Mellifont v Attorney General

Supreme Court of the NT|1999-03-12|Before: Bailey J, Martin CJ

This matter comes before the court purs uant to s162A of the Justices Act

1928 (NT). A complaint having been dismissed, the Magistrate who made

the order was requested by counsel for the Crown to reserve for decision of

this Court what he regarded as being questions of law arising at or in

There is no form prescribed under the regulations to the Justices Act to

initiate the procedure. That employed was adapted for the purpose from the

prescribed form for a reservation on a question of law by the Court under

s162. Given the requirements of s162A(6), that no report of proceedings

under that section shall be published which discloses the name or identifies

the person charged, and that the request was made by counsel for the Crown,

with the consent of the Director, the naming of the complainant as

"applicant" and the person charged as "respondent" in the instituting

I note that in other jurisdictions the cases are titled: "Director of Public

Prosecutions Reference No. of 199 " or the like. I commend that

procedure to those responsible and suggest that the appropriate form be

prescribed without delay. As things stand there is a real risk that the

The material provided by the learned Magistrate as the "statement of the

circumstances out of which the question arose" is extensive, including a full

copy of his reasons. I do not think that is what the legislation envisages, but

for these purposes the following is a summary taken from that material.

The person charged, who I will call "Y" is an Aboriginal and a leader or

senior elder of the Gumatj clan. He has many responsibilities, one of them

being to enforce Aboriginal law in land which, in Aboriginal terms, the

Gumatj clan owns ("the land"). The Aboriginal law is referred to as Yolngu

law. His responsibility to enforce that law is a responsibility to the land of

the clan which it occupies and with which it identifies.

The land in question is "Aboriginal land" under the provisions of the

granted pursuant to the operation of s10 of that Act and described in

Schedule 1 to it. His Worship found as a fact that it is wrong for a stranger

to come into or onto the land without the permission of the senior elder, and,

more importantly for these purposes, it is wrong for a person to take a

photograph of the land for commercial purposes without permission. His

Worship accepted evidence that if a stranger trespasses or takes photographs

for a commercial purpose without permission, then he is expected to

"expiate his wrong doing" and pay a penalty or make other amends. The

process involves the giving of compensation, and if not given, then more

dire sanctions may follow. The expiation process probably involves an

apology. (It apparently matters not that the stranger is not an Aboriginal nor

that the transgressor is unaware of his transgression).

The incident which gave rise to the complaint took place adjacent to the

Gove Yacht Club premises on 4 April 1997. Part of a grassed area running

to the nearby beach, and the beach itself, is Aboriginal land. A professional

photographer was at the club at the same time as Y. Other Aboriginals

related to Y were there. The photographer was looking for a suitable

backdrop against which wedding photographs could be taken. He went onto

the beach and took photographs. He did not have permission to do so, either

otherwise. Initially Y decided not to confront the photographer, but the

photographer came onto the grassed area on the Aboriginal land and was

invited by a male relative of Y to take photographs of the relatives

children. The relative should have directed the photographer to Y. Y

became aware that photographs were being taken of the children. Y had a

special role to protect the children, including preservation of their spiritual

Y said to the photographer: "Have you taken photographs of the children?",

and the photographer replied words to the effect "Yes, I did". Y then said:

"Yes? Give them $50". The photographer said: "No". Y again said: "Give

them $50" and the photographer again said: "No". Y then approached the

photographer and demanded the film. The photographer said: "What for?"

Y said words to the effect: "You have taken/captured spirit images of the

children". Y again demanded that he be given the film, and the

photographer backed away. Y reached for, and grabbed the strap of the

photographers camera, and pulled it towards himself. There was a tug of

war with the strap, and in pulling the camera strap, Y exerted pressure on

the photographers body. Y was successful in obtaining the camera, opened

it, removed the spool of film, tried to tear it, and placed it in a rubbish bin.

His Worship found that it was an offence against Gumatj land, also an

offence against Yolngu law, for the taking of photographs for commercial

purposes, whilst on Gumatj land, without the permission of the senior elder

or senior member present. Under Yolngu law, the image of the land is

valued highly; it is believed that reproduction of an image of the land

interferes with Yolngu law because it diminishes the integrity or strength of

the wholeness of the land. In Yolngu law, land includes not only the

physical features of the landscape, but as well, the people who identify with

the land, in this case the Gumatj people. A photograph taken on Gumatj

land of a Gumatj person or of a part of the landscape is an image of the land.

A photograph of a Gumatj person on Gumatj land captures the spirit of that

person on the land. That spirit is important to the land for it is part of the

At the conclusion of the prosecution case, Y stood charged for unlawfully

assaulting the photographer contrary to s188(1) of the Criminal Code 1983

(NT), unlawfully damaging the photographers Kodak slide film to the value

of $18, and unlawfully damaging the camera. As to the damage to the

camera, his Worship expressed himself not to be satisfied beyond reasonable

doubt that the damage was attributable to any act of Y. He was satisfied

beyond reasonable doubt that he had applied force to the photographer

without the photographers permission, and intended to apply that force to

him. As to the damage to the film, his Worship expressed himself so

satisfied that Y had damaged the film by removing it from the ca mera and

exposing it to light and that he intended to damage it.

