Jenkins v Todd  NTSC 4 PARTIES: JENKINS, Trevor v TODD, Walter TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION FILE NO: JA 10 of 2015 (21425645) DELIVERED: 21 January 2016 HEARING DATES: 10, 29, 30 and 31 December 2015, 15 and 20 January 2016 JUDGMENT OF: BARR J APPEAL FROM: COURT OF SUMMARY JURISDICTION CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Trespass Act s 10 – appellant convicted of offence being a trespasser in Parliament House, failing or refusing to leave when so directed by the occupier – complainant averred that security guard an occupier – averment prima facie evidence of the fact – no contrary evidence – antecedent act of trespass established – all other elements of the offence proven beyond reasonable doubt – appeal dismissed. CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Criminal Code s 188A(1) – appellant convicted of offence of assault against worker in the performance of his duties – all elements of the offence proven beyond reasonable doubt – appeal dismissed. CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Police Administration Act s 158 – Appellant convicted of offence of resisting member of Police Force in the execution of his duty – police member arrested appellant in purported reliance on s 10 Trespass Act – no mandatory warning given to appellant of consequences of failing to leave premises forthwith – arrest not lawful – not proven beyond reasonable doubt that appellant resisted police member in execution of duty – appeal allowed – guilty finding quashed. CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Appellant alleged denial of procedural fairness – appellant claimed he was denied access to replaying CCTV footage in giving evidence in chief – trial transcript showed no restrictions – appellant placed in vulnerable witness room to prevent his disrupting hearing – no substantial injustice – appellant failed to demonstrate denial of procedural fairness – appellant also claimed magistrate erred in placing weight on CCTV which was video-only – magistrate assessed video evidence with other witnesses’ evidence – appellant failed to demonstrate error – appeal dismissed. CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – SELF-REPRESENTED LITIGANTS – Appellant found by magistrate to have been untruthful – problem of assessing merits of appeal submissions in relation to facts in evidence and claims of procedural unfairness in court below. Anti-Discrimination Act s 20(1), s 28
Criminal Code(NT) s 22, s 26(1)(d), s 187(a)(e), s 188A(1), s 188(2)(b), s 361(2)
Justices Act s 177(2)(c)
Legislative Assembly (Powers and Privileges) Act s 8(a)
Legislative Assembly (Security) Act s 5(1)(f)
Police Administration Act s 123, s 158
Private Security Act s 7
Trespass Act (NT) s 4(1), s 7(1), s 9(1), s 10, s 11(1), s 12(a), s 13(2), s 14(a).
Northern Territory Law Reform Committee, Trespass Act, Report No. 38, April 2013. Barker v The Queen (1983) 153 CLR 338; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (971) 127 CLR 106; Jambajimba v Svikart (1984) 71 FLR 287; Julius v Bishop of Oxford (1880) 5 App Cas 214; Step v Hinton  NTCA 3; Ward v Williams (1955) 92 CLR 496, cited.
Ashley v Millar  NTSC 63; Majindi v Balchin  NTSC 40; Whitehorn v The Queen (1983) 152 CLR 657, considered. Cintana v Burgoyne  NTSC 106, referred to. REPRESENTATION: Counsel:
Appellant: In person
Respondent: R Murphy Solicitors:
Respondent: Murphy & Associates Judgment category classification: B
Judgment ID Number: Bar1601
Number of pages: 56
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT DARWIN Jenkins v Todd  NTSC 4
No. JA 10 of 2015 (21425645)
BETWEEN: TREVOR JENKINS
Appellant AND: WALTER TODD
Respondent CORAM: BARR J REASONS FOR JUDGMENT (Delivered 21 January 2016) Introduction
This appeal hearing demonstrated the difficulties of doing justice in the case of a self-represented appellant who demands to be tolerated and understood, perhaps even indulged, as a homeless man without resources, but who has an extraordinary sense of entitlement, is obsessed with his perceived artistic and literary greatness, arrogant and unreasonable, extremely disrespectful to the Bench, untruthful in his statements from the Bar table, unreliable and selective in his submissions, and given to vituperative outbursts when questions were asked of him which exposed flaws in his arguments.
