Veness v Hodge

The Statutory Scheme

1. Section 10(1) of the Crimes Act provides that its object in relation to personal violence, as distinct from domestic violence, is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. Section 10(2) provides that the Act aims to achieve that object, relevantly, by empowering courts to make an APVO in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking.
2. Under s 18 of the Crimes Act, an application may be made for an APVO for the protection of one person against another person. Section 19 relevantly provides that a court may, on such an application, make an APVO if it is satisfied, on the balance of probabilities, that a person has reasonable grounds to fear and, in fact, fears:

• the commission by the other person of a personal violence offence against the person, or
• the engagement of the other person in conduct in which the other person intimidates or stalks the person. Conduct may amount to intimidation of a person even though it does not involve actual or threatened violence to the person, or it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. However, the conduct in question must be conduct that, in the opinion of the court, is sufficient to warrant the making of the APVO. The term personal violence offence is defined in s 4 in terms that are not presently relevant.

1. Section 20 relevantly provides that, in deciding whether or not to make an APVO, the court must consider the safety and protection of the person seeking the APVO and must consider any hardship that may be caused by making or not making the order, together with any other relevant matter. When making an APVO, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that are, in the opinion of the court, necessary for the safety and protection of the protected person and the protected person's property. The term protected person means the person for whose protection an APVO is sought or made.
2. Sections 19 and 20 of the Crimes Act are central to the power of the Local Court, and of the District Court on appeal, in matters such as the present. The power to make an APVO is enlivened if the court is, on the balance of probabilities, satisfied of the matters described in s 19. If, and only if, that state of satisfaction is reached, the next question is whether the power should be exercised. The duty to consider the matters in s 20 then arises. The first, and indispensable, task of the court under s 19 is to address two questions. The first is whether fear in fact exists. The second is whether there are reasonable grounds for that fear on the part of the applicant. The positive power to make an order under s 19 is enlivened and available to be exercised only if the Court has reached the specified state of satisfaction as to those matters (Mahmoud v Sutherland [2012] NSWCA 306 at [21], [23] and [25]).
3. Section 35 relevantly provides that, when making an APVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as seem necessary or desirable to the court. More particularly, an APVO may impose prohibitions or restrictions on specific conduct, such as approaches by the defendant to the protected person, access by the defendant to particular premises or places and destroying or deliberately damaging, or interfering with, a protected person's property.
4. However, content was given to the APVO granted by the Local Court and the District Court by s 36 of the Crimes Act. Under s 36, every APVO is taken to specify that the defendant is prohibited from doing any of the following:

• assaulting, molesting, harassing, threatening or otherwise interfering with the protected person;
• engaging in any other conduct that intimidates the protected person;
• stalking the protected person. Thus, unless the power conferred by s 35 is exercised, an APVO does not prohibit specific conduct. Rather, once granted, an APVO prohibits, as deemed by s 36, a person from engaging in conduct that has a particular character. The power conferred by s 35 was not exercised in the present case.

1. Section 36 uses words such as "assaulting", "molesting", "harassing", and "intimidates" and "stalking". While the terms "intimidate" and "stalking" are defined in s 7 and s 8 respectively, the other terms are not. Accordingly, they are to be given their ordinary English meanings.
2. Section 7 of the Crimes Act provides that intimidation of a person means:

• conduct amounting to harassment or molestation of the person;
• an approach made to the person by any means that causes the person to fear for his or her safety; or
• any conduct that causes a reasonable apprehension of injury to the person, or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence in the person's behaviour.

1. Under s 8 of the Crimes Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity. For the purpose of determining whether the person's conduct amounts to stalking, a court may have regard to any pattern of violence in the person's behaviour.
2. The jurisdiction conferred by the Crimes Act has the flavour of criminal process. Thus, apart from its name, s 84(2) of the Crimes Act relevantly provides for an appeal to the District Court against the making of an APVO by the Local Court. Such an appeal is to be made under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal Act) in the same way as an application made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW). Under s 18 of the Appeal Act, an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings. Fresh evidence may be given, but only by leave of the District Court, which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

