Police v Tricolas
[2024] ACTMC 22
•27 September 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Tricolas |
Citation: | [2024] ACTMC 22 |
Hearing Dates: | 1 August 2024 and 13 September 2024 |
Decision Date: | 27 September 2024 |
Before: | Magistrate Temby |
Decision: | See [170] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –personal protection order – meaning of “present” – whether defendant present when final order was made |
Legislation Cited: | Personal Violence Act 2016 ss 6, 6(b), 7, 7(c), 9, 24, 35, 35(1)(a), 82(3),48-49A, 54, 60, 61, 64, 64C(2)(a), 82(3), 85(2) COVID-19 Emergency Response Act 2020 ss 206(1)-206(3), 207, 207(2) Family Violence Act 2016 ss 43(1)(a) Legislation Act 2001 ss 139, 142 Evidence (Miscellaneous Provisions) Act 1991 ss 20, 32 Court Procedures Rules 2006 r 1401, 6703 Magistrates Court Act 1930 s 311 Evidence (Amendment) Act 1999 Evidence Act 1971 ss 85AE(1), 85AQ(1) Domestic Violence and Protection Orders Act 2008 s 90 Criminal Code 2002 s 20 |
Cases Cited: | Illes v KM [2023] ACTMC 42 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Grassby v The Queen (1989) 168 CLR 1 John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 |
Text Cited: | Explanatory Statement, Personal Violence Bill 2016 |
Explanatory Statement, COVID-19 Emergency Response Bill 2020
Explanatory Memorandum, Evidence (Amendment) Bill 1999
Explanatory Statement, Domestic Violence and Protection Orders Bill 2008
| Parties: | Charles Jonathan Burs Dudley (Informant) Constantine Tricolas (Defendant) |
| Representation: | Counsel J Maher (Defendant) Solicitors Director of Public Prosecutions A Byrnes (Defendant) |
| File Numbers: | CC 2023/9701 |
MAGISTRATE TEMBY:
Facts
| 1․ | The facts relevant to these proceedings were, in large part, not in dispute. Helpfully, much of the incident which gave rise to the present charge was captured on CCTV. |
| 2․ | On 12 April 2022, an interim personal protection order was made by this Court. Mr Cirjak was the applicant and the Defendant, Mr Tricolas, was the respondent. |
| 3․ | The interim order was expressed to continue ‘until determination of the final order’. |
| 4․ | On 24 June 2022, a final personal protection order was made. It was made by consent, without admissions. Mr Tricolas appeared by telephone when the order was made. It was the first occasion that he had appeared in the proceedings. |
| 5․ | The key prohibition imposed on Mr Tricolas, by both orders, was condition 1(c), by which Mr Tricolas was prohibited from being within 100 metres of Mr Cirjak (subject to exceptions which are not relevant to these proceedings). |
| 6․ | On 2 May 2023, Mr Cirjak attended his local shopping centre, with the intention of going into the Supabarn Express store (Supabarn). However, before he went into the store, he saw Mr Tricolas drive his car into the shopping centre car park. Mr Cirjak decided to remain outside on the footpath. |
| 7․ | Mr Tricolas drove out of the car park before driving back in and parking his car near Mr Cirjak’s car. The cars were parked in front of Supabarn, approximately 30 metres from where Mr Cirjak was standing. |
| 8․ | Mr Tricolas got out of his car. At that time, Mr Cirjak was standing against a pole looking down at his phone. Mr Tricolas did not walk in Mr Cirjak’s direction initially, however, having walked away from Supabarn towards another part of the shopping complex, he looped back and walked past Mr Cirjak and into Supabarn. |
| 9․ | They were approximately two metres apart when Mr Tricolas walked past Mr Cirjak, with Mr Cirjak still next to the pole, by the road, and Mr Tricolas walking closer to the Supabarn building. Mr Cirjak remained looking down at his phone and Mr Tricolas looked straight ahead. |
| 10․ | As Mr Tricolas entered the store, Mr Cirjak followed him in. Mr Cirjak then stayed near |
the front of the store, to the side of the entrance, while Mr Tricolas collected some items, took them to the counter to pay for them, then left.
What is in issue?
| 11․ | Mr Tricolas is charged with contravening the interim personal protection order that was made on 12 April 2022. The Prosecution took that course even though the final order had been made by the time of the incident. |
| 12․ | That is because the parties take the view that Mr Tricolas was not present when the final order was made and it is common ground that he was not served with the final order. Under s 35 of the Personal Violence Act 2016 (the PV Act), as in force between 20 February 2021 and 23 May 2023, a person could only have committed the offence of contravening a personal protection order if they were present when the protection order was made or they were personally served with a copy of the order. |
| 13․ | Mr Tricolas accepts that the interim protection order was made against him. He accepts that he engaged in conduct (walking around his local shops as described above) and that he did so intentionally. He accepts that, if the interim order was in force on 2 May 2023, his conduct contravened the order, because he came within 100 metres of Mr Cirjak. |
| 14․ | However, Mr Tricolas was not present when the interim order was made and he submits that I should not accept that he was served with the interim order. If I am satisfied that he was served with the interim order, Mr Tricolas submits that that order was not in force on 2 May 2023 because the final order had been made by that time. He further submits that, even if the interim order was in force, he was not reckless as to the fact that his conduct contravened the protection order. |
| 15․ | The Prosecution submits that I should accept that Mr Tricolas was served with the interim order and that, even though the final order had been made by 2 May 2023, the interim order had been automatically extended by s 24 of the PV Act. Section 24 provided that, if a final order was made, but ‘the respondent is not present at the making of the final order’, and an interim order would otherwise expire before the final order is served on the respondent, the interim order is extended until the final order is served. |
| 16․ | Mr Tricolas’ position is that, for the purposes of s 35 of the PV Act, he agrees with the Prosecution’s position that he was not present when the final protection order was made, but for the purposes of s 24 of the PV Act he submits that he was present when the order was made (and the interim order was therefore not automatically extended). He accepted that that result might seem perverse, but nevertheless submitted that that is how the PV Act operated at the relevant time. |
| 17․ | While the Prosecution did not rely on a contravention of the final order, it is necessary, |
in order to properly address the parties’ respective positions, to consider whether Mr Tricolas was present when the final order was made, both with respect to the operation of s 35 and s 24 of the PV Act.
18․ Accordingly, the three issues for determination are:
(a)whether Mr Tricolas was present when the final order was made, for the purposes of s 35 of the PV Act;
(b)if the answer to the first question is no, whether Mr Tricolas was present when the final order was made, for the purposes of s 24 of the PV Act (such that the interim order did not continue in effect); and
(c)if the answer to the first question is yes, or the answer to the second question is no, whether Mr Tricolas was reckless as to the fact that his conduct contravened the relevant order.
