Rigby v Graetz - [2015] NTSC 12

Rigby v Graetz [2015] NTSC 12
PARTIES:RIGBY, Kerry Leanne

v
GRAETZ, Daniel Peter

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:21317382
(JA 21 of 2014)

DELIVERED:  20 FEBRUARY 2015
HEARING DATES:  26 AUGUST 2014
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  COURT OF SUMMARY JURISDICTION

CATCHWORDS:
CRIMINAL LAW – criminal responsibility – statutory offence
constituted by omission – application of s 31 of the Criminal Code (NT) to
s 48(1) of the Child Protection Offender Reporting and Registration Act
(NT).
CRIMINAL LAW – Statutory Interpretation – whether
common law classification of statutory offences applies – whether mens rea
excluded – criminal responsibility determined by the Criminal Code (NT).
CRIMINAL LAW – Statutory Interpretation – Objects and Purpose of Child
Protection Offender Reporting and Registration Act (NT) – whether s 31
excluded by necessary implication.
JUSTICES APPEAL – Appeal by informant – appeal against dismissal of
charge abandoned – whether jurisdiction properly engaged – appeal
dismissed.
Child Protection (Offender Reporting and Registration) Act, ss 48(1), 48(2).
Criminal Code, ss 5, 23, 31(1), 31(3), 43AN, 43AO, 103A, 155, 188(2).
Justices Act, ss 162, 163(1), 163(3), 163(5), 177(2).
Sex Offenders Registration Act2004 (Vic).

Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177
CLR 485; Bank of England v Vagliano Brothers [1891] AC 107; Barlow
(1997) 188 CLR 32; Charlie v The Queen (1999) CLR 387; DPP (NT) v WJI
(2004) 219 CLR 43; Fry v Jennings (1983) 25 NTR 19; He Kaw Teh v The
Queen (1985) 157 CLR 523; Kruger v Kidson (2004) 14 NTLR 91; Megson v
The Queen (2000) 17 NTLR 57; Norton v Loring [1976] Tas SR 40; Peach v
Bird [2006]; Phipps v State Railway Authority of New South Wales (1986) 4
NSWLR 444; Pregelj v Manison (1987) 88 FLR 346; R v Mardday (1998) 7
NTLR 192; Reg v Tawill [1974] VR 84; Sherras v De Rutzen (1895) 1 QB
918; Thow v Lowe [1988] TASSC 37; Vallance (1961) 108 CLR 56; WBN v
Commissioner of Police [2012] VSCA 159; Wilson v McCormack (1968) Tas
SR 55; referred to.
REPRESENTATION:
Counsel:
Appellant:R. Griffith
Respondent:  P. Bellach
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Blo1504
Number of pages:  24

IN THE FULL COURT
SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v Graetz [2015] NTSC 12

No. 21317382
BETWEEN:

KERRY LEANNE RIGBY

Applicant

AND:

DANIEL PETER GRAETZ Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 20 February 2015)
Introduction

