Director of Public Prosecutions v Cormick

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0009

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF CALLAN BRUCE SEXTON)	Applicant
v
ADAM CORMICK	Respondent

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JUDGES:	EMERTON P, T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2023
DATE OF JUDGMENT:	15 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 186
JUDGMENT APPEALED FROM:	[2022] VSC 786 (Niall JA)

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CRIMINAL LAW – Application for leave to appeal – Crown appeal – Respondent subject to family violence intervention order – Condition that respondent not commit family violence – Contravention of family violence intervention order an offence under Family Violence Protection Act 2008 s 123(2) – Respondent made phone calls and sent texts to protected person – Director alleged that respondent committed family violence in form of emotional or psychological abuse by tormenting, intimidating, harassing or offending protected person – Magistrate dismissed charges – Magistrate not satisfied that respondent intended to be emotionally or psychologically abusive – Director appealed to Trial Division – Primary judge held that s 123(2) required prosecution to prove that respondent engaged in impugned conduct intending to emotionally or psychologically abuse protected person – Director seeks leave to appeal decision of primary judge – Whether judge erred in construing relationship between physical and fault elements of s 123(2) – Whether proof of specific intent to torment, intimidate, harass or offend is required to satisfy mens rea for s 123(2) – Leave to appeal granted – Appeal dismissed.

Family Violence Protection Act 2008 ss 5, 7, 57, 123, 123A, 125A; He Kaw Teh v The Queen (1985) 157 CLR 523; Clubb v Edwards (2019) 267 CLR 171.

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Counsel
Applicant:		Ms R Orr KC with Mr M N Keks and Ms L John
Respondent:		Ms S E Lacy with Ms C A Boston
Solicitors
Applicants:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Doogue & George Pty Ltd

EMERTON P
OSBORN JA:

Introduction

On 12 May 2021, an interim family violence intervention order was made against the respondent, Adam Cormick, pursuant to s 53 of the Family Violence Protection Act 2008 (‘Act’) on the application of a member of Victoria Police (‘Interim Order’).
The affected family member identified in the Interim Order was the respondent’s former partner, MT, with whom he shared a daughter, AB.[1] The two conditions attached to the Interim Order prohibited the respondent from committing ‘family violence’ against MT and from intentionally damaging any property of MT or threatening to do so.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of names.
The Interim Order was served on the respondent on the same day.
On 16 July 2021, MT reported a series of breaches of the Interim Order to the police. The respondent was arrested and interviewed on 21 July 2021.
On 2 September 2021, the respondent was charged under s 125A of the Act with one count of persistently contravening a family violence intervention order (charge 1) and four counts of contravening a family violence intervention order contrary to s 123 of the Act on separate occasions (charges 2, 3, 4 and 5). Charge 1 was based on the contraventions alleged in charges 2 to 5.
Section 123(2) provides that a person must not contravene a family violence intervention order. The charge sheet in respect of the offences under s 123(2) of the Act alleged that the respondent contravened the Interim Order on 13, 14 and 17 May and 7 June 2021. Each charge was in substantially the same form and alleged that the respondent:
being a person against whom a family violence intervention order was made pursuant to the [Act], and having been served with a copy of such order or had an explanation of the order given to him in accordance with section 57 (Interim Order) of the Act did contravene that order by committing family violence against the protected person.
The ‘family violence’ conduct charged consisted of sending MT text messages, and making FaceTime and telephone calls to MT between 13 May and 7 June 2021. This was said to be conduct that was emotionally or psychologically abusive towards MT.
The charges were heard at the Frankston Magistrates’ Court in early 2022. On 15 June 2022, the Magistrate dismissed each of the charges, notwithstanding that her Honour found the respondent’s conduct towards MT to be abusive. The Magistrate dismissed the charges on the basis that she was not satisfied to the requisite standard that the respondent intended to breach the Interim Order by emotionally or psychologically abusing MT.
On 13 July 2022, the Director of Public Prosecutions appealed the Magistrate’s decision to the Trial Division of the Court under s 272 of the Criminal Procedure Act 2009. On 16 December 2022, the primary judge dismissed the Director’s appeal.[2]
[2]DPP v Cormick [2022] VSC 786 (‘Reasons’).
The Director now seeks leave to appeal the decision of the judge, essentially on the basis that his Honour was wrong to hold that the prosecution was required to establish that the respondent intended to emotionally or psychologically abuse MT when he made the phone and FaceTime calls, and sent the texts. The Director was represented on appeal by the Solicitor General for Victoria, having regard to the importance of the construction issues raised and the proper operation of the Act more generally. We had the benefit of very detailed argument that was not available to the magistrate or the judge.
For the reasons that follow, we would grant leave to appeal but in all the circumstances of the case (including its history) we would dismiss the appeal.

Statutory framework

The purpose of the Act is expressed to be to maximise safety for children and adults who have experienced family violence, prevent and reduce family violence to the greatest extent possible and promote the accountability of perpetrators of family violence for their actions.[3] The Act aims to achieve its purposes by various means, including by providing an effective and accessible system of family violence intervention orders and family violence safety notices, and creating offences for contraventions of such orders and notices.[4]
[3]Act s 1.
[4]Ibid ss 2(a), (b).
The Preamble to the Act recognises, among other things, that
non-violence is a fundamental social value that must be promoted;
family violence is a fundamental violation of human rights and is unacceptable in any form;
…
while anyone can be a victim or perpetrator of family violence, family violence is predominantly committed by men against women, children and other vulnerable persons;
…
family violence … affects the entire community;
…
family violence extends beyond physical and sexual violence and may involve emotional or psychological abuse;
family violence may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of abuse over a period of time.
‘Family violence’ is defined in s 5 of the Act:
(1)      For the purposes of this Act, family violence is—
(a)behaviour by a person towards a family member of that person if that behaviour—
(i)is physically or sexually abusive; or
(ii)is emotionally or psychologically abusive; or
(iii)is economically abusive; or
(iv)is threatening; or
(v)is coercive; or
(vi)in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b)behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
Examples
1The following behaviour may constitute family violence under paragraph (a)—
·    using coercion, threats, physical abuse or emotional or psychological abuse to cause or attempt to cause a person to enter into a marriage;
·    using coercion, threats, physical abuse or emotional or psychological abuse to demand or receive dowry, either before or after a marriage.
2The following behaviour may constitute a child hearing, witnessing or otherwise being exposed to the effects of behaviour referred to in paragraph (a)—
·    overhearing threats of physical abuse by one family member towards another family member;
·    seeing or hearing an assault of a family member by one family member;
·    comforting or providing assistance to a family member who has been physically abused by another family member;
·    cleaning up a site after a family member has intentionally damaged another family member’s property;
·    being present when police officers attend an incident involving physical abuse of a family member by another family member.
(2)Without limiting subsection (1), family violence includes the following behaviour—
(a)assaulting or causing personal injury to a family member or threatening to do so;
(b)sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(c)intentionally damaging a family member’s property, or threatening to do so;
(d)unlawfully depriving a family member of the family member’s liberty, or threatening to do so;
(e)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
(3)To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.
‘Emotional or psychological abuse’ is defined in s 7 as follows:
For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.
Part 4 of the Act concerns family violence intervention orders. Section 53 provides for interim family violence intervention orders (such as the one here in issue) in the following terms:
(1) The court may make an interim order if—
(a) a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i)to ensure the safety of the affected family member; or
(ii)to preserve any property of the affected family member …
An ‘affected family member’ is defined in s 4 to include a person who is the subject of an application for a family violence intervention order.
Section 11 provides that for the purposes of the Act, a ‘family violence intervention order’ means a final order or an interim order, including, as in the present case, an interim order made under s 53. So defined, an interim order may be made subject to the same conditions as a final order and attracts the same penalties for breach as a final order.
Pursuant to s 81(1), the court hearing the proceeding in which a family violence intervention order is made may attach any conditions to the order that appear necessary or desirable in the circumstances. Examples of such conditions are given in s 81(2). They include a general condition prohibiting the respondent to the order from committing family violence against the protected person.[5]
[5]Ibid s 81(2)(a).
When an interim order has been made under s 53, s 57(1) requires that the court must, among other things, explain to the respondent to the order and the protected person (or whichever of them is before the court), ‘the purpose, terms and effect of the interim order’ and ‘the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order’.[6] Such explanation must be ‘a clear oral explanation’ (s 57(2)) and written notice including the matters in s 57(1) must be given to the respondent and the protected person (or whichever of them is before the court) with a copy of the interim order, or otherwise be given to the protected person or served on the respondent, with the copy of the interim order (s 57(2A)).
[6]Ibid s 57. See full text of s 57 set out at [90] below.

