Jenkins v Todd [2016] NTSC 4

Jenkins v Todd [2016] NTSC 4 | Case summary | Zoe

[39]

[11] The Northern Territory Literary Awards ("the Awards") are presented annually to the winning entry in each of six categories of literature: short story, poetry, travel short story, essay, youth creative writing and play script. The Awards are a Northern Territory Government program, in collaboration with Charles Darwin University, and with the sponsorship and support of a number of other organisations. The Awards are administered by the Northern Territory Library. In 2014, the announcement of the winners and presentation of awards took place at a ceremony ("the Awards ceremony") held at the Northern Territory Library, Parliament House, in the evening of Thursday 29 May 2014.

[12] The Northern Territory Library occupies a significant area within Parliament House. In order to gain access to the Library, a member of the public must enter through the front door of Parliament House, pass through the security station, proceed into the Main Hall of Parliament House, and then turn into the Library premises. The front door security station screens all persons who enter Parliament House through the front door, whether they are going to the Legislative Assembly, Parliamentary or Ministerial offices, the Library or to the café.

[13] Emma Derby, the Assistant Director of the Northern Territory Library, was the organiser of the Awards. The appellant's entry to the Awards was rejected by Ms Derby, for reasons not presently relevant.[10] Because the appellant then continued to communicate by email with the Library, and the meaning of those emails was unclear, Ms Derby formed the view that the appellant would try to attend the Awards ceremony and disrupt the event.[11] Whether that view was right or wrong was ultimately irrelevant, both to the magistrate's findings and to the appeal. The Awards ceremony was an invitation-only function. Ms Derby was the organizer of the function. She issued the invitations. She invited sponsors, VIPs, judges and entrants. She did not invite the appellant.[12] Further, because Ms Derby apprehended that Mr Jenkins would attempt to attend and disrupt the function, she asked Mr Caldwell, Director of Security for the Legislative Assembly and the person responsible for all security matters in relation to Parliament House, to direct security staff not to allow the appellant to attend the ceremony.[13] Mr Caldwell in turn passed on the instruction to Robert Daffey, the contracted security provider's site supervisor.

[14] On Thursday 29 May 2014, from about 5.30 pm, security guard Mark Daffey was on duty at the Parliament House front door security station. A second security guard, Alex Skopellos, was working with him at the same location. Parliament House was closed to the general public after 6.00 pm.[14]

[40]

[15] The appellant desperately wanted to attend the Awards ceremony. He considered that he was entitled to attend. As he modestly stated in one of his many interjections before the learned magistrate, "I am a great writer, I am a great artist and I am allowed to go to the literary awards".[15]

[16] On 29 May 2014, shortly before 6.00 pm, the appellant arrived at the main entrance to Parliament House, and entered the building. He was almost immediately informed by security guard Mark Daffey that it was six o'clock and that the building was closed to the public. When Mr Daffey first spoke to the appellant, it was not yet six o'clock, but for reasons I explain in [54]-[56] below, that is not relevant. Mr Daffey had been informed by his supervisor on commencement of his shift that the appellant might arrive that evening, and that, if he did, he was to be told that the function in the Library was invitation only and that the appellant was not allowed to enter.[16] It is clear from Mr Daffey's evidence that he informed the appellant accordingly.

[17] The appellant did not accept Mr Daffey's statement. He replied to the effect that he was a writer and that the function was open to the public.[17] Mr Daffey repeated that he had been given instructions that it was an invitation only event and that the appellant was not to go inside. The appellant ignored Mr Daffey and walked towards the doorway of the metal detector. Mr Daffey then stood barring the appellant's way. A stand-off occurred for more than 13 minutes. Mr Daffey said that, during that time, the appellant was "just completely going on", asserting that he was a writer and telling Mr Daffey that he could not deny him entry to the building. Mr Daffey repeatedly asked the appellant to leave the building. The appellant kept telling Mr Daffey that he was going to enter the building. The appellant stepped closer to Mr Daffey and Mr Daffey kept informing the appellant to step back and to leave the building. With reference to a particular segment of CCTV footage which he viewed while giving evidence, Mr Daffey identified a point where he again informed the appellant that the building was closed to the public and that he had been informed by his supervisor that Mr Jenkins was not allowed into the Library.[18] The appellant's tone of voice was loud and aggressive. Mr Daffey identified in further viewing the CCTV footage a point where the appellant became increasingly aggressive, and his voice louder.[19] Mr Daffey also identified a point where he raised his hand and told the appellant once again to leave the building.[20] Mr Daffey told the appellant to leave the building more than 10 times.[21] The appellant then went around to a gate to the right side of the x-ray machine, leading into a restricted area where security guards worked. Security guard Alex Skopellos prevented the appellant passing through that gate into the security area. The appellant then tried to go through a white gate on the left side of the metal detector whereupon Mr Daffey put his hand on the gate to stop the appellant and told him once again to leave the building.[22]

[18] At that point, the appellant told Mr Daffey defiantly that Mr Daffey would not stop him coming through, that he (the appellant) was going to the Literary awards. The appellant said, "You can't stop me". The appellant's demeanour was very aggressive and he was speaking very loudly, getting very close to Mr Daffey. Mr Daffey told Mr Skopellos to ring the police. The appellant then went around to the side of the metal detector doorway, into a space between the right upright of the doorway and the x-ray machine, pushed Mr Daffey out of his way,[23] and continued through into the Library area of the building.

