Jackson v Hales [2000] NTCA 14

Jackson v Hales [2000] NTCA 14

[1] The Sentencing Act provides for a system of mandatory sentencing in Division 6 of Part 3. By amendment made in 1999 the Legislature sought to resolve certain unintended anomalies in the Act and to improve the effectiveness of the operation of sentencing laws in the Northern Territory. The amendments included what is described as an "exceptional circumstances" clause. That is to be found in s 78A(6B) and s 78A(6C) which are in the following terms:

"(6B) A court is not required to make an order under subsection (1) if exceptional circumstances for not doing so exist and may instead impose any other sentence or make any other order authorised by this or any other Act.

(6C) For the purposes of subsection (6B), exceptional circumstances will only exist if the offender is before the court to be sentenced in respect of a single property offence, the offender has not on any previous day been dealt with by a court under subsection (6B) and the court is satisfied of all of the following:

(b) that the offender has made, or has made reasonable efforts to make, full restitution;

(c) that the offender is otherwise of good character and that there were mitigating circumstances (which it is noted do not include intoxication due to alcohol or the use of illegal drugs) that significantly reduce the extent to which the offender is to blame for the commission of the offence and demonstrate that the commission of the offence was an aberration from the offender's usual behaviour;

(d) that the offender co-operated with law enforcement agencies in the investigation of the offence,

the onus of proving the existence of the matters referred to in paragraphs (a), (b), (c) and (d) being on the offender."

[2]

This appeal is centred upon the meaning of the requirement in (d) that the Court be satisfied that the offender co-operated with law enforcement agencies in the investigation of the offence.

[3]

The application of the "exceptional circumstances" provision in this case is to be considered in the context of an offence against s61 of the Summary Offences Act. For present purposes, that section creates an offence where a person has in that person's custody any personal property which "at any time before the making of a charge for an offence against this section in respect of the personal property, is reasonably suspected of having been stolen or otherwise unlawfully obtained". Section 61(3) of the Summary Offences Act provides a defence to the offence in the following terms:

"It is a defence to a charge for an offence against subsection (2) if the defendant gives to the court a satisfactory account as to how the defendant obtained the personal property referred to in the charge."

[4]

If a defendant wishes to avail himself of that defence it is encumbent upon him to give to the Court (as distinct from the investigating authorities) a satisfactory account as to how the defendant obtained the personal property.

[5]

The appellant was charged with having in his custody a trailer which was reasonably suspected of having been stolen or otherwise unlawfully obtained. The appellant gave to the investigating police officer an explanation of how he obtained the trailer. He gave evidence to similar effect when the matter came before the Court of Summary Jurisdiction. The learned Magistrate considered that explanation and expressed his conclusions in the following terms:

"In the end, the question before me is whether I believe Mr Jackson enough to be satisfied on the balance of probabilities that his story is essentially true. That he innocently bought this vehicle from the person Mark, now said to be in gaol. Because of my grave reservations about his account, that is Mr Jackson's account before me, in relation to the registration of the vehicle, I don't - and also in relation to his account, in particular as to how and when he met Mark, I don't believe that either.

In short, I reject the story put forward by Mr Jackson. I'm not persuaded that it's more likely than not. On the contrary I'm persuaded it's less likely than not and I don't regard the defence as having been made out and I regard the case as having been proved."

[6]

In sentencing the appellant his Worship had to consider the mandatory sentencing provisions of the Sentencing Act. An offence against s 61 of the Summary Offences Act is a property offence for the purposes of the Act. As a consequence the appellant stood to be convicted and sentenced to a term of imprisonment of not less than 14 days unless he could bring himself within the "exceptional circumstances" provisions of s 78A.

[7]

His Worship appears not to have finally determined whether the provisions of s 78A(6B) (a), (b) and (c) had been satisfied. He did not need to do so because he found that the appellant had not co-operated with law enforcement agencies in the investigation of the offence. That finding is sufficient to deny the appellant the benefit of the exception to the mandatory provisions of the Act.

[8]

Whilst the appellant attended upon police, partook of interviews with them, provided his version of events, identified the location of the trailer and "gave every outward impression of co-operation" his Worship found that he, in fact, did not co-operate. His Worship said:

"But if it be the case that telling polite, courteous and apparently a co-operative story in which there is no thread of truth doesn't amount to co-operation then in a case like this when we are not satisfied that the defendant had told the truth to police, how can I be satisfied that he has co-operated with police?".

