• DIRECTOR’S POLICY •
Family Violence
CONTENTS
Purpose
2
What is ‘family violence’?
2
Who is a ‘family member’?
2
Family violence dynamics
3
The right to object to giving evidence
3
Dealing with a victim who retracts their complaint
3
Alternative arrangements for giving evidence
4
The use of expert evidence in trials
5
The impact of court delays
5
Bail applications and safety of victims and witnesses
5
The Witness Assistance Service – notification of witnesses
6
Intervention orders
6
Checks to be conducted
7
‘Protected witnesses’ and unrepresented accused
7
Sentencing
7
Indictable contravention offences
8
The question of jurisdiction
8
Duplicity principles
8
Bail considerations
9
APPENDIX: Family Violence Protection Act 2008 preamble
10
DIRECTOR’S POLICY: Family Violence 1
Purpose
1
The Office of Public Prosecutions (OPP) prosecutes matters involving
family violence in the Magistrates’, County and Supreme Courts and in
the courts of appeal. This policy reflects the OPP’s commitment to
treating victims and witnesses of family violence with dignity and
respect.
2
The policy provides instructions for OPP solicitors and counsel about
best practice for preparing and prosecuting family violence matters on
behalf of the Director of Public Prosecutions (DPP). It outlines a
number of priorities and principles to ensure consistency and fairness in
the preparation and management of family violence prosecutions.
What is ‘family violence’?
3
‘Family violence’ is defined in various ways in family violence
legislation throughout Australia. For the purposes of this policy, the
definitions of ‘family violence’ and ‘family member’ are based on the
definitions in the Family Violence Protection Act 2008 (see Appendix
1).
4
The law recognises that family violence may take many forms. It can be
perpetrated by men or women, and it can also occur in same-sex
relationships. It can include, but is not limited to, behaviour by a family
member towards another that:
 is physically abusive
 is sexually abusive
 is emotionally or psychologically abusive
 is economically abusive (such as a denial of financial autonomy or
withholding of financial support)
 is threatening
 is coercive
 in any other way controls, dominates or causes that family member
to feel fear for their safety or wellbeing or the safety or wellbeing of
another person
 causes a child to hear or witness or be exposed to the effects of the
behaviours listed above.
5
Family violence may also include stalking, making threats of suicide,
damaging or destroying a family member’s personal property, or abuse
of a family pet.
Who is a ‘family member’?
6
The concept of a ‘family member’ is very broad and includes:
 a current or former domestic partner
DIRECTOR’S POLICY: Family Violence 2




a person who is having or has had an intimate (not necessarily
sexual) relationship (or their child)
a person who is or has been a relative
a child who lives with the relevant person or has lived with them in
the past
any other person who is considered to be a family member, based
on the circumstances of the relationship.
Family violence dynamics
7
The DPP and the OPP recognise the unique dynamics that a family
violence matter brings to a prosecution. Each case must be dealt with
sensitively and particular attention paid to the needs and safety of those
affected by family violence.
8
Many witnesses may be extremely reluctant to give evidence in court.
A witness may be afraid of the consequences of giving evidence or they
may not wish to show allegiance to a particular family member.
The right to object to giving evidence
9
Any witness who is a spouse, de facto partner, parent or child of an
accused person may object to being required to give evidence as a
witness for the prosecution, according to Section 18 of the Evidence Act
2008.
10
Any objection taken by the witness must be made before the relevant
judge or magistrate. In such an instance, the court must determine if:
 there is a likelihood that harm would or might be caused to the
witness, or to the relationship between the witness and the accused
if the person gives evidence; and
 the nature and extent of that harm outweighs the desirability of
having the evidence given.
Dealing with a victim who retracts their complaint
11
Solicitors are sometimes faced with a matter in which a victim wants to
retract their complaint or to make a further statement that is inconsistent
with the original statement of complaint. If this occurs, police may
consider charging the victim with an offence such as perverting the
course of justice or perjury.
