Kenwright v Hales
[2000] NTSC 6
•28 February 2000
Kenwright v Hales [2000] NTSC 6
PARTIES:WILLIAM STANLEY KENWRIGHT
and
PETER WILLIAM HALES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA74 of 1999 (9903405)
DELIVERED: 28 February 2000
HEARING DATES: 31 January 2000
JUDGMENT OF: MILDREN J
CATCHWORDS:
Appeal - criminal law - mandatory sentence - domestic violence restraining order.
Appeal - criminal law - regulatory offence with no prescribed penalty does not become simple offence - Part II Criminal Code (NT) does not apply to regulatory offences - no criminal intent required in regulatory offence.
Appeal - criminal law - where honest and reasonable mistake exists that a court order has lapsed, entry to a building is without requisite criminal intent.
Legislation
1.Justices Act (NT) s163
2.Criminal Code (NT) s213; s188(1); ss213(1), (2), (3), (4), (5), (6)
3.Trespass Act (NT); s5; s4; s11(1)
4.Summary Offences Act; s69A
5.Sentencing Act (NT) s78A(3)
Cases
1.M v The Queen (1994) CLR 487, referred
2.Gipp v The Queen (1998) 194 CLR 106, referred
REPRESENTATION:
Counsel:
Appellant:Ms S Cox
Respondent: Mr P Tiffin
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Mil00215
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINKenwright and Hales [2000] NTSC 6
No. JA74 of 1999 (9903405)
BETWEEN:
WILLIAM STANLEY KENWRIGHT
Appellant
AND:
PETER WILLIAM HALES
Respondent
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 28 February 2000)
MILDREN J:
This is an appeal pursuant to s163 of the Justices Act from a decision of Mr Wallace SM on 23 September 1999.
The proceedings before the learned Magistrate had originally involved a total of 21 charges against the appellant arising out of events which had occurred on 12 and 13 February 1999. Of these, six were withdrawn, eleven were dismissed and the appellant was found guilty in respect of the remaining four charges. Only two of the charges upon which the appellant was convicted are the subject of appeal:
1. aggravated unlawful entry of a building with intent to commit a simple offence therein, contrary to s213 of the Criminal Code; and
2. unlawful assault contrary to s188(1) of the Criminal Code.
The appellant was sentenced to fourteen days mandatory imprisonment in respect of the first charge (cumulative upon a mandatory period of seven days imprisonment imposed in respect of one of the remaining charges not the subject of the appeal) and fined in respect of the second. Having served the period of seven days imprisonment, the appellant has been released on bail pending determination of his appeal in respect of these two convictions.
The charges in question arise out of actions taken by the appellant on 13 February 1999. At that time a Domestic Violence Order existed, which had been made by consent in respect of the appellant, requiring relevantly that he refrain from entering the premises situated at 6 Verbena Street, Nightcliff where the complainant, Ms Ingles, was then living, or contacting or approaching her. This order had been made on 6 March 1998 and was to continue in force until 6 March 1999 unless sooner revoked or varied. No such revocation or variation had occurred. The existence of this order was not in dispute, nor that the appellant had entered the building the subject of the order on the morning of 13 February while Ms Ingles was on the premises. The appellant was found guilty by the learned Magistrate of failing to comply with this order and has served the period of seven days mandatory imprisonment imposed in respect of that offence.
However, the defendant appealed his conviction in respect of the aggravated unlawful entry of the building with intent to commit a simple offence therein on the grounds that:
1. the learned Magistrate erred in ruling that there was no authorisation to enter the premises;
2. the learned Magistrate did not give sufficient weight to the evidence of the complainant in relation to the charge of unlawful entry, namely:
(i.)that she gave authorisation to the appellant to enter the premises, despite the Domestic Violence Order which was in force;
(ii.)that she had informed the appellant that the Domestic Violence Order which she had taken out against the appellant was concluded;
3. the learned Magistrate misdirected himself in terms of the intention of the appellant to enter the premises unlawfully;
4. the learned Magistrate erred in failing to consider the defence of honest and reasonable mistake of fact in relation to the charge of unlawful entry.
