Title of court: supreme court of the northern territory



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Further events

  1. A short time later, police arrived and were led by Mr Daffey into the Library. The magistrate made a finding that the appellant was at that stage eating hors d’oeuvres and mingling with his fellow literati.32 Police officers approached the appellant, stood either side of him and lightly took hold of his upper arms. One of the officers (the within respondent) informed the appellant that he was under arrest for trespassing and asked him to go with him outside. The appellant immediately fell to the ground and started screaming. The appellant yelled, “I’m allowed to be here. I’m a fucking poet. I’m a poet”.33 He continued in a very loud voice: “You cunts. I’m a fucking poet. Police brutality. I’m allowed to be here”. He repeated the same or similar statements. He latched onto a chair with his leg or legs. He kicked and flailed around. He created an unpleasant scene, with himself as a victim, most probably intending to embarrass the attending Police officers in front of the good burghers of Darwin. Police restrained the appellant, handcuffed him and escorted him through the Library to take him to a police van outside the Parliament House building.

  2. Even after the appellant had been placed in a police van outside the building, he yelled abusive and offensive language. At the Darwin watch house, he continued to swear and use offensive language. He called a female police officer or auxiliary at the front desk “a fat cunt that eats McDonalds all the time”.34 The magistrate took into account the appellant’s denials of such conduct as one of the matters on which he based his finding that the appellant was not a truthful witness.35

The magistrate’s decision

  1. In relation to counts 1 and 2, the magistrate accepted the evidence of Mr Daffey and the supporting evidence of Mr Skopellos. Moreover, his Honour relied upon his own careful assessment of the CCTV footage, noting its technical limitations, and concluded as follows:36

… I did see carefully the body language of the parties at the front of Parliament House. The body language of Mr Daffey was very neutral. He clearly is seen talking to the accused. He uses neutral hand gestures at all times, open handed. When he talked … to Mr Jenkins [he] was regularly gesturing for the exits, he is standing still or indeed, especially from about the tenth minute of the footage onwards, he is regularly retreating from Mr Jenkins and his language is consistent with a person who is endeavouring to defuse a situation and I note Mr Jenkins appears to be yelling at him. His [the appellant’s] body language is aggressive; his gesticulations are increasingly towards the face of Mr Daffey. He gets closer and closer and invades the personal space of Mr Daffey and I must say that I, when considering the cross examination of Mr Daffey, took great note of the footage and in no small part that gave me real comfort that Mr Daffey’s account was the truthful account and an honest account.

  1. The magistrate rejected the evidence of the appellant. He found that the appellant was an untruthful witness. He was satisfied that the appellant had screamed incoherently and loudly at Mr Daffey.37 He made a finding that the appellant had been repeatedly directed in plain language by Mr Daffey to leave Parliament House, but that he had repeatedly failed and refused to do so.38 On appeal, the appellant has not persuaded me that the magistrate’s findings were wrong.

  2. The magistrate made a finding to the effect that security guard Mark Daffey was acting on the authority (or with the authorisation) of the occupier when he directed the appellant to leave Parliament House, and that Mr Daffey “indeed may have been himself a lawful occupier at that time”.39 On that basis, the magistrate found the appellant guilty of the offence charged as count 1.

  3. In relation to count 2, the assault charge, the magistrate noted that he could actually see from the CCTV footage that the appellant’s hands were applied to the chest of Mr Daffey. The magistrate accepted Mr Daffey’s evidence as truthful.40 Moreover, his Honour was satisfied beyond reasonable doubt that the prosecution had disproved the defence of honest and reasonable but mistaken belief41 on the part of Mr Jenkins as to his entitlement to attend the Awards ceremony. The magistrate found that it was unreasonable for the appellant to continue to believe that he was entitled to attend after it had been carefully and patiently explained to him by Mr Daffey that the function was a private function and that the appellant was not invited.42

Consideration – count 1

  1. The elements of the offence charged as count 1 were as follows:

  1. The appellant trespassed on a place, Parliament House, Darwin;

  2. The appellant was directed to leave that place by security guard, Mark Daffey;

  3. Mark Daffey was an occupier of Parliament House, Darwin, at the relevant time;

  4. The appellant failed or refused to leave forthwith.

  1. For an offence charged contrary to s 7 Trespass Act, the prosecution must prove an antecedent act of trespass, in the sense that the offender must already be a trespasser before the direction to leave by an occupier can result in the commission of an offence through non-compliance with the direction.43

  2. The appellant lawfully entered Parliament House at or about 5.58 pm pursuant to an implied licence to do so, an implied licence in common with all members of the public. The appellant did not enter as a trespasser.44 However (leaving aside for present purposes the direction given to the appellant before 6.00 pm by Mr Daffey), the appellant’s implied licence entitled him to remain at Parliament House only until 6.00 pm. His licence was then exhausted. By not leaving Parliament House within a reasonable time after 6.00 pm, the appellant became a trespasser. In the case of the appellant, who was standing in the lobby just inside the entry point to the building, a ‘reasonable time’ was a very short time. It was not as though he had to walk all the way from the far end of the Main Hall, some distance from the exit.

