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Ward v Richardson

Ward v Richardson

Case [2021] ACTSC 130 2 July 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ward v Richardson
Citation:	[2021] ACTSC 130
Hearing Date:	28 April 2021
DecisionDate:	2 July 2021
Before:	Burns ACJ
Decision:	See [45]
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal against conviction – trespass onto property without reasonable excuse – whether appellant had explicit or implied licence to enter property – whether appellant had reasonable excuse to trespass on to property – where conceded by respondent that magistrate did not consider whether appellant had reasonable excuse to trespass on to property
Legislation Cited:	Animal Welfare Act 1992 (ACT) Criminal Code 2002 (ACT) Family Law Act 1975 (Cth) Part IV, Division 2 Public Order (Protections of Persons and Property) Act 1971 (Cth)
Cases Cited:	Barker v The Queen (1983) 153 CLR 338 Greenwood v Barlee [2018] ACTSC 48 Halliday v Nevill (1984) 155 CLR 1 He Kaw Teh v The Queen (1985) 157 CLR 523 Henshaw v Mark (1997) 95 A Crim R 115 Mark v Henshaw (1998) 85 FCR 555 Peden v Boxx [2016] ACTSC 86; 258 A Crim R 422 Roy v O’Neill [2020] HCA 45; 285 A Crim R 120 Saipani v The Queen [2021] ACTCA 5 Sweet v Parsley [1970] AC 132
Parties:	Christopher James Ward (Appellant) Stephen Richardson (Respondent)
Representation:	Counsel Self-represented (Appellant) T Lee (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 53 of 2020
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 6 November 2020 Case Title: The Police v Christopher James Ward Court File Numbers: CC 3707 of 2020

BURNS J:

This is an appeal from a decision of a Magistrate finding the appellant guilty of an offence contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Act). The particular charge alleged that on 23 March 2020 the appellant did, without reasonable excuse, trespass on certain property in the suburb of Holt in the Australian Capital Territory. The hearing of the charge commenced on

5 November 2020 and concluded the following day. Immediately after the conclusion of addresses the Magistrate gave ex tempore reasons for finding the appellant guilty and imposed a conviction and a fine. In the present appeal, the appellant does not challenge the sentence imposed, only the finding of guilt.

For the reasons that follow I am satisfied that the appeal should be dismissed.

The appellant was represented by a lawyer in the proceeding before the Magistrate, but he was unrepresented in the present appeal. He did, however, have the benefit of the assistance of a friend, Mr Hopper, who I understand has legal qualifications and training. The submissions made on behalf of the appellant were thoughtful and comprehensive.

The Amended Notice of Appeal on which the appellant proceeded listed a multitude of grounds. It is unnecessary to recite each ground of appeal, as the respondent conceded that the Magistrate made an error in the process of finding…

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 Ward v Richardson

Details

AGLC: Ward v Richardson [2021] ACTSC 130
Case: [2021] ACTSC 130
Decision Date

CaseChat Overview and Summary

The appellant in this case, Christopher James Ward, appealed a decision by the ACT Magistrates Court finding him guilty of trespassing on property at Holt, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The Magistrate found that the appellant was not welcome on the property and did not have an implied licence to enter. The appeal centred on whether the Magistrate erred by not considering whether the prosecution had proven that the appellant had no reasonable excuse for entering the property. The court found that the Magistrate's failure to address this issue constituted an error of law, but nevertheless dismissed the appeal. The court found that the appellant did not have an explicit or implied licence to enter the property and that he had the requisite mental intent to trespass. Furthermore, the court found that the appellant did not have a reasonable excuse for his actions. The evidence showed that the appellant had a history of visiting the property owner's home without permission, but this practice was not sufficient to imply a licence on the specific day in question. Additionally, the appellant's purpose for entering the property was not lawful as it involved interference with the occupier's rights of occupation and injury to the occupier and her guests. The court also found that the appellant did not have a reasonable excuse for his actions, as an ordinary member of the community would not consider it reasonable to enter someone's backyard to retrieve a child without their consent.

Orders