Rosas v Cahill - [2013] NTSC 65

Raelene Rosas v Leigh Cahill [2013] NTSC 65
PARTIES:Raelene Rosas

v
Leigh Cahill

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:21202735
DELIVERED:  8 October 2013
HEARING DATES:  23 September 2013
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  Court of Summary Jurisdiction
CATCHWORDS:

Criminal Law – Liquor Offences – Bringing Liquor into a Prescribed Area - Whether s 12 of the Northern Territory National Emergency Response Act 2007 (Cth) means offences under s 75 Liquor Act Act (NT) are no longer regulatory offences – whether s 75 (1) (1AA) of Liquor Act (NT) of no effect when “modifications” under s 12 Northern Territory National Emergency Response Act 2007 (Cth) apply - s 75 (1) offence retains its character as a regulatory offence.

Criminal Law – Liquor Offences – Proof of intention not required – Proof of knowledge of substance required – in this particular case proof of knowledge of the subject liquor required – appeal allowed.

Hoessinger (1992) 62 A Crim R 146 at 149; Kruger v Kidson (2004) 14 NTLR 91; Gumbaduck v Rothe [2011] NTSC 50 at [19]; Sandby (1993) 117 FLR 218 at 222; Rockman v Smallridge at [34]; (1994) 181 CLR 487, cited
Pereira (1988) 35 A Crim R; Pereira (1988) 35 A Crim R 382; He Kaw Teh v The Queen (1985) 157 CLR 523, discussed
Kural (1987) 162 (LR 502); Rockman v Smallridge (2012) 268 FLR 379, referred to

REPRESENTATION:
Counsel:
Appellant:Ms Ozolins
Respondent:  Mr Pyne
Solicitors:
Appellant:ODPP
Respondent:  NAAJA
Judgment category classification:   B
Judgment ID Number:  BLO1315
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Raelene Rosas v Leigh Cahill [2013] NTSC 65

No. 21202735
BETWEEN:

Raelene Rosas

Appellant

AND:

Leigh Cahill

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 8 October 2013)
Introduction

This appeal raises questions about the interaction between the Liquor Act (NT) and the Northern Territory Emergency Response Act (Cth), (“Emergency Response Act”), particularly as it concerns the offence of bring liquor into a “prescribed area”.
The appellant originally faced two counts on complaint in the Court of Summary Jurisdiction. She pleaded not guilty to both. Count one alleged that on 22 January 2012 she possessed liquor, namely two bottles of rum in a prescribed area, namely Bulman Community, contrary to s 75(1)(b) of the Liquor Act “where it relates to” [1] s 12(2)(a)(ii) of the Emergency Response Act. Count two alleged that, on the same date, she brought liquor, namely, two bottles of rum, into a prescribed area, namely, Bulman Community, contrary to s 75(1)(a) of the Liquor Act, “where it relates to” s 12(2)(a)(i) of the Emergency Response Act.
The hearing took place in the Court of Summary Jurisdiction on 5 July 2012; and on 24 and 27 September 2012 at Katherine. On 28 September 2012 the learned Magistrate found the appellant guilty of count two, (bring liquor into a…

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 Rosas v Cahill

Details

AGLC: Raelene Rosas v Leigh Cahill [2013] NTSC 65
Case: [2013] NTSC 65
Decision Date: 8 October 2013

CaseChat Overview and Summary

Rosas v Cahill was a case heard by the Northern Territory Supreme Court in which the appellant was convicted of bringing liquor into a prescribed area, under section 75(1) of the Liquor Act (NT). The appellant appealed on the grounds that the Liquor Act (NT) offence is a regulatory offence and that section 12 of the Northern Territory National Emergency Response Act 2007 (Cth) meant that the offence under section 75(1) of the Liquor Act (NT) was no longer regulatory. The appellant also appealed on the basis that she did not have the requisite knowledge that she was bringing the liquor into the prescribed area. The court was required to decide whether the offence under section 75(1) of the Liquor Act (NT) retained its character as a regulatory offence and whether the appellant had the requisite knowledge that she was bringing the liquor into the prescribed area.

The court held that the offence under section 75(1) of the Liquor Act (NT) retained its character as a regulatory offence. The court found that the modifications under section 12 of the Northern Territory National Emergency Response Act 2007 (Cth) did not render the offence under section 75(1) of the Liquor Act (NT) non-regulatory. The court also found that the appellant had the requisite knowledge that she was bringing the liquor into the prescribed area. The court held that proof of knowledge was required for the "bring liquor" charge and that the prosecution only needed to prove that the appellant knew that she was bringing the liquor into the prescribed area. The court found that there was sufficient evidence to prove that the appellant had the requisite knowledge.

The court allowed the appeal and quashed the conviction. The court held that the appellant was not guilty of the offence under section 75(1) of the Liquor Act (NT) because she did not have the requisite knowledge that she was bringing the liquor into the prescribed area. The court did not find it necessary to consider the other ground of appeal. The court ordered that the conviction be quashed and that an order be made for the appellant’s acquittal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I conclude therefore that in this case, the elements that were required to be proven were that on 22 January 2012; the appellant by her voluntary acts or by causing others to act on her behalf, brought (that is knowingly brought or knew it was likely that she brought), two bottles of rum into a prescribed area, namely Bulman community. Knowledge may be proven by the cumulative facts and inferences that maybe properly drawn. For the “bring liquor” charge, it is not necessary for the prosecution to prove the rum was possessed, (including an element of control), or owned or purchased by the appellant. “Bring” is constituted by causing the rum to be transported into the prescribed area with the requisite knowledge. Review of the Evidence and the Learned Magistrates Reasons In reviewing the learned Magistrate’s approach to the evidence, although not expressly stated in these terms, His Honour proceeded on the basis that proof of knowledge was required for the possession charge. His Honour dismissed that charge. His Honour did not appear to approach the “bring liquor” charge in the same way. This appears to have resulted in the acquittal of the possession charge and the finding of guilt on the subject charge. At the outset it must be borne in mind the particulars of the “bring liquor” charge were the two bottles of rum found in the rear section of the car. As mentioned, the prosecution case was not put on any other basis. There was evidence implicating the appellant and to suspect her. The car belonged and was registered to the appellant. At the material time it was driven by Lachlan Lawrence (from Katherine back to Bulman Community) at the appellant’s request. The occupants of the car were the appellant, Lachlan Lawrence, Charmaine Brinjen, Desmond Lindsey, Francis Murray, and Jerry Martin. The subject bottles of rum were found in the seating area behind the back seat of the Pajero. The evidence was that the appellant was seated in the front passenger seat. The single bottle of rum found underneath the appellant’s seat was claimed by another occupant (Desmond Lindsey). Desmond Lindsey received an infringement notice for his possession of it. The appellant indicated to police that during the journey she became aware of that bottle of rum.[20] That bottle of rum was not the subject of this charge. There was discreditable evidence against the appellant to the effect that she had agreed with one Loretta Lindsay to bring her back some rum from Katherine; and that she later advised her that the rum had been purchased. There were however some intervening facts; in particular the appellant and others in the car had been informed of a sudden death of a relative and they went to a house in Katherine and were drinking in association with grieving. There was also evidence that Desmond Lindsay may have bought three bottles of rum. Other than the fact that he travelled in the appellant’s car, there is nothing connecting “his” rum (whether one or three bottles and there is some variation about that fact), with the appellant’s earlier discreditable conduct in agreeing to bring rum back to Bulman for Loretta Lindsay. Clarity and detail from the witnesses was not at a high level. This was most likely because they had been at various levels of intoxication after drinking at the residence in Katherine.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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