What happens if I am charged with domestic violence? This is one of the first questions we get asked by clients who are dealing with a domestic violence case against them. This article aims to give those accused of domestic abuse some fundamental legal knowledge and a framework to consider to decide how to defend themselves.
However, such individuals should keep in mind that each situation has its own unique and challenging facts that may necessitate other considerations or actions than those presented in this article.
Anyone accused of a crime should seek the advice of a Solicitor who is competent and knowledgeable in criminal defence and familiar with the case’s unique facts.
What is Domestic Violence?
Pursuant to the Crimes (Personal and Domestic Violence) Act 2007, domestic violence is an act of violence performed by a person against a family member with whom they have had a domestic relationship.
Domestic violence is also described in the Family Law Act of 1975 as a person threatening, acting violently, or participating in any other comparable behaviour against a member of the person’s family, leading the family member to be afraid.
Domestic violence not only involves physical abuse or force. It can also include:
• Sexual abuse
• Emotional or phsycological abuse
• Verbal ause
• Stalking and intimidation
• Financial abuse
• Damage to property.
What Is A Crime Of Domestic Violence?
There are a variety of domestic violence offences, but the claimed behaviour will determine the type of charge filed by the police. The following are the most typical domestic violence charges:
● Common Assault
● Assault Causing Actual Bodily Harm
● Reckless Wounding
● Stalk and Intimidate
● Malicious Property Damage
● Breaching an Apprehended Domestic Violence Order
Domestic abuse offences come in various forms and can result in various punishments. The courts are stringent when punishing domestic abuse.
However, because of the frequency of the offences and the perceived need for broad deterrents, there is a good chance that a criminal conviction will be recorded and a jail sentence in severe domestic abuse cases.
How is Domestic Violence Handled?
When a victim makes a domestic violence allegation against you, the Police will impose an Apprehended Violence Order (AVO) against you. There are two types of AVO’s being either an Apprehended Domestic Violence Order (ADVO) or an Apprehended Personal Violence Orders (APVO).
AVO’s are imposed to prohibit a defendant from engaging in intimidating behaviour.
The ADVO may be accompanied with criminal charges, or without. It’s crucial to remember that an ADVO isn’t the same as having a criminal record or being convicted of a crime. It may, however, have an impact on specific occupations or family law cases.
If a person does not follow the terms of the order, they may be charged with violating the ADVO. This will result in a criminal record if you are convicted.
Section 16 of the Crimes (Domestic and Personal Violence) Act 2007, states that a court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears—
(a) the commission by the other person of a domestic violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person—
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
In recent years, the penalties for domestic abuse offences have become substantially harsher. As a result, courts have been significantly more likely to inflict severe fines due to community norms. As a result, magistrates and judges frequently use an offender as an example to send a message to the public that domestic violence will not be tolerated. ‘General Deterrence’ is the term for this.
On the other hand, Platinum Lawyers has a track record of obtaining section 10 dismissals for serious domestic violence allegations.
Click here to see some of our Sydney domestic violence lawyers‘ recent successes. If you or someone you know has been charged with a crime, don’t panic.
When I go To Court, What Will Happen?
You have two options when attending Court as follows:
1. Consent to the AVO in Court without admissions.
By undertaking the above option, you are agreeing to the AVO made however you are not agreeing with what is alleged in the AVO against you.
This allows the matter to be finalised and you would not need to attend a hearing. You would also be saving legal costs by consenting to the AVO.
By agreeing to the AVO without admissions, a final AVO will be made against you.
2. Oppose the AVO.
By opposing the AVO you will be contesting the AVO against you. Here the Court will timetable for the Police to provide you with a mini brief of evidence, The prosecution will use this material to try to prove their case against you.
The mini brief will include,
● A statement of what occurred on the date of the offence
● a copy or recording of the victim’s statement,
● and any photographs—such as the victim’s injuries or damaged property.
The matter will then be adjourned to another court date for a ‘show cause’ hearing. At the show cause hearing, the magistrate will enquire into whether:
• Are there reasonable grounds for the protected person to fear the defendant?
