PARTIES: PETER MARK THOMAS
Complainant
v
GARY WILLIAM MEYERHOFF
Defendant
TITLE OF COURT: Court of Summary Jurisdiction
JURISDICTION: Criminal
FILE NO(s): 20209679
DELIVERED ON: 7 March 2003
DELIVERED AT: Darwin
HEARING DATE(s): 21 January 2003, 27 February 2003
DECISION OF: Jenny Blokland SM
CATCHWORDS:
Evidence - Identification Evidence - Surveillance
Tape; Kelleher v R (1974) 131 CLR 534; Powers v R NTCCA 2; R v Gorham (1997)
68 SASR 505; Smith v R (2001) 181 ALR 354
Criminal Responsibility- Criminal Damage; ss 31 251Criminal Code; Director of
Public Prosecutions Reference No. 1 of 2002; Pregelj v Manison (1987) 51 NTR1;
Samuels v Stubbs [1972] 4 SASR 2003; Hardman v Chief Constable Avon [1986] Crim
LR 330; "A" (a juvenile) v the Queen [1978] Crim LR 689; Coughlin
v Thomas (1998) NT (SC); unreported; Kearney J; Summary Offences Act.
REPRESENTATION:
Counsel:
Complainant : Ms Sanderson
Defendant: Self Represented
Solicitors:
Plaintiff: ODPP
Defendant: Self Represented
Judgment category classification: B
Judgment ID number: [2003] NTMC 009
Number of paragraphs: 23
IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20209679
BETWEEN:
PETER MARK THOMAS
Complainant
AND:
GARY WILLIAM MEYERHOFF
Defendant
REASONS FOR DECISION
(Delivered 7th March 2003)
Jenny Blokland SM:
1. Two primary issues that require determination
in this matter, are first, whether the defendant has been identified to the
criminal standard as the perpetrator and second, whether sticking up posters
in the circumstances of this case amounts to unlawful criminal damage contrary
to s 251 of the Criminal Code.
BACKGROUND FACTS
2. Evidence has been given that on 30 May 2002, relevant employees of the Darwin
Bus Company attended work and pulled down 18 posters out of around 60 or so
that had been placed on partitions at the Palmerston bus exchange. The remaining
posters needed to be cleaned off by professional cleaners who were engaged at
a cost of $ 68.20 (being the amount of the damage alleged in the complaint).
3. There was some evidence that when cleaned, there were small scratches left
behind, but in essence it is the cleaning costs that are alleged to be the damage.
The scratches do not constitute the damage alleged. There was also evidence
from the investigating police officer that he viewed a surveillance tape showing
two persons placing some posters up in the area; that he made enquiries with
other officers who directed him to separate television news footage of the defendant;
that those officers identified the defendant and that as a result of this material,
the investigating officer formed the view that that the defendant was one of
two persons in the video tape.
IDENTIFICATION EVIDENCE
4. For the prosecution case to succeed, it must be proven beyond reasonable
doubt that the defendant was one of two persons in the video surveillance tape.
The surveillance tape was played in the proceedings, and, as I indicated to
the parties, I have separately viewed the tape again in attempting to resolve
this issue. While I have taken into account the evidence of the investigating
officer and his opinion that the person in the tape is the defendant, the nature
of this case has required me to satisfy myself beyond reasonable doubt that
the defendant is in fact the person on the surveillance tape.
5. In my view the identification evidence of the officer was honestly given.
But I do have to direct myself in accordance with Kelleher R (1974) 131 CLR
534 and many other cases decided since that honest and well meaning witnesses
can be mistaken and this can lead to miscarriages of justice. The circumstances
of this case do require me to form my own opinion.
6. The court in these proceedings has not had the benefit of the news footage,
nor the evidence of the views of the officers that formed the basis of the identification
made by the officer in charge of this case. I consider the type of identification
asserted here to be analogous to the circumstances referred to by the Court
of Criminal Appeal (NT) in Powers v R, [2000] NTCCCA 2.
7. In Powers v R the Court of Criminal Appeal adopted R v Gorham (1997) 68 SASR
505 noting -
"...it is important for the prosecution to lead evidence of all the relevant
circumstances ...." . It is also important to know the details of any conversation
which might have taken place at the time of identification between the witnesses
and police officers or other persons associated with the prosecution"
8. Although Powers v R involved an identification in the precincts of the court,
there are important analogies with this case. It was important for the prosecution
to play the film footage used by the investigator that assisted him in coming
to the conclusion that he did. Without it, I am essentially left to comparing
the surveillance tape myself with the defendant. Although impressionistically
there are similarities with the defendant, I am not prepared, bearing in mind
all of the dangers associated with identification to find, beyond reasonable
doubt that the defendant is the person in the surveillance tape. Ms Sanderson
referred the court to Smith v R (2001) 181 ALR 354. If anything, that authority
bolsters my opinion. In Smith v R a majority of the High Court and in the context
of the NSW Evidence Act ruled that evidence from police that they recognised
the appellant from security photos could not rationally affect the jury's assessment
of the fact in issue and should not have been received.
CRIMINAL DAMAGE
9. If I am wrong in the conclusions concerning identification, then in any event,
I am of the view that putting up posters is not necessarily prima facie criminal
damage. In legal theory it could be criminal damage, but it may not be.
