R v Mahmoud Jabi - [2008] ACTSC 103

R v MAHMOUD JABI
[2008] ACTSC 103 (29 September 2008)

EX TEMPORE JUDGMENT

No. SCC 147 of 2005

Judge: Spender J
Supreme Court of the ACT
Date: 29 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 147 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
MAHMOUD JABI
O R D E R

Judge:  Spender J
Date:  29 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

Mahmoud Jabi (called “the accused” in this order) of 7/17 Worrell Place, Florey, ACT is convicted on one count of contravention of personal protection (workplace) order under section 34 of the Domestic Violence and Protection Orders Act 2001 and is ordered to pay a fine of $500, to be paid in instalments of $100 per month, the first payment to be made on the first Monday in November, then the first Monday of the four subsequent months.
If there is any non-payment of any instalment, the accused is in breach of Order 1 of these Orders, and is to be brought back before the Supreme Court for sentence for punishment according to law for breach of that Order.

In this criminal trial, an indictment has been presented against Mahmoud Jabi, alleging that on 23 April 2005 at Canberra, in the Australian Capital Territory, Mahmoud Jabi, being subject to a protection order under the provisions of the Domestic Violence and Protection Orders Act 2001 (the Act) engaged in conduct that contravened the protection order.
This offence alleges a contravention of a Personal Protection (Workplace) Order, referred to in section 34 of the Act. Section 34 is in the following terms:
34Offence for contravention of protection order
(1)This section applies to a person who is subject to a protection order if the person –
(a)was present when the protection order was made; or
(b)has been personally served with a copy of the protection order.
Subsection (2) provides:
(2)The person commits an offence if the person engages in conduct that contravenes the protection order (including a condition of the order).
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
As to the mental element of that offence, it is accepted by Mr Livingston, counsel for the Crown, that it is incumbent upon the Crown to prove that the accused knowingly engaged in conduct in contravention of the protection order; that is to say, before a person can commit an offence, that a person has to be aware of the content of the prohibition contained in the protection order, and to engage in conduct that contravenes that content.
In this trial, the accused, pursuant to section 68B of the Supreme Court Act 1933, has elected to be tried by a judge alone. It is therefore necessary for me, as the trier both of law and of fact, to set out the basis on which I try the accused. In this case, the onus of proof is on the Crown and the standard of proof is proof beyond reasonable doubt of every essential element of the offence.
The offence is to be tried only on the evidence admitted in the trial and any extraneous matter or matters outside the evidence are to be set aside. The trial is to be conducted according to law and in particular the question of the guilt or absence of guilt of the accused is to be judged by the criminal standard that lies on the Crown, namely proof beyond reasonable doubt.
The facts substantially are not in dispute. I am satisfied beyond reasonable doubt that on 21 April 2005, Special Magistrate Thompson, on an application by Mohammed Berjaoui pursuant to section 45 of the Act in respect of the conduct of Mahmoud Jabi, relating to premises at Canberra Mosque, 130 Empire Circuit, Yarralumla, ACT, made orders on 21 April 2005 which orders were to operate until 4.00 pm on 27 May 2005.
The second of those orders was in the following terms.
MAHMOUD JABI be prohibited from:
(a) entering the premises at THE MOSQUE AT 130 EMPIRE CIRCUIT, YARRALUMLA, ACT, being the workplace which is the subject of the aggrieved person’s application;
(b) being within 100 metres of the workplace;
(c)     contacting an employee at the workplace;
(d)     harassing, threatening or intimidating an employee at the workplace;
(e)     damaging property at the workplace;
(f)causing another person to contact an employee at the workplace, except as permitted by this order;
(g)causing another person to harass, threaten or intimidate an employee at the workplace;
(h)     causing another person to damage property at the workplace.
The Court further ordered that the application be adjourned to 27 May 2005 at 10.45 am. The Court also directed that a member of the Australian Federal Police arrange service of this order, the notice of proceedings and the application on Mahmoud Jabi as soon as is possible. Trevor Raymond, then a constable of police, on Thursday 21 April 2005, shortly before 9.00 pm, served, amongst other documents, a copy of the order by Special Magistrate Thompson, being the interim Personal Protection (Workplace Order) Order, on the accused at his home.
I accept the evidence of Mr Raymond that in serving that document on the accused he read to him the terms which are contained in paragraphs 1 and 2 of that order. In particular he read to Mr Jabi the prohibition contained in paragraph 2(a) of that order, namely, Mahmoud Jabi be prohibited from entering the premises at the mosque at 130 Empire Circuit, Yarralumla, ACT.
Mr Raymond says that he was not aware that Mr Jabi suffered from hearing difficulties, and in particular he was not aware of any hearing aids. He didn’t recall seeing any hearing aids on the person of Mr Jabi. What he did say, and it is important for my conclusion, is that he remembers this particular incident out of the many thousands of documents that he had served and that he recalls that he was frequently interrupted in reading the terms of the order to Mr Jabi by the accused saying, repeatedly, “it’s all bullshit”.
Mr Raymond says that the accused was not paying complete attention to what was being said to him when he was making these statements. It is not in dispute that shortly after 7.00 pm on Saturday, 23 April, the accused was seen by two police officers exiting from the Canberra mosque. The police officers spoke to him at the mosque and later had a conversation with him which was recorded.
