In a nutshell…
Domestic violence is a serious criminal law matter which can leave deep emotional and physical scars. Domestic violence refers to the use of physical, emotional, sexual financial or psychological violence against a spouse, partner, child or close relative. Of the five different categories of violence, charges can be made up of multiple different categories.
Domestic violence charges are serious, and they can result in severe penalties. if you have been charged with a domestic violence offence, then you will need to obtain advice from an experienced domestic violence lawyer.
Domestic Violence Defences
Self defence is one of the most challenging aspects to domestic violence. It is common for a domestic argument to involve violence perpetrated by both parties; therefore, it is difficult to know who the victim is and who the perpetrator is. Self defence means a proportionate response to violence to diffuse a threat of harm. The level of violence required to diffuse the threat is different depending on the situation.
For example, an individual may punch their partner in the face and their partner may need to defend themselves. Their defence may be to punch back which would be a proportionate response however to stab the individual would be a disproportionate response. Further criminal charges can also result including grievous bodily harm and assault.
False Accusations
In many instance, if not all, the alleged perpetrator will deny the existence of violence. There is a percentage of family violence cases which are false but it can be difficult to know whether the violence has or has not occurred. Physical violence has a higher chance of being proven given its nature and the usual existence of physical evidence (i.e. bruising, lacerations, etc).
Emotional or psychological violence however, is not as easily proven and it can be word against word. It can therefore be easy for an alleged victim to make a false allegation and have domestic violence charges laid. A domestic violence conviction can result in lifelong consequences which follow and individual.
For example, an individual could be accused of calling their partner a “fucking bitch” and making verbal threats to kill them. These threats could have created a genuine fear of harm which is simply word against word because there is no hard evidence of the threat. The threat could have severely impacted the life of the victim because they have increased anxiety and fear, yet they will have difficulty proving that this is the case.
Insufficient Evidence
A domestic violence case is ultimately dependent on evidence and sometimes, no matter the honesty of the victim, the evidence simply does not exist. A large amount of domestic violence is perpetrated in private, without witnesses, and there is no record. Emotional or psychological abuse for example is perpetrated in subtle ways which may not even be apparent to a close family member.
Most domestic violence of this nature makes its way to the surface through family law such as a custody case where behavior is more easily observed. Violence can manifest in ways which are not physical and victims have difficulty explaining the impact the behavior is having.
Having a domestic violence matter dismissed due to a lack of evidence however is no guarantee. More evidence may become available and the charges could be laid again. Each domestic violence case only needs to pass the test of beyond a reasonable doubt
Case Study
Kayla has been charged with domestic violence charges and is due to come before the court in May. She is charged with two counts of physical violence and one count of emotional violence. Kayla’s boyfriend has made statements to police that Kayla punched him to the throat, scratched him across the back and sent him an abusive text message.
Kayla is aware that domestic violence cases carry significant penalties and there are only limited defences. Kayla seeks to rely on self defense because she alleges that her partner hit her first and she was only defending herself when she scratched and punched him. She will however be pleading guilty to the abusive text message.
Kayla’s self defense argument is partially accepted however she is still found guilty of assault. She received a suspended sentence.
Criminal Justice System
Domestic Violence Trial
If you have been charged with a domestic violence offence and have chosen to plead not guilty then your matter will proceed to trial. A trial is a process whereby the evidence is presented and tested to determine guilt. It is an expensive and time-consuming legal process.
A domestic violence trial under criminal law will be heard in the appellate court, local court or supreme court depending on the severity. A trial in the Supreme Court will be subject to a jury determination. It is the role of the prosecution to prove their case beyond a reasonable doubt. Domestic Violence cases heard in the Family Court however are different.
No criminal charges can result from a family court trial alone as it is a completely different jurisdiction. If an individual has been accused of domestic violence then this can have flow on effects for their family law matters. A domestic violence charge can indicate risk to either their spouse, partner or child and the court must determine the best course for the family using the best interests principle.
Procedural Errors
Procedural errors are one of the leading causes of mistrials. A mistrial occurs when the trial or evidence has been compromised in some way and it would be prejudicial to continue. A procedural error may be due to contamination of evidence, property damage or evidence being brought before the court and jury which needs to be disregarded.
A procedural error can cause a miscarriage of justice if for some reason the prosecution is unable to retry the case at a later date. You should seek legal advice before making any procedural arguments to ensure correct interpretation of legislation, policies and processes. Both police, the court and each individual lawyer will have policies and processes which need to be followed.
For example, there may be evidence such as hair, DNA or clothing which was confiscated from the scene at the time police attended. If this evidence is not properly handled appropriately and the chain of custody is broken then the evidence may be considered inadmissible.