Division 10 of pt 4 deals with contraventions of family violence intervention orders. Section 123 of the Act relevantly states:
(1)This section applies if a person against whom a family violence intervention order has been made—
(a)has been served with a copy of the order; or
(b)has had an explanation of the order given to the person in accordance with section 57(1) ...
(2)The person must not contravene the order.
Penalty:Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.
Section 123A(2) makes it an offence for a person to contravene a family violence intervention order intending to cause, or knowing that their conduct will probably cause, physical or mental harm to the protected person (including self-harm) or apprehension or fear in the protected person for his or her own safety or that of any other person.[7] The offence is punishable by level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.
[7]Mental harm is defined to include psychological harm and suicidal thoughts: ibid s 123A(1).
Division 11 of pt 4 deals with persistent contraventions of family violence safety notices and family violence intervention orders made under the Act. Section 125A(1) makes it an offence to persistently contravene a family violence safety notice or a family violence intervention order. In order to establish the offence, it must be shown that the accused engaged in conduct that would constitute an offence against s 123 and did so on at least two other occasions within a 28 day period immediately preceding the initial conduct (among other things) and that the accused knew or ought to have known that the conduct constituted a contravention of the notice or order.[8] The prescribed penalty for a breach of s 125A is level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.
[8]Ibid s 125A(2).

Magistrates’ Court proceeding

As discussed, the prosecution alleged that the respondent contravened the Interim Order by committing ‘family violence’ towards MT, specifically by being ‘emotionally or psychologically abusive’ towards her. The alleged emotional or psychological abuse consisted of making repeated telephone calls, FaceTime calls and sending text messages to MT.
MT gave evidence that the respondent’s behaviour caused her to leave home on 13 May 2021 and take AB to stay with her parents. On that day, MT received an angry and expletive laden phone call from the respondent. She recalled the respondent asking her what her ‘fuckin’ plans’ were and who put her up to leaving.
MT gave evidence that between 14 and 17 May 2021 she received text messages and missed calls from the respondent which made her feel threatened.
On 14 May 2021, the respondent made 27 phone calls to MT which she did not answer. He also sent text messages to MT, including the following:
Silly move! I’ve kept calm and concerned about your mental well being [sic] more than anything with the torture and hell you’ve intentionally put me through this week, and you still don’t even have the respect to talk to me and give me straight no bullshit answers without hanging up and running from a tough conversation.
I’m glad I’m finally seeing your true colours!!
On 15 May 2021, the respondent texted MT:
I want to FaceTime my daughter after her breakfast.
Answer your FaceTime!!!
On 17 May 2021, there was the following exchange:
MT:
[The respondent], if you wish to have those conversations, please have them at a separate time to FaceTime. It’s not ok to swear during FaceTime or to just hang up without saying goodbye to [AB].
FaceTime is [AB] time.
Thanks
The respondent:
You won’t have those conversations ever so what choice do I have! I want to see my daughter!!!
The prosecution tendered copies of the text messages and screenshots from MT’s phone.
MT’s mother also gave evidence. She said that a FaceTime call occurred on 7 June 2021 between MT and the respondent. During the call, the respondent spoke briefly to AB before the conversation ‘got heated’. MT’s mother said that she could hear the respondent swearing and raising his voice. MT was heard to say: ‘This isn’t the place for this. This is your time with [AB]’.
Both parties relied on the respondent’s record of interview. In the course of the interview, the interviewing officer read the text messages to the respondent. When asked whether he recognised the texts, the respondent said:
Definitely, yeah, yeah. There’s no — like, I definitely wasn’t meant to be hurtful or anything like that to [MT]. It was really stressful and emotional time.
…
So [15 May] was a couple of days after and, you know, like, my first message to [MT] was — the first thing I said was, ‘I hope you’re O.K.’, ’cause I was really worried about her. And then she just kept me in the dark and she wouldn't answer — answer — answer any, like, questions about how [AB]’s going or anything. Or, you know, when she’d come back, when I’m gunna see her, anything. So - - -
…
Yeah. It was definitely not meant to be hurtful or anything like that towards [MT]. It was just a very very very stressful and emotional time.
…
And, yeah, I just wanted to get her talking, just so we could work it out. And just sit down and say, ‘What’s gunna be the best thing for — for [AB]?’ But I — she just — yeah, she just wouldn’t talk to me. So - - -
Before the magistrate, it was common ground that the prosecution had to establish that MT was in fact tormented, intimidated, harassed or offended by the respondent’s conduct. However, the prosecution argued that it did not have to prove an intention to torment, intimidate, harass or offend, as the offence of breaching a family violence intervention order under s 123 of the Act is a strict liability offence.[9] The respondent submitted that mens rea must be proven for any offence, particularly where a gaol term can be imposed.[10]
[9]Relying on Police (SA) v Beukes (2011) 205 A Crim R 406; [2011] SASC 9.
[10]Relying on He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 (‘He Kaw Teh’); DPP v Cope (a pseudonym) [2021] VMC 014.
On 15 June 2022, the magistrate dismissed the charges against the respondent.[11] In her ruling, the magistrate identified two issues for determination: first, whether the prosecution was required to prove mens rea for charges 2 to 5[12] and, if so, whether that element was established; and, secondly, whether the respondent’s conduct towards MT constituted ‘family violence’.
[11]The magistrate also made an order directing the Chief Commissioner of Victoria Police to pay the respondent’s costs (in an amount to be agreed).
[12]Laid under s 123(2) of the Act.
As to whether the respondent’s conduct towards MT constituted ‘family violence’, the magistrate, accepting MT as a credible and honest witness, found that MT felt ‘unsafe, threatened and offended’ as a result of the respondent’s conduct. The communications from the respondent ‘went further than being unkind’ and were ‘emotionally and psychologically abusive, particularly the messages that were highlighted during the evidence such as text messages on 14 May and on 17 May’.
On the first issue, the magistrate rejected the proposition that the offence created by s 123 was a strict liability offence, and held that mens rea had to be proved to the standard required in criminal proceedings. Having considered the authorities relied upon by the prosecution,[13] her Honour said:
In my view, the element of mens rea applies to the offence itself not to the particulars of the offence. In my view it does not matter how the breach is alleged, the offence itself is the same and mens rea should apply. In reaching this conclusion I have considered the authorities that were referred to in both the prosecution and defence submissions. I note that the nature of the alleged breach is important when it comes to proof of that element of the charge.
[13]Police (SA) v Beukes (2011) 205 A Crim R 406; [2011] SASC 9; DPP v Cope (a pseudonym) [2021] VMC 014.

