Margarula v Rose [2000] NTCA 12

[2] The appellant was convicted and ordered to pay a fine of $500 and a victim levy of $20.

[3] The appellant appealed against her conviction and sentence to the Supreme Court. Riley J dismissed both appeals on 12 March 1999. The appellant appeals to this Court against only her conviction.

[4] At the hearing before the Court of Summary Jurisdiction, the matter proceeded largely by way of agreed facts. The only witnesses called were Mr Holger Tropp, an employee of Energy Resources of Australia ("ERA") and the appellant.

[5] The agreed facts as contained in Exhibit 1 before the learned magistrate were as follows:

"At 4.30am on Tuesday the 19th May 1998 Senior Constable Campbell was on duty with Sergeant O'Sullivan, Senior Constable Gray, Senior Constable Lawrence and Constable Edwards. It was still night time. They were at the main gate inside the fenced off area of the portal mine site.

The portal mine site is surrounded by an 8 feet high cyclone and barbed wire fence. About 300 metres north of the main gate, and still within the fenced off portal mine site, is a cargo shipping container. At this time the officer (sic) could see lights in the area of the container. Senior Constable Campbell, Senior Constable Gray, Senior Constable Lawrence and Sergeant O'Sullivan walked to the container area. They could see several persons on top of the container which is approximately 8 feet tall.

Senior Constable Lawrence and Senior Constable Campbell walked up to the container. A torch light was shone on them and they could hear the persons on the container talking. Campbell said, `It's the police', then climbed to the top of the container and Senior Constable Lawrence climbed up after him. Sergeant O'Sullivan and Senior Constable Gray stayed on the ground at the base of the container.

Campbell and Lawrence saw five adults and a young boy on top of the container. Campbell walked up to each of the defendants - Yvonne Margarula, Christine Crough-Christophorsen, Reuben Nango and Jacqueline Katona, and said to each of them that they were not allowed to be there. Margarula, Crough-Christophorsen, Nango and Katona were each told to leave by Campbell to which each replied `No.' Campbell then arrested each defendant.

Campbell, Lawrence and the defendants all waited on top of the container for a few minutes while Senior Constable Gray returned to the main gate, got a police Toyota troop carrier and drove it to the container. Margarula and the other defendants were taken down from the top of the container and put in the rear of the troop carrier with the other persons who had been on the container and driven to the portal main gate. The defendants were then transferred to a Police general duties vehicle and driven by general duties Police to Jabiru Police Station. The named officers had no further dealing with the defendants. Senior Constable Lawrence and Senior Constable Campbell found on the container a make-shift ladder, apparently used to get to the top of the container, several tins of paint and brushes on top of the container and the words `support Aboriginal rights' painted on the top of the container in 18 inch high letters. In possession of the persons on the container was a video camera and a satellite telephone, flares, Aboriginal flags, copies of a media release, paint filled eggs and food and water. The painting was fresh, it was still wet."

[6] Two further exhibits enlarged the agreed facts. Exhibit 10 included the following:

"When Senior Constable Campbell and Senior Constable Lawrence arrested Jacqueline Katona, she requested that the defendant be allowed to stay until dawn."

"On Monday 18 May 1998, Paul Leadbeater, a helicopter pilot based in Jabiru, was told that the ABC wanted a helicopter for the next morning to do some filming of the Jabiluka mine site.

When he got back to his office at Jabiru he called the ABC and explained that the Jabiluka mine site was a restricted area and that the ABC would need permission from the Police or ERA. Mr Leadbeater was told that the ABC would organise it for first light the next morning.

On the evening of 18 May 1998, Mr Leadbeater spoke with Andrew Jackson from ERA. Mr Leadbeater was advised that ERA had not given permission to use the restricted airspace. Mr Leadbeater then telephoned the Police and advised them of the request to hire the helicopter.

At about 5.30am on 19 May 1998, Mr Leadbeater received a phone call from the ABC film crew wanting to be taken in the helicopter to Jabiluka. Mr Leadbeater refused."

[8] Upon the agreed facts and the evidence, the learned magistrate relevantly held:

(a) the storage container fell within the definition of "enclosed premises" provided by s 4(1) of the Trespass Act;

(b) the container was "land" for the purposes of the rights of entry, occupation and use of Aboriginal land conferred on the appellant under s 71 of the Aboriginal Land Rights (Northern Territory) Act of the Commonwealth ("ALRA");

(c) the action taken by the appellant was not an entry, occupation or use of land in accordance with Aboriginal tradition such as to be authorised by s 71(1) of the ALRA;

(d) in any event, even if the appellant's entry, occupation or use of the land was in accordance with Aboriginal tradition, such entry, occupation or use would interfere with the use or enjoyment of ERA's estate or interest in the land within the meaning of s 71(2) of the ALRA; and

(e) the appellant was not excused from criminal responsibility (pursuant to s 30(2) of the Criminal Code) on the basis that her action was taken "in the exercise of an honest claim of right" because the appellant's claim was not honest.

