Purcell v Director of Public Prosecutions (NSW)

[2021] NSWDC 10

District Court

New South Wales

Medium Neutral Citation:

Purcell v Director of Public Prosecutions (NSW) [2021] NSWDC 10

Hearing dates:

4-5 February 2021

Date of orders:

5 February 2021

Decision date:

05 February 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 109

Catchwords:

CRIMINAL – conviction appeal – domestic violence offence – contravention of apprehended violence order – stalking and intimidation – proof of service of Interim AVO – whether service of AVO could be waived by accused’s subsequent court appearance – whether charges for contravention of AVO bad for duplicity – whether multiple commission of offence duplicitous

EVIDENCE – statement of service under Local Court rule – hearsay rule – whether document admissible as business record

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 13, 14, 22, 24, 47, 50, 52, 55, 66, 73, 76, 77

Crimes (Domestic and Personal Violence) Regulation2014 (NSW)

Crimes (Domestic and Personal Violence) Regulation2019 (NSW)

Evidence Act1995 (NSW) ss 59, 66, 69

Local Court Act2007 (NSW)

Local Court Rules 2009 (NSW) r 5

Cases Cited:

Director of PublicProsecutionsv Merriman [1973] AC 584

Jussv Magistrates’ Court at Victoria [2003] VSC 365

Mahmoodv Western Australia (2008) 232 CLR 397

R (Cth) v Petroulias(No.1) (2006) 217 FLR 242

R vMoussad (1999) 152 FLR 373; [1999] NSWCCA 337

R v Wilson (1979) 69 Cr App R 83

Vitali v Stachnik [2001] NSWSC 303

Young v Sprague [2015] NSWSC 1874

Category:

Principal judgment

Parties:

Ms D Purcell (appellant)
Director of Public Prosecutions (NSW) (respondent)

Representation:

Counsel:
Mr B Levet for the appellant
Solicitor Advocate for the Director of Public Prosecutions (NSW)

File Number(s):

2019/19613; 2019/4332

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

28 April 2020

Before:

Magistrate M Goodwin

File Number(s):

2019/19613; 2019/4332

Judgment

BACKGROUND

1. On 28 April 2020, the appellant was convicted of two related offences by the Manly Local Court.

2. The charges were that:

“Between 12:50pm and 12:55pm on 5 January 2019, at Neutral Bay, the appellant knowingly contravened a restriction or prohibition in an interim apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘CDPV Act’) (the ‘first charge’);

Between 5:30pm and 8:05pm on 18 January 2019, at Neutral Bay, the appellant intimidated Chloe Hunter with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the CDPV Act (the ‘second charge’); and

Between 5:30pm and 8:05pm on 18 January 2019, at Neutral Bay, the appellant knowingly contravened a restriction or prohibition in an interim apprehended violence order, contrary to s 14(1) of the CDPV Act (the ‘third charge’).”

3. The appellant appeals her convictions in respect to those offences.

NATURE OF THE APPELLANT’S CHALLENGE TO THE CONVICTIONS

4. The nature of the appellant’s challenge is not that the Crown did not make out her conduct underlying the offences on the basis of the evidence. The appellant’s Counsel did not shy away from characterising the appellant’s conduct in strongly pejorative terms.

5. The extent of the challenge was limited to the following arguments:

1. the interim apprehended violence order (‘AVO’) was not “served” in accordance with the requirements of s 55 of the CDPV Act. On that basis alone, it was said, the convictions for the first and third charges should be set aside.

2. all of the charges were bad for duplicity.

SERVICE OF THE INTERIM APPREHENDED VIOLENCE ORDER

The legislative provisions

6. Section 14(1) of the CDPV Act is the offence relevant to the first and third charges. In paraphrase, it sets out the elements to sustain the offence of contravening an AVO. An AVO relevantly includes an interim AVO.

7. One of those elements is that the accused ‘knowingly’ contravenes a prohibition or restriction in the order.

8. Section 14(2) provides:

“A person is not guilty of an offence against subsection (1) unless:

(a)   In the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made…” (emphasis supplied)

9. Section 3 defines ‘court’ as including the Local Court (and also the Children’s Court).

10. Part 6 of the CDPV Act is titled ‘Interim Court Orders’. This Part of the legislation deals with the situation where an application has been made under Part 10 (see below). In such case the Court may make an interim apprehended personal violence order. This is the order that was made on 1 November 2018.

11. Section 22 indicates that where, as in this case, the order is obtained ‘ex parte’, the court may make an interim court order in the course of directing the defendant to appear at a further hearing. In this case the direction was for the appellant to appear on 20 November 2018. The interim court order had the same effect as a final AVO (s 22(6)).

12. Section 24 provides that an interim court order remains in force until it is revoked, ceases to have effect when a final AVO is made, or where an application for a AVO order is withdrawn or dismissed, whichever first occurs.

