Law Society Journal (NSW, Australia), December 1999, page 52. Cite as (1999) 37 (11) LSJ 52, By Trevor Nyman
About the author:
Trevor Nyman is an Accredited Specialist in Criminal Law and adjunct professor at University of Technology, Sydney. He is a foundation member of the Criminal Law Committee and supervising editor of the College of Law papers on crime and advocacy.
SINCE 1951 THERE HAVE BEEN provisions in the NSW Crimes Act for Local Courts to make orders for apprehended violence. It was a prophylactic provision intended to restrain misconduct before it happened. The complainant saw the chamber magistrate who was vested with a judicial discretion to initiate a complaint or to refuse to do so. The complainant carried a criminal onus to prove two things; firstly that the apprehension existed at the time of the complaint and also at the time of the hearing; and secondly that the apprehension was objectively reasonable.
In the 1980s and 1990s a rash of legislation was introduced, creating and modifying and expanding the scope for AVOs beyond the belief of those of us who once worked under the old laws of the 1970s. Some of the most significant changes that took place in this recent legislation have been the following:
The chamber magistrate has no discretion to decline to initiate process.
Police are required to initiate process as the informant, instead of sending a complainant to the chamber magistrate to issue his or her own complaint. One of the corollaries of this new law is that the police officer becomes the person in charge of the future of the proceedings, and the aggrieved citizen is known as the PINOP (person in need of protection).
The magistrate presiding in the Local Court need not be satisfied of the truth of the complaint, as long as the defendant consents to an order. Consequently, some of the outrageous allegations made by complainants are never tested (and might never be believed); but they remain on record in the Registry of the Local Court as an allegation which was made and never denied.
The defendant may consent to an order without admitting the truth of the complaint. Police, court officers, prosecutors and indeed some magistrates, emphasise the convenience of this provision, as it frequently gives the anxious defendant who is outraged at the allegations, a sense of reassurance that it is okay to go quietly.
When a defendant declines to consent to an order and insists on testing the truth of the allegations which were made by the complainant, the onus of proof borne by the complainant is a civil onus. It is not hard to prove on the balance of probabilities that the PINOP apprehended some sort of misconduct within the statutory definition of violence (see below).
Interim Orders are the rule, not the exception. In appropriate cases ex parte orders will be made by telephone. Orders will consequently exist, virtually from the day the proceedings are commenced otherwise from the day they first are returnable before court. The threshold for issuance of a warrant for the arrest of the defendant is very low, consequently a significant number of cases commence by arrest and not by summons.
Violence is unnecessary under amendment to the Act. Harassment, intimidation or stalking is sufficient misconduct to come within the enlarged statutory definition of “apprehended violence”.
A police prosecutor normally appears for the complainant. This is because the proceedings are initiated by a police officer.
The making of an order automatically cancels any licence the defendant might have to be in possession of a firearm. Consequently the ex parte order or interim order which is the norm rather than the exception and takes place before any allegation by the PINOP has been proved, results in the loss of job to a security officer, a private enquiry agent or even a farm hand, since such callings require routinely that the person be entitled to carry a firearm.
A defendant who successfully defends a case will get costs only if he can prove the proceedings were frivolous or vexatious. Litigation lawyers will recognise the extraordinary circumstances that need to exist for such a finding in a Local Court.
Breach of an AVO is a very serious offence involving : presumptions against bail, where the defendant is engaged in certain violence; and presumption of jail. The Magistrate must take special steps if he or she is not imposing a jail sentence (contrast Justices Act s.80AB in which there is a presumption against jail for all other offences).
The complainant has a right to have the case reheard in the District Court in those circumstances where the original proceedings in the Local Court were dismissed. (If you regard apprehended violence proceedings as criminal in nature as you might well do, notwithstanding provision in the Crimes Act they are not, you would regard this provision as constituting a type of double jeopardy).
What has been the result of the legislative changes that have created this new industry in the Local Court jurisdiction? Statistically, has violence decreased while the number of complaints for orders has burgeoned? Is the growth of orders evidence that the system is catching the offenders quickly? On the contrary is the growth of orders evidence that the incidence of violence is actually growing? Is the growth of orders a state of affairs from which no inference can be drawn as to the incidence of violence? Is this the only real inference to be drawn that thousands of man hours of police are being consumed processing complaints each week, and hundreds of court hours are being consumed dealing with the lists, the consent orders and the defended hearings? We have seen nothing from the Bureau of Crime Statistics that leads us to believe that violence in the street or violence in the home has been reduced let alone that its reduction has been attributable in any way to the enormous industry that has been going on and vastly growing in the last two decades.
There are other problems which are intrinsic in the nature of Apprehended Violence Orders. An outstanding one is the inflexibility it is a serious obstacle to its efficacy. The most frequent occurrence of this evil is in the case of the PINOP who, out of loneliness, renewed affection for the defendant, doubt as to whether getting the order was a good thing or for other reasons, initiates or encourages fresh communication with the defendant. The defendants motives in responding positively may be praiseworthy (remorse, bona fide desire to reconcile, best interests of children) or his motives may be entirely selfish but the motives are irrelevant. The defendants actions in seeing, approaching or being with the PINOP constitute a criminal offence. As such, they are to be prosecuted once police become aware (and notably in the country, police may well become aware without any report from the PINOP). As mentioned above, the defendant will have trouble getting bail; and on conviction, there is a real danger of jail as a penalty.