The magistrate concluded as follows:
I am not satisfied beyond reasonable doubt that the accused intended by his behaviour to breach the condition of the [Interim Order]. My reasons for reaching this conclusion include the evidence of the accused, including his answers in the record of interview which took place very shortly after the alleged offending.
The accused was open in the witness box, acknowledging his frustrations and emotional state. In my view, to some extent, he overstated his empathy and concern felt for [MT] as this was not necessarily demonstrated or obvious from his communications with her, but I do find that the prosecution failed to establish beyond reasonable doubt the required intention in each of Charges 2 to 5. Additionally for Charge 5 I note that was the charge that occurred on 7 June, there was insufficient evidence of behaviour constituting family violence.
In relation to Charge 1 as I have found the accused’s conduct on the four occasions set-out in Charges 2 to 5 do not constitute an offence against s 123. I also find the accused not guilty of Charge 1, that is, the persistent breach of [the Interim Order].
The magistrate dismissed each of the charges against the respondent.

Appeal to Trial Division

The Director appealed the magistrate’s orders to the Supreme Court on questions of law pursuant to s 272(1) of the Criminal Procedure Act 2009.[14] The notice of appeal identified two questions of law:
1.Did the learned magistrate err by failing to construe section 123(2) [of the Act] as a strict liability offence?
2.If the answer to Question 1 is ‘no’, did the learned magistrate err when construing the relationship between the physical element and the fault element under section 123 of the [Act]?
[14]Section 272(1) provides that ‘a party to a criminal proceeding (other than a committal proceeding) in the Magistrates’ Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court in that proceeding’.
In her written submissions, the Director abandoned Question 1,[15] accepting that an offence under s 123 of the Act is not one of strict liability and that the prosecution had to prove the mental element of the offence. However, the Director submitted that the magistrate misconstrued the relationship between the physical and mental elements of the offence. In the Director’s submission, the mental element of the offence created by s 123 attaches to the prohibited conduct and not to the result of that conduct as the language of s 123 does not include a fault element to cause a result. According to the Director, a contravention occurs when a person subject to a family violence intervention order engages in conduct violating a condition of that order, ‘regardless of their intention vis-à-vis the legal consequences of that action’. It was submitted that s 123 therefore requires only proof of a general form of intent as opposed to a specific form of intent aimed at producing a particular result.[16] Such a construction of the provision would, in the Director’s submission, best advance the protective purpose of the Act.
[15]Reasons, [30].
[16]Relying on Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11.
On 16 December 2022, the judge made orders dismissing the Director’s appeal and published his reasons.[17]
[17]See above n 2.

Reasons

The judge, having decided that the question that fell for decision was one of statutory construction concerning the nature of the mental element for an offence under s 123 of the Act, stated that although the answer was to be found in the text of the Act, construed in its context, it was necessary to have regard ‘to some foundational principles that inform the construction’,[18] being the principles of criminal responsibility.
[18]Reasons, [39].
Having regard to the principles of criminal responsibility described by the High Court in He Kaw Teh,[19] the judge identified as the starting point for his analysis the principle that mens rea is an essential ingredient in every offence, although this presumption may be displaced by the words of the statute or its subject matter.[20] As a general proposition, the mental element required to be established corresponds to all of the matters that comprise the physical element or the actus reus of the offence.[21] His Honour observed, however, that the criminal law sometimes distinguishes between a general intent to engage in a prohibited act and a specific intent to bring about a specified consequence.[22]
[19](1985) 157 CLR 523.
[20]Reasons, [40].
[21]Reasons, [41].
[22]Ibid.
Fleshing out this distinction, the judge quoted the following passage from Brennan J’s judgment in He Kaw Teh:
General intent and specific intent are … distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.[23]
[23]He Kaw Teh (1985) 157 CLR 523, 569–70 quoted in Reasons, [42].
The judge fastened on the words ‘an act of the character prescribed’ in this passage, stating that in some circumstances, the relevant conduct could only be understood by, and take its meaning from, the circumstances in which it occurs or the consequences that flow. According to the judge, in such cases, ‘the taxonomy between general and specific intent may be less stable’.[24]
[24]Reasons, [43].
In identifying circumstances in which the taxonomy of general and specific intent may be ‘less stable’, the judge referred to Dixon CJ’s description, in the decision of R v Reynhoudt,[25] of the offence of assaulting a police officer in the execution of (their) duty as a ‘compound offence’, in that it is an assault aggravated by the fact that the person assaulted was a police officer and it has occurred in the execution of the police officer’s duty.[26] Dixon CJ stated that the guilty mind had to go to the elements of which the (compound) offence was composed.[27] Likewise, the judge observed that in the case of the charge of importing a prohibited drug in He Kaw Teh, Brennan J had concluded that it was impossible to divide the act of importation from the nature of the object imported. For that reason, intent, and in that context, knowledge, applied to the act and the nature of the thing imported.[28] The judge continued:
In the present appeal, the relevant charge was engaging in conduct that contravened the order on the basis that the behaviour constituted family violence. More specifically it was alleged that the respondent had engaged in ‘behaviour’ that was ‘emotionally or psychologically abusive’. In order to make out that charge, the prosecution was required to prove, to the criminal standard, that the respondent’s behaviour was ‘towards’ MT and that it tormented, intimidated, harassed or was offensive to her. There is no doubt that the prosecution had to prove that the behaviour produced a certain consequence or impact on MT as the protected family member.[29]
[25](1962) 107 CLR 381.
[26]Reasons, [44].
[27]R v Reynhoudt (1962) 107 CLR 381, 386–7.
[28]Reasons, [47].
[29]Reasons, [49].
Having observed that there was no doubt that s 123 incorporated a mental element and that, in identifying the relevant mental state, it was important to focus on the elements of the offence, the judge said:
As a matter of text, sub-paragraphs (i), (ii) and (iii) of the definition of ‘family violence’ found in s 5(1)(a) are directed to abusive behaviour towards the protected family member. The words ‘abuse’ and ‘behaviour’ carry with them a connotation that it is more than mere conduct, but rather a course of conduct of a particular character, with a purpose or object in mind.[30]
[30]Reasons, [52].
His Honour concluded that the relevant acts are not merely conduct of no particular character, but rather ‘a manner of conducting oneself that is directed to another person and of a certain nature’.[31] This, so the judge concluded, made it impossible to divide the physical act — the behaviour ‘towards’ the protected person — and its effect or impact on that person. The character of the act, namely, the behaviour, depends on the impact that it has. At this point, the judge said:
To use the language of Brennan J in He Kaw Teh, there is no dichotomy between the physical act and the circumstances attendant on its occurrence. For that reason, as a matter of text and principle, the starting point is that the accused must intend to engage in behaviour of that character.[32]
[31]Ibid.
[32]Reasons, [53].
According to the judge, to confine the mental element to the physical manifestation of the behaviour but not extend the mental element to the effect or consequences of the physical act would ‘sever the connection between the accused person’s conduct and the vice to which the provision is directed’.[33] His Honour said:
The critical focus of the relevant part of the definition of family violence is the consequences that the behaviour has for the protected family member. It is those consequences that give the conduct its sting. To exclude this component from the mental element would substantially alter the nature of the offence.[34]
[33]Reasons, [54].
[34]Ibid.
His Honour did not consider that the form of the aggravated offence in s 123A of the Act pointed to any different conclusion.[35]
[35]Reasons, [55].
The judge therefore concluded that the respondent had to be shown to intend to commit an act that had the psychological or emotional consequences which formed part of the offending conduct. It was necessary for the prosecution to prove that the respondent sent the messages (and made the phone and FaceTime calls) and that he did so with the intent to torment, intimidate, harass or be offensive to MT.[36]
[36]Reasons, [62]. The judge noted that it was not necessary for the accused person to know that the conduct is productive of legal consequences (e.g. amounting to an offence under s 123 of the Act): Reasons, [61].
As to the second question of law, the judge was satisfied that there was no error in the pathway of reasoning of the magistrate:
Read fairly and as a whole, the magistrate directed herself to whether there had been a breach of the order as alleged. I take that to be a reference to whether the respondent had intended to harass, torment, intimidate or be offensive towards the protected family member. The magistrate referred to the evidence of the respondent, including in his record of interview, which was directed to the purpose or intent of his communications. It was not directed to whether he had the intervention order in mind. That was the correct approach.[37]
[37]Reasons, [64].

