R v RH

[2011] ACTSC 38

R v RH
[2011] ACTSC 38 (7 March 2011)

CRIMINAL LAW – whether contravention of protection order – how protection order impacts access rights under a Family Law Act order – process of access over several years – reading both orders together

DOMESTIC VIOLENCE AND PROTECTION – whether domestic violence order ambiguous and confusing – if domestic violence order was applied in the terms whether it would produce absurd results – no inconsistency

CRIMINAL LAW – recklessness – risk was within acceptable limits and was justifiable – awareness of substantial risk not proved beyond reasonable doubt

Criminal Code 2002, s 20

Criminal Code Act 1995 (Cth), s 5.4 (2)

Domestic Violence and Protection Orders Act 2008, s 90(2)

Family Court Act1975
Supreme Court Act 1933 (ACT), s 68C

Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86 (24 March 2004)
Miller v Macdonald [2006] ATCSC 76 (30 June 2006)

R v Mulcahy [2010] ACTSC 98 (26 August 2010)

No. SCC 226 of 2010

Judge:             Teague AJ
Supreme Court of the ACT
Date:              7 March 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 226 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:THE QUEEN

AND:RH

ORDER

Judge:  Teague AJ
Date:  7 March 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of not guilty is entered in respect of the count on the indictment.

1. When RH needed legal advice, as he did in February 2010, he did not have far to go. His second wife was a police officer and his aunt was a senior prosecutor. His own background was not legal, but he was a manager holding a responsible job. It involved his supervising a team of seven. The nature of the advice that he received came under close scrutiny before me, when he came up for trial before me. He was charged with having on 25 February 2010, contravened a protection order contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT).

1. On 17 February 2010, RH sought the advice of both his second wife, (“MH”) and his aunt, (“TH”) over the telephone.  He had just called at the local police station to collect an order under the Domestic Violence and Protection Orders Act made on 15 February 2010 (“the DV order”).  The DV order had been made on the application of his first wife, (“LL”).  The focus of his attention when he sought that advice was on how the DV order potentially impacted on his access rights to his two children by LL, a daughter and a son LH, under an earlier order.  The two children were, in February 2010, aged 12 and 10.  They were named in the DV order.  They were also named in the earlier order made on 19 April 2004.  That order, under the Family Court Act 1975 (Cth), was made by the Family Court of Australia (“the FLA Order”).  The relevant terms of each order are as set out in the appendix to these reasons.

1. The…