Following a contested hearing in the Court of Summary Jurisdiction, the respondent was found not guilty of the charge of failing to comply with a reporting obligation pursuant to s 48(1) of the Child Protection (Offender Reporting and Registration) Act (CPORRA). The learned Chief Magistrate published detailed reasons for the decision to acquit the respondent on 16 April 2014.
The informant (appellant) filed a Notice of Appeal against the order dismissing the charge.[1] The grounds of appeal were originally as follows:
(1)That the learned Magistrate erred in ruling the prosecution had to prove beyond reasonable doubt that the defendant intended to fail to meet his reporting conditions or that the failure was occasioned by oversight.
(2)That the learned Magistrate erred in his application of s 31 of the Criminal Code and in not finding that the defendant bore an onus to prove on the balance of probabilities that he had a reasonable excuse for failing to report.
(3)That the learned Magistrate erred in his finding that forgetting is a reasonable excuse in the context of the specific legislation.
In this Court, the second part of ground two and ground three were effectively abandoned. Some of the underlying arguments relevant to the abandoned grounds were used in an overall sense in support of the construction sought by the appellant: that s 31 of the Criminal Code does not apply to s 48(1) of the CPORRA.
Counsel for the appellant informed the Court it was no longer contended that his Honour erred in finding that the respondent had a reasonable excuse for the non-compliance with the reporting conditions. Further, it was confirmed that the appellant would not seek an order that would impact on the respondent personally.
The appellant sought two orders from this Court:[2] first, that his Honour had erred in ruling that s 31 of the Criminal Code applied to s 48 of the CPORRA and second, that the appeal be dismissed under s 177(2) of the Justices Act. Section 177(2) allows the Court to dismiss an appeal notwithstanding it is of the opinion that the point raised may be decided in favour of an appellant, if no substantial miscarriage of justice has actually occurred. If the merits of the acquittal (on at least one basis) are not genuinely under challenge in these proceedings, the appeal against the order dismissing the charge[3] must necessarily be dismissed, notwithstanding an assertion of error with respect to one aspect of his Honour’s reasoning.
This seemed a novel position for the appellant to take. There are no doubt stressors operative on a respondent circumstances such as this. The potential negative impact of the approach taken by the appellant was somewhat mitigated by the statement made by counsel for the appellant at an earlier mention of the matter to the effect that the appellant did not seek to change the order acquitting the respondent.
Jurisdiction to entertain the appeal on the basis outlined by counsel for the appellant was not challenged at the hearing of the appeal however, on reflection, I have serious doubts that the jurisdiction of the Court has been properly engaged to entertain an appeal on the reformulated basis.
In September 2001, the Justices Act was amended to grant the prosecution a right of appeal against an order or adjudication of the Court of Summary Jurisdiction dismissing a charge of a minor indictable offence.[4] The appeal lies as of right. The “appeal”, as reformulated at the hearing does not appear to be the type envisaged by s 163(3) of the Justices Act. Section 163(3) of the Justices Act provides:
“A party to proceedings before the Court arising from a complaint or an information in relation to a minor indictable offence that the Court summarily disposes of may appeal to the Supreme Court from an order or adjudication of the Court dismissing the complaint or information”.
It would seem s 163(3) cannot apply here, as there is no appeal, or at least no longer an appeal, from an “order or adjudication….dismissing” the information.
Section 163(5) of the Justices Act provides that an appeal under s 163(3) is confined to a ground that involves an error of law or a question of both fact and law. The threshold however, is that there must be an appeal against an order or adjudication dismissing the information. Although the Notice of Appeal expressly states the appeal is against the order dismissing the information, in this Court, the complaint against the order dismissing the information was not pursued, hence jurisdiction must be doubtful.
The Notice of Appeal states, that the appeal is against an “order” (rather than an “adjudication”) of the Court; however, even if the subject of the appeal can properly be said to be an “adjudication”, jurisdiction is still doubtful. “Adjudication” is not defined in the Justices Act. The Macquarie Dictionary meaning is: (a) “The act of a court making an order, judgment or decree”. (b) “A judicial decision or sentence”. Even in its broadest sense, “adjudication” does not appear to cover a ruling made in the course of dismissing a charge when the order for dismissal itself is not appealed. Much of the case law on the meaning of “adjudication” involves the question of whether the particular decision (adjudication) is interlocutory or final, and if interlocutory, whether it is the type of interlocutory decision excluded from the ambit of decisions that may be properly appealed.[5]
Whatever way the impugned ruling is characterized, it cannot be said to be a decision within the purview of s 163(3) of the Justices Act. For completeness, I mention s 163(1) of the Justices Act cannot apply as the appeal is against a dismissal, whereas s 163(1) deals with appeals against conviction and sentence, orders and adjudications. The appellant could have requested the learned Chief Magistrate state a special case to this Court pursuant to s 162 of the Justices Act if what in reality was being sought was a ruling on the correctness of the approach taken to the application of s 31 of the Criminal Code to s 48(1) of the CPORRA.
I would dismiss the appeal for want of jurisdiction given the manner in which the appeal has been reformulated before this Court. However, as this was not raised at the hearing of the appeal, but rather as a result of considering the matter since the hearing, I may be in error and will proceed to deal with the merits.