Decision making principles
| 19․ | There are a number of decision-making principles that are relevant to the determination of criminal proceedings. In circumstances where, as I have noted, much of the incident which gave rise to the present charge was captured on CCTV, there are only a few principles which I need to specifically refer to. |
| 20․ | 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 offences with which he is charged. The standard of proof the prosecution must meet is proof beyond reasonable doubt and the defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If I am satisfied that there may be an explanation consistent with the innocence of the defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law. |
| 21․ | I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence. |
| 22․ | I must determine whether each of the witnesses who gave evidence at the hearing was |
a reliable witness. That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.
| 23․ | In this respect, I accept that the evidence given by the two police officers, Constables Dudley and Guy, is reliable. I have reservations in relation to the reliability of Mr Cirjak’s evidence, which I have discussed later in these reasons. |
| 24․ | Mr Tricolas did not give evidence during his hearing. No inference, adverse to him, can be drawn from his decision to exercise his right to silence. Nor can the absence of evidence from Mr Tricolas be used to fill in any gaps or used as a makeweight for any deficiency in the Prosecution case. |
| 25․ | I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the prosecution and defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. |
| 26․ | I must, of course, deliver my decision according to the evidence. |
Summary of decision
| 27․ | I am satisfied that Mr Tricolas was present when the final protection order was made, for the purposes of both ss 24 and 35 of the PV Act, as he appeared by telephone on that occasion. |
| 28․ | I consider that the word ‘present’ in the PV Act meant (and still means) ‘appears’. It is used in contradistinction to the word absent, that is, where a person fails to appear before the court. |
| 29․ | I take that view for the following reasons: (a) I consider that that interpretation would best achieve the purposes of the PV Act. Requiring physical presence would be contrary to the object of providing access to the court that is simple, quick and inexpensive (s 7(c)) and, in some cases, would be contrary to the purpose of providing a legally enforceable mechanism to prevent personal violence (s 6(b)). (b) The purpose of the individual provisions which use the word ‘present’ (primarily |
to ensure that the relevant party was aware of the terms of the court’s order) could as easily be met by a person appearing by remote technology as being physically present.
(c)For some provisions, requiring physical presence when remote appearance can be, or has been, facilitated, would make no sense. For example, an application would be dismissed or adjourned if the applicant was not physically present, even if the applicant for the order had appeared by remote technology (s 48), and an application for a final order would be decided in the respondent’s absence (or the matter adjourned and a warrant issued for the respondent’s arrest) if the respondent was not physically present, even if the respondent had appeared by remote technology (s 49).
(d)Section 206 of the PV Act, inserted into the PV Act during the COVID-19 emergency to facilitate alternatives to in-person attendances where the PV Act required a person to be present in court, appears to have been of limited effect. In this respect, I note that:
1․ section 206 applied where a provision of the PV Act required or was conditional on a person being ‘present in court’ (s 206(1)), however ss 206(2) and (3) identified particular ways a person could be ‘present’ without being physically present, indicating the use of the word ‘present’, on its own, was not limited to a person being ‘present in court’ (that is, physically present);
2․ the reference in s 206(2) to a party being ‘present by telephone or other electronic audio-visual means’ makes clear that being ‘present’ can be by means other than physical presence; and
3․ there was only one provision, s 82(3), which used the phrase ‘present in court’.
(e)If the use of the word ‘present’ in the PV Act meant ‘physically present’, s 206 would have the effect that Mr Cirjak would have been denied the protection of an order at the time of the incident because Mr Tricolas would not have been present for the purposes of s 35 of the PV Act (s 206(3)), but would have been present for the purposes of s 24 of the PV Act (s 206(2)), with the result that the interim order did not continue once the final order was made. Mr Cirjak would then not have had the protection of either order until the final order was served on Mr Tricolas.
Such an interpretation would be contrary to the purpose of the PV Act to facilitate the safety and protection of people who fear or experience personal violence by providing a legally enforceable mechanism to prevent personal violence (s 6(b)). In circumstances where it is clear that the purpose of inserting s 206 was facilitative, and not to affect the operation of the PV Act (particularly in a way that would derogate from its objects), the legislature could not have intended that s 206 operate in that way.
(f)Finally, I also note that the word ‘present’ is used interchangeably with words and phrases that do not mean physical presence. The words ‘present’ and ‘before the court’ are used interchangeably in ss 60 and 61 of the PV Act and, similarly, the word ‘present’ is used interchangeably with the word ‘appears’ in the Explanatory Statement to the Personal Violence Bill 2016 in relation to s
49A. I also note that the word ‘present’ is used in contradistinction to the word ‘absent’ in s 49.
| 30․ | The consequence of my finding that Mr Tricolas was present when the final order was made is that the interim order ended on 24 June 2022 when the final order was made and did not continue under s 24. While Mr Tricolas was, from 24 June 2022, liable to prosecution under s 35 of the PV for contravening the final order, he was ultimately not charged with a contravention of the final order. |
| 31․ | The Prosecution made a deliberate decision at the commencement of the hearing to amend the charge that had originally been brought against Mr Tricolas, relying on a contravention of the final order, to rely on a contravention of the interim order. The Prosecution maintained its reliance on the alleged contravention of the interim order even after I indicated to the parties that I would find that Mr Tricolas was present when the final order was made. |
| 32․ | As I have found that the interim order ended prior to the incident on 2 May 2023, I find Mr Tricolas not guilty of the offence charged. |
| 33․ | In any case, even if the Prosecution had further amended the charge against Mr Tricolas |
to rely on a contravention of the final order, I would not have been satisfied that Mr Tricolas was reckless with respect to the possibility that his conduct would contravene the protection order. While I strongly suspect that Mr Tricolas was aware that Mr Cirjak was standing outside the entry to Supabarn and decided to walk past him and enter the store anyway, I am not satisfied beyond reasonable doubt that that was the case.
What does it mean to be present?
34․ Whether Mr Tricolas was present when the final order was made, for the purposes of ss 24 and 35 of the PV Act, raises related issues and I will deal with them together.
Key legislative provisions of the PV Act
| 35․ | The relevant version of the PV Act for the purposes of these proceedings is the one in force between 20 February 2021 and 23 May 2023. References to provisions of the PV Act in this decision are to the provisions as they appeared in that version of the PV Act. |
| 36․ | Subsections 35(1) and (2) of the PV Act relevantly provided: (1) This section applies to a person against whom a protection order is made if the person— (a) was present when the protection order was made; or (b) has been personally served in accordance with this Act with a copy of the protection order. (2) The person commits an offence if the person engages in conduct that contravenes the protection order (including a condition of the order). |
| 37․ | That is, Mr Tricolas was only liable for committing an offence against s 35 if he was present when the final order was made. As noted earlier in these reasons, it was common ground that he was not served with a copy of the final order. |
| 38․ | In many cases, the making of a final order will result in an interim order that has been made in the proceedings ending. That was the case here, where the interim order was made on the basis that it continue ‘until determination of the final order’. According to the terms of the interim order it ended on 24 June 2022 when the final order was made. |
| 39․ | Section 24 of the PV Act deals with the circumstance where a respondent is not present when a final order is made. As in this case, an interim order typically ends when a final order is made but, as I have noted, the respondent is not liable for committing an offence against s 35 (for contravening the final order) until the final order is served. During that period, the applicant would not have the protection of either order but for the operation of s 24. |
| 40․ | Section 24 of the PV Act provides that the interim order is automatically extended until the final order is served on the respondent. It states: 24 Interim orders—extension for non-service of final order (1) This section applies if— (a) a final order is made; and (b) the respondent is not present at the making of the final order; and (c) an interim order made in relation to the application for the final order would, but for this section, expire before the final order is served on the respondent. Note A further order may be made in special or exceptional circumstances (see s 22). |
| (2) The interim order is extended until the final order is served on the respondent. | |
| 41․ | Accordingly, if Mr Tricolas was not present when the final order was made, the interim |
order made on 12 April 2022 continued beyond 24 June 2022 and remained in force on 2 May 2023, the day of the incident.
| 42․ | The other key provision of the PV Act at the time was s 206. It was contained in Part 22 of the Act, ‘COVID-19 emergency response’, which was inserted into the Act by the COVID-19 Emergency Response Act 2020 (COVID Emergency Act). I have considered the impact of s 206 separately to the other provisions, later in these reasons. |
| 43․ | It is Mr Tricolas’ position that s 206 had the effect of permitting a person like him, who |
appeared by telephone, to be present for the purposes of s 24, but not for the purposes of s 35, such that the interim order did not continue under s 24 once the final order was made, but he could not contravene s 35 until he was served with the final order.
