Breaching a violence restraining order

23-Feb-12

Breaching a Violence Restraining Order – No Intention Necessary!

Breaching a Violence Restraining Order (“VRO”) is a criminal offence, which is punishable by a fine of up to $6000.00 and/or imprisonment of up to two years.

If you have been served with a VRO, or have been charged with breaching an existing VRO, you may be wondering whether you in fact need to intend to breach the conditions of a VRO in order to be charged with a criminal offence.

The Restraining Orders Act 1997 (WA) provides that “a person who is bound by a violence restraining order and who breaches that order commits an offence.”  There is no express provision in the legislation that requires any actual intent to breach a VRO.

There is also little guidance to be found on the issue of intent in the current Western Australian case law.  Interestingly, the Western Australia Department of the Attorney General website states: “consent is no longer a defence to breaching a violence restraining order.  Even if the victim says it’s ok to get together, it is considered a breach of the order and may lead to time in prison.”[1]  This indicates that even in circumstances where there may be no intention to breach a VRO, because the person protected has invited contact, by contacting the person protected you will still be in breach of the VRO. 

Recent South Australian case law on this issue also indicates that intention is irrelevant in relation to a breach of a VRO.  In Police v Barend Petrus Beukes [2011] SASC 9, the accused was charged with breaching a VRO in contravention of the South Australian equivalent of section 61 of the Restraining Orders Act 1997 (WA).  Notably, the South Australian legislation is also silent on the issue of intention.

In Police v Barend Petrus Beukes the accused attended the home of the person protected by the VRO, at that person’s request.  At trial, the issue was raised as to whether the prosecution was required to prove, as an element of the alleged offence, that the accused intended, by his actions, to breach the VRO.

In considering whether intention was required to be proved, the trial judge, Vanstone J, considered a three-step approach[2] to determine whether, in creating a statutory offence, which is silent as to the issue of intention, the Parliament intended that intention or knowledge of the wrongfulness of an act need not be proved.

As part of that three-step approach, regard must first be had to the words creating the statutory offence.  Second, the subject matter which the statute deals with must be considered, and finally, regard must be had to whether imposing strict liability on a defendant (i.e. no requirement of intent) would promote the observance of the relevant statute.

In applying the three-step approach to the South Australian legislation, Vanstone J found that it was apparent that the wording of the section of the legislation did not require knowledge or intention.  Vanstone J further considered that the subject matter of the legislation, that being protective purposes, suggested that a requirement to prove knowledge or intent may undermine the legislation.  Finally, Vanstone J considered that the requirement of personal service of a VRO upon a defendant, also alleviated what otherwise might be a harsh result if intention was not required.

Accordingly, Vanstone J held that the offence of breaching a VRO is one of strict liability, with the only intention required to be proved by the prosecution, being an intention on behalf of the accused to do the acts which constitute the breach (i.e. an intention to go to the protected person’s property versus an intention to breach a VRO).  Vanstone J found that it was not necessary to prove that an accused intended, by their actions, to contravene a VRO, or that an accused knew that their actions would amount to a contravention of a VRO.

In the Western Australian case of Christopher David Cullen v Steven Maxwell Rollings [2009] WASC 80, Simmonds J comments upon the significance which should be placed upon the absence of an intention to initiate conduct that ultimately constitutes a breach of a VRO.[3]  In doing so, Simmonds J suggests that intention is not required in order for a breach of a VRO to occur.

So whilst there is little guidance to be found in either the Restraining Orders Act 1997 (WA) itself, or in Western Australian case law, it seems more probable than not that intention is irrelevant in relation to the breach of a VRO.  Accordingly, persons who are subject to comply with VROs must be extremely vigilant in ensuring that they do not engage in conduct that may amount to a breach of the VRO.  This is so, even in circumstances where the person protected by the VRO encourages such conduct.

It is also worth noting that in many cases, VROs are extremely broad and include blanket preventions on contact.  Such preventions would include contact via text messages and Facebook, with contact via the later even including actions such as ‘liking’ the protected person’s status updates.

If you have recently been served with a VRO, or have been charged with breaching a VRO, contact Lynn & Brown on 9374 3411 for further assistance.

[3] At paragraph [52]