Coulthard v Oberg - [2021] NTSC 20

CITATION:Coulthard & Ors v Oberg [2021] NTSC 20
PARTIES:COULTHARD, Corey

v
OBERG, Gregory
and
MARTIN, Kelton
v
OBERG, Gregory
and
SPLINTER, Quaide
v
OBERG, Gregory

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 18 of 2020 (21926267),
LCA 19 of 2020 (21928692) and
LCA 20 of 2020 (21926265)

DELIVERED:  25 February 2021
HEARING DATE:  22 February 2021
JUDGMENT OF:  Kelly J

CATCHWORDS:
Criminal Code Act 1983 (NT), s 43BD, s 43BD(1), s 43BD(2), s 43BD(3), s 43BD(3)(b), s 188A, s 200, Part IIA
Summary Offences Act 1923 (NT), s 47AA(1), s 47AA(3)
Youth Justice Act 2005 (NT), s 151, s 152(1), s 157
Browne v Dunn (1893) 6 R 67, referred to
REPRESENTATION:
Counsel:
Appellants:N Redmond
Respondent:  C Ingles
Solicitors:
Appellants:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Kel2109
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Coulthard & Ors v Oberg [2021] NTSC 20
No. LCA 18 of 2020 (21926267), LCA 19 of 2020 (21928692) and
LCA 20 of 2020 (21926265)

BETWEEN:

COREY COULTHARD

Appellant

AND:

GREGORY OBERG

Respondent

AND BETWEEN:

KELTON MARTIN
Appellant

AND:

GREGORY OBERG
Respondent

AND BETWEEN:

QUAIDE SPLINTER
Appellant

AND:

GREGORY OBERG
Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 25 February 2021)