Previous consideration of the requirement for presence
| 44․ | In Illes v KM [2023] ACTMC 42 (Illes), Special Magistrate Christensen considered whether telephone appearance by a respondent to a family violence order application was sufficient for the purposes of establishing that the respondent was present when a family violence order was made, as required by s 43(1)(a) of the Family Violence Act 2016 (the FV Act). That provision, at the relevant time, was in the same terms as s 35(1)(a) of the PV Act, as in force at the time relevant to these proceedings. |
| 45․ | Special Magistrate Christensen found that the meaning of ‘present’ for the purposes of s |
43(1)(a) of the FV Act was not established by appearance by telephone (at [32]). Her Honour relied on the following observations (at [31]):
31. Taking all of the above into account I observe as follows:
(a)Considering the provision in the context of the Act as a whole which, at the time, included pt 22 that specifically considered the requirement as to ‘presence’ for the purposes of s 43(1)(a) during the COVID-19 emergency response and did not provide for telephone presence for this subsection. An interpretation that physical presence is required appears to be the correct interpretation.
(b)The term ‘present’ as it otherwise appears in the Act, for example in the short title to ss 66 and 67, at least in those sections, to contemplate that ‘present’ is a reference to a person being ‘before the court’ rather than merely by telephone.
(c)A dictionary meaning of the word ‘present’ provides that it means ‘in a particular place’.
(d)The Explanatory Statement to cl 90 of the Domestic Violence and Protection Orders Bill 2008 (ACT) (from which s 43 was remade according to the Explanatory Statement for cl 43 of the Family Violence Bill 2016 (ACT)) provides that:
to invoke this provision the respondent must have been present at court when the order was made or have been personally served with a copy of the protection order.
(e)The authority relied upon by the prosecution in submitting that a ‘quill pen’ interpretation of the law be applied with reference to the Bell Group Limited in Liquidation and Anor v Westpac Banking Corporation and Anor [2004] WASC 162 is not persuasive given it is a decision of a single judge of the Supreme Court of Western Australia. There was a concern with the taking of evidence of a witness by video link. While applied in the New South Wales Court of Criminal Appeal in R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311, this was
again, in a decision concerned with the taking of evidence of witnesses. I accept the submission of the defence representative to the effect that when interpreting a penal statute that statutory construction authorities provide that construction in favour of the subject and construction in favour of liberty is to be preferred. This supports the conclusion that ‘presence’ does not contemplate presence by telephone, particularly in the absence of express provision for this in the COVID19 emergency provisions.
46․ The parties submitted that Illes was correctly decided. While I was initially attracted to her Honour’s conclusion, I have ultimately come to a different view.
General principles of statutory interpretation
| 47․ | As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ; see also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole]. In Commissioner for Railways (NSW) v Agalianos [(1955) [1955] HCA 27; 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. |
| 48․ | Consistently with these observations, ss 139 to 142 of the Legislation Act 2001 provide |
that, in working out the meaning of an Act:
(a)the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation;
(b)the provisions of the Act must be read in the context of the Act as a whole; and
(c)regard may be had to material not forming part of the Act, including any explanatory statement for the bill that became the Act and the presentation speech made to the Legislative Assembly during the passage of the relevant bill.
Ordinary meaning of being ‘present’
| 49․ | In Illes, Special Magistrate Christensen noted that a dictionary definition of the word ‘present’ provides that it means ‘in a particular place’. That is, for example, the meaning given by the Cambridge online dictionary. |
| 50․ | There are, however, other definitions of the word that could apply. |
| 51․ | The Merriam-Webster online dictionary defines ‘present’ to mean, relevantly: |
(a)being in view or at hand; and
(b)existing in something mentioned.
| 52․ | The Macquarie Dictionary relevantly defines ‘present’ to mean: (a) being with one or others, or in the specified or understood place (opposed to absent); (b) being here or there, rather than elsewhere. |
| 53․ | Similarly, the Oxford English Dictionary defines ‘present’ to include: (a) being before, beside, with, or in the same place as the person to whom the word has relation; being in the place considered or mentioned (opposed to absent); (b) ready at hand, immediately accessible or available. |
| 54․ | Being present thus has two possible meanings. The first, and perhaps more obvious meaning, is that it requires physical presence in a particular place. Where the word is used in conjunction with a physical place, for example in the phrase ‘present in court’ or ‘present at court’, that indicates that the word is used in that sense. |
| 55․ | The second meaning focuses on a person being immediately accessible or available. It is used in contradistinction to ‘absent’. Thus, a person could be present at an event by remote technology if they were able to participate by that means. |
| 56․ | The obvious example of presence of this kind is presence at a meeting (for example a board or committee meeting) by people in different locations by telephone or audio-visual link technology. It would be unexceptional to regard the attendees participating in the meeting in that way as having been present for the meeting. |
| 57․ | Traditionally, courts required the physical presence of parties (when not represented) because that is how the business of the court was conducted. In times past, people familiar with the operation of courts would have understood the word ‘present’ to mean physical presence, even without any explicit reference to a court building (such as in the phrase ‘present in court’). |
| 58․ | For a long time, the availability of remote technology in courtrooms was limited (if it |
existed at all) and courts were generally reluctant to allow a party to appear by remote technology. However, in more recent times, particularly since COVID-19 and the need to adopt practices to facilitate the appearance of parties when appearing at court was impractical, the practice of parties appearing by remote technology has become common place.
59․ The determination of which of the two meanings I have identified should be given to the word ‘present’, when used in the PV Act, needs to be made having regard to the context in which it is used, and the purpose of the PV Act as a whole.
Legislative purpose
The purpose of the PV Act
| 60․ | The long title of the PV Act is: ‘An Act to protect people from personal violence (other than family violence) including personal violence in the workplace and for other purposes’. |
| 61․ | Section 6 of the PV Act stated that the objects of the Act included: (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. | |
| 62․ | Section 7 of the PV identified how those objects were to be achieved, which was by: (a) giving the courts power to make protection orders to protect people from personal violence; and (b) creating offences to enforce protection orders; and (c) ensuring that access to the courts is as simple, quick and inexpensive as is consistent with justice; and (d) recognising registered orders made elsewhere in Australia and in New Zealand. |
| 63․ | In terms of the third of these mechanisms, s 9 provided that: |
Procedures for this Act are to be as simple, quick and inexpensive as is consistent with achieving justice.
