Mills v Perras [2005] NSWSC 1184

Mills v Perras [2005] NSWSC 1184

The appeal failed because there was evidence from which the Magistrate could find that Perras entered Mills' property in the belief that he was retrieving his german shepherd, Justice, and that this constituted lawful excuse; the Magistrate gave sufficient reasons for that finding, so no error of law was shown.

Jurisdiction
Australia
Judgment Date
24 November 2005
Procedural Posture
Appeal Under S 56(1)(c) of the Crimes (local Courts Appeal and Review) Act 2001 (nsw) From Dismissal of Summary Proceedings/private Prosecution / Supreme Court Appeal on a Question of Law From Local Court Decisions Dated 8 March 2005 and 24 March 2005
Outcome
Extension of time granted; appeal dismissed; Local Court decisions affirmed; summons dismissed; plaintiff ordered to pay defendant's costs as agreed or assessed.
Legal Topics
['private Prosecution' 'unlawful Entry on Inclosed Lands' 'lawful Excuse' 'duty to Give Reasons' 'extension of Time']
['criminal Procedure' 'appeals' 'inclosed Lands'] ['private Prosecution' 'unlawful Entry on Inclosed Lands' 'lawful Excuse' 'duty to Give Reasons' 'extension of Time']

Case Brief

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Procedural Posture

Appeal Under S 56(1)(c) of the Crimes (local Courts Appeal and Review) Act 2001 (nsw) From Dismissal of Summary Proceedings/private Prosecution / Supreme Court Appeal on a Question of Law From Local Court Decisions Dated 8 March 2005 and 24 March 2005

Legal Issues

  1. 1 ["Whether the evidence was capable of supporting a finding that the defendant had a lawful excuse within s 4(1) of the Inclosed Lands Protection Act 1901 (NSW) for entering the plaintiff's inclosed lands." 'Whether the Magistrate failed to give adequate reasons for finding that the defendant had a lawful excuse.' 'Whether time to institute the appeal should be extended where the summons was filed two days late.']

Ratio Decidendi

The appeal failed because there was evidence from which the Magistrate could find that Perras entered Mills' property in the belief that he was retrieving his german shepherd, Justice, and that this constituted lawful excuse; the Magistrate gave sufficient reasons for that finding, so no error of law was shown.

Court Disposition

Extension of time granted; appeal dismissed; Local Court decisions affirmed; summons dismissed; plaintiff ordered to pay defendant's costs as agreed or assessed.

Orders

  • ['The appeal is dismissed.' 'The decisions of his Honour Magistrate Gould dated 8 March 2005 and 24 March 2005 are affirmed.' 'The summons filed 7 April 2005 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]