Title of court: supreme court of the northern territory


Conviction for resist police



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Conviction for resist police

  1. As foreshadowed in [10] above, there are legal difficulties with the finding of guilt and conviction on count 3. Although there is no doubt that the appellant resisted police members, and here I refer to the facts summarised in [47] above, the issue on appeal is whether he resisted a member of the Police Force in the execution of his duty.

  1. A police officer is not acting in the execution of his duty in taking a person into custody, or maintaining or enforcing the custody of a person, if that person has not been lawfully apprehended. Any conduct in furtherance of an unlawful apprehension is unlawful.127 Therefore, if the apprehension of the appellant had not been lawful, the appellant’s resisting police would not have been unlawful, and the finding of guilt and conviction could not stand.

  1. The respondent had several options when he and Constable Humphreys approached the appellant in the Library. The appellant had shortly before committed the trespass offence contrary to s 7(1) of the Trespass Act, and an unlawful assault on Mark Daffey. The respondent was lawfully entitled under s 123 Police Administration Act to arrest the appellant and take him into custody without warrant on the basis of the respondent’s belief on reasonable grounds that the appellant had committed those offences, and/or that he was committing a continuing offence of trespass.128

  2. The respondent could also have arrested the appellant in accordance with s 10 Trespass Act, which reads as follows:

10. Power of removal

Where a person fails or refuses to leave a place after being directed to do so under section 7 … , a member of the Police Force may warn that person of the consequences of not leaving the place forthwith and, if the person fails to leave forthwith –

(a) arrest the person without warrant to be further dealt with according to law; or

(b) without arrest but by force if necessary, remove the person and the person's property (if any) from that place.

  1. Although s 10 Trespass Act says that “a member of the Police Force may”, ‘may’ in the context means ‘must’, in the sense that the Police must give a preliminary warning.129 Therefore, the power under s 10(a) to arrest a person who is continuing to trespass is subject to the condition precedent that the member of the Police Force must first warn the person of the consequences of his not forthwith leaving the place on which he is trespassing, and it is only when the person then fails to leave forthwith that the Police Officer has the power to arrest the person without warrant.

  2. My interpretation of s 10(a) Trespass Act is consistent with the decision of Mildren J in Cintana v Burgoyne,130 insofar as I have found that the word “may” confers a power to arrest a person which depends on the relevant warning having being first given. The interpretation of s 10 in Cintana was plainly correct. Section 10 is a classic Julius v Bishop of Oxford statutory provision.

  3. However, s 10 Trespass Act does not oust or prevail over s 123 Police Administration Act, in situations where the latter properly applies, because s14(a) Trespass Act provides: “Nothing in this Act shall … derogate from anything that a person is authorised to do by or under any other Act or law in force in the Territory.”131

  4. Although the respondent could have lawfully arrested the appellant (and not only for the trespass offence), utilising the power of arrest given by s 123 Police Administration Act, the respondent actually arrested the appellant for trespass pursuant to s 10 Trespass Act. I refer to the evidence extracted below:

Constable Walter Todd: “We went through to the library, located Mr Jenkins and informed him that he was under arrest …”.132

Constable Walter Todd: “… Under the Police Administration Act? You were trespassing under s 10 of the Trespass Act is what you were arrested for.133 … Mr Jenkins, in our approach to you we informed you that you were under arrest for trespass … Under the Trespass Act, s 10, you will find that you were placed under arrest. … We can arrest you. It is sections 7, 8 and 9. You will find that you were warned by the (inaudible). Under s 10 we can arrest you”.134

  1. Constable Chris Humphreys: “We located Trevor. We just grabbed Trevor gently on the arm basically on each side and Walter told him he was under arrest” … he [Walter Todd] said, “Trevor, you’re under arrest for trespassing”.135

  2. The respondent’s evidence clearly established that he arrested the appellant in purported reliance on s 10 Trespass Act, and not pursuant to s 123 Police Administration Act. That being the case, the arrest was not proven beyond reasonable doubt to have been lawful, because there was no evidence that the arresting police officer first informed the appellant of the consequences of his not leaving forthwith, and that the appellant then still failed or refused to leave, prior to his arrest. It follows that it was not proven beyond reasonable doubt that the appellant resisted a member of the Police Force in the execution of his duty.

Conclusion and orders

  1. The appeal is allowed in part.

  2. Pursuant to s 177(2)(c) Justices Act, I order that the finding of guilt and conviction on count 3 be quashed. I enter a verdict of not guilty to the offence charged as count 3. The orders that the appellant carry out 50 hours of community work and pay a $150 victim assistance levy are set aside.

  3. Pursuant to s 177(2)(c) Justices Act, I affirm the magistrate’s findings of guilt and convictions on both counts 1 and 2.

