Tudor-Stack v Hill - [2003] NTCA 15

Tudor-Stack v Hill [2003] NTCA 15
PARTIES:PAUL FRANCES TUDOR-STACK

v
JOSEPH BRETT HILL

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 117/02 (20213784)
DELIVERED:  12 September 2003
HEARING DATES:  26 August 2003
JUDGMENT OF:  MARTIN CJ, THOMAS and RILEY JJ
CATCHWORDS:

CROSS APPEAL FROM DECISION OF MAGISTRATE - CRIMINAL LAW – Domestic Violence Order – whether permission or licence given by the beneficiary of a domestic violence order was lawfully granted – the beneficiary of a domestic violence order cannot authorise, permit or licence its breach– the Criminal Code s 32 defence of mistake does not apply to regulatory offences. Magistrate erred in law when following the decision of Palmer v Pryce [2000] NTSC 7.
Domestic Violence Act 1992 (NT), s 8, s 10
Criminal Code 1983 (NT), s 22, s 26(1)(d)
Keane v Police (1997) 69 SASR 481, applied.

Palmer v Pryce [2000] NTSC 7, not followed.

Takaito v The Queen (1996) 186 CLR 455; Lawrence v Hayes (1989) 44 A Crim R 210, distinguished.
REPRESENTATION:
Counsel:
Appellant:M Carey
Respondent:  G Bryant
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Legal Aid Service
Judgment category classification:        C
Judgment ID Number:  tho200330
Number of pages:  12

COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Tudor-Stack v Hill [2003] NTCA 15
No. JA 117/02 (20213784)

BETWEEN:
PAUL FRANCIS TUDOR-STACK

Appellant
AND:
JOSEPH BRETT HILL

Respondent

CORAM: MARTIN CJ, THOMAS & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 12 September 2003)
MARTIN CJ:

I have had the benefit of the reasons of Thomas J relating to the order allowing this appeal made by this Court on 26 August 2003. I agree and have nothing to add.
THOMAS J:
This matter involved an appeal and a cross appeal from a decision of a stipendiary magistrate pursuant to the Domestic Violence Act.
The trial judge referred the cross appeal to the Supreme Court pursuant to s 21 of the Supreme Court Act.
In the Court of Summary Jurisdiction on 30 October 2002, the respondent entered a plea of not guilty to a charge that “on 17 September 2002 at Darwin in the Northern Territory of Australia being a person against whom a restraining order issued in accordance with the Domestic Violence Act was in force, and having been served with a copy of that order, you failed to comply with the terms of that order. Contrary to s 10 of the Domestic Violence Act”.
Before the learned stipendiary magistrate it was admitted on behalf of the respondent that there was a restraining order made on 12 October 2001 effective for a period of 12 months and that copy of this order had been served upon the respondent. It was further conceded that clause (1) of the order stated that the respondent, Joseph Brett Hill, not approach or remain at any place where Sandrine Ricardo is living or staying.
In his reasons for decision, the learned stipendiary magistrate set out the terms of the court order made on 12 October 2001 as follows (AB 45):
“The defendant consented to an order for a period of 12 months. That order was made by consent without admission of any allegations and without conceding justification for an order. The order was in the following terms: that for a period of 12 months Joseph Brett Hill (1) not approach or remain at any place where Sandrine Ricardo is living or staying; (2) not approach Sandrine Ricardo either directly or indirectly; (3) not contact Sandrine Ricardo directly or indirectly save by solicitor, Family Court counsellor or in accordance with an order of the Family Court; (4) not assault or threaten to assault Sandrine Ricardo directly or indirectly; (5) not damage or threaten to damage property in the possession of Sandrine Ricardo; and (6) not act in an offensive or provocative manner towards Sandrine Ricardo.
That order having been made and being part of exhibit P1, it’s clear that at 11:45 am on 12 October 2001, the defendant, Joseph Hill, was personally served with that order by Ms Goodsell (?). He was served in Nichols Place, Darwin.”
The learned stipendiary magistrate found on the evidence that the respondent had resumed cohabitation with his wife in November 2001. That this was in breach of the order. They continued residing together until some time in about June 2002. His Worship further found that there was a period of separation of about a month. They resumed living together in August 2002 and resided together until 17 September 2002 when the defendant assaulted his wife. Since that date they had resumed residing together and were still residing together at the time of the conclusion of the hearing in the Court of Summary Jurisdiction on 27 November 2002.
His Worship found that the respondent was aware of the terms of the order and his obligation to comply with them. The finding of the learned stipendiary magistrate was that when Ms Hill (referring to Sandrine Ricardo) approached the respondent to resume cohabitation with her, the respondent was initially reluctant. This was because he wanted something to be done about the domestic violence order. The learned stipendiary magistrate further found that the respondent raised the question of the order with Ms Hill who told him she would do something about it. In reliance upon this assurance, the respondent resumed cohabitation. His Worship further found that after resuming cohabitation the respondent raised the question of the order on at least three occasions, because the respondent was keen to make sure something had been done about the order. On each occasion Ms Hill said she would do something about the order. The finding of the learned stipendiary magistrate was that Ms Hill did nothing about the order. He further found that Ms Hill was effectively somewhat contemptuous of the order and thought that she could use it as her personal weapon as and when it suited her.
His Worship found that the respondent accepted what Ms Hill told him and did not do anything himself to change the order. The learned stipendiary magistrate found Ms Hill lied to the respondent that she had done something about the order and that she had misled the respondent.
His Worship further found that as at 17 September 2002, it was not unreasonable for the defendant to have believed that the order had been amended so that it was all right for him to live with Ms Hill. The order, however, was still in force as at 17 September 2002 and the respondent was found by the learned stipendiary magistrate to be in breach of orders number 1, 2 and 3 and in relation to an assault charge to which he had pleaded guilty, order number 4 as well.
The learned stipendiary magistrate found there was no defence available under s 10(3) of the Domestic Violence Act or under any of the provisions of the Criminal Code other than a possible defence under s 26(1)(d).
Section 10(1) of the Domestic Violence Act makes the breach of a restraining order a regulatory offence. The section provides as follows:
“(1) A person against whom a restraining order is in force who has been served with a copy of the order or the order as varied and who contravenes or fails to comply with the order is, subject to subsection (3), guilty of a regulatory offence.
Penalty:For a first offence – $2,000 or imprisonment for 6 months.”
The defences set out in s 10(3) of the Domestic Violence Act are not relevant on the facts of this particular case.
The only other defence is pursuant to s 26(1)(d) of the Criminal Code which provides as follows:
“(1) An act, omission or event is authorized if it is done, made or caused –
… …
(d)subject to subsection (3), pursuant to authority, permission or licence lawfully granted.”
The learned stipendiary magistrate made the following statement in the course of his reasons for decision (AB 49 - 51):
