Michelle Fay KEANE v SA Police No. Scgrg-97-1011 Judgment No. 6358 Number of Pages 3 Criminal Law

[1997] SASC 6358

IN THE SUPREME COURT OF SOUTH AUSTRALIA

KING, AJ

CATCHWORDS:

Criminal law - general matters - ancillary liability - complicity - aider and abettor - appeal against conviction on charge of aiding, abetting, counselling or procuring a breach of a domestic violence restraining order - consideration of whether ordinary principles of accessorial liability apply - whether victim of domestic violence member of class of persons excluded from liability for aiding and abetting - finding that exemption from accessorial liability available where Act creating the offence exists for the protection of persons against their willing participation in the offending conduct - Domestic Violence Act does not fulfill such a function - ordinary principles applicable. Domestic Violence Act 1994ss15(1) and 5(2); Criminal Law Consolidation Act 1935s267, referred to. R v Tyrell [1894] 1 QB 710; R v Whitehouse [1977] 1 QB 868, applied. Mallan v Lee [1949] 80 CLR 198; Georgianni v The Queen (1984-1985) 156 CLR 473, discussed.

HEARING:

ADELAIDE, 13 August 1997 (hearing), 12 September 1997 (decision)

#DATE 12:9:1997

#ADD 7:10:1997

Appearances:

Appellant:

Counsel: Ms G Brown

Solicitors: Polly Dixon

Respondent:

Counsel: Ms L Makiv

Solicitors: Crown Solicitor's Office (SA)

Order: appeal dismissed.

KING AJ

The appellant was charged on complaint that on 18th September 1996 she "aided, abetted, counselled or procured Craig John Smith to commit an offence namely breach of a Domestic Violence Restraining Order, a breach of section 15(1) of the Domestic Violence Act 1994". She was convicted in the Magistrates Court and appeals against that conviction.

On 10th August 1995 a restraining order pursuant to section 4 of the Domestic Violence Act 1994 was made at the instance of the appellant against her former domestic partner Craig John Smith. The order restrains Smith in the following terms:

"(a) from being on premises situated at 64 Donnington Road Elizabeth North, or any other premises at which Michelle Fay Keane may at time to time reside.

(b) from assaulting, harassing, threatening or intimidating Michelle Fay Keane.

(c) from contacting or communicating directly or indirectly, whether in person or by telephone, in writing or otherwise, with Michelle Fay Keane."

On 18th September 1996 the appellant telephoned Smith and requested him to look after their two infant children the following day. Arrangements were made for the children to be dropped at a third person's house to be then looked after by Smith. In the late evening of the 18th, Smith went uninvited to the appellant's home at 64 Donnington Road. Smith asked to be let in as he wanted to talk. The appellant let Smith in. When the appellant rejected Smith's overtures for reconciliation, be became angry and abusive. The police attended. Smith was charged with breaching the restraining order by being on the Donnington Road premises. A breach of a restraining order is made an offence by section 15(1) of the Domestic Violence Act 1994.

The appellant was interviewed and the following questions and answers occurred: "Police: 'Did anyone explain to you that the restraining order also restrains you from contacting Craig?' Appellant: 'Yes' Police: 'Are you aware that if you contact Craig you are aiding and abetting him to breach his restraining order?' Appellant: 'Yes'."

It was an agreed fact in the Magistrates Court that the appellant was aware that Smith was breaching his restraining order by attending at her home address, and that the restraining order was further breached by smith being admitted on to her premises.

Section 267 of the Criminal Law Consolidation Act provides that "a person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender". The action of the appellant in admitting Smith to the premises knowing that he was thereby in breach of the restraining order, undoubtedly falls within the common law concept of aiding and abetting which is embodied in section 267 of the Criminal Law Consolidation Act. The appellant is therefore guilty of the offence of which she was convicted unless she is relieved from criminal liability for her action by some express or implied provision of the law.

The ordinary rules governing liability of a person who has aided or abetted an offence "may be excluded by the nature of the substantive offence or the general tenor of policy of the provisions by which it is created. Mallan v Lee [1949] 80 CLR 198 see Dixon J at p.216; Georgianni v The Queen (1984-85) 156 CLR 473, see Gibbs CJ at p.477. The law on the point is summarized by Mason J in Georgianni v The Queen supra at p.491: "In Mallan v Lee (86), Dixon J observed that "the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created". A similar approach must be taken to apply to the exclusion of the doctrine of secondary participation at common law. It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect (Reg. v. Tyrell [1894] 1 QB
710; Reg. v. Whitehouse [1977] QB 868; cf. United States v. Annunziato (1961) 293 F. (2d) 373 at p.379) or in respect of whose participation some lesser punishment is imposed: Ellis v. Guerin [1925] SASR 282; cf. People v. Pangelina (1981) 117 Cal. App. (3d) 414, at pp.420-421. It may also be inapplicable where the substantive offence itself involves some element of secondary participation: cf. Jenks v. Turpin (1884) 13 QBD 505 at p.526; Carmichael & Sons (Worcester) Ltd. v. Cottle [1971] RTR 11, at p.14. And in McAteer v. Lester [1962] NZLR 485, a legislative intent to exclude responsibility for secondary participation was found in s.194(1) of the Licensing Act 1908 (N.Z.) which made it an offence for a person to be found on licensed premises at certain times unless he satisfied the court that he was on the premises for a lawful purpose.

