Appellant v Respondent

3 The order also adjourned the family violence application to 30 August 2021.

4 On 2 September 2021, the respondent was charged with one count of persistently contravening a family violence intervention order contrary to s 125A of the Act (Charge 1) and four charges of contravening a family violence intervention order contrary to s 123 of the Act (Charges 2 to 5). The factual basis of charge 1 was the contraventions alleged by charges 2 to 5.

5 The charge sheet in respect of the offences under s 123 of the Act alleged that the respondent had contravened the order on 13, 14 and 17 May and 7 June 2021. Each charge was in substantially the same form and alleged that the respondent:

against whom a family violence intervention order was made pursuant to the [Act], and having been served with a copy of such order or had an explanation of the order given to him in accordance with section 57 (Interim Order) of the Act did contravene that order by committing family violence against the protected person.

6 The charges were heard before a magistrate sitting at Frankston. The respondent pleaded not guilty to all charges. The prosecution put its case on the basis that the conduct of the respondent, which took the form of telephone calls and text messages between the respondent and the protected family member, constituted 'family violence'. Specifically, it was alleged that the conduct of the respondent amounted to emotionally or psychologically abusive behaviour, which is a concept that is elucidated in s 7 of the Act.

7 The prosecution relied on the evidence of MT and the informant.

8 The prosecution also tendered some text messages and screenshots that showed a number of missed calls from the respondent to MT. On 14 May 2021 the respondent made 24 phone calls to MT which went unanswered. He sent the following texts that day:

Silly move! I've kept calm and concerned about your mental well being [sic] more than anything with the torture and hell you've intentionally put me through this week, and you still don't even have the respect to talk to me and give me straight no bullshit answers without hanging up and running from a tough conversation.

I'm glad I'm finally seeing your true colours!!

Respondent:

I want to FaceTime my daughter after her breakfast..

Answer your FaceTime!!!

MT:

Hi [respondent]

It cut out due to back [sic] reception. I can do a FaceTime when we get into town later this morning.

Thanks

MT:

[Respondent], if you wish to have those conversations, please have them at a separate time to FaceTime. It's not ok to swear during FaceTime or to just hang up without saying goodbye to [respondent and MT's daughter].

FaceTime is [respondent and MT's daughter] time.

Thanks

Respondent:

You won't have those conversations ever so want choice do I have! I want to see my daughter!!!

MT:

I've already told you that I'm waiting on legal advice so that I know my options. I have the appt [sic] tomorrow at 2pm.

Respondent:

Ok no worries. Looks like your [sic] not going to be respectful OR an adult about this looks like I'll have to take your approach and start escalating things on my end too!!

11 Both parties relied on the respondent's record of interview. In the interview, the text exchanges sent by the respondent were read to him by the interviewing officer. Asked whether he recognised the texts, the respondent said:

Definitely, yeah, yeah. There's no - like, I definitely wasn't meant to be hurtful or anything like that to [MT]. It was really stressful and emotional time.

...

So [15 May] was a couple of days after and, you know, like, my first message to [MT] was - the first thing I said was, "I hope you're O.K.," 'cause I was really worried about her. And then she just kept me the dark and she wouldn't answer - answer - answer any, like, questions about how [respondent and MT's daughter]'s going or anything. Or, you know, when she'd come back, when I'm gunna see her, anything.

...

Yeah. It was definitely not meant to be hurtful or anything like that towards [MT]. It was just a very very very stressful and emotional time.

...

And, yeah, I just wanted to get her talking, just so we could work it out. And just sit down and say, "What's gunna be the best thing for - for [respondent and MT's daughter]?" But I - she just - yeah, she just wouldn't talk to me.

13 The prosecution submitted to the magistrate that the offences under s 123 of the Act were strict liability offences. The magistrate rejected that submission. The magistrate found that the conduct of the respondent amounted to family violence in MT 'felt unsafe, threatened and offended as a result of many of the communications' but held that the prosecution had not proved, beyond reasonable doubt, that the respondent 'intended by his behaviour to breach the condition of the family violence intervention orders'. It followed, so the magistrate found, that the prosecution had failed to establish the fault element and that charges 2 to 5 were not made out. Necessarily, charge 1 also failed.

