Klootwijk v Hipwell
[2016] ACTSC 182
•21 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Klootwijk v Hipwell |
Citation: | [2016] ACTSC 182 |
Hearing Date: | 21 July 2016 |
DecisionDate: | 21 July 2016 |
Before: | Elkaim J |
Decision: | The conviction is set aside. The costs of appearing in the ACT Magistrates Court are awarded in favour of the appellant. The costs of the appeal are reserved pending the outcome of the appeal in Peden v Boxx (No 2) [2016] ACTSC 110. Liberty to apply is granted in relation to costs. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against conviction - |
Legislation Cited: | Criminal Code 2002 (ACT), ss 361(1) Nature Conservation Act 1980 (ACT) (repealed), s 44 |
Cases Cited: | Connolly v Allan [2011] ACTSC 170 Peden v Boxx (No 2) [2016] ACTSC 110 |
Parties: | Christian Klootwijk (Appellant) Gareth Hipwell (Respondent) |
Representation: | Counsel Mr J Pappas (Appellant) Ms S Gul (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 32 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 April 2016 Case Title: Hipwell v Klootwijk Court File Numbers: CC 15/6208 ; CC 16/1975 |
ELKAIM J:
This is an appeal from a decision of the Chief Magistrate given on 26 April 2016. By this decision the appellant was convicted of an offence of acting contrary to s 361(1) of the Criminal Code 2002 (ACT). The essence of this offence is the hindrance of a public official in the course of that official's duties.
The offence was said to have been committed during the evening of 1 July 2015 at Wanniassa Hills Nature Reserve in the Australian Capital Territory.
At this location, the ACT Parks and Conservation Service was carrying out a kangaroo cull. I stress that this judgment makes no comment on the need, morality or otherwise of the culling of kangaroos.
This judgment is concerned only with the cull on 1 July 2015 and whether the Crown proved the offence against the appellant.
The public official who was allegedly hindered was a Mr Joel Patterson. Mr Patterson was present in a supervisory capacity and acting in accordance with the duties that are set out in Exhibit 2B.
The appellant was present at the scene. I have no doubt that his intent in being present was to interfere with the cull. He felt the activity was wrong. As his learned counsel pointed out, he was there to be a pest, and that is precisely what he was.
However, the fact that he was there as a pest does not, of course, necessarily render him guilty of the offence. The appeal was based on a number of grounds, the most important of which was to some extent developed through the course of the hearing.
It is first of all necessary to clearly state my function in hearing this appeal. This function was correctly described in the respondent's written submissions by referring to the decision of Refshauge J in Connolly v Allan [2011] ACTSC 170, where his Honour said:
[12] So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.
[13] This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that ordinarily facts found based on the assessment of witnesses will not lightly be overturned. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons…
The appellant's complaints ultimately came down to five in number. Firstly, it was said that her Honour erred in distinguishing between the appellant whistling and yelling because, on the evidence, the two activities had taken place very close in time. It was submitted that her Honour's finding that the yelling did not lead to an offence could not sit with her finding that the whistling was able to lead to the offence. The evidence is perhaps a little unclear, but I am not satisfied that her Honour did fall into error in making the distinction, especially having regard to the advantages she had in hearing the evidence of the witnesses and being able to reach a conclusion on the different sounds.
Secondly, the appellant said the cull would have been stopped in any event because of the obligations that the shooter faced under the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Non-Commercial Purposes (“the Code”). It was pointed out that the shooter was obliged to cease shooting if an animal was injured (Clause 2.4). The Code was Exhibit 8. There were reasonable grounds, it was submitted, for suspecting that this was the case, so that the suspension of shooting would have occurred in any event. The difficulty with this argument is that it fails to distinguish between the stopping of the shooting and the delay before resumption. The alleged hindrance was occasioned by the delay after the stopping of the shooting, not by the stopping itself.
Thirdly, the appellant said that the provisions of s 361(1)(b) of the Criminal Code 2002 (ACT), meant that the court had to find that the appellant knew Mr Patterson, specifically, was a public official. Because Mr Patterson was simply one of the people at the scene, it was said that there was no evidence to establish that the appellant actually knew who he was and what he was doing. On one reading of the section, that is a valid argument. However, I prefer the response made by the respondent to that argument. Namely, that where for example the public official was acting at night it might not be possible to know who that person was and what that person was doing. It could not be the law that a prosecution would fail because the offender could not identify the specific public official.
Fourthly, the appellant complained that the learned Chief Magistrate had failed to make a finding about the validity of the licence (Exhibit 5). An examination of the judgment, however, reveals that her Honour did make such a finding. It is to be found at pages 225-226 of the transcript.
This in turn led to a discussion about the licence, which I think is the most significant of the appellant's points. Her Honour found that the licence was not valid. There has been no challenge to that finding on behalf of the respondent. The reason that it is not valid is described by her Honour in the above portion of the transcript.
However, most importantly before me it was common ground that the cull taking place on 1 July 2015 purported to be valid by virtue of the issue of the licence. If the licence was not valid it must follow that the cull itself was not sanctioned by it. It is worth referring to the licence and observing that it was issued to the ACT Parks and Conservation Service, of which Mr Patterson was a member.
The next point to note is that Mr Patterson's activities on the evening involved supervising the cull. If the cull was not valid, then, in my view, it could not have been unlawfully hindered. The respondent submitted that Mr Patterson had an “overarching role”, so that the validity of the cull was not relevant to his duties as a public official. I disagree. I think he was there to ensure that the cull was validly conducted, so that his role was necessarily dependent upon the validity of the licence.
I am of the view, therefore, that having found that the licence was not valid, her Honour fell into error in finding that the invalidity did not affect the validity of the cull and in turn the capacity for there to be an unlawful hindrance of an invalid act. In other words, once the cull lost its validity it could not be unlawfully hindered.
It follows that the conviction must be set aside.
Orders
I make the following orders:
1)The conviction is set aside.
2)The costs of appearing in the ACT Magistrates Court are awarded in favour of the appellant.
3)The costs of the appeal are reserved pending the outcome of the appeal in Peden v Boxx (No 2) [2016] ACTSC 110.
4)Liberty to apply is granted in relation to costs.
| I certify that the preceding seventeen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 26 July 2016 |
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