13. Part 10 of the CDPV Act is titled ‘Applications for Final Apprehended Violence Orders and Interim Court Orders and Associated Proceedings’.

14. By s 73, the Court is specifically empowered to vary (and revoke) an interim court order, including, relevantly, extending the period during which the order was to remain in force (s 73(2)(a)), however this could only be done with notice to the defendant.

15. By s 76(1), where a defendant appears in court and the Court is making a final AVO, explanation must be made about various matters, being the effect of the order, consequences that may fall from the contravention of the order and the respective rights of the defendant and the protected persons.

16. By s 77(3) & (4), where a defendant is not present in court at the time that an interim court order is made, the Registrar is required to arrange for a copy of the order to be served on the defendant by a police officer.

17. In this appeal, the appellant’s Counsel drew the Court’s attention to other provisions in Part 10, specifically relating to the processes whereby an application may be made to the Court for AVO and interim court orders.

18. Section 47 defines an ‘associated proceeding’ as a proceeding in relation to an application for an order. Consistently with s 3, the same provision defines ‘court’ as the Local Court or also the Children’s Court. Further, s 47 defines ‘rules’ as meaning rules made under the Local Court Act2007 (NSW).

19. Section 50(1) provides that an application proceeding is to be commenced in a court by the issue of and filing of an ‘application notice’. The form and content of the ‘application notice’ is prescribed by Regulations to the legislation (s 50(2)). By Regulation 5 of the Crimes (Domestic and Personal Violence) Regulation2019 (NSW), Schedule 1 currently prescribes the content of the application notice in considerable detail. But as at November 2018, when an ex parte application for an interim AVO was sought, the content of an application notice was prescribed by Schedule 1 to the Crimes (Domestic and Personal Violence) Regulation2014 (NSW). For present purposes, nothing turns upon the content of such notice.

20. My understanding in this case is that the application was commenced by Mrs Hunter (s 52).

21. Section 55(2) provides that an ‘application notice’ so issued must be served by a person authorised by the rules in accordance with the rules.

22. No express provision is made in s 55, or other provisions of the CDPV Act for the consequence if the requirement of service in s 55(1) is not complied with.

The Magistrate’s reasons

23. The Magistrate reasoned that SC Dodds served the interim AVO at 8:00am on 6 November 2018. Further, the appellant’s attendance at Court on 20 November 2018 “inescapably” led to the inference that her attendance on that date, her familiarity with the content of the AVO and her own application for an AVO against Mrs Hunter was explicable by her having been personally “served”. The Magistrate applied a decision, Young v Sprague [2015] NSWDC 1874, which indicated that the test for personal service was whether an accused was in ‘possession’ of the relevant document. This test was satisfied.

The appellant’s argument

24. The appellant argument involved the following steps:

1. an essential element of the offence under s 14(1) is that she be served with a copy of the (interim) AVO or was present in court at the date it was made;

2. since it was common ground that the appellant was not in Court on the date the interim AVO was made, the Crown needed to prove that she was “served” with a copy of the order;

3. it was also common ground that SC Dodds was authorised to serve an application notice for the purposes of section 55(2);

4. however, the ‘rules’ by which the service had to be affected was not, as the learned Magistrate had considered, the Local Court r 5, but some other ‘rules’ made pursuant to the CDPV Act;

5. the learned Magistrate’s reliance upon, or application of the authority of Young v Sprague [2015] NSWDC 1874 was misplaced, in two respects:

1. her Honour relied upon knowledge of a different document (a Court Attendance Notice) subsequently acquired after an attendance at court;

2. knowledge of the AVO, or its terms, was, at any rate irrelevant. What needed to be shown was service.

6. The Crown could not establish, beyond reasonable doubt, that the AVO was served; particularly in circumstances where the police officer whose name appeared on a purported ‘statement of service’ (SC Kylie Renee Dodds) was not called to give evidence to prove the matter.

25. Some of these steps encounter insurmountable difficulty.

26. First, it is untenable to suggest that the ‘rules’, as referred to in s 55(2), or any other provision of the CDPV Act is not a reference to the Local Court Rules 2009 (NSW). That submission flies in the face of the definition of ‘rules’, in the relevant context of Part 10, in s 47. Unsurprisingly, the CDPV Act itself did not itself prescribe any rules at all. As indicated, for example, under s 50(2), it is regulations that are made under the authority of that legislation.

27. Secondly, in my view, it is arguably a red herring to invoke s 55 at all. Section 55 falls with other provisions in Division 3 of Part 10 relating to the commencement of a proceeding for an AVO. Specifically it required service of an ‘application notice’. It is not an ‘essential element’ to the offence in s 14(1) of the Act that an application notice be served. The requirement is that the AVO (being, here, the interim AVO) itself be served.

