M v Gray [2010] QDC 14

[4] The relevant condition of the protection order was:-

"The respondent is not to contact, try to contact, or ask someone else to contact the aggrieved directly or indirectly (by telephone or any other means of communication) except for contact with the child of the aggrieved and the respondent as per written agreement or in accordance with a Family Court order."

[5] In September 2006 there was no relevant written agreement or Family Court order in place. Therefore, at that time, the exception for contact did not apply. M was prohibited from contacting A in any way about anything. By initiating communication with her, he breached the protection order. His reasons for the contact were irrelevant to the issue of his guilt. They were relevant only to assessment of sentence. Furthermore, because M had contacted A on 2 separate occasions, he had committed 2 separate breaches of the protection order.

[6] The sole ground on the notice of appeal is in these terms: "that the order was unlawful, misleading and a malicious prosecution and order not applied for, sworn/ affirmed under oath by the aggrieved..." I understand that to be a complaint about a protection order made after M's conviction for the 2 breaches.

[7] In addition to his written complaint about the second protection order, M's oral submissions raised an issue about his state of mind at the time of the offences. The respondent has treated the appeal as an appeal against conviction and sentence. As a matter of caution, I will do the same.

[8] M submitted that he should not have been found guilty because he was suffering from "diminished responsibility". Diminished responsibility is a partial defence which only applies to a charge of murder.[1] The defence which would exclude criminal responsibility is unsoundness of mind under section 27 of the Criminal Code. The onus of establishing the defence is on the defendant. It requires evidence that at the time of the offence, the defendant was suffering from "such a state of mental disease or natural mental infirmity" that it "deprived" him of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know he ought not to do the act.

[9] There was no evidence before the magistrate that M was suffering from mental disease or natural mental infirmity at the time. There was no evidence that he was deprived of any of his capacities. M did not give or call evidence. The issue on appeal however is whether M suffered a miscarriage of justice. A miscarriage of justice would follow if M had lost a chance of acquittal that was reasonably open to him. Determination of this issue cannot fairly be restricted to an assessment of the trial evidence given that M appeared without legal representation.

[10] On appeal he told me that he could not recall whether the issue of his mental health had been raised at his trial at all. The transcript shows that M himself had flagged the issue in his closing address from the bar table. He had said: "Furthermore, I ask it be dismissed on the grounds of diminished responsibility. I was not in a state of mind to commit any such offence ..." He claimed from the bar table that he was not in a state of mind to know what he was doing because he was suffering a mental breakdown.[2] He asked for counselling instead of a conviction.[3]

[11] Her Honour subsequently recommended that he obtain legal advice[4]. M rejected the idea of using a lawyer. Reserving her decision, Her Honour indicated that she would consider the issue of M's criminal responsibility further. The endorsements on the bench charge sheet show that the case was mentioned a further 3 times[5] before the decision was handed down on 3 July 2009. There is no transcript or notation of the intervening mentions, beyond the setting of a date for judgment on 9 May 2009. In her judgment the Magistrate summarised the turn of events in this way:-

"The matter then required some lengthy adjournments because M, in his closing submissions, in relation to these matters, raised for the very first time his intention to rely upon the state of his mental health in relation to the defence of these and other pending matters.

He was then given an opportunity to seek legal advice in relation to that and the matter was adjourned so that he could do that.

He did obtain some limited legal advice. The prisoner advised me that he did not wish to obtain legal representation for himself.

He was therefore given another opportunity to address matters. He was provided with relevant sections of the Mental Health Act and a relevant form that he would need if he wished to make a reference there.

On 9 May 2007 he informed the Court that he did not intend to progress the matter in that way. I therefore advised on that day that I would deliver a decision in the matter today."

[12] M told me that he had tried to have a professional report prepared while he was in custody but this was refused. He had been held in custody for about a year.

[13] It is apparent from the history given by the Magistrate that M was given and rejected an opportunity to have an inquiry into the possibility of an insanity defence before he was convicted of the offences. He chose not to refer his case to the Mental Health Court.

