//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 1132
Supreme Court of NSW
2026-09-18
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Jenson [2026] NSWSC 1132
Hearing dates: 11 September 2026
Date of orders: 18 September 2026
Decision date: 18 September 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Appeal allowed.
(2) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, set aside the order of Magistrate Wilson made on 17 November 2025 at Orange Local Court dismissing the charge H85758443/1 for the offence of Contravene prohibition/restriction in an apprehended violence order – domestic violence offence contrary to s 14(1) of Crimes (Domestic and Personal Violence) Act 2007.
(3) Remit the matter to the Orange Local Court to be dealt with according to law.
Catchwords: CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — where ADVO provides respondent must not “harass” protected person — knowledge and intent in respect of prohibition on behaviour that has a proscribed character — whether prosecution must prove that a defendant knows or intends that their conduct amounts to harassment STATUTORY INTERPRETATION — meaning of “harass” in ss 7 and 36(b) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) and in ADVO — mental element in s 14(1) of Act — whether Act requires only that defendant intends their conduct and has knowledge or intention as to alleged circumstances or effect of conduct, or whether defendant must know or intend that their conduct amounts to “harassing” the protected person
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), Part 15A
Crimes (Appeal and Review) Act 2001 (NSW), s 56(1)(c), 59
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 8, 9, 10, 13(1), 14, 35, 36
Cases Cited: Application by Scott Gibson under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577
CD v Commonwealth (2025) 99 ALJR 1388; [2025] HCA 37
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Farm Transparency v NSW (2022) 277 CLR 537; [2022] HCA 23
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101
Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
Productivity Partners Pty Ltd v ACCC (2024) 281 CLR 338; [2024] HCA 27
R v Turnbull (1943) 44 SR (NSW) 108
Rock v Henderson (No 2) (2025) 117 NSWLR 1; [2025] NSWCA 47
Rural Press Ltd v ACCC (2003) 216 CLR 53; [2003] HCA 75
Ryan v The Queen (1967) 121 CLR 205; [1967] ALR 577
Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188
Veness v Hodge [2015] NSWCA 20
Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355
Texts Cited: Crimes (Domestic and Personal Violence) Bill 2007, Second Reading Speech (Legislative Assembly), 29 November 2007
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (Appellant)
Taz Jenson (Respondent)
Representation: Counsel:
C Mitchell (Appellant)
I Nash (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Aboriginal Legal Service (NSW/ACT) (Respondent)
File Number(s): 2026/00097002
Publication restriction: Nil
This is an appeal by the Director of Public Prosecutions (the ‘Director’) on a question of law pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). The respondent was acquitted of a charge of knowingly contravening a prohibition or restriction in an apprehended domestic violence order (‘ADVO’) under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the ‘CDPV Act’). The prohibition at issue was that the respondent must not “harass” the protected person.
The question raised in this appeal is:
For the offence of contravening a prohibition in an apprehended domestic violence order (‘ADVO’) pursuant to s 14(1) of the CDPV Act, is the prosecution required to prove that a defendant knows or intends that their conduct breach the terms of the ADVO?
For the reasons that follow, the answer is no. The prosecution must prove a defendant’s intentional conduct and must prove that the defendant knows the relevant circumstances on which the prosecution relies, which will typically be the known or intended effect of the conduct, together with the fact of the ADVO and its terms. In the ordinary case where the Local Court is the tribunal of fact as well as law, the Court should examine the intended conduct and its known or intended effect, and determine whether that amounts to “harassing” the protected person (or amounts to contravening some other prohibition or restriction). If so, and if the defendant is proved to have knowledge of the ADVO itself, the offence will be established.
The word “harass” is undefined and takes its ordinary English meaning. As a matter of ordinary English, a defendant may “harass” a protected person by making persistent unwelcome contact or persistently disturbing the protected person – at least if this occurs so frequently or in such circumstances that the Court is satisfied it amounts to “harassment”. This is not the only way in which a protected person may be “harassed”, but it is the kind of harassment at issue in the present case. If a defendant knows or intends that they are making the persistent unwelcome contact or that they are disturbing the protected person on all the occasions proved, then that may amount to “knowingly” harassing the protected person, regardless of (a) whether the defendant has some other motive for repeatedly contacting or repeatedly disturbing the protected person, (b) whether the defendant appreciates that the conduct will be characterised as “harassing”, and (c) whether the defendant subjectively intends to harass the protected person or to breach the ADVO.
On 4 October 2023, the Local Court made an apprehended domestic violence order against the respondent to protect a woman with whom the respondent had until recently been in a long term relationship. As varied on 19 December 2024, the ADVO was to remain in force until 3 October 2025. Consistent with s 36 of the CDPV Act, the ADVO, among other things, provided that the respondent must not “stalk, harass or intimidate” the complainant. The respondent was present in court when the order was made.
