District Court New South Wales Medium Neutral Citation: John Leo FISHER v R [2019] NSWDC 297 Hearing dates: 27 June 2019 Date of orders: 27 June 2019 Decision date: 27 June 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: Appeal allowed, conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018 set aside Catchwords: CRIME – APPEAL FROM LOCAL COURT – Inclosed Lands Protection Act 1901 – Charge of trespass to inclosed land, Whether appellant using a public right of way – Semble – Public right of way created in 1895 and still shown on most recent map of 2016 – Offence alleged in 2017 – Crown failed to prove right of way did not exist – Appellant proved on balance of probabilities that right of way existed and therefore fell within the proviso in section 4(1) of the Act Legislation Cited: Inclosed Lands Protection Act 1901, Local Government Act 1919, Roads Act 1993 Cases Cited: None Texts Cited: B.A. Helmore, The Law of Real Property in NSW, 2nd Edition, 1966 Category: Principal judgment Parties: John Leo Fisher – Appellant Crown – Respondent Representation: Solicitors: (Appellant) Mr P. O'Brien - O'Brien Criminal and Civil Solicitors (Crown) Ms T. Lumsden - ODPP File Number(s): 2018/00048997 Publication restriction: Nil Decision under appeal Court or tribunal: Goulburn Local Court Jurisdiction: Criminal Judgment 1. HIS HONOUR: This is an appeal against a conviction recorded and sentence passed by Magistrate Beattie, sitting in the Local Court at Goulburn on 15 May 2018. 2. On an unspecified date Senior Constable Garry Handsaker, the officer in charge of the police station at Tarago, issued a New South Wales Police Force penalty notice to the appellant. It alleged that on 20 November 2017, a Monday, at approximately 3.45pm, the appellant entered inclosed lands without lawful excuse. The offence was said to have occurred at the property known as 5888 Federal Highway, Collector. The penalty notice was for $350. It obviously was not paid because on 5 February 2018 a Court Attendance Notice was issued by Senior Constable Handsaker, charging the appellant with that same offence, an offence contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901. The appellant pleaded not guilty to that offence, but was found guilty by the Magistrate. 3. The maximum penalty for the offence is a fine of $550. Her Honour in fact imposed a fine of $500, despite the fact that she accepted that the appellant was a man of prior good character, with no prior convictions, and having responsibility as a grazier and a sole parent. One can understand in the circumstances that the fine imposed was excessive, towards the top of the range for an offence contrary to the Inclosed Lands Protection Act 1901 s 4(1)(b). However, the appeal has been brought not merely against penalty, but against the conviction. 4. The property known as 5888 Federal Highway, Collector, contains three parcels of land. The major parcel of land is Lot 2541 in Deposited Plan 1116965. The other two parcels of land are a smaller rectangular parcel of land on the western boundary of the major block, being Lot 72 in Deposited Plan 750047, and a small triangular block known as Lot 14 in Deposited Plan 264152. However, the only land now in question is Lot 2541 in Deposited Plan 1116965. I shall refer to this block of land as Lot 2541. 5. The appellant was purporting to exercise a right of way from the south eastern corner of Lot 2541 to the north western corner of Lot 2541. The appellant owns a large block of land on the eastern side of Lot 2541, which I understand to be Lot 257 in Deposited Plan 750047. He also owns land on the northern side of the Federal Highway. He also owns land on the northern side of the Federal Highway which farms part of the northern boundary of Lot 2541. The parcel of land which the appellant owns on the northern side of the Federal Highway is where the appellant has a shearing shed. 6. The magistrate did not accept that the plaintiff was on a right of way. She dismissed that allegation on the basis of "old maps". By notice of motion filed in this appeal the appellant sought leave to adduce fresh evidence. That application was dealt with by Yehia DCJ, and was successful. There is now a large amount of documentary evidence before me concerning the alleged right of way. That comprises maps and a report of a registered surveyor, Mr Justin Kell, which report is dated 28 September 2018. 