Steven George Pregelj and Iris Wurramura v Gary Frederick Manison [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Nader,Kearney,Rice JJ
• Judgment Date: 22 December 1987
• Docket Number: No. CA AP 5-6 of l987
• Date: 22 December 1987

(1987) 51 NTR 1

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Nader, Kearney and Rice JJ

No. CA AP 5-6 of l987

No. SCC 75 to 76 of 1987

Steven George Pregelj and Iris Wurramura

and

Gary Frederick Manison

Counsel for Appellants: C. Dowd; (later) P. Tiffin

Counsel for Respondent: R. Wallace

Cases applied:

Widgee Shire Council v Bonney (1907) 4 CLR 977

Walker v Crawshaw (1923) Gaz LR 50

Jeffs v Graham (1987) 8 NSW LR 292

Cases referred to:

Worcester v Smith (1951) VLR 316

He Kaw Teh v R (1983) 157 CLR 523

Vallance v R (1961) 108 CLR 56

R v Tolson (1889) 23 QBD 168

Sherras v De Rutzen (1895) 1 QB 918

Lim Chin Aik (1963) AC 160

R v Morgan (1976) AC 182

R v Reynhoudt (1962) 107 CLR 381

Morley v Malthouse (1924) SASR 268

Normandale v Brassey (1970) SASR 177

R v Turnbull (1943) 44 SR (NSW) 108

R v Stephens (1866) LR 1 QB 702

R v Medley (1834) 6 C and P 292; 172 ER 1241

Barney v Akroyd (1872) LR 7 QB 474

Timbu Kolian v R (1968) 119 CLR 47

R v Payne (1970) Qd R 260

R v Sweet (1972) QWN 28

Kaporonovski v R (1973) 133 CLR 209

Geraldton Fisherman's Cooperative Ltd v Munro (1963) WAR 129

Anderson v Basile (1979) WAR 53

Cases not followed:

R v Krosel (1986) 41 NTR 34

Statutes:

Summary Offences Act, s.47

Criminal Code (N.T.), ss. 1, 3, 22, 26, 31 and 32

Criminal Code (Queensland), ss. 23 and 24

Criminal Code (Tasmania), ss. 13 and 14

Criminal law — offensive behaviour — mental elements of the offence — effect of codification of rules of criminal responsibility — construction of s.31 of Criminal Code.

Criminal law — meaning and application of mens rea at common law in relation to offensive behaviour — whether necessary intent goes to all the ingredients of the offence — whether offensive behaviour to be treated as per the public nuisance cases.

JUDGE1

1 This is an appeal to the Court of Appeal from a decision of a single judge of the court, himself sitting on appeal from the decision of a magistrate finding offences of offensive behaviour proved and placing the the appellants on good-behaviour bonds.

2 The prosecution evidence came from a number of policemen. The only eyewitness to the behaviour complained of was Anthony Leonard Dyer, a constable of police attached to Berrimah Police Station. Constable Dyer happened to live next door to the house in which the behaviour occurred in Fourcroy Street, Karama, a suburb of Darwin. At about 8.50 pm on 27 August 1987, Constable Dyer was walking along a foot-lane which connects Fourcroy Street with a park behind the house, number 11, in which the behaviour occurred. The constable's attention was drawn by movement in a bedroom on one side of the lane. The room had a window opening onto the lane. The window had no curtains. A light was on in the room. The constable saw a “… white male who was naked lying on top of an Aboriginal female who too was naked. They were on the floor of the room going through the motions of sexual intercourse.” The house was about 7 or 8 metres from the lane. The fence separating the lane from the house was about one metre high. The bottom of the window was close to the floor. The constable continued to walk along the lane. He said that he could not help seeing what he saw. He said he did not have to do any act “whatsoever” to see the persons other than just walk along the lane. However, he was able to see the persons for sufficient time to say that the white male was in his twenties, that he had brown hair, that he was not overweight and that he was of medium build. Of the Aboriginal female he said she was young and of small stature. The man and woman “appeared to be in the far left-hand corner” of the room as the constable faced the window. Notwithstanding his denial of any act in order to see what was happening in the house, Constable Dyer admitted that he looked into the room for as long as it took him to walk past the house: the time it would take to walk about fifteen paces.

3 Constable Dyer said he was offended by what he saw. He also said, “It was just visible to me and I was a bit annoyed by it”.

4 Constable Dyer did not knock on the door of number 11 to inform the appellants that they could be seen from the lane, or to ask them to take steps to conceal themselves. He returned to his house and reported to the police what he had seen.

