R v Nacovski

[2021] NSWDC 71

District Court

New South Wales

Medium Neutral Citation:

R v Nacovski [2021] NSWDC 71

Hearing dates:

10/3/21, 15/3/21

Date of orders:

15/3/21

Decision date:

15 March 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Conviction appeal dismissed.

Catchwords:

Crime – Conviction appeal – Commonwealth and State offences – Trespass on prohibited Commonwealth land – Failure to obey the direction of an authorised person

Legislation Cited:

Airport Regulations 1997

Airports Act 1996

Commonwealth Crimes Act 1914

Criminal Code 1995

Evidence Act 1995

NSW Road Rules 2014

Category:

Principal judgment

Parties:

NSW DPP – Crown
Bill Nacovski - Appellant

Representation:

Mr S Matchett for Crown
Mr Dayeian for Appellant

File Number(s):

19/346702

 Decision under appeal 

Court or tribunal:

Bankstown Local Court

Date of Decision:

30 October 2020

Before:

Bugden LCM

Judgment on conviction appeal

1. This is an appeal against conviction for two offences. Firstly, an offence under section 89 (1) of the Commonwealth Crimes Act 1914, trespass on prohibited Commonwealth land. Secondly, an offence under s 304 (1) of the NSW Road Rules 2014, failure to obey the direction of an authorised person.

2. The proceedings were defended in the Local Court, where a magistrate found the appellant guilty of both offences.

3. On the appeal however, distinct points, which were not argued in the Local Court have been put forward, suggesting that the prosecution evidence is lacking with respect to proof of certain fundamental elements of each charge.

4. This appeal is a re-hearing, and I am required to form my own judgment of the facts in so far as I can, but recognising the advantage that the Magistrate had in seeing and hearing the witnesses. That of course includes taking into account the Magistrate’s assessment of the credibility of witnesses who gave evidence before him.

5. The prosecution has the onus of proof and must prove the elements of each offence beyond reasonable doubt. The appellant is presumed innocent until proven guilty beyond reasonable doubt.

FACTS

6. The facts arise out of an event that took place near Bankstown Airport on 26 July 2019. On that occasion, the appellant, who was driving a utility, encountered some road works that were taking place at Tower Road, where there were a number of traffic cones, bollards, and two traffic control persons.

7. The prosecution allege that the appellant was told, by means of the placement of traffic cones and other objects, and by a direction of one of the traffic controllers, not to go beyond the point where the traffic controller was working. It is alleged that he disobeyed this instruction, and drove past her, and that shortly thereafter he entered on to prohibited Commonwealth land, namely part of the Bankstown Airport.

Sequence 1 – The Commonwealth charge

8. The Commonwealth charge is under section 89 (1) of the Commonwealth Crimes Act 1914, and the charge is in the following terms: “That between 9:00 am and 9:15 am on 26 July 2019 at Bankstown Aerodrome did, without lawful excuse, trespass upon prohibited Commonwealth land situated at, Bankstown Airport, air side area.”

9. Although the actual offence is set out in the Crimes Act 1914, the method of proof of all Commonwealth offences is set out in the Criminal Code 1995. Section 3.2 of the Code provides that in order for a person to be found guilty of a Commonwealth offence, the prosecution must prove each of the physical elements of the offence, and the relevant fault element for each physical element.

10. The elements of the offence under s.89(1) are as follows:

11. Firstly that a person trespasses or “goes upon” land. The physical element that the prosecution must prove is therefore a trespassing or “going upon” land. That physical element involves “conduct”. The corresponding fault element is therefore “intention” (see s.5.6 of the Criminal Code). In order to prove this first element therefore, the prosecution must prove that the appellant intentionally trespassed or went upon land. There is no dispute in this matter that the appellant “went upon” land, and that he did so by intentionally driving onto land. This first element is therefore established beyond reasonable doubt.

12. Secondly that the land is “prohibited Commonwealth land.” The expression “prohibited Commonwealth land” is defined in section 89 (5) as “land belonging to, or in the occupation of, the Commonwealth or a public authority under the Commonwealth, being land upon which is posted a notice to the effect that trespassing upon the land is prohibited.”

13. The physical element for this second element therefore involves the proof beyond reasonable doubt of 2 things. Firstly, that the land was (as a matter of fact) “Commonwealth land”, and secondly, that it was (as a matter of fact) “prohibited” Commonwealth land.