This appeal

The Director seeks leave to appeal the judge’s decision on the following four grounds:
1.The Court erred in failing to hold that the learned magistrate erred when construing the relationship between the physical element and the fault element under section 123 of the [Act].
2.The Court erred in its assessment of the mental element or mens rea required in this case for proof of the offence contained in section 123(2) of the Act.
3.The Court erred in holding that in this case it was necessary to prove that the respondent intended to torment, intimidate, harass or be offensive to the protected family member.
4.The Court erred in holding that in this case ‘it is impossible to divide the physical act, namely behaviour “towards” the protected person, and its effect or impact on that person’: the judgment at [53].

Director’s submissions

The Director identified the fundamental issue underlying each of the four proposed grounds to be the proper construction of the offence of contravening a family violence intervention order in s 123(2) of the Act. The Director described her principal submission, which is encompassed by ground 3 but underlies each of the other grounds of appeal, to be that the judge was wrong to find that in order to contravene the Interim Order, the respondent must have intended to emotionally or psychologically abuse MT. According to the Director, there is no basis for such a construction in the terms of the offence provision (s 123(2)), and it is not supported by the statutory context or the purpose of the statutory scheme.
The Director submitted that where the alleged contravention of a family violence intervention order involves committing ‘family violence’ in the form of emotional or psychological abuse, the offence must be construed as having two distinct physical elements: first, that the accused engaged in behaviour towards a protected person; and, secondly, that the behaviour towards the protected person had the result of tormenting, intimidating, harassing or being offensive to the protected person. While the accused must have intended to engage in the particular behaviour towards the protected person, that is, he or she must have intended to do the relevant act, the accused need not to have intended the result, namely, that the protected person was tormented, intimidated, harassed or offended. It is sufficient that that was the result of the accused’s behaviour towards the protected person.
The Director emphasised the language of the definitions in ss 5 and 7 of the Act and their interrelationship. Parliament did not choose to say that family violence is ‘abusing’ a family member. Instead, it said, in terms, that ‘family violence is… behaviour by a person towards a family member of that person if that behaviour … is emotionally or psychologically abusive’.[38] The separation of the act from the consequences of the act is reinforced in s 7, which provides that emotional or psychological abuse is ‘behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person’. According to the Director, the language in both definitions identifies and separates the effect or result of the act on the family member.
[38]Act s 5(1)(a)(ii).
It follows, the Director submitted, that the prosecution must show through the evidence of the victim, that a consequence of the behaviour was that the victim was tormented, intimidated, harassed or offended. There is then room, in accordance with ordinary principles of criminal responsibility, for the accused to raise the defence that they held an honest and reasonable belief that their acts would not cause the protected person to feel tormented, intimidated, harassed or offended. The prosecution would then be required to disprove the honest and reasonable nature of that belief, introducing an element of objectivity into the enquiry, because the magistrate would need not only to assess whether that belief was honestly held, but also the reasonableness of that belief.
The Director submitted that there are two contextual aspects of the statutory scheme that are relevant and support the construction that she advances. First, Parliament has built into the legislative regime safeguards for an accused which are designed to strike the right balance between the safety of the person who has been given the protection of a family violence intervention order and the rights of the respondent to that order. By s 123(1), the offence in s 123(2) only applies if a person against whom the order has been made has been served with a copy of the order or received an oral explanation of the order in accordance with ss 57(1), 60G(1) or 96(1) of the Act.
According to the Director, those provisions contain ‘comprehensive requirements’ for the oral explanation of the order that needs to be given to the respondent when an order is made. Thus, s 57(1) of the Act, which applies in relation to interim orders, where one or both of the respondent and the protected person are before the court, requires the magistrate to explain the purpose, terms and effect of the interim order, and the consequences and penalties that may flow if the respondent fails to comply with the terms of the order. The parties must be told that they cannot agree to do things that would contravene the order, and be informed of the process for deciding the final order and how it interacts with various family law matters. They must also be given information about the family violence services that are available.
The Director submitted that this shows that Parliament has recognised that the way that it has chosen to legislate for this offence might have very serious consequences for the respondent. The process is clearly designed to be a safeguard for respondents to orders, given the way in which Parliament has chosen to define emotional or psychological abuse and the reach of the provisions.
The second matter of context relied on by the Director is the existence of the aggravated offences in ss 123A and 125A, both of which contain express mental elements. According to the Director, they are examples of offences incorporating a mental element and defining what that mental element is. The Director submitted that the offences in ss 123A and 125A were introduced after the simpliciter offence. At that point, Parliament turned its mind to the question of intention and what elements needed to be proved by the prosecution in relation to those offences, and, by contrast, it did not choose to incorporate any requirement for specific intention into s 123(2).
The Director submitted that the construction that she advances is consistent with the statutory scheme as a whole, which she described as ‘victim-focused’. According to the Director, the statutory scheme focuses on the experience of the victim and the fact of abuse rather than on the intentions of the respondent to a family violence intervention order. This, it was submitted, is apparent from the purposes of the Act and the matters enumerated in the Preamble — including the recognition ‘that family violence extends beyond physical and sexual violence, and may involve emotional or psychological abuse, and economic abuse’ and ‘may involve overt or subtle exploitation of power imbalances’.
As to the definition of ‘family violence’, the Director submitted that s 5(3), which provides that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence, makes it clear that the concept of family violence is intentionally broad and covers a wide range of non-criminal conduct. This is consistent with the statutory scheme, which recognises that family violence can take many and sometimes quite subtle forms.
According to the Director, the relevant principles of criminal responsibility result in the following. In respect of the behaviour towards the protected person, the prosecution has to prove that the accused voluntarily and intentionally engaged in the particular behaviour that caused the protected person to be tormented, intimidated, harassed or offended: e.g. sending the text, making the telephone call, standing outside the protected person’s house. In relation to the result — that the accused’s behaviour was emotionally or psychologically abusive to the protected person — the correct starting point is that it is not necessary for the prosecution to prove any mens rea for that result unless some type of specific intent is required by the statute. In the present case, having regard to the text of the Act, neither the offence itself, nor the definitions of family violence or emotional or psychological abuse, include any mental element. This stands in contrast to the aggravated offences.