28. Whether or not an application notice was served is a question which did not need to be considered on the trial of the offence of s 14(1). Certainly no argument was raised at trial that either the first or third charges, which relied upon proof of contravention of an AVO, were defective on the basis that the anterior application proceeding – the application for an interim AVO proceeding – was itself attended by any ‘irregularity’, for example the non-compliance with the requirement to serve an application notice. That is a large argument, involving consideration of s 66 of the CDPV Act and was not the subject of any submission before the Magistrate or this Court and, in my view, it would be inappropriate to entertain it now.

Requirements for service under the Local Court rules

29. Returning then, to the requirement of service in accordance with the Local Court Rules. In her reasons, the learned Magistrate referred to rule 5.12, titled ‘Proof of Service’. That is relevant but is not, with respect, the correct starting point. Given that s 14(2) of the CDPV Act does not, of itself, prescribe any particular method of service, it is first necessary to consider what the rules provide for as available methods for service, and then consider what occurred in this case.

30. Requirements under the rules of the Local Court for service are contained in Part 5. Part 5 generally deals, relevantly, with ‘application proceedings’ of the kind in question. Part 5 erects a distinction, for the purpose of service requirements, between ‘originating documents’ and ‘other documents’. An ‘originating document’ is defined as an ‘application notice’ or a ‘court attendance notice’ (r 5.2). In terms of the requirement in s 14(2)(a), it seems to me that the interim AVO (as distinct from the application notice) does not constitute an originating document.

31. That being so, it is Division 3, and not Division 2, of Part 5 that is relevant. By r 5.10(1), service of an interim AVO (as a ‘document (other than an originating document’) may be effected by means of ‘personal service’. There are other alternatives as well but on the facts in this case, they need not be considered. (I note that even if the service requirements were governed by Division 2, the same result would practically apply, under r 5.6).

32. Rule 5.12, which the learned Magistrate considered, sets out mandatory requirement for completion of a ‘statement of service’. There were certain mandatory details that needed to be set out. The document that was before the Magistrate (being p 12 of Ex A on this appeal) indicated that the method of service was by SC Dodds delivering the interim AVO to the appellant, in person. The Crown did not suggest that it was delivered by other alternative methods. If it had, the document would have been expected to have some additional detail of the kind set out, in alternative ways, in r 5.12(1)(e), (f) or (g).

33. No real point was taken by the appellant about the content of this ‘statement as to service’ other than to observe that the version that was in evidence was not signed. It was common ground that this was explicable due to the version of the statement being attached to the interim AVO was a print-out of what was on the police computerised system. However, as the Crown noted, where, as here, it was posited that the interim AVO being served was served by a police officer, the requirement for signature was obviated (r 5.12(4) and (5)).

34. It is clear then, and the learned Magistrate correctly proceeded on the basis, that the Crown sought to prove that it served the interim AVO personally upon the appellant. The next issue is whether the Crown proved, beyond reasonable doubt, that the interim AVO was personally served.

35. On this aspect of its argument, as indicated, the appellant submitted two things: it was impermissible to look at any conduct, said or done by the appellant between 6 November 2018, the date identified in the statement of service as being when SC Dodds served the interim AVO in person, and 5 January 2019, being the date of the offence which was the subject of the first charge. Secondly, in deciding the question, the Court should draw an adverse inference from the Crown’s failure to call SC Dodds at trial to give evidence on the point of service. Without such evidence, the Crown could not meet the requisite standard of proof.

36. I reject both of these submissions. In relation to the former, the appellant criticised the learned Magistrate for her reliance upon the authority of Adams J in Young v Sprague. An issue in that case was whether the Crown served a Court Attendance Notice on the accused. As suggested earlier, that would be a form of originating document under the Local Court Rules (r 5.2) whereas, as I have found, an interim AVO falls into a different category. But as I have also indicated, there is no relevant difference, because personal service is just as much an available method of service for an interim AVO as it is to an originating document, like a Court Attendance Notice. Continuing, Adams J found that personal service was established by proof that the CAN ‘came into the possession’ of the accused, and that this was enough. In that case, her Honour notably relied upon an admission of the accused that he came to be in receipt of the document [13].

37. In the Local Court, the learned Magistrate adopted this test and, in so doing, took into account a range of admissions made by the appellant signifying her awareness of the interim AVO from 6 November 2018 up to the time of the first allegedly offending conduct, on 5 and beyond, on 18 January 2019. The gist of that evidence which I will refer to later in more detail, was that the appellant well knew about the AVO and its content: she indicated that she was preparing her own AVO against Mrs Hunter “too” and, upon her arrest, she made statements evincing her belief that, so far as she was concerned, she was not in breach of the content of the AVO.

38. For example, upon her arrest on 5 January 2019 and in the course of her denial of any contravention, the appellant implicitly construed the AVO, drawing a distinction between contacting “her” (apparently, referring to Mrs Tara Hunter) and contacting the “visitors”. She said other things about Mrs Hunter and the propriety of the latter’s conduct as well.