Case Study
Alex is subject to domestic violence charges and is in need of a team of domestic violence lawyers. Alex’s wife has accused him of striking her to the chest and then strangling her during an argument. Alex already has 4 prior family violence convictions and if he receives another, his attorney is confident he will serve a jail term.
Alex has no plausible defense regarding the incident. Alex was not under the influence of either drugs or alcohol and there were witnesses to the incident. There is already a restraining order in place between Alex and his wife since their domestic relationship ended a few months ago. Alex also has a pending charge for sexual assault.
Alex’s criminal record indicates to the court that he has no insight into his behavior and he has not completed any rehabilitation work. The prosecution’s evidence is substantial and there is witness testimony as well as his proven track record. Alex’s lawyer advise him to plead guilty to the charges and serve a lesser jail term as a result of cooperation.
FAQs
Where Do I Find Domestic Violence Laws?
Domestic violence laws are found within the criminal code act. Domestic violence can be considered common assault, grievous bodily harm, torture, etc, and there is a considerable amount of crossover. Domestic violence is a criminal law offence which is subject to trial under the criminal justice system.
What Is The Role Of The Prosecution?
The role of the prosecution is to gather and present the evidence against the accused and prove they are guilty of the of the crime which they are charged. It is not the prosecutions role to defend, only to represent the victim. The prosecution will manage and present witnesses which support the victims allegations as well as any other evidence (i.e. video, text messages, etc).
Do All Criminal Offences Have A Maximum Penalty?
Technically, all criminal offences can result in the maximum penalty which is a jail term. Every crime has the potential for its circumstances to warrant a term of imprisonment however it may not be clear in the legislation. Some offences will have a minimum or maximum penalty legislated. For example, murder, has a maximum penalty of life imprisonment and whilst that is an extreme penalty, drug offences, can carry the same depending on the circumstances.
Obtaining Legal Advice?
It is critical to obtain legal advice if you have been accused with or charged with domestic violence. Domestic violence charges will require the assistance of expert domestic violence lawyers who have experience successfully defending clients. Your lawyer or attorney will be able to unpack the allegations or charges to determine affirmative defenses.
What Is The Difference Between Admissible and Inadmissible Evidence?
Admissible evidence refers to information which is able to be brought before the court. Inadmissible evidence refers to evidence which cannot be presented to the court due to it being compromised, improperly obtained or has a lack of probative value. For example, an illegal confession would not be considered admissible by the court because the correct processes have not been followed. It could result in either a possible defense for the defendant or an appeal ground. Inappropriate information being shared with the court can also result in a mistrial.
Case Study
Jack requires the assistance of a lawyer following his arrest by police for domestic violence. He is accused of hitting his girlfriend to the face and chest and then stomping on her hand and breaking two of her fingers. He denies the allegations and is unsure why they have been made. He says that he and his girlfriend had an argument and he left the property to cool off. He was later picked up by police.
Jack has not been subject to any prior domestic violence charge and he has never previously been accused of domestic violence. He has been given a court date for next month and wants to plead not guilty. He says that he and his girlfriend have ended their domestic relationship and he has no intention of resuming it. He seeks to fight the domestic violence charge.
Jack’s matters progresses to trial and all violence charges are tested. His lawyer is able to successfully defend the charges and he is found not guilty. His ex-girlfriend was then charged with making a false statement to police. Her court date will be in the following month.
Jack is wishing to pursue a victims of crime payout due to the emotional distress he suffered as a result of the allegations and the legal fees he was required to pay to defend himself. He is able to do this on the basis that the court determined Jack was not present at the property at the time his then girlfriend became injured.
In a nutshell…
Domestic violence is a serious criminal offence as it refers collectively to the physical, mental, emotional, psychological, sexual or financial harm to another person. Physical harm is often misinterpreted as being the only form of violence when in fact it is much broader. In order to prove domestic violence however, there often needs to be a level of evidence which is difficult to obtain. Depending on the circumstances, there may not be any evidence for police or prosecution to rely on which is why so much domestic violence remains unreported.
A defendant facing criminal charges has a right to defend themselves against the allegations and dispute any evidence brought against them. Their defense can range from a dispute of facts, false accusations, self-defense, or influences such as drugs or alcohol. When police gather evidence they look to obtain an in depth understanding of the domestic relationship from family members or friends who may be able to assist and be potential witnesses.
No matter the charge, legal advice accessed early is always best and you will need to engage an experienced domestic violence lawyer if you have been accused or charged with a domestic violence criminal offence. Jameson Law have a team of expert, experienced lawyers ready and willing to help you in all areas of law.
