I advised on this matter on 8 January 1919.⁽¹⁾

The Minister has since returned the papers with the following memorandum for consideration:

It is clear from the opinion of Mr Knowles that under the laws at present in force in the Territory a change of venue to Adelaide cannot be obtained and that the trial for any charges laid must be within the Territory. The material point then is what charge should be laid. Riot or conspiracy could be charged. The intent necessary for riot may be inferred from the facts, but though there are precedents to the contrary, it is evident that deliberate intent beforehand is essential to sustain, with probability of conviction, a charge of conspiracy. Both charges being indictable will have to be heard by a judge and jury under section 80 of the Constitution.

Under the Jury Ordinance No. 7 of 1912, every male adult person of European race or extraction, who is not disqualified from serving and who has resided in the Territory for not less than three months is qualified and liable to serve as a juror. Under the present conditions, with the mixture of races, etc. it is improbable that a jury would convict.

The question then is, what charge could be laid before a magistrate?

The opinion of the Acting Solicitor-General refers to section 76 and section 29 of the Crimes Act.

Section 76 declares that any person who wilfully obstructs or resists any Commonwealth officer while engaged in the discharge or attempted discharge of the duties of his office under any Act, or wilfully obstructs or resists any person while engaged in the discharge or attempted discharge of any duty imposed on him by any Act, shall be guilty of an offence. Penalty: Imprisonment for two years.

Section 29 declares that any person who wilfully or unlawfully destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence. Penalty: Imprisonment for two years.

If, as the opinion states, these are not indictable offences, charges in respect of them come under section 12 of the Crimes Act and can be laid either on indictment before a jury or in a Court of Summary Jurisdiction.

A Court of Summary Jurisdiction under that section may not impose a longer period of imprisonment than one year in respect of any one offence against the Act.

The words of the section are: 'Offences against this Act, other than indictable offences, shall be punishable either on indictment or on summary conviction'. It is somewhat doubtful whether the fact that some sections, such as 26, declare an offence to be an indictable offence, take offences under section 76 and section 29, outside the Acts Interpretation Act No. 1 of 1904, section 4, which declares that offences against any Act which are punishable by imprisonment for a period of six months shall, unless the contrary intention appears in the Act, be indictable offences.

If there is something else in the Act besides the inference from section 26, raising a doubt as to whether the other sections came under section 4 of the Act of 1904,section 26 might be of greater weight; but if not, it is possible that the court may hold that the contrary intention, which should be clear, is not evident.

The point of substance in this matter is referred to [in the penultimate paragraph] of the opinion, which says that to hold that the offence is not expressed to be indictable, but which may be punished by imprisonment for over six months, were indictable under the Interpretation Act, would make section 12 practically futile. It may be, however, that the object of section 12 is to make minor offences, which otherwise would be tried before a Court of Summary Jurisdiction, indictable.

The same suggestions apply to section 29.

I mention these points because it will be a mistake to lay charges under sections the application of which was doubtful.

If, however, the opinion of Mr Knowles be confirmed and the evidence justifies it, the charges should be under these sections as well as for aiding and abetting under section 5.

As to the evidence, charges under 76 can be sustained under section 3 for assaults, etc. on police and other officers, but probably not in respect of assaults on the Administrator. The Administrator is a Commonwealth officer. The point is, was he at the time in the discharge or attempted discharge of duties under any Act? The police, etc. were. The offenders must, of course, be identified.

The same applies to charges under section 5 for aiding and abetting.

Apart from the Crimes Act, there are many offences triable in the Territory, such as murder, breach of the peace, common assaults, under section 54 of the Criminal Law Consolidation Act 1876 of South Australia. I have not the Act by me at the moment, but I think section 58 admits of a charge for aggravated assault and of committal, or, if the accused assented to the jurisdiction, of conviction with a higher penalty than £5 under section 54.

Charges for assault could be accompanied with applications for sureties for keeping the peace. See Magistrates' Guide for South Australia p. 472, also an Act dealing with Summary Jurisdiction 1883-1884, sections 28, 29 and 32. See also section 102 of the Criminal Law Consolidation Act, as to destruction of fences, and 139 and 140 as to malicious injury to property.⁽²⁾ Question: Are these Acts still in force in the Northern Territory?

I cursorily referred to these matters on reading the opinion with a view to helping towards determining what charges should be taken into account, the penalties and the probability of conviction.

The Police Act 1869 might be looked through.

My opinion, therefore, is that the charges recommended by the opinion if really open should be laid before the Court of Summary Jurisdiction. If the application of the sections be doubtful they should be for assault, applications for sureties for keeping the peace, and such other offences as on the facts may be laid under the Acts referred to.

The only other course would be to amend the law to enable a change of venue to take place. It, however, would be inexpedient in criminal cases to give this retrospective application.

The questions upon which advice is desired appear to be:

1. Whether offences against sections 29 and 76 of the Crimes Act 1914 are triable summarily.
2. Whether the Justices Procedure Amendment Act 1883-1884 and the Criminal Law Consolidation Act 1876 of the State of South Australia are still in force in the Territory.
3. What offences should be charged.

As regards question (a): I have looked further into the question whether offences against the Crimes Act 1914 which are not declared to be indictable, but which are punishable by imprisonment for more than six months, may be tried summarily, and I am strongly of opinion that they may be so tried. In my opinion I construed the words 'other than indictable offences' in section 12(1) of that Act as meaning

'other than offences declared by this Act to be indictable', and expressed the opinion that the definition of indictable offences in section 4 of the Acts Interpretation Act 1904 did not apply, as the contrary intention appeared. This opinion is confirmed by a consideration of sub-section (3) of section 12 of the Crimes Act 1914, which provides that:

A Court of Summary Jurisdiction may not impose a longer period of imprisonment than one year in respect of any one offence against this Act. If the Acts Interpretation Act 1904, section 4, applied, a Court of Summary Jurisdiction would not have power to impose a sentence for a longer period than six months, as all sentences in excess of six months would be indictable.

As regards question (b): I have had a search made in the Ordinances of the Northern Territory, but am unable to find any trace of the cessation of application to the Territory of the Acts referred to.

As regards question (c): The question which charges should be laid can only be determined upon a careful consideration of the evidence available. The file does not contain sufficient information on this point. The statements contained in the file suggest that breaches of section 29 of the Crimes Act 1914 have been committed, and that certain persons aided and abetted those breaches. It is possible also that section 76 has been contravened. As, however, the police officers of the Northern Territory may be held not to be Commonwealth officers within the meaning of the Crimes Act, and it may be considered undesirable to institute proceedings for obstruction of the Administrator who is clearly a Commonwealth officer, it might be preferable to proceed under the State Acts which are in force in the Territory, e.g. Police Act 1869, sections 19, 27.

I suggest that the most satisfactory course would be to obtain from Darwin briefs of the evidence available from persons who witnessed the affray, in order to determine which charges the evidence will support.

[Vol. 16, p. 78]

(1)Openion no. 890.

(2)section 139 and 140 Dealt with larceny; presumably the intention was to refere to part III-Malicious Injuries to Property (ss 81-132).