The offences of contravening a personal protection order are not proved.

CRIMINAL LAW - CONTRAVENE PERSONAL PROTECTION ORDER - meaning of surveillance; meaning of harassment; stalking; Personal Violence Act 2016 (ACT).

Evidence Act 2011 (ACT), ss 81, 141(2)

Personal Violence Act 2016 (ACT), ss 6, 8, 35, 35(2)

Henderson v Mackenzie [2009] ACTSC 39

Police v Barker [2024] ACTMC 30

R v Carr-Briant [1943] KB 607

CC 10096, 10095, 10094, 10093, 10092 and 10091 of 2024

MAGISTRATE ROBINSON:

Introduction

1. The defendant, Ms JE (a pseudonym), was charged with six counts of contravention of a protection order in breach of section 35(2) of the Personal Violence Act 2016 (ACT) (Personal Violence Act).
2. On 11 March 2026 I found JE not guilty of each of the charges. I said I would publish my reasons later. These are those reasons.

1. Section 35 of the Personal Violence Act provides:

(1) This section applies to a person against whom a protection order is made if the person -

(a) was present when the protection order was made; or

(b) has been personally served in accordance with this Act with a copy of the protection order.

(2) The person commits an offence if the person engages in conduct that contravenes the protection order (including a condition of the order).

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(a) A protection order has been laid against defendant;

(b) The order was made or has been personally served;

(c) The defendant engaged in conduct;

(d) The defendant intended to engage in conduct;

(e) The conduct contravenes the order; and

(f) The defendant is reckless as to whether the conduct breaches the order.

1. In terms of intent, the offence of breaching a protection order requires only that the conduct be proven, that the defendant intended to engage in the conduct, and that the conduct constituted a beach - for example, if that conduct is stalking, it requires the action of stalking, rather than the intention to stalk: Henderson v Mackenzie [2009] ACTSC 39 at [50] per Higgins CJ (Henderson).
2. It was a matter for the prosecution to prove, beyond reasonable doubt, every element of the offence. This required that the prosecution prove beyond reasonable doubt that the defendant made the recordings (or caused someone else to do so) and that the recordings breached the PPO. The burden was a high one. I am entitled to draw inferences from evidence, but where those inferences go to an element of the offence, any inference that leads to a finding of guilt must be the only reasonably available inference.
3. It was not in contest that a protection order was made against the defendant on 25 July 2022 (the PPO) and that she was served with the order. The order listed Ms Thomas (a pseudonym) and Mr Thomas (a pseudonym) as protected persons for a period from 25 July 2022 for a period of 24 months, i.e. until 24 July 2024. Ms Thomas is Mr Thomas' mother and litigation guardian. The contentious issue was whether the defendant breached this order.

1. The PPO was made by consent, without admissions and in agreed terms. It adopts the usual language of such orders, save that some additional words are added to describe the kinds of 'personal violence' that the order was directed at, being relevantly:

(g) engaging with (including approaching, speaking to, filming or photographing) any person who is [the residence] for the purposes of attending on [Mr Thomas] unless that person is > > (i) preventing the respondent or any person attending on the respondent from entering or exiting [the residence]; or > > (ii) preventing the respondent or any person attending on the respondent from parking their car [in an identified area] other than via fixed closed-circuit television (CCTV); > > (iii) engaging in behaviour that constitutes personal violence towards the protected persons including but not limited to taking photographs or video recordings or other surveillance of the protected persons other than CCTV. > > (h) causing or encouraging someone else to engage in behaviour that constitutes personal violence towards the protected person including but not limited to taking photographs of video recordings or other surveillance of the protected persons.

2. At the time the PPO was made, and at all relevant times for the purposes of this proceeding, the defendant and Mr Thomas were neighbours. Their homes shared a single block, with a common driveway and a shared car parking area.

1. It was alleged that the defendant breached the PPO by making 12 audio records and two video recordings. All the audio recordings were of a male voice. The recorded voice was often muffled and there were other sounds, including birds and other ambient noise, in the background. One of the two video recordings were from inside a house, with the camera pointing to a window and a male voice in the background (the indoor recording). The other video recording was taken from outside a house, looking to another house, and captured a male voice.
2. There were no agreed facts beyond that the PPO was made, and the defendant was served with it.