  3. Alternatively to [55], after 6.00 pm, by not leaving Parliament House within a reasonable time of being directed to do so by Mr Daffey, an occupier, the appellant became a trespasser. As explained in [55], a ‘reasonable time’ was a very short time.

  4. It is difficult to state a precise time at which the appellant became a trespasser. If the fact situation in [55] applies, he became a trespasser at or before 6.01 pm. If the fact situation in [56] applies, then, having regard to the evidence of Mr Daffey and noting the times referred to in [25] and [27] at which further directions to leave were given, the appellant became a trespasser at or before 6.04 pm. This conclusion is supported by the fact that Mr Skopellos, in his phone call starting at 18:03:35, complained that the appellant would not leave the building.

  5. The prosecution thus established beyond reasonable doubt the antecedent act of trespass. Then, by evidence that Mr Daffey continued to request the appellant to leave the Parliament House building, the prosecution established the necessary element that at least one direction to leave was given after the appellant had become a trespasser.45 My reasoning in this respect is not identical with the magistrate’s reasoning, but is consistent with his Honour’s conclusions.46

  6. Pursuant to s 4(1) of the Trespass Act, an “occupier” of Crown land or land occupied by the Territory is “a person in charge of the land”, or an employee or other person acting under the authority of a person in charge.

  7. In relation to count 1, the respondent averred “that on the 29th May 2014, Security Guard Mark Daffey was an occupier of Parliament House in accordance with Section 4”.

  8. An averment in a complaint, that a person was at the relevant time an occupier within the meaning of s 4, is evidence of the fact so averred.47 The averment is prima facie evidence of the fact. The averment in this case was not conclusive evidence of the fact that security guard Mark Daffey was an occupier of Parliament House in accordance with s 4: “Whilst it constitutes evidence of that fact, that fact may of course be rebutted by evidence to the contrary.”48 However, if there were no contrary evidence, then the averment would, in effect, be conclusive.

  9. An employee of a security firm may be an “authorised person” for the purpose of the Legislative Assembly (Security) Act. That Act deals with security in the “Assembly Precincts”, which clearly include the Parliament House building. One of the categories of authorised persons under the Act is “a person, employed by a security firm within the meaning of the Private Security Act that is engaged to provide the services of crowd controllers in relation to the Assembly Precincts and who is directed by the security firm to provide the services of a crowd controller in relation to the Assembly Precincts and holds a crowd controllers licence within the meaning of the Private Security Act.” 49

  10. The Legislative Assembly (Security) Act makes provision for the public to be within the Assembly Precincts. Section 3(2) of the Act reads as follows:

(2) Except as provided in this Act, a person has a right to enter and remain on the Assembly Precincts, where there is room for the person on the Precincts, if the person:

(a) has a proper reason for being on or about the Precincts or has indicated that he or she wishes to see the proceedings of the Assembly; and

(b) has complied with the requirements, if any, of the Speaker or an authorised person.

  1. Michael Caldwell, Director of Security for the Legislative Assembly, was responsible for all security matters in relation to Parliament House.50 Wilson Security were the “contract security providers” for Parliament House.51 After Ms Derby spoke with Mr Caldwell on 29 May 2014 and requested that the appellant not be permitted to enter the library for the Awards ceremony that evening, Mr Caldwell spoke to Robert Daffey, the site supervisor for Wilson Security. Mr Caldwell instructed Mr Daffey that Mr Jenkins was “not welcome to enter or participate in the literary awards that night”, and that if he turned up after 6.00 pm, he should not be allowed into Parliament House. As a member of the public, Mr Jenkins was allowed to be in the building until 6.00 pm, after which time the building was closed to the public. The public are excluded after 6.00 pm.52

  2. The prosecution led evidence that security guard Mark Daffey worked for Wilson Security,53 but did not prove that Mr Daffey was an “authorised person”. Evidence was led that Wilson Security “ran the security service” for Parliament house, but the prosecution did not lead evidence that Wilson Security was a security firm within the meaning of the Private Security Act; that it was engaged to provide the services of crowd controllers in relation to the Assembly Precincts; that Mark Daffey (as an employee of Wilson Security) was directed by the firm to provide the services of a crowd controller in relation to the Assembly Precincts; or that Mr Daffey held a Crowd Controllers Licence within the meaning of the Private Security Act.54

  3. Although it was not proven that Mark Daffey was an authorized person for the purposes of the Legislative Assembly (Security) Act, the averment was prima facie evidence that Mr Daffey was an occupier, that is, a person in charge of Parliament House or a person acting under the authority of a person in charge of Parliament House. There was no contrary evidence in respect of the latter alternative. Indeed, the evidence disclosed that actions of security guard Mark Daffey in not permitting the appellant to enter or remain in Parliament house after 6:00 pm were in accordance with instructions given by Mr Caldwell, Director of Security at Parliament House. The fact averred was not displaced or rebutted by evidence to the contrary: there was no evidence to contradict the averred fact that security guard Mark Daffey was an occupier of Parliament House.