Respondent’s submissions

The respondent repeated and relied upon the analysis of the judge. It was submitted that the actus reus of the offence charged is that the accused engaged in behaviour towards the protected person that tormented, intimidated, harassed or was offensive to the protected person and that it is impossible to divide the physical act, namely behaviour ‘towards’ the protected person, and its effect or impact on that person. The character of the act depends on the impact it has. To use the language of Brennan J in He Kaw Teh, there is no dichotomy between the physical act and the circumstances attendant on its occurrence. For that reason, as a matter of text and principle, the starting point is that the accused must intend to engage in behaviour of that character.

The respondent emphasised the interim nature of the Interim Order and the fact that it did not preclude contact between the respondent and MT. He submitted that in oral argument at trial, the Crown could not adequately answer questions from the judge about some of the absurd consequences of the construction advanced by the Crown. For example, pursuant to s 5(1)(a) of the Act, family violence is (inter alia) ‘behaviour by a person towards a family member of that person if that behaviour — is physically or sexually abusive’. Under the Crown’s construction, an accused would commit family violence and thus breach a limited order (where contact is not prohibited) if the accused engages in non-consensual activity with the protected person even where the accused had an honest and reasonable belief in the consent of the protected person. The respondent submitted that that could not have been the intention of Parliament.
According to the respondent, the present case is a good example of why Parliament did not displace the presumption that mens rea is required in respect of each aspect of the actus reus. Unexpectedly, the respondent’s wife (whom the respondent understood to be mentally unwell) had disappeared with their small child. He was desperate to make contact with her for legitimate reasons. The Interim Order was limited in nature, and did not prohibit contact between the parties per se; indeed, it did not prevent the respondent and MT from reconciling and resuming their relationship. It could not have been the intention of Parliament to criminalise such conduct absent a guilty mind. The Act must require the prosecution to establish that the respondent intended to torment, intimidate, harass or be offensive to MT.

