Concurrent proceedings under family violence laws and the criminal law

Liability and use of evidence issues

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 sets of proceedings. There are a few exceptions to this. 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.[1]

The Commissions’ preliminary view is that there should be greater legislative clarity about how the making, variation, revocation or refusal to vary or revoke a protection order impacts on the civil or criminal liability of a person for the conduct that gave rise to the protection order. 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 Western Australian family violence legislation is an instructive model, 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

The Commissions consider that there should be legislative clarity about the use in criminal proceedings of evidence of the following based on conduct that gave rise to proceedings under family violence legislation:

  • the making, varying, or revocation of a protection order or the refusal to take any of those actions; and
  • the fact that evidence of a particular nature was given in proceedings under family violence legislation.

There are a number of factors at play in considering whether evidence 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 using evidence about protection orders 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 evidence about protection orders in criminal proceedings. The need to avoid prejudicing criminal proceedings is also an important factor. Witnesses can be cross-examined on prior inconsistent statements—both in jurisdictions in which the uniform Evidence Acts apply as well as jurisdictions, such as Queensland, which have their own evidence legislation.

The Commissions are interested to hear about how s 62 of the Domestic and Family Violence Protection Act 1989 (Qld), which limits the use of evidence about protection orders in criminal proceedings, is operating in practice. In particular, how does it interact with s 18 of the Evidence Act 1977 (Qld) which provides that ‘proof may be given’ that a witness made a prior inconsistent statement? The Commissions are also interested in hearing stakeholder views about whether a provision based on s 62 could be adopted in other jurisdictions. The Commissions tend to the view that evidence about the making of protection orders should not be admissible in criminal proceedings—other than:

  • for the purposes of considering bail and bail conditions;
  • in sentencing; and
  • in proceedings for breach of protection orders, where clearly the making of protection orders is a relevant fact to be established.

Evidence about whether protection orders were made, varied or revoked, or applications for such orders were rejected, could improperly influence juries in their deliberations in matters concerning offences related to family violence. In contrast, 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.

An important advantage of this approach is that it enables courts, on their own initiative, to make protection orders where it is appropriate to do so, at any point in time during criminal proceedings without risking prejudice to the fair conduct of those proceedings. In other words, the suggested approach would accommodate the systemic objectives of victim protection and ensuring that an accused receives a fair trial.

This proposal aims to achieve legislative clarity about the use of evidence of protection orders in criminal proceedings. At this stage, however, the Commissions do not propose that evidence of such orders should be inadmissible in criminal proceedings except in the circumstances outlined above, because the Commissions would like to hear more about the operation in practice of the Queensland provision, which limits the use of such evidence.

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. These important provisions may circumvent the need for a victim to make a separate application for a protection order.

Making of protection order

The Commissions are of the preliminary view that provisions empowering courts in criminal matters to make protection orders on their own initiative are an extremely important way of alleviating the need for a victim—already involved in criminal proceedings as a witness—to initiate an application for a protection order, and potentially having to give further evidence. The Commissions consider that the family violence legislation of each state and territory should contain an express provision empowering courts in this way. The Commissions note that the Victorian family violence legislation does not contain such a provision.

The Domestic Violence Legislation Working Group did not support provisions enabling courts to make protection orders of their own volition against accused persons where criminal proceedings against them were continuing. This was because the making of such orders on the basis of ‘untried facts’ would amount to a ‘denial of justice’.[2] In the Commissions’ preliminary view, however, a court should be able to make such orders of its own initiative where it considers it is appropriate to do so to protect a victim. The legitimate concern about denying justice to an accused in criminal proceedings can be alleviated if, as the Commissions are tentatively considering, family violence legislation makes it clear:

  • that the making of a protection order does not affect the criminal or civil liability of a person in respect of conduct the subject of the order; and
  • that a protection order is inadmissible in criminal proceedings—other than for the purpose of imposing bail, in sentencing, or in proceedings for breach of protection orders.

An alternative approach is to limit courts to make interim protection orders in such circumstances.

As a preliminary matter, the Commissions are interested in ascertaining the extent to which courts which have the power to make protection orders on their own initiative are exercising such power.