[9] The grounds of appeal are set out at some length in document entitled "Further Amended Grounds of Appeal", filed on 21 July 2000. However, Mr Woinarski, counsel for the appellant summarised the grounds as raising two issues:

(a) whether the rights conferred on the appellant by s 71 of the ALRA authorised her to be on the land subject to the Jabiluka Mineral Lease such that the appellant could not "trespass" on it for the purposes of s 5 of the Trespass Act; and

(b) even if the appellant was a trespasser, whether the learned magistrate could be satisfied beyond reasonable doubt that she had no honest belief that she was entitled to take the action taken by her.

"(1) Subject to this section, an Aboriginal or group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.

(2) Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an Aboriginal Council or other incorporated association of Aboriginals."

[11] It is common ground that the storage container upon which the appellant was found to have trespassed was situated upon Aboriginal land which is subject to the Jabiluka Mineral Lease held by ERA. It is also common ground that the appellant is a senior traditional owner of that Aboriginal land. Section 71 of the ALRA is concerned with the rights of Aboriginals, including the appellant, to enter, occupy and use Aboriginal "land". During the course of submissions Ms Webb, on behalf of the respondent, sought and received an extension of time to file a notice of contention challenging the learned magistrate's finding that the storage container was "land". The respondent contended that as a matter of fact or law, the learned magistrate's finding that the container was "land" is erroneous in the light of certain evidence given by Mr Topp. The respondent further contended that the decision of Riley J to dismiss the appellant's appeal can be upheld on the basis that the container was not land and accordingly s 71 of the ALRA has no application to the presence of the appellant on the container.

[12] In the light of the respondent's notice of contention, the appellant sought and received leave to file a supplementary ground of appeal in the following form:

"If the container was a chattel, the prosecution has failed to prove beyond reasonable doubt that under the terms of the agreement and the lease, ERA was entitled to place the container where it had."

[13] The "agreement" referred to in the additional ground of appeal is an agreement concerning the Jabiluka Uranium Project entered into, pursuant to s 43 of the ALRA between the Northern Land Council and ERA's predecessors in title to the Jabiluka Mineral Lease.

[14] It is convenient first to address the respondent's notice of contention and the additional ground of appeal.

[15] In his reasons for decision, the learned Magistrate noted that the ALRA does not define "land". After considering and rejecting the application of definitions of "land" in the Real Property Act and the Mining Act, the learned magistrate concluded:

"...what we are left with is this: that one falls back on the established common law legal meaning of land. And, in my opinion, it does include the structure in this case, namely the container."

[16] The learned magistrate did not further elaborate his reasons for finding that the container is (Aboriginal) "land" to which s 71 of the ALRA may have application.

[17] Ms Webb submitted that, having regard to the evidence of Mr Topp, the learned magistrate erred in finding that the container was land rather than a chattel to which the rights afforded by s 71 of the ALRA could have no application.

[18] Mr Topp gave evidence that he was employed as the manager of engineering services for ERA. He had responsibility for engineering services at the Jabiluka site. His evidence was that he had arranged for the storage container to be transferred to the Jabiluka site. His evidence continued:

"Now when the container was moved to the portal compound, can you tell me what the purpose of the container being there was?

---The purpose was to store in a secure area some small items that we had, plus some consumables. For example, we had cement in there, a generator set, drill bits from the drilling gear, drilling liquid. We parked the Uniloader in there, small hand tools for the tradesmen.

And if you were to have erected a permanent structure - - -?

How would you describe a permanent structure that was used for that purpose?---We would have constructed a storage shed.

And is there any reason why you didn't construct a permanent structure, and - any reason why you used a temporary structure instead of a permanent structure?---So that when we'd completed our work we could take it away.

So there was no need to construct a permanent structure?

[19] The above evidence, in particular, the temporary nature of using the container for storage of equipment was not challenged by the respondent. Mr Topp did not give evidence as to the extent to which the container was annexed to the land. However, a letter dated 11 March 1998 from ERA to the Minister of Resource Development (Exhibit 3) indicated that:

"The storage unit will be a conventional seatainer mounted on concrete blocks..."

