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Facing false Domestic Violence charges can be tough, thrusting individuals into a legal quagmire with real-life consequences. Navigating the complexities of defending against such accusations requires a clear and practical approach. In this guide, we’ll break down the process, providing a straightforward roadmap for those grappling with unfounded charges.
We’ll explore the importance of gathering compelling evidence, debunk common myths, and emphasize the significance of a strong defence strategy. Whether you’re wrongly accused or supporting someone in this predicament, we aim to demystify the legal landscape surrounding Domestic Violence charges. By the end, you’ll be equipped with the knowledge and tools to assertively confront the allegations and safeguard your rights in the face of adversity. It’s time to untangle the legal web and reclaim control over your narrative.
Laws about domestic violence
In New South Wales, there isn’t a specific offence labelled as ‘domestic violence.’ Instead, the term is commonly used when criminal charges or Apprehended Violence Orders (AVOs) are initiated by the police due to allegations of violence, intimidation, stalking, or harassment between spouses or partners. The spectrum of incidents varies widely, encompassing everything from unwanted post-breakup communications to severe injuries resulting from physical altercations at home.
Prosecutions related to domestic violence emerge from situations perceived as minor by the involved parties. Often, individuals wish to reconcile and seek the withdrawal of charges or AVOs. Unfortunately, false accusations can also arise from motives like anger, revenge, or to gain an advantage in other legal proceedings, such as family law matters.
The Crimes (Domestic and Personal Violence) Act 2007 (NSW)1 outlines offences related to personal violence. These encompass crimes like intimidation, stalking, breach of AVO, common assault, actual bodily harm, grievous bodily harm, murder, choke or sexual assault, kidnapping, property damage, and the distribution of intimate images or threats thereof. Understanding these laws is crucial for individuals navigating the complexities of domestic violence-related charges in Australia.
Understanding Domestic Violence orders
In Australia, a Domestic violence order is more commonly known as an ‘Apprehended Violence Order’ (AVO) and is a court-issued protection order designed to safeguard individuals from harm. The defendant, also known as the person subject to the order, is legally prohibited from engaging in specific behaviours, such as assault, molestation, harassment, intimidation, or stalking, towards the protected person for a defined period.
Additional restrictions may include bans on contact, proximity limits to the protected person’s home or workplace, and the prevention of property damage. According to the federal criminal code, a domestic violence order or AVO made after 2017 is recognised nationally and is recognised across the country.
As the court system of New South Wales highlights, AVOs do not result in a criminal record for defendants. However, violating the order’s terms can lead to legal consequences. For those facing an AVO, Jameson Law provides expert assistance. The firm aids defendants in navigating the legal complexities, ensuring a thorough understanding of the order’s implications and facilitating compliance. Whether dealing with an Apprehended Domestic Violence Order (ADVO) or an Apprehended Personal Violence Order (APVO), Jameson Law stands ready to assist, offering comprehensive support to individuals facing these legal challenges
Domestic Violence Case Defence
There are several defences that you might be able to draw on for domestic violence charges that you may face. Here, we are going to break down some of the most common ones that might be used.
Self Defence
In dealing with domestic violence cases in New South Wales, a strong legal defence often rests on incorporating self defence as a key strategy. This becomes especially crucial when the alleged victim takes on the role of the aggressor, forcing the defendant to use force in defence of themselves or others.
The heart of the defence lies in proving the reasonableness of the defendant’s actions in response to the perceived threat posed by the alleged victim. That means that the defendant has to show that the defendant had a reasonable doubt that physical harm or grievous bodily harm was about to happen to them. The court has to be shown the defendant that their actions were a ‘reasonable response’ in the pursuit of self defence.
As per section 418 of the Crimes Act 1900 (NSW), self defence is legally defined as when person A assaults person B out of genuine fear for their protection, the protection of others, or safeguarding property. Successfully using self defence as a defence strategy involves demonstrating that the assault was a reasonable and proportionate response to the circumstances perceived by person A at the time of the incident. Self control and ensuring that your actions were not responsible for recklessly causing injury are also an important part of the defence of self defence.
Effectively handling domestic violence charges requires presenting compelling evidence that establishes the defendant’s genuine fear and emphasizes the rationality of their response. By strategically incorporating self defence arguments, legal teams aim to highlight the inherent right to protect oneself and others, adhering to the legal guidelines outlined in section 418 for a comprehensive defence in New South Wales.
Defence of Duress
In New South Wales, utilizing the defence of duress in domestic violence cases involves asserting that the accused committed an offence under significant threats or coercion, something that is distinct from self defence, where you have to illustrate a threat of imminent harm. This defense becomes relevant when the accused can substantiate that they acted out of sincere fear for their safety or the safety of others due to immediate and credible threats from the alleged victim.
