NSW Police v Barker

Local Court of NSW|2022-12-02

A. INTRODUCTION

Nathan Barker (the accused) is charged with 3 offences: 1. Sequence 1: on 19 December 2021 at Hat Head, the accused did without lawful excuse enter into the inclosed lands of Dana Duke situated at [REDACTED] Street, Hat Head, without the consent of Dana Duke, the occupier of the said inclosed lands, contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901; 2. Sequence 2: on 19 December 2021 at Hat Head, the accused did intentionally or recklessly damage property, to wit, aluminium fly screen window panel the property of Dana Duke, contrary to s 195(1)(a) of the Crimes Act 1900; and 3. Sequence 3: on 19 December 2021 at Hat Head, the accused did intimidate Dana Duke with the intention of causing the said Dana Duke to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
I have redacted part of the residential address where the incident the subject of these proceedings occurred, for confidentiality reasons.
The accused entered a plea of 'not guilty' to these charges on 17 January 2022, and the hearing of these proceedings occurred on 2 December 2022. The hearing had previously been vacated twice, for reasons which were unclear.
In summary, it was uncontroversial, based on all the evidence which I will shortly summarise, that: 1. The accused was the complainant's uncle (the accused was the complainant's mother's brother); 2. The accused had previously lived at the address at [REDACTED] Street, Hat Head during his childhood (the premises); 3. As of 19 December 2021, the complainant occupied the premises under a lease from Hat Head Homes Reserve Trust - the agent being 'Many Rivers Regional Housing' (the lease); and 4. On 19 December 2021, the accused attended upon, and entered, the curtilage of the premises to collect his belongings which he believed remained situated at the premises.
The contest in these proceedings related to, in the case of sequence 1, whether the accused had implied consent or a 'lawful excuse' to enter upon the curtilage of the premises on 19 December 2021. In the case of sequence 2, the contest was, first, whether the accused intended to cause the complainant to fear physical or mental harm on 19 December 2021 when he attended the complainant's premises (including by reference to the extended meaning of intention under s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007), secondly, whether the alleged conduct of the accused at the time of his attendance constituted 'intimidation', and thirdly, if so, whether he had a 'claim of right' defence in relation to that conduct.

B. DIRECTIONS OF LAW

It is appropriate to set out the directions of law which are relevant to the determination of these charges. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused.
The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the prosecutor. The accused starts from the position that he is presumed innocent, and that presumption continues until the prosecution satisfies me beyond reasonable doubt that he is guilty.
The accused does not have to prove that he is innocent, or expressed another way, the accused does not have to prove that he is not guilty. It is for the prosecutor to prove his guilt if it can.
What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essentials facts contained in the charges. The words 'beyond reasonable doubt' are ordinary, everyday words and that is how I understand them. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
The fact that the accused has given evidence at the hearing does not alter the burden of proof which always rests on the prosecutor. He does not have to prove that his version of events is true. Even if all the accused's evidence is rejected, I must still consider whether or not the prosecutor has proved the elements of the offences beyond reasonable doubt.
It is not necessary to find in favour of the prosecutor on every issue of fact which the accused disputes. The prosecutor does not need to prove that every word spoken by every one of its witnesses is true.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up at the hearing.
It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness's evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
I do not overstate my capacity to make determinations of a witness's truthfulness based on how they look or present. But, I have had the opportunity to observe any flaws or idiosyncrasies in the way the complainant and the accused gave evidence and their demeanour in the courtroom. In making my determinations, I focus on incontrovertible or unchallenged or objectively established facts, contemporary materials, and the apparent logic of events. I then evaluate the conflicting testimonial evidence against those matters, before resort is had to credibility and demeanour findings, to resolve conflicting testimonial evidence.
I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part, and reject part, of that witness's evidence.
I remind myself that the fact a proposition is put by a representative to a witness does not mean that the proposition is evidence of the fact contained in the question. I note it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
Because these are criminal proceedings that do not involve strict or absolute liability, not only must the prosecutor prove the accused person committed the alleged acts the subject of the charges, but there is also a common law presumption that mens rea, or an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in the offence.
In this respect, it is the actual knowledge and intention of the accused that must be considered (rather than what a reasonable person would have known and intended). The state of mind of the accused may be the subject of an admission, or it may be capable of inference from the circumstances. Often a person's acts provide the most convincing evidence of their knowledge and intention.