[41]

[19] One of the video surveillance files contained in Exhibit P6 was labelled "Trevor Jenkins - Concourse.wmv". The area the subject of surveillance shown in that footage was the lobby area of Parliament House, where the entry security station was set up. The times I now mention reflect the 24-hour times shown on the CCTV.

[20] By 17:58:48, the appellant had arrived and walked through the front door of the building. He was carrying bags in both hands, which he placed into the x-ray machine.

[21] At the appeal hearing the appellant said (whether by way of submission, or in attempting to give evidence from the Bar table) that he had already been in the building for about five minutes when he was shown apparently arriving at 17:58 or thereabouts.[24] He also claimed that he had entered through a door other than the door through which the CCTV showed him having entered, and indeed claimed that there was no entry door where the CCTV showed him having entered. The point of the appellant's submission was unclear. The appellant submitted that it showed Mark Daffey to have been unreliable.[25] The submission actually highlighted the appellant's own unreliability. When I asked the appellant whether he had given evidence himself or cross-examined any witnesses to the effect that he had been in the building already for five minutes at the time he was shown apparently entering through the allegedly non-existent door, he became very angry. He ultimately conceded that the point was of no relevance.[26]

[22] I summarise below my observation of the CCTV footage from 17:59:10.

[23] At 17:59:10, a security guard with a short pony tail (Mark Daffey) stood in front of the metal detector doorway, blocking the appellant from passing through. The appellant was approximately one metre away from Mr Daffey and appeared to be gesticulating and pointing with his left hand, presumably in the direction of the Library where he wished to go.

[24] At 18:00:05, the appellant had not passed through the metal detector. As mentioned above, Parliament House was closed to the public after 6.00 pm. As a member of the public, the appellant had no right to be in the building at 18:00:05. Even if the appellant had entered into the Parliament House building prior to 6.00 pm, as a member of the public he had no right to remain within the building after that time.

[25] For the next minute, until 18:01:10 the appellant appeared to be in conversation with Mr Daffey (consistent with him stating his perceived entitlement to enter further within). On three or possibly four occasions, Mr Daffey pointed towards the front door with his right arm extended (consistent with his directing the appellant to leave the building).

[26] At 18:01:10, or very shortly afterwards, the appellant turned away from Mr Daffey and went towards the x-ray machine where, after some fumbling around, he retrieved a pen and some papers, possibly a pad, which he brought back to the security guard. He then appeared to make notes.

[27] At 18:02:12, Mr Daffey again pointed towards the front door, as if directing the appellant to leave. The appellant stood in front of Mr Daffey, with the papers or pad in his left arm, pen in right hand, making some notes and engaging in further conversation. By this time, a bald or shaven headed man wearing a shirt and tie had entered the building and was standing about three or four metres away, at the counter to the right hand side of the x-ray machine as one enters the building. Meanwhile, the appellant appeared to continue his conversation with Mr Daffey, still holding his papers in his left hand and pen in right hand and making a note or notes from time to time.

[28] At 18:03:52, Mr Skopellos picked up a telephone and appeared to make a phone call. Mr Skopellos continued using the telephone until 18:06:40. Based on other evidence, he made a call to the Emergency number and was then put through to Police. The Police CAD Log indicated that the call came through at 18:04:01.[27] A recording of the call was tendered.[28] During the call, Mr Skopellos made a complaint that the appellant (whom he identified as "trash man Trevor") would not leave the building. Mr Skopellos said that the appellant was "carrying on" and "going off". A raised voice or raised voices could be heard in the background at times during the recording. I noted from the CCTV footage that, at 18:04:02 through to 18:05.10, the appellant appeared very agitated in his conversation with Mr Daffey. The audio recording of the phone call is therefore consistent with the CCTV footage, and both the recording and the CCTV footage support the evidence given by Mr Daffey and Mr Skopellos.

[29] At 18:06:13, the appellant turned away from Mr Daffey and walked over to the counter area where the bald or shaven headed man was still standing. He appeared to engage that man in conversation. Mr Daffey advanced a pace or two from where he had been previously standing, and appeared to be observing the appellant and the other man.

[30] At 18:06:45 or thereabouts, the appellant walked back to his bag, where he did something briefly before then returning to where Mr Daffey was standing. The appellant then appeared to engage Mr Daffey in further conversation.

[31] At 18:07:25, Mr Daffey pointed towards the exterior of the building, with his left arm raised and extended. The appellant remained in front of him, gesticulating with his left arm (still holding his papers) and also with his right arm.

[32] At 18:07:58, Mr Daffey having first pointed across his body with his left arm, raised his right arm and pointed in the direction of the front door (consistent with requesting or directing the appellant to go outside). The appellant continued to stand his ground, gesticulating at times very vigorously (for example, at 18:08:00), particularly with his right arm. He also raised his left arm, still holding his papers, pointing towards the entry door.

