Step v Crown - [2011] NTSC 55

Step v Crown Land Manager [2011] NTSC 55
PARTIES: VACLAV STEP

v
CROWN LAND MANAGER OF THE DEPARTMENT OF LANDS AND PLANNING OF THE NOTHERN TERRITORY

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 57 of 2010 (21021325)
DELIVERED:   15 July 2011
HEARING DATES:   17 & 19 January 2011
JUDGMENT OF:   SOUTHWOOD J
APPEAL FROM:   CAREY SM
CATCHWORDS:

APPEAL AGAINST CONVICTION – Crown land – trespass after direction to leave – adverse possession – claim of interest in land – warning to stay off – jurisdiction of the Court of Summary Jurisdiction – appeal dismissed
Justices Act s 50
Lands Title Act s 198
Limitation Act s 6(4)
Trespass Act s 4, s 7(1), s 8(3), s 9, s 11(2), s 12, s 13, s 13(2)

Barns and Campbell v Edwards and Linden (1993) 69 A Crim R 140; Braithwaite v Coutoupes (1918 – 1950) NTJ 294; Ex parte Coffill (1894) 10 WN (NSW) 222; Coutoupes v Braithwaite (1918 – 1950) NTJ 292; Refina Pty Ltd v Binnie [2010] NSWCA 192; Spark v Meers [1971] 2 NSWLR 1; Van den Bosch v Australian Provincial Assurance Association (1968) 88 WN (Pt 1) (NSW) 357, applied
Allen v Roughley (1955) 94 CLR 98; Arnold v Morgan [1911] 2 KB 314; Asher and Wife v Whitlock (1865) LR 1 QB 1; Clissold v Perry (1904) 1 CLR 363; Elizabeth Valley Pty Ltd v Fordham and Others (1970) 16 FLR 459; Harvey v Williams [1883] 18 SALR 8; Mabo v Queensland (No 2) (1992) 175 CLR 1; Mulcahy v Curramore Pty Ltd [1907] AC 73; Newington v Windeyer (1985) 3 NSWLR 555; Perry v Clissold [1907] AC 73; Spark v Whale Three Minute Car Wash (CJ) Pty Ltd (1970) 92 WN (NSW) 1087; Wheeler v Baldwin (1934) 52 CLR 609, referred to
REPRESENTATION:
Counsel:
Appellant:   V Step in person
Respondent:   R Jobson
Solicitors:
Appellant:   Self represented
Respondent:   Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:   Sou1108
Number of pages:   18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Step v Crown Land Manager [2010] NTSC 55

No. JA 57 of 2010 (21021325)
BETWEEN:

VACLAV STEP

Appellant:

AND:

CROWN LAND MANAGER OF THE DEPARTMENT OF LANDS AND PLANNING OF THE NORTHERN TERRITORY

Respondent:

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 15 July 2011)
Introduction

The appellant has appealed against his conviction by the Court of Summary Jurisdiction of the offence of trespass after a direction to leave contrary to s 7(1) of the Trespass Act. No penalty was imposed on the appellant following his conviction. However, the trial Magistrate gave the appellant a warning to stay off the land under s 8(3) of the Trespass Act.
The grounds of appeal are that the trial Magistrate erred in law when he: (1) held that s 198 of the Lands Title…

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 Step v Crown

Details

AGLC: Step v Crown Land Manager [2011] NTSC 55
Case: [2011] NTSC 55
Decision Date: 15/07/2011

CaseChat Overview and Summary

The case of Step v Crown involved the appellant, who was found guilty of trespass by the Court of Summary Jurisdiction. The dispute centred on the appellant's continued occupation of two parcels of unalienated Crown land in the Northern Territory without any form of permission. Despite his long-term occupation, which included constructing various structures on the land, the appellant was directed to leave the land by the Department of Lands and Planning. He was subsequently charged with trespass under the Trespass Act. The appellant argued that he had acquired a possessory interest in the land through adverse possession, but this defence was rejected by the trial Magistrate.

The legal issues the court had to decide were whether the appellant's long-term occupation of the land constituted adverse possession that could negate his status as a trespasser, and whether the emergency defence was applicable. The court had to consider the appellant's argument that adverse possession could still apply to Crown land and if the doctrine was still valid in the Northern Territory. Additionally, the court needed to determine if the appellant's situation constituted an emergency that would excuse his trespass.

The court rejected the appellant's adverse possession argument, ruling that the doctrine did not apply to Crown land in the Northern Territory and was not a valid defence in this case. The court also dismissed the emergency defence, finding that the appellant's situation did not justify his continued occupation of the land. The trial Magistrate concluded that all elements of the trespass offence were satisfied and that the appellant's refusal to leave the land after proper notice was given constituted a breach of the Act. The appellant was convicted and subsequently discharged without penalty due to his financial situation.

The final orders of the court were that the appellant was found guilty of the charge of trespass but was discharged without penalty. The court's decision upheld the Crown's authority over the land and clarified the inapplicability of adverse possession to Crown land in the Northern Territory.

