R v SLD (No 2)

[2024] NSWDC 483

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SLD (No 2) [2024] NSWDC 483

Hearing dates:

30 September 2024 – 4 October 2024, 8 October 2024, 16 October 2024

Date of orders:

4 October 2024

Decision date:

04 October 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

The offence of contravene extended supervision order (s 12) is not an offence of strict liability.

Catchwords:

CRIME – procedural ruling – strict liability

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Customs Act 1901

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Cameron v Holt [1980] 28 ALR 490

DPP v Kailahi [2008] NSWSC 752

DPP v Cormick [2022] VSC 786

He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523

Lim Chin Aik v The Queen [1963] AC 174

Police v Beukes [2011] SASC 9

Category:

Procedural rulings

Parties:

Rex
SLD

Representation:

Counsel:
Mr D Bhutani (accused)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Ryan Payten Le Lawyers (accused)

File Number(s):

2023/00337580

Publication restriction:

In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 there is to be a prohibition on the publishing or broadcasting of the accused's name with respect to these proceedings.

EX TEMPORE Judgment

1. The accused stands charged on indictment with respect to three offences of failing to comply with an extended supervision order contrary to s 12 of the Crimes (High Risk Offenders) Act 2006 (the Act). The trial has reached the stage where the evidence is closed, and the parties are in closing addresses. The order in which those submissions occurred was somewhat unusual although by agreement between the parties. In essence, the Crown sought to address on the legal issue relating to the concept of “associate” being the tenet of the alleged breach in accordance with clause 30 of the supervision order and the definition of "associate" within that order.

2. Counsel for the accused then sought to address that issue, that is, the legal issue. It was proposed that the Crown would then separately address the factual matters based upon the evidence with counsel for the accused having the final word, so to speak, on those issues. It was during legal argument that the question of whether this offence was a strict liability offence arose. Whilst the Crown initially in oral submissions conceded that it was not a strict liability offence, ultimately the Crown sought to resile from that position and in fact assert that it was a strict liability offence.

3. Accordingly, it is appropriate that I rule on that issue in circumstances where the accused contends that it is not a strict liability offence.

4. As previously noted, the alleged offence is created by s 12 of the Act which is in the following terms:

"A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence."

5. The supervision order in place in the present case was made in accordance with s 11 of the Act which provides:

"An extended supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate."

6. The section provides a non-exhaustive list of directions that may be considered appropriate. One of those conditions is contained in s 11(1)(g) is "not to associate or make contact with specified persons or class of persons." The Crown's case is that the accused associated with three children under the age of 18.

7. In He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 the High Court considered the issue of strict liability offences in the context of an offence under the Customs Act 1901. At 528 Gibbs CJ observed:

"However the provision has to be read in light of the general principles of the common law which cover criminal responsibility.

The relevant principle is stated in Sherras v De Rutzen [1895] 1 QB 918 to 921 as follows:

"There is a presumption that mens rea and evil intention or a knowledge of the wrongfulness of the act is an essential ingredient in every offence but that presumption is liable to be displaced either by the words of the statute created in the offence or by the subject matter with which it deals and both must be considered."

There has been in the past a tendency in Australia to regard this presumption as only a weak one, at least as in the case of modern regulatory statutes," (citations omitted). However, the principle stated in Sherras De Rutzen has more recently been affirmed by the Judicial Committee in the House of Lords, (Lim Chin Aik v The Queen (36); Reg v Warner (37), and Gammon Ltd v Attorney General (Hong Kong) (38) 1 and in this Court: Cameron v Holt (39). “

8. His Honour then identified three matters that ought to be considered in determining whether the presumption has been displaced. The first was having regard to the words of the statute creating the offence. Secondly, the subject matter with which the statute deals. Thirdly, by reference to the decision of Lim Chin Aik v The Queen [1963] AC 174 to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. There must be something that the defendant can do directly or indirectly which will promote the observance of the regulations. Unless that is the case there is no reason in penalising him and it cannot be inferred that the legislature imposed liability merely in order to find a luckless victim.

9. The passage cited by the High Court in He Kaw Teh is from the judgment of Wright J in Sherras. It is instructive to refer to the judgment of Wright J in Sherras in which his Honour articulated the classes of exceptions referred to by Gibbs CJ in He Kaw Teh.

10. Wright J observed that apart from isolated and extreme cases which were identified, the principal classes of exception may be reduced to three.

11. One is a class of acts which, in the language of Lush J in Davies v Harvey (citation omitted), are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty. The second class were some, and perhaps all, public nuisances. His Honour cited by way of example an employer being held liable on an indictment for a nuisance which was caused by a workman without his knowledge and contrary to the employer's orders.

12. The third class of case identified by his Honour are those where, although the proceedings may be criminal in form, they are really only a summary mode of enforcing a civil right.

