Section 15(1) reads,
(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.
The prosecution successfully appealed and the matter was remitted for rehearing.
The magistrate dismissed the charge after being left unsatisfied that the accused intended to breach the order that prohibited him from attending his former partner’s address. When interviewed by police the accused said 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 on that basis that the prosecution case was incapable of proving an intention to disobey the order.
On the appeal Vanstone J first examined [at 7] the penalty for a breach, a maximum penalty of imprisonment of 2 years (the same penalty as in Victoria for breach of an intervention order under s 123 of the Family Violence Protection Act 2008).
Vanstone J then turned her attention to the question of whether the offence was one which required a mens rea to be proven.
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: s 11(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.
As the contested hearing had not progressed into the defence case, whether there was sufficient evidence to satisfy that claim couldn’t be answered on the appeal.
The classification of an offence of breaching a domestic violence order as an offence of strict liability may surprise some, given the serious penalties available. Strict liability offences tend to be those where the offence is minor or regulatory in nature: Kidd v Reeves  VR 563. The Court found the requirement that the requirement that orders be personally served and explained relieved the risk of injustice that might otherwise result.
Vanstone J tentatively expressed the view that the accused’s knowledge of whether an intervention order was in operation or not should be treated as a matter of fact, rather than law. (This would allow a claim of ignorance to be asserted as a ‘defence’ of honest and reasonable mistake, consistently with Menhennit J’s judgment in Kidd v Reeves.) There’s some interesting obiter about the reasonableness of a belief as well.
I’m not aware of a Victorian authority on these points. The local statutory scheme is similar but not the same. Whether Police v Beukes has much persuasive value here probably turns on a Victorian court’s application of Charter principles.