Outline of relevant facts and principal reasons in the Court of Summary Jurisdiction

As part of his regular reporting obligations under the CPORRA, the respondent was required to report to police in November 2012. It was not in dispute that he failed to do so. At the hearing before the learned Chief Magistrate, the respondent gave evidence that he had been distracted from his reporting obligation under the CPORRA by reason of concern for his son who had moved out of the family home. As a consequence, he told the Court he forgot to attend the police station in order to fulfil his reporting obligation. His failure to report as required during the month of November 2012 was attributed to a lapse of memory as a result of the circumstances he described.
Upon realising his oversight, he subsequently reported to police in December 2012. His Honour noted that the respondent reported within the following month, “within a very short period of time after the final date for reporting”.[6]
His Honour found the respondent’s evidence clearly raised an issue of the application of s 31 of the Criminal Code, reasoning that forgetting to do an act is inconsistent with intending to do an act; that intention requires advertence of the mind and that the lapse of memory as described by the respondent was inconsistent with an intentional omission. His Honour found that the evidence given by the respondent was credible. He concluded this was a “rare case” in which the prosecution had been unable to negative the excuse provided by s 31 of the Criminal Code. His Honour said that if this ruling was in error, the respondent would still have been entitled to an acquittal as on the particular facts his lapse of memory and forgetting to report afforded him a “reasonable excuse”. He had discharged the legal burden of establishing reasonable excuse on the balance of probabilities.
Summary of the appellant’s submissions
Counsel for the appellant submitted his Honour’s ruling with respect to the application of s 31 of the Criminal Code was contrary to the purpose of the CPORRA and against the intention of Parliament. On the appellant’s argument, his Honour’s interpretation should not be permitted to stand if an alternative interpretation, apparently laying greater claim to the intention attributed to the legislature was open.
Attention was drawn to the purpose of the legislation as reflected in the second reading speech when the Bill for the CPORRA (2004) was introduced:
“Obliging a sex offender to keep police informed of his or her personal information and movements for a period after their release into the community will assist in the investigation and prosecution of sex offences committed by recidivist offenders. It will also provide a deterrent against reoffending, assist in the monitoring of high risk prisoners, provide a level of community protection, and assist the police in the enforcement of a prohibition order, where granted.”[7]
Attention was also drawn to the long title of the CPORRA, emphasizing the stated objective that offenders who commit sexual offences against children be required to keep police informed of their whereabouts and other personal details in order to reduce the likelihood that they will reoffend. The appellant highlighted the purpose of the legislation: the protection of the public.[8] The purpose of the offence under s 48(1) of the CPORRA was said to ensure compliance with the reporting obligation, not to punish wrong doing.
Counsel for the appellant submitted that the usual basis for attributing criminal responsibility for the commission of an offence, generally requiring the presence of both mental and physical elements, should not apply to offences such as a failure to report, as, inter alia it is an offence of nonfeasance.
Statutory offences, it was submitted, do not require application of the doctrine of mens rea. This is particularly in the case of offences of nonfeasance, as evident in authorities such as Phipps v State Rail Authority of New South Wales,[9] concerning the exclusion of mens rea from an offence of failing to travel on a train without pre-payment, without reasonable excuse. Relying on Sweet v Parsley[10] and Lim Chin Aik v The Queen,[11] Lee J concluded mens rea should be excluded based on the clear words of the section, the penalty provided and considering that in the overall circumstances, the legislature did not intend the prosecution to carry any onus to prove a dishonest intent.[12] His Honour also considered the practical aspects of the operation of the section, namely the significant numbers of people using public transport and consequently to enable the receipt of adequate revenue from fares, a sanction unrelated to honesty or dishonesty was appropriate.[13] The appellant argued there are parallels with s 48(1) of the CPORRA that should lead to the exclusion of s 31.
It was argued the effect of requiring proof of a mental element was that the prosecution would be obliged to prove that the failure to report was intentional and that evidence amounting to forgetting would become a “potentially unassailable defence”.[14] It followed, on the appellant’s case, that unless there was evidence of a statement of an intention to fail to report, a defence case based on a lapse of memory would be very difficult for the prosecution to contradict.
The appellant argued the following section of his Honour’s reasoning posed particular difficulties as it raised the problem of disproof of a negative:[15]
Forgetting to do an act is clearly inconsistent with intending to do an act because intention requires advertence of mind. Similarly, lapse of memory is inconsistent with an intentional omission.
