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. ENTRY TO LAND 1. In general people may enter land provided they have done so for a lawful purpose, until asked to leave. Failing to leave when directed to do so is an offence even if the entry was lawful. 2. Although Senior Constable Gay spoke to a representative of Telstra and as a result of his conversation the gate was repaired and locked, there is nothing in his statement referencing any conversation about consent to enter the site. 3. Given the location of this site, the telecommunications equipment on it, the fence gate and barbed wire and the notice by way of sign, I have to consider what would be a lawful purpose to enter the land. 4. It is common knowledge that authorised persons would include employees of a relevant telecommunications or power company who may be required to inspect or perform maintenance and repairs at the site. These sites are unmanned as they do not require constant supervision and run automatically. Mr Thaler conveniently showed us the generator hut and diesel fuel used by that generator, which starts up in the event of a general power failure. 5. Who else might be authorised? Government inspectors might fall within that category. The signage however makes it clear that general members of the public are not authorised to enter without first obtaining authorisation. EVIDENCE 1. The evidence is brief. It consists of Senior Constable Steven Gay's statement, some photographs taken by him and Mr Thaler's Facebook video as the tender bundle. 2. The video is most instructive. Mr Thaler begins by introducing himself and his "helpful assistant" (one of his children) and tells us he is in Cooma. He then sets out the object of his visit. He says "I want to show you just how shit Telstra is. They don't maintain their equipment. They don't respect us as customers. They send us quite high bills and demand that we pay them and charge late fees. Let me show you how shit their system is underneath everything else." 3. He then turns the camera on his phone from his face to the "exchange point" and it shows the installation of the telecommunications equipment which he then identifies, pointing out that the site has been around since the "fifties". Then he points the camera at the gate which clearly depicts the blue sign. He notes the existence of the sign and then proceeds to show that the site is unsecured. He says, "Let me show you around, we can just walk in because we are in a public area and there is no barrier". He then videos some items requiring repair or maintenance as he sees it. 4. Mr Thaler is clearly indicating that he believed he had a right to enter the site because it was unsecured. At no time does he assert that he was an authorised entrant. Despite the site being unsecured, it is still private property, there is a signage prohibiting entry and the boundaries of the "inclosed lands" are clearly visible. LAWFUL ENTRY 1. Did Mr Thaler have a right to enter the land because the site was unsecured? In my view he did not. The owner or occupier by signage was placing preconditions on entry that had to be met prior to going onto the site. The broken gate did not change the requirement for entry, it simply made unlawful entry easier. Authorisation (thereby giving consent) being a requirement of entry is the only rational inference that can be drawn from the signage. Entry without authorisation would be in those circumstances unlawful. 2. He concludes his video by saying "As the next Mayor of Snowy Monaro, I'll be writing a pretty strong letter to Telstra and saying hey fellows, ladies, Telstra people, Andy Penn, if he's still in charge, I think you better send some technicians and some fence repairers out. I think you need to fix the fence. You need to fix the gate. You need to put some covers over your cables. You need to secure your fuel tank. You need to actually give us a quality service that we would be more happy to pay for, not this second rate shit now that's obviously held together by hope and good luck. It's unacceptable Telstra". 3. The section places an onus on the Defendant of proving lawful entry. His reason for entry was not to maintain, or repair equipment, but to embarrass Telstra and earn plaudits from his Facebook followers. He never asserts in the video he was an authorised entrant, merely that it was public land because the fence was broken. All the evidence before the Court suggests an unlawful entry. In the absence of the Defendant showing he was an authorised person then prima facie his entry was unlawful as he had entered the land contrary to the owners or occupiers signage. 4. I am therefore satisfied that the prosecution has established a prima facie case. Dated 14 June 2022 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2023