Director of Public Prosecutions Reference No 1 of 1999

Director of Public Prosecutions [2000] NTCA 6
PARTIES:DIRECTOR OF PUBLIC PROSECUTIONS
REFERENCE NO 1 of 1999

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP6 of 1999 (9811495)
DELIVERED:  22 June 2000
HEARING DATES:  14 & 15 December 1999
JUDGMENT OF:  Mildren, Thomas & Bailey JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:J Basten, QC
Respondent:  D Jackson QC and A Fraser
Solicitors:
Appellant:Northern Land Council
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:
Number of pages:  21

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Director of Public Prosecutions [2000] NTCA 6

No AP 6 of 1999

DIRECTOR OF PUBLIC PROSECUTIONS

REFERENCE NO 1 OF 1999

CORAM: MILDREN, THOMAS & BAILEY JJ
REASONS FOR JUDGMENT
(Delivered 22 June 2000)
The Court:

In February 1998, Y appeared before Mr Gillies SM having been charged with one count of unlawful assault; two counts of unlawfully damaging property and one count of stealing. The learned Magistrate, having dismissed the charges, reserved for the consideration of the Supreme Court a number of questions of law arising at or in connection with the hearing, pursuant to s162A of the Justices Act.
The questions reserved were considered by Martin CJ who determined that only two questions were fit for determination. Both of these questions were answered by the Chief Justice in the negative.
Pursuant to s162A(6) of the Justices Act, Y was entitled to be heard before the Supreme Court upon the determination of the questions reserved and was in fact represented by counsel. This is an appeal by Y from that determination. An appeal lies to this Court by virtue of s51(1) of the Supreme Court Act which provides that a party may appeal to this Court from a judgment given in a proceeding where the jurisdiction of the Supreme Court was exercised otherwise than by the Full Court, the Master or a referee. "Judgment" is defined by s9(1) of the Supreme Court Act to include a "determination". As Y was entitled to be heard, he is a "party" to the proceeding within the meaning of s51(1).
There is a difficulty regarding one of the questions which is the subject of appeal to this Court. In the course of his judgment, Martin CJ said that the questions to which answers would be given were those set out in the stated case at par (d) and par (i). At par [17] of his Honour's judgment, his Honour set out question (d) as a heading and then proceeded to a discussion consistent with that question. However, at the end of his judgment, his Honour set out a different question (question (b)) as question (d) which his Honour then answered in the negative.
Question (b) (as contained in the reference) was:
Can traditional Aboriginal law found an honest claim of right within the meaning of section 30(2) of the Criminal Code (NT) in the absence of knowledge reposing in the accused that the right claimed has been over-ridden by Northern Territory or Commonwealth legislation, or by operation of the common law?
This question later came to be shortened to read:
Can traditional Aboriginal law found an honest claim of right within the meaning of s30(2) of the Criminal Code (NT)?
This question, as shortened, is the one answered as question (d) in par [56] of his Honour's judgment.
The formal order taken out contains another error as it refers to s39(2) rather than s30(2).
Question (d) was originally framed by the learned Magistrate as follows:
Can the right I have found, ie the right to seize the camera and destroy the film as an incident of the enforcement of Yolgnu law on Gumatj land by a Gumatj elder, be categorised as a right giving rise to an honest claim of right within the meaning of section 30(2) of the Criminal Code (NT)?
This question also became shortened to read:
Can the right I have found as having been exercised by the respondent correctly be categorised as a right giving rise to an honest claim of right within the meaning of s30(2)?
This was the question set out as a heading at par [17] of his Honour's judgment.
Both counsel contended that the question which the Chief Justice in fact answered was the shortened version of question (b) set out in par [5] above.
We do not consider that Martin CJ intended to address or purport to answer a question drawn in such wide and general terms without reference to the facts found by the learned Magistrate. In his judgment, the learned Chief Justice emphasised that the power of the Supreme Court to determine questions reserved under the case stated procedure provided by s162A of the Justices Act is confined to:
(1) ...any question of law arising at or in connection with the hearing.
We will not repeat all that his Honour said concerning the nature of the case stated procedure. It is sufficient to note that a provision such as s162A:
