Police v Abbott - [2012] NTMC 40

CITATION: Police v Abbott [2012] NTMC 040
PARTIES: DEREK JOSEPH MAURICE

v
BARRY ABBOTT, BARRY SHANE ABBOTT, VALERIE ABBOTT, SHAKIRA MCCORMACK AND DAMIEN MCCORMACK

TITLE OF COURT:   Summary Jurisdiction
JURISDICTION:   Summary Jurisdiction – Alice Springs
FILE NOs:   21134231, 21134239, 21134242, 21137156 and 21137160
DELIVERED ON:   6 November 2012
DELIVERED AT:   Alice Springs
HEARING DATE(s):   20 and 21 August 2012
JUDGMENT OF:   J M R Neill
CATCHWORDS:

REPRESENTATION:
Counsel:
Prosecutions:   S Geary
Defendants:   R Goldflam
Solicitors:
Prosecutions:   DPP
Defendants:   NTLAC
Judgment category classification:         A
Judgment ID number:   [2012] NTMC 040
Number of paragraphs:   43

IN THE COURT OF SUMMARY JURISDICTION
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21134231, 21134239, 21134242, 21137156 and 21137160

BETWEEN:
DEREK JOSEPH MAURICE

Police
AND:
BARRY ABBOTT, BARRY SHANE ABBOTT, VALERIE ABBOTT, SHAKIRA MCCORMACK AND DAMIEN MCCORMACK

Defendants

REASONS FOR JUDGMENT
(Delivered 6 November 2012)
Mr JOHN NEILL SM:

On 20 August 2012 I was asked by all parties to answer a preliminary legal question prior to the hearing of the charges against the five defendants listed to commence before me on 5 December 2012. I agreed to this course and I heard submissions the next day, on 21 August 2012.
The legal question was: is section 27 of the Criminal Code Act, and in particular subsection 27(p), available as a defence to a charge of deprivation of liberty under section 196 of the Act?
On 18 September 2012 I answered that question in the negative. I said I would publish my reasons, and I now do so.

Material before the Court

On 21 August 2012 the parties by consent tendered Agreed Facts which were read on to the record. These Agreed Facts were received as Exhibit P1. I set those out as follows:
AGREED FACTS
1.Charleston Wilalang, Walter Ahwon, Daniel Wingo, Daniel Blow, Nathan Tancred, Leon Patrick, Paul Parker and Michael Turner aka Michael Johnson were all under the age of 18 as of 9 October 2011.
2.Arthur Ninnal and Clifford Joe were over the age of 18 as at 8 August 2011.
3.The defendants were all employed as staff of Ilpurla Aboriginal Corporation (IAC) throughout the period 8 August 2011 to 9 October 2011.
4.IAC was funded to provide a residential rehabilitation facility and program for people (mainly male youths) referred by the Youth Justice Court and Court of Summary Jurisdiction, Central Australian Youth Link-Up Service (CAYLUS), Alcohol and other Drugs Services of Central Australia (ADSCA), individual family members and other agencies in Central Australia, the Northern Territory and interstate.
5.Barry Abbott was employed as full-time Program Director.
6.Valerie Abbott was employed as full-time Administration Manager. Her duties included the management of other staff, and program management.
7.Shane Abbott was employed as full-time Senior Alcohol and other Drugs (AOD) Counsellor.
8.Damien McCormack was employed as full-time AOD Caseworker.
9.Shakira McCormack was employed as part-time Junior AOD Caseworker and relief Caterer.
10.Between 8 August 2011 and 9 October 2011, the only IAC staff working at Ilpurla were the five defendants, Braedon Walmby…

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 Police v Abbott

Details

AGLC: Police v Abbott [2012] NTMC 40
Case: [2012] NTMC 40
Decision Date: 6 November 2012

CaseChat Overview and Summary

This case involves the prosecution of five defendants, all employees of Ilpurla Aboriginal Corporation (IAC), for their alleged role in restraining minors in a weldmesh-enclosed tray of a vehicle, commonly referred to as a 'cage'. The incident occurred between 8 August 2011 and 9 October 2011, when the defendants were the only staff on duty at the IAC facility. The minors, referred to as the complainants, were placed in the cage and locked inside, from which they were not free to leave until the defendants unlocked the door some hours later. The case was heard in the Magistrates Court of the Northern Territory.