13. Having identified the three classes, Wright J observed the following:

"Except in such cases as these, there must in general be guilty knowledge on the part of the defendant, or someone whom he has put in his place to act for him generally, or in the particular matter in order to constitute the offence."

14. In He Kaw Teh, Gibbs CJ also referred to the decision of the High Court in Cameron v Holt [1980] 28 ALR 490. In that case, Barwick CJ observed the following at 493:

"Further, there is a presumption - in my opinion a strong presumption – that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. This presumption can only be displaced if the language of the statue read along with this subject matter requires the conclusion that the legislature intended that such guilty intent should not form part of the prescription of the offence." (citations omitted)

15. Having considered the relevant offence, in my view there is nothing in the offence created by s 12 which contains any clear indication of Parliament's intention to rebut the presumption that mens rea ought to be an element of the offence.

16. The second issue is the subject matter with which the statute deals. In this case, the subject matter relates to persons who the Court have determined are high-risk offenders to whom orders should be in place, having been released into the community.

17. No doubt the purpose and intent of such legislation is to protect the community from high-risk offenders who would otherwise be released into the community. Relevant to this Gibbs CJ observed in He Kaw Teh that, with respect to the relevant drug offence, it dealt with "a grave social evil which the Parliament naturally intends to be vigorously suppressed". It was observed that the fact that the consequences of an offence may be serious suggests that Parliament may have intended to make the offence an absolute one.

18. However, Gibbs CJ observed that the subsection did not deal with acts which "are not criminal in any real sense but are acts which in the public interest are prohibited under penalty", citing Sherras. Indeed, the High Court observed that, on the contrary, the offences exposed a defendant to the highest penalty that may be imposed under law. Accordingly, it was observed it was unlikely that Parliament intended that the consequences of committing an offence so serious should be visited on a person absent mens rea.

19. The offence which the accused stands trial would be considered a serious offence carrying a penalty of imprisonment of five years. It is clearly being considered a serious offence in circumstances where there are significant consequences potentially for the community if the accused was to breach any relevant order put in place by s 11. Given the second relevant consideration identified by the High Court, I am satisfied that it is unlikely that Parliament would have intended the consequences of committing such a serious offence should be visited on an accused who had no relevant mens rea.

20. The final issue identified by the High Court related to the consideration identified in Lim Chin Aik. I am satisfied that this particular offence falls within the category identified in that no good purpose would be served by punishing a person who had taken reasonable care, and yet had unknowingly committed the act of association.

21. The Crown relied upon a decision Vanstone J in Police v Beukes [2011] SASC 9 involving prosecution of a person alleged to have contravened a domestic violence restraining order.

22. In that case, his Honour found that the offence was indeed one of strict liability. Whilst his Honour was of the view in that case that the relevant offence was one of strict liability, having considered the relevant considerations in He Kaw Teh, I am not satisfied that the circumstances of this case mean that this Court is obliged to follow, nor indeed should follow, the analysis of her Honour in Beukes.

23. In any event, on one view this particular offence can be distinguished from that considered by Vanstone J. Whilst they both involved a prosecution for breaches of an order of the Court, I consider that the offence created under the Act in this case calls for different considerations identified in He Kaw Teh.

24. The difficulty in determining the issue of strict liability in cases such as the present is demonstrated by the decision of Niall JA in DPP v Cormick [2022] VSC 786 in which his Honour found that the offence was one in which the mental element was applicable. That decision similarly involved an alleged breach of a family violence intervention order.

25. Whilst the Crown in that case had initially alleged that the learned Magistrate erred in not finding it was a strict liability offence, ultimately the Crown abandoned that ground of appeal. Indeed, the Crown accepted the offence was not one of a kind, and that the prosecution must indeed prove a mental element.

26. The Crown also relied upon a decision of the DPP v Kailahi [2008] NSWSC 752. In my view, that case is of no relevance in circumstances where his Honour simply followed a well-established line of authority that the offence of driving whilst disqualified was a strict liability offence. The Crown relied upon this in the context of the penalty. However, that offence is qualitatively different to the offence with which the accused is prosecuted, being one which carries a more significant period of imprisonment.

27. In any event, for the reasons previously identified, the offence established by s 1, is a serious offence involving a breach of conditions imposed by way of a supervision order with respect to a high-risk offender. In the circumstances, I am not satisfied that the offence is a strict liability offence.

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Amendments

16 October 2024 - Amend case citation

16 October 2024 - Amend legislation citation

17 October 2024 - Coversheet - correction to Before field.

Paragraph [22] - changed "his Honour" to "her Honour".

04 February 2025 - Coversheet - "The offence of contravene extended supervision order (s 12) is an offence of strict liability" changed to "The offence of contravene extended supervision order (s 12) is not an offence of strict liability"

Decision last updated: 04 February 2025