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The King v Hinks

The King v Hinks

Case [2024] NTSC 16 18 March 2024

Breach of Contract

Unconscionable Conduct

Res Judicata

Specific Performance

Criminal Law

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CITATION:The King v Hinks [2024] NTSC 16

PARTIES: THE KING

v
HINKS, Laura Adele

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22215355
DELIVERED:  18 March 2024
HEARING DATE:  18 March 2024
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:I Read SC with L Spargo-Peattie
Accused:G Mohammed
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Direct brief
Judgment category classification:    C
Judgment ID Number:  GRA2403
Number of pages:  15

IN THE SUPREME COURT OF THE
NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Kingv Hinks [2024] NTSC 16

No. 22215355
BETWEEN:

THE KING

AND:

LAURA ADELE HINKS

CORAM: GRANT CJ
REASONS FOR DECISION
(Delivered ex tempore on 18 March 2024)

This is an application for an order permanently staying criminal proceedings against the accused in the exercise of the court’s inherent jurisdiction and, or in the alternative, pursuant to ss 21 and 339 of the Criminal Code 1983 (NT).
The charges on indictment
The accused is charged by indictment dated 15 March 2024 with the commission of two separate offences.
Count 1 is that between 7 and 19 August 2022 the accused took a female child under the age of 16 years out of the custody or protection of the child’s father and against the will of the father contrary to s 202(1) of the Criminal Code. The indictment pleads that the abduction was aggravated by the facts that the accused was an adult and the child was under the age of 14 years, namely five years.
Count 2 is that on 7 August 2022 the accused attempted to take a male child under the age of 16 years out of the custody or protection of that child’s father and against the will of the father contrary to s 202(1) of the Criminal Code, read with s 277 of the Criminal Code (dealing with attempts to commit offences). The indictment pleads that the attempted abduction was also aggravated by the facts that the accused was an adult and the child was under the age of 14 years, namely 11 years.
The Crown case
The Crown case may be summarised as follows.
The accused is the mother of both children named in the indictment.
On 17 February 2022, the Local Court made a protection order in relation to the male child giving his father short-term parental responsibility for a period of six months and permitting the accused not less than one access visit per week. That grant of parental responsibility included a right to custody of the male child.
On 31 May 2022, the Federal Circuit and Family Court of Australia made an interim parenting order pursuant to the Family Law Act 1975 (Cth) granting sole custody of both children to their father. Under the terms of that order, the female child was only able to spend time with the accused as directed by and under the supervision of the Children’s Contact Service run by CatholicCare NT. Under the terms of…

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 The King v Hinks

Details

AGLC: The King v Hinks [2024] NTSC 16
Case: [2024] NTSC 16
Decision Date: 18 March 2024

CaseChat Overview and Summary

The case of The King v Hinks was heard in the Supreme Court of the Northern Territory, where Laura Adele Hinks was facing charges of child abduction. The accused argued for a permanent stay of the criminal proceedings on several grounds, including that the indictment did not disclose an offence, that she had suffered incurable prejudice due to the withdrawal of consent for a summary hearing, that there was an inconsistency between Northern Territory and Commonwealth law, and that Count 2 was ineffective as the protection order did not prohibit the removal of the male child. The Crown, represented by I Read SC, opposed the application.

The court dismissed the application on all grounds. It held that the indictment did disclose an offence under s 202(1) of the Criminal Code, as the offence can be committed by a parent who does not have the right of care and custody by taking a child from the parent who does. The court found that the Crown's decision to withdraw consent for a summary hearing did not constitute an oppressive use of the court process, and the delay caused did not amount to incurable prejudice. Regarding the alleged inconsistency between Northern Territory and Commonwealth law, the court found that the Family Law Act does not cover the field of parental responsibility and that Northern Territory criminal laws remain valid and applicable. Finally, the court held that the protection order did not permit the accused to remove the child from the facility.

In conclusion, the application for a permanent stay of the criminal proceedings was dismissed. The Supreme Court of the Northern Territory ruled that the charges against Laura Adele Hinks would proceed to trial as scheduled on 11 November 2024. The publication of these reasons for decision was restricted to the parties and their legal representatives until further order.

Orders