• Does the protected person actually hold those fears?
• Are the proposed AVO conditions necessary for the safety and protection of the protected persons under the AVO.
If these elements are not proven, then the AVO will be dismissed by the Court and the matter is finalised.
If there are criminal charges annexed to the AVO, you will need to enter a plea of guilty or not guilty at the first mention. Before you make this decision, you should seek legal guidance. You can request that your case be adjourned (put on pause) so that you can retain legal counsel or get further legal advice. If the judge agrees to let your case be adjourned, your case will most likely be suspended for no more than 14 days if the court decides to do so.
What If I Enter A Guilty Plea?
If you enter a guilty plea, the prosecution will present the court with the police facts sheet. This informs the magistrate of what the police claim occurred. You should read it before going to court. Only plead guilty if you agree with everything in it.
If you agree that you committed the crime but disagree with some of the details in the police report, then we may be able to negotiate with the police to amend the facts sheet.
If the issues you disagree with are minor, you may be able to make some improvements. For example, if you wish to make significant modifications, you may need to proceed with the hearing and summon witnesses so that the magistrate can determine what is truly important. The prosecution will also provide the magistrate with a copy of your criminal record (if you have one) and other documentation, such as images of the victim’s injuries and property damage.
You can also hand over other documents to the magistrate, such as character references.
The court will then hear from you (or your lawyer) about how and why the crime(s) took place, and some information about you and your circumstances (for example, whether or not you are employed, whether or not you have mental health or drug and alcohol issues, and if so, whether or not you are receiving treatment), your general character and background, and possibly your current financial situation. This is referred to as a ‘plea in mitigation.’ The magistrate will use this information to determine the appropriate penalty for you.
What Happens If I Enter A Not Guilty Plea?
If you enter a not guilty plea, your case will be postponed until a ‘hearing’ date. If the prosecution intends to use any additional evidence, they must serve anything else in brief on you (or your lawyer, if you have one) at least 14 days before the hearing. Written statements from witnesses or video recordings could be used as further proof. As quickly as possible, read all statements and see any video recordings you would need to provide your Solicitor with all the relevant documents provided to you by the Police.
Your Solicitor will notify the prosecution of the witnesses that they seek to cross-examine at the Hearing. Before going back to court, you should seek legal guidance on the evidentiary brief.
What Will The Hearing Necessarily Involve?
Any witnesses, including you and the victim, can testify at the hearing. When the police take the victim’s statement, they may have videotaped the victim’s testimony, known as Domestic Violence Evidence in Chief (DVEC) and can be used in court. Other times, the victim may testify by video link or have a screen placed in front of the courtroom so that you cannot see them.
You will not be permitted to interrogate the victim when the victim gives evidence if you do not have a lawyer. Instead, the court will assign someone to ask questions on your behalf. The person delegated to you does not represent you or provide legal advice; all they can do is ask you questions.
Will I be The Subject Of An Apprehended Domestic Violence Order (ADVO)?
If you’ve been charged with domestic violence, the magistrate will most likely issue an interim (temporary) ADVO against you until your case is resolved in court. The magistrate will almost certainly issue final orders for an ADVO against you if you plead guilty or the court deems you guilty.
There will be three conditions that must be met. They are the things that you must not do:
● Assault or threaten the person the ADVO is for (the ‘protected person’),
● stalk, harass, or intimidate that person,
● or destroy or damage their property
● or harm their animal knowingly or carelessly.
These conditions will cover anyone with a ‘domestic relationship’ with the victim.
The court can make other orders, such as ‘prohibiting or restricting’ you from approaching the protected person.
As a result, you may be prohibited from:
Getting near the protected person in any way, going near their home, business, or other facilities, or contacting or interacting with them within 12 hours of drinking alcohol or using illegal substances.
Where Can I Receive More Assistance?
Assuming you want help with something different, such as housing, counselling, mental health, or drug and alcohol concerns, or if you’ve been violent or abusive to a spouse or family member and want to work toward more respectful and caring interactions, you can contact Platinum Lawyers on (02) 8084 2764 or visit https://platinumlawyers.com.au/.
