Miller v MacDonald [2006] ACTSC 76 (30 June 2006)

Last Updated: 13 February 2007

BRYCE MILLER v SHANE MICHAEL MACDONALD

[2006] ACTSC 76 (30 June 2006)

APPEAL - Convicted before Magistrate for breach of Domestic Violence Order - mistake - sufficiency of evidence to sustain conviction.

Longfield v Glover [2005] ACTSC 25

Longfield v Glover [2005] ACTCA 31

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 102 of 2005

No SCA 103 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 30 June 2006

IN THE SUPREME COURT OF THE )

) No SCA 102 of 2005

AUSTRALIAN CAPITAL TERRITORY ) No SCA 103 of 2005

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: BRYCE MILLER

Appellant

AND: SHANE MICHAEL MACDONALD

Respondent

ORDER

Judge: Connolly J

Date: 30 June 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeals be dismissed.

1. These are two appeals from convictions by a Magistrate in relation to the offence of contravening a domestic violence order. Matter number 102 of 2005 relates to a conviction in relation to the sending of certain articles through the mail, being a package addressed to Mr Miller's daughter containing photographs and gifts, and also a letter.

2. There is no argument, and there was no dispute below, that the package was sent by Mr Miller to his daughter. The argument in relation to what I might call the letter case was in effect a reasonable mistake of law. Mr Miller's evidence below, and he maintained it by submissions today, was that he believed that the domestic violence order that was in place prohibited contact, and I should say that it seems to me that the Magistrate was right in proceeding on the basis that correspondence amounts to contact, and that has been so held in this Court in the matter of Longfield v Glover [2005] ACTSC 25 and confirmed by the Court of Appeal ([2005] ACTCA 31), that while he accepts that he sent the letter, he believed that he was entitled to do so by way of a Family Court order that amended or made more lenient the effect of the domestic violence order.

3. An order had been made by Faulks J in the Family Court shortly before, indeed as I understand from Mr Miller's submissions today, the day that he left Australia for an extended visit to the United States back in 2004. The effect of the Family Court order was to vacate all previous contact orders and to state that while Mr Miller is out of the country he may send gifts and correspondence or postcards to the child provided that the correspondence that is directed to the child is not in some other way an attempt to communicate with the child's mother, and that he may send a photograph from time to time.

4. Mr Miller's argument was that he believed that the package which, in addition to the photograph and gift, contained correspondence, was covered in effect by clause 2 of that Family Court order, and that he did not understand that that Family Court order terminated when he was out of the country. The difficulty for any person seeking a mistake of law defence is that it has long been held to be the case that the person is presumed to know the law.

5. Given the complexity of modern law that may be difficult. But it is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia.

6. The Magistrate also had the evidence of Mr Miller's former wife's solicitor, Ms Northcott, in relation to the events of January 2005 when he had returned. Now I accept that at that meeting Mr Miller suddenly became aware that it was going to be his wife's legal position that there would be vigorous resistance to any contact, that prior to the visit to the United States he had had regular physical contact with his daughter through the well established Marymead regime. While he was out of the country he was able, in reliance of Faulks J's order to maintain contact by way of correspondence, and that it was at this meeting that he learned for the first time that that was going to be resisted.

7. I can understand that that would have been very upsetting for Mr Miller, and I can understand that the shock of that probably meant that what happened prior to that meeting he was not focusing on because of the shock of that. But there is clear evidence that before that was announced Faulks J's order was discussed, there was a discussion as to whether Faulks J's order continued to apply while he was back in the country and that on its face it did not.

8. So it seems to me that the Magistrate had abundant evidence and that indeed the only outcome on that evidence would be a finding that Mr Miller did not have an honest and reasonable mistake as to the law because he had not understood the terms of the Family Court order and it would follow that the conviction should stand.

9. In relation to matter 103 of 2005, that is an appeal from a subsequent finding by a magistrate that he was in breach of the domestic violence order again in relation to contact, this time contact by way of an email. I am of the view that an email communication can amount to contact within the ordinary meaning of the term contact, and that therefore an email can amount to contact. There is no question that the email was sent. I make the point that both the terms of the email and the terms of the letters directed to the child were non-violent and non-threatening, and I want to make that abundantly clear.

10. The argument that Mr Miller put before the Magistrate and which he again put before me by way of submissions, was that the email was sent in error in circumstances where he was intending to send an email to his siblings in the United States, that he copied a series of addresses into the computer that he was using at the time, and that he mistakenly picked up a former email address of his former wife, which was then in the name of Miller.

11. When I read that in the submissions I could see a certain compulsion in that argument, and I did have real doubts as to whether the prosecution in the face of that evidence would be established to the requisite standard of intent or recklessness. At that stage I was unaware of, but now am aware of, and it is before me partly by way of material that Mr Miller has put in today in relation to other matters, was that there had in April 2005 been an interview between Mr Miller and police in relation to an earlier email.

