The State of Western Australia v Pettit
[2024] WADC 73
•4 SEPTEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: BROOME
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PETTIT [2024] WADC 73
CORAM: LONSDALE DCJ
HEARD: 24 MAY 2024
DELIVERED : Ex tempore
PUBLISHED : 4 SEPTEMBER 2024
FILE NO/S: IND BRO 19 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
HENRY BUSTER PETTIT
Catchwords:
Road Traffic Act 1974 (WA) - Road Traffic (Administration) Act 2008 (WA) - Definition of 'road' or 'any place to which the public is permitted' - No case to answer - Dangerous driving occasioning death
Legislation:
Biosecurity and Agriculture Management Act 2007 (WA)
Criminal Procedure Act 2004 (WA), s 3
Land Administration Act 1997 (WA), div 4, div 5, s 101, s 104, s 106, s 111
Road Traffic (Administration) Act 2008 (WA), s 4, s 109(1)(e)
Road Traffic Act 1961 (SA), s 5, s 47
Road Traffic Act 1974 (WA), s 59(1)(b), s 59B(1)(a), s 59(1)(b), s 73
Result:
No case to answer
Representation:
Counsel:
| The State of Western Australia | : | Mr J G Nicholls |
| Accused | : | Mr C J N Eberhardt KC & Ms L Paxman |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Paxman & Paxman |
Case(s) referred to in decision(s):
Dwyer v Police [2005] SASC 31
Halliday v Nevill (1984) 155 CLR 1
Harrison v Hill [1932] SC (J) 13
McBain v Reyne (1998) 69 SASR 580
R v Collinson (1932) 23 Cr App R 49
R v Waters (1963) 47 Cr App R 149
Schubert v Lee (1946) 71 CLR 589
Talbot v Lane (1994) 14 WAR 120
Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100
LONSDALE DCJ:
[This judgment was delivered extemporaneously on 24 May 2024 and has been edited from the transcript.]
The charge
The accused is charged under s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA) with the offence of dangerous driving occasioning death.
The charge arises out of an incident which occurred sometime between 10.30 pm and 11.00 pm on 23 April 2021 at Kilto Cattle Station (Kilto Station) where both the accused and the deceased, Maxim Ayers had been employed as station hands.
The State's opening
The State case is that on the evening in question the accused had driven the deceased to Kilto Station after they had spent an evening drinking and socialising at the Roebuck Plains Roadhouse, some 20 km south of Kilto Station. Both men had arrived at the Roebuck Plains Roadhouse at about 7.30 pm and had drunk a quantity of alcohol. At about 9.56 pm the accused left, driving his vehicle with the deceased as his passenger in the direction of Kilto Station. The accused's vehicle was a 1985 model Toyota Landcruiser fitted with a bull bar and which had modified driving lights to enhance illumination.
The State case was that the accused travelled north along the Great Northern Highway after leaving the Roebuck Plains Roadhouse and eventually turned left onto the road leading to Kilto Station. He then travelled along the nearly 14 km of that road and, shortly before reaching the main part of the station sometime between 10.30 pm and 11.00 pm, veered off the road onto a grassy and sandy area (more or less in a straight line). The accused then passed over an old piece of metal grate lying loose on the ground before glancing past a tree to his left, before the vehicle rolled, coming to rest on its right side in a ditch.
The State case is that the deceased died because (as the forensic evidence would establish) he was at least partially outside the passenger side of the vehicle at the time the vehicle glanced past the tree, thus causing him to come into contact with the tree and resulting in him being fatally injured.
The State allege that the accused's driving was dangerous for a combination of reasons.
First, the State relies on the fact that the accused had been drinking that night. Just over four hours after the incident, a sample of the accused's blood was taken and testing later revealed that his blood alcohol concentration would have been somewhere in the region of between 0.137% - 0.144%, depending on whether the crash occurred between 10.30 pm and 11.00 pm. The expert evidence, having regard to the accused's likely blood alcohol concentration at the time of driving, was that his driving would have been impaired to some degree.
Secondly, the accused knew the vehicle to have a mechanical defect, namely, a defect to the brake pads, which caused the vehicle to hook to the right on braking.
Thirdly, the State says that, although it cannot say how fast the accused was travelling, it must have been at an 'appreciable' speed because the car travelled some 73 odd metres off the road before coming to rest.
Fourthly, the State says the accused was travelling at night‑time, where there was no street lighting.
