JL v Gale [2026] ACTSC 1

Catchwords: APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – breach of FVO – whether ADVO properly served – non-compliance with service requirements – non-compliance creates doubt about whether service occurred – service not proven beyond reasonable doubt – appeal upheld – verdicts of guilty set aside and verdicts of acquittal entered STATUTES – INTERPRETATION – s 77 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) – meaning of “police officer” – whether term includes non-NSW police officers – protective purpose of domestic violence legislative scheme – meaning of “police officer” not confined to officer of NSW Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 13B, ss 9, 77, 98ZT Family Violence Act 2016 (ACT), Pt 9, ss 43, 70C, 70E, 115, 117, 119, 124, 125, 139 Family Violence Regulation 2017 (ACT), reg 5(a) Interpretation Act 1987 (NSW), Sch 4, ss 5, 6, 12, 33 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 98ZT Legal Profession Act 1987 (NSW), s 80 Legislation Act 2001 (ACT), s 247 Local Court Rules 2009 (NSW), Pt 3, rr 4.1, 5.12 Magistrates Court Act 1930 (ACT), ss 208(1)(b), 214 Police Act 1990 (NSW), s 3 Cases Cited: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Commissioner of Stamps v Telegraph Investment Company (1995) 184 CLR 453 Cunningham v Cunningham [2012] NSWSC 849 D151 v New South Wales Crime Commission [2017] NSWCA 143; 94 NSWLR 738 DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 42; 103 NSWLR 692 Fox v Percy [2003] HCA 22; 214 CLR 118 Franks v Franks [2012] NSWCA 209 Grant v Carey [2023] ACTSC 105 John Fairfax Pty Ltd v Ryde Local Court [2005] NSWCA; 62 NSWLR 512 Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; 67 NSWLR 169 Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73 McFarlane v Van Eyle [2022] ACTCA 68 Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1 Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 Water Board v Moustakas (1994) 180 CLR 491 Texts Cited: Explanatory Note, Crimes (Domestic and Personal Violence) Bill 2007 NSW Legislative Assembly Second Reading Speech, Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 NSW Legislative Council Second Reading Speech, Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Parties: JL (Appellant) Mark Andrew Gale (Respondent) Representation: Counsel T Taylor (Appellant) M Howe (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions File Number: SCA 46 of 2023 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 18 August 2023 Court File Numbers: CAN 6934 of 2023 CAN 11233 of 2022 KELLY AJ: Introduction

1. This is an appeal against the decision of Magistrate Lawton (the Magistrate). On 18 August 2023, JL (the appellant, whose identity has been anonymised) was found guilty of two counts of breaching a Family Violence Order (FVO), contrary to s 43(2) of the Family Violence Act 2016 (ACT) (FV Act) (CC2023/6934 and CC2022/11233).

2. The argument on appeal was heard by Loukas-Karlsson J on 6 February 2024. The Chief Justice of the ACT Supreme Court has since reallocated the matter for determination by me with the consent of both parties.

3. The respondent to this appeal is the police informant, and for convenience I will refer to the respondent as the prosecution.

4. On 23 August 2023, the appellant was sentenced by the Magistrate to the rising of the court for both charges. The appellant was also in breach of a previous good behaviour order imposed on 11 September 2021, which also related to a contravention of an FVO (CC2021/9469). The Magistrate confirmed the breach and took no further action. There is no appeal against sentence.

5. The grounds of appeal relied on by the appellant in his notice of appeal are as follows: (i) The primary Magistrate made an error of law in finding that the Apprehended Domestic Violence Order made at Queanbeyan Local Court on 30 August 2021 had been personally served upon the appellant in accordance with section 43 of the Family Violence Act 2016 (ACT). (ii) The primary Magistrate erred in finding that the appellant had at the time of the offending been personally served with the Apprehended Domestic Violence Order made at Queanbeyan Local Court on 30 August 2021 and was therefore subject to its conditions. (iii) The primary Magistrate erred in admitting into evidence the Statement of Service dated 25 October 2021. (iv) The findings of guilt in respect of charge CC2022/6934 and CC2022/11233 should be set aside on the ground that they are are unreasonable, or cannot be supported, having regard to the evidence.

6. These grounds have been referred to as grounds 1-4 by the appellant. For the sake of consistency, I adopt that approach. Applicable law

Appeals from the Magistrates Court

7. The court has jurisdiction to hear this appeal under ss 208(1)(b) and 214 of the Magistrates Court Act 1930 (ACT). Such an appeal is heard by way of rehearing: McFarlane v Van Eyle [2022] ACTCA 68 at [18] (Mossop J) and [96] (Kennett J) (Van Eyle).

8. An appellant may succeed if it can be demonstrated that the verdict was unreasonable or not supported by the evidence: Van Eyle at [97]-[98] (Kennett J); Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [19] (Mossop, Baker and Abraham JJ) (Bakes). Nevertheless, it is now well-established that it is sufficient for the appellant to show that there is a material legal, factual, or discretionary error in the Magistrate’s decision: Bakes at [18]; Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37] (Baker J) (Eiffert); Grant v Carey [2023] ACTSC 105 at [8] (Loukas-Karlsson J).