14. If the prosecution is able to prove these physical elements, then it must also prove the relevant fault elements. The expression “prohibited Commonwealth land” is, for the purposes of the Criminal Code, a “circumstance” (see s.4.1 of the Criminal Code). The relevant fault element that the prosecution must prove therefore is recklessness (see s.5.6(2) of the Criminal Code). In order to prove “recklessness” the prosecution must prove beyond reasonable doubt that the appellant was aware of a substantial risk that the land was “prohibited Commonwealth land” and that, having regard to the circumstances known to him, it was unjustifiable to take the risk that it was prohibited Commonwealth land.

Appellant’s first submission

15. It has been submitted by the appellant, firstly, that no evidence is available to prove that the area on which the relevant events occurred was “Commonwealth land”.

16. The prosecution has submitted that I can take judicial notice that Bankstown airport is “Commonwealth land” in the sense that, for the purposes of section 89(5), it is land “belonging to, or in the occupation of, the Commonwealth”.

17. Section 144 (1) of the Evidence Act 1995 provides that proof is not required about knowledge that is not reasonably open to question and is common knowledge in the locality in which the proceeding is being held or generally, or that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.

18. Subsection 144 (2) provides that a judge may acquire knowledge of that kind in any way the judge thinks fit.

19. In my view, I am entitled to rely upon this provision, and to take judicial notice that Bankstown airport is located on land that either belongs to, or is occupied by the Commonwealth. In my view that is a matter of common knowledge in the locality of Sydney, and is not reasonably open to question.

20. In addition however, it is a matter which is also not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned – namely a page displayed on the Internet by the Department of Infrastructure, Transport, Regional Development and Communications, which refers to Bankstown airport as a “leased Federal airport”.

21. Further support for the proposition that Bankstown Airport is located on land owned or occupied by the Commonwealth, is provided by the Airport Regulations 1997. Clause 1.03 of those Regulations declares “Bankstown Airport” to be an airport site to the extent that it is a Commonwealth place for the purposes of the definition in s. 5 of the Airports Act 1996.

22. This conclusion is given further support by a photograph which is part of Exhibit 1, which depicts a warning sign displayed on a wire fence. That evidence also identifies the particular area of Bankstown Airport that is the subject of the alleged offence. The statement (Exhibit 5) of Mr Gary Stein (a senior site manager for a construction project being conducted at the “Bankstown Airport”) refers to signage that is displayed “every 100 m”, which is clearly a reference to this sign. I note that the sign contains the crest of the “Commonwealth of Australia”.

23. I do not accept the appellant’s argument that paragraph 3 of Mr Stein’s statement is unclear when it refers to “the location” and “the premises”. In his statement Mr Stein says in paragraph 3:

“The location is a security level 6 Airport under Transportation security program. It is restricted access for the public, only authorised personal (sic) are allowed on site. The perimeter of the premises is lined with 2.4-metre-high chain link fence with barbed wire and there is regular signage posted every 100 metres stating warning, airside area unauthorised entry prohibited maximum penalty $5000.”

24. In my opinion this paragraph is more than adequately clear in that “the location” to which he refers is the Airport, and the “perimeter of the premises” to which he refers is a reference to the airport perimeter fence. I am also satisfied that the signage to which he refers is the signage on the chain link fence with barbed wire that surrounds the airport premises. The presence of that sign on the perimeter fence with the crest and title “Commonwealth of Australia” is therefore another piece of evidence that the subject land is “Commonwealth land”.

25. I am therefore satisfied beyond reasonable doubt that the alleged offence occurred on “Commonwealth land”.

Appellant’s second submission

26. In order to be satisfied beyond reasonable doubt that the land was not only “Commonwealth land” but “prohibited Commonwealth land”, I must be satisfied beyond reasonable doubt that it was land on which there was posted a notice “to the effect that trespassing upon the land is prohibited”.

27. In support of this element, the prosecution relies upon a number of pieces of evidence.

28. Firstly there is the statement of Gary Stein of 1 August 2019 (Exhibit 5). Mr Stein says in his statement that the perimeter of the premises is lined with a fence containing regular signage stating, “warning, airside area unauthorised entry prohibited maximum penalty $5000”.