14 The Director appeals the final orders dismissing the charges under s 272(1) of the Criminal Procedure Act 2009.

15 Section 1 of the Act provides that the purpose of the Act is to:

(a) maximise safety for children and adults who have experienced family violence; and

(b) prevent and reduce family violence to the greatest extent possible; and

(c) promote the accountability of perpetrators of family violence for their actions.

16 Section 2 says that the Act 'aims to achieve its purpose' by a number of means including by creating offences for contraventions of family violence intervention orders and family violence safety notices.

17 Relevantly a court may make an interim order under s 53 of the Act. Section 53(1)(a) provides that the court may make an interim order if:

a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application -

(i) to ensure the safety of the affected family member; or

(ii) to preserve any property of the affected family member; or

(iii) to protect an affected family member who is a child who has been subjected to family violence committed by the respondent; ...

18 If the court makes an interim order under s 53, s 57 requires the court to explain to the respondent and protected person (or whichever of them is before the court) of a number of matters including the purpose, terms and effect of the interim order and the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order.

19 An interim order under s 53 is a 'family violence intervention order'.[1]

20 Section 5 defines 'family violence' in the following way:

Meaning of family violence

(1) For the purposes of this Act, family violence is -

(a) behaviour by a person towards a family member of that person if that behaviour -

(i) is physically or sexually abusive; or

(ii) is emotionally or psychologically abusive; or

(iii) is economically abusive; or

(iv) is threatening; or

(v) is coercive; or

(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or

(b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

Examples

1. The following behaviour may constitute family violence under paragraph (a) -

• using coercion, threats, physical abuse or emotional or psychological abuse to cause or attempt to cause a person to enter into a marriage;

• using coercion, threats, physical abuse or emotional or psychological abuse to demand or receive dowry, either before or after a marriage.

1. The following behaviour may constitute a child hearing, witnessing or otherwise being exposed to the effects of behaviour referred to in paragraph (a) -

• overhearing threats of physical abuse by one family member towards another family member;
• seeing or hearing an assault of a family member by another family member;
• comforting or providing assistance to a family member who has been physically abused by another family member;
• cleaning up a site after a family member has intentionally damaged another family member's property;
• being present when police officers attend an incident involving physical abuse of a family member by another family member.

(2) Without limiting subsection (1), family violence includes the following behaviour -

(a) assaulting or causing personal injury to a family member or threatening to do so;

(b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;

(c) intentionally damaging a family member's property, or threatening to do so;

(d) unlawfully depriving a family member of the family member's liberty, or threatening to do so;

(e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

(3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.

21 The meaning of 'economic abuse' is explicated in s 6. Section 7 defines 'emotional or psychological abuse'. It states:

Meaning of emotional or psychological abuse

For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

**Examples - **

• repeated derogatory taunts, including racial taunts;

• threatening to disclose a person's sexual orientation to the person's friends or family against the person's wishes;

• threatening to withhold a person's medication;

• preventing a person from making or keeping connections with the person's family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person's cultural identity;
• threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member, or threatening the death or injury of another person.

22 Section 81 of the Act provides that a court may including in a family violence intervention order any conditions that appear to the court necessary or desirable in the circumstances. Section 81(2) provides examples of conditions that may be attached to an order including:

(a) prohibiting the respondent from committing family violence against the protected person; and

(b) excluding the respondent from the protected person's residence in accordance with section 82 or 83; and

(c) relating to the use of personal property in accordance with section 86; and

(d) prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person, unless in the company of a police officer or a specified person ; and

Examples

1 Emailing the protected person.

2 Sending text messages to the protected person.

(e) prohibiting the respondent from being anywhere within a specified distance of the protected person or a specified place, including the place where the protected person lives; and

(f) prohibiting the respondent from causing another person to engage in conduct prohibited by the order; and

(g) revoking or suspending a weapons approval held by the respondent or a weapons exemption applying to the respondent as provided by section 95; and

(h) cancelling or suspending the respondent's firearms authority as provided by section 95.

23 Section 123(2) of the Act makes it an offence for a person to contravene a family violence intervention order. The prescribed penalty is level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

24 Section 123 applies if an order has been made, it has been served and an explanation given in accordance with s 57.

25 As recorded by the magistrate, MT gave evidence about the respondent's behaviour that led her to call police on 11 May 2021 and which resulted in the order being obtained. MT said that, following that conduct, she and her daughter left her house to visit her parents on 13 May. MT described a phone call from the respondent on 13 May in which was angry, there was lots of swearing with the respondent asking, 'What her fuckin' plans were and who put her up to this?'. MT said she was 'hurt and sad'.

