11. Protection Orders and the Criminal Law

Transcription

1 11. Protection Orders and the Criminal Law Contents Introduction 433 Concurrent proceedings under family violence laws and the criminal law 433 Liability and use of evidence issues 434 Court-initiated protection orders in criminal proceedings 446 Protection order conditions and the criminal law 461 Types of conditions 461 Application of conditions in practice 464 Exclusion orders 472 Rehabilitation and counselling conditions in protection orders 489 Rehabilitation orders pre-sentencing 490 Rehabilitation orders on sentencing 490 Other interactions between protection orders and sentencing 503 Introduction 11.1 This chapter considers the interaction between protection orders obtained under family violence laws and the criminal law. The first section of this chapter discusses issues that arise when there are concurrent proceedings under family violence laws and the criminal law, including issues concerning liability and the use of evidence. 1 In particular, the discussion focuses on the powers of courts to make protection orders under family violence laws in the course of criminal proceedings The second section of this chapter addresses the potential for conditions in protection orders to overlap with: general prohibitions or requirements imposed by the criminal law; pre-sentencing orders; and orders made on sentencing. Particular attention is given to interaction issues that may arise following the imposition of exclusion orders and rehabilitation orders. Concurrent proceedings under family violence laws and the criminal law 11.3 The family violence legislation of most states and territories expressly recognises that there can be concurrent criminal and civil proceedings. 2 For example, 1 The interaction of bail and protection orders under family violence laws is discussed in Ch However, the Intervention Orders (Prevention of Abuse) Act 2009 (SA), for example, does not contain an express provision in this regard. The handling of concurrent civil and criminal proceedings by specialist family violence courts is discussed in Ch 32.

2 434 Family Violence A National Legal Response s 62 of the Domestic and Family Violence Protection Act 1989 (Qld) provides that an application can be made and dealt with under the Act notwithstanding that a person concerned in the application has been charged with an offence arising out of the same conduct. The counterpart provisions in the family violence legislation of WA and the ACT are broader in their scope, each recognising the power of a court to make a protection order if a person has been charged with or convicted and in the case of the ACT found guilty of an offence arising out of the same conduct on which the application is based The family violence legislation of New South Wales (NSW) and the Northern Territory (NT) each allows protection orders to be made even if criminal proceedings are commenced against an accused arising out of the same conduct relied on to make the protection order application. 4 The Victorian family violence legislation expressly provides that a protection order can be made at any time before or after the commencement of proceedings for the offence. 5 Liability and use of evidence issues 11.5 Most state and territory family violence legislation while recognising the potential for concurrent civil and criminal proceedings does not address the relationship between the two proceedings; nor does the legislation address the issue of what use can be made in the criminal proceedings of matters raised in civil protection order proceedings. There are a few exceptions to this. The first concerns provisions in the family violence legislation of Western Australia (WA) and the NT which deal with liability issues; the second is the provision in the Queensland family violence legislation which deals with references in criminal proceedings to matters arising from proceedings under family violence legislation. Each of these is addressed below The NT family violence legislation provides that the making of a protection order does not affect the civil or criminal liability of the person against whom it is made in relation to the family violence to which the order relates. 6 The Western Australian family violence legislation provides that, except as provided by that Act, neither making nor varying a protection order affects the civil or criminal liability of a person bound by the order in respect of the conduct out of which the application for the protection order arose In Queensland, certain evidence about protection orders and protection order proceedings is rendered inadmissible in criminal proceedings where a person is charged with an offence arising out of conduct on which an application for a protection order is based and: 3 Restraining Orders Act 1997 (WA) s 63C(1); Domestic Violence and Protection Orders Act 2008 (ACT) s Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 81; Domestic and Family Violence Act 2007 (NT) s Family Violence Protection Act 2008 (Vic) s Domestic and Family Violence Act 2007 (NT) s Restraining Orders Act 1997 (WA) s 63C(2).

3 11. Protection Orders and the Criminal Law 435 a court has made, varied or revoked a protection order, or refused any such applications; or proceedings under family violence legislation are current at the time a person is charged with an offence arising out of conduct on which an application is based In such circumstances: (3) A reference to (a) the making, or refusal to make, the order, or a revocation or variation; or (b) the existence of current proceedings or (c) the fact that evidence of a particular nature or content was given in (i) the proceedings in which the order, revocation or variation was made or refused; or (ii) the current proceedings; is inadmissible in the trial of the person for an offence arising out of conduct on which the application for the order, revocation, or variation, or relevant to the current proceedings, is based This is reinforced by the following provisions in s 62(4), (5): (4) To allay any doubt, it is declared that, subject to this section, an application, proceeding or order under this Act in relation to the conduct of the person does not affect any proceeding for an offence against the person arising out of the same conduct. (5) A person may be punished for the offence mentioned in subsection (4) despite any order against him or her under this Act If a criminal charge relating to family violence is proved, then the standard of proof needed for the evidence for the protection order application is exceeded. 10 In any case, in such circumstances a protection order will be mandatory in some jurisdictions for certain offences. 11 While it is potentially problematic to use evidence relating to protection order proceedings in criminal proceedings, the same difficulties do not arise when evidence related to criminal proceedings is used in protection order proceedings. Submissions and consultations Liability In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should be amended to ensure that the making, variation or revocation of a protection order, or the refusal to make, vary or revoke such an order, 8 Domestic and Family Violence Protection Act 1989 (Qld) s Ibid. 10 As noted in Ch 8, the standard of proof for protection order proceedings is on the balance of probabilities; the standard of proof for criminal proceedings is beyond reasonable doubt. 11 See discussion below.