Fifthly, the State says there were various potential environmental hazards, including stray or wild animals and other potential hazards, such as the ditch that the vehicle ended up in.
It cannot, at this stage of the proceedings be known what the defence would submit about whether or not, in the circumstances the accused drove dangerously, thereby occasioning the death of the deceased. The fact of dangerous driving was not admitted or conceded by the defence.
The basis of the defence application - failure to prove an essential element of the offence
Yesterday [on 23 May 2024], the State closed its case and, at the conclusion of that, counsel for the defence made an application that I rule that there is no case to answer.
The defence application does not concern the issue of whether or not the accused was driving dangerously.
In addition to the elements of dangerous driving causing death contained within s 59(1)(b) of the RTA, s 73 of the RTA requires that the State must prove beyond reasonable doubt that the driving occurred on a 'road or in any place to which the public is permitted'. The defence submits that the State has failed to prove this element.
Section 73 of the RTA reads:
Certain offences extend to driving or attempting to drive in public places
In sections 54, 55 and 56 and in sections 59 to 72 inclusive, but not in section 62A, a reference, however expressed, to the driving of or attempting to drive a motor vehicle shall be construed as a reference to the driving of or attempting to drive a motor vehicle on a road or in any place to which the public is permitted, whether on payment of a fee or otherwise, to have access, and a reference to a driver shall be construed accordingly.
(emphasis added)
Relevantly, s 4 of the Road Traffic (Administration) Act 2008 (WA) (RTAA) defines a 'road' as:
Any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it.
(emphasis added)
There are thus two limbs to s 73 which provide a pathway to proof of the element created by s 73 of the RTA, namely, a 'road … open to or used by the public' (by virtue of s 4 of the RTAA) OR 'a place to which the public is permitted' access.
Averment in the Road Traffic Act
There is an averment in s 109(1)(e) of the RTAA which reads:
In a prosecution for an offence under a road law an averment in the prosecution notice as to any of the following matters is to be taken to be proved in absence of proof to the contrary -
…
(e)that on a specified date a vehicle was driven or used on a road or any place to which the public is permitted, whether on payment of a fee or otherwise, to have access;
The definition of 'prosecution notice' is contained within s 3 of the Criminal Procedure Act 2004 (WA) and reads:
prosecution notice means a document that contains one or more charges, complies with section 23(2), and is lodged with a court of summary jurisdiction;
(emphasis added)
As this is a trial on indictment and this court is not a summary court, s 109(1)(e) of the RTAA has no application. The onus therefore remains on the State to prove that the relevant road was not a road within the meaning of the RTA or a place that the public was permitted to have access and this is a point conceded by the State.
It is convenient now to refer to the evidence relevant to the question I must decide.
Evidence of Jamie Burton
The State led evidence from the witness, Jamie (or Jack) Burton who is the owner of Kilto Station. More accurately, he is the pastoral leaseholder of Kilto Station. The main operation for Kilto Station, which consists of a number of houses and buildings associated with running the station, is situated 13.8 km from the Great Northern Highway along an unsealed dirt and gravel road, being the road which is the subject of this application.
The entrance to the road (which Mr Burton described in his evidence as the 'driveway' to the station) is denoted by what appears to be a street sign situated on the Great Northern Highway with the words 'Kilto Station' on it. Mr Burton's evidence (which is also apparent from photographs referred to in evidence) was that, after turning off the Great Northern Highway, you would reach a cattle grid within 80 m. This cattle grid is the first of three cattle grids along the road before the road terminates at Kilto Station.
Mr Burton gave evidence that there was nothing preventing a person driving over the cattle grids. There were no signs declaring that the area was private property or that there should be no trespassing. There were no signs saying that permission was required to go to the station. He said that the first 10 km on Kilto Road traversed the Roebuck Plains Station.
After crossing through the Roebuck Plains Station on the road, there was a second cattle grid bounded by a fence and gates marking the boundary to Kilto Station. From there, the road traverses Kilto Station and some 4 km later, there is a third cattle grid marking the entrance to the main operation of Kilto Station. It was just before this third cattle grid that the accused's vehicle left the road before coming to rest some 70 m away in a ditch.
Mr Burton's evidence was that there was no sign at the entrance to the boundary of the station near the second cattle grid. There was a gate which could be closed (which he might do for mustering purposes), but most of the year it was open and his usual practice was to leave the gates open.
