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Toohey v Peach

Toohey v Peach

Case [2003] NTCA 17 11 December 2003

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Toohey v Peach [2003] NTCA 17
PARTIES:PAUL LESLIE TOOHEY

v

DAVID NICHOLAS PEACH

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 5 of 2003 (20216932)
DELIVERED:  11 December 2003
HEARING DATE:  2 December 2003
JUDGMENT OF:  MILDREN, THOMAS & BAILEY JJ
REPRESENTATION:
Counsel:
Appellant:J Tippett QC
Respondent:  M Carey
Solicitors:
Appellant:Geoff James
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:
Number of pages:  16

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Toohey v Peach [2003] NTCA 17
No. AP 5 of 2003 (20216932)

BETWEEN:
PAUL LESLIE TOOHEY

Appellant
AND:
DAVID NICHOLAS PEACH

Respondent

CORAM: MILDREN, THOMAS & BAILEY JJ
REASONS FOR JUDGMENT
(Delivered 11 December 2003)
THE COURT:

On 19 November 2002 in the Court of Summary Jurisdiction at Darwin the appellant pleaded guilty to an offence, namely that on 13 November 2002 at Wadeye (Port Keats) in the Northern Territory, he entered Aboriginal land without having been issued with a permit to do so, contrary to s 4 of the Aboriginal Land Act. The maximum penalty for this offence is a fine of $1,000.

The learned magistrate found the appellant guilty and without recording a conviction, ordered the charge be dismissed pursuant to s 7(a) of the Sentencing Act.
The respondent (Crown) appealed against that disposition, firstly on the ground that the learned magistrate wrongly exercised his discretion under s 8(1) of the Sentencing Act and, secondly, that the learned magistrate’s order was manifestly inadequate in the circumstances of the case.
On 30 May 2003, Angel J allowed the Crown’s appeal, quashed the order of the learned magistrate and in substitution therefor ordered that a conviction be recorded and discharged the appellant.
The appellant has appealed against the judgment of Angel J on the grounds:
1.The learned appellate judge erred in concluding that the decision of the learned magistrate was wrong.
2.The learned appellate judge erred in failing to properly apply the provisions of s 8 of the Sentencing Act in circumstances where he had concluded that he was entitled to exercise the sentencing discretion afresh.

The learned appellate judge described the background and circumstances of the offence in the following terms:

“[4] Following the (appellant’s) plea of guilty on 19 November 2002 the following admitted Crown facts were read to the court:
‘On the morning of Wednesday 13 November this year, Wadeye Community was holding a funeral for a local man who had died during an incident approximately two weeks before.
The incident that the male died in was the subject of media interest and the defendant in the matter was one of many journalists who contacted the Kardu Numida Community Government Council requesting permission to enter Wadeye Community in relation to the matter.
The council, out of respect for the deceased’s family and community feelings, advised all those who inquired for these reasons that they, as the issuing body under the Aboriginal Land Act,…

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 Toohey v Peach

Details

AGLC: Toohey v Peach [2003] NTCA 17
Case: [2003] NTCA 17
Decision Date: 11 December 2003

CaseChat Overview and Summary

In Toohey v Peach, Paul Leslie Toohey, a journalist, was prosecuted for entering Aboriginal land in Wadeye without a permit, in violation of the Aboriginal Land Act. The case reached the Court of Appeal of the Northern Territory, with Toohey appealing the decision of Angel J, who had overturned the magistrate's decision not to record a conviction. The court was tasked with determining whether the magistrate correctly exercised his discretion under s 8 of the Sentencing Act and if the Crown's appeal against the magistrate's decision was justified. The appeal hinged on the interpretation of s 8(1) of the Sentencing Act, which allows a court to decline recording a conviction if it considers the circumstances of the case, including the offender's character and the nature of the offence.

The court found that the magistrate did not err in declining to record a conviction. The journalist's belief that he had a duty to report on the events surrounding a death in the community, despite being denied a permit, was deemed a significant extenuating circumstance. The court emphasised that the decision to decline a conviction should be based on all relevant circumstances and that the journalist's professional duty, combined with the sensitive nature of the event, provided a valid reason for the magistrate's discretion. The appellate court concluded that the magistrate's decision was not a substantial miscarriage of justice and upheld the appeal, reinstating the magistrate's original order.

Orders