[33] At 18:09:09, the appellant turned away from the security guard, in the direction of the x-ray machine. He then walked around the feeder shelf of the x-ray machine, back to the counter where the bald or shaven headed man was standing. At 18:09:19, he walked around to the right hand side of the man. He then appeared to engage with the second security guard, Mr Skopellos.

[34] At 18:09:27, the appellant appeared to speak to the bald or shaven headed man, pointing to the papers the appellant was holding.

[35] At 18:09:39, the appellant walked back to Mr Daffey, who was still blocking the appellant's entry to the metal detector doorway and the main part of the building. The appellant appeared to engage Mr Daffey in further conversation, demonstrating the same or very similar body movements (gesticulating and pointing) as he had displayed earlier.

[36] At 18:10:41, the appellant made some further notes. Then, at 18:10:49 he turned away again, and started to return to the counter on the right hand side of the feeder shelf for the x-ray machine, where the bald or shaven headed man was still standing. However, at 18:10:55, just before the appellant arrived back at the point where the bald or shaven headed man was standing, the man opened up the counter and went through to the other side. Mr Skopellos then closed the counter after the man. The man then disappeared from view.

[37] At 18:11:08, the appellant opened the counter and proceeded to walk beyond it, into the security area where there was a bench or shelf of some kind. However, at 18:11:14, Mr Skopellos walked towards the appellant and the appellant retreated to the public side of the counter, closing the counter top after him.

[38] At 18:11:21, the appellant returned to where Mr Daffey was standing, still blocking the appellant's way through the metal detector. They appeared to converse again, with the appellant gesticulating and pointing with his right hand, in which he was still holding the pad or papers.

[39] At 18:11:57, the appellant turned around and walked in the direction of the entry door to the building. It appeared that he was going outside. He temporarily disappeared from view, to the far top right of the camera picture. However, he re-entered the scene a very short time later (at 18:12:03) and once more walked up to Mr Daffey. Further conversation apparently ensued. The appellant again appeared to refer to the papers he was holding.

[40] For a short time after that, the appellant paced around, out of view or partially out of view, obstructed by the metal detector doorway. At 18:13:07, he returned to the feeder shelf for the x-ray machine. He leaned into the x-ray machine, before again walking up to Mr Daffey at 18:13:26.

[41] Just before 18:13:36, the appellant went around the right hand side of the metal detector doorway, that is, entered without passing through the security doorway itself. He came into view again at 18:13:36. Mr Daffey stood in his way. The bodies of the two men were very close. The security guard's right arm was visible. At 18:13:37, the bodies of the two men were even closer. At 18:13:39, the faces of the security guard and the appellant appeared very close to one another.

[42] At 18:13.40, the appellant appeared to push the security guard with his right arm to the guard's chest area, while the appellant was moving slightly to his left. At 18:13:41, both the appellant's arms were outstretched and extended in the direction of the guard, touching his shoulder and/or his raised forearm, completing the apparent push.

[43] During the appeal hearing, Mr Jenkins submitted that he had not pushed Mr Daffey and that the CCTV evidence did not show any push. He further submitted that the CCTV frame at 18:13:41 showed that he was on his knees praying, adding that he was a Christian.[29] I have carefully considered that submission. It is true that the one framed image of the appellant, taken from an overhead camera, and isolated from the whole sequence of which it forms part, is consistent with him genuflecting with his arms outstretched in an act of adoration. However, I am satisfied beyond reasonable doubt, consistent with the conclusion of the learned magistrate, that the CCTV frame at 18:13:41 showed the completion of the appellant's action in pushing Mr Daffey. Moreover, the possibility that the appellant might have delayed his forced entry into the inner areas of Parliament House and taken the time to get down on his knees and pray, is not a reasonable possibility. Therefore, for a combination of reasons, I reject the appellant's submission.

[44] At 18:13:42, the appellant had disappeared out of camera range in the direction of the Parliament House Main Hall. At 18:13:49, Mr Daffey walked behind the counter, where Mr Skopellos was again speaking on the phone.

[45] Throughout the stand-off with the appellant, Mr Daffey appeared to remain calm. Although he stood in the appellant's way, he did not display any aggressive gestures. The appellant said in evidence that Mr Daffey was "deliberately standing so that I can't get through the gate". That was accurate. The appellant said that he found this confronting.[30] It is clear that the appellant became frustrated and angry. The magistrate's ex tempore reasons included findings that the appellant became increasingly aggressive, angry, screaming and yelling, and that he invaded Mr Daffey's private space.[31] On appeal, the appellant has not established that any of those findings was wrong.

[46] The CCTV, even without audio, clearly demonstrated the appellant's persistence in his attempts to penetrate past the front door security.

[46]

[53] The elements of the offence charged as count 1 were as follows:

The appellant trespassed on a place, Parliament House, Darwin;

The appellant was directed to leave that place by security guard, Mark Daffey;

Mark Daffey was an occupier of Parliament House, Darwin, at the relevant time;

The appellant failed or refused to leave forthwith.