  4. All of the elements of the offence charged as count 1 were proven beyond reasonable doubt. The offence was a regulatory offence,55 and thus (subject to limited exceptions) the criminal responsibility provisions in Part II of the Criminal Code were not applicable.56 The Trespass Act provides a specific defence to a charge contrary to s 7 if a defendant proves that it was necessary to remain in or on the place concerned for the defendant’s own protection or the protection of some other person, or because of some emergency involving the defendant’s property or the property of some other person.57 However, the defence was not raised and it is hard to see how the appellant could have availed himself of such a defence.

Consideration – count 2

  1. In order to have found the appellant guilty of the charge of assault contrary to s 188A(1) Criminal Code in the circumstances of the present case, the magistrate had to be satisfied beyond reasonable doubt of the following elements:

1. The appellant applied force to Mark Daffey without his consent.58

2. The appellant intended to apply force to Mr Daffey.59

3. Mark Daffey was working in the performance of his duties at the time the appellant applied force to him.

  1. In my judgment, and consistent with the magistrate’s finding of guilt, the prosecution proved beyond reasonable doubt that (1) the appellant in pushing Mr Daffey applied force to Mr Daffey, clearly without Mr Daffey’s consent, and (2) the appellant intended to push Mr Daffey and thereby apply force to him. The appellant’s motive was clear: he wanted to get past Mr Daffey in order to go to the Library and attend the Awards ceremony. The push was no accident, nor was it force “used for and … reasonably needed for the common intercourse of life”.60 Moreover, there is no doubt that Mark Daffey was working in the performance of his duties at the time the appellant pushed him: he was at work, in working hours, wearing his uniform and lawfully doing what he had been instructed to do by his superior, who in turn had received an instruction from the Director of Security responsible for all security matters in relation to Parliament House.

  2. Further, for the reasons stated by the magistrate and referred to in [52] above, his Honour properly found that the prosecution had excluded beyond reasonable doubt any defence under s 32 Criminal Code of honest and reasonable but mistaken belief on the part of the appellant.

Appellant’s grounds and arguments – denial of procedural fairness

  1. The appellant complains that he was denied procedural fairness by the magistrate in the court below.

  2. The appellant firstly contends that the magistrate would not allow him to cross-examine Mark Daffey by reference to the CCTV footage, to show the witness the CCTV footage in the same way as the prosecutor had shown Mr Daffey the CCTV footage when leading his evidence-in-chief. However, the appellant’s contention is generally not supported by the transcript of proceedings. So, for example, when the appellant commenced to cross examine Mr Daffey, he said to the magistrate, “I would like to play the CCTV footage so I can guide Mr Daffey through the CCTV footage, please”, to which the magistrate responded, “Please play the CCTV footage”. A short while later, the magistrate observed/remarked, “It’s being played now”, and then, “We’re playing it now from the beginning. All right. Yes it’s now being played.”61 The transcript does not record any protest from the appellant at that point to the effect that the CCTV footage was not being played. A reading of the whole of the appellant’s cross-examination of Mr Daffey indicates references to the CCTV footage being played (and stopped) on more than 15 occasions.62 On two, possibly three, of those occasions, the magistrate refused to allow the replay to be stopped, but it appeared that his Honour subsequently relented.63

  3. On the hearing of the appeal, the appellant contended that the magistrate had not stopped the footage replay once during the whole of the appellant’s cross examination of Mr Daffey.64 I reject that contention. It misrepresents the reality. When I pointed out to the appellant that his contention was contrary to the transcript, in that the transcript showed that on multiple occasions the replay of the CCTV footage was stopped at his request, and he was able to ask questions of Mr Daffey, the appellant interrupted me angrily. When I attempted to inform him (at his request) of the relevant transcript references, he said:65

Mr Barr, I was there for a hundred and so many days, I was there every day, trying to get justice, I was there. So don’t tell me what happened, because I was there. I’m not wasting my time here, if you don’t want to give me justice, I will go through the Court of Appeal. I don’t care, you know”.

  1. I am satisfied that the appellant did not suffer any injustice and certainly no substantial injustice as result of the magistrate refusing (on a limited number of occasions) to stop the replay of the CCTV during the appellant’s cross-examination of Mr Daffey.

