Barnes & Anor v Mackenzie [2008] NSWSC 455

New South Wales Supreme Court

CITATION : Barnes & Anor v Mackenzie [2008] NSWSC 455

HEARING DATE(S) : 08/05/2008

JUDGMENT DATE : 15 May 2008

JUDGMENT OF : Hoeben J

DECISION : Summons dismissed. The plaintiffs are to pay the defendant's costs of these proceedings, as agreed or assessed.

CATCHWORDS : Appeal from Local Court - elements of offence under Regulation 13 Forest Regulations 2004 - whether elements of offence made out - whether adequate reasons for decision - whether sufficient evidence to establish signs displayed in accordance with regulations.

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Forestry Act 1916 Forestry Regulation 15

CATEGORY : Principal judgment

CASES CITED : Ostrowski v Palmer [2004] HCA 30, (2005) 218 CLR 493

Ian Barnes - First Plaintiff PARTIES : Stephen Dodds - Second Plaintiff Scott Mackenzie - Defendant

FILE NUMBER(S) : SC 15520/2007

COUNSEL : Mark Anderson - Plaintiffs Jay Anderson - Defendant

SOLICITORS : Kennedy & Cooke - Plaintiffs Wayne J Boom - Defendant

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : CJ Bone LCM

LOWER COURT DATE OF DECISION : 05/10/2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Thursday 15 May 2008

15520/2007 – Ian BARNES & Anor v Scott MACKENZIE

JUDGMENT 1 HIS HONOUR: Nature of proceedings The defendant was charged by the plaintiffs with four offences contrary to regulations made under the Forestry Act 1916. The allegations were that he entered a prohibited forest area on 8, 17 and 21 June 2005 contrary to Forestry Regulation 13 and that on 21 June he erected an obstruction in a forestry area, contrary to Forestry Regulation 15. Those matters were heard by his Honour Mr Bone LCM on 5 October 2007. His Honour dismissed all four matters. 2 The plaintiffs have appealed pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 against his Honour's decision in three of those matters, being the alleged entry into a prohibited forest area on 8 and 21 June 2005 and the alleged erection of an obstruction in a forestry area of 21 June 2005. 3 The appeal grounds are: "1. That the learned Magistrate erred in his interpretation of s45B Forestry Act 1916. 2. That the learned Magistrate erred in holding that the prosecution failed to prove that the defendant was present in an area which was a prohibited area pursuant to Forestry Regulation 2004 on 8 June 2005 and 21 June 2005. The onus was on the defendant to prove that the area was not a prohibited area pursuant to the provisions of sections 36A, 45B Forestry Act 1916. 3. That the learned Magistrate erred in his interpretation of Forestry Regulation 2004 clauses 13(4) and 15(3) as requiring mens rea . The offences are strict liability offences. 4. That the learned Magistrate erred in holding that the prosecution failed to prove the elements of the offence created by clause 15(3) of Forestry Regulation 2004."