Timaepatua v Hutchinson - [2023] NTSC 48

CITATION: Timaepatua v Hutchinson [2023] NTSC 48

PARTIES: TIMAEPATUA, Bon

v
HUTCHINSON, Sarah

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 16 of 2022 (22132000)

DELIVERED: 14 June 2023

HEARING DATE: 10 November 2022

JUDGMENT OF: Grant CJ

CATCHWORDS:
CRIME – Appeal and review – Appeal from Local Court to Supreme Court – By person convicted on grounds involving a question of mixed fact and law
Appellant found guilty of supplying cannabis in an indigenous community – Whether search which found the cannabis in his possession unlawful because reasonably practicable for searching police to obtain warrant to investigate forfeiture offence prior to exercising search powers under s 237 of the Liquor Act 2019 (NT) – Not reasonably practicable to obtain warrant – No grounds for ‘reasonable belief’ – Available time and other obligations precluded application in any event – Whether search unlawful because not lawfully announced to appellant – Even if common law requirement to announce search under legislation appellant adequately advised of reason for search – Whether search unlawful because not facts known to searching police sufficient to found ‘reasonable suspicion’ prior to exercising their search powers – Manifestly sufficient grounds for reasonable suspicion on objective assessment – Appeal dismissed.

Liquor Act 2019 (NT), s 237, s 239

Brazil v Chief Constable of Surrey [1983] 1 WLR 1155, Christie v Leachinsky [1947] AC 573, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, Coco v The Queen (1994) 179 CLR 427, Fernando v Commissioner of Police (NSW) (1995) 36 NSWLR 567, Fox v Percy (2003) 214 CLR 118, George v Rockett (1990) 170 CLR 104, Hussien v Chong Fook Kam [1970] AC 942, Lindley v Rutter [1981] QB 128, Maines v Roy [1990] 1 WAR 508, Mole v Prior (2016) 304 FLR 418, Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236, Perkins v Police [1988] 1 NZLR 257, Police v Beck (2001) 79 SASR 98, Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, R v Nguyen (2013) 117 SASR 432, R v Rondo (2001) 126 A Crim R 562, Slivak v Lurgi (2001) 177 ALR 585, State of New South Wales v Riley (2003) 57 NSWLR 496, Walsh v Loughnan [1991] 2 VR 351, Wright v State of Western Australia [2010] WASCA 199, Zoric v Police [2006] SASC 355, referred to.

REPRESENTATION:

Counsel:
Appellant: J Bourke with H Atkinson
Respondent: I Rowbottam

Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification:    B
Judgment ID Number:  GRA2308
Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Timaepatua v Hutchinson [2023] NTSC 48

LCA 16 of 2022 (22132000)
BETWEEN:
BON TIMAEPATUA
Appellant

AND:
SARAH HUTCHINSON
Respondent

CORAM: GRANT CJ

REASONS FOR JUDGMENT

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.

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Details

Case: [2023] NTSC 48
Decision Date: 14 June 2023

CaseChat Overview and Summary

The appeal before the Supreme Court of the Northern Territory involved the appellant, Timaepatua, against the respondent, Hutchinson. The appellant was convicted in the Local Court of supplying cannabis in an indigenous community. The appeal contested the legality of the search that led to the discovery of the cannabis, arguing that the search was unlawful due to the police not obtaining a warrant before searching, not announcing the search to the appellant, and lacking a reasonable suspicion to justify the search. The Supreme Court was tasked with determining whether the search was lawful under the Liquor Act 2019 (NT) and whether there were any grounds to overturn the conviction based on the legality of the search.

The central legal issues before the court were whether the search conducted by the police was unlawful due to the absence of a warrant, the lack of announcement of the search, and the sufficiency of the facts known to the police to form a reasonable suspicion. The court had to consider whether it was reasonably practicable for the police to obtain a warrant under the circumstances, whether the search was lawfully announced to the appellant, and if the facts known to the police were sufficient to form a reasonable suspicion justifying the search.

The Supreme Court held that it was not reasonably practicable for the police to obtain a warrant prior to conducting the search, as the available time and other obligations precluded such an application. Regarding the announcement of the search, the court found that the appellant was adequately informed of the reason for the search, satisfying any common law requirement to announce the search. Finally, the court assessed the facts known to the police and determined that there were manifestly sufficient grounds for a reasonable suspicion on an objective assessment. Consequently, the court found no grounds to overturn the conviction, dismissing the appeal.

In light of the above findings, the Supreme Court upheld the conviction of the appellant, Timaepatua, for the offence of supplying cannabis. The court confirmed that the search was lawful and that there were no grounds to set aside the conviction based on the legality of the search. The appeal was dismissed, and the original conviction stood.

Orders