Charges: Contravention of family violence intervention order x 1.
Proceedings: Judgement.
Issues: Whether section 123(2) of the Family Violence Protection Act 2008 (‘the Act’) was a strict liability offence.
Facts: The accused was charged with beaching a family violence intervention order, an offence pursuant to s 123(2) (‘the offence’) of the Act, by being within 200m of the victim’s workplace. Magistrate Foster accepted that the address was unknown to the accused and not specified by the order. However, the prosecution argued that proof of mens rea was not required, because s 123(2) was an offence of strict liability. The prosecution also argued that the accused had not made out the defence of honest and reasonable mistake of fact.
Decision and Reasoning: The charges were dismissed.
Applying He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Magistrate Foster found that the presumption of mens rea had not been displaced. The aggravated versions of the offence explicitly required proof of a mens rea element ([45]). Therefore, it would be inconsistent with the structure and operation of the act for the offence to be one of strict liability. All three offences carried considerable terms of imprisonment. His Honour highlighted that ‘a strong presumption exists that proof of mens rea is necessary where an offence carries serious sanctions’ [57]. ‘The serious nature of… family violence and… serious consequences for all three… offences strongly suggests that the presumption of mens rea has not been displaced’ [48]. Furthermore, the absence of a mens rea element would not assist with the enforcement of the offence (see [59]). It would be counter intuitive and ‘contrary… to the spirit of the act’ [71] to require the accused to take steps to remain aware of the details of victim’s workplace, which was not specified by the order. His Honour found that it was not necessary to address whether the accused had proven the defence of mistaken fact, but explained that the defence would have been established due to evidence that the accused had no reason to believe that the victim worked within 200ms of the café (see [82]-[84] and [97]).