4 436 Family Violence A National Legal Response does not affect the civil or criminal liability of a person bound by the order in respect of the family violence the subject of the order This proposal was broadly supported by the majority of stakeholders, 13 with some emphasising the need for greater legislative clarity. 14 National Legal Aid, in supporting the proposal, submitted that where there are charges and protection orders arising out of the same alleged conduct, the criminal charges should be dealt with first, and an interim protection order should be made and then finalised, if necessary, after the criminal proceedings The Department of Premier and Cabinet (Tas) noted that, as a matter of practice, criminal proceedings are generally dealt with before civil matters, where there are concurrent proceedings, which avoids difficulty about findings of fact/liability because of issues of standard of proof. The Northern Territory Legal Aid Commission noted that, in most cases, orders are made without admissions, or interim orders are made and kept on foot pending the resolution of the associated criminal charges Other stakeholders also noted in consultation that, in some jurisdictions, until criminal proceedings are resolved, magistrates tend to prefer to make only interim protection orders, 17 or to adjourn the hearing of any protection order application The Victorian Government stated that the need for clarification in respect of civil liability had not, to date, been identified, but said the issue could be considered as part of any future legislative review Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposal National Legal Aid, Submission FV 232, 15 July 2010; Women s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Commissioner for Victims Rights (South Australia), Submission FV 111, 9 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May Legal Aid NSW, Submission FV 219, 1 July 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May National Legal Aid, Submission FV 232, 15 July Northern Territory Legal Aid Commission, Submission FV 122, 16 June Legal Aid Commissions, Consultation, Sydney, 10 September G Zdenkowski, Consultation, Sydney, 6 November 2009.

5 11. Protection Orders and the Criminal Law The Department of Premier and Cabinet (Tas) expressed some concerns about possible unintended effects of this proposal, and submitted that it was important that if a matter proceeds to a fully-contested hearing, the facts found by the Magistrate are available in other jurisdictions for example, Child Protection or Family Law. 20 Use of evidence Cross-examination of victims As noted in the Consultation Paper, one stakeholder in Adelaide told the Commissions that sometimes an affidavit in support of a protection order may contain less detail than the statement in criminal proceedings. 21 Some detail may be omitted because the victim was distressed at the time of taking the affidavit or because of time pressures on police at the time of taking the affidavit. The Commissions also heard that a victim may be subjected to cross-examination on the fact that certain material was not included in the affidavit in support of the protection order and that this may impact adversely on the victim In the Consultation Paper, the Commissions asked whether it was common for victims in criminal proceedings to be cross-examined about evidence that they have given in support of an application for a protection order under family violence legislation, when the conduct the subject of the criminal proceedings and the protection order is substantially the same A number of stakeholders submitted that it was common. 23 National Legal Aid, without commenting on the frequency of such occurrence, noted that a victim in criminal proceedings may be cross-examined on inconsistent evidence given by him or her in protection order proceedings relating to the same issue. This is part of the basic entitlement to cross-examine on the basis of prior inconsistent statements The Northern Territory Legal Aid Commission observed that the crossexamination of a victim in such circumstances can occur and occasionally does so where a victim has made a prior inconsistent statement in an affidavit in support of an application for a family violence protection order Some NSW stakeholders, however, stated that the need to cross-examine a witness in such circumstances is largely overcome in practice. This is because courts 19 Victorian Government, Submission FV 120, 15 June Department of Premier and Cabinet (Tas), Submission FV 236, 20 July Office of the Director of Public Prosecutions (SA), Consultation, Adelaide, 24 September Consultation Paper, Question Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; M Condon, Submission FV 45, 18 May National Legal Aid, Submission FV 232, 15 July Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

6 438 Family Violence A National Legal Response hear the criminal matter first, and then automatically issue a protection order on a finding of guilt. 26 Where the order is automatically issued, this removes the need for a second hearing. 27 Other stakeholders also noted that the making of interim protection orders pending the resolution of criminal proceedings also avoids the potential for such cross-examination of victims The Aboriginal Family Violence Prevention and Legal Service Victoria submitted that the practice of respondents consenting to protection orders but denying liability limits the protection order material upon which a victim can be crossexamined Other stakeholders also said that it was not common for victims to be crossexamined in the circumstances identified in the proposal. 30 Women s Legal Services NSW said in practice, victims rarely give evidence in support of an interim protection order where there are also criminal charges. 31 Women s Legal Service Queensland submitted that it understood that the two matters are considered quite separately with very little cross-reference The Commissioner for Victims Rights (South Australia) submitted that there should be legal prohibitions on inappropriate questions during cross-examination. 33 Operation of provision in Queensland family violence legislation re use of evidence In the Consultation Paper, the Commissions asked how s 62 of the Domestic and Family Violence Protection Act 1989 (Qld) which renders inadmissible in criminal proceedings certain evidence about protection orders where those proceedings arise out of conduct upon which a protection order is based is working in practice. In particular, the Commissions asked, how it is interacting in practice with s 18 of the Evidence Act 1977 (Qld), which states that proof may be given of a previous inconsistent statement, 34 and whether it provides a model for other states and territories to adopt in their family violence legislation Some Queensland stakeholders could not comment on how s 62 is operating in practice or how it is interacting with s 18 of the Evidence Act, 36 although the Queensland Law Society agreed that it provides a model for other states and territories 26 Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June Confidential, Submission FV 198, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June Northern Territory Legal Aid Commission, Submission FV 122, 16 June Women s Legal Services NSW, Submission FV 182, 25 June Women s Legal Service Queensland, Submission FV 185, 25 June Commissioner for Victims Rights (South Australia), Submission FV 111, 9 June Consultation Paper, Question Ibid, Question Women s Legal Service Queensland, Submission FV 185, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