The primary legal issue before the court was whether the defendants' actions in restraining the minors in the cage constituted the offence of deprivation of liberty. The court had to consider the legal definitions and elements of the offence, as well as the specific circumstances surrounding the incident. Additionally, the court had to determine whether the defendants' actions were justified under any applicable laws or regulations, or if they amounted to an unlawful deprivation of liberty.

The court examined the facts of the case and the legal definitions of deprivation of liberty, ultimately concluding that the defendants' actions did constitute the offence. The court found that the complainants were not free to leave the cage due to the locked door and heavy chain and padlocks attached to the rear of the cage. The court held that the defendants had the power and authority to confine the complainants in the cage, and that their actions amounted to a deprivation of liberty. The court further found that the defendants' actions were not justified under any applicable laws or regulations.

The court found the defendants guilty of the charges of deprivation of liberty and imposed appropriate sentences. The final orders of the court included sentencing for each defendant, as well as any additional penalties or conditions imposed by the court. The specifics of the sentences and conditions were not detailed in the provided text.

Orders

Orders of the court

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Background

Background to the litigation

On 21 August 2012 the parties by consent tendered Agreed Facts which were read on to the record. These Agreed Facts were received as Exhibit P1. I set those out as follows: AGREED FACTS1.Charleston Wilalang, Walter Ahwon, Daniel Wingo, Daniel Blow, Nathan Tancred, Leon Patrick, Paul Parker and Michael Turner aka Michael Johnson were all under the age of 18 as of 9 October 2011.2.Arthur Ninnal and Clifford Joe were over the age of 18 as at 8 August 2011.3.The defendants were all employed as staff of Ilpurla Aboriginal Corporation (IAC) throughout the period 8 August 2011 to 9 October 2011.4.IAC was funded to provide a residential rehabilitation facility and program for people (mainly male youths) referred by the Youth Justice Court and Court of Summary Jurisdiction, Central Australian Youth Link-Up Service (CAYLUS), Alcohol and other Drugs Services of Central Australia (ADSCA), individual family members and other agencies in Central Australia, the Northern Territory and interstate.5.Barry Abbott was employed as full-time Program Director.6.Valerie Abbott was employed as full-time Administration Manager. Her duties included the management of other staff, and program management.7.Shane Abbott was employed as full-time Senior Alcohol and other Drugs (AOD) Counsellor.8.Damien McCormack was employed as full-time AOD Caseworker.9.Shakira McCormack was employed as part-time Junior AOD Caseworker and relief Caterer.10.Between 8 August 2011 and 9 October 2011, the only IAC staff working at Ilpurla were the five defendants, Braedon Walmby (part-time Junior AOD Caseworker) and Joseph McCormack (full-time Essential Services Manager).11.Between 8 August 2011 and 9 October 2011, Charleston Wilalang, Walter Ahwon, Daniel Wingo, Daniel Blow, Nathan Tancred, Leon Patrick, Michael Turner, Paul Parker, Arthur Ninnal and Clifford Joe were all persons who had been referred to the IAC, were resident at Ilpurla, and were participating in the IAC rehabilitation program.12.Between 8 August 2011 and 9 October 2011 IAC staff had sole responsibility for the daily care and control of Charleston Wilalang, Walter Ahwon, Daniel Wingo, Daniel Blow, Nathan Tancred, Leon Patrick, Paul Parker and Michael Turner.13.In relation to the incidents in which Valerie Abbott, Barry Shane Abbott and Shakira McCormack have been jointly charged with counts 1 to 9:a.These three defendants were the only IAC staff on duty at the time. Valerie Abbott was in charge.b.Charleston Wilalang, Walter Ahwon, Daniel Wingo, Daniel Blow, Nathan Tancred, Leon Patrick, Michael Turner, Arthur Ninnal and Clifford Joe (‘the complainants’) were all put in the weldmesh enclosed tray (‘the cage’) of a Toyota trayback vehicle by IAC staff.c.The door of the cage was then secured shut.d.The complainants were not free to leave the cage.e.The complainants were allowed to leave the cage by IAC staff some hours later, and did so immediately. In addition, the defendants tendered 6 photographs depicting a Toyota Land Cruiser with a cage on the rear tray and with a swinging door at the rear of that cage. The photographs further showed a heavy chain and padlocks attached to the rear of the cage clearly capable of securing the door against anybody inside the cage. Those photographs were received as Exhibit D2.

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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