26 MT gave evidence, which the magistrate accepted, that between 14 and 17 May she received messages and missed calls from the respondent that made her feel threatened. The magistrate found MT to be a credible and honest witness. The magistrate said she had not doubt that MT felt unsafe, threatened and offended as a result of the communications from the respondent. The magistrate said that the messages went further than being 'unkind' and that they were 'emotionally and psychologically abusive, particularly the messages that were highlighted during the evidence such as text messages on 14 May and on 17 May'.

27 On the question of intent, the magistrate rejected the submission advanced by the prosecution that s 123 was an offence of strict liability. I note that the prosecutor had submitted that, depending on the particular charges, in respect of some contraventions of s 123 the prosecution may have to prove mens rea but in others it did not. The magistrate concluded that the mental element could not depend on how the charge was framed or which aspect of family violence was being alleged but was consistent across contraventions of s 123 of the Act.

28 After referring to two authorities relied on by the prosecutor[2] the magistrate concluded:

In my view the element of mens rea applies to the offence itself not to the particulars of the offence. In my view it does not matter how the breach is alleged, the offence itself is the same and mens rea should apply. In reaching this conclusion I have considered the authorities that were referred to in both the prosecution and defence submissions. I note that the nature of the alleged breach is important when it comes to proof of that element of the charge.

29 After summarising the evidence and making findings of fact, the magistrate concluded:

I am not satisfied beyond reasonable doubt that the accused intended by his behaviour to breach the condition of the family violence intervention orders. My reasons for reaching this conclusion include the evidence of the accused, including his answers in the record of interview which took place very shortly after the alleged offending.

The accused was open in the witness box, acknowledging his frustrations and emotional state. In my view, to some extent, he overstated his empathy and concern felt for [MT] as this was not necessarily demonstrated or obvious from his communications with her, but I do find that the prosecution failed to establish beyond reasonable doubt the required intention in each of Charges 2 to 5. Additionally for Charge 5 I note that was the charge that occurred on 7 June, there was insufficient evidence of behaviour constituting family violence.

30 In her notice of Appeal, the Director proposed two grounds, the first of which was that the magistrate erred in not finding that s 123 was a strict liability offence. That ground was abandoned and the Director accepts that the offence is not one of that kind and that the prosecution must prove a mental element.

31 The Director relies on her second ground of appeal:

If the answer to Question 1 is 'no', did the learned magistrate err when construing the relationship between the physical element and the fault element under section 123 of the Act?

32 The Director submits that the offence created by s 123 is concerned with prohibited conduct and not whether the concern or result of that conduct was intended. In making that overarching submission the Director relies on six matters:

(a) the plain language of s 123, which the Director contends 'does not include a fault element to cause a result';

(b) context;

(c) a contrast with 'aggravated contravention offences' including ss 123A and 125A, because unlike those sections, s 123 makes no express reference to committing prohibited conduct with the specific intent of bringing about a particular result or consequence;

(d) requiring the prosecutor to prove that the accused intended to bring about a particular consequence would give rise to disparity with the 'National Domestic Violence Order Scheme' because Victoria would be the only jurisdiction in which proof of a fault element relating to a result was required to establish a contravention offence;

(e) the reasons of the High Court in Clubb v Edwards;[3] and

(f) inconsistency with the approach in Cope.

33 Starting with the text, the Director observes that the definition of 'family violence' identifies different kinds of behaviour, only some of which expressly provides for intention.[4] The Director submits that a contravention occurs when a person subject to an order engages in conduct which conflicts with or violates a condition of that order, and that an offence will occur by a person intentionally or recklessly engaging in prohibited conduct, 'regardless of their intention vis-à-vis the legal consequences of that action'.

34 As for context, the Director submits that the aggravated forms of the offence in ss 123A and 125A depend on the prosecution establishing a certain state of mind as to the effect of the offender's conduct. For example, s 123A(2) provides:

A person against whom a family violence intervention order has been made and who -

(a) has been served with a copy of the order; or

(b) has had an explanation of the order given to him or her in accordance with section 57(1), 60G(1) or 96(1) -

must not contravene the order intending to cause, or knowing that his or her conduct will probably cause -

(c) physical or mental harm to the protected person, including self-harm; or

(d) apprehension or fear in the protected person for his or her own safety or that of any other person.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.

