Ashley v Marinov

[2007] NTCA 1

Ashley v Marinov [2007] NTCA 01

PARTIES: ASHLEY, ROY

v

MARINOV, IVAN

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 10 of 2006 (20526378)

DELIVERED: 4 May 2007

HEARING DATES: 20 April 2007

JUDGMENT OF: MARTIN (BR) CJ, ANGEL & MILDREN JJ

APPEAL FROM: Supreme Court of the Northern Territory Ashley v Marinov [2006] NTSC 62

CATCHWORDS:

CRIMINAL LAW – similar offences – Criminal Code s 18 – whether charge of aggravated assault and an offence against a domestic violence order arising from the same circumstances are similar offences – double jeopardy – appeal allowed

Statutues:
Domestic Violence Act, s 10
Criminal Code, s 17, s 18, s 34(1), s 188(2)

Citations:
Applied:
R v Hofschuster (1994) 4 NTLR 179

Referred to:
Haywood v Dodd (Thomas J, unreported 24 October 1997)
R v Carroll (2002) 213 CLR 635

REPRESENTATION:

Counsel:
Appellant: D Ross QC with C McGorey
Respondent: A Elliott

Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 6

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

Ashley v Marinov [2007] NTCA 01
No. AP 10 of 2006 (20526378)

BETWEEN:

ROY ASHLEY
Appellant

AND:

IVAN MARINOV
Respondent

CORAM: MARTIN (BR) CJ, ANGEL & MILDREN JJ

REASONS FOR JUDGMENT

(Delivered 4 May 2007)

The Court:
[1] The appellant in this matter was charged in the Court of Summary Jurisdiction with two charges, the first being that he failed to comply with the terms of a domestic violence order contrary to s 10 of the Domestic Violence Act and the second being that he unlawfully assaulted Monita Wilfred with circumstances of aggravation contrary to s 188(2) of the Criminal Code.

[2] The facts alleged in relation to both counts were the same. The learned Magistrate found that the appellant had struck Ms Wilfred to the head causing a small cut and some bleeding. However, because the defence of provocation had not been rebutted by the prosecution beyond reasonable doubt, a verdict of acquittal was entered in relation to the assault charge.

[3] The terms of the domestic violence order relevant to the charge of breaching the order was that the defendant was “restrained and … must not assault, cause or threaten to cause personal injury to Monita Wilfred”.

[4] Notwithstanding that the same facts constituting the assault had resulted in an acquittal, the learned Magistrate found that the terms of the domestic violence order had been breached because the appellant had assaulted Monita Wilfred and proceeded to convict the appellant.

[5] On appeal the learned Judge rejected the appeal. Although argument was addressed to the learned Judge in the court below and to the learned Magistrate on the provisions of s 18 of the Criminal Code neither court considered those provisions. A previous decision of this Court and of the Supreme Court which bear upon that matter were…