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Queensland Police Service v ARH

 

[2019] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v ARH [2019] QMC 16

PARTIES:

Queensland Police Service

(Applicant)

v

ARH

(Defendant)

FILE NO/S:

MAG-00036927/19(4)

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

13 September 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

23 August 2019

A/MAGISTRATE:

M Morrow

CATCHWORDS:

Criminal Law – Contravention of a temporary protection order – construction of temporary protection order

SOLICITORS:

Ms J King appeared for Queensland Police Prosecutions

Mrs J Madden, Solicitor for the defendant

  1. [1]
    ARH is charged with:

“that on the 11th day of February 2019 at Rockhampton … (he) being a respondent against whom a domestic violence order had been contravened the order namely a temporary made on 15th January 2019 in the Magistrates Court at Rockhampton and ARH was present in court when the order was made.”

  1. [2]
    The charge is amended inserting after the words temporary the words protection order.
  1. [3]
    The prosecution has called EJB, Jeannine Elizabeth Harp and S/Const Ryan James Packenham.
  1. [4]
    The burden of proof lies with the prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt. It is for the prosecution to satisfy the Court that not only is guilt a rational inference that could be drawn from the proved facts, but it is the only inference.[1] This means that the prosecution is required to exclude any reasonable hypothesis consistent with innocence.[2]
  1. [5]
    The defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and you must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
  1. [6]
    In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.
  1. [7]
    As to memories, in Watson v Foxman (1995) 49 NSWLR 315 it was indicated at 319:

“human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest was well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than impression from which plausible details are then, again often subconsciously, constructed.”

  1. [8]
    It is for that reason that where there is a long lapse between the date of disputed facts and the date of trial, Courts tend to place primary emphasis on the objective factual surrounding material together with the documentation tendered in evidence.
  1. [9]
    Memories of witnesses varied greatly.

Contravention of domestic violence order – s 177 Domestic and Family Violence Protection Act 2012 (Qld)

  1. [10]
    The prosecution must prove that:
  1. A domestic violence order has been made against the defendant named as the Respondent in the order; and

A “domestic violence order” means:[3]

  1. (a)
    A protection order; or
  1. (b)
    A temporary protection order.

A “temporary protection order“ is an order made in the period before the Court decides whether to make a protection order for the benefit of an aggrieved.[4]

  1. The defendant was either:
  1. (a)
    Present in Court when the order was made; or
  1. (b)
    Served with a copy of the order; or
  1. (c)
    Told by a police officer (in any way, including, for example, by telephone, email, SMS message, a social networking site or other electronic means) about the existence of the order and told the respondent about the condition that is alleged the defendant contravened;[5] and

The prosecution bears the onus of proving, beyond a reasonable doubt, that the respondent has been told by a police officer about the existence of an order, or a condition of an order.[6]

  1. The defendant contravened the order.

Factual Background

  1. [11]
    EJB and ARH were in a relationship for 11 years and separated in February 2018.
  1. [12]
    They have three children, C, S and T.
  1. [13]
    A Temporary Protection Order (TPO) was made on 15 January 2019 naming the aggrieved as EJB and the respondent ARH. The three children were included as named persons.
  1. [14]
    The Order contains six conditions and the relevant clause is clause 6 which provides:

“The respondent is prohibited from following, remaining or approaching the aggrieved when at any place.

Except when appearing personally before a Court or Tribunal.

Except when attending an agreed conference, counselling or mediation.

Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an Order of a Court.”

  1. [15]
    The evidence suggests ARH had tried to arrange contact through EJB (she has changed her name from EJH) with the children the weekend before 11 February 2019 and was unsuccessful.
  1. [16]
    No Family Law Orders were in place at this time regarding parenting.
  1. [17]
    On Monday, the 11 February 2019, ARH went to the children’s school on Norman Road to have contact with the children.
  1. [18]
    He was sitting outside Mrs H’s classroom speaking with S just before school ended at 3:00pm.
  1. [19]
    At 2:55pm, EJB attends the school to pick up the children, and while approaching Mrs H’s classroom saw ARH and S sitting outside the classroom.
  1. [20]
    She approaches and ARH says “Hello, why aren’t you answering your phone.”
  1. [21]
    A short but animated conversation takes place as seen by Mrs H.
  1. [22]
    Each ends up telling the other they are “calling the Police”.
  1. [23]
    ARH then takes the children with him towards the carpark.
  1. [24]
    EJB follows.
  1. [25]
    At some point when moving towards the carpark one of the children comes up to EJB, kicks her and tells her to go away.
  1. [26]
    At 3:01pm EJB telephones 000 and makes contact with the Police to make a complaint regarding a breach of the Temporary protection Order as she feels harassed by ARH.
  1. [27]
    ARH rings 000 and contacts the Police at 3:03pm. The 000-telephone call by ARH indicates ARH has tried to have contact with his children over the weekend and EJB has blocked his calls. He has come to the school to have contact with his children.
  1. [28]
    The call lasts till 3:14pm where he finally states to the officer he will hand back the children to the mother.
  1. [29]
    At 3:35pm ARH telephones 000 and advises EJB has left with the children.

