The Court Administration Authority (South Australia) has issued a Notice on 23 February 2024 regarding an error that occurred between December 2011 and January 2020 in relation to certain breaches of section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act).
What are Intervention Orders and section 31 offences?
An intervention order (also commonly referred to as an AVO, restraining order or a protection order) is a court order that prohibits a person (the defendant) from committing an act of abuse against a protected person.
A person who breaches an intervention order commits an offence under division 1 of Part 5 of the Act with section 31 providing offences for breaching a term of an intervention order.
Section 31(1) proves an offence for breaching a term of an intervention order in relation to requiring a respondent to undergo an assessment for an Intervention Program while section 31(2) provides an offence for breaching any other term of an intervention order.
What was the error?
Between December 2011 and January 2020, multiple persons were charged with and found guilty of an offence of breaching section 31(1) of the Act that did not involve a contravention of a term of an intervention order imposed under section 13 of the Act, where they should have been charged with an offence under section 31(2) of the Act.
What are the consequences of the error?
Persons effected by the error were not exposed to a greater penalty than they would have been had they been charged with and found guilty of an offence under s31(2) of the Act. Although the error may be regarded as being inconsequential to most people, a review proceeding may be available in some circumstances.
What action is being taken to resolve the error?
The Malinauskas government has introduced a bill to the South Australian parliament to enact a scheme to address any review proceedings that may be permitted to be commenced out of time due to the error.
The Bill will:
- Establish a process to allow a fresh prosecution for a section 31(2) offence, based on the same facts, to be brought out of time in any case where a defendant seeks to appeal or review their past section 31(1) conviction or sentence due to the error.
- Allow those fresh section 31(2) prosecution proceedings to be dealt with at the same time, by the same review court hearing an appeal or review of the past section 31(1) conviction or sentence (If the fresh prosecution proceedings are contested by the defendant, the review court will be able to send the matter to a court of summary jurisdiction for trial.
- Make any agreed or undisputed facts received in the original sentencing proceedings for the offence against section 31(1) admissible as evidence for the purposes of the fresh section 31(2) prosecution proceedings.
- Provide for the off-setting of the previously imposed penalty (including costs and a levy imposed under the Victims of Crime Act 2001) against any sentence imposed in the fresh section 31(2) proceedings, including removing any liability to repay to the defendant any fine or compensation paid by the defendant.
- Permit a person’s relevant section 31(1) conviction to be taken into account for the purposes of a ‘second or subsequent contravention offence’ in subsection 31(2aa) of the Act.
- The Bill also provides that no liability attaches to the Crown in respect of any proceedings against a person for an offence against section 31(1) of the Act where the person did not contravene a term of an intervention order imposed under section 13 of the Act, or relating to the imposition and enforcement of any sentence for such an offence.
Persons identified as potentially affected by the error will be contacted directly, as well as their last nominated legal representative.
How can we help?
If you have been contacted, we can assist with providing you with advice regarding the review process. Further, if you have been served with an interim intervention order or if you have been charged with an offence relating to an intervention order, it is important for you to obtain proper legal advice about the order and its effect on you. We can provide you with this advice and also assist you in navigating the legal process moving forward.