Police prosecutions and Courts
NSW Police (including Local Area Commands, DVLOs and Police Prosectors)
Office of the Director of Public Prosecutions | Courts | The Local Court
The Children’s Court | The Family Court of Australia
NSW Police (including Local Area Commands, DVLOs and Police Prosectors)
NSW Police has a strong commitment and a clear responsibility to develop and implement strategies for detecting, investigating and preventing domestic violence.
NSW Police is the gateway to the criminal justice system for many victims of domestic violence, and therefore has a major responsibility to ensure officers respond appropriately.
It is fundamental that all officers have an understanding of the social and legal context in which domestic violence occurs and their responsibilities. In carrying out their role, all police officers and other staff are guided by the aims and objects of law governing Apprehended Domestic Violence Orders (ADVOs), as stated in the Crimes Act 1900. The objectives of ADVOs are to:
- Ensure the safety and protection of all persons who experience domestic violence
- Reduce and prevent violence between persons who are in a domestic relationship with each other
- To enact provisions that are consistent with certain principles underlying the international Declaration on the Elimination of Violence Against Women.
NSW Police officers and other NSW Police employees should also fulfil their statutory obligations under the Victims Rights Act 1996, including the Charter of Victims Rights.
NSW Police plays a primary role in progressing the NSW Strategy to Reduce Violence Against Women, as part of a whole-of-government response. NSW Police has a commitment to meeting the needs of victims of domestic violence and encourages Local Area Commands to develop strong links within their communities to identify local needs that will further enhance the way in which the NSW Police responds.
Local Area Commands(LAC)
Local Area Commanders have a responsibility to provide police officers within their command with adequate training and support to ensure:
- Domestic violence matters are dealt with promptly and efficiently
- Mechanisms are in place to respond more strategically to domestic violence
- Victims of domestic violence are responded to in a non-judgmental manner and treated with respect and dignity
- All police officers provide victims of domestic violence with the highest level of professional intervention in a culturally sensitive manner.
This can be enhanced by the role of the Duty Officers in working collaboratively with the Crime Manager and other specialist officers such as the Domestic Violence Liaison Officer to target repeat offenders and provide support to high-risk victims. The Duty Officer is responsible for ensuring:
- The professional conduct of all operational police
- The provision of professional, competent service by monitoring the performance of officers
- The mentoring and supervision of the actions of police within the LAC
- Encouraging community involvement in policing.
Domestic Violence Liaison Officers
Domestic Violence Liaison Officers (DVLOs) support the work of the LAC by providing vital linkages with community issues and concerns, information and intelligence, while forming partnerships for victim support and follow-up.
In addition, DVLOs provide consultancy to other police officers in the form of support, advice and training.
The DVLO plays an important part in monitoring the effectiveness of the LAC response to domestic violence.
Domestic Violence Liaison Officers role and responsibilities
Crime prevention and education
- Analyse information and intelligence provided by the Crime Management Unit
- Develop crime prevention strategies
- Participate in internal and community education
- Provide support and assistance to the Education and Development Officer in the development of training on domestic violence
Community liaison and victim support
- Attend local DV Committees and Forums
- Participate in local organised awareness campaigns eg Stop DV day
- Monitor the provision of victim support during the judicial process (see Charter of Victims Rights)
- Develop systems for providing victim follow-up and referrals to appropriate agencies
- Where established, develop partnerships with local victim support services (eg. WDVCAS, refuges, Local Courts)
- Be familiar with domestic violence matters that are appearing before the Court
Quality control and consultation
- Monitor/audit CIDS/COPS (NSW Police computer databases) for compliance with legislation and procedures
- Making complaints on behalf of victims of domestic violence, including children and act as the common informant, where necessary
- Provide specialist advice to other police within the Local Area Command
- Liaising with the Police Prosecutor regarding domestic violence matters to be listed and assist where appropriate
Strategic planning
- Developing strategic partnerships with fellow service providers to ensure an integrated approach to domestic violence
- Assist in the identification and development of strategies in the Commands business plans, for example, targeting high-risk domestic violence incidents
- Participate in professional development activities relevant to domestic violence.
| Police Prosecutors
Police Prosecutors provide the vital link between NSW Police and Local Courts for many victims of domestic violence. NSW Police has directed Police Prosecutors to provide assistance, through consultation with the victims of domestic violence prior to attendance at court, where this is possible.
