Illes v KM - [2023] ACTMC 42

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Illes v KM
Citation:	[2023] ACTMC 42
Hearing Dates:	26 July 2023
Decision Date:	17 August 2023
Before:	Special Magistrate Christensen
Decision:	Charges not proved.
Catchwords:	CRIMINAL LAW – EVIDENCE – contravene family violence order – whether personal service occurred – whether present when order made
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 3803D, 6405, 6410-6413 Family Violence Act 2016 (ACT) ss 43, 46(1)(c), 70C Legislation Act 2001 (ACT) pt 14.2, ss 245, 247, 251
Cases Cited:	Bell Group Limited in Liquidation and Anor v Westpac Banking Corporation and Anor [2004] WASC 162 Child A (a pseudonym) v Children’s Court ACT [2023] ACTSC 208 Lewis v Chief Executive, Department of Justice and Community Safety and Ors [2013] ACTSC 198 R v Palmer [2023] ACTCA 24 R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311
Texts Cited:	Domestic Violence and Protection Orders Bill 2008 (ACT) cl 90 Explanatory Memorandum, Statute Law Amendment Bill 2001 (ACT) Explanatory Statement, Court Procedure Rules 2006 (ACT) Explanatory Statement, Domestic Violence and Protection Orders Bill 2008 (ACT) 22 Family Violence Bill 2016 (ACT) cl 43 Statute Law Amendment Bill 2001 (ACT)
Parties:	J Illes (Informant) KM (Defendant)
Representation:	Counsel D Armstrong (Informant) T Sharman (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Tim Sharman Solicitors (Defendant)
File Numbers:	CC 7137 of 2022 CC 9372 of 2022 CC 9536 of 2022

SPECIAL MAGISTRATE CHRISTENSEN

REASONS FOR DECISION:

Introduction

1․The defendant is charged with three offences of contravening a family violence order contrary to s 43 of the Family Violence Act 2016 (ACT) (Family Violence Act).
2․The matter proceeded to hearing on 26 July 2023 with four witnesses called by the prosecution. The parties made submissions in writing which were received by the court subsequent to the hearing.
3․The defendant did not give evidence in the hearing and no adverse inference can or is drawn against him because of that. The prosecution always bears the onus of proving the charges to a standard of beyond reasonable doubt.
4․From the outset of the hearing, the issues to be determined were identified as relatively narrow ones. There are essentially two issues that will inform the court’s conclusion as to whether the prosecution has proved the elements which are set out in the aide memoire – MFI A.
5․These are firstly, whether the defendant was present when the family violence order was made or he was personally served with a copy of the order as is required by s 43(1) of the Family Violence Act and secondly, whether the conduct alleged to have contravened the order did so in circumstances where there was a form of contact agreed in relation to the children and otherwise, whether the defendant was reckless as to his conduct.
Background to Family Violence Orders
6․The history of the issuing of the family violence orders in this matter is relevant to set out. The orders relate to the protected person being the complainant in this proceeding.
7․The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Illes v KM

Details

AGLC: Illes v KM [2023] ACTMC 42
Case: [2023] ACTMC 42
Decision Date: 17 August 2023

CaseChat Overview and Summary

The case of Illes v KM involved the respondent, KM, who was charged with contravening a family violence order. KM was alleged to have contravened the order by being present in a specified location and in the company of another person. The matter was heard in the Magistrates Court of Victoria. KM disputed the allegations, claiming that there was no personal service of the order and that she was not present when the order was made.

The central legal issue the court had to decide was whether the prosecution had established beyond reasonable doubt that KM was personally served with the family violence order and whether she was present when the order was made. Additionally, the court needed to determine whether KM contravened the order by being present in the specified location and in the company of another person.

The court found that the prosecution had not proven beyond reasonable doubt that KM was personally served with the family violence order or that she was present when the order was made. Consequently, the court concluded that the prosecution had not established the necessary elements of the offence. As a result, the charges against KM were dismissed, and it was ruled that the charges were not proved. The court's reasoning was based on the lack of evidence to substantiate the claims of personal service and presence at the time of the order.

Orders

Orders of the court

Charges not proved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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