7. The first set of maps are maps of the Parish of Tarago. The earliest map of the Parish of Tarago in the County of Argyle in the Land District of Goulburn was current from 20 June 1895 to 9 June 1910. There is before me a small scale copy of the third edition of that parish map which according to Mr Kell's report was current from 10 June 1910 to 18 July 1933. What we now know to be Lot 2541 was then known as Lot 254. It comprises 640 acres. That was confirmed by Mr Mooney, the present owner of the property, in his oral evidence today. Written across Lot 2541 is a diagonal line from the north-west corner of the property to the south-east corner where it follows a road reservation for a short period and then continues over a lot identified in the third edition of the parish map as Lot 258. Along this red dotted line is this note, "LB 95 679 public not prevented from using this track". It appears to be likely that LB refers to "Land Board" and that the matter 95 679 refers to some decision of that body numbered 679 made in 1895. One can see that that red dotted line representing the track continues over Lot 258 until it joins on the eastern boundary of Lot 258 a road. 8. The next set of maps are Mulwaree Shire road maps. According to Mr Kell's report they were issued in 1938, 1984, 1995 and 1999. The 1999 edition of that map was marked for identification E in the Local Court and became exhibit 10 before me. One can see on the western boundary of the Mulwaree Shire a black circle which has been highlighted with yellow. That was a marking made on the document by the appellant, Mr Fisher. It surrounds a road identified as 103. There is a "Schedule of Roads" and the road numbered 103 is identified in that Schedule as being Tarradale Road. Next to that is a matter "(90 & SH3)". SH3 is the State highway known as the Federal Highway, 90 is the Currawang Road. The inference to be drawn is that 103, the Tarradale Road, runs between the Federal Highway and the Currawang Road. 9. About that road, Mr Kell's report contains this matter: "The Shire of Mulwaree map (3), has written 'compiled by A Pritchard 1938' (lower right corner) and what appears to [be] handwritten signature 'John Harrison, Shire Engineer, 1 October 1938' (lower left corner). There is depicted Rose's Lagoon (which I understand to be called now...'Rowes Lagoon' adjacent to the Federal Highway), heading towards Collector, there is a dotted line in black with a number 98 written above it. This line runs from road H3 which I understand to be the Federal Highway, in a south-easterly direction junctioning with road '88' which I understand to be the present-day 'Currawang Road'. Of note is the point of intersection of road '98' with road 'H3' which is near or at a projection of the neighbouring Gunning Shire. The 1984 Mulwaree Shire road map (5) shows a distinct projection adjacent to the Federal Highway, denoted as 'SH3' and road '103' running off in the south-easterly direction, until near the end it runs due south. From my work in and around this area I understand that section of road, running due south, is a gazetted road, and abuts lot 2541, indicating to me running from this, in a north-westerly direction is a public road by Mulwaree Shire. Road 103, on map (5), is not drawn in the midsection, given a break near where 'Tarago Creek' is depicted. This creek is now commonly known as 'Willow Tree Creek'. Road 103 is depicted junctioning with road '90', "Currawang Road" 'per legend Schedule of Roads', and road 103 is one number bordered to two distinct sections roads labelled as 'Spring Valley-Tarradale Road'. There is provision for the shire engineer's name or signature, which is not apparent on the map, while the date is '29.8.1987'. The 1995 Mulwaree Shire road map (6) is consistent with the graphic representation of road 103 and that going through lot 2541. Under 'Schedule of Roads: Local Roads/(Orig.)' is '103 Tarradale Lane (90 & SH3)' which appears to refer to one road (103) and points of juncture (Currawang Road and Federal Highway). The 1999 map (7) is in the digital form and has the file name 'GIPA1617002 Schedule of Roads Mulwaree Shire 19990602', (map is dated 2nd of June 1999) above which is written 'Director of Engineering Services'. From map (7) is the distinct projection adjacent and immediately about 'SH3' Federal Highway and near to this, running off in a south-easterly direction is '103' from the legend: '103. Tarradale Road (90 & SH3)'. The title of this map is 'Schedule of Roads - Mulwaree Shire'. It is not indicated why Mulwaree Shire did not draw road 103 as a continuous line, and it is clear Mulwaree Shire did definitively mark a diagonal road through [lot] 2541." 