10. Criminal damage is a crime under the Criminal Code. To prove criminal damage
requires proof of the act or event coupled with proof of the requisite mental
element, here governed by s 31(1) and (2) Criminal Code (NT).
11. The application of s 31 has recently been considered by the Court of Criminal
Appeal in Director of Public Prosecutions Reference No. 1 of 2002. Although
that reference concerned the application of ss 31 and 32 of the Criminal Code
(NT) to s 192(3) sexual assault, it represents the most recent jurisprudence
on issues of intent and foresight under the Criminal Code (NT). That decision
confirms my long held suspicion that the threshold for proving criminal responsibility
in the Northern Territory is high compared to other jurisdictions, both common
law based and Code based. In other words, in practical terms the very structure
of criminal responsibility in the Northern Territory is that in many instances,
it will be more difficult for the prosecution to prove the mental element than
in comparable jurisdictions.
12. At par [68] Bailey J states
"Accordingly, the Criminal Code (NT) stands alone in excusing a person
for criminal responsibility for an unintended and unforeseen event."
13. This follows a line of authority commencing with Pregelj v Manison (1987)
51 NTR 1 and applied in a variety of circumstances since then.
14. To prove criminal damage, the prosecution must prove beyond reasonable doubt
that the accused intended or foresaw, (as a possible consequence), the damage.
It stretches my legal imagination to say that proof of putting up posters that
can fairly easily be removed proves beyond reasonable doubt that a defendant
intended or foresaw damage. As mentioned to the parties at the prima facie case
stage, I am aware of authorities in common law jurisdictions concerning the
meaning of damage.
15. As I mentioned at the prima facie case level, I do recall when a number
of protestors were prosecuted for chaining or handcuffing themselves to mining
equipment machinery at Jabiluka, there was some debate in legal circles on whether
the removal of the protestors by police cutting the chains or handcuffs was
appropriately dealt with as criminal damage of the machinery.
16. My researches indicated that on the face of it, criminal damage may and
I stress may be proven if there is a "temporary functional derangement"
of the particular article of property - so held in Samuels v Stubbs [1972] 4
SASR 2003 involving the crushing of a police officers cap; graffiti that could
be washed away by rain in Hardman v Chief Constable of Avon [1986] Crim LR 330
was held to be criminal damage; however in "A" (a Juvenile) v the
Queen [1978] Crim LR 689 concerning spitting on an officer's jacket, it was
said
"that when interpreting the word "damage," the court must consider
the use of an ordinary English word. Spitting at a garment could be an act capable
of causing damage. However, one must consider the specific garment which has
been allegedly damaged. If someone spat upon a satin wedding dress for example,
any attempt to remove the spittle might in itself leave a mark or stain. The
court would find no difficulty in saying that an article bad been rendered "imperfect"
if, after a bold course but, reasonable attempt at cleaning it, a stain remained.
An article might also have been rendered "inoperative" if, as a result
of what happened, it had been taken to dry cleaners. However, in the present
case, no attempt had been made, even with soap and water, to clean the raincoat,
which was a service raincoat designed to resist the elements. Consequently,
there was no likelihood that if wiped with a damp cloth, the first obvious remedy,
there would be any trace or mark remaining on the raincoat requiring further
cleaning. Furthermore, the rain coat was not rendered "inoperative"
at the time; if it was "inoperative," it was solely on account of
being kept as an exhibit:"
17. In my view, I would be hard pressed to find that there was intent or foresight
to produce a "temporary functional derangement" of the partition.
There is no evidence before the court on the functions of the partitions. In
submissions Mr Meyerhoff suggested they were wind breaks. The fact that a number
of posters were so easily removed makes it hard to accept beyond reasonable
doubt proof of intent or foresight.
18. It may be a different matter if the prosecution had charged simply "bill
posting" under the Summary Offences Act in this type of situation. All
that would need to be proved is the intent to post the bills. On a finding of
guilt, appropriate orders of restitution or compensation could be made that
compensates for the very real nuisance this behaviour brings on the public.
This conclusion is a simple consequence of the rules of criminal responsibility
as expressed in the Criminal Code (NT). Nothing in Coughlin v Thomas (1998)
unreported (NT) (SC) Kearney J deters me from this view. In any event Coughlin
represents a view of criminal responsibility not informed by the most recent
decision being DPP Reference No. 1 of 2002 and further in Coughlin evidence
of foresight of damage was inferred.
19. I consequently dismiss this charge.
20. I make one observation in dismissing this charge. The defendant has essentially
alleged bad faith on the part of the police and the prosecutor.
21. I reject that
22. The investigation and prosecution proceeded in good faith. The test prosecutors
must use is necessarily different to that of the courts. The prosecution use
the test of reasonable prospect of conviction, however this Court's function
is one of proof beyond reasonable doubt. I dismiss the charge but my ruling
should not be taken as an indication that the court considers the prosecution
to be brought in bad faith.
23. A copy of the formatted Judgement will be forwarded to the parties.
Dated this 7th day of March 2003.
_________________________
JENNY BLOKLAND
STIPENDIARY MAGISTRATE