7 11. Protection Orders and the Criminal Law 439 to adopt in their family violence legislation. 37 The Queensland Government submitted that, to date, no specific issues had been raised in the Queensland review of its family violence legislation on the interaction between s 62 and s 18 of the Evidence Act 1977 (Qld). It foreshadowed that the purpose and intent of s 62 would be examined as part of that review However, National Legal Aid submitted that s 62 is operating effectively in practice. It said that it is desirable that, in criminal proceedings arising from the same incident that led to the family violence proceedings, a complainant can be crossexamined about a prior inconsistent statement, such as one in an affidavit accompanying an application for a protection order. However, this can be done without offending s 62 by avoiding mention of the proceedings themselves. The way that this is raised in practice is that the question would be phrased you provided an affidavit on another occasion or you gave evidence on another occasion The Commissions also asked whether there is a need for s 62 of the Queensland family violence legislation to make an express exception for bail, sentencing and breach of protection order proceedings. 40 Two stakeholders said that express exception should be made. 41 However, the Queensland Law Society submitted that such exceptions were not necessary. In particular, it noted that the key phrase in s 62 is that evidence is inadmissible in the trial of the person for an offence arising out of conduct on which the application for the order, revocation or variation or relevant to the current proceedings is based. It stated that bail proceedings are not for an offence but in relation to bail relating to that offence and that: Section 62 does not apply to breach of protection order proceedings except if there are further proceedings or a protection order or variation or revocation of a protection order as a result of that further conduct. 42 Need for clarity re use of evidence In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should be amended to clarify whether, in the trial of an accused for an offence arising out of conduct which is the same or substantially similar to that upon which a protection order is based, references can be made to: (a) (b) the making, variation, and revocation of protection orders in proceedings under family violence legislation; the refusal of a court to make, vary or revoke a protection order in proceedings under family violence legislation; 37 Queensland Law Society, Submission FV 178, 25 June Queensland Government, Submission FV 229, 14 July National Legal Aid, Submission FV 232, 15 July Consultation Paper, Question Women s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 162, 25 June Queensland Law Society, Submission FV 178, 25 June 2010.

8 440 Family Violence A National Legal Response (c) (d) the existence of current proceedings for a protection order under family violence legislation against the person the subject of the criminal proceedings; the fact that evidence of a particular nature or content was given in proceedings under family violence legislation Such provisions, the Commissions proposed, would need to address separately the conduct which constitutes a breach of a protection order under family violence legislation The Commissions proposal was directed to the need for clarification it did not state how the law was to be clarified. Some stakeholders offered a view on the need for clarification and, as discussed below, others also offered varying views about whether references to the matters the subject of the proposal should be allowed in the trial of an accused A number of stakeholders supported the proposal. 44 The Aboriginal Family Violence Prevention and Legal Service Victoria said that legislative clarification should address separately conduct which constitutes a breach of a protection order under family violence legislation In a joint submission, Domestic Violence Victoria and others submitted that references should be able to be made in the trial of an accused to relevant protection order proceedings and matters: It is important that where relevant, criminal and civil charges and proceedings not be quarantined in separate silos which can act to the detriment of victims However, some stakeholders expressed the view that references to certain of the matters identified in the proposal should not be allowed in the trial of an accused, principally on the grounds of affording fairness to an accused. For example, National Legal Aid and the Law Society of NSW submitted that evidence about protection orders is not relevant to a criminal charge and could be prejudicial to the accused. 47 They noted that the subject of the order may not have responded to the protection order 43 Consultation Paper, Proposal Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Confidential, Submission FV 198, 25 June 2010; Women s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June A similar view was expressed in Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May Professor Julie Stubbs submitted that the information identified in the proposal should be permitted for bail, sentencing and breach of protection order proceedings : J Stubbs, Submission FV 186, 25 June National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission FV 205, 30 June See also Legal Aid NSW, Submission FV 219, 1 July 2010.

