QPS v CAE[2024] QMC 17

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   On 1 May 2024 the Defendant pleaded guilty to 2 offences. After hearing the facts, I rejected the plea in relation to the first charge. That charge involved a breach of a ‘contact’ condition of a Domestic Violence order. My view at the time was that the facts as accepted did not disclose a breach of the order and that I could not properly accept the plea.

2. [2]
   The prosecution’s case is that an order prohibiting a Respondent from ‘contacting or attempting to contact’ an Aggrieved is breached by them simply being in physical proximity.

3. [3]
   The defence now submitted that a breach requires communication and that none was proven on the facts.

4. [4]
   The matter was listed on 8 August 2024 and proceeded on the agreed facts as set out in the QP9.

5. [5]
   The prosecution provided:

1. written submissions

2. the Domestic Violence Order itself

3. A bail undertaking

4. Transcript in relation to the bail

5. Transcript in relation to the Domestic Violence Order

The Facts

6. [6]
   The Aggrieved and the Defendant/Respondent are related. The Defendant was charged with a serious criminal offence of violence towards the Aggrieved. She was bailed and a Domestic Violence Order made. Those matters were deal with some time ago.

7. [7]
   At about 3am on 30 March 2024 police intercepted a car on Haly Street. The backseat passenger side occupant fled. He was on a return to prison warrant. The Aggrieved was sitting next to him in the middle. The Defendant was sitting next to her on drivers’ side of the back seat. The driver and a front passenger were also in the car.

8. [8]
   Police discovered the existence of the Domestic Violence Order. The Defendant stated she was there because the Aggrieved was scared of the person who had run away. The Defendant said she had been walking home and ‘they came along’, that the ‘boy was terrorising them’, he was crying and on the run.

9. [9]
   Those facts do not prove who spoke to the Respondent or that the Respondent ever spoke to the Aggrieved.

The Order

10. [10]
    The order was made on 6 Feb 2020 before another Magistrate.

11. [11]
    It contained the mandatory condition and one other. That condition reads:

1. (2)
   The Respondent is prohibited from contacting or attempting to contact or asking someone else to contact the Aggrieved, including being prohibited from making telephone calls or sending text messages to the Aggrieved.

12. [12]
    That order is in same terms as those commonly made in the Magistrates Court and likely mirrors the bench form available at the time.^[1]

13. [13]
    The Magistrate actually said in the transcript:

And the terms of the conditions will be two. One, the Aggrieved must be of good behaviour towards the – sorry, the Respondent must be of good behaviour towards the Aggrieved, not commit domestic violence. And the second condition is that there’s a non-contract provision, I think. Where was it? The Respondent is prohibited from contacting or attempting to contact or asking someone else to contact the Aggrieved, including being prohibited from making telephone calls and sending text messages to the Aggrieved.

The Law

14. [14]
    Magistrates are empowered to make Domestic Violence Orders and to include conditions.^[2]

15. [15]
    Examples of those are given in Section 58 (my underlining):

58 Conditions relating to behaviour of Respondent

Without limiting section 57, the court may impose a condition on the Respondent that—

1. prohibits stated behaviour of the Respondent that would constitute domestic violence against the Aggrieved or associated domestic violence against a named person; or

2. prohibits stated behaviour of the Respondent that is likely to lead to domestic violence against the Aggrieved or associated domestic violence against a named person; or

3. prohibits the Respondent from approaching, or attempting to approach, the Aggrieved or a named person, including stating in the order a distance within which an approach is prohibited; or

4. prohibits the Respondent from contacting, attempting to contact or asking someone else to contact the Aggrieved or a named person, including, for example, if the Aggrieved or named person has taken shelter at a refuge; or

5. prohibits the Respondent from locating, attempting to locate or asking someone else to locate the Aggrieved or a named person if the Aggrieved’s or named person’s whereabouts are not known to the Respondent; or

6. prohibits stated behaviour of the Respondent towards a child of the Aggrieved, or a child who usually lives with the Aggrieved, including prohibiting the Respondent’s presence at or in a place associated with the child.

