Rockman v Smallridge - [2012] NTSC 56

Rockman v Smallridge [2012] NTSC 56
PARTIES: ROCKMAN, Bradley

v
SMALLRIDGE, Gary

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 8 of 2012 (21118079)
DELIVERED:   08 August 2012
HEARING DATES:   17 July 2012
JUDGMENT OF:   MILDREN J
APPEAL FROM:   COURT OF SUMMARY JURISDICTION
(MR R WALLACE SM)

CATCHWORDS:

CONSTITUTIONAL LAW – Liquor Act (NT) – Northern Territory National Emergency Response Act 2007 (Cth) – whether s 75 of Liquor Act inconsistent with Commonwealth legislation – general principles discussed.
STATUTORY INTERPRETATION – Liquor Act (NT) s 75 – whether offences of bringing liquor or controlling liquor in restricted area still exist – whether repugnant to Northern Territory National Emergency Response Act2007 (Cth) s 12.
EVIDENCE – whether certificate under s 75(2) of Liquor Act (NT) admissible to prove that location of offence occurred in a “prescribed area” for the purposes of the Liquor Act as modified by the Northern Territory National Emergency Response Act 2007 (Cth).
Liquor Act (NT)
Northern Territory National Emergency Response Act 2007 (Cth)
Attorney-General (NT) v Minister for Aboriginal Affairs & Ors (1989) 90 ALR 59; Federal Capital Commission v Laristan Building & Investment Company Pty Ltd (1929) 42 CLR 582; Northern Territory of Australia v GPAO & Ors (1999) 196 CLR 553; The Queen v Kearney; Ex parte Japanangka (1983-1984) 158 CLR 395; University of Wollongong v Metwally (1984) 158 CLR 447; Webster & Anor v McIntosh (1980) 32 ALR 603, applied.

REPRESENTATION:
Counsel:
Appellant:   L Bennett
Respondent:   L Wilson
Solicitors:
Appellant:   L Bennett
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:   11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rockman v Smallridge [2012] NTSC 56
No. JA 8 of 2012 (21118079)
BETWEEN:

BRADLEY ROCKMAN

Appellant

AND:

GARY SMALLRIDGE

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 08 August 2012)

The appellant was charged on complaint in that, on 6 June 2011, at Lajamanu, in the Northern Territory of Australia, did control liquor, namely, two 1.125-litre bottles of Bundaberg Rum and nine 375-millilitre cans of VB Beer within a restricted area, namely, Lajamanu community, contrary to section 75(1)(b) of the Liquor Act. He was further charged with a count that, on 6 June 2011, at Lajamanu, in the Northern Territory of Australia, he brought liquor, namely, two 1.125-litre bottles of Bundaberg Rum and nine 375-millilitre cans of VB Beer into a restricted area, namely, Lajamanu community, contrary to section 75(1)(a) of the Liquor Act. The appellant pleaded not guilty. After a summary hearing, he was found guilty on both counts. The learned Magistrate imposed an aggregate fine of $250.00, with two $40.00 victim levies.
The appeal to this Court is on the following grounds:
1. The appellant was incorrectly charged and that the offences of which he was found guilty did not exist in the Northern Territory.
2. There was insufficient evidence…

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 Rockman v Smallridge

Details

AGLC: Rockman v Smallridge [2012] NTSC 56
Case: [2012] NTSC 56
Decision Date: 08 August 2012

CaseChat Overview and Summary

In Rockman v Smallridge, the appellant challenged his conviction for bringing liquor into a restricted area under section 75(1) of the Liquor Act (NT). The appeal raised two primary issues: whether the Liquor Act offence still existed given the enactment of the Northern Territory National Emergency Response Act 2007 (Cth) (the Response Act); and whether there was sufficient evidence to prove that the offence occurred within a "prescribed area" as defined by the Liquor Act as modified by the Response Act. The appeal was dismissed by the Court.

