Local Court of New South Wales CITATION: DPP v Jeremy Jane [2010] NSWLC 13 JURISDICTION: Criminal PARTIES: NSW Director of Public Prosecutions Jeremy Jane FILE NUMBER: PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 04/29/2010 MAGISTRATE: Magistrate Heilpern CATCHWORDS: AVO- Breach of AVO LEGISLATION CITED: Crimes (Domestic and Personal Violence) Act 2007 CASES CITED: Newcastle City Council v GIO General Ltd (1997) CLR 85 at 113 TEXTS CITED: REPRESENTATION: Mr Laird for the DPP Mr Grew ORDERS: Judgment in favour of the DPP. Reasons for Decision 1 Jeremy Jane (the defendant) is alleged to have breached an Apprehended Violence Order (AVO) on the 18th of March 2009 by assaulting Gay Iloski and causing her grievous bodily harm. 2 There is no issue that the defendant assaulted her and caused her the requisite harm. The only issue is whether the AVO was in force on the 18th of March 2009. The defendant has pleaded guilty to the assault. Agreed Facts 3 The following facts are agreed by the prosecution and the defence: · During 2008 the defendant and Gay Iloski were in a domestic relationship. · On 9 December 2008 Police on behalf of Gay Iloski obtained a provisional order which was served on the defendant on 10 December 2008 with a return date of 17 December 2008 at Balmain Court. · The served order contained the usual information re listing, including that if "you fail to attend the Court may make orders against you" and "If you fail to comply with any condition of the AVO you may be immediately arrested and charged". · On 17 December 2008 the defendant did not attend Balmain Court, and a Final Order was made in his absence for a period of 12 months, including an order not to assault Gay Iloski. · On 18 March 2009 the defendant assaulted Gay Iloski. · On 27 March 2009 the defendant was arrested for the assault and was also charged with breaching the AVO. He was served with a copy of the 17 December order on the 27 March 2009 and was not served prior to this date. The Legislative Framework 4 The charged offence is under s14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (the Act) which relevantly provides: (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. (2) A person is not guilty of an offence against subsection (1) unless: (a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or (b) in any other case, the person was served with a copy of the apprehended violence order. 5 The key definitions in the Act are as follows: "apprehended violence order" means: (a) a final apprehended violence order, or (b) an interim apprehended violence order. "interim apprehended domestic violence order" means an interim apprehended domestic violence order made by a court or Registrar under Part 6 or an authorised officer under Part 7. "interim apprehended violence order" means an interim court order or a provisional order. "provisional order" means an interim apprehended domestic violence order or an interim apprehended personal violence order made by an authorised officer under Part 7. 6 In this case there was clearly no interim order, but there was a provisional order. The key provision with respect to the duration of a provisional order is s32 of the Act: (1) A provisional order remains in force until midnight on the twenty-eighth day after the order is made, unless it is sooner revoked or ceases to have effect under subsection (2) or the application for a final apprehended violence order is withdrawn or dismissed. (2) If a court makes an apprehended violence order against a defendant for the protection of a person protected by a provisional order, the provisional order ceases to have effect: (a) in a case where the defendant is present at court-when the court order is made, or (b) in any other case-when the defendant is served in accordance with this Act with a copy of the court order. 7 The crown contends that the provisional order having been served on 10 December 2010, it would have had effect until 28 days after the order was made, being 6 January 2010. The crown contends that the proper interpretation of s32 of the Act is that an intervening act occurred within that time period, that being that the provisional order was made final. This "brings in to play1" the second limb of s32(1) in that the provisional order ceased to have effect under s32(2). The crown contends that "Clearly the accused falls within the second limb of s32(2) and that the provisional order would remain in force until the accused is served with the order2" 8 The crown contends that this is the appropriate interpretation when one takes into account the context of the legislation and the purpose of the legislation as set out in Section 9 of the Act. The alternative - the expiration of the provisional AVO on 6 January would be a lacuna where the defendant is served with a provisional AVO and does not come to court. This would encourage or reward a defendant who fails to appear, and would be contrary to the aims of the Act in protection from domestic violence. 9 The defence contends that the wording of s32 of the Act, needs to be viewed in the context of s24 of the Act: 24 Interim court order ceases when final court order made or served (1) An interim court order remains in force until: (a) it is revoked, or (b) it ceases to have effect under subsection (2), or (c) the application for a final apprehended violence order is withdrawn or dismissed, whichever first occurs. (2) If a final apprehended violence order is made in respect of an interim court order (whether with or without variation), the interim court order ceases to have effect: (a) in a case where the defendant is present at court-when the final apprehended violence order is made, or (b) in any other case-when the defendant is served in accordance with this Act with a copy of the final apprehended violence order. 10 The defence points to the difference between s32 and s24: "Interim orders are expressly made to stay in force when a final order is until the final order is made (served). There is no such extension in relation to provisional order3" 11 The defence contends that there is a difference between the words "until" in s24 and "unless sooner" in s32, which has the effect that provisional orders are strictly limited in time. This, according to the defence, "makes sense4" as provisional orders are not made by a court. 12 I have carefully considered theses submissions, and have formed the view that s32 is clumsy, but not ambiguous. Under s24, if there is an interim order, and a final order is made in the absence of the defendant, then the interim order continues until the defendant is served with the final order. Section 24 is clear and well drafted. 13 Under s32, where there is a provisional order it continues for 28 days, unless one of three intervening acts occur. The first and third of these, revocation and withdrawal/dismissal, are not relevant for the present purposes. The second is that the 28 days is extended if the order "ceases to have effect". It ceases to have effect if a final order is made and the defendant is served with a copy of the order. 14 In my view, the defendants submissions that parliaments intention is that provisional orders expire after 28 days is not correct in this situation. There was an intervening judicial determination of a final order, thus triggering s32(2). The confusion lies in the rather tortured concept that where an order "ceases to have effect" this means that it continues to have effect beyond the 28 days. In other words, the order does last 28 days unless it ceases to have effect by the intervening final order, in which case the provisional order actually continues to have effect until the final order is served. 15 Such confusion would easily be corrected by framing s32 in the same manner as s24, and in my view parliament ought consider a clarifying amendment. This is particularly so as defendants in apprehended violence order matters before the court are often unrepresented and any confusion only risks the safety of victims of domestic violence. The legislation ought make it crystal clear that a provisional order continues for 28 days, unless a final order is made in which case it continues until the final order is served. 16 I note further that s29 of the Act provides that a provisional order is "taken to be an application for an order under Part 10". An application under Part 10 is definded under s47 of the Act as an application for a final order or an interim order. 17 I have not come to this conclusion as to the interpretation of s32 with ease, and am aware that where there is an ambiguity in a criminal provision, that ambiguity ought be resolved in favour of the accused. However, in my view there is a distinction between the concepts of 'ambiguity', and 'difficult to comprehend'. Section 32 falls into the latter category. 18 If I am incorrect as to my interpretation of s32, I would still be minded to find in favour of the prosecution. The result of the interpretation favoured by the defendant would be completely absurd. A defendant served with a provisional order would be advantaged by not appearing at court, and the victim would be without the protection of an order after 28 days despite a final court order. Parliament could not have intended such a result, particularly in the light of the purpose of the legislation set out in s9 of the Act, and the wording of the consequences of non-appearance on the served provisional order. Parliament obviously intended that a provisional order should expire after 28 days in the absence of a court order. Section 33 of the Interpretation Act 1987 favours a purpose approach to interpretation of statutes, and the court is entitled to give a "strained construction", provided that construction is neither unreasonable nor unnatural – Newcastle City Council v GIO General Ltd (1997) CLR 85 at 113. 19 It was submitted that on the prosecution's favoured interpretation of s32, the 28 days would be meaningless. In my view this is not correct – the 28 days applies to ensure that the matter is listed in a timely manner, and that should the court not make any order (either interim or final) on the first return date, then the provisional order would expire after 28 days. 21 Accordingly, I find that the provisional order was in force at the time of the alleged breach. Magistrate David Heilpern 29 April 2010 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.