16. [16]
    The section is all about imposing conditions which prohibit some form of behaviour of the Respondent. The behaviour is described with verbs in terms of what Section 107A describes as a ‘no-contact condition’^[3]. Those verbs are approaching, contacting and locating. They are widened to include attempts and some examples.

17. [17]
    These are mirrored in the bench forms most Magistrates follow or adapt. The usual terms considered are in relation to attending at the home or work of an Aggrieved or approaching, contacting or locating them.

18. [18]
    This order made does not use ‘contact’ as a noun. What is prohibited it the Respondent doing something. Not a state of physical affairs such as the parties being ‘in contact’ or ‘touching’.

19. [19]
    The ordinary meaning of ‘contacting’ is contained in dictionaries. It is different from the many uses of the word ‘contact’. For example:^[4]

Meaning of contacting in English

contacting

present participle of contact

verb

to communicate with someone by calling or sending them a letter, email, etc.:

20. [20]
    The prosecution urges a construction which would change the meaning of the words in the order from their plain or literal meaning to another namely:

1. 2)
   The Respondent is prohibited from being in contact with or attempting to contact or asking someone else to contact the Aggrieved, including being prohibited from making telephone calls or sending text messages to the Aggrieved.

21. [21]
    That would be a ‘no approach’ type of condition.

22. [22]
    That construction would criminalise a state of fact and not behaviour of the Respondent.

23. [23]
    For example, an Aggrieved may decide to ring a Respondent who is the subject of the ‘no contact’ order in the terms of this order and say “Hello it’s me”.

24. [24]
    On the prosecution’s interpretation, the Respondent would commit a criminal offence when they unknowingly answer the phone even if they say nothing and hang up. This is because the parties would be ‘in contact’.

25. [25]
    In my view even if the Respondent says “I am not allowed to talk to you.” and hangs up they have not committed an offence.

26. [26]
    The only behaviour prohibited is contacting or attempting to contact. The inclusions are of positive acts which the Respondent must undertake such as “making telephone calls” or “sending text messages”.

27. [27]
    It is further my view that even if the Respondent proceeded to engage in a fulsome but otherwise innocuous conversation, they have not breached the order.

28. [28]
    That is because the prohibition is on doing an act that results in or attempts to result in the parties beginning to communicate or with information passing from the Respondent to the Aggrieved as the first step in what may or may not continue as a two-way conversation.

29. [29]
    There is no evidence in this case of any communication between the Aggrieved and Respondent. The highest it rises to is that someone in the car stopped near the Respondent and someone (we don’t know who) told the Respondent about the boy who was wanted and that as a result she got into the car.

30. [30]
    For guilt to be found the prosecution would have to prove beyond reasonable doubt that Respondent initiated communication with the Aggrieved.

31. [31]
    There is simply no such evidence. There is no evidence that there was any communication between them let alone who started it.

32. [32]
    The act of sitting down in the car seat or remaining there knowing the Aggrieved was there not an act prohibited by the order.

33. [33]
    Even if they were touching it is not that type of ‘contact’.

Relevance of Bail Undertaking

34. [34]
    Shortly before the Domestic Violence Order was made, the Magistrate conducted a committal after which they gave the Respondent bail. The prosecution in this case tendered that undertaking. They say that it can inform the interpretation of the Domestic Violence Order.

35. [35]
    I do not accept the notion that the orders can be used to interpret one another.

36. [36]
    Magistrates routinely have different conditions in bail and Domestic Violence orders. It is common to leave one order simpler where the other is achieving the protection sought without the need to complicate things by having both mirror one another.

37. [37]
    In short, you cannot interpret a Domestic Violence Order on what the maker said in any proceeding, however closely related, other than the domestic violence proceedings itself.

