Cannell v G; G v Cannell - [2018] TASSC 55

[2018] TASSC 55

COURT: SUPREME COURT OF TASMANIA

CITATION: Cannell v G; G v Cannell [2018] TASSC 55

PARTIES: CANNELL, Lauren
v

G
G
v
CANNELL, Lauren

FILE NOS: 1583/2017

1758/2017

DELIVERED ON:  1 November 2018
DELIVERED AT:  Launceston
HEARING DATE:  1 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Motion to review – Tasmania – Procedure and evidence – Matters relating to decision – Duty to state reasons – Competing versions of alleged incidents – Magistrate not required to refer to every piece of evidence and every issue raised by the parties – Magistrate expressed reasons clearly and with sufficient detail.
Robinson v Chatters [2010] TASSC 66, applied.
Aust Dig Magistrates [1349]
Criminal Law – General matters – Criminal liability and capacity – Mens rea – Statutory offences – Generally – Family violence offences – "Meaning of harass" – Requisite mental element is that defendant intended to do the act that constitutes "harassing", in this case following the complainant – Finding that defendant had harassed the complainant clearly open to magistrate.
Family Violence Act 2004 (Tas), ss 4 and 35.
He Kaw Teh v The Queen (1985) 157 CLR 523, followed.
Johnson v Collier [1997] 142 FLR 409, referred to.
Aust Dig Criminal Law [2003]

REPRESENTATION:

Counsel:
             Applicant/Respondent:  E Bill
             Respondent/Applicant:  M Doyle
Solicitors:
             Applicant/Respondent:  Director of Public Prosecutions
             Respondent/Applicant:  Clarke & Gee Lawyers

Judgment Number: [2018] TASSC 55
Number of paragraphs: 65

Serial No 55/2018
File Nos 1583/2017
1758/2017

SERGEANT LAUREN CANNELL v A G
A G v SERGEANT LAUREN CANNELL

REASONS FOR JUDGMENT BRETT J

1 November 2018

G (who, for the sake of convenience will hereinafter be referred to as the defendant), and his former wife (the complainant), separated some time between 2012 and April 2015. Although they may have separated earlier, they continued to live under the same roof until April 2015.
There are three children of the marriage, C, S, and J. The break-up of the marriage and its aftermath was acrimonious, attended by significant on-going conflict. Some of this conflict related to arrangements concerning the contact by each party with the children.
The defendant was charged on multiple complaints with a number of offences arising out of this conflict. In aggregate, there were four complaints which charged him with five separate offences. The offences were alleged to have been committed between 12 June 2015 and 18 April 2016. The defendant pleaded guilty to one of the charges (a charge of trespass on complaint 33548/15), and not guilty to the balance. The remaining charges were heard by Magistrate S Cure in a joint hearing conducted over several days in 2016 and 2017. On 19 May 2017, her Honour decided that two of the charges had been proved, and dismissed the remaining two charges. Detailed reasons were provided for each decision.
The police officers who brought the complaints (to whom I will collectively refer as the prosecution) have now sought review in respect of the charges which were dismissed by the magistrate. By separate notice, the defendant seeks review of the charges found proved. By consent, both motions were heard together.
I will deal with each motion in turn.

