Tasmania

Magistrates Court

  • McKenna v Smith [2014] TASMC 11 (27 March 2014) – Magistrates Court of Tasmania
    Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Insanity’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Vulnerable - new partner’ – ‘Wilfully and unlawful destroying or damaging property

    Charges: Damaging property (3 counts), Breach of police family violence order (2 counts), Assault

    Facts: At 2.30pm on 14 July 2013, the defendant smashed the windscreen of her former de facto partner’s car. Her former partner saw the incident occur and reported it to the police. A short time later, the defendant went to the police station and said she had smashed the windscreen of a car. At 5.45pm, a police officer who had attended the premises of the defendant’s former partner, made and served upon the defendant a police family violence order.

    In breach of the police family violence order, at 8.00pm, the defendant again went to her former partner’s house. She began to abuse her former partner and his current partner. She threatened them both and at one point pushed the current partner of her ex-partner. Before leaving, she smashed the panels of her former partner’s car. The incident was reported immediately to police and the defendant was placed under arrest. She resisted arrest, kicking and screaming. This conduct continued at the police station.

    The magistrate was satisfied beyond reasonable doubt that the defendant committed the acts.

    Issues:

    1. Whether the police family violence order was not validly made because:

      • it was not made by a police officer of the rank of sergeant or above; and/or
      • the officer who made the order was not satisfied, or the evidence available to him was not sufficient to satisfy him, that the defendant had committed or was likely to commit a family violence offence.
    2. Whether the defendant was not criminally responsible for any of the acts charged having regard to her mental illness and the provisions of s 16 of the Criminal Code 1924 (Tas).

    Decision and Reasoning: The magistrate rejected defence counsel’s submissions in relation to the first issue (the validity of the family violence protection order) but upheld submissions in relation to the second issue (insanity).

    1. The police family violence order was validly made because the police officer was acting in the rank of sergeant at the time the order was made. The magistrate also rejected counsel submissions in relation to the second limb of the argument. These submissions amounted to a collateral challenge to the validity of the police family violence order. A collateral challenge is a challenge to the validity of an order in proceedings where the existence of the order is an element of the offence (not in proceedings to review or set aside the order). The legislation did not permit collateral challenge at least on the basis alleged here i.e. whether the factual basis of the order was sufficient ([26]-[30]). However, even if collateral challenge were available, the ground would not succeed because there was sufficient evidence to support the making of a police family violence order ([19]-[21], [31]).
    2. The defendant was not criminally responsible for any of the acts contained in each charge. On the balance of probabilities the defendant was deprived of the capacity of knowing whether the acts that she performed in respect of each charge were ones that she ought not to do because of her mental illness, i.e. the Bipolar Disorder that resulted in her entering into a hypomanic or manic state. The defendant clearly knew what she was doing but was not able to rationally think about her actions with a moderate degree of sense and composure. This was because of the impact of her mental illness.
  • Howe v S [2013] TASMC 33 (29 July 2013) – Magistrates Court of Tasmania
    Breach of domestic violence order’ – ‘Charge particulars’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Guilty plea - withdrawal’ – ‘Protection order

    Charge: Breach of a police family violence order (3 counts)

    Proceeding: Application for leave to withdraw a plea of guilty in respect of each charge and substitute a plea of not guilty

    Facts: On 4 May 2012, a police family violence order was made against the male defendant that included the following order: ‘you must not directly or indirectly threaten, harass, abuse or assault J’. It was alleged that the defendant contravened this order by harassing the female protected person (‘J’). The defendant demanded that the protected person spend the night with him. The defendant threatened to take her child away if she refused to do so. In relation to pending family law court proceedings, the defendant also stated, ‘if you take this to court, things will get vicious and you know what happens when things get vicious. So it’s up to you. Either come and meet me tonight at the house or we will be enemies’ (count 1). This conduct also amounted to a breach of s 9 (emotional abuse or intimidation) of the Family Violence Act 2004 (Tas) (count 3). The police family violence order included an order that, ‘you must not approach (J) directly or indirectly threaten, harass, abuse or assault; by telephone, email, facsimile or letter’ [sic]. It was alleged that the defendant contravened this order by approaching the protected person on numerous times by text messages (count 2).

