12.47 Public justice offences can be broadly described as including offences targeting interference with: the administration of justice, judicial officers, jurors and witnesses; as well as perjury and the making of false statements. A corollary to charging victims of family violence with aiding and abetting the breach of a protection order is charging such victims with public justice offences—such as conspiracy to pervert the course of justice for conduct engaged in by them to reduce the culpability of the offender—such as withdrawing their statements.
12.48 The crime of conspiracy is committed where two or more people agree to commit a crime or other unlawful act. On a charge of conspiracy the prosecution must prove the fact of the agreement. Conspiracy originated as an offence to punish persons who entered into agreements to abuse the criminal process by bringing false criminal charges against other people. Conspiracy is a common law offence, and the penalty is within the judicial officer’s discretion. However, statutes set out some particular conspiracies with specific penalties.
12.49 While conspiracy may be unrelated to issues arising from the breach of a protection order, it is convenient to deal with it here because of the potential similarities in the policy issues applicable to aiding and abetting the breach of a protection order.
12.50 Below is a case study concerning a victim of severe family violence who was prosecuted for conspiracy. The case study is based on a transcript of the Australian Broadcasting Corporation’s 7.30 Report and comments made on the ALRC’s Family Violence Online Forum. At the time of writing the remarks on sentencing were unavailable.
In March 2010 a victim of family violence, Deanne Bridgland, was found guilty of conspiracy and attempting to pervert the course of justice, following a five week trial. She was sentenced in the County Court of Victoria to a two year suspended sentence.
Ms Bridgland had been subjected to severe family violence—described by one psychologist as some of the worst that she had ever come into contact with. Her partner—Nicholas Pasinas—had repeatedly bashed her and, on two occasions, snapped her arms. He had also repeatedly raped her and locked her in the garage with her mouth taped shut. Mr Pasinas was remanded in custody for serious assault charges, and despite a protection order being made against him, he called Ms Bridgland up to 12 times a day, and arranged to have her followed.
The police recorded his phone calls to her in which he persuaded her to withdraw her statement against him. While in prison he arranged for a friend of his—Paul Coralis—to pick her up and take her to the police station where she provided police with a statement of ‘non-complaint’ against him, pursuant to his instructions. Evidence was led that she had no choice but to give the statement. She also provided a letter supporting his release on bail. A psychologist commented that Ms Bridgland did what she did ‘in order to survive’. The police officer who laid the charges reportedly testified that she thought Ms Bridgland would be killed if she did not escape the relationship. Ms Bridgland was known to be suffering from battered woman syndrome and learned helplessness.
Ms Bridgland was essentially charged with agreeing with her partner to aid him in either having him released from prison or in reducing his culpability. Her lawyers requested the prosecution not to proceed with the charges on the basis that there was no public interest in prosecuting her. The prosecution refused. Mr Pasinas pleaded guilty to the conspiracy charge and helped the prosecution in its case against Ms Bridgland, for which he received a discount on sentence—his sentence was cut in half to two and a half years imprisonment with a 15 month non-parole period.
12.51 In a submission to this Inquiry, National Legal Aid stated that, in WA it was very common for victims of family violence to resile from or change earlier statements against their partners ‘due to the nature of family violence and the dynamics of the relationships between victims and abusers’. National Legal Aid expressed a concern that ‘police sometimes charge women where it seems that the change in their statements arises from factors such as fear and misplaced loyalty’. It suggested that such concern be met by educating police and prosecutors about the dynamics of family violence.
Submissions and consultations
12.52 In the Consultation Paper, the Commissions proposed that state and territory criminal legislation should be amended to ensure that victims of family violence cannot be charged with, or be found guilty of, offences, such as conspiracy or attempting to pervert the course of justice—where the conduct alleged to constitute such offences is essentially engaged in by victims to reduce or mitigate the culpability of the offender. The Commissions also proposed that legislative reform in this area should be reinforced by appropriate directions in police codes of practice, or operating procedures and prosecutorial guidelines or policies.
12.53 This proposal was supported by the majority of stakeholders who addressed it. For example, in a joint submission, Domestic Violence Victoria and others stated that:
We strongly support this proposal for the reasons given in the Consultation Paper … As [we and others] are advocating currently in our joint response to the issues raised by the Deanne Bridgland case, the associated non-legislative changes must include enhanced linkages and cooperation between the police, prosecutors, the courts, corrections and service providers, so that all these agencies are engaged to the fullest extent possible in the integrated response to family violence and so that they remain informed about, and participate in, family violence reform initiatives.
