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Defending Against Domestic Violence Charges

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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

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.

FAQs

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.

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).

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.

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.

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.

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Domestic Violence Case Defences

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. Case Study John was accused of assault during a tense situation with his partner. A meticulous investigation uncovered a history of aggression from the alleged victim and establishing John’s legitimate fear for his safety. In court, a robust case was presented, emphasising that John’s actions were a reasonable response to the imminent threat posed by his partner. Recognizing the compelling evidence supporting self-defense, the court dismissed the domestic violence charges, safeguarding John’s reputation and rights. This case exemplifies the commitment to thorough defence strategies, ensuring justice for individuals, regardless of gender, facing unwarranted accusations. If you’re grappling with similar challenges, trust Jameson Law to staunchly advocate for your rights and deploy effective legal defences, including self-defence. 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

Criminal Law and Domestic Violence

Domestic Violence offences form a large aspect of criminal law. Domestic violence is unfortunately a common situation in Australia and the statistics are only getting worse within both society and aboriginal communities. Those who experience domestic violence or personal violence can have lasting scars both physically and mentally which take years to heal. Domestic violence and family violence has become a leader around the world in causes of death and victims feel that their fear is not being heard. If you have any concerns about offences rising from domestic and family violence or personal violence then contact Jameson Law today for expert assistance. A domestic violence offence is a serious matter and the sooner advice is accessed the better. What Is Domestic Violence? Domestic violence, or family violence is violence which occurs between domestic partner or people involved in an intimate relationship. In certain cases this will extend to immediate family members such as children, grandparents, etc. Offences are not necessarily just physical as they can extend to emotional, psychological, verbal and sexual. Criminal offences of this nature may extend to other areas of criminal law and an individual can be charged with a domestic violence offence as well as assault, etc. Technically, this means an individual can be charged or penalized twice for the same offence. Criminal offences involving violence can carry significant penalties, including a term of imprisonment but they can have wide reaching social implications. Anyone charges/convicted of a criminal offence may have difficulty obtaining a working with children or vulnerable persons card and being able to engage with schools or sporting events involving children. It will also prevent certain job applications or opportunities. It is a situation that will follow you for life so each and every actions needs to be carefully considered. Speak to a lawyer today Using or being in possession of a speargun in a public place without a reasonable excuse is treated just as seriously as if it were a regular firearm. An example of a reasonable excuse is carrying a speargun for the purposes of spearfishing. If you have been charged with one of these offences, contact our office for a free initial consultation. Apprehended Violence Orders An apprehended domestic violence order is an order put in place to protect one party from the other. The orders can be put in place by the police or by the court and usually run for a period of 12 months. In exceptional circumstances, the orders can run for longer periods but the standard is 12 months. After that period, the victim will need to have grounds for the order to be extended in order to keep it in place. An apprehended violence order can be put in place regardless of whether there have been criminal charges laid. The order can have different conditions in place depending on the severity of the offending. The following could be included; A restraint on the offender coming within a certain distance of the victim (this could be 10, 50, 100 meters, etc); A restraint on communication and communication methods; A restraint on verbals abuse, harassment, stalking, etc; A restrain on the offender attending certain residences where the victim may be; A restraint on the offender coming into contact with children as listed within the order; A restraint on any damage to property; There are various other conditions which could be included however they are contingent on the type of violence. The above are the most common conditions you may see. Case Study Casey has been charged with domestic violence offences against her ex husband Michael. Casey and Michael have been separated for 4 years but they have a 10 year old son together which means they have regular contact. Michael has a new partner who he plans to marry and this has caused some conflict between Michael and Casey. Michael’s new partner, Melissa has caused some issues with Casey and she is concerned that she will be a bad influence on him. Melissa recently attended changeover with Michael and the parties got into an argument. Casey grabbed Michael’s arm and tried to pull him out of the car so they could speak in private. She then struck him to the face. Casey has been issued an apprehended domestic violence order protecting Michael. She is not to come within 50 meters of him except if a family court order allows. Domestic Relationships A domestic relationship refers to a relationship between intimate partners. Domestic and family violence is violence which occurs between partners in either a physical, emotional, mental financial or sexual manner. This type of personal violence is extremely serious as it is more than just a random act of violence. It is violence between people with a level of familiarity and trust. A domestic relationship includes people such as parents, siblings and close family at times and the criminal justice system considers each victims safety to be paramount against domestic violence. Restraint Orders Restraining orders are an additional type of protection order that an individual or victim can get against an abuser. Unlike an apprehended domestic violence order, a restraining order does not require a degree of familiarity as a criteria. Restraining orders can be applied for by an individual who has suffered violence as a result of another individual. A restraint order application form needs to be filled out and submitted to the court and then a date will be set for it to be heard. The defendant needs to be served with a copy of the application so that they can respond if they wish. The applicant will then need to attend court and argue why they believe the order needs to be in place. A successful restraining order needs to cover a few separate elements. For one, there must be instance of violence which have already occurred, whether that be physical, mental, emotional or threats of violence made. Secondly, there must be a real and honest belief that an individual would be caused

Partner SC309 & Permanent Partner SC100 After Claims

Partner SC309 and permanent Partner SC100 simultaneously after claims for domestic violence Congratulations to our client who was granted both her temporary Partner sc309 and permanent Partner sc100 simultaneously after her claims for domestic violence were accepted by the Department of Home Affairs. Australian immigration laws allow offshore Partner sc309/100 visa applicants to access the domestic violence provisions. The effect of these laws is that, despite the relationship ceasing due to domestic violence, an applicant for a sc309 or sc100 is still eligible to be granted permanent residency. Our client lodged her Partner visa after her marriage and soon after, she lodged a Visitor sc600 so that she could be with her husband during the processing of her Partner sc309 visa. On the grant of her Visitor visa, our client arrived in Australia. Upon her arrival, our client experienced emotional and physical abuse from both her husband and his family members. She was fortunate enough to have relatives in Australia and in less than a fortnight, she left her husband’s home to live with her relatives. On the day of her departure, she reported the abuse to the local police station. Our office assisted her in both her criminal and immigration matters. We applied for an AVO against her husband and successfully sought an extension of time to compile evidence of domestic violence as required under Australian migration laws. A strong application was lodged for claims of domestic violence with the Department and our client received her decision 3 months later. Within 5 months of arriving in Australia on her Visitor visa, our client was granted permanent residency Applicant for a sc309/100 If you are an applicant for a sc309/100 and your relationship has ceased due to domestic violence, our office has the expertise to help you with both the criminal and immigration aspects of your case.

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