Mr Burton said there were about eight houses on the property and about 10 or 12 people living on the station including members of his family. He employed about five or six station hands. He said that he would allow employees to receive visitors from family or friends; this was not something he would prohibit.
In addition to family and friends visiting the station, he would receive visits from stock agents and sales representatives selling, for example, vaccines and fertilisers or people from trucking companies. At the time of the incident he was building a small abattoir and there were tradespeople coming and going.
Mr Burton said that rarely would people come down the road because they were lost. He said an Aboriginal person might come out looking for a goanna or something like a turkey, but that was about it.
Mr Burton said that he held a pastoral lease to which he paid rent to the State government. His understanding was that he had the right to use the land for pastoral purposes which is basically the running of livestock and any activity associated with that. That activity included running the housing and staff.
Mr Burton said that he was responsible for and paid for the maintenance of the road from the highway to the station. He grades the road twice a year, usually after the wet season.
Mr Burton said that when he bought the property back in 1993 the Shire maintained the road, but the Shire delisted all the roads to cattle stations from the Shire asset register some years ago. This was evidenced by documentation tendered by the State in the form of council minutes showing that in 2018 the road was delisted from the Shire register.
Under cross‑examination, Mr Burton agreed with the proposition that the station was landlocked. There were no signs welcoming people to the station. He agreed he was not allowed to conduct a tourist operation. There were no invitations to general members of the public to come down and have a look at the property.
Mr Burton said he had an agreement with Roebuck Plains Station. (I note that there was noboby called from the Roebuck Plains Station to say whether or not people were permitted to travel along that road through Roebuck Plains Station.)
Mr Burton said that people who used the road were people that came there for the purposes of going to Kilto Station, or people who lived there, or people who were guests of people who lived there. His evidence was that this road was not a thoroughfare to anywhere else.
Mr Burton said he had not given an invitation to anyone to come there if they wanted to. He would not have wanted people to come there because it would present all sorts of safety risks and biosecurity risks. In cross-examination, he agreed that he would not allow people to camp on the property. He said there are no tourist attractions and no accommodation for travellers, and he does not permit people to camp on the road.
Evidence of Richard Gavin Patterson
Mr Burton's general manager, Richard Gavin Patterson, gave evidence that the sign denoting the driveway to the Kilto Station said 'Kilto Station'. He said that after the turn off from the highway, it was 20 minutes to the first cattle grid. There may have been a sign there about dog baiting in the area, but he did not remember any signs. He could not recall any signs saying that it was part of Roebuck Plains Station.
Mr Patterson also said there were no gates or chains preventing a vehicle driving down the road as at April 2021. He said there were cattle grids. It is a very busy road. He thought that Kilto Station was one of the busiest stations in the Kimberley. It had a feed lot, and they were building an abattoir at the time. The feed lot had about a 4,000 head capacity, so there were always trucks coming in and out, and they had their own crews mustering in different areas across the Kimberley. Mr Patterson said at the time, builders were coming and going, as well as engineers, trucks delivering and picking up livestock and general staff.
Evidence of Senior Constable Aitken
Senior Constable Aitken attended on 24 April 2021 as part of the police investigation. He accessed Kilto Station along the road. He described Kilto Road as a gravel, unsealed road.
He said there was nothing blocking his access to Kilto Road and, when he turned into it, there was no gate and no signs suggesting it was a private property. He said there were no signs warning him against trespass at the main entrance near the turnoff just off the Great Northern Highway. He said that when he drove down the road towards Kilto Station near the location where the crash occurred, there was nothing preventing him having access.[1]
[1] ts 326.
Under cross-examination, he agreed that you could not pass through Kilto Station to any tourist destinations. He agreed that there was no tourist activity at Kilto Station; there were no shops, for example. He described the road as a dirt and gravel road, with no gutters or footpaths or street signs or street lights or speed limit signs.[2]
Preliminary issue - Is the State precluded from relying on the second limb of s 73 of the Road Traffic Act 1974?
[2] ts 330.
The defence submits that the State cannot rely on the second limb of s 73 to prove its case because of s 59B(1)(a) of the RTA which reads:
(1)For the purposes of sections 59, 59A and 59BA(1), the circumstances in which a motor vehicle is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include those in which the death or harm is occasioned through -
(a)the motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise); …
(emphasis added)
The defence submits that this requires the State to prove that the driving occurred on a 'road' rather than a 'place'. I do not accept that submission. The language of s 59B(1)(a) is not definitive of the circumstances which might in any given case constitute dangerous driving. Rather, I consider that the language of s 59B(1)(a) should be read as being inclusive of the circumstances described there. It has the effect of extending the circumstances in which the State might establish that dangerous driving occurred on a road.