Further, on the question of “foresight” his Honour said:
It is not necessary to consider whether the defendant possessed the alternative state of mind prescribed by s 31 (namely foresight) because foresight requires advertence of mind, and due to a lapse of memory the defendant did not turn his mind to the requirement to report.
The interpretation adopted by his Honour was said to weaken the enforceability of the reporting requirement and erode the public safety purpose of the legislation in a manner the legislature could not have intended. Although the appellant acknowledged there were arguments in favour of the interpretation adopted by his Honour, it was submitted the elements of the offence should be construed in a manner consistent with what was said to be Parliament’s intention.
More specifically, it was argued s 31 of the Criminal Code should not be held to apply to an offence under s 48(1) of the CPORRA, as s 48(1) is not an offence under the Criminal Code and may be differentiated from offences such as ‘offensive behaviour’ (an offence under the Summary Offences Act), that have been held to be governed by s 31 of the Criminal Code.[16]
In Pregelj v Manison, the Court of Appeal confirmed s 31 of the Criminal Code applied to non-Code offences, unless an offence is one of a class of offences designated as exempt by the Criminal Code.[17] The appellant argued that a common law approach was taken to resolve the question of the application of s 31 in both Pregelj v Manison and later by the High Court in DPP (NT) v WJI.[18] It was argued both cases relied on the presumption of mens rea as an element of a statutory offence. It was said that as this approach relied on the line of authority commencing with the common law presumption of mens rea as articulated Sherras v De Rutzen[19] and culminating in Australia in cases such as He Kaw Teh v The Queen,[20] the same criteria used to categorize offences in the common law to determine whether proof of mens rea is required, should be applied to s 48(1) of the CPORRA to determine whether s 31 of the Criminal Code applies.
If the common law approach was taken, the appellant said the consequence would be that s 31 would be excluded from consideration. It was argued this was because s 48(1) is not ‘truly criminal’ (as that term is used in common law cases).
A further submission was that s 48(1) is part of a national scheme and consistency with other jurisdictions should be a factor in how the provision is interpreted. Here, reliance was placed on WBN v Chief Commissioner of Police,[21] concerning the Victorian Sex Offences Registration Act. The Victorian Court of Appeal characterized that Act, as non-punitive, but rather protective and preventative.[22] This was in the context of determining whether the Sex Offences Registration Act applied retrospectively in relation to the registration of an offender, convicted before the commencement of that Act.
A further argument said to favour the appellant’s case was the inclusion of the words “without reasonable excuse” in s 48(1). Given the inclusion of “without reasonable excuse”, the appellant submitted s 48(1) should be read to govern the types of excuses or defences that might otherwise be governed by s 31 of the Criminal Code. The appellant submitted on the basis of all of the arguments put that s 31 should be excluded by necessary implication in respect of s 48(1). His Honour was said to be in error for not considering the exclusion of s 31 as a matter of necessary implication.
Consideration of the appellant’s arguments
At the outset it should be recognised the Criminal Code governs the rules of criminal responsibility in the Northern Territory. While it is the case that the common law has continued to influence (sometimes significantly) the interpretation of criminal statutes and a variety of terms in the Criminal Code, the core elements of criminal responsibility are governed by the Criminal Code. This is clear from Pregelj v Manison,[23] and from the Criminal CodeAct itself. Section 5 of the Criminal CodeAct declares the Criminal Code to be the law of the Territory in respect of the matters dealt with in the Code.
In Pregelj v Manison, there was extensive discussion of the common law doctrine of mens rea, and of the meaning of “act” or “actus reus” at common law. The Court was careful to note however, that this discussion was only an “aid to understanding the intention of the Code”.[24]
The common law, while influential in some matters of interpretation,[25] at times by the use of reasoning by analogy (especially in the early life of the Criminal Code) is not the source of the principles criminal responsibility in the Northern Territory. The influence of the common law does not go as far as suggested by the appellant’s counsel. The common law does not govern the classification of offences in the Northern Territory. The Criminal Code does. This is in conjunction with the definition of the elements in the particular offence.
His honour summarised the position as follows:
“The application of section 31 to a particular offence may be displaced by the definitional elements of the offence. For example, the definition of the offence may by its language evince a legislative intent to create an offence that does not require the provisions of s 31 to be imported in order to complete the definition of the offence; or the offence creating provision may contain its own mental element in relation to any act, omission or event constituting the offence, thereby excluding the application of s 31 to that specific physical element”.[26]

