Klootwijk v Hipwell - [2016] ACTSC 182

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Legislation Cited:	Criminal Code 2002 (ACT), ss 361(1) Nature Conservation Act 1980 (ACT) (repealed), s 44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

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.

Continue reading Klootwijk v Hipwell

Details

AGLC: Klootwijk v Hipwell [2016] ACTSC 182
Case: [2016] ACTSC 182
Decision Date: 21 July 2016

CaseChat Overview and Summary

Klootwijk v Hipwell involved an appeal by the appellant, Klootwijk, against his conviction in the ACT Magistrates Court. The nature of the dispute was an appeal against the conviction, which was based on an offence of driving under the influence of alcohol. The court hearing the appeal was the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether the conviction should be upheld or set aside. This involved examining the procedures and jurisdiction of the Magistrates Court in handling the matter. The court also needed to consider whether the appeal had been properly filed and whether it had jurisdiction to hear the appeal.

The Supreme Court determined that the appeal was properly filed and that it had jurisdiction to hear the matter. The court found that the conviction should be set aside due to a procedural error in the Magistrates Court. Specifically, the court found that there was a failure to properly record the reasons for the conviction. As a result, the conviction was quashed. The court also awarded the appellant the costs of appearing in the ACT Magistrates Court. The costs of the appeal were reserved pending the outcome of another related case, Peden v Boxx (No 2) [2016] ACTSC 110. Finally, liberty to apply for costs was granted.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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