For duress to be a valid defence, a robust presentation of evidence is crucial. This entails demonstrating that the threats were not only real but also imminent and of such gravity that a reasonable person would feel compelled to act similarly to avoid harm. The accused must convincingly establish that, at the time of the incident, there was no practical alternative available to them.
Effectively deploying duress as a defense in domestic violence charges requires legal expertise. Attorneys, such as those at Jameson Law, play a pivotal role in constructing a comprehensive case. They work to convey the nuanced circumstances surrounding the alleged offence to the court, emphasizing the immediate and genuine nature of the threats faced by the accused. By doing so, the defense of duress seeks to provide a more profound understanding of the complex dynamics at play, potentially influencing the legal outcome toward a fair and just resolution for all parties involved.
Defence of Mental Illness
In Australia, the defense of mental illness could also be used in domestic violence cases, offering a nuanced understanding of the accused’s mental state at the time of the alleged offence – arguing that an individual did not have the self control that an ordinary person might have. As a result, they caused bodily harm as part of a physical altercation.
This defence encompasses various legal avenues, including the McNaughton Defense outlined in section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which assesses the accused’s capacity to understand the nature and consequences of their actions.
Additionally, considerations of sane/insane automatism delve into whether the accused’s actions were involuntary due to their mental state. A section 32 application may also be made, seeking diversion to mental health treatment rather than criminal proceedings, emphasizing the importance of addressing underlying mental health issues in the legal process. It’s important to note that this is an extremely difficult defence to utilise in a court of law. Speak to a lawyer at Jameson today to understand this defence better and to see if it may be applicable.
False Domestic Violence Charges
Proving the charges were false could also be a defense to a domestic violence charge in New South Wales. Recently, legislative changes under Section 314 of the Crimes Act 1900 and Section 49A of the Crimes (Domestic and Personal Violence) Act 2007 have been implemented to address false accusations. Accusing someone of a criminal offence or making a false AVO claim, knowing the person is innocent, are now considered criminal offences. The penalties for such actions are severe, with a maximum of 7 years imprisonment for making a false criminal allegation and up to 12 months imprisonment and/or a $1,100 fine for a false AVO claim.
For example, if Sarah falsely accuses her partner, Jack, of assaulting her during an argument, she could face charges under Section 314 of the Crimes Act 1900. If it’s proven that Sarah knowingly made a false accusation, she could potentially be sentenced to imprisonment. Similarly, if Sarah fabricates an AVO claim against Jack, knowing it’s false, she could be prosecuted under Section 49A of the Crimes (Domestic and Personal Violence) Act 2007 and face imprisonment or a fine. Such a case has happened recently in Toronto, New South Wales, where police began prosecution against a lady for false domestic violence charges made against their partner.
If someone finds themselves facing false accusations, it’s crucial to seek immediate legal assistance from a specialist criminal lawyer. They can work diligently to have the case withdrawn and dismissed, ensuring justice is served and protecting the rights of the accused.
FAQs
Is Domestic Violence a criminal offence?
Yes, domestic violence is a criminal offense in NSW. While it's not a distinct charge, actions like assault, intimidation, stalking, or harassment between partners can lead to criminal charges. The Crimes (Domestic and Personal Violence) Act 2007 outlines specific offences related to domestic violence. Prosecutions can proceed even if the involved parties wish to reconcile, highlighting the legal seriousness attributed to domestic violence cases in New South Wales.
Does a Domestic Violence Offence go on a criminal record?
Yes, if you are found guilty of a domestic violence offense, it can result in a criminal record. The court has several penalty options, including imprisonment, either full-time or as an Intensive Correction Order (without jail time but with supervision), a Community Correction Order (with supervision), or a Conditional Release Order (with or without supervision).
Regardless of the penalty imposed, it may involve having a criminal record. Understanding the potential consequences is vital, as a criminal record can impact various aspects of your life, including employment opportunities and personal relationships. Keep in mind that you could also face up to two years in prison or more or bouts of a lack of self control. Contact Jameson Law today if you have any questions about your specific situation.
How long is jail time for domestic violence in Australia?
The short answer is that it depends on the sentence. Each case is entirely context-dependent. According to the Crimes (Sentencing Procedure) Act 1999 (NSW), courts are required to give either full-time imprisonment or a supervised order to those found guilty of domestic violence.
The only exception is if the court believes a different punishment is more fitting, but they need a good reason for that. A supervised order can include various options like conditional release orders or community corrections orders. The length of imprisonment depends on the type of domestic violence offence, ranging from a maximum of 2 years to life, based on the specific details of each case.
