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District Court 15 March 2021

R v Nacovski

[2021] NSWDC 71

Public order & justice offences
CRIME CONVICTION APPEAL COMMONWEALTH AND STATE OFFENCES

Citation: R v Nacovski [2021] NSWDC 71
Court: District Court of New South Wales
Date: 15 March 2021
Judge(s): Bourke SC DCJ

Background

The appellant was convicted in the Local Court of two offences arising from an incident near Bankstown Airport on 26 July 2019. He was driving a utility vehicle when he encountered road works on Tower Road, where traffic cones, bollards, and two traffic controllers were in place.

The prosecution alleged that the appellant drove past a traffic controller who directed him to stop, and subsequently entered the airside area of Bankstown Airport without authorisation. The first charge was trespass on prohibited Commonwealth land under s 89(1) of the Commonwealth Crimes Act 1914. The second was failure to obey the direction of an authorised person under s 304(1) of the NSW Road Rules 2014.

A magistrate convicted the appellant of both offences. On appeal to the District Court, the appellant raised new arguments, not pressed below, challenging whether the prosecution had proved certain fundamental elements of each charge.

  • Whether the prosecution had proved beyond reasonable doubt that the land entered was "Commonwealth land" within the meaning of s 89(5) of the Commonwealth Crimes Act 1914.
  • Whether the prosecution had proved beyond reasonable doubt that the land was "prohibited Commonwealth land," meaning that a notice prohibiting trespass had been posted on it.
  • Whether the prosecution had proved beyond reasonable doubt that the traffic controller was an "authorised person" within the meaning of the Dictionary to the NSW Road Rules 2014, specifically a person appointed by Transport for NSW as an authorised officer.

Decision

Commonwealth land element: Bourke SC DCJ accepted that the court could take judicial notice under s 144(1) of the Evidence Act 1995 that Bankstown Airport is located on land belonging to or occupied by the Commonwealth. This was treated as common knowledge in the Sydney locality and was also verifiable by reference to a Department of Infrastructure webpage describing Bankstown Airport as a "leased Federal airport." The Airport Regulations 1997 and a photograph in evidence showing signage bearing the Commonwealth of Australia crest provided further support. The court was satisfied beyond reasonable doubt that the land was Commonwealth land.

Prohibited Commonwealth land element: The court considered whether there was adequate evidence that notices prohibiting trespass had been posted on the land. Evidence from a senior site manager described signage posted every 100 metres along the perimeter fence stating that entry to the airside area was prohibited, with a maximum penalty of $5,000. A photograph in evidence depicted this warning sign on the perimeter fence bearing the Commonwealth crest. The court found this evidence sufficient to establish that the land was "prohibited Commonwealth land" within the statutory definition.

Authorised person element: The traffic controller gave unchallenged evidence that she was an "authorised traffic controller" who had obtained her qualification through Roads and Maritime Services via a two-day course. The court took judicial notice that Roads and Maritime Services was a NSW Government agency whose functions have since been absorbed into Transport for NSW. On that basis, the court was satisfied beyond reasonable doubt that the traffic controller met the definition of an "authorised person" under the Road Rules Dictionary. Both offences were found proved beyond reasonable doubt and the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A conviction appeal to the District Court proceeds as a re-hearing, requiring the appellate judge to form an independent view of the facts while giving appropriate weight to the trial magistrate's assessment of witness credibility.
  • Under s 144(1) of the Evidence Act 1995, a court may take judicial notice of facts that are common knowledge in the locality or capable of verification by reference to an authoritative document, without requiring formal proof. In this case, the District Court applied that principle to establish both that Bankstown Airport sits on Commonwealth land and that Roads and Maritime Services was a NSW Government agency.
  • Proving "prohibited Commonwealth land" under s 89(5) of the Commonwealth Crimes Act 1914 requires evidence both that the land belongs to or is occupied by the Commonwealth, and that notices prohibiting trespass are posted on it. Signage on a perimeter fence, corroborated by witness evidence and photographs, was sufficient to meet that threshold.
  • For the Road Rules offence, proof that a traffic controller held a Roads and Maritime Services qualification was sufficient to establish her status as a person "appointed by Transport for NSW" as an authorised officer, given the agency's absorption into Transport for NSW.
  • New arguments not raised before the magistrate can still be advanced on a conviction appeal, but the prosecution may meet them through combinations of tendered evidence and judicial notice rather than specific direct proof.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act 1914 (Cth), s 89(1), s 89(5)
- Criminal Code 1995 (Cth), ss 3.2, 4.1, 5.6
- NSW Road Rules 2014, s 304(1) and Dictionary
- Evidence Act 1995 (NSW), s 144
- Airports Act 1996 (Cth), s 5
- Airport Regulations 1997 (Cth), cl 1.03

Cases cited: None stated in the judgment.