Interpretation that would best achieve the purpose of the Act
64․ I consider that the interpretation of the word ‘present’ that would best achieve the purposes of the PV Act, is that it means immediately accessible, in the sense of the court being able to communicate with the person at the relevant court hearing. That is, it is used in the sense of ‘appearing’ before the court. It is used in contradistinction to word absent, that is, where a person fails to appear before the court.
| 65․ | There are two reasons why I take this view. |
| 66․ | The first is that one obvious way that the courts facilitate access in a way that is simple, quick and inexpensive is by allowing parties to appear by remote means. Sometimes, applicants are too afraid to come to court for fear that they might encounter the person against whom they have sought a protection order. Sometimes, one or both of the parties are interstate at the time of the relevant court appearance. Frequently, the applicant for a protection order will participate in a hearing from a remote witness room so that they are not in the same room (the courtroom) as the respondent. |
| 67․ | It would be contrary to the object of providing access to the court that is simple, quick and inexpensive to require physical appearance before the court in these circumstances by interpreting ‘present’ to mean physical presence. I note, in particular, that if being present meant being physically present, it would leave a party who was unable to attend in person, or for whom in-person attendance was impractical, liable to the adverse consequences provided for by ss 48-49A, even where their appearance could be facilitated by remote technology (and even where their appearance had in fact been facilitated by remote technology). I have further discussed this issue later in these reasons. |
| 68․ | The second reason is that interpreting ‘present’ to mean physical presence would mean that, where a respondent appeared by remote technology, they would not be bound by the order (in the sense of being liable to prosecution under s 35 of the PV Act for contravening it) until they were served with the order. Such an outcome would be contrary to the purpose of the Act of providing a legally enforceable mechanism to prevent personal violence. |
| 69․ | As I also discuss later in these reasons, while it is obviously important that a respondent |
knows what the conditions of a personal violence order are, before they can be exposed to criminal liability for contravening the order, a respondent who appears before the court, whether in person or by remote means, has knowledge of the order. Power of the court to permit a party to appear by remote technology
70․ I note that the court has the power to:
(a)direct a person to appear before, or give evidence or make submission to, the court by audiovisual link or audio link, pursuant to s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (EMP Act);
(b)direct that evidence be taken or a submission made by audiovisual link or audio link from a participating State, pursuant to s 20 of the EMP Act;
(c)receive evidence or submissions by telephone, video link or another form of communication in a proceeding, pursuant to rule 6703 of the Court Procedures Rules 2006 (CPRs); and
(d)give directions about the conduct of a proceeding, including to require the use of telephone or video conference facilities, pursuant to rule 1401 of the CPRs.
| 71․ | Where a court gives a directions under ss 20 or 32 of the EMP Act, or makes an order under rule 6703 of the CPRs, section 311 of the Magistrates Court Act 1930 (MC Act) provides that a person who is required to appear personally may appear and participate or give evidence in accordance with the direction or order. By doing so, they are taken to be before the court. |
| 72․ | However, it is routine for the court to permit a party to appear by remote technology without making a formal direction under s 32 of the EMP Act. Nor do I consider that it is obliged to exercise the powers in s 32 of the EMP Act or rule 6703 of the CPRSs where it is simply facilitating the appearance of a party by remote means where there is no legal requirement (in the sense of a compulsion) for them to attend. |
| 73․ | The court has an implied power to do all things necessary for the proper exercise of its jurisdiction, including to secure the proper administration of justice in the proceeding before it: Grassby v The Queen (1989) 168 CLR 1 at 16-17 per Dawson J; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477 per McHugh JA. In my view, that implied power extends to the facilitation of remote appearances by parties. |
| 74․ | I take that view despite the existence of the express powers in ss 20 and 32 of the EMP Act and rules 1401 and 6703 of the CPRs. Section 20 of the EMP Act and rules 1401 and 6703 are not specifically directed to how parties appear in proceedings while s 32 of the EMP Act (and its predecessor provisions) is directed at permitting remote appearances where a person is under a legal obligation to attend court. |
| 75․ | Section 311 of the MC Act was originally inserted into the MC Act as s 254B in 1999. At that time, the orders with respect to which s 254B operated were directions given under ss 85AE(1) and 85AQ(1) of the Evidence Act 1971, which were also introduced in 1999. Those provisions were to similar effect as ss 20 and 32 of the EMP Act. |
| 76․ | Subsections 85AE(1) and 85AQ(1) were inserted into the Evidence Act 1971 by the Evidence (Amendment) Act 1999. It inserted an additional Part into the Act – ‘Part XIIAA – Use of Audio Visual Links and Audio Links’. |
| 77․ | The Explanatory Memorandum for the Evidence (Amendment) Bill 1999 noted that: |
The use of audio and audio visual technology has the potential to enable access to court services at reduced cost and inconvenience to parties. It will enable a court to receive evidence from witnesses who reside in distant locations … Within the Territory, the legislation will be applied to, for example, enable a bail hearing to be conducted using the technology without requiring a remanded person to be present in the courtroom.
| 78․ | Sections 85AE and 85AQ of the Evidence Act 1971 (and now ss 20 and 32 of the EMP Act) were not drafted in a way that limited their operation to cases where there was otherwise a requirement for a person to attend court, but it was clearly one of the purposes of those provisions to address that particular situation. I do not consider that those clauses intended to, or did, limit the court’s general power to manage proceedings before it but, rather, provided a formal avenue for a party or person to apply to appear by remote means which, in combination with s 311 of the MC Act, obviated the need for in-person attendance, even when there was otherwise a legislative obligation to attend court in person. |
| 79․ | Accordingly, it is possible for a party to be before the court through the use of remote technology without a formal direction having been made under s 32 of the EMP Act, as was the case here. In those circumstances, they would not be ‘present’ for the purposes of the PV Act if presence meant physical presence, even though they participated in the hearing. Such an outcome does not make sense. |
| 80․ | Further, I do not consider that there is anything in the way that the PV Act was drafted, or in any statements in the Explanatory Statement for the Personal Violence Bill 2016 or the Domestic Violence and Protection Orders Bill 2008, to suggest that the PV Act sought to limit appearances to physical attendances by using the word ‘present’ in the provisions in which that word appears. |
| 81․ | Interpreting the word ‘present’ as requiring physical presence at court is contrary to the |
object of providing access to the court that is simple, quick and inexpensive and, in some cases, would be contrary to the object of providing a legal enforceable mechanism to prevent personal violence. It is also not necessary in order to achieve the purposes of the individual provisions which use the word ‘present’.
Consideration of individual provisions
82․ While these proceedings are particularly focused on ss 24 and 35, there were several other provisions of the PV which used the word present. It is presumed that words are used consistently throughout a statute: Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1.
83․ Two provisions were conditional for their operation on a party being present. They were: (a) s 35(1)(a) (the offence provision); and
(b) s 64C(2)(a) (containing the requirement for personal service of interim orders unless the respondent was present).
