CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — where ADVO provides respondent must not “harass” protected person — knowledge and intent in respect of prohibition on behaviour that has a proscribed character — whether prosecution must prove that a defendant knows or intends that their conduct amounts to harassment
STATUTORY INTERPRETATION — meaning of “harass” in ss 7 and 36(b) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) and in ADVO — mental element in s 14(1) of Act — whether Act requires only that defendant intends their conduct and has knowledge or intention as to alleged circumstances or effect of conduct, or whether defendant must know or intend that their conduct amounts to “harassing” the protected person
Quick Take
1For the offence of knowingly contravening a prohibition in an ADVO under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the prosecution must prove the defendant intended their conduct and knew the circumstances relied upon to give that conduct its proscribed character (including the known or intended effect of the conduct and the existence and terms of the ADVO), but is not required to prove that the defendant knew or intended that their conduct amounted to 'harassment' or otherwise attracted the statutory characterisation.
2The distinction between knowledge of essential facts constituting a contravention and knowledge of the legal or evaluative characterisation of those facts — as recognised in Productivity Partners Pty Ltd v ACCC and cognate High Court authority — applies to the mental element in s 14(1), such that a defendant's idiosyncratic or mistaken view that their conduct does not amount to 'harassment' is no defence.
3'Harass' in ss 7 and 36(b) of the CDPV Act bears its ordinary English meaning and does not carry a requirement of intention to harass; where the prosecution case rests on persistent uninvited communications, it may suffice to prove the defendant made the repeated communications knowing or intending that they be received uninvited by the protected person, with the court then determining whether that conduct amounts to harassment.
