Strengthening protections for people experiencing sexual and domestic violence

Four Justice Miscellaneous Bills were passed in the Spring sitting of NSW Parliament in 2020. A brief summary of some of the key changes relating to sexual and domestic violence is included below with a particular focus on the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 (the ‘Act’). (Space precludes a discussion of the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020)).

Stronger Communities Legislation Amendment (Domestic Violence) Act 2020

Domestic violence and animal abuse

The Act amends the Crimes (Domestic and Personal Violence) Act 2007 to explicitly recognise animal abuse in the context of domestic violence. It does this through explicitly including ‘harm to an animal’ in the meaning of ‘intimidation’ (s 7) and ‘harming an animal’ in the mandatory protection order (s 36(c)). These provisions are important as abuse of animals is often used as a perpetrator tactic particularly against women, children and animals to instil fear, intimidate and exert control as well as exact revenge if the victim-survivors leave. Further, having few options to escape safely with pets and other animals may mean women are more likely to stay. Women’s Legal Service NSW acknowledges the Animal Justice Party’s contribution to this reform and the Government’s funding for refuges and animal shelters to support companion animals when victim-survivors flee violence. It will be important this funding is ongoing.

These provisions will take effect on proclamation, which is said to be ‘early 2021’ (Second Reading Speech, Legislative Assembly Hansard, 22 October 2020).

Extending duration of ADVOs

The Act implements Domestic Violence Death Review Team recommendations to extend the duration of apprehended violence orders.

If a person is at least 18 years of age at the time of committing the offence and sentenced to imprisonment, ‘other than by way of intensive correction in the community’, the ADVO will generally remain in force for ‘an additional 2 years after the time of imprisonment ends’ (s 39(2A) and (2B)). If the sentence includes a domestic violence offence and other offences, the additional two years commences after the total sentence. The court has discretion to specify a different period if there is a good reason to do so (s 39(2C)). These provisions are important for providing ongoing protection to victim-survivors when the perpetrator has left prison.

Section 39 will also be amended to refer to ‘a court’ rather than ‘the court hearing the proceedings’ so, for example, when the District Court remits a matter to the Local Court to finalise the ADVO proceedings after sentencing, the Local Court has the power to make the ADVO, including with the additional two years where appropriate.

Similar provisions to extend the duration of ADVOs were introduced in 2018 but did not commence. These provisions will take effect on proclamation in early 2021.

Listing of provisional orders

The requirement to list a provisional order within 28 days has been difficult to meet in some regional, rural and remote areas, with some parties being forced to travel significant distances because there is no court sitting within this timeframe in their local area. Section 29(3A) addresses this by providing that a failure to comply with this requirement does not affect the validity of the provisional order ‘if the failure is due to court sitting arrangements that prevent the matter from being heard by the appropriate court’. This took effect on assent on 25 November 2020.

Strengthening protections for DV complainants in criminal and related ADVO proceedings

Victim-survivors, specialist domestic violence legal services such as Women’s Legal Service NSW, and the sexual, domestic and family violence sector have long advocated that DV complainants be adequately supported to safely participate in DV proceedings. The Act introduces a number of important reforms for DV complainants in DV offence proceedings and related ADVO proceedings outlined below.

Closed courts

The Act enables DV complainants to give their evidence in closed court, including evidence through a Domestic Violence Evidence in Chief recording (Criminal Procedure Act (‘CPA’), s 289U). Further, it provides for when other parts of proceedings may be held in camera on the court’s own motion or at the request of a party to the proceedings (s 289UA).

Alternative means of giving evidence and alternative arrangements

The Act also provides an entitlement for a DV complainant to give their evidence remotely via audio-visual link (‘AVL’) or similar technology (s 289V(1)(a)) or by alternative arrangements, such as restricting visual contact, for example, through screens or seating arrangements (s 289V(1)(b)).

In order for these provisions to fulfil their policy intent it is vital DV complainants have access to AVL. Education of the judiciary and legal practitioners about these provisions will be important, including deepening understanding that supporting complainants to safely participate in proceedings will also improve the quality of evidence for the court which is in the interests of justice. It will be vital to monitor the frequency of use of these provisions and the circumstances and locations in which giving evidence by alternative means or alternative arrangements is denied. These reforms took effect on assent on 25 November 2020.