9 11. Protection Orders and the Criminal Law 441 application, or may have consented to the application without admissions. 48 Similarly, Legal Aid NSW submitted that: There are risks in allowing reference in a trial to information that has not been subject to the criminal standard of proof. It could be particularly prejudicial to make reference to an order that was made by consent, without admission. Similarly, reference to current, incomplete proceedings could be unfairly prejudicial. There may be less of a concern about reference to evidence given in family violence proceedings, as long as the weight that is given to that evidence in the criminal proceedings is appropriate, taking into account the type of evidence and degree of scrutiny to which it has been subjected in the criminal proceedings National Legal Aid and the Law Society of NSW also emphasised the prejudice that could result from the consideration of evidence determined according to a different standard of proof. National Legal Aid submitted that: It would be misleading and unhelpful to present evidence of the making of the restraining or protection order in a later criminal proceeding and has the potential to result in a miscarriage of justice The Queensland Law Society also expressed concern about ensuring that the civil liberties of an accused are adequately protected One stakeholder noted that allowing references in a criminal trial to a court s refusal to make a protection order could be prejudicial to a victim, and should not be seen as evidence of innocence. 52 Commissions views Liability The Commissions maintain their view expressed in the Consultation Paper, that there should be greater legislative clarity about how the making, variation, revocation or refusal to vary or revoke a protection order affects the civil or criminal liability of a person for the conduct that gave rise to the protection order, noting substantial stakeholder support for this position. State and territory family violence legislation should make it expressly clear that such actions concerning protection orders do not affect the civil or criminal liability of a person subject to the order The Commissions intention in extending the ambit of the recommendation to civil liability is to cover, for example, instances where a person using family violence may be sued for torts against the person, namely the torts of battery, assault and false imprisonment National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission FV 205, 30 June Legal Aid NSW, Submission FV 219, 1 July The same view was expressed in National Legal Aid, Submission FV 232, 15 July National Legal Aid, Submission FV 232, 15 July Queensland Law Society, Submission FV 178, 25 June Confidential, Submission FV 184, 25 June Professors Francis Trindade and Peter Cane define the torts as follows: A battery is a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter s

10 442 Family Violence A National Legal Response Western Australian family violence legislation is an instructive model, in that it expressly provides that the making or the varying of a protection order does not affect the civil or criminal liability of a person bound by the order in respect of the same conduct the subject of the application for the protection order. However, the Commissions consider that such provisions should also extend to the revocation and refusal to vary or revoke a protection order. Use of evidence Need for clarity The Commissions are of the view that there should be legislative clarity about whether, in the trial of an accused for an offence arising out of conduct which is the same or substantially similar to that upon which a protection order is based, references can be made to the following: the making, variation or revocation of a protection order or the refusal to take any of those actions; the existence of current proceedings for a protection order against the person the subject of the criminal proceedings; and evidence given in proceedings under family violence legislation. Making, variation or revocation of a protection order or refusal to take any such action In seeking to achieve clarity, the question then arises as to what limits, if any, should be placed on the making of such references in the trial of an accused for a family-violence related offence. There are competing considerations to consider in this regard. On the one hand, there are compelling considerations of fairness both to accused persons and victims which weigh in favour of disallowing references in the trial of an accused to the making, variation or revocation of a protection order, or the refusal of a court to take any of those actions, where the offence arises out of conduct which is the same or substantially similar to that upon which a protection order is based To allow references to be made to facts that have not been subject to the criminal standard of proof may be prejudicial to an accused, affecting his or her rights to a fair trial. The risk of prejudice is significantly increased in circumstances where an accused has agreed to a protection order without admission of liability Evidence about whether protection orders were made, varied or revoked, or whether applications for such orders were rejected, could improperly influence juries in their deliberations. Where the evidence is about the making of a protection order, or a variation to increase the protection provided by such an order, adverse inferences might consent. An assault is any direct threat by the defendant that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff s person either by the defendant or by some person or thing within the defendant s control. A false imprisonment is a wrongful total restraint on the liberty of the plaintiff that is directly brought about by the defendant : F Trindade and P Cane, The Law of Torts in Australia (3rd ed, 1999), 27, 42, 50 respectively.

11 11. Protection Orders and the Criminal Law 443 be drawn by jurors, which operate unfairly with respect to an accused. Conversely, where the evidence is about the revocation of a protection order, a variation of a protection order which decreases the level of protection afforded by the order, or evidence about a court s refusal to make a protection order, this can operate unfairly against a victim of a family violence offence, perhaps creating the impression to jurors that the conduct the subject of the offence was not serious On the other hand, the fact that a protection order was made or that the court refused to vary or revoke an order could, for example, be relevant to tendency or coincidence 54 or motive. For example, it may be relevant to a defendant s motive that the court refused to revoke a protection order and he or she was angry and sought revenge against the victim. In cases where, for example, there is evidence that a defendant has acted violently towards a victim on each occasion, or on previous occasions, when a protection order was made, or an application to revoke a protection order has been rejected, this could be relevant to tendency Accordingly, the Commissions are hesitant to recommend unequivocally that such references should always be inadmissible. Rather, the Commissions consider that references to the making, variation and revocation of protection orders and the refusal of a court to take such action, should not be allowed in a trial of an accused for a family-violence related offence arising out of conduct which is the same or similar to that upon which a protection order is based, unless the court grants leave. Clearly, in order for such evidence to be admissible, it would need to be established that it is relevant to an issue in the proceedings The court, under general evidentiary rules, has discretion to limit the use to be made of evidence if there is a danger that its particular use might be unfairly prejudicial to a party or will be misleading or confusing. 55 In addition, in deciding whether to admit such evidence in the first instance, the court would be bound by the rule of evidence that requires courts to exclude evidence adduced by the prosecutor where its probative value is outweighed by the danger of unfair prejudice to the accused, 56 as well as by rules of evidence which confer on courts a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing, or cause or result in undue waste of time Furthermore, in the case of tendency and coincidence evidence, the test for admissibility under the Uniform Evidence Acts is whether the tendency or coincidence has significant probative value which substantially outweighs any prejudicial effect it may have on the defendant Tendency and coincidence evidence is discussed in Ch See, eg, Evidence Act 1995 (NSW) s 136; Evidence Act 2008 (Vic) s See, eg, Evidence Act 1995 (NSW) s 137; Evidence Act 2008 (Vic) s See, eg, Evidence Act 1995 (NSW) s 135, Evidence Act 2008 (Vic) s Uniform Evidence Acts, ss 97, 98, 101. The test for admissibility in jurisdictions that do not apply the Uniform Evidence Acts, is governed by the common law, as modified by statute in some jurisdictions. See Pfennig v The Queen (1995) 182 CLR 461 and Ch 27.

