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 the alleged breach. It was not conceded by the prosecution that the protected person had told the respondent that the order had been revoked, although it was accepted that the respondent had made certain assertions to that general effect in his police interview. However, it seems that the magistrate was prepared to accept as a reasonable possibility that the respondent was told that the order had been revoked and that the respondent believed what he was told. In those circumstances it seems appropriate now to proceed on that basis; although whether he was told so, and in what terms, and what belief he formed as a result, remain unclear.
At the end of the prosecution case the respondent submitted that there was no case to answer. The magistrate made a finding in those terms, giving ex tempore reasons for his decision. The magistrate found that the prosecution was required to prove that the respondent intentionally breached the restraining order. In the face of the assertion of the respondent in the interview 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 that the prosecution case was incapable of proving intention to disobey the order.
The magistrate expressed that conclusion in a way similar to the way I have just framed it and also in terms of his being unable to “exclude all hypothesis, consistent with innocence”. I understand him to mean that, taking the evidence at its highest, a reasonable mind could not exclude all hypotheses consistent with innocence as being not reasonably open on the evidence: Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1. However, that analysis seems to me to have been misguided, as this was not a circumstantial case; but nothing turns on that. The magistrate went on to say that he would not be in a position to safely convict. Again, that terminology was inappropriate. Whether a conviction is “safe” or “unsatisfactory” is an outdated way of expressing the formula in s 353 of the Criminal Law Consolidation Act 1935, being that a conviction is “… unreasonable or cannot be supported having regard to the evidence …”. It is not a matter to be considered by a primary court. The test to be applied by a magistrate where a submission of no case to answer is made is whether, on the evidence as it stands at the end of the prosecution case, the defendant could lawfully be convicted. That is, whether the evidence is capable of proving the case beyond reasonable doubt: R v Bilick & Starke (1984) 36 SASR 321 at 333. Furthermore, the magistrate went on to observe that, even had he found a case to answer he would have been “inclined to issue a Prasad direction in favour of the defendant”. Again, that observation seems to me to have been otiose. If there were a case to answer then the matter should have been allowed to proceed in the usual way. There was nothing about the case to justify any departure from that course. However, none of these criticisms goes to the essential point raised by this appeal.
The focus of the appeal is the question whether the prosecution was required to prove, as an element of the offence, that the respondent intended by his actions to breach the restraining order. That could be put more specifically as whether proof was required, not only of the voluntary and deliberate nature of the acts amounting to the breach, but also of the knowledge that those acts would breach the order. I am told by counsel for the appellant, Mr M Grant, that there is no authority directly on point.
The provision creating the offence is in the following terms:
15.(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.
Maximum penalty: Imprisonment for 2 years.
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: s11(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.
There is a real question as to whether the defence of honest and reasonable mistake of fact had even been raised at the point of the magistrate’s decision. There is an evidentiary onus on a defendant who wishes to raise the defence: He Kaw Teh. That means that the accused must either adduce evidence or point to evidence in the case tending to show his relevant belief and reasonable grounds for it. Whether the out of court assertion in the police interview to the effect that the defendant had been told that the order had been revoked could discharge that onus is, at best, doubtful. In CTM the High Court held that the defence of honest and reasonable mistake of fact was available where the charge was one of unlawful sexual intercourse with a person aged between fourteen and sixteen years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). In the joint reasons of Gleeson CJ, Gummow, Crennan and Kiefel JJ at [37] to [39] and in the separate reasons of Hayne J at [194] it was held that the appellant’s out of court assertion that the complainant had told him that she was sixteen (which was not put to her in cross-examination) was not sufficient to enliven the defence. The evidential burden was not satisfied. On that basis, although it was held that the trial judge had misdirected on the defence, the proviso was applied.
It is suggested by the appellant that, even if the respondent believed that the order had been discharged, this was a mistake as to a matter of law rather than a matter of fact and that therefore the respondent could not succeed in an honest and reasonable mistake of fact defence. The respondent asserts to the contrary. It is not necessary to finally decide that matter. Nevertheless, I incline to the view that the mistake was one of fact, rather than of law. I would not categorise it as involving an inference of a legal nature, or an interpretation of the law, but rather of a mistake as to whether the order subsisted. That is a matter of fact.
However, even then, I question whether it was reasonably possible, on the evidence, that the mistake of fact was a reasonable one. A reasonable person would have taken steps to ascertain that the order was indeed no longer in force. The formality of the process, as demonstrated by the service of the order and the variation of it upon the respondent, would demonstrate to any reasonable person that it was not for the protected person or indeed the police to alter the order unilaterally and that the court would ensure that the respondent was informed of changes to the order. I notice that there was proof before the magistrate that, along with the order served on the respondent, was served a document headed “Magistrates Court of South Australia – Information for Persons Served with a Restraining Order”. That was a two page document with information given under a number of questions which a person served with such an order might wish to have answered. One of those questions is “Can the other person change the order?”. Under that heading appears this advice:
They may contact the Police for assistance to vary or remove the order if they so choose. In the case of a Domestic Violence Restraining Order, a Counsellor’s report will be requested by Police. In all cases the final decision to vary or remove an order is made by the Court.
A reasonable person would have read the information provided and would have realised that, even if the protected person had been to the police and advised that she no longer needed the benefit of the order, neither that act nor any decision made by the police would affect the continuance of the order; that only the court could discharge the order.
In any event, in making these observations I have gone further than the disposition of this appeal requires. Whether there was material before the magistrate capable of raising the defence of reasonable mistake of fact and whether that defence might have ultimately succeeded, were not matters which needed to be determined at the stage when the submission of no case to answer was made.
As I have said, I consider the magistrate was in error in finding no case to answer because the offence charged did not require proof of mens rea. On this basis I propose to allow the appeal, set aside the magistrate’s orders and to remit the matter for rehearing. Mr Grant has informed me that, for reasons which include that the protection order has long since been discharged, it is not intended that the matter should proceed further. Whilst that position is noted, I shall make the orders which I consider are justified.
Therefore, I order:
1.that the appeal is allowed;
2.the order of the magistrate dismissing the complaint is set aside;
3.the order of the magistrate that the defendant have the costs of the trial is set aside;
4.the matter is remitted to the Magistrates Court for rehearing.