9. If there is a material legal, factual or discretionary error, the appeal court will make its own findings: see Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] (Robinson Helicopter); see also Eiffert at [39]. In doing so, an appeal court must make proper allowance for the advantages enjoyed by the trial court and the “natural limitations” that exist in the case of any appeal court, including the disadvantage the appeal court has in evaluating the credibility of witnesses and the “feeling” of the case: Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], [27]. Further, it is well established that findings of fact of a trial judge should also not be interfered with unless the findings are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or if the findings are “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter at [43].

Relevant legislation

10. It is important at the outset to outline the relevant provisions of the FV Act. The first relevant provision is s 43, the offence of which the appellant was found guilty: 43 Offence—contravention of family violence order (1) This section applies to a person against whom a family violence order is made if the person— (a) was present when the family violence order was made; or (b) has been personally served in accordance with this Act with a copy of the family violence order. (2) The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order). Maximum penalty: 500 penalty units, imprisonment for 5 years or both. Note In deciding the sentence to be imposed on a person under this section, the Magistrates Court must consider the matters under the Crimes (Sentencing) Act 2005, s 33 (Sentencing—relevant considerations). (3) This section applies to conduct engaged in within the ACT as well as outside. … (Emphasis added.)

11. Self-evidently, the Apprehended Domestic Violence Order (ADVO) is made under NSW law and is not an ACT FVO. The relevant NSW legislation is the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). The FV Act has provisions to allow for an interstate order to be recognised and enforced in the ACT. The relevant provisions of Pt 9 of the FV Act are extracted below: 115 Definitions—pt 9 In this part: corresponding law means a law of another jurisdiction prescribed by regulation that contains provisions that substantially correspond with the provisions in this part. … interstate FVO— (a) means an order of another jurisdiction prescribed by regulation; but (b) does not include a registered foreign order. … participating jurisdiction means the following jurisdictions: (a) the ACT; (b) a jurisdiction in which a corresponding law is enacted. … 117 Meaning of properly notified—pt 9 (1) For this part, the making of a local FVO is properly notified under territory law if— (a) the respondent is present when the FVO is made; or (b) the FVO is served in accordance with division 4.4A (Service of documents). (2) The making of an interstate FVO is properly notified under the law of the jurisdiction in which it is made in the circumstances provided for by the corresponding law of that jurisdiction. … 119 Recognition of FVOs (1) Each of the following FVOs is a recognised FVO in the ACT: (a) a local FVO; (b) an interstate FVO made in a participating jurisdiction; … 124 Recognised FVOs and amendments are enforceable against respondent (1) A recognised FVO, or a recognised amendment to a recognised FVO, is enforceable against the respondent in the ACT. (2) A recognised FVO that is a local FVO becomes enforceable against the respondent in the ACT when the respondent is properly notified of the making of the FVO under territory law. (3) A recognised FVO that is a non-local FVO (other than a foreign order) becomes enforceable against a respondent in the ACT when the respondent is properly notified of the making of the FVO under the law of the jurisdiction in which the FVO was made. … 125 Contravention of enforceable recognised FVOs (1) A non-local FVO that is a recognised FVO and which is enforceable against a respondent in the ACT may be enforced in the ACT as if— (a) it were a local FVO; and (b) the respondent had been properly notified of the making of the FVO under t erritory law. … Issues in this appeal

12. It is not in dispute that the appellant was not present in Court at the time the ADVO was made. Counsel for the appellant did not challenge the Magistrate’s factual findings as to whether the appellant’s actions constituted “family violence”.

13. It was not in contention that this appeal must be allowed if I were not to be satisfied beyond reasonable doubt that the ADVO was in fact, properly served. To some extent, grounds 1 and 2 are therefore related. The starting point for discussion is that the prosecution has conceded on appeal that the Magistrate erred in relying on the FV Act when determining what constituted proper service.

14. Although the prosecution conceded that the Magistrate erred in relying on the FV Act when determining what constituted proper service, the prosecution nevertheless submitted that proper service under the NSW Act had been effected, notwithstanding the failure to comply with r 5.12(3) of the Local Court Rules 2009 (NSW) (Local Court Rules).

Grounds 1 and 2

15. As highlighted by the appellant in his written submissions, the Magistrate in his reasons first noted that the Queanbeyan ADVO is an “interstate order”, as defined under s 115 of the FV Act; see also reg 5(a) of the Family Violence Regulation 2017 (ACT). The Magistrate observed that the appellant’s submissions at first instance were “misconstrued by reference to service as required under [the CDPV Act]”, and that the only requirement for effective service under s 43 of the FV Act is that a person has been personally served in accordance with the FV Act, along with a copy of the FVO: FV Act, s 43(1)(b).

16. The Magistrate then proceeded to consider the service requirements of ss 70C and 70E of the FV Act. The Magistrate also considered s 247 of the Legislation Act 2001 (ACT) (Legislation Act), a provision that allows a document to be “served” by giving it to an individual, as well as the evidence given by the ACT Constable that purportedly served the Queanbeyan ADVO, “Constable Hawker” (as recorded in the transcript of hearing in the Magistrates Court). I note that this appears to be a typographical error in the transcript, and that the Magistrate was referring to Senior Constable Hooker.

