Harwood v The Queen
[2001] HCATrans 441
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D6 of 2000
B e t w e e n -
IN THE MATTER OF DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 1999
PERSON CHARGED
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS (NORTHERN TERRITORY)
Respondent
Application for special leave to appeal
GAUDRON J
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
FROM DARWIN BY VIDEO LINK TO CANBERRA
ON FRIDAY, 14 SEPTEMBER 2001, AT 9.49 AM
Copyright in the High Court of Australia
MR J. BASTEN, QC: If the Court pleases, I appear with MR S.A. GLACKEN for the applicant. (instructed by the Northern Land Council)
MR D.F. JACKSON: If the Court pleases, I appear with my learned friend, MS A.M. FRASER, for the respondent. (instructed by Solicitor for the Northern Territory)
GAUDRON J: Yes, Mr Basten.
MR BASTEN: Your Honours, might I take your Honours to page 61 of the application book. This is a passage in the judgment of the Chief Justice, who was the primary judge in this matter, and at paragraph 51, he notes:
The action taken by Y –
who was the person charged -
was in response to a perceived wrong done to the land. Aboriginal people are subject to the laws of the Territory (Coe v The Commonwealth (1979) 53 ALJR 403 at 408; Walker v NSW (1994) 182 CLR 45). It is not in question that Y had a relationship to the land arising from his position as a traditional Aboriginal owner and elder, and his Worship made findings as to his beliefs and responsibilities which are not questioned in these proceedings. However, it strikes me that the right he claimed “owes its existence to a moral order, religious code or other non-legal regimen”.
That is quote from your Honour Justice Gaudron’s judgment in Walden v Hensler. There is then reference to aspects of Aboriginal law and aboriginality having been recognised in the administration of justice in Northern Territory. Then might I take your Honours to paragraph 54 at the bottom of the next page, where there is reference to cases under the Native Title Act. It is then said:
But neither those rights –
That is, the rights which his Honour noted had been identified by the magistrate:
nor any that may be expressly or impliedly granted or recognised under the Aboriginal Land Rights Act sanction the commission of criminal offences in pursuance of the rights.
Your Honours, what we say in relation to Walden v Hensler, is that the claim of right in that case operated at two levels. Your Honours will recall that Walden involved a taking of bush turkeys by an Aboriginal person pursuant to a claimed entitlement under his traditional law and custom. Your Honours, there is a copy of the judgment at page 39 of our bundle of documents. The exercise of his rights as traditional rights was expressly not recognised by the general law as known at the time that case was decided six years before Mabo. Secondly, his claim of ownership rights with respect to the property taken, was not merely mistaken in law in the sense that he had none, but even if good in law that belief, it was held by the majority, did not provide a defence to the charge which did not depend upon the existence of ownership or otherwise, in the property in question.
That, of course, was the matter over which the Court split and your Honours Justice Gaudron and Justice Toohey treated that aspect of the matter as it were another mistake of law which did not necessarily preclude the defence. That second problem does not arise in the present case. This case differs in two respects. Firstly, the claim of right is with respect to property and arises in relation to the object ‑ ‑ ‑
GAUDRON J: With respect to what property?
MR BASTEN: The property in question is the rights in relation to the film in the camera which is the object, which took pulling of the strap, thereby committing an assault and then taking the film out and exposing it. His rights which arise from, on one view, a relationship with the land, relate to his entitlement in relation to that property, namely the film.
GAUDRON J: Was that said at trial? More precisely, is that to be found in the statement - of the stated case?
MR BASTEN: Of the stated case, I think it is, your Honour. At page 16, and I will try to do this briefly, at the top of the page there were subparagraphs 16 and 17, where the magistrate notes two findings:
The respondent acted honestly, reasonably and within the discretions he has pursuant to Yolgnu law. He had an honest belief that he was entitled to do what he did.
The land occupied by the Gumatj claim lies within land deeded to the Arnhem Land Aboriginal Land Trust.
Then he makes the finding at the bottom of the page in respect of the honest claim of right and the defence under section 26. Then, specifically, at page 17 in the middle of the paragraph at about point 4 on the page, his Worship said:
I was satisfied that section 30(2) of the Criminal Code is not limited in operation to property offences and was applicable to excuse criminal responsibility for an act with respect to property in exercise of an honest claim of right –
and so on. That, of course, is one of the issues which arises in the present case. The honest claim in relation to being a claim in relation to the right to seize the camera appears at paragraph (ii), at about point 7 on the page, a subparagraph within it:
The respondent held an honest belief that he had a right to seize the camera and the destroy the slide film as an incident of his obligation as a law enforcer of Gumatj land to enforce Yolgnu law.
