Cole v Rigby - [2023] NTSC 20

CITATION:Cole v Rigby & Ors [2023] NTSC 20
PARTIES:COLE, David Alan
v

RIGBY, Kerry Leanne

And:
O’NEILL, Julie Ann

And:
CARTMILL, Robert

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 1 of 2023 (22134034)
LCA 2 of 2023 (22203951)
LCA 3 of 2023 (22205498)
LCA 4 of 2023 (22207025)

DELIVERED ON:  1 March 2023
HEARING DATE:  1 March 2023
JUDGMENT OF:  Grant CJ
CATCHWORDS:

Appeal not brought from a ‘conviction, order, or adjudication’ of the Local Court – Appeal dismissed.
Local Court (Criminal Procedure) Act (NT), s 163
Step v Atkins [2008] NTCA 5, applied.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent:  I Rowbottam
Solicitors:
Appellant:Self-represented
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Gra2304
Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cole v Rigby & Ors [2023] NTSC 20

LCA 1 of 2023 (22134034)
LCA 2 of 2023 (22203951)
LCA 3 of 2023 (22205498)
LCA 4 of 2023 (22207025)
BETWEEN:

DAVID ALAN COLE
Appellant

AND:

KERRY LEANNE RIGBY
First Respondent

AND:

JULIE ANN O’NEILL
Second Respondent

AND:

ROBERT CARTMILL
Third Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 1 March 2023)

The appellant is charged variously by information and complaint with a number of offences across four files. Those offences include three counts of unlawfully assaulting a police officer in the execution of his duty, three counts of engaging in conduct in contravention of a direction made by the Chief Health Officer, behaving in a disorderly manner in a public place, taking part in a riot, entering onto Aboriginal land without a permit to do so and breach of bail.
In the course of those criminal proceedings before the Local Court, the appellant raised a preliminary issue for determination. The appellant’s contention was that the Australian Constitution, the laws of the Commonwealth and the laws of the Northern Territory have no application to him as a ‘sovereign tribal man’. The appellant asserts that, as a consequence, the Local Court has no jurisdiction or power to hear and determine the charges which have been brought against him.
On 15 November and 6 December 2022, Judge Woodroffe of the Local Court conducted a hearing and received submissions on that preliminary issue. On 6 December 2022, Judge Woodroffe determined that he was bound by authorities from the High Court and this Court to the effect that indigenous Australians are subject to the laws of the Commonwealth, and the laws of the States and Territories in which they reside. As a consequence, the appellant’s application on the preliminary issue was dismissed.
By Notices of Appeal filed in this Court on 6 January 2023, the appellant seeks to appeal that decision on the basis that it is contrary to a number of other decisions of the High Court and inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.
By way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cole v Rigby

Details

AGLC: Cole v Rigby [2023] NTSC 20
Case: [2023] NTSC 20
Decision Date: 3 March 2023

CaseChat Overview and Summary

David Alan Cole has appealed a decision of the Local Court, which dismissed his claim that the Australian Constitution, the laws of the Commonwealth, and the laws of the Northern Territory do not apply to him as a "sovereign tribal man." Cole is charged with various offences, including assaulting police officers, engaging in conduct in contravention of a direction made by the Chief Health Officer, disorderly behaviour in a public place, participating in a riot, entering Aboriginal land without a permit, and breach of bail. Cole argued that the Local Court lacked jurisdiction to hear and determine the charges against him. The Local Court dismissed this contention, finding that the appellant was subject to the laws of the Commonwealth and the Northern Territory. Cole appeals this decision on the basis that it is contrary to other High Court decisions and inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.

The court considered whether the appeals could be brought under the Local Court (Criminal Procedure) Act 1928 (NT). Section 163 of that Act allows for an appeal to the Supreme Court from a "conviction, order, or adjudication" of the Local Court on a ground that involves sentence, or an error or mistake on the part of the Local Court. However, the court found that the appeals were from a ruling that was properly characterised as an interlocutory order, and not a final order determining the subject matter of the complaint. Therefore, the appeals did not fall within the scope of section 163 of the Act.

The court also noted that there is High Court authority to the effect that indigenous Australians are subject to the laws of the Commonwealth and the laws of the States and Territories in which they reside. The court found that the appellant would need to make good his contentions before the High Court if he is to succeed. Moreover, there is nothing in the Mabo v Queensland (No 2) (1992) 175 CLR 1, or the more recent High Court authorities referred to by the appellant, which would support the notion that Australian legislatures lack competence to regulate the rights of Aboriginal people, or that the laws enacted by those legislatures are subject to the acceptance, adoption, request or consent of an Aboriginal person to which they would otherwise have application.

The court dismissed the appeals, finding that they were not brought from a "conviction, order, or adjudication" of the Local Court in the relevant and necessary sense. The court found that the appeals were from a ruling that was properly characterised as an interlocutory order, and not a final order determining the subject matter of the complaint.

The court dismissed the appeals and found that they were not brought from a "conviction, order, or adjudication" of the Local Court in the relevant and necessary sense. The court found that the appeals were from a ruling that was properly characterised as an interlocutory order, and not a final order determining the subject matter of the complaint. Therefore, the appeals did not fall within the scope of section 163 of the Local Court (Criminal Procedure) Act 1928 (NT).

Orders