John Leo FISHER v R [2019] NSWDC 297

John Leo FISHER v R [2019] NSWDC 297

The appellant established, on the balance of probabilities, the existence and use of a public right of way across Lot 2541, as supported by consistent official maps and long public use, relying on s 4(1) Inclosed Lands Protection Act 1901. The Crown failed to prove beyond reasonable doubt that no right of way...

Source-derived case information.

Parties
Appellant: John Leo Fisher; Respondent: Crown
Jurisdiction
Australia
Judgment Date
27 June 2019
Procedural Posture
Appeal / District Court Appeal From Local Court Conviction
Outcome
Appeal allowed
Legal Topics
Trespass to Inclosed Land, Public Right of Way, Inclosed Lands Protection Act 1901 S 4(1), Proof of Public Road, Burden of Proof in Criminal Matters
Criminal Law Property Law Trespass to Inclosed Land Public Right of Way Inclosed Lands Protection Act 1901 S 4(1) Proof of Public Road Burden of Proof in Criminal Matters

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Parties

John Leo Fisher

Appellant

Crown

Respondent

Procedural Posture

Appeal / District Court Appeal From Local Court Conviction

Legal Issues

  1. 1 Whether appellant was using a public right of way and thus not guilty under s 4(1) Inclosed Lands Protection Act 1901
  2. 2 Whether Crown discharged its onus to prove the absence of a right of way at time of alleged offence

Ratio Decidendi

The appellant established, on the balance of probabilities, the existence and use of a public right of way across Lot 2541, as supported by consistent official maps and long public use, relying on s 4(1) Inclosed Lands Protection Act 1901. The Crown failed to prove beyond reasonable doubt that no right of way existed or that the appellant's route was unreasonable. Appeal allowed, conviction and sentence set aside.

Court Disposition

Appeal allowed

Orders

  • Conviction recorded and the sentence passed by the Local Court at Goulburn on 15 May 2018 set aside