Police v Kenny Hayes - [2025] NTLC 10

CITATION:	Police v Kenny Hayes [2025] NTLC 10
PARTIES:	Police
v
Kenny John Hayes
TITLE OF COURT:	LOCAL COURT
JURISDICTION:	CRIMINAL
FILE NO(s):	22341675
DELIVERED ON:	24 June 2025
DELIVERED AT:	Alice Springs
HEARING DATE(s):	22 May 2025
DECISION OF:	Judge Anthony Hopkins
CATCHWORDS:

EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Resist Arrest and

Assault Police - Whether evidence obtained or as a consequence of impropriety or

contravention of an Australian law – Defendant arrested for contravening a South Australian
Domestic Violence Order that was not in force in the Northern Territory – Mistake of law –
Whether reasonable grounds for belief that offence had been committed – Police
Administration Act - Whether arrest unlawful – Application of Evidence (National Uniform

Legislation) Act, s 138 to evidence of resisting police and assaulting police following unlawful arrest.

Criminal Code 1983 (NT) s 189A

Domestic and Family Violence Act 2007 (NT) s 120

Domestic and Family Violence (Recognition of Domestic Violence Orders) (National Uniform Law)
Amendment Act 2017 (NT)
Police Administration Act 1978 (NT) ss 123, 158
Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Migration Act 1958 (Cth)

International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999

UNTS 171 (entered into force 3 September 1953).

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
DPP v Carr [2002] NSWSC 194; (2001) 127 A Crim R 151
DPP v Kaba [2014] VSC 52; (2014) 44 VR 526
Emde v State of New South Wales [2025] NSWCA 41
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Kadir v the Queen [2020] HCA 1; (2020) 267 CLR 109 [12]-[14]

Ostrowski v Palmer [2004] HCA 30; 218 CLR 493

Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619

Page | 1

Prior v Mole [2017] HCA 10; (2017) 261 CLR 265

R v Coulstock (1998) 99 A Crim R 143

Rigby v Mulhall [2019] NTSC 70

Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

Thoms v Commonwealth [2022] HCA 20; (2022) 276 CLR 466

REPRESENTATION:

Counsel:

Complainant: Mr Aspin

Defendant: Mr McCowan

Decision category classification: B

Decision ID number: [2025] NTLC 10

Number of paragraphs: 107

Page | 2

IN THE LOCAL COURT

AT ALICE SPRINGS IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 22341675

BETWEEN
POLICE
Applicant
v
KENNY JOHN HAYES
Defendant
REASONS FOR DECISION (Delivered 24 June 2025)

JUDGE HOPKINS

Introduction

1. On 31 December 2023 the defendant was charged with three offences alleged to have been committed on 29 December 2023:

i.

That he engaged in conduct that contravened a Domestic Violence Order (DVO), contrary to s 120(1) Domestic and Family Violence Act 2007 (NT) (Domestic and Family
Violence Act),
ii. That he did resist a member of the police force in the execution of his duty, contrary to s 158 Police…

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.

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Details

Case: [2025] NTLC 10
Decision Date: 24 June 2025

CaseChat Overview and Summary

The matter before the court was a criminal prosecution brought by the Police against Kenny John Hayes. The defendant was charged with three offences: (i) contravening a Domestic Violence Order (DVO), contrary to s 120(1) Domestic and Family Violence Act 2007 (NT); (ii) resisting a member of the police force in the execution of his duty, contrary to s 158 Police Administration Act 1978 (NT); and (iii) assaulting a police officer whilst in the execution of her duty, in circumstances where that the officer suffered harm, contrary to s 189A Criminal Code Act 1983 (NT). The charge of contravening a DVO was withdrawn and dismissed because there was no DVO in force in the Northern Territory that could have been contravened by the conduct of the defendant. The remaining charges were contested by the defendant who pleaded not guilty.

The primary legal issue before the court was whether the defendant's arrest was lawful. The court held that the arrest was unlawful because the officers lacked reasonable grounds for their belief that the defendant had breached a DVO. The officers had mistakenly believed that a South Australian DVO was enforceable in the Northern Territory, which was a mistake of law. The court found that regardless of whether the mistake was one of law or fact, the test of whether the officers had reasonable grounds for the belief was to be judged against what was known or reasonably capable of being known. The court concluded that the officers did not have reasonable grounds for the belief, as the true state of the law with respect to the enforceability of interstate DVOs was not reasonably capable of being known by the officers.

The court also considered whether evidence of the alleged resistance to arrest and assault on a police officer should be excluded pursuant to s 138 Evidence (National Uniform Legislation) Act 2011 (UEA). The court found that the evidence was obtained in consequence of the unlawful arrest and therefore, the discretion to admit the evidence should not be exercised. The court held that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence that had been obtained in the way in which the evidence was obtained. The court excluded all of the evidence of the officers, including the evidence taken from their body worn footage.

The court dismissed the charges against the defendant and found him not guilty. The defendant was discharged from his bail obligations.

Orders