Rigby v Mellor and Another

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Riley AJ
• Judgment Date: 10 September 2021
• Neutral Citation: [2021] NTSC 70
• Docket Number: FILE NOs: LCA 40 of 2021 (21926270)

[2021] NTSC 70

SUPREME COURT OF THE NORTHERN TERRITORY

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

JUDGMENT OF:

Riley AJ

FILE NOs: LCA 40 of 2021 (21926270)

LCA 41 of 2021 (21926271)

Between:

Kerry Leanne Rigby

Appellant

and

Lauren Ann Mellor

and

Conrad Rory

Respondents

REPRESENTATION:

Counsel:

Appellant: M Chalmers

Respondents: J Lawrence SC

REASONS FOR JUDGMENT

(Delivered 10 September 2021)

1 On 10 November 2020 in the Local Court the respondents were each found not guilty of a single charge of criminal damage to property, a front lawn, belonging to another namely the Northern Territory Government, contrary to s 241(1) of the Criminal Code.

2 The circumstances of the alleged offending were described by the Local Court Judge as arising from a political demonstration held in the vicinity of Parliament House on 16 April 2019. His Honour found that in the course of the demonstration, a small bobcat with a front mounted auger attachment was driven by Mr Rory on to a lawn area where he drilled three holes under the direction of Ms Mellor. His Honour then said:

Poles were then loosely mounted over these holes in what was said to symbolise drilling rigs. There were speeches identifying that the demonstrators were opposed to the ending by the NT government of its moratorium on the mining practice of hydraulic fracturing (“fracking”) and the actual or proposed granting of licences for this practice to commence and/or continue in the Northern Territory. The demonstrators and the bobcat then departed. The drilling of the three holes and the driving of the bobcat on the lawn and its rotation on the lawn had some impact on the surface of the lawn.

3 Each of the respondents gave evidence before the Local Court admitting their roles in organising the demonstration and in the relevant matters found by the Judge. His Honour found, and it is not now disputed, that each of the respondents “intentionally and/or recklessly, and directly or indirectly, caused the three holes to be drilled in the lawn and the attendant impact of the bobcat on the surface of the lawn”.

4 The evidence as to the damage caused by the respondents revealed that a gardener attended after the demonstration and repaired the lawn within one hour. His Honour concluded that the lawn was essentially restored to its pre-demonstration appearance and function within that time.

5 At the hearing the respondents relied upon defences of “sudden or extraordinary emergency” (s 43BC of the Criminal Code) and self-defence (s 43BD of the Criminal Code). In written reasons for decision the Court found that the respondents were not excused from criminal responsibility for damaging the lawn by virtue of those provisions. There is no challenge to these findings.

6 The Judge also noted the “clearly symbolic nature” of the conduct of the respondents and observed that the damage to the lawn was both minor and temporary and repaired at a small cost. His Honour considered whether the principal of de minimus non curat lex (the law does not concern itself with trifles) should be applied and determined that it did not apply because of the real, though minor, damage occasioned to the lawn. Again, there is no challenge to this finding.

7 The charges against each respondent were dismissed because the learned Judge concluded that the prosecution failed to establish a necessary element of the offence being that the property as described in the charge (“front lawn”) belonged to the Northern Territory Government.

8 The appellant challenged that finding on the grounds that; (a) the Judge erred in failing to properly consider s 306 of the Criminal Code and, further, (b) erred in finding that the Speaker of the Legislative Assembly, or a person authorised by the Speaker, does not have “control” of the precincts of the Legislative Assembly pursuant to the Legislative Assembly (Security) Act 1998 and the Legislative Assembly (Powers and Privileges) Act 1992. The second ground of appeal was not pressed at the hearing.

9 The offence alleged against each respondent was pursuant to s 241 (1) of the Criminal Code which provides:

A person is guilty of an offence if the person causes damage to property belonging to another person.

10 The word “belongs” is defined in s 239 of the Criminal Code to include anyone who has “possession or control of it”.

11 It is apparent on the face of s 241(1) that the identity of the owner of the property the subject of the charge, or the person to whom it belongs, is irrelevant so long as it is “another person”. Section 306 of the Criminal Code makes this clear. It provides:

A description of property in an indictment may be in ordinary language and shall be such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.

12 The operation of s 306 of the Criminal Code was considered by the Full Court in Bromberg v O'Brien 1 where Asche CJ (with whom Kearney and Angel JJ agreed) held, in relation to a charge of stealing, that the section made it unnecessary to name the person to whom the property belonged...