Eupene v Hales
3 March, 26 May and 4 September 2000 - Martin CJ, Angel and Thomas JJ - 10 NTLR 16

The appellant pleaded guilty in the Court of Summary Jurisdiction to one count of having possession of property, namely, seven pearls which were reasonably suspected of having been stolen or otherwise unlawfully obtained, contrary to s.61 of the Summary Offences Act.

The appellant was arrested when he visited premises where police happened to be conducting a search in relation to a drug related matter. A search of the appellant's bag revealed seven pearls in a tobacco tin. The pearls were wrapped in tissue paper inside the tin. The appellant told police he had found the pearls while he was walking along Vestey's beach.

The submissions on sentence focused on whether the appellant could avail himself of the exceptional circumstances provision contained in s.78A(6C) of the Sentencing Act. That provision permits a court to refrain from imposing a minimum mandatory sentence if, inter alia, the offence was trivial in nature. The Court of Summary Jurisdiction found that the offence was not trivial in nature and sentenced the appellant to the mandatory minimum 14 days imprisonment.

The appellant appealed to the Supreme Court. However, because of the existence of two apparently conflicting decisions of the Supreme Court as to the meaning of trivial in the context of the section, the Supreme Court referred the proceedings to the Full Court for determination.

In the Full Court the respondent's submissions highlighted the apparent different approaches taken by the Supreme Court in the decisions of Curnow v Pryce (1999) NTSC 116, 29 October 1999 and R v Torres (SCC 9728321), 19 August 1999. In Curnow v Pryce the court applied a test which effectively meant that an offence would not be regarded trivial if the objective circumstances probably warranted a sentence of imprisonment (actual or suspended). That decision emphasised the remedial nature of s.78A(6C) of the Sentencing Act. In R v Torres the court emphasised the objective circumstance of each particular case without regard to what the result should be.

Argument before the Full Court considered approaches taken in other jurisdictions when the term trivial is used in legislation. The Full Court also sought argument from the parties on whether the elements of the unlawful possession charge had been made out in the Court of Summary Jurisdiction proceedings.

The Full Court heard argument on 3 March and 26 May 2000. The court reserved its decision.

Prior to the Full Court delivering its decision, the court sought further submissions from the parties on the question of whether the offence which the appellant pleaded guilty to had been made out, notwithstanding the plea of guilty.

Both the appellant and the respondent argued that the charge had been proven by way of the prosecution facts, the plea of guilty and submissions of counsel.

On 4 September 2000 the court, by majority (Angel and Thomas JJ) allowed the appeal, set aside the sentence and conviction and remitted the matter back to the Court of Summary Jurisdiction for re-hearing.

The majority held that the offence of being in possession of goods reasonably suspected of being stolen or unlawfully obtained required proof of the appellant's guilty state of mind at the time he came into possession of the goods, rather than subsequently. The majority held that the agreed facts did not contain unequivocal proof of the offence charged and that the plea of guilty did not amount to an unequivocal admission of guilt and for these reasons the plea of guilty should have been rejected by the magistrate.

Although the magistrate accepted the appellant's explanation as to how he found the pearls, namely, that it was after the pearls came into his possession that he decided to keep them, the majority of the Full Court was of the view that the magistrate had failed to address the critical question, that is, the state of the appellant's mind at the time he first obtained the pearls.

Martin CJ dissented on this point, taking the view that the Full Court did not have jurisdiction to reject the plea.

On the question of triviality, Angel J disagreed with the conclusion of Mildren J in Curnow v Pryce (1999) 131 NTR 1, holding that courts daily make non-custodial orders with respect to offences which are far from trivial. Angel J equated trivial with petty examples of a crime.

Similarly, Thomas J held that the proper test of triviality is to look at the objective circumstances of the offence without regard to the result.

The conviction was quashed and remitted to the Court of Summary Jurisdiction for re-hearing.