39. Then, on 18 January 2019, after her arrest, she asserted that she was not in “breach of the AVO”. Her accompanying statement “I haven’t approached them” may also be taken to be an admission of her awareness of the content of the AVO.

40. Counsel for the appellant seeks to distinguish this case from Young v Sprague on the basis that, by reason of s 14(2)(a), proof of service of the AVO is one of the ‘essential elements’ of the offence. Be it so, but that does not justify altering the content of the test for personal service. I see no valid basis for the suggested distinction and consider that the learned Magistrate was correct to adopt the test of whether the Crown established, as at the time of the offending conduct, that the appellant was in possession of the interim AVO.

41. The next part of the appellant’s argument was if that test was adopted, the Crown could not establish that she was in possession of the AVO without actually calling SC Dodds to say that she did. It was not enough for the Crown to call Officer Harris, as the Crown did, since it was not shown that she had first-hand knowledge of what SC Dodds had done. The Court was invited, by analogy, if not necessary effect, to draw a ‘Jones v Dunkel’ inference against the Crown for its failure to call SC Dodds.

42. The last part of this submission should be rejected, as it is wrong as a matter of law. Since Mahmood v Western Australia (2008) 232 CLR 397 at [27], in a criminal trial, where the prosecution does not call a witness, the High Court rejected the contention that it was necessary or appropriate to invite the trier of fact to draw an adverse inference arising from its failure to call a witness. The most that can be said is that the trier of fact may take into account that omission, when the witness might have been expected to be called, when considering whether the Crown had proved the element beyond reasonable doubt.

The admission of the statement of service & omission to call SC Dodds

43. However, the other part of the submission merits closer consideration: the implications for the Crown’s case that it did not call SC Dodds. The significance of this omission is to be assessed by whether it was necessary to call her. The Crown implicitly says it was not necessary to do so because the statement of service, which was admitted in the Local Court, spoke for itself.

44. As a preliminary observation, for the purposes of s 14(2), in my view it was not essential that the prosecution prove beyond reasonable doubt, that SC Dodds did in fact deliver the AVO at the time and on the date she said, as indicated on the statement of service. On the proper construction of s 14(2), in my opinion it is sufficient that as at the date and the time of the offending, the appellant was in “possession” of it. Nevertheless, actual proof that SC Dodds did in fact serve it plainly would facilitate proof that she was in possession of it. It is clear that before the Magistrate, the Crown relied upon the content of the statement of service. Over the objection of the appellant’s Counsel, the Court admitted the document.

43. In my opinion, her Honour erred in doing so. There was no provision in the Local Court Rules to treat a statement of service as evidence of the truth of what was intended to be asserted, or, for that matter, any presumption of its conclusive effect. For it to be relied upon for the truth of its content, it needed to be admissible in accordance with the Evidence Act1995 (NSW). There was no dispensation from the requirements of the Evidence Act1995 (NSW). In my view, it is a class of ‘out of court statement’ and, as such would appear to attract the operation of the rule against hearsay, in s 59.

44. During argument, I raised with Counsel for the appellant whether the document could be regarded as a ‘business record’ of the police. Counsel responded that it could not qualify as a business record because of s 69(3) of the Evidence Act 1995 (NSW). I accept that submission. The statement of service of an AVO cannot be regarded as a sort of routine document. As Barrett J said in Vitali v Stachnik [2001] NSWSC 303 at [12]:

“The purpose of the exclusion... is to prevent the introduction to the hearsay rule of hearsay material which is prepared in an atmosphere, or context, which may cause it to be self-serving, in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings.”

47. In my view, for a criminal proceeding in which a charge is laid for breach of an AVO, in which an essential element is proof that the accused has been served with the AVO, an out-of-court statement that an AVO has been served is entirely self-serving.

48. In this case, the maker of the representation, SC Dodds, was not called. It was not open to the prosecution, and at trial it did not seek, to invoke another exception to the hearsay rule, being s 66 of the Evidence Act. Although, apparently, SC Dodds provided a witness statement to Officer Harris, she did not put on an affidavit deposing to the correctness of what was written in the statement of service. Further, the circumstance that Officer Harris extracted the statement from the police’s computer system does not render the representation in the document that the prosecution relied upon for evidence of the truth of it any more reliable than the document itself.

49. The issue of whether a statement of service infringes the rule against hearsay was touched upon by Lerve DCJ in Rich v R [2015] NSWDC 71. In that case, an accused was similarly charged with an offence under s 14 of the CDPV Act. Unlike the facts in this case, however, the nature of the order was a provisional order issued under Part 7 of the Act. On an appeal against conviction, Counsel for the appellant in that case argued that the statement of service of that provisional order was inadmissible as hearsay. His Honour found (at [31]), as I have, that the statement of service complied with the Local Court Rules.