The appellant believes that he is a misunderstood genius: “I’m a genius, you know, and so people can’t handle that.”1 On another occasion: “I’m not a legend for nothing … I’m one of the greatest artists and greatest thinkers in this Territory. I am. If you don’t like it, well, shove it up your arse. That’s all I can fuckin’ say.”2
After the second day of the appeal hearing, the appellant resisted the adjournment of the hearing to the following morning, on the stated basis that he did not wish to be rushed.3 He also said he did not trust the typed transcript of proceedings in the court below, and wanted this Court to listen to the audio tapes (in full, presumably). Part of his submission then went as follows:4
People are so intimidated by my intelligence and my genius, that there’s a problem, you know. And you’re nice and conservative, that’s great. Well I’m not a conservative. I’m a radical, I’m gonna change things, and I’m an artist, you know. And you’re not going to stand over me, okay. No way. I won’t be here. So put another date because I won’t be here, Mr Barr. And what are you gonna do, arrest me? You can’t, okay? So I won’t be here. Do what you wanna do. When the appellant was informed that his adjournment application was refused, and that, if he did not attend the following day, the Court would hear the submissions of the respondent’s counsel and assume that the appellant had abandoned any further opportunity to participate, the appellant informed the court that his mother had died. The following exchange took place:5
MR JENKINS: I’ve said to you – no, no. My mother died. I have to go to a funeral, so I won’t be here, okay?
HIS HONOUR: When did your mother die, Mr Jenkins?
MR JENKINS: Last night. So I won’t be here. I’m going to a funeral.
HIS HONOUR: And where will the funeral be?
MR JENKINS: In Sydney
HIS HONOUR: I see. Have you booked a ticket to go to the funeral?
MR JENKINS: I might not even go, Mr Barr. I’m mourning, you know. I might not even go. But I have a private life that I want to deal with. I’ve spent all my time over Christmas time and I’m sick and tired of this, okay? I’m sick and tired of this.
HIS HONOUR: Very well.
Mr JENKINS: Do you care? No, you don’t care. You don’t care about personal life. You just care about pushing someone and pushing someone and pushing someone, until you get the result you want. Because you don’t want to listen, you know. …
MR JENKINS: You want to draw your own conclusions. That’s not gonna happen to me. It’s not gonna happen, you know. I’m here for a reason. Jesus has got me here for a reason: to get in your face and to make sure this changed. I’m sick of it mate. I’m not scared. I’m not scared of you people. I’m not, you know.
HIS HONOUR: Mr Jenkins, you don’t have to come back tomorrow. It’s a matter for you, but if you don’t come back tomorrow, I will simply assume that you do not wish to make any further submissions in relation to your appeal ---
MR JENKINS: So you don’t care my mother’s died, Mr Barr? Wouldn’t give a damn. Wouldn’t give a damn.
HIS HONOUR: I’m not going to engage with you about that. But as you say, you may or may not go to her funeral, so I just don’t know the situation at all.
MR JENKINS: Oh well, I will go to the funeral. Now can you give me an adjournment? Where am I gonna get the money from, Mr Barr? I mean, how do I know? You don’t even want to engage, really, do you? ---
HIS HONOUR: Mr Jenkins, could I just ask you this? Whereabouts is your mother’s funeral taking place?
MR JENKINS: I’m just trying to prove a point, Mr Barr, that you couldn’t give a fucking damn about me, you know. You couldn’t give a fucking damn. And you don’t care.
HIS HONOUR: Very well. No, I haven’t closed my mind to this. Whereabouts is your mother’s funeral taking place tomorrow?
MR JENKINS: As far as I know, she’s still alive, Mr Barr, you know. The appeal hearing resumed the following morning and the appellant was in attendance. The appellant made no further mention of his mother.6
The point of the foregoing is not to demonstrate the appellant’s character deficiencies or manipulative tendencies, but rather to illustrate the difficulties in assessing, on appeal, the merits of the appellant’s submissions about the facts in evidence and his claims of procedural unfairness in the court below. Where a self-interested advocate has no professional ethical standards, everything said should be taken with caution, yet the possibility of some proper legal ground of appeal cannot be overlooked. In the circumstances, I was considerably assisted by the able submissions of Mr Murphy, counsel for the respondent.