Might I simply note there that one point of distinction between the approach we have taken and the approach which his Worship took, is to say that the reference to being on Gumatj land is not in itself sufficient. We do not suggest that the Aboriginal traditional owner can do anything on his land. The question, in this case though, was whether he was enforcing rights which arose out of his relationship to the land.
GAUDRON J: I do not understand that.
MR BASTEN: It comes to a point, your Honour, when we are dealing with ‑ ‑ ‑
GAUDRON J: What sort of rights are we talking about?
MR BASTEN: Rights to protect the land from a form of trespass to the land. It is a more limited proposition than the proposition that anything done on Aboriginal land would fall within the defences available.
GAUDRON J: That is the Aboriginal right, is it?
MR BASTEN: The right under traditional law and custom.
GAUDRON J: Yes.
MR BASTEN: Yes.
KIRBY J: That goes with the land, is that the intention?
MR BASTEN: Yes, that is so. It goes with the land rather than simply being something happens to be done on it. That is the sole point of the distinction.
KIRBY J: The notion is that when strangers to the clan group of Aboriginal come onto the land and perform acts contrary to the traditions of that land, it is an incident of the land that an elder should be entitled to enforce that law as against the stranger.
MR BASTEN: That is so. That is the principle, your Honour. We say that it is not difference in principle from ‑ ‑ ‑
KIRBY J: Can I just ask: are you presenting any different case to us, than was presented before the primary judge and before the Court of Appeal?
MR BASTEN: Your Honours, the point taken by the Director is that there was no express discussion of the Racial Discrimination Act below. We do not anticipate that that question necessarily arises in relation to the facts of the case. That is because it lies, as it were, behind the rights which are now recognised by this Court as part of the common law. In other words, one no longer needs ‑ ‑ ‑
KIRBY J: It is an aid to construction though, is it not?
MR BASTEN: It is an aid to construction rather than a separate argument in itself, and having said that, your Honour, we would say no.
KIRBY J: In any case, it is a purely legal question is it not?
MR BASTEN: It is a purely legal point.
KIRBY J: Nobody doubts that your client is an Aboriginal person.
MR BASTEN: No.
KIRBY J: So it is not, on the face of things, a significant different factual argument that would have caused some different presentation of the case at trial?
MR BASTEN: There is no matter which we take in that regard, your Honour, which was not taken below. Indeed, the issues which arise are ultimately all legal matters.
KIRBY J: What is the importance of the case?
MR BASTEN: The importance of the case, your Honour, is – well, it has two aspects. The first is a general one in relation to the way in which the Court of Appeal dealt with it, because the Court of Appeal said that unless we could bring ourselves within sections 27 and 28 of the Code, which had specific provisions dealing with the protection of property, then it was not open to us to rely on section 26(1)(a) which is at page 17 of our bundle, which talks about “An act . . . done . . . in the exercise of a right granted or recognised by law”.
The point we seek to make in relation to that is that, in the terms in which these matters are discussed in Walden – and for ease of reference one could simply go to pages 592 to 593 in the judgment of Justice Dawson, who was a member of the majority, of course ‑ ‑ ‑
KIRBY J: That is at 55 of the bundle.
MR BASTEN: That is so. The argument is that the claim must be “a claim to a private right arising under the civil law”. That appears at the top of page 593. Now, the point of importance in relation to section 26(1)(a) is that if there is a claim to a right arising under, or granted, or recognised by, the civil law, which is not expressly found ‑ ‑ ‑
KIRBY J: Those words, “or recognised by”, is a significant phrase, is it not, in this context?
MR BASTEN: Indeed.
KIRBY J: Because the Aboriginal claims are not granted by our law; they are simply recognised by the common law.
MR BASTEN: They are recognised. That is so. At the end of the day, one would ask why that phrase should be read down. The circumstance of the present case may be just one which does not fall within 27, because 27 and 28 do not in terms provide for control of the activities of a trespasser on land, as opposed to the application of force to remove them. We say, it would be an extraordinary proposition if a civil right to control was nevertheless a criminal offence because, although the right was recognised by law, it was not one which fell within 26(1)(a). So that, in that sense, we say that the judgment of the Court of Appeal is a matter of some importance in relation to the provision of a Code which, of course, is not unique to the Northern Territory.
GAUDRON J: But your argument must go so far as to say, must it not, that the common law recognises the right to commit what would otherwise be criminal offences according to the general law?