29. In addition, Officer Green gave evidence that on 1 August 2019 (about 5 days after the alleged offence) he attended Bankstown aerodrome, and took a number of photographs. Those photographs were Exhibit 1 in the proceedings below. One of those photographs depicted a sign with the words “Commonwealth of Australia – warning – air side area – unauthorised entry prohibited – maximum penalty exceeds $5000”. The sign also referred to the Aviation Transport Security Act and Regulations. The Officer said that a sign identical to this one was attached to the fence approximately every 100 metres along the fence. I am satisfied that this is an identical sign to that referred to by Mr Stein, and that on the day of the alleged offence, signs to the same effect were displayed every 100 metres or so along the fence that surrounded the airport.

30. There is no dispute by the appellant that he did in fact drive into the airport, and that he entered the airport through the gate shown in the 1st photo of Exhibit 1. However it was argued by the appellant that I could not be satisfied beyond reasonable doubt that the fence and gate through which the appellant entered were part of the same fence referred to in the statement of Mr Stein, or in the evidence of Officer Green.

31. I have considered this argument but I do not accept it. Officer Green’s evidence was that the sign was photographed by him and was attached to the chain link fence. No suggestion was put to him in cross-examination that he had taken a photo of a different chain link fence to the one that formed part of the perimeter that the appellant drove through. That is probably because it would defy logic to suggest that he would have taken a photo of a sign on some other chain link fence. Furthermore, the photo which displays the sign can clearly be seen to be attached to the same type of fence that is shown in the photo of the gate through which the appellant drove. In addition, the 1st and 4th photos in Exhibit 1 clearly show an identical road in the background, which I conclude is the “airside” road in the airport. I am therefore satisfied beyond any doubt that the gate through which the appellant drove was part of a perimeter fence around the airport on which were posted signs “to the effect that trespassing upon the land is prohibited”. This satisfies the physical aspect of the 2nd element.

32. However it is also necessary for the prosecution to prove beyond reasonable doubt the fault element, that the appellant either knew or was reckless as to whether the land he entered was “prohibited Commonwealth land”.

33. In proof of this fault element, the prosecution relies on the following evidence:

34. Firstly, there is the evidence of Ms Punosevac, which I accept, that the road was closed by bollards and that she had displayed a “STOP” sign, which the appellant ignored and drove around. This evidence, as well as the various other forms of road blocks or restrictions in place at the time, would have provided an alert to the fact that the appellant was likely to be driving in an area where restrictions were in place.

35. Secondly, the appellant was very familiar with the particular road, and used it as a traffic bypass. He was also aware that the road bordered onto Bankstown airport, and agreed in cross-examination that he knew that the airport was immediately to the right of the road he was driving on.

36. Thirdly, even if the existence and location of the airport was not obvious, there is the fact that, once the appellant reached the gates through which he drove, he must have known (and in fact he admitted this in evidence) that he was at that point entering into the airport – a matter which, even leaving aside all the other warnings, must have alerted him to the risk, if not the certainty, that he was about to trespass on or enter onto a restricted or prohibited area.

37. Fourthly, and as I have already found, the gate through which the appellant entered was part of a continuous 2.4m-high barbed wire fence on which there was posted about every 100 metres a warning sign stating, “Warning – Airside area – Unauthorised entry prohibited – Maximum penalty exceeds $5,000”.

38. In my opinion this evidence taken together supports very strongly an inference beyond reasonable doubt that the appellant either positively knew, or at least was aware of the risk, when he entered the gates into the airport, that he was entering prohibited Commonwealth land, and that, in the circumstances known to him, it was unjustifiable to take that risk.

The “lawful excuse” issue

39. On the appeal, no submission was made to me about the “lawful excuse” exception which is provided for in s.89(1). However, such an argument was advanced in the Local Court. I intend therefore to deal with this issue, as a matter of completeness.

40. Section 89(1) provides that an offence will not be made out where the person has a “lawful excuse”, proof of which lies on the accused person. This represents an “evidential burden” only (see s.13.3 of the Criminal Code). That is, the burden of adducing or pointing to evidence of a “lawful excuse”.

41. In this matter, the appellant relies on his evidence to the effect that there was a failure in the directions by a traffic controller or some lack of clarity in the directions given by her, to inform him that he was not entitled to enter the area that he did. He asserts that the traffic controller had only displayed a sign saying “Slow”, and that he had slowed down before proceeding on. He further claimed that after this, it was the witches’ hats that diverted him into the airport.