Motion to review by the prosecution

Count 1 on complaint 35116/2015

This charge alleged one count of making a false report to police contrary to s 44A(1) of the Police Offences Act 1935. The alleged report related to events which had taken place at the home of the complainant on 12 June 2015. The defendant had attended that house without the consent of the complainant, with the intention of collecting the children for the purpose of contact with them. Although he was due to have the children, there was some dispute as to whether he was entitled to pick them up from the complainant's home. In any event, it is clear that he was not welcome there. The complainant claimed in evidence that the defendant entered the house, despite her demanding that he not do so, and remained in the house, despite her several demands that he leave. It is consistent with all versions of this incident that during the course of her repeated verbal demands to him to leave, she made contact with his body. The complainant's testimony was that she had placed "an open hand on his shoulder to try and push him backwards towards the door". However, in cross-examination, when it was put to the complainant by the defendant's counsel that she had struck the defendant repeatedly, her response was that she "didn't strike him".
It was common ground that after this impasse had continued for a period of time, the defendant eventually left the premises with two of the children. The trespass charge to which he pleaded guilty related to his refusal to leave the premises when required to do so by the complainant.
There was undisputed evidence that on 27 August 2015, the defendant made a complaint to the police alleging that he had been assaulted by the complainant during the course of the said events. Consequent upon the complaint, he made a statutory declaration concerning those events which contained the following:
"[The complainant] walked over to me and struck me to the chest four or five times. She used both hands and closed fists. One of her punches struck me to the neck and one to the right arm, on my bicep, the rest to my chest."
The declaration also asserted that he had not intended to report the matter but did so because of legal advice. It also contained a statement that he would "like [the complainant] charged with assaulting" him.
The charge in question related to those parts of his statutory declaration. The particulars of the charge were:
"Falsely reporting you had been assaulted by [the complainant] on 12 June 2015 at [location]."
The prosecution adduced evidence in addition to that of the complainant for the purpose of establishing that the assertion by the defendant that he had been assaulted by the complainant during the course of the events was false. That evidence included the following:
·     The complainant's sister was present during the course of the events, and in fact video recorded some of the incident on her mobile phone. Her testimony concerning physical contact between the complainant and the defendant was that the complainant "had her hands up saying to (the defendant) 'please get out you're not allowed here, get out'." The transcript suggests that at this time the witness was demonstrating by holding two open hands at chest height. She said that she did not see the complainant strike the defendant in any way. In cross-examination she agreed that the complainant did make contact with the defendant on the basis that she was pushing him with open hands. However, she testified that the complainant did not "strike" the defendant at any time.
·     C's testimony was that the complainant "came up and was hitting (the defendant) on the chest trying to push him out. Not hitting, but trying to push him out". When it was put to him in cross-examination that her hands could have been clenched, C said that he could not "say yes or no". He responded in a similar way to suggestions that the complainant was punching the defendant, and ultimately said, "I couldn't tell you, pushing or striking, I don't know what you guys would call it, but I would have called it pushing".
·     S's testimony was that he did not hear the complainant telling the defendant to leave, nor did he see the complainant hit the defendant.
·     The video from the complainant's sister's telephone was played to the court. I have viewed that video. My impression is that the complainant attempts to make contact with the defendant more than once. She is certainly close to him, and it seems as if she has made contact, but the fact of actual contact is not clear from the video. It is also not clear whether her hands are clenched or open.
The notice of review included a ground that the learned magistrate erred in law in that on no reasonable view of the evidence, could the learned magistrate have been satisfied other than of the defendant's guilt. This ground was abandoned by the prosecution at the commencement of the hearing of the motion. The remaining ground was that "the learned magistrate erred in law in failing to give sufficient reasons in finding 'that the matter was not proven beyond reasonable doubt'." The review was confined to this ground.
In her reasons for dismissing the charge, the learned magistrate analysed the evidence in considerable detail. A fair summary of her reasoning is as follows:
·     The magistrate was not impressed with the evidence of either the complainant or the defendant. In general comments concerning their evidence in respect of all charges, the magistrate observed that "the parties were acrimonious", that "neither was able to give evidence without denigrating the other", and "both were particularly unresponsive in examination and cross-examination". In relation to their respective testimony concerning the charge in question, she regarded them "both as grossly exaggerating the events".
·     Her Honour recited the complainant's evidence that she did not strike or punch the defendant, but was "trying to push him out". The magistrate noted the complainant's evidence that she was doing so "with an open hand".
·     In respect of the issue of the nature of the contact, the magistrate analysed the evidence of C and S in some detail. She noted that the evidence of the children was "of limited help in resolving the matter, but in any event they did not generally assist the prosecution case". The magistrate discounted a claim by the prosecutor that the children's evidence had been tainted by the defendant.
·     In relation to C, the magistrate noted that there was "some debate in the hearing about how he described the contact". He had resiled from the term "hitting", saying that the complainant was trying to "push" the defendant. In relation to this evidence, her Honour said, "I am satisfied he observed something like a push, or a hit to the defendant's chest to push him towards the door in the middle of a heated argument". The magistrate then referred to the complainant's evidence to the effect that she had her hands up and she had pushed the defendant out of the door with an open hand and that she had not struck him, but was pushing him out. Her Honour commented, "I prefer the evidence of C over the complainant on this, and I accept she was pushing him, but I cannot be satisfied either way on whether the hands were open or closed".
·     The magistrate commented that the complainant's evidence concerning her being terrified of the defendant was difficult to accept. She noted that the defendant had said that, "the complainant came at him twice and hit him on both times". Her Honour commented, "I accept he believes on past occasions the [complainant] has hit out at him, but I am of the view that it is likely to be an exaggeration".
·     The magistrate then deals with the video. She says as follows:
"Having viewed the video of what occurred in the house that day, it does show contact between them. It's unhelpful otherwise, as it does not show the whole episode. It does show the complainant striking at the arms and chest of the defendant at one point in time, but does not capture from the time he entered the house to the time he left.
It's also not clear enough to determine what really occurred. The defendant is arrogant by being there. He's been told to get out, but I note that he pleads guilty to trespass. She physically confronts him, and I accept it was her intention to use force to get him out of the house."
·     The magistrate also considered the defendant's record of interview, but notes that at no time during the course of the interview did the police put to the defendant squarely that he had made a false statement.
·     The magistrate concludes her reasons with the following paragraph:
"Having regard to all the evidence of all the witnesses, I cannot exclude the possibility that this is an example of a gross exaggeration of events by the defendant rather than a deliberate making of a false statement. I'm not satisfied beyond reasonable doubt that the defendant has made a false statement, deliberately knowing it to be false. I accept that his perception is that he is assaulting him – sorry – that she is assaulting him. He knows there are witnesses to this event; he knows that it is being recorded. I dismiss the charge on the basis that I'm not satisfied he held the requisite intent."
In order to place the magistrate's final conclusion in context, it is necessary to consider the elements of the offence. Section 44A(1) of the Police Offences Act provides:
"(1) A person shall not, falsely and with knowledge of the falsity of his statement, represent to any police officer or any person employed in the Department that any act has been done, or that any circumstances have occurred, which act or circumstances as so represented are such as reasonably call for investigation by the police."
When regard is had to the elements of the offence, it is immediately apparent that there is a deficiency in the pleading of the charge. The charge particularised the false representation as the defendant having been "assaulted" by the complainant. However, although the statutory declaration indicated that the defendant wanted the complainant to be charged with "assaulting" him, he did not in express terms represent that he had been assaulted by the complainant. If he had done so, such would have been a representation of mixed fact and law, and could not of itself have sustained the charge in question. The representation which is subject to s 44A(1) is "that any act has been done, or that any circumstances have occurred". The representation must, therefore, be one exclusively of fact.
