The criminal legal process
Many acts of domestic violence constitute criminal offences.
The purpose of AVOs discussed in the previous section is protection of the victim.
In this section the focus is on the criminal legal process.
Reporting domestic violence and charging the offender
Police arrest and charge
What if the victim requests that the proceedings be discontinued?
What happens in Court? | The hearing | Criminal charge: private action
AVOs and criminal charges | Indictable offences
Chart 10 - The criminal processes - summary offences
Chart 11 - Criminal processes - indictable offences
Reporting domestic violence and charging the offender
Domestic violence should be reported to the police as soon as possible.
Where the police charge the offender the police will prosecute the case in Court (if it is a summary offence) and the woman would be required to give evidence in Court if the offender pleads not guilty.
If it is an indictable offence it would be dealt with in the District Court and the Director of Public Prosecutions will prosecute the case.
Victims can request that the offender be charged.
If the police do not charge the offender, the victim can initiate a private prosecution by making a complaint to the Chamber Magistrate at the Local Court. The victim is then the informant and will have to prosecute the case without police assistance. This can be very difficult as all criminal offences must be proven beyond a reasonable doubt.
Criminal offences often linked with domestic violence
Some of the criminal offences that are themselves domestic violence are:
Assault
The Crimes Act 1900 (NSW) deals with a number of different forms of assault, including:
- Common assault. This need not include physical contact - threatening violence with an ability to carry out the threat can also be an assault.
- Assault occasioning actual bodily harm
- Malicious wounding
Sexual assault
Sexual assault is also a criminal offence, regardless of whether the offender and victim are, or were married or in a relationship. Sexual offences include:
- Sexual intercourse without consent
- Assault with intent to have sexual intercourse
- Indecent assault
- Sexual intercourse obtained through intimidation
- Forced self-manipulation.
Back to top | Stalking and intimidation
Whilst stalking and intimidation are not domestic violence offences as defined in Part 4(1) Crimes Act, they are, however, offences commonly linked with domestic violence. It is an offence to stalk or intimidate a person with the intention of causing that person to fear physical or mental harm to herself or any person with whom she has a domestic relationship.
Stalking is defined as following a person about or watching or frequenting or approaching the area around the person's home, work or any place she attends for a social or leisure activity.
Intimidation includes harassment and making repeated telephone calls.
If convicted, the offender is liable to a maximum fine of 50 penalty units (currently $5,500) or five years imprisonment or both.
Breach of an AVO
Breaching an AVO is a criminal offence.
Other offences
The following less commonly prosecuted offences may also be committed in abusive relationships:
- Kidnapping, (ie. taking or detaining a person with intent to hold the person for ransom or any other advantage)
- Entering inclosed lands
- Sending threatening documents (ie. threatening to kill or inflict bodily harm on any person)
- Offensive language or conduct; (this must be near, or within view or hearing of, a public place or school)
- Malicious damage.
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Police arrest and charge
Police have the power to arrest and charge
The police have a duty to investigate offences and take appropriate action. This can range from cautioning the person to arresting and charging the person.
Any police officer may arrest any person without a warrant:
- Committing, or immediately after committing, an offence against any Act
- Reasonably suspected of having committed an offence against any Act
- Committing, or reasonably suspected of being about to commit, a breach of the peace (which includes an assault or threat of violence).
| Offender placed on bail
An offender who is released from police custody until the Court hearing (which is usually the case) may be placed on bail.
There is, however, no presumption in favour of bail in charges concerning domestic violence offences or breach of AVOs involving violence or an offence of stalking or intimidation under s562AB of the Crimes Act, where:
- the offender has a history of violence against any person
- there has been previous violence by the offender against the victim
- where the offender has failed to comply with a bail condition.
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The police or the Office of the Director of Public Prosecutions prosecutes the case
Where the police have laid charges against an offender, the offender may be prosecuted by the police of the Office of the Director of Public Prosecutions (ODPP).
If the charge is an offence prosecuted by the ODPP, the prosecution will be conducted in accordance with the ODPP Prosecutions Policy and Guidelines (see
The ODPP’s Protocol for Reviewing Domestic Violence Offences (Appendix K ODPP Prosecution Policy and Guidelines) provides guidance for the conduct of a prosecution involving an offence of domestic violence.
The ODPP has obligations under the Victims Rights Act 1996 in relation to the needs of domestic violence victims.