On 1 June 2019 there was an incident at the Alice Springs Youth Detention centre (“the detention centre”) involving Corey Coulthard (“CC”), Kelton Martin (“KM”) and Quaide Splinter (“QS”), who were all detainees at the detention centre. In the course of that incident a number of youth justice officers were assaulted by detainees and, as a result, CC, KM and QS were charged with a number of offences.
On 18 August 2020 each of the appellants entered pleas of not guilty to those charges.
(a)CC pleaded not guilty to:
·     unlawfully assaulting Youth Justice Officer Bennett who was working in the performance of his duties, and who suffered harm (count 1);[1]
·     unlawfully assaulting Youth Justice Officer Hughes who was working in the performance of his duties, and who suffered harm (count 5); and
·     engaging in conduct with one or more other people which included a violent act and which was conduct that would cause anyone in the vicinity of reasonable firmness to fear for their safety (count 6).[2]
(b)KM pleaded not guilty to counts 5 and 6 above.
(c)QS pleaded not guilty to:
·     counts 5 and 6 above; and
·     threatening to injure or cause detriment to Youth Justice Officer Hughes with intent to prevent or hinder Youth Justice Officer Hughes from doing an act that Youth Justice Officer Hughes was lawfully entitled to do (count 4);[3] and
·     unlawfully assaulting Youth Justice Officer Bacon who was working in the performance of his duties, and who suffered harm (count 7);
On 25 August 2020, the learned trial judge found CC guilty of all three counts (1, 5 and 6); KM guilty of both counts (5 and 6); and QS guilty of all four counts (4, 5, 6 and 7). In summary, the trial judge found the facts to be as follows.
(i)A short time prior to the incident in question QS had threatened to assault Youth Justice Officer Bennett (uncharged).
(ii)Youth Justice Officer Hughes was the deputy superintendent of the detention centre and was responsible for the running of the detention centre at the time.
(iii)Youth Justice Officer Hughes approached QS and asked or directed him to accompany him to another area to talk about the threat to Youth Justice Officer Bennett.
(iv)QS took up a fighting, or otherwise threatening, stance and behaved in a threatening manner to Youth Justice Officer Hughes and other youth justice officers. (This may be the subject of count 4.)
(v)Youth Justice Officer Hughes used force against QS, resulting in them ending up on the ground and Youth Justice Officer Hughes restraining QS there, Youth Justice Officer Bacon assisted Youth Justice Officer Hughes in restraining QS on the ground.
(vi)Youth Justice Officer Hughes and Youth Justice Officer Bacon were justified in using force against QS.
(vii)The youth justice officers behaved with “incredible restraint” and used the minimum necessary force to passively restrain QS.
(viii)While on the ground, QS struggled in such a way that showed he was going to continue to be a risk to the youth justice officers, kicking wildly up and down with an attempt to strike the youth justice officers.
(ix)QS remained non-compliant and committed assaults upon Youth Justice Officer Hughes (count 5) and Youth Justice Officer Bacon (count 7), spitting, biting and kicking and threatened Youth Justice Officer Hughes. (This may be the subject of count 4.)
(x)QS yelled out to the others in an attempt to incite them to commit further assaults on the officers and not to prevent an assault on himself.
(x)CC and KM pushed past officers and kicked Youth Justice Officer Hughes in the face and body. (count 5)
(xi)Youth Justice Officer Bennett attempted to stop CC from approaching Youth Justice Officer Hughes and Youth Justice Officer Bacon and CC punched Youth Justice Officer Bennett on the jaw. (count 1)
(x)A hypothetical person of reasonable firmness in the vicinity would have feared for his or her safety. (count 6)
(xi)The appellants were not acting in self defence.
Each of the appellants has appealed against the findings of guilt on the grounds that the verdicts were unreasonable and not supported by the evidence, specifically because the trial judge:
(a)erred in finding that the youth justice officers were acting in the course of their duties; and
(b)erred in finding that defensive conduct was not available or had been rebutted.
The crux of the appeal is that the prosecutor did not tender at the trial any proof that the superintendent of the detention centre had delegated to the youth justice officers any of his powers and functions under the Youth Justice Act 2005 (NT) (“the Act”).
Section 151 of the Act provides:
Superintendent of detention centre
(1)     The CEO must appoint a public sector employee to be the superintendent for a detention centre.
(2)     The superintendent of a detention centre is responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre.
(3)   The superintendent of a detention centre:
(a)must promote programs to assist and organise activities of detainees to enhance their wellbeing; and
(b)must encourage the social development and improvement of the welfare of detainees; and
(c)must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise; and
(d)is responsible for the maintenance and efficient conduct of the detention centre; and
(e)must supervise the health of detainees, including the provision of medical treatment and, where necessary, authorise the removal of a detainee to a hospital for medical treatment.
Section 152(1) of the Act provides:
Powers of superintendent
(1) The superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions.
There follow a number of specific powers and limitations upon those powers. Relevantly, s 154(1) of the Act provides:
Use of force
(1) The superintendent of a detention centre or a person authorised by the superintendent may use force if the superintendent or authorised person believes on reasonable grounds that force is necessary to:
(a)prevent an imminent risk of a detainee:
(i)inflicting self-harm; or
(ii)harming another person; or
(iii)seriously damaging property; or
(b)prevent a detainee from engaging in conduct that would:
(i)endanger the safety of any person who is within the precincts of the detention centre, including the detainee; or
(ii)seriously threaten the security of the detention centre.
This power is subject to a range of restrictions and limitations that are not relevant to this appeal.
Section 157 provides (relevantly):
Delegation by superintendent
The superintendent of a detention centre may delegate in writing any of the superintendent's powers and functions under this Act to:
(a) a member of the staff of the detention centre;
Counts 1, 5 and 7
The respondent has conceded that the appeal in relation to these counts should be allowed. I concur.
Counts 1, 5 and 7 each charge that the relevant appellant unlawfully assaulted a nominated youth justice officer who was working in the performance of his duties, and who suffered harm. The elements of those offences are:
(a)that the appellant did the physical act said to constitute the assault;
(b)that the victim was a worker, in each case a youth justice officer; and
(c)that the victim was working in the performance of his duties.
The aggravating factor is that the victim suffered harm.
The appellants contend that the Crown failed to prove element (c) - ie that the victim in each case was working in the performance of his duties. The learned trial judge made the following findings in relation to that element.
From the evidence of Phillip Hughes it was clear that at the time he was clearly responsible for the running of the centre. He was responsible for the safety and wellbeing of detainees, responsible for imposing the rules and regulations of the centre and he was responsible for and exercising control over the other staff at the centre. My view, my inference of his evidence he was exercising the necessary powers to do so.
The other officers who gave evidence all gave evidence of being employed as youth centre youth justice officers. They had been employed for various times they were acting under Hughes at the time and they gave evidence of their training in relation to the proper use of force and specifically Maybo techniques in the force that was used.
The fact that the instrument[4] in writing delegation (sic) the superintendent’s powers to the officers in question particularly any document delegating Mr Hughes as the deputy superintendent acting as the manager of the centre. The fact that that document, or any document, that creates the power wasn’t tendered in evidence in my view doesn’t derogate from the Crown case that he was acting as the superintendent. At the time he had command and control of the officers and the detainees and it was not put or suggested that he hadn’t been properly placed in that position. He hadn’t had any powers of the superintendent delegated to him and similarly in relation to the officers who were obviously acting as officers in – with the essential powers to do their job.
It would seem to me the fact that formally in the Crown case the Crown didn’t produce the – any delegation of the powers that is under the Act. All the powers that the officers operate and use in the exercise of their duties come through the superintendent. So effectively everything they were doing at the centre there is done through that delegation of powers and to me it wasn’t suggested to them that they had no right – they weren’t in fact acting as lawfully empowered acting superintendent or deputy superintendent or acting in officers which obviously (inaudible) have to have the powers to tell detainees what to do, do everything else what you need to do in the running of the centre.
So I don’t find that the mere fact that there was no effective whatever the document is or however the superintendent does delegate. His powers, I presume there are various documents that cover various aspects of the power, but in my view that it wasn’t incumbent on the Crown in this case where there was no issue taken as to the positions of the relevant officers to provide formal documents delegating powers.
The appellants contend that, in so finding, the trial judge made the following errors. His Honour:
(a)misapplied the rule in Browne v Dunn;[5]
(b)made findings in the absence of evidence as to what duties the youth justice officers had;
(c)conflated two separate issues;
(i) what positions the youth justice officers had and what they were doing; and
(ii) what they were legally obliged and entitled to do; and
(d)did not address the requirement for authorisation of the use of force under s 154 of the Act.
These contentions are all interrelated and boil down to the simple proposition that the trial judge wrongly found that the Crown had proved element (c) - that the complainant in each case was working in the performance of his duties - in the absence of proof that the superintendent of the detention centre had delegated to those youth justice officers the powers and duties they were said to have been performing at the time and which were relied on to render their conduct lawful.
Misapplication of the rule in Browne v Dunn
The trial judge made no mention of the rule in Browne v Dunn. The essence of the appellants’ complaint is that the trial judge held that it was not incumbent upon the Crown to provide formal documents delegating powers where no issue was taken as to the positions of the officers and it was not suggested to them that they were acting unlawfully. This amounts to a suggestion that defence was required to challenge the witnesses in accordance with the rule in Browne v Dunn.
The appellants contend that this approach by the trial judge is not a proper application of the rule and is contrary to the presumption of innocence. In effect, the judge’s ruling creates a duty in the defence to point out deficiencies in the Crown case.
I agree with the appellants’ contention. The onus is on the Crown to prove each of the elements of the charge. There was no obligation on defence counsel to cross-examine the complainants in such a manner as to draw to the attention of the prosecutor any deficiencies in the Crown case. The question for the trial judge was whether the Crown had proved that the youth justice officers were acting in the performance of their duty at the time of the alleged offences.