5 The evidential story was then taken up by Richard David Moore, an Inspector of police, also a resident of Fourcroy Street. At about 8.50 pm on 27 August 1987, he happened to overhear a police radio call to Fourcroy Street. It concerned a complaint by a member of the police force. Inspector Moore attended at Constable Dyer's address where they had a conversation. Inspector Moore then went to an intersection of McMillans Road about half a kilometre from Fourcroy Street. He saw the appellants walking. He stopped his car and spoke to them. According to him, the following interrogation took place:

Inspector: “Hang on a moment, I want to speak to both of you.”

The appellants stopped.

Inspector: “I have received a complaint regarding your behaviour in Fourcroy Street. The allegation is that you were engaged in sexual intercourse in that house. Is that correct?”

Male appellant: “Yes, we had a root in that house.”

Inspector: “Why didn't you do it in private?”

Male appellant: “Don't know. Didn't think.”

Inspector: “Do you agree that people outside could see you?”

Male appellant: “Yes, just wanted it.”

The admission into evidence of this brief interrogation fell short of a proper standard of fairness by reason of its form, but no objection was taken by counsel for the defendants. The question, “Why didn't you do it in private?”, asked of a person who, judging even by the printed word of the transcript, is very unsophisticated, was wrong. It was leading in a dangerous way. To put to a suspect a question in which the very existence of a potentially contentious element of the suspected offence was implicit was fraught with the danger that the suspect may have uncritically accepted the premise on which the question is based. Likewise, the later question, “Do you agree that people outside could see you?” is quite capable of meaning, “Now that I have told you that what you did was not done in private, do you accept what I say?” Agreement with the proposition contained in that question cannot, in my opinion, be safely treated as an admission of a state of mind at the earlier time: it may be simply the equivalent of saying, “If you now say I was seen, I accept what you say.” These are not matters about which an appeal court is in a worse position than a trial court because neither has had the advantage of witnessing the interrogation.

6 The Inspector then interrogated the male appellant about what he described as “his bona fides only”. Then he interrogated the female appellant as follows:

Inspector: “What is your name?”

Female appellant: “Iris.”

Inspector: “Is what he said true?”

Female appellant: “Yes.”

One has to make the assumption that the matter to which the female appellant agreed as true included the answers concerning the offensive behaviour and not merely the answers about the male appellant's bona fides, whatever that means.

7 The Inspector then interrogated the female appellant regarding her “bona fides”.

8 After the completion of the interrogations the appellants were arrested and taken to a lock-up at Berrimah.

9 Robin Christopher Bullock, a Sergeant of Police, was called to corroborate the evidence of Inspector Moore.

10 The appellants gave evidence. Steven George Pregelj said he had no fixed address, that he was a labourer/fisherman by occupation. At the time of his arrest he lived at 11 Fourcroy Street. He and the female appellant had moved into the empty house some weeks before their arrest. There was no furniture. They had no curtains, no bed. They used a blanket for a bed and a couple of old curtains for cover. Mr Pregelj said that the sleeping blanket would have been further to the left from where Constable Dyer said he saw them in the room. He said the light was on in the bedroom because he felt like having a light on. He agreed that he did have sexual intercourse with the female appellant on the night in question but said that he did not know they could be seen from outside the room. He believed they were concealed behind the wall. He did not know whether that was the first time they had had sexual intercourse with the light on. He said he usually liked to do it with the light on. After their sexual activity they set out to walk towards Malak when, he said, they were stopped by the inspector and a few of his mates. He said the inspector abused him. The appellant said the inspector was not asking him questions “He was telling me what I was doing.” He said most of what the Inspector said was abuse. He said he remembered the Inspector saying it was some kind of crime to have sex with an Aboriginal woman.

11 The male appellant said he told the Inspector, “I didn't know I was doing anything wrong because we were way up against the side.” He also said: “Yes. I didn't know I was doing anything wrong. How was I supposed to know people were walking out late at night.” He also said: “It was late at night and I took the precaution to get up against the side there in case anyone did walk or look from the window.”

12 The female appellant, Iris Wurramura, said she was from Groote Eylandt and that she had stayed at 11 Fourcroy Street with the other appellant. She said she was not aware that what she was doing with Mr Pregelj could be seen from the street or footpath. She said they took the precaution of being “behind the wall”. She did not know why the light was on because they usually left it off. She said that she and Mr Pregelj were walking back to 9 Squires Court to see her auntie when “the cop came up and pulled us over.” She said they were talking to Steven “but...