It was an agreed fact that the respondent called the complainant 61 times between 31 August 2025 and 13 September 2025 as follows:
- Once on 31/08/2025
- 10 times on 01/09/2025
- 6 times on 02/09/2025
- Twice on 05/09/2025
- Twice on 06/09/2025
- Twice on 07/09/2025
- Once on 08/09/2025
- 4 times on 09/09/2025
- 5 times on 10/09/2025
- 16 times on 11/09/2025
- 11 times on 12/09/2025
- Once on 13/09/2025
The prosecution case was that the respondent also did the following during the same period, which formed part of the conduct amounting to a breach of the ADVO:
sending flowers;
depositing $5 in the complainant’s bank account with a message saying “sorry can you call me”;
calling at least one of the complainant’s friends and asking her to tell the complainant to call the respondent.
It is (and will be on remitter) a matter for the Local Court whether this conduct amounted to harassment.
When he was interviewed by police, the respondent admitted to calling the complainant many times (although when the number of calls on particular days was put to him, he said he did not think it was that much), admitted sending flowers and making the deposit, and admitted telephoning the complainant’s friends. The respondent said this was because he believed the complainant was at risk, he was concerned about her wellbeing and – so far as the $5 was concerned – he was transferring money to support her. (The respondent also made specific allegations about the complainant, which might have reflected genuine concern for her wellbeing, but which might also be construed as an attack on the complainant’s character or a suggestion that the complainant was unstable and unreliable. It is neither necessary nor appropriate to ventilate those allegations in this appeal.)
The complainant on 13 September 2025 picked up the respondent from Orange, NSW, and they spent a few days together, but they had a further argument on 18 September 2025. The complainant alleged that respondent became aggressive, shouting in her face, and said, “I’m going to make your life hell”.
The couple was stopped by police while the complainant was driving the respondent back to Orange because of unrelated traffic offences. They travelled to Orange police station, where they were both interviewed, including in relation to the respondent’s conduct which became the subject of the charges. During the interview, the respondent and the interviewing officer had the following exchange:
SC Grabham: … So, going back to your AVO, that’s enforceable at the moment. Condition B, you cannot stalk, harass or intimidate her. Would you consider that harassment? Trying to call her 12 times a day?
Respondent: Yeah.
SC Grabham: So you’ve – you’re –
Respondent: - but now after today, I’m happy to have no contact.
SC Grabham: You’re breaching your AVO like what’s – it’s – that’s a – it’s a condition –
Respondent: - but I didn’t … I wasn’t thinking …. But I wasn’t thinking at the time. Like –
SC Grabham: - but that’s, that’s –
Respondent: I was thinking more about her than about myself.
SC Grabham: But that’s not her fault. The fact that you weren’t thinking though, you’ve you’ve – you’ve blatantly disregarded your AVO and the condition that says you cannot harass her and have continued to call her multiple times a day for a week because she didn’t pick up.
Respondent: But – in hindsight, yeah, okay, I did that …
The respondent also said later in the interview, “I didn’t think, officer. My ADD – my ADD. I don’t think before I do … It’s a mental thing.”
The respondent was charged in the Local Court with one count of stalk or intimidate in contravention of s 13(1) of the CDPV Act (stalk or intimidate intending to cause fear of physical or mental harm, relating to the threat on 18 September 2025) and s 14(1) (knowingly contravene prohibition in an AVO, relating to the repeated phone calls and the threat).
During argument before the Local Court Magistrate (as his Honour Judge Wilson then was, referred to in these reasons as the primary judge), the respondent’s solicitor characterised the respondent’s apparent recognition that his conduct was or might be harassment as follows:
In relation to the police putting to him whether that conduct would amount to harassment, he says “In hindsight yeah okay I did that”. The prosecution cannot prove that he understood that that would amount to harassment at the time of the calls. He makes that I wouldn’t even phrase it as a concession perhaps an understanding once the police officer has explained to him that perhaps that conduct could’ve been perceived by her as harassment.
He reflects an understanding that yes perhaps in hindsight that would amount to harassment.
Later in the argument, when the primary judge indicated a view that the respondent had admitted that his conduct amounted to harassment, the respondent’s solicitor said, “[i]n hindsight. That doesn’t prove knowledge at the time the calls were made and at the time the conduct was carried out.”
The primary judge, in his reasons, observed that the respondent “in hindsight admitted that the threats and his conduct amounted to harassment. Whereas at all times he states his attempts to contact her were because of his ongoing concerns with respect to her welfare.”
The primary judge dismissed the s 13(1) charge because he considered that there was a reasonable possibility that the respondent’s version of events might be true. I infer that the primary judge recognised that this means the prosecution could not prove beyond reasonable doubt, at least, the intention element of s 13(1), that is, the intention of causing the complainant fear of physical or mental harm. There is no appeal from this decision.
His Honour’s reasoning in relation to s 14(1) was as follows:
[W]ith respect to the offence under s 14, it is submitted that at all times that the defendant was unaware of the contraventions at the time that he subsequently admitted could well have been contraventions of the AVO. He was fully aware that the AVO was in place no doubt when speaking with police. As to whether or not he knew what he was doing was a contravention of the orders made in some degree is questionable and arguable as to whether or not he knew what he was doing was an offence.