What is the evidence that the defendant made the recordings?

1. The evidence that the defendant made the recordings was purely circumstantial, based upon the recordings being filed with an application made by the defendant to the ACT Civil and Administrative Tribunal (ACAT).
2. The prosecution called Ms Thomas to give evidence.
3. Ms Thomas' evidence affirmed that Mr Thomas and JE lived in, respectively, 5A and 5B on a common block. The houses do not share a wall, but they share a common area. There had been, she said, a "lot of disputes" because the defendant would "come running out of the house and put her phone up and start recording us, and very often just yelling things out at us, swearing. Yes, just recording, harassing us." Due to this, she and Mr Thomas sought and obtained the PPO.
4. In December 2023, Ms Thomas, in her capacity as litigation guardian, was served with ACT Civil and Administrative Tribunal civil dispute application (XD 1340 of 2023) (the ACAT Application).
5. The ACAT Application lists the defendant as the applicant. The defendant appears to have signed the application on 16 November 2023. On the front of the form, under "type of application", the box labelled "nuisance" is ticked. Under "What is the dispute about" are the words "please see attached for a timeline of dispute. Evidence of noise on USB." Attached to the application was a USB that contained a series of recordings, including the recordings the subject of the charges. A "summary document" (the spreadsheet) was included in the application package.
6. The spreadsheet consisted of a table of several columns labelled, "File Name", "Date, Time", "Length (mm.ss)", "File Type", "Location of where obtained" and "Description." The table was, relevantly[1], as follows:

"Wood chopper [unintelligible] an axe..." at 0.15

"Jo Jo Jo Jo Jo...Jo's gonna win the fight..." at 0.05

"At the sex shop..." at 0.43 "I'll fuck you up..." at 0.51 "Lock the doors...keep your weapons behind the door..." at 0.59.

"I was six years old. Six years old [unintelligible]..." at 0.06.

"You don't get over...you don't heal from trauma...or torture..." at 0.04

"Fuck you. Fuck off..." at 0.01 "Fucking skanky bitch..." at 0.22

"Fuck you [unintelligible]..." at 0.06 and "We're in a pandemic...I'm a spy [unintelligible]..." at 0.15.

1. During the hearing, Ms Thomas was played the audio and video recordings the subject of the charges. She identified these recordings as being on the USB attached the application. She identified the male voice on the recordings as her son's. She identified the outside recording as being taken from outside the defendant's house, looking toward to house of her son.
2. Ms Thomas agreed that when inside Mr Thomas' house they could sometimes hear sounds from outside, including children and the defendant "coming out and yelling or swearing from her property to us."

