Palmer v Pryce - [2000] NTSC 7

Palmer v Pryce [2000] NTSC 7
PARTIES:ALAN FITZPATRICK PALMER
v

LEONARD DAVID PRYCE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:AS JA57 of 1999 (9722659)
AS JA58 of 1999 (9723718)

DELIVERED:  9 March 2000
HEARING DATES:  23 and 25 February 2000
JUDGMENT OF:  ANGEL J
REPRESENTATION:
Counsel:
Appellant:Mr K Kilvington
Respondent:  Mr J Birch
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Director of Public Prosecutions
Judgment category classification:           C
Judgment ID Number:  ang20001
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
No. JA57/1999 (9722659)
No. JA58/1999(9723718)
Palmer v Pryce [2000] NTSC 7

BETWEEN:
ALAN FITZPATRICK PALMER
Appellant

AND:
LEONARD DAVID PRYCE
Respondent

CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 9 March 2000)

This is an appeal from certain findings of guilt of Mr Donald DCM sitting as the Court of Summary Jurisdiction at Alice Springs on 10 August 1999.

In proceedings before the learned Magistrate, the appellant was charged with a series of offences contained in four files (9722659, 9722659, 9800892 and 9800892) which included assault and various alleged failures to comply with a domestic violence order, in all, nine counts. The appeal relates to only two of those files and is confined to three counts, namely, Count 3 on file 9722659, and Counts 1 and 2 on file 9723718, each of which concerns the defendant’s failure to comply with the terms of a domestic violence order, allegedly contrary to s 10 of the Domestic Violence Act.
In respect of all three counts the Magistrate recorded a finding of guilt, ordered no conviction and released the appellant on a bond to be of good behaviour of one year in the sum of $500.00.
The relevant domestic violence order restrained the appellant, inter alia from approaching or remaining at any place where Leanne Kunoth was living or staying, or approaching or contacting Leanne Kunoth directly or indirectly except to arrange contact with their children via family members.
His Worship sets out in his decision the circumstances of the alleged breaches. The offence comprising Count 3 on file 9722659 was alleged to have occurred on the 26 July 1997. The appellant had returned to the complainant’s mother’s residence about an hour after he had previously been there. He asked whether the complainant, Ms Kunoth, was coming home.
Count 1 of file 9723718 related to an incident on 17 September 1997 when the appellant met Ms Kunoth at the Alice Springs Coles Complex for the purpose of obtaining some money that he intended to use for the upkeep of the children. Count 2, on the same file, related to an incident on 3 October 1997 when the appellant who was outside Ms Kunoth’s mother’s residence called out through a closed door asking Ms Kunoth and the child if they were going home.
The learned Magistrate found, inter alia, that Ms Kunoth “sought to rely on the order when it suited her and … ignored it when it otherwise suited her”. He also found Ms Kunoth’s evidence to be somewhat unreliable, and preferred the appellant’s mother, Emily Hayes, as a more truthful witness. Ms Hayes gave evidence of occasions when Ms Kunoth ‘camped’ with the appellant at Ms Hayes’ home whilst the restraining order was on foot. Despite Ms Kunoth’s firm denials in the witness box, his Worship found that Ms Kunoth did stay with the appellant on occasions when the domestic violence order was current.
His Worship also accepted evidence of Ms Hayes and the appellant that the complainant had told them, on a number of occasions, that the orders had been dropped or were being dropped, thereby misleading the appellant as to the actual existence of the order.
The appellant’s amended grounds of appeal against the three findings of guilt are:
1.That the learned Stipendiary Magistrate erred in holding that s 10 Domestic Violence Act (NT) does not require mens rea on the part of the person who is alleged to have contravened, or failed to comply with a restraining order.
2.The learned Stipendiary Magistrate ought to have found the defendant not guilty by reason of an absence of mens rea.
3.Further and in the alternative, the learned Stipendiary Magistrate erred in holding that the appellant was in breach of s 10 Domestic Violence Act in circumstances where he believed that the order was no longer in place.
4.Further, or in the alternative, the learned Stipendiary Magistrate ought to have found the prosecutor had not proven, beyond a reasonable doubt, that the acts of the appellant were not done pursuant to authority, permission or licence lawfully granted within the meaning of s 26(1)(d) Criminal Code.
