Police v Martin

[2025] ACTMC 4

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Martin

Citation: 

[2025] ACTMC 4

Hearing Dates: 

17 January 2025, 29 January 2025

Decision Date: 

7 February 2025

Before:

Special Magistrate Hassall

Decision: 

I find the defendant not guilty.

Catchwords: 

CRIMINAL LAW – Contravene family violence order – police attended defendant’s residence to serve order – defendant refused to allow police access – defendant’s children referred to in order already inside residence – defendant refused to accept order – order placed by police at defendant’s front door – whether defendant personally served with order – whether condition in order relating to children void for uncertainty – whether alleged contravention offence capable of being committed where defendant engaged in no positive act – whether defendant recklessly breached order

Legislation Cited: 

Criminal Code 2002 (ACT) ss 16, 20

Family Violence Act 2016 (ACT) ss 8(1)(b), 16(1), 38, 38(2)(i), 43, 43(2), 70C(1), 70C(3), 70E

Court Procedures Rules2006 (ACT) r 6405(2)

Family Law Act 1975 (Cth) s 68B

Cases Cited: 

AA v BB [2013] 296 VSC 353

Athens v Randwick City Council [2005] 65 NSWSC 58

DPP (Cth) v Poniatowska [2011] 244 CLR 408

Sims v Drewson [2008] ACTSC 91, [32]

In the matter of Sunnya Pty Ltd [2024] NSWSC 988 [16-19]

Parties: 

Branko Tadic (Informant)

Kelvin John Martin ( Defendant)

Representation: 

Counsel

S Cronin (ACT Director of Public Prosecutions)

Paul Edmonds (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Paul Edmonds & Associates (Defendant)

File Numbers:

CC 9406 of 2024

SPECIAL MAGISTRATE HASSALL:

Introduction

1․The defendant is facing a single charge of contravening a family violence order (FVO) contrary to s 43 of the Family Violence Act 2016 (ACT) (Family Violence Act). That charge is punishable by a maximum of five years imprisonment, however the prosecution elected to have the matter heard summarily. The hearing in the matter commenced in January 2025, and I reserved my decision until today. In my assessment, it is a matter which is suitable for summary determination.

2․The prosecution case is that on the evening of 18 September 2024 and in the early morning of 19 September 2024, between 8:23pm and 2:49am, after Mr Martin was personally served with a copy of the family violence order, he committed an offence by breaching its conditions, namely, being within 20 metres of two of his children, and being in contact with those children other than in accordance with the conditions of a parenting order which had been made under the Family Law Act 1975 (Cth) (Family Law Act) in April 2023.

3․The facts were largely agreed, and it is primarily legal issues which are in dispute. I nevertheless refer to some of the conventional principles which apply in respect of contested criminal matters.  In circumstances where the facts are largely agreed, my role includes drawing inferences from those facts and applying the law to those facts. I bring an open and an unbiased mind, view it clinically and dispassionately, and do not let emotion into the decision-making process. The prosecution and the defendant are each entitled to my verdict, free of partiality, prejudice, favour, or ill will. The prosecution bears the onus of proving the guilt of the defendant. The defendant does not have to prove that he did not commit the offence. The standard of proof is beyond reasonable doubt, and the defendant cannot be found guilty unless the evidence that I accept satisfies me beyond reasonable doubt of his guilt.

4․If I am not satisfied beyond reasonable doubt as to any one or more of the elements of the offence, the defendant must be acquitted. In addition, if I am satisfied that there may be an explanation consistent with the innocence of the defendant or if I am not sure where the truth lies, I must acquit the defendant. The defendant did not give evidence in the hearing. No adverse inference can be drawn against him due to his decision to exercise his right to silence, nor can the absence of evidence from the defendant be used to fill in gaps or used as a makeweight for any deficiency in the prosecution case.

5․This is a matter in which the defendant says that the case against him is fundamentally flawed on legal grounds.

Elements of offence against s 43, Family Violence Act 2016

6․Turning to the elements of the alleged offence, these are partially set out in a prosecution aide memoire which was filed in the court on 17 January 2025. A preliminary requirement, not mentioned in the aide memoire, is that for the relevant offence provision to apply, being s 43, the defendant either must have been present when the family violence order was made, which is not the case in this matter, or must have been personally served in accordance with the Family Violence Act with a copy of the family violence order. That prerequisite was contested by the defendant in this matter.

