Clarity Law

Specialist Criminal Law Firm Queensland
Sunday, 17 September 2023 15:43

The Role of Victims of Abuse in Domestic Violence Matters

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For criminal and domestic-violence lawyers in Queensland, the situation is all too familiar: a victim of domestic violence contacts us and asks whether they can withdraw a statement that they gave to the police following a domestic violence incident and force the police to take no further action against the perpetrator especially if the perpetrator has been refused bail and is in jail waiting for the charges to be finalised.

For us, this is particularly heartbreaking for two reasons: firstly, it is worrying for us to see any victim of domestic violence worried more about their attacker than their own safety. Secondly, our advice must always be that, while the victim can withdraw their statement, or refuse to provide further statements to police, this is unlikely to achieve their desired aims. The police can still take action against the perpetrator, either to pursue an application for a Domestic Violence Protection Order, or a charge of contravening an existing Domestic Violence Protection Order. This article explores the reasons why this is so and the powers that the police and the courts have to proceed in these matters in spite of the victim’s unwillingness to co-operate further with police and their desire to withdraw their application for a DVO.

*A note about terminology. For the purposes of simplicity, this article discusses domestic violence in the context of a heterosexual, cis-gendered, couple in a marital relationship where the wife is the victim and the husband the abuser. This reflects the current state of the research into domestic violence. However, it is important to note that Queensland’s domestic violence legislation is not gendered, nor is its protections limited to spousal or romantic relationships.

 

Police Applications for Domestic Violence Protection Orders and Applications to Vary DVO's

If police attend a domestic disturbance, they are empowered to apply to the court for a Domestic Violence Protection Order. Alternatively, the police may issue a Police Protection Notice, which operates in the same manner as a Temporary Protection Order. Once a Police Protection Order is issued, it automatically becomes an application for a Domestic Violence Protection Order before the nearest Magistrates Court.

The domestic violence legislation authorises the police to ask the court to make these Protection Orders despite the wishes of the person the Order purports to protect. Furthermore, the same Act explicitly states that the participation of the victim (referred to as an “aggrieved”) in proceedings is not necessary. This includes the aggrieved giving evidence. In other words, the police can ask the court to make a Domestic Violence Protection Order even if the aggrieved does not want the Order made or is unwilling to give evidence against her abuser (referred to as the “respondent”). There are good reasons why the legislation is structured this way.

Firstly, an aggrieved may be genuinely afraid of giving evidence against the respondent. In Australia, the murder rate of women by their partners or ex-partners is frighteningly high and physical violence in domestic relationships almost endemic. An aggrieved may be putting herself in genuine danger of retaliation from the respondent by giving evidence in court about the respondent’s abuse, as that respondent is also present in court when this evidence is given. In these cases, the courts and the police can intervene to protect the aggrieved while providing a “shield” for the respondent’s inevitable fury that he has been held to account for his own actions.

Secondly, many victims of domestic violence become so psychologically damaged by the abuse that they have suffered that they cannot bring themselves to leave their abuser. Many of them experience severe psychological distress even at the thought of being separated from their violent partner. Psychologists use phrases like “trauma bonding” to describe this state of mind. Again, the legislation allows the courts and police to offer protection to the aggrieved who is no longer able to act to protect herself from danger.

However, that is not the end of the matter. Notwithstanding the above provisions, the aggrieved is considered a party to the Domestic Violence Protection Order application and is permitted to appear at the hearing of the application and give evidence, should she so choose. If the aggrieved believes that she does not need the protection of the court to keep her safe from domestic violence and doesnt want the DVO to proceed she may elect to give evidence against the police’s application. This is a common occurrence in domestic violence hearings. It is then for the court to decide whether or not the Protection Order ought to be made regardless.

A word of caution: evidence in domestic violence proceedings is still sworn testimony and subject to the laws against perjury (which attract significant periods of imprisonment if found guilty).

Police-initiated applications to vary existing Domestic Violence Orders proceed in the same manner as the initial applications for Protection Orders. Again, the aggrieved is not required to participate; however, she may still elect to attend as a party to the application and give evidence as to why she believes that the court should not make the variations to the existing Protection Order sought by the police. Again, the court then decides the police’s application on the evidence.