17. Ultimately, the Magistrate was “satisfied that the defendant has been served in accordance with” the FV Act beyond reasonable doubt.

18. The appellant’s ultimate submission is that the Magistrate should have relied on Pt 9 of the FV Act, which in turn would have referred to the CDPV Act, to determine whether the Queanbeyan ADVO had been properly served. For their part, the prosecution conceded that the Magistrate was in error in not examining the service provisions under the CDPV Act.

Was the appellant in fact personally served the ADVO in accordance with the CDPV Act?

19. Despite the concession on ground 1, counsel for the prosecution submitted the Magistrate’s finding of guilt remains “correct but for the wrong reasons”.

20. The person who purportedly served the ADVO was Senior Constable Hooker. Senior Constable Hooker signed a statement of service dated 25 October 2021, which was tendered as Exhibit 9 at trial. That is also the same statement that ground 3 relates to. The statement of service recorded that the appellant was served with a final apprehended violence order at the Alexander Maconochie Centre at 9.47am, and that the Senior Constable explained the nature and effect of this document to the appellant.

21. Relevantly, Senior Constable Hooker was an officer of the Australian Federal Police stationed in the ACT. He was not a member of the NSW Police Force. The significance of the submissions concerning this matter necessitates setting out the relevant provisions of the CDPV Act.

22. As submitted by both parties, the question of whether the appellant was properly served with the Queanbeyan ADVO is to be assessed by looking at the CDPV Act. The relevant provision as to service is s 77. The relevant provisions are set out below: 77 Service of copy of apprehended violence order, interim court order or variation or revocation of any such order (1) The Registrar of a court that makes a final apprehended violence order or interim court order is to prepare a written copy of the order. … (4) If the defendant is not present at the time the order is made, the Registrar is to arrange for a copy of the order or the record of the variation or revocation to be served personally on the defendant by a police officer or such other person as the Registrar thinks fit. … (6) Service on the defendant of the copy of the order or record concerned may be effected in such other manner as the court directs. (Emphasis added.)

23. Both parties agree that two questions arise under this ground: (a) Whether it is open for this court to be satisfied beyond reasonable doubt that the appellant was served with the ADVO as a matter of fact; and (b) Whether Senior Constable Hooker is a “police officer” within the meaning of s 77(4) of the CDPV Act.

Was the appellant served with the ADVO?

24. The resolution of this question requires a review of the evidence given by Senior Constable Hooker at the hearing before the Magistrate. At the hearing, the Magistrate found that “[t]he evidence of Constable [Hooker] satisfies me that the defendant was given a copy of the New South Wales [ADVO]”.

Relevant evidence

25. As noted above at [20] of this judgment, Senior Constable Hooker signed a “statement of service” dated 25 October 2021, which was included in the evidence before the Magistrate. Whether the statement should have been admitted is the subject of a challenge in this appeal under ground 3.

26. The statement of service included a unique identifier number. The ADVO was also in evidence as Exhibit 11 before the Magistrate, and should also have included a unique identifier number. At the appeal hearing, there was an issue concerning the unique identifier number. Upon a request by counsel for the prosecution on appeal, the original exhibits from the Magistrates Court were examined. It emerged that the ADVO did include a unique identifier number that was covered by a court exhibit label stapled to it. This number matches the number in the statement of service.

27. That issue may therefore be put to one side. I turn to the evidence given by Senior Constable Hooker at the trial.

28. The officer gave evidence via audio-visual link. It emerged from the transcript that the officer had no independent memory of serving the ADVO. In response to a question by the prosecution as to whether he had a distinct memory of service on persons when he was performing his role, the Senior Constable replied “No, not at all. As you probably understand, I served quite a few documents there”. On examination, Senior Constable gave this description of his usual routine of serving orders and signing a statement of service: PROSECUTOR: Can you talk me through the process of how you would serve an order on an inmate, specifically being an application for a final apprehended violence order or a family violence order? OFFICER: Yes. So I would go to the AMC, into the reception area. I would tell the Corrections officers who I needed to see. They would bring them up to me one at a time. Sometimes I’d have one, sometimes I’d have as many as 10 or 12 orders to serve. The detainee would come in. They would have their prison ID so I could check that I was serving it to the correct person. I would then go through the document with them, literally read the document to them and ask them if they understood it. Sometimes they would listen, sometimes they wouldn’t. In this case I can’t say whether they did or didn’t. As I say, I have no clear memory. And then I would fill out the affidavit of service after that … PROSECUTOR: Is there a situation where you would have completed a statement of service for an order but not served that order personally on an inmate in a correctional centre? OFFICER: Not at all. If an inmate had refused to come to the reception area to be served, or if they had failed to acknowledge it in [any way], it wouldn’t have been marked as served, no. PROSECUTOR: In those circumstances, you wouldn’t have signed a statement of service if that was the case; is that correct? OFFICER: That is correct. I would not have signed it. PROSECUTOR: Is it the case that with every order – so being a family violence order or the interstate equivalent – that you served those personally [on] inmates at the centre? OFFICER: That is correct. If I didn’t serve it personally, I would not be signing the affidavit of service, the affidavit of service would have been signed by whoever did physically serve it.