A further difficulty in this appeal, specifically the appeal against conviction on count 3 (which was ultimately decided on technical grounds), was that the appellant said that he did not want the guilty finding against him to be set aside on technical grounds; he wanted his “legal points” addressed.7
Appellant’s convictions in the Court of Summary Jurisdiction On 27 March 2015 the appellant was found guilty of three charges, two on complaint and one on information, as follows: On 29 May 2014, trespassed on a place, namely Parliament House Darwin, and after being directed to leave that place by the occupier, namely Security Guard Mark Daffey, failed and refused to do so forthwith, contrary to s 7(1) of the Trespass Act [count 1];
On 29 May 2014, at Darwin, did unlawfully assault a person, namely Mark Daffey, who was working in the performance of his duties at the time of the assault, contrary to s 188A(1) and (2)(b) of the Criminal Code [count 2];
On 29 May 2014 at Darwin did resist a member of the Police Force in the execution of his duty, contrary to s 158 of the Police Administration Act [count 3]. For the trespass offence, the appellant was convicted and sentenced to carry out 50 hours of community work. He was also ordered to pay a $150 victim assistance levy. For resisting police, he was convicted and sentenced to carry out 50 hours of community work, and to pay a $150 victim assistance levy. For the assault, he was convicted and sentenced to 26 days imprisonment, backdated by 26 days to reflect time spent in custody on remand.
For reasons which follow, I propose to allow the appeal in part. The finding of guilt and consequent conviction on count 3 should be quashed, and the appellant found not guilty on that count.8 However, with respect to counts 1 and 2, I affirm the magistrate’s findings of guilt and convictions.9
Background The Northern Territory Literary Awards (“the Awards”) are presented annually to the winning entry in each of six categories of literature: short story, poetry, travel short story, essay, youth creative writing and play script. The Awards are a Northern Territory Government program, in collaboration with Charles Darwin University, and with the sponsorship and support of a number of other organisations. The Awards are administered by the Northern Territory Library. In 2014, the announcement of the winners and presentation of awards took place at a ceremony (“the Awards ceremony”) held at the Northern Territory Library, Parliament House, in the evening of Thursday 29 May 2014.
The Northern Territory Library occupies a significant area within Parliament House. In order to gain access to the Library, a member of the public must enter through the front door of Parliament House, pass through the security station, proceed into the Main Hall of Parliament House, and then turn into the Library premises. The front door security station screens all persons who enter Parliament House through the front door, whether they are going to the Legislative Assembly, Parliamentary or Ministerial offices, the Library or to the café.
Emma Derby, the Assistant Director of the Northern Territory Library, was the organiser of the Awards. The appellant’s entry to the Awards was rejected by Ms Derby, for reasons not presently relevant.10 Because the appellant then continued to communicate by email with the Library, and the meaning of those emails was unclear, Ms Derby formed the view that the appellant would try to attend the Awards ceremony and disrupt the event.11 Whether that view was right or wrong was ultimately irrelevant, both to the magistrate’s findings and to the appeal. The Awards ceremony was an invitation-only function. Ms Derby was the organizer of the function. She issued the invitations. She invited sponsors, VIPs, judges and entrants. She did not invite the appellant.12 Further, because Ms Derby apprehended that Mr Jenkins would attempt to attend and disrupt the function, she asked Mr Caldwell, Director of Security for the Legislative Assembly and the person responsible for all security matters in relation to Parliament House, to direct security staff not to allow the appellant to attend the ceremony.13 Mr Caldwell in turn passed on the instruction to Robert Daffey, the contracted security provider’s site supervisor.