    The defendant pleaded guilty because of advice from his lawyer. He obtained new legal representation and they advised him to lodge an application for leave to withdraw the guilty pleas. His counsel submitted that leave ought to be granted because the particulars alleged of the complaint were insufficient, as a matter of law, to support the allegation contained in each charge. It would be a miscarriage of justice to allow the guilty pleas to stand.

    Issue: Whether leave should be granted to withdraw the pleas of guilty.

    Decision and Reasoning: The application for leave to withdraw the guilty plea was allowed in respect of counts 2 and 3 but refused in respect of count 1. In relation to count 2, a miscarriage of justice would result if the guilty plea was allowed to stand. The particulars of the charge alleged the defendant approached the complainant on numerous undefined occasions by use of text messages. This breached the requirements of the Justices Act because the prosecution failed to set out each matter of complaint in separate numbered paragraphs and because the prosecution failed to provide particulars by which to identify the text messages said to constitute breach. The ‘rolling up’ of charges meant that the defendant had no real understanding as to what approach and which text message/s constituted the offence. It was impossible to determine what exactly he admitted to in the plea of guilty ([17]-[18]).

    Leave was also granted in respect of count 3. The magistrate held that ‘the mental element required to amount to a breach of s 9 is that the defendant knew or ought to know that the course of conduct in which he was engaging is “likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in his spouse or partner”. This is not what has been alleged. That he knew or should have known that his conduct was “likely to have the effect of abusing or intimidating” his partner, is a different mental element from that referred to in the section’ ([23]).

    However, the guilty plea was held to stand in relation to count 1. Counsel for the defence submitted that a person could not be ‘harassed’, as a matter of law, by one act alone. The magistrate concluded that, ‘Whilst I accept that the term “harass” as used in the general community could well include an element of persistence or repetition, I see no reason why a person cannot be harassed within the context of a Family Violence Order, by one act alone. This view is in fact consistent with the definition in s.4 of the Family Violence Act of the word “harassing” … The reference in the definition to “any one or more of the following actions” suggests that a single act might be sufficient. Furthermore, it is appropriate, in my view, to interpret the term having regard to the context in which it is used in the order. The reference to “threaten, harass, abuse or assault” suggests that the order is to be understood as providing protection to a person from contact with the respondent which is unwelcome, and might be in various forms or have variable effect’ ([12]-[16]).

  • Kerr v Brown [2013] TASMC 30 (8 July 2013) – Magistrates’ Court of Tasmania
    Breach of domestic violence order’ – ‘Interpretation of order

    Charge: Breach of family violence order (FVO)

    Facts: A family violence order (FVO) was made in favour of the protected person that prohibited the defendant from approaching the protected person directly or indirectly. After the order was made, she phoned the defendant and caught a bus to Hobart where he was residing and commenced residing at his property.

    The defendant submitted that he never approached the protected person, notwithstanding the fact that when she approached him, he allowed her to remain living at his home. The prosecutor submitted that the order should be interpreted to mean that the defendant was not permitted to allow the protected person to come into his presence, and that if she did, he must immediately leave her presence.

    Issue: Whether the defendant was guilty of the offence charged.

    Decision and Reasoning: The charge was dismissed. ‘Clearly the intention of the order is to prevent the respondent from coming near or initiating communication with the person to be protected. However, my impression is that police, and perhaps courts, view the condition as a primary mechanism for keeping persons apart in cases where family violence has been alleged or perpetrated, and may well consider the order to have the more extensive effect contended for by the prosecution in this case.’ ([5]). The ordinary meaning of ‘approach’ in the context of the FVO is that a person should not intentionally contact or bring themselves into the presence of the protected person. The order should be interpreted in a way that it would be understood by persons in the position of the defendant without legal training and of limited education: ‘The defendant cannot, in my view, be said to have approached (the protected person) by simply allowing her into the house, even for an extended stay, once she was there. To hold otherwise would be to give the word an extended meaning which is beyond its ordinary common meaning.’