With respect to the evidence overall and finding in favour of the defendant in relation to the stalk intimidation [charge] I am minded to accept that at the time of all of this goings on between the two over the period of time that he did not or did not realise at the time that what he was doing was a contravention of the orders that were in place by the Court.
AND … HE IS FOUND NOT GUILTY AND THAT CHARGE IS DISMISSED.
It was common ground that, when the primary judge accepted that the respondent “did not realise at the time that what he was doing was a contravention”, that should be understood as the primary judge accepting that the respondent did not realise at the time that his conduct amounted to “harassing” the complainant. The Director submits there is no difference, in the circumstances of this case, between the respondent realising he was harassing the complainant and the respondent realising he was contravening the ADVO. There was no issue that the respondent knew of the existence of the ADVO and knew that it prohibited “harassing” the complainant. The question of law arises in this appeal because the respondent’s position is that it was necessary for the prosecution to prove that the respondent intended or knew that his conduct amounted to “harassing” the complainant.
The Director appeals the order dismissing this charge. The question of law is at [2] above. The respondent accepts that this raises a question of law alone and that this Court has jurisdiction under ss 56 and 59 of the Crimes (Appeal and Review) Act.
14 Offence of contravening apprehended violence order
(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty—Imprisonment for 2 years or 50 penalty units, or both.
(1A) A person is guilty of an offence under this subsection if the person knowingly contravenes a prohibition or restriction specified in an apprehended domestic violence order made against the person with the intention of causing the protected person—
(a) physical or mental harm, or
(b) to fear for the protected person’s safety or the safety of another person. Maximum penalty—imprisonment for 3 years or 100 penalty units, or both.
(1B) For subsection (1A)—
(a) a person intends to cause the protected person physical or mental harm, or the protected person to fear for the safety of the protected person or another person, if the person knows that the conduct is likely to cause the harm or fear, and
(b) the prosecution is not required to prove that the person actually caused the protected person physical or mental harm or the protected person to fear for the protected person’s safety or the safety of another person.
(1C) A person is guilty of an offence under this subsection if—
(a) the person knowingly contravenes a prohibition or restriction specified in an apprehended domestic violence order made against the person, and
(b) on at least 2 other occasions within a period of 28 days immediately before the contravention, the person knowingly contravened a prohibition or restriction specified in—
(i) an apprehended domestic violence order in relation to the same protected person, or
(ii) the same apprehended domestic violence order, whether or not in relation to the same protected person, or
(iii) an apprehended domestic violence order arising from the same application under Part 10, whether or not in relation to the same protected person, and
(c) a reasonable person would consider the conduct referred to in paragraphs (a) and (b) would be likely, in all the circumstances, to cause the protected person physical or mental harm, or the protected person to fear for the safety of the protected person or another person, whether or not the harm or fear was in fact caused.
Maximum penalty—imprisonment for 5 years or 150 penalty units, or both.
(1D) If, on a prosecution of a person for an offence under subsection (1A), the court or jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1)—
(a) the court or jury may acquit the person of the offence under subsection (1A) and find the person guilty of an offence under subsection (1), and
(b) the person is liable to punishment accordingly.
(1E) If, on a prosecution of a person for an offence under subsection (1C), the court or jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (1A)—
(a) the court or jury may acquit the person of the offence under subsection (1C) and find the person guilty of an offence under subsection (1) or (1A), and
(b) the person is liable to punishment accordingly.
Note—
This section does not affect the common law in relation to double jeopardy.
(2) A person is not guilty of an offence against subsection (1), (1A) or (1C) unless—
(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
(b) in any other case, the person was served with a copy of the apprehended violence order.
(3) A person is not guilty of an offence against subsection (1), (1A) or (1C) if the contravention of the prohibition or restriction concerned—
(a) was necessary in order to attend mediation under section 21, or
(b) was done in compliance with the terms of a property recovery order.
(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1), (1A) or (1C) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.
(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1), (1A) or (1C) if the person is a protected person under the order concerned.
(8) A police officer is to make a written record of the reasons for—
(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1), (1A), (1C) or (9) (whether or not the person is arrested), or
(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1), (1A), (1C) or (9),
if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.
(9) A person who attempts to commit an offence against subsection (1), (1A) or (1C) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
Note.
The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.
The prohibition in the ADVO that the respondent must not “harass” the complainant reflects language in the statute.
Section 35(1) provides for the Court, when making an AVO, to impose “prohibitions or restrictions on the behaviour of the defendant”. Without limiting the generality of s 35(1), s 35(2) provides for particular prohibitions or restrictions that may be imposed, including at s 35(1)(f): “prohibiting or restricting specified behaviour by the defendant that might affect the protected person.”