On Thursday 29 May 2014, from about 5.30 pm, security guard Mark Daffey was on duty at the Parliament House front door security station. A second security guard, Alex Skopellos, was working with him at the same location. Parliament House was closed to the general public after 6.00 pm.14
The offending The appellant desperately wanted to attend the Awards ceremony. He considered that he was entitled to attend. As he modestly stated in one of his many interjections before the learned magistrate, “I am a great writer, I am a great artist and I am allowed to go to the literary awards”.15
On 29 May 2014, shortly before 6.00 pm, the appellant arrived at the main entrance to Parliament House, and entered the building. He was almost immediately informed by security guard Mark Daffey that it was six o’clock and that the building was closed to the public. When Mr Daffey first spoke to the appellant, it was not yet six o’clock, but for reasons I explain in - below, that is not relevant. Mr Daffey had been informed by his supervisor on commencement of his shift that the appellant might arrive that evening, and that, if he did, he was to be told that the function in the Library was invitation only and that the appellant was not allowed to enter.16 It is clear from Mr Daffey’s evidence that he informed the appellant accordingly.
The appellant did not accept Mr Daffey’s statement. He replied to the effect that he was a writer and that the function was open to the public.17 Mr Daffey repeated that he had been given instructions that it was an invitation only event and that the appellant was not to go inside. The appellant ignored Mr Daffey and walked towards the doorway of the metal detector. Mr Daffey then stood barring the appellant’s way. A stand-off occurred for more than 13 minutes. Mr Daffey said that, during that time, the appellant was “just completely going on”, asserting that he was a writer and telling Mr Daffey that he could not deny him entry to the building. Mr Daffey repeatedly asked the appellant to leave the building. The appellant kept telling Mr Daffey that he was going to enter the building. The appellant stepped closer to Mr Daffey and Mr Daffey kept informing the appellant to step back and to leave the building. With reference to a particular segment of CCTV footage which he viewed while giving evidence, Mr Daffey identified a point where he again informed the appellant that the building was closed to the public and that he had been informed by his supervisor that Mr Jenkins was not allowed into the Library.18 The appellant’s tone of voice was loud and aggressive. Mr Daffey identified in further viewing the CCTV footage a point where the appellant became increasingly aggressive, and his voice louder.19 Mr Daffey also identified a point where he raised his hand and told the appellant once again to leave the building.20 Mr Daffey told the appellant to leave the building more than 10 times.21 The appellant then went around to a gate to the right side of the x-ray machine, leading into a restricted area where security guards worked. Security guard Alex Skopellos prevented the appellant passing through that gate into the security area. The appellant then tried to go through a white gate on the left side of the metal detector whereupon Mr Daffey put his hand on the gate to stop the appellant and told him once again to leave the building.22
At that point, the appellant told Mr Daffey defiantly that Mr Daffey would not stop him coming through, that he (the appellant) was going to the Literary awards. The appellant said, “You can’t stop me”. The appellant’s demeanour was very aggressive and he was speaking very loudly, getting very close to Mr Daffey. Mr Daffey told Mr Skopellos to ring the police. The appellant then went around to the side of the metal detector doorway, into a space between the right upright of the doorway and the x-ray machine, pushed Mr Daffey out of his way,23 and continued through into the Library area of the building.
CCTV evidence One of the video surveillance files contained in Exhibit P6 was labelled “Trevor Jenkins – Concourse.wmv”. The area the subject of surveillance shown in that footage was the lobby area of Parliament House, where the entry security station was set up. The times I now mention reflect the 24-hour times shown on the CCTV.
By 17:58:48, the appellant had arrived and walked through the front door of the building. He was carrying bags in both hands, which he placed into the x-ray machine.
At the appeal hearing the appellant said (whether by way of submission, or in attempting to give evidence from the Bar table) that he had already been in the building for about five minutes when he was shown apparently arriving at 17:58 or thereabouts.24 He also claimed that he had entered through a door other than the door through which the CCTV showed him having entered, and indeed claimed that there was no entry door where the CCTV showed him having entered. The point of the appellant’s submission was unclear. The appellant submitted that it showed Mark Daffey to have been unreliable.25 The submission actually highlighted the appellant’s own unreliability. When I asked the appellant whether he had given evidence himself or cross-examined any witnesses to the effect that he had been in the building already for five minutes at the time he was shown apparently entering through the allegedly non-existent door, he became very angry. He ultimately conceded that the point was of no relevance.26
I summarise below my observation of the CCTV footage from 17:59:10.
