Illes v KM
[2023] ACTMC 42
•17 August 2023
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 first is an interim family violence order number 1193/2019 that was made by a Deputy Registrar on 9 December 2019 – Exhibit P5. The interim order included a prohibition on contact to the protected person ‘except in relation to the adult protected person in writing or by SMS only for the purposes of facilitating contact handover of the respondent’s children or to discuss their safety and welfare’. The interim order was served on the respondent by police, in person, on 10 December 2019 and an affidavit of service was filed with the court to reflect that. This document is included in the related FV court file which forms part of Exhibit P9.
8․The next order issued was the final family violence order, again, number 1193/2019. This order was made by a Deputy Registrar on 3 February 2020 – Exhibit P6. The final order included the same prohibition on contact provision with the duration of the order being an imperative 24 months. This order was served personally on the respondent on 11 February 2020, again, by police and with an affidavit of service filed with the related family violence court file. The court file also reflects on the relevant bench sheet for 3 February 2020 that there was no appearance by the respondent at the hearing of the final order but that there was an affidavit of service reflecting that he was notified of the hearing date.
9․The extended final family violence order, the order that is of most relevance for the purposes of this hearing came before the court on 1 February 2022. The court bench sheet, again, forming part of the related family violence court file records relevantly that –
(a)the matter was heard by a Registrar;
(b)the applicant appeared by telephone;
(c)the respondent appeared by telephone;
(d)the applicant sought to extend the family violence order made on 3 February 2020; and
(e)by consent, the final orders were extended on a without admission basis for a period of 12 months in the same terms as the interim orders made on 3 February 2020.
10․It was further noted on the bench sheet that ‘Copies of consent emails for both parties are on the file’.
11․The reference to consent emails is a series of emails from February 2022 and contained in Exhibit P8. These reflect that on 1 February 2022 at 12.31 pm, a Deputy Registrar sent an email via the court’s Protection Unit email address to the defendant which said:
I refer to this morning’s telephone conference at which the parties agreed to settle this matter by way of a 12-month extension to the FVO of 3 February 2020 on a without prejudice basis in the same terms as the original order (copy attached).
In order for this matter to be formally settled could you please respond by return email confirming that you consent to settle this matter and that you understand the purpose, terms, conditions, and effect to the order as set out in the attached consent document.
Once I have received email confirmation from both parties, I will formally finalise the matter.
12․The court file includes an email from the defendant, seemingly in response to the email, sent at 12.31 pm which states:
Yes, I confirm. Cheers.
13․An additional email forming part of Exhibit P8 reflects that on 1 February 2022 at 1.21 pm, a further email was sent from the defendant which stated:
Hello Protection Unit let me know if you’ve received my email reply with my signature. Thank you.
14․There is no record of any reply to this email if that did occur. The email correspondence in Exhibit P8, otherwise includes that on 11 February 2022 the court Protection Unit sent an email to the defendant’s email address that said:
Please find attached extended order.
15․There are otherwise no documents either adduced in evidence or on the court file that relate to any service of the extended final order.
16․From this documentary evidence, I conclude that I am satisfied that the defendant appeared by telephone at the hearing for the extension of the final family violence order. The defendant consented to the application on a without admission basis and the defendant confirmed his consent by way of a written email response. The defendant was then sent, by email, a copy of the extended family violence order that is dated 1 February 2022 and is Exhibit P7.
17․The issue is then whether the prosecution has established beyond reasonable doubt the preliminary elements under s 43(1). That is, whether the person was (a) present when the family violence order was made or (b) has been personally served in accordance with the Act with a copy of the order.
Preliminary Issue
18․The evidence establishes that the defendant was present by telephone when the order was potentially made. And I say ‘potentially’ as when the order was made is not necessarily clear on the evidence. The defence submits that the order was made ‘in chambers’ rather than at the telephone hearing and that otherwise an appearance by telephone is not presence for the purpose of s 43(1)(a). The prosecution submits that the appearance by telephone ought be regarded as an appearance given the developments of the pandemic and modern court appearances and submits that a ‘quill pen’ interpretation of the law ought to be applied. The defence submits that a ‘quill pen’ interpretation is not an appropriate approach when concerned with interpretation of a penal provision.
19․It is necessary to consider the meanings of both ss 43(1)(a) and (b) as the charges before the court differ in their allegations. CC2022/9536 alleges that the defendant was present, therefore, relies on s 43(1)(a), while the remaining two charges, CC2022/7137 and 9372, allege that the defendant had been personally served relying on s 43(1)(b).