12. Again clearly a non-threatening email, and an email that again on its face was directed to another person, in this case Mr Miller's sister. In that interview Mr Miller said to the police that he had by mistake picked up his former wife's Hotmail address in the name then of Michelle Miller. He said to police on that occasion that indeed not only was he unaware that he had picked that address up and sent it, but he was unaware that that address was even still active, because he was aware that his former wife had a new and different email address which she was using on a regular basis in compliance with Family Court orders to send photographs of his daughter. And I understand that police listened to all of that and there was no charge ever laid in relation to the February email.

13. In relation to the email, the subject of the matter 103 of 2005, the difficulty is that the reasonable mistake that Mr Miller argued before the Magistrate, and argues again before me on appeal, was in effect the same mistake that occurred in February. And it seems to me that a person in his circumstances having been interviewed by police in relation to what I accept was a mistaken email, was clearly in a position where they had to be extremely careful in sending email communications lest they breach the terms of a quite strong domestic violence order and Family Court order.

14. And it seems to me that it cannot be argued at that stage that Mr Miller was not aware that the old Michelle Miller Hotmail address was active because the police had been to see him about that, and that the evidence before the Magistrate that was there was at least recklessness in relation to the sending of that message, given the earlier mistake.

15. In effect, a mistake can be made once, but when the same mistake is made another time it really becomes evidence of recklessness that is sufficient for a conviction. On that basis I am satisfied that the material before the Magistrate was sufficient to sustain the conviction in both cases, and any appeals against conviction should be dismissed.

16. In saying that, I do accept that Mr Miller acted in both cases recklessly rather than intentionally, that there was no intention to harass. That takes me to the appeal against sentence. Both of these were, I accept, low level breaches of a domestic violence order, and involve recklessness rather than intent, and the nature of the correspondence both in the letter and the email was non-violent and non-threatening.

17. However, they occurred at a time when there had been a series of similar non-threatening, non-violent and, at least in relation as I understand the facts of the first four charges, Mr Miller might have very reasonable grounds to think, rather technical convictions for breaches of the protection order. Nonetheless, the record shows that in March 2004 there were four charges found proven, of breaching protection orders relating to an incident on 14 February 2004, which I understand occurred in the precincts of the Family Court.

18. In relation to those matters the Magistrate imposed a very low level penalty of a conviction and immediate release on a $500, 12 month good behaviour bond in relation to each of the four counts. About a week, in fact precisely a week after that hearing before Magistrate Fryar there was another offence alleged which came back before Magistrate Fryar in April 2004 where again a conviction was recorded, and Mr Miller was released without passing sentence other than a good behaviour bond for 18 months. So I assume from that that again that was a very low level offence.

19. Then the day after that there is another allegation of a breach which was again found proven in May 2004 again before Magistrate Fryar. On this occasion a six month sentence of imprisonment was imposed and fully suspended, subject to a two year good behaviour bond. There was another, what must have been very minor, even more minor breach, in fact occurring on the same day which was again found proved and subject to a fine of $800.

20. So by the time that Mr Miller has come before the Magistrate for sentencing in these matters there are three prior appearances relating to seven convictions for breach of a protection order, one of which had resulted in a six month fully suspended sentence. It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence.

21. It seems that Mr Miller was taken into custody following the email matter, and bail was opposed and refused, and he in fact spent 42 days on remand before the matter was dealt with by the Magistrate. He feels a sense of grievance in relation to that. While that is understandable I cannot review a bail order on this appeal, and I really cannot say what would have happened if a bail application had come before the Supreme Court.

22. But nonetheless the Magistrate confronted with a person who had a series of prior offences and who had spent 42 days in custody, imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. And it seems to me that that was really the minimum sentence that a magistrate would be expected to impose, effectively releasing Mr Miller from custody forthwith, subject to an overnight back to the Remand Centre to tidy up the paperwork and then imposing an 18 month good behaviour bond, subject to some conditions. So it seems to me that the appeal against sentence in both cases must also fail.

23. I am pleased to hear that there has been no further difficulties with Mr Miller, who I understand has been devastated by the breakdown of the relationship which in this case I understand has been very traumatic. I can only say that I am pleased that there have been no further difficulties, and that he now clearly understands that he has got to be very, very careful. I do make it clear, and it will be recorded in the transcript of these remarks, that I accept that these incidents, when they occurred, occurred as a consequence of recklessness rather than any intent to harass his former partner, but that is sufficient at law to sustain the conviction, which in both cases seems to me ought to be sustained.

24. The effect of that is that the appeals are dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 30 June 2006

Counsel for the appellant: Appellant in person

Solicitor for the appellant: -

Counsel for the respondent: Ms M Caffery

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 30 June 2006

Date of judgment: 30 June 2006