Police v KS - [2010] NTMC 20

CITATION: Police v KS [2010] NTMC 020

PARTIES: JUSTENE DWYER

TITLE OF COURT: Youth Justice Court

JURISDICTION: Criminal

FILE NO(s): 20940911

DELIVERED ON: 19 March 2010

DELIVERED AT: Darwin

HEARING DATE(s): 12 February 2010

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

CRIMINAL LAW – Trespass – warning to stay off a place – averments
Trespass Act ss 4, 5, 8 and 12
Public Transport (Passenger Safety) Act 2008 ss 22, 26
Interpretation Act s 24
R v Hush ex parte Devaney [1932] 48 CLR 487
Gallacher v Cendak [1988] VR 731
Treviranus v Police [2005] NZHC 85

REPRESENTATION:

Counsel:
Complainant: Ms Ozolins
Defendant: Ms Harland

Solicitors:
Complainant: ODPP
Defendant: NAAJA

Judgment category classification: A
Judgment ID number: [2010] NTMC 020
Number of paragraphs: 37

IN THE YOUTH JUSTICE COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20940911
[2010] NTMC 020

BETWEEN:

POLICE
Complainant

AND:

KS
Defendant

REASONS FOR DECISION

(Delivered 19 March 2010)

Ms Sue Oliver SM:
1. I have been asked to rule that there is no case to answer with respect to a charge against KS that on 8 November 2009, being a person who was warned on the 6th November 2009 under s 8 of the Trespass Act to stay off a place, namely Darwin Bus Interchange did trespass on the said place within one year after giving of that warning contrary to s 8(4) of the Trespass Act.
2. The charge contains averments in the following terms, that on 6 November 2009:
(i) Wayne Cottle acting under authority of a person in charge was an occupier of Darwin Bus Interchange in accordance with section 4, and
(ii) A warning to stay off was given to [KS] by Wayne Cottle acting under the authority of a person in charge in accordance with section 9.
3. Evidence has been given by Wayne Cottle, Maisie Newport and James Enguell, all of whom identified themselves as Transit Officers under the Public Transport (Passenger Safety) Act 2008.
4. Section 8 of the Trespass Act is in these terms:
8. Trespass after warning to stay off
(1) Where a person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time afterwards, warn that person to stay off that place.
(2) Where an occupier of any place has reasonable cause to suspect that a person is likely to trespass on that place, the occupier may warn that person to stay off that place.
(3) Where a person is found guilty of an offence against this Act committed on or in respect of any place, the Court may warn that person to stay off that place.
(4) A person who, being a person who has been warned under this section to stay off any place, trespasses on that place within one year after the giving of the warning, commits an offence.
5. An offence against s 8 requires proof that a warning in accordance with…

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 KS

Details

AGLC: Police v KS [2010] NTMC 20
Case: [2010] NTMC 20
Decision Date: 19 March 2010

CaseChat Overview and Summary

In the Youth Justice Court, the case of Police v KS involved a charge against KS for trespassing at the Darwin Bus Interchange after being previously warned to stay off the premises. The court had to determine whether the prosecution could establish the elements of the offence under the Trespass Act, including whether the warning was given by the occupier of the place and whether KS was trespassing at the time of the warning. Ms Sue Oliver, the Stipendiary Magistrate, found that the prosecution failed to prove the identity of the occupier and thus the authority of the person who gave the warning. The Magistrate also found that at the time of the warning, KS was not trespassing on the Casuarina Bus Interchange, as she was permitted to be at the bus stop. However, KS's conduct on the bus, which involved marking a seat with graffiti, constituted a breach of the Public Transport (Passenger Safety) Act 2008, and thus her authority to be on the bus was revoked, making her a trespasser. Ultimately, the court found that there was no case to answer, and the charge against KS was dismissed.

Orders