PARTIES:	ZANCO, Davina

	AND

	McGEORGE, Stephen Clarence

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	JA48 of 1995

DELIVERED:	Darwin, 12 July 1996

HEARING DATES:	27 March 1996

JUDGMENT OF:	Martin CJ.

CATCHWORDS:

Appeal - Justices - Appeal from finding that offence of disorderly behaviour in a public place was proved - Appellant kicked wheelie bin over and kicked it once again whilst it was lying on its side - Whether a person charged has a right to appeal against the dismissal of a complaint arising from a finding that an offence was proved but the offence was trivial - Prohibition of a right of appeal may operate against a complainant or a person charged.

Justices Act (NT), ss75(2)(a),163 -
Summary Offences Act (NT) -

Collector of Customs v Tallerman & Co Pty Ltd (1975-76) 25 FLR 213, referred to.

Appeal - Justices - Appeal from finding that offence of disorderly behaviour in a public place was proved - Appellant kicked wheelie bin over and kicked it once again whilst it was lying on its side - Facts giving rise to a finding of disorderly behaviour briefly considered - “Substantial breach of decorum” test.

E (A Child) (1994-95) 76 A Crim R 343, referred to.
Barrington v Austin (1939) SASR 130, referred to.
Campbell v Samuals (1979-80) 23 SASR 389, referred to.
Kruger v Humphreys (1968) SASR 75, referred to.

REPRESENTATION:

	Counsel:

	Appellant: Mr Batten
	Respondent: Mr R Noble

	Solicitors:

	Appellant: KRALAS
	Respondent: DPP

Judgment category classification: B
Judgment ID Number: mar96013
Number of pages: 6

mar96013

IN THE SUPREME COURT OF
THE NORTHERN TERRITORY
OF AUSTRALIA

No. JA48 of 1995

	BETWEEN

	DAVINA ZANCO
		Appellant

	AND:

	STEPHEN CLARENCE McGEORGE
		Respondent

CORAM: MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 12 July 1996)

		At about 11pm on 25 May 1995, the appellant and her girlfriend, Diane Horrell, were walking through the Woolworths car park adjacent to the main street of Katherine.  As they passed a motor car the people in it called out and started swearing at them, and there was an oral exchange between them all.  Those in the motor car drove off, and the appellant and her girlfriend sat down on curbing near the car park.  The appellant was angry, got up and walked over to a wheelie bin, kicked it over, and kicked it again after it had come to rest on its side.  Two police officers who were attending to another matter about one hundred metres away, saw the kicking of the bin and approached the appellant.  As they did so she picked the bin up and started to put rubbish into it.  The police say the rubbish came out of the bin, but the appellant says it was rubbish that was on the footpath anyway, but resolving that difference is not important.  The appellant says that she did not intend to cause the bin to tip over when she kicked it, but in her frustration and anger she simply wanted to kick it.  She was charged on summons as behaving in a disorderly manner in a public place, namely, Katherine Terrace, the street adjacent to the car park, in that whilst on Katherine Terrace she pushed over a wheelie bin and kicked it numerous times.  His Worship amended the complaint by deleting “numerous times”, not being satisfied that that was made out.  Although not making a formal finding that the offence was proved, it is implicit in the result in that he “cautioned and discharged” the appellant without proceeding to conviction.  From that the appellant appeals upon the grounds, in summary:

1.	That the learned Magistrate erred in holding that
the behaviour as found was disorderly within the meaning of the Summary Offences Act in that it did not cause disorder or public disorder and that the defendant had been provoked.
2.	That the learned Magistrate erred in finding 
that the appellant intended or saw the possible consequences of her act.

		The appellant seeks to have the finding that the offence was proved set aside.  In the course of submissions counsel for the appellant also put that what the appellant had done was not so serious as to warrant the interference of the criminal law, as to which see the New Zealand cases referred to by White J. in E (A Child) (1994-95) 76 A Crim R 343 at 350 

		It appears that his Worship proceeded under the provisions of s75(2) of the Justice Act having thought that the charge was proved, but that the offence was of so trifling a nature that it was inexpedient to inflict any punishment.  Without proceeding to conviction, he effectively dismissed the complaint.  Counsel for the respondent submitted that in those circumstances there was no right of appeal to this Court.  Looking at s163 of the Justices Act it provides that a party to proceedings before a Court of Summary Jurisdiction may appeal to the Supreme Court from a “conviction, order, or adjudication of the Court (of Summary Jurisdiction) (including a conviction of a minor indictable offence but not including an order dismissing a complaint of an offence)” on a ground which involves sentence or error or mistake on a matter of fact or law.  Either party to proceedings in the Court of Summary Jurisdiction is given the right to appeal, and it might be assumed that the restriction upon an appeal from an order dismissing a complaint was directed to the prosecutor so that a person who has had a complaint against him or her dismissed should not be placed in jeopardy again.  But on the plain wording of the section, it would appear that there is no right in the person charged to appeal against the dismissal of a complaint even though such a dismissal may have arisen from a finding that an offence was proved, as a basis for the exercise of a discretion to dismiss the complaint because the offence was trivial.  There is no good reason as to why the prohibition on a right of appeal should operate only against a complainant.  The appeal is incompetent.  The appellant may perhaps take some comfort in the following words of Street CJ., Nagle and Begg JJ. in Collector of Customs v Tallerman & Co Pty Ltd (1975-76) 25 FLR 213 at 215:

“The dismissal is no mere technicality - it is a substantive dismissal.  It contains no element of conviction and hence no element of sentence.”

		As interesting as it may have been, there is thus no need for me to enter upon the debate as to whether or not the facts in this case could give rise to a finding of disorderly behaviour.  It is a matter of fact for the Tribunal to determine bearing in mind the various tests that have been suggested, including whether or not what is alleged to have occurred amounted to a substantial breach of decorum tending to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place (per Napier J. in Barrington v Austin (1939) SASR 130, at 132, and as adopted in that State in a number of reported cases including Campbell v Samuals (1979-80) 23 SASR 389 and also Kruger v Humphreys (1968) SASR 75).  The requirement that there be a “substantial breach” may well be a matter to be taken into account in consideration of whether what is alleged is serious enough to warrant the inference of the criminal law. 

		The appellant contends that his Worship had not dismissed the complaint pursuant to s75(2)(a).  His Worship certainly did not use those words, but given that his only power after hearing the parties is to consider and determine the whole matter, and either convict or make an order against the defendant or dismiss the complaint, as the case may require (s69 Justices Act), it is clear enough that that is what he purported to do.  There was no conviction and no order against the defendant.  It would be preferable if the language of the statute were used.

		The appeal is dismissed.