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Local Court 5 April 2017

NSW Police v Johnson

[2017] NSWLC 5

Traffic & driving
CRIMINAL LAW DRIVING WHILE DISQUALIFIED ABORIGINAL LAND COUNCIL LAND OPEN TO AND USED BY PUBLIC EXPRESS OR IMPLIED INVITATION TO ENTER

Citation: NSW Police v Johnson [2017] NSWLC 5
Court: Local Court of New South Wales
Date: 5 April 2017
Judge(s): Magistrate P Stewart

Background

The defendant was charged with driving a motor vehicle on a road while disqualified, contrary to the Road Transport Act 2013 (NSW). The offence was alleged to have occurred on 15 August 2016 at Murrin Bridge, a residential community in central-western New South Wales controlled by the Murrin Bridge Local Aboriginal Land Council on behalf of the Wiradjuri people.

The defendant did not dispute that he was driving, nor that he was disqualified at the time. The sole issue at the hearing was whether Nyampaa Street and the other roads within Murrin Bridge qualified as a "road" or "road related area" within the meaning of the Act.

The prosecution relied on agreed evidence, including police statements, photographs of sealed bitumen roads with street signs and lighting, a map of the Murrin Bridge reserve, and a 1994 Deed of Access between the Murrin Bridge Local Aboriginal Land Council and the NSW Police Commissioner.

  • Whether the roads within Murrin Bridge were "open to or used by the public" so as to constitute a "road" or "road related area" under ss 4 and 5 of the Road Transport Act 2013
  • Whether the fact that Murrin Bridge is privately owned Aboriginal Land Council land prevented its roads from satisfying that statutory definition
  • Whether the Deed of Access between the Land Council and NSW Police was determinative of the "road" question
  • Whether there was an express or implied public invitation to enter Murrin Bridge

Decision

Magistrate Stewart identified the central question as a factual one: did the roads at Murrin Bridge satisfy the statutory definition of "road" as an area "open to or used by the public"? Applying Schubert v Lee [1946] HCA 28, the court confirmed that a road may fall within the definition even if it is privately owned and the public has no legal right of access, provided the public in fact has access to it.

On the question of public invitation, the Magistrate found that the prominent "Welcome to Murrin Bridge" sign at the entrance to the community constituted at least an express, and in any event an implied, invitation to any member of the public. The court noted the absence of any gate, fencing, warning signs, or barriers, and found no evidence that members of the public had ever been turned away. This distinguished the situation from cases where trespassers had ignored physical barriers.

The court rejected the argument that the Deed of Access was determinative. While the deed treated the roads as "public areas" for the purpose of police access, this was simply a contractual arrangement authorising police to perform their duties. It said nothing conclusive about the statutory status of those roads under the Road Transport Act.

The court also dismissed the submission that the absence of general retail facilities meant the public had no reason to attend. Evidence showed that the majority of workers and children attending the pre-school, health centre, and family centre did not reside in Murrin Bridge. Frequent attendance at those facilities by non-residents supported the inference that the public regularly used the roads. The court was satisfied beyond reasonable doubt that the roads were both open to and used by the public, and accordingly found the defendant guilty.

Orders Made

• Joseph Johnson is guilty of driving on a road whilst disqualified, as charged.

Key Takeaways

  • Roads on privately owned Aboriginal Land Council land can constitute a "road" within the meaning of the Road Transport Act 2013 if the public in fact has access to them, regardless of whether the public holds any legal right of access.
  • A "Welcome" sign at the entrance to a residential community is capable of constituting an express, or at minimum an implied, public invitation to enter, particularly in the absence of gates, barriers, or any history of excluding visitors.
  • A Deed of Access between an Aboriginal Land Council and the NSW Police Commissioner does not, by itself, determine whether community roads are "roads" for the purposes of road transport legislation. The deed addresses police authority to enter, not the statutory classification of the land.
  • Under the Schubert v Lee principle, the "open to or used by the public" test is satisfied by actual public use or factual openness. It does not require proof of legal entitlement to use the road, nor does it require high volumes of traffic.
  • The existence of community facilities regularly used by non-residents (such as a pre-school and health centre) can support an inference of sufficient frequency and regularity of public use to satisfy the statutory threshold, even where the community is remote and small.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), ss 4, 5, 54
- Evidence Act 1995 (NSW), ss 143, 144

Cases
- Schubert v Lee [1946] HCA 28
- Ryan v Nominal Defendant [2005] NSWCA 59
- Harrison v Hill (1932) SC (J) 13
- Bugge v Taylor (1940) 104 JP 467
- Dwyer v Police [2005] SASC 31
- Zerella Holdings Pty Ltd v Williams [2012] SASCFC 100