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

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

The supervision order in place in the present case was made in accordance with s 11 of the Act

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 R v SLD (No 2)

Details

AGLC: R v SLD (No 2) [2024] NSWDC 483
Case: [2024] NSWDC 483
Decision Date: 04 October 2024

CaseChat Overview and Summary

The case before the court involved a defendant, SLD, who had been charged with contravening an extended supervision order under section 12 of the relevant statute. The central issue in this appeal was whether the offence of contravening an extended supervision order constituted an offence of strict liability. The case was heard in the Supreme Court of the state. The defendant contested the trial judge's ruling that the offence was one of strict liability and appealed the decision.

The court had to determine whether the nature of the offence in question required proof of mens rea, or whether it could be proven by the mere occurrence of the prohibited act alone. The defendant argued that the statutory language did not exclude the requirement of mens rea, and that it was essential to establish intent or knowledge for a conviction. The prosecution contended that the offence should be classified as one of strict liability, thereby not requiring proof of mens rea. The court's interpretation of the statutory language and the legal principles governing strict liability offences was central to resolving this dispute.

The court found that the statutory language did not explicitly exclude mens rea, and therefore the offence of contravening an extended supervision order was not of strict liability. The court emphasised that the imposition of strict liability in criminal law should be clear and unambiguous, and in this instance, the statute did not meet that threshold. Consequently, the appeal was allowed, and the conviction was quashed. The court's ruling clarified that a conviction under section 12 required proof of the defendant's knowledge or intent in relation to the contravention of the extended supervision order.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.