Police v Barker
[2024] ACTMC 30
•28 November 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Barker |
Citation: | [2024] ACTMC 30 |
Hearing Date: | 28 November 2024 |
Decision Date: | 28 November 2024 |
Before: | Chief Magistrate Walker |
Decision: | The offence of contravening a personal protection order is proved. |
Catchwords: | CRIMINAL LAW – CONTRAVENE PERSONAL PROTECTION ORDER – meaning of threatening - meaning of harassment – meaning of offensive – Personal Violence Act 2016 (ACT) |
Legislation Cited: | Personal Violence Act 2016 (ACT), s 35 (2) Crimes Act 1900 (ACT), s 35 Criminal Code 2002 (ACT), s 474.17 Police Offences Ordinance 1930-1961 (ACT) |
Cases Cited: |
Ball v McIntyre [1966] 9 FLR 237 R v PM [2009] ACTSC 171 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 Worcester v Smith [1951] VLR 316; [1951] ALR 660 |
Parties: | Jack Bigmore (Informant) Kylie Barker (Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Defendant) |
File Number: | CC 6467 of 2024 |
CHIEF MAGISTRATE WALKER:
Introduction
1․The defendant, Kylie Barker, is charged with one count of contravening a personal protection order contrary to section 35 (2) of the Personal Violence Act2016 (ACT).
2․The prosecution filed an election to have this matter dealt with summarily on 12 July 2024, prior to the second mention of the matter. It therefore proceeds as a summary matter. The maximum penalty accordingly is up to two years imprisonment on conviction.
3․The defendant entered her plea of not guilty on 15 July 2024. The matter proceeded to hearing before me today “on the papers”.
Facts
4․The agreed facts in summary are that on 3 June 2024, an interim personal protection order was granted in favour of the complainant. The defendant was a respondent to that order.
5․On 11 June 2024, the defendant was served with the interim personal protection order. The order included a condition that the respondent was prohibited from engaging in behaviour that constituted personal violence toward the protected person.
6․On 23 June 2024, the complainant found a syringe with an orange cap in a garden bed in the front yard of her property. The complainant checked her closed-circuit television system which disclosed the defendant throwing the syringe into her garden from the road.
7․The defendant was spoken to by police the next morning and, under caution, following her arrest, stated, “You know why? Because she broke into my house three times and put the syringe in my house.”
8․Personal violence is defined in section 8 of the Personal Violence Act 2016 (ACT) (‘Personal Violence Act’) to include behaviour in relation to another person which is threatening or harassing, intimidating or offensive behaviour. These terms are not defined in the Personal Violence Act.
Issue
9․The only issue in context in this case between the parties is whether the throwing of the syringe by the defendant into the complainant's front yard constitutes personal violence.
Submissions
10․The prosecution submit that it does. Firstly, the item itself is inherently offensive. A syringe is, in the words of the prosecutor, synonymous with disease. The fact that it was discarded suggested that it had been used. Even though it was capped, it may still carry disease. A used needle is dirty and may cause harm.
11․I was directed for a consideration of the term harassment, in particular, to the decision of Longfield v Glover [2005] ACTSC 25, a decision of Justice Connolly.
12․As to the concept of offensive, I was directed to the decision of Ball v McIntyre [1966] 9 FLR 237.
13․The prosecutor also submitted that the conduct could be characterised as threatening as it was clearly intended to “send a message”.
14․The defendant submits that to constitute harassment, having regard to Longfield v Glover, the conduct must reflect a degree of persistence, not a single instance.
15․In respect to the question of what amounts to offensive conduct, the defendant also relied on the decision in Ball v McIntyre but directed the court's attention to the more recent decision of R v PM [2009] ACTSC 171, submitting that the throwing of a syringe could not constitute offensive behaviour as defined.
The Law
16․The Personal Violence Act has as its objects:
(a) to prevent and reduce personal violence (other than family violence); and
(b) to facilitate the safety and protection of people who fear or experience personal violence by-
(i) providing a legally enforceable mechanism to prevent personal violence and
(ii) allowing for the resolution of conflict without the need to resort to adjudication; and
(c ) to encourage perpetrators of personal violence to be accountable for their conduct.
17․The definition of personal violence in the Personal Violence Act is broad and clearly intended to capture a range of conduct, as varied as the imaginations of individuals who might engage in it. The community is entitled to have some clarity as to whether conduct is likely to expose them to criminal prosecution in circumstances where they are subject to an order of the court, prohibiting conduct which is not statutorily defined.