MR BASTEN: Well, yes. Your Honour says: the “general law” ‑ ‑ ‑
GAUDRON J: That is a very large step, is it not?
KIRBY J: Except that the general law itself contains a let-out ‑ ‑ ‑
MR BASTEN: That is so.
KIRBY J: The general law contains the let-out if it is performed pursuant to a claim of right.
MR BASTEN: That is the point at which we depart from Walker as an authority against us. There is no doubt that what Chief Justice Mason said in Walker is correct, and there are no two parallel systems of law. But if there is a right which arises under traditional law, which is recognised by the common law – or by statute law, for that matter – then it falls within 26(1)(a), and therefore is, in that way in which rights in relation to land have been accepted as a part of the general law, accepted by the Code.
KIRBY J: You say, it is not a derogation or exception to the ‑ ‑ ‑
MR BASTEN: Not at all.
KIRBY J: ‑ ‑ ‑ application of the law. It is the application of it.
MR BASTEN: That is so. What this Code does is to pick up rights which it does not define. This is not a Code in a classical sense; it allows for the operation of rights recognised by the civil law. So that we say that, to the extent that their Honours appear to have thought that Walker was authority against the propositions we sought to put, their Honours were in error. We also say – and this may be the second aspect of the general importance of the matter, your Honour, in answer to your Honour Justice Kirby – that there may yet be a question, dealt with in some detail by the Chief Justice, but only very succinctly by the Court of Appeal, because they did not ultimately get to it – as to whether the kinds of rights which were relied upon by the person charged in this case fall within the concept of rights which are recognised by the common law, in the Mabo sense. That is why I emphasised before: we do not simply say it was activity on land, but activity which involved a relationship with the land. Because the rights recognised by Mabo are not at large, they are traditional law and custom relating to land.
GAUDRON J: Now, none of this was explored.
MR BASTEN: It was explored - - -
GAUDRON J: In the trial, was it?
MR BASTEN: Yes.
KIRBY J: That is why I asked you if you were presenting a different case before us than you did at trial.
MR BASTEN: Well, I did not present the case at trial, your Honour, but there are two aspects to that question. One, I suppose, is the extent to which what I am saying falls within the stated case.
GAUDRON J: Yes.
MR BASTEN: We would have thought that it did and, in that sense, it was, we say, relevantly presented at the trial. There is no doubt that this matter was run at trial. Your Honours, there were two ways in which it was run. One related to the operation of the Land Rights Act and the rights which were granted under that – and might I take your Honours to page 18, at paragraph 7(i), (ii) and (iii). There is reference throughout that matter to the Land Rights Act. Now, might I say one thing in relation to that. Obviously – and I was going to say it in relation to the last matter – the scheme and the underlying principle of the Land Rights Act is precisely that of the Native Title Act, namely, to recognise and give formal effect to traditional Aboriginal ownership of land.
The form in which it occurs, of course, is different under the two Acts, because Justice Woodward’s recommendation that one did not simply provide for determinations of some new species of property right, but provided a fee simple estate, was adopted by the Land Rights Act, whereas the Native Title Act takes a different view. But the underlying principle, namely, recognition of traditional ownership of land, is precisely the same in relation to each of the matters. Your Honour, there was discussion in both the judgment of the Chief Justice, to which, I think, I took your Honours – the passages I took your Honours, particularly at the foot of page 62, to the significance of the cases under the Native Title Act.
It was obviously raised before the Chief Justice, and there was a reference in the judgment in the Court of Appeal, albeit brief, to the issues arising in relation to traditional ownership under native title. There is a reference, at the bottom of page 78 to the top of page 79, to the cases dealing with native title in this Court. Walden v Hensler, in effect, is a case which deals with native title, too, which their Honours discuss, and the refusal to apply the principles – I am so sorry, I have now lost the passage I think expressly refers to both the Land Rights Act and the Native Title Act. At the foot of page 77, I am sorry. When, in paragraph [32], at the foot of 77, it says that “I did not seek to uphold the reasoning of the learned Magistrate”, there were, obviously, as I have indicated, respects in which we sought to deal with the legal issues in a different way.
KIRBY J: But you did not abandon the way in which the Land Rights legislation is interwoven in the provision of the basis of the recognition of the right.
MR BASTEN: No. We simply put it on the more limited basis, namely, that it was not activity on land, but it had to be a right which was recognised in relation to the land, and a right ‑ ‑ ‑
KIRBY J: Can you say that the importance of the case is also that it involves the question of the intersection of the general law with the law of the Aboriginal people in respect of their land outside the specific assertion of a land right claim?
