John Kahn 08 Feb 2017
As a criminal lawyer, I have been asked many times for a consultation in relation to domestic violence and AVO (Apprehended Violence Order). It may appear awkward in the eyes of Koreans that certain domestic issues are being treated seriously in Australia. Compared to Korea, most domestic violence cases are dealt with in a more serious manner and end up with an alleged convicted being prosecuted. In this regard, it is necessary to consider how domestic violence is defined and how a person alleged of domestic violence should prepare.
Most of all, domestic violence is defined as violence between persons in a domestic relationship. The domestic relationship generally includes married couples, families, partners and couples in love as well as relatives living in the same residential area. In addition, despite an absence of family relationship, a domestic relationship could be found if people reside in the same property. In terms of the violence, it includes not only physical violence but also psychological violence such as stalking, threats and damage to property.
In general, the police intervene in a case if a victim reports to them. The victim is able to either call or attend the police for the report. Also, the police may attend a scene if reported by a victim’s neighbours. Once a case is reported to the police, it has to be investigated in detail and may result in a prosecution or conviction.
An example below is an actual domestic violence case that I have dealt with.
A husband and a wife were a newly married couple, and they frequently had arguments. One day, the wife shouted at the husband during an argument, and the husband covered his wife's mouth with his hand. Due to a report by a neighbour, the police attended the scene, and the husband was arrested and sent to the police station although the wife asked them not to do so. During the interview at the police station, the husband stated that he did not use force. However, he was eventually prosecuted for common assault and applied for AVO.
As seen in the above case, covering a person’s mouth can be defined as violent conduct. Hence, if the husband stated he did, the court would have decided the case against him. Furthermore, the wife may be called to provide evidence if the husband declines to attend the court.
The husband in that case initially argued for his innocence before the court. Evidence presented before the court were the statements of the husband and the police, and the voice record of the wife. As usual with domestic violence cases, a request for withdrawal of a prosecution was not accepted. After several postponements of hearings caused by the husband’s absence, the court determined that their honour would decide its case only based on limited evidence, mainly the statement of the wife. As a lawyer representing the husband, I proposed two options to the client. The one was to plead not guilty before the court. However, this choice may require the wife to provide a statement in the court and to be exposed to a cross-examination. The other option was to plead guilty. In that case, the court is likely to apply Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which enables the accused to be treated as a criminal but without actual punishment. It was agreed with a prosecutor that a sentence in accordance with Section 10 would be adequate for the husband’s case. Even though sentencing is a matter of the court’s discretion, it is less likely that an actual sentence deviates from an agreed sentence between parties. Ultimately, the husband pleaded guilty and was sentenced under Section 10.
As a solicitor is capable of dealing with this kind of case during the whole court process, a barrister is not recommended to be hired.
There are several considerations in relation to the above case.
The wife had never thought that merely because of her husband’s conduct covering her mouth, he would be prosecuted. For that reason, the wife made a statement as to what happened. It is rather recommended that if the wife does not want the police to intervene, her statement to the police at the scene must be delivered cautiously. The police are not allowed to enter into a residential place without any writ unless there is a risk of danger or violence.
The husband also admitted his conduct during the initial investigation as he believed that that would not be considered violent conduct. It is recommended that a police interview be denied without the assistance of a lawyer if you are brought into custody for an allegation. This is because the purpose of the police interview is not to prove your innocence but to collect evidence. Every convict has a right to remain silent. To exercise the right to silence cannot impact a case negatively.
Furthermore, although the husband declined to attend the court hearing in the above case, it is rare that the court issues an arrest warrant for a hearing except for aggravated cases. As such, the accused is less likely to be found guilty in cases in which the only available evidence is a statement of a victim in a domestic violence context.
Accordingly, it is vital to seek legal advice from a criminal lawyer as soon as practicable if a person is alleged of a criminal offence. The police are obliged to provide the accused with an opportunity to contact his legal representative. Had the husband had legal advice, he would not have lost six months and additional legal fees.