The appellant argued his Honour had not considered whether s 31(1) should be excluded by necessary implication based on the objects of the CPORRA, however, his Honour’s reasons, both as set out above and fairly read as a whole, indicate his Honour considered all mechanisms by which s 31 might apply or be excluded.
Had the legislature intended the criminal responsibility provisions of Part II of Criminal Code (of which s 31 is part) not apply to s 48(1) of the CPORRA, there are simple legislative mechanisms available to achieve that purpose.
Those mechanisms have been utilized with respect to a great many offences. First, by declaring s 48(1) to be a “regulatory offence” which would exclude the operation of most matters of “excuse”, notably s 31 and s 32 (honest and reasonable mistake of fact);[27] or second, by expressly including the particular offence in s 31(3) of the Criminal Code. Section 31(3) currently excludes s 155 of the Criminal Code from the operation of s 31. Previously, s 31(3) excluded the now repealed s 154 of the Criminal Code. Notably, s 155 is an offence of “omission”. The previous s 154 included both “acts” and “omissions”.
A further mechanism available would have been to list s 48(1) as a Schedule 1 offence in Part IIAA of the Criminal Code and then declare that it is either a strict liability offence under s 43AN of the Criminal Code or an offence of absolute liability under s 43AO of the Criminal Code, depending on the degree to which certain defences are sought to be excluded.
There are number of examples of cases where s 31 has been held not to apply because of the wording of the particular section creating the elements of the offence.[28] In some cases this is because the elements comprising s 31 are subsumed or displaced within the particular offence provision.[29] In R v Mardday[30] it was held s 31 does not apply to circumstances of aggravation charged under s 188(2) of the Criminal Code. This was simply a case of application of the usual rules of statutory interpretation. Section 31 may apply to some elements of an offence, but not others. For example, in Barnes v Westphal,[31] it was held s 31 applied to the offence, of intimidate a witness under s 103A of the Criminal Code but given the definition of that offence this meant no more than intention to menace, intimidate or threaten or cause the detroment alleged.
Given there are simple legislative mechanisms available to exclude s 31 from the operation of s 48(1) of the CPORRA and those mechanisms were not utilized, there exists a strong, almost conclusive argument that s 31 was intended to apply. Absence of express words to this effect tells against the appellant’s argument. This was made clear by Mildren J in Kruger v Kidson,[32] using the common law approach by analogy:
“Although cases of absolute liability exist, the Courts are extremely reluctant to draw the conclusion that this was the intention of the legislature, as this would mean that even those who are utterly blameless will be caught by the legislation. In Schmid v Keith Quinn Motor Co Pty Ltd (1987) 29 A Crim R 330 at 339, Bollen J said: In deciding whether legislation is so absolute, one must examine the objects of the legislation, the words of the whole Act, the scheme of the Act and the words of the relevant section or sections. One should, too, stand back to consider whether by the imposition of absolute liability you will readily assist the object of the legislation and not merely catch a luckless victim”.
Section 48 of the CPORRA provides:
(1)A reportable offender who, without reasonable excuse, fails to comply with his or her reporting obligations commits an offence.
Maximum penalty: 100 penalty units or imprisonment for 5 years.
(2)A court, in determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, must have regard to the following matters:
(a)     The person’s age;
(b) Whether the person has a disability that affects his or her ability to understand and comply with those obligations;