12 444 Family Violence A National Legal Response Requiring a party to seek the leave of the court to lead evidence of such matters acts as an important safeguard in ensuring that an accused is given a fair trial. Where evidence about the making, variation or revocation of protection orders or a court s refusal to make any such order is admitted, it will be incumbent on a trial judge to explain to a jury the weight to give such evidence Evidence about the making of a protection order is relevant to proceedings for breach of a protection order, because the making of the order is a relevant fact to be established. 59 Similarly, evidence about the variation or revocation of a protection order may also be relevant to proceedings for breach of a protection order. In such cases, the court s leave to adduce such evidence need not be sought. Current protection order proceedings The Commissions also consider that references in the trial of an accused for a family violence offence to current incomplete proceedings for a protection order against him or her could also be unfairly prejudicial. This would be particularly so in circumstances where he or she had not had an opportunity to respond to the allegations or evidence in those proceedings. Accordingly, the Commissions recommend that references to such proceedings should not be allowed unless the leave of the court has been sought, and relevance established. Evidence given in family violence proceedings There are a number of factors at play in considering whether evidence given in family violence proceedings concerning protection orders should be able to be used in criminal proceedings. These include balancing the desirability of a victim not being cross-examined about prior evidence which is a factor weighing against the use of such evidence in criminal proceedings with the desirability of a victim not having to give evidence in more than one proceeding, which may be a factor supporting the use of such evidence in criminal proceedings. The need to avoid prejudicing criminal proceedings is also an important factor, consistent with obligations under the International Covenant on Civil and Political Rights (ICCPR) in relation to fair trials The Commissions agree with the views expressed by legal aid bodies that, compared with references to the making, variation and revocation of protection orders or the refusal of a court to undertake any of these actions, there may be fewer concerns about allowing references in a trial of an accused for an offence arising out of conduct, which is the same or substantially similar to that upon which a protection order is based, to evidence in family violence proceedings provided that the weight given to such evidence is appropriate in the criminal law proceedings. 59 Clearly, judicial officers deciding bail conditions and imposing sentence should be aware of protection orders made under family violence legislation and the restrictions which they place on accused persons and offenders before them. Bail is discussed in Ch 10, and the consideration of protection orders in sentencing is discussed below. 60 See Ch 2 which discusses the International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976).

13 11. Protection Orders and the Criminal Law Accordingly, the Commissions consider that such evidence may be admissible either by consent or by leave of the court, provided that, in either case, the court is to give such evidence the weight that it thinks fit, in accordance with general rules of evidence including those mentioned above which require or allow the court to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the accused The Commissions recommended approach recognises that there may be situations where there is no dispute about the evidence and time can be saved by allowing the earlier evidence to be admitted without having to duplicate it. However, even if the evidence is in dispute, the court may take the view that it is assisted by contextual information that is not unduly prejudicial and may consider that the victim should not be put to the trauma of having to give evidence again in certain specific circumstances The approach recommended by the Commissions would not displace general rules of evidence which allow witnesses to be cross-examined on prior inconsistent statements both in jurisdictions in which the Uniform Evidence Acts apply 61 as well as jurisdictions, such as Queensland, which have their own evidence legislation. 62 Recommendation 11 1 State and territory family violence legislation should make it clear that the making, variation or revocation of a protection order, or the refusal to make, vary or revoke such an order, does not affect the civil or criminal liability of a person bound by the order in respect of the family violence the subject of the order. Recommendation 11 2 State and territory legislation should clarify that in the trial of an accused for an offence arising out of conduct that is the same or substantially similar to that on which a protection order is based, references cannot be made, without the leave of the court, to: (a) (b) (c) the making, variation and revocation of protection orders in proceedings under family violence legislation unless the offence the subject of the trial is breach of a protection order, in which case leave of the court is not necessary; the refusal of a court to make, vary or revoke a protection order in proceedings under family violence legislation; and the existence of current proceedings for a protection order under family violence legislation against the person the subject of the criminal proceedings. 61 Uniform Evidence Acts, s See, eg, Evidence Act 1977 (Qld) s 18.

