Citation: R v SLD (No 2) [2024] NSWDC 483
Court: District Court of New South Wales
Date: 4 October 2024
Judge: Fitzsimmons SC DCJ
Background
The accused stood charged on indictment with three counts of failing to comply with an extended supervision order, contrary to s 12 of the Crimes (High Risk Offenders) Act 2006. The alleged breach concerned a condition of the supervision order prohibiting the accused from associating with specified persons, and the Crown's case was that the accused had associated with three children under the age of 18.
The trial reached closing addresses when a threshold legal dispute arose mid-submissions. The Crown initially conceded in oral argument that the offence was not one of strict liability, but then sought to resile from that concession and argue the opposite.
The court was asked to resolve the strict liability question before the factual submissions were completed, given its significance to the elements the prosecution was required to prove.
Legal Issues
- Whether the offence of failing to comply with an extended supervision order under s 12 of the Crimes (High Risk Offenders) Act 2006 is a strict liability offence, or whether the prosecution must prove a mental element (mens rea).
Decision
The applicable framework
The court applied the principles from He Kaw Teh v The Queen (1985) 157 CLR 523, which established that there is a presumption in criminal law that mens rea is an element of any offence. That presumption can be displaced, but only where the statute clearly indicates that intention or where three particular considerations point that way: the words of the offence-creating provision, the subject matter of the legislation, and whether imposing strict liability would actually assist enforcement.
The statutory language
Examining the words of s 12, the court found no clear indication that Parliament intended to rebut the presumption in favour of mens rea. Nothing in the text of the provision signalled a legislative intention to make the offence one of strict liability (at [15]).
The subject matter and severity of the penalty
The court accepted that the legislation serves a serious protective purpose, aimed at managing high-risk offenders released into the community (at [16]-[17]). However, drawing on He Kaw Teh, the court reasoned that the very seriousness of the offence cuts against strict liability: the offence carries a maximum penalty of five years imprisonment, and it was unlikely Parliament intended such significant consequences to fall on a person who lacked any relevant mental state (at [18]-[19]).
Enforcement considerations and comparative authorities
The court was satisfied that no good purpose would be served by punishing a person who had taken reasonable care but unknowingly committed an act of association (at [20]). The Crown relied on Police v Beukes [2011] SASC 9, where a South Australian court found a domestic violence restraining order offence was one of strict liability, but the court declined to follow that analysis, finding the statutory context under the High Risk Offenders Act called for different considerations (at [22]-[23]). The court noted that DPP v Cormick [2022] VSC 786, involving a family violence intervention order, supported the view that a mental element was required, with the Crown in that proceeding ultimately abandoning its strict liability argument on appeal (at [24]-[25]). The Crown's reliance on DPP v Kailahi was rejected as inapplicable, given that the driving whilst disqualified offence considered there is qualitatively different from the present offence (at [26]).
Orders Made
- The offence of contravening an extended supervision order under s 12 of the Crimes (High Risk Offenders) Act 2006 is not an offence of strict liability.
Key Takeaways
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The District Court held that the presumption in favour of mens rea was not displaced for an offence of breaching an extended supervision order under s 12 of the Crimes (High Risk Offenders) Act 2006, meaning the prosecution must prove a mental element (at [27]).
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Under the He Kaw Teh framework, the severity of a criminal penalty is a factor that weighs against strict liability: where an offence carries up to five years imprisonment, courts will be reluctant to infer that Parliament intended to punish persons who lacked any guilty mind (at [18]-[19]).
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Where strict liability would not meaningfully assist enforcement by deterring conduct, and where no good purpose is served by punishing a person who took reasonable care, the third He Kaw Teh consideration reinforces the presumption in favour of mens rea (at [20]).
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Interstate authority finding strict liability in breach-of-order offences is not necessarily binding or persuasive where the statutory context differs materially from the NSW provision under consideration (at [22]-[23]).
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A Crown concession during oral submissions on a legal question does not prevent the court from being asked to revisit that position, but the substantive analysis must still be conducted independently by reference to established principle (at [2]-[3]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987
- Customs Act 1901
- Crimes (High Risk Offenders) Act 2006
Cases
- 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