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What if the victim requests that the proceedings be discontinued?
In domestic violence offences any request by the victim that proceedings be discontinued will be carefully considered in accordance with the ODPP Protocol for Reviewing Domestic Violence Offences.
ODPP Protocol for Reviewing Domestic Violence Offences
It is not uncommon for victims of domestic violence to request that the prosecution be discontinued. This may happen for various reasons:
- The relationship between the victim and the accused resumes
- The victim forgives the accused
- The victim is financially dependent on the accused
- The accused agrees to seek counselling
- Threats, harassment or intimidation by the accused
- Disillusionment with the criminal justice system.
Prosecutors must determine the basis for the victim's wish to not proceed. This should involve making a detailed appraisal of all the circumstances of the case.
The prosecutor should take the following steps:
- Hold a conference with the victim
- Take a written statement from the victim explaining the reasons for not wishing to proceed
- Consult with the police officer in charge in order to obtain his or her views, as well as any relevant information or investigations required
- Consult with other relevant agencies
- Consult with a Witness Assistance Officer
- Prepare a comprehensive report as to recommendations.
| Where the prosecutor suspects that the victim has been frightened or coerced into withdrawing the complaint, the police officer in charge should be immediately advised.
If the victim wants to discontinue, the prosecutor should consider the following factors when making an assessment of the circumstances of the case:
- The conduct or violence is of a minor or trivial nature and there is no prior history of similar conduct
- The victim has made an informed decision, free from threats, harassment or intimidation by any person
- The police and/or the victim agree
- The likelihood of the accused offending again
- The victim is continuing relationship with the accused
- The effect on that relationship of continuing with the case against the victim's wishes
- The history of the relationship, particularly if there has been any other violence in the past including sexual assault (ie past injuries and previous withdrawal of charges by the victim)
- Where there have been repeated police callouts concerning incidents in the relationship
- The conduct involve s premeditated violence, stalking, harassment or intimidation
- The seriousness of the offence
- Where the conduct or violence was committed during the term of an Apprehended Violence Order (under Part 15A of the Crimes Act 1900) or recognisance involving the same victim or similar conduct or violence
- The victim's injuries
- If the accused used a weapon
- If the accused has made any threats since the offence
- The effect on any children living in the household.
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Prosecutors should consult with the police, the Witness Assistance Service and any other relevant service providers (including the Department of Community Services where children are involved) in determining the appropriate course of action.
A victim's need or perceived need for protection should be put before a bail authority by the prosecutor in any bail application by the accused.
Victims should be informed about any special bail conditions imposed on the accused that are designed to protect the victim or victim's family, and the outcome of any bail application by the accused.
Prosecutors may institute and conduct, on behalf of the victim, proceedings for an Apprehended Violence Order or variation of an existing order under Part 15A of the Crimes Act 1900 where necessary in order to protect the victim (see section 20A Director of Public Prosecutions Act 1986).
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What happens in Court?
Mention or 'first return day'
The case will first come before the Court for a short hearing (called a ‘first return day' or ‘mention'). This will usually be about a week or two after the charges have been laid or, if the police have arrested the offender and not released him on police bail, on the very next day. If there has been no arrest, the offender will receive a summons to appear in the Local Court.
The first return day is only to allow the Court to find out what is to happen in the case and is not a full hearing. The offender (defendant) is asked if he wants to plead guilty or not guilty.
If the defendant pleads guilty
If the defendant pleads guilty, the Court will listen to the prosecution facts, hear what the defendant or his lawyer has to say about these facts or the appropriate punishment, and then impose a punishment (although sentencing may be adjourned to another day).
If the defendant pleads not guilty
If the defendant pleads not guilty, the Court will set a hearing date, which can often be months away, and may in certain circumstances release the defendant on bail until then.
The prosecution can, however, request that strict bail conditions be imposed to protect the victim until the hearing. The victim should make certain that she discusses desired bail conditions with the police prosecutor.
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The hearing
When the matter is heard the steps in the hearing are likely to include:
- The case is called into Court
- The charge will be read out to the defendant
- The defendant will be asked to plead guilty or not guilty.
If pleading guilty
If the defendant pleads guilty
- The prosecutor will read out the facts
- The defendants prior record will be read out
- The defendant or the defendant’s solicitor will have an opportunity to speak on the facts
- The Magistrate will make a decision about the penalty.