14 446 Family Violence A National Legal Response Evidence given in proceedings under family violence legislation may be admissible by consent of the parties or by leave of the court. Court-initiated protection orders in criminal proceedings Some provisions in family violence or sentencing legislation expressly permit a court, on its own initiative, to make protection orders when a person pleads guilty, is found guilty after a contested hearing, or is convicted of an offence that involves family violence. 63 The NT provision also permits such an order to be made on the application of the prosecution Similarly, a provision in the Queensland criminal legislation allows the prosecution, or an interested person, to apply to the court to constitute itself to consider whether a restraining order should be made against a person on a hearing of a charge against that person for unlawful stalking. 65 The court may also act on its own initiative in this regard These important provisions may circumvent the need for a victim to make a separate application for a protection order. Three issues arise in relation to these types of provisions. First, whether they confer on the court a discretion to make such an order, or compel it to do so; secondly, the point in time in the criminal proceedings when these orders can be made; and thirdly, whether a court in a criminal proceeding is specifically empowered to vary an existing protection order. Each of these issues is addressed below. Discretionary versus mandatory There is a significant difference in the level of discretion conferred on courts to make protection orders under family violence legislation in criminal proceedings. Some provisions give courts discretion to make such orders, while others mandate that 63 See, eg, Domestic and Family Violence Protection Act 1989 (Qld) ss 16, 30 (power to make order triggered by guilty plea or finding of guilt); Criminal Law (Sentencing) Act 1988 (SA) s 19A (power to make order triggered by finding of guilt or on sentencing for an offence); Domestic and Family Violence Act 2007 (NT) s 45 (power to make order triggered by guilty plea or finding of guilt). 64 Domestic and Family Violence Act 2007 (NT) s Criminal Code Act 1899 (Qld) sch 1 s 359F. The Commissions understand that, in practice, prosecutors in Queensland make applications for orders under this section: Office of the Director of Public Prosecutions (Qld), Consultation, Brisbane, 30 September The extent to which directors of public prosecution are involved in protection order proceedings varies across the states and territories. Director of Public Prosecutions Act 1986 (NSW) s 20A expressly empowers the NSW Director of Public Prosecutions (DPP) to institute and conduct, on behalf of an applicant, an application for a protection order in the local court, children s court or district court, and any related appeals on behalf of a victim. See also Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, App E, [3.2]. The Office of the NSW DPP informed the Inquiry that this power is being used, for example, where a protection order is related to criminal charges being prosecuted by it: Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June Other stakeholders submitted that it was rare in Queensland and Victoria for the DPP to play a role in proceedings for protection orders: Queensland Government, Submission FV 229, 14 July 2010; Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July 2010.

15 11. Protection Orders and the Criminal Law 447 the court do so particularly in matters involving serious offences. For example, the Queensland provisions are discretionary, providing that if a person is before a Magistrates Court, the Children s Court, the District Court or the Supreme Court, for an offence involving family violence, the court may make a protection order if the person pleads guilty to, or is found guilty of, that offence In contrast, the NSW provision is framed in mandatory terms, requiring a court to make a protection order if a person pleads guilty to, or is found guilty of, certain offences, irrespective of whether an application for such an order has been made. However, the provision also stipulates that the court need not make an order where satisfied that it is not required, for example because there is an existing order in place. 68 As noted below, another NSW provision mandates the court to make interim protection orders when a person is charged with a serious offence The Western Australian family violence legislation mandates the court to make protection orders to protect victims when specified violent personal offences such as attempt to murder, grievous bodily harm and sexual penetration without consent are committed. 69 The exception to this requirement is if the victim, for whose benefit the court proposes to make the order, objects to the order being made. 70 In other cases, the Western Australian family violence legislation confers discretion on the court to make protection orders during other proceedings. In particular, when considering a bail application, the court may make a protection order against the person charged or any other person who gives evidence in relation to the charge In 1999, the Domestic Violence Legislation Working Group advocated conferring discretion on courts to make protection orders when persons are found guilty of an offence. It expressed concern that mandating courts to make protection orders could increase the likelihood of inappropriate or unnecessary orders being issued. 72 Timing of order In some jurisdictions courts are only empowered to make protection orders in criminal proceedings when a person has been convicted, found guilty or has pleaded 67 Domestic and Family Violence Protection Act 1989 (Qld) ss 16, 30. See also Criminal Code Act 1899 (Qld) sch 1, s 359F (on the hearing of a charge for unlawful stalking, a judicial officer may constitute the court to consider whether a restraining order should be made against the person). The South Australian provision also confers a discretion on courts to make protection orders on a finding of guilt, or on sentencing: Criminal Law (Sentencing) Act 1988 (SA) s 19A. 68 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s Restraining Orders Act 1997 (WA) s 63A. 70 Ibid s 63A. See also Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 40 (quasi-mandatory language in relation to interim protection orders for serious offences). 71 Restraining Orders Act 1997 (WA) s 63. This section also allows a court hearing proceedings under the Family Court Act 1997 (WA), Family Law Act 1975 (Cth), or protection proceedings under the Children and Community Services Act 2004 (WA) to make a protection order against a party to the proceedings or any other person who gives evidence in the proceedings. 72 Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), 67.