I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
I next give myself what is known as a 'Murray direction', being a direction in accordance with the decision in R v Murray (1987) 11 NSWLR 12. Wherever the prosecutor seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, as was the case here, it is important that the jury, and in this case myself, exercise caution.
I must exercise caution before I can convict the accused because the prosecutor's case largely depends on accepting the reliability of the evidence of a single witness.
This being so, unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict the accused, I should examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.
That caution is not based upon any personal view that I have of the complainant. In any criminal trial, where the prosecutor's case relies solely or substantially upon the evidence of a single witness, a jury, or a judge or magistrate sitting alone, must always approach that evidence with particular caution because of the onus and standard of proof placed upon the prosecutor.
I am not suggesting that I am not entitled to convict the accused upon the evidence of the complainant. Clearly I am entitled to do so but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt.
In considering the complainant's evidence and whether it does satisfy me of the accused's guilt, I should of course look to see if it is supported by other evidence.
I next give myself what is known as a 'Liberato direction', being a direction in accordance with Liberato v The Queen (1985) 159 CLR 507, which was further explained in De Silva v The Queen (2019) 268 CLR 57, and more recently in Awad v The Queen; Tambakakis v The Queen [2022] HCA 36 at [73]. This is because the accused relied on an account of events given under oath in court.
First, if I believe the accused's evidence, I must acquit him.
Secondly, if I find difficulty in accepting the accused's evidence, but think it might be true, then I must acquit him.
Thirdly, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain: has the prosecutor, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt?
I will now turn to the relevant legislation governing the 3 charges, and therefore the elements of the offences the prosecutor must prove beyond reasonable doubt.

C. RELEVANT LEGISLATION

Section 4(1) of the Inclosed Lands Protection Act 1901 provides: 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 - … (b) 5 penalty units in any other case.
Section 3(1) of the Inclosed Lands Protection Act 1901 defines 'inclosed lands' as: 3 Definitions (1) In this Act - … Inclosed lands means - … (b) any land, either public or private, inclosed 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. …
Section 195(1) of the Crimes Act 1900 provides: 195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable - (a) to imprisonment for 5 years, or …
Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 relevantly provides: 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty - Imprisonment for 5 years or 50 penalty units, or both. … (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. …
Section 7(1) of the Crimes (Domestic and Personal Violence) Act 2007 relevantly defines 'intimidation' as follows: 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means - (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note - An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) conduct that causes a reasonable apprehension of - (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or … (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
There are also various legal principles that apply in the determination of the issues in this case, and I will identify and address these when I set out my findings in relation to each of the separate charges.

D. EVIDENCE

The prosecutor's case consisted of both documentary evidence, body worn video (BWV) footage and oral evidence from its principal witness, being the complainant, Ms Duke.
Insofar as concerned the oral evidence adduced at the hearing, and the submissions of the parties, these reasons have been prepared without the benefit of a transcript of that evidence or those submissions, and thus they rely on what were undoubtedly imperfect notes taken at the hearing.
The documentary evidence, and the BWV footage, was tendered through the officer in charge of the matter, Acting Sergeant Tisdell.
Exhibit 1 was the lease, a copy of which had been provided by the complainant. The lease identifies the premises, and the complainant is identified as the tenant.
Exhibit 2 were photographs taken of the damage to the window screens near the front door of the premises.
Exhibit 3 was BWV footage of the arrest of the accused.
The complainant gave evidence. Exhibit 4 was her domestic violence evidence in chief (DVEC) recording under s 289F of the Criminal Procedure Act 1986. Her evidence was as follows: 1. The accused is her uncle - being her mother's brother; 2. She has never lived with the accused. There are no apprehended violence orders between them; 3. On 19 December 2021, she was eating breakfast in the kitchen at the premises and heard the front gate rattling. She said there was a lock on the gate to keep people out. The accused jumped over the gate and tried to open a front window; 4. She said she saw the image of a shadow on the window coverings, walking back and forth while she was in the kitchen. She said the accused tried to pull open the window screen but was unable to open it; 5. She was observing the accused through the glass window. He was wearing a white shirt and dark shorts; 6. At this point she heard the accused saying 'where the fuck is my stuff?', 'I want my fucking stuff back' and 'I'll be back'; 7. She tried to reach for her phone to record what was happening; 8. She said the accused lived at the premises years ago as a teenager, and some items belonging to the accused had been left at the premises, including refrigerators, freezers and fishing rods; 9. She had lived at the premises for about 6 years with her grandmother. Her grandmother passed away on 31 March 2020, and the accused was claiming rights to the house; 10. She said the accused had no permission to be at the premises on 19 December 2021; 11. She said that the accused had made the damage to the window screen worse during the incident on 19 December 2021, by causing it to bow or bend. She said the accused had previously damaged the screen during a prior incident; and 12. She said that during the incident on 19 December 2021, she called various family members and police. She said she felt terrified by the ordeal and the prospect of the accused returning, and had fears for her safety.