At 17:59:10, a security guard with a short pony tail (Mark Daffey) stood in front of the metal detector doorway, blocking the appellant from passing through. The appellant was approximately one metre away from Mr Daffey and appeared to be gesticulating and pointing with his left hand, presumably in the direction of the Library where he wished to go.
At 18:00:05, the appellant had not passed through the metal detector. As mentioned above, Parliament House was closed to the public after 6.00 pm. As a member of the public, the appellant had no right to be in the building at 18:00:05. Even if the appellant had entered into the Parliament House building prior to 6.00 pm, as a member of the public he had no right to remain within the building after that time.
For the next minute, until 18:01:10 the appellant appeared to be in conversation with Mr Daffey (consistent with him stating his perceived entitlement to enter further within). On three or possibly four occasions, Mr Daffey pointed towards the front door with his right arm extended (consistent with his directing the appellant to leave the building).
At 18:01:10, or very shortly afterwards, the appellant turned away from Mr Daffey and went towards the x-ray machine where, after some fumbling around, he retrieved a pen and some papers, possibly a pad, which he brought back to the security guard. He then appeared to make notes.
At 18:02:12, Mr Daffey again pointed towards the front door, as if directing the appellant to leave. The appellant stood in front of Mr Daffey, with the papers or pad in his left arm, pen in right hand, making some notes and engaging in further conversation. By this time, a bald or shaven headed man wearing a shirt and tie had entered the building and was standing about three or four metres away, at the counter to the right hand side of the x-ray machine as one enters the building. Meanwhile, the appellant appeared to continue his conversation with Mr Daffey, still holding his papers in his left hand and pen in right hand and making a note or notes from time to time.
At 18:03:52, Mr Skopellos picked up a telephone and appeared to make a phone call. Mr Skopellos continued using the telephone until 18:06:40. Based on other evidence, he made a call to the Emergency number and was then put through to Police. The Police CAD Log indicated that the call came through at 18:04:01.27 A recording of the call was tendered.28 During the call, Mr Skopellos made a complaint that the appellant (whom he identified as “trash man Trevor”) would not leave the building. Mr Skopellos said that the appellant was “carrying on” and “going off”. A raised voice or raised voices could be heard in the background at times during the recording. I noted from the CCTV footage that, at 18:04:02 through to 18:05.10, the appellant appeared very agitated in his conversation with Mr Daffey. The audio recording of the phone call is therefore consistent with the CCTV footage, and both the recording and the CCTV footage support the evidence given by Mr Daffey and Mr Skopellos.
At 18:06:13, the appellant turned away from Mr Daffey and walked over to the counter area where the bald or shaven headed man was still standing. He appeared to engage that man in conversation. Mr Daffey advanced a pace or two from where he had been previously standing, and appeared to be observing the appellant and the other man.
At 18:06:45 or thereabouts, the appellant walked back to his bag, where he did something briefly before then returning to where Mr Daffey was standing. The appellant then appeared to engage Mr Daffey in further conversation.
At 18:07:25, Mr Daffey pointed towards the exterior of the building, with his left arm raised and extended. The appellant remained in front of him, gesticulating with his left arm (still holding his papers) and also with his right arm.
At 18:07:58, Mr Daffey having first pointed across his body with his left arm, raised his right arm and pointed in the direction of the front door (consistent with requesting or directing the appellant to go outside). The appellant continued to stand his ground, gesticulating at times very vigorously (for example, at 18:08:00), particularly with his right arm. He also raised his left arm, still holding his papers, pointing towards the entry door.
At 18:09:09, the appellant turned away from the security guard, in the direction of the x-ray machine. He then walked around the feeder shelf of the x-ray machine, back to the counter where the bald or shaven headed man was standing. At 18:09:19, he walked around to the right hand side of the man. He then appeared to engage with the second security guard, Mr Skopellos.
At 18:09:27, the appellant appeared to speak to the bald or shaven headed man, pointing to the papers the appellant was holding.