No evidence of the duties and powers of the complainants
Counsel for the appellants points out, correctly, that no evidence of the powers and duties of the complainants was adduced at trial. Witnesses were asked about their understanding of their duties but that was not the question before the court.
The question was whether the complainants were in fact working in the performance of their duties which required proof of what those duties were and what powers they were lawfully exercising. Given the structure of the Act, set out above, that necessitated proof that the powers of the superintendent had been delegated to those officers. That, in turn, required proof of two matters: first that the complainants were youth justice officers, and second, that the powers relied upon to establish that the officers were working in the performance of their duties had in fact been delegated to them as youth justice officers. The officers gave oral evidence of the first matter (ie that they were youth justice officers); the Crown adduced no evidence of the second. The superintendent was not called to say that he had delegated those powers and no instrument of delegation was tendered.
Conflation of the issues
The appellants say that there was no challenge to the evidence that the deputy superintendent was in fact running the detention centre on the day in question or the positions held by the various witnesses. Counsel for the appellants contended that the positions held by the complainants and the actions they took are questions of fact on which they were able to give evidence. What was their lawful authority for what they did is a mixed question of fact (any delegation) and law (the legislative framework) on which they were not able to give evidence.
No proof of authorisation to use force
This contention by the appellants applies the above propositions directly to the issue of whether the Crown had proved that the complainants were authorised to use force. Force may only be used by the superintendent or those authorised by the superintendent to do so and no evidence was called that the complainants were so authorised. The superintendent was not called and no instrument of delegation/authorisation was tendered.
The appeal in relation to the convictions of the appellants on counts 1, 5 and 7 must be allowed on this ground. The trial judge erred in finding that the complainants were working in the performance of their duties as youth justice officers in the absence of any evidence that the superintendent had delegated his powers to the complainants or authorised them to use force. The failure by the Crown to tender the instrument of delegation means that the Crown failed to prove what the duties of each complainant were, whether they were acting within them, and whether they were acting lawfully.
It should be emphasised that this does not mean that the youth justice officers were acting unlawfully, as submitted by defence counsel at the trial and in written submissions on the appeal. It simply means that by neglecting to tender the instrument of delegation, the Crown failed to prove one element of the offences in counts 1, 5 and 7.
The appeal in relation to counts 4 and 6 require separate consideration.
Count 4
Count 4 was a charge of threatening to injure or cause detriment to Youth Justice Officer Hughes with intent to prevent or hinder Youth Justice Officer Hughes from doing an act that he was lawfully entitled to do.
The trial judge’s ultimate finding in relation to count 4[6] was:
… also it’s clear evidence that there were threats made by QS against Hughes to stop Hughes[7] doing what he was lawfully entitled to do. So I find that charge made also …
Unfortunately his Honour did not specify what words or actions of QS constituted the threats (plural) or what it was that Youth Justice Officer Hughes was lawfully entitled to do that those threats were intended to stop him from doing. Nor did the prosecutor in her closing address specify the acts or words relied on or what Youth Justice Officer Hughes was said to be lawfully entitled to do. There was evidence from Youth Justice Officer Hughes that, after QS was on the ground and he and Youth Justice Officer Bacon were trying to restrain him:
QS has continued to struggle. He has started to call out to the other youth saying – calling out things like, ‘Kick him in the fucken head. Get him, my chores (sic). Come on my brothers. Fuck up the officers. Fucken get them.’ He started threatening myself and my Joe, Bacon. ‘I’ll fucken get your family when I get out. I’m gonna fucken kill you. I’m gonna fucken kill your family. You’re both fucken dead. You know and threats along those lines. Or those are the threats I remember most clearly.
It is possible that count 4 was intended to be constituted by those verbal threats by QS which were intended to stop Youth Justice Officer Hughes from continuing to restrain him on the ground. If so, the Crown would have had to prove that Youth Justice Officer Hughes was lawfully entitled to restrain QS on the ground. That the prosecutor failed to do because she failed to prove that the superintendent’s power to use force had been delegated to Youth Justice Officer Hughes.
The difficulty with that hypothesis is that the trial judge did not mention those threats in the findings of fact which preceded his finding of guilt on count 4.[8] The only threats the trial judge referred to in that process of fact finding were these:[9]
I am certainly satisfied that that was the lawful instruction to ask QS to come with them to the rec room so that he could be spoken to about the threats.[10]
The request was made in reasonable terms and certainly there was unreasonable refusal by QS. He was requested a number of times. He both was initially defiant and then subsequently defy with threats. So besides the initial defiance the increasing aggressiveness of his response and threatening behaviour, which although there was a difference as to the physical stance of QS, I am satisfied that he took the stance either by shaping up or holding his fists in a manner for Hughes to ascertain that he was then at some risk of immediately being assaulted.

