In the context of offences brought by the police under section 123 of the Family Violence Protection Act 2008 (Vic), this is a question that arises frequently.
In the decision of DPP v. Cormick [2023] VSCA 186, the Court of Appeal held that for the purposes of a prosecution under section 123 of the Family Violence Protection Act 2008 (Vic), the prosecution are not required to prove an offender specifically intended that the consequences of their behaviour cause family violence. In this article, we provide a summary of that decision.
DPP v. Cormick [2023] VSCA 186
Background
The matter came before the Frankston Magistrates' Court as a criminal proceeding involving an allegation of breaching a family violence intervention order.
What was alleged in the Magistrates' Court proceedings?
The accused, Cormick, was alleged to have breached a family violence intervention order under section 123 Family Violence Protection Act 2008 (Vic). The prosecution various breaches by repeated phone calls and text messages. Cormick was charged with several offences of Contravene Family Violence Intervention Orders, and the more serious indictable offence of Persistently Contravene Family Violence Order.
Cormick argued that whilst his communication may have conveyed his frustration and anger as to matters that concerned parenting, he did not intend to commit family violence and his communication and behaviour were explicable for other reasons
Cormick was found not guilty in the Magistrates' Court. The presiding Magistrate did find that his communication was abusive but ruled that the prosecution had failed having regard to all the evidence that he intended to cause emotional and psychological harm by his behaviour.
The prosecution appealed this decision to the single Judge of the Supreme Court who dismissed the appeal and held that the magistrate's interpretation of section 123 was correct. The prosecution then appealed to the Court of Appeal. challenging the interpretation applied by the preceding Magistrate and Judge that section 123 required the prosecution to prove an intention to commit family violence.
The Issues
Central to the Court's analysis was consideration of the way in which the criminal law deals with assessing criminal responsibility for an act. The Court discussed the law as it relates to the mens rea (fault element or intention element) for criminal offences. Usually, a criminal offence requires the prosecution to prove not only that the alleged act was voluntary and intentional but also that an accused by their actions bring about a particular result or consequence of their actions.
The Court was required to consider whether an offence could be established merely by proving that an accused intended the act only that led to the consequences of family violence (for example, harassment, emotional and or psychological abuse.
What did the Court of Appeal Decide?
The Court (majority judgment of Emerton P, Osborn JA, Forrest JA dissenting) recognised that an offence under section 123 could be established even if the behaviour of an accused had unintended consequences:
"The conclusion that the fault element attaching to the conduct prohibited by s 123 of the Act does not extend to the consequence(s) of the conduct means that a person can be convicted of breaching a condition of a family violence intervention order without any intention to do so. As the respondent pointed out, he was required comply with a condition not to commit family violence while still being permitted to have contact with MT. The nature and extent of the prohibition in an order that a person not commit ‘family violence’ is amorphous, particularly in relation to emotional or psychological abuse. While it may be difficult to innocently or unknowingly ‘torment, intimidate or harass’ a family member, the same cannot be said of ‘offend’. It is possible for offence to be caused perfectly innocently for what might, objectively viewed, seem to be the most trivial of slights. It follows that the range of moral culpability embraced by the section is very broad. Yet the consequences for a person charged with contravening a family violence intervention order are potentially significant."
In essence, the Court's decision aligned the mens rea requirement with a general intention to engage in behaviour leading to family violence, rather than a specific intention to breach the intervention order itself. The Court observed that their interpretation was consistent with achieving the purpose of the Family Violence Act 2008 (Vic) as expressed under section 1:
(a) maximise safety for children and adults who have experienced family violence; and
(b) prevent and reduce family violence to the greatest extent possible; and
(c) promote the accountability of perpetrators of family violence for their action
Moreover, the legislature had not intended to provide an intention element to achieve these purposes, but had inserted a requirement to prove intent for the aggravated offence of Contravention of Family Violence Intervention Order to Cause Harm or Fear (Section 123A of the Family Violence Protection Act 2008 (Vic)
What other observations did the Court of Appeal make?
The Court observed that when a Magistrates' Court issues an intervention order against a respondent, the presiding Magistrate must explain to the respondent that any act that causes family violence regardless of whether it was intended will very likely, result in a responding facing a charge of breaching the Order. Consequently, all notification and paperwork provided to a respondent should make this position clear too.
Conclusion
The decision of DPP v. Cormick (2023) VSCA 186 makes clear that in any investigation for a potential breach of a Family Violence Intervention Order that the intention that underlies the actions of an alleged offender is irrelevant. This, in turn, informs the advice provided to an accused before a police interview and the conduct of representation if a person becomes charged with an offence under section 123 of the Family Violence Protection Act 2008 (Vic).
To read the full text of the decision click here.