7․Section 70C(1) provides that where the court makes an interim family violence order, the registrar must serve two copies of the order, one marked as an endorsement copy, as soon as practicable; however, s 70E provides that the court may direct an FVO be served by police. A direction of that kind was made in the present matter, as indicated by paragraph 4 of the family violence order made by Magistrate Cook on 2 September 2024. Section 70C(3) provides that service must be personal service, except in circumstances which are not relevant to the present case.

8․Personal service is not defined in the Family Violence Act, nor in the Legislation Act2001 (ACT), however it is regulated by r 6405 of the Court Procedures Rules 2006 (ACT) (Court Procedure Rules), which provides relevantly as follows: ‘To serve a document personally on a person, the person serving the document must give the person either a sealed copy of the document, or a stamped copy of the document.’ R 6405(2) (and this is the critical subsection for the present case) provides: ‘If the person does not accept the copy, the person serving the document may serve it by putting the copy down in the person’s presence and telling the person in general terms what it is.’  The defendant contests that personal service was carried out in accordance with r 6405(2).

9․The other elements of an offence contrary to s 43(2) are that (according to the prosecution aide memoire, which was not contested): the defendant engaged in conduct intentionally; the conduct contravened a family violence order; the defendant was reckless as to whether the conduct contravened a family violence order; a family violence order was in place at the time of the contravention; and the defendant had been personally served with a copy of the family violence order by a police officer.

10․I note at this point that one approach the legislature could have taken, given that the offence provision only applies if personal service has occurred, would have been to make s 43 an offence of strict liability. It has not done so, with the result that the default fault element applies in this case. The prosecution must establish beyond reasonable doubt that the defendant was reckless as to whether his conduct contravened a family violence order. There were submissions made by the parties about whether the Criminal Code 2002 (ACT) (the Code) recognises the concept of inadvertent recklessness, sometimes referred to as wilful blindness. I will come back to that issue in due course.

11․In short, the elements in contest here were: first, whether the defendant was personally served with a family violence order; secondly, whether the condition that the defendant is alleged to have breached, being condition 1 paragraph (e) is valid, and if valid, sufficiently certain in its operation; if so, whether the defendant’s conduct in fact breached that condition; and lastly, whether the defendant was reckless within the meaning of the Code as to the contravention of condition 1, paragraph (e).

Facts

12․Turning to the facts, these were, for the most part, agreed, and large parts of the prosecution evidence were admitted by consent. The defendant and his former wife, [redacted], have four children together whose ages, as at September last year, were 18, 15, 13, and 9. In April 2023, in division 1 of the Federal Circuit and Family Court of Australia, parenting orders were made which provided that during school terms, the defendant was to spend time with his children between 4.30pm to 7.30pm each Tuesday, and on alternate weekends, from 7.00pm on Friday until 7.00pm pm on Sunday. The orders also provided that the defendant’s former wife has sole parental responsibility for the children.

13․Order 8 of the relevant orders, being an injunctive order pursuant to s 68B of the Family Law Act 1975 (Cth), provided that the defendant was not to attend upon the premises at [redacted], Cook, being premises where the defendant’s former wife resided (I understand this to be the former matrimonial home), save for the purposes of changeover in accordance with the orders. In addition, order 8 provided that the defendant was not to attend the children’s schools including [redacted]. Order 17 provided that the defendant’s former wife ‘has sole use and occupation of the property known as and situated at [redacted], Cook in the ACT’.

14․Against that background, on 2 September 2024, Magistrate Cook of this Court made an interim family violence order pursuant to the provision of the Family Violence Act. That order, which became Exhibit P1C in the proceedings, identified the defendant’s former wife as a ‘protected person’ and prohibited the respondent from being at various places and doing various things. Amongst other things, the respondent was prohibited from being at the defendant’s former wife’s Cook address other than in accordance with a parenting order made under the Family Law Act, being within 20 metres of the defendant’s former wife, and critically for this case:

“… engaging in behaviour that constitutes family violence towards the protected person, including but not limited to the following behaviour: exposing children to behaviour that constitutes family violence, being within 20 metres of or locating or attempting to locate or contacting [names of children – redacted] except in accordance with an order or a parenting plan made under the Family Law Act.

15․That last condition was paragraph (e) of the orders and is the condition that the defendant is alleged to have breached in the present matter.

