Ashley v Marinov [2006] NTSC 62

PARTIES: ASHLEY, Roy

v

MARINOV, Ivan

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: JA16 of 2006 (20526378)

DELIVERED: 8 August 2006

HEARING DATES: 10 July 2006

JUDGMENT OF: THOMAS J

CATCHWORDS:

APPEAL – JUSTICES – APPEAL AGAINST CONVICTION -- BREACH OF RESTRAINING ORDER – JUSTICES ACT 1928 (NT)

CRIMINAL LAW – PRACTICE AND PROCEDURE – ABUSE OF PROCESS -- AUTREFOIS AQUIT – WHETHER LAYING TWO SEPARATE CHARGES FOR THE SAME OFFENCE PLACES THE DEFENDANT IN DOUBLE JEOPARDY

Criminal Code Act (NT), s 188
Domestic Violence Act (NT), s 10

Keane v Police (1997) 69 SASR 481 approved
Tudor-Stack v Hill (2003) 13 NTLR 186; Regina v Beedie [1998] QB 356; Paul Calcedo (1985) 18 A Crim R 200; Nash v Lansen [2005] NTMC 003; referred to

REPRESENTATION:
Counsel:
Appellant: D Ross QC
Respondent: G Bryant
Solicitors:
Appellant: Northern Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200612
Number of pages: 7


IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Ashley v Marinov [2006] NTSC 62
No. JA16 of 2006 (20526378)

BETWEEN:

ASHLEY, Roy
Plaintiff

AND:

MARINOV, Ivan
Defendant

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 8 August 2006)

[1] This is an appeal against a finding of guilt made in the Court of Summary Jurisdiction on 19 April 2006 against the appellant who had been charged as follows:

“On the 1st November 2005 at Palmerston in the Northern Territory of Australia.

1. being a person against whom a restraining order issued in accordance with the Domestic Violence Act was in force, and having been served with a copy of that order, you failed to comply with the terms of that order:

Contrary to Section 10 of the Domestic Violence Act.”

The appellant entered a plea of not guilty to the charge.

[2] On the same date the appellant entered a plea of not guilty to a charge on information of aggravated assault which reads as follows:

“On the 1st November 2005 at Palmerston in the Northern Territory of Australia.

2. unlawfully assaulted Monita WILFRED

AND THAT the said unlawful assault involved the following circumstance of aggravation, namely:

(i) That the said Monita WILFRED suffered bodily harm.

(ii) That the said Monita WILFRED was a female and the said Roy ASHLEY was a male.

Contrary to Section 188(2) of the Criminal Code.”

[3] The learned stipendiary magistrate found the complaint relating to the breach of domestic violence order proven. He found the appellant not guilty of the offence of aggravated assault.

[4] The existence of a restraining order under the Domestic Violence Act was not in dispute. Copy of the restraining order and declaration of service upon the appellant were Exhibit 1 in the proceedings before the Court of Summary Jurisdiction.

[5] The order which is dated 27 July 2005 and was in force to 29 June 2006, is as follows:

“Until 29th June 2006 the defendant Roy Ashley be restrained and:

1. Must not assault, cause or threaten to cause personal injury to Monita Wilfred;

2. Must not cause or threaten to cause damage to property in the possession of Monita Wilfred;”

[6] The learned stipendiary magistrate found that there had been a physical assault by the appellant upon Ms Wilfred. The appellant had struck Ms Wilfred to the head which caused a small cut and some bleeding. His Honour found that the defence had raised provocation which on the evidence the Crown had not rebutted beyond reasonable doubt.

[7] This was the basis for the finding that the charge of assault under the Criminal Code had not been proved beyond reasonable doubt.

[8] The learned stipendiary magistrate found the complaint alleging breach of the restraining order proved on the basis that the breach of restraining order is a regulatory offence and the defence of provocation is not available to the appellant.

[9] The appellant lodged a notice of appeal. The ground of appeal being:

(1) That his Honour erred in finding Roy Ashley guilty of Count 1, namely, breaching a domestic violence order on 1 November 2005.

[10] Mr Ross QC on behalf of the appellant, was granted leave at the commencement of the hearing of the appeal to add two further grounds of appeal as follows:

(2) Laying two separate charges for the same offence put the appellant in double jeopardy and amounted to an abuse of process.

(3) A finding that the assault was not made out entitled the appellant to a defence of autrefois acquit.

[11] Mr Ross QC submits that where there is one single act as occurred in this case, it should not be charged twice – Regina v Beedie [1998] QB 356 and Nash v Lansen [2005] NTMC 003, decision of Loadman SM

[12] The defences to s 10 of the Domestic Violence Act are set out in s 10(3)(a) and (3)(b). Mr Ross QC submitted that if the “and” in s 10(3)(b) is disjunctive rather than conjunctive, then the act is reasonable.