The complainant was also cross examined. She gave the following evidence: 1. The accused grew up in the premises, but she had lived there since 2014 with her grandmother (the accused's mother); 2. When her grandmother passed away in March 2020, the accused was on the (then) lease of the premises, based on what she had been told by others; 3. She confirmed the window panel at the front of the premises was damaged and bent during an incident in April 2020; 4. She said she had no clue whether there was any property in the premises from the accused's childhood. She said there was possibly some property under the house, but was not aware of anything specific; 5. She said a number of items had accumulated on the front verandah of the premises, such as fishing gear and surfboards, but these had been there for years and she got rid of it all; 6. In relation to the gate near the front door of the premises, she said it was difficult to step over it as it rises to approximately waist height. She said the accused jumped over the gate and walked toward the front window. He looked inside the window and saw her; 7. She denied the suggestion that she heard the accused knocking on the front door or the front window on 19 December 2021; 8. She denied the suggestion that while at the premises, the accused said he would return with the police; 9. She agreed there was some pre-existing damage to the front window screen; and 10. She denied the suggestion the accused had not uttered any threats on 19 December 2021, because he said he would come back to the premises. This scared her and she again denied the accused mentioned he would return with the police.
At the close of the prosecutor's case, a prima facie case was conceded, and the accused elected to give evidence.
The accused gave evidence as follows: 1. There was an incident at the premises a couple of days after his mother's funeral in April 2020. He said there was a room out the back of the premises which contained clothing belonging to him. He went to get the clothes by knocking on the front door. The complainant answered the door and was told he was not allowed inside the house; 2. He said his partner went to speak to the complainant. The accused went to a window on the front verandah and took the fly screen off. He opened the window and jumped through it onto the lounge in the TV room. At this point, the complainant's sister came out of the kitchen with a knife and so he left. He said the screen was damaged during this incident; 3. He said that when his mother was alive, he and his mother were named on the lease of the premises. He said he had been on the lease for some time; 4. On 19 December 2021, there was approximately one month until his son's nipper season started. He said his belongings were at the premises. He said he had not otherwise been to the premises since the incident in April 2020; 5. He said he knocked on the front door to ask where his son's nippers board was. He said it was worth about $800. He said he had pulled up to the premises with his partner and his child. He went up the front stairs and noticed that the padlock on the gate was open. After knocking on the door, there was no reply and he thought no one was home. He then went to the window and saw the complainant in the kitchen, at which time he asked "where's the nipper board?" and "where's my stuff?". He said there was another surfboard at the premises which had been gifted to him; and 6. At this point, the complainant was smirking at him while she was eating a sandwich. He then said he told her "I'll get the fucking police". Ultimately, the police arrived at his home to question him in relation to this incident.
The accused was also cross examined. He gave the following evidence: 1. He believed that at the premises he had left behind clothes, his son's nipper board which was only a few months old, fishing rods, photographs, trophies and old school reports; 2. He had lived at Kempsey for about 20 years prior to his mother's passing in March 2020. He said, however, that there were times when he stayed with his mother at the premises over that period; 3. In relation to the first incident in April 2020, which was 2 days after his mother's passing, the complainant and her sister Elizabeth were at the property. He said he took the fly screen off the front window and it got damaged as a result; 4. The last time he was at his mother's house before her passing was about a week prior to her death; 5. Between the time of his mother's funeral and 19 December 2021, he had had no communications with the complainant. He said he had seen her in public, but did not speak with her; 6. He denied the suggestion that he had ample opportunity to discuss with the complainant any issues concerning his belongings at the premises, because the last time he had attempted this, he almost got stabbed; 7. He said he was not aware that the leasing arrangements had been changed, in which the complainant was now the named tenant on the lease; 8. He said he had asked the agent, Many Rivers Regional Housing, for a copy of the lease but was never provided one; 9. He denied the suggestion he did not knock on the front door of the premises on 19 December 2021; 10. He denied the suggestion he was demanding his property with a raised voice during the encounter on 19 December 2021; 11. He denied the suggestion that he never said he would call the police during the encounter on 19 December 2021; 12. He denied the suggestion he was angry during the encounter on 19 December 2021; and 13. He explained that he ultimately did not call the police, despite saying to the complainant that he would do this, because he had more things to worry about in his life. He said there were other court cases which were proceeding in his life and that he would wait for those to go through before taking any further action.

