Mack v The Queen

[2021] NSWDC 645

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mack v R [2021] NSWDC 645
Hearing dates:	21 September 2021
Date of orders:	21 September 2021
Decision date:	21 September 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Matter dealt with under s10(1)(a).
Catchwords:	Criminal Law – Appeal from Local Court – AVO prohibited contact directly between a man and his former wife – Couple had 2 children – Exchange of text messages about them – Man believed AVO had expired – Local Court accepted Appellant (man) had an honest belief that AVO had expired, but that belief was not reasonable – Alleged breaches were purely technical – Matter dealt with under s10(1)(a).
Legislation Cited:	Crimes (Sentencing Procedure) Act 1990
Category:	Principal judgment
Parties:	Patrick Fordham Mack – Appellant Regina – Crown
Representation:	G.W. Harrison – Appellant D. Laird – Crown
File Number(s):	2020/00237092
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 06 April 2021 Before: Reiss LCM File Number(s): 2020/00237092

Judgment

1. HIS HONOUR: This is an appeal from a conviction recorded by Magistrate Reiss sitting in the Local Court at Burwood on 6 April 2021. The appellant Mr Patrick Fordham Mack was charged that between 5.20pm on 5 August 2020 and 9am on 12 August 2020 at Croydon in this State he did knowingly contravene a prohibition/restriction specified in an Order.

2. The Order was a final Apprehended Violence Order made by the Local Court at Manly on 24 May 2019. The order was for a period of two years from that date. The persons in need of protection were Alison Lott and James Leaver. One of the prohibitions contained in the order was this:

“You must not approach Alison Lott or James Leaver or contact them in any way unless the contact is through a lawyer.”

3. The appellant raised a defence of an honest and reasonable mistake of fact. His Honour held that there was an honest mistake of fact but that mistake was not a reasonable one. He convicted the appellant and imposed a fine of $500.

Background

4. The background to this matter is this. The appellant, Patrick Fordham Mack was previously known as Patrick Lott. He is currently 44 years of age. In the past he was married to Alison Lott whose maiden name was Sartor. Ms Lott is currently 45 years old. Mr Fordham Mack and Miss Sartor, as she then was, came together in 2006. They married. On evidence available from Ms Lott the couple separated in 2013 and divorced in 2015. It would appear that originally the divorce was amicable and there were consent arrangements between the couple for the care of their children. Those children were a daughter and their son. Mr Fordham Mack was a barrister. I understand that Mr James Leaver is also a barrister.

5 August 2020

5. On 13 August 2020 Ms Lott attended the Bondi Police Station and made a complaint of a breach of the AVO. She appears to have attended the Bondi Police Station shortly after 10am. She was interviewed by Constable Christian Stirling. She made a statement to Constable Stirling and provided him with a number of screen shots from her telephone. The first screen shot is dated 5.28pm on 5 August 2020. That is the first date pleaded in the Court Attendance Notice. The appellant sent this message to his former wife, Alison Lott:

“[Daughter] is very ill and being tested for Covid-19 at the doctors. Results will be in 24 hours.”

To that message Ms Lott replied as follows by text message:

“Okay please let me know as soon as result is back. I can pick them up and look after them if you have other stuff to do.”

The appellant replied to that text message in this fashion:

“I’ll let you know. Call her if you like. [Daughter] was sick on Monday but [relative] said it was laryngitis so fingers crossed. And I am staying home to care for her.”

To that Ms Lott replied:

“Okay fingers crossed. I’ll pick them up on Sunday in any event. Tried to call her just before. Just have her call me when she’s feeling up to it.”

To that the appellant replied:

“She is here with Dr Stephan Curran at Ramsay Street Medical Practice.”

They represent the communications between the appellant and Alison Lott on 5 August. They were friendly communications between two parents concerned about the health of their child, a child suspected of having Covid-19.

6. When interviewed by the police on 14 August 2020 after his arrest the appellant told the police that:

“The doctor told me that anyone that [daughter] has had contact with in the last seven days needs to be informed.”

One can accept that that is what the appellant was told by the doctor, because it is common advice by medical practitioners when treating anybody suspected of having been infected with the Covid-19 coronavirus. Those with whom the suspected infected person has had contact should be told so that they can either isolate or arrange to be tested immediately, although it might be prudent to isolate until the diagnosis of the suspected infected person has been made. In such circumstances a defence of necessity may have been available to the appellant.