29. In cross-examination, Senior Constable Hooker conceded that he could not remember serving the appellant or which order he served the appellant with. Relevantly, I extract the following evidence: COUNSEL: That means you can’t recall how exactly you served him OFFICER: As I say, I could only say what I would normally do, under normal circumstances. COUNSEL: Yes. And you cannot recall what order specifically you served him with? OFFICER: No. That is correct also. … COUNSEL: The statement of service that you’ve looked at is effectively a pre-written pro forma? OFFICER: That’s right, yes. COUNSEL: It’s not a description written by you about what happened? OFFICER: No, that is correct. It is just a statement of service with my details and a time and date and place that I served it. COUNSEL: In this instance, it was not [witnessed] by anyone else? OFFICER: That is true, yes. COUNSEL: So no one else, in effect, is able to speak to what order you served or how you served it? OFFICER: Not to my knowledge, no. COUNSEL: You didn’t make any contemporaneous notes at the time in relation to this, apart from the statement? OFFICER: No, I did not. No, I did not. …. COUNSEL: When serving [NSW orders], did you ever consider directions made by the registrar of the New South Wales Local Courts about how those orders were to be served? OFFICER: I didn’t have any directions. So all I’ll say is that the orders would come in, they would go into a drawer to be delivered to the AMC. I would take them from that drawer, I would go to the AMC and I would serve them.

30. On re-examination, the officer was asked about the unique identifier number at the top of Exhibit 9: PROSECUTOR: Constable, at the top of that statement of service there’s a number or some letters that look like they’ve been stamped on, [the unique identifier number]. Do you see those OFFICER: Yes. I do, yes. PROSECUTOR: Did you stamp those letters onto this document? OFFICER: No, I did not. When a document – an order such as this comes in, it’s actually entered into the system by different people before it’s placed in the drawer for service. All I can tell you about that number is the ‘INT’ stands for interstate. PROSECUTOR: And to your understanding, the number that’s on that statement of service would relate to whatever order you were serving; is that correct? OFFICER: That is correct, yes. The order must match.

31. The evidence of Senior Constable Hooker closed with the Senior Constable answering a question from the Magistrate: HIS HONOUR: So just so I understand, Constable, that stamp number on the top right-hand corner of the statement of service you understand correlates to the number of the order that has been issued interstate, and do you check that number before you serve the order? OFFICER: Yes sir, I do. Consideration

32. Counsel for the appellant submitted that the officer’s evidence concerning the unique identification number could not be given significant weight as the officer was merely describing “the usual course [of serving an ADVO], with absolutely no independent memory”.

33. The Magistrate found there were no other inferences available concerning service. I note the following exchange between the Magistrate and counsel for the appellant on the voir dire: COUNSEL: [The statement of service] does not say which order was served. HIS HONOUR: Well, again, don’t we go back to the fact that it’s a New South Wales document referring to, as I said before, the types of orders issued in New South Wales as opposed to the ACT? COUNSEL: I accept that, your Honour, but as you’re aware, someone can have multiple orders taken out against them, different types of orders. HIS HONOUR: I’m against you on that, [counsel for the appellant]. It seems to me, in circumstances where no doubt [counsel for the prosecution] will shortly tender an order that was issued on a certain date and this was served within a time period following the issue of that date, that the inference I can comfortably draw is that that was the order served. COUNSEL: Your Honour, I don’t understand how you could comfortably draw that inference. HIS HONOUR: Well, I’ve just explained how I could, by the dates. COUNSEL: But I anticipate your Honour will find this is served at least a month after an order was made. HIS HONOUR: I’d accept that. But unless you are going to produce evidence that another final apprehended violence order was served on [the appellant] then what basis do I have to speculate? If you’re trying to establish that there’s a reasonable inference consistent with innocence, how do I say that that’s a reasonable inference to draw, when the applicant has already given evidence that she obtained a final order against him?

34. Further, counsel for the appellant submitted that there was non-compliance with r 5.12 of the Local Court Rules. Rule 5.12 provides: 5.12 Proof of service (1) A person who serves a document issued in proceedings must complete a statement as to service of the document served. (2) The statement must include the following matters— (a) the date service was effected, (b) the method of service, (c) the name, address and occupation of the person serving the document, (d) if the document was served personally, the person to whom it was delivered, … (3) A copy of the document served must be attached to the statement or the statement must clearly identify that document. (4) The statement must be signed by the person serving the document and a witness to the signature. (5) In the case of a document served by a police officer or a public officer, the statement is not required to be signed. (Emphasis added.)

35. Counsel for the appellant submitted that the statement of service was not compliant with r 5.12(3) because there was no “copy” of the ADVO attached to the statement of service. The prosecution properly conceded that the ADVO was not attached to Exhibit 9.

36. To that extent, the statement of service did not comply with r 5.12(3).

37. Counsel for the prosecution properly accepted it is likely that r 5.12 applies to application proceedings, of which proceedings under CDPV Act are one: see Local Court Rules, r 5.1; cf r 4.1.