E. FINDINGS

I now turn to my findings.
At the end of the evidence, I heard submissions from both parties. Based on the evidence and submissions, the issues in this case were: 1. In relation to sequence 1, whether the accused had an implied consent or a lawful excuse to enter the premises occupied by the complainant. In this respect the accused relied on a combination of his subjective belief he maintained an ongoing leasehold interest in the premises, his asserted 'claim of right' to property situated on the premises and his enjoyment of an implied licence at common law to enter upon the premises; and 2. In relation to sequence 3, there were 3 issues: 1. First, whether the accused intended by his conduct on 19 December 2021 to cause physical or mental harm to the complainant (including by reason of the extended meaning of 'intention' in s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007); 2. Secondly, whether the conduct of the accused constituted 'intimidation' for the purposes of ss 7 and 13 of the Crimes (Domestic and Personal Violence) Act 2007; and 3. Thirdly, whether the accused's conduct was justified or excused based on a 'claim of right' defence.
Turning first to sequence 1, I note that the onus of proving an offence against s 4(1)(b) of the Inclosed Lands Protection Act 1901 of course falls on the prosecutor, but the onus of proving any 'lawful excuse' falls on the accused. The Inclosed Lands Protection Act 1901 does not prescribe the standard of proof the accused must meet, and therefore in accordance with common law principles, he would therefore be required to prove any 'lawful excuse' on the balance of probabilities (see Veira v Cook [2021] NSWCA 302 [34]).
There is no definition of 'lawful excuse' in the Act and therefore I approach the matter on the basis that the expression is a broad one, and intended to capture any excuse or defence known to the law in NSW.
I note that the whole of the evidence adduced in the proceedings, on any view, revealed that as of 19 December 2021, the accused was not the owner of the property, he was not the occupier of the property, and he was not a person apparently in charge of those lands. Further, there was no dispute that the accused entered into 'inclosed lands' as defined in the Act, and this was without the prior express consent of the occupier, being the complainant.
Insofar as concerns the definition of 'inclosed lands' in s 3 of the Inclosed Lands Protection Act 1901, no issue was raised, and the evidence only suggested, that the premises were relevantly inclosed or surrounded by a fence, wall or other erection. The complainant said the gate was closed and padlocked, whereas the accused said the padlock on the gate was open when he entered the premises on 19 December 2021. As no issue was raised about this difference in the evidence insofar as concerned whether the premises were 'inclosed lands' as defined, I will proceed on the assumption that the premises met that definition in the Inclosed Lands Protection Act 1901. It seems to me that, even on the accused's evidence, the premises would nevertheless meet the definition of 'inclosed lands' as the existence or otherwise of a locking device is not critical on this point.
I now turn to whether the accused enjoyed any implied licence at common law to enter the premises. There are 2 ways of looking at this issue. On one view, the prosecutor must prove beyond reasonable doubt the accused did not have any implied consent in the form of an implied licence at common law, because the absence of consent is an element of the offence. Another view is that the reference to 'consent' in s 4(1)(b) of the Inclosed Lands Protection Act 1901 is a reference to 'express' consent, and therefore because the accused did not have such consent (or did not respond to an expressly communicated invitation from the occupier), he would need to rely on an implied licence at common law as the basis for a 'lawful excuse' defence under that provision. Depending on which view is taken, this will influence who bears the relevant onus of proof. Accordingly, I will analyse and determine the matter from both perspectives. As will become apparent, either approach ultimately leads me to the same result.
As to common law licences of this type, see the decision of the High Court in Roy v O'Neil [2020] HCA 45. In summary, a common law licence implies a permission, on the part of an occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes, but it balances its recognition of that implied permission by acknowledging that an occupier may negate the permission, by sufficiently indicating that entry is not permitted, and that an occupier may revoke the permission at any time, by requiring the visitor to leave the premises.