Of course, the statutory declaration relied on as the actus reus of the prosecution case did contain representations of acts and circumstances. However, because the complaint did not properly particularise the representations relied upon, but rather paraphrased the defendant's accusation as an assault, when he had not used that term, the complaint contained inherent uncertainty and duplicity. In particular, it was not clear whether what was asserted to be false was that the complainant had punched the defendant with closed fists, or simply that the complainant had applied force in some way, for example, by pushing him. Both were capable of constituting an assault. Accordingly, from the outset, the presentation of the prosecution case was beset by confusion and semantic debate. For example, the complainant distinguished between "striking" the defendant, and pushing him on the shoulder with an open hand. This confusion was reflected in the evidence of other witnesses. The complainant's sister agreed that the complainant had pushed the defendant, but disputed that she had struck him. As already noted, C had difficulty in defining the nature of the contact, and ultimately notes that the argument is one about semantics and subjective categorisation when he said, "I couldn't tell you pushing, or striking. I don't know what you guys would call it, but I would have called it pushing."
This confusion concerning the nature of the allegation made by the prosecution is reflected in the learned magistrate's assessment of the evidence. The magistrate was satisfied that the complainant used force to remove the defendant from the house, but cannot determine the extent of force. I agree with the magistrate's assessment of the evidence. For example, the video clearly shows contact between the complainant and the defendant, but is unhelpful in terms of demonstrating the precise nature of the contact. The witness testimony is similarly unclear.
Viewed in this context, the magistrate's conclusion that it is reasonably possible that the defendant has exaggerated what occurred, rather than deliberately making a false statement, can be easily understood. The magistrate expressly based her decision on a failure to be satisfied of the requisite mental element, that is that the representation that an act has been done or any circumstances have occurred must not only be false, but be made "with knowledge of the falsity of his statement". Given the lack of clarity in both the pleading and evidence as to the nature of the representation said to be false, the magistrate's reasons were both correct and adequate.
On the hearing of the review, the prosecution's submissions attacked a number of aspects of the magistrate's reasons, but ultimately focussed on the fact that the magistrate did not adequately explain her reasons for not finding the charge proved, particularly in the light of the evidence of [a witness] and the video footage. The argument seems to be based on an assertion that this evidence so clearly demonstrates the falsity of the defendant's representation, that not only must the magistrate necessarily have been satisfied of the falsity of the representation, but also that the defendant knew that the representation was false.
The prosecution's submission, however, is misconceived. In its essence, the prosecution's argument is a return to the abandoned ground that no reasonable magistrate could have come to any conclusion other than a finding of guilt. It certainly cannot be sustained on the basis of insufficiency of reasons. The magistrate is only required to provide reasons which will "provide the parties and the appeal court with an understanding of why the magistrate or judge was left with a reasonable doubt. The prosecution is entitled to know why it has lost": see Robinson v Chatters [2010] TASSC 66 at [81]. In this case, her Honour has made it clear that she is not satisfied that the defendant knew that what he was saying was false, as opposed to exaggeration. To exaggerate does not necessarily imply knowledge of falsehood. For example, the defendant could have exaggerated because he has negligently drawn inferences from his recall of the circumstances. The magistrate's reasoning is perfectly understandable in the light of the confused nature of the prosecution case, and the confused and imprecise evidence as to contact. This was not a case where there was either physical contact or there was not. As has already been demonstrated, all parties accepted that there was contact, or at least attempted contact, in some form. The differences were in the nature of the contact, and these differences depended largely on definition. Any form of contact, including a push, strike, punch, or even touch, was capable of constituting an assault. The prosecution was required to prove that when the accused described the nature of contact in the terms that he used, he knew that he was making a false statement. It is not surprising having regard to the evidence that the magistrate was not satisfied of this mental element.
The prosecution also complains that the magistrate did not refer to the complainant's sister's evidence. It is true that the magistrate did not refer to this witness's testimony, but that evidence, at its highest, did not take the matter any further than the evidence of the complainant, C or the video. The magistrate was not required to refer to every piece of evidence and every issue raised by the parties. The requirement was that she properly expose her reasons for not being satisfied of one of the essential elements of the offence. I am satisfied that she had adequately done so.
There is no merit in the sole ground of review relating to this charge.