[14] For this appeal he did not have a diagnosis of a psychological or psychiatric condition or any expectation of obtaining one. In fact M said he had not seen a psychiatrist or psychologist or general practitioner about his problems, either before or since the breaches. He indicated that he believed he did not know what he was doing at the time of the offences because he had a poor memory of events and he had been under a lot of pressure during the 12 month period surrounding the offences. He said he had been robbed of $ 70 000, he was bashed, his car stolen and his partner cheated on him. He felt he was being tormented and the police would not act on his complaints. Those matters are not sufficient to establish an unsoundness of mind. M's case, even at its highest, would fail to make out the defence.

[15] I note also that the offences themselves were not marked by chaotic or disorganised behaviour. The letter was rational and coherent. M's demeanour on the phone was described as "nice". He had argued that there was a reasonable reason for the contact.

[16] Having considered the case M would now propose to run, I am not satisfied that he has any real prospects of establishing that he was of unsound mind when he made contact with A. There was no miscarriage of justice.

[17] A protection order is not part of any sentence. It is a separate order made not to punish the respondent but to protect the aggrieved. The protection order of 3 July 2007 is listed on the Notice of Appeal. I understand the making of that order to be M's principal complaint. The right of appeal is under section 63 of the Domestic and Family Violence Act 1989 (Qld) (the Act). The appeal is by way of rehearing on the record.[6]

[18] The original protection order expired after the trial but before M was convicted. Upon the conviction, the magistrate acted under section 30 of the Act to make a fresh protection order for 2 years. Section 30 (1) relevantly provides:-**

"(1) A court before which a person pleads guilty to, or is found guilty of, an offence that involves domestic violence may, on its own initiative, make a domestic violence order against the offender, if the court is satisfied that a protection order could be made under section 20 against the offender as the respondent."

**[19] M complained that the order was made without notice to him and without any application by A. Neither advance notice nor an application was necessary. Section 30 allows the court to make the order of "its own initiative", that is without any application. It is an action open to a court on conviction and no special notice is required. The notice of a trial involving a domestic violence offence should put the respondent on notice that a further protection order may be made.

[20] A precondition to the exercise of the power to make an order under section 30 is a conviction for an offence that involves "domestic violence". The 2 offences of which M was convicted concerned the breaching of a non contact condition in a protection order. It is clear that the mere fact that the offence involves a breach of a condition in a protection order is not enough. The breach must be shown to involve "domestic violence". "Domestic violence" is narrowly defined in s 11 to mean: (a) wilful injury; (b) wilful damage; (c) "intimidation or harassment" of the other person; (d) indecent behaviour without consent; or (e) a threat to commit an act in (a) to (d). By virtue of section 22, a prohibition against "domestic violence" is an essential condition of every domestic violence order. Section 25 (2) confers a discretion to add further conditions of a specified kind. Permissible conditions that may be imposed as conditions additional to the prohibition against domestic violence include a non contact condition. The legislation's express provision for a condition precluding contact is recognition that contact with an aggrieved person will not necessarily amount to domestic violence.

[21] The 2 incidents of contact by M obviously did not involve wilful damage to property; wilful injury, any indecent act or a threat of any of those things. The only other type of conduct that would constitute "domestic violence" under the Act was "intimidation or harassment," in paragraph (c) of the section 11 definition. The definition includes examples:-

1. Following an estranged spouse when the spouse is out in public, either by car or on foot.

2. Positioning oneself outside a relative's residence or place of work

3. Repeatedly telephoning an ex-boyfriend at home or work without consent (whether during the day or night).

4. Regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent's fortnightly pension cheque".

**[22] Contact may but not always will, amount to intimidation or harassment. I am assisted by the conclusions of His Honour Judge McGill in Bottoms v Rogers,[7] that intimidation imports a requirement for actual intimidation. There must be proof that the victim was made fearful or overawed with a view to influencing his or her behaviour. Harassment is a repeated or persistent form of conduct that is annoying or distressing, rather than something that would incite fear.