[54] For an offence charged contrary to s 7 Trespass Act, the prosecution must prove an antecedent act of trespass, in the sense that the offender must already be a trespasser before the direction to leave by an occupier can result in the commission of an offence through non-compliance with the direction.[43]

[55] The appellant lawfully entered Parliament House at or about 5.58 pm pursuant to an implied licence to do so, an implied licence in common with all members of the public. The appellant did not enter as a trespasser.[44] However (leaving aside for present purposes the direction given to the appellant before 6.00 pm by Mr Daffey), the appellant's implied licence entitled him to remain at Parliament House only until 6.00 pm. His licence was then exhausted. By not leaving Parliament House within a reasonable time after 6.00 pm, the appellant became a trespasser. In the case of the appellant, who was standing in the lobby just inside the entry point to the building, a 'reasonable time' was a very short time. It was not as though he had to walk all the way from the far end of the Main Hall, some distance from the exit.

[56] Alternatively to [55], after 6.00 pm, by not leaving Parliament House within a reasonable time of being directed to do so by Mr Daffey, an occupier, the appellant became a trespasser. As explained in [55], a 'reasonable time' was a very short time.

[57] It is difficult to state a precise time at which the appellant became a trespasser. If the fact situation in [55] applies, he became a trespasser at or before 6.01 pm. If the fact situation in [56] applies, then, having regard to the evidence of Mr Daffey and noting the times referred to in [25] and [27] at which further directions to leave were given, the appellant became a trespasser at or before 6.04 pm. This conclusion is supported by the fact that Mr Skopellos, in his phone call starting at 18:03:35, complained that the appellant would not leave the building.

[58] The prosecution thus established beyond reasonable doubt the antecedent act of trespass. Then, by evidence that Mr Daffey continued to request the appellant to leave the Parliament House building, the prosecution established the necessary element that at least one direction to leave was given after the appellant had become a trespasser.[45] My reasoning in this respect is not identical with the magistrate's reasoning, but is consistent with his Honour's conclusions.[46]

[59] Pursuant to s 4(1) of the Trespass Act, an "occupier" of Crown land or land occupied by the Territory is "a person in charge of the land", or an employee or other person acting under the authority of a person in charge.

[60] In relation to count 1, the respondent averred "that on the 29th May 2014, Security Guard Mark Daffey was an occupier of Parliament House in accordance with Section 4".

[61] An averment in a complaint, that a person was at the relevant time an occupier within the meaning of s 4, is evidence of the fact so averred.[47] The averment is prima facie evidence of the fact. The averment in this case was not conclusive evidence of the fact that security guard Mark Daffey was an occupier of Parliament House in accordance with s 4: "Whilst it constitutes evidence of that fact, that fact may of course be rebutted by evidence to the contrary."[48] However, if there were no contrary evidence, then the averment would, in effect, be conclusive.

[62] An employee of a security firm may be an "authorised person" for the purpose of the Legislative Assembly (Security) Act. That Act deals with security in the "Assembly Precincts", which clearly include the Parliament House building. One of the categories of authorised persons under the Act is "a person, employed by a security firm within the meaning of the Private Security Act that is engaged to provide the services of crowd controllers in relation to the Assembly Precincts and who is directed by the security firm to provide the services of a crowd controller in relation to the Assembly Precincts and holds a crowd controllers licence within the meaning of the Private Security Act." [49]

[63] The Legislative Assembly (Security) Act makes provision for the public to be within the Assembly Precincts. Section 3(2) of the Act reads as follows:

[50]

[64] Michael Caldwell, Director of Security for the Legislative Assembly, was responsible for all security matters in relation to Parliament House.[50] Wilson Security were the "contract security providers" for Parliament House.[51] After Ms Derby spoke with Mr Caldwell on 29 May 2014 and requested that the appellant not be permitted to enter the library for the Awards ceremony that evening, Mr Caldwell spoke to Robert Daffey, the site supervisor for Wilson Security. Mr Caldwell instructed Mr Daffey that Mr Jenkins was "not welcome to enter or participate in the literary awards that night", and that if he turned up after 6.00 pm, he should not be allowed into Parliament House. As a member of the public, Mr Jenkins was allowed to be in the building until 6.00 pm, after which time the building was closed to the public. The public are excluded after 6.00 pm.[52]

[65] The prosecution led evidence that security guard Mark Daffey worked for Wilson Security,[53] but did not prove that Mr Daffey was an "authorised person". Evidence was led that Wilson Security "ran the security service" for Parliament house, but the prosecution did not lead evidence that Wilson Security was a security firm within the meaning of the Private Security Act; that it was engaged to provide the services of crowd controllers in relation to the Assembly Precincts; that Mark Daffey (as an employee of Wilson Security) was directed by the firm to provide the services of a crowd controller in relation to the Assembly Precincts; or that Mr Daffey held a Crowd Controllers Licence within the meaning of the Private Security Act.[54]

[66] Although it was not proven that Mark Daffey was an authorized person for the purposes of the Legislative Assembly (Security) Act, the averment was prima facie evidence that Mr Daffey was an occupier, that is, a person in charge of Parliament House or a person acting under the authority of a person in charge of Parliament House. There was no contrary evidence in respect of the latter alternative. Indeed, the evidence disclosed that actions of security guard Mark Daffey in not permitting the appellant to enter or remain in Parliament house after 6:00 pm were in accordance with instructions given by Mr Caldwell, Director of Security at Parliament House. The fact averred was not displaced or rebutted by evidence to the contrary: there was no evidence to contradict the averred fact that security guard Mark Daffey was an occupier of Parliament House.