50. Pertinently, however, after referring to facultative provisions in other legislation, rendering certificates admissible by statutory provision, at [36], Lerve DCJ equated a statement of service with those provisions and rejected the contention that it was inadmissible as hearsay.

51. That finding should, in my view, be treated as obiter. That is so because his Honour found that the accused in that case was present in Court when an interim order was made. This enabled the prosecution to rely upon the second alternative in s 14(2).

52. Even so, I would, respectfully, disagree with the view that a statement of service under r 5.12 is an exception to the hearsay rule. First, it took the deliberate actions of Parliament to legislate for provisions admitting certificates of the kind considered by his Honour (at [32] & [34]) as truth for their contents, for them to be admissible as of their own force. An ordinary rule of court does not have that same effect. In other words, absent an express provision facilitating admission of the statement as truth of its contents, I am loath to find any implication to that effect in the Court rules. General court rules for proof of service of documents may serve multiple purposes in criminal proceedings, but the purpose the subject of present inquiry is whether the statement of service could prove the matter material to the commission of a criminal offence. The content of the relevant regulation sets out the type of detail that a Court may need to be satisfied that a recipient of an AVO has been brought to the notice of a defendant but where the fact of service of the order is material, such as prosecution for an offence under s 14, the content of the statement of service amounts to no more than a bare assertion of the fact that it was served. That is conventionally an out of court statement relied upon for the truth of the assertion.

53. Secondly, and related to the first point, whilst I agree that a rule like 5.12 is designed to facilitate proof, without legislative backing, it is too easy for the prosecution to make a self-serving statement. I accept the appellant’s submission that an offence like s 14(1) is unique, in the sense that, by reason of s 14(2), it cannot be established unless the prosecution proves service of a particular document. Absent statutory provision, in my view, the requirement of proof of this ‘essential element’ should not easily be circumvented by an out of court statement which, inherently, is made at a time when a criminal proceeding may at least be contemplated.

54. Another question considered by Lerve DCJ was whether, assuming that personal service could not be proven, it could be taken to have been ‘waived’ by reason of an accused’s later appearance in Court . At [39]­-[45] his Honour appeared to suggest it could. Again, I respectfully disagree. In Young v Sprague, Adams J referred to the decision in Juss v Magistrates’ Court at Victoria [2003] VSC 365, noting that Osborn J considered that it might have been possible for the prosecution to argue that a defect in service could be ‘waived’. However, there was no indication, in that case, that the offence which necessitated service contained a provision, like s 14(2), of proof of service of a document as an element of the offence itself. In Rich v R, Lerve DCJ also considered (at [40]-[44]), probably also in obiter, a submission that a defect in service could be overcome by subsequent appearance in Court. However, the authorities that his Honour considered were civil cases and in none of them was it a requirement for successfully establishing the cause of action in question that a party had been served with a particular document. Further, it seems to me that there is a danger in conflating the notion of a waiver of an objection to a Court’s jurisdiction and a waiver of proof of an essential element of an offence under s 14. Whatever might be said about this appellant’s approach in these proceedings, it is crystal clear that, by the conduct of her Counsel, she has never waived any requirement in the Crown to prove service of the interim AVO in satisfaction of proof of an element or requirement of the offence.

55. Accordingly, I do not consider that it was open to the learned Magistrate to have regard to the content of the statement of service as part of the evidence that the Crown could rely upon to prove that the appellant was served with the interim AVO. In the circumstances, in my opinion, the learned Magistrate erred in admitting Exhibit 1, at least to the extent to which she admitted, without excluding, or alternatively limiting, the statement of service so that it not be treated as probative of the truth of its contents.

56. The last question then remains is whether, on the basis of the balance of the evidence that the Crown relied upon, it proved beyond reasonable doubt that she was so served.

57. The evidence of Officer Harris, as was indicated, was of virtually no evidentiary value, at least to the extent to what it said about the issue of service of the interim AVO under s 14(2).

58. The learned Magistrate reasoned that the appellant’s preparation of a cross-application and her attendance at Court on 20 November 2018 founded an ‘inescapable inference’ that personal service of the interim AVO was effected. Earlier, her Honour noted that on 15 November 2018, the appellant made a ‘cross’ application for an AVO.

59. With respect, that, I think, is to treat the matter too narrowly. Under the test from Sprague which her Honour correctly applied, insofar as the question was whether the copy of the AVO was served, the functional test was whether the Crown could prove that it was in the appellant’s receipt, prior to the alleged offending.

60. I referred earlier in these reasons to s 77 and other provisions of the CDPV Act relating to the complicated processes for ensuring that defendants are notified of AVOs made against them. Those processes are designed to ensure that the only methods by which defendants receive such notification are by appearing in court, or by personal delivery of the order by a police officer. It was insufficient, for example, for a police officer merely to ring or email a defendant to inform the person of the order being made.

