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Nunn v Calma [2005] NTSC 54

PARTIES: Peter Nunn
v

Leslie Bartholemew John Calma

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: 27 of 2005, 20423536

DELIVERED: 16 September 2005

HEARING DATES: 14 September 2005

DECISION OF: OLSSON AJ

CATCHWORDS:

APPEAL

Justices – Liquor Act s75, s86 - appellant convicted of offence of bringing liquor into a restricted area - no substantial dispute as to facts - appellant purchased liquor on behalf of his uncle and brought it to Yulara, intending to deliver it to him at an outstation outside restricted area of Mutitjulu - uncle not present at outstation on appellant's arrival, but at Mutitjulu - telephone discussion between parties - intention to secrete liquor outside restricted area near old Amata Road - most direct route to that location via Mutitjulu - uncle intended to be picked up in Mutitjulu en route - appellant entered restricted area with liquor for dual purposes of picking up uncle and conveying liquor to intended ultimate location - consideration of proper interpretation of s 86 (1) of Liquor Act - whether statutory offence enlivened on facts - appeal allowed.

REPRESENTATION:

Counsel:
Appellant: W. Smith
Respondent: R. Noble

Solicitors:
Appellant: Central Australian Aboriginal Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 17
Judgment ID Number Ols05004

Nunn v Calma [2005] NTSC 54

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Nunn v Calma [2005] NTSC 54

No 27 of 2005, 20423536

BETWEEN:

Leslie Bartholemew John Calma
Appellant

AND:

Peter Nunn
Respondent

CORAM: OLSSON AJ

REASONS FOR DECISION

(Delivered 16 September 2005)

Introduction

[1] In this matter the appellant appeals against his conviction of an offence of bringing liquor into a restricted area contrary to the provisions of s75 (1) (a) of the Liquor Act and the sentence imposed in respect of it.

[2] The appellant was charged on complaint with two alternative offences, one under s75 (1) (a) of the Liquor Act and the other under s 75 (1) (b) of that statute.

[3] Count one asserted that, on 16 October 2004 at Yulara, he brought liquor, namely beer, into a restricted area, namely Mutitjulu Community.

[4] Count two asserted that, on the same occasion, he did control liquor, namely beer, within a restricted area, namely Mutitjulu Community.

[5] The appellant pleaded not guilty to the charges and the case proceeded to trial before a stipendiary magistrate, sitting as the Court of Summary Jurisdiction at Mutitjulu on 17 March 2005.

[6] On 21 July 2005 the learned magistrate recorded a conviction against the appellant in respect of the first Count and expressed oral reasons for so doing. She dismissed the alternative second Count.

[7] Consequent upon the conviction recorded against him, the appellant was sentenced to imprisonment for 14 days, suspended forthwith, with a 12 month period…

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 Nunn v Calma

Details

AGLC: Nunn v Calma [2005] NTSC 054
Case: [2005] NTSC 54
Decision Date: 16 September 2005

CaseChat Overview and Summary

The appeal in Nunn v Calma concerns the conviction of Leslie Bartholomew John Calma for bringing liquor into a restricted area, specifically the Mutitjulu Community, in contravention of the Liquor Act. The appellant, Calma, was initially convicted by a stipendiary magistrate of the offence and sentenced to a 14-day suspended prison term. Calma appealed against both the conviction and the sentence. The central legal issue was the interpretation of s 86(1) of the Liquor Act, which exempts from the offence the act of bringing liquor into a restricted area if it is done for the purpose of transporting the liquor to a destination outside the restricted area. Calma argued that his entry into the restricted area was for the purpose of picking up his uncle, Johnny Jingo, and then transporting the liquor to a location outside the restricted area, thus satisfying the exemption in s 86(1).

The Court considered the plain meaning of the statutory language, emphasizing that the focus should be on the purpose of bringing the liquor into the restricted area rather than on the subjective reasons for entering the area. The Court concluded that as long as the sole purpose of bringing the liquor into the restricted area was to transport it to a destination outside the area, the statutory exemption applied. The Court found that Calma's intention to pick up his uncle en route did not negate the exemption because the primary purpose of bringing the liquor into the restricted area was still its transportation to a location outside the area. Consequently, the appeal was allowed, the conviction was set aside, and the complaint was dismissed.

Orders