Inder-Smith & Ors v Tudor-Stack - [2004] NTSC 48

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PARTIES: INDER–SMITH, ROBERT
MEYERHOFF, GARY
HIGHWAY, STUART
LAMBE, MICHAEL
MEYERHOFF, GARY

TUDOR–STACK, PAUL

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NOS: JA 100/03 (20207624)
JA 101/03 (20207623)
JA 102/03 (20207648)
JA 104/03 (20207640)
JA 105/03 (20207623)

DELIVERED: 17 SEPTEMBER 2004

HEARING DATES: 30 & 31 AUGUST 2004, 1 SEPTEMBER 2004

JUDGMENT OF: ANGEL J

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES

Offence against Government – whether appellants intentionally disturbed the Legislative Assembly – challenge to jurisdiction of the Court – relevance of implied freedom of communication – whether prosecution politically motivated – whether magistrate biased - relevance of appellants’ motivation – whether provocation

Bill of Rights 1688 (UK), article 9
Criminal Code, s 31, s 34 and s 61(a)
Geneva Conventions Act 1957 (Cth)
Legislative Assembly (Powers and Privileges) Act, s 6
Northern Territory (Self-Government) Act 1978 (Cth), s 12

Phillips v Bahnert [1998] NTSC 68, followed
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, followed

Dietrich v The Queen (1992) 177 CLR 292, distinguished

REPRESENTATION:

Counsel:
Appellants: Self–represented
Respondent: Mr Michael Carey,
instructed by Mr Peter Thomas

Solicitors:
Appellants: Self–represented
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: Ang200405
Number of pages: 22

Ang200405

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Inder–Smith & Ors v Tudor–Stack [2004] NTSC 48
Nos. JA 100/03 (20207624)
JA 101/03 (20207623)
JA 102/03 (20207648)
JA 104/03 (20207640)
JA 105/03 (20207623)

BETWEEN:

ROBERT INDER–SMITH
GARY MEYERHOFF
STUART HIGHWAY
MICHAEL LAMBE
GARY MEYERHOFF
Appellants

AND:

PAUL TUDOR–STACK
Respondent

CORAM: ANGEL J

REASONS FOR JUDGMENT

(Delivered 17 September 2004)

[1] On 22 May 2003 each of the four appellants was found guilty of intentionally disturbing the Legislative Assembly while it was in session on Tuesday 14 May 2002, contrary to s 61(a) Criminal Code NT. The hearing in the Darwin Court of Summary Jurisdiction commenced as joint committal proceedings and concluded with the conviction and sentencing of each appellant. Each appellant appeals against his conviction and the appellant Meyerhoff, in addition, appeals against an order of the Court setting aside the issue of a subpoena against the Police Commissioner.
[2] The appeals arise from an incident which occurred in the Legislative Assembly of the Northern Territory on 14 May 2002 while it was in session. Nine persons, including each appellant, were charged in relation to the incident. With respect to one such person proceedings appear to be outstanding. Four persons pleaded guilty. Each present appellant pleaded not guilty. Each appellant also appeals against his sentence. The appeals against sentence are deferred, and I have not addressed the grounds of appeal in so far as they relate to sentence. In the event the appeals against conviction are dismissed the appeals against sentence will be heard with the appeal against sentence of a co–defendant…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Inder-Smith & Ors v Tudor-Stack [2004] NTSC 048
Case: [2004] NTSC 48
Decision Date: 17/09/2004

CaseChat Overview and Summary

Inder-Smith and others were convicted of intentionally disturbing the Legislative Assembly while it was in session, an offence contrary to s 61(a) of the Criminal Code NT. Each appellant pleaded not guilty and appealed against their conviction and sentence. The appellant Meyerhoff also appealed against an order of the Court setting aside the issue of a subpoena against the Police Commissioner. The appeals were heard in the Supreme Court of the Northern Territory, which found that the appellants were amongst those who entered the Assembly on the day in question and that the business of the Assembly was suspended as a result. The appellants' strongly held views on drugs, whilst unacceptable to those against any relaxation of current drug laws, had strong support elsewhere. The court considered the common grounds of appeal, including whether the Court of Summary Jurisdiction had jurisdiction to try the case, whether the appellants were legally unrepresented and were denied various applications for adjournment, whether the prosecution was politically motivated and the trial politicised and that the appellants had been subjected to selective prosecution, whether the learned Magistrate was biased, and whether the appellants' actions were excused on account of provocation under s 34(3) Criminal Code NT. The court found that the arguments raised by the appellants were without merit and dismissed each appeal against conviction. The court held that the offending was undoubtedly of a political character, and the prosecution of the present offences, given the nature of the offending, was understandable and could not be said to be selective or partial or animated by other than proper motives. The court concluded that no miscarriage of justice occurred when each appellant was convicted of an offence contrary to s 61 Criminal Code NT.

Orders