Margarula v Rose [1999] NTSC 22; 149 FLR 444

defence of honest claim of right under s22. Nor does an honest

belief of some special entitlement to do the particular act with

respect to property necessarily constitute such a defence. An honest

belief of a special entitlement to do the act with respect to the

property, such as belief of ownership, will only constitute a defence

under s22 of the Code if that entitlement would, if well founded,

preclude what was done from constituting breach of the relevant

criminal law which an accused is assumed to know ... in other words,

it is not to the point to establish an honest belief of a special

relationship with property which, even if it existed, would not

Dawson J made the following observations at 592 -593:

"It is not ignorance of the criminal law which founds a claim of

right, but ignorance of the civil law, because a claim of right is not a

claim to freedom to act in a particular manner � to the absence of

prohibition. It is a claim to an entitlement in or with respect to

property which goes to establish the absence of mens rea. A claim of

that sort is necessarily a claim to a private right arising under civil

law: see Cooper v Phibbs, per Lord Westbury. As Hanger J pointed

out in Olsen: "section 22, after stating that ignorance of the law is no

excuse, does not proceed to say that ignorance of the law is an

excuse in the case of an offence relating to property for an act done

with respect to property. It refers to an act done in the exercise of an

honest claim of right and without intention to defraud."

Toohey J considered the matter at 601-602 where he said:

"The second paragraph of s22 stands by way of qualification to the

preceding paragraph. Ignorance of the law affords no excuse for an

act or omission unless knowledge of the law is expressly declared to

be an element of the offence concerned. And so it would be no

answer to the charge against the appellant that he was unaware of the

provisions of the Fauna Conservation Act or he misunderstood its

provisions. Thus in Olsen a claim by the appellants that they could

buy sorghum from any person because they honestly but wrongly

believed that the provisions of certain marketing Acts did not apply

to their transaction was seen by Mansfield CJ to amount to a claim

"that because they were ignorant of the law they were not criminally

Equally a belief on the part of a person charged with an offence that

his act or omission was morally justified does not of itself attract the

operation of the second paragraph of s22. The paragraph is more

limited, not only by reason of its reference to proper ty but also

Later his Honour observed that it was no answer to the section that the right

claimed by the appellant had "no existence in law" and he quoted from

Bernhard (1938) 2 KB 246 at 270 where Charles J, delivering the judgment

"We are, however, bound by a long series of decisions ... to hold that

this view is incorrect, and that a person has a claim of right ...if he is

honestly asserting what he believes to be a lawful claim, even tho ugh

"Section 22 of the Criminal Code is in two parts: the first part gives

expression to the principle encompassed in the maxim "ignorantia

juris non excusat"; the second part provides, not by way of

exception, but by way of qualification to this principle, the defence

of claim of right. Such a defence is not constituted by mere

ignorance of the criminal law, and therefore must have some

foundation or basis independent of a mere belief in a liberty to

engage in that which is not unlawful. Equally, however, ignorance of

the criminal law does not preclude the assertion of a supposed right,

notwithstanding that such assertion involves a belief, founded in

ignorance, that conduct proscribed by the criminal law is lawful."