The Commissions note the disparity between the jurisdictions concerning whether court-initiated protection orders are mandatory or discretionary. The Commissions tend to the view that it would be preferable for there to be uniformity of approach across the jurisdictions regarding the circumstances in which courts make protection orders in criminal proceedings. The Domestic Violence Legislation Working Group expressed concern that the making of mandatory orders could lead to inappropriate or unnecessary orders being issued. The Commissions are therefore interested to hear how the provisions in NSW and Western Australia, which mandate courts to make protection orders in certain circumstances, are working in practice. In particular, the Commissions are interested in hearing:

  • whether such provisions have resulted in the issuing of inappropriate or unnecessary orders;
  • the types of circumstances that satisfy judicial officers in NSW that the mandatory making of the protection order is not required; and
  • whether, if provisions mandating courts to make protection orders in certain circumstances are to remain, such provisions should contain an express exception for when a victim objects to the making of the order.

In relation to the last bullet point above, the Commissions note that the Western Australian family violence legislation has such an exception, whereas the NSW family violence legislation does not. The Domestic Violence Legislation Working Group recommended the inclusion of such an exception in provisions conferring discretion on courts to make protection orders.

The Commissions are also interested in stakeholder views on whether it would be beneficial for legislation to empower prosecutors to seek protection orders where a person pleads guilty or is found guilty of an offence involving family violence. In this regard, they are particularly interested in hearing about the extent to which prosecutors in the Northern Territory make applications for protection orders when a person pleads guilty to, or is found guilty of, an offence involving family violence.

Variation

In the Commissions’ preliminary view, a court before which a person pleads guilty or is found guilty of an offence involving family violence, should be required to consider:

  • any existing protection order; and
  • whether, in the circumstances that protection order needs to be varied to provide greater protection for the person against whom the offence was committed—irrespective of whether or not an application has been made to vary the order.

This approach does not require the court to vary an existing protection order. Its intended impact is to focus a court exercising criminal jurisdiction on an existing protection order, to ascertain whether its conditions remain appropriate and sufficient to protect the affected victim.

Proposal 6–1 State and territory family violence legislation should be amended, where necessary, to 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.

Question 6–1 Is it common for victims in criminal proceedings to be cross-examined about evidence that they have given in support of an application to obtain a protection order under family violence legislation when the conduct the subject of the criminal proceedings and the protection order is substantially the same?

Proposal 6–2 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:

  1. the making, variation, and revocation of protection orders in proceedings under family violence legislation;
  2. the refusal of a court to make, vary or revoke a protection order in proceedings under family violence legislation;
  3. the existence of current proceedings for a protection order under family violence legislation against the person the subject of the criminal proceedings;
  4. the fact that evidence of a particular nature or content was given in proceedings under family violence legislation.

Such provisions will need to address separately the conduct which constitutes a breach of a protection order under family violence legislation.

Question 6–2 How is 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—working in practice? In particular:

  1. how is it interacting in practice with s 18 of the Evidence Act 1977 (Qld) which states that ‘proof may be given’ of a previous inconsistent statement;
  2. does it provide a model for other states and territories to adopt in their family violence legislation in order to provide legislative clarity about the matters raised in Proposal 6–2 above; and
  3. is there a need to make express exception for bail, sentencing and breach of protection order proceedings?

Question 6–3 In practice, to what extent are courts exercising their powers to make protection orders in criminal proceedings on their own initiative where a discretion to do so is conferred on them?

Question 6–4 Are current provisions in family violence legislation which mandate courts to make either interim or final protection orders on: charging; a finding or plea of guilt; or in the case of serious offences, working in practice? In particular:

  1. have such provisions resulted in the issuing of unnecessary or inappropriate orders; and
  2. in practice, what types of circumstances satisfy judicial officers in NSW that such orders are not required?

Question 6–5 If provisions in state and territory family violence legislation mandating courts to make protection orders in certain circumstances remain, is it appropriate for such provisions to contain an exception for situations where a victim objects to the making of the order?

Question 6–6 To what extent are prosecutors in the Northern Territory making applications for protection orders where a person pleads guilty or is found guilty of an offence that involves family violence? Is it desirable for legislation to empower prosecutors in other states and territories to make an application for protection orders where a person pleads guilty or is found guilty of such an offence?

Proposal 6–3 State and territory family violence legislation should include an express provision conferring on courts a power to make a protection order on their own initiative at any stage of a criminal proceeding—including prior to a plea or finding of guilt.

Proposal 6–4 State and territory legislation should provide that a court, before which a person pleads guilty or is found guilty of an offence involving family violence, must consider any existing protection order obtained under family violence legislation and whether, in the circumstances, that protection order needs to be varied to provide greater protection for the person against whom the offence was committed, irrespective of whether an application has been made to vary the order.

[1]Restraining Orders Act 1997 (WA) s 63C(2).

[2]Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), 67.