Complaint 32242/2016

This complaint contained a single charge that the defendant had contravened an interim family violence order in that on 18 April 2016 at the Federal Circuit Court, he had threatened the complainant by means of a comment made within her hearing.

There is no dispute that, at the relevant time, the defendant was subject to an order which contained the relevant condition. The complainant's evidence was that the threat had been made after the conclusion of a hearing before the Federal Circuit Court relating to the children, which had been attended by both the complainant and the defendant. The complainant was waiting at the lift outside the court in order to descend to the ground floor and leave the building. She was in the company of her brother. The defendant approached, stood next to the brother, and when the lift door opened, entered the lift. The complainant had stepped backwards when the defendant approached. Before the lift doors closed, a recorded voice said "going down". The complainant's evidence was that the defendant had looked at both her brother and her, and said, "You're all going down". These words were alleged by the prosecution to have conveyed a threat, and hence contravened the relevant order.
The complainant's version of this event was corroborated by her brother. The defendant gave evidence, however, that although he had entered the lift as described by the complainant, the words he had used after the voice recording had said "going down", were simply "sure am", or "sure are". He explained that his purpose in saying this was simply to indicate that he was going down in the lift, and he did not care whether they got into the lift with him or not. The effect of his evidence was that he did not utter any words which were intended to convey or could be reasonably construed as a threat.
The magistrate's reasons for dismissing the charges are encapsulated in the following passages of her reasons:
"94The charge is particularised as a threat, namely that he told her 'you're all going down'. I am not satisfied beyond reasonable doubt that firstly those words were spoken but if they were I doubt that I would be satisfied it was a threat or intended to be such a threat, a necessary element of this offence. It is certainly consistent with him harassing her but I would be unable to find that it is some sinister threat if I were satisfied that those words were spoken.
95I find that he approached her unnecessarily and behaved in a manner I regard as harassing rather than threatening and I am of the view that the particulars ought to have been harass rather than threaten.
96It was open to me to amend the particulars under s 31 of the Justices Act 1959. I am of the view that such an amendment without notice to the defendant would create an incurable unfairness at this point in the proceedings given the manner in which this case has been run. I dismiss that charge."
As with the charge already discussed, the prosecution abandoned the ground which complained that it was not reasonably open to the magistrate to not be satisfied of guilt, and relied solely on the ground that the magistrate's reasons for this conclusion were insufficient.
The prosecution's submissions specifically relate to the magistrate's finding that she was not satisfied beyond reasonable doubt that the words "you're all going down" were actually spoken. The argument is that the magistrate did not explain why she did not accept the clear evidence of the complainant and her brother that these words were spoken.
It is true that the magistrate does not provide any specific reason for having a reasonable doubt as to whether those words were spoken. Ms Bill, on behalf of the prosecution, also argued that the magistrate had not explained why she had accepted the defendant's evidence in preference to the evidence of the complainant and her brother. However, the magistrate did not expressly accept the evidence of the defendant about this incident. Nor can it be inferred from her failure to be satisfied of the version of the complainant and her brother that this was the case. As judges explain to juries in every criminal trial, a verdict of not guilty does not mean that the jury has positively accepted that prosecution witnesses have lied, or that the accused is innocent, or has given a truthful version of the relevant events. What was required from the magistrate was simply an explanation as to why she was not satisfied of guilt beyond reasonable doubt: see Robinson v Chatters (above).
In relation to that question, it is apparent from her Honour's reasons that the finding concerning the words that were spoken was not critical to the decision to dismiss the complaint. The determinative issue was the magistrate's lack of satisfaction that the words, if spoken, constituted a threat. The prosecution does not assert that that finding, or the determination that she should not exercise her discretion to amend the particulars, were not reasonably open to the magistrate. Clearly they were. Nor does the prosecution's counsel attack the sufficiency of this reasoning. Once again, this is not surprising. The magistrate has expressed her reasons clearly and in sufficient detail. Her reasoning proceeds on the assumption that the evidence of the complainant and her brother is accepted. Irrespective of the acceptance of that evidence, the magistrate's finding that she could not be satisfied that the order had been contravened by a threat, was clearly explained. There is no merit in the ground of review in respect of this complaint.
It follows that the motion by the prosecution seeking review of these charges is unsuccessful.