  2. The appellant also contends that the magistrate would not permit him to give his evidence in chief by reference to CCTV footage.66 He claimed that he was “just rushed through it”. I reject this contention. The magistrate said nothing about whether the appellant could or could not utilise CCTV footage in giving his evidence. While it is true that the appellant did not utilize the CCTV footage in giving evidence, it appears that he elected not to do so. At the start of his evidence, just before being sworn, the appellant said, “I mean, I’m just going to lead out what I recall that night”.67 After being sworn, he gave an almost uninterrupted monologue. When he turned to give evidence about the events which took place shortly after his arrival at Parliament House, he described the conversations he alleged had taken place between himself and Mr Daffey and Mr Skopellos. At one stage, as the appellant was demonstrating what he was doing while standing in the Parliament House lobby, he said:68

Okay. Well I’m trying to – I mean I can show you on the CCTV footage, but we’ve seen it, okay, so this is – I – I’m walking back and forth, I’m going there and just going like that.

  1. The statement extracted in the previous paragraph – “I can show you on the CCTV footage, but we’ve seen it …” is a clear indication that the appellant was aware that he could give evidence with reference to a replay of the CCTV footage, but that he decided not to do so. Moreover, there is no indication in the transcript that the appellant asked the magistrate for the CCTV footage to be played during his evidence in chief, or that any such request was refused.

  2. In the appellant’s written submissions filed in this Court on 15 January 2016, he complains or submits that the prosecutor deliberately did not lead him through the CCTV footage (in cross-examination), and asks this Court to speculate on the reasons. I decline to so speculate. The prosecution case had closed and the appellant was therefore giving evidence with full knowledge of the evidence already led against him. The prosecutor could have utilized the CCTV footage (or parts of it) in his cross-examination of the appellant, but there was no requirement for him to do so.69

  3. The appellant also complains that CCTV evidence was allowed, even though there was no audio; that the magistrate found that appellant was yelling (screaming incoherently and loudly) in the absence of any audio; and that the CCTV footage was faulty (a reference to the ‘staccato’ effect where the footage was not continuous film but rather a series of photo images taken at intervals of approximately one second). As to the first two of these complaints, the magistrate was able to take into account all the evidence, and, as he did on one or more occasions, compare the soundless CCTV footage and images with the evidence of the witnesses (including the appellant), to assist him in making his factual findings. As to the third complaint, the magistrate made findings taking into account the technical inadequacies of the CCTV footage, as described in [49] above. No error has been made out.

  4. The appellant also complains that the evidence of the witness Mark Daffey was given more weight than it deserved, in circumstances where it was not corroborated. In fact, the evidence of Mr Daffey was corroborated, in that it was supported by the oral evidence of Mr Skopellos and by the CCTV footage. The appellant made submissions at various times during the appeal hearing to the effect that Mr Daffey was an unreliable witness. I remarked on that in [21] above. However, it is clear from the magistrate’s approach to the assessment of the evidence of all witnesses, and in particular the assessment of the conflict between the evidence of Mr Daffey and the evidence of the appellant, that his Honour gave careful consideration to the evidence of Mr Daffey before not only preferring Mr Daffey’s evidence to that of the appellant but being satisfied beyond reasonable doubt that Mr Daffey’s evidence was true. No error has been made out.

  5. The appellant’s remaining arguments can be listed as follows:

  • Because he was excluded from court and confined to the vulnerable witness room, the case against him was effectively heard ex parte.

  • Subpoenas he filed with the court were not issued and subpoenaed documents were not produced.

  • Witnesses proposed to be called in the defence case did not attend court.

  • Bias on the part of the magistrate because of previous personal dealings; magistrate made derogatory comments during the proceedings.

  • Magistrate refused to allow the appellant to make submissions in relation to the Police Administration Act, the Private Security Act and the Anti-Discrimination Act.

  1. In relation to the contention that the case was heard ex parte, the only time the prosecution case was actually heard ex parte was during the evidence in chief of Mark Daffey, when the appellant removed himself from the courtroom. The magistrate had come very close to having the appellant placed in custody if he refused to sit quietly during the evidence, and the appellant proposed that he sit outside. He explained his upset thus: “I can’t stand someone lying about my life. I hate it when people lie about my life. Do you understand?”70 The magistrate was entitled to proceed without the appellant being present,71 and he did. Further, it is apparent from the appellant’s submissions to the court on a later occasion that he had listened to the audio recording of the evidence of Mr Daffey. It is fair to conclude that he had access to the evidence which had been heard in his absence.72 I am satisfied that the appellant did not suffer any injustice and certainly no substantial injustice as a result of removing himself from the courtroom.