[20] In the present case, the following matters from the (unchallenged) evidence of Mr Topp appear relevant to whether the container remained a chattel or had become a fixture:

(a) the container was a standard shipping sea container;

(b) the container was moved to the Jabiluka site from another mineral lease owned by ERA;

(c) the purpose of placing the container at the Jabiluka site was to store some small items and consumables and to provide a secure parking area for a Uniloader; and

(d) a shipping container was used in preference to constructing a storage shed because there was no need for a permanent structure and the container could be taken away once ERA's work was completed.

[21] The temporary nature of the "work" with which the container was associated also emerged from the evidence of Mr Topp and various documentary exhibits (Exh Nos. 3 and 5). In essence, the evidence was that the container was to be used to store equipment and materials used in the construction of a security fence on part of the Jabiluka Mineral Lease and for use in environmental monitoring and other work being carried out prior to the commencement of construction or mining activities.

[22] In the light of the above considerations, in particular, the nature of the chattel, the temporary nature of its intended use for storage and Mr Topp's evidence that ERA intended to remove it once its temporary purpose was served, we consider that the learned magistrate was in error in characterising the container as "land" for the purposes of s 71 of the ALRA. In reaching this conclusion, we have not overlooked the indication in Exhibit No. 3 that the container was to be "mounted on concrete blocks". The degree to which the container was annexed to concrete blocks did not emerge in the evidence. The available evidence concerning annexation falls a long way short of undermining the strong evidence that the container was intended to retain its status as a chattel.

[23] On the evidence we have reached the conclusion that the container never formed part of the realty. There is no need to discuss the extensive case law in this area at any length. For present purposes the law is summed up by Lord Macnaghten in the leading English case of Leigh v Taylor [1902] UKHL 1; [1902] AC 157 at 162, in a passage approved by Griffiths CJ in the leading Australian case of Reid v Smith [1905] HCA 54; (1906) 3 CLR 656 at 666:

"Mr Levett has spoken of the Courts changing the law. I do not think the law has changed. The change I should say is rather in our habits and mode of life. The question is still as it always was, has the thing in controversy become parcel of the freehold? To determine that question, you must have regard to all the circumstances of the particular case - to the taste and fashion of the day as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important - and its relative importance is probably not what it was in ruder or simpler times."

[24] In the present case, whatever the degree of annexation, and none is established, the container was never intended to form part of the land. ERA was a temporary occupant of the land and had placed the container thereon for temporary purposes accessory to its mining operation, not the soil. The container remained a chattel from first to last. This conclusion accords with the House of Lords decision in Wake v Hall (1883) 8 App. Cas. 195 (miner has right to remove building erected for mining purposes), with Stephen v Bell [1934] WALawRp 24; (1934) 37 WALR 52 at 56 (house built on mining lease for manager of mine held a chattel); and with Billing v Pill [1954] 1 QB 70 at 74, 75 (army hut erected for temporary purposes held to be a chattel).

[25] The appellant's additional ground of appeal complains that if the container was a chattel, the prosecution has failed to prove beyond reasonable doubt that under the terms of the agreement and the lease, ERA was entitled to place the container where it had. Mr Woinarski, for the appellant, made lengthy and complex submissions in an attempt to demonstrate that the only purposes for which the container was placed on the Jabiluka site was in connection with work which had not received the necessary approvals under the terms of the agreement for the Jabiluka project and the mineral lease held by ERA. The factual basis of these submissions is open to serious doubt in the light of Mr Topp's evidence that the container was required for storage of equipment and materials, not only for the building of a security fence, but also for environmental and other work being carried out prior to the commencement of construction or mining activities - and for which ERA did have all the necessary approvals. However, in our view, it is unnecessary to consider the appellant's submissions in the present context. The lawfulness (or otherwise) of ERA placing the container within the boundaries of its (valid) mineral lease was never a matter in dispute before the learned magistrate. There was nothing in the evidence of the appellant to suggest that her actions were in any way directed to challenging ERA's placement of the container on the relevant land or that there was any doubt about ERA's right to place a container within its mineral lease for temporary storage purposes. No submissions were made to the learned magistrate regarding this matter (in contrast to detailed submissions by the parties as to whether the container was a chattel or a fixture).

[26] In the case of In re Ward [1953] SASR 308 at 323, Abbott J referred to the case of R v Higham [1857] EngR 448; (1857) 7 El & Bl 557 at 563 [1857] EngR 448; (119 ER 1352 at 1355) in which Erle J said:

"On all trials much is taken by all parties as assumed, and only those facts really in dispute strictly proved. In such cases what is assumed is in proof."

[27] We consider that the principle referred to by Erle J is applicable to the present circumstances. We do not consider that the lawfulness (or otherwise) of ERA's placement of the container is an issue that can be raised at this stage of the proceedings.