 

Proceedings for Contravention of Domestic Violence Protection Orders

Contravening a Domestic Violence Protection Order is an offence. The maximum penalty for this offence is three years’ imprisonment for the first conviction and five years’ imprisonment for subsequent convictions (if they occur within five years of any previous conviction). Proceedings for contravention charges occur according to the usual procedure for criminal matters. It is also important to note that domestic violence incidents may also involve other criminal offences, such as assault, wilful damage, strangulation offence, stalking, etc.

Because abusers (“defendants” in criminal matters) rarely commit domestic violence in front of other witnesses, it is common for police to rely almost exclusively on the testimony of the victim to secure convictions. Initially, police may obtain the victim’s testimony via body-worn-camera footage captured during the initial investigation. Police may also get the victim to sign a “notebook statement”; ie, get the victim to sign a brief, written statement recorded in a police officer’s notebook. However, if the defendant elects to plead not guilty and go to trial, the victim will need to give oral testimony in court.

It is important to note that a victim of domestic violence becomes a police witness once the defendant is charged with criminal offences. If the defendant attempts to “persuade” the victim to withdraw her statement, he may be charged with an offence against the administration of justice (again, these offences attract significant periods of imprisonment if found guilty).

In the aftermath of a domestic violence incident, it is a frequent occurrence that the victim tries to withdraw her complaint and retract her statement. She may attend the police station, speak to the investigating police officer, and tell them that she no longer wishes to have the defendant charged. However, the police do not act as mere “agents” of the victim. Once the police decide to charge the defendant with a contravention offence, it is entirely a decision of the police whether they will proceed with the prosecution. While the reluctance of the victim to testify “against” the defendant may be a factor that the police take into account when deciding whether they are likely to secure a conviction, it is not fatal to their case. On the contrary, there are a number of things that the police may do at trial to still get the victim’s testimony into evidence, even if she is reluctant to do so.

Firstly, any version of events that the victims gives, and is recorded on body-worn-camera footage, is admissible as evidence at trial, even if the victim refuses to attend court to confirm that version of events. Secondly, the police may ask the court to issue a summons, which is an order of the court compelling the victim to attend court and give evidence. If the victim does not obey the summons, the court may issue a warrant for her arrest.

If the victim still refuses to co-operate with the prosecution once she is sworn in as at witness, the police prosecutor may make an application to the court for her to be declared an “adverse witness”. This allows the prosecutor to dispense with the usual rules of examination-in-chief and get the victim’s testimony regardless of her reluctance to participate.

At first blush, this treatment of a domestic violence victim by the court and the police may appear almost brutal. In reality it is. Again, the data from psychological research suggest that victims of domestic violence may be “retraumatised” by court proceedings and by being forced to relive the experience of abuse. Fortunately, in our experience, domestic violence matters usually resolve long before these steps need to be taken. Most of us who work in domestic violence matters are aware of the severe, negative impact proceedings may have on the victim and work hard to minimise any further suffering to the victim.

The court also has procedures to attempt to minimise this retraumatising of the victim. For example, the court may permit the victim to give her testimony from a separate room, away from the defendant, and broadcast her testimony via video-link into the courtroom.

There is also other evidence that police prosecutors may be able to rely on to secure a conviction. For example, photographs of injuries to the victim, photographs of damage to property, testimony of neighbours (who may have heard yelling, screaming, breaking), etc.

 

Conclusion

The legislature, the police, and the courts are taking an increasingly harsh stance against domestic violence. The domestic violence legislation gives both the police and the courts powers to intervene into people’s otherwise private lives to ensure the protection of victims of domestic violence. Consequently, it is increasingly difficult for victims of domestic violence to try to persuade the police and/or the courts to make complaints against their abuser just “go away” without further action by either witdawing there statement in regards to the DVO or asking the police to withdraw the application for a DVO.

Therefore, if you have been charged with contravening a Domestic Violence Protection Order, you can expect that the police and the courts will pursue the matter until it is decided either by your plead of guilty or at trial, if you decide to plead not guilty. Even if the other person involved in the alleged incident attempts to withdraw their statements or their complaint to the police about the domestic violence allegation  you can expect that the matter will still proceed regardless.

 

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Read 176 times Last modified on Monday, 18 September 2023 18:40
Russell Tannock

Russell Tannock is a senior criminal defence lawyer at Clarity Law.  Russell appears in every court in South East Queensland respresenting clients charged with criminal offences.