Section 36 provides as follows:
36 Prohibitions taken to be specified in every apprehended violence order
Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following—
(a) assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship,
(b) stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship,
(c) intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.
Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another – a definition that does not include a result – two states of mind would normally be involved: voluntariness of movement and an intention to strike another – and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result – causing bodily harm – the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.
General intent and specific intent are also 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.
His Honour explained that both general and specific intent may be established by knowledge. The former is established by knowledge of “the circumstances which give the act its character”. The latter is established by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. Both parties embraced his Honour’s observation that “[v]oluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied.”
It is appropriate to emphasise Justice Brennan’s observation that general intent is “an intent to do an act of the character prescribed by the statute”. His Honour said that this may be established by knowledge of the circumstances which give the act its character. The way his Honour put it at 572, after citing the statement of Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108 at 109, was that “the requirement of knowledge relates not only to the facts which give character to the physical act involved in the commission of the offence but also to the circumstances which attend its occurrence and make it criminal.” His Honour did not suggest that the accused must also know that the statutory label will be attached to that act in those circumstances. To take his Honour’s example of a hypothetical offence of “striking” another person (see [27] above), an accused must intend to move their fist and must know that the other person is or is likely to be in the path of the movement. There is no suggestion that the accused must appreciate that this act, in that circumstance, will attract the label “striking”. A perverse or idiosyncratic conception of “striking” will never be a defence, nor will it ever be a defence that they did not realise that their act, in that circumstance, would attract that label.
In Farm Transparency v NSW (2022) 277 CLR 537; [2022] HCA 23 at [24], Kiefel CJ and Keane J made the following observations, reflecting the distinction between the physical act and the circumstances which attend that act (references omitted):
It is well settled that mens rea, or a knowledge of the wrongfulness of an act, is an essential element in every statutory offence unless it is expressly or by necessary implication excluded by the statute. The law makes two presumptions which are implied as elements in a statutory offence. The first is that the person does the physical act defined in the offence voluntarily and with the intention of doing the act. The second, which is here relevant, relates to the external elements of a statutory offence, being the circumstances which attend the doing of the physical act. The law implies as an element of the offence that at the time when the person does the physical act involved, they know the circumstance which makes the doing of that act an offence or do not believe honestly and on reasonable grounds that the circumstances are such as to make the doing of the act innocent.
Their Honours recognised that the accused must know the circumstance which makes the doing of the act an offence, but their Honours did not suggest that the accused must appreciate that this circumstance engages the statute.
This was uncontentious in argument before me so far as it concerned any question of law. Ignorance of the law is no defence: Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30. The respondent took the Court to the reasons of Gleeson CJ and Kirby J in that decision at [7]. The regulation in question prohibited the holder of a commercial fishing licence from fishing for rock lobsters in an area defined in a Table to the regulation. As their Honours remarked, the respondent made no mistake, and had no erroneous belief, as to any of the elements of the offence – he knew he held a commercial fishing licence, he knew he was fishing for rock lobsters and he knew where he was fishing. His ignorance or mistake about the existence of a regulation prohibiting this conduct provided no defence.
As the respondent submitted, the present case is not necessarily answered by the distinction between a mistake of law and a mistake of fact. An expression like “harass” in the CDPV Act and in the ADVO has its ordinary English meaning: Veness v Hodge [2015] NSWCA 20 at [11] (Emmett JA, Barrett JA and Adamson J agreeing) (‘Veness v Hodge’). Generally speaking, the ordinary meaning of a word is a question of fact. The question whether facts fully found fall within a statutory enactment properly construed is a question of law. But when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, then the question as to whether or not the facts do fall within those words is a question of fact: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 396-397. Where the question is whether particular conduct in particular circumstances amounts to harassing a protected person under an AVO, the line between a question of fact and a question of law might not be straightforward: see, eg, the observations of Edelman J in CD v Commonwealth (2025) 99 ALJR 1388; [2025] HCA 37 at [61].
I am not persuaded that the mental element for breach of s 14(1) of the CDPV Act turns on this distinction between fact and law. The High Court recognised in Productivity Partners P**ty L**td v ACCC (2024) 281 CLR 338; [2024] HCA 27 (‘Productivity Partners’) that there are areas, including where a statute uses “knowingly” in connection with a contravention, where the relevant distinction is between the essential facts, which must be known or intended, and the characterisation of those facts, which does not need to be appreciated by the offender. That case was concerned with accessorial liability for unconscionable conduct (by being “knowingly concerned in” the contravention). As Gageler CJ and Jagot J put it at [82]:
The relevant distinction is not between facts and the law. Nor is it between objective facts and evaluative facts. It is between the essential matters constituting the contravention (be they facts, circumstances, or states of mind) and the character, quality, nature or status of those matters of the purpose of the characterisation of the conduct the statute requires. Accessorial liability requires knowledge of the former but not the latter.
