You are entitled to the presumption of innocence
While there is a great deal of information published, and many services are available, for the guidance and assistance of those who claim to be victims of Domestic Violence, it is much more difficult for those who are charged with “Domestic Violence” offences to access reliable information and advice. It could even be said that some people or groups in Australian society have a preconceived perception that a person charged with any of these offences ‘must’ be guilty, and therefore does not need guidance or assistance.
However, anyone who is required to appear before a Court is entitled to be given a fair and impartial hearing, and if he or she is charged with a criminal offence, to be presumed innocent until guilt is proved. The best way to have these rights respected by all involved in the process, including the alleged victim, the Police, Court personnel and support persons, is to seek and follow professional legal advice from a Solicitor as soon as possible.
How are Domestic Violence Procedures started?
Domestic Violence proceedings can be started by the Police, or by a person who claims to be a victim. The parties to the proceedings must be, or have been at some time, in a domestic, or family situation together, such as spouses, parents, and/or children. Most often, they result when the Police attend a scene where there has been a disturbance and assess the facts and what they are told by the people present, and then decide that some measures are necessary to protect one or more of the people present (the “Protected Person/s”) from potential violent behaviour.
The Police make an Interim Domestic Violence (DVO) against the person they decide may behave violently (the “Respondent”), with conditions to suit the circumstances as they see them. Usually they will direct the person not to contact or approach, or go near places where the Protected Person lives or works, or attends school or other regular activities, and not to assault or molest the Protected Person.
The Order is called an Interim Order because it only has effect until it is confirmed or varies by a Court. The copy given to the Respondent will set out all relevant details, including the date, time and place when the Interim Order will be listed before a Magistrate.
Is an AVO a criminal charge?
The issuing of an Interim DVO is not criminal in nature. The purpose of the procedure is to provide protection from future harm for the alleged victim, and not to punish the Respondent.
However, if actual violence is alleged to have occurred, the Police may charge the Respondent with a criminal offence, usually assault. The steps in relation to that follow the standard criminal arrest and charge procedure, including the taking of fingerprints. The Police decide whether to grant bail, and issue the paperwork to list the charge before a Magistrate. Usually the Listing is at the same place, date and time as the listing of the Interim Order and the two proceedings are dealt with by the Court at the same time.
What do I do if I am charged with a Criminal Offence as well as an AVO?
If you are the Respondent to a DVO and/or have been charged with a criminal offence, you face serious consequences when you appear before the Court, and you need to take all possible action to protect your rights and ensure that any adverse consequences you suffer are reasonable in all the circumstances. Any DV Orders will restrict your freedom, and may affect your right to continue to live in your home or see your children. If final Orders are made, it is difficult to have the terms changed. Conviction on a criminal charge can result in a fine or imprisonment, or release on a Bond with conditions. Breach of a DVO is a criminal offence and can lead to similar consequences.
Your Solicitor will act on your instructions after assessing the evidence and advising you. DVO proceedings arise from the personal conduct and circumstances of the parties, and, involving family relationships, can be the result of emotional behaviour and reactions to events. They can provide an opportunity to take advice about the underlying factors, such as Family Law or financial matters, and your Solicitor can assist with communicating with the other party on your behalf, or referrals to Counselling or other services, with a view to addressing those factors, and the future of your relationship, in the context of the Court proceedings.
You are able to obtain an adjournment of the proceedings on the first day the matters are listed before the Court, if you have not had the time or opportunity to take legal advice or explore the possibilities of negotiations with the police and/or the other party. The Interim DVO and any Bail will continue, unless you make a formal objection to it’s continuance. You may have very good reasons why you cannot abide by the interim conditions, such as a need to attend the place to work or for other important reasons. You may, at this stage, negotiate with the Police to have these interim orders changed, or you may argue the case at an interim AVO Hearing.
What do I do if I am Not Guilty of the charge, and do not want the AVO against me?
If you decide to defend the proceedings, there will be two hearings, one for the DVO and one for the criminal matter. Usually the criminal matter is heard first. The evidence is tested on the basis of “beyond reasonable doubt” and if you are convicted, it would be impossible to defend a DVO based on the same facts. If you are acquitted, the Police could still decide to proceed on the DVO, relying on all the circumstances, not just the evidence used in the assault proceedings. Generally, if you are found not guilty of the criminal charges, the Police will withdraw the AVO proceedings. However, depending on the evidence, the Police may wish to proceed with the AVO proceedings and seek final orders.
Your Solicitor will advise you as to the cost of instructing him or her, and as to the possibility that you may be ordered to pay the costs of any other party, or compensation.
What do I do if I want to plead Guilty to the charge and agree to the AVO?
If you decide to admit that your conduct warrants the action that was taken against you, your Solicitor will tell the Court that you consent to a Final DVO, and that you plead “guilty” to the criminal charge. Your Solicitor will prepare Submissions for the Court, explaining your situation, and the factors that led to the Police being called, and any matters that have been resolved between you and the other party in the meantime, and your proposals regarding your future contact with the protected Person. If you have personal references, these can be handed up to the Magistrate, and your Solicitor will make suggestions as to the wording of appropriate conditions to be placed on you by the DVO. In the criminal matter, your Solicitor will make submissions as to whether there should be a conviction (giving you a criminal record) and as to the appropriate penalty if you are convicted.
The outcome of DVO proceedings can have far-reaching effects on you, which can be minimised by seeking professional legal advice at an early stage.