35 The Director notes that these offences were introduced to address 'particularly harmful' offending.[5] Given the difference in the provisions, the Director submits that s 123 must not require the prosecution to prove an intention to bring about a certain effect or impact on the protected family member.

36 More broadly, the Director submits that the Act should be construed in an harmonious way with legislation in other States that are intended to operate consistently as a National Domestic Violence Order Scheme. The Director observes that in the northern Territory a contravention of an intervention order is a strict liability offence.[6] In Beukes the Supreme Court of South Australia held that a cognate provision to s 123 of the Act was a strict liability offence. The Director notes that the Codes in Queensland, Tasmania and Western Australia adopt a fault element of intention or recklessness in relation to the conduct of the accused. The Director submits that none of the provisions contain an 'express declaration that a particular result must be intended'.

37 Based on that brief survey, the Director submits that none of those jurisdictions require proof that an accused person engaged in prohibited conduct to bring about the result of contravening an order.

38 As to purpose, the Director says the protective purpose of the provisions, which includes maximising safety and promoting the accountability of perpetrators, would be undermined and their effectiveness compromised by requiring the prosecution to prove an intentional breach of the order.

39 The first question that falls for decision is one of statutory construction and concerns the nature of the mental element for an offence under s 123 of the Act. Although the answer is to be found in the text of the Act, construed in its context, it is necessary to have regard to some foundational principles that inform the construction.

40 The starting point is the general principle expressed by the High Court in He Kaw Teh v The Queen[7] that mens rea is an essential ingredient in every offence but the presumption is liable to be displaced by the words of the statute or the subject matter. The general principle is that most serious crimes require an intention to bring about the requisite physical element of the offence.

41 The second general point relates to that which the relevant mental element attaches. As a general proposition the mental element corresponds to all of the matters that comprise the physical element or actus reus of the offence. The criminal law sometimes distinguishes between a general intent to engage in the prohibited act and a specific intent to bring about a specified consequence.

42 In He Kaw Teh Brennan J emphasised the distinction between general and specific intent as separate categories of mens rea included in the elements of statutory criminal offences:

General intent and specific intent are ... distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.[8]

43 Justice Brennan's reference to an act of the character prescribed is, to my mind important. In some circumstances, the relevant conduct can only be understood by, and take its meaning from, the circumstances in which it occurs or the consequences that flow. In such cases the taxonomy between general and specific intent may be less stable.

44 In R v Reynhoudt,[9] the High Court considered the elements of an offence of assaulting a police officer in the execution of duty and whether it was necessary to prove that the accused knew the person was an officer acting in the course of duty. The majority held that it was not. Although in dissent, Dixon CJ approached the task in this way:

My conclusion is that to be guilty of the offence of assaulting a member of the police force in the due execution of his duty the intent of the supposed offender must go to all the ingredients of the offence. I do not of course use the word intention to refer to the consequences of an act or the desire that a result shall ensue but simply to the commission of what I regard as a compound offence. The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence and I think that the guilty mind should go to the elements of which it is composed.[10]

45 In He Kaw Teh Brennan J addressed the means of proof of the differing mental states in the following way:

Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence.[11]

46 In the course of his reasons, Brennan J discussed the distinction between knowledge and an absence of an exculpatory belief which provide alterative bases for criminal responsibility. He said:

If there are alternative states of mind - knowledge or absence of exculpatory belief - that may apply to circumstances which are external elements of a statutory offence, how is the applicable state of mind to be ascertained? Principally, by reference to the language of the statute and its subject-matter. From those sources, the mischief at which the statute is aimed is derived, and the purpose of the statute is perceived. The purpose of the statute is the surest guide of the legislature's intention as to the mental state to be implied.[12]

47 In He Kaw Teh, which was concerned with the fault element of a charge of importing a prohibited drug, Brennan J concluded that it was impossible to divide the act of importation from the nature of the object imported. For that reason, intent, and in that context, knowledge, applied to both.