Without objection by the respondent Ms Cox, counsel for the appellant, sought to add a further ground at the hearing of the appeal, that the charge was "incorrectly framed".
The second charge the subject of the appeal was one of unlawful assault on Sean Richards. Mr Richards and Ms Ingles had enjoyed a relationship, although their evidence differed as to its scope and nature. In particular, Mr Richards suggested that it had ended only shortly before the proceedings before the learned Magistrate, while Ms Ingles' evidence was that it had ended prior to 13 February 1999. In any event, it is not contested that Mr Richards was present at the premises on the morning of 13 February 1999 at the time the assault was found by the learned Magistrate to have occurred. However, the appellant appeals his conviction of assaulting Mr Richards on the ground that the learned Magistrate erred in finding that the charge was proved beyond reasonable doubt.
The charge of aggravated unlawful entry of a building with intent to commit a simple offence therein.
The evidence at the hearing before Mr Wallace SM was that there had been some degree of contact and communication between the appellant and the complainant during January 1999. The complainant's evidence was that she had been to his home, including for dinner, or phoned him, on a number of occasions prior to 13 February. She had also agreed to his coming over to her home on one occasion during January and had even gone so far as to agree that, irrespective of the restraining order, they should feel free to contact one another if either needed help.
In addition to this record of dealings between the appellant and the complainant in the weeks preceding the events in question, the complainant also indicated in her evidence before the learned Magistrate that she had told the appellant in January that she thought that the restraining order finished in February. She had thought that the order had ceased by the morning of 13 February and had probably also told the appellant that this was her understanding. Broadly consistent with this evidence, the appellant in his record of interview with the police indicated that he had also been mistaken about the continued existence of the order as a result of his own lack of documentation and by being misinformed by a court officer.
Coming to the events in question, the appellant had phoned the complainant's phone number on a number of occasions on Friday, 12 February 1999 and early on the morning of Saturday, 13 February. The last of those calls was at 12:35 am, after which the appellant went to the complainant's premises. The complainant's evidence was that there was a knock on her door to which she replied "Come in", after which the appellant entered the premises. The learned Magistrate was clearly of the view that the appellant had the complainant's permission to enter the premises; however, he did not consider that this permission could constitute "authorisation" for the purposes of the Trespass Act.
Section 213(1) of the Criminal Code provides that "any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence". It is clear from this provision that the intent to commit the offence must be held at the time the person unlawfully enters the building. The only offence it was alleged that the appellant intended to commit was that of trespass, as provided for in the Trespass Act.
Although the form of trespass was not particularised, it seems clear, as the learned Magistrate concluded, that the form of trespass in question was that of trespass on enclosed premises: see Trespass Act, s5. The appellant commits that offence only where his trespass is "unlawful" under the Trespass Act; that is, "without authorisation, justification or excuse" (s4(1)). If at the time of the appellant's entry to the building, his action was authorised within the meaning of this provision, that action was not unlawful within the meaning of the Trespass Act. However, the learned Magistrate concluded that the appellant had no "authorization" within the meaning of that term in the Trespass Act. He concluded that the complainant had no power to grant such permission, as it would be inconsistent with the terms of the Domestic Violence Order.
Was the charge "correctly framed"?
It is convenient to deal with this ground of appeal first. The submission of Ms Cox, for the appellant, was that on its true construction, s213(1) of the Criminal Code applied only to simple offences and to crimes, and that as trespass is a regulatory offence, the appellant could not have been lawfully convicted.
Sections 213 and 214 of the Code provide as follows:
213 UNLAWFUL ENTRY OF BUILDINGS
(1) Any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence.
(2) If he does so with intent to commit a simple offence therein he is guilty of a simple offence and is liable to imprisonment for one year; if the building is a dwelling-house he is liable to imprisonment for 2 years.
(3) If he does so with intent to commit therein a crime for which the maximum punishment is not greater than 3 years imprisonment, he is guilty of a crime and is liable to imprisonment for 3 years; if the building is a dwelling-house he is liable to imprisonment for 5 years and, if it is actually occupied at the time of his entry, he is liable to imprisonment for 7 years.