(a)"...is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy": per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ in Mellifont v Attorney-General (Qld) (l991) 173 CLR 289 at 305;
(b)does not enable a "judicial roving commission": per Lord Mustill in Attorney-General's Reference (No 3 of 1994) [1998] AC 245 at 265, and approved: Director of Public Prosecutions (Cth) Reference No 1 of 1996 [1998] 3 VR 217 at 226: per Winneke P, Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR at 352 (CA) at 356 per Callaway JA;
(c) does not permit the Court to entertain hypothetical or academic questions: Bruce v Commonwealth Trade Marks Label Association (1907) 4 pt2 CLR 1569 at 1571; In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267;
(d)does not permit the Court to deliver advisory opinions: per Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions v B (1998) 72 ALJR 1175 at par [25];
(e)provides jurisdiction for the Supreme Court to determine only questions of law: in refusing to answer a reference by the Attorney-General (Qld) under section 669A of the Criminal Code (Queensland), Sheperdson J observed in R v Douglas, ex parte Attorney-General [1991] 1 Qd R 386 at 389:
I would add, however, that while I recognise that this Court is obliged to answer questions on points of law properly brought before it under s669A, the Court cannot be required to answer questions which are not pure points of law, but are rather questions of mixed law and fact.
After referring to these principles at some length, Martin CJ continued at par [15] of his judgment:
In order to give this Court jurisdiction, the questions to be determined must be questions of law. It was submitted on behalf of Y that none of the questions were such. It was put that they are all questions of fact. I do not accept that. The questions do not call for a review of the facts found. Such of the questions as fall with s162A, are questions of law arising from those facts. Are the facts found capable of making out, as a matter of law, the excuse referred to in s30(2), or the authorisation under s26(1)(a)? In my opinion on a reference such as this the Court should not go beyond questions of law which are founded upon those facts. To do otherwise would be to heighten the risk of venturing upon the academic or hypothetical, or wandering about with indefinite destination. (Emphasis added)
In light of this clear recognition of the limited nature of questions which can be determined appropriately under s162A of the Justices Act, we consider that the learned Chief Justice intended to confine his answer as to the application of s30(2) of the Criminal Code to the facts as found by the learned Magistrate.
Any difference as to the form of question concerning s30(2) of the Criminal Code answered by Martin CJ is, perhaps, more apparent than real given that the parties approached the resolution of the question by reference to the facts of the case.
The second question which his Honour answered was question (i) which was as follows:
On the facts in this case, is s26(1)(a) of the Criminal Code (NT) capable of authorising the impugned behaviour of the respondent?
Factual findings of the learned Magistrate
Y is an Aboriginal and a leader or senior elder of the Gumatj clan. As such, one of his many responsibilities is to enforce the traditional law of his people, referred to as "Yolgnu law", on the land which the Gumatj people "own" according to customary law. His responsibility to enforce that law is a responsibility to the land of the clan, which it occupies and with which it identifies.
The land in question is "Aboriginal land" under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and is part of the land granted pursuant to the operation of s12 of that Act and described in Schedule 1 thereto. The land is held under a deed of grant of fee simple to the Arnhem Land Aboriginal Land Trust: see s5(1)(a) and (b) and s4(1) and the definition of "Aboriginal tradition" in s3.
According to Aboriginal tradition ("Yolgnu law") it is wrong for a stranger to come into or onto the land without the permission of the senior elder, and, it is wrong for a person to take a photograph of the land for commercial purposes whilst on Gumatj land without the permission of the senior elder. It is believed that the reproduction of an image of the land interferes with Yolgnu law because it diminishes the strength or wholeness of the land, as well as the people on the land who identify with the land. A photograph of a Gumatj person on Gumatj land captures the spirit of that person on the land. That spirit is considered to be part of the land, which on death must be released to return to its rightful place on the land. The taking of a photograph of a person away from the land without permission, results in a loss or diminution of the value of the land.