For the purposes of these proceedings, it is relevant to note the discussion, for example, at paragraph [67] of that decision which says that a licence will only be implied as a matter of law if there is nothing in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated.
The main issue in this case concerning such an implied licence was the complainant's evidence of a padlocked gate which had to be traversed or stepped over by the accused to get to the front door of the premises. It was submitted that the existence of such a locked gate negated the existence of an implied or tacit licence to enter the premises. Against this, the accused's evidence was that the padlock was open when he attended the premises on 19 December 2021.
This is a case where I cannot rule out the reasonable possibility the accused may have been telling the truth about the facts and circumstances involving his attendance at the property on 19 December 2021.
The prosecutor very carefully and methodically cross examined the accused. Notwithstanding the cross examination, the accused adhered to his evidence in chief and his evidence, on my assessment, remained internally consistent and plausible. His evidence did not conflict with any objective evidence in the proceedings.
It is correct to say, as the prosecutor submitted, that there were times in the accused's evidence where he was evasive and spoke about unrelated matters, and he at least appeared to give inconsistent evidence about the age of his son's nippers board. But ultimately, I consider that these observations were inconsequential, because in respect of the central and critical evidence about his attendance at the premises on 19 December 2021, he gave a thorough explanation about the reason for his attendance, and his recollection of what occurred on that day impressionistically appeared to be reliable.
He also made concessions in his evidence which did not necessarily place him in a positive light. For example, he was upfront and forthright in acknowledging he had previously damaged the window screen at the premises during the April 2020 incident.
Further, the transcript would not disclose the fact that after several questions put to him in cross examination, the accused would pause for a number of seconds, he then appeared to genuinely reflect on his answer, before then forthrightly answering them. I was left with the impression that this was to ensure that his evidence was truthful and complete.
Accordingly, for all these reasons, I am not able to positively reject the accused's evidence as untrue. I am satisfied that the accused might at least have been telling the truth about the facts and circumstances surrounding his attendance at the premises on 19 December 2021, and therefore that the gate may not have been secured by a padlock at that time.
It might be said that the accused's intentions when attending the premises are relevant in determining whether he enjoyed an implied licence at common law to enter the premises (see e.g. Roy v O'Neil at [40]). Ultimately, on my assessment of his evidence, his intention was only to attend the premises to take back possession of items which he appeared to genuinely believe belonged to him, and which he genuinely believed remained at the premises. I therefore do not consider that the accused's intentions in attending the premises influences whether he enjoyed an implied licence at common law to enter the premises.
I also note, for completeness, there was no evidence the complainant asked the accused to leave the premises on 19 December 2021 after he had arrived, such as to suggest that she, as the occupier, had expressly withdrawn his implied licence to enter the premises. Further, it was not possible to conclude on the evidence that the circumstances of the April 2020 incident had negated in any material way the accused's implied licence to enter the premises at a future date.
I hasten to add that, in making these findings, I am not rejecting the complainant's evidence. I find the complainant was an honest and reliable witness, and none of my findings should be understood as expressing any reservations about her credit, or the truthfulness of her evidence. She made an immediate complaint to police, and the evidence in her DVEC in Exhibit 4 was not undermined by the cross examination she endured - her evidence remained internally consistent and plausible. My impression of her evidence in court was that she was a witness who was seeking to give a truthful account about her recollections of what happened on 19 December 2021 at the premises.
In criminal proceedings such as these, if the court has any reasonable doubt, the accused must be given the benefit of that doubt. As I have found the accused might at least be telling the truth, the court necessarily therefore entertains reasonable doubt on the evidence concerning the security of the gate at the time of the accused's attendance on 19 December 2021, and therefore as to whether the implied licence at common law had been negated.
It follows from this that if the prosecutor is required to negative the existence of an implied licence at common law, that is, to prove beyond reasonable doubt a lack of implied consent, I do not consider that the prosecutor has met its onus. In summary, I am not satisfied beyond reasonable doubt that there was any objective fact or any objective facts founding a conclusion that an implied or tacit licence to access the premises had been negated. Expressed another way, based on my assessment of the evidence, the facts and circumstances lacked sufficient indicia suggesting that the occupier of the premises had taken steps to negate the implied licence at common law concerning those premises, at least as of 19 December 2021.
