Scrymgour v Moore - [2006] NTCA 13

Highway & Ors v Tudor-Stack [2006] NTCA 04

PARTIES: HIGHWAY, Stuart
INDER-SMITH, Robert Paul
MEYERHOFF, Gary William

TUDOR-STACK, Paul Francis

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 12/04 (20207648); AP 13/04 (20207624); AP 15/04 (20207623)

DELIVERED: 10 May 2006

HEARING DATES: 22 February 2006

JUDGMENT OF: MARTIN (BR) CJ, MILDREN & THOMAS JJ

ON APPEAL FROM: Inder-Smith & Ors v Tudor-Stack [2004] NTSC 48

CATCHWORDS:

CONSTITUTIONAL LAW – Parliamentary Powers – appeal against conviction – disturbing the Legislative Assembly whilst in session – freedom of speech

Act Against Tumultuous Petitioning 1661 (13 Car 2, st 1, c 5); Bill of Rights 1688, article 5, article 9; Colonial Laws Validity Act 1865 (Imp); Criminal Code (NT), s 1, s 31, s 34, s 61, s 61(a); Interpretation Act, s 59; Legislative Assembly (Powers and Privileges) Act 1992, s 3(3), s 5, s 6, s 25, s 26; Northern Territory (Self-Government) Act 1978 (Cth), Part III Division I (ss 6-12); Parliamentary Privileges Act 1987 (Cth), s 16; Seditious Meetings Act 1817 (Imp) (Geo 3, cap XIX s 23); Sentencing Act (NT), s 40(6); Sources of Law Act 1985, s 2, s 3; Statute of Westminster 1931 (Imp), s 2(1);
Statute of Westminster Adoption Act 1942 (Cth); Strodes Act 1512 (4 Henry VIII, c 8); The Constitution of Australia, s 122

A C Castles, An Australian Legal History; Sydney, Law Book Company, 1982; Enid Campbell, Parliamentary Privilege, Sydney, Federation Press, 2003; Limon and McKay (eds), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 22nd ed, London, Butterworths, 1997; McGee, Parliamentary Practice in New Zealand, 2nd ed, Wellington New Zealand, GP Publications, 1994; Odgers’ Australian Senate Practice, 9th ed, Canberra, Department of the Senate, 1999; Pettifer (ed), House of Representatives Practice, Canberra, Australian Government Publishing Service, 1981; Richard L Perry and John C Cooper, Sources of Our Liberties, Alabama, Legal Classics Library edition, 1990; Sir William Holdsworth, A History of English Law, Vol 6, London, Sweet & Maxwell, 1937

R v Bernasconi (1915) 19 CLR 629; R v Wright; ex parte Klar (1971) 1 SASR 103; Wake and Anor v NTA and Anor (1996) 5 NTLR 170; (1996) 109 NTR 1; applied

The Queen v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157; distinguished

Bradlaugh v Gossett (1883-1884) 12 QBD 271; followed

Coleman v Power (2004) 220 CLR 1; Dietrich v The Queen (1992) 177 CLR 292; Erglis v Buckley (2004) 2 Qd R 599; Lange v Australian Broadcasting Commission (1997) 189 CLR 520; Laurance v Katter (2000) 1 Qd R 147; (1996) 141 ALR 447; Levy v Victoria (1997) 189 CLR 579; Prebble v Television New Zealand Ltd [1995] 1 AC 321; R v Eliot, Hollis and Valentine (1629) 3 St Tr 293; Rowley v O’Chee (2000) 1 Qd R 207; (1997) 150 ALR 199; Johnson v Johnson (2000)…

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 Scrymgour v Moore

Details

AGLC: Scrymgour v Moore [2006] NTCA 13
Case: [2006] NTCA 13
Decision Date: 18 December 2006

CaseChat Overview and Summary

In Scrymgour v Moore, the respondent, Moore, appealed against his conviction and sentence. The matter was heard in the Court of Criminal Appeal. The central issue in this case was whether certain amendments to the Justice Legislation Amendment Act (No 2) 2006, the Sentencing Act, and the Youth Justice Act, which had been enacted after Moore's offending, could be applied retrospectively to increase his sentence.

The court had to determine whether the intention of the legislature, as expressed in the Declaratory Act, mandated that these amendments apply prospectively or retrospectively. The court considered precedents such as R v Dursley and Fisher v Hebburn Ltd, as well as the principle established in Liddy v The Queen. The court noted that the Declaratory Act aims to clarify legislative intent and prevent unintended consequences of retrospective application. The court also referenced the case of Maxwell v Murphy to understand the balance between legislative intent and retrospective application.

The court found that the Declaratory Act did not provide clear guidance on the retrospective application of these amendments. Given the absence of explicit legislative intent and the potential for unintended consequences, the court concluded that the amendments should not be applied retrospectively. The appeal was dismissed, and the original sentence was upheld.

The final order was that the appeal would be dismissed, and no sentencing error had been identified.

Orders

Orders of the court

It follows that no sentencing error has been identified and the appeal must be dismissed. There will be an order of dismissal accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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