“If I had been unaided by authority, I would have found that the defence raised in section 26(1)(d) was not available to the defendant in that instant case. My reasons for that would have been that there was an order of the court in force. There was - it in my view was not lawfully possible for Ms Hill or any other person apart from the court. to lawfully grant authority, permission or licence to breach the court order. In my view the police could not authorise it, Ms Hill could not authorise it and the defendant could not authorise it, permit it or licence it himself.
A court order in my view is and should be treated as a serious matter. An order which is in force in my view must be obeyed and complied with by all parties. Anybody who seeks the benefit of a court order and then encourages, permits, authorises or purports to licence a breach of it should in my view be charged and dealt with for that breach in the same [way that] Michelle Faye Keen (?) was dealt with by King AJ in 1997 in a decision reported in 94 A Crim R at page 593.
In particular at page 596 His Honour said:
An order restraining the defendant from being on certain premises operates absolutely and irrespective of the consent of a person intending to be protected. Nevertheless its purpose is not to protect the family member against himself or herself, but protect against unwanted conduct of a type to inspire fear. The abstract nature of the order authorised by the Act is intended, in my opinion, as an aid to enforcement. The mere presence of the defendant on the premises is enough to enable the police to act. Enforcement is not bedevilled by disputes as to whether a protected family member consented.
I consider that a similar philosophy applies in relation to the existing legislation, hence it is a regulatory offence and hence, in particular a defence which might otherwise be available under section 32 of the Criminal Code is expressly excluded. It is not intended, in my view, on the legislation that a party to the order might authorise or permit a breach of the order as and when it suits them, but seek to enforce it when it doesn’t. An order remains in force and must be complied with until it is varied or revoked.
It’s clear in the instant case that Ms Hill has counselled directly at breach of the order(?), she knew the order hadn’t been changed, she knew she’d taken no steps to amend it and in my view she should be charged.
As I say, if I were unaided by authority, I would have found that the defence was not available. However, I am aided by authority. The matter has been the subject of a decision in the Supreme Court. Mr Angel J in the case of Palmer v Price, a decision delivered on 9 March 2000, has considered the issue. That was an appeal by Mr Palmer against his being found guilty by Mr Donald [SM] in Alice Springs on 10 August 1999 in relation to breach of the Domestic Violence Act, in particular, orders under that Act.
Paragraph 13 of that decision His Honour notes that the learned magistrate found Ms Kunoth misled the appellant as to the existence of the domestic violence order by stating both to the appellant and the appellant’s mother that the order had been dropped.
He also found she camped with the appellant on numerous occasions whilst the order was current, which also supported the appellant’s evidence that he thought the order had been dropped.
The learned magistrate accepted the appellant as a truthful witness. Ms Kunoth, by behaving this way, clearly had given her consent for the appellant to approach her. When the question of the complainant’s consent was raised by me on the hearing of the appeal, the appellant sought and was granted leave to add the fourth ground of appeal by way of amendment. Mr Birch, for the respondent, did not oppose the amendment and did not contest the new ground of appeal. This concession was properly made. In circumstances where the appellant believed that the order was no longer current and his approaches to the complainant were made pursuant to her authority, permission or licence, the learned magistrate was in error in concluding that the appellant was guilty of an offence against section 10 Domestic Violence Act. The appeal should be allowed on the fourth ground of appeal.
His Honour in that decision does not appear to have turned his mind directly to the question of whether it was lawful for Ms Kunoth to grant authority, permission or licence when the order remained in force. I’m not aware of any other decision of the Supreme Court on the topic and I’m not aware of any decision of the Supreme Court different to that of Angel J.”
The learned stipendiary magistrate considered himself bound by the decision of Palmer v Pryce [2000] NTSC 7 delivered 9 March 2000 and dismissed the charge against Mr Hill.
The Director of Public Prosecutions has lodged a notice of appeal against this decision. The grounds of appeal are as follows:
“That the learned Magistrate having found that
· the defendant was a person against whom a restraining order had issued in accordance with the Domestic Violence Act (the order), and
·     the order was in force at the time of its alleged breach, and
·     the order had been served on the defendant at the time of its alleged breach, and
·     the defendant clearly contravened or failed to comply with the order by, inter alia, co-habitating with the beneficiary of the order (the beneficiary) at the request of the beneficiary, and
·     the beneficiary misled the defendant so that it would not have been unreasonable for the defendant to have believed that the order had been amended and that it was in order for him to live with the beneficiary
erred in law in following the decision of the Supreme Court in Palmer v Pryce (2000) NTSC 7 and in particular in holding that the consent of the beneficiary to the defendant’s breach of the order constituted an authority, permission or licence lawfully granted within the meaning of s 26(1)(d) of the Criminal Code.”
It is relevant to note that in the matter of Palmer v Pryce (supra) counsel for the respondent did not contest the ground of appeal that the prosecution had not proven, beyond a reasonable doubt, that the acts of the appellant were not done pursuant to authority, permission or licence lawfully granted within the meaning of s 26(1)(d) of the Criminal Code.
Accordingly, Angel J did not have the benefit of contrary argument as has been presented to this Court.