[M]ust have knowledge of the “essential facts” that constitute the contravention by the principal but need not know that the principal’s conduct constitutes unconscionable conduct or otherwise have knowledge of the legal characterisation or complexion of those essential facts, including that the conduct is contrary to a particular standard that embodies what is meant by unconscionable.
His Honour raised several other contexts in which a similar distinction arises. His Honour observed at [352] that, in Rural Press Ltd v ACCC (2003) 216 CLR 53; [2003] HCA 75 (‘Rural Press’) (accessorial liability for conduct engaged in for the purpose of or with the likely effect of substantially lessening competition), it was held to be necessary to know the “essential facts” but not that those facts were “capable of characterisation in the language of the statute”.
At [353], Beech-Jones J dealt with the approach to “dishonesty” in Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 (‘Peters’). Where “dishonesty” is not used in a special sense, it is established by first demonstrating that a person had some particular knowledge, belief or intent at the time they committed the relevant act and then demonstrating that engaging in the act with that state of mind is dishonest by the standards of ordinary decent people. The question of whether the conduct in the circumstances was contrary to those standards is not a question of fact but a question of characterisation. As such, it is not a matter for evidence, but it is an issue to be left to the jury (citing Peters at [18], [28]-[29]).
All of the judges addressed the treatment in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 of the offence of driving in a manner dangerous to the public: see at [76]-[77] (Gageler CJ and Jagot J), [149] (Gordon J, Steward J agreeing at [308]), [202]-[203], [268] (Edelman J), [354] (Beech-Jones J, Gleeson J agreeing at [311]). The accused must appreciate the facts or circumstances which make the driving dangerous – including, relevantly to that case, that the brakes were defective and could thereby fail, posing a real risk of harm to the public beyond that ordinarily associated with driving. It is not necessary to prove that the accused subjectively considered this risk to be “dangerous”: see especially Edelman J at [202] and [268]. While Beech-Jones J at [354] recognised that many of the dangerous driving cases state or imply that the accused must know that the driving was “dangerous” or represented a “danger”, his Honour stressed that the operative principle was articulated in Rural Press. This is clearly a reference to his Honour’s consideration of Rural Press at [352], the distinction between knowing the essential facts, and knowing that those facts are capable of characterisation in the language of the statute.
While this distinction is well-known to the law, it is nevertheless a question of statutory construction whether it is to be discerned in s 14(1) of the CDPV Act, or how it operates in that statutory context.
There are a number of features of the CDPV Act which support giving effect to this distinction in s 14(1).
In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [20], Spigelman CJ said of the predecessor to the CDPV Act, being Part 15A of the Crimes Act 1900 (NSW), Mason P and Beazley JA agreeing:
The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.
This observation antedates the enactment of the CDPV Act in 2007. It may be taken to be part of the legal context in which the CDPV Act was enacted.
The respondent took the Court to the second reading speech in the Legislative Assembly when the apprehended violence order scheme was first introduced in Part 15A of the Crimes Act in 1982 (Hansard, Legislative Assembly, 9 November 1982 at 2366-2368). That second reading speech reinforced a conclusion that the regime was concerned not only with facilitating the making of apprehended violence orders but facilitating their enforcement (noting that enforcement proceedings under the existing s 547 of the Family Law Act 197**5 (Cth) were “notoriously ineffective”).
There is every reason that the last sentence of the passage from John Fairfax cited above should be brought to bear on the provisions of the CDPV Act which provide for the enforcement of orders, including s 14(1), as well as those parts of the scheme that deal with the making of orders. Consistent with this, in Rock v Henderson (No 2) (2025) 117 NSWLR 1; [2025] NSWCA 47 at [136], after citing this passage, the Court of Appeal observed that “[t]he purpose of the Act is protective even though many of its consequences may appear punitive to defendants”. This is not to sweep away the well-established presumption in relation to statutory offences, enshrined in cases like He Kaw Teh. The Director accepts that s 14 has a mens rea element. The more nuanced question is whether that element requires that the defendant must know or intend that their conduct will be characterised in a way that offends the AVO. That should be informed, in my view, by the purpose of the statute – discerned in both the text and context – which includes that there be an effective enforcement mechanism to protect persons from specified behaviours including harassment.
With particular regard to protection from intimidation, harassment and stalking, ss 9(2)(a) and 10(2)(a) warrant attention. Section 9 sets out the objects of the CDPV Act in relation to domestic violence and s 10 sets out the objects in relation to personal violence (ie, outside a domestic relationship). While the objects in the two provisions are not identical, they are both concerned with the safety and protection of persons who experience violence. Sections 9(2)(a) and 10(2)(a) both state that the CDPV Act aims to achieve the objects by, among other things, “empowering courts to make [ADVOs/APVOs] to protect people from [domestic violence/violence], intimidation (including harassment) and stalking”. Clearly, an object of making AVOs is to protect people from what Parliament has described as “intimidation”, “harassment” or “stalking”. Plainly, the object of the order is to protect people from what the statute describes as “intimidation”, “harassment” or “stalking”, not merely from idiosyncratic perceptions of defendants about whether conduct amounts to “intimidation”, “harassment” or “stalking”.