Permission can be obtained from the senior elder as a result of payment for the image, which might be given on terms that the purchaser will not use the image in a way disrespectful to the land.
The senior elder has a responsibility to take action to preserve the land, although he has a discretion to take no action in order to avoid conflict. The action taken would usually include the giving of compensation and an apology.
On 4 April 1997, a professional photographer ("M") attended at the Gove Yacht Club whilst Y was in the vicinity. The clubhouse and verandah and a paved area under canvas beyond the verandah, are located on non-Aboriginal land within a special lease. Part of the grassed area between the beach and the clubhouse is located on non-Aboriginal land. The remaining grassed area to the beach and the beach itself, is Gumatj land held by the land trust. M walked onto the beach and took photographs whilst thereon.
Section 70(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 provides that:
Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land. Penalty: $1,000.
Section 4(1) of the Aboriginal Land Act provides:
Subject to this Part and to any provision to the contrary in a law of the Territory, a person shall not enter onto or remain on Aboriginal land or use a road unless he has been issued with a permit to do so in accordance with this Part. Penalty: $1,000.
There are some exceptions to both of the above provisions, but it seems to have been accepted by the learned Magistrate that M needed a permit and did not have one.
Y saw M taking the photographs on the beach and assumed him to be a commercial photographer, but elected to take no action.
M then came onto the grassed area of the Aboriginal land and was invited by a male relative of Y ("Bruce") to take photographs of Bruce's children. Bruce should have directed M to Y. Y had a special responsibility to protect the children, including the preservation of their spiritual well being.
Y confronted M and demanded that he give $50 to the children. M refused. Y demanded that he give him the film because he had captured the children's spirit images. It does not appear that M appreciated who Y was, that he should have sought Y's permission first, or why he should give the children $50, or the film to Y. A struggle ensued between Y and M for the camera, during which Y assaulted M by pulling on the camera's strap. Y obtained the camera, exposed the film (thereby preventing it from being developed), placed the exposed film in a rubbish bin and returned the camera to M. Although the camera was later found to be damaged, the learned Magistrate was unable to find proven beyond reasonable doubt that this was caused by Y, and accordingly his Worship dismissed one of the counts of unlawfully damaging property. The charge of stealing was not proceeded with. As to the charge of common assault and the remaining charge of unlawful damage to property (the exposure of the film), his Worship dismissed those charges because he was not satisfied beyond reasonable doubt that the prosecutor had ruled out that Y's acts were not excused pursuant to s30(2) of the Code and were not authorised pursuant to s26(1)(a) of the Code. His Worship found:
(a)Y held an honest belief that he had a right to seize the camera and destroy the film as an incident of his obligation as a law enforcer on Gumatj land to enforce Yolgnu law;
(b)Y held an honest belief that R's behaviour was wrong by virtue of Y's upbringing and training;
(c)Y honestly believed that R, by taking photographs of the children without his permission, had captured the spirit image of the children;
(d)Y acted honestly and reasonably as an enforcer of Yolgnu law on Gumatj land when he seized the camera and destroyed the film.
(e)The right of Y to enforce Yolgnu law on Gumatj land was implicitly recognised by the Commonwealth Government under the Aboriginal Land Rights (Northern Territory) Act.
There is also a finding by the learned Magistrate that Y:
...held an honest belief that he was entitled to act as previously stated. He held that belief by virtue of his position and upbringing in Yolgnu society.
It was submitted by Mr Basten QC, that the honest belief related to "Balanda law, being the law generally applicable in the Northern Territory of Australia". The context of the finding shows that that was not what the learned Magistrate found. We will return to this topic later. We turn now to consider the first of the two questions, the subject of this appeal.
On the facts in this case, is s26(1)(a) of the Criminal Code (Northern Territory) capable of authorising the impugned behaviour of the respondents?