(4) If he does so with intent to commit any other crime therein he is guilty of a crime and is liable to imprisonment for 7 years; if the building is a dwelling-house he is liable to imprisonment for 10 years.
(5) If he commits an offence hereinbefore defined at night-time he is liable to twice the punishment prescribed for that offence.
(6) If he commits an offence defined by this section when armed with a firearm or any other dangerous or offensive weapon, he is liable to imprisonment for 20 years; if the building is a dwelling-house he is liable to imprisonment for life.
214. UNCERTAINTY AS TO OFFENDER'S INTENT, &c.
(1) If it is proved that a person has unlawfully entered a building with intent to commit a simple offence or crime therein, but the evidence cannot establish which, he shall be found guilty of unlawful entry with intent to commit a simple offence.
(2) If it is proved that a person has unlawfully entered a building with intent to commit a simple offence or crime therein, but the evidence cannot establish which, he shall be found guilty of unlawful entry with intent to commit a crime for which the maximum punishment is not greater than 3 years imprisonment.
(3) Proof of the fact that a person has unlawfully entered a building is evidence that he did so with intent to commit a simple offence or crime therein.
Nowhere is there to be found in either s213 or s214, any reference to regulatory offences with the consequence, so it was submitted, that no penalty was prescribed for a breach of s213(1), if the offence intended to be committed was a regulatory offence. Ms Cox submitted, therefore, that the legislature intended to limit the words "any offence" in s213(1) to simple offences and crimes. Mr Tiffin, for the respondent, submitted that the words "any offence" should be given their natural and literal meaning. He submitted that the fact that no penalty was prescribed did not matter: an offence was created by the subsection and although he was unable to point to any statutory provision dealing with the problem, he felt sure that provision was made somewhere. Mr Tiffin is correct on this latter point; s69A of the Summary Offences Act provides a penalty of three months imprisonment for "doing an act that he is forbidden to do...by a law in force in the Territory" unless the law concerned provides for a penalty intended to be exclusive of all other punishments. Consequently, the fact that ss213 and 214 do not prescribe any relevant penalty is not conclusive. However, it is a relevant consideration because it seems unlikely that the legislature would deal so comprehensively with simple offences and with crimes and omit all reference to regulatory offences, particularly in s214(1), if it was intended to cover regulatory offences as well.
There are two other considerations which also point to the conclusion that Ms Cox's submission is correct. The first is that if s213(1) covered regulatory offences, with the consequence that the maximum penalty is three months, the situation could arise under s78A(3) of the Sentencing Act whereby the minimum penalty (twelve months) exceeded the maximum penalty. This is such a startling proposition that I cannot imagine that the legislature expected s213(1) to cover regulatory offences. The second consideration is that it is inherently difficult to speak of having an intent to commit a regulatory offence. By their nature, regulatory offences are offences of strict liability and no intent is required: see Criminal Code s22. I would therefore construe the expression "with intent to commit any offence therein" to be confined to any offence where proof of a mental element is required. Therefore, if the offence of trespass is a regulatory offence, the charge against s213(1) should have been dismissed.
However, there is a further difficulty which causes me to hesitate before allowing the appeal solely on this ground. Section 5 of the Trespass Act provides:
A person who trespasses unlawfully on enclosed premises commits an offence.
The word "unlawfully" is defined by s4(1) of the Trespass Act to mean, in relation to trespass, "without authorization, justification or excuse". Prima facie this would appear to require that Part II of the Criminal Code applies to offences against s5. Yet s11(1) provides that offences against the Act are only regulatory offences. Consequently, Part II of the Criminal Code does not apply (with some minor exceptions): see Criminal Code, s22. It is difficult to reconcile these provisions, and I respectfully suggest that this apparent conflict needs the attention of the legislature No argument was addressed to me on this question, it being assumed by both sides that as s5 was a regulatory offence, s31 of the Code did not apply. I am by no means sure that this is correct. However, it is not necessary for me to resolve this conundrum because I am satisfied that if s31 does apply to the offence of trespass upon enclosed land, the learned Magistrate did not find that the appellant had any such intent and I am not prepared to infer that the existence of such an intent was inherent in his Worship's findings as suggested by Mr Tiffin. One of the defences raised by the appellant to the charge covering the breach of the Domestic Violence Order was that the appellant believed that the order had lapsed. His Worship held that as that offence was a regulatory offence, the defence of honest and reasonable mistake under s32 of the Criminal Code did not apply. His Worship therefore did not rule that the appellant entered the land knowing that the order was in force and in deliberate violation of it; he seemed to accept the possibility that the appellant may have been mistaken. If this be so, it is difficult to see how in the circumstances of this case, his Worship could have found that the appellant deliberately entered the premises knowing that he was a trespasser. I would therefore allow the appeal against conviction in relation to the unlawful entry charge.
