NSW Police v Johnson

Defence Submissions

Mr Styles helpfully provided written submissions. Attached with those submissions are extracts of relevant legislation including definitions of road and road related area under the Road Transport Act, and ss 143 and 144, Evidence Act 1995 regarding judicial notice of law and facts; a title search of Lot 6 DP 1047452 at Murrin Bridge; an extract from the NSW Police Force Handbook in relation to Aboriginal Issues and Entering Aboriginal Land; and judgments in Schubert v Lee [1946] HCA 28, Dwyer v Police [2005] SASC 31, and Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100.
It was submitted, and seems that there can be no issue taken with the assertion, that Murrin Bridge is owned by the Murrin Bridge Local Aboriginal Land Council. I am prepared to accept for the purpose of the defence submissions that the title search and related plan cover Murrin Bridge.
In relation to the Agreement between the Murrin Bridge Local Aboriginal Land Council and police, the NSW Police Force Handbook (pages 5 and 6) make it clear that the use of such agreement is a strategy developed following the Royal Commission into Aboriginal Deaths in Custody to help effective policing methods and address the causes of tension between police and Aboriginal communities across NSW.
The document indicates that if police enter Aboriginal lands without authority, they are trespassing. It does not mean that if police enter Aboriginal lands without the benefit of an agreement between a local Aboriginal Land Council and the Commissioner of Police that they are automatically trespassing. It depends upon what authority they enter the land, e.g. by express or implied invitation, in lawful pursuit of an offender, etc.
The Agreement states that all areas within Murrin Bridge 'shall be considered public areas except those places being private dwelling houses and yards', and the area 'is considered by the parties no different to other residential areas within the police district'.
Whilst the parties consider that the area for the purpose of the Agreement, and therefore the roads within the area, to be public areas, it does not lead to the conclusion that if the police see a person driving on such a road it is therefore a 'road' within the meaning of the Road Transport Act. It is merely an express agreement authorising police to carry out their duties, noting what is considered public and private for the purpose of such access. It is not at all determinative of whether or not the road driven upon by the accused is a road or road related area.
It is noted that there is no evidence of such an express agreement with any other class of persons besides police officers. However, I find that there is an express or implied invitation for anyone to attend Murrin Bridge by virtue of the "Welcome to Murrin Bridge" sign prominently placed on approach to Murrin Bridge.
The High Court decision of Schubert v Lee (supra) dates back some 70 years. It was held (citing with approval Harrison v Hill (1932) SC (J) 13 and the English decision of Bugge v Taylor (1940) 104 JP 467) that: The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets… which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets…. [A] road falls within the definition if the public in fact has access to it, even though it is privately owned, and the public has no right of access to the road.
In Harrison v Hill, there was no gate at the road entrance. The road was part of a farm and led on to a farmhouse where it terminated. There no other farmhouses on the land. The road was maintained by the farm tenant. Members of the public who walked on the land had on several occasions been turned off the land when there were crops growing in adjoining fields. It was held that the public generally had access to the private road in question, unless there was reason to believe that the persons using it were likely to commit mischief (see Dwyer v Police at [14]).
In relation to the phrase "the public", it was held (at 4): … when the statute speaks of "the public" in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
In the case of Dwyer v Police, the road in question was an unsealed access road to several houses and farm buildings about 1.7km from the main road. There was gate mounted at the access point which for all but 3 weeks of the year was generally left open. There were no signs prohibiting or discouraging entry to the access road by members of the public. Occasionally members of the public wandered onto the property, and when noticed, were asked to leave.
There was no "invitation to the public generally or to a section of it to attend on the property such as might be the case of a privately owned hotel forecourt or a privately owned shopping centre car park" (at [21]).
"There must be an invitation or permission to the public before it can be said that the public has access to the area, or that the place is "open to the public". That invitation may be express; it may be implied" (at [23]).
"For anyone to enter the property lawfully it could only be on his (the owner's) invitation or with his licence or with the invitation or licence of a person whom Mr Perugini had authorised to extend that invitation or licence" (at [21]).
In Zerella Holdings Pty Ltd v Williams, the case of Dwyer was referred to (at [40]) in relation to the phrase "open to the public", where it was said: … the question is not whether the land is physically open to the public, although the existence or non-existence of a physical barrier to entry may be one factor in assessing whether an invitation is extended to the public.