  • Lusted v MRB [2013] TASMC 9 (19 February 2013) – Magistrates’ Court of Tasmania
    Assault’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Relationship evidence’ – ‘Risk factor - strangulation’ – ‘Tendency evidence’ – ‘Uncooperative witness

    Charge: Assault (6 counts)

    Facts: The alleged assaults involved the defendant grabbing, pushing, striking, punching and pinching the complainant. One count involved the defendant grabbing her throat and pinning her against a table. Another involved pushing hot chicken into her face, grabbing hold of her by the chest and pouring cold water over her head ([17]-[28]). The complainant’s relationship with the defendant started when she was 15 and lasted for about 6 years. The prosecution’s evidence indicated that the defendant was controlling and violent towards the complainant throughout their relationship. The complainant was socially isolated and the defendant prevented her from contacting friends. He demanded that she wait on him and would strangle and abuse her if she did not comply with his demands. On one occasion, he threw a bottle at her. For further detail of the ‘uncharged acts’, see paragraphs [8]-[16]. There was one child of the relationship. The infant daughter witnessed two of the assaults.

    Issue: Whether the defendant was guilty of the charged offences.

    Decision and Reasoning: The charges were dismissed.

    The prosecution adduced various circumstantial evidence from other witnesses ([29]-[42]). This included evidence of witnesses who noticed that the complainant had various physical injuries. The prosecution also sought to adduce evidence of the defendant’s tendency to engage in violent conduct against the complainant. This evidence was admissible on the basis that it had substantial probative value because it could be inferred that the relationship involved violent and controlling behaviour. The danger of unfair prejudice posed by the evidence was low, particularly in circumstances where no jury was involved. The prosecution also sought to adduce relationship evidence relating to uncharged conduct. This evidence was also admitted on the basis that it removed the implausibility of the assault being isolated. It also supported the assertion that the defendant exercised dominance and control and that the complainant feared the defendant.

    This case involved serious and prolonged domestic violence. However, the complainant had not been entirely truthful about the relationship and her evidence was inconsistent with her parents’. She had discussed the possibility of ending the relationship with her parents and decided to leave him at the urgings of her mother once her father returned to town. However, on the day she decided to leave the defendant, she decided to return to him because he seemed remorseful and he offered to buy her dinner. As such, given the gravity of the conduct that was the subject of the complaint, the magistrate found it difficult to believe that the fear of what might happen in her father’s absence was a plausible explanation for her not leaving him. While the magistrate acknowledged that other explanations such as the fact that she may have become conditioned to such behaviour could be relevant, her account was doubted. There were no photographs, medical reports, phone records or other corroborating evidence. As such, the complaints were not proven beyond reasonable doubt.

    The magistrate nonetheless emphasised the widespread scale and seriousness of family violence. ‘It is a significant social problem, of concern to the community and the justice system. The parliament saw fit to enact legislation, the Family Violence Act 2004, expressly to “provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence”. The nature of family violence is that it is difficult to detect and prosecute. It is frequently the case that offences are committed in private and with little or no independent corroborative evidence. Moreover, family violence offences are often characterised by reluctance on the part of the victim to assist in the prosecution of offences. That is so for a range of factors including fear and a wish to preserve relationships, even dysfunctional ones, for the sake of loyalty, affection, companionship, economic and domestic support and in the perceived interest of children. Sometimes those motivations are misguided but persist nevertheless. As a consequence of such factors victims sometimes act in a way that seems to an outside observer to be incongruous and difficult to understand, including by failing to complain about, or hiding or lying about violence directed at them. Even if victims are willing to give evidence then the success of prosecutions depends principally on credibility of the uncorroborated account of the victim, a factor often taken advantage of by perpetrators and further adding to the reluctance of victims to complain.’ ([68]).