Ban on direct cross-examination

The trauma caused by an unrepresented accused directly cross-examining a victim-survivor of domestic and family violence is well documented (Australian Institute of Family Studies, Direct cross-examination in family law matters, 2018). It is vital that action is taken to stop this practice.

Section 289VA of the CPA is a key protection and Women’s Legal Service NSW commends the political parties working together to take action.

Section 289VA(2) will provide that an unrepresented accused person cannot directly cross-examine a complainant and that the complainant may instead be examined by ‘a person appointed by the court’ or through technology. The class of people to be appointed, the type of technology and the procedures for asking questions are to be determined through regulation. For this reason, the provision will take effect on 1 September 2021 or earlier by proclamation. It will be important that this ban on direct cross examination by an unrepresented accused person achieves its policy intent and that the person appointed by the court is independent with duties to the court and not just a mouthpiece.

Jury direction – delay in reporting DV

In acknowledgement that there continues to be a lack of understanding in the general community about why people may delay reporting domestic violence, s 306ZR of the CPA provides for a jury direction relating to delay in reporting DV in DV offence proceedings. In certain circumstances, the judge must warn the jury that an absence of complaint or delay in complaining does not necessarily indicate the allegation is false and there may be good reasons why people who experience domestic violence delay or refrain from making a complaint.

Areas for further reform

While these reforms are significant and to be commended, it is the author’s opinion (and that of Women’s Legal Service NSW) that the protections relating to closed courts, access to AVL and alternative arrangements and the ban on direct cross-examination should be extended to all domestic violence proceedings, including stand-alone ADVO proceedings. Further, the protections should extend to other witnesses, for example, witnesses who may have been subjected to domestic violence by the defendant but are not the DV complainant. Additionally, protections relating to the admission of evidence and compellability of complainants in retrials of sexual offence proceedings (s 306B and s 306C CPA) and subsequent trials (s 306I and s 306K) should extend to DV complainants.

Stronger Communities Legislation Amendment (Miscellaneous) Act 2020

Tendency or coincidence – presumption of joint trials

Building on the reforms implemented through the Evidence Amendment (Tendency and Coincidence) Act 2020 in relation to child sexual offences, this Act provides a rebuttable presumption in favour of joint trials where a person is accused of two or more offences and the prosecution is seeking to rely on tendency or coincidence evidence (s 29A of the CPA). Importantly, these reforms apply to all criminal proceedings and are not limited to child sexual offences ‘to ensure consistency across the board, and to avoid uncertainty when an accused is charged with different types of offences on the same indictment’ (Second Reading Speech, Legislative Assembly Hansard, 14 October 2020).

Rectification order – threat to distribute intimate image

The Act provides that where a person is found guilty of a threat to distribute an intimate image (Crimes Act, s 91R) the court has the power to order that person to ‘take reasonable actions to remove, retract, recover, delete or destroy’ the image (s 91S(1A)).

Extending prescribed sexual offences

Offences in the Crimes Act 1900 relating to recording or distributing or threatening to record or distribute intimate images without consent (ss 91P, 91Q and 91R) are now prescribed sexual offences (s 3(1)CPA). These provisions took effect on assent on 27 October 2020.

Stronger Communities Legislation Amendment (Crimes) Act 2020

Concealing serious indictable offence

Section 316(1) of the Crimes Act 1900 provides that an adult is guilty of an offence if they know or believe a serious indictable offence has been committed, they have information which might be of material assistance to authorities and they fail without reasonable excuse to bring that information to the attention of police or other appropriate authority.

Until recently, ‘reasonable excuse’ has not been defined. Section 316(1A) now provides a person has a reasonable excuse if:

• the information relates to a sexual or domestic violence offence committed against a person (the ‘alleged victim’), and
• the alleged victim was an adult at the time the information was obtained by the person, and
• the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.

This addition is important as it respects an adult victim-survivor’s agency and choice, key elements of a trauma informed response, and makes clear to individuals and professionals supporting adult victim-survivors they are not required to report to authorities against the wishes of the person they are supporting. Section 316(1A) does not limit the grounds to establish reasonable excuse (s 316(1B)). We acknowledge particularly the advocacy of Rape and Domestic Violence Services Australia in achieving this reform.

Liz Snell is the Law Reform & Policy Co-ordinator at Women’s Legal Service NSW.