1. The sound recordings are meaningless by themselves. They are simply of a man speaking. The are also muffled, hard to hear, and often have extraneous sounds in the background.
2. However, when viewed considering the spreadsheet that was filed with the application, the recordings become more meaningful. For example, as should be evidence from above, the name of each recording is descriptive and appears to be drawn from words spoken on the recording. Times are listed to the minute (e.g. "01/11/2023 08:34"). The location column refers to locations with a house where the recording is said to be taken (e.g. "5B rear stairs"). Coupled with the evidence of Ms Thomas this leads to an inference that the recordings were made by the defendant, or at least from her house.
3. The prosecution asked the Court to find that this spreadsheet is evidence of the time, date and location that each recording was made. The use of the spreadsheet in this way - to prove the truth of the asserted information - is hearsay and inadmissible. The spreadsheet was admitted as an 'admission' under section 81 of the Evidence Act 2011 (ACT) on the basis that it need only to be open to the Court to find the defendant made the excel spreadsheet to admit it. It remained for the prosecution to prove beyond reasonable doubt that the defendant did make the recordings.
4. The prosecution submitted that the spreadsheet was attached to an application lodged by the defendant. The defendant was uniquely able to obtain the information contained in it. Even if the time and date were available in metadata of the recordings, the location would not be. That kind information must have been recorded by the person making the recordings. Also, the descriptors were in reference to the location in the house from which the recordings were made. The defendant's house number matches the house number on the recording. It was highly unlikely that a random passerby visited the complex and recorded Mr Thomas, let alone that they would then provide the recordings to the defendant. The overwhelming inference to be drawn from the defendant having submitted the application to ACAT must be that she believed in the accuracy of the information supplied with the application, leading to the inference that it was she who recorded it (or, at the very least, that she authorised someone else to).
5. The defence submitted that the Court could not be reasonably satisfied that the defendant made the excel spreadsheet. The Court, it was submitted, knew "nothing" of the defendant's personal circumstances and could not exclude the reasonable possibility that another person made the recordings, or that they were made at times other than those in the excel spreadsheet. Also, there were other inferences that could be drawn, such as a friend or passerby making the recordings because they were concerned about the defendant and then giving her the information about when they were made.
6. I agree with the prosecution that having regard to the nature of the records, it is a near inescapable conclusion that the defendant created that excel spreadsheet, and hence that she recorded the information in it or endorsed it. Even if I am wrong on this, and she did not personally take the recordings, and she authorised somebody else who was present in the house with her to do so, she has endorsed the accuracy of the information therein, which itself is potentially in breach of the PPO.
7. The competing inference is that the defendant attached to an application lodged with ACAT, a spreadsheet that she played no part in preparing and could not know was accurate. I do not draw this inference.
8. I am therefore satisfied beyond reasonable doubt that the defendant made the recordings, at the time and in the place stated on the spreadsheet. I am satisfied on this basis that the recordings were made at a time when the PPO was in effect. The recordings contain information about Mr Thomas, being his voice, and the outside recording also had an image of his house. The question is whether this breaches the PPO.

1. The PPO prohibits the defendant engaging in behaviour that constitutes personal violence towards the protected persons including but not limited to taking photographs or video recordings or other surveillance of the protected persons other than CCTV. The defendant did not take photographs or video recordings of the protected persons. However, she did:

(a) record Mr Thomas' voice; and

(b) take one video recording of his house and his voice.

1. Am I satisfied, beyond reasonable doubt, that this conduct is "surveillance" or is otherwise personal violence?
2. Before looking at that question specifically, it is useful to set out what the Personal Violence Act is intended to do.
3. The objects of the Personal Violence Act in section 6 include:

(a) to prevent and reduce personal violence (other than family violence); and

(b) to facilitate the safety and protection of people who fear or experience personal violence by -

(i) providing a legally enforceable mechanism to prevent personal violence; and

(ii) allowing for the resolution of conflict without the need to resort to adjudication; and

(c) to encourage perpetrators of personal violence to be accountable for their conduct.

1. What the law of focused is on preventing actions and activities that have the character of "personal violence", as defined in section 8:

personal violence means any of the following behaviour by a person in relation to another person:

(a) physical violence or abuse;

(b) sexual violence or abuse;

(c) threatening behaviour;

(d) stalking;

(e) harassing, intimidating or offensive behaviour;

(f) damaging property.

1. As was observed by Chief Magistrate Walker in Police v Barker [2024] ACTMC 30 (Barker) at [17]:

The definition of personal violence in the Personal Violence Act is broad and clearly intended to capture a range of conduct, as varied as the imaginations of individuals who might engage in it. The community is entitled to have some clarity as to whether conduct is likely to expose them to criminal prosecution in circumstances where they are subject to an order of the court, prohibiting conduct which is not statutorily defined.

2. The definition is broad and intended to capture a range of conduct - "as broad as can be imagined" - that falls within the definition of "personal violence". But it is not intended to capture all conduct. There are a great many interactions between individuals that are annoying, unpleasant or even obnoxious that are just the consequence of day-to-day interactions. It should not be expected that the Personal Violence Act regulate all unpleasant interactions between members of the community; only those that have the character of "personal violence".

1. "Surveillance" is not defined in the Personal Violence Act.
2. The Macquarie Dictionary defines "surveillance" as:

noun

1. watch kept over a person, etc., especially over a suspect, a prisoner, or the like.

2. a general watch maintained over an area or location, usually by devices such as cameras, recorders, etc.

3. supervision or superintendence.

