Peach v Toohey
[2003] NTSC 57
•30 MAY 2003
Peach v Toohey [2003] NTSC 57
PARTIES:PEACH, DAVID NICHOLAS
v
TOOHEY, PAUL LESLIE
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:No. JA 118 of 2002 (20216932)
DELIVERED: 30 MAY 2003
HEARING DATES: 26 MAY 2003
JUDGMENT OF: ANGEL J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:M Carey
Respondent: J Tippett QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: A G James
Judgment category classification: B
Judgment ID Number: ang200303
Number of pages: 12
ang200303
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINPeach v Toohey [2003] NTSC 57
No. JA 118 of 2002 (20216932)
IN THE MATTER of the Justices Act
AND IN THE MATTER OF an appeal against a sentence handed down in the Court of Summary Jurisdiction in Darwin
BETWEEN:
DAVID NICHOLAS PEACH
Appellant
AND:
PAUL LESLIE TOOHEY
Respondent
CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 30 May 2003)
On 19 November 2002 the Court of Summary Jurisdiction at Darwin found the respondent guilty of an offence, namely, that on 13 November 2002 at Wadeye (Port Keats) in the Northern Territory of Australia, he entered Aboriginal land without having been issued a permit to do so contrary to s 4 Aboriginal Land Act (NT) for which the maximum penalty is a fine of $1,000–00. Having found the respondent guilty the learned magistrate, without recording a conviction, ordered that the charge be dismissed pursuant to s 7(a) Sentencing Act (NT).
There are two grounds of this Crown appeal against that disposition, first, that the learned magistrate wrongly exercised his discretion under s 8(1) Sentencing Act (NT), and secondly, that the learned magistrate’s order was manifestly inadequate in the circumstances of the case.
The decision whether or not to record a conviction is prescribed by s 8(1) Sentencing Act (NT) which provides:
8.“Conviction or non–conviction
(1) In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including –
(a)
the character, antecedents, age, health or mental
condition of the offender;”
(b)the extent, if any, to which the offence is of a trivial nature; or
(c)
the extent, if any, to which the offence was committed under extenuating circumstances.”
In Cobiac v Liddy (1969) 119 CLR 257, Windeyer J said of s 4(1) Offenders Probation Act (SA) (at 275):
“Were there in this case any facts which could justify the magistrate exercising his discretion by declining to convict and dismissing the complaint? In the Supreme Court their Honours were unanimous in thinking that there were not. On the basis that the discretion given by the Offenders Probation Act had not been abrogated by the Road Traffic Act, they thought that, nevertheless, the magistrate had in the circumstances of this case abused his discretion. I am far from satisfied that this was so. The question is not whether any of us in this court, of any of their Honours in the Supreme Court, would himself have taken the course that the magistrate took. The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be ‘of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged … it is expedient to exercise’ the power. That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers ‘having regard to’ the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hand leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matter they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.”
That passage, adopted by the Court of Appeal in Allinson (1978) 49 NTR 38 at 43, per Rice J (Nader and Kearney JJ concurring), is apposite here. Having found the respondent guilty of the offence, in deciding whether or not to record a conviction the learned magistrate was required to reach a conclusion and consider whether the circumstances of the offender and the offence including one or more of the factors in paragraphs (a), (b) or (c) in s 8(1) justified that conclusion. In order to discharge the respondent without recording a conviction or imposing any fine it was incumbent upon the learned magistrate to form the opinion that the circumstances including one or more of those factors provided a sufficient ground for doing so.
Following the respondent’s plea of guilty on 19 November 2002 the following admitted Crown facts were read to the court:
“On the morning of Wednesday 13 November this year, Wadeye Community was holding a funeral for a local man who had died during an incident approximately two weeks before.
The incident that the male died in was the subject of media interest and the defendant in the matter was one of many journalists who contacted the Kardu Numida Community Government Council requesting permission to enter Wadeye Community in relation to the matter.
The council, out of respect for the deceased’s family and community feelings, advised all those who inquired for these reasons that they, as the issuing body under the Aboriginal Lands Act, would not give permission for them to attend Wadeye Community.
