Citation: [2022] NSWLC 10
Court: Local Court of NSW
Date: 23 June 2022
Judge(s): Clisdell LCM
Background
The defendant entered a telecommunications facility at Radio Hill in Cooma, operated by Telstra and Optus. The site was fenced with barbed wire, but on the day in question one gate had fallen to the ground and the other remained upright. Both gates displayed prominent signs reading "Private Property Authorised Persons Only" and "KEEP OUT, AUTHORISED PERSONS ONLY."
The defendant entered the site and filmed his visit in a Facebook video, stating he intended to expose what he described as Telstra's poor maintenance standards. He was charged with entering inclosed lands without consent under s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW).
The defence submitted at the close of the prosecution's case that a prima facie case had not been established, because the prosecution had called no witness from Telstra or any other responsible party to prove that consent to enter had been denied or not given.
Legal Issues
- Whether the prosecution had established a prima facie case that entry was without consent under s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW)
- Whether signs on the gates were sufficient to imply a denial of consent, without a direct statement from the owner or occupier
- Whether the fact that the gate was broken and the site unsecured gave rise to any lawful entitlement to enter
Decision
Issue 1: Whether a prima facie case was established without direct evidence of denial of consent
The defence argued that the prosecution was required to call a representative of Telstra to confirm that consent to enter had not been given. The Local Court rejected this submission. The Act places an onus on the defendant to prove lawful entry, rather than requiring the prosecution to disprove it in every case (at [8]-[9], [23]).
Issue 2: Whether the signage was sufficient to deny consent
The magistrate found that the signs placed a clear precondition on entry, restricting access to authorised persons only. The only rational inference from that signage was that general members of the public required prior authorisation before entering (at [16], [21]). The defendant acknowledged the signs in his own video but proceeded to enter anyway. His stated purpose was to embarrass Telstra for the benefit of his Facebook audience, not any authorised maintenance or inspection function (at [18]-[19], [23]).
Issue 3: Whether the unsecured gate negated the requirement for consent
The magistrate held that a broken gate did not alter the legal requirements for entry. The owner or occupier had communicated the preconditions for entry through signage, and the physical state of the fence did not dissolve those preconditions. The unsecured gate made unlawful entry easier but did not make it lawful (at [21]).
Conclusion
Because the defendant offered no evidence that he was an authorised person, and the totality of the evidence pointed to an unlawful entry, the magistrate was satisfied that a prima facie case had been established (at [23]-[24]).
Orders Made
- Prima facie case found
Key Takeaways
- Under s 4 of the Inclosed Lands Protection Act 1901 (NSW), the onus falls on a defendant to prove lawful entry, rather than on the prosecution to prove in every case that consent was expressly denied (at [8], [23]).
- Prominent signs restricting access to "authorised persons only" are capable of implying a denial of consent, without requiring direct evidence from the owner or occupier that consent was refused (at [21]).
- A broken or unsecured gate does not create a lawful entitlement to enter inclosed lands; the signage communicating preconditions for entry remains operative regardless of the physical state of the fence (at [21]).
- A defendant's own video recording, tendered as prosecution evidence, can constitute compelling material against them where it records their stated purpose for entry and their awareness of restricting signs (at [17]-[19], [23]).
- The maximum penalty for this offence is modest (five penalty units, equivalent to $550), but the statutory framework places meaningful obligations on a person who enters land bearing clear exclusionary signs (at [2]).
Legislation and Cases Referenced
Legislation
- Inclosed Lands Protection Act 1901 (NSW), s 4
Cases
- Not stated