(c) Weather the form of notification given to the reportable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender’s circumstances;
(d)     Any matter specified by the Regulations for this section;
(e)     Any other matter the court considers appropriate.
(3)It is a defence to a prosecution for an offence of failing to comply with a reporting obligation if it is established that, at the time the offence is alleged to have occurred, the defendant had not received notice, and was otherwise unaware, of the obligation.
The word “fails” signifies the offence is constituted by an omission to comply with an obligation to report. By itself it does not import any accompanying state of mind. As has long been accepted, s 23 of the Criminal Code requires proof of a physical element, an “act, omission or event”, and absence of authorisation, justification or excuse. This is the combined effect of s 23 and s 31(1) of the Criminal Code.[33]
As s 31 is not excluded by any of the mechanisms already noted, the relevant “excuses”, including s 31, are to be applied unless there are very strong indications to the contrary, available by proper construction of the section, and taking account the protective objects and purposes of the CPORRA. I do not suggest that there could never be a case of exclusion of the operation of s 31 by necessary implication; however, to negate the long held structure of criminal responsibility under Part II of the Criminal Code would require an extremely clear, strong implication to the contrary. In my opinion, bearing in mind all of the relevant criteria, such an implication cannot be drawn, nor is it necessary to do so. The proof process is not as dire as argued by the appellant. It is not such a strong consideration to justify exclusion of the usual rules of criminal responsibility governed by the Criminal Code.
A number of statutes incorporating a defence of “reasonable excuse” have been construed to negate the need for proof of mens rea.[34] The majority judgments in He Kaw Teh v The Queen[35] doubt the correctness of this approach, however, it is inevitably a question of construction. In He Kaw Teh,[36] Chief Justice Gibbs disapproved of Reg v Tawill,[37] a case relied on here by the appellant. As the learned Chief Magistrate noted, the “reasonable excuse” defence provided within s 48(2) is not directed at any mental element of the offence. It is not a case that can be said to impliedly supplant s 31 of the Criminal Code.
In my opinion the appellant’s position is far too pessimistic in terms of assertions about difficulties with proof. Contrary to the appellant’s submission,[38] the application of s 31 in respect of s 48 does not mean the inevitable consequence will be that reportable offenders are able to avoid their obligations by the bare assertion that they “forgot”. That submission ignores the process of proof of mental states undertaken by courts. Mental states are regularly required to be proven circumstantially.[39] This was addressed by his Honour when discussing the respondent’s evidence and in my view is indicative of how courts generally might approach such an issue:[40]
“It almost goes without saying that lapse of memory is easy to feign. Therefore in order for a court to consider lapse of memory as providing a “reasonable excuse” the evidence of memory lapse would have to be credible – and in most cases supported by some objectives unassailable evidence.[41] In my opinion, the defendant’s account of lapse memory went beyond mere absentmindedness and could not be characterized as negligent conduct. Furthermore, the defendant’s account of lapse of memory was credible. The defendant attributed his lapse of memory to an identifiable cause, which provided an inherently plausible explanation for his failure to report. Most significantly, there was retrospectant circumstantial evidence of his lapse of memory: upon realising he had failed to report as required he reported within 5 days after the due date for reporting”.