If, on the other hand, the accused bears the onus of proving he had implied consent in the form of an implied licence at common law for the purposes of s 4 of the Inclosed Lands Protection Act 1901, I consider that on the balance of probabilities, he has discharged that onus in any event.
In this respect, neither witness was tested about their memory of whether the gate was in fact padlocked at the time the accused attended the premises on 19 December 2021. It is inherently more likely that the accused's recollection is more reliable as he was, on the evidence adduced in the proceedings, the only the person who at least had any apparent and actual contact with the gate on 19 December 2021 and therefore the only person reasonably capable of making observations about this fact. The complainant certainly at least said there was a lock on the gate, and she saw the accused jump over it, but there was no evidence from her about whether in fact the lock was secure and fastened on 19 December 2021. This is to be contrasted with the accused's evidence in which he was clear that the padlock on the gate was open at the time he attended the premises on 19 December 2021. Accordingly, I find I can only resolve this difference in the evidence by preferring the evidence of the accused.
Therefore, if the accused bears the onus of proving he had an implied licence at common law to access the premises, I find on the balance of probabilities that he enjoyed such a licence on 19 December 2021 and there was no sufficient evidence to demonstrate that any such licence had been negated.
I now turn to the accused's 'claim of right' defence in respect of sequence 1. It is strictly unnecessary to decide this point, given my finding that the accused had implied consent to enter the premises or alternatively an implied licence to enter the premises at common law, however I will set out my findings in the interests of completeness.
A 'claim of right' defence at common law imposes an evidential onus on the accused to raise the defence, and it is for the prosecutor to then negative that defence beyond reasonable doubt. However, in the context of a charge against s 4 of the Inclosed Lands Protection Act 1901, which recognises the broad category of 'lawful excuse' as constituting an answer to such a charge, there is a statutory displacement of the onus, because s 4 says that proof (of a lawful excuse) lies on the person (i.e. the accused person). A 'claim of right' defence is a recognised defence in NSW, and therefore falls within the broad description of a 'lawful excuse'. Therefore, in the specific context of a charge against s 4 of the Inclosed Lands Protection Act 1901, the accused must prove the 'claim of right' defence on the balance of probabilities.
In Fuge v R [2001] NSWCCA 208, Wood CJ at CL reviewed the relevant authorities relating to 'claim of right' and summarised the principles from them as follows: 1. The claim of right must be one that involves a belief as to the right to property or money in the hands of another; 2. The claim must be genuinely, i.e. honestly, held, whether well founded in fact or law or not; 3. While the belief does not have to be reasonable, a colourable pretence is insufficient; 4. The belief must be one of a legal entitlement to the property and not simply a moral entitlement; 5. The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it; 6. The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them; 7. The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches; 8. In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts; and, 9. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.
As I said previously, however, in relation to this last point, s 4 of the Inclosed Lands Protection Act 1901 displaces the usual onus of proof - the onus is on the accused to establish any 'lawful excuse', such as a 'claim of right' defence.
In Macleod v R (2003) 214 CLR 230, a majority in the High Court referred to the general principle identified by Dawson J in Walden v Hensler (1987) 163 CLR 561 at 591: "It is always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence."
The majority referred to what Dawson J said in Walden at 592-593: "It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149 at 170 per Lord Westbury."
In summary, a 'claim of right' defence is available where the accused takes property because they hold an honest belief that they were legally entitled to it.
I also note that in R v Bedford (2007) SASR 514 at paragraphs [11(3)] and [11(4)], the court observed the belief in the 'claim of right' is concerned with entitlement to the property, it need not extend to a belief in the right to take the actual measures which were used to obtain the property and the measures which are used (e.g. violence) may constitute another offence or other offences.
In the present case, I do not consider, based on the above authorities, that it is correct to speak of a 'claim of right' defence being available in respect of the offence the subject of sequence 1 in the particular context of these proceedings. A 'claim of right' defence may be available in respect of conduct by the accused involving the taking or appropriation of property from the premises which he honestly believed he had a legal entitlement to, but that is not what occurred here. The alleged offending, in the case of sequence 1, was essentially in the nature of a trespass to land. No property was taken or appropriated, and hence the 'claim of right' defence is not maintainable in the specific context here. The court in Fuge said that a 'claim of right' may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms, but again sequence 1 neither involved an alleged assault nor the use of arms.