Discussion

This case concerns the alleged contravention of an interim family violence intervention order for breach of a condition requiring the respondent not to commit ‘family violence’. The family violence alleged is behaviour towards MT that intimidated, harassed or offended her. The magistrate held, and the judge agreed, that while MT had felt emotionally or psychologically abused by conduct engaged in by the respondent, the respondent had not breached the Interim Order because the prosecution had failed to establish that he intended to emotionally or psychologically abuse MT.
The proposed appeal raises four grounds of appeal but a single question of law:
What is the correct relationship between the physical element and the fault element under section 123 of the Act, and, in particular what is the correct relationship where the form of ‘family violence’ is the type described in section 5(1)(a)(ii) and section 7 of the Act [emotional or psychological abuse]?
We accept the Director’s submission that the language of ss 5 and 7 of the Act separates the act towards a family member from its consequences, which are felt by the family member. Thus, s 5 says, in terms, that behaviour will constitute family violence where it is behaviour towards a family member that is emotionally or psychologically abusive. Section 5 does not use terms such as ‘abusive behaviour’ or ‘threatening behaviour’ (which might be described as ‘composite’ terms), but refers to behaviour that ‘is’ abusive, that is, behaviour that is received or perceived as such by the person to whom it is directed. The separation of the act from its consequences is reflected in s 7, which provides that emotional or psychological abuse is behaviour towards another person that torments, intimidates, harasses or is offensive ‘to’ the other person. The behaviour is abusive because of its effect on another person rather than because it is intended to be so.
This language is important for determining the relationship between the physical element and the fault element for the contravention referred to in s 123 of the Act.
A similar separation between the act and its consequences is seen in s 5(1)(a)(vi) which extends to behaviour by a person towards a family member of that person if that behaviour:
in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person;[39]
[39]Emphasis added.
In He Kaw Teh, Brennan J noted that criminal responsibility ‘depends not only on a person’s act or omission but also upon the circumstances in which the act is done or the omission is made, usually upon his state of mind at that time and sometimes on the results of his act or omission’.[40] However, the definition of a criminal offence ordinarily only comprehends the conduct which constitutes the prohibited act or omission, the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission, being the ‘external elements’ of the crime.[41] Brennan J further noted that when a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition and a person will not be criminally responsible for the prohibited conduct unless the mental element is present.[42]
[40](1985) 157 CLR, 523, 564–5.
[41]Ibid 565.
[42]Ibid 565–6.
Brennan J identified three categories of mens rea applicable to the external elements of an offence: voluntariness, general intent and specific intent. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.[43] Thus, when a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results. Importantly, while voluntariness and general intent are generally implied in the statute creating the offence as mental elements applicable to the act involved in the offence, specific intent is not so implied:
Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied.[44]
[43]Ibid 569–70.
[44]Ibid 570.
The principle that specific intent to cause a prescribed result should not be the subject of implication in the statute was confirmed by Nettle J in Clubb v Edwards, where his Honour said:
By contrast to the requirement for proof of a general intent to commit the act charged, there is no presumption in relation to regulatory statutory offences that intent to cause specified consequences is an element of the offence charged …[45]
[45](2019) 267 CLR 171, 255 [246]; [2019] HCA 11. See also R v Marijancevic (2009) 22 VR 576, 583 [32] (Kellam JA and Vickery AJA, Dodds-Streeton JA agreeing at 594 [77]); [2009] VSCA 135.
Of course, the principle that a requirement for specific intent is not to be implied must be treated with caution. Although the High Court has stated that statutory offences should be read in light of the general principles of the common law governing criminal responsibility, it has also said that, while these principles inform the process of construing the relevant statute, ultimately it is the text of the provision that is controlling.[46] The text may, by ‘plain manifestation of legislative intention’ exclude a common law principle.[47]
[46]CTM v The Queen (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ); [2008] HCA 25 cited in BDO v The Queen (2023) 97 ALJR 377, 381 [17] (Kiefel CJ, Gordon, Steward, Gleeson and Jagot JJ); [2023] HCA 16; Stanojlovic v DPP [2018] VSCA 152, [22(g)] (Beach, McLeish and Niall JJA).
[47]CTM v The Queen (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).
In this case, there is nothing in the text of the relevant provisions of the Act, construed in the context of the Act as a whole and having regard to its purposes, to support the implication of a requirement to establish a specific intent to torment, intimidate, harass or offend the protected person.
The judge based his analysis on the proposition that there is no dichotomy between the physical act and the circumstances attendant on its occurrence. In He Kaw Teh, Brennan J observed that there are times when consideration needs to be given to whether the act subsumes the circumstances in which the act occurs and whether the circumstances can be properly considered to be an integral part of the act itself.[48] However, the circumstances in which the act occurs are not the same as the consequences of the act. The example given by Brennan J is instructive:
If an ‘act’ is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called ‘intent’. Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so — to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A’s movement of his fist and B’s presence in the path of A’s movement. Although A’s movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another — a definition that does not include a result — two states of mind would normally be involved: voluntariness of movement and an intention to strike another — and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result — causing bodily harm — the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.[49]
[48]He Kaw Teh (1985) 157 CLR 523, 568.
[49]Ibid 569.
He Kaw Teh speaks of the circumstances (the person being in the path of the movement) being imported into the offence of striking; it does not suggest that the result of the act can be subsumed into the act so that the mental element that attaches to the act also attaches to the result. To the contrary — the statute would have to prescribe a further mental element, namely, a specific intent to cause harm.
In He Kaw Teh, Brennan J recognised that ‘importing’ simpliciter is not a stand-alone act and the character of the act involved in the offence of importing narcotic goods depends on the nature of the object imported.[50] By analogy, the judge held that it was impossible to divide the physical act that is the subject of the contravention, being the behaviour towards the protected person, and its effect or impact on that person. The judge considered that the character of the act depended upon the impact that it had on the protected person.[51]
[50]Ibid 584.
[51]Reasons, [53].
However, the ‘importing’ analogy is inapposite: it is not impossible to separate the physical acts that may constitute family violence — phone calls and text messages, turning up unannounced at the family home — from the consequences for the family member of these calls, texts and other acts. While it is not possible to import nothing, it is possible to do any one or more of these acts on a stand-alone basis. There is then, separately, the question of the effect of the act on the family member. For the reasons given, the statutory language demands division of the act from the consequence(s) of the act. By its terms, s 5(1) makes the act of engaging in the behaviour towards the protected person distinct and divisible from the variety of prescribed impacts that that behaviour may have on the family member or child.
The judge also considered that the words ‘emotional or psychological abuse’ have a connotation that suggests a course of conduct of a particular character with a purpose or object in mind.[52] In this regard, we observe that many of the examples of behaviour constituting ‘family violence’ in s 5(2) of the Act also use words carrying a connotation of positive intent: assaulting, intentionally damaging, depriving, threatening. However, the corollary of the characterisation of abuse as necessarily purposive is that conduct is not abusive unless its purpose is to abuse. That is not the case. As a matter of fact, emotional or psychological abuse can occur without the perpetrator intending to intimidate, harass or offend.
[52]Reasons, [52].
Likewise, under s 5(1)(a)(vi) a person may control or dominate a family member and cause that family member to fear for the safety or well being of that family member or another person (such as a child) without the specific intention to cause that fear.
That the fault element does not attach to the consequences of an act of family violence by means of emotional or psychological abuse is supported by the existence of the aggravated offence in s 123A. That provision expressly requires that there be an intention that the impugned conduct cause physical or mental harm (including self-harm), or apprehension or fear in the protected person for his or her own safety or that of any other person, or that there be knowledge that the conduct will probably cause such harm, apprehension or fear. When enacting s 123A, Parliament turned its mind to the question of intent and made its intention clear. The second reading speech to the Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012 records this intention as follows:
Any contravention of [a family violence intervention order] or [family violence safety notice] is unacceptable and unlawful. This new offence targets the type of case where a respondent not only contravenes the terms of a court order or police notice but actually intends to cause their victim harm or is reckless about whether harm is caused. The government considers that such conduct should be met with an indictable offence carrying a five-year maximum penalty, not just a summary offence with a two-year maximum.[53]
[53]Victoria, Parliamentary Debates, Legislative Council, 29 November 2012, 5347 (Gordon Rich-Phillips, Assistant Treasurer).
The fact that the aggravating conduct in s 123A involves ‘actually’ intending to cause harm, apprehension or fear, or being reckless about whether harm, apprehension or fear is caused distinguishes it from the conduct captured by the existing offence provision.
Furthermore, the purposes of the statutory scheme are better supported by the construction that we favour. The scheme of the Act seeks to protect people who are the victims of violence and abuse in domestic relationships. The Act is specifically protective of women, children and other vulnerable persons, recognising that while anyone can be a victim or perpetrator of family violence, family violence is predominantly committed by men against those groups. The Act expressly recognises that family violence may involve the subtle exploitation of power imbalances, and that it is not limited to episodes of overt violence or threatening conduct, but may consist of isolated incidents or patterns of abuse over a period of time. Importantly, the Act recognises that family violence has a detrimental effect on the entire community. It involves the exploitation of power imbalances and the reinforcement of sexual stereotypes that are unacceptable in contemporary society.
The conclusion that the fault element attaching to the conduct prohibited by s 123 of the Act does not extend to the consequence(s) of the conduct means that a person can be convicted of breaching a condition of a family violence intervention order without any intention to do so. As the respondent pointed out, he was required comply with a condition not to commit family violence while still being permitted to have contact with MT. The nature and extent of the prohibition in an order that a person not commit ‘family violence’ is amorphous, particularly in relation to emotional or psychological abuse. While it may be difficult to innocently or unknowingly ‘torment, intimidate or harass’ a family member, the same cannot be said of ‘offend’. It is possible for offence to be caused perfectly innocently for what might, objectively viewed, seem to be the most trivial of slights. It follows that the range of moral culpability embraced by the section is very broad. Yet the consequences for a person charged with contravening a family violence intervention order are potentially significant.
This is an unfortunate consequence of both the lack of certainty associated with the prohibition contained in a condition not to commit ‘family violence’, and the absence of any requirement for the prosecution to establish a specific intent to torment, intimidate, harass or offend the protected person.
The defence of honest and reasonable belief that the conduct would not torment, intimidate, harass or offend the family member provides some protection against any unfairness arising from the circumstances referred to above. However, it reverses the onus of proof insofar as it requires the satisfaction of an evidentiary onus by the accused.
Furthermore, we are not persuaded that the requirement that the accused be given an explanation of the effect of the family violence intervention order significantly protects them from the potentially harsh consequences of causing unintended offence. Section 57 provides:
57 Explanation of interim order
(1AA)This section applies if the court makes an interim order against a respondent who is an adult.
(1)If the court makes an interim order, and the respondent or protected person (or both) are before the court, the court must explain to the respondent and protected person (or whichever of them is before the court) the following matters—
(a)the purpose, terms and effect of the interim order;
(b)the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order;
(ba)that the interim order may be enforced against the respondent in another State or a Territory under the National Domestic Violence Order Scheme Act 2016 and corresponding DVO recognition laws; and
(c)when the interim order expires and the means by which the interim order may be varied;
(d)for the respondent, that the interim order is a civil order of the court and the protected person cannot give permission to contravene the interim order;
(e)the process for deciding the final order;
(f)how the order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005;
(g)if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the interim order, the purpose, terms and effect of the variation or suspension;
(h)any relevant family violence services offering legal, emotional or practical support that may be available to the protected person or respondent.
(2)An explanation under subsection (1) must be a clear oral explanation.
(2A)A written notice including the matters referred to in subsection (1), in the form prescribed by the rules, must—
(a)be given to the protected person and respondent (or whichever of them is before the court) with a copy of the interim order; or
(b)otherwise, be given to the protected person or be served on the respondent, with the copy of the interim order.
(2B)The written notice may include any additional information the court considers necessary to explain the interim order.
(3)A failure by the court to explain an interim order in accordance with this section does not affect the validity of the interim order.