If that conduct was intended to constitute the threats, then the failure to prove the delegation would not necessarily be fatal to a finding of guilt on count 4. However, the trial judge made no finding about what it was that Youth Justice Officer Hughes was lawfully entitled to do that QS was attempting to stop him from doing by shaping up to him. One possibility is that QS was trying to stop Youth Justice Officer Hughes from speaking to him. If so, that is something that Youth Justice Officer Hughes was plainly entitled to do and the guilty verdict could be justified.
Another possibility is that QS was trying to stop Youth Justice Officer Hughes from requiring him to go inside with him. If so, the Crown would have had to prove that Youth Justice Officer Hughes was lawfully entitled to require QS to go inside with him, which, in the absence of proof of the delegation of the superintendent’s authority, it failed to do.
It seems to me that the trial judge did not give sufficient reasons for his finding of guilt on count 4. If the Crown had provided sufficient particulars of the charge such that all parties listening to the verdict would have known precisely what threat or threats were being relied on and what it was that Youth Justice Officer Hughes was said to be lawfully entitled to do, that may have supplied the deficiency in the reasons, but I was informed by counsel at the hearing of the appeal that such particulars had not been provided.
That being so, the charge on count 4 did not contain sufficient particulars to enable the appellant QS to know what was alleged against him, and it is impossible to know from the trial judge’s reasons, what conduct of the appellant QS constituted the charged threat, and what it was alleged that Youth Justice Officer Hughes was lawfully entitled to do that QS intended to prevent. The appeal on this ground must be allowed and the verdict of guilty set aside. However, in those circumstances, it is not appropriate to substitute a verdict of not guilty. It will be a matter for the prosecution whether to proceed with a retrial.
Count 6
Count 6 was a charge of engaging in conduct with one or more other people which included a violent act and which was conduct that would cause anyone in the vicinity of reasonable firmness to fear for their safety.
The trial judge’s finding in relation to that charge was as follows:[11]
In relation to the summary charge, all of the youths were involved in violent action. Anyone close by, given the unrestrained violent nature of the melee they were creating would have reason to fear and I find that a reasonable person would so fear and that the charge is made out against the youths.
The appellants contend that in relation to count 6, self-defence was raised and not rebutted. Pursuant to s 47AA(3) of the Summary Offences Act 1923 (NT), the offence of violent disorder, contrary to s 47AA(1) is an offence to which Part IIA of the Criminal Code applies. Hence the relevant provision dealing with self defence is s 43BD of the Criminal Code.
Under s 43BD, a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence,[12] and a person carries out conduct in self-defence if the person believes the conduct is necessary to defend himself or herself or another person; or to prevent or terminate the unlawful imprisonment of himself or herself or another person; and the conduct is a reasonable response in the circumstances as he or she perceives them.[13] However, the person does not carry out conduct in self-defence if the person is responding to lawful conduct that the person knew was lawful.[14]
The trial judge made these findings in relation to self-defence:[15]
It was the threat of the assault by QS that in my view has justified the taking hold and that the escalation and further problems came directly from the violent resistance by QS and his entreaties to the others to join in.
At no times did the youths show that they would follow the lawful instructions of staff that were clearly being given. They were in breach of those instructions throughout the incident. I don’t find any basis for finding they were acting in self-defence even if they thought in some weird way that they were acting in a self defence issue.
Clearly it would have been wildly disproportionate to go in kicking a superintendent in the head and the body and biting someone, throwing overarm punches at other officers. Clearly on any grounds unlawful and disproportionate behaviour even if there was some belief in their mind that the officer wasn’t initially justified in taking hold of QS which I don’t find.
That is to say the trial judge found:
(a)that the conduct of Hughes and the other youth justice officers was lawful; (There was a specific finding to this effect earlier in the reasons.)