Finally, as to the accused's defence that he held a subjective belief that he had a leasehold interest in the premises, it is unnecessary to comment further on this in any detail because of the way I have determined the question of implied consent and his implied licence at common law.
Suffice to say, I do not consider his subjective beliefs about his leasehold interest in the premises would, in the circumstances here, provide any form of defence to a charge under s 4 of the Inclosed Lands Protection Act 1901. The accused was not the owner of the premises, nor was he the occupier or person apparently in charge of the premises. Prior to attending the premises, if he had any doubt about this, he could have exhausted his enquiries with the agent, Many Rivers Regional Housing, to establish the true position. I understand his evidence was that he made such enquiries, and that those enquiries were unsuccessful and did not yield any results, but this does not mean that someone would be able to simply trespass onto a property in wilful or reckless disregard of the true position.
In the present case, ultimately his subjective beliefs are not relevant, because as a matter of fact and law, I have found that his actions were otherwise not unlawful by reason of my findings relating to the implied consent or implied licence at common law to enter the curtilage of the premises which he enjoyed at the time, and which had not been negated.
Accordingly, I enter a verdict of 'not guilty' and sequence 1 is dismissed.
I now turn to sequence 3.
I will first deal with the 'claim of right' defence which the accused sought to rely upon. For the same reasons I outlined in the context of sequence 1, I do not consider that such a defence is available to the charge of 'intimidation' contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 in the circumstances of this case. The alleged offending, in the case of sequence 3, was intimidation arising from the conduct of the accused toward the complainant on 19 December 2021. No part of this charge involved the taking or appropriation of property, and hence a 'claim of right' defence is not maintainable. Further, as with sequence 1, although a 'claim of right' may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms, sequence 3 neither involved an alleged assault nor the use of arms.
As to the remaining 2 issues, I am unable to find beyond reasonable doubt that the accused intended by his conduct on 19 December 2021 to cause physical or mental harm to the complainant. For the avoidance of doubt, I am also unable to find beyond reasonable doubt that the accused knew his conduct would likely cause fear in the complainant, for the purposes of s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007. In this respect, I note that s 13(1) cannot be read in isolation from s 13(3) (see R v Steele [2022] NSWDC 603 at [11]).
I earlier explained, in the context of sequence 1, my reasons for finding that the accused at least may have been telling the truth in his evidence in court. I also explained that this finding should not be taken as an adverse reflection on the reliability or truthfulness of the complainant and her evidence. These same findings apply equally to the resolution of sequence 3 insofar as concerns my assessment of the evidence having regard, in particular, to the application of the Murray and Liberato directions.
The prosecutor submitted that the intimidatory conduct, based on the evidence of the complainant, comprised the behaviour of the accused when attending at the premises, his interference with the window screen, the volume and tone of his language, his repeated use of profanities when exclaiming that he 'wanted [his] stuff back', and his statements to the complainant that he will 'be back'. The accused said he knocked on the door, he was not demanding his property with a raised or menacing voice and that although he said he will 'be back', his evidence was that he said he will be back with the police.
On the accused's version of the incident, which I earlier explained might at least be true, I do not consider that the court could be satisfied beyond reasonable doubt that, by his actions and words, he intended to cause physical or mental harm to the complainant, nor that he knew his conduct would likely cause fear in the complainant. On his evidence, there was no menacing or threatening behaviour, even if perhaps his voice may have been raised, and his remark that he would 'be back' was qualified, because he said he would be back 'with the police'. This evidence cannot sustain a finding beyond reasonable doubt that the accused had the requisite intention for the purposes of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, including having regard to the extended meaning of intention in s 13(3).
For completeness, I should observe that if I had rejected the accused's evidence as untrue, and therefore found beyond reasonable doubt that the incident occurred in the manner described by the complainant, on her evidence the only reasonable and rationale inference that would be available in the circumstances would be that the accused had the requisite intention to of causing the complainant to fear physical or mental harm, because of the threatening and menacing nature of his conduct, and the threat that he would 'be back' (that is, would come back to the premises), and despite the overall short duration of the encounter.
The next issue is whether the conduct of the accused constituted 'intimidation' for the purposes of ss 7 and 13 of the Crimes (Domestic and Personal Violence) Act 2007.
