Jenkins v Todd

Case [2016] NTSC 4

Jenkins v Todd [2016] NTSC 4

PARTIES:JENKINS, Trevor

v

TODD, Walter

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 10 of 2015 (21425645)

DELIVERED:  21 January 2016

HEARING DATES:  10, 29, 30 and 31 December 2015, 15 and 20 January 2016

JUDGMENT OF:  BARR J

APPEAL FROM:  COURT OF SUMMARY JURISDICTION

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Trespass Act s 10 – appellant convicted of offence being a trespasser in Parliament House, failing or refusing to leave when so directed by the occupier – complainant averred that security guard an occupier – averment prima facie evidence of the fact – no contrary evidence – antecedent act of trespass established – all other elements of the offence proven beyond reasonable doubt – appeal dismissed.

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Criminal Code s 188A(1) – appellant convicted of offence of assault against worker in the performance of his duties – all elements of the offence proven beyond reasonable doubt – appeal dismissed.

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Police Administration Act s 158 – Appellant convicted of offence of resisting member of Police Force in the execution of his duty – police member arrested appellant in purported reliance on s 10 Trespass Act – no mandatory warning given to appellant of consequences of failing to leave premises forthwith – arrest not lawful – not proven beyond reasonable doubt that appellant resisted police member in execution of duty – appeal allowed – guilty finding quashed.

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – Appellant alleged denial of procedural fairness – appellant claimed he was denied access to replaying CCTV footage in giving evidence in chief – trial transcript showed no restrictions – appellant placed in vulnerable witness room to prevent his disrupting hearing – no substantial injustice – appellant failed to demonstrate denial of procedural fairness – appellant also claimed magistrate erred in placing weight on CCTV which was video-only – magistrate assessed video evidence with other witnesses’ evidence – appellant failed to demonstrate error – appeal dismissed.

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – SELF-REPRESENTED LITIGANTS – Appellant found by magistrate to have been untruthful – problem of assessing merits of appeal submissions in relation to facts in evidence and claims of procedural unfairness in court below.

Anti-Discrimination Act s 20(1), s 28
Criminal Code (NT) s 22, s 26(1)(d), s 187(a)(e), s 188A(1), s 188(2)(b), s 361(2)
Justices Act s 177(2)(c)
Legislative Assembly (Powers and Privileges) Act s 8(a)
Legislative Assembly (Security) Act s 5(1)(f)
Police Administration Act s 123, s 158
Private Security Act s 7
Trespass Act (NT) s 4(1), s 7(1), s 9(1), s 10, s 11(1), s 12(a), s 13(2), s 14(a).
Northern Territory Law Reform Committee, Trespass Act, Report No. 38, April 2013.

Barker v The Queen (1983) 153 CLR 338; Finance Facilities Pty Ltd v Federal Commissioner…

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AGLC
Jenkins v Todd [2016] NTSC 4
Case
[2016] NTSC 4
Decision Date

CaseChat Overview and Summary

In Jenkins v Todd, the appellant, Jenkins, appealed against his convictions on three counts. The first count related to trespassing in Parliament House after being directed to leave by a security guard, the second count was for assaulting the security guard, and the third count involved resisting a police officer during an arrest. The court was required to determine the validity of these convictions based on the evidence presented and the legal principles applicable to each offence.

The court examined the evidence of the security guard, Mr. Daffey, who testified that he directed Jenkins to leave Parliament House after it closed to the public. The court accepted Mr. Daffey's evidence, noting his neutral body language and consistent gestures directing Jenkins to leave. CCTV footage supported Mr. Daffey's testimony, showing Jenkins' aggressive behaviour and refusal to leave. The court found that Jenkins became a trespasser either by remaining in the building after 6:00 pm or by not leaving within a reasonable time after being directed to do so by Mr. Daffey. Thus, the court upheld the conviction for trespassing.

For the assault charge, the court reviewed the CCTV footage and found it clearly showed Jenkins' hands on Mr. Daffey's chest, confirming the magistrate's finding of an assault. The court also dismissed Jenkins' defence of honest and reasonable but mistaken belief regarding his entitlement to attend the awards ceremony, concluding that his persistence despite being informed of his exclusion was unreasonable.

Regarding the charge of resisting a police officer, the court found that the arrest was not lawful because the mandatory warning required by the Trespass Act was not given to Jenkins. Consequently, it was not proven beyond reasonable doubt that Jenkins resisted the police officer in the execution of their duty. The court quashed the conviction for this count.

