Citation: Fuller v R [2016] NSWDC 31
Court: District Court of New South Wales
Date: 18 March 2016
Judge(s): Judge S Norrish QC
Background
The appellant attended a public meeting of Greater Lithgow City Council in the Council chamber at Lithgow on 3 March 2014. He had an ongoing grievance about what he regarded as the Council's failure to address a problem on his property, and he interjected repeatedly during the meeting. After two warnings and a formal motion to eject him, the Council's General Manager directed him to leave on at least two occasions. He refused.
Following his ejection from the chamber, a second incident occurred in an adjacent committee room, where the appellant directed threatening conduct towards the Mayor.
The appellant was found guilty of two offences in Lithgow Local Court: offensive conduct while on inclosed lands (under the Inclosed Lands Protection Act 1901) and intimidation with intent to cause fear of physical or mental harm (under the Crimes (Domestic and Personal Violence) Act 2007). He appealed both convictions to the District Court, appearing unrepresented after exhausting his legal aid appeal rights.
Legal Issues
- Whether the Council chamber constituted "inclosed lands" within the meaning of the Inclosed Lands Protection Act 1901
- Whether the appellant's conduct in the chamber amounted to "offensive conduct" as assessed by the objective reasonable person standard
- Whether the appellant's conduct in the committee room towards the Mayor satisfied the elements of intimidation under the Crimes (Domestic and Personal Violence) Act 2007, including intent to cause fear of physical or mental harm
Decision
Offensive conduct on inclosed lands: Drawing on the analysis in DPP v Strange (2011) 80 NSWLR 412, Judge Norrish was satisfied that the Council chamber, as premises where the Council conducted public meetings, clearly constituted "inclosed lands" under the Act. The audio recording of the meeting, the appellant's own evidence, and prosecution witness evidence together established beyond reasonable doubt that the appellant had refused to leave after being directed to do so and had conducted himself in a manner offensive to a reasonable person.
The court applied the objective test for offensive conduct, referring to a body of authority requiring that the conduct be calculated to offend a reasonable person who is neither thin-skinned nor overly sensitive. The appellant had talked over people, shouted at Council members and the General Manager, and acted in a threatening fashion when asked to leave. His explanation that he raised his voice because his father was deaf and that he "forgot he was dealing with normal people" did not displace the finding of guilt.
Intimidation of the Mayor: In the committee room after the meeting, the appellant confronted the Mayor in circumstances where his participation in any further discussions had already been terminated on account of his abusive conduct. The court found he intentionally directed his anger at the Mayor with the purpose of causing her to fear physical or mental harm. Under section 7 of the Crimes (Domestic and Personal Violence) Act 2007, intimidation includes conduct amounting to harassment or creating a reasonable apprehension of violence. The court was satisfied beyond reasonable doubt that both limbs were made out.
Both convictions were upheld and the appeals dismissed. The court noted that throughout proceedings the appellant remained entirely focused on his property grievance against the Council and appeared unable to recognise, even when the audio recording was played, that his conduct had been offensive. The court expressly disregarded the Magistrate's adverse observations about how the appellant conducted himself at the Local Court, noting he had generally been courteous in the District Court proceedings.
Orders Made
No orders were made in this decision.
Note: The judgment records that orders and reasons for penalties were separately recorded on 26 February 2016, the date submissions were heard and the appeals were dismissed.
Key Takeaways
- A Council chamber where the Council conducts public meetings constitutes "inclosed lands" within the meaning of the Inclosed Lands Protection Act 1901, as confirmed by reference to DPP v Strange (2011) 80 NSWLR 412.
- The test for offensive conduct is objective: the conduct must be calculated to offend a reasonable person who is not thin-skinned or overly sensitive, and the provision is not intended to capture merely irregular, inconvenient, or exhibitionist behaviour.
- Under section 13 of the Crimes (Domestic and Personal Violence) Act 2007, intimidation includes both conduct amounting to harassment or molestation and conduct creating a reasonable apprehension of violence; the District Court found both elements were established on the facts.
- In a conviction appeal, the District Court forms its own view of the available evidence rather than simply reviewing the Magistrate's findings, though the Magistrate's assessment of witness credibility informs the analysis consistent with R v Charara [2006] NSWCCA 244.
- An appellant's subjective explanation for disruptive behaviour, such as raising one's voice to assist a hearing-impaired relative, does not automatically negate an otherwise objectively established finding of offensive conduct.
Legislation and Cases Referenced
Legislation:
- Inclosed Lands Protection Act 1901 (NSW), ss 3, 4A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
Cases:
- DPP v Strange (2011) 80 NSWLR 412
- R v Charara [2006] NSWCCA 244
- Ball v McIntyre (1966) 9 FLR 237
- Worcester v Smith (1951) VLR 316
- R v Smith (1974) 2 NSWLR 586