  4. I will hear the parties on the question of costs and other consequential orders.

  5. --------------------

1 Appeal Transcript 29 December 2015 p 130.

2 Appeal Transcript 30 December 2015 p 253.1.

3 Appeal Transcript 29 December 2015 p 128.9.

4 Appeal Transcript 29 December 2015 p 130.2.

5 Appeal Transcript 29 December 2015 pp 130.5 - 132.

6 In the Court of Summary Jurisdiction, Mr Jenkins had opposed a date being fixed for the adjourned hearing. He claimed that he would be unavailable, mentioning “family” and “funerals and different things”. When the magistrate asked if he had a funeral planned for the proposed adjourned date, the appellant replied in the affirmative. After further questioning by the magistrate and some prevarication on the part of the appellant, the appellant said he would be in Sydney to celebrate (commemorate) the death of his brother, who had died some years previously (Transcript 25 November 2014 p 86).

7 Appeal transcript 10 December 2015 pp 65 – 67. The appellant even strongly resisted making a submission in relation to s 10 Trespass Act: Appeal transcript 30 December 2015 pp 201 – 203.

8 Justices Act s 177(2)(c).

9 Justices Act s 177(2)(c).

10 The appellant’s entry was handwritten, whereas the conditions of entry (exhibit D4) required that all entries be typed and double spaced, on A4 pages. The appellant's entry was not very legible (transcript 23 March 2015 p 183.5). Additionally, the appellant did not specify the category in which his work was entered.

11 Transcript 23 March 2015 p 184. See also cross-examination at 194 - 195, leading to the tender of some emails as exh 9.

12 Transcript 23 March 2015 p 183.8. Ms Derby acknowledged in cross-examination at 191.2 that not everyone who went to the function would have had an invitation (“physical invite”). She rejected the proposition put to her in cross-examination at 191.8 that the appellant could have legitimately entered as the guest of an actual invitee, saying “Well no, because I asked Security not to let you in”.

13 Transcript 23 March 2015 p 184.2, evidence Emma Derby; Transcript 25 November 2014 pp 25 - 26, evidence Michael Caldwell.

14 Evidence Michael Caldwell, transcript 28 November 2014 p 27.1. Mr Caldwell was the Director of Security for the Legislative Assembly, Parliament House.

15 Transcript 25 November 2014 p 79.2.

16 Transcript 25 November 2014 p 75.3.

17 Transcript 25 November 2014 p 75.5.

18 Transcript 28 November 2014 pp 76.9 - 77.

19 Unfortunately, neither examining counsel nor the magistrate stated for the record the displayed time(s) at which the CCTV replay was paused and evidence given.

20 Transcript 28 November 2014 p 79.2.

21 Transcript 5 February 2015 p 12.2.

22 Transcript 28 November 2014 p 82.9. That action is shown in exh P6, the CCTV footage, ‘Trevor Jenkins – Concourse.wmv’ at 18:13:29.

23 Transcript 28 November 2014 p 83.9; transcript 5 February 2015 p 13.

24 Appeal transcript 29 December 2015 pp 56 – 58 and 63.

25 Appeal transcript 29 December 2015 p 65.

26 Appeal transcript 29 December 2015 at p 64.9. Mr Jenkins asked “How is it even relevant?”.

27 Exhibit D5.

28 Exhibit P7, File labelled P14127660 (807306).

29 Appeal transcript 30 December 2015 p 175.4.

30 Transcript 23 March 2015 p 235.8.

31 Transcript 27 March 2015 p 65.5.

32 Transcript 27 March 2015 p 63.8.

33 Transcript 23 March 2015 pp 205.9 - 206, evidence Constable Humphries.

34 Transcript 23 March 2015 p 207, evidence Constable Humphries.

35 Transcript 27 March 2015 p 64.1.

36 Transcript 27 March 2015 pp 62.9 – 63.4.

37 Transcript 27 March 2015 p 63.9.

38 Transcript 27 March 2015 p 67.4.

39 Transcript 27 March 2015 p 67.4.

40 Transcript 27 March 2015 p 68.4.

41 Criminal Code s 32.

42 Transcript 27 March 2015 p 69.3.

43 A matter commented on by the Northern Territory Law Reform Committee in its Report on the Trespass Act, Report No. 38, April 2013, pars 64 - 66.