However, his Worship was not satisfied that the prosecution had succeeded

in proving beyond reasonable doubt that Y had not acted in the exercise of a

right granted or recognised by law, and that he had not exercised an honest

"... held an honest belief that he was entitled to act as previously

stated. He held that belief by virtue of his position and upbringing in

Yolgnu society. He is an enforcer at Yolgnu law on Gumatj land

having been trained to enforce Yolgnu law on Gumatj land. He was,

to use a possible crude example, performing the combined roles of

policeman, tribunal of fact (or summary judge), sentencing judge and

The respondent held an honest belief that he had a right to seize the

camera and destroy the slide film as an incident of his obligation as

to law enforcer on Gumatj land to enforce Yolgnu law. Under the

Aboriginal customary law called Yolgnu law the respondent had an

interest to ensure that Mr McRostie did not profit from his behaviour

which was wrong under Yolgnu law. The respondent held an honest

belief that Mr McRosties behaviour was wrong by virtue of his (the

respondents) upbringing and training. He honestly believed that Mr

McRostie, who was a stranger to Gumatj land, by taking photographs

of the children without his permission had captured the spirit image

The prosecution failed to negative the excuse honest claim of right

without intention to defraud for the simple reason that I accepted that

the respondent acted honestly and reasonably as an enforcer of

Yolgnu law on Gumatj land when he seized the camera and destroyed

The questions of law said to arise at or in connection with the hearing are

For the purposes of s.30(2) Criminal Code (NT) in order to

claim an honest claim of right is it sufficient that the accuseds

actions are predicated on the belief that he is to be entitled to

Can traditional Aboriginal law found an honest claim of right

Does that honest claim of right have to relate to a possessory

or proprietary right as referred to in Walden v Hensler (1987)

Can the right I have found as having been exercised by the

respondent correctly be categorised as a right giving rise to an

honest claim of right within the meaning of s.30(2)?

Can an honest claim of right ever excuse a non -property

offence such as assault even if that non-property offence is

said to be committed in the furtherance of the honest claim of

Does the fact that the alleged offences were committed on land

to which the Aboriginal Land Rights Act (Northern Territory)

1976 (Commonwealth) applies affect the existence of the

Does the belief held by the respondent amount to a mistake of

law in that he thought he was justified in doing what he did or

does it amount to a mistake of fact in that he thought that the

images on the film were property in which he held a

If the finding to (g) was that it was a mistake of fact, what was

the nature of that possessory or proprietary right?

On the facts in this case is s.26(1)(a) of the Criminal Code

(NT) capable of authorising the impugned behaviour of the

Can the reference to ... right granted or recognized by law ...

in s.26(1)(a) Criminal Code (NT) be interpreted to include

Aboriginal customary law or is it limited to a law created by

the Northern Territory or Commonwealth legislatures."

Question of law arising at or in connection with the hearing

The Northern Territory provision appears to be somewhat wider than that in

other jurisdictions in that it introduces the concept of questions arising "in

connection with" the hearing. There are a number of recent cases on the

provisions elsewhere which are applicable notwithstanding the apparently

In Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 the High Court

considered a similar procedure under Queensland law. Mason CJ, Deane,

"The statutory procedure, which has its counterparts in other

Australian jurisdictions, is a standard procedure for correcting error

of law in criminal proceedings without exposing the accused to

double jeopardy. It is a procedure which was designed to enable the

Crown to secure a reversal of a ruling by a trial judge without

infringing the common law rule that the Crown cannot ap peal against

a verdict of acquittal, a rule which precluded a review of the trial

judges ruling at the instance of the Crown in the case of an

acquittal. The fundamental point, as it seems to us, is that s669A(2)

enables the Court of Criminal Appeal to correct an error of law at the

It does not enable a judicial roving commission. In Attorney-General's

Reference (No. 3 of 1994) [1997] UKHL 31; [1998] AC 245 the House of Lords dealt with the

Criminal Justice Act 1972 s36(1) which provides "...the Attorney-General

may, if he desires the opinion of the Court of Appeal on a point of law, refer

that point to the Court..." At p265 Lord Mustill said that those words

imposed an essential restriction. His Lordship continued:

"The courts have always firmly resisted attempts to obtain the

answers to academic questions, however useful this might appear to

be. Normally, where an appeal is brought in the context of an issue

between parties, the identification of questions which the court

should answer can be performed by considering whether a particular

answer to the question of law might affect the outcome of the

dispute. The peculiarity of a reference under the Act of 1972 is that

it is not a step in a dispute, so that in one sense the questions referred

are invariably academic. This peculiarity might, unless limits are

observed, enable the Attorney-General, for the best of motives, to

use an acquittal in a point of law to set in train a judicial roving

commission on a particular branch of the law, with the aim of

providing clear, practical and systematic solutions for problems of

current interest. This is not the function of the court, and the words

emphasised in section 36(1) were in my view designed to keep

Attorney-Generals references within proper bounds."

Approved: Director of Public Prosecutions (Cth) Reference No. 1 of 1996

[1998] 3 VLR 217 (CA) at 226 per Winneke P; Director of Public

Prosecutions Reference No. 1 of 1996 [1998] 3 VR 352 (CA) at 356 per

Nor are hypothetical questions permitted. Australian courts have refused to

entertain hypothetical or academic questions: Bruce v Commonwealth Trade

Marks Label Association [1907] HCA 41; (1907) 4 CLR 1569 at 1571; In re Judiciary and

Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265-267.

Even in references by the DPP or Attorney-General, questions which did not

arise at trial, or were the exercise of discretion are not appropriate to

In Director of Public Prosecutions Reference No. 1 of 1992 [1992] VicRp 71; [1992] 2 VR 405

(CCA) the questions referred were not answered. Marks J giving the leading

"It is the courts duty to give its opinion on the points as formulated

only if it can properly do so. In the first place, to employ the

jurisdiction sought to be invoked by the Director he must establish

that the point is a "point of law". For instance an exercise of

discretion in a certain way is not to be treated as a point of law... In

the second place, it must be shown that the point of law "has arisen"

Crockett and Smith JJ examined the referred question A and said at 407:

"Thus it may be said that, if the question is read down to relate to the

trial, what is sought to be challenged is the exercise of his Honours

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