1. It appears to me that the series of Mulwaree Shire road maps show very consistently the same thing: what is now known as 103 passing between the Federal Highway and Currawang Road. 2. Mr Kell also had available to him a topographical map issued during World War II. He describes it as a 1942 Emergency Service Topographical Map maintained in the National Library of Australia. After setting out the source of the map Mr Kell continued thus: "It denotes 'Rose Lagoon' and south of that is denoted a 'third class fenced road' which intersects with what I know to be the Currawang Road 'second class fenced road', while the westerly point of the second class fenced road that is running in a generally north-westerly/westerly direction is written 'Collector abt.4M', which is consistent with indicating progression along the road for 4 miles is Collector and appears to promote a legitimate means to use to reach Collector. The above 'second class fenced road' appears distinct and separate from another 'second class fenced road' which I understand to be the present day Lucky Pass Road, and, from viewing maps before me, the shown section appears to be consistent, not conclusive, with the road that traverses diagonally through lot 2541 as identified four years prior in map (3)." 1. The next map which is available to me in topographical form is the State topographical map called Gunning 8728-S being the first edition of that map. The scale is 1:50,000. An extract of part of this map was MFI A in the Local Court. MFI A in the Local Court together with the complete topographical map is exhibit 2 before me. Lot 254, as it was once known, can clearly be seen on the map and contains within it the name Tarago which is printed in purple ink and represents the Parish name. From the north-western corner of lot 254 to its south-eastern corner is a diagonal road which according to the legend is vehicular track. One can see that track continuing through what is marked on the Parish map as being along the boundary of lots 122 and 116 on a road reservation, then its continuance through lot 258 where it continues in an east-south-east direction to the boundary of the map and then is indicated that the road continues on to Spring Valley which is four kilometres distant. Clearly the map shows a vehicular track through lot 2541. Furthermore the legend on the map makes it clear that the road is not closed because the legend shows a closed road being two parallel lines but between the two lines a series of dots. The lines drawn through lot 254 as it is in the map are not dotted. 2. The next relevant map is a map of the Upper Lachlan Local Government Area dated July 2010. A very small copy of it is exhibit 5 together with a blown up portion of it which assists in understanding what it shows. Surprisingly it shows a lagoon which is now always known as Rowe's Lagoon but it shows it as being Rose's Lagoon. One can see a dotted line running in the same direction as what is otherwise known as Tarradale Road in the Mulwaree Shire Council maps joining the Federal Highway to Spring Valley. The only problem is that this line is marked in grey ink and the legend does not tell us what a marking in grey means. However it shows a continuous track, if that is what it is supposed to represent, between the Federal Highway and a road which runs between Currawang and Spring Valley which may be the Currawang Road. 3. Of greater assistance to me, however, is the topographical map "Collector" published by the Government of this State being map number 8728-2S being the 2016 edition of that map. The scale is 1:25,000. The south eastern corner of that map has the same co-ordinates as the south eastern corner of the Gunning topographical map, namely latitude 35 degrees south and longitude 149 degrees and 30 minutes east. There are two copies of that document before me, one a very small copy of the whole map and the other a copy of what is probably one part of the map at proper scale. Why the whole of the topographical map was not put before me has not been adequately explained. However one can see towards the south eastern corner of the larger scale part of the map a property named Taradale which appears to be near Willow Tree Creek. It shows a road identified as the Taradale Road which is a continuous brown line which according to the legend is a minor road either paved or unpaved and then a continuation of that road as a vehicular track clearly on the same alignment as the road to which I have been referring road 103 in the Mulwaree Shire Maps crossing what is Lot 2541 and reaching the Federal Highway where it continues on the northern side of the Federal Highway to another property identified as Taradale. The Taradale on the southern side of the Federal Highway has been identified to me as the homestead of the appellant's father, Mr Patrick Julian Fisher, and the Taradale immediately on the north side of the Federal Highway is where the appellant has his shearing shed. Accordingly, this topographical map of 2016, the year before the appellant is said to have trespassed upon the land owned by Mr Mooney, shows a vehicular track through Lot 2541 in a diagonal direction from its south eastern corner to its north-western corner. 