20․I find that the prosecution is bound by the particulars as set out in the respective charges. That is, there was no express indication that an alternative basis was relied upon in respect to any of the charges and accordingly, I will consider the elements as they have been set out in those charges.
Charge 2022/9536 – ‘Present’ When Order Made
21․In relation to CC2022/9536, which alleges that the defendant was present when the order was made, the essential consideration, therefore, becomes whether the prosecution has proved beyond reasonable doubt that the defendant was present when the order was made. Two issues arise in respect to this.
When was the order made?
22․It is necessary to firstly determine when the order was made. The extent of the evidence available as to this comes from the court file. The prosecution did not seek to admit into evidence any court recording or transcript from the apparent conference or hearing that occurred on 1 February 2022.
23․The order itself, Exhibit P7, contains a level of inconsistencies as to when the order was made. It reflects that the order was made by the Deputy Registrar on 1 February 2022 and extends the order from 1 February 2022 and includes a notation that the respondent was present by telephone when the order was made. The court seal appears at the end of the order along with a date of 3 February 2022.
24․Clearly, the defendant was not present on 3 February 2022, nor was he ‘present’ in the sense contemplated when the order was emailed to him on 11 February 2022. I have concluded though that the 11 February 2022 email cannot be regarded as the date that the order was made. This was clearly an email attaching a ‘copy of the order’ which is contemplated by both ss 46(1)(c) and 70C(1)(c).
25․The bench sheet for 1 February 2022 reflects that ‘final orders’ were made from 1 February 2022, with these orders recorded on the bench sheet and a completed stamped form, with the Registrar’s signature following.
26․I have concluded that the date of 3 February 2022 reflects not when the order was made, but rather when the order was perfected. In reaching this conclusion, I have had regard to what is said by Mossop J in R v Palmer [2023] ACTCA 24. While the considerations there were different, and a different court jurisdiction and practices were involved, the decision highlights the distinction between the orders made in court, the record of these on a bench sheet and the perfecting of orders. Applying what was said there to the circumstances here, it is the order as recorded on the bench sheet that amounts to the court’s order. The email correspondence that followed was done in the course of perfecting the order made by the Registrar.
27․The date of the order was therefore 1 February 2022, and it was an order made during the phone appearances.
Was the defendant present?
28․The relevant date being 1 February 2022, the next issue for determination is whether the defendant was ‘present’ in the sense contemplated by s 43(1)(a) when the order was made. As already observed, the defendant’s alleged presence was by way of telephone.
29․The determination as to whether the defendant was present for the purposes of s 43(1)(a) requires consideration of statutory interpretation, with pt 14.2 of the Legislation Act 2001 (ACT) (Legislation Act) particularly applicable. I have also found useful what was said by Curtin AJ recently in Child A (a pseudonym) v Children’s Court ACT [2023] ACTSC 208 as to the principles of statutory construction and the authorities that are cited therein.
30․The prosecution submits that ‘present’ is to be interpreted with a broader meaning since the pandemic and that physical presence in the courtroom is not required. The defence submits that telephone presence is not sufficient.
31․Taking all of the above into account I observe as follows:
(a) Considering the provision in the context of the Act as a whole which, at the time, included pt 22 that specifically considered the requirement as to ‘presence’ for the purposes of s 43(1)(a) during the COVID-19 emergency response and did not provide for telephone presence for this subsection. An interpretation that physical presence is required appears to be the correct interpretation.
(b) The term ‘present’ as it otherwise appears in the Act, for example in the short title to ss 66 and 67, at least in those sections, to contemplate that ‘present’ is a reference to a person being ‘before the court’ rather than merely by telephone.
(c) A dictionary meaning of the word ‘present’ provides that it means ‘in a particular place’.
(d) The Explanatory Statement to cl 90 of the Domestic Violence and Protection Orders Bill 2008 (ACT) (from which s 43 was remade according to the Explanatory Statement for cl 43 of the Family Violence Bill 2016 (ACT)) provides that:
to invoke this provision the respondent must have been present at court when the order was made or have been personally served with a copy of the protection order.
(e) The authority relied upon by the prosecution in submitting that a ‘quill pen’ interpretation of the law be applied with reference to the Bell Group Limited in Liquidation and Anor v Westpac Banking Corporation and Anor [2004] WASC 162 is not persuasive given it is a decision of a single judge of the Supreme Court of Western Australia. There was a concern with the taking of evidence of a witness by video link. While applied in the New South Wales Court of Criminal Appeal in R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311, this was again, in a decision concerned with the taking of evidence of witnesses. I accept the submission of the defence representative to the effect that when interpreting a penal statute that statutory construction authorities provide that construction in favour of the subject and construction in favour of liberty is to be preferred. This supports the conclusion that ‘presence’ does not contemplate presence by telephone, particularly in the absence of express provision for this in the COVID-19 emergency provisions.