As to definitions in the statute, Parliament has taken a different approach to each of the three expressions, “intimidation”, “harassing” and “stalking”.
“Intimidation” is defined exhaustively in s 7:
(1) For the purposes of this Act, intimidation of a person means—
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Example of conduct that may amount to harassment of a person—
(1) Intentionally disclosing or threatening to disclose any of the following about a person without the person’s consent, known as “outing”—
(a) the person’s sexual orientation,
(b) the person’s gender history,
(c) that the person has a variation of sex characteristics,
(d) that the person lives with HIV,
(e) that the person is, or has been, a sex worker.
(2) For subsection (1)(b) of this example, gender history means the sex recorded at birth for the person is different to the sex the person identifies with, lives in or seeks to live in, whether or not the person’s record of sex is altered under—
(a) the Births, Deaths and Marriages Registration Act 1995, Part 5A, or
(b) the corresponding provisions of a law of another State or Territory or a jurisdiction outside Australia.
Note.
An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) conduct that causes a reasonable apprehension of—
(i) injury to the person or to another person with whom the person has a domestic relationship, or
(ii) violence to any person, or
(iii) damage to property, or
(iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or
(d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or
(e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage).
(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
Several aspects of s 7 warrant attention:
First, since “intimidate” is exhaustively defined, the statute does not require the Court to ask whether conduct should be characterised, as a matter of ordinary English, as “intimidation”.
Second, the statutory concept of “intimidation” encompasses “harassment” and “molestation”.
Third, s 7(1)(a) provides an example of conduct that may amount to harassment, and further indicates that cyberbullying is among the things that may amount to harassment or molestation. The conduct given in the example, (“outing” conduct) has a specific intention requirement, but cyberbullying does not have an intention requirement, nor do the other subparagraphs of the definition of “intimidate”. The Court of Appeal in Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188 at [60] expressly held that “harassment” does not carry with it a requirement of an intention to harass.
Fourth, “harassment” is otherwise undefined in the CDPV Act.
Fifth, ss 7(1)(a), (d) and (e), and s 7(2) all refer to conduct “amount[ing] to” a statutory concept. Section 7(2) is particularly instructive. It clearly indicates a statutory expectation that it will be the court which determines whether the defendant’s conduct amounts to intimidation (which includes conduct amounting to “harassment”) and will be informed by any pattern of violence in the defendant’s behaviour.
Section 8 provides as follows in relation to “stalking”:
(1) In this Act, stalking includes the following—
(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
(b1) the monitoring or tracking of a person’s activities, communications or movements—
(i) whether by using technology or in another way, and
(ii) whether or not the monitoring or tracking involves contacting or otherwise approaching the person,
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
The definition is inclusive. Parliament extends the notion of “stalking” to ensure that it clearly captures the conduct in subparagraphs 8(1)(a) to (c), but it also leaves work for the concept of “stalking” as a matter of ordinary English.
Section 8(2) also indicates a statutory expectation that it will be a court which determines whether the defendant’s conduct amounts to “stalking”.
Section 14(1) itself uses the expression of “knowingly”, which appears to be in contradistinction to other provisions, which use language of “intention” where a specific intent element is introduced: see, eg, ss 13(1) and 14(1A). Section 14(1B) provides further express guidance about the specific intention requirement in s 14(1A) (as does s 13(2) in relation to s 13(1)).
The respondent rightly draws attention to the observations of Gibbs CJ at 528 and Dawson J at 594 in He Kaw Teh that the addition of “knowingly” is one of the ways in which Parliament indicates that a statutory offence has a mens rea element rather than being an offence of strict liability. That may be accepted, but there is no dispute in this case that s 14(1) has a mens rea element. It is plainly not an offence of strict liability. The dispute is whether s 14(1) requires the defendant to intend their conduct in the known or intended circumstances, or whether the section also requires the defendant to know that such conduct in such circumstances should be characterised as (or “amounts to”) harassing the protected person.
The language of ss 35 and 36 further support a conclusion that the prosecution only needs to prove the former – that is, that the defendant intended their conduct in the known or intended circumstances in which the conduct took place. As indicated above, s 35 provides for the Court to impose prohibitions including on “specified behaviour” and s 36(a) to (c) has three categories of prohibition that are taken to be specified in every apprehended violence order. The third subparagraph has a specific mental element. The behaviour in s 36(c) is prohibited if it is intentional or reckless. If s 14(1) included a requirement that the defendant must appreciate that their conduct will be characterised in a way that engages the AVO, then it would produce the nonsensical result that the person must intend an outcome which is prohibited if they do it intentionally or recklessly.