12
Given the particular sensitivities involved in prosecutions of this kind,
solicitors must refer the matter to the DPP or Chief Crown Prosecutor
before any decision is made or advice given to police about charging
the victim.
DIRECTOR’S POLICY: Family Violence 3
Alternative arrangements for giving evidence
Family Violence prosecutions not involving sexual offence charges
13
All victims and witnesses of family violence potentially have access to
alternative arrangements for giving evidence in court. Under section
360 of the Criminal Procedure Act 2009 (the Act), the court may order
the use of alternative arrangements, including the following directions:
 permit the evidence to be given from a location other than the
courtroom and shown in the courtroom via closed circuit television
 permit the use of screens to remove the accused from the direct line
of vision of the witness
 permit a person to be beside the witness when the witness is giving
evidence in order to provide emotional support
 provide that only persons specified by the court are to be present
while the witness is giving evidence
 require legal practitioners not to be robed
 require legal practitioners to be seated.
14
Prosecutors may apply on behalf of witnesses in family violence
matters to allow them to take advantage of these alternative
arrangements for giving evidence. These applications will be
determined by the judge.
Family Violence prosecutions involving sexual offence charges
15
If a family violence prosecution includes a sexual offence charge, then
for this reason, the complainant will have an automatic right to the
following arrangements under sections 363 to 365 of the Act:
 to give evidence from a remote witness facility
 if they choose to give evidence in court, to have a screen that
removes the accused from their direct line of vision
 to have a support person beside them while they give evidence.
16
If the complainant wishes to waive any of these rights, the court must
first be satisfied that the complainant is aware of their right and has
explicitly requested that the arrangement not be used.
17
The default position for complainants in family violence prosecutions
involving a sexual offence charge is that the complainant will give
evidence from a remote witness facility with an appropriate support
person present. However, if the complainant wants to give evidence in
the courtroom, the prosecutor can apply to the court to allow this to
happen. If the complainant does give evidence in the courtroom, a
screen will be used to remove the accused from their direct line of
vision.
DIRECTOR’S POLICY: Family Violence 4
The use of expert evidence in trials
18
When preparing and presenting cases, prosecutors need to consider the
social, economic and psychological factors that may operate in the
context of family violence in order to decide whether it is possible or
appropriate to lead expert evidence on these issues.
19
A prosecutor may, for example, seek to lead expert evidence under
section 79 of the Evidence Act 2008 or section 388 of the Criminal
Procedure Act 2009 (where the matter relates to a sexual offence) to
explain:
 why a victim believed they could not leave the abusive household
 why a victim might return to live with the perpetrator after being
subjected to family violence
 that family violence is a widespread problem that can occur across
all socioeconomic, ethnic and cultural divides
 that family violence can be perpetrated by women against men or
by women or men in same-sex relationships.
The impact of court delays
23
Court delays and adjournment of hearing dates may have a significant
detrimental impact on the victims and witnesses involved in a family
violence prosecution.
24
These delays can prolong the anxiety and distress suffered by witnesses
and may even lead to them becoming reluctant to continue. Court
delays may also have particular adverse effects on child witnesses who
may lose concentration if their evidence is postponed until late in the
day.
25
The DPP and the OPP are committed to avoiding delays by opposing
applications for adjournments, where appropriate, and endeavouring to
reduce the impact of delays by keeping witnesses informed of the
progress of the matter.
Bail applications and safety of victims and witnesses
26
The safety of victims and witnesses is an important consideration when
preparing and arguing any application for bail for an accused person.1
27
Section 10 of the Victims’ Charter Act 2006 requires a prosecuting
agency, on request by a victim, to inform the victim of:
 the outcome of any bail application; and
 if bail is granted, any special conditions imposed that are intended
to protect the victim or family members of the victim.
