Women and Justice: Court: Supreme Court of the Northern Territory

Domestic Case Law

Carne v Wride & Carne v Nicholas Supreme Court of the Northern Territory (2012)

Domestic and intimate partner violence

The appellant Barry Carne was formerly in a relationship with L.S., the victim and the mother of his four children.  One day Carne entered L.S.’s home without consent, destroyed property, and confronted L.S..  During the altercation he grabbed and twisted L.S.’s right hand and fingers, causing her to fall in pain.  As a result he was charged with aggravated assault, and a domestic violence order was issued against him.  The domestic violence order restrained him from contacting, approaching, intimidating or harassing the victim and from exposing their children to domestic violence.  While the domestic violence order was in force, Carne again went to L.S.’s house.  After L.S. did not answer, he attempted to hang himself outside the home, only to be saved by his son, who was 14 at the time.  Carne was charged with breaching the domestic violence order, and pleaded guilty.  The sentencing magistrate sentenced him to eight months’ imprisonment for the breach and two months for the aggravated assault, to be served concurrently.  Carne appealed the sentence, claiming that it was manifestly excessive, and argued that the magistrate took into account irrelevant matters, in particular his suicide attempt.  The court of appeal considered the definition of “domestic violence” and whether Carne’s attempted suicide in front of the children was an attempt to cause mental harm to L.S. and/or her children.  The court held that the sentencing magistrate had not received sufficient evidence from the prosecution demonstrating that Carne had attempted the suicide in order to cause mental harm to L.S. and/or her children and, accordingly, it was not open to the magistrate to make such a finding.  The magistrate was required to exclude any other reasonable hypothesis, permitted by the facts, regarding the attempted suicide before concluding that the intent was to cause mental harm.  As such, the sentence was reduced to one month’s imprisonment.

Hofer v. Anti-Discrimination Commissioner Supreme Court of the Northern Territory (2011)

Employment discrimination, Sexual harassment

In 2009, a female employee made a formal complaint regarding improper conduct in the workplace, including continuous inappropriate and derogatory comments, by a Northern Territory Police Force member to whom she was a personal assistant, Bert Hofer.  The complaint resulted in an investigation and Hofer’s demotion and transfer.  On April 13, 2010, the female employee further made a complaint to the Northern Territory Anti-Discrimination Commission of discrimination and sexual harassment in violation of the Anti-Discrimination Act (Northern Territory).  Pursuant to Section 66 of the Anti-Discrimination Act, the Commissioner must accept or reject a complaint not later than 60 days after receipt of the complaint.  The complaint was accepted on November 1, 2010, well beyond the 60-day timeframe.  Hofer argued that the decision to accept the complaint should be set aside due to the Commissioner’s failure to accept the complaint within the statutory timeframe.  Further, Hofer argued that the Commissioner failed to consider whether the complaint was frivolous or vexatious.  The Supreme Court of the Northern Territory held that the Commissioner did consider whether the complaint was vexatious, and determined that it was not.  The fact that the Commissioner failed to accept the complaint within of the 60-day timeframe did not invalidate the decision as such a finding would result in unacceptable injustice inflicted on victims due to government inaction.  Accordingly, Hofer’s application was dismissed and the Commissioner’s decision to accept the complaint was upheld.

The Queen v. D.A. Supreme Court of the Northern Territory (2017)

Sexual violence and rape

The complainant, a 32-year-old nurse, woke up to the sound of someone breaking into her house in the early hours.  She screamed and struggled for 20 minutes as the perpetrator attempted to have sexual intercourse with her, eventually succeeding.  The victim managed to call the police as the perpetrator was masturbating, which caused the perpetrator to flee the scene.  The accused, who was 16 years old at the time of the offense, pleaded not guilty to having sexual intercourse with the victim without the victim’s consent while knowing or being reckless as to the lack of consent.  DNA tests revealed a match between the DNA of the perpetrator and the sperm found in the victim.  The accused challenged the admissibility of the DNA test, arguing that he did not properly consent to the test.  The court held that the benefit the public would gain from admitting the DNA evidence outweighed any undesirability of admitting the evidence, such as encouraging improper police conduct.  Accordingly, the evidence was ruled admissible.