Counsel for the respondent, Mr Bryant, referred in some detail to the High Court authority Takaito v The Queen (1996) 186 CLR. This authority is not relevant to the present case. The Domestic Violence Act provides in s 8, s 8A and s 8B the circumstances in which a court order may be revoked or varied. Specifically this can only be done by the court (s 8), a magistrate on a telephone application (s 8A) or the Clerk of Court on an exparte application (s 8B), followed by a court hearing. All these orders provide for all parties to be heard before a court and for the defendant to be served with any court order varying or revoking a previous order.
In Taikato v The Queen (supra) the High Court was dealing with s 545(E) of the Crimes Act 1900 (NSW) which enabled a defendant to positively prove a defence that possession of a prohibited article was for a lawful purpose. Accordingly, the interpretation of “lawful purpose” was being considered in a context far removed from the matter before this court. The authority does not assist the respondent. At p 462 Brennan CJ, Toohey, McHugh, Gummow JJ found that “lawful purpose” in s 545(E) of the Act under consideration meant, “a lawful purpose would have to be one whose achievement was expressly or impliedly authorised by law”.
Counsel for the appellant also sought to rely on the decision of Rice J in Lawrence v Hayes (1989) 44 A Crim R 210. However, that case is distinguishable. Rice J held that had the available defence under s 23 of the Criminal Code been raised, the prosecution would have been required to disprove the defence that the appellant was authorised by a police officer to possess an unlicensed firearm. In the matter of Lawrence v Hayes (supra) a police officer could give such authorisation. Under the provisions of the Domestic Violence Act. Ms Hill the beneficiary of the order had no power to vary or revoke the existing domestic violence order unilaterally it could only be effected by a court order. Copy of which would be required to be served on the respondent.
Counsel for the appellant put forward copy of the Second Reading Speech delivered on 30 November 1988 introducing the Domestic Violence Act. The Second Reading Speech emphasises the intention of parliament to introduce a strict statutory regime to control domestic violence in the Northern Territory.
Section 22 of the Criminal Code provides as follows:
“Except for sections 26(1)(c) and (d) (and sections 23 and 24 to the extent necessary to give effect to section 26(1)(c) and (d)), 30(3) and 38, this Part does not apply to regulatory offences.”
I agree with the submission made by Mr Carey on behalf of the appellant, that s 32 of the Criminal Code which raises the defence of mistake can have no application to the breach of a domestic violence order which is a regulatory offence. Thus even if the respondent in these proceedings were mistaken in his belief that his wife had varied the restraining order to enable him to cohabit with her, this would not amount to a defence because s 10(1) of the Domestic Violence Act creates a regulatory offence.
Further, I agree with the submission made on behalf of the appellant that the beneficiary of a domestic violence order cannot authorise, permit or licence its breach. The court made the order and only the court can vary its terms or revoke the order.
There are quite extensive provisions in the Domestic Violence Act relating to the variation or revocation of a restraining order. These powers are contained in s 8, s 8A and s 8B. Essentially, only a court, after all parties have had an opportunity to be heard, or a magistrate on a telephone application by a member of the Police Force, can vary or revoke a restraining order. Section 8B does enable a variation of an order to be made ex parte in certain circumstances. There is also a requirement for such variation of order to be served on the defendant and provision made for all parties to be heard by the court on any application to vary or revoke the existing court order.
I agree that with respect to the present proceedings any purported authorisation, permission or licence granted by the beneficiary of the order would not be lawfully granted within the proper meaning of that term in s 26(1)(d) of the Criminal Code.
I find that the learned stipendiary magistrate in following the decision of the Supreme Court in Palmer v Pryce (supra), erred in law.
The orders made by Martin CJ on behalf of the Court on 26 August 2003 were as follows:
“His Worship followed Palmer v Pryce in coming to his decision in this matter and the view of this court is that Palmer v Pryce should no longer be followed. The appeal is allowed. The learned magistrate erred in law in following that decision and then holding that the consent of the beneficiary to the defendant’s breach of the order constituted an authority, permission or licence lawfully granted within the meaning of s 26(1)(d) of the Criminal Code ….”
The reasons for this order are now published.
RILEY J:
I have had the advantage of reading the reasons of Thomas J and indicate my agreement with her reasons and conclusions.
The Domestic Violence Act provides for the making of restraining orders in relation to domestic violence. Those orders may be made on the application of a person in a domestic relationship (as defined) or by a member of the police force. The Act includes specific provisions dealing with the variation and revocation of restraining orders. Not surprisingly, those provisions require the involvement of the court in that process. There is no suggestion in the legislative scheme that a person intended to be protected by virtue of a restraining order has the capacity to authorise or permit non-compliance with the terms of the order. It is the court and the court alone that may vary the terms of the order or revoke the order.

In these proceedings the learned magistrate made reference to the decision of King AJ in Keane v Police (1997) 69 SASR 481. With respect I agree with and adopt the observations of his Honour in that case where he said (484):
“An order restraining the defendant from being on certain premises operates absolutely and irrespective of the consent of the person intended to be protected. Nevertheless, its purpose is not to protect the family member against himself or herself but to protect against unwanted conduct of a type to inspire fear. The absolute nature of the order authorised by the Act is intended, in my opinion, as an aid to enforcement. The mere presence of the defendant on the premises is enough to enable the police to act. Enforcement is not bedevilled by disputes as to whether the protected family member consented.”
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