Peter William Hales v Mesfin Tamiru Bahiru - [2004] NTMC 39

[Back to Main List] [Back to NTMC 2004 List] CITATION: Peter William Hales v Mesfin Tamiru Bahiru [2004] NTMC 039

PARTIES: Peter William Hales
(Informant/Complainant)
v

Mesfin Tamiru Bahiru
(Defendant)

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal Code (NT)

FILE NO(s): 20322408

DELIVERED ON: 28 April 2004

DELIVERED AT: Darwin

HEARING DATE(s): 21 April 2004

DECISION OF: Jenny Blokland SM

CATCHWORDS:
CRIMINAL LAW - aggravated assault - direct application of force - force reasonably need for the common intercourse of life - s 1, s 187(e) Criminal Code (NT) ; Davis v Bennett [2003] NTCA 7; Re Marion (1991-92) 175 CLR 218; Boughey v The Queen [1986] 60 ALJR 422

REPRESENTATION:

Counsel:
Prosecutor: Mr Carter
Defendant: Mr Berkeley

Solicitors:
Prosecutor: ODPP
Defendant: NTLAC

Judgment category classification: B
Judgment ID number: [2004] NTMC 039
Number of paragraphs: 23

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20322408

BETWEEN:

PETER WILLIAM HALES
Informant/Complainant

AND:

MESFIN TAMIRU BAHIRU
Defendant

REASONS FOR DECISION

(Delivered 28 April 2004)

Jenny Blokland SM:

Introduction
1. The defendant pleaded guilty to two counts of failure to comply with a domestic violence restraining order and not guilty to one count of enter an occupied dwelling with intent to commit a simple offence, namely to assault (contrary to s 213 Criminal Code ) and not guilty to one count of aggravated assault (contrary to s 188(2) Criminal Code) , the relevant circumstance of aggravation being that the alleged victim, Eligayehu Fenta was a female and the defendant was a male. Th ese reasons concern the contested charges.
2. It is common ground the alleged victim and the defendant were previously married and have two children who live with the mother (Ms Fenta) at 7 Tong Luck Street Millner. It is common ground that a restraining order was made on 21 August 2003 preventing the defendant from attending at the premises. The incident giving rise to these charges occurred on 3 September 2003.
Evidence Called on Behalf of the Prosecution
3. The prosecution called Ms Fenta who gave evidence that she last lived with the defendant in 2001; that after the separation the defendant visited the children with her consent; that after taking out the domestic restraining order of 21 August 2003 the consent to visit the children was revoked. She gave evidence that on the evening before the incident she had locked the two external doors to the premises; that both doors had security doors and wooden doors.
4. Ms Fenta said that on the morning of the third of September 2003 her son woke her at 7.10 am; that she saw someone riding a push bike at the back of the house; that she called out who's there?; that she recognised the defendant; that she ran into her bedroom and locked the door; that the defendant came after her into the bedroom; that he got her on the shoulders in the bedroom; he grabbed her; he shook her;…

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.

Keep reading for free

Create a free CaseChat account to read Peter William Hales v Mesfin Tamiru Bahiru and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NTMC 39
Decision Date: 28 April 2004

CaseChat Overview and Summary

In the Court of Summary Jurisdiction at Darwin, the case of Peter William Hales v Mesfin Tamiru Bahiru was heard. The defendant, Mesfin Tamiru Bahiru, pleaded guilty to two counts of failure to comply with a domestic violence restraining order but contested two other charges: entering an occupied dwelling with intent to commit a simple offence, namely to assault, and aggravated assault. The contested charges centred around an incident on 3 September 2003, where the defendant allegedly entered the premises of his former spouse, Eligayehu Fenta, in violation of a restraining order and assaulted her. The court had to determine whether the prosecution had proven the assault allegations beyond reasonable doubt, and if the defendant's actions could be justified under the exception for acts reasonably needed for the common intercourse of life.

The court examined the evidence presented by both the prosecution and the defence, including testimonies from Ms Fenta, neighbours, and the defendant himself. The court found Ms Fenta's evidence to be coherent and logical, and not motivated by a desire to prevent the defendant from seeing their children. The defendant's evidence was considered to be inconsistent and improbable, particularly in light of the evidence from neighbours and the physical state of the premises. The court concluded that the prosecution had proven the assault allegations beyond reasonable doubt, rejecting the defendant's denial of the assault. The court also addressed the defence's argument that the defendant's actions could be justified under the exception for acts reasonably needed for the common intercourse of life, finding that the defendant's conduct was not reasonable and could not be contemplated as coming within the exception.

The court found the charge of aggravated assault proven and made a finding of guilt. The defendant was found not guilty of the charge of unlawful entry with intent to commit an assault, as the court could not be satisfied that the defendant possessed the intent to assault at the point of entry. The case highlights the importance of considering cultural context in criminal cases, while also upholding the principles of protection of personal integrity at the core of the law of assault.

Orders