In my opinion it is clear s 31, applying as it does expressly to “omissions”, applies to s 48(1) of the CPORRA. While it is the case that courts at common law may have been reluctant to imply mens rea in respect of omissions, it must be remembered that s 31 expressly includes omissions. In any event at common law, much depends upon the construction of the particular provision, drawing on any available legislative history or other relevant indications. In Phipps v State Railway Authority of New South Wales,[42] relied on by the appellant and discussed above, Street CJ concentrated on the history of the provision. The words “without reasonable excuse” had replaced the previous “with intent to avoid payment thereof”, leading readily to a conclusion excluding mens rea.
The protective objectives of the legislation are accepted. His Honour accepted the same. To adopt the appellant’s argument to the effect that the common law approach of classification of offences and ascribing (or not) mental elements to the definition of an offence, would cause considerable violence to the settled approach taken to the application of s 31 of the Criminal Code to both Code and non-Code offences.
It is also accepted that the CPORRA is part of a national scheme, in the sense that other jurisdictions have enacted mirror or similar legislation. While it may be seen as ideal from a policy and law enforcement perspective that all such legislation be interpreted in a similar manner across jurisdictions, and indeed the law is that courts do not depart from the interpretation placed on similar legislation from another intermediate court,[43] that does not, in this situation justify departure from the established codified rules of criminal responsibility.
As already noted, the appellant placed reliance on WBM v Chief Commissioner of Police.[44] There is no question that the protective and preventative aims of the Sex Offences Registration Act as found in WBM v Chief Commissioner of Police are equally true of the CPORRA. The CPORRA is not a penal statue. This acknowledgment however does little to assist with the proper approach to be taken to the penal provisions within the Act.[45] Chief Justice Warren in WBM v Chief Commissioner of Police, contrasted the offence provisions, with the Act as a whole, and stated that failure to comply with the reporting conditions may have penal effects, hence the rules of construction concerning penal statues apply to those parts of the Act.[46]
It follows that in terms of the construction of the offence provisions of the CPORRA, the usual rules of interpreting penal statutes apply, including the rules that would ordinarily impose criminal responsibility. Nothing in this approach undermines the objects of the CPORRA.
Even applying the common law approach to the question of whether mens rea applies: having regard to the language of the statute and its subject matter;[47] and having regard to whether the acts were “not criminal” or were merely a “summary mode of enforcing a civil right”,[48] it is by no means clear that relevant mental elements could be said to be excluded by necessary implication. Section 48(1) is not a clear fit with the common law test of whether it is “truly criminal” in nature. Section 48(1) is defined as a “crime” in the Northern Territory. It carries a maximum penalty of 5 years imprisonment. Section 48(1) is not a regulatory offence, nor even a simple offence. Section 3 of the Criminal Code distinguishes between crimes, simple offences and regulatory offences. Section 3 of the Criminal Code applies to all statutes which create offences and is not confined to the offence provisions of the Criminal Code.[49]
Section 48 of the CPORRA does not specify whether the offence is a crime, simple offence or a regulatory offence; however, by virtue of s 38E of the Interpretation Act, an offence provision providing a penalty of more than two years imprisonment is a crime. This may well place offences against s 48(1) of the CPORRA in a more significant category than ‘nuisance offences’ or offences that are not “truly criminal”.
The order will be that the appeal is dismissed.