[67] All of the elements of the offence charged as count 1 were proven beyond reasonable doubt. The offence was a regulatory offence,[55] and thus (subject to limited exceptions) the criminal responsibility provisions in Part II of the Criminal Code were not applicable.[56] The Trespass Act provides a specific defence to a charge contrary to s 7 if a defendant proves that it was necessary to remain in or on the place concerned for the defendant's own protection or the protection of some other person, or because of some emergency involving the defendant's property or the property of some other person.[57] However, the defence was not raised and it is hard to see how the appellant could have availed himself of such a defence.

[56]

[71] The appellant complains that he was denied procedural fairness by the magistrate in the court below.

[72] The appellant firstly contends that the magistrate would not allow him to cross-examine Mark Daffey by reference to the CCTV footage, to show the witness the CCTV footage in the same way as the prosecutor had shown Mr Daffey the CCTV footage when leading his evidence-in-chief. However, the appellant's contention is generally not supported by the transcript of proceedings. So, for example, when the appellant commenced to cross examine Mr Daffey, he said to the magistrate, "I would like to play the CCTV footage so I can guide Mr Daffey through the CCTV footage, please", to which the magistrate responded, "Please play the CCTV footage". A short while later, the magistrate observed/remarked, "It's being played now", and then, "We're playing it now from the beginning. All right. Yes it's now being played."[61] The transcript does not record any protest from the appellant at that point to the effect that the CCTV footage was not being played. A reading of the whole of the appellant's cross-examination of Mr Daffey indicates references to the CCTV footage being played (and stopped) on more than 15 occasions.[62] On two, possibly three, of those occasions, the magistrate refused to allow the replay to be stopped, but it appeared that his Honour subsequently relented.[63]

[73] On the hearing of the appeal, the appellant contended that the magistrate had not stopped the footage replay once during the whole of the appellant's cross examination of Mr Daffey.[64] I reject that contention. It misrepresents the reality. When I pointed out to the appellant that his contention was contrary to the transcript, in that the transcript showed that on multiple occasions the replay of the CCTV footage was stopped at his request, and he was able to ask questions of Mr Daffey, the appellant interrupted me angrily. When I attempted to inform him (at his request) of the relevant transcript references, he said:[65]

[60]

[76] The statement extracted in the previous paragraph - "I can show you on the CCTV footage, but we've seen it ..." is a clear indication that the appellant was aware that he could give evidence with reference to a replay of the CCTV footage, but that he decided not to do so. Moreover, there is no indication in the transcript that the appellant asked the magistrate for the CCTV footage to be played during his evidence in chief, or that any such request was refused.

[77] In the appellant's written submissions filed in this Court on 15 January 2016, he complains or submits that the prosecutor deliberately did not lead him through the CCTV footage (in cross-examination), and asks this Court to speculate on the reasons. I decline to so speculate. The prosecution case had closed and the appellant was therefore giving evidence with full knowledge of the evidence already led against him. The prosecutor could have utilized the CCTV footage (or parts of it) in his cross-examination of the appellant, but there was no requirement for him to do so.[69]

[78] The appellant also complains that CCTV evidence was allowed, even though there was no audio; that the magistrate found that appellant was yelling (screaming incoherently and loudly) in the absence of any audio; and that the CCTV footage was faulty (a reference to the 'staccato' effect where the footage was not continuous film but rather a series of photo images taken at intervals of approximately one second). As to the first two of these complaints, the magistrate was able to take into account all the evidence, and, as he did on one or more occasions, compare the soundless CCTV footage and images with the evidence of the witnesses (including the appellant), to assist him in making his factual findings. As to the third complaint, the magistrate made findings taking into account the technical inadequacies of the CCTV footage, as described in [49] above. No error has been made out.

[79] The appellant also complains that the evidence of the witness Mark Daffey was given more weight than it deserved, in circumstances where it was not corroborated. In fact, the evidence of Mr Daffey was corroborated, in that it was supported by the oral evidence of Mr Skopellos and by the CCTV footage. The appellant made submissions at various times during the appeal hearing to the effect that Mr Daffey was an unreliable witness. I remarked on that in [21] above. However, it is clear from the magistrate's approach to the assessment of the evidence of all witnesses, and in particular the assessment of the conflict between the evidence of Mr Daffey and the evidence of the appellant, that his Honour gave careful consideration to the evidence of Mr Daffey before not only preferring Mr Daffey's evidence to that of the appellant but being satisfied beyond reasonable doubt that Mr Daffey's evidence was true. No error has been made out.