| 84․ | Several other provisions of the PV Act provided for particular consequences if a party was not present: (a) s 24 (extension of interim order, prior to service of final order, if the respondent was not present at the making of the final order); (b) ss 48 – 49A (consequences if a party, or parties, were not present at the return of the application); (c) s 54 (public hearing not required if a party was not present at the return of an application); (d) s 82(3) (notification to protected person if original order is revoked and the protected person was not present); and (e) s 85(2) (commencement of the period within which a person may file a notice of appeal with the Supreme Court, if the respondent was not present when the final order was made). |
| 85․ | In terms of s 24 of the PV Act, as I have noted, the obvious purpose of that provision is to ensure that an applicant for a protection order remains protected in circumstances where a final order is made but the respondent is not present (and therefore cannot commit an offence in relation to the final order until it is served). The Explanatory Statement for the Personal Violence Bill 2016 states: This clause remakes section 41F of the DVPO Act [Domestic Violence and Protection Orders Act 2008] and provides that a general interim order will continue in force where a final order has been made but has not yet been served on the respondent. This ensures that the respondent is aware of the conditions and making of the final order, before requiring them to comply with that order. |
| 86․ | It is, in fact, s 35 that has the effect described in the second of the above sentences. The purpose of the two provisions is that a respondent needs to be aware of the terms of the final order before being required to comply with it (the effect of s 35) and, if a respondent is not present when the final order is made, the interim order continues until the respondent is served with the final order (s 24). |
| 87․ | The explanation given by the Explanatory Statement for the Personal Violence Bill 2016 |
with respect to s 35 focuses on the existence of the offence, and punishment, created by that provision. However, the Explanatory Statement for the Domestic Violence and Protection Orders Bill 2008, being the Bill which led to the enactment of the Domestic Violence and Protection Orders Act 2008 (which the PV Act replaced with respect to personal violence matters) refers to the need for a respondent to be present. It stated:
Clause 90 … [the equivalent provision to s 35] creates an offence of breaching a protection order. To invoke this provision, the respondent must have been present at court when the order was made, or have been personally served with a copy of the protection order …
| 88․ | While this statement refers to the need for a respondent to be present ‘at court’, neither s 90 of the Domestic Violence and Protection Orders Act 2008 nor s 35 of the PV Act used the phrase ‘present at court’. Both provisions simply referred to the respondent being ‘present’ when the protection order was made. |
| 89․ | As the Explanatory Statement for the Personal Violence Bill 2016 notes in its explanation of s 24, the purpose of making liability for an offence conditional on the respondent having been present when the relevant order was made is to ensure that the respondent is aware of the conditions of the order before requiring them to comply with them. While the parties submitted that the court can more comfortably be satisfied that a respondent who is present in court has that awareness, I do not consider it is necessary for a respondent to be physically present in order for the court to be satisfied that that is the case. That can effectively be done through a remote appearance. |
| 90․ | In terms of ss 48 – 49A, as I have noted already, it would be contrary to the purpose of the PV Act of providing access to the court that is simple, quick and inexpensive to require the physical presence of a party when they are able to (and might, for practical or safety reasons, need to) appear remotely. Earlier in these reasons I described a number of scenarios where it is appropriate, and common, for remote appearances to be facilitated. Interpreting ‘present’ to mean physical presence would result in: (a) an application being dismissed or adjourned if the applicant was not physically present, even if the applicant for the order had appeared by remote technology (s 48); and (b) an application for a final order being decided in the respondent’s absence, or the matter being adjourned and a warrant issued for their arrest, if the respondent was not physically present, even if the respondent had appeared by remote technology (s 49). |
| 91․ | Such outcomes would make no sense. |
| 92․ | I also note that the wording of s 49 supports the view I take that the word ‘present’ is |
used in contradistinction to the word ‘absent’. It applies where a respondent is not ‘present’ (s 49(1)(b)) and provides, as one of two options open to the court, that it decide the application ‘in the respondent’s absence’. A respondent who appears by remote technology is clearly not ‘absent’.
| 93․ | Like s 35, the relevance of the presence of a party for the purposes of ss 64C(2)(a), 82(3) and 85(2) relates to their knowledge of the relevant order. In terms of s 64C(2)(a), the requirement for personal service of an interim order is only necessary if the respondent was not present when the protection order was made. Clearly, that provision is concerned to ensure that the respondent is aware of the conditions of the order, however, the respondent will have knowledge of the conditions if they appear remotely. There would still be an obligation on the registrar to serve a copy of the order on the respondent (s 64C(1)(a)), it is just that it would not need to be done by personal service. |
| 94․ | Similarly, the requirement in s 82(3) for a protected person to be notified if, on review of a final order, the court revokes the order, is to ensure that the protected person is aware of that fact if they were not in court when the order was revoked. If they appeared remotely, they would already be aware of that fact. |
| 95․ | Interestingly, the phrase used in s 82(3) is ‘present in court’, rather than simply ‘present’ as the word is used in the other provisions to which I have referred. Specifically referring to the fact of a protected person being physically present in court, in contrast to the references elsewhere in the PV Act to a person simply being present might be interpreted as meaning that physical presence is required for s 82(3) but not for the purposes of the other provisions of the PV Act, although it is difficult to understand why any different approach would be taken to the interpretation of s 82(3) as compared to the other provisions. In my view, having regard to the purposes of the Act and the purpose of s 82(3) itself, ‘present in court’ should be interpreted to mean having appeared before the court although the interpretation of that provision is not directly in issue in these proceedings. |
| 96․ | Like ss 64C(2)(a) and 82(3), the relevance of a person’s presence, in terms of the commencement of the appeal period in s 85(2), is in relation to their knowledge of the decision to be appealed from. Knowledge of the decision can be gained whether the person appears remotely or is physically present in court. |
| 97․ | Finally, I do not consider that interpreting ‘present’ to mean physical presence advances the purposes of s 54. |
| 98․ | For completeness, I note that there were also two provisions which were conditional on |
a party being ‘before the court’, being ss 60(1)(b) and 61(1)(b). These provisions contained the requirement for the court to explain orders to the parties who were before the court.
99․ In my view, the phrase ‘before the court’ is broad enough to incorporate remote appearances. However, I do not consider that its use in these provisions is indicative of an intention that the use of the word ‘present’ elsewhere in the Act is to be restricted to physical presence.
100․ For the reasons I have already articulated, I consider that the PV Act was drafted on the basis that ‘present’ means ‘appears’ and that various words and phrases have been used throughout the PV Act (‘present’, ‘present in court’, ‘before the court’) all have that meaning. I also note that:
(a)the word ‘present’ and the words ‘before the court’ are used interchangeably in ss 60 and 61 themselves (the heading of both provisions refers to a party being
‘present’ but the text of the provisions refers to the party being ‘before the court’); and
(b)the word ‘present’ is equated with ‘appears’ in the Explanatory Statement to the Personal Violence Bill 2016 in relation to section 49A. Section 49A provided for the options open to the court in the event that neither party was present when an application was returned before the court. While s 49A is conditional on neither party being ‘present’, the Explanatory Statement says (in relation to clause 52, being s 49A in the version of the PV Act relevant to these proceedings), that certain options are open to the court if neither the applicant nor the respondent ‘appears’.
101․ The Explanatory Statement makes clear that the purpose of ss 60(1)(b) and 61(1)(b) is to provide a mechanism by which the court actively ensures the parties understand the purpose, terms and effect of an order, as well as the consequences of the respondent contravening an order, so that the respondent is in a better position to comply with the order and the protected person understands their rights and obligations. This purpose can as easily be achieved by explaining the order to a party who appears remotely as one who is physically present and, indeed, it would undermine the purpose of the provisions if the explanation only needed to be given to a party who was physically present and not to a party who appeared remotely.
What was the impact of s 206 of the PV Act?
102․ As noted earlier in these reasons, s 206 was inserted into the PV Act by the COVID Emergency Act. Part 22 expired 29 September 2023 (pursuant to s 209 of the PV Act, it expired on the day the COVID Emergency Act expired). However, at the relevant times, section 206 stated:
206 Requirement for party to be present
(1) This section applies if a provision in this Act (other than section 35 (1) (a))—
(a) requires a party to a proceeding, or the party’s legal representative, to be present in court; or
(b) is conditional on the party, or the party’s legal representative, being present in court.
(2) Unless the court otherwise orders, during a COVID-19 emergency the party, or the party’s legal representative, may be present by telephone or other electronic audio-visual means.
(3) For section 35 (1) (a), unless the court otherwise orders, during a COVID-19 emergency it is sufficient for the person’s legal representative to be present when the protection order was made.
103․ Subsections 206(2) and (3) of the PV Act applied ‘during a COVID-19 emergency’. That was defined, relevantly, to mean an emergency declared under the Public Health Act 1997 because of COVID-19. That period ended on 24 September 2022: Public Health (Emergency) Declaration Further Extension 2022 (No 3).