  2. I turn to consider the appellant’s contention that his confinement to the vulnerable witness room on occasions meant that the proceeding was effectively conducted in his absence. The appellant was removed from the courtroom to the vulnerable witness room on three occasions: 5 February 2015, 6 February 2015 and 23 February 2015.73 On each occasion the appellant had engaged in unruly or disruptive behaviour and on each occasion the appellant had first been cautioned about his behaviour and warned of the consequences. Notwithstanding that he was in the vulnerable witness room, the appellant was able to see, hear and participate in the proceeding. On a few occasions, the appellant was placed on mute, at the direction of the magistrate, to prevent his potentially disruptive utterances having an adverse effect on the proceedings in the courtroom.

  3. It should be borne in mind that a court may order an accused person to be removed from the courtroom (and may direct the trial to proceed in his absence) if the accused “so conducts himself as to render the continuance of the proceedings in his presence impracticable”.74 The use of the vulnerable witness room adopted by the magistrate was an appropriate response in the circumstances, permitting near full participation (depending on the appellant’s conduct), a more considered response than complete exclusion. While it may be that the appellant suffered a very limited forensic disadvantage while in the remote witness room, it was a disadvantage that he brought on himself. I am satisfied that the appellant did not suffer any injustice and certainly no substantial injustice as result of his being placed in the remote witness room.

  4. I turn to consider the complaints that subpoenas (summonses) filed with the court were not issued, that subpoenaed documents were not produced, and that witnesses proposed to be called in the defence case did not attend court. These complaints can be conveniently dealt with together.

  5. On the first day of the appeal hearing in this matter, I referred the appellant to his submissions, and to the first heading “Unable to call witnesses”. I gave the following explanation to the appellant:

Normally if your ground of appeal was that you were unable to call witnesses, I would expect you to say in a couple of lines exactly what witnesses you weren’t allowed to call and what they would have said, what you anticipate they would have said, and how that disadvantaged you.

  1. However, the appellant would not tell me the names of the witnesses he said he was unable to call. He instead complained angrily that I had not read his very lengthy handwritten submissions.75 I persisted in my efforts to have the appellant identify the witnesses that he had been unable to call.76 He eventually told me the name of a watch house sergeant, someone whose evidence was not relevant to any of the charges on which the appellant had been found guilty.77 When I questioned the relevance to the appeal of the evidence of that witness, the appellant became upset and angry. I then adjourned to enable the appellant to consider his position and identify the witnesses whom he contended he had been unable to call.78 When the appeal hearing resumed, the appellant sought to explain that his ground of appeal was that he was unable to call any witnesses at all, not that he was unable to call particular witnesses.79 As the appellant put it:80

Like, do you understand what I’m trying to say? I can’t call any. I was denied calling any witnesses. I couldn’t even have a case.

  1. The appellant’s statement was untrue. The appellant had called four witnesses.81 However, I persisted some more. When I asked, for a fifth or further time, the names of the witnesses the appellant had wanted to call but was unable to, he told me the following:82 Head Librarian (name not given), John McRoberts (former Police Commissioner, but no explanation given as to relevance), Graham McKenzie (no explanation given as to relevance), Lynette Loos (no explanation given as to relevance), Rob Inda Smith (no explanation given as to relevance), numerous people wandering in and out of Parliament House shown on CCTV footage (no specific explanation given as to relevance), and the bald or shaven headed male at the Parliament House counter (apparently relevant, but not identified).83

  2. With reference to all witnesses other than the persons identified in the previous paragraph as ‘Head Librarian’ and the bald or shaven headed man, the appellant has failed to satisfy me that their absence resulted in any injustice or substantial injustice.

  3. With reference to the person identified in [87] as ‘Head Librarian’, I am satisfied that the appellant wished to call Patrick Gregory as a witness. Mr Gregory was said to have been Emma Derby’s superior at the Northern Territory Library. When the appellant was pressed by the magistrate on 28 November 2014 in relation to the documents the appellant wanted to be produced for the trial, the following exchange took place:84

HIS HONOUR: Okay, just listen to my question. What other materials do wish to summons?

MR JENKINS: I need to summons library information from the NT Library on it being a public event and also communications between the library staff and the security there which obviously made the situation. …

HIS HONOUR: What documents do you need to summons?

MR JENKINS: Documents from the NT Library literary awards.

HIS HONOUR: What documents?

MR JENKINS: They’re my entry forms … and my emails that they say were offensive, the original things - the reason that they’re saying I can’t go into the awards, because that’s what they’re basing their case on.

  1. The documents which the appellant initially wanted to obtain from the Head Librarian did not expressly include documents relating to the authority of Emma Derby to confine the list of invitees so as to exclude the appellant from the Awards ceremony. Rather, they related to Ms Derby’s reasons for excluding the appellant from the Awards ceremony. However, the reference to documents “on it being a public event” might have caught, in the trawl, documents relating to Ms Derby’s authority to exclude the appellant from the Awards ceremony.