4. The next relevant document is a cadastral aerial view of Lot 2541. It shows the Lot being in the Parish of Tarago in the County of Argyle in the Upper Lachlan Shire Local Government area, in the "suburb" of Currawang. The map was created on 28 September 2018. The vehicular track can clearly be seen running diagonally across the Lot from its south-eastern corner to its north-western corner. This cadastral aerial view is exhibit 9. Part of exhibit 9 is a copy of the same map in black and white. That has been marked with red ink by Mr Mooney and also with blue ink. The blue ink represents gates on the boundary of Lot 2541. There is a gate in the south-eastern corner of that property giving access to the track. There are then gates which I have identified as gates 4, 3 and 1. Those gates, according to the evidence of Mr Mooney, are all on the track. One blue marked gate on the boundary of the Lot is not in the north-western corner but slightly below it. One can almost completely follow the diagonal line through the gates that have been put on the property. According to Mr Mooney the gates and the internal fencing were set up by his late father in the 1960s. Positioning of the gates is consistent with the existence of the diagonal right of way set out originally as having been established by a decision of a Land Board in 1895. 5. The final material before me which is of some small relevance only is exhibit 6 (Google maps) which are of course only aerial photographs. The first one clearly asked for "Google" to identify the Taradale Road. I did so by putting on the vehicular track, to which I have referred the name Taradale Road. Taradale being spelt on this occasion with only one R, as in the "Collector" map. The second map is of a larger size and shows the continuation of that road further south and clearly one can see the deviation when it reaches the south-eastern corner of Lot 2541. The final thing from "Google" is not an aerial photograph as such but a photograph taken at an angle from the air showing the Federal Highway and the track passing through Lot 2541, its northern gate and its position vis-à-vis an access point from the Federal Highway which could be described as a cross-road because the access point continues from the eastern side of the divided carriageway of the Federal Highway to the western side of the dual carriageway heading north and onto a road which is otherwise identified as Baxter's Lane leading to the area where the appellant has his shearing shed. 6. There is one further thing that Mr Kell, the surveyor, took into account. It is this: "I have further reviewed "road map of the Upper Lachlan Shire" (9) being an open source of document, which denotes the locality of Spring Valley being near the south-eastern end of a continuous road, per legend, is classified as "local unsealed road" that abuts the Federal Highway. Given a road labelled as "Baxter's Lane" I determine that this "Local Unsealed Road" in the locality of Spring Valley terminating opposite the homestead "Tarradale" referred to in map (8) as running diagonally through Lot 2541 DP 1116965." 1. That appears to be Mr Kell's comment on exhibit 5 before me, the Upper Lachlan Local Government Area map which bears the date July 2010. 2. The conclusion of Mr Kell is this: "Given the information relied upon, there appears to be consistent representation by apparent official entities, marked diagonally south-east corner to north-westerly corner through Lot 2541 DP 1116965, consistent with that of a thoroughfare. It appears within the Upper Lachlan Shire local government area map. It appears to have been recorded by Mulwaree Shire attributing it a number and later, a number and name consistent with being integral in its public road network, within the area under its control for at least 61 years. It appears documented as a public thoroughfare for 38 years from 1895 on two publicly relied upon documents and also captured by surveys e.g. topographical maps. "I believe there is historical consistency of records from a variety of official sources, not discouraging its existence and used by the public, or existence and used as private, consistent with a public highway running through lot 2541/ from the Federal Highway and to Spring Valley, from at least 1895 to the present on the basis [of] map (9) being current, appeared at least 123 years. "I have personally been involved in surveys in and around the area in question, and I personally had not seen any physical evidence that suggests an alternative route was used and note adverse terrain in the south-west corner of 2541. "In conclusion, there is significant and sustained graphic representation of a public road running from the Currawang Road to the Federal Highway, running diagonally through Lot 2541 DP 1116965." 