44 Barker v The Queen (1983) 153 CLR 338 at 357, per Brennan and Deane JJ; cf. Step v Hinton [2012] NTCA 3 at [15].

45 Pursuant to Trespass Act, s 9(1), a direction to leave under s 7 may be given orally.

46 Transcript 27 March 2015 p 67.4.

47 Trespass Act, s 12(a).

48 Jambajimba v Svikart (1984) 71 FLR 287 at 291.9.

49 Legislative Assembly (Security) Act s 5(1)(f).

50 Transcript 28 November 2014 p 25.5.

51 Transcript 28 November 2014 p 26.2. See cross-examination at p 64.

52 Transcript 28 November 2014 p 27.1.

53 Transcript 28 November 2014 p 73.9 evidence of Mark Daffey.

54 See also the cross-examination of Mark Daffey at transcript 5 February 2015, p 36.

55 Trespass Act s 11(1).

56 Criminal Code (NT) s 22. Because s 30(2) Criminal Code did not apply, the prosecution did not need to prove beyond reasonable doubt that the appellant was not exercising an honest claim of right. Similarly, because s 32 Criminal Code did not apply, the prosecution did not need to prove beyond reasonable doubt that the appellant was not acting under an honest and reasonable but mistaken belief. Further, although s 26(1)(d) Criminal Code did apply [“An act, omission or event is authorised if it is done, made or caused ... (d) pursuant to authority, permission or license lawfully granted.”], the prosecution excluded beyond reasonable doubt a possible defence under that subsection by evidence that the appellant’s licence as a member of the public ceased at 6:00pm on the night, and that he had no other authority, permission or licence to remain beyond that time.

57 Trespass Act s 13(2).

58 Criminal Code s 187(a).

59 Criminal Code s 31(1). Not relevant in the present case is the statutory alternative to intent under s 31(2) Criminal Code, that is, that the appellant foresaw that his conduct would possibly result in the application of force to Mr Daffey, and an ordinary person similarly circumstanced and having such foresight would not have proceeded with that conduct. The preface to s 31(2) reads: “A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and the particular act, omission or event occurs ... ”.

60 Criminal Code s 187(e).

61 Transcript 5 February 2015 p 16.

62 Transcript 5 February 2015 pp 21.9, 24.1, 32, 33.7, 38.6, 39, 40, 43, 44, 46, 47, 50.1, 51.2, 52, 53.8, 55, 57, 60 and 64.

63 Transcript 5 February 2015 pp 35 (request for a second replay refused), 48, and 55 - 57. At p 57.3, his Honour said: “Go on sir, I'll allow you – you're quite right. I take your point. Ask questions about any point in the footage.”

64 Appeal transcript, 29 December 2015 p 28.8.

65 Appeal transcript, 29 December 2015 p 30.9.

66 Appeal transcript 29 December 2015 p 72.

67 Transcript 23 March 2015 p 231.9.

68 Transcript 23 March 2015 p 234.9.

69 Appellant’s handwritten submission (Document 39 in the Supreme Court file), numbered paragraphs 3 and 4.

70 Transcript 28 November 2014 p 81.

71 Criminal Code s 361.

72 Transcript 23 March 2015 p 235.6. The accused in giving evidence in chief acknowledged that he had listened to the evidence of Mr Daffey “in his evidence that I listened to upstairs …”.

73 See the respondent's amended Summary of Submissions dated 28 December 2015 par 4.2 to par 4.5 and the transcript references there footnoted.

74 Criminal Code s 361(2).

75 Appeal transcript 10 December 2015 p 11.

76 Appeal transcript 10 December 2015 pp 18.9, 19.8, 20.4 and 21.9.

77 Appeal transcript 10 December 2015 pp 22 - 26.

78 Appeal transcript 10 December 2015 pp 28.9, 29.8 and 30.2.

79 Appeal transcript 10 December 2015 p 32.2.

80 Appeal transcript 10 December 2015 pp 33.9 and 35.6.

81 Jack Charles Henderson, transcript 23 March 2015 p 283; Sandra Therese Thibedaux, transcript 27 March 2015 p 10; Elizabeth Knott, transcript 27 March 2015 p 22; Kim Gates, transcript 27 March 2015 p 27.

82 Appeal transcript 10 December 2015 starting at pp 36.8 - 41. The appellant addressed the magistrate on allegedly relevant witnesses not called on 23 March 2015 transcript pp 262 - 282.

83 The male referred to in [26], [28], [33] and [34], arguably a relevant witness to the offending charged as count 1.

84 Transcript 28 November 2014 p 11.5.

85 Transcript 23 March 2015 p 260.5.

86 See [11] above and footnote 9.

87 Transcript 23 March 2015 pp 184 – 185.

88 Transcript 23 March 2015 p 185.5.

89 Transcript 23 March 2015 p 186.4.

90 Exhibit D3.

91 Transcript 23 March 2015 p 186.8.

92 Transcript 23 March 2015 p 187.4.

93 Transcript 23 March 2015 p 188.3.

94 Exhibit D1; Transcript 23 March 2015 p 188.4 and 189.3.

95 Transcript 23 March 2015 p 189.6.

96 Exhibit D2; Transcript 23 March 2015 p 190.2. Ms Derby said she had no knowledge of the document, but noted that it related to the 2013 Literary Awards. Her observation was consistent with the words on the document “Issued 8:30 am, Wednesday 27 March 2013.” The appellant nonetheless contended that it was “from the 2014 Literary Awards”.