Recognising the workload of Police Prosecutors, and the important role of the DVLO in relation to victim support on list days, Police Prosecutors and DVLOs should liaise and work together to ensure:
- That the victim understands the circumstances in which an application for an AVO has been made
- Any potential problematic issues (eg. potential for contesting the application, options if changes to AVO conditions requested by the defendant) are likely to arise
- The victim understands the Court process and any expectations the Court may have of her
- The victim is supported in her application.
Police Prosecutor’s roles and responsibilities
1. The Police Prosecutor has a number of responsibilities before and during Local Court which include:
- Obtaining an AVO list of matters for court,
- Making sure copies of all relevant and necessary documentation are available in relation to complaints made,
- Ensuring that the orders being sought are enforceable,
- Working with the Domestic Violence Liaison Officer (DVLO).
2. When checking and presenting charge matters for domestic violence offences ensure appropriate consideration is made for AVO applications. Where there is no AVO application before the court, ensure a request is made under s562BE and s562BF of the Crimes Act 1900.
Where a defendant pleads or is found guilty of a domestic violence/stalking/intimidation offence, consider asking the Court to vary an existing apprehended violence order to enhance the protection afforded to the protected person.
3. Liaise with Domestic Violence Liaison Officers (DVLO) to assist as much as possible in obtaining current instructions from the person in need of protection, provide instructions from police, informing victims of the current status of applications and sufficiently explains court proceedings, and that in all ADVO applications, statements are obtained from the person in need of protection.
4. Where possible liaise with the Aboriginal Court Liaison Officer regarding any matters involving Aboriginal victims.
5. Where possible, be available to provide information (about Court procedures and proof needed for breaches, explanation of orders made etc) to police and/or people seeking protection.
6. On a request, seek leave to appear to help unrepresented complainants of AVOs (the Police Prosecutor retains discretion to decline to seek leave where it appears inappropriate).
7. Police Prosecutors may appear initially for victims in applications where they are the defendants in cross applications. Contact Court and Legal Services for further advice.
8. If the matter is to go to a full hearing the Police Prosecutor should refer the victim to the DVLO to ensure a proper investigation has been undertaken.
9. Where possible, be available to discuss issues with the DVLO and/or victims, regarding reasons for wanting to withdraw, including any possible inducement, threat or intimidation. The Office of the Director of Public Prosecutions Protocol for Reviewing Domestic Violence Offences should be followed. Sworn evidence from the person to be protected may be needed. Where there is no victim present, seek an adjournment so that further inquiries may be made. Later evidence might be called from the officer making the inquiries that might indicate the victim's concerns and circumstances for non-attendance in relation to the application.
10. Oppose the making of undertakings by the alleged offender.
11. In preference to bail, seek interim orders to ensure protection for victims.
12. Where the defendant is served with a summons but the defendant does not attend Court and orders are sought, apply for orders ex-parte.
13. Where someone is charged with breaching an AVO, as well as another offence such as assault or malicious damage, a plea is to be sought for both offences.
14. Where there is no DVLO available for court, where possible:
- Liaise with the Court Assistance Scheme,
- Check the victim is present,
- Explain the process and meaning of an AVO
- Advise protected people to report breaches,
- Refer to any appropriate community services,
- Find out if the defendant is present. If so, ask the defendant is he/she will consent to the orders being sought and refer them to appropriate legal services for advice on the matter,
- Where necessary, discuss consent orders that can be made with consultation with the person seeking protection,
- Ensure victims are in a safe waiting area throughout proceedings.
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Office of the Director of Public Prosecutions
The Office of the Director of Public Prosecutions (ODPP) is the independent state prosecuting authority of the New South Wales Government. It prosecutes all serious offences committed against the State's criminal laws.
The Director of Public Prosecutions acts independently of the Government in decision making on criminal prosecutions. The Director is however responsible to the Attorney General for the operation of the Office.
The Office does not investigate crime. That is the role of investigating agencies such as the NSW Police and the Independent Commission against Corruption.
1. The role and functions of the Office
- Reviews cases to determine whether there is sufficient evidence to prosecute. If the ODPP decides that the case should not proceed because there is insufficient evidence or for other reasons, this will be discussed with the victim of the crime at the earliest possible time. If the ODPP decides that the case should proceed it will be heard in the Children's, Local, District or Supreme Court depending on the nature of the matter.
- Prosecution of all committal proceedings and some summary proceedings in the Children's and Local Court
- Prosecution of indictable matters in the District and Supreme Courts
- Conduct of related applications and appeals up to the High Court.