61. In circumstances where admissions were made by the appellant of her knowledge of the AVO and her understanding of its content, having regard also to the operation of these legislative requirements, it is the aggregation of these matters which lead to the inescapable inference that the appellant was in possession of the AVO.

62. That being so, the Crown proved the requirement in s 14(2)(a) that the appellant was “served” with the AVO.

An alternate route?

63. I referred earlier to some provisions in the Act regarding interim court orders and variations of those orders. It appeared to me after oral argument that another matter arose relating not only to s 14(2), but also the validity of the second charge, which was not addressed by the Magistrate and not initially addressed by the parties in their submissions to this Court.

64. The learned Magistrate found that on 20 November 2018, when the appellant was present in court, the interim order made against the appellant on 1 November 2018 was, as the learned Magistrate put it, “continued until the future listing of 15 January 2019”. At the same time, the Magistrate referred Mrs Hunter’s interim AVO, and the appellant’s application, to the CJC for attempted mediation. The underlying material was not before this Court in this appeal, but there was no challenge to the correctness of her Honour’s findings in these respects.

65. The first question to my mind is whether, when the AVO was continued on 20 November 2018, at a time when the appellant was present in court, it could be said that the appellant was ‘present in court’ at a time when the order was made.

66. A second question is whether, if on the occasion of the extension of the interim AVO to 15 January 2019, it could be said that there was an extant AVO in place at the time of the alleged offending conduct required to prove the second charge.

67. The interim AVO order made on 1 November 2018, which was ordered, was identified, on its face, as subsisting “Until it is revoked or a further order made by the Court becomes effective”.

68. Troubled as I was by these questions, I arranged for my Associate to invite further submissions from the parties on the questions about whether it could be said that the appellant was present in court when an interim AVO was made and, effectively, if that was so, whether that was enough for the purposes of s 14(2).

69. I received a supplementary written submission from the Crown in response to my questions.

70. The appellant’s supplementary written submissions concurred with the Crown’s position in answer to my queries.

Presence in Court?

71. The Crown submitted that properly construed, the requirement in s 14(2) would only be satisfied if the appellant was present in court on 1 November 2018.

72. Implicit in that submission is that it was only on 1 November 2018 that the interim AVO was “made” and, further, that nothing that happened on 20 November 2018 which displaced that conclusion.

73. Having regard to s 73 of the CDPV Act, which speaks of ‘variations’ to interim court orders, I accept the submission. Section 73(2) points to a range of ways in which an interim AVO may be varied. The type of variation demonstrated in this case was that of s 73(2)(a), being an extension of the period in which the interim order was in force.

74. Further, s 76 sets out requirements for an explanation to be given by the Registrar to a defendant who is present in court when an interim court order is made.

75. But when an interim court order is only varied, s 76(2) indicates that a much more condensed, or abbreviated, form of explanation is required to be given. To construe the expression ‘order was made’ in s 14(2) as extending to a subsisting interim AVO being extended could negate an important procedural protection for a defendant, in having a full explanation of the nature of an AVO supplied to him or her.

76. For the purposes of s 14(2), the interim order was not “made” on 20 November 2018, when the appellant was present in Court.

Subsisting AVO?

77. As to the second of these questions, having regard to the content of s 24(1) of the CDPV Act, I am satisfied that the interim AVO that was made on 1 November 2018 remained in force, as at 18 January 2019. There is no evidence of any of the matters in sub-paragraphs (a), (b) or (c) being enlivened.

DUPLICITY

78. The appellant also argued before the Local Court on 13 December 2019, at the close of the Crown case, that in relation to the offence said to have been committed on 5 January 2019, the first charge was bad for duplicity.

79. Her Counsel did not make the same application in relation to the third charge, which concerns the same offence, but on a different date (18 January 2019). Nor did her Counsel raise a duplicity point in relation to the second charge, which contained a different offence to the first and third charges, also occurring on 18 January 2019.

80. In this appeal, the Crown made no objection to the appellant arguing the duplicity point in relation to these other charges and, indeed, anticipated that the appellant might seek to do just this in its written submissions in this appeal. I propose to call the appellant to extend the duplicity argument to the second and third charges.

The first and third charges

81. It is unnecessary, for the purpose of the argument, to distinguish the first and third charges. The appellant raised the same arguments about this point in relation to both charges.

The appellant’s argument

82. The appellant argued that the Court Attendance Notice did not identify, or sufficiently particularise, the acts of contravention of the interim AVO engaged in by the appellant on the respective days (5 January 2019 and 18 January 2019), or whom those acts were directed towards. This was significant in a context where the Crown’s brief of evidence contained police statements from a range of witnesses about the appellant’s conduct on those respective days. Most of those witnesses were each persons ‘protected’ by the interim AVO.