32․I conclude from this that the meaning of ‘present’ for the purposes of s 43(1)(a) of the Family Violence Act is not established by appearance by telephone. It follows that the prosecution is unable to establish an essential element of CC2022/9536 and this charge must be found not proved.
Charges 2022/7137, 9372 – ‘Personally served’
33․Moving to CC2022/7137 and 9372. The preliminary issue in respect to the remaining charges is whether, per s 43(1)(b), the defendant ‘has been personally served’ in accordance with the Act with a copy of the order.
34․The order was extended in the exercise of the court’s authority provided by s 86 of the Act which provides for the amendment of a final order by extension. The order is, therefore, a ‘protection order’ as defined in the Act and s 70C imposed requirements on the registrar when such an order is made.
35․Section 70C of the Act provides for service of protection orders; that is, it provides for when there has been personal service in accordance with the Act.
36․There are certain actions of a Registrar that are mandatory if the Registrar makes a protection order. A distinction is drawn as to what is to occur if the order is an interim order (see s 70C(1)(a)) and what is to occur if the order is not an interim order (s 70C(1)(b)).
37․Here, the court is concerned with an extended or amended final family violence order. That is, s 70C(1)(b) applies. I do not accept the submission of the prosecution to the effect that s 70C(3) applies as sub-s (3) is concerned only with an interim order. That is, service to which sub-s (1)(a) applies.
38․Section 70C provides that the Registrar must ‘serve a copy of the order on the respondent’.
39․The question then becomes whether there has been service of a copy of the order on the respondent. Service is not defined in the Act. This includes the Act as in effect at the time which included the COVID-19 emergency provisions. These provisions were silent and therefore did not alter the requirements as to service.
What is meant by ‘personal service’?
40․Section 247 of the Legislation Act is seemingly clear as to how service may be affected on an individual. It includes in sub-s (1)(d) ‘by emailing it to an email address of the individual’. This section was in effect at the relevant time. Section 245 of the same Act provides that the relevant parts apply to a document that is required under a law to be served whether, for example, the word ‘serve’ or ‘give’ is used.
41․There is no dispute here as to the email address used being that of the defendant.
42․It might follow that the court would then readily conclude that there has been service of the order in accordance with s 70C of the Act.
43․However, the defence submits that r 6405 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules) is relevant. This rule provides that to serve a document personally on a person, the person serving the document must give the person (a) if the original of the document is sealed, a sealed copy of the document or (b) in any other case a stamped copy of the document. This rule does not seem to me to be immediately inconsistent with s 247 of the Legislation Act in that it provides the form in which a document ‘given’ during personal service can be. It is not necessarily restricting the service to be only done by physically and in person handing over the document, but rather provides the form the document is given during service can have. Having said that, the use of the word ‘personally’ in the rule is of significance.
44․Rules 6410-3 of the Court Procedure Rules then provides for service of documents in Magistrates Court proceedings. However, these rules are expressly disapplied for family violence proceedings – see r 3803D.
45․Section 247 was inserted into the Legislation Act by the Statute Law Amendment Bill 2021 (ACT). The Explanatory Memorandum for that the Bill does not assist in interpreting the legislative intent with the section. Similarly, the Explanatory Statement to the Court Procedure Rules when introduced in 2006 does not assist with how the rule is intended to interact with s 247 of the Legislation Act. Section 251 of the Legislation Act provides that the relevant part does not affect the operation of any other law that requires service of a document otherwise then, as provided under that part and I otherwise observed that s 247 is a non-determinative provision.
46․There is apparent significance in the use of the term ‘personally served’ in s 43(1)(b) rather than simply ‘serve’ as it appears in s 70C. I conclude that the reference to ‘personally served’ does enliven the meaning as provided in r 6405 and that service by email is not sufficient. In Lewis v Chief Executive, Department of Justice and Community Safety and Ors [2013] ACTSC 198 then Refshauge ACJ said at [161] that in the context of r 6405:
… “give” must have the meaning of “hand over personally to” …
47․It follows that the prosecution must prove as an essential element that there was personal service and that this cannot be established beyond reasonable doubt on the evidence as to the mechanism of service that occurred here. The charges cannot be proved.
Orders
48․The orders of the court are as follows:
(a)Charges 2022/9536, 7137 and 9372 are not proved.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen. Associate: Susie Kim Date: 12 January 2024 |
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