All prosecutions and related activities are carried out in accordance with the Director's Prosecution Policy and Guidelines (publicly available). | 2. The Role of the ODPP in Domestic Violence Cases
The ODPP prosecutes serious domestic violence matters, which can include sexual assaults and physical assaults, as well as all ground appeals to the District Court. The ODPP prosecutes AVO hearings against police defendants where they are also being prosecuted criminally by the ODPP.
The ODPP has a published Protocol for Reviewing Domestic Violence Offences in its Prosecution Policy and Guidelines especially for when a victim may be considering withdrawing the charges against the accused.
3. Witness Assistance Service (WAS)
The WAS is a statewide service within the ODPP and is staffed by professionally qualified workers. There is a WAS worker in each of the ODPP offices.
The service is available to witnesses and victims of crime involved in cases being prosecuted by the ODPP. The WAS can accept referrals once NSW Police have finished their investigation and charges have been laid against the alleged offender. WAS provides a range of services aimed at minimising re-traumatisation for the victim while going through the criminal proceedings.
The services available include providing information about the legal process, services available, rights and entitlements; up-dates on the progress of the matter as required; referral for counselling and support; court preparation and familiarisation; coordinating court support; supporting victims during conferences with ODPP lawyers; and debriefing and post court follow-up. |
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Courts
The role of courts in domestic violence is to provide independent and impartial resolution of legal disputes involving or affecting those involved in domestic violence.
These disputes can include criminal matters in which a person is charged with an offence.
They also involve Court Orders such as Apprehended Violence Orders.
The courts of NSW which play a role in domestic violence are administered by the NSW Attorney General's Department and include:
AVOs are usually dealt with in the Local Court.
The Family Court of Australia also plays a role in domestic violence. This Court is administered by the Commonwealth Attorney- General's Department.
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The Local Court
Local Courts are the courts of general access in New South Wales. They are presided over by a Magistrate.
Jurisdiction
Local Courts in New South Wales have jurisdiction to deal with:
- Summary prosecutions
- Applications for Apprehended Violence Orders (both personal and domestic)
- Civil matters with a monetary value of up to $40,000
- Committal hearings
- Some family law matters
- Motor traffic matters
- Juvenile prosecutions and child care matters at specialised Children's Courts, and
- Coronial inquiries.
What matters do Magistrates hear?
All criminal matters that are heard by a Magistrate are dealt with in the Local Court. Matters that are more serious (referred to as "indictable offences") are referred to the District or Supreme Courts and are dealt with by a Judge.
Magistrates hear cases that do not need a judge and jury. These are called summary offences and include traffic offences, minor stealing offences, offensive behaviour offences and some types of assault offences. Magistrates may deal with certain indictable offences in particular circumstances. Magistrates also hear applications for Apprehended Violence Orders, where one person is seeking a restraining order against another person.
Magistrates also conduct committal proceedings. In committal proceedings, the Magistrate decides whether or not there is enough evidence to commit a person who has committed a serious offence, to the District or Supreme Courts for hearing or sentence.
Civil actions
The Local Court deals with cases where people are being sued for money they owe, and the amount of money in dispute is less than $40,000. Cases involving amounts of money greater than $40,000 are heard in the District Court or the Supreme Court.
Coroner's and Children's Courts
The Coroner's Courts and Children's Courts are also part of the Local Courts system, but they deal with special issues.
Coroner's Courts investigate deaths and fires to find out what was the likely cause of the death or fire.
Children's Courts deal with criminal matters involving children who are younger than 18 years old, and with children who are in need of care or protection. The Children's Court also hears applications for Apprehended Violence Orders against children who are younger than 18 years old. Children's Courts are "closed courts". To protect the privacy of the children or young people involved, members of the public are not admitted into the court.
Family Law matters
Local Courts also deal with certain Family Law matters. Local Courts dealing with Family law matters are also "closed courts".
Who’s who in the Local Court
The Magistrate
The Magistrate decides what will happen in each case before the court. The Magistrate may:
- Adjourn the hearing to another day and if need be, to another court
- Decide bail applications and conduct preliminary or committal hearings
- If a plea of guilty is entered in a criminal case that can be dealt with summarily (that is, by the Magistrate), decide the penalty there and then, or on another day
- If the parties come to an agreement in a civil case, make the order the parties have agreed to
- Hear civil and criminal cases that can be dealt with summarily and decide each case on the evidence produced by the parties
In a civil case the Magistrate will decide whether the person bringing the case has proved their case on the balance of probabilities. Criminal cases must be proved beyond reasonable doubt.
