake about which Gleeson CJ and Kirby J noted may have constituted a mistake of fact). The issue was that he was of the view that living and sleeping in his car did not satisfy the meaning of camping for the purposes of the Unleased National Land Ordinance. However, the interpretation and application of the ordinance is a matter of law.

84․Accordingly, I do not consider that it is open to the Defendant to argue that he is entitled to rely on the mistake of fact defence. He did not point to any evidence that suggested a reasonable possibility that a matter exists (or did not exist), relevant to the application of section 9.2(1) of the Code, as he was required to do under subsection 58(7) of the Code in order to discharge the evidential burden that rested on him if he wished to pursue a mistake of fact defence.

Findings

85․The Defendant is homeless and uses his car to live and sleep in. At least as at 4 January 2023, it appears that his licence, or at least his right to drive in the ACT, was also suspended, which meant that he could not personally drive his car.

86․The Defendant was camping at the National Rock Garden car park, within the Lindsay Pryor Arboretum, between at least 30 December 2022 and 5 am on 4 January 2023. This includes the period he is alleged to have been camping at the National Rock Garden car park, between 1 am and 5 am on 4 January 2023.

87․The National Rock Garden car park is unleased National Land.

88․Accordingly, the Defendant contravened section 68 of the Unleased National Land Ordinance. His difficult personal circumstances are, of course, unfortunate, but they are not relevant to whether he committed the offence with which he is charged.

89․He had been advised of his possible contravention of the Unleased National Land Ordinance on 30 December 2022. He was given a copy of at least the part of the ordinance that deals with camping. He was also advised at 1 am on 4 January 2023 that he was illegally camping. He was given an opportunity to leave the area.

90․The Defendant did not leave the area and he was arrested at approximately 5 am on 4 January 2023.

Verdict

91․Accordingly, I find the Defendant guilty of the offence charged.

I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.

Associate: Mason Britton

Date: 6 November 2023