It follows that, provided that the State proves either that the accused drove dangerously on a 'road open to or used by the public' OR a 'place to which the public is permitted', then it would have proven the element necessary under s 73.
I did not invite the State to specify whether the relevant conduct occurred on a 'road' or 'a place'. The State did not specifically disavow reliance on this second limb of s 73. However, it is apparent from the State's submission, and the State's case, that it relies primarily on the characterisation of the road as a 'road open to or used by the public', rather than its characterisation as a 'place' (being something other than a road).
The State's position as to whether the driving occurred on a road or place to which the public is permitted
The State submits that there is a combination of factors which would cause me to conclude, as a matter of law, that the road was either open to or used by the public.
First, the State points to the evidence of Mr Patterson, who described Kilto Station as a busy station with people coming and going all of the time. The State submits that there were large subgroups of people, including residents, staff, and various people having business at the station, which it says is inconsistent with the station being essentially a private operation.
Secondly, the State points to the fact that there are no physical barriers or signs at either the first or second gate warning people that this is private property. Although there may be fences delineating the Roebuck Plains Station from Kilto Station at the second cattle grid along the road, there are no fences or gates preventing people entering.
Thirdly, the State submits that the road is 14 km long, which is more consistent with it having the characterisation of a public rather than a private road.
Fourthly, the sign reading 'Kilto Station' appearing on the Great Northern Highway has the appearance of denoting a public rather than a private road.
Fifthly, the road itself is well maintained in terms of a major public highway. It has the appearance of a publicly maintained road and amounts to an invitation to the general public that it is open to or accessible by them.
Sixthly, the surrounding land does not appear to be fenced off, and there is no deterrent signage along the road, that is, signs deterring members of the public.
Seventhly, if the broader public were to access the road, they would not be doing so in defiance of a warning.
Eighthly, historically this road was a Shire road and so it maintains its appearance as a public rather than a privately maintained road.
The State submits that the combination of these factors amounts to there being sufficient, at least, implied, permission for the public to enter; in other words, there is either implied permission to enter or an invitation or licence for members of the public to drive down Kilto Road and so the road is properly characterised as one which is open to or used by the public or that the public has permission to use.
It is common ground that Kilto Station is a pastoral lease on Crown land. The State did not adduce evidence of the terms of the lease but for present purposes I accept that Kilto Station is a pastoral lease on Crown land granted under s 101 of the Land Administration Act 1997 (WA) (LAA). I accept that pastoral leases are subject to the conditions outlined in div 4 of the LAA.
It is accepted that an owner of freehold land is not subject to the same conditions.
Relevantly, s 104 of the LAA provides for Aboriginal persons to enter at all times on any unenclosed and unimproved parts of the land under a pastoral lease to seek their sustenance in their accustomed manner. That is relevant because, as the evidence showed, occasionally indigenous people had come to hunt. There were no details, however, that were given of the occasions on which this happened, and it appears to have been assumed by Mr Burton that they were pursuing their traditional rights. However, there is no proof that, in fact, that was what was happening on the occasions that he referred to.
Section 106 of the LAA provides that a pastoral lessee must not use land under the pastoral lease for purposes other than pastoral purposes except in accordance with the permit issued under div 5. The State did not adduce any evidence of any permits relevant to this pastoral lease.
Section 111 of the LAA provides that a pastoral lessee must control declared pests on the land under the lease in compliance with the Biosecurity and Agriculture Management Act 2007 (WA) and to the satisfaction of the board.
There was some reference in the evidence of Mr Burton to the need to keep people out, as it were, for biosecurity reasons and a reference in his evidence to this being an operation with an export licence. It is accepted by me that an owner of freehold land is not subject to the same conditions of occupation; however, as I say, there was no evidence adduced by the State which could cause me to draw any conclusion other than Mr Burton's use of Kilto Station was in the nature of use consistent with the station and the property being privately owned.
The law
Counsel have referred to a number of authorities dealing with the question of what constitutes a road open to or used by the public or a place to which the public is permitted to have access. Many of those cases concern the road traffic law in other jurisdictions, but the principles have application in this State.