[28] It follows from the above that, despite the great deal of attention given to s 71 of the ALRA both before the learned magistrate and Riley J, that provision can provide no authorisation for the appellant's actions in placing herself on ERA's container. Section 71 of the ALRA is limited to rights concerning the entry, occupation and use of land. The provision has no application in relation to chattels. For the avoidance of doubt, we add that we do not intend to say that the status of land upon which a chattel (within the definition of "enclosed premises": s 4(1) Trespass Act) is placed can never be a matter of relevance in the context of an alleged offence under the Trespass Act. It is difficult, if not impossible, to imagine that s 5 of the Trespass Act is intended to create an offence of criminal trespass to a chattel where a person places, for example, a temporary structure, vehicle, caravan, vessel, aircraft or hovercraft on land in respect of which he has no lawful entitlement to do so. That however is not the situation in the present case.

[29] The other issue raised by the grounds of appeal is, that assuming the appellant was a trespasser, whether she could rely on a defence of "honest claim of right" arising under s 30(2) of the Criminal Code.

[30] Section 30(2) of the Code is in the following terms:

"(2) A person is excused from criminal responsibility for an act or omission done or made with respect to, or for an event caused to, property in the exercise of an honest claim of right and without intention to defraud."

[31] Counsel for both the appellant and the respondent have proceeded upon the assumption both before this Court and before Riley J that s 30(2) of the Code applies to an offence contrary to s 5 of the Trespass Act. However, the situation is far from clear.

[32] Section 30(2) appears in Part II of the Criminal Code which is entitled "Criminal Responsibility". Section 22 of the Code provides, subject to some minor exceptions, that Part II does not apply to regulatory offences. Section 30(2) is not included in the specified exceptions.

[33] Section 5 of the Trespass Act is a regulatory offence: s 11(1) of the Trespass Act. Prima facie this would appear to require that s 30(2) of the Code has no application to an offence against s 5 of the Trespass Act. However, the matter is complicated (or confused) because an offence against s 5 is created in relation to a person "who trespasses unlawfully on enclosed premises". "Unlawful" is defined to mean "...without authorisation justification or excuse" : s 1(1) of the Trespass Act. Usually, one would look to Part II of the Criminal Code to ascertain the meaning of "authorisation, justification or excuse". In Kenwright v Hales, JA 74/99, Supreme Court of the Northern Territory, unreported, 28 February 2000, Mildren J observed at para [17] in relation to the interaction of s 11(1) of the Trespass Act and Part II of the Criminal Code:

"It is difficult to reconcile these provisions, and I respectfully suggest that this apparent conflict needs the attention of the legislature."

[34] With respect, we would endorse the observation of Mildren J. In the case before his Honour, as with the present case, no argument was addressed to the Court on this question. There, both parties had assumed that as s 5 of the Trespass Act was a regulatory offence, Part II of the Code (subject to the express exceptions) had no application. Mildren J commented: "I am by no means sure that this is correct". However, it was not necessary for his Honour to resolve the conundrum on the facts before him. In the present case, both sides have assumed s 30(2) applies to an offence against s 5 of the Trespass Act. We consider that probably the legislature intended that to be the case - but it is far from clear that such a result has been achieved by the legislation.

[35] In the present case, it is not necessary to reach a firm conclusion as to the issue because on the assumption that s 30(2) of the Code does apply to an offence against s 5 of the Trespass Act, we are satisfied that no defence of "honest claim of right" is available to the appellant.

[36] On behalf of the appellant, Mr Woinarski has repeated the submissions which were made on the appeal to Riley J. His Honour extensively considered both the law and the learned magistrate's findings. Little, if anything is to be gained from repeating Riley J's analysis of the issue with which we are in general agreement. His Honour, with respect, correctly considered that, in accordance with the High Court case of Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, the appellant's claim of right as a traditional owner whose entitlement to be upon the land (or it may be added, the container) is preserved by the ALRA, if honest, would suffice to raise a defence of honest claim of right.

"[76] 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 vLopatta (1983) 35 SASR 101 at 107; R v Langham (1984) 36 SASR 48 at 51-53; R v Bowman [1987] NTSC 47; (1987) 49 NTR 48 at 54.

[77] It is therefore necessary to consider whether the appellant held a genuine belief that she was entitled to enter upon the land in 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 Margarula's evidence to the effect that she knew she was going to be arrested; she gave evidence that she knew she had to ask ERA's 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 which militate against an honest belief.'

[78] In dealing specifically with the possible defence of a claim of right his Worship said:

`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.'"

[38] His Honour also concluded (at para [80]) that the consistent theme of the learned magistrate's findings 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."

[39] Riley J held that the conclusion of the learned magistrate was consistent with the evidence. We consider that he was correct in that assessment.

[40] For the foregoing reasons, we dismiss the appeal.