  2. The appellant did not contend at any time that he was personally invited to the Awards ceremony. Rather he claimed that it was an ‘open event’ for which he did not need an invitation. He said, “I mean everybody is invited to the event, it’s an open event, it’s not an invited event.”85 This claim was contrary to the evidence of Ms Derby, the event organizer, that it was an invitation-only event. Further, the unchallenged evidence of Ms Derby was not only that she did not invite the appellant, but that she directed that he not be permitted to attend.86

  3. When the appellant cross examined Ms Derby, he did not ask any questions to suggest that she did not have authority to exclude him (or any other member of the public) from the Awards presentation ceremony. So, for example, he cross-examined Ms Derby as to previous dealings between them;87 as to (her concern about) the possibility he might attack one or more of her former library colleagues;88 that there were “other organisers who actually got involved in the event”, namely, the NT Writers Centre, with which the appellant said he was closely involved;89 a media release which appeared in the Centralian Advocate,90 and as to whether the document said anything about the need for invitations to attend the Awards presentation;91 that the Literary Awards were “part of the thing called Word Storm” (to which Ms Derby replied that the Literary Awards ceremony was a stand-alone event);92 that the purpose of the Literary Awards ceremony was to gather people together to celebrate being writers;93 that the Literary Awards were advertised in a document published by the Writers Centre;94 that the Library’s media releases were controlled by the Department of Arts and Museums media team;95 that a document relating to the 2013 Literary Awards did not specify the need for an invitation;96 that the entry form for the 2014 NT Literary Awards (competition) did not say that a person had to be invited to go to the Awards presentation ceremony;97 that the appellant had never previously been invited but had nonetheless attended the Literary Awards presentation ceremony without being stopped;98 as to whether an invited guest might bring an accompanying person;99 as to the witness’s knowledge of the appellant’s “altercations with the Council” over the previous year;100 as to the content of the emails relating to the rejection of the appellant’s entry into the Literary Awards;101 as to the content of Ms Derby’s communications with Mr Caldwell prior to the event;102 and as to what it was about the appellant’s emails which led Ms Derby to request that the appellant not be permitted to attend the Awards presentation.103

  4. On the appeal hearing, when it was pointed out to the appellant that he had not challenged Ms Derby’s authority to exclude him from the Awards presentation ceremony, the appellant said that he expected that Patrick Gregory would appear as a witness and that he would have challenged Ms Derby’s authority through his cross-examination of Mr Gregory.104 It is possible that the appellant had that expectation.105 On 24 March 2015, the appellant caused a summons to witness to be issued to Mr Gregory, requiring his attendance in court on 27 March 2015 at 10:00 am. Mr Jenkins then purported to serve a copy of that summons by leaving it under the front door of Parliament House on 24 March 2015.106 As mentioned in [10] above, the Northern Territory Library is located within Parliament House.

  5. On 27 March 2015, the summary prosecutor read out in court a letter sent to him by Mr Caldwell107 on 24 March 2015:

At approximately 3:45 pm this afternoon, Mr Jenkins placed the four attached documents under the front door of Parliament House. In an effort to avoid any further delays, the following information108 [is provided] for your consideration: the documents were not served in accordance with the Legislative Assembly (Powers and Privileges) Act. The documents were served to a person and no privilege service was requested or acknowledged.

  1. Although the transcript is difficult to follow, it appears that the prosecutor, after reading the passage from Mr Caldwell’s email extracted in the previous paragraph, ceased to read from the email and informed the court, “I do not intend to call the summons to appear to Mr Patrick Gregory as that would not be in accordance with the Legislative Assembly (Powers and Privileges) Act”.109 It is therefore tolerably clear that the reference by Mr Caldwell to the “four attached documents” was a reference to several summonses issued by the appellant, one of which was addressed to Patrick Gregory.

  2. The appellant’s attempt to serve Mr Gregory with a summons thus failed. The Legislative Assembly (Powers and Privileges) Act,110 prohibits a person from serving, or tendering for service, a court summons within the precincts of the Legislative Assembly without the express permission of the Speaker or the Deputy Speaker. The Act relates to the powers (other than legislative powers), privileges and immunities of the Legislative Assembly, its members and officers. It would appear that the legislative purpose of the Act is to make the precincts of the Legislative Assembly a ‘no-go zone’ for service of process, irrespective of the identity of the person to be served, and even if that person is not a member or officer of the Legislative Assembly.

  3. It seems unjust that the appellant’s attempt to effect service on an officer of the Northern Territory Library was frustrated or thwarted by the Legislative Assembly (Powers and Privileges) Act, simply because the Northern Territory Library was co-located in the Parliament House building with the Legislative Assembly.

