AVOs: Apprehended violence industry or
disease?
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 defendant’s 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 defendant’s 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? Didn’t 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 won’t
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
don’t 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.
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