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[2011] ACTSC 38
Supreme Court of the ACT
2011-03-07
Teague AJ, Nield AJ
Original judgment source is linked above.
1. A verdict of not guilty is entered in respect of the count on the indictment.
1. When RH needed legal advice, as he did in February 2010, he did not have far to go. His second wife was a police officer and his aunt was a senior prosecutor. His own background was not legal, but he was a manager holding a responsible job. It involved his supervising a team of seven. The nature of the advice that he received came under close scrutiny before me, when he came up for trial before me. He was charged with having on 25 February 2010, contravened a protection order contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT).
2. On 17 February 2010, RH sought the advice of both his second wife, ("MH") and his aunt, ("TH") over the telephone. He had just called at the local police station to collect an order under the Domestic Violence and Protection Orders Act made on 15 February 2010 ("the DV order"). The DV order had been made on the application of his first wife, ("LL"). The focus of his attention when he sought that advice was on how the DV order potentially impacted on his access rights to his two children by LL, a daughter and a son LH, under an earlier order. The two children were, in February 2010, aged 12 and 10. They were named in the DV order. They were also named in the earlier order made on 19 April 2004. That order, under the Family Court Act 1975 (Cth), was made by the Family Court of Australia ("the FLA Order"). The relevant terms of each order are as set out in the appendix to these reasons.
3. The trial proceeded before me because RH elected not to have trial by jury. I recognize my obligations under s 68C of the Supreme Court Act 1933 (ACT). In R v Mulcahy [2010] ACTSC 98 (26 August 2010), Nield AJ between [13] and [24] summarised the applicable directions and considerations. I adopt that summary. I heard oral testimony from RH, MH, TH and two police officers. All five appeared to me to be doing their best to accurately answer questions put to them.
4. Apart from the terms of the FLA order, I had very little information about relations between RH and LL. I was not told of any circumstances leading up to the making of the DV order. RH was interviewed by the police on 25 February 2010. The transcript of that interview was an exhibit before me. During that interview, RH made a comment that implied that he was puzzled about the DV order. He said that he had been through mediation with LL, and that at no stage had she said that there was violence in her relationship with him. RH, in answer to questions put to him during his testimony before me, spoke of other matters linked to LL. He spoke of the pattern of his past collecting of LH, and of the arrangements he had made with LL as to changes in circumstances, such as the moving on from pre-school and swimming lessons. No perceived need to have the FLA order amended appeared to have arisen. Practical alternatives seem to have been accepted. His routine had been to collect LH from school. However, when LH was not at school, RH would collect LH from the home of LL. There were no indications that there had been other than a process over several years of amicable collection and return of the two children. The process appeared to have worked well in that neither parent saw the need to return to the Family Court to seek amendment of the terms to accommodate changed circumstances.
5. On Wednesday 17 February 2010, after he had collected his copy of the DV order from the local police station, RH set about trying to ensure that he proceed in a way that complied with his additional obligations. He telephoned MH. He had a discussion with her as to the implications of the DV order. He then telephoned TH and read out the terms of the DV order twice or more, and discussed its implications relative to the FLA order. The thrust of the advice which he was given by TH, and which he accepted, was that he should ensure that he complied with both orders. Because it was convenient to do so, MH collected the children from school on the next day, Thursday 18 February 2010. When RH had the opportunity to do so, he spoke at some length to the two children. He explained that certain things permissible in the past would not be permissible from that time on.
6. On the following Thursday, 25 February 2010, RH assumed that he would be collecting LH from school. That was not to be, as he was to tell the police later that day. That was after he had been arrested outside LL's home. He was asked why he had breached the terms of the DV order. He denied that he was in breach of the DV order. What he told the police was substantially as follows.
7. He said that, until just after noon, the day was, for him, a normal school day. Around 12.15 p.m., LL sent him a text message. It was to the effect that LH had been to the doctor, he did not want to be collected, and that LH would attend school on Monday. Around 12.30 p.m., RH sent a text in reply. The text was to the effect that, if LH was not at school, RH would pick him up after 3.00 p.m. RH said that, on his interpretation of the orders, he considered that he was entitled to pick him up. RH did not get a reply to his text message, but he noted that LL never did reply. He drove to LL's home and parked in the street. He knocked on the door and then he backed away from the door. LL answered the door and said that LH was in the shower. RH said that he nodded and walked to his car. He waited there for LH. He heard police sirens. He then wondered if LL had rung the police. When the police drew his attention to the terms of clause 2(a) of the DV order, RH expressed the opinion that that meant that, when he did not "see the children", he should not go to LL's home.
8. Before me, Ms Haigh appeared for the Crown, and Mr Archer appeared for RH. Before the hearing, Ms Haigh had prepared written submissions. In summary, she submitted that:
b) It was clear from the order that there were exceptions in clauses 2(b) and 2(c), but no exception to clause 2(a);
d) There was no inconsistency between the terms of the DV order and the FLA order; and
e) Arrangements as to the collection of LH could have been implemented without RH going on to the premises of LL.
9. At the hearing, Mr Archer handed over written submissions that he had prepared "in running". I believe that that accounts for why I find them difficult to summarise. His primary position was that the DV order is ambiguous and confusing and that, if it was applied in the terms contended for by the Crown, would be productive of absurd results. Included in the matters which were characterized by Mr Archer as "absurd" or that contemplated options that "cannot be conceived" or were "difficult to conceive" were:
b) The result of treating clause 2(a) in isolation; and
c) How practical arrangements could be made for collection and delivery of the children; the more so when a child had a serious disability.
10. With some reservations, I accept the submissions of Ms Haigh and reject those of Mr Archer. In my assessment, RH was in breach of clause 2(a) in going to the home of LL. As an exercise in construction, it is clear to me that clause 2(a) has no exceptions, and that the exceptions in clauses 2(b) and 2(c) are to be treated in relative isolation and that there is no inconsistency between the three clauses. I see no inconsistency between the terms of the DV order and the terms of the FLA order. The focus of the FLA order is on the children of RH and LL, and on achieving a balanced approach to the rights of both parents as to those children. The focus of the DV order is on maximizing the separation between RH and LL by minimizing the contact. Seen in that light, I do not see the "scheme" as absurd. Further, provided an awareness of that different focus is maintained, I do not find it difficult to conceive options for ensuring compliance with both orders.
11. I turn to the reservations. They impact not so much upon my level of certitude as to the result, as upon the perception of how others might have differed in their approach. I have certain advantages over RH. They include greater objectivity, which can be very useful when rights of access to children are concerned, and of decades of engagement in work involving the construction of statutes and other legal documents. I qualify that by noting that I am also conscious of the many instances where judges, who are more experienced and learned than I am, have differed in their interpretation of the drafting of others. I have several major advantages over TH. I have had the terms of both orders in writing in front of me. I have had ample time to consider those terms and to reflect upon them. I had a specific fact situation in which to consider their application. I did not have my attention focused almost exclusively on the issue of how the DV order impacted on RH's access to his children. The reservations are important in relation to the final issue, that of recklessness.
12. Did RH act recklessly when he attended at LL's home? Section 20 of the Criminal Code 2002 (ACT) provides this definition:
(a) The person is aware of a substantial risk that the result will happen; and
(b) Having regard to the circumstances known to the person, it is unjustifiable to take the risk.
13. I was referred by counsel to two cases. Miller v Macdonald [2006] ATCSC 76 (30 June 2006) was a judgment dismissing an appeal from two decisions of a magistrate, each convicting the appellant of contravening a domestic violence order. I found the decision of limited value, largely because it was an ex tempore judgment. There was not the recital of detail that enabled a proper understanding of the full context of events. That there were two events, and that they were viewed in the context of prior breaches, were other factors differentiating Miller v Macdonald. Yet another factor was the indication that there was also an issue in that case as to whether the breaches were intentional rather than reckless.
14. I found Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86 (24 March 2004) of value for the indications of research as to the meaning of recklessness, in the context of s 5.4 (2) of the Criminal Code Act 1995 (Cth), which is substantially similar to s 20, and of "awareness of substantial risk". In that case, Mr Hann returned to Australia from overseas with four videos in his baggage. One was labelled: "Innocent Girl in Sex - 15 year old". On his account, Mr Hann had grabbed the four videos on the street in Bangkok without looking at the labels. Gray J reviewed commentaries on the Code and concluded that the definition of reckless appeared to be a deliberate attempt to provide flexibility having regard to the vast range of offences covered by the Code. He reviewed dictionary definitions of "substantial" and "risk". He then summarized the facts, concluding that to purchase pornographic material in the circumstances carried a risk that the material might include child pornography. He found that the risk was not remote or fanciful, but was substantial, and that it was unjustifiable for Mr Hann to take that risk.
15. Ms Haigh submitted that RH was reckless because he was aware of the substantial risk of his breaching the DV order by attending at the house and that it was unjustifiable for RH to take that risk as he chose to do. She argued that the seeking of legal advice was no complete answer. Indeed, it made it the more obvious that he was aware of the risks posed by the DV order. Further, TH had made it clear to RH that he had to observe both orders. Ms Haigh argued that two reactions of RH showed that he was aware of the substantial risk in his having gone to the house. One was how he reacted on hearing the police sirens. The other on how he reacted when he answered police questions.
16. In my assessment, the element of recklessness has not been proved beyond reasonable doubt. I am satisfied that RH was aware of a risk that he might breach the DV order. However, I am not satisfied that, at the time that he visited the home of LL, he was aware that the risk was a substantial one. On the contrary, I have concluded that he thought the risk was well within acceptable limits. Further, I have concluded that, having regard to the circumstances known to RH, he considered that taking the risk involved was justifiable. So much of the evidence revealed that his focus was heavily on the issue of how the DV order impacted on his access to his children. Because he was so focused on his access to his children, he had not focused on the purpose of the DV order, namely the minimizing of his contact with LL.
17. Analogies are always a little troublesome, but sometimes cannot be resisted. RH was not unlike a footballer who sees an opponent about to crunch him. He had taken his eye off the ball. Perhaps more to the point, RH was not unlike a journalist with a story about a 17 year-old. Troubled by the risk of contempt, and the risk of breaching a statutory prohibition suppressing publication and a court order to like effect, he fails to allow appropriately for the substantial libel risk.
18. The evidence of TH and of MH was strongly supportive of RH's own evidence as to his focus. The fact that RH sought and took the legal advice was important in more than one way. On the one hand, it was very clear from the evidence of TH that the focus of RH was on how the DV order affected his links with his children. That became her focus, and what she asked him to read more than once to her were the parts of the DV order that had that focus. On the other hand, the circumstance that RH sought the advice, showed his responsible attitude. It showed his concern to ensure that he understood: the risks linked to the DV order; what was acceptable and what was not; and what was a substantial risk and what was not.
19. I noted above my assessment that RH had not focused on either the purpose of the DV order, namely the minimizing of his contact with LL. I have also noted above that there was little evidence before me as to any circumstance that warranted the minimizing of that contact. If RH had taken the terms of both orders to TH, given them to her to review and then went through them with her, I have no doubt that a very different assessment of potential risks would have resulted.
20. Because, for the reasons set out above, I am not satisfied that, in the circumstances as they evolved in February of last year, RH was reckless in acting as he did, I find him not guilty of the offence as charged.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
2. That the children otherwise live with the mother.
R
RH [2011] ACTSC 38