38. In Cunningham v Cunningham [2012] NSWSC 849 (Cunningham), Button J stated that applications for ADVOs in the CDPV Act do not fall within Pt 3 of the Local Court Act, which deals with civil proceedings: Cunningham at [30]. His Honour noted the “traditional view” that proceedings for apprehended violence orders are not criminal proceedings for the purposes of the jurisdiction of the Local Court of NSW: Cunningham at [31], citing John Fairfax Pty Ltd v Ryde Local Court [2005] NSWCA; 62 NSWLR 512 at [20]. Button J noted that the NSW Court of Appeal “queried whether an application for an apprehended violence order” should be considered a criminal proceeding in Franks v Franks [2012] NSWCA 209 at [8]-[9] but did not appear to take a concluded view: Cunningham at [31]; see also Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73 at [62]-[63] (Kirk JA). Therefore, Button J observed at [33]: If the proceedings in the Local Court were not criminal in nature, then I consider that they would fall within Part 4 of the Local Court Act.

39. Counsel for the prosecution maintained that non-compliance with r 5.12 does not vitiate service. Despite the presence of the word “must” in r 5.12(3) of the Local Court Rules, counsel for the prosecution submitted that there is no express mention in the provision that effective service will be vitiated by non-compliance. There is force to this submission. Nevertheless, that is not the issue here. The issue is not whether service was vitiated by non-compliance. The issue is whether service was proven beyond reasonable doubt. The fact of non-compliance tends to create doubt as to service. Therefore, it could not be proven that service was affected beyond reasonable doubt. This was an element in a criminal offence that fell to be proven beyond reasonable doubt, and was not in my view proven beyond reasonable doubt.

40. For this reason, the complaint that the ADVO was not personally served on the appellant in accordance with the provisions of the relevant legislation, which was the CDPV Act and the rules appertaining thereto, is upheld.

Further issue under grounds 1 and 2

41. Strictly speaking, it is not necessary to deal with the remaining issue which arises under grounds 1 and 2, as both parties agreed that if there was insufficient evidence to establish beyond reasonable doubt personal service on the appellant, then that would be the end of the matter.

42. However, I will deal with the argument as to the proper construction of s 77(4) of the CDPV Act, as it is an important matter which may well arise again.

Was Senior Constable Hooker a “police officer” within the meaning of the CDPV Act? The appellant’s submissions

43. Counsel for the appellant argued that Senior Constable Hooker was not a “police officer” for the purposes of s 77(4) of the CDPV Act.

44. In his earlier written submissions in the court below, the appellant noted that “police officer” was not defined in the CDPV Act, but submitted that the term should be read consistently with references to “police officer” in other NSW legislation, being a NSW police officer: (a) Schedule 4 of the Interpretation Act 1987 (NSW) (Interpretation Act) defines “police officer” as “a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990 (NSW)” (Police Act); (b) Section 3 of the Police Act defines “police officer” as a “member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer”; and (c) Section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) defines police officer similarly to the Police Act, being “a member of the NSW Police Force holding a position that is designated under the Police Act 1990 as a position to be held by a police officer”.

45. The appellant also relied on the definition of “authorised officer” in ss 3 and 98ZT of the CDPV Act, in support of the submission that the definitions therein militate against the conclusion that “police officer” in s 77(4) should be construed broadly, as the prosecution contended.

46. The appellant referred to s 12 of the Interpretation Act in further support: 12 References to New South Wales to be implied (1) In any Act or instrument— (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words “New South Wales” or “of New South Wales” merely because those words form part of the body’s name or title. (Emphasis added.) The prosecution’s submission

47. The prosecution acknowledged that the legislative provisions in the NSW legislation referred to by the appellant provide some support for the appellant’s submission that “police officer” in s 77(4) refers to a NSW police officer. However, as “police officer” is not defined in the CDPV Act, the prosecution’s ultimate submission on appeal was that the word “police officer” in s 77(4) of the CDPV Act should be interpreted broadly so as to include police officers from other jurisdictions.

48. The prosecution referred to s 5 of the Interpretation Act. As noted by the appellant, s 5(1) of the Interpretation Act states that it “applies to all Acts and instruments (including [the Interpretation Act]) whether enacted or made before or after the commencement of this Act”. However, the prosecution also referred to s 5(2) of the Interpretation Act, which states that: (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. (Emphasis added.)

49. The prosecution particularly relied on the evident purpose of the CDPV Act. Section 33 of the Interpretation Act states that a construction that would promote the “purpose or object underlying” an Act is to be preferred to a construction that would not promote that purpose or object. The prosecution submitted that the CDPV Act as it relates to apprehended violence orders, including s 77, has a protective purpose.

50. While noting that the Explanatory Note to the Crimes (Domestic and Personal Violence) Bill 2007 was unhelpful in terms of ascertaining the purpose of the CDPV Act, the prosecution submitted that a “protective purpose” is consistent with the objectives set out in s 9 of the CDPV Act:

51. The prosecution in its written submissions at trial submitted that it was recognised by the legislature that victims of domestic violence often have to flee interstate. So much is said to be evident from the second reading speech made to the NSW Legislative Council in support of the Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 (NDV Orders Recognition Bill). Similar observations were also made in the second reading speech to the NSW Legislative Assembly by the NSW Attorney-General. Counsel for the prosecution in oral submissions also noted the following remarks from the NSW Attorney-General’s second reading speech: Just as importantly there should be and there will be no place for a perpetrator of domestic violence to hide.

