Police v Thaler [2022] NSWLC 10

Local Court New South Wales

Medium Neutral Citation: Police v Thaler [2022] NSWLC 10 Hearing dates: 9 June 2022 Decision date: 23 June 2022 Jurisdiction: Criminal Before: Clisdell LCM Decision: Prima Facie case found Catchwords: CRIME — Trespass to land — Inclosed land — signs restricting entry — Defendant's onus of proof of lawful entry — implied denial of entry by signs Legislation Cited: Inclosed Lands Protection Act 1901 (NSW), s 4 Category: Procedural rulings Parties: NSW Police (Prosecutor) Andrew Thaler (Defendant) Representation: Solicitors: Sergeant Burt (Prosecutor) Mr Burton, Xenophon Davis (Defendant) File Number(s): 2021/00218385 Publication restriction: Nil

JUDGMENT 1. The Defendant Andrew Thaler was charged with entering inclosed lands without consent pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW). 2. If convicted, the Defendant faces a maximum penalty of a fine not exceeding 5 penalty units ($550.00). 3. The case proceeded by way of a hand-up Police brief comprising a two page statement from Senior Constable Steven Gay, six photographs of the site entered and a DVD of a Facebook video broadcast from the site by the Defendant. 4. The incident occurred at Radio Hill in Cooma, which is the site of a Telecommunications facility operated by Telstra and according to the video made by the Defendant, Optus as well. There is a radio tower, some outbuildings and a fuel storage facility, all of which are clearly depicted on the video. 5. There was no dispute that the site was inclosed lands, although on the 22 July 2021, the fence was unsecured with one of two gates lying on the ground, detached from the fence and the other gate. After the incident was reported to Telstra, some time later the fence was repaired and the gates locked. 6. There is no dispute that Mr Thaler entered the lands and remained upon them for about 6 or 7 minutes. The site is not manned. There was a blue sign on the gate which was upright, depicted in the photos and the video, which said "Private Property Authorised Persons Only". The gate on the ground also had a sign, this was a black sign with capital letters "KEEP OUT, AUTHORISED PERSONS ONLY". The sign was visible to anyone who looked at the gate and is depicted in the Defendant's video. These signs are common on facilities like this and power installations that are unmanned to warn unauthorised persons they are not to enter the facility. The fence and gates have a three strand barbed wire top designed to make access by climbing the fence difficult. It is angled away from the facility as is common with such fences. 7. Section 4 of the Inclosed Lands Protection Act 1901 provides as follows; 4 Unlawful entry on inclosed lands (1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case. 1. This legislation is one of the rare occasions when an onus is placed on a defendant in respect of proof of certain facts despite the prosecution carrying the overall burden of proof. 2. The matter for determination is whether or not the Prosecution have established a case even to prima facie level as the Defence submit that an essential ingredient in the prosecution case is missing, namely proof that the consent of the owner, occupier or person apparently in charge of those lands had been denied or not given. Mr Burton points out that all the Prosecution had to do was obtain a statement from a relevant person who was either the owner or a representative of the owner, occupier or person apparently in charge of the site, confirming the lack of consent. 3. The Prosecution contend that the occupier of the land by virtue of the signs, was withdrawing the common law right to enter land with only duly authorised persons permitted to do so. Keep out speaks for itself and the words "Authorised Persons Only" sets a precondition for entry. 4. As the site was unmanned there was no-one there who was able to give authorisation or to ask anyone who had entered to leave.