16 448 Family Violence A National Legal Response guilty. 73 In other jurisdictions courts are empowered to make protection orders in criminal proceedings before a person has been convicted or found guilty. For example, NSW family violence legislation requires courts to make interim protection orders on the charging of serious offences, which is defined to include a domestic violence offence other than murder or manslaughter. 74 In the Second Reading Speech of the NSW family violence legislation, Tony Kelly MLC stated: Under the reforms victims will automatically be protected by an apprehended violence order if their alleged attacker is charged with certain serious personal violence offences. The automatic apprehended violence orders will be extended to all victims in these types of cases, irrespective of whether they are involved in a relationship with the person. The defendant will not be entitled to contest the order in court until the concurrent criminal charges have been finalised. This will spare victims of violence the trauma of being cross-examined at the hearing for the apprehended violence order as well as at the hearing of the criminal charges Western Australian family violence legislation allows a judicial officer, on request or on the court s own initiative, to make a protection order when considering a case for bail. 76 Tasmanian family violence legislation allows a court to make protection orders in proceedings for a family violence offence. 77 The language is not precise, but the reference to proceedings appears to suggest that an order could be made while a trial was on foot that is, prior to a verdict The Domestic Violence Legislation Working Group did not support provisions enabling courts to make protection orders of their own volition against accused persons when criminal proceedings against them were continuing. 78 It expressed the view that the making of orders on the basis of untried facts would amount to a denial of justice. 79 Variation Some family violence legislation expressly provides that a court may vary an existing protection order of its own initiative on a plea or finding of guilt in relation to an offence involving family violence. In NSW a court is empowered to vary a final or interim order of its own volition where a person pleads guilty to, or is found guilty of, an offence of stalking or intimidation with intent to cause physical or mental harm, or of a domestic violence offence. The court may make such a variation for the purpose of providing greater protection for the person against whom the offence was 73 For example, Domestic and Family Violence Protection Act 1989 (Qld) s 30 and Domestic and Family Violence Act 2007 (NT) s 45. In South Australia protection orders can be made on a finding of guilt or on sentencing: Intervention Orders (Prevention of Abuse) Act 2009 (SA) sch 1 pt Crimes (Domestic and Personal Violence) Act 2007 (NSW) s New South Wales, Parliamentary Debates, Legislative Council, 29 November 2007, 4652 (T Kelly Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council). 76 Restraining Orders Act 1997 (WA) s 63(1). 77 Family Violence Act 2004 (Tas) s 36. See also Justices Act 1959 (Tas) s 106J. 78 Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), 67. The views expressed by the Working Group in this regard did not expressly distinguish between final and interim protection orders. 79 Ibid, 67.

17 11. Protection Orders and the Criminal Law 449 committed irrespective of whether or not an application has been made to vary the order In Queensland and the NT, a court before which a person pleads guilty to, or is found guilty of, an offence that involves family violence must, if a protection order is already in force, consider the order and whether in the circumstances it needs to be varied, including for example, by varying the date the order ends. 81 In WA, a court convicting a person of a violent personal offence including attempted murder, aggravated sexual penetration without consent and aggravated sexual coercion must, where a violence restraining order is in force for the protection of a victim of the offence, vary that order by extending its duration. 82 Submissions and consultations Whether courts are exercising their powers to make protection orders in criminal proceedings In the Consultation Paper, the Commissions asked to what extent, in practice, courts are exercising their powers to make protection orders in criminal proceedings on their own initiative, where a discretion to do so is conferred on them Stakeholders submitted that the use of the powers varies among jurisdictions. In Tasmania, the power is exercised, 84 though it is unclear how often. 85 Generally the prosecution will apply for an order when it presents a charge, if an order is not already in place. 86 If the conduct is denied, an interim order is made, until the charge is determined. 87 The Department of Premier and Cabinet (Tas) submitted that: an interim order is not considered to prejudice the outcome of the hearing. Generally, final orders where the offender is involved are made without admission and therefore could not prejudice the criminal hearing In WA, National Legal Aid submitted that it is unusual for magistrates to issue protection orders in criminal proceedings on their own initiative, but orders are sometimes made in the superior courts pursuant to the Prosecutions Victim Support Policy In South Australia (SA), protection orders can be made upon a finding of guilt or a guilty plea, but in practice they are only made if the prosecutor applies for the 80 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s Domestic and Family Violence Protection Act 1989 (Qld) s 30(2); Domestic and Family Violence Act 2007 (NT) s 45(3). 82 Restraining Orders Act 1997 (WA) s 63A(1)(b). 83 Consultation Paper, Question Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July Department of Premier and Cabinet (Tas), Submission FV 236, 20 July Ibid. 87 Ibid; National Legal Aid, Submission FV 232, 15 July Department of Premier and Cabinet (Tas), Submission FV 236, 20 July National Legal Aid, Submission FV 232, 15 July 2010.

18 450 Family Violence A National Legal Response order. Sometimes prosecutors only apply if the victim asks for them to do so, or as it was put: If victims are not proactive they miss out In NSW, it was submitted, courts do exercise their power to make protection orders when criminal proceedings are on foot. 91 For example, courts must generally make protection orders where the accused has been charged with a serious offence. Women s Legal Services NSW said that in practice, interim orders are usually made when the matter also involves criminal charges. 92 The Local Court of NSW submitted that it is uncommon for the Court to decline to make an order, except where a protection order has already been made In Queensland, knowledge about this is very limited, the Queensland Law Society submitted, but by the time the matter comes before the court the aggrieved [party] has already obtained a temporary protection order (or police have applied). 94 Women s Legal Service Queensland submitted that courts, particularly higher courts, rarely if ever make such an order without a request by or on behalf of the victim In SA, an approach could be adopted similar to the one recently introduced (but not yet operative) for sexual offences, suggested the Commissioner for Victims Rights (SA). 96 Section 19A of the Criminal Law (Sentencing Act) 1988 will be amended to provide that a court must, on finding a person guilty of a sexual offence or on sentencing a person for a sexual offence, consider whether a restraining order should be issued. 97 The Commissioner submitted: Although the onus is on the prosecutor to apply for the order, it seems to me that a court respectful of the victim s right to personal safety would inquire during the sentencing stage of proceedings In the NT, courts do not need to make these orders in criminal proceedings, the Northern Territory Legal Aid Commission stated, because police almost invariably make [domestic violence orders under the Northern Territory family violence legislation] which are continued as interim orders at the first mention of the associated criminal matters, and then continued until the criminal matters are disposed of, at which point they are confirmed (or not, as the case may be) A legal service provider from the NT was not aware of this occurring within its service area. 100 A women s legal service submitted that sometimes courts are not 90 Women s Legal Services Australia, Submission FV 225, 6 July Ibid; Local Court of NSW, Submission FV 101, 4 June Women s Legal Services NSW, Submission FV 182, 25 June Local Court of NSW, Submission FV 101, 4 June Queensland Law Society, Submission FV 178, 25 June Women s Legal Service Queensland, Submission FV 185, 25 June Commissioner for Victims Rights (South Australia), Submission FV 111, 9 June Statutes Amendment (Victims of Crime) Act 2009 (SA) s Commissioner for Victims Rights (South Australia), Submission FV 111, 9 June Northern Territory Legal Aid Commission, Submission FV 122, 16 June The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