1
See Director’s Policy: Victims and Persons Adversely Affected by Crime
DIRECTOR’S POLICY: Family Violence 5
28
By the time of the committal mention, the police informant should have
provided the OPP with an OPP Victim Information Form, which
contains information about the victim’s attitude to bail and whether the
victim wishes to be informed of the outcome of any application for bail
and the relevant conditions imposed.
29
When the OPP prosecutes a matter involving family violence, the OPP
solicitor will notify the victim of the outcome of any bail application, if
they have indicated that they want to be notified. If contact details are
not available, the OPP solicitor will ask the police informant to notify
the victim.
The Witness Assistance Service – notification of witnesses
30
The OPP Witness Assistance Service (WAS) is available to support
victims and witnesses throughout the court process. Family violence
matters are a priority for WAS, and each WAS member has a sound
understanding of the key issues surrounding family violence.
31
WAS must be notified of all matters involving victims and witnesses of
family violence. If WAS is notified at an early stage, the OPP can more
effectively provide appropriate support. It is extremely important that
WAS is notified about vulnerable victims as soon as possible.
32
Early notification may affect the outcome of a prosecution by helping
to improve the quality of evidence given by a witness. If a witness feels
supported, and is provided with the information they need to prepare
themselves for giving evidence, they may perform this task better than
someone who feels isolated and ill-informed about the court process.
Intervention orders
33
When preparing a bail application, solicitors should discuss with the
police informant whether – if the application for bail is successful – an
application for an intervention order should be sought by police on
behalf of the victim, or by the victim themselves. Intervention orders
can provide additional protection for victims from the accused or others
connected with the accused.
34
In matters where it is appropriate to seek an intervention order, the OPP
solicitor should encourage police to make the application.
35
The prosecutor should also inform the court during the sentencing
process if an accused has a history of breaching intervention orders
relating to the particular victim.
36
At the conclusion of a prosecution, the OPP solicitor should discuss
with the police informant whether an application for an intervention
order should be made, or an extension sought to an existing order. Once
DIRECTOR’S POLICY: Family Violence 6
the protections provided by bail are removed, an intervention order may
be needed to ensure the safety of the victim.
37
If an intervention order is considered necessary, the OPP solicitor
should encourage police to make the application.
38
It may be appropriate to consider applying for an intervention order
even in matters where the accused is sentenced to serve an immediate
term of imprisonment. This is to prevent the accused from harassing the
victim from inside the prison via email, telephone or letter, or from
committing further acts of family violence following their release.
Checks to be conducted
39
Solicitors should check with police, and search the relevant OPP
records, to inquire if a victim, or the victim’s family, has previously
been involved in a family violence prosecution.
40
If a victim, or the victim’s family, has previously been involved in a
family violence prosecution, WAS should be notified and consulted.
WAS will then consider whether any additional support or protection is
needed to help the victim through the criminal process.
‘Protected witnesses’ and unrepresented accused
41
In any criminal proceeding that relates to a charge for an offence that
involves family violence, an unrepresented accused is prohibited from
cross-examining any witness who is classified as a ‘protected witness’,
according to sections 353 to 357 of the Criminal Procedure Act 2009.
42
A ‘protected witness’ means a victim, or a family member of either the
victim or accused, or any other person the court may declare to be a
‘protected witness’.
43
Solicitors must ensure that in any matter where an accused is
unrepresented, the procedure set out in section 357 of the Criminal
Procedure Act 2009 is adopted. Solicitors must also ensure that orders
are made for legal representation so that protected witnesses are not
cross-examined by an unrepresented accused.
Sentencing
44
Victim Impact Statements are particularly important during sentencing
in matters involving family violence.2
See Director’s Policy: The Crown’s Role on Plea & Sentence Hearings and Director’s Policy:
Victims and Persons Adversely Affected by Crimes
2
DIRECTOR’S POLICY: Family Violence 7
45
As referred to in paragraph 35 above, the prosecution should ensure that
an accused’s history of breaching intervention orders is brought to the
attention of the court during the sentencing process.