52. In its written submissions at trial, the prosecution noted that the national implementation of the National Domestic Violence Order Scheme (NDVOS) was intended to “address domestic violence concerns with recognition of the difficulties that [sic] State and Territory borders” and the differing legislative schemes that exist across different jurisdictions. To restrict the meaning of “police officer” to just an NSW police officer would “be contrary to the purpose of this legislative scheme”. By contrast, the prosecution submitted that an expansive construction of “police officer” would facilitate the protective objectives of the CDPV Act by ensuring that s 77(4) is a “workable provision that recognises the fact” that persons subject to an ADVO may be interstate and not present when the ADVO is made.

53. Counsel for the prosecution supplemented this in oral submissions on appeal, citing Law Society of New South Wales v Glenorcy Pty Ltd [2006] NSWCA 250; 67 NSWLR 169 (Glenorcy) (as summarised by Leeming JA in DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 42; 103 NSWLR 692 (DRJ) (at [151]-[152]). At [42] and [44]-[45], Mason P (McColl and Basten JJA agreeing) made the following remarks in relation to the fund maintained by the Law Society of NSW to compensate “persons who suffer pecuniary loss because of a failure to account or a dishonest default” under s 80 of the then-still-in-force Legal Profession Act 1987 (NSW): 42. There is an obvious correlation between requiring a particular group of practitioners to contribute to the Fund and recognising that their misconduct will be the occasion for allowing claims on the Fund. There is no discernible purpose in reading the scheme in the cramped manner proposed by the Society. … 44. To accept an interpretation that exempted the Fund from liability with respect to a solicitor enrolled in this State and having a local practising certificate, on the basis that the solicitor’s failure to account occurred beyond the borders of the State, would ignore the nature of modern legal practice in this country. It is impossible to conceive why it would be just or sensible to construe the scheme as exempting a Sydney-based solicitor who while temporarily in the Australian Capital Territory took instructions by phone to deal with his or her client’s money; or whose instructions given in Sydney were to deal with the money in a particular way while in that Territory. 45. Equally improbable is some presumed legislative intent that this scheme would not embrace clients who dealt with solicitors whose practice was similar to that of Smith or whose office was located near a State border. The legal profession in Australia has been moving towards both an interstate and national outlook for many years… Counsel for the prosecution submitted that, as in Glenorcy, there is no “discernible purpose” to limit the meaning of “police officer” to a NSW police officer beyond the effect of s 12(1)(a) of the Interpretation Act. He also sought to draw parallels between the fund that was the subject of Glenorcy and NDVOS, in that this case also deals with interstate borders.

54. In its submissions on appeal, the prosecution also submitted that there is an “element of necessity” in allowing a non-NSW police officer to serve a NSW ADVO, and that the construction advanced by the appellant would risk “placing an intolerable burden on the state of NSW”. Someone could simply go across the border and thereby make it more difficult to serve them. This is submitted to be inconsistent with the adoption of the NDVOS and the model provisions accompanying the scheme.

55. In any event, the prosecution noted that it is now accepted that a State legislature can enact laws with extraterritorial operation as long as there is a sufficient “territorial nexus”: Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1. The territorial nexus in s 77 is, in the prosecution’s submission, supplied by the fact that it is a NSW court that makes an order under s 77, and that the references to “Registrar” in s 77 are to the registrars of NSW courts. The prosecution submitted that it is not necessary for “police officer” to be read as territorially limited. Nor is it necessary, in the prosecution submission, for every element of a legislative provision to be read as territorially limited: DRJ at [22] (Bell P).

56. In closing its written submissions, the prosecution noted its acknowledgment that the word “police officers” in the CDPV Act would normally refer to a NSW police officer. However, while it is a general rule of statutory construction that words used consistently in legislation should be given a consistent meaning, the rule is readily rebuttable and, the prosecution submitted, is rebutted in this case: D151 v New South Wales Crime Commission [2017] NSWCA 143; 94 NSWLR 738 at [72] (Simpson JA), citing Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 at 618. The prosecution’s written submissions concluded by reiterating a point made in its written submissions at trial: the reference to “police officer” in the Police Act and LEPRA does not assist in interpreting the CPDV Act, as the purpose of the Police Act and LEPRA is to “expressly authorise police powers and the creation of the NSW Police Force.”

The appellant’s submissions in reply

57. The appellant submitted in reply that the construction advanced by the prosecution could be used as a “backdoor” to prove service by extending the definition of the word “police officer”. Counsel submitted that this is impermissible in light of the principle of legality, as both the CDPV Act and the FV Act have “clear unambiguous sections” that outline “the circumstances in which non-local FVOs become enforceable”. Those provisions require compliance with local law to become enforceable.

58. The appellant highlighted s 98ZT of the CDPV Act and s 139 of the FV Act, noting that these provisions are relevantly identical and deal with the issuing of certificate evidence by “authorised officers”, to confirm that an NSW DVO or an ACT DVO has been “properly notified”. The appellant submitted that these provisions provide an “antidote” to the cross-border service issues that the prosecution referred to. The appellant submitted that no certificate was used in this case to prove what was a “complicated evidential matter” – the issue certificates of this sort are intended to address – and that this fact was a critical element of the offence.