[23] The evidence was that the telephone call was very brief. A said M said he wanted to help her and their daughter. She told him he was not supposed to call her and he should speak to her solicitor. She then hung up. A's evidence in regards to the call was that M had been "nice" but she had felt "sort of surprised and nervous".[8] She did not refer to any adverse effect from the letter. The letter was sent by post. M wrote that he was not going to fight for the property anymore. He said he wanted to see their daughter. The little girl was living with A and M had not seen her since the protection order was made, 16 months earlier. No written agreement or Family Court order had been made in relation to access. The letter read: "Whatever we think of each other the real issue is SARAH. She is the biggest loser. The one who is being hurt the most....in the best interests of Sarah, Id like you to ring me, and would like to try work together to let me see her. Im happy to have you along while I see her. I would like to see her as soon as possible with your consent. Please call me..."

[24] Intimidation imports some form of deliberate pressure from the person intimidating the victim. Intimidation does not need to be overt. A superficially kind approach may still import menace. Each case must be assessed on its own circumstances. No doubt there are many cases where even a single call would amount to intimidation. This was not one of them. The call was a brief offer of help. It amounted to a breach of the order, but no other circumstances were disclosed which would add any sinister meaning to the call. The only context in evidence was the unresolved family law issues. The cumulative evidence of the call and letter fell short of showing that A was made fearful or overawed with a view to influencing her behaviour. As regards to harassment, there were 2 incidents of contact. The letter was sent after A had refused to speak with M, and after she had reminded him he should not contact her. The conduct does not have the flavour of the examples in section 11. The phone message from M's sister could not be taken into account for the purpose of determining whether M's conduct amounted to harassment or intimidation. There was no admissible evidence that M had procured that call or knew about it.

[25] The respondent did not press an argument that the offences involved "domestic violence" within the meaning of the Act. The Magistrate had not made any specific finding about it. I am not satisfied that the offences do relate to harassment or intimidation. It follows that I am not satisfied that the offences involved "domestic violence" within the meaning of the Act. There was no power to make a fresh protection order. Accordingly the order of 3 July 2007 was invalid.

[26] The order expired without breach, before this appeal was heard. Nonetheless M is distressed by its presence on his record. He has a right to have his record corrected.

[27] I did not understand this to be an appeal against sentence, but I have reviewed the sentence out of caution.

[28] The sentence for the first breach was 7 days imprisonment with parole release fixed for the last day of the sentence. M served the 7 days in gaol. The only penalty for the second breach was the recording of a conviction.

[29] The magistrate took into account the comparatively minor nature of the breaches and the absence of any malevolent intent towards A. Her Honour observed that the circumstances of the offences would not usually call for a custodial sentence, but there was no reasonable alternative to imprisonment here because M was being held in custody for an extended period for other matters.

[30] M had some prior convictions. They included 2 prior convictions for breaches of domestic violence orders on his history. The first breach was committed on 11 April 2005. This also concerned A and was committed less than 2 weeks after the protection order was made. M maintained at sentence and on appeal that the basis of that conviction was the sending of a notice of his appeal against the domestic violence order to A. M's claim was not disputed by the prosecution but one has to wonder whether there was more to the matter than that because the Act actually requires a respondent to serve notice of any appeal on the aggrieved.[9] In any event, any breach had to be minor because no penalty was imposed.

[31] The second breach of an order on the history was committed 2 days before M rang A. M contends that that breach concerned his first partner, W, who is not related in any way to A. The penalty of a fine again indicates that breach was relatively minor.

[32] Taking into account the nature of the breaches in September, M's antecedents and his inability to perform community service or pay a fine, the sentence was not excessive. Any appeal against sentence should be dismissed.

1. The appeals against conviction and sentence are dismissed.

2. The appeal against the Protection Order made on 3 July 2007 is upheld. The Protection Order is set aside and M's criminal history is to be corrected to reflect that.**

[2] Transcript of proceedings on 15 March 2007, p 28.

[3] Transcript of proceedings on 15 March 2007, p 30.

[4] Transcript of proceedings on 15 March 2007, p. 32.

[5] The matter was mentioned on the 16 March 2009 , 9 May 2009 and 11 April 2009.

[6] Domestic and Family Violence Act 1989 (Qld) s 65.

[7] Bottoms v Rogers [2006] QDC 080.

[8] Transcript of 15 March 2007, p18, 30

[9] Domestic and Family Violence Protection Act 1989(Qld) s 64.