Turning to the circumstances of the present case the appellant is presumed

to know the law by virtue of s30(1) including that it is a criminal offence to

unlawfully trespass upon "enclosed premises" as defined in the Trespass

Act. The basis of her honest claim of right pursuant to s30(2) depends upon

an assertion that, by virtue of the preservation of rights of entry, use and

occupation in accordance with Aboriginal tradition, found in s70(1) of the

ALRA she had a right to be upon the land notwithstanding the interest of

ERA in that same land. As I understand it hers is not a claim based upon

Aboriginal customary law alone but rather one based upon a statutory

recognition of Aboriginal tradition. This being so the claim does not suffer

the complication that existed in Walden v Hensler (supra) where the

appellant relied upon customary rights which did not have recognition in the

The claim of right made by the appellant was simply expressed. She is a

traditional owner and as such is entitled to be upon the land. That

entitlement is preserved by the ALRA. If that was an honest claim then in

the circumstances of this matter, according to the views expressed by each

of the members of the High Court in Walden v Hensler (although for

different reasons), this would suffice to raise a defence of honest claim of

The defence of honest claim of right having been raised it is for the

prosecution to show beyond reasonable doubt that the appellant was not

exercising an honest claim of right. For the defence to apply the belief of

the appellant must be genuinely held. It need have no foundation in law or

fact and it need not be reasonable. However reasonableness is a factor

which is part of the objective circumstances which may be considered in

determining the issue of genuine belief, R v Lopatta (1983) 35 SASR 101 at

107; R v Langham (1984) 36 SASR 48 at 51-53; R v Bowman (1987) 49 NTR

It is therefore necessary to consider whether the appellant held a genuine

belief that she was entitled to enter upon the land in the circumstances that

prevailed. His Worship found the appellant did not have a relevant genuine

belief. He said in dealing with the possible defence of mistake of fact:

"I am satisfied beyond reasonable doubt that any such mistake of fact

was not honest and I rely upon � in that regard I rely upon Yvonne

Margarulas evidence to the effect that she knew she was going to be

arrested; she gave evidence that she knew she had to ask ERAs

permission to go into the portal compound and that she did not have

permission to go on the container. So I really think they are matters

In dealing specifically with the possible defence of a claim of right

"However, the claim of right must be honest. I do not believe the

claim of right was honest for the same reasons that I found that � in

the context of mistake of fact � the belief was not honest, and finally,

in any event, even if the claim of right was honest � I withdraw that.

In relation to claim of right, it is not required that the claim of right

also be reasonable. However, the law is clear that in deciding

whether or not a claim of right is honest, one looks at the

reasonableness of a claim that is being made. In the context of claim

of right, I am satisfied beyond reasonable doubt that the claim was

not honest for the reasons I gave earlier and in coming to that

conclusion I have also relied upon the reasonableness of the claim."

Having made those findings his Worship was, at a later time, addressed by

different counsel in relation to matters regarding sentence. The topic of the

state of mind of the appellant upon entering the land was once again

discussed and additional matters were placed before his Worship from the

bar table and without calling further evidence. His Worship was informed

that prior to entering upon the land the appellant had "received some

advice" and believed it "was arguable" that there was existing some right

and that she sought to "test the existence of that right". It was put to

his Worship that this submission, which was being made on sentence and

was unsupported by any evidence, "doesnt equate to an honest belief in a

On appeal the appellant complained that some of the remarks made by

his Worship in sentencing were not consistent with what had been said at the

time of making the finding of guilt and "the learned Magistrate appeared to

abandon his finding that the appellants belief was not honest, and instead

criticised it for being unreasonable." A reading of the discussion between

counsel and his Worship makes it clear that his Worship was considering all

the circumstances, including the objective circumstances of the entry onto

the land, when he determined that the belief claimed by the appellant was

not genuine. It was in that sense that the issue of reasonableness was

addressed. Whilst his Worship, in the course of his remarks on sentencing,

referred to the belief of the appella nt and that she had "rights" which she

wished to "test" he did not depart from his earlier conclusion that "it wasnt

a genuine claim of right". The consistent theme was that, although the

appellant had some belief that she was able to test some undefined rights in

relation to entry upon the land, when she entered the land on this occasion

she was not exercising an honest claim of right in so doing. The conclusion

In the circumstances this ground of appeal must fail.

"The conviction was unsafe and unsatisfactory, in particular in

the lack of clarity of both prosecution and defence evidence

Magistrate's reasons for decision, and in his subsequent

In determining whether a verdict is unsafe or unsatisfactory I must consider

whether, upon the whole of the evidence, it was open to his Worship to be

satisfied beyond reasonable doubt that the appellant was guilty. I must bear

in mind that a verdict may be unsafe or unsatisfactory, notwithstanding that

there was evidence sufficient to entitle his Worship to convict, Morris v The

Queen [1987] HCA 50; (1987) 163 CLR 454. The test to be applied is whether a reasonable

tribunal of fact, properly instructed on the law, ought to have entertained a

reasonable doubt, Chamberlain v The Queen [No.2] [1984] HCA 7; (1984) 153 CLR 521.