There are other occurrences of the problem of inflexibility of all AVOs. Whenever there are children involved, emergencies will arise; a child has an accident and goes to hospital the other parent is entitled to be informed. He should attend, but that may well be a breach of the order (if the PINOP is at the bedside too). Emergencies aside, the range if incidents at handover for access is limitless. And human nature being what it is, spiteful or foolish parties may provoke a situation which constitutes a breach of order.
There is a surreal quality about an injunction not to commit a crime, which is what AVOs are all about. The defendant is restrained from assault and malicious damage, both of them crimes. The maximum penalty for breach of AVO is two years imprisonment. The maximum penalty for assault (heard in Local Court) is two years imprisonment. Malicious damage carries the same penalties. Therefore, the offender who beats his wife is liable to the same penalty whether subject to an AVO or not. And Local Courts deal with offenders according to the proper criteria as to penalty, giving the king-hitting bully with no AVO a more salutary serve than the foolish pusher-and-shover who was on an AVO.
What about the new offence of stalking? Didnt its introduction serve a useful purpose? Well, apart from introducing a ghastly Americanism into our Crimes Act , no. There was a perfectly good offence of “watch and beset” well suited to the mischief which such anti-social behaviour constitutes, with good law going back well into the 19th century.
Another problem thrown up by the AVO industry is the situation of the PINOP wife who has somewhat exaggerated the incident to the police, or having told the unvarnished truth she now wants to forgive him and give him an unconditional second chance. This unfortunate person (and she is not an isolated case, they can be found in numbers in any busy AVO court list) has the following chicanes to steer through:
She is not in charge of her case. The police prosecutor is. The prosecutor will go ahead with any substantive charge (assault, malicious damage etc).
The Common Law right of a wife, to decline to give evidence against her husband, is specifically removed by the legislation.
If she fails to show up at Court, the case may still survive because the police will be worried that the husband has spirited her away for the day.
If she shows up and says she wants the case dropped because she exaggerated, police frequently threaten her with public mischief prosecution.
If she shows up and says she loves him and wants to give him another go unconditionally, police will advise her to get the AVO anyway because “it will protect her”. But that removes the unconditional nature of the new start she wants to give him. Two people trying to live together with one on an AVO as regards the other, is like walking on eggshells. There is a parallel in the instructions for freshmen at US Colleges to ask first “May I kiss you” “May I touch you here” and be sure to get an audible reply.
Police and prosecutor are trained to cross-examine her as to whether she is acting under any duress from the husband. True, there is an incidence of this. But it makes the experience tougher for her.
If she goes into the witness box and says she has “no current fears” of the husband, that will be the end of the AVO proceedings. (It wont be the end of any substantive count; see the first two chicanes above). But if she really does have fears, even little ones, she is committing perjury. Any lawyer who advises her to do so is in breach of professional duties and is possibly an accessory before the fact to her felony. And this is no theoretical risk. The lawyer will be high on her blame list if the reconciliation is a failure.
So, if we pause and take stock of how the community has been served by the new legislation, what is the report card going to say? Top marks as a new industry for lawyers in Local Courts. High marks for keeping general duties police doing paperwork for reports, complaints, applications, telephone orders, warrants, informations, facts, statements and briefs. No doubt there are many women who feel reassured by virtue of having a court order, but we dont know what percentage, nor whether their good feeling is attributable to the court order or because the problem diminished anyway.
The acid test of the efficacy of AVOs must logically be whether they have had the effect of diminishing violence in the street and in the home. There seems to be no empirical data that supports the view that violence has diminished. There is plenty of anecdotal data that it is either continuing at the same level or is perhaps increasing. Meanwhile the Local Courts are working harder than ever with significantly increased jurisdiction in civil work, a juvenile jurisdiction that deals virtually with every crime except murder, and a criminal jurisdiction significantly enlarged since the reduction of the number of matters which the DPP is taking to jury trial. The result has been that the workload of magistrates (quite independently of apprehended violence proceedings) has become greater, more complex and more demanding while their research facilities and support staff remain nonexistent. Add to this the charged atmosphere that goes hand in hand with apprehended violence day in every Local Court and the stress on our Local Court bench is greater than ever before.
The title to this article includes the word “disease” because that can be the end result of excessive stress. There have been times in the last year when up to six magistrates were on indefinite leave as a result of stress. Because of technical difficulties in appointing acting magistrates, the workload has been passed around the other magistrates thereby imposing additional stress and risking further disease and sick leave. Meanwhile the NSW Attorney General's Criminal Law Review Division is undertaking a review to see if AVOs need to be extended in various ways, and Australian Law Reform Commission has recently published a Model Domestic Violence Code. From the point of view of this commentator the juggernaut that has been created needs to be given a very hard critical review rather than being made bigger and fatter and occupying more space in the court user system.
The Law Society of New South Wales is the professional association for the solicitors branch of the legal profession in the State of New South Wales, Australia.
170 Phillip Street, Sydney NSW 2000, Australia.
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