Most of the authorities referred to deal with the expression 'road open to or used by the public' rather than the expression in the second limb of s 73 of the RTA, namely, 'place to which the public is permitted to have access'. However, there is overlap between the two limbs in terms of the focus on what constitutes 'public'.
Harrison v Hill
An examination of what is meant by 'the public' was conducted in the seminal case of Harrison v Hill [1932] SC (J) 13 (a Scottish case). In that case, the court considered the definition of a 'road' as 'any highway and any other road to which the public has access'; thus, the legislation in Scotland contains a similar definition to the definition of 'road' under s 73 of the RTA.
In Harrison v Hill, the road in question was part of a farm which led to a farmhouse, where it terminated. There were no other houses on the land, and the road was not maintained by any public authority but was maintained by the farm tenant. There was no gate at the entrance to it and no intimation that it was not open to the public. In summertime, the farmer placed a pole across it, preventing the straying of cattle which were grazing in the adjoining fields. However, there was no obstacle to prevent the public having access to it. The road was, in fact, used by the public as an access to the farm, and members of the public not having business there, also frequently walked on it. On occasions, they had been turned off by the farmer when there were crops growing in the adjoining fields.
In that case the Lord Justice-General, Lord Clyde, said in relation to the expression 'the public' at page 16:
I think that, when the statute speaks of 'the public' in this connection, what is meant is the public generally and not the special classes of members of the public who have occasion for business or social purposes to go to a farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
In that case, the evidence was that the public generally did have access to the private road in question without objection unless there was any reason to believe that the persons using it were likely to commit mischief. There was evidence there that, although the road was on private land, the road was one which the public regularly used and was thus, a road.
The circumstances of Harrison v Hill differ factually from the present case, but, importantly, it was a case which stated the test for what constitutes the public and was approved by the High Court Schubert v Lee (1946) 71 CLR 589. Both cases have been repeatedly followed in almost every jurisdiction in Australia, including in this jurisdiction.
Schubert v Lee
In Schubert v Lee the plurality in approving what was said in Harrison v Hill said at 592:
The definition contained in the statute might very readily have been limited to 'public' streets, roads, lanes, etc, but such a limitation has not been included in the definition. The words 'open to or used by the public' are apt to describe a factual condition consisting in any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, etc, which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, etc. …
As I have said, Schubert v Lee has been referred to in a number of subsequent cases under the RTA as well as in other jurisdictions, for example, McBain v Reyne (1998) 69 SASR 580, 599 and the case of Dwyer v Police [2005] SASC 31 (Dwyer).
Zerella Holdings
Since Schubert v Lee, the meaning of the words 'road open to or used by the public' has been considered in a number of cases, including the case of Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100. That case was a decision of the Full Court of South Australia where the court considered the meaning of that expression as it appeared in s 5 of the Motor Vehicles Act 1959 (SA).
Counsel for the accused has referred me to that portion of the judgment, which contains a very helpful summary of the general propositions established by various authorities, concerning the meaning of the phrase 'open to or used by the public'.
The authorities discussed above establish the following general propositions as to whether a road or area 'is open to or used by the public'.
1.It is not necessary that the land be publicly owned or that there be a public right of access or use. Different considerations apply to private land compared to public land in this sense.
2.In the case of private land, the composite phrase 'open to or used by the public' encompasses legal entitlement to entry by the public (de jure), as well as actual use by the public (de facto). The words 'open to' are more apposite to the former, and the words 'used by' are more apposite to the latter.
3.In the case of private land, the phrase 'open to the public' refers to an invitation or licence expressly or impliedly extended to members of the public by the private occupier. The question is not whether the land is physically open to the public, although the existence or non-existence of a physical barrier to entry may be one factor in assessing whether an invitation is extended to the public.
4.For this purpose, there is a distinction between a general invitation extended without discrimination to the public and a series of invitations restricted to specific invitees for the purpose of transacting business with the occupier or otherwise. Much will depend upon the circumstances, including the restrictions upon those eligible for entrance, and the scope of the permitted uses on gaining access.
5.The mere fact that a fee is charged or that the area is used only by members of the public with a particular interest, for example, swimming or natural history, in the case of public pools and museums respectively, does not of itself establish that it is not 'open to the public'.