Insofar as concerns s 7(1)(a), the term 'harassment' is not defined. In P E v M U [2010] NSWDC 2, the court said at [17] that 'harassment' is not defined in the Act but in its legal sense it refers to ongoing behaviours which are found to be threatening or disturbing. Likewise, the court said, 'molestation' is also not defined but again in its legal sense it refers to behaviours which are found to be ongoing and unwanted and of a pestering, interfering or sexual nature.
I earlier explained why I found the accused's evidence might at least be true. On his version of events, I cannot be satisfied beyond reasonable doubt that the accused's conduct constitutes 'intimidation' as defined in s 7(1)(a) or 1(c)(i) - (iii) of the Crimes (Domestic and Personal Violence) Act 2007. His conduct would fall short of behaviour constituting harassment or molestation as explained in P E v M U, and I do not consider that his conduct, based on his evidence, would constitute conduct that causes a reasonable apprehension of injury or violence to the complainant, or damage to her property. For the purposes of s 7(2) of the Crimes (Domestic and Personal Violence) Act 2007, there was no evidence of any pattern of violence (especially violence constituting a domestic violence offence) in the accused's behaviour.
It is clear on both the complainant's evidence and the accused's evidence that the accused approached the complainant, and that as a matter of fact this caused the complainant to fear for her safety. She was clearly shaken by the incident and said she was terrified of the complainant and had fears for her safety.
In this respect, therefore, the accused's conduct would, in any event, appear to fall within the meaning of 'intimidation' as defined in s 7(1)(b) of the Crimes (Domestic and Personal Violence) Act 2007. But ultimately this is inconsequential because of my findings about the accused's lack of a requisite intention for the purposes of s 13 of the Crimes (Domestic and Personal Violence) Act 2007. Satisfying the definition of 'intimidation' in s 7 of the Crimes (Domestic and Personal Violence) Act 2007 does not complete proof of the offence because the prosecutor must also prove the intent element in s 13, which can be inferred from conduct, or from the circumstances in which an act is done (see e.g. R v Grant (2002) 55 NSWLR 80 at [18]; R v Steele [2022] NSWDC 603 at [13]).
For completeness, I should observe that if I had rejected the accused's evidence as untrue, and therefore found beyond reasonable doubt that the incident occurred in the manner described by the complainant, on her evidence the accused's behaviour would meet the definition of 'intimidation' under ss 7(1)(a) and s 7(1)(c)(i), (ii) and (iii) because of the threatening and menacing nature of the conduct, combined with the threat that he would 'be back', despite the overall short duration of the encounter.
Accordingly, I enter a verdict of 'not guilty' and it follows that sequence 3 is dismissed.
Finally, in relation to sequence 2, the prosecutor only sought to rely on the allegation that the damage to the window panel was caused on 19 December 2021 by the accused, and at no other time. The evidence disclosed some damage occurred during an incident in April 2020, at the hands of the accused. As the accused was only ever a tenant of, and never owned, the premises, an offence against s 195(1) of the Crimes Act 1900 would be proved if the accused caused any damage to the premises, either intentionally or recklessly, regardless of when it may have occurred.
At the hearing, I raised with the parties that the time of an offence is a 'particular' and is not an essential ingredient of the offence, consistent with the decision in Director of Public Prosecutions (NSW) v Chaheh [2017] NSWSC 1061 (see [44] and [45]). The prosecutor essentially conceded, however, that as a matter of procedural fairness to the accused, consistent with what the court said at [43] of Chaheh, the charge should be determined on the basis as particularised in the Court Attendance Notice. Hence because on the evidence in the prosecution case, including on the evidence of the complainant, taken at its highest, in which she conceded there was pre-existing damage to the window panel, the extent of any additional or further damage occurring on 19 December 2021 (if any) was reasonably doubtful, the charge should be dismissed.
Accordingly, because of the state of the evidence as I have summarised above, I agree the court should entertain reasonable doubt that the accused caused any further or additional damage to the window panel at the front of the premises on 19 December 2021, and therefore I enter a verdict of 'not guilty' and sequence 2 is dismissed.

F. ORDERS

For the foregoing reasons, the court orders: 1. Sequence 1 is dismissed. 2. Sequence 2 is dismissed. 3. Sequence 3 is dismissed. Magistrate Scott Nash Kempsey Local Court 5 December 2022

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