Mattas v Hawke - [2013] ACTSC 90

IVAN MATTAS v LOUISE HAWKE
[2013] ACTSC 90 (8 May 2013)

APPEAL – alleged contravention of an interim domestic violence order – use of text message from a mobile telephone – misspelling of an offensive word

Domestic Violence and Protection Orders Act 2008 (ACT)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 71 of 2012

Judge: Nield AJ
Supreme Court of the ACT

Date: 8 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 71 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

Ivan Mattas
Appellant

v
Louise Hawke
Respondent

ORDER

Judge:  Nield AJ
Date:  8 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The convictions and sentences are confirmed.

The appellant entered into the register undertakings, one in relation to each offence, on 3 August 2012 and they will remain in force until 2 February 2014.

Fines and levies are to be paid to the Registrar of the Court within 6 months.

On 2 December 2011 the complainant, Ms Melanie Jayne Bullman, obtained by consent an interim domestic violence order, pursuant to the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT), against her estranged partner, the appellant, Mr Ivan Mattas.

The order provided, inter alia, that:

(1) the appellant was restrained from behaving in an offensive manner towards the complainant; and

(2) the appellant was prohibited from contacting the complainant except by telephone in relation to his contact with their child.

At 2.37 pm on 26 December 2011 the complainant received a text message on her mobile telephone which read “call me slat”. This text message emanated from mobile telephone number XXX which was a mobile telephone number used by the appellant.

At 5.26 pm on 27 December 2011 the complainant received another text message on her mobile telephone which read “call me slat”. Again, this text message emanated from mobile telephone number XXX.

At about 7.00 pm on 27 December 2011 the complainant contacted police and reported her receipt of the text messages which she regarded as offensive.

At about 8.20 am on 29 December 2011 the appellant attended at the City Police Station in response to a request by police and he was arrested and, after being arrested, he was charged with having contravened the interim domestic violence order on 26 December 2011 and again on 27 December 2011.

On 1 February 2012 the appellant appeared before a magistrate in the Magistrates Court and he pleaded not guilty to both charges, and the proceedings were stood over to a date to be fixed for hearing.

Accordingly, on 3 August 2012 the appellant appeared before Magistrate Mossop for the hearing of the charges. Magistrate Mossop heard evidence from the complainant and Senior Constable Louise Hawke, who had spoken with the complainant on 27 December 2011, and who spoke with the appellant on 29 December 2011 after he had been arrested, and he received a copy of the interim domestic violence order, a…

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 Mattas v Hawke

Details

AGLC: Mattas v Hawke [2013] ACTSC 90
Case: [2013] ACTSC 90
Decision Date: 8 May 2013

CaseChat Overview and Summary

The appellant was convicted in the Magistrates’ Court of Victoria of two offences arising from the use of a text message on a mobile telephone. The appellant was found guilty of contravening an interim domestic violence order by using a mobile telephone to send a message that was likely to cause harassment, alarm or distress to the victim. The second conviction related to the content of the message, which contained a misspelling of an offensive word. The appellant appealed against the convictions and sentences to the County Court of Victoria. The appeal was dismissed, and the convictions and sentences were confirmed.

The legal issues before the court were whether the use of a mobile telephone to send a text message constituted a contravention of an interim domestic violence order, and whether the content of the message, including the misspelling of an offensive word, constituted an offence. The court had to consider the language used in the interim domestic violence order and the evidence presented by the prosecution and the defence. The court also had to consider the intent of the appellant when sending the message and whether the content of the message was likely to cause harassment, alarm or distress to the victim.

The court found that the use of a mobile telephone to send a text message constituted a contravention of the interim domestic violence order. The court noted that the order prohibited the appellant from using a mobile telephone to communicate with the victim, and that the text message was sent in breach of this prohibition. The court also found that the content of the message, including the misspelling of an offensive word, constituted an offence. The court noted that the message contained words that were likely to cause harassment, alarm or distress to the victim, and that the misspelling of the offensive word did not negate the offensive nature of the message. The court found that the appellant's intent when sending the message was irrelevant, and that the focus should be on the effect of the message on the victim.

The appeal was dismissed, and the convictions and sentences were confirmed. The appellant was ordered to enter into undertakings, one in relation to each offence, and to pay fines and levies within six months. The undertakings will remain in force until 2 February 2014. The court noted that the appellant had a history of domestic violence offences, and that the interim domestic violence order was put in place to protect the victim. The court emphasised the importance of complying with such orders and the potential consequences of contravening them.

Orders

Orders of the court

1. The appeal be dismissed.

2. The convictions and sentences are confirmed.

3. The appellant entered into the register undertakings, one in relation to each offence, on 3 August 2012 and they will remain in force until 2 February 2014.

4. Fines and levies are to be paid to the Registrar of the Court within 6 months.

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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