The charge of unlawful assault contrary to s188(1) of the Criminal Code
Counsel for the appellant submits that the evidence of assault was such that the learned Magistrate should have held a reasonable doubt as to guilt. Ms Cox submitted that examination of the whole of the evidence that was before his Worship showed that it contained discrepancies, displayed inadequacies, or otherwise lacked probative force such as to lead to a conclusion that there was a significant possibility that an innocent person had been convicted: see M v The Queen (1994) 181 CLR 487 at 494; Gipp v The Queen (1998) 194 CLR 106 at 114, 150.
Mr Richards' evidence before the learned Magistrate was that he had been sitting in a lounge chair when the appellant entered Ms Ingles' home. Mr Richards stated that he then stood and, upon realising it was the appellant, began to dial "000" on his mobile phone which he had been wearing on his belt. His evidence was that the appellant attempted to stop him doing so, lunging at him to take the mobile phone away. He began backing down the corridor of the home, which leads to the main bedroom, with his left arm held protectively in front of him while still using the phone. Having backed into the main bedroom, Mr Richards' evidence was that the appellant then hit him in the mouth with his right fist knocking him to the ground. Mr Richards stated that the appellant was then "on top of me" and that he ended up on his back attempting to ward off punches being thrown by the appellant. He was able to end the assault by lying to the appellant about his identity, claiming to be a police officer by the name of Sgt. Jackson.
The appellant's version, as contained in his record of interview with the police, is that he had been depressed over problems in his relationship with Ms Ingles, as a consequence of which he was admitted to Cowdey Ward at the Royal Darwin Hospital where he was prescribed anti-depressants and released the next day. On the day in question, he received a message from one of his sons that another son had had an accident which caused him to lose a finger. The appellant has been separated from his former wife and his sons for a considerable time and had not heard from his sons for four years. At the time the appellant was sharing a house with three other people, all of whom were absent that weekend. The appellant went to the beach, taking with him a bottle of wine which he consumed. When he returned home he found he had locked himself out. He decided to contact Ms Ingles who had a set of spare keys to the house as well as a diary of his which contained his son's silent number and whom he wished to call. He claimed to have called Ms Ingles' number several times from a public telephone, but was unable to speak to her, although he did speak briefly to one of her daughters and on one occasion, with someone who identified himself as Detective Sean Edwards. Eventually, after being locked out for some five hours, he went around to Ms Ingles' house (having in the meantime bought another small bottle of alcohol) in order to retrieve his keys and his diary. When he arrived, Ms Ingles asked him in. He spoke to Richards who immediately identified himself as Detective Sean Edwards. The appellant asked him for some proof of his identification. Ms Ingles asked him to leave and when he did not do so, rang the police. At no stage did he leave the lounge area or assault Richards, or see Richards using a mobile phone. His next recollection was that the police arrived and he was arrested. He had no recollection of being taken to hospital or having stitches inserted for an injury he sustained whilst in the course of being arrested. He did not recognise the interviewing police officers as the police who had arrested him. He said that he had lost his personal papers, including his copy of the Domestic Violence Order, which had been stored in a shed whilst he moved house and had gotten wet. He rang the courthouse and was told that the order had expired on 29 January 1999. He did not believe the order was still in force when he went around that night.