9 August 2020

7. The next contact between the appellant and Alison Lott was on Sunday 9 August 2020. The contact was initiated by Alison Lott. She sent this text message to the appellant:

“Waiting for the children outside.”

Apparently it was part of the arrangement of the parents that when the children were staying with the appellant that they would be picked up on a Sunday afternoon by Alison Lott who was usually in company with her new partner James Leaver. To that message from Alison Lott the appellant replied thus:

“Oh [son] and I watching a movie it has ten mins left. Avatar. Come inside if you want.”

The appellant was explaining to Ms Lott that he and his son were watching a movie, Avatar, and that there were only ten minutes left before the movie finished and he invited her inside to stay with him and their son if Ms Lott so wished. According to other material before me the appellant caused his son to phone his mother on the phone of either his son or his sister, that is the daughter’s phone, to tell their mother that he was watching the end of the movie and she was free to join them if she wished to do so. She did not, however. It would appear that the movie ended and the children then went to be picked up by their mother in the car waiting for them out the front of or nearby the appellant’s residence.

8. According to what the appellant said either in the record of interview with the police or in evidence before the learned Magistrate, the daughter was not watching the movie because she was trying to find her telephone which she had mislaid and she was in tears. One can understand a young girl being distraught about having lost her means of communication with the rest of the world. The next communication was later on that Sunday evening at 6.08pm. The appellant sent this text message to Ms Lott:

“Please let [daughter] know that I found her phone.”

Clearly the appellant wanted their daughter’s mother to tell her that her phone had been found and that she no longer needed to worry about having lost it.

11 and 12 August 2020

9. The next communication between the appellant and Ms Lott occurred on the following Tuesday at 6.16pm. The appellant sent this message to Ms Lott:

“Could you please [ask] our daughter to call me. I think she’ll be upset if I don’t pass this information on to her straight away. She had had a message from a boy ... called A asking her if she’d liked him because he liked her and he has sent a stack of question marks since that message because she hasn’t [been] able to reply. I don’t want her getting upset that her first boyfriend walked away.”

Clearly that it was a message from the girl’s father to the girl’s mother trying to deal with a problem that had arisen for the girl for whom the two parents were seeking to care. That drew this response from Ms Lott on the following morning:

“Please don’t message me.”

To that the appellant sent this message:

“It was in circumstances where [daughter] had no phone because she left it here. And the AVO as far as I was aware ran two years from April 2017 to April 2019 and was extended by only a year following the result to April 2020.

It was a message about our daughter who is at the point of becoming a young lady and I had hoped you would understand and act in her interests.

I will delete this number now and contact the phone company to have it permanently barred.”

Accused’s mistake

10. Those are the text messages which were alleged to constitute in breach of the AVO made by the Local Court at Manly on 24 May 2019. For reasons canvassed by the learned Magistrate the appellant was confused as to when the final order was made and as to its duration. He accepted that the appellant had made an honest mistake of fact as to whether the AVO was in force at the time that these text messages were exchanged but he did not believe that that was reasonable.

Earlier alleged breach

11. There is one further thing I should point out. When Ms Lott made her complaint to the police her first allegation of contact prohibited by the AVO was this:

“5. On 23 December 2019 at 9.10am I was a passenger in a vehicle driven by my partner James. We were outside [appellant’s residence] picking up my two children from Patrick’s house.

6. My two children have waited out of the house as well as Patrick who was carrying the children’s luggage. I said: ‘Just leave it there.’ He said: ‘You don’t make the rules anymore.’

Patrick has then approached the passenger side window of the car which I was sitting, he approached within two metres of me. Patrick has then walked back towards the house before waving where his partner has also come out, we have then left. This was recorded on the car dashcam as well as a video which was taken on my partner James’ phone.”

Of course this alleged breach occurred more than six months before Ms Lott made complaint about it to police at Bondi on 13 August 2020. So persuaded of the veracity of that breach were the police that it was not the subject of an allegation in the Court Attendance Notice.

Time of the final alleged breach

12. The last contact between the appellant and Ms Lott was on 12 August when Ms Lott sent the message to the appellant saying “please don’t message me” that was sent at 9.14am. The reply of the appellant which I quoted was sent on the same day at 1.52pm. Hence the complaint made to Bondi Police on the morning of 13 August 2020.

