Ashley v Marinov - [2006] NTSC 62

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:JA 16 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. JA 16 of 2006 (20526378)

BETWEEN:
ASHLEY, Roy

Plaintiff
AND:
MARINOV,Ivan

Defendant

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 8 August 2006)

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 1^st 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.
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 1^st 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.”
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.
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.
The order which is dated 27 July 2005 and was in force to 29 June 2006, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashley v Marinov

Details

AGLC: Ashley v Marinov [2006] NTSC 62
Case: [2006] NTSC 62
Decision Date: 8 August 2006

CaseChat Overview and Summary

The appeal before the court involved the defendant, Marinov, who had been convicted of breaching a restraining order. The matter was heard in the Northern Territory Court of Appeal. The appeal was against the conviction that had been made by the Magistrates Court of the Northern Territory. The primary issue before the court was whether the laying of two separate charges for the same offence against the defendant amounted to double jeopardy. The court was also required to determine whether the prosecution had abused the process of the court by laying the charges.

The court considered the relevant legislation and case law in making its decision. The court noted that under the Criminal Code Act (NT), s 188, and the Domestic Violence Act (NT), s 10, a person who breaches a restraining order can be charged with an offence. The court referred to previous cases such as Keane v Police, Tudor-Stack v Hill, Regina v Beedie, Paul Calcedo, and Nash v Lansen to determine the correct interpretation of the law. The court held that the laying of two separate charges for the same offence did not amount to double jeopardy. The court found that the prosecution had not abused the process of the court by laying the charges.

In light of the above, the court dismissed the appeal and affirmed the conviction made by the Magistrates Court. The court held that the prosecution had not acted improperly in laying the charges, and that the defendant had been given a fair trial. The court further held that the principle of autrefois acquit did not apply in this case as the two charges were not the same offence. The court's decision was based on a careful analysis of the relevant legislation and case law, and it provides guidance for future cases involving similar issues.

Orders