At 18:09:39, the appellant walked back to Mr Daffey, who was still blocking the appellant’s entry to the metal detector doorway and the main part of the building. The appellant appeared to engage Mr Daffey in further conversation, demonstrating the same or very similar body movements (gesticulating and pointing) as he had displayed earlier.
At 18:10:41, the appellant made some further notes. Then, at 18:10:49 he turned away again, and started to return to the counter on the right hand side of the feeder shelf for the x-ray machine, where the bald or shaven headed man was still standing. However, at 18:10:55, just before the appellant arrived back at the point where the bald or shaven headed man was standing, the man opened up the counter and went through to the other side. Mr Skopellos then closed the counter after the man. The man then disappeared from view.
At 18:11:08, the appellant opened the counter and proceeded to walk beyond it, into the security area where there was a bench or shelf of some kind. However, at 18:11:14, Mr Skopellos walked towards the appellant and the appellant retreated to the public side of the counter, closing the counter top after him.
At 18:11:21, the appellant returned to where Mr Daffey was standing, still blocking the appellant’s way through the metal detector. They appeared to converse again, with the appellant gesticulating and pointing with his right hand, in which he was still holding the pad or papers.
At 18:11:57, the appellant turned around and walked in the direction of the entry door to the building. It appeared that he was going outside. He temporarily disappeared from view, to the far top right of the camera picture. However, he re-entered the scene a very short time later (at 18:12:03) and once more walked up to Mr Daffey. Further conversation apparently ensued. The appellant again appeared to refer to the papers he was holding.
For a short time after that, the appellant paced around, out of view or partially out of view, obstructed by the metal detector doorway. At 18:13:07, he returned to the feeder shelf for the x-ray machine. He leaned into the x-ray machine, before again walking up to Mr Daffey at 18:13:26.
Just before 18:13:36, the appellant went around the right hand side of the metal detector doorway, that is, entered without passing through the security doorway itself. He came into view again at 18:13:36. Mr Daffey stood in his way. The bodies of the two men were very close. The security guard’s right arm was visible. At 18:13:37, the bodies of the two men were even closer. At 18:13:39, the faces of the security guard and the appellant appeared very close to one another.
At 18:13.40, the appellant appeared to push the security guard with his right arm to the guard’s chest area, while the appellant was moving slightly to his left. At 18:13:41, both the appellant’s arms were outstretched and extended in the direction of the guard, touching his shoulder and/or his raised forearm, completing the apparent push.
During the appeal hearing, Mr Jenkins submitted that he had not pushed Mr Daffey and that the CCTV evidence did not show any push. He further submitted that the CCTV frame at 18:13:41 showed that he was on his knees praying, adding that he was a Christian.29 I have carefully considered that submission. It is true that the one framed image of the appellant, taken from an overhead camera, and isolated from the whole sequence of which it forms part, is consistent with him genuflecting with his arms outstretched in an act of adoration. However, I am satisfied beyond reasonable doubt, consistent with the conclusion of the learned magistrate, that the CCTV frame at 18:13:41 showed the completion of the appellant’s action in pushing Mr Daffey. Moreover, the possibility that the appellant might have delayed his forced entry into the inner areas of Parliament House and taken the time to get down on his knees and pray, is not a reasonable possibility. Therefore, for a combination of reasons, I reject the appellant’s submission.
At 18:13:42, the appellant had disappeared out of camera range in the direction of the Parliament House Main Hall. At 18:13:49, Mr Daffey walked behind the counter, where Mr Skopellos was again speaking on the phone.
Throughout the stand-off with the appellant, Mr Daffey appeared to remain calm. Although he stood in the appellant’s way, he did not display any aggressive gestures. The appellant said in evidence that Mr Daffey was “deliberately standing so that I can’t get through the gate”. That was accurate. The appellant said that he found this confronting.30 It is clear that the appellant became frustrated and angry. The magistrate’s ex tempore reasons included findings that the appellant became increasingly aggressive, angry, screaming and yelling, and that he invaded Mr Daffey’s private space.31 On appeal, the appellant has not established that any of those findings was wrong.
The CCTV, even without audio, clearly demonstrated the appellant’s persistence in his attempts to penetrate past the front door security.