It is not in dispute that the order was made and that the accused was on the premises of the mosque contrary to the prohibition contained in paragraph 2(a) of the order. Therefore, the accused has engaged in conduct in contravention of the order. The short and important point is whether I am satisfied beyond reasonable doubt that when he was on the mosque premises, the accused was aware of the contents of the order, and in particular, paragraph 2(a) of that order.
In his evidence before me, the accused answered the question, perhaps leading, asked by his counsel, whether he was aware of a protection order that said he shouldn’t go to the mosque. He said that he was not aware of such an order. He also said that he did not intend to break any law and that he could not recall the police officer reading that particular paragraph of the protection order to him.
In short, his evidence is to the effect that he did not know there was a protection order in place which prevented him from going to the premises of the Canberra mosque. Unless I am satisfied beyond reasonable doubt that he was aware of the content of the order, and in particular the prohibition contained in paragraph 2(a) of it, he is entitled to a verdict of not guilty.
I am of the opinion, beyond reasonable doubt, that Mr Jabi was aware that the order was directed at preventing him from being on the premises of the mosque. I make this finding on the whole of the evidence. But in particular there are two undisputed facts which seem to me to be important, as well as the totality of the conversation that Mr Jabi had with the police officers on the evening of Saturday 23 April 2005.
The two extra facts are these: first, Mr Jabi had previously been the subject of a protection order which, subject to exceptions for prayers, prevented him from being on the premises of the mosque. This protection order had been in operation from January 2004, so that this is not a circumstance where Mr Jabi was unaware of what a protection order was, and in the particular circumstances of his case, what the earlier protection order permitted and prevented him from doing.
The second factor which I regard as highly important is the undisputed evidence from Mr Raymond that when parts of the order, the breach of which constitutes this offence, were being read, to Mr Jabi, which parts included paragraph 2(a) of that order, Mr Jabi interrupted Mr Raymond’s reading on a number of occasions, saying “it’s all bullshit”.
In the context of the previous order, and the content of this particular order, it seems to me that this exhibits a reflection of the fact that he was aware that he was prohibited from going to the mosque, but because of what he, in his interview with police repeatedly said was the enmity of certain persons, he was not going to abide by it.
I refer also to the content of the conversation between the accused and Constables Wood and Leahy on the evening of Saturday 23 April 2005. The whole of that conversation is relevant to my conclusion that, beyond reasonable doubt, Mr Jabi was aware that he was prevented by that order from going to the mosque. I am satisfied that his attendance at the mosque was for the purpose of prayer, but I am further satisfied, beyond reasonable doubt, that he was aware that the order prevented him from attending at the mosque, even for that purpose.
I refer to the whole of that conversation, but in particular the following questions and answers seem to me to have a particular relevance. The answer to question 36 is an admission that he was present at the mosque at about 5 o’clock on the Saturday evening and that he was seen by the police officers coming out of the mosque, as he says, to go home. Question 45 admits that he was given a copy of the protection order on 21 April 2005. Question 47 was in response to question “Could you please read to me condition number 2 number (a)?”, and the accused is recorded, clearly, as saying he was prohibited from entering the premises at the mosque at 130 Empire Circuit, Yarralumla, ACT.
Question 52 is in these terms, “Do you understand what those two mean? Can you explain to me in your own words what those two conditions mean?” to which Mr Jabi answered “Yeah, I’m not allowed to be there. I’m not aware of this and I have - I was given this order but I was not aware of this because I did not read all that because I needed to show it to a solicitor on Monday.”
At question 56 he was asked “He read the order out to you”, to which he replied “He read all that this. I think he read this but I was not really prepared, I was not expecting this”. “Okay” said the police officer, to which Mr Jabi replied, in answer 57, “So I didn’t really pay a hundred percent attention to it and I did not read it because it’s legal things. I thought I’d take to the solicitor. He’s read it to me”.
At paragraph 59 the police officer commented “It is your duty to understand that document and obey that document”, to which he replied “Yeah, I heard you, but ah, as I have not today read the, ah, this document completely, I just, ah, I did not intend to go to the mosque to be arrested tonight”.
This document is not to be interpreted in the absence of the particular circumstance of the earlier protection order prohibiting him from attending the premises of the mosque, except for the stated periods for prayer. Nor is it to be interpreted in the absence of knowledge that at the time when the relevant terms of the order were read to him he had interrupted Mr Raymond by saying, on a number of occasions, “It’s all bullshit, it’s all bullshit”.
In these circumstances I am satisfied beyond reasonable doubt that Mr Jabi was aware of the content of the order, and in particular of the prohibition contained in it on his going to the premises of the mosque, and that he engaged in conduct in breach of that order. I therefore am satisfied beyond reasonable doubt that the Crown has discharged the onus which lies on it, and that the accused is guilty of that offence.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.
Associate:
Date: 2 October 2008

Counsel for the Crown:  Mr R Livingston
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the Accused:  Mr R Thomas
Solicitor for the Accused:  Darryl Perkins Solicitors
Date of hearing:  29 September 2008
Date of judgment:  29 September 2008