[80] The appellant's remaining arguments can be listed as follows:

Because he was excluded from court and confined to the vulnerable witness room, the case against him was effectively heard ex parte.

Subpoenas he filed with the court were not issued and subpoenaed documents were not produced.

Witnesses proposed to be called in the defence case did not attend court.

Bias on the part of the magistrate because of previous personal dealings; magistrate made derogatory comments during the proceedings.

Magistrate refused to allow the appellant to make submissions in relation to the Police Administration Act, the Private Security Act and the Anti-Discrimination Act.

[81] In relation to the contention that the case was heard ex parte, the only time the prosecution case was actually heard ex parte was during the evidence in chief of Mark Daffey, when the appellant removed himself from the courtroom. The magistrate had come very close to having the appellant placed in custody if he refused to sit quietly during the evidence, and the appellant proposed that he sit outside. He explained his upset thus: "I can't stand someone lying about my life. I hate it when people lie about my life. Do you understand?"[70] The magistrate was entitled to proceed without the appellant being present,[71] and he did. Further, it is apparent from the appellant's submissions to the court on a later occasion that he had listened to the audio recording of the evidence of Mr Daffey. It is fair to conclude that he had access to the evidence which had been heard in his absence.[72] I am satisfied that the appellant did not suffer any injustice and certainly no substantial injustice as a result of removing himself from the courtroom.

[82] I turn to consider the appellant's contention that his confinement to the vulnerable witness room on occasions meant that the proceeding was effectively conducted in his absence. The appellant was removed from the courtroom to the vulnerable witness room on three occasions: 5 February 2015, 6 February 2015 and 23 February 2015.[73] On each occasion the appellant had engaged in unruly or disruptive behaviour and on each occasion the appellant had first been cautioned about his behaviour and warned of the consequences. Notwithstanding that he was in the vulnerable witness room, the appellant was able to see, hear and participate in the proceeding. On a few occasions, the appellant was placed on mute, at the direction of the magistrate, to prevent his potentially disruptive utterances having an adverse effect on the proceedings in the courtroom.

[83] It should be borne in mind that a court may order an accused person to be removed from the courtroom (and may direct the trial to proceed in his absence) if the accused "so conducts himself as to render the continuance of the proceedings in his presence impracticable".[74] The use of the vulnerable witness room adopted by the magistrate was an appropriate response in the circumstances, permitting near full participation (depending on the appellant's conduct), a more considered response than complete exclusion. While it may be that the appellant suffered a very limited forensic disadvantage while in the remote witness room, it was a disadvantage that he brought on himself. I am satisfied that the appellant did not suffer any injustice and certainly no substantial injustice as result of his being placed in the remote witness room.

[84] I turn to consider the complaints that subpoenas (summonses) filed with the court were not issued, that subpoenaed documents were not produced, and that witnesses proposed to be called in the defence case did not attend court. These complaints can be conveniently dealt with together.

[85] On the first day of the appeal hearing in this matter, I referred the appellant to his submissions, and to the first heading "Unable to call witnesses". I gave the following explanation to the appellant:

[69]

[90] The documents which the appellant initially wanted to obtain from the Head Librarian did not expressly include documents relating to the authority of Emma Derby to confine the list of invitees so as to exclude the appellant from the Awards ceremony. Rather, they related to Ms Derby's reasons for excluding the appellant from the Awards ceremony. However, the reference to documents "on it being a public event" might have caught, in the trawl, documents relating to Ms Derby's authority to exclude the appellant from the Awards ceremony.

[91] The appellant did not contend at any time that he was personally invited to the Awards ceremony. Rather he claimed that it was an 'open event' for which he did not need an invitation. He said, "I mean everybody is invited to the event, it's an open event, it's not an invited event."[85] This claim was contrary to the evidence of Ms Derby, the event organizer, that it was an invitation-only event. Further, the unchallenged evidence of Ms Derby was not only that she did not invite the appellant, but that she directed that he not be permitted to attend.[86]

[92] When the appellant cross examined Ms Derby, he did not ask any questions to suggest that she did not have authority to exclude him (or any other member of the public) from the Awards presentation ceremony. So, for example, he cross-examined Ms Derby as to previous dealings between them;[87] as to (her concern about) the possibility he might attack one or more of her former library colleagues;[88] that there were "other organisers who actually got involved in the event", namely, the NT Writers Centre, with which the appellant said he was closely involved;[89] a media release which appeared in the Centralian Advocate,[90] and as to whether the document said anything about the need for invitations to attend the Awards presentation;[91] that the Literary Awards were "part of the thing called Word Storm" (to which Ms Derby replied that the Literary Awards ceremony was a stand-alone event);[92] that the purpose of the Literary Awards ceremony was to gather people together to celebrate being writers;[93] that the Literary Awards were advertised in a document published by the Writers Centre;[94] that the Library's media releases were controlled by the Department of Arts and Museums media team;[95] that a document relating to the 2013 Literary Awards did not specify the need for an invitation;[96] that the entry form for the 2014 NT Literary Awards (competition) did not say that a person had to be invited to go to the Awards presentation ceremony;[97] that the appellant had never previously been invited but had nonetheless attended the Literary Awards presentation ceremony without being stopped;[98] as to whether an invited guest might bring an accompanying person;[99] as to the witness's knowledge of the appellant's "altercations with the Council" over the previous year;[100] as to the content of the emails relating to the rejection of the appellant's entry into the Literary Awards;[101] as to the content of Ms Derby's communications with Mr Caldwell prior to the event;[102] and as to what it was about the appellant's emails which led Ms Derby to request that the appellant not be permitted to attend the Awards presentation.[103]