104․ Accordingly, the interim order (made 12 April 2022) and the final order (made 24 June
2022) were both made ‘during a COVID-19 emergency’.
105․ The context for the inclusion of s 206 in the PV Act was that one of the government’s responses to the COVID-19 emergency (at both the Territory and Commonwealth level) was to restrict the movement of people within the community. That, of course, limited the capacity for people to attend court.
106․ The Explanatory Statement to the COVID-19 Emergency Response Bill 2020 said, in relation to section 206, that:
New section 206 and new section 207 allows for a person to be considered ‘present’ or give consent at court if they appear by telephone. These are similar to the amendments made to the requirement to attend court in person for other criminal law provisions … 107․ This statement is inaccurate.
108․ Firstly, the options for appearance provided for by s 206 were not limited to telephone appearances.
109․ Secondly, from the use of the phrase ‘considered present’, this explanation indicates that s 206 merely had a deeming effect, such that if the court permitted a person (through some other power) to appear by one of the methods identified in s 206, they would be taken to be present. However, that is not how s 206 was drafted. Although the drafting is not entirely clear, s 206 either had the effect of giving the court power to permit a party to appear by one of the identified methods or gave a party a right to appear by one of the identified methods.
110․ I also note that, to some extent, the explanation indicates that, prior to the introduction of s 206, appearance by telephone would not have sufficed in order for a person to be
‘present’. However, given the inaccuracies contained in the statement, I do not consider that much weight can be placed on that indication.
111․ Further, the analogy drawn with criminal law provisions requiring a person’s attendance at court seems to refer to the requirement for a person to appear, or be before the court, as that is the concept that is used in criminal proceedings, rather than ‘presence’. As I have noted already, s 32 of the EMP Act specifically permitted the court to make a direction for a person to appear remotely and s 311 of the MC Act had the effect that a person who appeared in accordance with such a direction was taken to be before the court where they would otherwise be obliged to appear in person. The court also had an implied power to permit parties to appear by remote technology when there was no legal obligation to appear in person.
112․ It is possible that the Explanatory Statement reflected a misunderstanding of what was required, in order for a person to be present for the purposes of the PV Act.
113․ Ultimately, regard must be had to the wording of s 206 itself. However, there are a number of issues that make it difficult to interpret. I have already mentioned one issue, concerning the ambiguity in the effect of the provision (whether it gave the court a power to permit appearance by particular methods or gave parties a right to appear in one of the identified ways). In my view, the better interpretation of the provision is that it gave parties the right to appear in one of the identified ways, given that ss 206(2) and (3) were expressed to operate ‘unless the court otherwise orders’.
114․ A more fundamental issue is that s 206(1) states that the section applies to particular provisions of the PV Act, ‘other than section 35(1)(a)’. However, s 206(3) (which is obviously within s 206) is said to apply to s 35(1)(a).
115․ It is clear from the wording of s 206 that its purpose was to establish alternatives to inperson attendances for wherever the PV Act required a person to be present in court. It established different alternatives, depending on the provision of the PV Act to which s 206 was to be applied.
116․ The alternatives to in-person attendance created by s 206 were:
(a)in general, for a person to appear by telephone or other electronic audio-visual means (s 206(2)); and
(b)for the purposes of s 35(1)(a), for the person’s legal representative to be present when the protection order was made (s 206(3)).
117․ The insertion of s 206(3) makes clear that s 35(1)(a) was intended to be included in the provisions of the PV Act to which s 206 applied.
118․ It is thus clear that the use of the words ‘other than section 35(1)(a)’ in s 206(1) was intended to qualify the provisions to which s 206(2) applied, not to qualify the application of the whole of the section itself. Otherwise, s 206(3) would have no application, which was clearly not the intention of the provision.
119․ In my view, this is an obvious drafting error which, if left uncorrected, would defeat the object of the provision insofar as it concerns s 35(1)(a). Accordingly, I read the qualification contained in s 206(1) as applying to s 206(2) not to the whole of the section: Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 at [38] per French CJ, Crennan and Bell JJ.
120․ Another issue is that s 206 applied to those provisions of the Act which required a party to be ‘present in court’ or were conditional on a party being ‘present in court’. Given the contrast between the use of the phrase ‘present in court’ in s 206(1) (confining the circumstances in which the section applied) and the use of the word ‘present’ in ss 206(2) and (3) (which identified particular ways in which a party could be present), s 206 should be interpreted only to apply to those provisions which required a party to be, or were conditional on a party being, ‘present in court’.
121․ I make three observations in this regard.
122․ The first is that the use of the different phrases suggests that the use of the word ‘present’ on its own, in ss 206(2) and (3) (and elsewhere in the PV Act), is not limited to being ‘present in court’, otherwise the words ‘in court’ in s 206(1) would be superfluous.
123․ Relatedly, the reference in s 206(2) to a party being ‘present by telephone or other electronic audio-visual means’ makes clear that being ‘present’ can be by means other than physical presence, including by telephone or audiovisual link.
124․ Finally, I note that:
(a)as noted earlier in these reasons, there was only one provision, s 82(3)
(concerning the review of final orders), which used the phrase ‘present in court’;
(b)none of the provisions of the PV Act required a person to be present (physically or otherwise); and
(c)while two provisions were conditional on a party being ‘present’ (ss 35(1)(a) and
64C(2)(a)) and several were conditional on a party not being present (ss 24, 4849A, 54 and 85(2)) none were conditional on a party being ‘present in court’.
125․ Thus s 206 seems to have been of very limited effect. Ordinarily, that might be a reason for interpreting the provision in a different way, however, I do not consider that that is appropriate in this case for three reasons.
126․ Firstly, interpreting the phrase ‘present in court’ in s 206 as referring to the word ‘present’ throughout the rest of the PV Act is, for the reasons set out earlier in this decision, inconsistent with how I consider that the word ‘present’ was used in the PV Act prior to the introduction of s 206.
127․ Secondly, it appears from the drafting of s 206 and the accompanying Explanatory Statement, that the intention of the legislature, by inserting s 206 into the PV Act, was that, to the extent that the PV Act required a person to appear in person, or was conditional on a party appearing in person, the person would be relieved of that obligation and could appear in one of the identified ways. That is, it was a ‘catch all’ provision that sought to avoid any unfair consequences that might arise from a person being unable to come to court. However, since the PV Act’s references to a party being present did not mean physical presence, s 206 was in fact not necessary.
128․ Finally, I note, as Mr Tricolas submitted, that if the use of the word ‘present’ in the PV Act meant physically present, s 206 would have the effect that Mr Cirjak would have been denied the protection of an order at the time of the incident. That is, on the assumption that being ‘present’ means physically present:
(a)when the final order was made on 24 June 2022, the interim order (which was to continue ‘until determination of the final order’) ended;
(b)Mr Tricolas appeared by telephone when the final order was made. He was thus not physically present;
(c)Mr Tricolas would therefore not be present for the purposes of s 35(1)(a), because the only alternative mode of appearance provided for that provision was for a party’s legal representative to be present (s 206(3)). As this did not occur, Mr Tricolas would not be at risk of contravening the final order until he was served with the order (s 35(1)(a)), which never occurred;
(d)however, Mr Tricolas would have been present for the purposes of s 24 (because s 206(2) permitted a party to attend by telephone for the purposes of all provisions of the PV Act except for s 35(1)(a)), with the result that s 24 did not automatically extend the interim order until Mr Tricolas was served with the final order;
(e)accordingly, Mr Cirjak would not have had the protection of either order from the time the final order was made on 24 June 2002, including at the time of the incident on 2 May 2023, because the final order was never served on Mr Tricolas.