1. The only thing which has excited my interest in what is otherwise an interesting case is the fact that evidence was given by Mr Mooney today that the property which he now owns and has owned since 2015, which includes Lot 2541, was changed from old system title to Torrens Title after the death of his father, Gregory, in 2008. Mr Mooney thought that after the death of his father the title was put into Torrens system. That happened either in 2008 or 2009. It would be of great interest to the Court to know whether the right of way shown in the maps exists on the certificate of title for the property. However the Crown has not adduced such readily available evidence. 2. On the material before me it appears that a right of way has existed at all material times across the land now known as Lot 2541 from its south-eastern corner to its north-western corner since 1895. It is possible that it was extinguished when the property was changed from old system title to Torrens Title. That could be ascertained by consulting the Register and the provisions of the Real Property Act. During the luncheon adjournment I consulted my copy of the book concerning the law of Real Property in this State that I used at law school, the second edition of Mr Helmore's work which was published in 1966. It tells me that from 1 January 1920 when the Local Government Act 1919 came into force that there were certain formalities about the creation of roads or rights of way. However it does not tell me the position concerning roads or rights of way created prior to 1 January 1920, and the then caselaw concerning whether Torrens Title extinguished such rights of way unless they be shown on the certificate of title was then doubted by Mr Helmore as he appears to indicate that such rights of way or roads ought be extinguished if they fail to be shown on the certificate of title. 3. However the Crown has the onus of proof. The Crown must prove beyond reasonable doubt that when the appellant was on the track, if he were on the track, that he had no right to do so. The relevant provisions of the Inclosed Lands Protection Act 1901 are these. Firstly "inclosed lands" is defined to include, "any land, either public or private, enclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection, and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure." 1. There is no dispute that lot 2541 was at all material times contained within a fence. Therefore it is inclosed lands. 2. The definitions in s 3 of the Act also define "road" to mean, "any land proclaimed, dedicated, or resumed or otherwise provided as a public thoroughfare or way or any land defined, reserved or left as a road in any subdivision of lands." 1. It is apt to include some decision of a Land Board to permit use by the public of a track as marked on the Parish of Tarago maps, second and third editions. 2. 22 The relevant provisions of s 4 of the Act are these: "(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: ... (b) five penalty units... … (2) Where a road is lawfully inclosed with the lands of any person, and such road is not clearly defined but there is a reasonably defined track commonly used by persons passing through such lands, the centre of such track shall, for the purposes of this Act, be deemed to be the centre of the road. (3) Where a road is lawfully inclosed with the lands of any person and such road is not clearly defined and there is no reasonably defined track through such lands a person passing through such inclosed lands shall not be guilty of an offence unless it is shown that the route taken by such person in so passing was, having regard to the circumstances, unreasonable." 1. The only part of the route that appears not to have been taken by the appellant was to exit the land, not in the north-western corner, but a little south of the north western corner where there is a gate. Otherwise, provided he was following the track, the appellant was using the right of way, and insofar as he had to stray from the right of way to use the exit gate, that is clearly contemplated by subs (3) of s 4. The only real question is whether the appellant was using the track. 2. A complaint was made by Mr Joseph Kiley Mooney to Senior Constable Garry Handsaker on the day after the alleged offence, 21 November 2017. According to Senior Constable Handsaker's statement, which was exhibit 1 in the Local Court, he attended the property known as "Bullakina" at 35 Taradale Road, Currawang, where he spoke to Mr Mooney. I note that the address given by Mr Mooney for his residential property Bullakina is obviously at the south eastern end of Taradale Road. When Senior Constable Handsaker gave evidence he said in cross examination that information conveyed to him by Mr Mooney was that he saw the appellant driving through his paddock "in a diagonal route". 