Houseman v Higgins - [2015] NTSC 88

Houseman v Higgins [2015] NTSC 88
PARTIES:HOUSEMAN, Gary James

v
HIGGINS, Bennet

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 47 of 2015 (21508172)
DELIVERED:  7 December 2015
HEARING DATE:  20 October 2015
JUDGMENT OF:  SOUTHWOOD J
APPEAL FROM:  E ARMITAGE SM
CATCHWORDS:

JUSTICES APPEAL – Crown appeal against finding of not guilty – appeal allowed – respondent found guilty by Supreme Court
DOMESTIC VIOLENCE ORDERS – Police issued Domestic Violence Order did not state period in force – whether order valid or never in force – Domestic and Family Violence Act 2007 (NT), s 27, s 41, s 42, s 43, s 44, s 82 and s 120(2)(b)(ii).
Perpetual Executors and Trustees Association of Australia Ltd v Commissioner of Taxation (1948) 77 CLR 1; Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Livestock Company Corporation (1980) 29 ALR 333 – cited
REPRESENTATION:
Counsel:
Appellant:I Taylor
Respondent:  J Hunyor
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Sou1509
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Houseman v Higgins [2015] NTSC 88

No. JA 47 of 2015 (21508172)
BETWEEN:

HOUSEMAN, Gary James

Appellant

AND:

HIGGINS, Bennet

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 7 December 2015)
Introduction

This appeal raises for consideration the provisions of s 27 of the Domestic and Family Violence Act 2007 (NT) and whether it is necessary for an authorised police officer to state in an order made under s 41 of the Act the period during which a domestic violence order is to be in force. In my opinion it is not necessary for the police to do so. A police domestic violence order continues in force until it is revoked either in accordance with Part 2.9 of the Act following a review, or under s 82 of the Act following a show cause hearing.
Background
On 28 January 2015 the respondent was served by police with a domestic violence order issued under s 41 of the Domestic and Family Violence Act. The order set out the authorised officer’s reasons for making the order and the conditions of the order. The order was what is known as a full non-contact order. However, the order did not state a specified period during which the order was to be in force. Instead the order ended with the following words.
SUMMONS TO DEFENDANT
You, (the Defendant) are summonsed to appear at the Court of Summary Jurisdiction at Nichols Place in the Northern Territory on 30/1/15 at (time) 10.00 am to show cause why the attached order should not be confirmed.
Note: if you do not appear at the nominated court on the above date and time a Domestic Violence order may be confirmed in your absence.
On 30 January 2015 the Court of Summary Jurisdiction confirmed and varied the…

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 Houseman v Higgins

Details

AGLC: Houseman v Higgins [2015] NTSC 88
Case: [2015] NTSC 88
Decision Date: 7 December 2015

CaseChat Overview and Summary

The appeal by the Crown against the respondent's acquittal of breaching a domestic violence order turned on the interpretation of the Domestic and Family Violence Act 2007 (NT) and the validity of a police-issued domestic violence order that did not specify a period of force. The respondent, Houseman, was issued a domestic violence order by police under s 41 of the Act, which did not state the period during which the order was to be in force. The order was later confirmed by the Court of Summary Jurisdiction, which specified a 12-month period for the order. Houseman was arrested for breaching the order but was acquitted by the Court of Summary Jurisdiction on the basis that the police order ceased to be in force upon confirmation by the Court and that Houseman had not been served with the court order at the time of his arrest.

The central legal issue before the court was whether the police-issued domestic violence order was valid despite not specifying the period during which it was to be in force. This hinged on the interpretation of s 27 of the Act, which states that a domestic violence order (other than an interim DVO) is in force for the period stated in it. The court had to determine if the lack of a specified period rendered the order invalid or if it could remain in force until revoked under other provisions of the Act. The respondent argued that the order ceased to be in force upon confirmation by the Court, while the Crown argued that the order remained valid until revoked under s 82 of the Act.

The court found that s 27 of the Act does not require a police-issued domestic violence order to specify a period of force for the order to be valid. The court reasoned that a domestic violence order continues in force until it is revoked either under Part 2.9 of the Act following a review or under s 82 of the Act following a show cause hearing. Therefore, the absence of a specified period in the police order did not invalidate the order. The court held that the police order remained in force until it was revoked, and the subsequent court order merely confirmed and varied the original order's conditions. Consequently, the appeal was allowed, and the respondent was found guilty of breaching the domestic violence order.

Orders

Orders of the court

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Background

Background to the litigation

This appeal raises for consideration the provisions of s 27 of the Domestic and Family Violence Act 2007 (NT) and whether it is necessary for an authorised police officer to state in an order made under s 41 of the Act the period during which a domestic violence order is to be in force. In my opinion it is not necessary for the police to do so. A police domestic violence order continues in force until it is revoked either in accordance with Part 2.9 of the Act following a review, or under s 82 of the Act following a show cause hearing.Background On 28 January 2015 the respondent was served by police with a domestic violence order issued under s 41 of the Domestic and Family Violence Act. The order set out the authorised officer’s reasons for making the order and the conditions of the order. The order was what is known as a full non-contact order. However, the order did not state a specified period during which the order was to be in force. Instead the order ended with the following words.SUMMONS TO DEFENDANTYou, (the Defendant) are summonsed to appear at the Court of Summary Jurisdiction at Nichols Place in the Northern Territory on 30/1/15 at (time) 10.00 am to show cause why the attached order should not be confirmed.Note: if you do not appear at the nominated court on the above date and time a Domestic Violence order may be confirmed in your absence. On 30 January 2015 the Court of Summary Jurisdiction confirmed and varied the domestic violence order made by the police. The court specified that the confirmed order was to be in force for a period of 12 months. The court order otherwise contained the full non-contact conditions contained in the domestic violence order made by the police. On 21 February 2015 the respondent was arrested for breaching the domestic violence order by being in company with the protected person. He had not been served with the court confirmed and varied domestic violence order at the time he was arrested. He was not served with that order until sometime after 3.30 pm on 21 February 2015. On 23 July 2015 the Court of Summary Jurisdiction found the respondent not guilty and dismissed the charge of breaching the domestic violence order on the basis that (1) the domestic violence order made by the police ceased to be in force once the order was confirmed by the Court and (2) the respondent had not been served with the court order. It appears that counsel who appeared in the Court of Summary Jurisdiction did not take the presiding Magistrate to s 120(2)(b)(ii) of the Domestic and Family Violence Act. The ground of appeal The amended ground of appeal is that:The learned magistrate erred in dismissing the charge against the respondent, having failed to apply s 120(2)(b)(ii) of the Domestic and Family Violence Act. Section 27 Section 27 of the Domestic and Family Violence Act states as follows.A DVO (other than an interim DVO) is in force for the period stated in it. On its face, the section declares that a domestic violence order which is made for a stated period is in force for the period stated. The section does not state that the Court or authority which makes a domestic violence order cannot make an order for an unspecified period; nor is there any provision elsewhere in the Act which states that a domestic violence order cannot be made for an unlimited period or until further order.Part 2.6

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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