If pleading not guilty
If the defendant pleads not guilty
- The prosecutor will call witnesses
- The defendant or his solicitor can question these witnesses
- The defendant or his solicitor can call witnesses
- The prosecutor can question these witnesses
- The defendant or his solicitor can comment on the evidence
- The prosecutor can address the court
- The Magistrate will make a decision as to the guilt of the defendant
- If the defendant is found guilty, the Magistrate will make a decision about the penalty.
Standard of proof
For all criminal matters the standard of proof is “beyond reasonable doubt”.
To prove a charge of assault, the police will have to prove beyond reasonable doubt that the assailant used force on the woman on a particular occasion, or created a fear of physical violence in her mind on that occasion and that this was done without her consent.
(This is a different standard of proof to that used in civil cases which are decided on ‘the balance of probabilities’.) | The victim’s evidence
The woman will usually be the main, and sometimes the only, witness to the violence. Her evidence will be vital to the prosecution case and without it the case will usually be dismissed.
Both married and de facto partners can be called to give evidence against their partners in cases of family violence (i.e. they are compellable witnesses), although the Court also has a discretion to excuse them.
The victim’s evidence alone may be sufficient to prove the case but it will be strengthened by any other evidence which will support her claim. For example, evidence of the effect of blows to the woman's body may be given by a treating doctor - this evidence will have more weight if the woman saw the doctor as soon as possible after the assault. Photographs may also be of great assistance.
Sentencing
A defendant who is found guilty of assault by a Magistrate or who pleads guilty may be imprisoned, fined, put on a good behaviour bond with or without various conditions attached, be placed on a community service order or have the charge dismissed without a conviction recorded.
Appeals
A convicted person has the right to appeal against the conviction and/or sentence.
The appeal will be heard in the District Court and the victim may or may not be asked to give evidence again.
Usually the appeal is decided by the judge after reading the transcript of the Local Court hearing.
The outcome may vary. The offender’s conviction and/or sentence may be overturned, the conviction quashed, the sentence varied or the appeal dismissed. |
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Criminal charge: private action
It is possible for a woman to commence a private prosecution for a criminal offence where the police have refused to act. To do so, she should see the Chamber Magistrate at a Local Court and lay a complaint. The Chamber Magistrate will issue a summons for the defendant to appear at Court. The case then proceeds the same way as if the defendant was summonsed by the police except that the police prosecutor has no involvement.
In a private action the woman is responsible for proving the case. She should seek legal advice from:
- The Domestic Violence Advocacy Service
- A private solicitor
- The Legal Aid Commission
- Aboriginal Legal Service.
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AVOs and criminal charges
AVOs must be made where the offender is charged with or convicted of a domestic violence offence
If a defendant is before the Court, charged with a domestic violence offence or an offence of stalking or intimidation, an interim AVO must be made by the Court. The defendant will be summonsed to appear in relation to the AVO after the offence charge has been determined.
When a person is convicted of a domestic violence offence or an offence of stalking or intimidation, the Court must make an AVO on that conviction as if a complaint had been made.
In both these situations, the Court need not make an interim AVO or final AVO if it is satisfied that an order is not required, e.g. because there is already an AVO against the offender or the person in need of protection does not want it made.
The Court can also vary an existing AVO when the defendant is found guilty.
Concurrent proceedings: criminal changes and AVOs
It is possible to have an offender charged with a criminal offence as well as being the defendant to an application for an AVO arising out of the same incident. In fact this is sometimes necessary.
It is important that the woman realises that the criminal charge and the AVO perform different functions.
A criminal charge addresses past actions and punishes a person for those actions.
An AVO provides protection in the future by stating that the defendant is not allowed to do certain things otherwise he may be subject to a criminal charge and punishment.
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Indictable offences
When the assault has caused serious injuries, the attacker may be charged with offences such as assault occasioning 'actual bodily harm' or attempted murder or manslaughter. These offences carry higher penalties and are 'indictable'.
This means that the defendant will be brought before a Magistrate who will decide if there is enough evidence for the matter to go for a full hearing before a Judge and/or Jury in a higher Court (the District Court). The defendant may be on bail during this time depending on the nature of the offence. Sometimes the Court may consider it is necessary that he is kept in jail until the final verdict.
The process is outlined in the following chart.
In the District Court the person charged is know as the accused.
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