*************************

[1] Notice of Appeal, 20 March 2014.

[2] Appellant’s outline of argument, [4].

[3] The order appealed against set out in the Notice of Appeal, 20 March 2014, was that the “charge against the respondent be dismissed”. The “Condition” on the Recognizance to Prosecute Appeal, signed by the Informant on 19 March 2014, states the appellant is dissatisfied with the determination: “And the said Court dismissed the information and discharged the defendant Daniel Peter Graetz”.

[4] The construction of s 163 of the Justices Act is discussed in Peach v Bird [2006] NTSC 14, [8], [9] (Southwood J).

[5] See Fry v Jennings (1983) 25 NTR 19; Thow v Lowe [1988] TASSC 37; cf interlocutory matters such as adjournments may be in a different category: Wilson v McCormack (1968) Tas SR 55; Norton v Loring [1976] Tas SR 40.

[6] Reasons for decision in Rigby v Graetz, 16 April 2014, 6 Dr Lowndes CM.

[7] Northern Territory Parliament, Second Reading Speech, 24 August 2004 (Paul Henderson, Minister for Police, Fire and Emergency Services.

[8] A view reflected generally in the judgements in WBN v Chief Commissioner of Police [2012] VSCA 159, concerning the Sex Offenders Registration Act2004 (Vic).

[9] (1986) 4 NSWLR 444.

[10] [1970] AC 132.

[11] [1963] AC 160.

[12] (1986) 4 NSWLR 444, 450.

[13] Ibid, 450-457.

[14] Appellant’s outline of argument, para [7].

[15] Dr Lowndes CM, Reasons for decision in Rigby v Graetz, 16 April 2014.

[16] Pregelj v Manison (1987) 88 FLR 346.

[17] Ibid, at 361.

[18] (2004) 219 CLR 43, although in the context of the now repealed version of the crime, unlawful sexual intercourse without consent.

[19] (1985) 1 QB 918 at 921.

[20] (1985) 157 CLR 523.

[21] [2012] VSCA 159.

[22] Ibid, [115] (Warren CJ).

[23] (1987) 88 FLR 346, 361.

[24] (1987) 88 FLR 346, 352 (Nader J).

[25] Consistent in any event with the approach taken to the interpretation of codes in Bank of England v Vagliano Brothers [1891] AC107, 145; Vallance (1961) 108 CLR 56, 76 (Windeyer J); Barlow (1997) 188 CLR 1, 32 (Kirby J).

[26] Dr Lowndes CM, Reasons for decision in Rigby v Graetz, 16 April 2014, 2.

[27] By operation of s 22 Criminal Code.

[28] Eg in Charlie v The Queen (1999) 199 CLR 387 (upholding the Court of Criminal Appeal decision, Charlie v The Queen (1998) 7 NTLR 152) in respect of the now repealed formulation of murder.

[29] In short what occurred in Charlie v The Queen (1999) 199 CLR 387.

[30] (1998) 7 NTLR 192.

[31] (2008) 22 NTLR 236.

[32] (2004) 14 NTLR 91, [15].

[33] R v Mardday (1998) 7 NTLR 192, 197.

[34] Eg. Reg v Tawill [1974] VR 84, 88.

[35] (1985) 157 CLR 523.

[36] Ibid, 541.

[37] [1974] VR 84.

[38] Appellant’s outline of argument, [8].

[39] The proof process with respect to proof of ‘knowledge’ was discussed in some detail by Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523, 581. Similar arguments were raised by the respondent there.

[40] Dr Lowndes CM, Reasons for decision in Rigby v Graetz, 16 April 2014, 8-9.

[41] His Honour noted here this was the approach taken traditionally in relation to automatism.

[42] (1986) 4 NSWLR 444.

[43] Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485.

[44] [2012] VSCA 159.

[45] WBM v Chief Commissioner of Police was not a criminal case. In part it concerned whether a particular interpretation was consistent with the Victorian Charter of Human Rights and ResponsibilitiesAct 2006.

[46] WBM v Chief Commissioner of Police [2012] VSCA 159, [129] (Warren CJ), [176] (Bell J).

[47] He Kaw Teh v The Queen (1985) 157 CLR 523.

[48] Sherras v De Rutzen (1895) 1 QB 918, 921.

[49] Megson v The Queen (2000) 17 NTLR 57, [16].