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)

1. The appeal in this matter relates to the relationship between the Liquor Act

   (NT) and the Northern Territory National Emergency Response Act

   (Commonwealth).

2. 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.

1. 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

1. The Liquor Act contains provisions enabling the Northern Territory

   Licensing Commission the power to declare general and public restricted

areas for the purposes of the Act. Where an area has been so declared s 75
of the Act creates various offences. The section provides that a person shall
not:

(a)	bring liquor into;
(b)	have liquor in his possession or under his control within; or
(c)	consume, sell or otherwise dispose of liquor within,

a general restricted area.

1. The section contains various exceptions and, in addition to those exceptions,

   the provisions of s 86 are available to anyone charged with an offence under

   s 75.

2. In August 2007 the Northern Territory National Emergency Response Act

   (Commonwealth) commenced. It made provision, inter alia, in relation to

   various aspects of existing legislation of the Northern Territory. For present purposes it modified the operation of the Liquor Act, the Liquor Regulations

and the Police Administration Act in relation to prescribed areas (s 9).
There was no dispute that the area with which the learned magistrate was

concerned was a prescribed area for the purposes of the legislation.
Section 10 of the Emergency Response Act went on to provide:

The Liquor Act, the Liquor Regulations and the Police the Northern Territory.

1. Section 12 of the Emergency Response Act then provided:

   12        Modification: prescribed areas

(1)

The Liquor Act has effect as if:

(a)	each prescribed area had been declared by the Commission to be a general restricted area under that Act; and
(b)

the offences against subsection 75(1) of that area, were replaced by the following provisions of this section.

(2)	A person commits an offence if:
(a) the person:

(i)        brings liquor into an area; or

(ii)       has liquor in his or her possession or control within an area; or

(iii)     consumes liquor within an area; and

(b) the area is a prescribed area.

Maximum penalty:

(c)	10 penalty units for a first offence; or
(d)	20 penalty units for a second or subsequent offence.

1. Section 12 then went on to provide for various defences which are not

   relevant for present purposes.

2. The learned magistrate considered the legislative provisions and concluded

   that the “defence” provided for in s 86 of the Liquor Act did not have

application. He observed that the only intent necessary to create the offence
was for the appellant to bring alcohol into the area and his Honour went on
to note that the only defences available were those prescribed by s 12 of the

Emergency Response Act. The sole ground of appeal is that his Honour

erred in so interpreting the Emergency Response Act.

1. The parties are agreed that the appeal must be allowed and the matter

remitted to the Court of Summary Jurisdiction for rehearing. It was agreed
that the defence provided for in s 86 of the Liquor Act remained available

notwithstanding the modifications effected by s12 of the Emergency
Response Act. I agree s 86 of the Liquor Act may continue to have

application in the present circumstances although not for the reasons
expressed by counsel.

1. Section 12 of the Emergency Response Act provides that "offences against

subsection75(1)" of the Liquor Act will be replaced by the identified
provisions contained within s 12. Reference to s 86 of the Liquor Act makes

it clear that it "shall not be an offence under section 75(1)" where the person

is transporting liquor to a destination outside a general restricted area. In

the present case, if the appellant establishes that he was transporting liquor

to a destination outside the identified general restricted area, he will not be

committing an offence for the purposes of s 75 of the Liquor Act and,
therefore, s 12 of the Emergency Response Act will not be activated.

[12]   Reference to the Explanatory Memorandum to the Emergency Response Act

makes it clear that this result was intended. The Explanatory Memorandum
includes the following:

Part 2 modifies the Liquor Act of the Northern Territory. Although the Liquor Act is modified by this bill, the new obligations, offences, penalties and requirements have effect as Northern Territory law.

The Liquor Act will continue to operate in areas that are not
prescribed areas and its provisions as modified will also apply to
prescribed areas. For example, section 86 of the Liquor Act
currently allows people to transport liquor across a general
restricted area. The modifications will mean that people
travelling around the Northern Territory by road are able to
carry liquor across a prescribed area provided they do not
consume or dispose of the liquor in that area as provided for by
section 86 of the Liquor Act. Similarly, aircraft that land in a
prescribed area are able to carry liquor provided the liquor is not
consumed while the aircraft is on the ground and the final destination
is not a prescribed area. (emphasis added)

1. The appeal is allowed, the conviction set aside and the matter remitted to the

   Court of Summary Jurisdiction for rehearing.

   --------------------------------