In summary, the court allowed the appeal in part, quashing the conviction for resisting a police officer but affirming the convictions for trespassing and assaulting a security guard.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For reasons which follow, I propose to allow the appeal in part. The finding of guilt and consequent conviction on count 3 should be quashed, and the appellant found not guilty on that count.[8] However, with respect to counts 1 and 2, I affirm the magistrate’s findings of guilt and convictions.[9] Background The Northern Territory Literary Awards (“the Awards”) are presented annually to the winning entry in each of six categories of literature: short story, poetry, travel short story, essay, youth creative writing and play script. The Awards are a Northern Territory Government program, in collaboration with Charles Darwin University, and with the sponsorship and support of a number of other organisations. The Awards are administered by the Northern Territory Library. In 2014, the announcement of the winners and presentation of awards took place at a ceremony (“the Awards ceremony”) held at the Northern Territory Library, Parliament House, in the evening of Thursday 29 May 2014. The Northern Territory Library occupies a significant area within Parliament House. In order to gain access to the Library, a member of the public must enter through the front door of Parliament House, pass through the security station, proceed into the Main Hall of Parliament House, and then turn into the Library premises. The front door security station screens all persons who enter Parliament House through the front door, whether they are going to the Legislative Assembly, Parliamentary or Ministerial offices, the Library or to the café. Emma Derby, the Assistant Director of the Northern Territory Library, was the organiser of the Awards. The appellant’s entry to the Awards was rejected by Ms Derby, for reasons not presently relevant.[10] Because the appellant then continued to communicate by email with the Library, and the meaning of those emails was unclear, Ms Derby formed the view that the appellant would try to attend the Awards ceremony and disrupt the event.[11] Whether that view was right or wrong was ultimately irrelevant, both to the magistrate’s findings and to the appeal. The Awards ceremony was an invitation-only function. Ms Derby was the organizer of the function. She issued the invitations. She invited sponsors, VIPs, judges and entrants. She did not invite the appellant.[12] Further, because Ms Derby apprehended that Mr Jenkins would attempt to attend and disrupt the function, she asked Mr Caldwell, Director of Security for the Legislative Assembly and the person responsible for all security matters in relation to Parliament House, to direct security staff not to allow the appellant to attend the ceremony.[13] Mr Caldwell in turn passed on the instruction to Robert Daffey, the contracted security provider’s site supervisor. On Thursday 29 May 2014, from about 5.30 pm, security guard Mark Daffey was on duty at the Parliament House front door security station. A second security guard, Alex Skopellos, was working with him at the same location. Parliament House was closed to the general public after 6.00 pm.[14] The offending

Evidence

Evidence Before The Court

At that point, the appellant told Mr Daffey defiantly that Mr Daffey would not stop him coming through, that he (the appellant) was going to the Literary awards. The appellant said, “You can’t stop me”. The appellant’s demeanour was very aggressive and he was speaking very loudly, getting very close to Mr Daffey. Mr Daffey told Mr Skopellos to ring the police. The appellant then went around to the side of the metal detector doorway, into a space between the right upright of the doorway and the x-ray machine, pushed Mr Daffey out of his way,[23] and continued through into the Library area of the building. CCTV evidence One of the video surveillance files contained in Exhibit P6 was labelled “Trevor Jenkins – Concourse.wmv”. The area the subject of surveillance shown in that footage was the lobby area of Parliament House, where the entry security station was set up. The times I now mention reflect the 24-hour times shown on the CCTV. By 17:58:48, the appellant had arrived and walked through the front door of the building. He was carrying bags in both hands, which he placed into the x-ray machine. At the appeal hearing the appellant said (whether by way of submission, or in attempting to give evidence from the Bar table) that he had already been in the building for about five minutes when he was shown apparently arriving at 17:58 or thereabouts.[24] He also claimed that he had entered through a door other than the door through which the CCTV showed him having entered, and indeed claimed that there was no entry door where the CCTV showed him having entered. The point of the appellant’s submission was unclear. The appellant submitted that it showed Mark Daffey to have been unreliable.[25] The submission actually highlighted the appellant’s own unreliability. When I asked the appellant whether he had given evidence himself or cross-examined any witnesses to the effect that he had been in the building already for five minutes at the time he was shown apparently entering through the allegedly non-existent door, he became very angry. He ultimately conceded that the point was of no relevance.[26] I summarise below my observation of the CCTV footage from 17:59:10. At 17:59:10, a security guard with a short pony tail (Mark Daffey) stood in front of the metal detector doorway, blocking the appellant from passing through. The appellant was approximately one metre away from Mr Daffey and appeared to be gesticulating and pointing with his left hand, presumably in the direction of the Library where he wished to go. At 18:00:05, the appellant had not passed through the metal detector. As mentioned above, Parliament House was closed to the public after 6.00 pm. As a member of the public, the appellant had no right to be in the building at 18:00:05. Even if the appellant had entered into the Parliament House building prior to 6.00 pm, as a member of the public he had no right to remain within the building after that time. For the next minute, until 18:01:10 the appellant appeared to be in conversation with Mr Daffey (consistent with him stating his perceived entitlement to enter further within). On three or possibly four occasions, Mr Daffey pointed towards the front door with his right arm extended (consistent with his directing the appellant to leave the building).

