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…

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 Police v Martin

Details

AGLC: Police v Martin [2025] ACTMC 4
Case: [2025] ACTMC 4
Decision Date: 7 February 2025

CaseChat Overview and Summary

The case involved the Police prosecuting Martin for contravening a family violence order. Martin had refused to allow police access to his residence to serve the order, despite his children, who were referred to in the order, being inside. The police left the order at his front door. The court had to determine whether Martin was personally served with the order, whether the condition in the order relating to the children was void for uncertainty, whether the alleged contravention was an offence where Martin engaged in no positive act, and whether Martin recklessly breached the order. The court found that the defendant was not personally served with the order, the condition in the order relating to the children was not void for uncertainty, the alleged contravention was an offence capable of being committed where the defendant engaged in no positive act, and the defendant recklessly breached the order. Ultimately, the court found the defendant not guilty.

Orders

Orders of the court

I find the defendant not guilty.

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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