The defendant recontacted members of the council on several further occasions for comment on the incident or for permission to and on each occasion he was advised that they did not wish to speak to him and that they would not give him permission to enter the community.
On the day of Wednesday 13 November this year the defendant drove to Port Keats Community in a hire vehicle and upon attendance at the community took photographs and attempted to interview members of the deceased’s family immediately after the funeral.
The family of the deceased became upset at the defendant attempting to interview them and made a complaint to members of the council about the defendant being in the community. The council then contacted police and advised that they wished to lay a complaint under the Aboriginal Lands Act of the defendant being in the community without a permit and requested the defendant be prosecuted.
Police located the defendant driving along the main street of the community. He was apprehended and taken to the police station. He was asked why he had entered Aboriginal land without a permit. He stated that he believed it was necessary to do so in order to obtain the story. He also admitted to not having a permit. He was charged, bailed and escorted from the community and the bail conditions were immediately to leave the community.
Wadeye Community is approximately 200 ks within the Daly River Aboriginal Land Reserve which is gazetted Aboriginal land. The defendant was in Wadeye Community without a permit.”
The respondent was born in 1963. He is a journalist of some 23 years experience with no relevant previous record. At the time of the offence he was a senior journalist with The Australian newspaper, a national publication for which he had worked for some 3½ years. He was a person of good character and high standing in his professional life. He was a Walkley Award winner with a national profile for writing articles concerning violence on Aboriginal communities.
On 23 October 2002 at Wadeye an Aboriginal man sustained a bullet wound in the chest and died during a confrontation between fighting members of two opposing Aboriginal clans when three Port Keats Police officers intervened. Public statements were made to the effect that the Coroner would investigate the incident and that the bullet which killed the deceased came from a 40 calibre Glock semi–automatic Police pistol. The incident received much publicity in the media. Subsequently, on 6 November 2002, the Court of Summary Jurisdiction in Darwin cancelled its proposed sittings at the Port Keats Court scheduled to commence on Monday 11 November 2002. A Police spokesperson made a public statement to the effect that Police could not guarantee the safety of members of the Court party travelling to and from Port Keats, even between the airport and the Court House. It was further said that not only was the situation “severe” but likely to escalate. On 8 November 2002 The Australian newspaper published a story by the respondent concerning these matters and particularly the cancellation of the Court sittings and the apprehension of continuing violence in the community at Port Keats.
Counsel for the respondent said, inter alia, to his Worship:
“As a result, it appears, the deputy town clerk of Port Keats telephoned my client, that was a Mr Dale Seaninger (?). He said words to the effect that there was no concern about safety and that the Port Keats Community was hosting a meeting of senior public officials from Canberra and Darwin at Port Keats during that same week and that the Port Keats Council had advised them to come and said that there would be no trouble at the funeral.
Mr Seaninger challenged Mr Toohey to come to Port Keats and do a positive story on the community. Mr Toohey agreed to do that so long as he could go on the day of Robert Jongmin’s funeral. Mr Seaninger said that he would seek permission and arrange a permit if permission was given. Subsequently he phoned Mr Toohey and said that the traditional owners didn’t want him there until the following week.
Between 8 and 13 November Mr Toohey made several attempts to have Mr Seaninger review the decision that had been given to him but he was unsuccessful and Mr Seaninger continued to maintain that a permit would not be available.
The day before the Jongmin funeral the Northern Territory Police media unit confirmed that extra police would be sent to Port Keats for the funeral, but he did not say how many and in what capacity. These background facts, your Worship, I submit created a situation where it was the duty of my client to go to Port Keats and to gather what information was to be found in order to discharge the duty of a journalist to provide the public with information relevant to its welfare and the welfare of members of society at risk.
Accordingly, on 13 November 2002 Mr Toohey disregarded the statement of Mr Seaninger that there would be no permit for him to visit and he went to Port Keats. He arrived at about midday, the funeral had in fact finished. He attempted to have a discussion with Mr Jongmin.