There was evidence that a number of telephone calls were made from the appellant's telephone to Ms Ingles' telephone on the 12th and 13th of February 1999, in the form of a statutory declaration, Exhibit 3, which was tendered without objection. This showed that a number of phone calls were made between 22:50 hours on the 12th and 0:35 hours on the 13th. This document casts significant doubt upon the accuracy of the appellant's statement to the police that he was locked out of the house for five hours that evening and needed to go to Ms Ingles' home in order to retrieve his keys and his diary, and that he made the calls from a public telephone. However, rejection of this part of the appellant's account does not mean that an inference of guilt must be drawn; nor does it necessarily mean that the whole of his account to the police should be rejected.
Critical to Mr Richards' evidence was that he was able to diffuse the attack by telling the appellant, when the appellant was on top of him in the bedroom, that he was a police officer. The appellant claimed that Richards had so identified himself as soon as the appellant arrived at Ms Ingles' home. In this respect the appellant's account was supported by Ms Ingles. According to her, when the appellant arrived, he knocked at the door. She expected this to be the appellant because of something that had been told to her by one of her daughters. She said, "Come in", and the appellant entered the house. When he came in and saw Richards he said, "Who are you?". Richards replied, "I am Sean Edwards". Ms Ingles wondered why Richards had used that name. The appellant said, "What are you doing here?" and Richards replied, "I'm a detective". The appellant said "Show me your I.D." and Richards said "I don't carry any, I don't have any I.D. on me". The appellant at this stage was pointing at Richards' chest and Richards moved backwards along the corridor towards Ms Ingles' bedroom, whilst the appellant kept asking to see his I.D. She did not see either man enter her bedroom and contrary to Richards' evidence, she said that she at no stage went to the bedroom. She said that she or one of her daughters made the call to the police (not Richards) and gave no evidence of seeing Richards using a mobile phone. She saw no assault and when she returned to the lounge a few minutes later, having called the police, Richards and the appellant were in the lounge room and they appeared to be quite friendly to one another.
Further, Richards denied having used the name Edwards when the police arrived; but both police officers said he did.
No other evidence was given to support any alleged assault. There was no medical evidence; no evidence of noises being heard by any of the other occupants in the house consistent with a scuffle or a punch, or with Richards falling onto the floor, was called. Yet there were four of Ms Ingles' children in the house at the time. The eldest was Natasha aged 18, whose 21 year old boyfriend David was also present, as was her sister Anja aged 17. The two other children were aged 12 and 7. According to Ms Ingles, one of her children, Anja, had got up and was in the lounge room "telling Bill off" at one stage. Anja Ingles, who was called as a witness by the prosecutor, gave no such evidence.
There were also other discrepancies in the prosecution case. Richards claimed he was at the house that night by arrangement with Ms Ingles, but the latter denied this and on her account she was surprised to see him there. Richards had also departed from his statement to the police in that, in the account he gave to the Court of his conversations with the appellant, the appellant frequently used expletives not found in his statement. Richards' explanation that he did not like to use expletives sounds hollow as, in fact, he did use an expletive on one occasion in his statement.
The learned Magistrate clearly had doubts about the reliability of Richards' evidence but, in the end, was persuaded beyond reasonable doubt that he was hit on the head (but not hard), that he fell to the ground and then there was a struggle which in itself would constitute an assault. He described the assault so found as "trivial". His Worship had apparently considered most of the matters referred to above. In addition, his Worship considered the appellant's record of interview and said that, whilst he accepted that the appellant's denial of any assault sounded sincere, the appellant was drunk at the time and his memory may have been affected by the drugs, alcohol and the struggle in the street with the arresting police. Having listened to the tape myself, I agree with the learned Magistrate that the appellant's denial sounds sincere. However, I am more troubled about the conclusion reached by the Magistrate that the appellant had no useful memory at all, particularly as his version gained at least as much support from the other evidence in the case (or lack thereof) as did Richards', and Richards' was littered with inconsistencies.
Considering the whole of the evidence, I accept the submission of counsel for the appellant that the test in M v The Queen, supra, set forth earlier in these reasons, has been met. There is a significant possibility that an innocent person has been convicted. I find that the learned Magistrate erred in finding the charge of assault proved beyond reasonable doubt.
Accordingly, the appeal against conviction in respect of both counts 1 and 3 is allowed and the convictions and sentences quashed. In lieu thereof, I enter verdicts of not guilty.
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