[13] I do not accept that the facts in this matter give rise to a defence under s 10(3) of the Domestic Violence Act.

[14] Mr Bryant, on behalf of the respondent, put forward a copy of the Second Reading Speech delivered on 1 October 1992 when the Domestic Violence Act was introduced. I agree that it is clear Parliament intended to introduce a strict statutory regime to control domestic violence in the Northern Territory. Section 10(1) of the Domestic Violence Act provides that a person who contravenes or fails to comply with a restraining order is guilty of a regulatory offence.

[15] I agree with the statement of principle expressed by King J in Keane v Police (1997) 69 SASR 481 at 484:

“An order restraining the defendant from being on certain premises operates absolutely and irrespective of the consent of the person intended to be protected. Nevertheless, its purpose is not to protect the family member against himself or herself but to protect against unwanted conduct of a type to inspire fear. The absolute nature of the order authorised by the Act is intended, in my opinion, as an aid to enforcement. The mere presence of the defendant on the premises is enough to enable the police to act. Enforcement is not bedevilled by disputes as to whether the protected family member consented.”

[16] This passage was cited with approval by Riley J in the Northern Territory Court of Appeal decision in Tudor-Stack v Hill (2003) 13 NTLR 186 delivered on 12 September 2003.

[17] I agree with the submission made by Mr Bryant, that in applying that principle to the facts of this case, enforcement of the restraining order should not be bedevilled by the defendant raising any of the defences provided for under Part II of the Criminal Code which includes provocation.

[18] I am not persuaded that the laying of two separate charges for the same offence placed the appellant in double jeopardy. The elements of an offence under s 10 of the Domestic Violence Act differ from the elements of the offence under s 188(2) of the Criminal Code.

[19] Mr Bryant discussed the relevant issues in the submissions made on behalf of the respondent:

“14. It was proper and indeed prudent practice to charge both offences in the circumstances of this case. In the event that the prosecution proceeded on charge 1 alone it is foreseeable that in the event that the prosecution failed to prove the existence of a valid DVO that the charge of breaching the order by assaulting the holder of the order would fail notwithstanding that an actual assault took place. In the absence of an alternative charge of assault it would mean that the Appellant would walk free.

15. In those circumstances it is proper to charge an offence of assault under the Code that is not contingent on the existence of a DVO. Conversely, it was proper to charge the breach of the DVO alleging assault, as an alternative to the Code assault as none of the Code defences would have any applicability given the regulatory nature of the offence. This is consistent with the intention of parliament and the manner in which the provisions of the Domestic Violence Act have been applied by the Courts.”

[20] This Court has not been provided with the transcript of the hearing before Mr Luppino SM on 7 April 2006, and it has not been made clear in the learned magistrate’s reasons for decision or submissions before this Court whether the charges were put to his Honour by the Crown in the alternative.

[21] The learned stipendiary magistrate was well aware that it would not be appropriate to convict the appellant on both charges. His Honour stated near the commencement of his reasons for decision:

“There’s a commonality and background between the two separate charges. Both charges are based on the same events although they form two separate charges, in my view a conviction on both cannot be sustained due to that commonality.”

[22] It is obvious from these comments that the magistrate would not have imposed a conviction on two charges arising from the one incident. As happens in this case, the learned stipendiary magistrate went further than he was required to do in explaining why the allegation of assault under the Criminal Code had not been made out. Once he found there had been a breach of the restraining order he could have proceeded to deal with that matter and dismiss the second charge based on the same incident. The fact that he did go further and set out reasons why the assault under the provisions of the Code had not been established beyond reasonable doubt does not entitle the appellant to a defence of autrefois acquit.

[23] The two matters were heard together. The appellant was convicted of the breach of the restraining order and discharged on the charge of assault under s 188(2) of the Code. It is not a situation as occurred in Regina v Beedie (supra) where the defendant had been convicted of certain offences under the Health and Safety at Work etc Act 1974 and the Housing Act 1985 and the Crown subsequently charged the defendant with manslaughter based on the same set of facts – see also Paul Calcedo (1985) 18 A Crim R 200.

[24] Neither could it be said that the appellant was placed in double jeopardy. Nor was there an abuse of process. There had been no earlier proceeding in which the appellant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings – see Ross – Crime 2nd Edition by David Ross QC:

“There must have been a trial and verdict in the previous hearing for the principle to apply. A failure to lead evidence is not sufficient: R v Calcedo [1986 VR 499; 18 A Crim R 200 (CCA) but for a gloss see Callahan v Broomham (1996) 68 IR 66 (NSW IR Ct). The position is different in England: R v G (Autrefois Acquit) [2001] 1 WLR 1727 (CA).”

[25] The grounds of appeal have not been established. The appeal is dismissed.

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