Discussion

  1. [30]
    The only witnesses called were for the prosecution.
  1. [31]
    EJB was not as frank and forthright witness as she could have been. Her evidence was a bit somewhat and concerning. Her interpretation of the TPO was also concerning.
  1. [32]
    For example, EJB’s evidence was unreliable during time frame she testifies that the events took place.
  1. [33]
    EJB testified the conversation outside the classroom went on for 20 minutes which is impossible as she arrived at the classroom at 2:55pm and telephoned 000 at 3:01pm.
  1. [34]
    Further, it was only during cross-examination that she admitted the child had kicked her and told her to “go away” when ARH and the children were going from outside the classroom to the carpark and she was following.
  1. [35]
    Nor does the TPO give her custody of the children.
  1. [36]
    The Court is not bound to accept or reject a witnesses’ evidence in its entirety. However, EJB’s evidence is the basic reason for the Court’s conclusion that her evidence is generally not able to be accepted unless it is inherently credible or corroborated by independent testimony or is otherwise against interest.
  1. [37]
    Mrs H’s evidence was obviously affected by the passage of time but she was a forthright and honest witness and did the best she could in the circumstances.
  1. [38]
    S/Constable Packenham’s evidence does not take the matter further other than the recorded 000 telephone calls and the s 95 certificates that were tendered without objection although he was not the author of the certificates or created the audio CD’s.
  1. [39]
    There is no dispute that a Temporary Protection order was made in this Court on 15 January 2019 and the defendant was in Court when the Order was made.
  1. [40]
    Nor is it disputed the TPO was not in existence on the 11 February 2019 – although I would have thought that the adjournment notice indicating the date the DV proceedings had been adjourned to would have been tendered since the onus and standard of proof is with the prosecution to prove the Order exists.
  1. [41]
    The Order contains six conditions and the relevant clause is clause 6 which provides:

“The respondent is prohibited from following, remaining or approaching the aggrieved when at any place.

Except when appearing personally before a Court or Tribunal.

Except when attending an agreed conference, counselling or mediation.

Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an Order of a Court.”

  1. [42]
    From these proceedings it is evident that both parents do not understand the clause.
  1. [43]
    The TPO relates to domestic violence not family law issues relating to parenting of the children.
  1. [44]
    For the parties benefit I will explain some concepts of Family Law and the difference between Family law and domestic violence.
  1. [45]
    Firstly, each parent should understand that there is no law to say who should have custody of the children after separation. Therefore, it is up to both parents to determine the arrangements after separation. If you can agree, you do not need to go to Court. If you want the agreement to be legally enforceable and binding you can apply to the Court for consent Orders. If there is no agreement, you can apply to a Family Court (or Federal Circuit Court) for a Parenting Order.
  1. [46]
    A Parenting Order is a set of orders made by a Court about parenting arrangements for a child. A Parenting Order may deal with one or more of the following:
  • Who the child will live with;
  • How much time the child will spend with each parent and with other people, such as grandparents;
  • The allocation of parental responsibility;
  • How the child will communicate with a parent they do not live with, or other people;
  • Any other aspect of the care, welfare or development of the child.
  1. [47]
    Legal advice will assist the parties through this process.
  1. [48]
    The Temporary Protection Order does not give either parent custody of the children.
  1. [49]
    The general rule is that Orders under the Family Law Act prevail over inconsistent orders under Family Violence legislation (s68P and s68Q).
  1. [50]
    Domestic violence is when one person behaves in a way that controls or dominates another person and causes fear for their safety and wellbeing in certain defined relationships including those who are or were involved in an intimate personal relationship.
  1. [51]
    The TPO gives protection to EJB from the defendant in the conditions outlines.

Interpretation of the DVO

  1. [52]
    In Hovarth v Sharples [2018] WASC 315 [18] – [19], Hall J summarised the principles relating to the construction of restraining order as follows:

“It does not appear that principles relating to the construction of restraining orders have been considered by the Court of Appeal. I agree with the approach taken by Beech J in Sturt v Ball: ‘Breach of restraining order is an offence rendering a person liable to up to 2 years imprisonment under s 61(1). Consequently, a restraining order, like an injunction, must clearly identify the conduct that is restrained. In that framework, a court will be, to say the least, cautious to imply additional restraints into the terms of a restraint order.’ Given that a breach of the order may give rise to imprisonment, and in order to promote certainty as to the prohibited conduct, courts should interpret restraining orders according to their plain and ordinary meaning and should be slow to imply additional words or restraints into the order.[7]