Motion to review by the defendant

Complaint 30189/2015

This complaint alleged a further breach of the same interim family violence order. The alleged contravention was of a condition that the defendant was not to be within 100 metres of the complainant, except in defined circumstances. One of the exceptions is:
"(c)in accordance with a current contact agreement reached as above or an order of a court of competent jurisdiction relating to [J, S and C G]."
The reference to an agreement "reached as above" can be understood by reference to another exception which allows contact for "the purpose of discussing matters relating to the children".
The undisputed evidence was that, on 11 December 2015, the defendant had stopped his vehicle next to the complainant's car on a street near the entrance to the driveway to the defendant's residence. The complainant's evidence, which was consistent with the evidence of the defendant and S, was that the children were with her on the day in question pursuant to the arrangement between the defendant and her. In normal circumstances, she would simply have collected S from school at the end of the day. However, S had telephoned her during the day to inform her that he was sick and to ask her to collect him from school. She was unable to do so because of work commitments and had offered for other relatives to collect him, but S had declined and said that he would arrange for the defendant do so. S then agreed with the complainant that she would collect him later in the day from the bottom of the driveway on the street.
S's evidence was that the normal practice was that if he was to be collected by the complainant from that location, he would walk from the house to the bottom of the driveway. However, other evidence established that the driveway is 2.9 kilometres in length. S estimated that it would normally take him 20 minutes to walk this distance. On the day in question, because he was feeling ill, he asked the defendant to drop him at the bottom of the driveway.
The complainant's evidence was that while she was waiting for S, she saw in her rear vision mirror, the approach of the defendant's vehicle. He pulled up "very suddenly right next to my driver's side window very close to my vehicle". She felt it necessary to reverse her vehicle to get out of the way.
The defendant's evidence confirmed that he had collected S from school as requested. S had asked him to "drop him to the end of [location]". The defendant drove S there to a place which he said was the usual parking spot where the children were picked up and dropped off. He left S there and moved his car forward beside the complainant's vehicle because he thought J might have been in the car, and he wanted to wave to J.
The magistrate found in accordance with the uncontested evidence. She was satisfied that the defendant went within 100 metres of the complainant and that this prima facie constituted a breach of the order. In relation to the claim that the actions of the defendant in doing so fell within the above exception, the magistrate said:
"There is no evidence before me about what was the 'current contact agreement' which is an exception to the prohibition on approach although that might have been an available defence if there was an arrangement."
Her Honour noted that the question of whether it was reasonable in the circumstances for the defendant to go within 100 metres of the complainant was not a defence to a charge of contravention of a family violence order, although it would be relevant to the question of penalty. Her Honour concluded her consideration by noting that she was "not of the view that his conduct was in any way threatening or unreasonable even though I do find the charge proved".
The sole ground of review is that "on no reasonable view of the evidence ought" the magistrate have found the complaint proved. At hearing, the defendant's counsel, Mr Doyle, conceded that the evidence established that the defendant had gone within 100 metres of the complainant, but submitted that the only reasonable conclusion available to the magistrate was that his actions in doing so fell within the said exception. He submitted that the agreement had come about in the circumstances through the agency of S when he arranged to be picked up by the complainant at the end of the driveway.
There was sufficient evidence to establish that the delivery of S to that part of the road was not authorised by any extant agreement, other than the informal arrangements made by S with his parents on the day in question. It is submitted by Mr Doyle that such an agreement is capable of falling within the exception. I agree with this submission. There is no reason why an agreement in relation to a single event, or arranged through the child or another intermediary, could not be included within the ordinary meaning of the words of the exception.
However, on any view of the evidence, there was nothing in the agreement which authorised the defendant to go within 100 metres of the complainant. The arrangement was simply that S would be collected by the complainant from the end of the driveway. There was nothing in the evidence to suggest that there had been any agreement that the defendant would deliver S to that point. The usual practice had been that S would walk to that point, which supports an inference that it was not within the contemplation of either party that the defendant would drive his car to a point immediately adjacent to the complainant's vehicle. Even if such an expectation could be implied as a term of the agreement, having regard to S's illness, there is no suggestion that he was unable to walk 100 metres between the cars, or that the defendant could not have found some other way to transport S to the meeting place. A contravention of a family violence order is made an offence by s 35(1) of the Family Violence Act 2004 (the Act). There is no requirement in that section that the contravention be established to be unlawful, nor does the section or the Act permit a defence of lawful or reasonable excuse. As the learned magistrate correctly noted, the question of whether it was reasonable for the defendant to drive up to the complainant's vehicle to drop off S, was irrelevant to the question of whether he had contravened the order. I agree with this observation. There was ample evidence to establish that the defendant had breached the order. There is no merit in this ground of review.

