Police v Hazelbane - [2010] NTMC 9

CITATION: Police v Hazelbane [2010] NTMC 009

PARTIES: BRETT JUSTIN VERITY

v

SHANE GABRIEL HAZELBANE

TITLE OF COURT: Maningrida Court of Summary Jurisdiction

JURISDICTION: Criminal Code (NT); Justices Act (NT); Aboriginal Land Act (NT)

FILE NO(s): 20922486

DELIVERED ON: 20 January 2010
REPUBLISHED ON: 1 March 2010

DELIVERED AT: Darwin (via videolink from Alyangula)

HEARING DATE(s): 17 December 2009; 20 January 2010; 1 March 2010

JUDGMENT OF: Jenny Blokland CM

CATCHWORDS:

CRIMINAL RESPONSIBILITY – OFFENCE OF ENTRY ONTO ABORIGINAL LAND WITHOUT A PERMIT

ss1,31 Criminal Code (NT)
s4 Aboriginal Land Act (NT)

Pregelj v Manison (1987) FLR 346
He Kaw Teh v The Queen (1985) 157 CLR 523
Charlie v The Queen (1998) 7 NTLR 152
Marrday (1998) 7 NTLR 192
DPP (NT) v WJI (2004) 219 CLR 43

REPRESENTATION:

Counsel:
Complainant: Mr Adams
Defendant: Mr Woodcock

Solicitors:
Complainant: Summary Prosecutions
Defendant: Woodcock Solicitors

Judgment category classification: B
Judgment ID number: [2010] NTMC 009
Number of paragraphs: 15

IN THE COURT OF SUMMARY JURISDICTION
AT MANINGRIDA THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20922486

BETWEEN:

BRETT JUSTIN VERITY
Complainant

AND:

SHANE GABRIEL HAZELBANE
Defendant

REASONS FOR RULING

(Delivered 20 January 2010)

JENNY BLOKLAND CM:
Introduction
1. The Defendant pleaded guilty to one count on information that he possessed cannabis contrary to section 9(1) and (2)f and (ii) Misuse of Drugs Act (NT). He is yet to be sentenced on that matter. Arising at the same time as that offence was an allegation that on 6 July 2009 near Maningrida in the Northern Territory of Australia, he entered onto Aboriginal land without having been issued a permit to do so: (contrary to s 4 Aboriginal Land Act (NT)). Section 4 of the Aboriginal Land Act (NT) provides as follows:
4. Entry onto, &c., Aboriginal land or road
(1) Subject to this Part and to any provision to the contrary in a law of the Territory, a person shall not enter onto or remain on Aboriginal land or use a road unless he has been issued with a permit to do so in accordance with this Part.
Penalty: $1,000.
(1A) Nothing in subsection (1) shall prevent a person who is entitled or permitted under this Part to enter onto or remain on Aboriginal land from using a road that is bordered by that Aboriginal land.
(2) An Aboriginal who is entitled by Aboriginal tradition to enter onto an area of Aboriginal land may enter onto that area of Aboriginal land.
(3) An Aboriginal who is entitled by Aboriginal tradition to remain on an area of Aboriginal land may remain on that area of Aboriginal land.
The Relevance of s31 Criminal Code (NT)
2. It is alleged by the prosecution that when the Defendant travelled on 6 July 2009 to an area in West Arnhem he was not the holder of a permit as required by the section. A significant issue has arisen about whether the interaction between s 31 Criminal Code (NT) and s 4 of the Aboriginal Land Act (NT) means the…

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 Hazelbane

Details

AGLC: Police v Hazelbane [2010] NTMC 9
Case: [2010] NTMC 9
Decision Date: 20 January 2010

CaseChat Overview and Summary

The case of Police v Hazelbane involved a defendant who pleaded guilty to possession of cannabis, while also facing a charge of entering Aboriginal land without a permit. The defendant claimed that he believed he was entitled to be on the land due to his Aboriginal heritage and therefore did not need a permit. The case raised questions about whether the defendant's belief that he didn't need a permit could be considered an excuse under section 31 of the Criminal Code (NT). The court had to decide whether the defendant's actions were intentional or foreseen, and whether section 31 could be used as a defence in this case.

The court examined the interaction between section 31 of the Criminal Code (NT) and section 4 of the Aboriginal Land Act (NT), considering whether the prosecution had to prove that the defendant intentionally entered the land without a permit or foresaw that he would do so without one. The defendant argued that if he thought he was entitled to enter the land, he didn't need a permit, and therefore could not have intended or foreseen the act of entering the land without a permit. The court considered whether the defendant's belief that he didn't need a permit could be considered an excuse under section 31, and whether honest and reasonable mistake or claim of right could apply in this case. The court requested submissions from counsel on the latter point.

The court concluded that the defendant's belief that he didn't need a permit did not mean that he did not act intentionally or with foresight. The defendant's belief was the reason he went onto the Aboriginal land without a permit, but it did not negate intent or foresight. The court found that it was unlikely that honest and reasonable mistake applied in this case, as it was most likely a mistake of law. The court did not make a final ruling on the point, as the defence had not made submissions on honest and reasonable mistake, relying solely on section 31. The court requested submissions from counsel on whether claim of right was available in these circumstances.

The final orders of the court are not provided in the text. However, the matter is listed before the court for further mention on 20 January 2010, and the published ruling has been corrected and republished on 1 March 2010.

Orders