  1. [53]
    I respectfully agree with His Honour.
  1. [54]
    Tsang v Francis [2019] WASC 290 was an appeal by Tsang against the decision of a Magistrate convicting him of approaching and remaining within 25 metres of a protected person. The statement of facts presented to the learned Magistrates was in the following terms:

“Order was taken out, sir, serve[d] on 8 January this year. Two-year order. Communication is not allowed unless in court proceedings. 11.15 at this courthouse, participating in some court proceedings. When the court proceedings (indistinct) he entered the main Registrar’s office. The complainant and her associate walked in behind. The associate made a comment to the accused about having photos of him which made him angry. Turned around, walked back towards them, made a comment about another witness to her, and approaching and communicating with the complainant is not complying with the terms of the order, and he says: When interviewed, I thought I could take to her in the courthouse. I made a genuine mistake.”

  1. [55]
    In his affidavit, Tsang deposed to, among other things, the following in respect of the events on 11 April 2018:
  1. On 6 February 2018, the appellant obtained a MRO against the protected person. The appellant was informed that MRO was served on 1 March 2018.
  2. On 11 April 2018, the appellant arrived at the Midland Magistrate’s Court to attend a court hearing in civil proceedings commenced by the appellant against the protected person. Prior to the matter being called, he sat in the waiting room. The protected person and an associate of hers arrived after the appellant and sat metres away from him. The appellant then left the waiting room.
  3. After the court hearing had concluded, the appellant went into the court registry to obtain a court form and got a ticket from the machine. The protected person and her associate followed the appellant into the registry. The associate shouted at the appellant ‘we’ve got photos of you on our phones – watch out’.
  4. The appellant then approached the associate who was standing in front of the protected person. A photograph, obtained by the appellant from the Midland Magistrate’s court, shows the appellant close to the associate of the protected person. The associate has her finger raised at him. The appellant deposed that the associate ‘started abusing me after I told both of them don’t threaten me and tell Maddy thanks for going against me’.
  5. The appellant then left the Midland Magistrate’s Court and attended the Midland police station to make a complaint about the protected person breaching the MRO that he had obtained against her. Shortly after his arrival at the Midland police station, the protected person and her associate arrived to make a complaint about the appellant.
  6. The appellant deposed that after the arrival of the protected person and her associate, he was told by the officers to take a seat. The police spoke to the protected person and her associated. He was then told by the officers at the Midland police station that he had done nothing wrong ‘as you can speak in the court house’ and was told to go home.
  7. The appellant deposed that ‘[he] was arrested allegedly on the grounds that [his] MRO on the [protected person] had not been served and was not registered on the police database.’
  1. [56]
    Hill J at [72] – [73] indicated:

“The FVRO required the appellant not to ‘except as set out in Part B communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text message or any other electronic means, …approach or remain within 25 metres of the Person Protected. Part B relevantly provided that the appellant would not breach the order if he was to ‘participate in and attend court events in proceedings in which the Person Protected and you are parties or witnesses and to comply with any order or directions of a Court.’ The words used in the FVRO must be given their plain and ordinary meaning. On its terms, the FVRO prevented the appellant from communicating with, or approaching or remaining within 25 metres of the protected person unless he was either participating in or attending court events in which they were both involved, or her was complying with any order or direction of the court. That is, any communication by the appellant while participating in a court hearing in proceedings involving the protected person was not a breach of the order. Further, the appellant could be and remain within 25 metres of the protected person in a court room for a court hearing without being in breach of the order.”

  1. [57]
    On its terms, the FVRO prevented the defendant from following remaining or approaching the aggrieved unless he was either participating in or attending Court events in which they were both involved, or he was complying with any Order or direction of the Court.
  1. [58]
    Hill J found that:

“In my view, the plain and ordinary meaning of the terms of the FVRO did not mean that any communication by the appellant to the protected person within the court building or surrounding area fell within the exemption, nor did it entitle the appellant to approach the protected person outside the court hearing room.”

  1. [59]
    The particulars given here were that the defendant approached and/or remained in a place namely the school.
  1. [60]
    So, what is the plain and ordinary meaning of ‘approach’, ‘remain’ and ‘place’.
  1. [61]
    The term ‘approach’ was considered in Sturt v Ball [2013] WASC 343, Beech J indicated at [14]

“In the context of the violence restraining order, and in the context of the charge, the word ‘approach’ bears its ordinary meaning. ‘Approach’ is commonly defined to mean ‘to come nearer to near to (someone or something) in distance or time’. The respondent accepts that this is the meaning of ‘approach’ in this context.”

