Background
An apprehended domestic violence order prohibited Taz Jenson from stalking, harassing or intimidating his former partner. Jenson knew of the order and its terms. The prosecution alleged that, over approximately two weeks, he called the protected person 61 times, sent her flowers, deposited $5 into her account with a request that she call him, and contacted at least one of her friends to ask that the protected person call him.
The Orange Local Court dismissed a charge under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The magistrate accepted that Jenson did not realise at the time that his conduct contravened the order, although he later acknowledged that it could amount to harassment. The Director of Public Prosecutions appealed on a question of law, asking whether the prosecution had to prove that Jenson knew or intended that his conduct breached the ADVO.
The Court’s Holding
Emmett J held that the prosecution need not prove that a defendant appreciated that the conduct was legally or factually characterised as “harassment,” intended to harass, or intended to breach the ADVO. It must prove that the defendant knew of the order and its terms, intentionally engaged in the alleged conduct, and knew or intended the circumstances or effects relied upon to give that conduct its prohibited character.
Whether intentional conduct in those known or intended circumstances objectively amounts to harassment is for the court to determine. Persistent, unwelcome contact may qualify even if the defendant claims benevolent motives, but harassment is not established merely because conduct is apt to annoy. The Supreme Court expressed no view on whether Jenson’s conduct actually amounted to harassment, allowed the appeal, set aside the order dismissing the s 14(1) charge, and remitted the matter to the Orange Local Court for determination according to law.
Key Takeaways
- A charge under s 14(1) requires knowledge of the ADVO and its terms, intentional conduct, and knowledge or intention concerning the relevant circumstances or effects of that conduct.
- The prosecution does not have to prove that the defendant personally recognised the conduct as harassment or intended to breach the order.
- Persistent, uninvited communications can amount to harassment, but that factual determination remained for the Local Court on remitter.
Why It Matters
The decision clarifies the mental element for knowingly contravening a New South Wales apprehended violence order. A defendant’s idiosyncratic view that repeated contact was not harassment—or assertion of protective or benevolent motives—does not itself defeat liability where the defendant intentionally engaged in the conduct with knowledge of the relevant circumstances.