The offence of common assault is proscribed by s188(1) of the Code which provides that "any person who unlawfully assaults another is guilty of an offence". The offence of unlawful damage to property is proscribed by s251(1) of the Code which provides that "any person who unlawfully damages any property is guilty of an offence". Neither of these offences are regulatory offences, thus Part II of the Code applies to them, ie. ss22-43: see s22. S1 defines 'unlawful' to mean "without authorization, justification or excuse". S23 provides that "a person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorized, justified or excused". S26(1) provides relevantly:
(1) An act, omission or event is authorized if it is done, made or caused -
(a) in the exercise of a right granted or recognized by law.
The learned Magistrate held that the use of Aboriginal land by those Aboriginals entitled to use it by Aboriginal tradition includes the enforcement of laws on that land applicable to and accepted by the "natives" on that land who have a connection with that land; that is, a spiritual or religious relationship with the land; that is, those people who are part of the land. The defendant had the right to enforce Yolgnu law on the land. That right was recognised by the Commonwealth when it deeded the land to the land trust. The right is derived from the purposes of the deed, namely to benefit Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land. The right exists in the absence of a Commonwealth or Territory law stating that Aboriginal law should not be enforced on Aboriginal land, and no such law exists.
The learned Chief Justice held that the rights asserted by Y were not recognised either by the common law or by any statute.
Mr Basten QC did not seek to uphold the reasoning of the learned Magistrate. In our opinion, there is nothing in the Aboriginal Land Rights (Northern Territory) Act (or for that matter the Native Title Act 1993 (Cth)) which impliedly recognises the right of a senior elder to enforce Aboriginal traditional or customary law on Aboriginal land, whether in respect of Aboriginals who have a right to be on the land, or anybody else. So far as the criminal law is concerned, it is well established that, to the extent that traditional law existed in that area prior to the establishment of the colony of New South Wales in which it was originally located, that law was replaced by the criminal law of New South Wales; after 1863 by the criminal law of South Australia, and thereafter by the criminal law of the Northern Territory, including in 1984, the Criminal Code: see Walker v New South Wales (1994) 182 CLR 45 at 49-50; Warren, Coombes & Tucker (1996) 88 A Crim R 78 at 80-81; Coe v The Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland (1979) 53 ALJR 403 at 408. There is no dual system of law in the Northern Territory. As it was said by Kirby J in Wik Peoples v Queensland (1996) 187 CLR 1 at 214:
The source of the enforceability of native title in this or in any other Australian court is, and is only, as an applicable law or statute provides. Different considerations may arise in different societies where indigenous peoples have been recognised, in effect, as nations with inherent powers of a limited sovereignty that have never been extinguished. This is not the relationship which the indigenous people of Australia enjoy with the legal system of Australia. For Aboriginal legal rights, including to native title, to be enforceable in an Australian court, a foundation must be found within the Australian legal system. (Footnote references omitted)
So far as traditional law is concerned, we adopt with respect what Kirby J said in Wik Peoples v Queensland (supra) at 213:
To the extent that the tide of history has not washed away traditional laws and real observance of traditional customs, their legitimacy and content rest upon the activities and will of the indigenous people themselves.
Consequently, that law is not legally binding and enforceable in this Court, even upon an indigenous person who submits himself to it, save and except to the extent to which Australian law is prepared to recognise and enforce it: c.f. Yanner v Eaton (1999) 166 ALR 258, where the traditional hunting rights of the appellant were held to be protected by s211 of the Native Title Act 1993 (Cth).
So far as the Aboriginal Land Rights (Northern Territory) Act is concerned, s74 provides:
This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act.
There can be no doubt that the provisions of the Criminal Code are capable of so applying. It was not suggested that there was any inconsistency between the Criminal Code (N.T.) and that Act, or with the Native Title Act 1993.
Indeed, Mr Basten QC, conceded that the answer to the question must be found in law of general application in the Northern Territory. He submitted that the laws which applied to authorise Y's conduct were the right at common law of an owner or occupier of land to exercise self help in defence of property and in certain provisions of the Criminal Code, viz. ss27(g), (m) and (n) and s43.