[93] On the appeal hearing, when it was pointed out to the appellant that he had not challenged Ms Derby's authority to exclude him from the Awards presentation ceremony, the appellant said that he expected that Patrick Gregory would appear as a witness and that he would have challenged Ms Derby's authority through his cross-examination of Mr Gregory.[104] It is possible that the appellant had that expectation.[105] On 24 March 2015, the appellant caused a summons to witness to be issued to Mr Gregory, requiring his attendance in court on 27 March 2015 at 10:00 am. Mr Jenkins then purported to serve a copy of that summons by leaving it under the front door of Parliament House on 24 March 2015.[106] As mentioned in [10] above, the Northern Territory Library is located within Parliament House.

[94] On 27 March 2015, the summary prosecutor read out in court a letter sent to him by Mr Caldwell[107] on 24 March 2015:

[71]

[95] Although the transcript is difficult to follow, it appears that the prosecutor, after reading the passage from Mr Caldwell's email extracted in the previous paragraph, ceased to read from the email and informed the court, "I do not intend to call the summons to appear to Mr Patrick Gregory as that would not be in accordance with the Legislative Assembly (Powers and Privileges) Act".[109] It is therefore tolerably clear that the reference by Mr Caldwell to the "four attached documents" was a reference to several summonses issued by the appellant, one of which was addressed to Patrick Gregory.

[96] The appellant's attempt to serve Mr Gregory with a summons thus failed. The Legislative Assembly (Powers and Privileges) Act,[110] prohibits a person from serving, or tendering for service, a court summons within the precincts of the Legislative Assembly without the express permission of the Speaker or the Deputy Speaker. The Act relates to the powers (other than legislative powers), privileges and immunities of the Legislative Assembly, its members and officers. It would appear that the legislative purpose of the Act is to make the precincts of the Legislative Assembly a 'no-go zone' for service of process, irrespective of the identity of the person to be served, and even if that person is not a member or officer of the Legislative Assembly.

[97] It seems unjust that the appellant's attempt to effect service on an officer of the Northern Territory Library was frustrated or thwarted by the Legislative Assembly (Powers and Privileges) Act, simply because the Northern Territory Library was co-located in the Parliament House building with the Legislative Assembly.

[98] However, the extent of injustice to the appellant has to be assessed by reference to the relevance of the evidence Patrick Gregory might have given. It appears from the transcript that the prosecutor had obtained a statement from Mr Gregory, which was made available to the appellant. However, the appellant refused to take it, saying it was not relevant. The appellant did not

[78]

[100] The appellant was clearly fishing, and in the wrong pond. Based on what he said to the magistrate, the appellant wanted to examine or cross-examine Mr Gregory on an entirely irrelevant matter: the reason the appellant's entry to the Literary Awards had been rejected. This was consistent with his exchange with the magistrate extracted in [88] above.

[101] Although it would not usually be appropriate to speculate in the absence of evidence, for present purposes I will speculate in the appellant's favour that Mr Gregory would have given evidence that he did not approve, or agree with, the decision made Ms Derby, the event organizer, to exclude the appellant from the Awards ceremony.

[102] However, even those assumed facts do not assist the appellant. His difficulties were with Mark Daffey, who (for the purposes of the trespass charge, count 1) was an occupier. Mr Daffey had no relevant direct connection with the Library. He was a frontline soldier in a chain of command of which the Speaker of the Legislative Assembly was ultimately the commander-in-chief. Higher up that chain of command, between Mr Daffey and the Speaker, was Mr Caldwell, Director of Security for the Legislative Assembly and the person responsible for all security matters in relation to Parliament House and its precincts.[115] Mr Caldwell was also an authorized person under the Legislative Assembly (Security) Act.[116] Whatever Ms Derby's authority to exclude the appellant from the Awards ceremony may have been, the appellant was still answerable to the Parliament House security staff, whose task it was to screen (admit or not admit) and manage (permit to stay or require to leave) visitors to Parliament House after the building had ceased to be open to the public after 6.00 pm. Evidence was led before the magistrate sufficient to establish beyond reasonable doubt that Parliament House was closed to the public after 6:00 pm.[117] It was also proven beyond reasonable doubt that Mark Daffey had received an instruction from his superiors not to permit the appellant to enter Parliament House after 6:00 pm. Mr Daffey was not acting capriciously. The appellant was not entitled to fail to cease to trespass, or to resort to self-help by assaulting Mr Daffey, because he disagreed with a decision to exclude him from the Awards ceremony. The prosecution of the appellant in the court below was not a Commission of Inquiry into whether the NT Library or one of the Library staff members was justified in excluding the appellant from the Awards ceremony or in requesting that the appellant not be permitted to enter Parliament House to attend a Library function.