12.54 In a confidential submission, one legal service provider, which supported the proposal stated:
Victims need active support, not threats, to maintain their proceedings against perpetrators. It is understandable that police, trying to achieve justice and protection, may want to use such a blunt approach—making victims more frightened of the police than their expartner can seem logical on a level. The problems with this are clear, as the Commissions point out. However, it is not enough just to remove this threat. These women need active support. We have observed the police prosecutor in criminal law proceedings speaking to the women in a way that appears to be discouraging them from pursuing charges, or at least encouraging them to agree to some kind of plea bargain where the evidence is overwhelmingly in her favour.
12.55 However, a number of stakeholders opposed the proposal or otherwise expressed concern about its ‘wide-ranging nature’ and indicated a preference for appropriate police codes of practice or operating procedures and prosecutorial guidelines. For example, the NSW Office of the Director of Public Prosecutions (NSW ODPP) did not support for the proposal for two reasons:
First it would have the effect of creating a class of witnesses who, as they cannot be prosecuted for perjury, would (in all likelihood) be subjected to cross-examination to that effect which could undermine their credibility. Secondly, there will be cases where it would be appropriate to prosecute for perjury, if not to do so would otherwise bring the criminal justice system into disrepute.
It is not the ODPP’s practice, as a rule, to prosecute victims of family violence for conduct that may reduce or mitigate the culpability of the offender. In our view current ODPP Prosecution Guidelines adequately address this situation.
12.56 The Law Society of New South Wales also opposed the proposal.
The threat of criminal prosecution can work towards ensuring the integrity of the judicial process, and be an incentive for a witness to tell the truth. The making of an apprehended violence order has implications and may lead to criminal sanctions including imprisonment if breached.
It is acknowledged that the prospect of a genuine victim of domestic violence being prosecuted and facing criminal sanction for minimising the role of the perpetrator is to be avoided. This is a matter for the courts to determine in the circumstances of each case. It is more dangerous for the Government to legislate away this incentive to tell the truth. It undermines the judicial process to do so.
12.57 The Commissions have grave concerns about the practice of charging and prosecuting victims of family violence for conspiracy or attempting to pervert the course of justice in relation to conduct engaged in by them to mitigate the culpability of family violence offenders when their conduct can be attributed to the dynamics of duress and coercion exercised over them by such offenders.
12.58 The charging and prosecution of victims of family violence for conduct seemingly undertaken by them to mitigate the culpability of offenders ignores the nature of family violence—particularly the features of coercion and control, the damaging psychological impact that this has on victims, as well as the fear which it instils. It also overlooks the cyclical and complicated nature of family violence relationships, ‘which often lead victims to withdraw charges or understate the harm of particular conduct during periods of calm in their relationship’.
12.59 The legal system—including police, prosecutors and courts—should not be used to re-traumatise victims of family violence. The focus of the criminal justice response to family violence should be to make offenders accountable. It is difficult to conceive what public interest is served by the prosecution of victims of family violence for offences arising out of their conduct in seemingly agreeing to mitigate the culpability of offenders, when the nature of such ‘agreement’ in a family violence context is clouded by issues concerning duress, coercion, and learned helplessness.
12.60 However, the Commissions acknowledge the concerns expressed by some stakeholders that the retention of such offences in the family violence context may be appropriate for exceptional cases—and that to remove the application of such offences to a particular class of persons may undermine the judicial process and bring the criminal justice system into disrepute. Accordingly, the Commissions do not make any recommendations for legislative reform in this area.
12.61 In coming to this view, the Commissions are also mindful of their recommendation that state and territory legislation should provide that a person protected by a protection order cannot be charged with or be found guilty of an offence of aiding, abetting, counselling or procuring the breach of a protection order. As discussed above, the Commissions consider that for those exceptional cases where a victim may have acted maliciously in inciting a breach of a protection order it may be appropriate for prosecutors or police to consider the application of general public justice offences.