16․The evidence indicated that around 3.00pm on 17 September last year, the defendant collected [redacted] from his school (which I note was possibly in breach of the s 68(b) injunction set out in paragraph 8 of the parenting orders made on 27 April 2023). The next day, 18 September, around 3.00pm, the defendant’s former wife collected [redacted] from school. Later, around 6.00pm, the defendant entered the residence at [redacted], Cook (again apparently in breach of the s 68B injunction), spoke to [redacted], persuaded [redacted] to come with him, and thereafter proceeded with [redacted] to [redacted], Cook, being the defendant’s residence. The evidence indicated that the couple’s daughter, [redacted], was also at that [redacted] Street address, although the evidence did not indicate how she came to be there.

17․Around 8.00pm, a number of police officers including Constables Stirling and Muhick attended the defendant’s house with a view to attempting to personally serve the defendant with the family violence order that had been made on 2 September 2024. Up until that point, the defendant had not been served with that order, and there was nothing in the evidence to suggest he was aware of it.

18․Police officers arrived at the defendant’s address around 8.08pm in the evening of 18 September. Around 8.15pm, Constable Stirling attempted to discuss the order with the defendant, who declined to open the front door and who spoke to officers through a glass window with the curtains drawn back. There was then, over the subsequent hour or so, a series of communications between Constable Stirling, Muhick, and other officers and the defendant through the glass window and at one point, around 8.23 pm, Constable Stirling referred to the defendant as having been served with the family violence order after it was initially placed on the ground at the foot of the glass window, through which the police were communicating that the defendant, and then a short time later, picked up and placed at the foot of the front door. The evidence relating to the communications between the defendant and police officers was all recorded on body-worn camera footage of Constable Doloto, which became Exhibit P2 and which I will return to.

Consideration

Validity of condition (e) of the FVO

19․I turn then to consider the issues raised by the defendant to contest that the prosecution is fundamentally flawed, and that his guilt is not established beyond reasonable doubt. I start with some consideration of the relevant provisions of the Family Violence Act, where in the context of a risk of family violence between two adults, there is a potential for children to be affected.

20․The Act facilitates at least two different approaches.  First, the applicant may apply for a family violence order which identifies not only themselves, but also one or more children as ‘protected persons’ – provided that child or those children satisfy the definition of ‘affected persons’ within the meaning of the Act: see s 16(1). That approach is potentially available, even if the child or children are not the intended target of alleged family violence, because family violence is defined to include exposing a child to behaviour which constitutes family violence, or merely exposing the child to the effects of such behaviour: see s 8(1)(b).

21․A different approach is reflected by s 38(2)(i) which sets out, as an example of a condition of a family violence order that may be made under the Act, prohibiting the respondent from doing various things in relation to ‘a child of the protected person’. It can be noted that a condition of this type does not involve any conclusion or assumption that the respondent to the order has engaged in family violence, within the meaning of the Act, in relation to the relevant child. Rather, the fact that the prerequisites for the making of a family violence order in relation to the parent have been satisfied triggers the power to make an order with a condition of that type, regardless of whether or not the child has been a victim of, or exposed to, family violence, and regardless of whether or not the child is a ‘protected person’ for the purposes of the order.

22․Against that background, I turn to consideration of the condition of the family violence order which the defendant is alleged to have criminally contravened. The order was made on 2 September 2024 and identifies the defendant’s former wife as the ‘protected person’. None of the four children are identified as ‘protected persons’. The order sets out various prohibitions on the defendant, being within 20 metres of his former wife, contacting his former wife, and being at the former matrimonial home at [redacted] in Cook where his former wife resides, other than in accordance with parenting orders made under the Family Law Act 1975 (Cth).

23․Given s 38(2)(i), to which I have made reference, it would have been open to the Court to have included in the family violence order a prohibition on the respondent doing any of the same things in relation to one or more children of the parties, regardless of the fact that the children were not identified as ‘protected persons’ under the order, and regardless of whether or not the children had been themselves the subject of family violence. That is not, however, the approach that was taken. The provision of the order, which relates to the parties’ children, is condition (e). It reads as follows:

The respondent is prohibited from engaging in behaviour that constitutes family violence towards the protected person, including 10 but not limited to the following behaviour: exposing children to behaviour that constitutes family violence, being within 20 metres of, locating, or attempting to locate or contact Tobias Martin, Hannah Martin, or Angus Martin, except in accordance with an order or a parenting plan made under the Family Law Act 1975.