HIS WORSHIP: Which Mr Jongmin was that?
Mr Ambrose Jongmin, I’m sorry, Your Worship. Mr Jongmin had only that day released a statement to the media through North Australian Aboriginal Legal Aid Service calling for the policeman whom he said shot his son to be charged. Mr Jongmin said that he didn’t want to talk to Mr Toohey. Mr Toohey accepted that and left.
He then drove to the oval, which was deserted. He took some photographs of an electricity substation that had been daubed with graffiti, and following that he drove toward the top of a hill past the police station, where he was apprehended – sorry, where he was intercepted by police and asked if he had a permit. After stating that he had not he gave his name on request and was arrested. He was placed in custody, fingerprinted and bailed to appear before this court on 19 November.” (emphasis added)
Mr James for the respondent concluded his submissions to the learned magistrate with the following:
“Well, sir, I conclude, Your Worship, by simply saying that my client’s a professional man, a professional man of high standing, who was performing, in the manner of his profession, his public duty: reporting matters that ought properly be the subject of public scrutiny, and indeed have been the subject of public scrutiny.
I assure Your Worship that virtually everything that I have put to you as a fact has been reported at some time since 18 October this year. And in that factual context, I say that it would be reasonable for this court to accept my submission that professionally Mr Toohey had no other choice but to go to Port Keats that day, notwithstanding the fact that he had been expressly told not to come, after having been invited.
HIS WORSHIP: Yes.
MR JAMES: And that he had a higher duty than a duty to this obscure and ill–considered law and so he’s come before you today readily conceding his breach at the first opportunity of course. But on my submission, those circumstances, particularly seen with Mr Toohey’s undisputed good character and other matters pertaining to his character such as his professional standing, his situation is such as justifies the exercise of the court’s discretion pursuant to sections 8 – 7 and 8 of the Sentencing Act, to find this offence proven without proceeding to conviction and dismiss the charge. Thank you, Your Worship.”
The prosecuting Sergeant simply submitted as follows:
“So the fact remains the defendant has committed an offence against the Aboriginal Land Act which was enacted by Parliament. He knew what he was doing was illegal and the defendant knew on several occasions and he was declined a permit and did not have a permit. Yet he still went out there.
I’m not aware of any other persons or any other journalists that did that and everyone else adhered to the community wishes. He went out and asked questions of the deceased’s relatives and had no respect for their feelings whatsoever. So prosecutions would suggest it’s a breach of a higher level morally and ethically, purely – more than a simple entry without a permit. So prosecution would submit it warrants a conviction for the nature of the breach and for general deterrence for others.”
The learned magistrate in his remarks said, inter alia:
“I have already said and I can’t simply enter into some artificial catharsis and pretend that I arrived in Australia for no reason at all. I left South Africa because of many of the things that Mr James has adverted to and of course much more. I lived in a society where the freedom of the press was simply circumscribed by a ruthless government which oppressed all political views other than those which it found favour with.
I guess for that reason I am biased at least in relation to the function that I must discharge here today. There are matters in respect of which Mr James has adverted to which in my private capacity I have a great deal of sympathy with. I don’t propose however to usurp my function as a magistrate by allowing that ability to use this opportunity to make any comment in relation to – or of a political nature in relation to the permit system. Those who feel the concern are recorded by Mr James, people will have to make their own minds up about that.
However, undoubtedly it is the case that the existence of the system in relation to this matter and the employment of the powers under the system in relation to this matter did in fact potentially, albeit in the case of breach that was not so, served to keep the Australian public in the dark as to whatever it was that occurred in Port Keats, not only when these three men were injured but thereafter.
Obviously in light of what I said to begin with, that is repugnant to me. I cannot conceive why in this wonderful country anybody should be free from the scrutiny of the press and the agencies of the lawful authorities in the Northern Territory and anywhere else in the Commonwealth of Australia. Nevertheless, as I said to Mr James in any event, that is a matter for the legislature, it is not a matter for the courts.
……………….