12.62 While the Commissions do not make any recommendations for legislative reform, they do, however, emphasise the critical importance of education, training and cultural change in this area. A scenario such as that which unfolded in the Deanne Bridgland case is a striking example in point. It is imperative that police and prosecutors receive training in the dynamics of family violence to enable them to assess properly the contextual background in which a victim may be seen to be acting in a way to reduce or mitigate the culpability of an offender. In particular, police and prosecutors need to be trained in how the dynamics of family violence might affect the decisions of victims of family violence to negate the existence of such violence or to withdraw previous allegations of violence.
12.63 Such training should be reinforced by appropriate directions and guidance in police codes of practice or operating procedures, and in prosecutorial guidelines or policies. For example, it appears to the Commissions that any decisions to charge or prosecute victims with public justice offences—such as conspiracy or attempts to pervert the course of justice, where the conduct alleged to constitute such offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of an offender—should only be approved at the highest levels within state or territory police services and by directors of public prosecution. Requiring scrutiny of such decisions by senior persons should reduce the likelihood of charges being laid and prosecutions launched in inappropriate cases which do not serve the public interest.
12.64 Further, police should be trained about the appropriate content of ‘statements of no complaint’. Such statements are often obtained by police attesting to the fact that a victim does not wish to pursue criminal charges—for a variety of legitimate reasons. For example, the Commissions have heard about the tension in Indigenous communities arising from the need to keep women safe but also keeping young Indigenous men out of prison, particularly in light of their being over-represented in the prison system—a factor which renders some victims reluctant to pursue criminal action. In particular, police should not encourage victims to attest that no family violence occurred when the evidence clearly points to the contrary. Including such assertions in ‘statements of no complaint’—in the absence of a sophisticated and informed understanding of why a victim of family violence may wish to negate that violence occurred or to withdraw previous statements made—sets victims up for perjury charges.
Recommendation 12–2 Federal, state and territory police, and directors of public prosecution should train or ensure that police and prosecutors respectively receive training on how the dynamics of family violence might affect the decisions of victims to negate the existence of family violence or to withdraw previous allegations of violence.
Recommendation 12–3 Police codes of practice or operating guidelines, and prosecutorial policies should ensure that any decisions to charge or prosecute victims of family violence with public justice offences—such as conspiracy or attempts to pervert the course of justice, where the conduct alleged to constitute such offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of an offender—should only be approved at the highest levels within state or territory police services, and by directors of public prosecution, respectively.
Recommendation 12–4 Police should be trained about the appropriate content of ‘statements of no complaint’ in which victims attest to the fact that they do not wish to pursue criminal action. In particular, police should not encourage victims to attest that no family violence occurred when the evidence clearly points to the contrary.
 D Brown and others, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Material and Commentary on Criminal Law and Process in New South Wales (4th ed, 2006), 1088.
 Ibid, 1092.
 Ibid, 1088.
 For example the Crimes Act 1958 (Vic) s 321C sets out various penalties for conspiracy to commit an offence, depending on the offence.
 ABC Television, Changes to Domestic Violence Laws ‘Don’t Go Far Enough’ The 7.30 Report, 9 March 2010 <www.abc.net.au/7.30/content/2010/s2841222.htm> at 9 March 2010.
Comment on ALRC Family Violence Online Forum: Women’s Legal Service Providers.
 National Legal Aid, Submission FV 232, 15 July 2010.
 Ibid. A similar concern about the charging of victims with giving false testimony and perverting the course of justice when they withdraw complaints of family violence was also raised in Roundtable, Consultation, Hobart, 13 May 2010.
 Consultation Paper, Proposal 6–15.
 Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; T McLean, Submission FV 204, 28 June 2010; Confidential, Submission FV 198, 25 June 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; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 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 164, 25 June 2010.
 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
 Queensland Law Society, Submission FV 178, 25 June 2010.
 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010. The Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines contains Appendix E—a protocol for reviewing domestic violence offences. This covers, for example, the reasons why a victim of family violence may request that a prosecution is discontinued, the circumstances which a prosecutor must consider in determining the basis for a victim’s wish not to proceed, and the factors a prosecutor must consider in assessing the circumstances of a case which a victim wishes to discontinue.
 Law Society of New South Wales, Submission FV 205, 30 June 2010.
 H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 454 (citation omitted).
 In Ch 31, the Commissions make a general recommendation that covers training police and prosecutors in the dynamics of family violence.
 Confidential, Consultation, Darwin, 27 May 2010.