6.In the case of private land, the phrase 'used by the public' refers to actual use even without the permission of the occupier by the public, but not to mere use by specific invitees or to an isolated use by a member or members of the public.
Dwyer v Police
I do want to refer to the case of Dwyer. This was a decision of his Honour Bleby J. It is factually similar to the present case. In that case, the police alleged that the accused drove a motor vehicle on a road, namely, an access road whilst intoxicated contrary to s 47 of the Road Traffic Act1961 (SA).
Section 5 of the Road Traffic Act (SA) defined 'road' as:
… an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;
I consider Dwyer to be a useful illustration of the application of the principles as they concern a road open to the public, particularly as the case is factually very similar to the present case. The facts in Dwyer were set out in [8] - [11] of that decision. Doing my best to summarise the facts, they are as follows. The access road in question was an unsealed access road leading from a public road to several houses and farm buildings. The land on which the road was formed was owned by a person who maintained the road. He conducted an orchard business. Photographs tendered at the trial suggested that the land was fenced along the public road. At the time of the alleged offence there was a gate mounted at the access point but it was generally left open except for three weeks in the year during the fruit picking season. During that period, the gate was closed and locked at the end of each working day until the beginning of the next day. Otherwise, the gate remained open at all times. Photographs of the entrance taken shortly before the trial explained that the gate had been removed to allow earthworks to be carried out on the property. That had changed the nature and appearance of the entrance. Photographs indicated a Lot sign attached to a tree near the entrance. There was some suggestion that other signs were in place. However, there were no signs prohibiting or discouraging entry to the access road by members of the public. The road provided access from the public road to the farm buildings and two houses erected on the land (one of which was occupied by the alleged offender and his family). The road also provided access to a third house, being that of a neighbour on the land adjoining the owner's land.
The evidence showed that the access road was used generally by the occupants of the houses which it served, their invitees, workers in the orchard, tradespersons entering the property for the purpose of making deliveries or involved in the acquisition of produce from the property and occasionally by members of the public who wandered onto the property and who, when noticed, were asked to leave. The owner had given evidence this had occurred approximately 4 ‑ 6 times in the previous years.
His Honour Bleby J referred to Harrison v Hill and Schubert v Lee, and concluded that 'the public' in the definition as understood in those cases did not include the occupants of the houses and farm buildings. It did not include tradespersons delivering goods to or involved in the acquisition of produce from the property, and other persons traversing the access road at the express invitation or with the licence of the owner or tenants of the property. His Honour held that 'the public' thereafter excluded a reference to this class of people. At [15] he said:
… The only other persons found to have used the access road were those few members of the public who for some reason had wandered onto the property and who, when noticed, were asked to leave. …
His Honour went on to say that there was no evidence in that case that at any material time the access road was in fact being used by members of the public. Even though, for example, police officers on the premises at the time were there at the invitation of the appellant, there was only very occasional use without the consent of the owner. His Honour held that such rare or casual or occasional use does not constitute use by the public for the purpose of the definition. His Honour distinguished Harrison v Hill where it was held that members of the public frequently had in fact used the road without objection.
In Dwyer the police had argued that the road was open to the public because there was no physical barrier, there were no signs discouraging or prohibiting entry and members of the public were free to walk or drive on the access road without restriction. The only exception was when the owner closed and locked the gate at night during the fruit‑picking season. His Honour found that the owner had a right to forbid members of the public from entering his land and had the right to determine who could enter the property and found that for anyone to enter the property lawfully, it could only be on the owner's invitation.
Was the road open to the public?
The authorities to which I have referred speak of the need for there to have been some form of permission, whether express or implied before it can be said that the public has access to the road or that the road is 'open to' the public.
The State submits that a lack of a physical barrier and the fact that the gate is routinely left open is sufficient information and licence to give the public permission to be on the place or that the road was open to the public.
The State referred to the case of Talbot v Lane (1994) 14 WAR 120 in which Malcolm CJ made some obiter comments suggesting that a driveway or crossover which provides access from a road surface across the road reservation or verge onto private property was a place to which the public would have access. His Honour compared the case of Halliday v Nevill (1984) 155 CLR 1 in support of the proposition that the part of a path or driveway inside the boundary of a suburban house which is not unobstructed implies a licence for people with a legitimate business to go there. But it seems to me that Halliday v Nevill deals with an entirely different area of law: namely, the common law right relating to the right of persons to enter on private property for legitimate business as well as, in that case, the right of a police officer to attend on a person's premises to affect an arrest.