3. Mr Mooney drew on a copy of a cadastral map an asterisk which is placed where he said he saw the appellant and then used a line of arrows to indicate the appellant's route from that asterisk, being essentially directly westward to the western boundary of the property, then along the western boundary of lot 2541 to the Federal Highway. However, today Mr Mooney admitted that the appellant drove along the track because he went through each of the gates numbered 4, 3 and 1 on the black and white copy of the cadastral aerial view of lot 2541 which is contained in exhibit 9. In other words, the appellant travelled along the route shown by the gates and therefore must have stayed on the route of the right of way. Furthermore, when one puts a ruler to the map in question, which is part of exhibit 2 in the Local Court, one can see that the asterisk is not very far off the direct diagonal route. All that evidence points in the direction of the appellant's being on the right of way. That was what the appellant maintained in the Local Court. As he said, he had no reason to do otherwise. It was never suggested to the appellant, when he gave his oral evidence, that he deviated from the track. 4. Mr Mooney attempted to tell me today that the appellant was not on the diagonal route at the time the alleged offence is alleged to have occurred, but that is not consistent with how the case was presented in the Local Court, and it is inconsistent with the cross-examination of the appellant by the prosecutor in the Local Court. In other words, it appeared to me that the statement by Mr Mooney that the appellant had ventured off the right of way was a recent invention. Clearly it is inconsistent with what Mr Mooney told Constable Handsaker on 21 November 2017. Therefore, I find that the appellant was at all material times travelling on the right of way which I have identified. This finding is on the balance of probabilities on the evidence before me. The appellant has therefore proved as required by the proviso within s 4(1) of the Inclosed Lands Protection Act 1901 that he had a lawful excuse to be where he was on Mr Mooney's land, Lot 2541 DP 1116965. 5. There are a number of other matters to which I should briefly refer. Both the appellant and his father gave evidence of long usage of this right of way. Admitted into evidence in the Local Court as exhibit 3 was a letter sent by the appellant to Senior Constable Handsaker, bearing date 21 November 2017. Leaving aside the legal protestations made by the appellant, the letter says this: "I had taken a diagonal route through Mooney's paddock called Walsh's for 40 years, as previous stated to police, two years under current ownership and 30 years prior to Torrens conversion, following a public highway, as have others." 1. The evidence from Mr Mooney today was that he acquired the property in 2015, which is consistent with the two years referred to by Mr Fisher in that letter. Mr Mooney acquired the property, that is Lot 2541, from his mother, Carmel, to whom it had been left by his late father, Gregory, who died in 2008. His late father inherited it from his father, Francis, probably in the 1950s. I know the current appellant, John Leo Benedict Fisher, was born on 20 July 1968, which tells me that he is now 50, soon to turn 51, and at the time of the alleged offence would have been 49. Hence, one can see that his protestation in his letter, that he had been travelling over Lot 2541 for 40 years, indicates that he had been doing that since he was a 10-year-old boy. 2. The appellant's father, Mr Patrick Julian Fisher, to whom I shall refer as Mr Fisher Snr, also gave evidence. He gave evidence that he had traversed Tarradale Road and continued to traverse its "continuation" through Mr Mooney's property. He said that he had been doing so for "the best part of 70 years", which probably indicates that Mr Fisher Snr was about 70 years old or perhaps older. He confirmed that the only deviation from the route was to get through the gate at the northern end. That can be found on p 21 line 7 of the transcript of 15 May 2018. He maintained that the track had existed since "about 1840". He attested to having seen others continuing to use the track or right of way through Lot 2541. He gave evidence the last persons he had seen using the track recently had been on the previous Friday night and that a month ago he had seen three "fellas" go through the property on motorcycles. He said that the last time that he had traversed lot 2541 was a month before giving evidence on 15 May 2018. In other words there is evidence of long use of the track in question, use not restricted to Mr Fisher Snr or the appellant. Furthermore, Mr Fisher Snr has not been told by Mr Mooney not to use the track, nor has he been warned, as the appellant has been warned, not to enter Mr Mooney's land, namely lot 2541. 