In the present case, the written order which was provided to the respondent stated by way of explanation of the effect of the Interim Order:
Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.
The respondent was present at the time of the making of the Interim Order but no transcript has been provided of the oral explanation of the Order. We infer that the note contained in the Interim Order reflects this explanation. The Interim Order including this note did not relevantly explain the ‘effect’ of the order not to commit family violence. More particularly, it did not explain the prohibition on unintended emotional or psychological abuse, including that encompassed by giving ‘offence’. Further, the written explanation required by the rules did not rectify this problem.[54] Nor, it appears, was any additional information necessary to explain the Interim Order provided pursuant to s 57(2B).
[54]Form 1A, being the required form of written explanation of interim family violence order under r 11.02 of the Magistrates Court (Family Violence Protection Rules) 2018, relevantly states:
What is an interim order?
1.An interim order is a temporary family violence intervention order made by the Magistrates’ Court or the Children’s Court to protect a person from family violence until the court can decide whether to make a final order. An interim order prevents a respondent from behaving in certain ways, or requires the respondent to do certain things, stated on the order.
2.An interim order is a civil order, and making an interim order does not necessarily mean that an offence has been committed. However contravention of an interim order is an offence punishable by imprisonment or a fine or both. See item 8.
What happens if the respondent disobeys an interim order?
7.The respondent must obey all of the conditions listed in the order at all times.
8.If the respondent disobeys or ‘breaches’ a condition in the order, this means the respondent has ‘contravened’ the order. In Victoria, a contravention of an interim order is an offence punishable by 2 years imprisonment or a fine of 240 penalty units or both. In some circumstances, a higher penalty of 5 years imprisonment or a fine of 600 penalty units** or both may apply. For example, where—
(a) the respondent contravenes the order 3 or more times within a 28‑day period; or
(b) the respondent contravenes the order intending to cause harm or fear for safety, or knowing that the conduct will probably cause harm or fear for safety.
A defect in the explanation of the order to the person against whom the family violence intervention order is made, whether it was given orally in court (s 57(1)) or in writing (s 57(2A)), does not result in an invalid order by reason of s 57(3). In turn, the notice of the order required by s 123(1) is sufficient if the person against whom the family violence intervention order is made is either (a) served with a copy of the order or (b) has had an explanation of the order given to them in accordance with s 57(1).[55]
[55]See [21] above.
In our view, the purpose of the scheme of the Act is not achieved unless the effect of the order has been relevantly explained to the parties to the order. In the present case, the respondent was not given comprehensive notice of the effect of the Interim Order.
Nonetheless, we consider the construction that we favour to be correct, having regard to the text, context and purpose of the Act understood in light of well-established principles of criminal responsibility. The fact that family violence may be committed unintentionally merely by giving offence is not so absurd as to require the words of the Act to be read to extend the fault element of the offence to the result or consequence of the act.
The Act seeks to address a pervasive social problem, the victims of which are vulnerable people caught in dysfunctional domestic arrangements. It therefore seeks to capture forms of abuse that, while subtle, are nonetheless pernicious. Tearing the buds off a rose bush at the family home might be regarded as trivial, but in the context of a family relationship that has broken down and a pronounced power imbalance (which might be based on physical strength or financial control or both), that act might well be perceived as menacing or ‘offensive’. It is notorious that those who are alleged to have committed family violence offer other reasons for their conduct. In many cases, it will be difficult to ascribe a particular or specific intention to an act which results in emotional or psychological abuse. Thus, while the magistrate found that MT felt unsafe, threatened and offended, she concluded that the prosecution must fail because it was unable to prove that the respondent intended to commit family violence towards MT. Essentially, this was because the respondent was able to point to another explanation for his contact with MT which the prosecution was unable to exclude beyond a reasonable doubt. On the magistrate’s construction, unless other plausible reasons for the conduct can be excluded, the accused will be not guilty of breaching an order intended to prevent the conduct in question.
In our view, the legislature has decided that in cases of family violence, the prosecution should not be required to exclude all other explanations for conduct that is perceived by the victim as abusive. It has struck the balance between the rights of family members so as to protect the vulnerable, even at the cost of criminalising behaviour carrying unintended consequences.
Ground 3 is made out. The judge erred in holding that it was necessary to prove that the respondent intended to torment, intimidate, harass or be offensive to MT.
Grounds 1, 2 and 4 raise the same issue of construction and are made out for the reason that ground 3 is made out. The magistrate — in holding that it was necessary for the prosecution to prove that the respondent intended to torment, intimidate, harass or offend MT — erred in construing the relationship between the physical element and the fault element under s 123(2) of the Act. For the same reason, the judge erred in his assessment of the fault element for proof of the offence in s 123(2); and, for the reasons given in [70] to [82], it was not correct to hold that ‘it is impossible to divide the physical act, namely behaviour “towards” the protected person, and its effect or impact on that person’.