Count 1 on complaint 35116/2015

This charge alleged that on 28 August 2015, the defendant had contravened a family violence order made on 2 July 2015 which contained a condition that he was not to directly or indirectly threaten, harass, abuse or assault the complainant. It was alleged that on the day in question, he had harassed the complainant by approaching her on a number of occasions in an attempt to serve her with legal process, in particular an application for a restraint order. The alleged harassment included blocking her vehicle with his own vehicle on one such occasion.
Again, the sole ground of review is that the conclusion of the magistrate that the charge had been proved was not reasonably open on the evidence. It is not disputed by Mr Doyle that the evidence established that the defendant had approached the complainant on a number of occasions on the day in question. Each approach occurred while the complainant was collecting a child from a pre-arranged public location. There was ample evidence of the approaches. The defendant conceded that he had done so, but asserted that his intention was not to harass the complainant, but simply to serve her with legal process. He gave evidence that he had taken advice from staff members of the Magistrates Court and had been left with the impression that he "wasn't stepping outside any laws by presenting [the complainant] with the application".
At the hearing of the complaint, the defendant's counsel argued that the prosecution had not proved the "mental element" of the charge. In particular, it was argued that it was necessary for the prosecution to prove that the defendant's intention was to harass the complainant in order to establish a contravention of the order. It was submitted that the evidence did not exclude the reasonable possibility that the defendant's purpose had simply been to effect service of the documents, and accordingly the mental element had not been established to the requisite standard.
On the hearing of the review, counsel for the defendant relied upon this argument in the context of the sole ground of review. It was submitted that it was not open to the magistrate to be satisfied beyond reasonable doubt that the defendant had the requisite mental intent, in particular an intention to harass the complainant. Counsel confined his submissions with respect to this charge to that argument.
The offence charged on this complaint arises by virtue of s 35 of the Act. Under that section, a person who contravenes a family violence order commits a summary offence. The actus reus of the offence will depend upon the condition of the order which is said to have been contravened. In this case, the allegation was that the order had been contravened by breach of the condition which required the defendant not to harass the complainant.
"Harass", of course, has an ordinary meaning. However, it is also the subject of specific definition under the Act. Section 4 provides:
"In this Act, unless the contrary intention appears —
harassing means doing any one or more of the following actions in respect of a particular person:
(a) following the person;
(b) keeping the person under surveillance;
(c) loitering outside the residence or workplace of the person;
(d) loitering outside a place that the person frequents;
(e) entering or interfering with the property of the person;
(f) sending offensive material to the person or leaving offensive material where it is likely to be found by, given to or brought to the attention of the person;
(g) publishing or transmitting offensive material by electronic or any other means in such a way that the offensive material is likely to be found by, or brought to the attention of, the person;
(h) using the internet or any other form of electronic communication in a way that could reasonably be expected to cause the person to be apprehensive or fearful;
(i) contacting the person by postal, telephonic, electronic or any other means of communication."
At the hearing, the defendant's counsel submitted that this definition should be applied to the condition contained in the order and, further, that it is intended to be an exhaustive, not an inclusive, definition. In relation to the latter point, the submission is consistent with the orthodox approach. See discussion in Pearce & Geddes, Statutory Interpretation in Australia, 8^th ed, 2014, cl 6.60. I see no reason to depart from that approach in this case.
A more difficult question is whether the definition should be applied to word "harass" when it is used in a condition of the order. The express terms of the conditions of an order are not prescribed by the Act. By s 16(2), a family violence order "may include such conditions as the court considers are necessary or desirable to prevent the commission of family violence". However, the question arises as to the statutory purpose of the definition of "harassing" in the Act. It appears on my review of the Act that the only time that the word "harassing" is used, is in respect of conditions which can be included in a police family violence order. Section 14(3) provides that:
"(3) A PFVO may require the person to whom it is issued to do any or all of the following:
…
(d)refrain from harassing, threatening, verbally abusing or assaulting an affected person, affected child or other person named in the order;
...".
Although this prescription does not apply to an order made by a court, which is the order in this case, the relevant condition was in the same terms as a previous police family violence order, and reflective of the condition prescribed by s 14. The precise terms of the relevant condition were as follows:
"1 Not directly or indirectly threaten, harass, abuse or assault [the complainant]."
In those circumstances, I am of the view that "harass" as used in the order was intended to have, and should be understood as having, the meaning prescribed for the same condition as if it appeared in the police family violence order. Accordingly, it should be interpreted in accordance with the definition prescribed by s 4.
It follows that the defendant will have harassed the complainant, and thereby contravened the order, if it is proved that he has committed any one or more of the acts prescribed by the definition, but not otherwise. In this case, although the prosecution relied on a number of paragraphs of the said definition, I am satisfied that the conduct in question would, at least, be caught by par (a), that is, following the complainant. This was clearly the view of the learned magistrate. Her Honour was satisfied that the defendant had walked towards the complainant on the specified occasions "either holding papers or using his phone to record her". Her Honour was not satisfied that the defendant had intentionally blocked the complainant's car, and removed those words from the particulars of the charge pursuant to her power under s 31 of the Justices Act 1959. The particulars found proved by the magistrate were "harassed (the complainant) by attempting to serve her with paperwork by following her". Hence, her Honour was correctly satisfied that the actus reus of the charge had been proved by the prosecution.
The question to be resolved is whether the offence also contains a mental element and, if so, whether it was open on the evidence for the magistrate to be satisfied of the existence of that element. It is apparent from the magistrate's reasons that she was satisfied of the existence of a mental element, although neither in submissions or in her Honour's reasons was any real attempt made to clarify the precise nature of that element. In relation to this question, her Honour said:
"The breach has to be deliberate and intended to harass her. I am satisfied that he has sufficient intent because he takes the view that he is entitled to serve her with documents and that justifies his conduct".
Her Honour also made the point expressly that the defendant's desire to serve paperwork on the complainant was his motive for following the complainant and thereby harassing her, and distinguished between motive and intention in this context.