59. The appellant also relied on the certificate provisions to demonstrate that there is no “context or subject matter” that would displace the definition or meaning of the word “police officer” in the CDPV Act. I pause here to note that counsel for the appellant was referring to s 6 of the Interpretation Act. That section applies to “definitions” used in a particular Act. The CDPV Act does not define “police officers”. Consideration

60. I have considered the two competing arguments about the proper construction of s 77(4) of the CDPV Act. I acknowledge that this matter is finely balanced. There is force in the appellant’s submissions; however, in the end, I accept the prosecution’s submission that “police officer” within the meaning of s 77(4), must of necessity mean any police officer.

61. With respect to its submission in relation to s 5(2) of the Interpretation Act, the prosecution submitted that such contrary intention is to be found in the CDPV Act at s 77. I accept that submission.

62. The observations of the NSW Court of Appeal in DRJ are relevant here. The appellant noted that Bell P (as his Honour then was) made the following observations with regards to s 12: 8. Questions such as these and those raised in Insight Vacations and in the present proceedings are questions which s 12 of the Interpretation Act 1987 (NSW) (Interpretation Act) provides some assistance in answering. That section provides: “(1) In any Act or instrument— (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words ‘New South Wales’ or ‘of New South Wales’ merely because those words form part of the body’s name or title.” 9. The assistance provided in the interpretation of a statute by s 12 of the Interpretation Act and its Commonwealth (Acts Interpretation Act 1901 (Cth) s 21(1)(b)) and state analogues (see Legislation Act 2001 (ACT) s 122(1)(b); Interpretation Act 1978 (NT) s 38(1)(b); Acts Interpretation Act 1954 (Qld) s 35(1)(b); Acts Interpretation Act 1931 (Tas) s 27(b); Interpretation of Legislation Act 1984 (Vic) s 48(b)) is somewhat limited, however, principally because s 12 is subject to the contrary intention appearing in either the Interpretation Act itself or, more commonly, in the statute being construed: Interpretation Act s 5(2). And the “contrary intention” may appear not only expressly but by implication. 10. Contrary legislative intention sufficient to rebut or displace the operation of s 12 of the Interpretation Act may be evinced by any of the following: (i) express words: see, for example, Waller v Freehills (2009) 177 FCR 507; [2009] FCAFC 89; (ii) necessary implication: see, for example, Macleod v Attorney-General for New South Wales [1891] AC 455 at 457–458; (iii) reading the Act as a whole: see, for example, University of Birmingham v Federal Commissioner of Taxation (1938) 60 CLR 572 at 579–580; [1938] HCA 57; (iv) if the legislative purpose would otherwise be frustrated: see, for example, Australian Securities Commission v Bank Leumi Le-Israel (1995) 134 ALR 101; [1995] FCA 1012; or (v) if the contrary intention is indicated by “the object, subject matter or history of the enactment”: see, for example, Schmidt v Government Insurance Office of New South Wales [1973] 1 NSWLR 59 at 67–68. … 22. The potential difficulty for the task of statutory interpretation is further compounded by the fact that, although any one of a number of potential connecting factors may supply the requisite territorial nexus, it is not necessary for every possible aspect or element of a legislative provision to be read as territorially limited: Herzfeld and Prince at [9.290]. 23. State legislatures thus may pass laws which operate or purport to regulate conduct or actions which occur either wholly outside the state (at least so long as there is a sufficient nexus with the state) or to conduct or actions that occur partly within and partly outside the territory. The extent to which a legislature has intended to use its legislative competence to pass laws with extraterritorial effect, and the connecting factor or factors by reference to which it has chosen to exercise such power, are regrettably not always and indeed are frequently not made apparent on the face of any given enactment.

63. His Honour added: 33. Sometimes, as in the case of s 12 of the Interpretation Act, legislative guidance is provided but is of limited utility. As I have already noted at [11], that section is at best a starting point for the analysis but it is a starting point that may be readily rebutted. 34. Often, however, and perhaps more commonly, no guidance is given at all by legislatures as to the territorial reach and operation of a particular statute and it is often necessary to litigate in order to secure an answer or at least to bring clarity to the question. Recent examples of this include this Court’s decision in Chubb and that of the High Court in Insight Vacations. … 37. The identification of the relevant “hinge” or “central conception” is frequently far from straightforward and the passage of legislation on the basis of “unstated assumptions” as to its reach (see Insight Vacations at [16]) is less optimal than clear legislative guidance on the subject. In matters which may be of great significance, a definitive answer to the operation of a statute may require litigation right up the appellate chain, as the history of the current case demonstrates. The weakness of the presumption to which s 12 of the Interpretation Act gives effect and the multiplicity of connecting factors upon which a particular statute may be “hinged”, coupled with the scope for differences of opinion as to that matter, calls for far greater, more explicit and more regular attention to be paid to this matter by legislative drafters in the discharge of their important responsibilities. 38. Even with the best will in the world and the assistance of the most able of counsel, there will often be considerable difficulty entailed in teasing out from a statute that is otherwise silent the intended sphere of its operation. And, as Leeming JA explains, cases where an interpretation provision is displaced by reason of an identified contrary intention are frequently highly contestable. As Emmett JA and Ball J acknowledged in Chubb at [205], having concluded that the territorial “hinge” of s 6 of the Law Reform (Miscellaneous Provisions) Act was the institution of a claim in a New South Wales court: “… the answer suggested above is certainly not without doubt. The answers advanced by the various parties discussed above have some merit, despite the anomalies that may result. Indeed, no doubt there are anomalies in the approach suggested above. Nevertheless, the suggested approach accords with the language and policy of s 6 and has the additional merit of providing, despite the complexity and opacity of s 6, some measure of certainty as to whether s 6 will apply in any particular case.”