38. [38]
    In any event the bail undertaking does not assist the prosecution. It reads (relevantly and with my underlining)

The Defendant must not contact or communicate with, or attempt to contact or communicate with, either directly or indirectly, [ the Aggrieved ] . NOTE- contact or communicate with includes meeting, speaking to, telephoning, sending a text or social media message to, sending or delivering a written or type note or letter to, contacting on social media, or getting in contact with in any other way.

39. [39]
    This Defendant might well have breached that bail condition because by getting into the car she was ‘meeting’ the Aggrieved and was ‘getting in contact’ with her in another way.

40. [40]
    The bail was no longer in effect at the time of this alleged breach of the Domestic Violence Order.

41. [41]
    The fact that different and stricter wording was used is only evidence of the fact that when the same Magistrates soon after made the lesser order in the Domestic Violence Order that he did not intend it to be the same as the bail.

Relevance of Transcript of Domestic Violence proceedings

42. [42]
    Immediately after bail was granted the Magistrate went on to consider a live Domestic Violence application naming a person who is not the Aggrieved in the present order as the Aggrieved in that application. The Magistrate made that other order expire at a later time.

43. [43]
    He then said “And I’ll grant a fresh order today in regard to the evidence that I’ve heard today” and did so resulting in the order that is now alleged to have been breached.

44. [44]
    I cannot ascertain that there was any application being decided nor that the Magistrate was acting under s.42 but I am bound by s.187 that the order produced to this court is evidence that an order was made and is still in force.

45. [45]
    When the Magistrate explained the order orally, he expressly numbered and read out the standard mandatory and no contact conditions. The Registrar typed up that order with those conditions.

46. [46]
    As a parting comment he said to the Respondent to ‘come back in 3-4 years and we’ll look at it again but, in the meantime, you are to have no contact at all with the Aggrieved’.

47. [47]
    It may also be that he was reminding the Respondent of the effect of the bail undertaking.

48. [48]
    He was not at that point in time making the order which was clearly set out with numbered conditions. He was, at best for the prosecution, explaining the order.

49. [49]
    As to whether there has been a criminal breach of the order, it is irrelevant what he might have thought his own order meant.

50. [50]
    The order is what the order says and the interpretation of it is a matter for any subsequent court being asked to give effect to it.

51. [51]
    Considerable difficult would be caused if resort was required to the transcript for every breach to see what the Magistrate meant rather than just looking at what the order itself says. It is the order which is required to be served on the Respondent by s.184.

52. [52]
    The Legislation is not explicit^[5] as to when the order is made and whether it is made on the uttering of words or on the written recording on the Court file. I have taken the view that it is the former. It is critical because under s.177, the commencement of potential criminal liability for a breach occurs (in one way) if the Respondent ‘was present in court when the order was made’.

53. [53]
    The typed document which is headed “Form DV3 … Protection Order” was created by the Registrar who placed the Magistrates signature stamp on it and a Court seal. It is this that is contemplated by s.189:

189 Evidentiary provision

1. (1)
   This section applies to any proceeding with the view to giving effect to any provision of this Act.

1. (2)
   A document purporting to be a copy of any of the following orders is evidence of the making of the order and the matters contained in the order—

1. (a)
   a protection order;

54. [54]
    That DV3 is the order and the transcript does not reveal any error in it.

Conclusion

55. [55]
    In my view the standard ‘no-contact’ clause in the form set out above only limits the Respondent from initiating communication with the Aggrieved.

56. [56]
    It does not stop them being in proximity. That is covered by an ‘approach’ condition.

57. [57]
    It does not stop the Respondent communicating back if the Aggrieved is the person who initiates the communication (i.e. contacts the Respondent).

58. [58]
    To prove a breach of this condition, the prosecution must prove beyond reasonable doubt that some form of initiation of communication was made or attempted and that the person doing so was the Respondent.

59. [59]
    They have not done so in this case and so I find the Defendant not guilty. I will hear the sentence on Count 2.

A.H Sinclair

Magistrate

26 August 2024