It was submitted at the hearing before the learned Magistrate that where a beneficiary of a domestic violence order abuses the order by inviting the other person to breach its terms or allows breaches to happen without complaint, such as to create a belief in his mind that the order was not in force or would not be enforced, that the Court may stay the proceedings as an abuse of process. This submission was not pursued on appeal.
S 10 Domestic Violence Act provides that a person in breach of a restraining order is guilty of a regulatory offence. Regulatory offences are ordinarily offences of strict liability. This is so because with the exception of, inter alia, s 26(1)(c) and s 26(1)(d), s 22 Criminal Code excludes Part II of the Code from applying to regulatory offences and Part II of the Code includes s 31, the Criminal Code substitute for mens rea.
S 26(1)(d) relatively provides that an act, omission or event is authorised if it is done, made or caused pursuant to authority, permission or licence lawfully granted.
The learned Magistrate found Ms Kunoth misled the appellant as to the existence of the domestic violence order by stating, both to the appellant and the appellant’s mother, that the order had been dropped. He also found she “camped” with the appellant on numerous occasions whilst the order was current which also supported the appellant’s evidence that he thought the order had been dropped. The learned Magistrate accepted the appellant as a truthful witness. Ms Kunoth, by behaving in this way, clearly had given her consent for the appellant to approach her.
When the question of the complainant’s consent was raised by me on the hearing of the appeal, the appellant sought and was granted leave to add the fourth ground of appeal by way of amendment. Mr Birch for the respondent did not oppose the amendment and did not contest the new ground of appeal. This concession was properly made. In circumstances where the appellant believed that the order was no longer current and his approaches to the complainant were made pursuant to her authority, permission or licence, the learned Magistrate was in error in concluding that the appellant was guilty of an offence against s 10 Domestic Violence Act. The appeal should be allowed on the fourth ground of appeal.
As to the first and second grounds of appeal, the appellant submitted that a person can not be guilty of contravening, or failing to comply with a restraining order if he is not aware that the order exists. Mr Kilvington, for the appellant submitted that by virtue of the construction of s 10 of the Domestic Violence Act, mens rea necessarily forms an element of that offence. He argued that the words “… who contravenes or fails to comply with the order” in s 10, meant an “intentional and deliberate disobedience” to the order.
This argument was rejected by the learned Magistrate. He held that the Criminal Code comprised the comprehensive criminal law of the Northern Territory and that common law principles could not properly be imported into a code jurisdiction. This was the substance of the Crown’s submission in respect of these grounds of appeal.
In the Northern Territory, generally speaking, this is so of course by virtue of s 5 Criminal Code, and general common law principles such as mens rea do not apply. However, it does not follow from this that Mr Kilvington’s argument is necessarily to be rejected. He argued that if a regulatory offence is created which, as a matter of construction, contains a mental element then despite the inapplicability of s 31 Criminal Code the mental element remains an element of the offence.
Mr Kilvington relied on O’Sullivan v Lunnon (1986) 67 ALR 423 to support his argument that it was a matter of construction of the statute creating the offence that ultimately determined whether an offence contained a mental element. His submission to the Court was that a regulatory offence is not ipso facto an offence of strict liability, it all depends on the terms of the Statute creating the regulatory offence.
I agree with this submission, but it is unnecessary to decide the point for the purpose of disposing of this appeal. It is likewise unnecessary to decide whether as a matter of construction s 10 of the Domestic Violence Act contains a mental element. Given the statutory regime regarding service of domestic violence orders, and that such orders only become operative upon service, I think there is much to be said for the Crown’s submission that a s 10 offence is a strict offence. However, as I have said, it is not necessary to decide these matters in order to dispose of the appeal.
The appeal is allowed, the findings of guilty are set aside and verdicts of not guilty entered in respect of the three counts the subject of the appeal.