The Findings, Conclusions and Reasons of McCosker LCM

1. It appears that there had been a long-running dispute between Ms Veness and Ms Hodge. Since 2003, Ms Veness's husband, Mr John Fowler, had managed a water transport business known as "Port Macquarie Cruise Adventures". Ms Veness assisted him by managing his floating ticket office and his main office. From 25 July 2012, Ms Hodge carried on a seaplane business from a pontoon adjacent to one of the berths from which Mr Fowler carried on his cruise business. Both businesses were situated on the Port Macquarie Town Wharf.
2. McCosker LCM observed that a possible explanation for the dispute lay in an alleged affiliation between Mr Fowler and an aircraft operator from Gladstone in Queensland who it seemed to his Honour had likely tendered for the site occupied by Ms Hodge. His Honour said that it was postulated that the business of Mr Fowler and Ms Veness may have achieved some financial remuneration through ticketing and other agent fees. His Honour did not consider that the evidence on that issue was persuasive enough to prove the point conclusively. However, his Honour was of the view that it could not be discounted as a realistic possibility.
3. While Ms Hodge was not permitted to operate her business before 25 July 2012, she operated her aircraft prior to that day as a non-profit activity until she obtained the necessary approvals. However, by the time she commenced operating the seaplane business on 25 July 2012, Ms Hodge had the necessary approvals and endorsements and insurance to operate her business from the waterfront.
4. Ms Hodge claimed that, on and from the date of the commencement of her business, she had had difficulties with either Ms Veness or Mr Fowler. Those difficulties resulted in her ceasing her operations on and from 25 March 2013. Additionally, her approval to operate the business was withdrawn until the present proceedings had concluded. She asserted that that course had been taken because of the possibility of sabotage of her aircraft, although there was no official confirmation of that assertion.
5. Ms Hodge applied to the Local Court for an APVO on the basis that Ms Veness, or other persons acting on her behalf, had unnecessarily interfered with her by photographing her while she was working at her seaplane business. Ms Hodge also relied on comments made by Ms Veness that were contrary to Ms Hodge's ongoing business interests, being comments asserting that her business was operating illegally. Ms Hodge also made allegations of other forms of interference by Ms Veness and those associated with her, such as preventing her from accessing the waterfront facilities provided for use by all businesses on the Port Macquarie Town Wharf.
6. McCosker LCM found that the issues between the parties were not of recent origin. His Honour also referred to other incidents outside the grounds of the application involving additional parties, which, his Honour said, left an impression that the difficulties at the Port Macquarie waterfront were "both complex and deeply enshrined", such that they had resulted in "a very toxic environment", where all participants purported to take the high moral ground and claimed to be the victims of the inappropriate or criminal behaviour of others. His Honour said that the substantive issues to be resolved could be reduced to whether there had been disparaging comments made about the legality of the business operations of Ms Hodge and whether there had been a level of disturbance of those business operations by the behaviour of either Ms Veness herself or others acting at her behest.
7. McCosker LCM said that Ms Hodge asserted that she had been stalked by Ms Veness, "as a result of the constant photographing of her and her aeroplane", by Ms Veness and by persons "in the form of Mr Mansfield and Ms Lowe", whom Ms Hodge believed were acting at the request of Ms Veness. Ms Hodge asserted that the effect of those actions was that she became intimidated. Mr Mansfield and Ms Lowe explained their actions as being prompted by concerns about the refuelling practices of Ms Hodge, which they viewed as potentially compromising to public safety. His Honour found that, while that may initially be accepted as a legitimate reason to capture images of refuelling practices, the integrity of the assertions may have been questionable and the real explanation lay elsewhere.
8. Ms Hodge relied, inter alia, on the evidence of Mr Braden Cosmire and Mr Andrew Bird, who said that they overheard Ms Veness making comments to persons enquiring about the seaplane operations, to the effect that the aircraft was being operated illegally and that there was no insurance cover in place for the benefit of patrons. McCosker LCM observed that that evidence was not corroborated by the persons to whom the comments were said to have been made, and that Ms Veness had submitted that the comments were not made at all. His Honour found that the evidence was "of assistance" but not of itself determinative.
9. McCosker LCM found that there were indeed concerns about refuelling practices employed at the waterfront for both marine craft and Ms Hodge's seaplane. His Honour said that it mattered not how the issues were raised, but that it was important that the issue had been subject to review by WorkCover NSW, which resulted in what his Honour described as a "seismic shift" in operational practices, with marine vessels no longer being permitted to be refuelled at the waterfront site of the individual operators, but rather at the Port Macquarie Marina. His Honour also accepted that the initial complaints regarding refuelling were established and justified the issue of improvement notices by WorkCover. However, such notices were not issued to Ms Hodge alone: other operators were required to streamline their refuelling practices as well. While a refuelling improvement notice was issued in respect of Ms Hodge's seaplane business, it was acknowledged that, because of the unique nature of the aircraft and its lack of land base capabilities, there were no other viable or reasonable alternatives to refuelling at the same site, albeit under varied conditions. His Honour found that Ms Hodge had complied with the altered practices required by WorkCover to the satisfaction of Mr Rod Allen, an inspector with WorkCover.
10. McCosker LCM found that complaints to WorkCover about Ms Hodge's seaplane had originated only from Mr Fowler and Ms Veness. No other independent member of the public or waterfront operator had made a complaint about Ms Hodge. No complaints of a similar nature had been received prior to Ms Hodge's owning and running the business. Further, there was no evidence of any complaint from any person about the post-investigation refuelling arrangements, other than from Ms Veness and persons associated with her.
11. McCosker LCM observed that there could be no criticism of Ms Veness for bringing her concerns to the attention of the appropriate authority. His Honour accepted that it was within the province of any person to make a bona fide complaint to the appropriate authority about issues that trouble the person. However, in his Honour's view, once such a complaint has been investigated and either actioned or dismissed, that should, in the normal course of events, be the end of the matter. His Honour observed that Mr Allen retained no lingering issues with the ongoing compliance by Ms Hodge with the required refuelling improvements that had been introduced.
12. However, McCosker LCM found that Mr Allen continued to receive regular complaints from Ms Veness regarding Ms Hodge. While he only received one formal complaint from her, his contact with her was far more extensive. He said that he probably received in excess of 40 calls, in respect of only 20 of which he made an official notation. He said that he refused to take action on the ongoing complaints by Ms Veness because he formed the view that they were "vexatious in nature", since the refuelling and operation of the seaplane had been successfully dealt with by WorkCover. McCosker LCM regarded Mr Allen's evidence as "telling", since his Honour considered that the prior experience of Mr Allen, as a trained investigator to detective standard in the New South Wales Police Force, adequately equipped him to form such a view.
13. Ms Veness did not deny that she had taken photographs of Ms Hodge refuelling her aircraft. She said that she did so at the request of Mr Allen, although that proposition was not put to Mr Allen for his comment when he gave evidence. In any event, McCosker LCM concluded that Ms Veness sought to justify her photographing of Ms Hodge on an indefensible basis. His Honour found that there was an attempt to legitimate the photographing activities by claiming that they were undertaken out of concern for public safety and welfare, when there was no reasonable basis to hold that view. His Honour concluded that the real purpose was to continue to interfere with Ms Hodge and to cause harassment by making it abundantly clear that she was being regularly photographed.
14. McCosker LCM found that there had been a total marginalisation of Mr Fowler and Ms Veness by other independent business operators at the waterfront. Ms Veness described those operators as "a coalition of bullies formed to rail against us". His Honour posed the question as to what motive lay behind such a situation and who was to gain from it. His Honour concluded that there was "a toxic environment" in place at the waterfront and that Ms Veness did not enjoy a cordial relationship with other business operators in the area. His Honour considered that Ms Hodge's evidence concerning unnecessary interference with her business and that of others would provide a framework for an explanation for the situation, since nothing in the evidence of Ms Veness was capable of doing so.
15. McCosker LCM said that Ms Hodge had indicated that, due to the ongoing behaviour of Ms Veness, she was unable to continue her business operations and that she was intimidated by Ms Veness. His Honour said that he was satisfied, to the requisite standard, that the behaviour of Ms Veness fell within the definition of intimidation under s 7 of the Crimes Act. His Honour was further satisfied that the fears expressed by Ms Hodge were a reasonable response to the behaviour of Ms Veness and that it was sufficient to warrant the making of the APVO claimed by Ms Hodge.

Decision of Ellis DCJ

1. In his reasons of 2 April 2014, Ellis DCJ observed that it was for him, utilising the materials that were before McCosker LCM, to determine whether he was satisfied, on the balance of probabilities, that an APVO should be made. He then restated the requirements of s 19 of the Crimes Act.
2. Ellis DCJ considered that it was clear from the reasons of McCosker LCM that his Honour had accepted the evidence given by Ms Hodge and by those who were called in her case to give supporting evidence regarding the conduct of Ms Veness. His Honour observed that McCosker LCM had rejected Ms Veness's denials of the allegations and had rejected her evidence regarding her motivation for doing some of the things that she agreed that she had done. His Honour said that he did not propose to go through "each and every witness" since the basis of Ms Hodge's application was that there was ongoing conduct that amounted to harassment and molestation, in the sense of ongoing pestering. His Honour said that, having read the material and having had the benefit of reading what he believed were the views of McCosker LCM in relation to the witnesses, his Honour accepted the evidence of Ms Hodge and the evidence of the various witnesses who were called in her case and rejected the evidence of Ms Veness and those who were called in her case.
3. Ellis DCJ accepted that there had been no actual violence, but observed that it is not necessary for there to be actual violence before s 19 of the Crimes Act can operate. His Honour observed that the purpose of the legislation is "to ensure peace between citizens". His Honour accepted that the Court needs to be careful that orders under s 19 are not misused in the way that such orders can be, "in terms of family disputes, custody struggles, etc". His Honour said that it seemed to him that "the legislation is specifically aimed at this type of problem", although his Honour did not explain what he meant by "this type of problem".
4. Ellis DCJ found that, as McCosker LCM put it, "there clearly is a toxic environment down on the wharf … as between Ms Veness and her partner, Mr Fowler, and the business they run and every other business operator on the wharf". His Honour rejected the notion that "there is a coalition of bullies against Ms Veness and Mr Fowler". His Honour considered that an APVO could work very effectively "in circumstances such as this". His Honour accepted that an order ought not to be made lightly, but observed that "in a situation such as this, these businesses have to get along because, unless someone goes out of business, they need to operate from that particular location".
5. Ellis DCJ went on to observe that, while there had been no actual threat of violence, the reality was that "toxic environments where harassment and molestation takes place often provide the background or basis for significant breaches of the criminal law". His Honour said that at least one of the purposes of the Crimes Act was to try to "water down such environments, so that the chances of any volatile conflagration are minimised". His Honour said that he found himself in agreement with McCosker LCM and, on the evidence, accepted that Ms Hodge fears ongoing harassment or intimidation by means of harassment and molestation and that there are, on the balance of probabilities, reasonable grounds for her to hold those fears. His Honour concluded that the conduct was such as to be sufficient to warrant the making of an APVO.

Grounds of Review

1. There is no right of appeal to this Court from a decision of the District Court exercising appellate jurisdiction. However, the District Court is subject to judicial review under s 69 of the Supreme Court Act. The question on such review is whether the District Court has fallen into error and whether any such error can be characterised as jurisdictional error or error on the face of the record. This Court has jurisdiction to grant relief in the nature of prohibition, certiorari or mandamus for the purposes of enforcing the limits or the statutory authority of the District Court. Indeed, a privative provision that purports to strip the Court of its authority to confine an inferior court to the limit of its jurisdiction, by granting relief on the ground of jurisdictional error, would be beyond the powers of the State legislature because it would remove a defining characteristic of the Supreme Court of NSW (Kirk v Industrial Court of NSW [2010] HCA 1; 239 CLR 531 at [55]).
2. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Instances of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of its functions or powers include the absence of a jurisdictional fact, disregard of a matter that the relevant statute requires to be taken into account as a condition of jurisdiction and misconstruction of the relevant statute, thereby misconceiving the nature of the function that the inferior court is performing or the extent of its powers in the circumstances of the particular case (Kirk v Industrial Court of NSW at [72]).
3. In her summons, Ms Veness specified eleven grounds, each of which, taken separately or together, was asserted to constitute jurisdictional error, such that the decision of the District Court is invalid. She asserted that Ellis DCJ:

• misstated and fundamentally misconceived the object of the Crimes Act, and of s 19 in particular;
• wrongly determined that s 19 was well suited and very effective to determine, by means of an APVO, what was essentially a poor relationship between two business neighbours;
• wrongly determined that an appropriate consideration under s 19 was that businesses in close proximity should "get along", which was an irrelevant consideration to take into account;
• wrongly determined that s 19 was directed towards "watering down" difficult business environments so that the chances of any volatile conflagration are minimised, that being an irrelevant consideration to take into account;
• wrongly determined that Ms Veness engaged in "molestation" of Ms Hodge pursuant to s 19;
• failed to identify or find any conduct by Ms Veness that intimidated Ms Hodge within the meaning of the Act;
• wrongly determined that an APVO was required even though there was no actual threat of violence and there had been no criminal conduct;
• failed to identify or find any particular conduct by Ms Veness that amounted to harassment or molestation of Ms Hodge within the meaning of the Act;
• made his decision without first satisfying himself that Ms Veness had engaged in any particular conduct in which she intimidated Ms Hodge;
• made his decision without first forming an opinion that Ms Veness had engaged in any particular conduct that was sufficient to warrant the making of an order, as required by s 19; and
• failed to set out, or failed to set out sufficiently, the reasons for his decision.

1. Ms Veness contends that Ellis DCJ misstated and appears to have entirely misunderstood the object of the Act as stated in s 10. She says that the Crimes Act is not, as his Honour stated, specifically aimed at this type of problem, where "there is clearly a toxic environment". Further, she says, it is not the object of the Act to ensure that businesses "get along" or to "water down such environments so that the chances of any volatile conflagration are minimised". She contends that his Honour's misconstruction of the object of the Act in relation to personal violence resulted in misconstruction and misapplication of s 19 and that that constitutes jurisdictional error.
2. Furthermore, Ms Veness claims, Ellis DCJ took into account several irrelevant considerations in so far as he considered that an appropriate consideration under s 19 was that businesses in close proximity should "get along" and that s 19 was directed towards the Court "watering down" difficult business environments, "so that the chances of any volatile conflagration are minimised". She says that the taking into account of those considerations involved jurisdictional error.
3. Ellis DCJ found that there had been no actual violence and no actual threat of violence and that no single incident was ever likely to reach the standards required by s 19. Ms Veness complains that his Honour did not refer to s 20(1) of the Act, which required him to consider the safety and protection of Ms Hodge. She says that, if his Honour had complied with that requirement, he would have readily concluded that there was no threat at any time to Ms Hodge's personal safety and that an APVO was not warranted. Therefore, Ms Veness asserts, jurisdiction to confirm the order made by McCosker LCM was not enlivened or was unperformed.
4. Ms Veness complains that, notwithstanding that Ellis DCJ was conducting the appeal by way of rehearing, his Honour did not identify any specific conduct by Ms Veness that warranted the making of an APVO. All that his Honour said was that there had been ongoing conduct that amounted to harassment and molestation, in the sense of "ongoing pestering", and that an accumulation of incidents had led him to conclude that Ms Hodge did and does in fact hold fears. Ms Veness complains that his Honour did not identify:

• what conduct;
• what incidents; or
• fears of what?

1. Ms Veness points out that McCosker LCM had found that her photographing of Ms Hodge refuelling her seaplane up to 8 December 2012 was "legitimate" and that there could be no criticism of her bringing her concerns to the attention of the appropriate authority at that time. She says that Ms Hodge, in her statement of evidence, did not allege any incident of Ms Veness's photographing Ms Hodge refuelling her seaplane after 8 December 2012. Accordingly, Ms Veness says, there was no basis for concluding that there was any conduct that would justify the making of an APVO.

Disposition of the Proceedings

1. Ms Hodge contends, in effect, that the reasons of Ellis DCJ should be understood as saying that, having considered all of the evidence before McCosker LCM, his Honour accepted the findings made and conclusions reached by McCosker LCM for the reasons given by McCosker LCM. That would raise a question as to whether there was error on the part of McCosker LCM in his fact findings, conclusions and reasoning. However, no contention was advanced on behalf of Ms Veness identifying any specific error on the part of McCosker LCM. Rather, the complaint made by Ms Veness is as stated in her summons and summarised above, namely, error on the part of Ellis DCJ.
2. Senior counsel for Ms Veness, when asked in the course of address in chief, made no complaint about the findings or reasons of McCosker LCM. However, when asked in the course of his reply to confirm that, if the reasons of Ellis DCJ were to be construed as an adoption of the findings and conclusions of McCosker LCM, for the reasons given by him, he suggested that the reasons of McCosker LCM were not free from relevant error. However, counsel did not develop any submission as to error on the part of McCosker LCM, and in any event, counsel said that that question was not presently before the Court. In those circumstances, the first question before this Court is whether the reasons of Ellis DCJ can fairly be read and understood as adopting the findings and conclusions of McCosker LCM for the reasons given by McCosker LCM.
3. The reasons of Ellis DCJ must be construed in the context in which the appeal was heard and reasons were given by his Honour. It was not disputed that the decision was given ex tempore in the course of a busy criminal list in the country town of Port Macquarie. While that is not a justification for a judge to fail to discharge his or her judicial duty to give adequate reasons, it is a circumstance relevant to construing what was actually said by a judge in dealing with an appeal in such a list (see, eg, in the context of a Magistrate's Court, Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15], [17]).
4. Ellis DCJ observed that the hearing before McCosker LCM occupied three days. The transcript of the hearing ran to approximately 180 pages and there were approximately 40 exhibits, which included documents, statements, photographs and a DVD. The matter was mentioned before his Honour on the first day of the sittings and fixed for hearing on 2 April 2014. His Honour said that the matter proceeded before him on the basis that he would read all of the material that had been before McCosker LCM, together with the transcript of the evidence and the reasons for judgment of McCosker LCM. His Honour said that he did that prior to the commencement of the hearing of the matter on the morning of 2 April 2014. There is no reason to doubt that his Honour did what he said he had done.
5. Ellis DCJ accepted that the matter proceeded before him on the basis that it was essentially starting afresh. That is to say, his Honour treated the matter as an application by Ms Hodge for the grant of an APVO. His Honour recorded that Ms Veness, through her counsel, ultimately contended that there were no reasonable grounds for Ms Hodge to hold the relevant fear, assuming that she did, in fact, hold the relevant fear. Ms Veness also contended that, in any event, the conduct that was the subject of the complaint was not sufficient to warrant the grant of an APVO.
6. Ellis DCJ then observed that his task was to determine whether he was satisfied, on the balance of probabilities, that an APVO should be granted, utilising the material that he had briefly described. His Honour referred to the provisions of s 19, observing that a court may make an order if it is satisfied, on the balance of probabilities, that an applicant has reasonable grounds to fear, and in fact fears, that the other person will engage in conduct that intimidates the applicant and the conduct is, in the opinion of the court, sufficient to warrant the making of the order. That was a fair statement of the effect of s 19.
7. Ellis DCJ observed that, under s 19(3), conduct may amount to intimidation of the person even though it does not involve actual or threatened violence to the person or it consists only of actual or threatened damage to property belonging to, in the possession of, or used by the person. His Honour then referred to s 7 as relevantly defining intimidation as conduct amounting to harassment or molestation of the person. His Honour said that, while molestation is not defined, in its ordinary meaning, it refers to "behaviours that are found to be ongoing and unwanted and of a pestering, interfering or sexual nature" (citing PE v MU [2010] NSWDC 2 at [16]).
8. Ellis DCJ recognised that McCosker LCM had had the benefit of seeing and hearing the various witnesses give their evidence, which would normally put McCosker LCM in a better position to make decisions as to credibility. His Honour observed that McCosker LCM had concluded that he was satisfied that the behaviour of Ms Veness amounted to intimidation under the Crimes Act, that the fear expressed by Ms Hodge was a reasonable response to the behaviour of Ms Veness and that the conduct was sufficient to warrant the making of the orders sought by Ms Veness. His Honour considered that it was clear, from his reasons, that McCosker LCM had accepted the evidence given by Ms Hodge and those who were called in her case to give supporting evidence regarding the conduct of Ms Veness, had rejected the denials of Ms Veness of the allegations and had rejected her evidence regarding her motivation for doing some of the things that she agreed that she had done.
9. Ellis DCJ then said that a lot of material had been placed before him and that he did not propose to go through each and every witness, since it was apparent to him that the basis of Ms Hodge's application was that there was ongoing conduct that amounted to harassment and molestation, in the sense of ongoing pestering. While his Honour accepted that no one single incident would be likely to reach the standards required under s 19, the accumulation of incidents led his Honour to conclude that Ms Hodge did and does in fact hold certain fears. His Honour then said that, having read the material, he accepted the evidence of Ms Hodge and the various witnesses who were called in her case and rejected the evidence of Ms Veness and those who were called in her case, in terms of their various denials of conduct.
10. After making several further observations concerning the objects of the Crimes Act and the circumstances in which an APVO should be ordered, Ellis DCJ said the following: I have closely considered the arguments put by Mr Glisson, both by means of the cross-examination at the Local Court, by means of the written submissions and by means of his supplementary oral submissions here today. However, I find myself in agreement with the magistrate. That is, that on the evidence that I accept, I accept that Ms Hodge is fearful and she fears ongoing harassment or intimidation by means of harassment and molestation and that there are, on the balance of probabilities, reasonable grounds for her to hold those fears as she does and the conduct in my view is such as is sufficient to warrant the making of an order. Thus, what Ellis DCJ effectively did was to incorporate by reference the findings and reasons of McCosker LCM as his Honour's own reasons for granting the APVO. That is to say, Ellis DCJ accepted that the conduct of Ms Veness, which conduct was not described in his Honour's own judgment but which was specified at length in McCosker LCM's reasons, satisfied the requirements of s 19 of the Crimes Act.
11. It may be that some complaint can be made about the observations of Ellis DCJ concerning the object of the Crimes Act. For example, while his Honour observed that the purpose of the legislation is "to ensure peace between citizens", which was not disputed on behalf of Ms Veness, his Honour also said that the legislation is specifically aimed "at this type of problem". Although his Honour did not define "this type of problem", that comment could be construed as straying from the object of the Act as stated in s 10.
12. His Honour then referred to the finding by McCosker LCM that there is "a toxic environment down on the wharf" as between Ms Veness and Mr Fowler and the business they run, on the one hand, and every other business operator on the wharf, on the other. His Honour rejected the contention advanced on behalf of Ms Veness that there was a "coalition of bullies" against her and Mr Fowler. His Honour subsequently said that "in a situation such as this, these businesses have to get along because, unless someone goes out of business, they need to operate from that particular location".
13. Ellis DCJ then said that each person who operates a business on the wharf is entitled to run his or her business without it being interfered with by other nearby businesses or by other individuals. His Honour observed that toxic environments, where harassment and molestation take place, often provide the background or a basis for significant breaches of the criminal law because they provide an atmosphere where people are likely to be emotional and volatile, which can in turn lead to spontaneous conduct that is both serious and criminal in its nature. Thus, his Honour concluded, at least one of the purposes of the Crimes Act is to try to "water down such environments, so that the chances of any volatile conflagration are minimised".
14. Those observations as to the object and purpose of the Crimes Act do not necessarily accord precisely with s 10, which I have summarised above. Nevertheless, the observations must be understood as directed to the parties before his Honour. The observations should not be read as stating anything more than the background against which the dispute between Ms Hodge and Ms Veness existed. I do not read the observations as constituting a misapprehension or misunderstanding on the part of Ellis DCJ as to the relevant object of the Crimes Act or the function and duty that he was performing in deciding the appeal under s 84(2)(a) of the Crimes Act and s 18 of the Appeal Act.

Conclusion

1. In circumstances where Ellis DCJ made his decision and gave his reasons for that decision ex tempore, immediately following the completion of oral argument, I consider that his Honour's reasons should be understood as saying that, having considered all of the material before McCosker LCM, his Honour accepted the findings and conclusions of McCosker LCM, for the reasons given by McCosker LCM. There was no error - whether jurisdictional error or error on the face of the record - on the part of Ellis DCJ in adopting that approach. There being no error established (or alleged) on the part of McCosker LCM, it follows that no basis has been established for interfering with the decision of Ellis DCJ. The summons filed on 2 July 2014 should be dismissed with costs.
2. ADAMSON J: I have had the benefit of reading in draft the reasons of Barrett and Emmett JJA. I agree with the orders proposed by Emmett JA for the reasons his Honour gives. I also agree with the additional remarks of Barrett JA.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2015