There are a number of difficulties with this submission. First, the title to the land was vested in the Aboriginal Land Trust for the benefit of the Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned. Y was not the registered proprietor of the land. There was no specific finding by the learned Magistrate that Y was either the person, or one of the persons, entitled to the use or occupation of the land in question, although perhaps this may be inferred, and it may be that a mere right to possession by a person in possession at common law, is sufficient to entitle the use of reasonable force to protect that interest. But in the Northern Territory the common law right of the owner or occupier of property to use force to protect his interest or the interest of others, has been replaced by the provisions of ss27 and 28 of the Criminal Code. As Mr Jackson QC correctly submitted, those provisions appear in Division 3 of Part II of the Code, and if the use of force is lawful, it is because it is justified, not because it is authorised under s26(1)(a). Similarly, any possible defence based on s43 of the Code appears in Division 4 of Part II of the Code and if that section applies, the conduct is excused and not because it is authorised under s26(1)(a). We would therefore answer this question "No".
Can the right found by the learned Magistrate as having been exercised by Y correctly be categorised as a right giving rise to an honest claim of right within the meaning of s30(2) of the Criminal Code (Northern Territory)?
Section 30(2) of the Criminal Code provides:
A person is excused from criminal responsibility for an act or omission done or made with respect to, or for an event caused to, property in the exercise of an honest claim of right and without intention to defraud.
Section 30(2) must be read in the light of s30(1) which provides:
Subject to subsections (2) and (3), ignorance of the law does not afford an excuse unless knowledge of the law by the offender is expressly declared to be an element of the offence.
It is common ground that the leading authority is Walden v Hensler (1987) 163 CLR 561, which considered s22 of The Criminal Code 1899 (Qld), which is in para materia with ss30(1) and (2) of the Criminal Code (N.T.). It is clear, both on the wording of s30(2) and from the judgments in Walden v Hensler (supra) at pp 574-5, 580 and 592-3, that the "defence" of honest claim of right applies only to property offences and cannot apply to the offence of common assault.
So far as the malicious damage to property offence is concerned, Y would have been entitled to be acquitted in the circumstances of this case if the prosecution failed to prove beyond reasonable doubt at least one of the following elements:
(1)      that Y's act was not made with respect to property;
(2)      that the act was not done in the exercise of an honest claim of right           with respect to that property; or
(3)      that Y had an intention to defraud.
It is not suggested that the Crown had proven elements (1) or (3); the area of contention is element (2).
It will be noted that in spelling out the second element, we have added the words "with respect to that property" which do not appear in s30(2). Nevertheless, it is clear from Walden v Hensler (supra), that the honest claim of right in an unlawful damage case, is a belief held with respect to the property damaged: see Deane J at 580-81; Dawson J at 592-3; Gaudron J at 608. There is no evidence that Y believed he had an interest in the film, but it would be a sufficient starting point if there was a finding that he held an honest belief he had a right to destroy the film. There was such a finding by the learned Magistrate. However, as Walden v Hensler also establishes, the belief in the right must be a belief in a right recognised by law, even if the belief is unsoundly based: see at pp 581, 593, 608-9. In this case, there was no finding by the learned Special Magistrate that Y held any such belief. Mr Basten QC invited us to consider Y's evidence at the trial, where it was submitted, Y asserted that he believed that his right to destroy the film was recognised by law. However, as Mr Jackson QC correctly submitted, there was no finding by the learned Magistrate on that passage of the evidence, and there is no reference to it in the stated case. In order for Y to be acquitted, the learned Magistrate needed to at least entertain a reasonable doubt as to whether or not Y held such a belief. The only beliefs which the learned Magistrate relied upon were Y's belief as an incident of his obligation as a law enforcer on Gumatj land to enforce Yolgnu law. That finding, by itself, was insufficient. In those circumstances, we would answer the question "No, not in the circumstances of this case.".
We would therefore dismiss the appeal.
Observations concerning procedure under s162A of the Justices Act
Before leaving this appeal, we feel constrained to observe that the uncertainty as to what question concerning s30(2) was answered by the learned Chief Justice, is symptomatic of the difficulties in the case stated procedure provided by s162A of the Justices Act. In our view, such difficulties were not made any easier in the present case by the manner and form in which the case stated came to be prepared for reservation to the Supreme Court.
Martin CJ noted that there is no form prescribed under the regulations to the Justices Act to initiate a case stated under s162A. The provision, insofar as relevant for present purposes provides:
(1)     The Justice or Justices by whom an order is made dismissing a complaint or information shall, if so requested by counsel for the Crown upon or after the conclusion of the hearing, reserve for decision by the Supreme Court any question of law arising at or in connection with the hearing.
(2)     No such request shall be made without the written consent of the Director of Public Prosecutions.