The Court officer
The Court officer will:
- Obtain the names of all persons waiting at Court in domestic violence cases
- Provide information to the Magistrate on the appearance and representation of persons at court
- Provide information and liaise with Court Assistance Schemes, legal representatives and police on the appearance and representation
- Provide information to applicants and defendants on Court procedures, likely delay in the case being determined, and to applicants where Court Assistance Schemes are located and where safe waiting areas are located
- Ensure that defendants are given clear directions to the Court office to sign for their copy of the AVO.
Solicitors
Usually there is a duty solicitor in the Local Court. The duty solicitor is a lawyer paid by the Legal Aid Commission who represents people who are granted legal aid. The duty solicitor can give advice about applying for legal aid. If a defendant has been held in police custody and is making a first bail application, the duty solicitor can represent them. There may also be other private solicitors in Court representing their clients. Sometimes solicitors are provided by the Law Society who can represent defendants free of charge or at a reduced cost. These solicitors are called pro bono solicitors.
The prosecutor
The prosecutor appears on behalf of NSW Police when someone has been charged with a criminal offence. Usually prosecutors are police officers who have had legal training. In more serious criminal matters, however, the prosecutor will be a lawyer from the Office of the Director of Public Prosecutions.
The Court monitor
There are microphones in the Court to record what is said. The Court monitor operates these. They do not amplify proceedings. | The public
At most times, anyone can watch Local Court proceedings. Some cases are heard "in camera". In such cases, the Court room will be closed to the general public.
The public is always excluded from Family Law and Children's Court proceedings.
The Chamber Magistrate
A Chamber Magistrate service is available at most full-time Local Court registries in New South Wales. The Chamber Magistrate can provide information about legal processes and Court procedures. They can explain the legal options available to you, but they cannot represent you in court.
Chamber Magistrates do not act as lawyers, but they can refer you to an appropriate legal advisory service if you cannot afford to consult a private solicitor.
At some Local Courts, the Chamber Magistrate may only be available at certain times or you may need to make an appointment. It is best to telephone your nearest Local Court to find out how you can see the Chamber Magistrate.
Domestic Violence Contact Officer
A domestic violence contact officer is located at all Court registries. The domestic violence contact officer will be available
- To assist in provision of information to applicants and defendants
- As an authorised justice to take complaints from applicants
- To assist in coordination of domestic violence list days
- To liaise with other government and non-government agencies on domestic violence issues
- To assist in the coordination of Court services on Court days.
Where practical, a domestic violence contact officer or a 2nd Court officer will be available to assist on domestic violence list days.
Court lists
Court lists are the lists of the cases to be heard. Copies of complaints and Court lists will be made available to appropriate Court support agencies if requested.
- Copies of complaints will be forwarded, to the police DVLO / police prosecutor / Legal Aid / Women’s Domestic Violence Court Assistance Schemes (WDVCAS), if requested
- A copy of the Court list will be provided prior to Court date to police DVLO / police prosecutor / Legal Aid / WDVCAS, if required
- Community Legal Centres will liaise with Court staff to make local arrangements regarding notification of hearing dates.
Complainant
The complainant is the person who applies for the AVO. If the application is made by the NSW Police on a woman's behalf, the complainant will be a police officer; if the woman applies for an AVO through the Chamber Magistrate, the woman is the complainant.
Defendant
The defendant is the person against whom the AVO is sought.
Interpreter
It is the court's responsibility to book qualified interpreters when necessary to assist a party or witnesses in AVO matters.
Support worker
The support work is someone who provides support to women in domestic violence matters at court. The support worker will work alongside the solicitor or police prosecutor to ensure that a woman's legal and non-legal needs are addressed.
Aboriginal Client Service Specialists (ACSS)
ACSS officers are attached to a number of Local Court registries to assist Aboriginal and Torres Strait Islander defendants, witnesses and victims of crime. They can also assist with information on Court services.
Safety at court
All Courts should have in place a safety & security policy, developed in consultation with other agencies and service providers, to maximise the safety of victims in domestic violence cases.
The policy should include:
- Proactive measures to prevent/minimise the impact of incidents
- Guidelines about access to and use of support rooms
- Arrangements to ensure safety of victims / witnesses whilst within the Court building
- Procedures that consider the safety of victims arriving at and leaving the Court building
- Roles and responsibilities of staff in the event of an incident
- Procedures outlining security / safety of staff
- Mechanisms to ensure all registry staff and other agencies/service providers at Court are aware of the safety procedures
- Information to be provided to clients
- Procedures for reporting breaches of AVOs
- Processes for critical incident reporting formats to the Sheriff's Office and Regional Coordinator.