46
If an accused is being dealt with for a breach of an intervention order,
and the offence giving rise to that breach constitutes family violence,
the prosecutor should submit that it is a relevant feature in aggravation
of the offence.
Contraventions of Family Violence Intervention Orders &
Notices – Indictable Offences
47
The Family Violence Protection Act 2008 contains three indictable
offences relating to contraventions of family violence intervention
orders (FVIOs) and family violence safety notices (FVSNs)3.
The Question of Jurisdiction
48
Director’s Policy 7.2.1 CPA on Indictable Offences Triable Summarily
sets out the statutory criteria to be applied to determine jurisdiction.
The policy incorporates specific criteria for family violence offences.
The criteria are not exhaustive or determinative and every matter is to
be assessed on its own merits.
49
It is the Director’s policy that where a charge has been laid in the
indictable stream, the decision to consent to a matter proceeding
summarily should be approved by a Crown Prosecutor.
Duplicity Principles: Charging both Substantive and
Contravention Offences
50
It is the Director’s policy that an indictment containing substantive and
contravention offences that have arisen out of the same circumstances is
not duplicitous. This is because the contravention offences have
different elements to those of the related substantive offending.
Contravention charges should be considered as part of plea discussions
and not subsumed within the factual narrative of the substantive
offending.
Section 37A – Contravention of a Notice intending to cause harm or fear for safety
Section 123A – Contravention of an Order intending to cause harm or fear for safety
Section 125A – Persistent contravention of Notices and Orders
3
DIRECTOR’S POLICY: Family Violence 8
Bail considerations & Contravention Offences
51
In certain circumstances a charge of an indictable contravention offence
may place an accused in a “show cause” situation with respect to bail as
per section 4(4)(ba) of the Bail Act 1977.
POLICY ISSUED:
REVISED:
REVISED:
REVISED:
14 September 2011
9/2/2012 – insertion of sub-headings relating to [13] –
[17] amendment to [15]
2/4/2012 – amendment to [45] to refer to [34] instead of
[30]
10/3/2015 – Policy 25 incorporated into Policy 20
DIRECTOR’S POLICY: Family Violence 9
APPENDIX
Family Violence Protection Act 2008 preamble
52
The Family Violence Protection Act 2008 contains the following
preamble, which states the intentions of Parliament in enacting the
legislation:
In enacting this Act, the Parliament recognises the following
principles—
(a)
(b)
(c)
(d)
that non-violence is a fundamental social value that must be
promoted;
that family violence is a fundamental violation of human rights
and is unacceptable in any form;
that family violence is not acceptable in any community or
culture;
that, in responding to family violence and promoting the safety
of persons who have experienced family violence, the justice
system should treat the views of victims of family violence with
respect.
In enacting this Act, the Parliament also recognises the following
features of family violence—
(a)
that while anyone can be a victim or perpetrator of family
violence, family violence is predominantly committed by men
against women, children and other vulnerable persons;
(b)
that children who are exposed to the effects of family violence
are particularly vulnerable and exposure to family violence may
have a serious impact on children’s current and future physical,
psychological and emotional wellbeing;
(c)
that family violence—
(i) affects the entire community; and
(ii) occurs in all areas of society, regardless of location,
socioeconomic and health status, age, culture, gender, sexual
identity, ability, ethnicity or religion;
(d)
that family violence extends beyond physical and sexual
violence and may involve emotional or psychological abuse and
economic abuse;
(e)
that family violence may involve overt or subtle exploitation of
power imbalances and may consist of isolated incidents or
patterns of abuse over a period of time.
45
For further assistance with the interpretation of the Family Violence
Protection Act 2008, refer to the Judicial College of Victoria Family
Violence Bench Book available online at:
www.judicialcollege.vic.edu.au/publications/ family-violence-andstalking-resources.
DIRECTOR’S POLICY: Family Violence 10