  4. However, the extent of injustice to the appellant has to be assessed by reference to the relevance of the evidence Patrick Gregory might have given. It appears from the transcript that the prosecutor had obtained a statement from Mr Gregory, which was made available to the appellant. However, the appellant refused to take it, saying it was not relevant. The appellant did not

  5. dispute the prosecutor’s in-court statement to that effect.111 The transcript indicates that the appellant wanted Mr Gregory to be called as a witness, and would not be happy with anything less than that.

  6. The appellant clearly wanted to ask questions of Mr Gregory, but was unable to articulate the evidence he expected to lead from him.112 After hearing from the appellant, the magistrate determined that Patrick Gregory was not a material witness. The exchange between the appellant and the magistrate went as follows:113

HIS HONOUR: How is he a material witness?

MR JENKINS: He would have been given at that time – she just can’t unilaterally on the thing, she could say – what are the laws that they’re saying – you’re saying these – these emails are offences [offensive], I mean even me not getting into the literary awards by [my] entry I’m challenging that whole thing, so – so the – the whole point would be why weren’t the entries accepted, can you actually apply for those entries to be accepted, what’s the process of doing that, why shouldn’t I be accepted in the literary awards. I’m going to talk about that because that’s going to be my – my primary defence in – in being on I’m being discriminated against in the first instance.

HIS HONOUR: Well you don’t know what he’s going to say, you’re just fishing, so ---

MR JENKINS: No, I’m not, I’m not fishing, Mr Thing (sic).114

HIS HONOUR: I don’t regard him as a material witness either.

  1. The appellant was clearly fishing, and in the wrong pond. Based on what he said to the magistrate, the appellant wanted to examine or cross-examine Mr Gregory on an entirely irrelevant matter: the reason the appellant’s entry to the Literary Awards had been rejected. This was consistent with his exchange with the magistrate extracted in [88] above.

  2. Although it would not usually be appropriate to speculate in the absence of evidence, for present purposes I will speculate in the appellant’s favour that Mr Gregory would have given evidence that he did not approve, or agree with, the decision made Ms Derby, the event organizer, to exclude the appellant from the Awards ceremony.

  3. However, even those assumed facts do not assist the appellant. His difficulties were with Mark Daffey, who (for the purposes of the trespass charge, count 1) was an occupier. Mr Daffey had no relevant direct connection with the Library. He was a frontline soldier in a chain of command of which the Speaker of the Legislative Assembly was ultimately the commander-in-chief. Higher up that chain of command, between Mr Daffey and the Speaker, was Mr Caldwell, Director of Security for the Legislative Assembly and the person responsible for all security matters in relation to Parliament House and its precincts.115 Mr Caldwell was also an authorized person under the Legislative Assembly (Security) Act.116 Whatever Ms Derby’s authority to exclude the appellant from the Awards ceremony may have been, the appellant was still answerable to the Parliament House security staff, whose task it was to screen (admit or not admit) and manage (permit to stay or require to leave) visitors to Parliament House after the building had ceased to be open to the public after 6.00 pm. Evidence was led before the magistrate sufficient to establish beyond reasonable doubt that Parliament House was closed to the public after 6:00 pm.117 It was also proven beyond reasonable doubt that Mark Daffey had received an instruction from his superiors not to permit the appellant to enter Parliament House after 6:00 pm. Mr Daffey was not acting capriciously. The appellant was not entitled to fail to cease to trespass, or to resort to self-help by assaulting Mr Daffey, because he disagreed with a decision to exclude him from the Awards ceremony. The prosecution of the appellant in the court below was not a Commission of Inquiry into whether the NT Library or one of the Library staff members was justified in excluding the appellant from the Awards ceremony or in requesting that the appellant not be permitted to enter Parliament House to attend a Library function.

  4. For reasons explained in [100] and [102], I agree with the magistrate’s assessment that Mr Gregory was not a material witness. The appellant has failed to establish that the absence of Patrick Gregory resulted in any or any substantial injustice to him.

  5. I turn to consider the absence of another witness, the bald or shaven headed man first referred to in [26] above. The CCTV footage showed him present at the Parliament House front counter from 18:02 to 18:11. He was present for most of the time during which the appellant was found to have screamed incoherently and loudly at Mark Daffey. There was no evidence that the man was still present at the time of the assault at 18:13:40. After the appellant’s own evidence had been completed, discussion took place before the magistrate in relation to a man named Robert Graham.118 It appears that the appellant had made enquiries as to the identity of the bald or shaven headed man, and had been provided with the name ‘Robert Graham’. The prosecutor informed the court that the appellant had provided that name but that police enquiries had failed to locate the man. The prosecutor then informed the court that he had searched the email portal for all Northern Territory Government employees and that he had found a ‘Robert Graham’, a subcontractor working for NEC Australia. The prosecutor informed the court that he had then spoken with that Robert Graham, and had been informed by him that he did not attend the relevant event, and that he had had no dealings with Mr Jenkins. The appellant then insisted, apparently in relation to Robert Graham, that he had served a summons for his attendance.119 I note, however, that the bundle of copy summonses admitted as evidence on appeal did not include any summons to Robert Graham.120

  6. If the identified Robert Graham’s communication to the prosecutor (as to his having had no dealings with the appellant) were true, then he was probably not the bald or shaven headed man shown in the CCTV footage. That man remained unidentified.

