DPP v Cormick [2023] VSCA 186

Thus, I agree with the majority, but for different reasons, that leave to appeal should be granted but the appeal should be dismissed.

Court of Appeal (Vic)|2023-08-15|Before: Emerton P, Osborn JA

For the reasons that that I have stated, like the primary judge, I consider that the text of the statute does not compel the construction advanced by the Director. In that circumstance, it is well settled that a construction 'which appears irrational or unjust' is to be avoided where the statutory text does not require that construction.[62] A construction which calls for a specific intention to cause some specified form of family violence would avoid that consequence. In Legal Services Board v Gillespie-Jones, the High Court made the following observation:

Fundamentally, the Board seeks to impute to the legislature an intention which is neither reasonable nor rational. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, it was said that when a judge assigns labels such as 'absurd' or 'irrational', he or she is assigning a ground for concluding that the legislature could not have intended a statute to operate in a particular way, and that an alternative interpretation is to be preferred. This is such a case. It is preferable to adopt a construction that will avoid a consequence which appears irrational or unjust.[63]

Thus, I agree with the majority, but for different reasons, that leave to appeal should be granted but the appeal should be dismissed.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of names.

[2] DPP v Cormick [2022] VSC 786 ('Reasons').

[6] Ibid s 57. See full text of s 57 set out at [90] below.

[7] Mental harm is defined to include psychological harm and suicidal thoughts: ibid s 123A(1).

[9] Relying on Police (SA) v Beukes (2011) 205 A Crim R 406; [2011] SASC 9.

[10] Relying on He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 ('He Kaw Teh'); DPP v Cope (a pseudonym) [2021] VMC 014.

[11] The magistrate also made an order directing the Chief Commissioner of Victoria Police to pay the respondent's costs (in an amount to be agreed).

[13] Police (SA) v Beukes (2011) 205 A Crim R 406; [2011] SASC 9; DPP v Cope (a pseudonym) [2021] VMC 014.

[14] Section 272(1) provides that 'a party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding'.

[16] Relying on Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11.

[23] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 569-70 quoted in Reasons, [42].

[27] R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 386-7.

[36] Reasons, [62]. The judge noted that it was not necessary for the accused person to know that the conduct is productive of legal consequences (e.g. amounting to an offence under s 123 of the Act): Reasons, [61].

[45] [2019] HCA 11; (2019) 267 CLR 171, 255 [246]; [2019] HCA 11. See also R v Marijancevic [2009] VSCA 135; (2009) 22 VR 576, 583 [32] (Kellam JA and Vickery AJA, Dodds-Streeton JA agreeing at 594 [77]); [2009] VSCA 135.

[46] CTM v The Queen (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ); [2008] HCA 25 cited in BDO v The Queen (2023) 97 ALJR 377, 381 [17] (Kiefel CJ, Gordon, Steward, Gleeson and Jagot JJ); [2023] HCA 16; Stanojlovic v DPP [2018] VSCA 152, [22(g)] (Beach, McLeish and Niall JJA).

[47] CTM v The Queen (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

[53] Victoria, Parliamentary Debates, Legislative Council, 29 November 2012, 5347 (Gordon Rich-Phillips, Assistant Treasurer).

[54] Form 1A, being the required form of written explanation of interim family violence order under r 11.02 of the Magistrates Court (Family Violence Protection Rules) 2018, relevantly states:

1. An interim order is a temporary family violence intervention order made by the Magistrates' Court or the Children's Court to protect a person from family violence until the court can decide whether to make a final order. An interim order prevents a respondent from behaving in certain ways, or requires the respondent to do certain things, stated on the order.

2. An interim order is a civil order, and making an interim order does not necessarily mean that an offence has been committed. However contravention of an interim order is an offence punishable by imprisonment or a fine or both. See item 8.

What happens if the respondent disobeys an interim order?

7. The respondent must obey all of the conditions listed in the order at all times.

8. If the respondent disobeys or 'breaches' a condition in the order, this means the respondent has 'contravened' the order. In Victoria, a contravention of an interim order is an offence punishable by 2 years imprisonment or a fine of 240 penalty units or both. In some circumstances, a higher penalty of 5 years imprisonment or a fine of 600 penalty units** or both may apply. For example, where -

(a) the respondent contravenes the order 3 or more times within a 28‑day period; or

(b) the respondent contravenes the order intending to cause harm or fear for safety, or knowing that the conduct will probably cause harm or fear for safety.

[55] See [21] above.

[56] Level 7 fine (240 penalty units maximum).

[58] Ibid s 5(1) (family violence is behaviour by a person towards a family member if that behaviour, inter alia, is emotionally or psychologically abusive).

[59] Ibid s 7 (emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person).

[61] It is not technically a defence; once raised it is a matter for the prosecution to negate. If honest and reasonable mistake is not excluded in a statutory offence, it will provide an excuse for what would otherwise be an offence, although the evidentiary burden will fall upon the defendant. However, the prosecution still bears the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of the relevant facts: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 582 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ); [1992] HCA 14.

[62] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 217 [45] (French CJ, Kiefel, Bell and Keane JJ); [2015] HCA 15.

[63] Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493, 509 [48] (citations omitted) (French CJ, Hayne, Crennan and Kiefel JJ); [2013] HCA 35.

Violence Protection Act 2008

Domestic Violence Order Scheme Act 2016

Youth and Families Act 2005

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