48 In Clubb, Nettle J observed that where a 'regulatory statutory offence' does not specify mental element 'it may be taken that it requires a general intent to do the act'. Nettle J continued:

By contrast to the requirement for proof of a general intent to commit the act charged, there is no presumption in relation to regulatory statutory offences that intent to cause specified consequences is an element of the offence charged ...[13]

49 In the present appeal, the relevant charge was engaging in conduct that contravened the order on the basis that the behaviour constituted family violence. More specifically it was alleged that the respondent had engaged in 'behaviour' that was 'emotionally or psychologically abusive'. In order to make out that charge, the prosecution was required to prove, to the criminal standard, that the respondent's behaviour was 'towards' MT and that it tormented, intimidated, harassed or was offensive to her. There is no doubt that the prosecution had to prove that the behaviour produced a certain consequence or impact on MT as the protected family member. It is not necessary for the purposes of the appeal to determine whether that issue is to be assessed subjectively or objectively or both. It is plain from the magistrate's reasons that the magistrate was satisfied that MT felt 'unsafe, threatened and offended' and that there was a reasonable basis for that state having regard to context and the content of the communications.

50 There is also no doubt, and it is common ground, that s 123 incorporates a mental element. That is to say, the Director does not submit that the offence is a strict liability offence. It is convenient to note at this point that the proceeding was conducted on the basis that the relevant mental state was intention. It is not necessary to determine whether or not recklessness would suffice.

51 In identifying the relevant mental state that applies, it is important to focus on the elements of the offence. The Director accepts, correctly in my view, that the mens rea attaches to the relevant actus reus.

52 As a matter of text, sub-paragraphs (i), (ii) and (iii) of the definition of 'family violence' found in s 5(1)(a) are directed to abusive behaviour towards the protected family member. The words 'abuse' and 'behaviour' carry with them a connotation that it is more than mere conduct, but rather a course of conduct of a particular character, with a purpose or object in mind. This sense of the provision is strengthened by the word 'towards' (as in 'towards a family member') which further imports a notion that the relevant acts are not merely conduct of no particular character, but rather a manner of conducting oneself that is directed to another person and of a certain nature.

53 Here it is impossible to divide the physical act, namely behaviour 'towards' the protected person, and its effect or impact on that person. The character of the act, namely the behaviour, depends on the impact it has. To use the language of Brennan J in He Kaw Teh, there is no dichotomy between the physical act and the circumstances attendant on its occurrence. For that reason, as a matter of text and principle, the starting point is that the accused must intend to engage in behaviour of that character.

54 To confine the mental element to the physical manifestation of the behaviour but not to its effect or consequences would sever the connection between the accused person's conduct and the vice to which the provision is directed. The critical focus of the relevant part of the definition of family violence is the consequences that the behaviour has for the protected family member. It is those consequences that give the conduct its sting. To exclude this component from the mental element would substantially alter the nature of the offence. There is no textual support for such an approach. Unlike in Clubb, which identified conduct that was 'reasonably likely' to produce a consequence there is no similar qualification in the provisions themselves.

55 I do not consider that the aggravated form of the offence in s 123A of the Act points to a different conclusion. Section 123A, which applies where the person contravenes an order 'intending to cause, or knowing that his or her conduct will probably cause' physical or mental harm or apprehension or fear. In many alleged contraventions, such consequences will not be an element of a breach of s 123. For example, an intervention order might prohibit a person from communicating with the protected family member. In such a case, the prosecution would not be required to prove that the communications had any adverse consequences for the family member. Where it does so, and it involves physical harm then the aggravated form of the offence may have been committed.

56 Equally there may well be an overlap between the conduct caught by ss 123 and 123A. As the Director says, s 123A provides a form of permissible duplicity. For example, an accused person may commit a breach of s 123 by committing family violence by 'assaulting or causing personal injury to a family member'. In my view, a breach of s 123 based on such an allegation would require the prosecution to prove an intention to injure. On the other hand, the same facts might also constitute a breach of s 123A. It would be up to the informant or the Director to determine which charge ought to be brought. But the aggravated form of the offence does not lead to any particular construction in respect of the mens rea in s 123.

57 I have also not found the arguments based on the national scheme persuasive. The purpose of that scheme, which came into effect long after the enactment of s 123, was applying and enforcing family violence intervention orders across State boundaries. There is no uniform national legislation and some jurisdictions have expressly made cognate offences strict liability offences. The construction of differently worded provisions found in interstate legislation provides little guidance to the meaning of the Act.