64. The legislation which is the subject of this appeal is, regrettably, one such case.

65. For the reasons which follow, I prefer the construction of s 77(4) contended for by the prosecution.

66. First, there is no definition in the CDPV Act of “police officer”. While it can readily be accepted that the word “police officer” appears on multiple occasions in the CDPV Act, and that in some provisions of the Act those words clearly mean “NSW police officer”, the general presumption that words used consistently in a piece of legislation are intended to have the same meaning each time, is rebuttable.

67. Here, reading the CDPV Act as a whole, its evident purpose is plainly protective. The objects of the CDPV Act are set out in s 9: 9 Objects of Act in relation to domestic violence (1) The objects of this Act in relation to domestic violence are— (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women, and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. (2) This Act aims to achieve those objects by— (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice. (3) In enacting this Act, Parliament recognises— (a) that domestic violence, in all its forms, is unacceptable behaviour, and (b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and non-traditional settings, and (f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (f1) the particular impact of domestic violence on Aboriginal persons and Torres Strait Islanders, persons from culturally and linguistically diverse backgrounds, persons from gay, lesbian, bisexual, transgender and intersex communities, older persons and persons with disabilities, and (f2) the intersection between animal abuse and domestic violence, and (g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court. (4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section. (Emphasis added by the prosecution.)

68. I accept the prosecution’s submissions that the NDVOS is intended to allow any domestic violence order issued in an Australian State or Territory to be recognised and enforced across Australia. In the CDPV Act, this is achieved by Pt 13B, a part that appears analogous to Pt 9 of the FV Act.

69. It is well-established that the effect of an amendment to one legislative provision may be to alter the meaning of other unamended provisions, because unamended provisions must be construed together with and in the context of amended provisions: Commissioner of Stamps v Telegraph Investment Company (1995) 184 CLR 453; P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at p 296. In other words, while s 77(4) predated NDVOS, the effect of the introduction of Pt 13B was such that, whatever the meaning of “police officer” was prior to the enactment of Pt 13B, the term should now be read in the context of the scheme.

70. In that context, it is appropriate to read “police officer” as not being confined to a police officer of NSW. I accept the prosecution submission in this respect.

71. Further, as the prosecution submitted, not to adopt this construction would be to place on the NSW police force an intolerable burden every time an offender chooses to cross a border. In this respect, I consider it important to note that NSW shares a border with South Australia, Queensland and Victoria, and that the ACT is wholly contained within the State of NSW.

72. It is no answer, as the appellant submitted, to say that s 77(6) permits the Registrar to direct another manner of service. The prosecution’s submission is that such a solution would require a court, on each and every occasion when a respondent is not present when an order is made, to have prescience in relation to the movements of a respondent to an AVO, or to order that service can be effected by any police officer of any State or Territory. That begs the question: why would a provision intended to operate as an exception amount to a general rule? Given the geography of NSW within the federation, that submission is not far-fetched.

73. By enacting the NDV Orders Recognition Bill in 2016, the NSW Legislature recognised that victims of domestic violence often have to flee interstate. Therefore, to construe “police officer” as any police officer in our federation is consistent with the intention expressed in the second reading speech to introduce Pt 13B, that cooperation between the States was envisaged and is necessary to give effect to the proper purposes and objects of Pt 13B.

74. It is for these reasons that I accept the prosecution’s submissions on the meaning of “police officer” in s 77(4) of the CDPV Act.

75. I would add for the sake of completeness that the appellant’s contention that the prosecution should have filed a notice of contention in respect of the construction of s 77(4) is misconceived. The argument as to whether effective service on the appellant was proved beyond reasonable doubt was a factual one. The argument as to the proper construction of s 77(4) is a question of statutory construction about which no further evidence could or should have been led in the court below.

76. As was stated in Water Board v Moustakas (1994) 180 CLR 491 at 497: More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. (Citations omitted.)

77. As in the notice of appeal, the appellant is seeking an order for the prosecution to pay the appellant’s costs of the Magistrates Court proceedings. The parties need to be heard on this application in light of these reasons; however, the issue of costs can be determined by another judge of this court.

Orders

78. Accordingly, I make the following orders: (1) The appeal is allowed. (2) In respect to charges CC2023/6934 and CC2022/11233: (a) The verdicts of guilty entered for both counts are set aside; and (b) Verdicts of acquittal are entered for both counts.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: