A Domestic Violence Order (DVO) Respondent who police discovered sitting next to the Aggrieved in the back of a vehicle, has been found not guilty of breaching the order.
On May 1 this year, “CAE” pleaded guilty to breaching the contact condition of the DVO, but Kingaroy Magistrate Sinclair rejected the plea, saying his view was that “the facts as accepted did not disclose a breach of the order”.
Police argued the order – which prohibited CAE from “contacting or attempting to contact” the Aggrieved – was breached by CAE being in physical proximity to the Aggrieved in the vehicle, which was intercepted by police in the regional town at 3am on 30 March.
CAE’s solicitor argued the breach required communication and none was proven on the facts.
In his decision delivered on Monday, Magistrate Sinclair concluded that the standard “no contact” clause in the DVO only limited CAE from initiating communication with the Aggrieved.
The DVO was made in February 2020 when CAE was charged with a serious criminal offence toward the Aggrieved, and bailed.
The order contained a mandatory condition:
“The Respondent is prohibited from contacting or attempting to contact or asking someone else to contact the Aggrieved, including being prohibited from making telephone calls or sending text messages to the Aggrieved.”
Magistrate Sinclair said Section 58 of the Domestic and Family Violence Protection Act 2012 (Qld) allowed a magistrate to impose “no contact” conditions prohibiting behaviour of a Respondent.
“These are mirrored in the bench forms most Magistrates follow or adapt. The usual terms considered are in relation to attending at the home or work of an Aggrieved or approaching, contacting or locating them,” he said.
“This order made does not use ‘contact’ as a noun. What is prohibited is the Respondent doing something. Not a state of physical affairs such as the parties being ‘in contact’ or ‘touching’.
“The prosecution urges a construction which would change the meaning of the words in the order from their plain or literal meaning to another namely:
‘The Respondent is prohibited from being in contact with or attempting to contact or asking someone else to contact the Aggrieved, including being prohibited from making telephone calls or sending text messages to the Aggrieved.’
“That would be a ‘no approach’ type of condition. That construction would criminalise a state of fact and not behaviour of the Respondent.
“The only behaviour prohibited is contacting or attempting to contact.”
Magistrate Sinclair said there was no evidence of any communication between CAE and the Aggrieved.
“For guilt to be found, the prosecution would have to prove beyond reasonable doubt that the Respondent initiated communication with the Aggrieved.
“There is simply no such evidence. There is no evidence that there was any communication between them, let alone who started it.
“The act of sitting down in the car seat or remaining there knowing the Aggrieved was there is not an act prohibited by the order.
“Even if they were touching, it is not that type of ‘contact’.”
Magistrate Sinclair rejected the police’s submission that CAE’s bail undertaking could inform interpretation of the DVO.
“Magistrates routinely have different conditions in bail and Domestic Violence orders. It is common to leave one order simpler where the other is achieving the protection sought without the need to complicate things by having both mirror one another,” he said.
“In short, you cannot interpret a Domestic Violence Order on what the maker said in any proceeding, however closely related, other than the domestic violence proceedings itself.”
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