3. The reason for this warning is, I am afraid to say, childish. Both Mr Mooney and the appellant grew up in this district of this State. They have been neighbours all their lives. This evidence was then given by Mr Mooney: "Q. How would you describe the relationship now that you have with Mr Fisher? Do you speak to each other? A. No. Q. At one stage did you talk to each other? A. We did, yes. Q. And when did that communication stop? A. That communication stopped after Mr Fisher took me to NCAT over a section of fence that I had agreed to what he had proposed to do. I fulfilled my obligation with that part of it. He then sent me a bill afterwards saying I owed him more. Q. How long ago was that? A. That's going back probably 18 months ago." 1. This is bickering between neighbours, two adult men behaving in a childish fashion. 2. Another matter to which I should advert are certain provisions of the Roads Act 1993. That Act contains a dictionary. It defines "public road" to mean: "(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act." 1. Road is defined to include: "(a) the air space above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road." 1. Section 5 of the Act deals with rights of passages along public roads by members of the public. It is this: "(1) A member of the public is entitled, as a right, to pass along a public road, whether on foot, in vehicle or otherwise, and to drive stock or other animals along the public road. (2) The right conferred by this section does not derogate from any right of passage that is conferred by common law, if those rights are subject to such restrictions as are imposed by or under this or any other act or law." 1. Again that does not tell me anything about the status of the track that I have identified as being a public right of way over lot 2541. 2. Section 249(1) of the same Act provides this: "Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of public road." 1. The evidence given by both the appellant and Mr Fisher Senior which indicates that the right of way is used by the public is evidence that it forms a public road. 2. Another question with which I should deal is the Magistrate's findings as to credibility. Her Honour said this: "Now I have a number of concerns about the defendant's evidence. He frequently in answering questions both in evidence-in-chief and in cross-examination made a number of self-serving statements. He did not answer the question. What he said was non-responsive. He instead disregarded the question or he would give a one word answer to it and then continue giving a very expansive piece of evidence about issues generally that were not being asked of him. So in that sense he is not a witness who is giving evidence that the Court can then use in order to make a decision, but rather he is sitting in the witness box being an advocate of his own case. And that is not the role of a witness. It raises concerns about how I can rely on that evidence when it really has been put to me as argument in the witness box." 1. I have read Mr Fisher Jnr's evidence and he clearly was seeking to advocate his position but that does not mean that his evidence was unreliable, or untruthful. Many litigants that I have seen as a judge over the last 25 years advocate their own case. They are not used to being in Court, do not recognise their role as witnesses and often have strong views about what their rights may or may not be. Merely because the appellant sought to advocate his own case, albeit that the law does not permit him to do so, does not mean that his evidence should be rejected. Especially is that so when there was really no issue in the Local Court that he was travelling upon the track or right of way. 2. Her Honour then said this about the evidence of Mr Mooney: "This is said in the context of Mr Mooney's evidence, who was responsive to questions in evidence-in-chief and in cross-examination. Impressed as doing his best to give credible evidence. For example, he reasoned why the defendant could not have used the route as long as he said he had because he said, well, the defendant has not owned the other property, the one over the highway for the 40 years that he has asserted he has been travelling across the land in order to get there. He explained how the land had been in his farming family for some three generations and yet there was no knowledge of this publicly accessible track road across the land. And he explained how the defendant had alternate access to the highway." 