Where practical, Courts will aim to establish safe rooms for women in domestic violence cases. Safe rooms may be located within Court buildings, if practical, or in nearby buildings or community centres.
Where there are no safe rooms and women have concerns about their safety they should advise the Court staff so that arrangements can be made to help ensure their safety and freedom from intimidation.
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The Children’s Court
The philosophy of the Children's Court
The present Children's Court is guided by principles set out in section 6 of the Children (Criminal Proceedings) Act, which requires that a court, in exercising criminal jurisdiction with respect to children ... have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
Matters involving a child under the age of 18 years who is a defendant are dealt with by a Children’s Court.
Specialist Children’s Courts
There are specialist Children's Courts at Glebe (Bidura), Lidcombe, Werrington (Cobharn), Newcastle (Worimi), Raymond Terrace, Maitland, Cessnock, Wyong, Woy Woy, Hornsby, Sutherland, St. James (Sydney city), Campbelltown, Port Kembla, Nowra, and Campsie. The Court at Campsie has a care jurisdiction only.
Section 10 of the Children's Court Act allows Local Court Magistrates to be appointed as authorised Children's Court Magistrates outside those metropolitan areas that have a permanent Children's Court. | Local Courts sitting as a Children's Court
The jurisdiction of the Children's Court may be exercised by any Magistrate in any place specified by proclamation in the NSW Government Gazette. This means that Local Court Magistrates in country areas can sit as Children's Court Magistrates with a simple statement to the Court that the Court is now sitting as a Children's Court. In fact, any Local Court can sit temporarily as a Children's Court to hear children's matters; but if there is a Children's Court that is reasonably accessible to the client, it is better to arrange for the matter to be heard there, seeking a short adjournment if necessary.
When a Local Court is sitting as a Children’s Court the Court is closed.
The jurisdiction of the Children's Court
The Children's Court, with a few exceptions, has exclusive jurisdiction to deal with offences allegedly committed by a person who was over 10 and under 18 at the time of the offence and who was charged before turning 21 (Children (Criminal Proceedings) Act s.28). (This means that the Children's Court occasionally has jurisdiction to deal with an adult).
Procedure
The Children's Court has its own procedure, set out in the Children (Criminal Proceedings) Act, which differs in many respects from the procedure of the Local Court; although under section 27 the Justices Act 1902, the Criminal Procedure Act 1986 and other laws relating to Local Court procedure also apply in the Children's Court, with the Children (Criminal Proceedings) Act prevailing where there is inconsistency.
See Part 4 Section B for details.
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The Family Court of Australia
The purpose of the Family Court of Australia is to resolve or determine family disputes with as little antagonism as possible and to encourage the parties to reach their own agreements about their children, finances and property.
To do this the Court provides a range of services including:
- Information services
- Dispute resolution services (counselling, mediation and financial conciliation) and
- Judges deciding matters brought through the Family Court.
Some of the areas the Family Court deals with are:
- Marriage and the dissolution of marriage
- Disputes between married couples about the ownership and division of property
- Children and parenting within the context of marriage and divorce
- Family violence
- Child sexual assault.
Principles
- Family Court staff recognise that people (for example, parties, children,witnesses, relatives and friends) who wish to use the Court services or attend the Court, may have suffered or may continue to suffer family violence.
- The well-being and safety of people using the Court's services will not be compromised by attempts to arrive at negotiated resolution of their disputes.
- Participation in conciliation or mediation procedures is not to be ignored.
- For those who are in fear of family violence provision will be made for alternative conciliation procedures (for example, interviewing people separately at different times, conciliation by telephone, etc) mediation will normally be regarded as inappropriate. In some cases, conciliation may be inappropriate.
In all cases including conciliation and mediation of child-related matters, the interests of the children will be regarded as paramount.
| The Family Court and domestic violence
There are several areas where the work of the Family Court’s directly relates to domestic violence. They include:
- The workings of the Family Court
- Parenting orders
- Location and recovery orders
- Family violence orders ( which in NSW are AVOs)
- The relationship between parenting orders and AVOs
- Injunctions for personal protection
The Local Court sitting as a Family Court
In certain circumstances a Local Court can sit as a Family Court, eg,
- When determining parenting orders by consent.
See Part 4 Section D Family Law and Family Violence for details. |
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