(3)     The question reserved shall be referred by the Justice or Justices to the Supreme Court for decision, together with a statement of the circumstances out of which the question arose and such further statement, if any, as the Supreme Court requires.
(4)     The Supreme Court shall have power to determine the question reserved.
In the present case, the "statement of the circumstances out of which the question arose" is extensive (running to some fourteen pages) and incorporates as annexures a full copy of the learned Magistrate's reasons for decision (thirty-one pages) and the written request for a case stated from the Director of Public Prosecutions. The learned Chief Justice (at par [4] of his judgment) observed that:
I do not think that is what the legislation envisages.
With respect, we agree with that assessment.
We have not been able to find much, if any, relevant authority as to the appropriate form of a case stated under s162A. In the present case, the Director of Public Prosecutions wrote to the learned Magistrate recording his consent to a case stated and requested the learned Magistrate to initiate proceedings on the basis of ten questions in terms drafted by the Director ("or substantially similar terms").
The learned Magistrate prepared the case stated and substantially amended the number and form of the questions to be asked because he considered that some of the Director's questions "do not reflect an issue that arises from my (the learned Magistrate's) findings." The amendments were made (apparently) without reference to either the Director of Public Prosecutions or the respondent, Y, who had been charged with various offences and whose acquittal gave rise to the Director's request for a case stated. At the outset of the hearing before Martin CJ, counsel for the applicant handed to the learned Chief Justice a document entitled "Questions for Special Case Stated" which he described as "a copy, in short form, of the questions for the case stated". Submissions proceeded upon the basis of that document. The document, in addition to redrafting and shortening certain of the questions posed by the learned Magistrate included two new questions (which were amongst those the learned Chief Justice declined to answer on the basis of the principles to which we have referred earlier).
We consider the procedure adopted in relation to the present case stated was unsatisfactory. Having regard to the existence of three sets of questions (those drafted originally by the Director, those included in the case stated referred by the learned Magistrate and those handed up by the applicant's counsel at the hearing before the chief Justice) it is hardly surprising that difficulties arose as to the precise form of the questions being addressed by Martin CJ. However, this aspect is not the most unsatisfactory feature of the procedure adopted in the present proceedings.
The power to request a case stated under s162A is exclusive to the Director of Public Prosecutions. There is no discretion in s162A for a magistrate to refuse to act upon such a request. In such circumstances, we consider the appropriate course is for the Director to draft the entire case stated and submit it to the relevant magistrate for his consideration, approval and signature. We think the draft should also be provided to any potential respondent to the case stated. In the event of disagreement by either the relevant magistrate or a potential respondent as to the terms of the draft case stated, initial attempts to resolve differences of opinion should be conducted by way of correspondence. In the event of continuing disagreement, it might be necessary for the relevant magistrate to hear submissions from the Director and a potential respondent to settle the final form of the case stated. In this regard, a magistrate should afford appropriate weight to the views of the Director of Public Prosecutions having regard to the Director's exclusive power to request a case stated under s162A of the Justices Act.
In the present case, we consider that the case stated is unduly lengthy. We also think that it is only in exceptional circumstances that it should be necessary for a copy of the magistrate's reasons for decision to be incorporated into a case stated. The Act requires the question reserved to be accompanied by "a statement of the circumstances out of which the question arose". In our view, what is required by the provision is a concise statement of:

(a)     the facts found by the magistrate;
(b)     the grounds on which the order was made dismissing the                 complaint or information; and
(c)     the grounds on which the proceeding is questioned.

A case stated should not include any statements by way of advocacy on the part of the magistrate whose decision is questioned, nor on the part of the Director who seeks to challenge it.
It is neither necessary nor desirable to undertake a detailed analysis of the deficiencies of the present case stated. It is enough to indicate that the case stated descends to a very significant extent into the evidence heard by the learned Magistrate and includes expressions of his opinions. In our view, this is both unnecessary and undesirable. The case stated is drafted in a manner which seeks to go well beyond a statement of findings and essential steps in the process of the learned Magistrate's legal reasoning. The case stated includes an element of justification for findings of fact which appear at least questionable on the basis of the evidence referred to by the learned Magistrate. Findings of fact cannot be challenged under the procedure provided by s162A of the Justices Act and, of course, provide nothing by way of precedent for future cases involving similar issues. For the future, adoption of the procedures suggested above may help to overcome at least some of the difficulties in the case stated procedure generally and to avoid the particular problems which arose in the present proceeding as to the precise form of the questions being addressed by the learned Chief Justice.

[2000] NTCA 6

11 September 2000