Kershaw v Wales
[2024] ACTSC 228
•16 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kershaw v Wales |
Citation: | [2024] ACTSC 228 |
Hearing Date: | 15 July 2024 |
Decision Date: | 16 July 2024 |
Before: | Mossop J |
Decision: | 1. The appeal against the conviction in respect of charges CAN 3646/2023 and CAN 3647/2023 is upheld. 2. The findings of guilt made by the Magistrates Court on 2 February 2024 are reversed pursuant to s 218(1)(a) of the Magistrates Court Act 1930 (ACT). 3. Verdicts of not guilty are entered on charges CAN 3646/2023 and CAN 3647/2023. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Family violence order – whether document recording hearsay evidence in court order sufficient to prove presence of the appellant when order made – Family Violence Act 2016 (ACT), pt 3 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Recognition of equivalent violence orders made interstate – where interstate legislative scheme provides for proof of notification of order and process not followed - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 98ZT; Family Violence Act 2016 (ACT), pt 9 |
Legislation Cited: | Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3(3), 98ZT Family Violence Act 2016 (ACT), ss 43, 117, 124, 125, 139, pt 3, pt 9, Div 4.4A Magistrates Court Act 1930 (ACT), s 218 |
Parties: | Mathew Kershaw ( Appellant) Katie Wales ( Respondent) |
Representation: | Counsel J Maher ( Appellant) G Meikle ( Respondent) |
| Solicitors Peter Agoth & Associates (Appellant) Director of Public Prosecutions (Respondent) | |
File Number: | SCA 12 of 2024 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 2 February 2024 Case Title: Wales v Kershaw Court File Number: CAN 3646/2023 |
MOSSOP J:
1․Mathew Kershaw was convicted of two counts of contravening a family violence order. The family violence order in question was a New South Wales interim apprehended domestic violence order (interim DVO) made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). The offence provision was s 43(2) of the Family Violence Act 2016 (ACT) (FV Act) which provides that a person commits an offence if the person engages in conduct that contravenes a family violence order. Section 43(1) identifies the circumstances in which s 43(2) applies. The two circumstances are either the person “was present when the family violence order was made” or had been “personally served in accordance with this Act with a copy of the family violence order”.
2․The manner in which the parties approached the question in the Magistrates Court, and initially in submissions on the appeal, was to assume that the requirements of s 43(1) applied in circumstances where the order to be enforced was a family violence order arising from a nationally recognised order made in New South Wales. That assumption was not correct.
3․Part 9 of the FV Act deals with national recognition of family violence orders. New South Wales is a participating jurisdiction for the purposes of the scheme. Section 124 of the FV Act provides that an interstate order from a participating jurisdiction becomes enforceable in the Territory when the respondent is “properly notified” under the law of the jurisdiction in which the order was made. For this purpose, “properly notified” means that it was notified in the circumstances provided for by the corresponding law of that jurisdiction: s 117(2). Section 125 provides that such an order may be enforced in the Territory as if it was a local family violence order and as if “the respondent had been properly notified of the making of the FVO under territory law”. The reference to “properly notified … under territory law” means that it is enforceable as if it had been “properly notified” within the meaning of s 117(1). That required the respondent to be present when the FVO was made or to be served in accordance with Div 4.4A.
4․The existence of s 125 means that the requirement in s 43(1) must be taken as being satisfied by proper notification under the New South Wales legislation. In the circumstances of this case, that means the defendant was required to be “present” in court when the order was made or served in accordance with the CDPV Act. “Present”, under the CDPV Act can include appearance by way of audiovisual link: CDPV Act, s 3(3).
5․In the circumstances of this case, where the prosecution did not rely upon the service limb of “properly notified”, it was still necessary for the prosecution to prove that the defendant was “present”, in the New South Wales sense of the word, when the order was made. As pointed out earlier, the New South Wales sense of the word includes physical presence in court as well as presence by audiovisual means.
6․The court order was three pages long. At the end of the third page was a bar code. Immediately before the bar code and underneath a table summarising some factual details relevant to the order was the following:
Signature of Defendant: _______________________________
The defendant was present in court when the order was made.
7․There was no signature of the defendant on the document. There was no explanation of the meaning of this part of the order. There was no signature of any registrar or court official on the document. It appeared to be entirely computer generated. The court seal appeared to be electronically applied.
