Tuesday, 15 February 2011

Police v Beukes [2011] SASC 9: intervention order breaches are strict liability offences

In Police v Beukes the Magistrates' Court of South Australia dismissed a charge that alleged an offence under s 15(1) of the Domestic Violence Act 1994 (SA).

Section 15(1) reads,

(1) A person who contravenes or fails to comply with a domestic violence restraining order or a registered foreign domestic violence restraining order is guilty of an offence.

The prosecution successfully appealed and the matter was remitted for rehearing.

The Ruling

The magistrate dismissed the charge after being left unsatisfied that the accused intended to breach the order that prohibited him from attending his former partner's address. When interviewed by police the accused said that he had been told that the protected person had asked police to revoke the order and that it was therefore revoked. The magistrate found on that basis that the prosecution case was incapable of proving an intention to disobey the order.

On the appeal Vanstone J first examined [at 7] the penalty for a breach, a maximum penalty of imprisonment of 2 years (the same penalty as in Victoria for breach of an intervention order under s 123 of the Family Violence Protection Act 2008).

Vanstone J then turned her attention to the question of whether the offence was one which required a mens rea to be proven.

In He Kaw Teh v The Queen (1985) 157 CLR 523 there was reference to the common law presumption that mens rea – sometimes called an evil intention or knowledge of the wrongfulness of the act – is an essential element in every offence. At 529-530 Gibbs CJ, with whom Mason J agreed, explained the approach to determining whether in creating a statutory offence the Parliament intended that mens rea need not be proved. The Chief Justice said that first, regard must be had to the words of the statute creating the offence. Next, the subject matter with which the statute dealt needed to be considered. Finally, consideration needed to be given to the question of whether imposing strict liability upon a defendant would promote the observance of the provision. That is, was there some means available to a defendant to help him avoid contravention. I do not understand the plurality judgment in CTM v The Queen (2008) 236 CLR 440 at 447, a more recent case dealing with a quite different statutory offence, to question this approach.

In applying this to the interpretation of s 15(1) of the Domestic Violence Act it is apparent that the wording of the section, inasmuch as it does not require knowing or intentional or reckless contravention or failure to comply, tends to the conclusion that mens rea is not required. The subject matter of the Act similarly tends against the presumption. The protective purposes of orders made under the Act could be undermined were it determined that mens rea must be proved. It is noteworthy that by s 11(1) of the Act a domestic violence restraining order is not binding until it has been personally served upon a defendant. Variations or revocations of such orders must also be served personally: s 11(2). These requirements tend to ameliorate what might otherwise be a harsh result if mens rea is not required. The scheme of the legislation is to ensure that a person against whom a restraining order is made is apprised of his obligations. Plainly, he is in a position where he can take care that the terms of the order are not breached.

Therefore, I agree with the submission by the appellant that the offence created is one of strict liability. The only intention which must be proved by the prosecution is an intention to do the acts which constitute the breach of the order. The prosecution must prove that those acts were intentional or reckless. It is not necessary to prove that the defendant intended by those acts to contravene the order, or that he knew that his actions amounted to a contravention of the order. That leaves the prosecution with the task of excluding the defence of honest and reasonable mistake of fact, if it is raised.

As the contested hearing had not progressed into the defence case, whether there was sufficient evidence to satisfy that claim couldn't be answered on the appeal.


The classification of an offence of breaching a domestic violence order as an offence of strict liability may surprise some, given the serious penalties available. Strict liability offences tend to be those where the offence is minor or regulatory in nature: Kidd v Reeves [1972] VR 563. The Court found the requirement that the requirement that orders be personally served and explained relieved the risk of injustice that might otherwise result.

Vanstone J tentatively expressed the view that the accused's knowledge of whether an intervention order was in operation or not should be treated as a matter of fact, rather than law. (This would allow a claim of ignorance to be asserted as a 'defence' of honest and reasonable mistake, consistently with Menhennit J's judgment in Kidd v Reeves.) There's some interesting obiter about the reasonableness of a belief as well.

Local implications

I'm not aware of a Victorian authority on these points. The local statutory scheme is similar but not the same. Whether Police v Beukes has much persuasive value here probably turns on a Victorian court's application of Charter principles.


L.T. SMASH said...

"When interviewed by police the accused said that he had been told that the protected person had asked police to revoke the order and that it was therefore revoked." Yeah we hear that a lot ands sometimes its true and sometimes its not. Anyone is fooling themself if they think we can tell when they are lying. I agree its not a perfect systemn (where a person gets lied to by their ex into breaching their order) but there is really no way out but to hold individuals accountable for obeying the orders that have been served ont them.

Jeremy Gans said...

Is there any authority that strict liability is reserved for minor, regulatory offences? The SASCFC recently held that a major offence - producing child pornography - was absolute (not strict) liability and the HCA refused SL. Likewise, the HCA itself was only willing to read NSW's child sexual offence provision as strict liability (not full mens rea.) It's true that Canada (which basically invented the full, strict, absolute trichotomy) limited the latter two to regulatory offences, but it also puts the burden of proof on the defence for strict liability, so it's easier on the cops.

I hate to be a wet blanket, but I can't see any charter arguments here either. In 2008, the House of Lords rejected an argument that absolute liability for child sexual offences is incompatible with the UKHRA. And that's for an offence that (sorta) implicates the right to privacy. What does breach of an FVPO implicate (other than the right of the protected person to security?)

The debate over mistakes in DVOs is part of a larger debate about what to do with protected persons who encourage defendants to breach. SA has Keane (which allows the protected person to be charged with complicity), but Vic's new Act overturns Keane. So, maybe a more generous approach to reasonable mistakes might be appropriate here?

Dr Manhattan said...

You're right about the public policy debate, Jeremy. The law struggles to deal with human relationships (which by their nature tend not to be orderly or logical) but that's not a new problem. There's an interesting post over at Caen's Corner referring to Keane in a wider discussion of competing interests where the 'victim' of an offence does not wish the offender to be charged, or actively contributed to the commission of the offence.

I read He Kaw Teh as saying that the more serious the offence (by way of penalty), the more likely parliament intend a 'full' mens rea (as Gibbs CJ called it) to be required, placing the onus squarely on the prosecution to prove intent. Any more specific guidance than that is predictably absent. Zelling J's observation in Mayer v Marchant about proof of intent being a pendulum swinging back and forth over the decades seems apt.

It would be good to see human rights law as having the potential to develop into an established body of internationally consistent principle. On past performance it's still operating as a vehicle for idiosynchratic judicial notions of fairness. What emerges will only become clear over time but in the meanwhile a judge or magistrate who doesn't want to follow Beukes can invoke the Charter to avoid describing the SA Supreme Court's decision as plainly wrong.

Anonymous said...

Isn't the law great, the protected person breaches an intervention order and nothing happens. Not like the old legislation... Another kick in the guts for (in most cases) the male.

Anonymous said...

The protected person cannot breach the order, only the respondent is under the obligation not to breach the order.