18․I turn to a consideration of the particular forms of personal violence - or the forms of personal violence particularised by the prosecution in this case.
Threatening
19․I have been pointed to no particular authorities dealing with the concept of what constitutes threatening conduct. The prosecution relies on the notion that throwing the needle into the complainant's yard was intended to “send a message”. What that message is has not been particularised. No threat can be inferred from the conduct.
Harassment
20․Harassment is a term widely used in legislation, criminal and other.
21․In Longfield v Glover the complainant had been subject to repetitive phone calls and letters from a disgruntled ex-partner. His Honour noted that harassment, pursuant to section 35 of the Crimes Act 1900 (ACT), which deals with stalking, had a broad definition.
22․His Honour observed at page 335:
“harassment is not defined in the Crimes Act, but the ordinary plain meaning of the word, as defined in the Macquarie dictionary (2nd edition) is: to disturb persistently; torment as with troubles, cares et cetera”.
23․His Honour adopted with approval the decision of Hill J in Australian Competition And Consumer Commission V Maritime Union Of Australia (2001) 114 FCR 472, in the context of trade practices legislation. Hill J observed at page 485:
“the word harassment in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word harassment means in the present context persistent disturbance or torment”.
24․I have had regard to other dictionary definitions in considering whether repetition is an essential element of the concept of harassment.
25․The Merriam-Webster On-line Dictionary defines harass as:
“to annoy persistently; to create an unpleasant or hostile situation especially by uninvited and unwelcome verbal or physical conduct”.
26․The Cambridge Online Dictionary defines harass as:
“to repeatedly annoy or upset someone over a period of time”.
27․The Collins Online Dictionary defines harass as:
“to trouble, torment or confuse by continual persistent attacks, questions etc”.
28․Each of the definitions includes a common feature of persistence.
29․There is no evidence before me of the conduct upon which the personal violence order was made. In the absence of any background information, a single instance of conduct cannot meet the definition of harassment.
Offensive
30․In the decision of Ball v McIntyre, the court considered the concept of offensive behaviour in the context of the Police Offences Ordinance 1930-1961 (ACT). A student demonstrating against the Vietnam War hung a placard and squatted on the pedestal of a statue erected as a public memorial to King George V outside of Parliament House in Canberra. His behaviour was found not to be offensive. In considering the concept, Kerr J noted that what is hurtful or blameworthy or even improper is not necessarily offensive. Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to common accepted social rules, whilst ill-advised or hurtful, may not be offensive. Even though people may be offended by conduct, it may not be offensive as intended by legislation.
31․Citing Worcester v Smith [1951] VLR 316 with approval, Kerr J noted that, in the context of that case, the expression of political views, whilst offending some people, is not necessarily offensive. In order to be offensive behaviour, the conduct must be calculated to:
“produce a stronger emotional reaction in the reasonable man than is involved in indicating difference from or non-acceptance of his views or values. The behaviour to be offensive would normally be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man”.
32․Higgins CJ in R v PM [2009] ACTSC 171 adopted Ball v McIntyre. In considering the concept of offensive in the context of section 474.17 of Criminal Code 2002 (ACT), His Honour noted that what is offensive is to be determined having regard to what reasonable persons would regard as offensive in normal circumstances:
“that is to be judged according to the standards of morality, decency and propriety generally accepted by reasonable adults”.
Noting that the word in the particular context His Honour was considering it was associated with further concepts of menace and harassment, His Honour observed
“it carries the idea of behaviour likely to arouse significant emotional reactions of a similar nature”.
33․It is clear on a consideration of the authorities, that the question of whether conduct is offensive has to be considered in the context of the legislation and also the facts of the particular case.
34․The conduct complained of in this prosecution must be considered in its social context. Syringes outside of a hospital or medical context are associated in the public consciousness with illicit intravenous drug use. This conduct is associated in the public mind with the risk of transmission of contagious disease, such as hepatitis. Individuals who are inadvertently exposed to used syringes routinely undergo a period of medical review to ensure they have not been infected.
35․Whilst this particular syringe was capped, nonetheless the intentional throwing of it into another’s yard against the background of having recently been served with a personal protection order could only, in my assessment, have been calculated to elicit a significant emotional reaction. I am satisfied that the conduct was offensive.
36․I therefore find the offence proved.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: Lucy Skeldon Date: 10 December 2024 |
0
4
4