It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender. So much was stated by Coke and Hale (3 Co. Inst. 59; 1 P.C. 613, 614, 704). And it has been settled at common law at least since R. v. Potts (1818) Russ. & Ry. 353 [168 E.R. 841]. This is also the case even where the offence is of such a nature that the person could not have committed it as a principal offender: cf. R. v. Goldie; Ex parte Picklum 1937) 59 CLR 254 at pp.263-264; Mallan v. Lee (1949) 80 CLR at pp.210-211; Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235 at pp.245-246; Morris v. Tolman [1923] 1 K.B. 166, to the extent to which it is based on the contrary view, should not be followed."

Ms Brown for the appellant argued that accessorial liability was excluded by the Domestic Violence Act by implication because the appellant belonged to a class of persons for whose protection the Act was enacted. The Act undoubtedly exists for the protection of victims of domestic violence. The appellant is such a person. To my mind, however, that does not of itself operate to exclude accessorial liability.

The authority for the principle upon which Ms Brown relied is R v Tyrell [1894] 1 QB 710, a case which was applied in R v Whitehouse [1977] 1 QB 868 and was cited with approval in the passage cited above from the judgment of Mason J in Georgianni v R. It is necessary to examine that case in order to ascertain the principle for which it is authority.

In R v Tyrell the question was whether a girl under the age of consent could be guilty of aiding and abetting the commission of the crime of carnal knowledge upon her. It was held that the Act which created the offence of carnal knowledge did not intend that the girls for whose protection it was passed should be punishable for offences committed on themselves. It is important to note the rationale for the decision as articulated by Lord Coleridge CJ at p.712 namely that the Act "was passed for the purpose of protecting women and girls against themselves" . The Act was passed to protect consenting girls and it could not have been intended to attach criminal liability to them.

The principle to be derived from the case, in my opinion, is that accessorial liability is excluded where the act creating the offence exists for the protection of persons against their own willing participation in the offending conduct. It is not the circumstance that the person is a victim which excludes liability for aiding and abetting but the circumstance that that person is one who is to be protected against that person's willing participation.

The Domestic Violence Act authorizes the making of restraining orders where there is a reasonable apprehension that the defendant may commit domestic violence. Domestic violence is defined as the perpetration of specified acts "so as to reasonably cause a family member's apprehension or fear". The Act is aimed not at protecting people from themselves but at protecting them from unwanted conduct causing apprehension or fear.

The mechanism for providing this protection is the restraining order. The conduct which may be restrained is set out in section 5(2) . Many of the types of conduct there set out would necessarily be non consensual. Some of the types of conduct which may be restrained, however, are not necessarily non consensual. An example is the type of conduct in question in the present case, namely being on premises at which a family member resides.

An order restraining the defendant from being on certain premises operates absolutely and irrespective of the consent of the person intended to be protected. Nevertheless, its purpose is not to protect the family member against himself or herself but to protect against unwanted conduct of a type to inspire fear. The absolute nature of the order authorized by the Act is intended, in my opinion, as an aid to enforcement. The mere presence of the defendant on the premises is enough to enable the police to act. Enforcement is not bedevilled by disputes as to whether the protected family member consented.

I cannot discern any provision or consideration of policy in the DomesticViolence Act giving rise to an implication excluding ordinary accessorial liability. There are reasons of justice and convenience why the ordinary principles should apply. Where an order is made for a person's benefit, it would seem to be unjust that that person should be able to encourage or facilitate a breach of the order thereby causing another to commit an offence, but escape any liability. Moreover on policy grounds, it is important that curial and police resources should not be wasted in obtaining and enforcing restraining orders, the breach of which the persons for whose benefit they are made, are willing to condone. In the present case the appellant's actions, in addition to causing distress to the children, resulted in the police having to come to the house to remove the offender.

I do not think that the ordinary principles of accessorial liability are excluded. I consider that the appellant was guilty of aiding and abetting the breach of the restraining order.

Appeal dismissed.