NSW Police v Johnson [2017] NSWLC 5

Local Court New South Wales

Medium Neutral Citation: NSW Police v Johnson [2017] NSWLC 5 Hearing dates: 8 February 2017 Decision date: 05 April 2017 Jurisdiction: Criminal Before: Stewart LCM Decision: The defendant is guilty of driving on a road whilst disqualified Catchwords: CRIMINAL LAW – driving while disqualified – meaning of "road" and "road related area" – Aboriginal Land Council land – open to and used by public – express or implied invitation to enter Legislation Cited: Evidence Act 1995, ss 143, 144 Road Transport Act 2013, ss 4, 5, 54 Cases Cited: Bugge v Taylor (1940) 104 JP 467 Dwyer v Police [2005] SASC 31 Harrison v Hill (1932) SC (J) 13 Ryan v Nominal Defendant [2005] NSWCA 59 Schubert v Lee [1946] HCA 28 Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100 Category: Principal judgment Parties: NSW Police (prosecution) Joseph Michael Johnson (defendant) Representation: Sgt D Rayner (police prosecutor)

Solicitors: Mr J Styles (for the defendant) File Number(s): 2016/246027

Judgment 1. Joseph Michael Johnson is charged that on 15 August 2016 at Murrin Bridge in the state of New South Wales he drove a motor vehicle on a road during a period of disqualification. To that charge he pleaded not guilty. The hearing took place on 8 February 2017. 2. By way of agreed facts, it was indicated by Mr Styles who appeared for the accused, that there was no challenge to the identification of the accused as the driver of a motor vehicle on the time date and place set out in the charge. It is agreed that the accused at the relevant time was a disqualified driver. 3. The only factual circumstance to be determined was whether Nyampaa Street, Murrin Bridge is a road or road related area - specifically, whether it is "open to" or "used by" the public. 4. The definition of "road" and "road related area" are set out in the Road Transport Act 2013: 4 Definitions (1) In this Act: … road means an area that is open to or used by the public and is developed for, or has one its main uses, the driving or riding of motor vehicles.road related area means: (a) an area that divides a road, or (b) a footpath or nature strop adjacent to a road, or (c) an area that is open to the public and is designated for use by cyclists or animals, or (d)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e) a shoulder of a road, or (f) any other area that is open to or used by the public and that has been declared under section 18 to be an area to which specified provisions of this Act of the statutory rules apply. 5 References to "road" generally include "road related area" Each reference in this Act (except in this Part) to a road includes a reference to a road related area unless otherwise expressly stated in this Act. 1. By consent, the brief of evidence was tendered. It included: * a facts sheet * a statement of Sergeant James Boaden of Lake Cargelligo * a statement of Senior Constable Kate Holman of Lake Cargelligo * a copy of an Agreement between Murrin Bridge Local Aboriginal Land Council and the Commissioner of Police NSW dated 25 February 1994 * a plan titled "Murrin Bridge Aboriginal Reserve Map" * 8 colour photographs (of bitumen roads, some with guttering and street lights; a welcome to Murrin Bridge sign; a street sign) 1. Sergeant Boaden gave evidence. His statement informs that the Lachlan Valley Way is a road connecting Lake Cargelligo and Euabalong, 30 kilometres away. Some 12 kilometres from Lake Cargelligo is the turn off to Murrin Bridge. There is a large sign indicating the turn off. He describes Murrin Bridge as an Aboriginal mission controlled by the Aboriginal Lands Council on behalf of the Wiradjuri people. It is noted that the term "mission" does not appear in other evidence received in this hearing. 2. NSW Police have signed an agreement or "Deed of Access" for Murrin Bridge allowing police to enter at any time of day or night to carry out their lawful duties. The agreement states that all land with Murrin Bridge "shall be considered public areas" except private dwelling houses and yards and "considered by the parties no different to other residential areas within the Police district." 3. Murrin Bridge is accessed by turning from Lachlan Valley Way onto Nyampaa Street, a sealed bitumen roadway. There is a green road sign with white writing indicating "Murrin Bridge 2" at the turn off, pointing in the direction of Murrin Bridge. There is a cattle grid and a further 1 kilometre stretch of road prior to arriving at the residential area of the mission. There is no gate to Murrin Bridge. It is accessible 24 hours per day. There is a "Welcome to Murrin Bridge" sign. The streets within Murrin Bridge have street signs and are all sealed bitumen roads. Some have street lights, pathways and guttering. 4. He said that all of the workers and the majority of students attending the Child Care Centre (Murra Thina Pre-School) in Murrin Bridge do not live in Murrin Bridge. The same applies for workers at the Women's Building which is used for meetings, and has phone facilities for contacting Centrelink. 5. The officer has worked in the Lake Cargelligo area for the past two and a half years. He has not received any complaints during that time about persons having (unlawful) access to Murrin Bridge and is not aware of any previous complaints. The roads in Murrin Bridge are all sealed bitumen roads and look no different to other roads. There is a welcome sign on approach to the built up area. He took his parents to Murrin Bridge when they visited him. 6. At the close of the prosecution case, I found a prima facie case. The defendant chose not to give evidence, as is his right.