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.
Northern Territory
Domestic Case Law
Carne v Wride & Carne v Nicholas Supreme Court of the Northern Territory (2012)
Hofer v. Anti-Discrimination Commissioner Supreme Court of the Northern Territory (2011)
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)
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.
Legislation
In the Northern Territory a person is guilty of a crime if he/she has sexual intercourse with another person without the other person’s consent and knows about, or is reckless as to, the lack of consent. Consent is defined as “free and voluntary agreement.” Circumstances in which a person does not consent to sexual intercourse include circumstances where: force is used; the victim fears force or harm to themselves or someone else; the victim is unconscious or not capable of free agreement; or the victim is unable to understand the sexual nature of the act. In addition, consent is no longer assumed where the victim is married to the accused. The prosecution must prove beyond reasonable doubt that the accused knew that the victim was not consenting or was reckless as to whether the victim was consenting. Recklessness includes not giving any thought to whether the person is consenting to sexual penetration. A defendant is not guilty of the offence if he or she mistakenly believed that consent had been given.
Domestic and Family Violence Act (Northern Territory) (2017)
The Domestic and Family Violence Act 2007 (NT) empowers the Magistrates’ Court to issue orders for the protection for victims of domestic violence. A domestic violence order may impose restrictions on the ability of the person whom the order is against to contact, use violence against, damage the property of, threaten, stalk or harass the victim. A domestic violence order may be issued to victims including: a spouse or former spouse of the perpetrator of the violence; a person who is or has been living with the perpetrator; a relative or former relative of the perpetrator; and a person who has or has had an intimate personal relationship with the perpetrator. The domestic violence order may be sought by the victim (if over 15 years old), his/her legal representative, a police or child protection officer, or a court. Knowingly breaching a domestic violence order is a criminal offence, punishable by up to 400 penalty units ($62,000 as of August 2018) or imprisonment for two years. The domestic violence order remains in force for the period stated, but may be revoked earlier by the victim’s consent or a court order.
The Anti-Discrimination Act prohibits discrimination in certain settings on the grounds of any designated attribute, including sex, sexuality, marital status, pregnancy, parenthood, and breastfeeding. Unlike in other Australian jurisdictions, “gender identity” and “sex characteristics” are not included as designated attributes in the Northern Territory. The settings in which discrimination based on a designated attribute is prohibited include: education, work, accommodation, provision of goods, services and facilities, clubs, and superannuation. Discrimination includes any distinction, restriction, or preference made based on a designated attribute that has the effect of nullifying or impairing equality of opportunity, and harassment based on a designated attribute. Certain exceptions from the prohibition of discrimination exist, including: certain religious circumstances; provision of rights or privileges connected to childbirth; and discrimination aimed at reducing disadvantage. Alleged victims of prohibited discrimination can lodge a complaint against the discriminating person or entity, which will trigger a conciliation. If the matter is not resolved through conciliation, the Northern Territory Anti-Discrimination Commissioner may assess the complaint. If the Commissioner finds that the complaint is substantiated, the Northern Territory Civil and Administrative Tribunal can order that the discriminator pay compensation to the victim, discontinue the discriminating behavior, or do any other act specified by the Tribunal.
Termination of Pregnancy Law Reform Act of 2017 (Northern Territory) (2017)
The Termination of Pregnancy Law Reform Act 2017 (NT) reforms the laws in the Northern Territory relating to terminations of pregnancy by improving access to abortion and abortion drugs, and prohibiting harassing conduct targeted at persons seeking abortion. From July 1 2017, termination was made available in the Northern Territory up to 14 weeks into a pregnancy if a medical practitioner considers the termination to be appropriate having regard to: all relevant medical circumstances; the woman’s current and future physical, psychological and social circumstances; and professional standards and guidelines. For women who are more than 14 weeks but fewer than 23 weeks into the pregnancy, an abortion is permitted if two medical practitioners agree that the termination is appropriate having regard to the same factors. Only terminations necessary to preserve the life of the pregnant woman are permitted 23 weeks or more into the pregnancy. The Act makes it an offense to engage in harassing conduct in termination facilities or any area that is within 150m of such facilities. The maximum penalty for such an offense is 100 penalty units ($15,500 as of August 2018) or 12 months’ imprisonment.