  • K v K [2012] TASMC 3 (25 January 2012) – Magistrates’ Court of Tasmania
    Emotional and psychological abuse’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Risk factor - suicide threat

    Proceeding: Application for revocation of an interim family violence order (IFVO)

    Facts: A police family violence order was made against the applicant, which prohibited him from threatening, assaulting or approaching his wife. The order was made on the basis that the police officer was satisfied that family violence was likely to be committed. The applicant and his wife had separated. An argument occurred about the contents of their house but the applicant claimed he was not aggressive and did not threaten or abuse the complainant or threaten to harm himself. He claimed that when he was wheeling a motorbike out of the house, she stepped in front of it to prevent him from taking it and the bike struck her legs which caused her to fall. The complainant claimed that when the applicant attended her home to collect belongings, he was volatile and aggressive and threatened to shoot himself with guns kept on their property. She did not specify what words amounted to these threats or abuse. She claimed he pushed the motorbike against her.

    Issue: Whether the order should be revoked.

    Decisions and Reasoning: The order was revoked.

    A police family violence order cannot be issued only on the basis that the officer believes family violence has been committed. Rather, the officer must be satisfied that a family violence offence has been or is likely to be committed. This is because the definition of family violence includes acts that may not amount to a family violence offence within the meaning of the Family Violence Act 2004 (Tas).

    The protected person’s evidence was not corroborated. Family breakdowns can be traumatic so each party tends to perceive events influenced by their own interests. The only way an order could be made would be by proving that the applicant engaged in threats, intimidation, verbal abuse or a course of conduct that amounted to emotional abuse and intimidation. Alternatively, an order could have been made if an assault by pushing the motorbike was proven. Such conduct was not proven: ‘It is difficult to characterise or define what words may amount to threats, intimidation or abuse. The same words may in some circumstances amount to a threat or abuse when in other circumstances they may not. Much depends on the background and the context. In some circumstances even the most seemingly innocent words may be highly intimidatory. The court should consider whether one of the parties is in a position of disadvantage, either physically, emotionally, intellectually, socially or economically’ ([29]). The applicant was more credible as a witness than the complainant and the complainant would not be in a position of disadvantage in an exchange with her husband. She demonstrated throughout the course of the hearing that she was capable of protecting her own interests and it was unlikely that she would have felt threatened, coerced or intimidated. She also likely prevailed in the arguments about property and she likely overstated her evidence to paint the applicant in the worst light.

  • Buxton v Brinckman [2011] TASMC (21 July 2011) – Magistrates’ Court of Tasmania
    Bail’ – ‘Bail – interim family violence order’ – ‘Breach of temporary protection order’ – ‘Inconsistency’ – ‘Statutory interpretation

    Charge: Breach of interim family violence order

    Proceeding: Reasons for decision

    Facts: An interim family violence order (IFVO) was made against the defendant that prohibited him from entering the premises of the protected persons. The defendant was living with his parents. The agreed facts established that one of the protected persons started living at his parents’ address as well. In breach of the order, the defendant continued to live in his parents’ house. However, at the relevant time the defendant was on bail. One of the conditions of the bail order was that he was to reside at his parents’ house.

    The magistrate found that the elements of the offence were proven. The defendant submitted that given that he was obliged to reside at his parents’ house by the bail conditions, this relieved him of criminal responsibility for the breach of the IFVO. That is, because the failure to live at his parents’ premises would amount to a breach of bail, this should excuse the breach of the IFVO.

    Issue: Whether the defendant was guilty of the offence charged.

    Decision and Reasoning: While there may be some circumstances where a person might claim a defence of breaching a statutory obligation on the basis that some other law compels the breach, this was not the situation in this case. Section 6 of the Family Violence Act 2004 (Tas) (the Act) provides that the Act prevails to the extent of any inconsistency with another act. The Court acknowledged that the defendant’s parents made it impossible for him to comply with the bail condition without breaching the IFVO. However, the defendant could have applied for a variation of bail. In the interim period before bringing that matter before the court, the breach of bail may have been excused on the grounds of ‘reasonable cause’. As such, he was not relieved of criminal responsibility for breaching the IFVO.