24․In other words, what condition (e) purports to do is to set out a general prohibition on the defendant engaging in family violence towards his former wife, and then purportedly sets out two examples of such conduct, namely, exposing children to behaviour that constitutes family violence, and secondly - and I paraphrase and abbreviate - being within 20 metres of or contacting the children, other than in accordance with a parenting order made under the Family Law Act 1975.

25․The problem, as I see it, however, is that neither of the two examples provided, which are the only prohibitions expressly related to the children, necessarily involves behaviour which constitutes family violence towards their mother, the defendant’s former wife.

26․Exposing children to behaviour that constitutes family violence might involve family violence towards the children’s mother, but it might not. For example, if the defendant, hypothetically, engaged, in some form of psychological or emotional abuse of one of the children in his own premises aimed solely at that child, without any reference to his former wife and occurring entirely in the absence of his former wife, whilst that behaviour would constitute family violence in relation to the child, it is difficult to see how it could possibly constitute family violence towards the defendant’s former wife.

27․Secondly, and again, hypothetically, being within 20 metres of one of the children, other than in accordance with a parenting order, might constitute family violence towards the defendant’s former wife, but it might not. For example, if the defendant attended an event at the child’s school which his former wife did not, and he did so solely for the purpose of sharing in his child’s experience but in breach of the parenting order, it is difficult to see how that could constitute family violence towards the defendant’s former wife. In my assessment, it follows that a layperson who reads or read condition (e) with a view to complying with it might well have difficulty working out what it prohibits. One plausible interpretation is that it only prohibits conduct of the kinds set out in the order in relation to the children if that conduct also, in fact, constitutes family violence against the defendant’s former wife.  Another possibility is that a layperson such as the defendant might read the provision and simply not know what it means or prohibits so far as the children are concerned.

28․I interpolate at this point that it is arguable that the conduct of the defendant which allegedly breached condition (e) of a family violence order, putting to one side for the moment whether he was personally served with it, arguably did not constitute family violence in relation to his former wife.  Being within 20 metres of two of the children and contacting them, within his own residence in the absence of the defendant’s former wife, albeit in circumstances not permitted by a parenting order, might somehow be argued to constitute an indirect form of family violence against his former wife, but it is at least equally arguable in my view, and certainly in the context of criminal proceedings where the prosecution bears the onus of proving its case beyond reasonable doubt, that it does not constitute family violence in relation to the defendant’s former wife. The conduct, on one view, involved no more than the defendant wanting to spend time with his children without giving a moment’s thought to the position of his former wife, and without directing any of his conduct towards her.

29․It follows in my view that the wording of condition (e) is flawed in a fundamental way, and ultimately incapable of supporting a finding of guilt of the defendant beyond reasonable doubt in relation to his admitted conduct in this case. Either the two examples contained in condition (e) are void, which would leave only the general prohibition relating to the defendant’s former wife which I am not satisfied beyond reasonable doubt the defendant could be said to have breached by his admitted conduct. Alternatively, the meaning of the purported examples in the context of the general prohibition created by paragraph (e) is so uncertain in the context of a person who, unlike the defendant, in fact read the condition and then engaged in conduct of the type engaged in by the defendant, that it is incapable of establishing beyond reasonable doubt that that person knowingly or recklessly breached the condition.

30․In reaching my conclusion, I had regard to the decisions of, first, the New South Wales Supreme Court in Athens v Randwick City Council [2005] 65 NSWSC 58 and the decision of the Supreme Court of Victoria, AA v BB [2013] 296 VSC 353. The first of those cases, Athens, dealt with a situation where orders made under environment legislation were, on one view, ambiguous. The proceeding involved an alleged contempt of the orders by one of the parties. Critically, the court concluded in that case that if the only ambiguity on the face of the order is between two meanings, and the recipient is shown to have breached the order whichever of the two meanings is adopted, that may be sufficient to establish contempt, unless it appears that the breach may have been due to uncertainty as to what steps were required.

31․Athens is different from the present case because, in my assessment, the present case is not one where, on either of the available interpretations of condition (e) of the family violence order, the defendant would be able to be proven beyond reasonable doubt to have contravened the order. As I have said, in my assessment, it is open to find that none of the defendant’s conduct on the evening in question was directed towards his former wife, nor that it constituted family violence towards his former wife, the protected person under the order, meaning that on either of the interpretations of paragraph (e) to which I have referred, the defendant would not have been in contravention of the order.

