Turley v Byrne - [2009] NTSC 22

Turley v Byrne [2009] NTSC 22

PARTIES: LESLEY JAMES TURLEY
v
NICHOLAS O’SHEA BYRNE
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING APPELLATE
JURISDICTION
FILE NO: JA 14 of 2009 (20827809)
DELIVERED: 27 May 2009
HEARING DATE: 27 May 2009
JUDGMENT OF: RILEY J
APPEAL FROM: CAREY SM
CATCHWORDS:
CRIMINAL LAW – JUSTICES APPEAL – Transporting liquor through a prescribed area – offence provision not activated – appeal allowed – remitted for rehearing
Northern Territory National Emergency Response Act (Cth) s 9, s, 10, s 12
Liquor Act (NT) s 75, s 86
REPRESENTATION:
Counsel:

Appellant: S Barlow
Respondent: N Browne
Solicitors:

Appellant: Northern Australian Aboriginal Justice
Agency
Respondent: Office of the Director of Public
Prosecutions
Judgment category classification: B

Judgment ID Number: Ril0906
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Turley v Byrne [2009] NTSC 22 No. JA 14 of 2009 (20827809)
BETWEEN:
LESLEY JAMES TURLEY
Appellant:
AND:
NICHOLAS O’SHEA BYRNE
Respondent:

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 27 May 2009)

The appeal in this matter relates to the relationship between the Liquor Act
(NT) and the Northern Territory National Emergency Response Act
(Commonwealth).
On 24 February 2009 the appellant was found guilty in the Court of
Summary Jurisdiction of the offence of having brought liquor into a
prescribed area contrary to s 75(1)(a) of the Liquor Act where it relates to s
12(2)(a)(i) of the Northern Territory National Emergency Response Act. It

was the submission of the appellant that he had the liquor in his possession
in the restricted area for the purpose only of transporting that liquor to a
destination outside the area. Prior to calling the relevant evidence counsel
for the appellant informed the court that he proposed to rely upon the
defence available under s 86 of the Liquor Act which provides:
86. NOT AN OFFENCE TO TRANSPORT LIQUOR THROUGH

GENERAL RESTRICTED AREA

(1) It shall not be an offence under section 75(1) where a

person brings liquor into, or has liquor in his possession or under his
control within, a general restricted area, for the purpose only of
transporting that liquor to a destination outside a general restricted
area.

(2) In any proceedings for an offence under section 75(1),

the onus of establishing a purpose of a nature referred to in
subsection (1) shall be on the accused.

The learned magistrate rejected the submission that the defence was

available. In light of the provisions of the Emergency Response Act his
Honour concluded that s 86 of the Liquor Act did not provide an available
defence to the appellant. The relevant evidence was not led and the factual

merit of the defence was not explored. His Honour proceeded to find the
appellant guilty and then, without proceeding to conviction, placed him on a
bond to be of good behaviour for 12 months.
The scheme of the legislative provisions

The Liquor Act contains provisions enabling the Northern…

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: [2009] NTSC 22
Decision Date: 27/05/2009

CaseChat Overview and Summary

The appeal in Turley v Byrne [2009] NTSC 22 involves Lesley James Turley, the appellant, appealing against a decision made in the Court of Summary Jurisdiction. The respondent is Nicholas O'Shea Byrne. The dispute centres on the interpretation and application of the Northern Territory National Emergency Response Act (Cth) and the Liquor Act (NT), specifically regarding the offence of bringing liquor into a prescribed area. Turley was found guilty of violating s 75(1)(a) of the Liquor Act in conjunction with s 12(2)(a)(i) of the Emergency Response Act. Turley argued that he was transporting liquor through the restricted area and not for any other purpose, invoking the defence under s 86 of the Liquor Act, which permits such transportation without it being an offence. However, the learned magistrate rejected Turley's defence, concluding that the Emergency Response Act modified the Liquor Act in such a way that s 86 was no longer applicable.

The legal issue before the court was whether the defence provided by s 86 of the Liquor Act remained valid under the modifications introduced by the Emergency Response Act. The court examined the statutory framework of both Acts to determine the intended scope and effect of the legislative changes. The Liquor Act defines various offences related to liquor in restricted areas, with exceptions and defences provided in s 86. The Emergency Response Act, however, modifies these provisions, introducing new offences and penalties but also altering the scope of existing defences. The court needed to discern whether the legislative intent behind the Emergency Response Act effectively nullified the defence in s 86. The learned magistrate had concluded that the Emergency Response Act's provisions superseded the defence in s 86, leading to Turley's conviction.

Riley J allowed the appeal, finding that the learned magistrate erred in concluding that s 86 of the Liquor Act was no longer applicable. The court held that s 86 retains its validity even under the modifications introduced by the Emergency Response Act. The court reasoned that the Emergency Response Act's s 12 does not explicitly exclude the application of s 86, and the intent behind the legislation, as evidenced by the Explanatory Memorandum, supports the continued relevance of s 86. The court found that if Turley can demonstrate that he was transporting liquor through the area to a destination outside it, he would not be committing an offence under the Liquor Act, and thus, s 12 of the Emergency Response Act would not apply. Consequently, the appeal was allowed, the conviction set aside, and the matter was remitted to the Court of Summary Jurisdiction for rehearing.

Orders