The case then cites Harrison v Hill (at [40]): There is a distinction between a general invitation extended without discrimination to the public and a series of invitations restricted to specific invitees for the purpose of transacting business with the occupier or otherwise. Much will depend on the circumstances including the restrictions upon those eligible for entrance and the scope of the permitted uses on gaining access.
I have also had regard to the detailed analysis by Santow JA in Ryan v Nominal Defendant [2005] NSWCA 59 from [22], and particularly at [70] onwards, as well as the judgment of Giles JA.
There is no indication to anyone entering Murrin Bridge that it is privately owned land. To the contrary, there is a sign "Welcome to Murrin Bridge" identifying the place as "formed by the Ngiyampaa Barkinji and Wiradjiri People." There is no further explanation of what exactly that means. The sign indicates "established 1949", but without further explanation.
The photographs tendered show sealed roads, some guttering and a typical official town destination sign indicating "Murrin Bridge 2" (i.e. 2 kilometres). There is no gate or sign restricting access either physically or by warning, i.e. "there is no physical obstruction or express or implied prohibition to members of the public", as contemplated in Schubert v Lee (at 601).
The 'map', part of the prosecution tender bundle, reveals the existence of a Health Centre, a Family Centre, a CDEP Office, a Women's Building, Murra Thina Pre-School, a Youth shed, a hall, 'Fullford's Old Shop', a number of other blocks which are not further described (by inference those blocks are for housing since evidence revealed persons live at Murrin Bridge), and a sports oval. There are a series of roads including the entry road, Nyampaa Street, as well as Cracker Street, Middle Street, Riverside Drive, and Church Street.
"There is some need for the protection of the public in the use of such streets", as referred to in Schubert v Lee. By implication, given the residences and other places such as the health centre, family centre and pre-school, there are a number of people who attend Murrin Bridge. I find as a fact that in relation to the pre-school, the workers and many attendees come from Lake Cargelligo. It is therefore a logical conclusion that persons travel to Murrin Bridge using motor vehicles.
I am unable to make a finding that the facilities at Murrin Bridge are exclusively used by Aboriginal persons, or that visitors to residences are limited in any way at all. The welcome sign makes no such distinction. Similarly, I am unable to make a finding that Murrin Bridge is only open to Aboriginal persons. The sergeant attended there with his parents whilst not on duty. He is not Aboriginal. There is no evidence of an invitation being needed to attend Murrin Bridge or to use its facilities.
There is no evidence that members of the public who attend Murrin Bridge are asked to leave, if found to be there. No complaints as such have been received to the knowledge of the sergeant. There is no evidence of "knowing trespassers" attending Murrin Bridge - as in the case of Ryan where people ignored physical barriers and warning signs to enter the area.
It was submitted that any member of the public attending Murrin Bridge without a specific reason for going there would have nothing to do there as there are no regular facilities, such as a supermarket or shop. That submission, however, does not mean that Murrin Bridge is not open to the public, or used by the public.
The remote location of Murrin Bridge necessarily implies that there might not be a significant number of the public entering the area. As was said in Ryan (at [15]), "it was to be expected that those of the general public who used it would live in the locality" - but that does not mean in this case that they must live in Murrin Bridge. The evidence points to the majority of persons using the pre-school coming from Lake Cargelligo. It is not the case that the people who use the facilities in Murrin Bridge all reside in Murrin Bridge.
The frequency and regularity of use can be inferred by the nature of the services available and the fact that there are multiple residences at Murrin Bridge. The use of the pre-school, for example, connotes a degree of frequent attendance - "the qualities of the place are also relevant insofar as they provide the context for assessing the weight of the qualitative and quantitative characteristics of use against the benchmark of 'the public'" (Ryan at [92]; see [91] to [94]). It defies logic that the Health Centre and Family Centre would exist only for the residents of Murrin Bridge - one only needs to look at the map to draw such conclusion given the small number of apparent residential lots in Murrin Bridge.
I reject the submission that there is no express invitation to the public. The welcome sign is such an invitation. Even if I were wrong on that point, the welcome sign is at the very least an implied invitation to the public. A claim of trespass could not be sustained against a person continuing past the sign.

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Judgment (5 paragraphs)

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Cases Cited (4)