32․The matter of AA v BB, like the present matter, involved an alleged breach of a family violence order. The conditions in that order were very broad. They involved a person who was a politician. One of the conditions of the order prohibited the respondent from providing information in relation to a protected person’s ‘personal, family, and professional interests to any third person’. Some constitutional issues relating to the freedom of communication were raised, but an additional argument was that the relevant provision was void for uncertainty. The court concluded that the terms of the relevant order were capable of being given a certain and definite meaning yet were not invalid for legal uncertainty on their face.

33․In my assessment, AA v BB is different from the present case. At paragraph 149, the court noted that the respondent did not point to any aspect of the relevant clause as uncertain in meaning in relation to the contravening conduct which he committed. That is different from the present case, because clause (e) is uncertain in relation to the conduct which the defendant has admitted he engaged in.

34․My conclusion about paragraph (e) is sufficient to dispose of the matter in favour of the defendant, but for completion, given the parties argued a number of other issues, I will briefly give my reasons and decision in relation to those matters.

Personal service

35․The defendant challenged that he had been personally served with a family violence order in accordance with r 6405 of the Court Procedure Rules 2006 (ACT). For the purposes of that rule, particularly subs (2), the defendant admitted that he did not accept a copy of the family violence order, and further admitted that he had been told, in general terms, what the order was. What he contested, for the purposes of r 6405(2), was whether or not relevant police officers had ‘put down a copy of the order in his presence’.

36․The evidence indicated that during the communications with the defendant through a glass window, police officers had placed the order initially at the foot of the glass window whilst talking to the defendant and within his eyeshot, and that they had later picked up the same order, and again within eyeshot of the defendant, placed it at his front door, with Constable Stirling, at the relevant time, saying words to the effect that the defendant had been served and, ‘this is now yours.’

37․In those circumstances, I am comfortably satisfied that the document was ‘put down in the defendant’s presence’, notwithstanding that he was on the other side of the glass window.  As I have noted, the defendant has admitted through his lawyer that he had heard enough through the glass window from the police officers to understand, ‘in general terms’, what the document was, and the document was placed within 1 or 2 metres of his physical body, albeit separated by a glass window within his eyeshot. In those circumstances, I am comfortably satisfied that it was placed down ‘within his presence’. I note the findings of Justice Black In the matter of Sunnya Pty Ltd [2024] NSWSC 988 [16-19].

Reckless breach of FVO?

38․I turn then to the question of whether the defendant was reckless as to his conduct breaching provisions of the family violence order. This issue only arises if I am wrong about the validity of condition (e) and its actual effect to prohibit the defendant from being within 20 metres of the children, amongst other things, other than in accordance with a parenting order, which is one of the means contended for by the prosecution. As I have noted, s 43 is not specified to be a strict liability offence. In those circumstances, even if the defendant had been personally served with the order, and I have found that he was, the operation of the Code is such that default fault elements apply, and in particular, it still has to be established beyond reasonable doubt that the defendant was at least reckless as to his conduct breaching the family violence order within the meaning of the Code - in other words, that he was aware of a substantial risk that his conduct would breach the family violence order, and it was unjustifiable for him to take the risk in the circumstances.

39․A finding of recklessness, in my view, is problematic in a case like this where the defendant simply refused to read the family violence order or to accept it, and resisted all attempts to have it explained to him by the attending police officers by talking over the top of the officers, asking them to leave repeatedly, and from time to time, walking away from the window where they were communicating with him and, of course, refusing to open the front door.

40․Statements were made to him through a glass window to the effect that if he did not come out of the house, he will ‘technically’ be breaching the order, and more specifically, as far as the children were concerned, that because the parenting order did not specify that he could have the children on Wednesday night, which is what occurred on 18 September last year, he would be breaching the family violence order if he did not leave the house. The prosecution submitted that the defendant, in effect, was wilfully blind to whether his conduct breached the order, and (in circumstances where he was told he would be breaching the order as it related to the children if he stayed in the house) did so; that amounted to recklessness, whether the defendant read the actual wording of the order or not, and whether the technical detail of the order was allowed to be explained to him or not.

