Northern Territory

Court of Appeal

  • O'Neill v Roy [2019] NTCA 8 (4 September 2019) – Northern Territory Court of Appeal

    This matter has been the subject of a successful application for special leave to appeal to the High Court of Australia by the respondent woman (Roy v O'Neill [2020] HCATrans 43 (20 March 2020) ).

    Admissibility of evidence’ – ‘Domestic violence order’ – ‘Female perpetrator’ – ‘Implied licence to knock’ – ‘Legitimate purpose to attend’ – ‘People affected by alcohol misuse’ – ‘Pro-active policing’ – ‘Protection order- whether police had any basis to request to submit to a breath test’ – ‘Whether police have powers to attend the threshold of private property to ensure compliance with a domestic violence order

    Proceedings: Appeal against conviction

    Issues: The admissibility of evidence obtained in the course of what was described as pro-active Domestic Violence Order (DVO) compliance checks undertaken by police officers in Katherine.

    Facts: The respondent woman was the subject of a DVO that protected her male domestic partner. The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.

    Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.

    The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.

    It was initially determined by the Local Court that the officers did not have power under either the Police Administration Act 1978 (NT) or the Domestic and Family Violence Act 2007 (NT) to attend the residence and check that the respondent was complying with the terms of the DVO" and the respondent was found not guilty [7]. The Prosecution first appealed the decision on the grounds that the officers had an implied licence to approach the residence, but the appeal was dismissed with the Supreme Court providing that "absent a clear and express statutory power to do so, neither the police nor anyone else has an implied invitation to enter private property, or the threshold of a person’s home, for the mere purpose of investigating whether a breach of the law has occurred or for the purpose of gathering evidence" [8]. The Prosecution appealed the Supreme Court’s decision arguing that the police had an implied licence to enter the premises. The respondent submitted that "no licence could be implied in the present case because the officers’ purpose for attending the respondent’s threshold was for investigation or gathering evidence of criminal activity by the occupier."[9]

    Judgment: The Court concluded that the Supreme Court Judge erred in deciding that there was no implied license to approach the door. By drawing similarities to Halliday v Nevill, the Court held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose [37]. "There was nothing in the facts to suggest that the occupier did anything to negate or rescind any implied license."[37] This licence extended to visitors walking up the path leading to the entrance of the residence in order to knock on the door and undertake lawful communication with someone within the dwelling. The officers’ enquiry into whether the terms of the DVO were being honoured and to check on the well-being of the protected person constituted such legal communication (Halliday) [37].

  • Olsen v Sims [2010] NTCA 8 (30 November 2010) – Northern Territory Court of Appeal
    Breach of restraining order’ – ‘Repeal of statute’ – ‘Statutory interpretation

    Charge: Breach of restraining order

    Appeal type: Appeal against sentence

    Facts: The appellant was convicted of breaching a restraining order. Some months later he was convicted of failing to comply with the terms of the order. Contrary to the order, the appellant visited the victim at her home and entered in a verbal argument with her after consuming alcohol. The restraining order was made and the offences were against the Domestic Violence Act 1992 (NT) (the former Act). This Act was repealed on 1 July 2008 and replaced by the Domestic and Family Violence Act 2007 (NT) (the current Act). The appellant’s trial in respect to the second offence did not occur until after the current Act came into force. The magistrate found that sentencing provisions under the former Act applied to the appellant. Under s 10(1A) of the former Act, where a person is found guilty of a second offence the Court must impose a minimum sentence of at least seven days’ imprisonment. Accordingly, the magistrate imposed a sentence of seven days’ imprisonment. Section 121 of the current Act provides no mandatory minimum sentence for a second breach where no harm is caused and the court is satisfied it is not appropriate to record a conviction and sentence in the circumstances.

    On appeal to the Supreme Court, Riley J held the magistrate did not err in sentencing the appellant.

    Issue: Whether the magistrate erred in punishing the appellant to a greater extent than was authorised by the current Act by imposing the mandatory sentence of imprisonment of seven days under s 10(1A) of the former Act.

    Decision and Reasoning: All three judges on the Court of Appeal allowed the appeal. The sentence was quashed and the matter was referred back to the Court of Summary Jurisdiction for the appellant to be resentenced.

    Section 14(2) of the Criminal Code (NT) provides that while the appellant could be sentenced under the former Act for his second breach of the restraining order, he could not be punished to any greater extent than was authorised by both the former Act and the current Act.

    Mildren J concluded that the mandatory minimum sentence of seven days’ imprisonment under s 10(1A) of the former Act is a punishment ‘to any greater extent than is authorised by the current law’ pursuant to s 14(2) of the Criminal Code (NT). The Magistrate’s discretion to impose a lesser sentence than seven days under the current Act conferred a punishment to a greater extent than authorised by the current Act.

    Southwood J, agreeing with Mildren J, held that the sentence of seven days imprisonment imposed on the appellant was a greater punishment than authorised by ss 121(1) and (3) of the current Act. Those provisions of the current Act decreased the severity of the penalty required to be imposed for a second breach of a restraining order for the purposes of s 14(2) of the Criminal Code (NT). The sentence imposed was disproportionate to the gravity of the offending. Had the magistrate sentenced the appellant pursuant to s 121, he would not have imposed a sentence of seven days’ imprisonment. As a result, the Magistrate failed to sentence the appellant in accordance with s 14(2) of the Criminal Code (NT).

    Blokland J held that s 121(3) of the current Act does not authorise a sentencing magistrate to sentence on the basis that its starting point is a conviction and seven days’ imprisonment unless that penalty is appropriate and just in all the circumstances. This was the approach of the magistrate in finding he was bound to apply the mandatory minimum term under s 10(1A) of the former Act. The sentence imposed by the magistrate was not authorised when considering the application of s 14(2) of the Criminal Code (NT).