The key legal issues revolved around the interpretation of the Liquor Act in light of the Response Act, and the admissibility of evidence under section 75(2) of the Liquor Act to prove the location of the offence. The appellant argued that the Response Act rendered the offences under the Liquor Act inconsistent and therefore nullified them. He also contended that there was insufficient evidence to prove that the offence occurred within a "prescribed area" because the prosecution did not prove that the land was Aboriginal land. The Court considered these arguments in detail, assessing whether the Liquor Act offences remained valid post-Response Act, and whether the certificate under section 75(2) was admissible to establish the location of the offence.

The Court found that the appellant's argument concerning the inconsistency of the Liquor Act offences with the Response Act was not valid because the offences under the Liquor Act continued to exist despite the modifications by the Response Act. The Court held that the Response Act did not repeal or invalidate the Liquor Act offences but rather modified their application to prescribed areas. The Court also ruled that the certificate under section 75(2) was admissible to prove the location of the offence as it was within a prescribed area. The Court concluded that the evidence presented was sufficient to establish that the offence occurred within a restricted area, as the land was Aboriginal land and thus a prescribed area.

The Court dismissed the appeal and upheld the conviction. The decision confirmed that the Liquor Act offences remained valid and that the certificate under section 75(2) was admissible to establish the location of the offence in a prescribed area.

Orders

Orders of the court

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Background

Background to the litigation

The appeal to this Court is on the following grounds:1. The appellant was incorrectly charged and that the offences of which he was found guilty did not exist in the Northern Territory.2. There was insufficient evidence as to a prescribed area to found a finding of guilt in relation to each of the charges.Background matters Section 75(1) and (1AA) of the Liquor Act provides:(1) A person commits an offence if the person: Section 75(2) provides:(2) In any proceeding for an offence against this section, a certificate, purporting to be signed by a person who claims in the certificate to be the Director or a Deputy Director, stating that a place was or was not, at a specified time, within a restricted area is evidence of the facts stated. Under section 74 of the Liquor Act, the Northern Territory Licensing Commission may declare a specified area of land to be a general restricted area, or declare a specified area of land other than the private premises to be a public restricted area. Section 75(1B) provides that a person commits an offence if a person consumes liquor within a public restricted area. That is also an offence of strict liability (see section 75(1BA)). The facts as found by the learned Magistrate were that, at about 3:00 am, the police attended a disturbance in Lajamanu community, as a result of which they found the liquor piled up on the front passenger’s seat of a vehicle which was parked adjacent to a house in the community and within the restricted area according to a certificate that had been admitted into evidence. Shortly before this, the police had heard the sound of a car horn. They saw the appellant in the driver’s seat of the motor vehicle. They saw the appellant getting out of the motor vehicle and then noticed the alcohol in the passenger’s seat. The learned Magistrate was satisfied that the appellant, as the driver of the motor vehicle, had brought the liquor, as well as a number of other people, into the restricted area and, that at the time, that the police found the appellant in the vehicle, he was in the driver’s seat and there was no one else in the vehicle. The vehicle belonged to the appellant and, in those circumstances, the learned Magistrate found that the liquor was under his control.Submissions of the Appellant The appellant’s submission in relation to ground 1 of the appeal is based upon section 12 of Northern Territory National Emergency Response Act 2007 (Cth) (the Response Act). The Response Act provides in the object clause (s 5) that the object of the Act is to improve the well-being of certain communities in the Northern Territory. Part 2 of the Act deals with alcohol. Section 6A provides that the object of this part is to enable special measures to be taken to reduce alcohol-related harm in Indigenous communities in the Northern Territory. Section 7 provides:Expressions used in this Part that are defined in the Liquor Act have the same meanings as in that Act. Section 9 provides:The Liquor Act, the Liquor Regulations and the Police Administration Act have effect subject to the modifications in this Part in relation to a prescribed area.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to ground 2 of the Notice of Appeal, I accept that that ground is made out, but it is a ground which has no relevance to the outcome of the appeal. It was never put in issue in the Court below that the land was Aboriginal land and, therefore, a prescribed area. In those circumstances, the prosecutor was not obliged to prove the contrary.Conclusion The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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