The Australian Federal Police alleged that our client had contravened a Family Violence Order involving his ex-partner by being within 100 metres of her when none of the relevant exceptions to that condition applied. One of the exceptions, for example, allowed him to be within that distance if he was at changeover for his child. He was otherwise allowed to engage in certain conduct that, on its face, contravened the FVO to the extent that the existing Family Court Orders were inconsistent with the FVO and otherwise permitted the conduct.
A plea of not guilty was entered to the charge and it was listed for a defended hearing in the ACT Magistrates Court. In accordance with its usual directions, after a plea of not guilty was entered the court directed the AFP and ACT DPP to serve on us a copy of the all relevant evidence in the brief of evidence within 10 weeks. Some of this material was served within this timeframe, such as CCTV footage, a statement from the complainant, and police statements and police body-worn camera footage. However, they did not serve any evidence of the FVO being served (an affidavit of service)on our client until well after the 10-week deadline and much closer to the hearing date.
Evidence that a defendant has been personally served the FVO, or was otherwise in court when an FVO was made, is an essential element that must be proved if a defendant is to be found guilty of an offence of contravening the FVO.
At the hearing, we made an application to exclude the affidavit of service on the grounds that disclosure was late. This was a contravention of both Part 3.5A of the Magistrates Court Act 1930 (ACT), which sets out the rules for mandatory disclosure by the DPP, but also the court’s practice directions, which requires parties to file an application in the court along with an affidavit explaining why evidence was served later. The DPP had not made this application.
The Magistrate accepted our submissions that the failure to disclose the affidavit of service on time was a significant contravention of the disclosure rules and ordered that that evidence be excluded from the hearing.
The consequence of the court’s decision, was that there was now no evidence of the defendant being personally served the FVO. The DPP that had no choice but to concede the charge could not be proved. The court dismissed the charge and made an order for costs against the AFP.