The State rely on what Malcom CJ said in Talbot v Lane to support a more expansive operation of the term 'public is permitted to access'. However, his Honour was not referred to the case of Harrison v Hill or Schubert v Lee or indeed any of the cases following those decisions and, in my view, what his Honour the Chief Justice then said, as Mr Eberhardt submitted, was per incuriam. I am not obliged to follow it.
Was this a road open to or used by the public or to which the public is permitted access?
I have concluded on the evidence, which is not in dispute, that the road was not a road open to or used by the public or a place to which the public is permitted in the sense that the authorities suggest that the notion of the public is understood. My reasons follow.
First, this was not a public road, nor, on the evidence before me, was it a gazetted road. The road was removed from the Shire of Broome's register of public roads many years before. It had not been maintained by the Shire since the year 2008.
Secondly, the road was an unsealed dirt and gravel road which had no road sign denoting it as a road, street, highway or road or any other descriptor which might lead a road user to consider that it was a road leading to a destination that a member of the public might be interested in. Rather, the sign that appears at the corner or Great Northern Highway merely says 'Kilto Station'. In my view, that is more apt to lead a member of the public to consider it was a way to access private property. The nature of the road, namely sand and gravel, is, having regard to all of the other circumstances, incompatible with it being open to the public in the sense of the general public.
Thirdly, the road was 14 km long and traversed two pastoral leases in which there are no tourist attractions or public facilities. It leads to a remote place to which the general public would have no business.
Fourthly, in my view, the fact that there was a gate which was able to be closed and bounded by a fence which contained signage indicative of the property being privately owned, indicated a right on the part of the owners to exclude the public if and when they wished.
Merely because Mr Burton did not put up a physical barrier between Kilto Station and the road or did not put up 'no trespassing' signs does not mean that he consented or gave permission to any member of the public to enter upon the road or, if it was not a road, the place. I can readily infer that Mr Burton did not put up signs deterring members of the public from attending because - not because they were welcome - but because few people ever did attend and it was usually when they were lost or went down there by accident.
Fifthly, this was not a situation where the road leading to Kilto Station was ever used by members of the public to reach another town or other destination such as another station.
Sixthly, the undisputed evidence is that the station was not in any relevant sense open to the general public; it was not a tourist attraction and there were no facilities for use by the general public.
In my view, it would not be open to the jury to conclude that the members of the public had permission to be on the place or that the road was, in any sense, as understood in the authorities, referred to as 'open to, or used by, the public' or that it was a place which the public was permitted to access.
As the prosecution are unable to prove an essential element of the offence, I must rule that there is no case to answer.
Place open to the public
There were two other matters that I need to articulate as grounding my reasons for ruling that this was not a public road, if I may use that shorthand expression. The notation of the road being open to the public in the case of private property imports an element of intended permission or licence by the owner. Although the evidence was that the gate to the station was frequently left open, the road was intended only for use by a limited class of persons and not members of the public. That limited class of persons included members of the Burton family, employees of the station, contractors and service people and not the broader public.
The State has sought to categorise these classes of persons as sufficiently large, that it would constitute the public in the sense of the general public. However, I do not think that this submission can be correct. Rather, the class of persons that came to the station was a limited and defined class of persons. Although the land was subject to a lease, the State have not demonstrated that its usage had the hallmarks of anything other than private usage - in this case, for the purpose of cattle grazing. The fact that employees of the station and independent contractors frequently visited was use by 'a special class of persons' who are permitted to use the road because of their status as employees or contractors, etc. They had not just implied permission to be there, but express permission to be there. As I have already mentioned, the fact that Mr Burton had not hitherto employed deterrent signage is indicative of the fact that the general public have not, except in rare circumstances, sought to access or use the road. So I conclude that it is not a road within the definition of s 73 of the RTA and there is no case to answer.
I will just mention briefly that the evidence of the facts relating to whether this was a road or a public place within the meaning of that section is not disputed: there is no issue of fact for me to resolve. It is therefore 'credible evidence' which requires me to make a ruling on a matter of law as to whether or not it was a road: see R v Waters (1963) 47 Cr App R 149 and R vCollinson (1932) 23 Cr App R 49.
I will enter a judgment of acquittal in their presence.
Orders
Judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LB
Associate to Judge Lonsdale
3 SEPTEMBER 2024
0
5
6