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 Criminal Code). In written reasons for decision the Court found that the respondents were not excused from criminal responsibility for damaging the lawn by virtue of those provisions. There is no challenge to these findings.
The Judge also noted the “clearly symbolic nature” of the conduct of the respondents and observed that the damage to the lawn was both minor and temporary and repaired at a small cost. His Honour considered whether the principal of de minimus non curat lex (the law does not concern itself with trifles) should be applied and determined that it did not apply because of the real, though minor, damage occasioned to the lawn. Again, there is no challenge to this finding.
The charges against each respondent were dismissed because the learned Judge concluded that the prosecution failed to establish a necessary element of the offence being that the property as described in the charge (“front lawn”) belonged to the Northern Territory Government.
The appellant challenged that finding on the grounds that; (a) the Judge erred in failing to properly consider s 306 of the Criminal Code and, further, (b) erred in finding that the Speaker of the Legislative Assembly, or a person authorised by the Speaker, does not have “control” of the precincts of the Legislative Assembly pursuant to the Legislative Assembly (Security) Act 1998 and the Legislative Assembly (Powers and Privileges) Act 1992. The second ground of appeal was not pressed at the hearing.
The offence alleged against each respondent was pursuant to s 241 (1) of the Criminal Code which provides:
A person is guilty of an offence if the person causes damage to property belonging to another person.
The word “belongs” is defined in s 239 of the Criminal Code to include anyone who has “possession or control of it”.
It is apparent on the face of s 241(1) that the identity of the owner of the property the subject of the charge, or the person to whom it belongs, is irrelevant so long as it is “another person”. Section 306 of the Criminal Code makes this clear. It provides:
A description of property in an indictment may be in ordinary language and shall be such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.
The operation of s 306 of the Criminal Code was considered by the Full Court in Bromberg v O’Brien[1] where Asche CJ (with whom Kearney and Angel JJ agreed) held, in relation to a charge of stealing, that the section made it unnecessary to name the person to whom the property belonged provided the indictment indicated with “reasonable clarity” the property referred to. In that case there was a misdescription in the information for an indictable offence as to the ownership of the property alleged to have been stolen. The Court held that the reference to the owner in the information was “mere surplusage” in light of the provisions of s 306 of the Criminal Code and the omission to prove ownership of the allegedly stolen goods was not a fatal defect in the prosecution’s case.
Nevertheless, the Full Court commended the practice of naming the owner as “a useful guide to delineate the particular offence alleged and give the accused as complete a description as practicable to understand the ambit of the charge”.[2]
Each of the respondents gave evidence in the proceedings in the Local Court and neither claimed ownership, possession or control of the property the subject of the charge. Indeed, Ms Mellor gave evidence that she did not own any land in the Northern Territory and made a conscious decision to “drill shallow holes to replicate a fracking operation in the lawns of Parliament”.[3]
In his evidence Mr Rory agreed he took the steps he did in Darwin and when it was put to him that he chose not to take those steps on his own country, he agreed.[4] He did not assert any interest in the property damaged.
The respondents point out that neither s 306 of the Criminal Code nor the case of Bromberg v O’Brien were referred to the learned Judge. His Honour was not assisted by this failure.
The respondents sought to distinguish Bromberg v O’Brien on the basis that it related to stealing offences and submitted it was confined to such offences. With respect, such a submission is unsustainable and, in any event, it is the plain wording of s 241 of the Criminal Code which must be applied and has application to the present offending. Even if the prosecution had not established that the property belonged to the Northern Territory, it has established beyond reasonable doubt that it did not belong to either of the respondents. It belonged to “another person” and the elements of the offence in this regard were satisfied. Section 306 of the Criminal Code confirms this approach to s 241.
It follows from this discussion that the conclusion of his Honour, that the prosecution had failed to establish a necessary element of the charge being that the property as described in the charge belonged to the Northern Territory Government, was in error. The question his Honour should have posed for himself was whether the prosecution had established beyond reasonable doubt that the subject property belonged to another person.
Subject to the application of the proviso, the appeal would be successful on this ground.
The respondents submitted this is an appropriate case for the application of the proviso found in s 177(2)(f) of the Local Court (Criminal Procedure) Act. The subsection provides that, notwithstanding that the court may be of the opinion that the point raised in an appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The application of the proviso to a case in which there was an acquittal in circumstances where a trial judge had made a ruling predicated upon a misapprehension of a statutory provision was considered in Harvey v Bofilios.[5] In that case it was noted that matters relevant to the exercise of the residual discretion to dismiss an appeal include the presence of unfairness arising from such matters as delay and fault on the part of the Crown. Grant CJ said:
Even where some manifest error has been demonstrated, an appeal court will be slow to intervene in an appeal against acquittal where there is a countervailing factor which may warrant the exercise of the residual discretion.
His Honour observed that there had been fault on the part of the prosecutor and then said:
The passage of time since the alleged commission of the offences, in combination with the fault on the part of the prosecution, also militates against allowing the appeal and remitting the matter for rehearing.
In Eastman v The Director of Public Prosecutions (No 2)[6] the Full Court of the ACT Supreme Court noted a range of factors that can be taken into account in determining where the interests of justice lie in such circumstances. The list was said not to be exhaustive and, relevant for present purposes, included the public interest in the due prosecution and conviction of offenders, the seriousness of the alleged crimes, the length of

time between the alleged offence and any new trial including whether the delay will occasion prejudice to the accused, the interests of the individual accused and whether it would be unduly oppressive to put them to the expense and worry of a further trial and the expense and length of a further trial.
In the present case, the substantial delay in this matter was emphasised. It was pointed out that the offending occurred on 16 April 2019 and this appeal was heard on 10 September 2021. It was further argued that, in circumstances where the respondents’ actions were motivated by reasonable and sincere beliefs and were intended to be lawful and where the damage done to the lawn was minor with the integrity of the lawn being restored within one hour, no substantial miscarriage of justice occurred. It was further submitted that the failure of the prosecution to assist his Honour contributed to the error which occurred.
In addition, it seems to me that the offending was at the very low end of seriousness for matters of its kind. In my opinion it would be unduly oppressive to put the respondents to the expense and worry of a further trial. If the appeal is allowed the matter would need to be remitted to the Local Court for further hearing incurring unnecessary expense and further delay.
The appellant did not concede that the proviso should be applied but offered no further argument on this issue.
In my opinion this is a case for the application of the proviso. The appeal is dismissed.
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[1] (1990) 72 NTR 27.

[2] (1990) 72 NTR 27 at 32.

[3]Trial transcript pages 62 and 63.

[4] Trial transcript page 29.

[5] [2017] NTSC 68 at [29]-[39].

[6] [2014] ACTSCFC 2 at [270].