1. If this is indicating that her Honour accepted the evidence of Mr Mooney I should point out that Mr Mooney did not give evidence that he had been working on this property since he was a lad. The only evidence that he gave of his association with the property is that he purchased it from his mother in 2015. For all anyone knows the family may have rented out that parcel of land, to someone else until his mother conveyed him to him in 2015. Furthermore, that evidence is inconsistent with the evidence of both the appellant and his father. 2. Furthermore, Mr Mooney gave evidence to me today and is, I am afraid to say, not to be believed. For example, when shown the Shire of Mulwaree road map which was MFI E in the Local Court and exhibit 10 before me and had his attention directed to road T103 and the legend which identifies it as Tarradale Road said that it was not Tarradale Road at all but Tarago. Either he cannot read or he was seeking to mislead me. He also sought to change the case that had been presented in the Local Court by saying that Mr Fisher junior was not driving along the track when it is clear that he was and the diagram which he drew and which was put into evidence in the Local Court was plainly misleading. Indeed, it misled the learned magistrate who went on to say this: "So even if I accepted that the relevant area was a road pursuant to s 3, for the reason that I had given on Mr Mooney's evidence, the defendant has deviated from it because he speaks about not his diagonal route but heading left and then up, and the route that is taken by the defendant was unreasonable given the deviation and given that he has an alternative way to get to the Federal Highway." 1. In other words, the learned magistrate relied upon a misleading diagram made by Mr Mooney. For that error alone this appeal must be allowed. 2. Her Honour then also made a comment on the evidence of Mr Fisher Snr. She said this: "In relation to Mr Fisher Senior's evidence, he was not there on 20 November. He does not see whereabouts his son, the defendant, was on the relevant day. He says that he has traversed Mr Mooney's property using it as a continuation of the Tarradale Road and he says that for the best part of 70 years and that he has seen others do so. However, I am concerned whether the Crown has proved the defendant has done these things on 20 November last year. There is no evidence before me that Mr Fisher senior or unidentified others have not been permitted to use the property." 1. The last sentence contains a double negative. It has to be construed as this: "There is evidence before me that Mr Fisher Snr or unidentified others have been permitted to use the property." It is difficult to discern what she meant but clearly the evidence of Mr Fisher senior went to the issue that is raised by s 249 (1) of the Road Act 1993. There was no reason not to reject that evidence. 2. I am here sitting as a court of law dealing with an appeal. The appeal must allowed for the reasons that I have given. However, it appears, with the utmost respect to both the appellant and Mr Mooney, that they have been behaving like schoolboys. I am here to try to keep the peace. My decision about the right of way or track will not bind Mr Mooney. He is not a party to these proceedings, merely a witness. The parties to the proceedings are Her Majesty the Queen and the appellant. Mr Mooney and Mr Fisher Jnr, should seek to resolve the issue by appointing or retaining a solicitor expert in real property law or a barrister expert in real property law to ascertain whether the right of way still exists. That would be more beneficial than further prosecutions or the like and might ease the tension between them. Furthermore, it would be important for Mr Mooney to know because if the right of way does exist it would affect the value of the land. Therefore I encourage both the appellant and Mr Joseph Mooney to jointly retain an expert in the field to provide an opinion which they might agree to accept because otherwise the matter will end up in the Supreme Court and be extremely costly for both of them. 3. For those reasons I allow the appeal, I set aside the conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018. [Discussion] 1. If the appellant wish to apply for costs, appellant to file and serve written submissions of no more than three pages by 4pm on 19 July 2019. If such submissions be served the Crown to file and serve written submissions of no more than three pages by 4pm on 2 August 2019. Appellant to file and serve any submissions in reply of no more than two pages by 4pm on 7 August 2019. ********** 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: 05 July 2019