83. As to this last point, I understood from the oral argument that the concern about duplicity practically surfaced only when the Crown called, as witnesses on the first charge, the father to the Hunter children and his partner, Mr Grulich. Those men were not expressly named in the interim AVO, however, the AVO extended the scope of its protection to persons in a ‘domestic relationship’ to the expressly nominated persons: Mrs Hunter and the two Hunter children, Zachary and Chloe. It was this concern which, so it was suggested, led the appellant’s Counsel to become uncertain as to which of what acts, and against which protected persons, the contravening conduct occurred.

84. In this Court, the appellant’s Counsel accepted that there was no formal requirement for the Crown to provide further particulars of the charges. He also accepted that no request for any further particularity of the charges was sought from the prosecution. This was notwithstanding Counsel’s acceptance that the accused had been served with a brief of evidence, presumably, including police statements from all the persons who the Crown eventually called at the trial. Further still, his Counsel accepted that no application was made, prior to the trial, to have the charges dismissed for duplicity. In this way, after two days’ of evidence in the Local Court, at the conclusion of the Crown case, the duplicity point was first raised. Counsel for the appellant justified all this on the basis that it was a well-established ‘practice’, at least in the Local Court, for an accused’s legal representative to defer any duplicity objection until after the close of the prosecution case, lest the prosecution be inclined to strap up its case, say, by the inclusion of varied or additional charges.

85. The appellant argued that even within confined periods, on 5 and 18 January 2019, respectively, the evidence for the Crown was that there were too many acts of the appellant directed against too many people for the appellant to understand the case against her. The analogy was pressed of a charge of assault against an accused. It might be one thing to charge a single offence where there is a single victim and multiple blows are allegedly rained down against the victim. It is another thing to charge a single offence of assault where there are multiple victims and multiple blows.

86. In addition to the accused not knowing what case she had to meet, another practical problem of rolling up in single charges, the first and third charges, was so it was said, that the accused lost the opportunity of making relevance objections. If, to suppose, the Crown was not intending to ultimately submit that a contravention occurred against Mr Grulich, then evidence of abuse or intimidating conduct towards him may be irrelevant to a case which the Crown wished to make that intimidating conduct was directed to either or both of the Hunter children. There was, it was said, a ‘shopping list’ of acts which the Crown might wish to rely upon and the appellant was entitled to know what they were.

87. The Crown argues, as it did in the Local Court, that, in the context of this offence, it is unnecessary to rely upon multiple breaches of the personal violence order in order to make out the single offence. It says that on the basis of the evidence of what occurred on 5 January 2019, it could have laid 11 charges, but it was unnecessary to do so where it was relying upon a single course of conduct.

The Magistrate’s reasoning

88. The learned Magistrate refused the application. Her Honour accepted a submission from the prosecution that the charge was intended to reflect a course of conduct by the appellant, albeit one featuring multiple persons (covered by the personal violence order), and another submission that it was unnecessary for there to be separate charges in relation to each instance of contravening conduct against each of those persons. Her Honour was influenced to do so by the practical circumstances in which the argument was raised, which I have referred to.

Consideration

89. Since the decision of Director of Public Prosecutions v Merriman [1973] AC 584, it has been established that a single count can encompass distinct alleged acts of an accused where those acts form part of the same transaction or criminal enterprise. Lord Diplock said, at 607,

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

90. A charge is not duplicitous if it relates to a course of activity even if altogether though the activity may involve more than one act. Thus, to take one case, a count alleging a number of thefts from different departments of the same store was found not to be duplicitous in R v Wilson (1979) 69 Cr App R 83.

90. Underlying the notion of duplicity is fairness to the accused.

91. In R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 the Court of Criminal Appeal considered the application of the duplicity principle in the context of an allegation of fraud against the Commonwealth charged as a single count, which encompassed 46 separate alleged acts of dishonesty over a period of about two years. The accused’s argument that the count was duplicitous failed. The Court there observed that much would depend upon the way in which the prosecution framed and presented its case.

92. In R (Cth) v Petroulias (No.1) (2006) 217 FLR 242, it was said that the determination of whether a charge is bad for duplicity or not involves a question of fact and degree and depends upon the particular circumstances of each case.

93. The Crown case was that there was a single order of the Court, made on 1 November 2018, (then extended on 20 November 2018) designed to regulate the appellant’s behaviour, made for the benefit of multiple persons. On both 5 January 2019 and 18 January 2019, respectively, that order was said to be infringed in multiple respects which featured certain common features: namely, yelling and abuse and ‘general demeanour’ directed, at or about the same time, against children who were beneficiaries of the order.