58 I do not consider that this construction undermines the protective purpose of the legislation. Importantly, other contraventions of a family violence intervention order may not require the prosecution to prove an intention to bring about a certain effect. For example, an order may prohibit a person from coming within a certain distance of specified premises or from making any contact with the protected family member. Breaches of such orders would not give rise to the present issue. In any event, I do not consider that requiring the prosecution to prove an intention to engage in conduct of a certain character or kind would be unduly burdensome. Consistent with most crimes, intent will be proved inferentially. In the case of emotional or psychological abuse the context of the communications, including their content, frequency and mode will be important in inferring the intention or purpose for which they were undertaken. The submission of the Director that accused persons will simply deny the intent or assert an innocent purpose may be accepted. However, having regard to the context and nature of the acts including their content and frequency, it will often present little difficulty for the prosecution to prove purpose and intent. The fact that the respondent to an order will have had the effect of the order explained may also be relevant in assessing whether an innocent explanation is a reasonable possibility.

59 The making of an intervention order is not a criminal proceeding and in many cases the conduct which is alleged to constitute a breach of an intervention order would not otherwise be criminal. That said, in the case of a breach that amounts to the commission of family violence the conduct will of itself be serious even if not criminal. For that reason I have not found the distinction between regulatory offences and criminal offences particularly helpful in resolving the present question of construction. Further, it must be recognised that the offences are serious, with a contravention of s 123 of the Act carrying a maximum gaol term of two years' imprisonment.

60 The submission of the Director erects a false target by contending that the contrary construction would require the prosecution to prove that the person intended to breach the order. It usually suffices to prove knowledge of the circumstances which render the relevant event criminal, as distinct from proof of knowledge of the illegality of the act.[14] That is true of an offence under s 123 of the Act. Thus, it is not necessary to prove that the accused person knew the legal standard and intended to breach the order but, in my view, that is a different question as to whether he or she intended to produce a particular consequence in fact.

61 Here, the relevant conduct or omission is behaviour that produces an effect. The accused person need not know that the conduct is productive of legal consequences such as amounting to a contravention of s 123 of the Act. But the person must intend to commit an act that has the physical or emotional consequences which form part of the offending conduct.

62 Thus in the present case it was necessary for the prosecution to prove that the accused sent the messages and did so with the intent to torment, intimidate, harass or be offensive to the recipient.

63 The second question concerns the reasoning adopted by the magistrate. On one reading of her reasons, the learned magistrate addressed the question whether the respondent intended to breach the order. That may suggest a requirement to prove that the respondent knew the terms of the order and intended to breach it. As already noted, that is not an element of the charge that the prosecution was required to prove.

64 Ultimately, I am satisfied that the magistrate did not err in that way. Read fairly and as a whole, the magistrate directed herself to whether there had been a breach of the order as alleged. I take that to be a reference to whether the respondent had intended to harass, torment, intimidate or be offensive towards the protected family member. The magistrate referred to the evidence of the respondent, including in his record of interview, which was directed to the purpose or intent of his communications. It was not directed to whether he had the intervention order in mind. That was the correct approach.

[2] Police (SA) v Beukes (2011) 205 A Crim R 406; [2011] SASC 9 ('Beukes'); Director of Public Prosecutions v Cope (a pseudonym) [2021] VMC 014 ('Cope').

[3] Clubb v Edwards; Preston v Avery (2019) 267 CLR 171; [2019] HCA 11 ('Clubb').

[4] For example intentionally damaging property, see the Act, s 5(2)(c).

[5] Citing Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5076 (Robert Clark, Attorney-General); Explanatory Memorandum, Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012, cls 9, 11.

[6] Domestic and Family Violence Act 2007 (NT) s 123(3)

[7] (1985) 157 CLR 523; [1985] HCA 43 ('He Kaw Teh').

[9] (1962) CLR 381; [1962] HCA 23.

[11] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 570; [1985] HCA 43 .

[13] Clubb [2019] HCA 11; (2019) 267 CLR 171, 255 [246]; [2019] HCA 11.

[14] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 572 (Brennan J); [1985] HCA 43; Leask v Commonwealth [1996] HCA 29; (1996) 187 CLR 579, 598 (Dawson J); [1996] HCA 29; Question Of Law Reserved (No.2 of 1998) [1998] SASC 6612; (1998) 70 SASR 502, 509 (Doyle CJ).