Barnes & Anor v Mackenzie [2008] NSWSC 455

Barnes & Anor v Mackenzie [2008] NSWSC 455

No error of law was established. Section 45B did not reverse the onus on whether signs were actually displayed. Because the power to erect notices under Forest Regulation 2004 cl 13 was subject to s 36A of the Forestry Act 1916, a prohibition had effect only while the relevant notice was erected or displayed. The Magistrate found as a fact that the notices were not in position when the defendant entered, so the cl 13(4) offences were not made out. The Magistrate's reasons for dismissing the obstruction allegation were adequate because he could not resolve the competing evidence beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
15 May 2008
Procedural Posture
Appeal From Local Court Pursuant to S 56 of the Crimes (appeal and Review) Act 2001 / Supreme Court Summons Seeking Review of Dismissal of Summary Proceedings
Outcome
Summons dismissed; plaintiffs to pay the defendant's costs of the proceedings, as agreed or assessed.
Legal Topics
['elements of Offence Under Forest Regulation 2004 Cl 13(4)' 'control Signs in State Forests' 'strict Liability' 'adequacy of Reasons' 'appeal on Question of Law Alone']
['criminal Law' 'forestry Regulation' 'appeal and Review'] ['elements of Offence Under Forest Regulation 2004 Cl 13(4)' 'control Signs in State Forests' 'strict Liability' 'adequacy of Reasons' 'appeal on Question of Law Alone']

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Procedural Posture

Appeal From Local Court Pursuant to S 56 of the Crimes (appeal and Review) Act 2001 / Supreme Court Summons Seeking Review of Dismissal of Summary Proceedings

Legal Issues

  1. 1 ['Whether s 45B of the Forestry Act 1916 reversed the onus of proof as to whether a sign or notice was erected or displayed.' 'Whether an offence under Forest Regulation 2004 cl 13(4) required a notice to be displayed at the time of entry into the forestry area.' 'Whether the Local Court gave adequate reasons for dismissing the informations.' 'Whether the prosecution proved the elements of the alleged obstruction offence under Forest Regulation 2004 cl 15(3).']

Ratio Decidendi

No error of law was established. Section 45B did not reverse the onus on whether signs were actually displayed. Because the power to erect notices under Forest Regulation 2004 cl 13 was subject to s 36A of the Forestry Act 1916, a prohibition had effect only while the relevant notice was erected or displayed. The Magistrate found as a fact that the notices were not in position when the defendant entered, so the cl 13(4) offences were not made out. The Magistrate's reasons for dismissing the obstruction allegation were adequate because he could not resolve the competing evidence beyond reasonable doubt.

Court Disposition

Summons dismissed; plaintiffs to pay the defendant's costs of the proceedings, as agreed or assessed.

Orders

  • ['Summons dismissed.' "The plaintiffs are to pay the defendant's costs of these proceedings, as agreed or assessed."]