[9]

Later his Worship made the following finding:

"I would state, if it's of any interest and it may be to a higher Court, that if co-operation does mean being polite and courteous and keeping appointments, talking as long as the police ask for him to, and answering questions as long as questions are asked, then Mr Jackson's co-operation could not be faulted. But in my view co-operation entails not only courtesy, politeness, punctuality and all the rest of it, but it does also entail a substantial degree of truth in what is said on those occasions and in my findings in relation to guilt and innocence I just can't - it's totally inconsistent with my finding that he is co-operating in that respect. So that will be my conclusion."

[10]

The finding of his Worship was the subject of appeal to the Supreme Court. In rejecting the appeal the Judge on appeal observed:

"I have already indicated in my response to the submissions that I agree with the conclusions of the learned Magistrate, for the reasons that he has given. Co-operation means at least working together for a common end, and to give answers, as found by the learned Magistrate, the onus being on the appellant, that were not made out as truthful and useful, it seems to me, cannot constitute co-operation."

[11]

The appellant says that both his Worship and his Honour applied an incorrect test as to whether relevant co-operation existed. It was pointed out that the co-operation with which the section is concerned is with "law enforcement agencies in the investigation of the offence". What was said to the Court by way of explanation pursuant to s 61(3) of the Summary Offences Act is not relevant to this issue. It was submitted that both Courts applied a test that required an offender to admit his or her guilt when questioned by the police and, further, that any failure to make full and frank admissions of offending meant that the offender had not co-operated with law enforcement agencies in the investigation of the offence.

[12]

It was the submission of the appellant that the word "co-operated" in s 78A means:

(i) that any degree of "co-operation" will suffice;

(ii) "co-operation" need not be total, it can be partial;

(iii) "co-operation" does not extend to abrogating any of the Rights of Silence;

(iv) nor does it operate so as to make a nonsense of the "warning which every police officer is required to give prior to commencing an interview with a suspect."

[13]

In our view this matter falls to be considered in light of its peculiar circumstances. These circumstances arise out of the unusual nature of s 61 of the Summary Offences Act and also from the circumstance that the appellant voluntarily provided to police an explanation for his possession of the trailer which explanation was not accepted by his Worship.

[14]

The circumstances of the matter do not give rise to any need to consider the wider issue of the impact (if any) of the provisions of s 78A upon the right to silence. In this case the appellant did not exercise any right to silence. He chose to provide a version of events to the investigation agency. That version of events was obviously not accepted by the officer concerned. In the end it was not accepted by the learned Magistrate either. In these circumstances the appeal can be resolved by a consideration of the matter limited to its own facts.

[15]

In our view the section requires, as it says, that the offender co-operate with law enforcement agencies in the investigation of the offence. What amounts to co-operation will be a matter of fact and degree in each case. The expression "co-operate" in the context requires an element of assistance to the enforcement agencies or a working together with them towards a common end. For there to be co-operation there must be either assistance to the agencies or, at least, a willingness to assist. In some cases a simple act such as attending for interview by police may suffice. In others a greater degree of co-operation may be necessary.

[16]

The appellant provided a version of events which purportedly was within his own knowledge. By implication this version was not accepted by the investigating authorities. The appellant did not have to provide such an explanation. Under s 61(3) of the Summary Offences Act he had a right to give an explanation to the Court. The learned Magistrate did not accept his explanation which was essentially the same as the version he had given to the investigating authorities. It cannot be said that the appellant has assisted the agencies or that he has demonstrated a willingness to assist. The information he conveyed to the agencies was, as his Worship observed, "totally inconsistent" with co-operation in that respect.

[17]

This is not to suggest that a person cannot co-operate with authorities in the absence of telling them the truth or admitting guilt. A person may be co-operating with authorities but in fact be misleading them because of his own lack of knowledge, his state of confusion or because of false assumptions he has adopted. He may be co-operative by truthfully informing the authorities that he is unable to recall events. In determining whether or not a person has co-operated with law enforcement agencies in the investigation of an offence it will be necessary to look at the whole of the surrounding circumstances. It may be that factors such as courtesy, politeness and punctuality will be indicators of co-operation however they need to be considered in light of all of the circumstances of the particular matter. Further, the fact that the co-operation of an offender did not, in truth, assist the law enforcement agencies in the investigation of the offence will not necessarily be a bar to a finding of co-operation. An offender may co-operate with authorities even if that co-operation does not produce a tangible result. It is the fact of co-operation that is relevant not the product of that co-operation.

[18]

In our opinion in the circumstances of this matter the appellant cannot be said to have co-operated with law enforcement agencies in the investigation of the offence where the explanation that he volunteered to those agencies as to the circumstances surrounding the obtaining of possession of the trailer, the centrepiece of the enquiry, were rejected. An offender does not co-operate with authorities by providing a false account of events in circumstances which do not suggest an innocent explanation for so doing.

[19]

The appeal is dismissed.