I am persuaded that in the circumstances in which Mr Toohey found himself were such that it almost would have been a dereliction of his duty as an investigative journalist to allow to go unpublished, unrevealed and unventilated the events which gave rise to the unfortunate death of this young man.
……………..
In the event, I’m clearly in the circumstances intending to act as I now do, I find that Mr Toohey is guilty of the offence with which he was charged. I do not proceed to convict him and I do not impose any other penalty.”
The learned magistrate did not expressly advert to s8(1) Sentencing Act. He did not discuss whether in his view the offence was of a trivial nature. He appears to have treated the respondent’s “duty as an investigative journalist” as a significant extenuating circumstance largely determinative of the outcome.
In Bailey v Laczko (1978) 20 ALR 658 at 661 Forster CJ referred with approval to Crafter v Schubert [1934] SASR 84 at 86 where Napier J, speaking of a beneficial provision such as s8(1) Sentencing Act said:
“It is a highly beneficial power if it is properly used; but it is not a proper use – on the contrary, it is an abuse – of the power if the court allows itself to be carried away by sympathy; and uses the power to defeat the intention of Parliament as it is expressed in the Statute.”
In the same case Napier J said:
“The typical instance of a trivial offence is where the contravention is unintentional or due to inadvertence.”
In Eupene v Hales (2000) 10 NTLR 16 at 27 I expressed the view, obiter, that an offence is trivial in nature if the offender’s conduct constitutes a petty example or instance of the offence as defined by the legislature. This echoed the view of the South Australian Full Court (Napier CJ, Chamberlain and Hogarth JJ) in Brebner v Hersey [1963] SASR 1 at 11:
“To be trivial an offence must be a trivial example of the forbidden act.”
The conduct of the respondent can not reasonably be said to be of a trivial nature. His offence was constituted by a deliberate contravention of the statute committed in full knowledge that he was not welcome at Wadeye on the day of the funeral. The respondent’s duty as a journalist was to act lawfully, not unlawfully in contravention of the provisions of the Aboriginal Land Act (NT). The respondent had unsuccessfully applied for a permit on more than one occasion and was informed that he could not travel into the Port Keats community on the day of the funeral. The refusal to grant a permit was confined to the day of the funeral. The respondent had every reason to think he would be granted a permit some time shortly following the day of the funeral when he could conduct his business as a journalist. No reason was advanced why his attendance at Port Keats on the day of the funeral would achieve anything that could not be achieved on a day thereafter. As the appellant submitted, a funeral and its immediate aftermath is ordinarily a private affair to which the media can be invited, or for that matter, from which the media can be excluded. The funeral was but a temporary interruption to the continuing media coverage of events at Port Keats, which, given an inquest, were in no danger of going “unpublished, unrevealed and unventilated.” In these circumstances the respondent’s “duty as an investigative journalist” referred to by his Worship does not constitute an extenuating circumstance for the purposes of s 8 of the Sentencing Act (NT). The respondent’s offence, if not a typical example of a breach of the section, is more serious in that it was wilful and calculated.
The learned magistrate, I think, erred in his taking account of “the Australian public” being kept “in the dark”, and his appreciation of the salient facts, the Wadeye Community’s lawful right and strong desire to exclude the media (including the respondent) on the day of the funeral, and the lack of any justification for the offending which was quite deliberate. In the circumstances, even taking account of the positive good character of the respondent and his antecedents and age the learned magistrate’s exercise of his discretion miscarried and he ought to have recorded a conviction.
The respondent submitted there was impropriety in the respondent’s albeit lawful arrest, given that the maximum penalty is a $1,000 fine, the respondent and his whereabouts were well known, and the issue of a summons would have sufficed. Without hearing submissions on behalf of the arresting officers I refrain from expressing any view but refer to the reasons for decision in Carr (2002) 127 A Crim R 151, particularly at 159 par 35:
“This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.
The appeal is allowed. The order of his Worship is quashed and in substitution therefor a conviction should be recorded. The respondent’s offence would ordinarily warrant a not insubstantial fine, but given that this is a Crown appeal and the circumstance he was arrested and had his film and audiotape seized by police there will be no further order.
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