Blackwell v Bara

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Southwood J
• Judgment Date: 02 March 2022
• Neutral Citation: [2022] NTSC 17
• Docket Number: FILE NO: 21910017

[2022] NTSC 17

SUPREME COURT OF THE NORTHERN TERRITORY

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

JUDGMENT OF:

Southwood J

FILE NO: 21910017

Between:

Owen Blackwell

Informant

and

Daryl Bara

Defendant

REPRESENTATION:

Counsel:

Informant: T Moses

Defendant: P Coleridge

Al-Kateb v Godwin (2004) 219 CLR 562, Daniels v The Queen (2007) 20 NTLR 147, Duthie v Smith (1992) 83 NTR 21, Gerhardy v Brown (1985) 159 CLR 70, Ibbs v The Queen (1987) 163 CLR 447, Mabo v Queensland (No 1) (1988) 166 CLR 186, Maloney v The Queen (2013) 252 CLR 168, Markarian v The Queen (2005) 228 CLR 357, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, Munkara v Bencsevich [2018] NTCA 4, ( Nunnggargalu v Millar unreported, 11 January 2013, NTSC, Barr J), R v Day (2004) 14 NTLR 218, R v Geddes (1936) 36 SR (NSW) 554, R v Williams [2012] NTSC 47, Suttie v The Queen [2013] NTSC 37, Williams v Balchin [2012] NTSC 15, Williams v The Queen (1986) 161 CLR 278, Work Health Authority v Outback Ballooning (2019) 266 CLR 428, referred to.

Bail Act 1982 (NT) s 7A

Misuse of Drugs Act 1990 (NT) s 4B, s 5A, s 5D, s 37

Racial Discrimination Act 1975 (Cth) s 10

HUMAN RIGHTS — Discrimination — Grounds — Racial discrimination — Constitutional law — Inconsistency of laws

Whether s 5D of the Misuse of Drugs Act is invalid (in whole or in part) because it is inconsistent with s 10 of the Racial Discrimination Act — Both Aboriginal and non-indigenous drug offenders subject to same sentencing regime for an offence against s 5D — Laws of bail and sentencing apply equally to both Aboriginal and non-indigenous offenders — Legislation does not impose any relevant limitation or prohibition on right to liberty — The right to equal treatment before the courts not properly equated to a right to equal protection of the law — The right to equal treatment before the courts is focused on equality in the administration and enforcement of laws by courts and tribunals — Legislation does not impose any relevant limitation or prohibition on equality of treatment — Section 5D of the Misuse of Drugs Act is valid.

REASONS FOR JUDGMENT

(Delivered 2 March 2022)

1 The defendant stands charged on an information for an indictable offence. Relevantly, count 1 on the information charges that contrary to s 5D(1) of the Misuse of Drugs Act 1990 (NT) on 5 March 2019 the defendant supplied less than a commercial quantity of cannabis to unnamed persons in Malkala indigenous community on Groote Eylandt. The maximum penalty for this offence is imprisonment for nine years.

2 On 18 September 2019, the charge came before the Local Court at Angurugu and the defendant pleaded not guilty.

Questions of law reserved

3 On 3 January 2020, the Local Court at Darwin stated a special case for consideration by the Supreme Court under s 162 of the Local Court ( Criminal Procedure) Act 1928 (NT), and reserved the following questions of law for the opinion of the Court.

• 1. Is s 5D of the Misuse of Drugs Act 1990 (NT) invalid (in whole or in part) because it is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth)?

• 2. If the answer to Question 1 is “Yes”, to what extent is s 5D of the Misuse of Drugs Act 1990 invalid?

Answers

4 For the following reasons, the questions are answered:

• 1. No. Section 5D is valid. It is consistent with s 10(1) of the Racial Discrimination Act 1975.

• 2. Unnecessary to answer.

The agreed facts

5 The parties have agreed the following facts for the purpose of the stated case only. The facts set out under the heading “ Alleged facts in relation to the offending” are admitted without prejudice to the defendant's right to challenge them if the charge proceeds to trial.

Alleged facts in relation to the offending

• 1. The following facts are agreed to reflect the facts that the informant will seek to prove at hearing. […]

  • (a) The defendant in this matter is Daryl BARA, a sixty-six year old Aboriginal man who has lived much of his life in Umbakumba Community on Groote Eylandt.

  • (b) As at March 2019, the defendant was living in Darwin dividing his time between the “long grass” and his sister Linda Bara's house at Victoria Drive in Gray.

  • (c) On the morning of Tuesday, 5 March 2019 the defendant was approached by his granddaughter Darlene Durilla at Victoria Drive, Gray and persuaded to take a grey backpack to Groote Eylandt.

  • (d) The backpack contained seven packages containing a combined total of 300 grams of cannabis and small deal size bags.

  • (e) The defendant was aware that the backpack contained cannabis.