Conclusion

Leave to appeal will be granted. Nonetheless, we would dismiss the appeal in the exercise of the residual discretion granted by s 272(9) of the Criminal Procedure Act 2009.
There are two reasons for this. First, the proceedings before the magistrate were conducted on the basis that the provisions in issue created a strict liability offence. On appeal, the Director has conceded this is not so. The requirement that the behaviour towards the victim be voluntary and intentional is a significant element of the offence. The prosecution should not now be permitted to rerun its case before the magistrate on a different basis from that which it contended for at first instance.
Secondly, the form of order served on the respondent did not relevantly explain the extent of the order with respect to emotional and psychological abuse and, in particular, that it prohibited the giving of offence, whether intentionally or unintentionally.
The essence of the offence under s 123 is breach of the family violence intervention order as distinct from breach of a prohibition contained in the Act itself. Section 123 in effect provides for an offence constituted by breach of a form of statutory injunction.
The Interim Order imposed a general condition prohibiting the respondent from committing family violence against his former partner. The order explained this prohibition by way of the note we have set out at [91] above.
The ordinary meaning of the words used in the note to relevantly define the behaviour in issue connoted intentional behaviour, i.e. ‘behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person’.
In our view, the respondent cannot be said to have contravened the Interim Order in terms of s 123(2) unless the order or the explanation of the order conveyed the obligation which is said to have been breached. It cannot be that a member of the public is required to construe the definition sections of the Act to ascertain his or her obligations under such order.
As a matter of ordinary language, neither the term ‘family violence’ contained in the Interim Order nor the explanation of the meaning of this concept contained in the note comprised in the Order, extended to emotional or psychological abuse in the form of giving unintended offence, in particular.
Accordingly, in our view, the respondent could not be convicted of the offence charged on that basis.

T FORREST JA:

The only issue in this appeal concerns the correct construction of s 123 of the Act. I do not accept that the fault element of the offence created by that section is satisfied by proof that the accused intended merely the act that caused the consequence of family violence. I consider proof of the offence requires more than a general intention to commit the relevant act; it requires a specific intention to cause some form of family violence.
I do not propose to rehearse the reasoning of the primary judge. I agree with it.
I wish to add only this. Section 123 of the Act creates a criminal offence punishable by up to two years’ imprisonment or a level 7 fine ($46,154.40)[56] or both. Whether it be characterised as a regulatory offence or not, it is undoubtedly a serious matter for any individual facing such a charge. The consequences of a conviction are potentially ruinous. Even successfully defending a charge will likely create anxiety, expense and disquiet over a protracted period of time.
[56]Level 7 fine (240 penalty units maximum).
If the fault element of a charge under s 123 of the Act is confined in the manner proposed by the Director, a consequence will be that persons the subject of a family violence intervention order may find themselves liable to criminal prosecution for actions that by any sensible measure are harmless or benign.
In discussion, the Director contended that this offence was part of a very particular statutory scheme set against a backdrop of Parliament recognising the many and varied forms of family violence. I accept this, and accept that family violence is a pernicious, corrosive community problem that is rightly the focus of the Act. I also accept, as set out in the Preamble, that family violence extends beyond physical and sexual violence and may involve emotional or psychological abuse and economic abuse. It can be overt or subtle and may be persistent or one-off.
If the Director’s preferred construction is accepted, a person will be liable to criminal prosecution if he or she:
•is the subject of a family violence intervention order;[57] and
•carries out behaviour towards a protected family member;[58] and
•that behaviour is subjectively offensive to that family member.[59]
[57]Act s 123(1).
[58]Ibid s 5(1) (family violence is behaviour by a person towards a family member if that behaviour, inter alia, is emotionally or psychologically abusive).
[59]Ibid s 7 (emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person).
In discussion on the appeal, I posited the following scenario to the Solicitor General who appeared as counsel for the Director:
•A is the subject of a family violence intervention order;
•A pokes his tongue out at B, his partner;
•B takes offence, disproportionately and perhaps irrationally, but nonetheless genuinely; and
•A is liable to be prosecuted criminally under s 123 of the Act.
The Solicitor General submitted that this scenario was an ‘extreme situation’, that police may well use their discretion not to charge, and that what might seem to be the harsh effect of this interpretation would be ‘ameliorated by the availability of an exculpatory belief’. This was a reference to the availability of what is sometimes called a Proudman v Dayman[60] defence[61] — ‘[a]s a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.’
[60](1941) 67 CLR 536, 540 (Dixon J); [1941] HCA 28.
[61]It is not technically a defence; once raised it is a matter for the prosecution to negate. If honest and reasonable mistake is not excluded in a statutory offence, it will provide an excuse for what would otherwise be an offence, although the evidentiary burden will fall upon the defendant. However, the prosecution still bears the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of the relevant facts: Jiminez v The Queen (1992) 173 CLR 572, 582 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); [1992] HCA 14.
I respectfully disagree that the posited scenario is extreme or far-fetched. On the Director’s construction, it is directly contemplated by the words of the statute — as long as any act is performed towards a protected family member and causes offence, it may make the subject of a family violence intervention order liable to criminal prosecution.
I also respectfully disagree with the Solicitor General that the availability of a Proudman v Dayman ‘defence’ is an adequate panacea for any perceived harshness in the favoured construction. The accused person could legitimately be charged with this criminal offence, would have to wait months for his or her case to be heard, may well have to go to the inconvenience and expense of engaging legal representation, would have a case to answer, would likely have to go into evidence and would have his or her fate left to the court. Further, the accused would be required to deal with the anxiety and reputational damage attached to facing criminal prosecution for a family violence offence.
Consider the posited scenario with one more ingredient:
•A knew, because of an incident in the couple’s shared past, that B would be offended or distressed if he poked his tongue out at B.
First, this is precisely the sort of subtle but nasty act that would qualify as psychological abuse, and thus constitute family violence for the purposes of ss 5, 7 and 123 of the Act. Second, if a specific intention to cause family violence is an ingredient of the offence under s 123, then this ingredient would be comfortably satisfied. The harmless act of poking out the tongue would become family violence when accompanied by an intention to cause offence. This is the construction I prefer. Abuse should mean abuse. It should not mean innocently causing offence.
For the reasons that that I have stated, like the primary judge, I consider that the text of the statute does not compel the construction advanced by the Director. In that circumstance, it is well settled that a construction ‘which appears irrational or unjust’ is to be avoided where the statutory text does not require that construction.[62] A construction which calls for a specific intention to cause some specified form of family violence would avoid that consequence. In Legal Services Board v Gillespie-Jones, the High Court made the following observation:
Fundamentally, the Board seeks to impute to the legislature an intention which is neither reasonable nor rational. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, it was said that when a judge assigns labels such as ‘absurd’ or ‘irrational’, he or she is assigning a ground for concluding that the legislature could not have intended a statute to operate in a particular way, and that an alternative interpretation is to be preferred. This is such a case. It is preferable to adopt a construction that will avoid a consequence which appears irrational or unjust.[63]
[62]Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 217 [45] (French CJ, Kiefel, Bell and Keane JJ); [2015] HCA 15.
[63]Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, 509 [48] (citations omitted) (French CJ, Hayne, Crennan and Kiefel JJ); [2013] HCA 35.
Thus, I agree with the majority, but for different reasons, that leave to appeal should be granted but the appeal should be dismissed.
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[2023] VSCA 186

15 August 2023