MR BASTEN: That is so. It is a reflection of that element of Justice Deane and your Honour Justice Gaudron’s judgment in Mabo, where it was expressly noted that traditional land ownership could have been asserted in response to criminal prosecutions for trespass or other offences. This is one example where this arises. There are others, of course, as your Honour is aware. In relation to fishing activities, there have been prosecutions around Australia, and Yanner v Eaton was an example where interests in relation to land have been raised by way of a defence to a particular criminal charge. This ‑ ‑ ‑
KIRBY J: But here, as you argue, it has a definite hook in the Criminal Code.
MR BASTEN: We rely upon that, your Honour, yes. We rely upon that.
KIRBY J: Well, what is the fundamental error you say that the Court of Appeal took?
MR BASTEN: There are errors in three respects, your Honour. I think I have indicated the error in relation to this construction of 26(1)(a), namely, the reading down of what appears to be a broad, and appropriately broad, acceptance of acts which are done in accordance with rights granted or recognised by the civil law. Secondly, we say that these acts were of a kind which were recognised by the general law, the civil law. Thirdly, we say that – and this is perhaps the part I have not developed – the ‑ ‑ ‑
GAUDRON J: Recognised as what?
MR BASTEN: As rights in relation to land, which were - - -
GAUDRON J: As rights in the nature of self-defence?
MR BASTEN: In relation to the control of trespassers on land, yes, your Honour. This man did not have a permit to be on the land, although traditional owners of the land could have granted him permission. The third aspect was the question of ‑ ‑ ‑
KIRBY J: I suppose you could get a point, an argument of the application of the Code, if, for example, excessive violence were done, that it could not be an honest claim of right, or could not fall within “authorised” or done “recognised by law”. But even the decision on where one would draw that line is quite an important point.
MR BASTEN: We would say it is, your Honour. We would say that the case is clearly arguable, but we accept that there is a difficult point as to where that line is to be drawn, and what rights are encompassed and what are not. It is not ‑ ‑ ‑
KIRBY J: But in this case, there was not excessive violence, was there? He just grabbed the camera and opened it, and got rid of the film.
MR BASTEN: That is so. The finding was to the contrary – the findings of fact were to the contrary. It is not dissimilar ‑ ‑ ‑
KIRBY J: And I suppose, looked at from within the Aboriginal paradigm, he could say: unless I do this, a stranger has come upon my land, and my law is put at nought, and my rights under that law are put at nought. At least, that would be his argument.
MR BASTEN: Yes, that is so. The point is closely analogous to the one which arose in Ward, in relation to the protection of property in images and rock art and the reproduction. Your Honours may recall the debate we had about that. That is a similar issue on, as it were, the borderline, which needs, with respect, to be defined - in a way, of course, which it was not in Walden v Hensler, because the issue did not arise in these terms, the concession having been made. The other point I was simply going to refer to, your Honours, was that if one goes to the discussion in Walden v Hensler, perhaps most conveniently at page 569 of the judgment, at the top of the page - page 43 of the bundle - your Honours will see in the judgment of Justice Brennan a reference to Justice Gibbs in Pollard:
“An accused person acts in the exercise of an honest claim of right, if her honestly believes himself to be entitled to do what he is doing – ”
The question of entitlement, which was, of course, the terminology which had been accepted by the magistrate in that case, is in precisely the same terms as the finding by the magistrate in the present case. And that was despite what, of course, the qualification that your Honour Justice Gaudron placed on the nature of the entitlement. That qualification did not disqualify the defence of Mr Walden, and that was accepted by all members of this Court who dealt with that aspect of the matter. To the extent that the Court of Appeal suggests that there is some inadequacy in the finding by the magistrate in the present case, which reflect in directly the terms of the findings set out there, then we say their Honours are in error in that respect, also, and their decision cannot stand with the approach taken in Walden.
GAUDRON J: I am a little confused. Do you still rely on section 30?
MR BASTEN: I am so sorry. Yes, section 30(2) is the equivalent of the section in the Queensland Code which was discussed in Walden. I took your Honours to Walden ‑ ‑ ‑
GAUDRON J: And you rely on that also to say- it is a right now recognised by the law.
MR BASTEN: Yes, and I took your Honours to Justice Dawson’s discussion in relation to the underlying nature ‑ ‑ ‑
GAUDRON J: Was there evidence to that effect? That is what I could not understand in this case. I had the impression, perhaps wrongly, that the evidence simply asserted a belief of a right under Aboriginal law, without going the further step to say “and I believe that right is protected by the general law”.