42. As to this, there is firstly the evidence of Ms Punesovac, whose evidence was not diminished in cross-examination and about whom the Magistrate made very positive credit findings, which I accept. In my view, the appellant’s evidence that there was some ambiguity about whether he was entitled to go past, and his suggestion that Ms Punesovac had only displayed a “slow” sign, is simply unbelievable. It flies in the face of other evidence, that there were numerous “road closure” signs, and it is contrary to the appellant’s own evidence that he “accelerated and took off”, which is consistent to some degree with Ms Punesovac’s evidence that he drove around her and knocked over a bollard.

43. In relation to the appellant’s case, I note with approval the comments of the learned Magistrate, who said:

“there were signs everywhere, signs you cannot go up the road, bollards, witches’ hats. Two people on the road. So it would be obvious to anyone driving on that road on that date that there was something up, some reason that you could not proceed.”

44. I adopt also the following comments of the Magistrate:

“…I think anyone that has ever passed that road on numerous occasions like the defendant, like any airport, like Sydney airport, if you get inside the airport in a car, you are in the wrong position. You cannot drive on airports.”

45. I therefore have no hesitation in rejecting the suggestion that the appellant had, and believed that he had, a “lawful excuse”, in that he was directed to go ‘slow’ and was then effectively diverted into the Airport by the placement of “witches hat” cones.

46. I therefore find each of the elements proved beyond reasonable doubt and that the suggestion of “lawful excuse” has been disproved beyond reasonable doubt.

47. I find the appellant guilty of this offence.

The sequence 2 offence – the State charge

48. This is an alleged offence under s.304(1) of the Road Rules 2014, that the appellant failed to obey a reasonable direction for the safe and efficient regulation of traffic that was given to him by an authorised person, being either Ms Punosevac or Ms Escobar.

49. I have already set out the essential facts that are relied on by the prosecution.

50. The appellant claims that he was not given a direction to “stop” and not proceed past where the traffic controllers were located. However, as I have already explained, I am satisfied beyond reasonable doubt that the appellant was given a reasonable direction to this effect, and that he disobeyed it.

51. In the Local Court there was no issue taken that Ms Punosevac was an “authorised person”. However, it is now submitted that the evidence is insufficient to establish this element.

52. It is therefore necessary on this appeal that the prosecution prove this essential element, that Ms Punosevac was an “authorised person” as defined in the Dictionary to the Road Rules. That requires proof beyond reasonable doubt that she was a person “appointed by Transport for NSW as an authorised officer for the purposes of the provision in which the expression is used.”

53. In this regard, evidence was lead in the proceedings below in which Ms Punosevac said:

“My role was just to be the traffic controller at the end point of the road that was closed. My job was just to guide all the traffic to go back into the direction because we had road closure for roadworks.”

54. In addition, she gave the following evidence in cross-examination:

“Q. Ms Punosevac, at the time on 26 July you were an authorised traffic controller in New South Wales?

A. Yep.

Q. You gained a qualification through the Roads and Maritime Service?

A. Yep.

Q. In order to get that qualification you completed a two-day course?

A. Yep.”

55. The unchallenged evidence from Ms Punosevac therefore is that she was working as a traffic controller, and that she was an “authorised traffic controller” and had been qualified as such through “Roads and Maritime Service”.

56. Section 144 (1) of the Evidence Act 1995 says that proof is not required about knowledge that is not reasonably open to question and is common knowledge in the locality in which the proceeding is being held or generally, or that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.

57. I take judicial notice of the fact that “Roads and Maritime Services” was an agency of the NSW Government with responsibilities which included the management and administration of traffic, roads and vehicles in NSW. A current internet search under that name takes an internet user to the website for the agency which notes that its current title is “Roads and Maritime” and that it is part of “Transport for NSW”.

55. I am satisfied that the evidence by Ms Punosevac that she was an RMS-qualified traffic controller amounts to proof beyond reasonable doubt that she was a person “appointed by Transport for NSW as an authorised officer for the purposes of the provision in which the expression is used”. The fact that on the day in question, Ms Punosevac was in fact carrying out duties as a traffic controller on a public road is another matter which supports this conclusion.

56. I therefore find the offence proved beyond reasonable doubt.

**********

Decision last updated: 18 March 2021