  • (f) The defendant was told by Ms Durilla to give the backpack to another one of the defendant's and Ms Durilla's family members — Renelle Durilla — who would be waiting at the Groote Eylandt airport to take the backpack to Malkala Community on Groote Eylandt, where further members of the defendant's extended family reside. The defendant was told that the backpack, and thus the cannabis, was intended for persons in Malkala.

  • (g) The defendant was told by Ms Durilla that his flight to Groote Eylandt would be paid for and that he would receive $200 for taking the backpack.

  • (h) The defendant travelled from Palmerston to Darwin [Airport] in a mini bus taxi with Naleeta Mamarika, Linda Bara and Darlene Durilla.

  • (i) On arrival at Darwin Airport, Naleeta Mamarika gave the defendant the backpack. He then went to the Airnorth Desk and checked himself and the backpack onto the flight.

  • (j) At 09:45am the defendant boarded the Airnorth Service TL 404 to Groote Eylandt.

  • (k) At 11:25am the defendant's flight arrived at Groote Eylandt where disembarking passengers were being screened by members of the Alyangula Dog Operations Unit.

  • (l) Narcotic Detector Dog “Bear” was deployed to screen the baggage and provided a conditioned response to the grey backpack checked in by the defendant.

  • (m) Macreena Bara, the defendant's granddaughter, spoke to the defendant and told him in her language that he should not tell the Police about the cannabis.

  • (n) The defendant left the airport and sat in the rear driver's side seat of a white Toyota Landcruiser parked in the airport carpark where he watched Macreena Bara attempt to retrieve the grey backpack.

  • (o) At this time, the defendant was arrested by Senior Constable Matthew Woldseth and a Section 120C search was carried out on the bag by Senior Constable First Class George Hillen, recovering the seven packages of cannabis.

  • (p) The defendant was conveyed to Alyangula Police Station and later participated in an electronic record of interview, in which he made full and frank admissions. These included admissions to transporting cannabis and being paid $200 [for] that transportation. He [also] identified two co-offenders.

  • (q) Malkala is an indigenous community on Groote Eylandt […] within the meaning of s 3(1) of the Misuse of Drugs Act 1990 (NT).

  • (r) Cannabis is currently estimated by Northern Territory Police to be worth between $100 and $150 for one gram of cannabis on Groote Eylandt. 300 grams of cannabis could be sold for between $30,000 and $45,000 if sold individually.

  • (s) Cannabis is a dangerous drug listed in Schedule 2 of the Misuse of Drugs Act 1990 (NT), and 300 grams is a traffickable quantity, being in excess of 50 grams [and less than 500 grams].

  Population statistics

• 2. According to 2016 Census data, the population of the whole of the Northern Territory is 228,833, of whom 25.5% are indigenous.

• 3. According to a police estimate, Malkala's population is between 80 and 100 people, of whom 100% are indigenous.

• 4. “Indigenous communities” within the meaning of s 3(1) of the Misuse of Drugs Act 1990 (NT) are overwhelmingly populated by indigenous people. According to 2016 Census data, approximately 87% of the population of indigenous communities is indigenous.

  Charge statistics

• 5. The table below represents Local Court finalization data for charges against s 5A (Sch 2 drugs only) and s 5D of the Misuse of Drugs Act in the whole of the Northern Territory for the years 2017 and 2018 combined.

  Result	Charge	Indigenous	Non-Indigenous	Unknown	Percentage Indigenous
  Sentenced	s 5A	36	34	1	50.7%
  s 5D	88	5	1	93.6%
  Withdrawn or Dismissed	s 5A	39	34	0	53.4%
  s 5D	108	2	0	98.2%
  Committed to Supreme Court	s 5A	11	18	1	36.7%
  s 5D	5	3	0	62.5%
  Total	s 5A	86	86	2	49.4%
  s 5D	201	10	1	94.9%

• 6. Of persons sentenced for offences against s 5A (Sch 2 drugs only), approximately 68.5% were sentenced to terms of imprisonment. Of persons sentenced for offences against s 5D, approximately 78.5% were sentenced to terms of imprisonment.

6 The figures contained in the table incorporated into the agreed facts provide statistics for matters that were finalised in the Local Court in 2017 and 2018. They contain no information about the dates when the drug offences were committed. In addition, because of the manner and difficulty in policing drug offences it is likely that drug offences that remain undetected will also have been committed.

7 The table reveals the following information for the years 2017 and 2018.

• (a) 140 Aboriginal people were charged and either sentenced or committed for drug offences contrary to ss 5A and 5D.

• (b) 47 Aboriginal people were charged and either sentenced or committed for drug offences against s 5A.

• (c) 93 Aboriginal people were charged and either sentenced or committed for drug offences against s 5D.

• (d) 60 non-indigenous people were charged and either sentenced or committed for drug offences...