The coherent way to read these provisions is that s 14(1) requires that the defendant intends their conduct and knows the circumstances which are relied upon by the prosecution to give that conduct its relevant character. It is a matter for the Local Court whether that conduct, in those circumstances, “amounts to” any of the behaviour which is prohibited in the AVO. (It is not necessary in this appeal to address which parts of that assessment involve questions of fact and which involve questions of law. That may no doubt loom larger (a) where a matter is before a jury or (b) where the question on appeal is whether an alleged error is one of fact, law or mixed fact and law.)
This conclusion, while discerned in the text of the CDPV Act, is consistent with obiter observations of the Court of Appeal in Smith v Blanch. At [62], the Court recognised that the notions of harassment and molestation involve conduct causing a particular effect. I return to this below in the context of what may amount to “harassment”. For present purposes, it suffices to observe that this effect will be part of the circumstances which attend the occurrence of the defendant’s conduct and, if known or intended, may make it criminal (to use the language Brennan J uses in He Kaw Teh at 572, see [30] above).
In Smith v Blanch at [63], their Honours recognised that the mental element for harassing or molesting “would be unusual and difficult to establish”:
It would require an applicant to establish that the defendant intended to act in a way which should be characterised as harassing or molesting, that is, troubling by repeated attacks or incursions, disturbing persistently, interfering with annoyingly or injuriously, or engaging in ongoing and unwanted behaviour of a pestering and interfering nature. These are evaluative characteristics. As the Attorney submitted, requiring proof of this could give rise to perverse outcomes if a defendant had idiosyncratic notions of what amounts to harassment or molestation.
In this paragraph, the Court appeared to recognise the distinction between particular conduct, and the characterisation of that conduct. It further recognised that it will often be difficult to prove a subjective intent to “harass” or “molest” someone, and that it produces perverse outcomes when a defendant has idiosyncratic notions of what amounts to harassment or molestation.
At [67], their Honours observed, specifically in respect of s 14:
Whether or not the non-intimidation condition had been breached would relevantly require consideration of whether the impugned conduct fell within the s 7 definition of intimidation … Contrary to the applicant’s contention, there is nothing surprising about a knowing contravention of such an order leading to criminal penalty irrespective of whether there was an intention to harass or molest.
I recognise that the Court’s dicta in relation to s 14 are obiter. The Court was concerned with the anterior question of whether concepts including “harassment” had an intention requirement which was relevant at the anterior stage of asking whether to make an AVO in the first place. The Court did not receive argument about how “knowingly” might be understood in the context of s 14(1). The focus in the present appeal should be – and has been – on the text of CDPV Act so far as it informs the proper construction of s 14(1).
I would add that the respondent accepted during argument that if the respondent had a mistaken belief that the ADVO did not apply because he misconstrued the terms of the order, that would be no defence. The same must be true if the respondent failed to appreciate the statutory definition of “intimidate” or the extended statutory definition of “stalking”. I regard this as further supporting the Director’s position. I do not think Parliament is likely to have intended criminal liability to turn on fine distinctions between an error of law and an error of characterisation, for example between a misconception as to the proper construction of an AVO (which it is accepted would be no defence, and which extends to the definitions of “intimidate” and “stalking”) and a misconception as to whether particular conduct in particular circumstances amounts to one of the prohibited behaviours (which the respondent says should provide a defence). It is more consistent with the protective purpose (and the other features of the statute addressed above) that Parliament intended the Local Court to examine the intentional conduct and the known circumstances (including any known or intended effect of the conduct) and then ask whether that amounts to “harassing” the protected person, or amounts to any other behaviour which has been prohibited in the AVO.
For completeness, I would add that I accept the respondent’s submission that Justice Yehia’s decision in Application by Scott Gibson under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 does not provide clear independent support for this conclusion. While her Honour said at [121] that “[t]he prosecution is not required to prove an intention to cause a complainant to feel harassed or intimidated”, there is a real risk of taking that statement out of context. Her Honour was dealing with an applicant who had been found to have contravened a prohibition in an AVO on “contacting” the protected person. The applicant appears to have argued that he could not breach the “no contact” prohibition unless he intended to cause the complainant to feel harassed or intimidated. In that context, her Honour may simply have been stating that a “no contact” prohibition is breached by intentionally contacting the protected person, without proving any further intent to cause feelings of harassment or intimidation. Nevertheless, there is nothing in her Honour’s reasoning which is inconsistent with the conclusion I have reached.
As indicated above, “harass” has its ordinary English meaning. In Smith v Blanch at [58], their Honours noted that the judge below in that case had adopted definitions of harassment, being “troubled by repeated attacks, incursions” or to “disturb persistently”. These glosses should not be permitted to replace the statutory text, and care must be taken not to place too heavy reliance on the definition of words in dictionaries: see, eg, Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]-[57] per Bell P. At most in the present context, such glosses might be useful as illustrations or elucidation of the ordinary English meaning (as the Court of Appeal recognised in Smith v Blanch at [62]-[63]), but should not be permitted to replace the operative text.
