Rigby v Mellor - [2021] NTSC 70

CITATION: Rigby v Mellor & Anor [2021] NTSC 70
PARTIES:RIGBY, Kerry Leanne
v

MELLOR, Lauren Ann Mellor
RORY, Conrad

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: Appeal from LOCAL COURT exercising Territory jurisdiction
FILE NOs:LCA 40 of 2021 (21926270)
LCA 41 of 2021 (21926271)

DELIVERED:  10 September 2021
HEARING DATE:  10 September 2021
JUDGMENT OF:  Riley AJ
REPRESENTATION:
Counsel:
Appellant:M Chalmers
Respondents:  J Lawrence SC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondents:  Nil
Judgment category classification:    C
Judgment ID Number:  Ril2103
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v Mellor & Anor [2021] NTSC 70

Nos. LCA 40 of 2020 (21926270); LCA 41 of 2020 (21926271)

BETWEEN:
KERRY LEANNE RIGBY

Appellant
AND:
LAUREN ANN MELLOR
AND:
CONRAD RORY

Respondents

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 10 September 2021)

On 10 November 2020 in the Local Court the respondents were each found not guilty of a single charge of criminal damage to property, a front lawn, belonging to another namely the Northern Territory Government, contrary to s 241(1) of the Criminal Code.
The circumstances of the alleged offending were described by the Local Court Judge as arising from a political demonstration held in the vicinity of Parliament House on 16 April 2019. His Honour found that in the course of the demonstration, a small bobcat with a front mounted auger attachment was driven by Mr Rory on to a lawn area where he drilled three holes under the direction of Ms Mellor. His Honour then said:
Poles were then loosely mounted over these holes in what was said to symbolise drilling rigs. There were speeches identifying that the demonstrators were opposed to the ending by the NT government of its moratorium on the mining practice of hydraulic fracturing (“fracking”) and the actual or proposed granting of licences for this practice to commence and/or continue in the Northern Territory. The demonstrators and the bobcat then departed. The drilling of the three holes and the driving of the bobcat on the lawn and its rotation on the lawn had some impact on the surface of the lawn.
Each of the respondents gave evidence before the Local Court admitting their roles in organising the demonstration and in the relevant matters found by the Judge. His Honour found, and it is not now disputed, that each of the respondents “intentionally and/or recklessly, and directly or indirectly, caused the three holes to be drilled in the lawn and the attendant impact of the bobcat on the surface of the lawn”.
The evidence as to the damage caused by the respondents revealed that a gardener attended after the demonstration and repaired the lawn within one hour. His Honour concluded that the lawn was essentially restored to its pre-demonstration appearance and function within that time.
At the hearing the respondents relied upon defences of “sudden or extraordinary emergency” (s 43BC of the Criminal Code) and self-defence (s 43BD of 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 Rigby v Mellor

Details

AGLC: Rigby v Mellor [2021] NTSC 70
Case: [2021] NTSC 70
Decision Date: 10 September 2021

CaseChat Overview and Summary

In the case of Rigby v Mellor, the appellant sought to appeal the decision of the Local Court, which found the respondents not guilty of criminal damage to property. The respondents were acquitted of charges stemming from a political demonstration where a bobcat was driven onto a lawn area near Parliament House to drill three holes to symbolise drilling rigs, in protest against the NT government's moratorium on hydraulic fracturing. The respondents argued that the minor and temporary damage to the lawn did not warrant criminal liability. The appellant contested the acquittal on the basis that the Local Court Judge had erred in concluding that the prosecution failed to establish that the property belonged to the Northern Territory Government. The appellant also argued that the Local Court Judge had erred in finding that the Speaker of the Legislative Assembly, or a person authorised by the Speaker, does not have control over the precincts of the Legislative Assembly. However, the second ground of appeal was not pressed at the hearing.

The Supreme Court of the Northern Territory examined whether the Local Court Judge had erred in his interpretation of the relevant statutory provisions. The Court found that the conclusion of the Local Court Judge that the prosecution failed to establish a necessary element of the charge, that the property as described in the charge belonged to the Northern Territory Government, was in error. The Court held that the prosecution had established beyond reasonable doubt that the subject property belonged to "another person" and the elements of the offence in this regard were satisfied. The Court further held that the appeal would be successful on this ground, subject to the application of the proviso found in s 177(2)(f) of the Local Court (Criminal Procedure) Act.

The Court considered whether to apply the proviso, which allows the court to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The Court found that the substantial delay in the matter, the minor and temporary damage to the lawn, and the respondents' reasonable and sincere beliefs motivated by lawful intentions, all militated against allowing the appeal and remitting the matter for rehearing. The Court also found that the failure of the prosecution to assist the Local Court Judge contributed to the error which occurred. The appeal was dismissed, and the respondents' acquittal was upheld.

Orders