(b)that the youths did not believe otherwise (ie they believed the conduct was lawful); and
(c)even if that was not the case, their actions were wildly disproportionate.
Given that the Crown failed to prove that the youth justice officers were acting lawfully in the performance of their duties, the finding in (a) must be taken to be in error. This in turn means that the Crown could not rely on s 43BD(3)(b) of the Criminal Code: the Crown could not establish that the appellants were responding to lawful conduct that they knew was lawful.
However, his Honour found that, even if the appellants were not responding to lawful conduct that they knew to be lawful, their actions were “wildly disproportionate”; those actions were listed, and included actions taken by each of the appellants; that is to say his Honour found that the appellants’ conduct was not a reasonable response to what was occurring.
Admittedly, the trial judge failed to add that the appellants’ conduct was not a reasonable response “in the circumstances as the appellants perceived them”. However, his Honour made findings that the youth justice officers were being “remarkably restrained” and using the minimal necessary force to passively restrain QS.[16] His Honour also found that QS was not yelling for help to avoid any pain or assault on him as he was only being passively held: he was yelling to incite further assaults on the youth justice officers.[17] His Honour also made a specific finding that the appellants believed that the actions of the officers were lawful. All of this amounts to a description of the circumstances visible to the appellants and their subjective beliefs, that is to say, a description of the circumstances as they perceived them. That provides context to the trial judge’s finding that the force used by the appellants was “wildly disproportionate”. It must be kept in mind that the basis on which findings of guilt on the assault charges is to be set aside is that the Crown failed to prove that the superintendent’s powers had been delegated to the complainants. The appellants had no reason to suppose that QS had not been given a lawful direction or that the youth justice officers were not acting lawfully in the performance of their duties.
In my view, the trial judge found that the Crown had rebutted self defence and his Honour’s findings in this respect are not fatally affected by the fact that the Crown failed to prove that the complainants were acting in the performance of their duties. Indeed, counsel for the appellants conceded that, if such was the effect of the trial judge’s findings, it was open on those findings for his Honour to find that self defence had been raised but had been rebutted.
The appeal in relation to count 6 must be dismissed.
ORDERS:
(a)In relation to the appellant CC:
·     the appeal in relation to counts 1 and 5 is allowed; the verdicts of guilty in relation to those charges will be set aside and verdicts of acquittal entered in their stead;
·     the appeal in relation to count 6 is dismissed.
(b)In relation to the appellant KM:
·     the appeal in relation to count 5 is allowed; the verdict of guilty in relation to that charge will be set aside and a verdict of acquittal entered in its stead;
·     the appeal in relation to count 6 is dismissed.
(c)In relation to the appellant QS:
·     the appeal in relation to counts 5 and 7 is allowed; the verdicts of guilty in relation to those charges will be set aside and verdicts of acquittal entered in their stead;
·     the appeal in relation to count 4 is allowed; the verdict of guilty is set aside.
·     the appeal in relation to count 6 is dismissed.

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[1] Counts 1, 5 and 7 were laid under s 188A of the Criminal Code Act 1983 (NT) (“Criminal Code”).

[2]Count 6 was laid under s 47AA(1) of the Summary Offences Act 1923 (NT).

[3] Count 4 was laid under s 200 of the Criminal Code.

[4] The transcript says “incident”, but it is clear that the word used was “instrument”.

[5] (1893) 6 R 67

[6] Transcript of Proceedings before Bamber J 25.08.20 p 29.

[7]The transcript reads “… against youths to stop youths ...” but this is clearly an error.

[8] Transcript of Proceedings before Bamber J 25.08.20 pp 26 to 29.

[9] Transcript of Proceedings before Bamber J 25.08.20 p 27.

[10]This is a reference to threats QS is alleged to have made to Youth Justice Officer Bennett that are not the subject of any charge.

[11]Transcript of Proceedings before Bamber J 25.08.20 p 29.

[12] Section 43BD(1)

[13] Section 43BD(2)

[14]Section 43BD(3)

[15] Transcript of Proceedings before Bamber J 25.08.20 p 29.

[16] Transcript of Proceedings before Bamber J 25.08.20 pp 28 to 29.

[17] Transcript of Proceedings before Bamber J 25.08.20 p 28.