129․ Such an interpretation would be contrary to the central purpose of the PV Act, to facilitate the safety and protection of people who fear or experience personal violence by providing a legally enforceable mechanism to prevent personal violence. Mr Tricolas accepted that the result would be perverse but nevertheless submitted that that was the effect of the legislation.
130․ The purpose of, and context for, s 206 of the PV Act was to permit a party’s appearance at court, by means other than physical presence, where the PV required (or was conditional on) a party being present in court, at a time when physically attending court was difficult because of government-imposed COVID-19 movement restrictions. Its purpose was thus facilitative. It is clear that its purpose was not to affect the operation of the PV Act in any other way, particularly in a way that would derogate from its objects.
131․ In my view, the legislature could not have intended that s 206 operate in the way that Mr Tricolas submitted that it did.
Mr Tricolas was present when the final order was made
132․ Mr Tricolas appeared at the final hearing by telephone.
133․ I do not consider that any provision of the PV required, or was conditional on, Mr Tricolas being present in court when the final order was made. In addition to the general observations I have made in this respect earlier in these reasons, I note that section 25 of the PV Act provided that final orders could be made by consent whether or not the parties had attended, or any party had attended, before the Magistrates Court in relation to the application for the final order.
134․ Accordingly, I do not consider that s 206(2) was of any relevance to Mr Tricolas’ appearance. However, as I have noted earlier in these reasons, the court had the power to permit Mr Tricolas to appear by remote technology as part of its implied power and Mr
Tricolas did, in fact, appear by telephone. I also note that, because consent orders were
being entered into, s 207(2) made clear that Mr Tricolas could give his consent by telephone, as he did.
135․ Having regard to my view that being ‘present’ for the purposes of the PV Act meant ‘appears’, I find that Mr Tricolas was present at the time the final order was made.
Mr Tricolas is not guilty of the offence charged
136․ Mr Tricolas is charged with contravening the interim personal protection order that was made on 12 April 2022.
137․ The interim order ended on 24 June 2022 when the final order was made. As I have found that Mr Tricolas was present when the final order was made, s 24 of the PV Act did not extend the operation of the interim order beyond 24 June 2022. From that date, Mr Cirjak was protected by, and Mr Tricolas was liable to prosecution for a contravention of, the final order.
138․ As I noted earlier in this decision, the Prosecution made a deliberate decision at the commencement of the hearing to amend the charge that had originally been brought against Mr Tricolas, relying on a contravention of the final order, to rely on a contravention of the interim order. The Prosecution maintained its reliance on the alleged contravention of the interim order even after I indicated to the parties that I would find that Mr Tricolas was present when the final order was made.
139․ As I have found that the interim order ended prior to the incident on 2 May 2023, I find Mr Tricolas not guilty of the offence charged.
140․ Having regard to that finding, it is not necessary to come to a concluded view as to whether Mr Tricolas was served with the interim order, including an evidentiary issue that Mr Tricolas raised as to the admissibility of an affidavit of service of the interim order.
Mr Tricolas was not reckless as to the fact that his conduct contravened the final order
141․ Even if the Prosecution had further amended the charge against Mr Tricolas to rely on a contravention of the final order, I would not have been satisfied that Mr Tricolas was reckless with respect to the possibility that his conduct would contravene the protection order.
142․ Whether Mr Tricolas could be found guilty of contravening the final order would depend on whether Mr Tricolas was aware of a substantial risk that being at his local shops and, specifically, going into Supabarn, would result in him being within 100 metres of Mr Cirjak and, having regard to the circumstances known to him, it was unjustifiable to take that risk: s 20, Criminal Code 2002.
143․ I am not satisfied that that test is met in relation to Mr Tricolas going to the shopping complex itself. Mr Cirjak does not work at the shopping complex and there is nothing to suggest that he was there with any degree of frequency.
144․ The question is really whether Mr Tricolas saw and recognised Mr Cirjak outside Supabarn and nevertheless decided to walk past him. If he did, he must have known that he was within 100 metres of Mr Cirjak when he did so and, therefore that his actions would be in contravention of the protection order.
145․ I have a strong suspicion that Mr Tricolas saw and recognised Mr Cirjak when he was outside Supabarn. However, I am not satisfied, beyond reasonable doubt, of those facts.
146․ When Mr Tricolas drove into the shopping centre complex, he drove between two rows of cars on the side of the car park furthest away from where Mr Cirjak was walking past the front of Supabarn. He drove around the end of the car park and started to drive between the two rows of cars closest to Supabarn.
147․ As he did so, it is clear that Mr Cirjak recognised him or his car. Mr Cirjak’s evidence as to that fact is consistent with the CCTV footage, which shows that Mr Cirjak stopped walking in the direction he had been going, looked at Mr Tricolas’ car, then taking his mobile phone out of his pocket and started looking at it while he lent on a pole near the entrance to Supabarn. At that point, he was around 10 metres from Mr Tricolas’ car. Mr Tricolas then drove past Supabarn and out the car park exit.
148․ As Mr Tricolas exited the car park, Mr Cirjak stared in his direction. Mr Tricolas exited the car park and then almost immediately re-entered the car park and parked in the middle row of cars, near Mr Cirjak’s car. He was approximately 30 metres away from Mr Cirjak at that point.
Does Mr Tricolas’ conduct leading up to him entering Supabarn show that he knew that Mr Cirjak was standing outside Supabarn?
149․ In circumstances where Mr Tricolas re-entered the car park straight after exiting, and walked into Supabarn a short time later, and where there were parks available in the car park (including outside Supabarn) at all times, I suspect that Mr Tricolas was aware that Mr Cirjak was standing at the entrance and initially decided to drive away, but then decided that he would not be deterred from going into the store.
150․ However, I am not satisfied beyond reasonable doubt that that is why Mr Tricolas did the loop of the car park that he did. There are a number of reasons why he might have decided not to stop at the shops, perhaps because he had second thoughts about needing to get anything at the shops or perhaps because he received a call that he thought needed his immediate attention, but nevertheless he ended up deciding to stop and get whatever he needed from Supabarn.
151․ As I have noted at the beginning of these reasons, Mr Tricolas did not walk in Mr Cirjak’s direction initially, but walked towards another part of the shopping complex. However, he looped back and walked past Mr Cirjak and into Supabarn. Mr Cirjak looked in his direction a couple of times.
152․ Given the short period of time between Mr Tricolas walking away from his car and reaching Supabarn, and the fact that he does not seem to approach any of the other stores with any intent to go into them before turning around and walking towards Supabarn, I suspect that he realised that Mr Cirjak was standing in front of that store and did not want to walk directly towards him. Again, though, I am not satisfied beyond reasonable doubt that that was the case. In particular, I cannot rule out the possibility that Mr Tricolas initially intended to go to another store but changed his mind and went to Supabarn.
153․ I am not satisfied that the only inference that is reasonably available from the way Mr Tricolas drove around the car park and approached Supabarn from his car, is that he was aware that Mr Cirjak was standing outside Supabarn.
Does it follow, from Mr Tricolas’ proximity to Mr Cirjak as he entered Supabarn, that Mr Tricolas must have known that Mr Cirjak was standing at the entrance to the store?
154․ As Mr Tricolas reached the entrance to Supabarn, he was approximately two metres from Mr Cirjak. Mr Cirjak was still next to the pole, by the road, and Mr Tricolas walked alongside the wall to the Supabarn building. Mr Cirjak remained looking down at his phone and Mr Tricolas looked straight ahead. Mr Tricolas was wearing sunglasses.
