NSW Police v Barker [2022] NSWLC 9

NSW Police v Barker [2022] NSWLC 9

Sequence 1 was not proved because the Court could not exclude the reasonable possibility that the defendant's evidence was true, including that the gate padlock was open, and therefore was not satisfied beyond reasonable doubt that an implied licence or implied consent to enter had been negated; alternatively, if the defendant bore the onus, he proved on the balance of probabilities that he had an implied licence at common law. The asserted claim of right and subjective belief in a leasehold interest did not provide separate defences, but that was unnecessary to the result. Sequence 3 was not proved because, on the defendant's account which might be true, the Court was not satisfied...

Jurisdiction
Australia
Judgment Date
05 December 2022
Procedural Posture
Criminal Proceedings for Enter Inclosed Lands, Intentionally or Recklessly Damage Property, and Intimidation / Contested Hearing Following Pleas of Not Guilty; Verdicts and Dismissal Orders
Outcome
All three sequences dismissed; verdicts of not guilty entered.
Legal Topics
['enter Inclosed Lands' 'implied Licence at Common Law' 'lawful Excuse' 'claim of Right' 'malicious Damage' 'intimidation' 'intent to Cause Fear of Physical or Mental Harm' 'proof Beyond Reasonable Doubt' 'single Witness Evidence' "accused's Evidence"]
['criminal Law' 'evidence' 'domestic and Personal Violence' 'property and Trespass'] ['enter Inclosed Lands' 'implied Licence at Common Law' 'lawful Excuse' 'claim of Right' 'malicious Damage' 'intimidation' 'intent to Cause Fear of Physical or Mental Harm' 'proof Beyond Reasonable Doubt' 'single Witness Evidence' "accused's Evidence"]

Case Brief

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Procedural Posture

Criminal Proceedings for Enter Inclosed Lands, Intentionally or Recklessly Damage Property, and Intimidation / Contested Hearing Following Pleas of Not Guilty; Verdicts and Dismissal Orders

Legal Issues

  1. 1 ["Whether the defendant had implied consent or a lawful excuse to enter the complainant's inclosed lands on 19 December 2021." 'Whether a claim of right defence was available in relation to the enter inclosed lands charge.' 'Whether the evidence proved that the defendant intentionally or recklessly damaged the window panel on 19 December 2021.' 'Whether the defendant intended to cause the complainant to fear physical or mental harm, including under s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007.' "Whether the defendant's conduct amounted to intimidation under ss 7 and 13 of the Crimes (Domestic and Personal Violence) Act 2007." 'Whether a claim of right defence was available in relation to the intimidation charge.']

Ratio Decidendi

Sequence 1 was not proved because the Court could not exclude the reasonable possibility that the defendant's evidence was true, including that the gate padlock was open, and therefore was not satisfied beyond reasonable doubt that an implied licence or implied consent to enter had been negated; alternatively, if the defendant bore the onus, he proved on the balance of probabilities that he had an implied licence at common law. The asserted claim of right and subjective belief in a leasehold interest did not provide separate defences, but that was unnecessary to the result. Sequence 3 was not proved because, on the defendant's account which might be true, the Court was not satisfied...

Court Disposition

All three sequences dismissed; verdicts of not guilty entered.

Orders

  • ['Sequence 1 is dismissed.' 'Sequence 2 is dismissed.' 'Sequence 3 is dismissed.']