Appellant’s arrest

13. The learned Magistrate made a number of points adverse to the prosecution. The police attended the appellant’s residence at 12.20am on 14 August 2020 and arrested him. He was then taken to the Burwood Police Station where he agreed to make an electronically recorded interview. The interview commenced at 3.32am and was completed at 4.42am. The appellant was due to appear on that same day at 9.30am in the New South Wales Civil and Administrative Tribunal seeking to have his practising certificate restored to him pending an appeal against a decision of the New South Wales Bar Association. The learned Magistrate said this about the circumstances of the appellant’s arrest:

“I note as an aside that given the circumstances of the allegation, it was surprising, perhaps questionable, for the police to arrest him very late at night. The Court sees that very often. Sometimes there might be some pending or pressing issues that require some firmer action or procedures by the police, particularly when there is not an existing AVO and there is a need to serve a further or provisional order.

It is hard to see why it was necessary to go around to the accused’s place late at night and then be conducting a record of interview in the middle of the night.”

An excuse for the Appellant

14. One of the matters that the appellant said led to his confusion about the date when the AVO expired was his interaction with a senior constable of police at Kempsey, it would appear that on 8 July 2020, a date that can be found in the transcript of the record of interview on p 13 in answer to Q 90. In oral evidence before the Local Court the appellant identified the female senior constable, perhaps a leading senior constable, as having the surname Douglass. Apparently there was an allegation that Ms Lott had assaulted the appellant’s son, causing him actual bodily harm but the police had failed to advise either the appellant or his son of a hearing of the charge on the 8 July 2020. When it was drawn to his attention by telephone the appellant, who was at South West Rocks with his children on a short holiday, drove to Kempsey police station and Senior Constable Douglass arranged for an AVL appearance before the Local Court at the Downing Centre which was due to hear the case. I need not comment further on that other than to quote what the learned Magistrate said about that. It is this, after drawing attention to the fact that the onus of proof was squarely on the prosecution and that the defence bore no onus of proof, his Honour said:

“The officer in charge acknowledged that notwithstanding what was said in the interview, he had not sought to follow-up in relation to any conversations that might have occurred between an officer at Kempsey and the accused. It might have had bearing on the existence and go to his knowledge of the AVO. That was not followed up. It should have been. It would have been helpful to the Court if that had been followed up and if the officer who had dealt with the accused over the issues of the arrangements for him and his son to attend upon a hearing if that officer had been followed up and a statement obtained and [put] before the Court, that would have been of assistance to the Court and is something that should have been attended to. Again, whilst that would have been of assistance, no real inference can be drawn from that failure.”

15. Another thing that should be drawn to attention is that according to sworn evidence given by the appellant Ms Alison Lott commenced proceedings elsewhere, 12 days after the appellant’s arrest on 14 August 2020 for a related matter. At the time of giving evidence on the 22 March 2021 an order had been made prohibiting any contact between the appellant and his children. The evidence went on to establish that the appellant had had no contact with his children since 8 September 2020.

Consideration

16. The alleged breaches are purely technical. There is no suggestion that they would have interfered with the mental or physical health of the complainant, Ms Lott, or that they would in any way threaten her, harass her or cause her physical or mental distress. The communications were only concerning their children.

17. It would appear, although I have not heard from Ms Lott, that the New South Wales Domestic Violence legislation was being weaponised for use elsewhere. It is hard to see how the messages would have caused Ms Lott any stress at all. Indeed one would think that she should have been thankful for the information that the appellant conveyed to her about their daughter being suspected of being infected with Covid-19 virus and with the appellant passing on through Ms Lott the messages concerning the lost phone, its finding and the message that related to what may have been their daughter’s first experience of “puppy love”.

18. When the matter came before me this morning I advised the parties that having spent over six hours reading material yesterday I formed a certain view about this matter and when I told them what I thought ought occur neither party wished to be heard any further. The breach has been purely technical, they should not stand as a method of embarrassing the appellant in his contact with his children.

19. For those reasons I set aside the conviction recorded and the penalty imposed by the Local Court at Burwood on 6 April 2021. Without proceeding to conviction I order that the charge be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1990.

No one wanted any further reasons did they gentlemen?

LAIRD: No thank you your Honour.

HARRISON: No thank you your Honour.

**********

Amendments

30 November 2021 - Removal of reference to further proceedings.

Decision last updated: 30 November 2021