Theisinger v Rigby - [2018] NTCA 8

CITATION:Theisinger v Rigby [2018] NTCA 8

PARTIES: THEISINGER, Nigel

v
RIGBY, Kerry Leanne

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:AP 3 of 2018 (21722152)
DELIVERED:  29 June 2018
HEARING DATES:  30 May 2018
JUDGMENT OF:  Grant CJ, Blokland and Barr JJ
CATCHWORDS:

CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – OFFENCES AGAINST THE PERSON – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – LIMITATION OF TIME FOR PROSECUTION
Appeal against two convictions for unlawful stalking – whether complaint filed within six month limitation period – whether denial of natural justice by refusal to grant adjournment – whether verdict unsafe and unsatisfactory – appeal dismissed.

Criminal Code (NT) s 189
Local Court (Criminal Procedure) Act (NT) s 52
Adams v Watson (1938) 60 CLR 548, Byrne v Menzies [1931] SASR 264, GAX v The Queen (2017) 344 ALR 489, M v Hill (1993) 114 FLR 59, M v The Queen (1994) 181 CLR 487, Parisienne Basket Shoes Pty Ltd v White (1937-1938) 59 CLR 369, SKA v The Queen (2011) 243 CLR 400, referred to.
REPRESENTATION:
Counsel:
Appellant:In person
Respondent:  S Geary
Solicitors:
Appellant:Not applicable
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  18

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Theisinger v Rigby [2018] NTCA 8

No. AP 3 of 2018 (21722152)
BETWEEN:

NIGEL THEISINGER

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: GRANT CJ, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 29 June 2018)
THE COURT:

This is an appeal from the decision of the Supreme Court dismissing the appellant’s appeal against two convictions for the offence of unlawful stalking entered by the Local Court.
The decision of the Local Court
By complaint taken on 11 May 2017, the appellant was charged with seven offences alleged to have taken place variously between November 2016 and May 2017. They were:
(a)stalking Cheyenne Gage on 24 November 2016 (for reasons discussed further below, the complaint was amended during the course of the trial to allege that the offence took place between 16 September 2016 and 27 November 2016);
(b)behaving in a disorderly manner in Mitchell Street between 1 and 16 January 2017 by throwing eggs at the Hotel Darwin premises;
(c)behaving offensively in the Hotel Darwin on 23 January 2017 by urinating on the front steps of the Hotel Darwin;
(d)stalking Penelope Phillips between 12 February and 14 March 2017;
(e)trespassing on the premises of the Hotel Darwin after warning on 13 February 2017;
(f)trespassing on the premises of the Hotel Darwin after warning on 21 February 2017; and
(g)possessing less than a trafficable quantity of cannabis in a public place on 10 May 2017.
In the disposition of those charges:
(a)the appellant was found guilty of stalking Ms Gage;
(b)the appellant was found not guilty of behaving in a disorderly manner in Mitchell Street;

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 Theisinger v Rigby

Details

AGLC: Theisinger v Rigby [2018] NTCA 8
Case: [2018] NTCA 8
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the case of Theisinger v Rigby, the appellant, Theisinger, appealed against two convictions for the offence of unlawful stalking. The convictions were entered by the Local Court and the appeal was dismissed by the Supreme Court. The offences in question were alleged to have taken place between November 2016 and May 2017, and involved stalking two individuals and engaging in other disorderly behaviour. The Local Court found Theisinger guilty of stalking two individuals, among other offences, and sentenced him to imprisonment. The Supreme Court dismissed the appeal against the two stalking convictions.

The legal issues before the court were whether the complaint was filed within the six-month limitation period and whether the Local Court denied the appellant natural justice by refusing to grant an adjournment. The appellant also argued that the verdicts were unsafe and unsatisfactory. The court was required to determine whether the Local Court had jurisdiction to hear the appeal and whether the appeal was well-founded.

The Supreme Court found that the complaint was filed within the six-month limitation period, and that the Local Court did not deny the appellant natural justice by refusing to grant an adjournment. The court found that the Local Court had considered the matter thoroughly and had given the appellant a fair opportunity to present his case. The Supreme Court also found that the verdicts were safe and satisfactory, and that there was no error in the proceedings that would warrant a different outcome. The appeal was dismissed.

The Supreme Court did not make any further orders in relation to the appeal. The convictions for the two counts of unlawful stalking remained in place, and the appellant’s sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an appeal from the decision of the Supreme Court dismissing the appellant’s appeal against two convictions for the offence of unlawful stalking entered by the Local Court.The decision of the Local Court By complaint taken on 11 May 2017, the appellant was charged with seven offences alleged to have taken place variously between November 2016 and May 2017. They were:(a)stalking Cheyenne Gage on 24 November 2016 (for reasons discussed further below, the complaint was amended during the course of the trial to allege that the offence took place between 16 September 2016 and 27 November 2016);(b)behaving in a disorderly manner in Mitchell Street between 1 and 16 January 2017 by throwing eggs at the Hotel Darwin premises;(c)behaving offensively in the Hotel Darwin on 23 January 2017 by urinating on the front steps of the Hotel Darwin;(d)stalking Penelope Phillips between 12 February and 14 March 2017;(e)trespassing on the premises of the Hotel Darwin after warning on 13 February 2017;(f)trespassing on the premises of the Hotel Darwin after warning on 21 February 2017; and(g)possessing less than a trafficable quantity of cannabis in a public place on 10 May 2017. In the disposition of those charges:(a)the appellant was found guilty of stalking Ms Gage;(b)the appellant was found not guilty of behaving in a disorderly manner in Mitchell Street;(c)the appellant pleaded guilty to behaving in an offensive manner in the Hotel Darwin;(d)the appellant was found guilty of stalking Ms Phillips;(e)the charge that the appellant had trespassed on the premises of the Hotel Darwin on 13 February 2017 was withdrawn at hearing;(f)the appellant was found guilty of trespassing on the premises of the Hotel Darwin on 21 February 2017 by attending at the premises in an attempt to pass letters to Ms Gage; and(g)the appellant pleaded guilty to the possession of cannabis in a public place. On 22 September 2017, the Local Court sentenced the appellant as follows:(a)imprisonment for four months on the charge of stalking Ms Gage;(b)imprisonment for 14 days for behaving in an offensive manner by urinating on the steps of the Hotel Darwin;(c)imprisonment for two months on the charge of stalking Ms Phillips;(d)imprisonment for one month for the trespass offence; and(e)imprisonment for 28 days for the cannabis offence. The sentences imposed in respect of the first four offences were ordered to be served in full concurrency, and the sentence imposed in respect of the cannabis offence was ordered to be served cumulatively on the other sentences by operation of s 37(4) of the Misuse of Drugs Act, yielding a total effective period of imprisonment of four months and 28 days. The sentence was not backdated.The appeal to the Supreme Court The appellant brought an appeal to the Supreme Court, but only in respect of the two convictions for unlawful stalking. The appeal was heard on 18 April 2018. The grounds of appeal were that the Local Court failed to give the appellant a reasonable opportunity to present his case by refusing the appellant’s application for an adjournment, and that the verdicts were unsafe and unsatisfactory.

Ratio Decidendi

Legal Principle Established

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