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Local Court 5 December 2022

NSW Police v Barker

[2022] NSWLC 9

Domestic & family violencePublic order & justice offences
CRIME SEQUENCE 1: ENTER INCLOSED LANDS SEQUENCE 2: MALICIOUS DAMAGE SEQUENCE 3: INTIMIDATION

Citation: NSW Police v Barker [2022] NSWLC 9
Court: Local Court of New South Wales
Date: 5 December 2022
Judge(s): Nash LCM

Background

The accused faced three charges arising from an incident on 19 December 2021, when he attended a residential property occupied by the complainant, a woman who rented the premises. The accused and the complainant had a prior domestic relationship. The three charges were: entering inclosed lands without lawful excuse (Inclosed Lands Protection Act 1901, s 4(1)(b)); malicious damage to a window screen (Crimes Act 1900, s 195(1)); and intimidation in a domestic violence context (Crimes (Domestic and Personal Violence) Act 2007, s 13).

The accused pleaded not guilty to all three charges and elected to give evidence at the hearing. The essential facts of the attendance were not in dispute. The contest turned on whether the accused had implied consent or a lawful excuse to enter the property, whether his conduct amounted to intimidation, and whether he intended to cause the complainant fear of physical or mental harm.

The prosecutor conceded before the conclusion of the hearing that it would be unsafe to proceed with the malicious damage charge, given uncertainty about whether any fresh damage had been caused on 19 December 2021 as distinct from pre-existing damage caused in an earlier April 2020 incident.

Legal Issues

  • Whether the accused had an implied licence at common law to enter the curtilage of the premises, and who bore the onus of proof on that question
  • Whether a "claim of right" defence was available to charges of entering inclosed lands and intimidation in these circumstances
  • Whether the accused intended to cause the complainant to fear physical or mental harm within the meaning of s 13 of the Crimes (Domestic and Personal Violence) Act 2007, including under the extended intention in s 13(3)
  • Whether the accused's conduct constituted "intimidation" as defined in s 7 of the Crimes (Domestic and Personal Violence) Act 2007
  • Whether the malicious damage charge could safely be sustained on the evidence as particularised

Decision

Sequence 1: Entering Inclosed Lands

The central factual dispute was whether the gate to the property had been padlocked when the accused arrived. The complainant said it was padlocked and the accused stepped over it; the accused said the padlock was open. The Magistrate could not positively reject the accused's evidence as untrue, finding it internally consistent, plausible, and not contradicted by objective evidence (at [61]-[66]). The accused's evidence was preferred on this point, partly because he was the only person who had actual contact with the gate on the day (at [73]).

Under Roy v O'Neil [2020] HCA 45, an implied licence at common law permits persons to enter premises and approach a dwelling for lawful purposes, unless the occupier has taken sufficient steps to negate that licence (at [58]-[59]). The Magistrate analysed the onus question from both directions: if the prosecutor bore the onus of negativing implied consent, that onus was not met beyond reasonable doubt (at [71]); if instead the accused bore the onus of proving a lawful excuse on the balance of probabilities, he had discharged it (at [72]-[74]). Either way, the accused was found to have enjoyed an implied licence to enter the property that had not been negated. A verdict of not guilty was entered (at [87]).

Claim of Right Defence (Sequences 1 and 3)

The Magistrate addressed the claim of right defence for completeness but found it unavailable on either charge. A claim of right defence requires an honest belief in a legal entitlement to property. Neither charge involved the taking or appropriation of property: sequence 1 was essentially a trespass to land, and sequence 3 involved alleged intimidatory conduct. Accordingly, the defence did not apply to the circumstances of either offence (at [83], [89]).

Sequence 3: Intimidation

On the accused's version of events, which the Magistrate found might at least be true, there was no basis for being satisfied beyond reasonable doubt that the accused intended to cause the complainant to fear physical or mental harm, nor that he knew his conduct would likely produce such fear under s 13(3) (at [90]-[93]). On his evidence, he knocked on the door, spoke without a menacing tone, and his statement that he would "be back" was qualified by a reference to returning with police. The Magistrate noted that even if the accused's conduct technically fell within the s 7(1)(b) definition of intimidation (approaching a person in a way that causes them to fear for their safety), proof of the offence under s 13 still required proof of the intent element, which was not established on the accused's version (at [99]). A verdict of not guilty was entered (at [101]).

Sequence 2: Malicious Damage

The prosecutor conceded it would be unsafe to convict given the complainant's own evidence acknowledged pre-existing damage to the window screen from the April 2020 incident, leaving the extent of any additional damage on 19 December 2021 reasonably doubtful (at [6], [103]-[104]). The Magistrate agreed and entered a verdict of not guilty.

Orders Made

  • Sequence 1 (entering inclosed lands): dismissed, verdict not guilty
  • Sequence 2 (malicious damage): dismissed, verdict not guilty
  • Sequence 3 (intimidation): dismissed, verdict not guilty

Key Takeaways

  • An implied licence at common law to enter residential premises and approach a dwelling exists unless the occupier has taken sufficient objective steps to negate it; where the evidence is genuinely uncertain as to whether a padlocked gate negated that licence, the prosecutor cannot discharge its burden of proof beyond reasonable doubt (at [58]-[71]).

  • Under s 4 of the Inclosed Lands Protection Act 1901, the onus of establishing a "lawful excuse" rests on the accused on the balance of probabilities, displacing the ordinary common law position where the prosecution negatives defences; this statutory displacement applies equally where the accused relies on an implied licence at common law as the basis for the lawful excuse (at [53], [76]).

  • A claim of right defence requires an honest belief in legal entitlement to specific property; the defence is not available to a charge of entering inclosed lands (essentially a trespass to land) or to a charge of intimidation where no taking or appropriation of property is alleged (at [83], [89]).

  • Proof of the intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 requires proof of the intent element in s 13(1) read with the extended meaning in s 13(3); satisfying the definition of "intimidation" in s 7 alone does not complete proof of the offence (at [99]).

  • Applying both the Murray direction (caution where the prosecution case depends substantially on a single witness) and the Liberato direction (acquittal if the accused's evidence might be true), the Magistrate found that an accused whose evidence remained internally consistent, made appropriate concessions, and was not contradicted by objective evidence could not be convicted even where the complainant was assessed as an honest and reliable witness (at [23]-[27], [29]-[32], [61]-[70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Domestic and Personal Violence) Act 2007
- Inclosed Lands Protection Act 1091

Cases
- Awad v The Queen; Tambakakis v The Queen [2022] HCA 36
- De Silva v The Queen (2019) 268 CLR 57
- Director of Public Prosecutions (NSW) v Chaheh [2017] NSWSC 1061
- Fuge v R [2001] NSWCCA 208
- Liberato v The Queen (1985) 159 CLR 507
- Macleod v R (2003) 214 CLR 230
- P E v M U [2010] NSWDC 2
- R v Bedford (2007) SASR 514
- R v Grant (2002) 55 NSWLR 80
- R v Murray (1987) 11 NSWLR 12
- R v Steele [2022] NSWDC 603
- Roy v O’Neil [2020] HCA 45
- Veira v Cook [2021] NSWCA 302
- Walden v Hensler (1987) 163 CLR 561 at 591