41․By comparison, the defendant, through his legal representative, submitted that, in circumstances where he has not read the family violence order and refused to have its conditions explained to him, he was not ‘reckless’ within the meaning of the Code as to a breach of the order. It was further submitted by Mr Edmond that lawful blindness is not enough because inadvertent recklessness is not something that is recognised in the Code under s 20, which refers to a defendant being ‘aware of a substantial risk’. There was some discussion of this issue by Justice Besanko in Sims v Drewson [2008] ACTSC 91 at [32], although his Honour’s comments about the concept of inadvertent recklessness and the Code were obiter.

42․On the facts, it seems to me at least possible that the defendant might have thought police attended his residence because he was contravening the parenting orders that had been made by the Family Court in 2023, rather than because of a family violence order with which he had not previously been served and is taken to have been unaware. In the circumstances, I would not have been satisfied beyond reasonable doubt that the defendant was reckless within the meaning of the Code that his conduct breached the family violence order, notwithstanding that he accepts that he was told in general terms what it was, and that he had been told, to some extent, or attempted to be told through a glass window, and that his conduct of continuing to be in the presence of the children on a Wednesday not allowed by the parenting orders would amount to a breach which would result in his arrest.

43․In my view, the prosecution case falls short of establishing beyond reasonable doubt that the defendant was ‘aware of a substantial risk’ that his conduct would breach the family violence order as it related to their children, being the order which he had not read and refused to have explained to him. I note this type of situation could be addressed by the legislation, particularly the Family Violence Act, being amended to provide where personal service has occurred, the offence is one of strict liability, which would require the defendant to establish a reasonable mistake of fact.

Offence by omission?

44․Lastly, and relatively briefly, I note that the defendant argued that the conduct in which he engaged could not constitute an offence because it was solely a ‘crime of omission’. Mr Edmonds, on behalf of the defendant, referred me to s 16 of the Code, which provides that an omission to do an act can only be a physical element if the law creating the offence makes it a physical element, or the law creating the offence impliedly provides that the offence is committed by an omission to do an act, and that there is a duty to deliver under a territory law or a law of the state or the Commonwealth.

45․Mr Edmonds emphasised the fact that the defendant, as I have found, after he was personally served with the family violence order, engaged in no positive act. He merely stayed in his own residence and declined to leave the residence. Mr Edmonds asserted that, for the purposes of s 16 of the Code and s 43 of the Family Violence Act, it could not be seen to be a law which made an omission a physical element of an offence, or impliedly provided that a contravention is committed by an omission to do an Act and that there is a duty to do under a territory law or a law of the state or the Commonwealth.

46․Ultimately, I disagree with this submission. Section 38 of the Family Violence Act sets out examples of conditions of orders which can be made under the Act. Amongst other things, it specifies that a respondent may be prohibited from ‘being’ within a certain distance of a protected person, and ‘being’ at certain premises. If Mr Edmonds is correct, then provided the respondent to a family violence order did not contribute to a situation where he or she found themselves within a certain distance of a protected person or at premises, in contravention of the conditions of a family violence order, he or she would be able to simply remain at the location if they wished.

47․In my view, that is inconsistent with the clear statutory purpose of s 38 and other provisions of the Family Violence Act. In my view, and I do not ultimately need to decide this, either s 43 does, within the meaning of s 16(a) make an omission, at least, in some circumstances, a physical element of an offence contrary to s 43, or it impliedly provides that the offence is committed by an omission to do something while it imposes a duty to do that very thing, such as if one finds oneself being a respondent to a family violence order, in a state of contravention of the order, positive steps must be taken to avoid a criminal breach.

48․In my view, s 43 is significantly different from the offence provision considered by the High Court in DPP (Cth) v Poniatowska [2011] 244 CLR 408. That case concerned the interpretation of a provision of the Criminal Code Act 1995 (Cth) in the context of social security legislation, which provided that a person is guilty of an offence if the person engages in conduct where consequently the person obtained a financial advantage from a Commonwealth entity.

49․In my assessment, the offence provision considered by the High Court in Poniatowska had a different statutory purpose and did not contain any indication that, unlike the Family Violence Act, that it was intended to apply, at least in some scenarios, in respect of the omissions.

50․Ultimately, I find the defendant not guilty of the alleged offence, and accordingly, I dismiss the charge.

I certify that the preceding [50]] numbered paragraphs are a true copy of the Reasons for his Honour Special Magistrate Hassall

Associate: Vishanee Allaire & Lucy James

Date: 04/03/2025