Orders

Orders of the court

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Background

Background to the litigation

Subsection 11(2) of the Trespass Act states that proceedings for offences under this Act shall be taken only on the complaint of an occupier of the place concerned or a member of the Police Force, and shall be disposed of summarily.Background facts There was considerable common ground between the parties about the facts. There was no dispute about the following matters. Sections 1659 and 1660 Hundred of Ayres are two unalienated vacant parcels of Crown land. The appellant entered and started living on Section 1660 Hundred of Ayres in August 2001. Since then he has lived there continually without holding a lease or licence or any other permission to be on the land. The appellant has erected dwelling structures, a shed and a water tank on Section 1660 Hundred of Ayers and other structures on Section 1659 Hundred of Ayers. He has also constructed a gate across the entrance to the parcels of land with a sign stating, “No Trespassers”. In all respects the appellant has conducted himself as if he were the occupier of the land. His use of the land disclosed an intention to possess the land against the whole world including the Crown in the Northern Territory. The following evidence was led from Ms Jacqueline Ann Stanger and Ms Sharon Leslie Hinton. The Northern Territory Department of Lands and Planning is the Government Department that has the responsibility for administering sections 1659 and 1660 Hundred of Ayers. At all relevant times, Ms Stanger was employed by the Department as an Assistant Director of the Land Administration Service and Ms Hinton was employed as the Acting Manager of Crown Land. Neither Ms Stanger nor Ms Hinton were asked, who was in charge of the two parcels of Crown land, nor were they asked if they had authority from the person in charge of the parcels of Crown land to direct the appellant to leave the land. However, it was not suggested by the appellant that Ms Stanger did not have the necessary authority to direct the appellant to leave the place he was occupying and the appellant led no evidence to rebut the evidentiary presumption created by the averment that Ms Stanger was acting under the authority of the Northern Ter ritory. During 2009 it came to the attention of employees of the Department of Lands and Planning that the appellant was squatting on Section 1660. On 6 May 2009 Ms Stanger wrote a letter to the appellant. The letter asserted the Crown’s possession and control of the land. The letter stated that the Department had become aware that the appellant had been squatting on 1660 Hundred of Ayres which was Crown land without permission. The letter notified the appellant that he must vacate Section 1660 within 24 hours of the date of the letter. It advised him that he would need to remove all of his belongings from the property or the Department would employ contractors to remove anything that was left behind. He was also advised that the matter would be referred to the Department’s legal advisers and further action would be taken if the matter was not resolved within the time specified. The letter was personally served on the appellant by officers of the Department and members of the Police Force.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The complaint was heard by the Court of Summary Jurisdiction on 3 November 2010 and the trial Magistrate found the appellant guilty as charged. The Reasons for Decision of the Trial Magistrate The principal issue at the trial was whether the appellant had ceased to be a trespasser because of the length of time he had been in possession of the two parcels of Crown land. The appellant argued he was not a trespasser because he had dispossessed the Crown and had acquired a right to occupy the two parcels of land under a bare inchoate possessory interest which he acquired by adverse possession. In support of this proposition the appellant, who was unrepresented, relied on Allen v Roughley[1]. He argued that the decision of the High Court established the principle that a person may acquire an inchoate possessory title even if the limitation period for adverse possession had not expired. He was in an equivalent position to the testator, Mr Cuthbert, whose beneficiaries did not have any documentary evidence to prove the conveyance to the testator. Further, his possession of the parcels of land did not cease simply because a person from the Department of Lands and Planning requested him to leave the land. The appellant maintained that s 198 of the Land Title Act did not abrogate his possessory rights. Section 198 of the Land Title Act only applied to land under that Act and by implication he must be taken to have argued that the two parcels of unalienated Crown land was not land under that Act. The appellant also sought to rely on the defence of emergency under s 13(2) of the Trespass Act. He stated that an emergency existed because he had nowhere else to live if he was removed from Section 1660 Hundred of Ayers. Counsel for the complainant argued that by virtue of s 198 of the Land Title Act there was no adverse possession against the Crown in the Northern Territory. The appellant was a trespasser and the Crown, as the true owner of the land, had re-entered and reasserted its possession of the parcels of land and under s 7 of the Trespass Act had given the appellant a lawful direction to leave the land and the appellant had refused to do so. Further, there was no emergency. The trial Magistrate gave the following reasons for his decision.My ruling in this case is that [the appellant] does not have the benefit of [the doctrine of adverse possession] because there is no doctrine of adverse possession.I am satisfied that all of the elements of the offence are made out. I am satisfied that you were trespassing on the land as you have in fact admitted and that you still continue to do so. I am satisfied that the Act has been fully complied with so far as the giving and serving of notices is concerned and that you have since refused or failed to leave the land as you continue to admit. And I am satisfied also that you cannot get any benefit from the doctrine of adverse possession because it no longer exists as a law of the Northern Territory.I am satisfied beyond any doubt that all of the elements of the offence are made out and I am going to record a finding of guilt of the charge against you. I am satisfied that I should record a conviction against you because you satisfy the elements of the Sentencing Act for doing so. But given your impecunious position and the situation you are in I am going to discharge you after you have been convicted. You are convicted and discharged. You are not fined.

Ratio Decidendi

Legal Principle Established

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