  1. [62]
    The evidence in that case established that the accused did not approach the protected person. Rather, the protected person approached the accused.
  1. [63]
    It was submitted that ‘approach’ should also be construed to include a requirement the person not remain within a specified distance of the protected person. Beech J disagreed and indicated:

The respondent points out, correctly, that by s 12(1) of the Restraining Order Act, when a court is considering whether to make a violence restraining order, and its terms, a court is to give primary consideration to, among other things, the need to ensure that the person seeking to be protected is protected from acts of abuse. The respondent submits that if an order preventing a person from ‘approaching within’ a specified distance of another is construed not to include a requirement that the person not remain within the specified distance if the protected person has walked up to them, it is questionable whether the order ensures adequate protection from acts of abuse. In my view, that submission does not sustain the magistrate’s and respondent’s construction of the violence restraining order made in this case. Section 12 is directed to the terms of a violence restraining order to be made by a court, rather than the construction of an order once it has been made. To the extent that the need to ensure that the relevant person is protected from acts of abuse requires the order to prevent the person bound by the order from remaining within a specified distance of the protected person, an order restraining the person bound by the order from remaining within a particular distance of the person could and should have been made. That consideration does not justify a construction of the language of the order that is, as I have explained, so strained.

  1. [64]
    In my opinion in the context of Domestic Violence Orders ‘remain’ means to stay behind or in the same place. If you remain in a place, you stay there and do not move away.[8]
  1. [65]
    A place can be a location that is a building, area, town, or country. It is a geographical point.[9]
  1. [66]
    Further, in my opinion in the context of Domestic Violence Orders, what constitutes a place will vary depending on each case including the location and landscape. A landscape includes the physical elements of geophysically defined landforms, land cover and human elements including different forms of land use, buildings, and structures. It could be a room, building, school, farm, forest or mountain.
  1. [67]
    The TPO does not have clear language that defines a place. It would be open under s 58 of the Domestic and Family Violence Protection Act 2012 to impose a restraint against remaining or approaching a person, and a restraint against remaining within a particular distance of a person. By stating a specific distance would clarify Orders and be clear and easy for people to understand Orders.
  1. [68]
    I am loathe to define a place other than go give it its plain and ordinary meaning, but it would be reasonable in the context of this case to indicate a place would be in the general vicinity or in other words an area close to the aggrieved being a distance from the respondent that an aggrieved person needs to be in order to remain comfortable or safe viewed objectively.
  1. [69]
    There is no provision in the TPO restricting contact by ARH with his children except when they are with EJB. If the Court did not want the respondent to have contact with the children or attend the school, then that would be reflected in the TPO.
  1. [70]
    I am not satisfied beyond reasonable doubt that ARH has approached EJB outside the classroom. EJB walks up to where ARH and the children are outside the classroom. For ARH to approach EJB, the prosecution must prove beyond reasonable doubt ARH came nearer to EJB. The evidence suggests EJB came nearer to ARH. See Sturt v Ball [2013] WASC 343.
  1. [71]
    This is at 2:55pm. An animated conversation between ARH and EJB occurs as seen by Mrs H.
  1. [72]
    It is a short conversation of no more than a few minutes at best between 2:55pm and 3:01pm when EJB telephones 000.
  1. [73]
    ARH should not have remained and had that conversation because he is contravening the TPO by doing so. The Act of remaining in a place with the aggrieved and not moving away, constitutes the contravention of the TPO. It is incumbent upon the person upon whom the restraining order is imposed to immediately walk away from the aggrieved. The exception does not apply as it has not been agreed in writing by EJB or ARH to have contact with the children in her presence and no other Court Orders are in place.

Conclusion

  1. [74]
    I find the defendant guilty of the charge.

Mark Morrow

Acting Magistrate.

Footnotes

[1] Shepherd (1990) 170 CLR 573 at 578.

[2] Perera (1986) 1 Qd R 211 at 217 and also see R v BBU [2009] QCA 385 at [55].

[3] Section 23(2) Domestic and Family Violence Protection Act 2012 (Qld). See Wells v Bramley [1997] QDC 099 at [10] (Nase DCJ), R v Wood [1994] QCA 297 (McGill DCJ) (followed in Head v Palmer & Anor [2002] QDC 331) and R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 at [23].

[4] Section 23(3) Domestic and Family Violence Protection Act 2012 (Qld).

[5] The respondent may be told by a police officer about the existence of an order in any way, including, for example, by telephone, email, SMS message, a social networking site or other.

[6] Section 177(5) Domestic and Family Violence Protection Act 2012 (Qld).

[7] See also Tsang v Francis [2019] WASC 290.

[8] https://www.collinsdictionary.com/dictionary/english/remain.

[9] https://www.collinsdictionary.com/dictionary/english/place.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v ARH

  • Shortened Case Name:

    Queensland Police Service v ARH

  • MNC:

    [2019] QMC 16

  • Court:

    QMC

  • Judge(s):

    Morrow A/M

  • Date:

    13 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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