[103] For reasons explained in [100] and [102], I agree with the magistrate's assessment that Mr Gregory was not a material witness. The appellant has failed to establish that the absence of Patrick Gregory resulted in any or any substantial injustice to him.

[104] I turn to consider the absence of another witness, the bald or shaven headed man first referred to in [26] above. The CCTV footage showed him present at the Parliament House front counter from 18:02 to 18:11. He was present for most of the time during which the appellant was found to have screamed incoherently and loudly at Mark Daffey. There was no evidence that the man was still present at the time of the assault at 18:13:40. After the appellant's own evidence had been completed, discussion took place before the magistrate in relation to a man named Robert Graham.[118] It appears that the appellant had made enquiries as to the identity of the bald or shaven headed man, and had been provided with the name 'Robert Graham'. The prosecutor informed the court that the appellant had provided that name but that police enquiries had failed to locate the man. The prosecutor then informed the court that he had searched the email portal for all Northern Territory Government employees and that he had found a 'Robert Graham', a subcontractor working for NEC Australia. The prosecutor informed the court that he had then spoken with that Robert Graham, and had been informed by him that he did not attend the relevant event, and that he had had no dealings with Mr Jenkins. The appellant then insisted, apparently in relation to Robert Graham, that he had served a summons for his attendance.[119] I note, however, that the bundle of copy summonses admitted as evidence on appeal did not include any summons to Robert Graham.[120]

[105] If the identified Robert Graham's communication to the prosecutor (as to his having had no dealings with the appellant) were true, then he was probably not the bald or shaven headed man shown in the CCTV footage. That man remained unidentified.

[106] The magistrate considered the absence of the witness in his ex tempore reasons for decision:[121]

[82]

[107] As a general principle, a prosecutor has an obligation to call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. Such witnesses include the eyewitnesses of any events which go to prove the elements of the crime charged.[122] If the prosecution fails to call a witness whom the trial judge or magistrate considers ought to be called, then in order to ensure a fair trial, that judicial officer may invite the prosecution to reconsider whether the witness ought to be called. If the invitation is declined and the judicial officer remains of the same view, then it may well be appropriate to comment upon the failure of the prosecution to call the witness. A jury, or a judicial officer sitting alone, may take into account the fact that a potentially important witness has not been called in determining whether the prosecution has proved its case beyond reasonable doubt.

[108] However, a prosecutor is relieved of the obligation to call a witness who, after relevant enquiry, is not identified. Such a witness is not 'available'.

[109] Whatever deficiencies there may have been in the attempts made to identify and locate the male eyewitness, it is not appropriate to now speculate as to the evidence which the absent witness might have given. The magistrate's task was to consider the actual evidence. His Honour's observation that the CCTV footage "largely speaks for itself" was apposite to the appellant's observable actions in relation to both the trespass charge and the assault charge. Although (without audio), the CCTV footage was not so probative of the element of the trespass charge requiring proof that verbal directions to leave Parliament House were given to the appellant after he had become a trespasser,[123] there were nonetheless several relevant images of Mr Daffey pointing towards the exit, apparently directing the appellant to leave the building. The combination of this evidence and other evidence accepted by the magistrate was compelling.

[110] It is clear from the remarks extracted in [106] that, in determining whether the prosecution had proved its case beyond reasonable doubt, the magistrate considered the fact that an eyewitness had not been called, but that his Honour was nonetheless satisfied beyond reasonable doubt.

[111] The appellant has not established injustice or substantial injustice as a result of the unidentified witness not having been called.

[112] I mention finally the last two dot point sub-paragraphs in [80] above. The second last made assertions of bias on the part of the magistrate because of previous personal dealings, and also that the magistrate made derogatory comments during the proceedings. The applicant has established neither of those assertions. I reject also the remaining complaint, that the magistrate refused to allow the appellant to make submissions in relation to the Police Administration Act and the Private Security Act. The appellant was permitted to cross examine the two security guards in relation to the Private Security Act and the Code of Practice[124] applicable to them. The appellant also cross examined the police witnesses in relation to their powers under the Police Administration Act.

[113] In relation to the Anti-Discrimination Act, the magistrate for good reason held that this legislation was irrelevant. The appellant's exclusion from the Awards ceremony had nothing to do with discrimination against him on the ground of any of the "attributes" set out in s 19 Anti-Discrimination Act. Mr Jenkins did not cross examine Ms Derby to suggest that she had wrongfully discriminated against him on the ground of any statutory attribute.[125] Mr Jenkins attempted to argue on appeal that the Anti-Discrimination Act was triggered because the people who excluded him thought he was mentally ill.[126] However, there was no evidence to support that argument. Moreover, the Anti-Discrimination Act provides its own remedies, which do not include recourse to self-help or assault. Even if there had been a breach of the Anti-Discrimination Act, such breach would not provide a defence to the charges of which the appellant was convicted.

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