  7. The magistrate considered the absence of the witness in his ex tempore reasons for decision:121

I must also say issues of material witnesses have been raised. I have heard throughout the course of the hearing prosecutor’s explanations as to why some witnesses were not brought. I have watched the footage of the transaction – the assault on Mr Daffey. Persons come in and out of the screen at various times and indeed Mr Jenkins talked to some of those persons. The reality is that the police have endeavoured to find that person sought by Mr Jenkins. He was named by the prosecutor. They made reasonable efforts. It does not appear to me that he was available to be called. [italic emphasis added]

I also note that he was not there during the entire transaction. The footage largely speaks for itself. I can see no injustice here and I do not regard this as a – This is a summary matter where significant efforts of the investigation of the matter have been made, the matter has been properly investigated. Mr Jenkins has been thoroughly the subject of disclosure by the prosecutor ad nauseam. He has had a number of adjournments. He is aware of the use of summonses. He has used them. He has called witnesses. He has cross-examined witnesses. I have clarified some matters in fairness to him and have endeavoured to assist him.

I do not regard any unfairness having been occasioned in this regard in the way the matter has been prosecuted.

  1. As a general principle, a prosecutor has an obligation to call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. Such witnesses include the eyewitnesses of any events which go to prove the elements of the crime charged.122 If the prosecution fails to call a witness whom the trial judge or magistrate considers ought to be called, then in order to ensure a fair trial, that judicial officer may invite the prosecution to reconsider whether the witness ought to be called. If the invitation is declined and the judicial officer remains of the same view, then it may well be appropriate to comment upon the failure of the prosecution to call the witness. A jury, or a judicial officer sitting alone, may take into account the fact that a potentially important witness has not been called in determining whether the prosecution has proved its case beyond reasonable doubt.

  2. However, a prosecutor is relieved of the obligation to call a witness who, after relevant enquiry, is not identified. Such a witness is not ‘available’.

  3. Whatever deficiencies there may have been in the attempts made to identify and locate the male eyewitness, it is not appropriate to now speculate as to the evidence which the absent witness might have given. The magistrate’s task was to consider the actual evidence. His Honour’s observation that the CCTV footage “largely speaks for itself” was apposite to the appellant’s observable actions in relation to both the trespass charge and the assault charge. Although (without audio), the CCTV footage was not so probative of the element of the trespass charge requiring proof that verbal directions to leave Parliament House were given to the appellant after he had become a trespasser,123 there were nonetheless several relevant images of Mr Daffey pointing towards the exit, apparently directing the appellant to leave the building. The combination of this evidence and other evidence accepted by the magistrate was compelling.

  4. It is clear from the remarks extracted in [106] that, in determining whether the prosecution had proved its case beyond reasonable doubt, the magistrate considered the fact that an eyewitness had not been called, but that his Honour was nonetheless satisfied beyond reasonable doubt.

  5. The appellant has not established injustice or substantial injustice as a result of the unidentified witness not having been called.

  6. I mention finally the last two dot point sub-paragraphs in [80] above. The second last made assertions of bias on the part of the magistrate because of previous personal dealings, and also that the magistrate made derogatory comments during the proceedings. The applicant has established neither of those assertions. I reject also the remaining complaint, that the magistrate refused to allow the appellant to make submissions in relation to the Police Administration Act and the Private Security Act. The appellant was permitted to cross examine the two security guards in relation to the Private Security Act and the Code of Practice124 applicable to them. The appellant also cross examined the police witnesses in relation to their powers under the Police Administration Act.

  7. In relation to the Anti-Discrimination Act, the magistrate for good reason held that this legislation was irrelevant. The appellant’s exclusion from the Awards ceremony had nothing to do with discrimination against him on the ground of any of the “attributes” set out in s 19 Anti-Discrimination Act. Mr Jenkins did not cross examine Ms Derby to suggest that she had wrongfully discriminated against him on the ground of any statutory attribute.125 Mr Jenkins attempted to argue on appeal that the Anti-Discrimination Act was triggered because the people who excluded him thought he was mentally ill.126 However, there was no evidence to support that argument. Moreover, the Anti-Discrimination Act provides its own remedies, which do not include recourse to self-help or assault. Even if there had been a breach of the Anti-Discrimination Act, such breach would not provide a defence to the charges of which the appellant was convicted.


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