94. In my opinion, although the prosecution could have laid separate charges, directed to each protected person, the appellant’s conduct, being continuing in nature, was efficiently dealt with in the single charge. There was a clear connection, in terms of time and the proximity as between the acts relied upon directed to multiple persons, to regard those acts as a single course of conduct. The offending conduct occurred in the same place in the same time; even if it might arguably be viewed, narrowly, as specifically directed to more than one individual person protected by the order. The acts were all part of the one activity.

95. An unstated premise underlying the argument is that where it is alleged, say, that the appellant was making an abusive statement, it could be clearly delineated who was the object of the statement. But that may not be so. A charge like s 14 might be made out where, for example, there has been conduct which intimidates a protected person. In the circumstances of this case, the protected persons were part of a family; or perhaps extended family if one includes the father of the children, and his partner. There is no reason, logically, why an offensive statement ostensibly directed to one protected person may not intimidate another. To take another example, if there was more than one protected person in the area whom the appellant was said to have ‘approached’ on 5 January 2019, it may not clearly be said who the appellant was approaching. In each example, multiple charges could be laid to cover identical conduct.

96. These few examples I have chosen show the artificiality or unreality which attends the appellant’s argument. If every act of the appellant’s was to be sliced and dissected in the fashion which she argues should have resulted in separate charges, then she may have faced the prospect of substituting what she claims is a shopping list of acts for a single charge with a shopping list of charges for no practical benefit.

97. There was no unfairness in the Crown’s reliance upon evidence of each of those identified beneficiaries specified in the single personal order, whose police statements were part of a brief of evidence supplied to the appellant; and where no request was made of the prosecution to supply particulars. Contrary to the appellant’s submission, I do not accept that the accused lost any crucial or singular forensic advantage by requesting, if in the light of the service of the prosecution brief she thought it necessary, particulars of the persons against whom the contravening conduct was alleged to be directed. Once that was done, the statements to the police of those persons in the prosecutor’s brief of evidence would have made it readily apparent what acts were relied upon in relation to each of those persons. At least, had a further request for particulars been made for the conduct directed to those persons, conceivably, the Crown would have referred the accused’s legal representative to the statements of evidence.

98. On the matter of fairness generally, I wish to add that starting in respect to the submissions whatever be the prevalence of the ‘practice’ to which Counsel of the appellant alluded, regarding the approach of legal representatives defending accused persons in the Local Court, a complaint that an accused is ‘left in the dark’ about the particulars that the Crown relies upon rings hollow when the accused, or his or her representative, does not seek them. Even in the criminal sphere, proceedings are not to be treated entirely as a sporting contest.

99. What forensic detriment was likely to be sustained by the accused had she, or her representative, asked the prosecution for further particularity? It is extremely improbable to suggest that she suffered any. It is highly unlikely that the prosecution might think it necessary to seek to replace the existing charges with a raft of more specific charges. And if asked for further particulars, the Crown’s position would, very probably, have been along the lines of ‘read the brief of evidence’.

100. The argument that with the charges in the form that they were, the appellant could not know what evidence was relevant, has no merit. The evidence of the children’s ‘fathers’, or Mrs Hunter the complainant’s, was relevant to what was directed at the children and vice versa in the sense of corroborating the evidence of each person. In this way, to the extent that all the persons gave materially similar evidence, this would also have assisted the Crown to forestall attacks on the credibility or reliability of the evidence of each person.

101. The duplicity point fails in relation to the first and third charges.

The second charge

103. This charge concerns the offence under s 13 of the CDPV Act. Counsel for the appellant adopts a variation of the argument of duplicity in relation to this charge.

104. This was inevitable since, as is noted above, the concern about this charge resembled the example already given by Counsel for the appellant about the single charge against the single assailant, raining down multiple blows against the same victim. Plainly here, the charge was directed to conduct by the appellant which intimidated a single victim, Chloe Hunter.

105. Counsel accordingly tailors his argument by contending that the Crown had to particularise the acts which were said to intimidate Chloe Hunter and, especially, whether they were direct or indirect: i.e. whether they consisted of yelling or abusive statements to her, or whether, say, they were abusive statements to others, such as Mrs Hunter.

106. The appellant’s argument about this charge is no better than it is in relation to the first and third charges. Again, this charge encompassed a course of conduct by the appellant on a single date, in a single location, albeit in comparison with the first charge, it was somewhat more stretched out in terms of the length of the conduct (measured as that was in hours).

107. It was not necessary for the Crown and not unfair to the accused, in the light of the voluminous evidence served to fail to set out all the acts, whether directed against Chloe Hunter, or directed against others, relied upon to make out the allegation that the appellant intimidated her. The various acts were all evidentiary items which the trier of fact could take into account in deciding whether the prosecution made out its case that the appellant intimidated Chloe Hunter.

108. The duplicity point in relation to the second charge also fails.

109. The appeals against the appellant’s first, second and third charges, respectively, are dismissed. To the extent necessary, I confirm each of the convictions.

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Decision last updated: 10 February 2021