MR BASTEN: The finding of the magistrate did not go that further step, your Honour, but the finding of the magistrate was in precisely the terms which were accepted in Walden ‑ ‑ ‑
GAUDRON J: Yes, but did the evidence go so far?
MR BASTEN: Yes, it did. We invited the court to look at the evidence to resolve the ambiguity. If there was an ambiguity in the findings set out at page 16, the unchallenged evidence of the person charged was that his right existed under balanda law - which is an Aboriginal expression for white people’s law.
GAUDRON J: But it is not there reproduced.
MR BASTEN: It is not there reproduced in the stated case.
KIRBY J: But it would be available as in Taikato, if there is an ambiguity, to clarify the ambiguity.
MR BASTEN: We said it was, your Honour. That was not accepted in the Court of Appeal.
GAUDRON J: That may be a matter of considerable importance. I mean, this is a very unusual proceeding. Clearly, one is limited to the issues that arose at the trial. If the magistrate has misrepresented – I do not use that in any judgmental way – but if by ‑ ‑ ‑
MR BASTEN: Omission.
GAUDRON J: ‑ ‑ ‑ misunderstanding the issues, he has misrepresented them, then the issues did not arise at the trial, in the way he has put it.
MR BASTEN: It really works the other way, your Honour. We say that the magistrate clearly did understand them, because his findings reflect closely what was said in Walden. He understood what he was doing. He is now criticised for not having said something else, as well, but that was ‑ ‑ ‑
GAUDRON J: But he does not set out the necessary factual findings, does he?
MR BASTEN: Well, we say, he does, your Honour, and if that point is put against us, the consequence of the point must be that the prosecution managed to establish beyond reasonable doubt that he did not have the honest belief. And they cannot say ‑ ‑ ‑
GAUDRON J: I do not know that that is right.
MR BASTEN: It is the point which appears at the top of page 569, in Pollard, in Walden, your Honour, at about point 3 - the extract from Justice Gibbs’ judgment in Pollard, namely, that, “the jury had a reasonable doubt” passage. That is all I was seeking to reflect.
GAUDRON J: Yes, well, I see your time has expired, but ‑ ‑ ‑
MR BASTEN: I am sorry.
GAUDRON J: ‑ ‑ ‑ I have some difficulties about the nature of these proceedings and what one can do with the stated case that is not entirely clear. Do you have anything further to say on that?
MR BASTEN: That in itself raises an issue of some importance, and we referred in the ‑ ‑ ‑
GAUDRON J: Yes, but it is not raised in your favour.
MR BASTEN: Well, it is not, in a sense, your Honour, although what we say ‑ ‑ ‑
KIRBY J: It might be, in the spray-gun case. I forget the – Taikato. We had a stated case. That is the last stated case I can remember, and ‑ ‑ ‑
MR BASTEN: I think we dealt with it ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ I think the Court ‑ ‑ ‑
MR BASTEN: ‑ ‑ ‑ in terms of B’s Case. I am not sure what the name of that was. We referred to that in the summary of argument, as to the question of how one should deal with these factual matters in a stated case like this. Well, I appreciate, your Honour, that there is a difficulty there. I am sorry, I should not go on, perhaps.
GAUDRON J: Well, no, I ‑ ‑ ‑
MR BASTEN: I was just going to say, very briefly, from the point of view of my client, who has enjoyed an acquittal, these proceedings are brought against him by the Director, who states the case ‑ ‑ ‑
GAUDRON J: But have no consequences.
MR BASTEN: I am sorry?
GAUDRON J: They have no consequences.
MR BASTEN: They have no – well ‑ ‑ ‑
GAUDRON J: No legal consequences.
MR BASTEN: Well, they do have, if the answers given are that his defences should not have been accepted. I am sorry – they have no legal consequences. It is a reasonably serious matter.
KIRBY J: They leave a principle standing which is of general application.
MR BASTEN: That is so, yes.
KIRBY J: In a case where you say you had an acquittal. You say that the findings of the magistrate, understood from the stated case with the transcript, provide the court with all the factual material to sustain the honest claim of right, and that that is an important point.
MR BASTEN: That is so, yes.
