NSW Is men's rea a requirement of contravene AVO?

[Hellomyonlyfriend]

Do you NSW precedent as I would like to read the judgement. Thanks.

 

[Hellomyonlyfriend]

Not NSW, but an interesting read regarding mens rea in the context of AVO's

https://www.judicialcollege.vic.edu.au/resources/case-note-dpp-v-cormick-2023-vsca-186

Isn't that saying strict liability does not apply in Victoria?

 

[Atticus]

Isn't that saying strict liability does not apply in Victoria?

It wasn't a case on strict liability. It was dealing with Men's Rea & how that operated in the context of an AVO, particularly dealing with aspects of emotional & psychological abuse

 

[Hellomyonlyfriend]

It wasn't a case on strict liability. It was dealing with Men's Rea & how that operated in the context of an AVO, particularly dealing with aspects of emotional & psychological abuse

If there is no mens rea, doesn't t that means strict liability? Did it not essentially say if you sent the message, you are guilty.

Maybe I misunderstood.

 

[Rod]

Did it not essentially say if you sent the message, you are guilty.

DPP v Cormick is a split decision, majority saying strict liability applies but: The requirement that the behaviour towards the victim be voluntary and intentional is a significant element of the offence.

So an unintentional act, or involuntary act (eg sneezing, coughing) is not a breach.

The other judge disagreed, saying: I do not accept that the fault element of the offence created by that section is satisfied by proof that the accused intended merely the act that caused the consequence of family violence. I consider proof of the offence requires more than a general intention to commit the relevant act; it requires a specific intention to cause some form of family violence.

In other words, the Magistrate you get can rule either way. The facts should determine which was it goes - in Vic. Being in NSW, you need to apply the reasoning to NSW law. Can be argued either way.

 

[Hellomyonlyfriend]

DPP v Cormick is a split decision, majority saying strict liability applies but: The requirement that the behaviour towards the victim be voluntary and intentional is a significant element of the offence.

So an unintentional act, or involuntary act (eg sneezing, coughing) is not a breach.

The other judge disagreed, saying: I do not accept that the fault element of the offence created by that section is satisfied by proof that the accused intended merely the act that caused the consequence of family violence. I consider proof of the offence requires more than a general intention to commit the relevant act; it requires a specific intention to cause some form of family violence.

In other words, the Magistrate you get can rule either way. The facts should determine which was it goes - in Vic. Being in NSW, you need to apply the reasoning to NSW law. Can be argued either way.

Thanks Rod. I find it stupid to be honest.

I think R v Cope gives the best outcome where they have to prove intention, especially considering the penalties.

They put people on AVOs without hearing sometimes and then make it strict liability.

I.e. you are watching the footy and call the ref a ****. Your neighbour/spouse/PINOP can then ring up and complain and bang your guilty because you said the words "you are a ****", even if you were not calling them anything at all.

It just makes it easier for the system.