Importantly for present purposes, while “harassment” involves conduct that has an effect on the protected person, the respondent accepted that the effect does not require proving that the conduct produced particular feelings (such as distress) in the protected person. Both parties agreed that the focus for breach of s 14(1) must be on the conduct of the defendant and what the defendant knows and intends about that conduct. Nevertheless, “harassment” is not trivial behaviour. The mere fact that conduct is apt to be annoying is not necessarily enough, unless the conduct occurs with such a frequency or in such other circumstances that it warrants the stronger description of “harassment”.
One way in which one person may harass another is by disturbing them persistently. That may occur by repeated, uninvited contact, at least if it occurs often enough. A defendant may harass a protected person, regardless of whether they appreciate that their conduct is “harassing” the protected person and regardless of any perception the defendant may have that they are engaging in their conduct for what they perceive to be generous-spirited motives. As the Court of Appeal put it in Smith v Blanch at [68], s 7 is engaged by conduct which has the proscribed effect “even if undertaken by a defendant for a misguided or deluded reason of protecting or watching over the protected person”.
In the situation where the prosecution case rests on persistent, uninvited communications, the circumstance which may give a defendant’s conduct the character of “harassing” the protected person might simply be that the persistent contact or persistent communication is being received uninvited by the protected person. In that situation, it may suffice for the relevant mental element to prove that the defendant called the protected person’s phone number on however many occasions the defendant did so, knowing or intending that the protected person receive the many repeated uninvited communications. It is then a matter for the Court whether this should be characterised as (or “amounts to”) harassing the protected person. I express no view about whether the respondent’s conduct in this case was of that character. That will be a matter for the Local Court upon remitter.
In some cases, the known or intended circumstances might include a special sensitivity or vulnerability that the protected person has (such as a sensitivity to loud noises). Alternatively, a defendant may have been told that their conduct is unwelcome, unwanted or pestering. This is not to exclude the relevance of the identity of the target. The considerations for whether conduct amounts to “harassing” may be different depending on whether the conduct is directed towards an ex-domestic partner or, say, a police officer in the execution of their duty. These matters may all form part of the circumstances which inform whether the conduct amounts to harassment.
As is recognised by the elucidation of harassment and by the example of harassment by “outing” in s 7(1)(a), harassment may take many different forms. If the defendant intentionally discloses a protected person’s sexuality (or other status of the kind described in the example), knowing the person does not consent, then that may amount to harassment. This illustrates that a defendant may “harass” a protected person by their behaviour towards third parties. In this case, the prosecution relies on the behaviour of the respondent not only towards the complainant but also in contacting at least one of her friends. Whether that conduct, taken alongside all of the other conduct, amounts to harassment or some other breach of the AVO is not an issue on this appeal but may arise for consideration upon remitter.
The same approach should be taken for other behaviour which is prohibited in the AVO, such as stalking, intimidation or other kinds of behaviour that might be specified in the order pursuant to s 35(2)(f). In each case, the prosecution must prove that the defendant intended to engage in the conduct on which the prosecution relies and must prove the known or intended effect of that conduct, so far as the prosecution relies upon it. As the Director acknowledged, the prosecution must also prove the other mental element to breach of s 14(1), being that the defendant knew of the AVO and its terms, although that will generally be established by compliance with the precondition to liability in s 14(2), that is, the defendant must be present in court when the order is made or must be served with a copy of the AVO.
None of this requires proof that the defendant appreciated that their conduct was “harassing” the protected person, or that the defendant intended that their conduct should amount to “harassing” the protected person. To the extent that there is a question of how the AVO or the CDPV Act should be interpreted, that is a question for the court. If it is reasonably open to find that the intended conduct in the known or intended circumstances amounted to harassment, it may be a matter for the tribunal of fact to decide whether that conduct in those circumstances in fact amounted to the defendant “harassing” the protected person. In this case, the Local Court will be the tribunal of fact and law, so it is unnecessary to address further in this appeal precisely where the line is to be drawn between questions of fact and questions of law.
The appeal must be allowed and the matter remitted to the Local Court. I make the following orders:
Appeal allowed.
Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, set aside the order of Magistrate Wilson made on 17 November 2025 at Orange Local Court dismissing the charge H85758443/1 for the offence of Contravene prohibition/restriction in an apprehended violence order – domestic violence offence contrary to s 14(1) of Crimes (Domestic and Personal Violence) Act 2007.
Remit the matter to the Orange Local Court to be dealt with according to law.
**********
Director of Public Prosecutions (NSW)
Jenson
[1998] HCA 7
(2025) 99 ALJR 1388
(1996) 186 CLR 389
(2022) 277 CLR 537
(1985) 156 CLR 473
(1985) 157 CLR 523
(2005) 62 NSWLR 512
(2004) 218 CLR 493
(1998) 192 CLR 493
(2024) 281 CLR 338
(2025) 117 NSWLR 1
(2003) 216 CLR 53
(1967) 121 CLR 205
(2025) 118 NSWLR 70
(2020) 104 NSWLR 170