Each of the individual causes for concern raised by the appellant has been

addressed above. I have revisited the evidence and the findings of

his Worship and find no basis for interference with the conclusions reached.

"The learned Magistrate erred in regarding as an aggravating

factor the intention of the appellant in entering the land to

ventilate her claim of entitlement or her beliefs, and further

erred in regarding as a relevant consideration for the purposes of

sentencing the appellant's involvement in civil litigation

unrelated to the appellant's asserted right to enter the land

pursuant to ALRA and the Jabiluka Project Agreement."

Whilst this ground was not abandoned by Mr Dalrymple, it was not pursued

"On the worst view on the facts that I have before me is that Yvonne

Margarula was responsible for this manoeuvre. However, I think it

would be somewhat na�ve to think that she was the prime mover in

this and Im going to take the more charitable view, is that others

were involved in planning this particular enterprise. However, she

So I think that although one could take the view that she was solely

responsible for this enterprise, I think it would be a bit na�ve to do

that. So Im taking the most favourable, is that others were involved

and she was a willing participant in what amounted to a deliberate,

well planned, well orchestrated invasion of another persons right to

"There were, in my opinion, other avenues open to the defendants to

ventilate their claims of entitlement or their beliefs that they were

entitled to protect traditional Aboriginal land against uranium

mining, and in fact the court did hear some evidence about past court

I think that they are the appropriate forums in which to ventilate

those particular rights. I dont believe its appropriate to ventilate

rights which do or may result in the commission of criminal offences.

Theres a time and place for claim rights to be ventilated. So thats

another point that I think weighs heavily in favour of convictions

He then observed, in response to a submission that the defendants were

testing their rights, that those rights could have been tested in "other ways

apart from bringing these defendants into conflict with the criminal law."

The learned Magistrate found as a matter of fact that the appellant did not

genuinely believe that she had an entitlement to enter upon the land. There

was an evidentiary basis for so finding. He was correct in observing that

other avenues were open to the defendants (including the appellant) to

ventilate their claims and, indeed, he had evidence of the appellant pursuing

other avenues. In the circumstances he was entitled to regard the fact that

the appellant intentionally entered upon the land knowing, or at least

believing, that this would lead to her arrest and forcible removal from the

land as being a factor to be taken into account in determining how this

"The learned Magistrate erred in the exercise of his discretion

under s8 of the Sentencing Act, in particular in his

characterisation of the appellant's offence as "a serious invasion

of ERA's right to peaceable possession of the land".

The submission made by counsel for the appellant in relation to this ground

of appeal was that "its a question of characterisation of what the evidence

was. Id submit that doesnt accord with the evidence."

The basis upon which the learned Magistrate found that this was a serious

invasion was expressed in the following passage from his reasons:

"The trespass in this case, in my opinion, represented a serious

invasion of ERAs right to peaceable possession of the land. I say

its a serious invasion for these reasons, 1; the manner in which the

entry occurred, it was deliberate. Theres no doubt in my mind about

that. It was well planned, well orchestrated. Entry occurred during

night time and presumably so that persons entering would not be

detected. The invasion, of course, extended to entry of the portal

compound. A fence has to be navigated in order to effect the entry.

A ladder was used and also significant in terms of addressing the

seriousness of the invasion of possession is the paraphernalia that

accompanied each of the defendants which I referred to yesterday,

the paint bombs, the flares, a satellite telephone, press releases which

were found in the possession of the defendant. This was a very well

That view was clearly open to his Worship on the basis of the evidence

As was observed by Kearney J in Raggett, Douglas and Millar v R (1990) 50

"It is fundamental that a trial Judges (or Magistrates) exercise of

his sentencing discretion is not to be disturbed on appeal unless error

in that exercise is shown ... the presumption is that there is no error."

In the present case the approach of the learned Magistrate did not reveal any