The general principles relating to the state of mind implied as an element of an offence such as this are well settled. Having regard to s 4(3) of the Criminal Code, the principles of criminal responsibility under the Code are not applicable to an offence punishable summarily, except as provided by s 36 of the Acts Interpretation Act 1931, that is, where the act or omission constituting the summary offence also constitutes a crime punishable on indictment. In the case of an offence under s 35 of the Act, there is no cognate indictable crime. Accordingly, the principles of criminal responsibility will be determined in accordance with the common law: Gow v Davies [1992] 1 Tas R 1.
Under the common law, it is presumed that mens rea is required before a person can be held guilty of an offence: He Kaw Teh v The Queen (1985) 157 CLR 523. However, this presumption can be rebutted by express provision or necessary implication under the terms of the statute creating the offence. In He Kaw Teh, Gibbs CJ noted three considerations relevant to the question of whether the presumption has been displaced. They are the express words of the statute, the subject matter with which the statute deals and the question of whether displacement of the presumption will assist in the enforcement of the relevant provision.
In the same case, Brennan J cited the following propositions from the judgment of the Privy Council in Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1 at 14:
"(1)there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2)the presumption is particularly strong where the offence is 'truly criminal' in character;
(3)the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(4)he only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;
(5)even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
His Honour went on further to comment on these propositions as follows:
"The first three propositions correctly emphasise the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as 'an issue of social concern'), without regard to the whole of the statutory context."
In this case, each of the three considerations, the words of the legislation, the subject matter and the viability of enforcement, has a role to play in determining the existence and nature of the mental ingredient of the offence. The statutory mechanism of defining harassment by reference to the acts of the alleged harasser is particularly significant. "Harass" in its ordinary sense involves conduct committed with the purpose of causing an effect on the person harassed, eg worry, fear or mental anguish: see Johnson v Collier (1997) 142 FLR 409. However, in my view, the provision of an exhaustive definition of "harassing", by reference to the actions of the alleged harasser, excludes the need to establish that the actions in question have had any particular effect on the person protected by the order, unless expressly so provided in the definition. It must logically follow that there is no requirement that the defendant intend or otherwise foresee the causation of such an effect. These conclusions are confirmed by the inclusion in some of the defined actions of an express requirement that the action occur in circumstances "where it is likely" that there will be some consequence relevant to the protected person. For example, in par (f), it is necessary that the offensive material be left "where it is likely to be found by, given to or brought to the attention of" the protected person. There are similar express requirements contained in pars (g) and (h). There would, of course, be no need to include these specific provisions, if an intention to cause or the actual causation of apprehension or fear was already implied in the definition.
This construction is consistent with the subject matter and social purpose of the relevant legislation. The provisions in question are concerned with the establishment of firm and viable processes to ensure the protection of persons, from persons who probably have committed, and will again commit, family violence (s 16(1) of the Act). Family violence is recognised as a significant social problem and the Act is directly and expressly directed at dealing with this problem. A family violence order is the primary protective mechanism employed by the Act. Section 3 provides:
"In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations."
The construction of the Act in respect of the mens rea required for the offence of contravention of an order, will be heavily influenced by this statutory context. However, while these considerations weigh against the presumption in favour of proof of intention to commit the offence, they do not completely displace it. Rather, they fashion and define the required mental element. Although the offence created by s 35 is summary, the section prescribes heavy penalties. This is also a relevant consideration, one which weighs in favour of the application of the presumption. In my view, the proper balance leads to the conclusion that the requisite mental element is that the defendant must intend to do the act, which by virtue of the definition in s 4, constitutes "harassing". In this case, the relevant act is that defined by par (a), following the complainant. If this mental element is present, then the legislation operates to deem that the person has harassed the person protected by the order and, if the condition is in place, deems that there has been a contravention of the order. A requirement of this nature is consistent with the statutory scheme, is appropriate having regard to the subject matter of the provision, and enables and supports the viable enforcement of a family violence order. It also provides the person subject to the order with a clear understanding of the conduct proscribed by it.
In this case, the evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional. The magistrate was also satisfied that the defendant had intended to harass the complainant, although that finding was not necessary to establish guilt. The fact that the defendant's motive for following the complainant was to serve legal process was irrelevant to his liability for the offence. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order. Further, any mistake on the part of the defendant as to what was or was not permitted by the order was a mistake as to the legal effect of the order, and was hence a mistake of law.
I conclude that it was clearly open to the magistrate to find that the charge had been proved. This ground of review has not been made out.
It follows that both motions have been unsuccessful, and will be dismissed.