1. This plain language definition of surveillance includes the use of audio recording devices - and few would doubt, for example, that surreptitiously placing a listening device in a house to record a conversation therein would be "surveillance".
2. However, surveillance must also have the character of "maintaining a general watch" of a place, or a person. The Macquarie Dictionary defines to 'watch' someone as:

-verb (t) to keep under attentive view or observation, as in order to see or learn something; view attentively or with interest: to watch a game of cricket. > > -noun close, constant observation for the purpose of seeking or discovering something.

3. This definition of 'watch' clearly requires some kind of active engagement in observation. The definition of 'surveillance' suggests some continuity of that watch over time.
4. Surveillance need not be difficult. The ways in which a person may maintain a "general watch" on another have become increasingly and affordable. Most people now carry a mobile phone capable of capturing images and sound of quite high quality. Most homes will have multiple such devices, including devices capable of capturing ambient sound. The scope for such recording devices to be used in a way that invades privacy is extensive. It is certainly possible that a person could use technology to "keep a general watch" on a neighbour from their home in a way that raises serious concerns about privacy and cause significant discomfort to the neighbour if discovered. In the right (or wrong) circumstances, this could amount to personal violence.
5. The difficulty that I had in this case, however, with finding that the defendant engaged in 'surveillance' of this kind, was that I could not be satisfied beyond reasonable doubt that she maintained any kind of general watch over Mr Thomas. The circumstances of the alleged breaches were quite different to those Ms Thomas gave evidence about as the reasons for the PPO - they did not involve the defendant directly taking images of the Ms Thomas or Mr Thomas, approaching them or even leaving her home to see what they were doing. Except for the one outside recording, the highest that can be said of the evidence in relation to the audio recordings is that the defendant pushed "record" on a device when ambient noise, albeit emanating from the protected person, came into her house. There was no evidence of ongoing or constant monitoring. I was not convinced that her actions were "surveillance", as that word is commonly used.
6. The prosecution submitted that I should draw an inference that the defendant made the records for legal proceedings, and that gives it a character of surveillance. I agreed that is one inference that can be drawn, but I was not convinced that it was the only one.
7. Many inferences were possible. The protected persons were not at fault, but some of the things Mr Thomas said did have a disturbing character, and the defendant may have (even if in a misguided way) felt it necessary to record them for her own safety. She may have, having consented to an order without admissions already, been recording for her own protection should there be further legal proceedings. The possibility of the recordings being made, entirely or in part, to bring an ACAT nuisance proceeding, may also have played a part, but I was not satisfied that alone was not sufficient to give the recordings the character of surveillance.
8. Further, even if one could consider these acts as "surveillance", within the wording of the PPO, I was not convinced they necessarily amounted to an act of "personal violence" of the kind contemplated by the Personal Violence Act.
9. Paragraph (h) of the PPO was drafted in a way to make clear that taking photographs or video recordings, or other forms of "surveillance", of the protected person, can be an act of personal violence. The language indicates the things that the protected persons were concerned about when they sought the order - that is, the defendant "running out with a camera, recording" the male protected person. It set out what the defendant agreed she would not do. However, an order made under the Personal Violence Act does not, and cannot, operate in a way that makes any act of photographing or recording a person an act of personal violence where it otherwise would not be. This would be beyond the scope of a protection order made under the Act. Any actions said to breach a PPO must ultimately fall into a category of "personal violence" under section 8 of the Act.
10. Clearly, the recordings did not meet the definition of "physical violence or abuse", nor "sexual violence or abuse". The defendant did not damage property. That left threatening behaviour, stalking, or harassing, intimidating or offensive behaviour.
11. I was not pointed to any authorities about what constitutes any of this kind of conduct.
12. Taking threatening first, no "threat" can be inferred from the conduct of merely recording sounds when unobserved within a home. This may be contrasted with, for example, openly recording someone are in the sense that the person filming may be impliedly threatening to do something with those recordings. Conduct of that kind may well have been the basis for the PPO being made, but it is not what happened here.
13. Stalking is a term used in the Personal Violence Act and is also a criminal offence as per s 35(1)(c) Crimes Act 1900 (ACT). No submission was made that the defendant was "stalking" Mr Thomas.
14. "Harassment" is a term widely used in legislation, both in criminal proceedings and other jurisdictions. The meaning in the context of a protection order was discussed by Chief Magistrate Walker in Barker:
    1. Harassment is a term widely used in legislation, criminal and other.
    2. In Longfield v Glover [2005] ACTSC 25 the complainant had been subject to repetitive phone calls and letters from a disgruntled ex-partner. His Honour noted that harassment, pursuant to section 35 of the Crimes Act 1900 (ACT), which deals with stalking, had a broad definition.
    3. His Honour observed at page 335:

"harassment is not defined in the Crimes Act, but the ordinary plain meaning of the word, as defined in the Macquarie dictionary (2nd edition) is: to disturb persistently; torment as with troubles, cares et cetera".

1. His Honour adopted with approval the decision of Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472, in the context of trade practices legislation. Hill J observed at page 485:

"the word harassment in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word harassment means in the present context persistent disturbance or torment".

1. I have had regard to other dictionary definitions in considering whether repetition is an essential element of the concept of harassment.
2. The Merriam-Webster On-line Dictionary defines harass as:

"to annoy persistently; to create an unpleasant or hostile situation especially by uninvited and unwelcome verbal or physical conduct".

1. The Cambridge Online Dictionary defines harass as:

"to repeatedly annoy or upset someone over a period of time".

1. The Collins Online Dictionary defines harass as:

"to trouble, torment or confuse by continual persistent attacks, questions etc".

1. Each of the definitions includes a common feature of persistence.

1. There was some evidence before the Court that the defendant had harassed the protected persons in the past. Openly recording someone is often a form of harassment. Yelling and swearing at someone may be too. However, it is not clear how the defendant, making or recordings in own home, in situations where she could not be seen, is itself "harassment". Filming the protected person's house, albeit briefly and only from her doorstep is more dubious, but this was done only once, not repeatedly. Mr Thomas was not filmed. There is nothing to suggest her saw her or could have seen her filming. He had no knowledge of these recordings being made so couldn't have been harassed or intimidated. The defendant is not charged in relation to the use of the recordings in the ACAT.
2. I am not satisfied that the alleged conduct amounts to "harassment".
3. As to whether the audio and video recordings was offensive, in Barker, Chief Magistrate Walker engaged in an analysis of the meaning of "offensive":
   1. In the decision of Ball v McIntyre [1966] 9 FLR 237, the court considered the concept of offensive behaviour in the context of the Police Offences Ordinance 1930-1961 (ACT). A student demonstrating against the Vietnam War hung a placard and squatted on the pedestal of a statue erected as a public memorial to King George V outside of Parliament House in Canberra. His behaviour was found not to be offensive. In considering the concept, Kerr J noted that what is hurtful or blameworthy or even improper is not necessarily offensive. Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to common accepted social rules, whilst ill-advised or hurtful, may not be offensive. Even though people may be offended by conduct, it may not be offensive as intended by legislation.
   2. Citing Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316 with approval, Kerr J noted that, in the context of that case, the expression of political views, whilst offending some people, is not necessarily offensive. In order to be offensive behaviour, the conduct must be calculated to:

"produce a stronger emotional reaction in the reasonable man than is involved in indicating difference from or non-acceptance of his views or values. The behaviour to be offensive would normally be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man".

1. Higgins CJ in R v PM [2009] ACTSC 171 adopted Ball v McIntyre. In considering the concept of offensive in the context of section 474.17 of Criminal Code 2002 (ACT), His Honour noted that what is offensive is to be determined having regard to what reasonable persons would regard as offensive in normal circumstances:

"...is to be judged according to the standards of morality, decency and propriety generally accepted by reasonable adults". > > Noting that the word in the particular context His Honour was considering it was associated with further concepts of menace and harassment, His Honour observed: > > "it carries the idea of behaviour likely to arouse significant emotional reactions of a similar nature".

2. It is clear on a consideration of the authorities, that the question of whether conduct is offensive has to be considered in the context of the legislation and also the facts of the particular case (emphasis added).
3. In considering whether an act of "recording" someone falls within the definition of "offensive" behaviour that amounts to personal violence, it is useful to look to all the circumstances, including:

(a) Where the defendant was when the surveillance device was used;

(b) Whether the device was obvious and whether any notice was given (a fixed and obvious CCTV camera is a different matter to a surreptitiously placed one);

(c) What the device was intended to record;

(d) What type of device was used and where that device was located;

(e) What the surveillance was intended to be used for;

(f) Whether the information obtained was used or published; and

(g) The personal circumstances of those involved.

1. Collecting recordings of a neighbour's conduct, over time, could amount "offensive behaviour", being behaviour that is contrary to the standards of morality, decency and propriety expected of reasonable adults. However, to be satisfied that the defendant's behaviour was offensive, I had to be satisfied, that her actions, in context, could be found to be so beyond all reasonable doubt. I am not. I am particularly concerned about the implication of a finding that her actions, in pushing record on a device in her own home, to from time-to-time record ambient noise of the kind in this case, could breach ordinary standards expected of reasonable adults. What is done with that recording, of course, may raise other concerns, and I considered whether using the recordings to commence proceedings is sufficient to give them a different character, but again, I did not believe it possible to reach that conclusion on a beyond reasonable doubt basis.
2. I am more inclined to find the use of the camera to record the applicant's house from the front yard as a potential breach of the PPO. Having regard to the evidence of Ms Thomas and the language of the PPO, it is more evidently the kind of conduct the PPO is intended to prevent. It is not something that reasonable persons do and could more certainly have the character of offensive conduct. However, there is only one, brief recording before the Court. Neither of the protected persons are visible in it, although the male protected person can be heard. While I do not think that what she did in recording Mr Thomas was particularly neighbourly conduct, I am not satisfied beyond reasonable doubt that this is singular incident would be so widely accepted as offensive as to be conduct of the kind to breach of the PPO.

1. I note for completeness that the defence argued that even if the defendant's actions did amount to a breach of the order, she did not have the requisite intent to do so - and that her attaching the recording to a legal proceeding was evidence that she had no idea that her actions were criminal in nature.
2. I do not accept this argument. Section 12(2) of the Criminal Code 2002 (ACT) expressly provides that a person can be found guilty of committing an offence even though, when carrying out the offence, they were mistaken or ignorant of the existence of the content of the law that creates that offence. Were her conduct to be found to have been in breach of the PPO, it would have been no defence to claim that the defendant thought audio recording in her home was permitted.
3. Most PPOs are civil orders - sought through private actions between individuals - but they create a criminal offence when breached. Although made by a Court, they will often be by consent and in agreed terms. Parties will not always be legally represented. Sometimes, particularly where lawyers are not involved, the consequences of agreeing to a particular form of wording may not be clear to the respondent at the time the order is agreed to. Yet to breach it is a serious criminal offence. Ignorance of the law or what the order actually covers is no defence; a person will be guilty they knowingly engages in an act that breaches the order, being aware of the terms of it: Henderson at [50]; section 12(2) of the Criminal Code 2002 (ACT). Persons who are subject to PPOs need to act with proper caution, which I was concerned that this defendant did not do (despite not finding the charges against her proved beyond reasonable doubt).

1. I note that these reasons are published using pseudonyms. This is to ensure the anonymity of Mr Thomas, who is in a particularly vulnerable position. I am not satisfied there is anything about the defendant's situation that would justify anonymity in the usual course, but I am concerned that publishing her name in this decision may identify him.

1. In summary, while I was satisfied beyond reasonable doubt that the defendant made the recordings the subject of the charges, I was not satisfied beyond doubt that the recordings amounted to "surveillance" or acts of "personal violence" of the kind prohibited by the PPO. That is not to condone the defendant's actions; having agreed to a legal order in terms that prevented surveillance, to record audio of Mr Thomas were reckless at best. However, the standard of proof in a criminal matter is a high one, and I cannot conclude, beyond reasonable doubt, that the recordings were a kind prohibited by the order.
2. I therefore found the defendant not guilty of all charges.
3. My understanding is that Mr Thomas has relocated to another property. Hopefully matters between the parties are at an end.

I certify that the preceding Sixty-Three [63] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Robinson.

[1] Recordings not the subject of charges have been omitted.