GAUDRON J: Yes, thank you, Mr Basten. Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, if I could go first to section 162A of the Justices Act, the provision under which the matter came before the Supreme Court. You will see that at page 1 of the applicant’s book of documents. I heard your Honours speaking about the transcript. I am not, with respect, certain how the court would become aware of the transcript in the Supreme Court because, if your Honours look at the procedure that is there referred to, what one sees is that it is a very unusual procedure - very unusual in the sense that section 162A(1), the Justice is to reserve the decision, “if requested by counsel for the Crown” ‑ ‑ ‑
GAUDRON J: Sorry, what section?
MR JACKSON: 162A, your Honour. I am sorry, it is at page 2 of the book of materials provided by the applicant.
GAUDRON J: Thank you.
MR JACKSON: It is the second provision on the page. So it is a request by counsel for the Crown “after the conclusion of the hearing”. The request is to be made with “the written consent of the Director of Public Prosecutions”. What is reserved, as your Honours will see from 162A(1), are “questions of law arising at or in connection with the hearing”. Under 162A(3), there has to be:
a statement of the circumstances out of which the question arose and such further statement, if any, as the Supreme Court requires.
And the court then determines the question. Your Honours will then see ‑ ‑ ‑
McHUGH J: What about drawing inferences? Is there any power to draw inferences, or is it the strict rule about stated cases, that it is only the facts found plus implications? It does not even seem to be a stated case in that sense.
MR JACKSON: Well, your Honour, it goes no further than the words of the section, of course, and what the words of the section say is that the court has the power to determine “the question”, the question which has been the subject of the reservation and then it seems to derive from the “statement of the circumstances”. Now, your Honour, it is difficult to see, with respect, that it might depend on the particular issue, it is difficult to see that the court could go beyond the “statement of the circumstances”.
KIRBY J: I think we did look at the extent to which one could do that in that case involving the use of a spray can and my recollection is that there is conflicting authority in the court, but that my remembrance of it was that you can look at the transcript if it is made available to construe an ambiguity - - -
McHUGH J: That depends on the rules of the court. I mean, the ordinary view is that you cannot draw inferences from a stated case, but many modern rules of court are so framed to give the court express authority to draw inferences from the facts stated, but I am not sure it applies to this case, which is a statement of circumstances.
MR JACKSON: Yes, your Honour, and in a particular statute, of course, not the Supreme Court Act itself. It comes from a provision of the Justices Act. But your Honours will see ‑ ‑ ‑
KIRBY J: It would seem a shame for this matter to go off on a point such as this, given that the fact is it was an Aboriginal Australian, he says he committed what would otherwise be an offence in his understanding of the traditional law, he did not use excessive violence, he simply opened the camera and removed the spool. But he then says that is an honest claim of right recognised by law.
MR JACKSON: Your Honour, can I say two things about that. The deficiency, if there be one, is a good reason why it should not go on, rather than not go off - go on this Court I mean. Your Honour, the second thing about it is that what your Honour has said about the circumstances does, with respect, reflect a rather bland view, if I may say so, of the things stated in the case.
KIRBY J: It is a brief view, but it is the overall position of the facts of the case. I remain of the view that it would be a misfortune if this matter were dealt with purely on a technical point concerning the stated case.
MR JACKSON: Your Honour, I appreciate what your Honour has put. I do not suggest for a moment that in an appropriate case where the issue is one that does directly arise for determination and has some consequence in relation to the parties to it, that may be an appropriate issue for the Court.
However, the position at the moment, your Honours, is that the questions reserved arose in circumstances where the applicant has been acquitted. The manner of determination of the questions by the Supreme Court cannot - and your Honours will see, “in any way affect or invalidate” that acquittal: section 162A(5). The applicant cannot be named or identified in relation to the Supreme Court proceedings. That is section 162A(9) and (10), it is “contempt” to do so. Your Honours, his acquittal is a defence to any further charge of “the same” or “similar” offences, that is section 18 of the Criminal Code.
Now, your Honours, the ‑ ‑ ‑
KIRBY J: But following Mellifont, the case is properly before us. A principle has been laid down which will stand as the law of the Northern Territory for all other cases of claims of honest claim of right.
MR JACKSON: Well, your Honour, with respect, no because that is where this case is not an appropriate case, in our submission, because the findings are not there and, your Honours, that is the next matter to which I wish to turn.
The issues sought to be raised do turn on very particular facts and the findings were not sufficient to resolve the claim of honest claim of right. That is where your Honours will see at page 82 in the application book in paragraph [41], the Court of Appeal did not decide that the honest claim of right contention could not succeed. What it said and your Honours will see this in paragraph [41], if one goes to line 15, they said:
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 ‑ ‑ ‑
KIRBY J: But that is a mistake too, is it not? He does not have to have an interest in the film in order to be able to establish an honest claim of right.
MR JACKSON: No, no, your Honour, I am sorry, your Honour, that is what they said. I agree with your Honour, and that is what the Court of Appeal said. The Court of Appeal said:
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 –
Then they say:
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 –
your Honour, nothing heterodox about that –
In this case, there was no finding by the learned Special Magistrate that Y held any such belief.
Then it is said:
Mr Basten QC invited us to consider Y’s evidence at the trial, where it was submitted –
and your Honours will see that and your Honours will see then in the last couple of lines:
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.
Then your Honours will see the remainder of that paragraph and their Honours have not decided this issue in circumstances where they have decided the principle of law adversely to the applicant. What they have said it was not an appropriate case, no more appropriate there than it is, with respect, here on that issue.
GAUDRON J: Part of the difficulty with your argument, though, is that it was your client’s draft stated case, was it not?
MR JACKSON: Well, your Honour, it was.
GAUDRON J: I mean, it may be too late to do anything about it, but ‑ ‑ ‑
MR JACKSON: Your Honour, we are not the applicant.
GAUDRON J: No.
MR JACKSON: The issue is one that was one which we had brought to the Supreme Court or caused to be brought to the Supreme Court. When it got to the Supreme Court, the two levels of that Court that dealt with it expressed observations about the inappropriateness of the way in which it was done and, your Honours, one sees that the question was not, in the end, answered in the way that would be decisive so far as that issue is concerned because of the deficiencies in the matter. Now, your Honours ‑ ‑ ‑
KIRBY J: Your point is that if the applicant, seeing this defect, wanted to have the findings recorded which it says was inherent in the magistrate’s determination, it ought to have made some submissions on the drafting of the stated case or on the case which he stated? I assume that both sides were given a facility to do that?
MR JACKSON: Your Honour, I do not know that that is actually right about both sides because your Honour will see the Court of Appeal actually making observations later about how these things should be done. Now, your Honours will see that commencing at paragraph [43] on page 83 and they speak in that paragraph of the “difficulties” in the procedures and the fact that what the case had not been – they refer to:
the manner and form in which the case stated came to be prepared for reservation to the Supreme Court.
Then, your Honours, they discussed that throughout the next page at paragraphs [47] through to [49] and finally in [49] say they regard “the procedure” as being “unsatisfactory”. Three different “sets of questions” had emerged. Then in paragraph [50] on page 86 they refer to there being:
no discretion in section 162A for a magistrate to refuse to act upon such a request.
They refer generally to the procedure that should be adopted. Your Honours, could I say that whilst it has not yet come into force, section 162A was repealed by an Act which was passed on 4 July this year. We have given your Honours copies of it, but your Honours will see from section 2 that it comes into operation on a date fixed by the administrator by notice in the Gazette and the notice has not yet been published.
KIRBY J: What does that do? You say the procedure is now by way of appeal, or - - -?
MR JACKSON: Well, your Honour, there is no case stated, there is just the ordinary appeal procedure, yes. Your Honour, I do not mean to suggest that it affects this case, as such, but ‑ ‑ ‑
KIRBY J: Except that it does remove any real point of dealing with the case on the basis of the stated case point.
MR JACKSON: Probably, your Honour, I cannot say the law is yet in force. But, your Honours, what I was going to say was this, that your Honours have heard referred to the Racial Discrimination Act point. Now, that appears to be relied upon in relation both to section 26(1)(a) and section 30(2) of Criminal Code. Now, your Honours, that is an entirely fresh argument and this case, in one form or another, has been to four courts before this and the point has never been raised and, your Honours, one can see that in, for example, the Court of Appeal’s reasons and I will come to that in a moment. Now, your Honours may say, “Well, this is a question of law”, but the questions – this is not just a case where one is dealing with
another tier of appeal, this is a case where a special limited procedure was the procedure that started off the matter, so far as the Supreme Court was concerned, where the particular questions that were to be asked were identified.
So, your Honours, the fourth thing, in our submission, is that if one goes to the arguments that were in the courts below, they appear, with respect, in relation to section 26(1)(a) to have been really rather different from those that would now be advanced to the Court. Could I say in this regard, if one goes to page 77 of the application book you will see the Court of Appeal is there as appears from the heading on the preceding page dealing with section 26(1)(a). Now, in relation to that, what your Honours will see is the finding by the magistrate recited at page 77, paragraph [30] and that is the argument - - -
GAUDRON J: We think we need not trouble you further on that, Mr Jackson. Mr Basten, anything in reply?
MR BASTEN: Only that what we seek to say in the submissions about the entitlement point is really that the question about whether one needs to go beyond the findings of the magistrate is not one which we seek to agitate in this Court. We are content to rely on the findings of the magistrate as being sufficient to justify the basis of the claim and we say that Walden v Hensler is authority for that proposition. If your Honours’ qualification about a non-legal regimen in Walden v Hensler were to have operation, it would have led your Honour to reach the opposite conclusion in that case because - - -
KIRBY J: Yes, but the problem is it is a question of whether this is an appropriate vehicle to present the issue you want to advance before this Court and the procedure that then applied, which does not now apply, is always a very troublesome and unsatisfactory procedure.
MR BASTEN: All I am seeking to say at this stage, your Honour, is that we need not go behind what appears on the face of the stated case and in ‑ ‑ ‑
KIRBY J: Yes, but you do not have on the face of the stated case the findings by the magistrate concerning what was your client’s honest belief. You do not have the findings actually made and recorded, in part, apparently, because of the defects of the procedure to which the Court of Appeal referred that tender the issue for this Court.
MR BASTEN: Yes, that is ‑ ‑ ‑
KIRBY J: That is not your fault, but it is the result of this procedure.
MR BASTEN: Your Honour, the question is whether the finding at page 16 of “an honest belief” of entitlement is a sufficient finding. But the second point is that, in a sense, that will never arise if we are right about the claim of a civil right in the first case. The honest belief as to one’s entitlement only ever arises if one is wrong in relation to the legal entitlement.
KIRBY J: Section 22 comes up first, 30(2) comes up second.
MR BASTEN: Yes, that is so, that is so, and one would think one just does not get to the question of one’s belief if one’s legal entitlement is present and that is the most ‑ ‑ ‑
KIRBY J: But you have to have the factual foundation presented by the finding in the stated case if you have that procedure which tenders the section 22 point.
MR BASTEN: Yes. Sorry?
KIRBY J: You have to have the factual finding.
MR BASTEN: The factual finding, yes. But, your Honour, there are very detailed factual findings in relation to the rights under the traditional law and custom. The question of law is what is the response of the general law of Australia in relation to those findings in relation to Yolngu law. But what is said by the magistrate in that respect is quite detailed, I cannot take your Honours through them, but it really starts at the beginning at the bottom of page 7:
(1) (a) The respondent is an Aboriginal . . . senior elder of the Gumatj clan.
Top of the next page:
(b) As the leader or senior elder, he has many responsibilities.
Those are set out in some detail. In paragraph (e), particularly line 3:
Under Yolngu law, if a stranger wishes to visit Gumatj land, it is expected that he approach the senior member of the land.
The last line:
The senior elder has a discretion. He can refused permission to enter.
(f) Another offence against Gumatj land, which is also an offence against Yolngu law, is the taking of photographs –
et cetera, et cetera. The findings in relation to the traditional law and custom are set out in detail, nobody doubts that and nobody has suggested that they are not there.
KIRBY J: I said earlier 22, but it is 26, and 26 still requires that the act or omission or event was done in the exercise and, therefore, you have to have the finding that that was what motivated and caused the exercise of that.
MR BASTEN: But, your Honour, that is the complaint about the finding at page 16. It is that his entitlement is stated in terms of Yolngu law. That there is a finding that he had an entitlement in relation to Yolngu law follows from everything which goes before that and the question is whether there is an omission for the purposes of section 30 because the extra step is not taken, namely that he believed that he was entitled under the general law to enforce Yolngu law. No issue has been taken against us in relation to the findings under traditional law and custom, with respect. Your Honours, those, I think, are the responses to what our friend said.
GAUDRON J: Yes, thank you, Mr Basten.
Given that the power of the Court in matters arising under a reference following an acquittal is limited to answering questions of law that arose in that trial, and given also the limited nature of the learned magistrate’s findings in this matter, this is not a suitable vehicle for the exploration of the issues posed by the special leave application.
Accordingly, the application is refused. We would not be minded to make any order as to costs unless counsel wish to address us specifically on that.
MR JACKSON: Your Honour, we have asked for costs. I do not think there is anything further I can say on the question.
GAUDRON J: Yes. Well, there will be no order as to costs.
The Court will now adjourn briefly to reconstitute.
AT 10.38 AM THE MATTER WAS CONCLUDED
0
2
0