Decision

Reasons for decision

Even after the appellant had been placed in a police van outside the building, he yelled abusive and offensive language. At the Darwin watch house, he continued to swear and use offensive language. He called a female police officer or auxiliary at the front desk “a fat cunt that eats McDonalds all the time”.[34] The magistrate took into account the appellant’s denials of such conduct as one of the matters on which he based his finding that the appellant was not a truthful witness.[35] The magistrate’s decision In relation to counts 1 and 2, the magistrate accepted the evidence of Mr Daffey and the supporting evidence of Mr Skopellos. Moreover, his Honour relied upon his own careful assessment of the CCTV footage, noting its technical limitations, and concluded as follows:[36] … I did see carefully the body language of the parties at the front of Parliament House. The body language of Mr Daffey was very neutral. He clearly is seen talking to the accused. He uses neutral hand gestures at all times, open handed. When he talked … to Mr Jenkins [he] was regularly gesturing for the exits, he is standing still or indeed, especially from about the tenth minute of the footage onwards, he is regularly retreating from Mr Jenkins and his language is consistent with a person who is endeavouring to defuse a situation and I note Mr Jenkins appears to be yelling at him. His [the appellant’s] body language is aggressive; his gesticulations are increasingly towards the face of Mr Daffey. He gets closer and closer and invades the personal space of Mr Daffey and I must say that I, when considering the cross examination of Mr Daffey, took great note of the footage and in no small part that gave me real comfort that Mr Daffey’s account was the truthful account and an honest account. The magistrate rejected the evidence of the appellant. He found that the appellant was an untruthful witness. He was satisfied that the appellant had screamed incoherently and loudly at Mr Daffey.[37] He made a finding that the appellant had been repeatedly directed in plain language by Mr Daffey to leave Parliament House, but that he had repeatedly failed and refused to do so.[38] On appeal, the appellant has not persuaded me that the magistrate’s findings were wrong. The magistrate made a finding to the effect that security guard Mark Daffey was acting on the authority (or with the authorisation) of the occupier when he directed the appellant to leave Parliament House, and that Mr Daffey “indeed may have been himself a lawful occupier at that time”.[39] On that basis, the magistrate found the appellant guilty of the offence charged as count 1. In relation to count 2, the assault charge, the magistrate noted that he could actually see from the CCTV footage that the appellant’s hands were applied to the chest of Mr Daffey. The magistrate accepted Mr Daffey’s evidence as truthful.[40] Moreover, his Honour was satisfied beyond reasonable doubt that the prosecution had disproved the defence of honest and reasonable but mistaken belief[41] on the part of Mr Jenkins as to his entitlement to attend the Awards ceremony. The magistrate found that it was unreasonable for the appellant to continue to believe that he was entitled to attend after it had been carefully and patiently explained to him by Mr Daffey that the function was a private function and that the appellant was not invited.[42] Consideration – count 1

Ratio Decidendi

Legal Principle Established

In relation to count 2, the assault charge, the magistrate noted that he could actually see from the CCTV footage that the appellant’s hands were applied to the chest of Mr Daffey. The magistrate accepted Mr Daffey’s evidence as truthful.[40] Moreover, his Honour was satisfied beyond reasonable doubt that the prosecution had disproved the defence of honest and reasonable but mistaken belief[41] on the part of Mr Jenkins as to his entitlement to attend the Awards ceremony. The magistrate found that it was unreasonable for the appellant to continue to believe that he was entitled to attend after it had been carefully and patiently explained to him by Mr Daffey that the function was a private function and that the appellant was not invited.[42] Consideration – count 1 The elements of the offence charged as count 1 were as follows:1.The appellant trespassed on a place, Parliament House, Darwin;2.The appellant was directed to leave that place by security guard, Mark Daffey;3.Mark Daffey was an occupier of Parliament House, Darwin, at the relevant time;4.The appellant failed or refused to leave forthwith. For an offence charged contrary to s 7 Trespass Act, the prosecution must prove an antecedent act of trespass, in the sense that the offender must already be a trespasser before the direction to leave by an occupier can result in the commission of an offence through non-compliance with the direction.[43] The appellant lawfully entered Parliament House at or about 5.58 pm pursuant to an implied licence to do so, an implied licence in common with all members of the public. The appellant did not enter as a trespasser.[44] However (leaving aside for present purposes the direction given to the appellant before 6.00 pm by Mr Daffey), the appellant’s implied licence entitled him to remain at Parliament House only until 6.00 pm. His licence was then exhausted. By not leaving Parliament House within a reasonable time after 6.00 pm, the appellant became a trespasser. In the case of the appellant, who was standing in the lobby just inside the entry point to the building, a ‘reasonable time’ was a very short time. It was not as though he had to walk all the way from the far end of the Main Hall, some distance from the exit. Alternatively to [55], after 6.00 pm, by not leaving Parliament House within a reasonable time of being directed to do so by Mr Daffey, an occupier, the appellant became a trespasser. As explained in [55], a ‘reasonable time’ was a very short time. It is difficult to state a precise time at which the appellant became a trespasser. If the fact situation in [55] applies, he became a trespasser at or before 6.01 pm. If the fact situation in [56] applies, then, having regard to the evidence of Mr Daffey and noting the times referred to in [25] and [27] at which further directions to leave were given, the appellant became a trespasser at or before 6.04 pm. This conclusion is supported by the fact that Mr Skopellos, in his phone call starting at 18:03:35, complained that the appellant would not leave the building.