97 Exhibit D4; Transcript 23 March 2015 p 190.5.

98 Transcript 23 March 2015 p 191.1.

99 Transcript 23 March 2015 p 191.5.

100 Transcript 23 March 2015 p 192.4.

101 Transcript 23 March 2015 p 192.5. The second email sent by the appellant to Ms Derby was read into evidence by the witness at 194.6. The emails were tendered and the transcript at p 195 suggests they were marked exhibit 9. However, the exhibit was not entered into the List of Exhibits and appears to have gone missing. In terms of relevance of the lost exhibit, some indication appears at transcript p 194.6. When the appellant was pressed to explain the relevance of the emails at transcript 195.7, he said, “ … my main defence will be that I am being discriminated against under the Anti-Discrimination Act.”

102 Transcript 23 March 2015 pp 193 - 194.

103 Transcript 23 March 2015 p 194.

104 Appeal transcript 30 December 2015 pp 287.1, 288.7 and 314.7.

105 By reference to transcript 23 March 2015 pp 178 - 180, before Emma Derby gave evidence, it would appear that the appellant expected Patrick Gregory to be called.

106 Affidavit of Proof of Service sworn 24 March 2015, a copy of which is contained within Document 31 of the Supreme Court file, admitted into evidence on appeal by consent on 15 January 2016.

107 Director of Security, Parliament House.

108 The transcript of 27 March 2015 p 9, read: “after calling information”, which makes no sense. I have surmised that the statement by the prosecutor probably was “the following information” [is provided for your consideration], or words to that effect.

109 I observe that the summons had been issued by Mr Jenkins and was not actually the prosecutor’s to call.

110 Legislative Assembly (Powers and Privileges) Act s 8(a).

111 Transcript 23 March 2015, p 263. During the appeal hearing on 15 January 2016, Mr Jenkins in paragraph 4 of his submissions (Document 39) referred to and relied on transcript page 263. However, when it was pointed out to him that the transcript indicated that he had refused to accept a copy of the statement of Patrick Gregory, he claimed that the transcript was wrong, and/or that the prosecutor had lied. The appellant’s submission went on to suggest that he wanted the Court on appeal to review and compare every single page of transcript with each minute of the trial audio recordings.

112 Transcript 23 March 2015 p 263.4.

113 Transcript 23 March 2015 p 263.

114 The appellant adopted this disrespectful form of address on more than one occasion; see also transcript 23 March 2015 p 270.8.

115 Transcript 25 November 2014 p 25.5.

116 Transcript 25 November 2014 p 26.3.

117 See, for example, transcript 25 November 2014 p 27.1.

118 Transcript 23 March 2015 pp 270 - 271.

119 Transcript 23 March 2015 p 271.5.

120 Supreme Court document 31.

121 Transcript, 27 March 2015 p 69.7.

122 See, for example, Whitehorn v The Queen (1983) 152 CLR 657 at 675, per Dawson J.

123 See [57] above.

124 Exhibit D8.

125 It was not argued on appeal, but it is also most unlikely that the alleged discrimination was in one of the areas of activity referred to in Part 4 of the Act - see s 20(1) and s 28 Anti-Discrimination Act.

126 Appeal transcript 30/12/2105 p 246.5 .

127 Majindi v Balchin [2011] NTSC 40 at [7]; Ashley v Millar [2015] NTSC 63 at [3].

128 Here I use ‘trespass’ as shorthand for an offence contrary to s 7(1) Trespass Act.

129 Cintana v Burgoyne [2003] NTSC 106 at [8] – [10]; Julius v Bishop of Oxford (1880) 5 App Cas 214 at 225; Ward v Williams (1955) 92 CLR 496 at 505 – 507; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 – 135.

130 Cintana v Burgoyne [2003] NTSC 106.

131 Here I disagree, with respect, with the obiter dictum of Mildren J in Cintana v Burgoyne at [17]. His Honour there said that the general powers of a constable to prevent a breach of the peace had no application or operation in circumstances where s 10 Trespass Act applied. However, as was pointed out by the Northern Territory Law Reform Committee in its Report on the Trespass Act, Report No. 38, April 2013, par 39, his Honour did not take into account the effect of s14 Trespass Act.

132 Transcript 23 February 2015 p 52. 9.

133 Transcript 23 February 2015 p 62.8 (cross-examination).

134 Transcript 23 February 2015 p 62.9 to 63.2.

135 Transcript 23 March 2015 p 205.9.


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