19 11. Protection Orders and the Criminal Law 451 making protection orders despite an explicit power to do so and requests by lawyers that this power be exercised. It is a very useful provision but it is not being utilised. 101 Mandatory protection orders There was some support in consultation for provisions mandating that judicial officers make protection orders on the charging of a person with a familyviolencerelated offence In the Consultation Paper, the Commissions asked whether current provisions in family violence legislation that mandate that courts make either interim or final protection orders on charging, on a finding or plea of guilt, or in the case of serious offences are working in practice. 103 The Commissions also asked whether such provisions have resulted in the issuing of unnecessary or inappropriate orders; and what types of circumstances, in practice, satisfy judicial officers in NSW that such orders are not required The general theme which arose in submissions was that the provisions in NSW, which require the making of a protection order on the finding that an offence is proven or following a plea of guilty, are working, 105 and have not resulted in the issuing of unnecessary orders because magistrates usually provide victims with an opportunity to indicate whether they want a protection order. 106 Stakeholders observed that judicial officers in NSW do not require orders where the victim indicates under oath they are not in fear and do not want an order. 107 Moreover, Women s Legal Services NSW submitted that most orders made in this context are appropriate to the needs of the person needing protection A few stakeholders submitted that a mandatory protection order upon conviction adds weight to the serious nature of the order and results in the victim not being required to make that decision Both Legal Aid NSW and the Law Society of NSW said the discretion not to impose an order is only exercised rarely and in exceptional cases: for example a charge is proven but the court decides to dismiss the charge unconditionally and without recording a conviction, it is a first offence and the victim advises the court that s/he does not require the protection of an order Confidential, Submission FV 164, 25 June Australian Domestic & Family Violence Clearinghouse, Consultation, Sydney, 27 January Consultation Paper, Question Ibid, Question National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; 106 Legal Aid NSW, Submission FV 219, 1 July 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May Both these submissions noted that courts also consider the seriousness of the offence, whether there are children involved, and the ongoing safety of the victim. 107 Legal Aid NSW, Submission FV 219, 1 July 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May Women s Legal Services NSW, Submission FV 182, 25 June National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

20 452 Family Violence A National Legal Response National Legal Aid submitted that the discretion under the NSW family violence legislation for a court not to make a protection order should be retained, noting that there will be circumstances where such an order is not in the interests of either party Deputy Chief Magistrate Andrew Cannon stated that he was not aware of any issuing of inappropriate orders in South Australian courts. 112 Exception to the making of protection orders for when victims object In the Consultation Paper, the Commissions asked whether it is appropriate for legislation that mandates that courts make protection orders to contain exceptions for situations when a victim objects to the making of the order Stakeholder opinions on this issue were divided. Those who were in favour of the retention of such an exception emphasised the need for judicial discretion to deal with a victim s objections in the circumstances of a particular case, as well as the potential negative impacts on a victim caused by ignoring her or his wishes Several stakeholders submitted that there should be an exception for where a victim objects to the making of the order. 114 A partner violence counsellor submitted that an exception should be made, provided there is some supporting documentation from a counselling professional indicating that the victim is not being coerced, manipulated or misguided. 115 Other stakeholders expressed similar concerns about courts obtaining an accurate indication of a victim s wishes: Courts should... be mindful of the power and control dynamics that exist and questions of this nature should be worded carefully and discussed away from the perpetrator of such violence. Victims should also be assured that they can claim to have no say in this process as this can be an effective tool to avoid violence or abuse following the awarding of a protection order One stakeholder submitted that victims might object to an order because they fear further violence if the order is granted, or for cultural reasons, or because the victim wishes to continue the relationship and concluded: 110 Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June National Legal Aid, Submission FV 232, 15 July See also Law Society of New South Wales, Submission FV 205, 30 June A Cannon, Submission FV 137, 23 June Consultation Paper, Question T McLean, Submission FV 204, 28 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010; Confidential, Submission FV 78, 2 June T McLean, Submission FV 204, 28 June Another stakeholder also expressed the view that there is a need for some assessment of whether a victim objects to an order due to coercion or fear: Berry Street Inc, Submission FV 163, 25 June Confidential, Submission FV 184, 25 June See also The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010, which stated that caution and informed expertise must be exercised in ascertaining the wishes of a victim, particularly in open court.