8․The prosecution relied upon the above statement that the defendant was present in court when the order was made. The defendant relied upon the absence of any signature in the place indicated and the absence of any other evidence about the document, who prepared it or what could be the significance of the absence of the defendant’s signature.
9․The relevant parts of the magistrate’s reasons were as follows. When summarising the evidence, the magistrate said:
The second aspect that’s of particular relevance is at the end of the document it says - and I quote again - ‘The defendant was present in court when the order was made.’ As the prosecution identified, the document also contains a number of details that are specific to the defendant, including his name, date of birth, address, the name of the applicant, the police application ID number, and as I said, the date of the order, as well as the case number and court.
10․In relation to the presence of the defendant at the time that the order was made, the magistrate said:
Based on that evidence I make the following findings. The findings are that an apprehended domestic violence order was made on 4 May 2022. The defendant was present in court when the order was made. I am satisfied, beyond reasonable doubt, of that fact, given that that is what the court order says. While there is a place for the signature of the defendant on that order, in my view, the fact that it was not signed does not take away from the authority or provenance of what is written on the order.
11․In my view, this finding involved an error. The material before the magistrate was insufficient to permit the finding beyond reasonable doubt that the defendant was present in court when the order was made. On the contrary, the document was not sufficient to prove that fact beyond reasonable doubt. I accept that it will generally be presumed that a formal document such as a court order has been drawn up correctly. However, it is sufficient, for the purposes of the present case, to conclude that, having regard to the context in which the statement relied upon by the prosecution was made, any weight given to the presumption that the order was drawn up correctly is insufficient to establish the asserted fact beyond reasonable doubt.
12․The asserted fact as to the defendant’s presence is a hearsay assertion by an unknown person. It does, however, appear on a formal court order. The difficulty in relying upon the statement is that it occurs in the context of a place for the signature of the defendant but where there is no signature inserted. Because of the relationship on the form between the place for the signature and the statement that the defendant was present, it is not clear whether the statement was intended to be operative only in circumstances where it was acknowledged by the defendant or whether it was to be an assertion of fact even in circumstances where it was not acknowledged as correct by the signature of the defendant.
13․I accept that it might, in some cases, be appropriate to draw an implication from the absence of a reference in the document to any other means by which the defendant was to be “properly notified” of the order, such as a reference to personal service. However, whether or not the standard form includes or can include such a statement involves mere speculation.
14․The contents of the form and its significance must also be understood in a context in which there are specific statutory provisions allowing for proof of the proper notification of the order. Under s 98ZT(1) of the CDPV Act, a registrar of a New South Wales court or a police officer above the rank of sergeant is empowered to issue a certificate in writing certifying that a domestic violence order has been properly notified under the law of New South Wales. Section 139 of the FV Act permits the admission of such a certificate in the Territory as evidence that the order has been properly notified in New South Wales.
15․While the existence of this means of proof of proper notification does not mean that proper notification cannot be proved by other means, it does provide the context in which the content of the form of the order made in relation to the appellant is to be interpreted. It tends to reinforce the doubt about the effect of the statement in the order itself, where the order is not acknowledged by the defendant. That is because, in contrast to the requirements of s 98ZT, it is unclear who has prepared the document and made the representation. The absence of this information is consistent with the form only operating as an admission when signed rather than as an assertion of fact when it is not. The fact that there is available under the legislative scheme a formal but reasonably straightforward means by which proof of proper notification can be achieved, reinforces the doubt about the probative value of the content of the order in relation to proper notification.
16․For the reasons given, I am satisfied that the magistrate erred in being satisfied beyond reasonable doubt that the defendant was present when the order was made. Because it was not proved beyond reasonable doubt that the defendant was present when the order was made, it could not be established that the defendant had been “properly notified” for the purposes of s 124(3) of the FV Act so as to make it enforceable against the defendant. This meant that s 125(1) did not permit it to be enforced as if the order was a family violence order made under the FV Act and that the defendant had been properly notified of the making of that order under Territory law. As a consequence, the defendant could not be convicted of an offence under s 43(2). His convictions must, therefore, be set aside and verdicts of not guilty entered.
17․The order of the court is:
1.The appeal against the conviction in respect of charges CAN 3646/2023 and CAN 3647/2023 is upheld.
2.The findings of guilt made by the Magistrates Court on 2 February 2024 are reversed pursuant to s 218(1)(a) of the Magistrates Court Act 1930 (ACT).
3.Verdicts of not guilty are entered on charges CAN 3646/2023 and CAN 3647/2023.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 July 2024 |
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