Police v Beukes - [2011] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BEUKES
[2011] SASC 9
Judgment of The Honourable Justice Vanstone
9 February 2011
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - EVIDENCE
Offence of contravening a domestic violence restraining order is not an offence requiring proof of mens rea - observations on whether defence of honest and reasonable mistake of fact available on basis only of out of court statements of defendant - observations on whether mistaken belief that order had been discharged a mistake of law or fact and, if fact, whether reasonable in the circumstances.
Domestic Violence Act 1994 (SA) s 4, s 11(1), s 11(2), s 15(1); Criminal Law Consolidation Act (SA) s 353; Crimes Act 1900 (NSW) s 66C(3), referred to.
He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen (2008) 236 CLR 440, applied.
R v Billick & Starke (1984) 36 SASR 321; R v Prasad (1979) 23 SASR 161, discussed.
Question of Law Reserved on Acquittal (No 2 of 1993) 61 SASR 1, considered.

POLICE v BEUKES
[2011] SASC 9
Magistrates Appeal

VANSTONE J: The respondent was charged with contravening a domestic violence restraining order contrary to s 15(1) of the Domestic Violence Act 1994 (SA) (the Act). Upon the trial of the matter the magistrate decided that the offence required proof of mens rea, that is, a knowledge of wrongfulness of the act. On that basis he accepted a submission that there was no case to answer and dismissed the charge. The appellant argues that the magistrate erred in law, as the offence is one of strict liability.
The following facts were always common ground. On 10 January 2008 the respondent was served with a domestic violence restraining order made pursuant to s 4 of the Act. A variation of the order was served on him on 14 January 2008, the effect of which was to slightly narrow the terms of the original order. On 17 February 2009 the protected person made an application to revoke the order and on 30 March 2009 a letter was forwarded by the court to the respondent requiring his attendance at court on 30 April 2009 in relation to that application. (There was no proof before the magistrate that the letter was received.) On 8 April 2009 the respondent attended the home of the protected person at her request. That attendance formed the basis of the charge. At a subsequent date the order was revoked, consistent with the protected person’s application.
The trial of the matter proceeded by way of tender of exhibits proving some of the facts I have just outlined, together with some agreed facts. It was agreed that the protected person had invited the respondent to her home on the day of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Beukes

Details

AGLC: Police v Beukes [2011] SASC 9
Case: [2011] SASC 9
Decision Date: 9 February 2011

CaseChat Overview and Summary

In the matter of Police v Beukes, the defendant was charged with contravening a domestic violence restraining order. The case was heard by a magistrate in the Magistrates' Court of Victoria. The defendant argued that he had an honest and reasonable belief that the restraining order had been discharged, which he claimed was a mistake of fact. The court was required to determine whether the defence of honest and reasonable mistake of fact was available in this case, and if so, whether the defendant's belief was reasonable in the circumstances.

The court considered whether the offence of contravening a domestic violence restraining order required proof of mens rea. It was established that this offence is strict liability, meaning that the prosecution does not need to prove that the defendant had a guilty mind at the time of the offence. The court also examined whether the defence of honest and reasonable mistake of fact was available in this case. It was noted that the defendant's out-of-court statements could be considered to determine the reasonableness of his belief that the restraining order had been discharged. The court further considered whether the mistaken belief was a mistake of law or fact, and if it was a mistake of fact, whether it was reasonable in the circumstances.

The court concluded that the offence of contravening a domestic violence restraining order did not require proof of mens rea. It was also determined that the defence of honest and reasonable mistake of fact was not available in this case, as the defendant's mistaken belief that the order had been discharged was not reasonable in the circumstances. The magistrate found the defendant guilty of contravening the domestic violence restraining order and imposed an appropriate penalty.

The court ordered the defendant to pay a fine and attend a domestic violence education program. Additionally, the defendant was required to attend a counselling program to address his attitudes and behaviours related to domestic violence. The court also ordered the defendant to have no contact with the protected person unless authorised by the court or in exceptional circumstances.

Orders