155․ As Mr Tricolas entered the store, Mr Cirjak followed him in. Mr Cirjak then stayed near the front of the store, to the side of the entrance, while Mr Tricolas collected some items, took them to the counter to pay for them, then left.
156․ Given their proximity to one another, I suspect that Mr Tricolas realised that Mr Cirjak was standing there but, for the reasons which follow, I am not satisfied beyond reasonable doubt that he did.
Mr Tricolas did not look in Mr Cirjak’s direction
157․ The first reason why I am not satisfied that Mr Tricolas was aware that Mr Cirjak was standing outside Supabarn is that, at no point in any of the CCTV footage that was played, which contained footage from a range of angles both inside and outside
Supabarn, can Mr Tricolas be seen looking in Mr Cirjak’s direction. While Mr Cirjak said
that Mr Tricolas looked at him, he agreed that it appears from the CCTV footage that Mr Tricolas did not do so.
158․ Mr Cirjak also conceded that he had only been looking at Mr Tricolas through his peripheral vision as Mr Tricolas approached him. When it was suggested to Mr Cirjak that he could not say what Mr Tricolas was looking at, Mr Cirjak suggested that Mr Tricolas could have been in fairy land.
159․ I note in that respect that the extent to which people are cognisant of their surroundings varies, both between people and, sometimes, from day to day with respect to the same person depending on what is going on in their life. Mr Tricolas was also wearing sunglasses, which may have reduced his field of vision.
I do not know whether Mr Tricolas knew what Mr Cirjak looked like
160․ Secondly, as Mr Tricolas submitted at the hearing, there is little evidence that Mr Tricolas knew what Mr Cirjak looked like.
161․ It was alleged that Mr Tricolas had assaulted Mr Cirjak at another shopping complex in 2021, which led Mr Cirjak to obtain the protection order against Mr Tricolas. However:
(a)as Mr Cirjak accepted, they were strangers in 2021;
(b)criminal proceedings ultimately brought against Mr Tricolas were dismissed on the basis that the court could not be satisfied that it was, in fact, Mr Tricolas who had assaulted Mr Cirjak;
(c)it was Constable Dudley, who was investigating the assault allegation, who gave Mr Cirjak Mr Tricolas’ name for the purposes of seeking a protection order – Mr Cirjak did not know who Mr Trioclas was; and
(d)as Mr Tricolas submitted, even if it was Mr Tricolas who assaulted Mr Cirjak, that incident occurred in June 2021, almost two years before the alleged breach of the protection order with no evidence that the two men had seen each other in the meantime.
162․ Given that Mr Tricolas never appeared in person in relation to Mr Cirjak’s personal protection proceedings, he did not see Mr Cirjak during those proceedings. While Mr Tricolas consented to a final order being made, that does not establish that Mr Tricolas knew what Mr Cirjak looked like. As Mr Tricolas submitted, it is possible that he consented to the personal protection order on the basis that there were, at the time, ongoing criminal proceedings and he thought it was the sensible thing to do at the time, even if he did not know or had not assaulted Mr Cirjak as alleged.
I am not satisfied that Mr Tricolas and Mr Cirjak interacted outside Supabarn
163․ Mr Cirjak gave evidence that, when Mr Tricolas was entering Supabarn, Mr Cirjak told him that he could not be so close to him, given the court order. Mr Cirjak gave evidence that Mr Tricolas said something like ‘get fucked’ or ‘fuck you’. This is consistent with an email that Mr Cirjak sent to Constable Dudley shortly after the incident.
164․ One interpretation of that interaction is that Mr Tricolas knew, and had a level of animosity towards, Mr Cirjak. Another, however, is that he was just being hostile to someone whom he did not know talking to him.
165․ More fundamentally, though, I am not satisfied that the interaction occurred in the way that Mr Cirjak described in this evidence.
166․ It is not possible to say, from looking at the CCTV footage, whether Mr Cirjak spoke to Mr Tricolas. If he did, Mr Tricolas did not turn around to acknowledge him.
167․ Further, I do not consider that I can confidently rely on Mr Cirjak’s evidence, which contained a number of inconsistencies and implausible statements. The more obvious of these are as follows:
(a)firstly, Mr Cirjak gave evidence that he recalled that, when Mr Tricolas first drove into the car park, he stopped behind Mr Cirjak’s car, looked at the car and then looked over at Mr Cirjak, but Mr Cirjak later accepted that that recollection was mistaken;
(b)secondly, when asked whether he was looking at his phone to blend into the scenery he said that was not the case, he was trying to bring up his camera to take photos. However, it is not believable that he spent the time it took Mr Tricolas to park, walk around the perimeter of the car park and into Supabarn to find his camera app. Further, he never once tried to take a photo;
(c)thirdly, as mentioned already, Mr Cirjak gave inconsistent evidence as to whether Mr Tricolas looked at him. At one point of his evidence he said that Mr Tricolas looked at him when Mr Cirjak said that they interacted, but in other parts of his evidence he conceded that he could not know what Mr Tricolas was looking at, that he could have been in fairy land, and that the CCTV footage indicates that Mr Tricolas did not look in his direction.
(d)relatedly, Mr Cirjak told Constable Dudley a few days after the incident that Mr Cirjak felt as though he was a ghost when Mr Tricolas walked past him. That statement is inconsistent with Mr Tricolas having looked at Mr Cirjak. It is also inconsistent with Mr Cirjak’s evidence, and the email he sent to Constable Dudley, that Mr Tricolas had sworn at him;
(e)when Mr Cirjak’s statement to Constable Dudley, as to having felt like a ghost, was put to Mr Cirjak in cross-examination, he sought to explain it on the basis that he was referring to himself being scared, but that would be an unusual expression to use in those circumstances. It is a phrase that is more commonly used to describe a situation where a person feels as though they have been ignored, or not noticed. Ultimately, Mr Cirjak conceded that that is what he meant by the expression when he spoke to Constable Dudley. He told
Constable Dudley that Mr Tricolas ‘continued into the store’, that Mr Tricolas
‘didn’t look back at me’ but ‘continued straight into the store like I was a ghost’; and
(f)finally, Mr Cirjak responded to a suggestion put to him in cross-examination – that he would not have followed Mr Tricolas into Supabarn if Mr Tricolas had told him to fuck off – by saying that he would, in order to be around other people. However, Mr Cirjak could have simply gone to his car and left if he was worried about Mr Tricolas. Further, his explanation is inconsistent with his statements, earlier in his evidence, that he stayed outside Supabarn when he saw Mr Tricolas arrive because he wanted to be in full view of the cameras and did not want to be cornered in the store like he said he had been during the 2021 incident.
168․ I do not consider that Mr Cirjak was a reliable witness. Accordingly, I am not satisfied that he interacted with Mr Tricolas as Mr Tricolas entered Supabarn. Even if he spoke to Mr Tricolas, I am not satisfied that Mr Tricolas appreciated that Mr Cirjak had done so. I am not satisfied that he acknowledged Mr Cirjak in any way.
Conclusion
169․ Ultimately, I am not satisfied beyond reasonable doubt that Mr Tricolas realised that it was Mr Cirjak who was standing outside the Supabarn store. Accordingly, I am not satisfied beyond reasonable doubt that he was reckless as to the fact that his conduct contravened the final personal protection order.
Determination
170․ I find Mr Tricolas not guilty of the offence charged.
I certify that the preceding one-hundred and seventy [170] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.
Associate: Niamh Dwyer
Date: 27 September 2024
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