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District Court 5 February 2021

Purcell v Director of Public Prosecutions (NSW)

[2021] NSWDC 10

Domestic & family violencePublic order & justice offences
CRIMINAL CONVICTION APPEAL DOMESTIC VIOLENCE OFFENCE STALKING AND INTIMIDATION PROOF OF SERVICE OF INTERIM AVO HEARSAY RULE

Citation: Purcell v Director of Public Prosecutions (NSW) [2021] NSWDC 10
Court: District Court of New South Wales
Date: 5 February 2021
Judge: Abadee DCJ

Background

The appellant was convicted in the Manly Local Court on 28 April 2020 of three offences arising from conduct toward a protected person. The first charge was contravening an interim apprehended violence order (AVO) on 5 January 2019. The second and third charges both arose from conduct on 18 January 2019: intimidating the protected person with intent to cause fear of physical or mental harm, and again contravening the interim AVO.

The interim AVO had been made ex parte on 1 November 2018, when the appellant was not present in court. She was directed to appear on 20 November 2018, and the evidence indicated a police officer had served the order on 6 November 2018. The appellant did not dispute the underlying conduct; her challenge was confined to two technical grounds.

On appeal to the District Court, the appellant argued that her convictions for the AVO contravention charges should be set aside because the order was not validly served on her, and that all three charges were bad for duplicity (a legal defect where a single charge alleges more than one distinct offence).

  • Whether the interim AVO was "served" on the appellant in accordance with the requirements of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), such that an essential element of the s 14(1) contravention offence was made out
  • Whether the reference to "rules" governing service in s 55(2) of that Act meant the Local Court Rules 2009 (NSW), or some other body of rules created under the CDPV Act itself
  • Whether a statement of service, where the serving officer was not called to give evidence, was admissible as a business record under s 69 of the Evidence Act 1995 (NSW)
  • Whether the appellant's subsequent court appearance and demonstrated familiarity with the AVO's terms could support an inference that she had been served
  • Whether the three charges were bad for duplicity, given that each charged conduct occurring over a period of time or involving multiple acts

Decision

Service of the interim AVO

Abadee DCJ dismissed the appellant's argument that the "rules" governing service under s 55(2) were something other than the Local Court Rules 2009. The definition of "rules" in s 47 of the CDPV Act, which applies within Part 10, expressly means rules made under the Local Court Act 2007. The CDPV Act itself creates no separate rules. The Court also observed that s 55, which concerns service of an "application notice" to commence proceedings, was arguably a red herring: the essential element under s 14(1) is that the AVO itself be served, not the application notice.

His Honour upheld the Magistrate's finding that service was established. The statement of service completed by the serving officer was admissible as a business record under s 69 of the Evidence Act, notwithstanding that the officer was not called to give oral evidence. The appellant's attendance at court on 20 November 2018, her evident familiarity with the AVO's terms, and her own cross-application for an AVO against the protected person all provided a strong inferential basis for the conclusion that she had been personally served, as the Magistrate had found.

Duplicity

The Court rejected the duplicity argument in relation to all three charges. Each charge described a course of conduct within a defined time period at a single location, which is a permissible way to frame a charge. Duplicity concerns a charge that alleges two or more distinct offences in a single count; it is not engaged merely because a course of conduct involves multiple acts. The evidence going to the various acts was properly treated as items from which the trier of fact could determine whether the offence was made out. The Court was satisfied the charges were not unfair to the appellant, particularly given the voluminous evidence served on her.

Outcome

All three conviction appeals were dismissed and the convictions were confirmed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, the Crown must prove that the defendant was served with the AVO itself or was present when it was made; service of an "application notice" under s 55 is a distinct requirement and not an element of the contravention offence.
  • The District Court confirmed that the term "rules" in Part 10 of the CDPV Act refers to the Local Court Rules 2009 (NSW), as defined by s 47 of the Act; no separate body of rules exists under the CDPV Act for this purpose.
  • A statement of service prepared by a police officer who did not give oral evidence at trial was admissible as a business record under s 69 of the Evidence Act 1995 (NSW), satisfying the hearsay exception for records made in the course of an ongoing business activity.
  • Subsequent conduct, specifically attending court, demonstrating knowledge of an AVO's terms, and filing a counter-application, can support an inference of prior personal service of the order.
  • Framing a single charge by reference to a course of conduct occurring over a defined period and at one location does not render that charge duplicitous; duplicity arises where a single count alleges two or more legally distinct offences, not merely where multiple acts make up one course of conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 13, 14, 22, 24, 47, 50, 52, 55, 66, 73, 76, 77
- Crimes (Domestic and Personal Violence) Regulation 2014 (NSW)
- Crimes (Domestic and Personal Violence) Regulation 2019 (NSW)
- Evidence Act 1995 (NSW), ss 59, 66, 69
- Local Court Act 2007 (NSW)
- Local Court Rules 2009 (NSW), r 5

Cases
- Director of Public Prosecutions v Merriman [1973] AC 584
- Juss v Magistrates' Court at Victoria [2003] VSC 365
- Mahmood v Western Australia (2008) 232 CLR 397
- R (Cth) v Petroulias (No 1) (2006) 217 FLR 242
- R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337
- R v Wilson (1979) 69 Cr App R 83
- Vitali v Stachnik [2001] NSWSC 303
- Young v Sprague [2015] NSWDC 1874