Evidence of Domestic Relationships and Domestic Violence – Impact on criminal proceedings
The Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 introduced provisions to the Evidence Act 1977 which address the admissibility of domestic violence history and a history of domestic violence relationships. As a result, from October 2023, domestic violence history becomes relevant to criminal proceedings.
The new provisions of the Evidence Act 1977 are designed to ensure fairness to the defendant and any other person in giving evidence about matters related to domestic violence; and ensure that the jury do not apply confirmation bias reasoning to the treatment of domestic violence. As we know, there is no typical situation that arises in a case involving domestic violence. Every person’s response to domestic violence is different.
In this article, our legal director, Emma Higgins, explores the consequences of this for criminal trial proceedings and the considerations you need to have in mind when you approach a criminal proceeding or domestic violence proceeding.
Evidence of Domestic Relationships and Domestic Violence
Section 103T of the Evidence Act 1977 applies in relation to a trial by jury in a criminal proceeding where domestic violence is an issue. There are a variety of ways that domestic violence may be an issue in the proceeding and importantly, the defence may at any time during the trial, ask the Judge to direct the jury about domestic violence generally by informing the jury about relevant matters. In relation to the Judge, however, the Evidence Act 1977 makes clear that the Judge may on their own initiative and in the interests of justice, inform the jury about the issues of domestic violence in the particular proceeding.
Section 103U of the Evidence Act makes plain that in relation to a criminal proceeding where there is a trial by jury and self-defence is raised in response to domestic violence, the defence may at any time ask the judge to direct the jury about self-defence in response to domestic violence and inform the Jury about relevant matters as set out in section 103ZA which includes:
- self-defence is, or is likely to be, an issue in the proceeding; and
- as a matter of law, evidence of domestic violence may be relevant to determining whether the defendant acted in self-defence; and
- evidence in the trial is likely to include evidence of domestic violence committed by the victim against the defendant or another person whom the defendant was defending.
The directions also take into consideration the ways that experiences of domestic violence in the past may impact the behaviour of the subject of the criminal proceeding.
The reason that these directions have been introduced to the Queensland evidence act 1977 is because the Domestic Violence Taskforce found that many members of the community do not understand how the dynamics of Domestic and Family Violence may impact on the behaviour of victims of Domestic and Family Violence, such as why a victim of Domestic and Family Violence may remain in an abusive relationship. The legislation provides the Court with a discretion to give jury directions that address misconceptions and stereotypes about domestic violence.
In Kritskikh v Director of Public Prosecutions [2022] WASC 130, Hall J said of the provisions in Western Australia, which are similar in nature:
“The evident purpose of these provisions is to ensure that common misconceptions about the way in which victims of family violence may behave, for example that they will promptly report family violence to the police or will not remain with the perpetrator of violence, are dispelled and not taken into account in the reasoning process [of fact finders]”.
Why Directions are important
Trial directions in a criminal proceeding are important for the jury to understand the law they are required to apply when they deliberate. It is important to place evidence in its proper context and to allow the jury to understand the ways that they are lawfully able to reason about the evidence.
Because the experience of domestic violence is different for every person, it is important for the Judge to give directions about the experience of domestic violence and explain why the experience of one person may be different to another. Section 103Z provides the content of a general direction about domestic violence and allows the Judge to inform the jury that domestic violence:
“(a) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse, or financial abuse; and
(b) may amount to violence against a person even though it is immediately directed at another person; and
(c) may consist of a single act; and
(d) may consist of separate acts that form part of a pattern of behaviour that can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial.”
If relevant, the judge can also inform the Jury that experience shows that:
“(a) people may react differently to domestic violence and there is no typical response to domestic violence; and
(b) it is not uncommon for a person who has been subjected to domestic violence to stay with an abusive partner after the domestic violence, or to leave and then return to the partner; and
(c) it is not uncommon for a person who has been subjected to domestic violence not to report domestic violence to police or seek assistance to stop domestic violence; and
(d) decisions made by a person subjected to domestic violence about how to address, respond to or avoid domestic violence may be influenced by a variety of factors; and
(e) it is not uncommon for a decision to leave an intimate partner who is abusive, or to seek assistance, to increase apprehension about, or the actual risk of, harm.”
There are other case specific directions which may be given in response to particular experiences of domestic violence.
Considerations for parties
A defendant in a criminal proceeding who has experienced or been the subject of domestic violence proceedings or allegations may face particular prejudices or pre-conceived ideas about how that person ought to respond to that experience of a domestic violence relationship. The directions provided to the jury by the judge are designed to ensure fairness in the proceeding and undo some of those potential myths about the reactions of individuals in those domestic violence circumstances.
It is important that if you are charged with a criminal offence related to a domestic violence relationship, you understand the ways in which your alleged behaviour in the past might impact your criminal proceedings. Whether or not particular evidence is admissible against you is a matter which may change how your trial strategy develops. If evidence of previous domestic violence is led against you, it can be prejudicial to the proceedings and it is important that consideration be given to the admissibility of that evidence and if admissible, the use to be made of it by the jury.
If you require strategic advice about how to approach your criminal defence from specialists in criminal law, call Robertson O’Gorman Solicitors and speak with our accredited specialists today.
This article was written by Emma Higgins, legal director at Robertson O’Gorman Solicitors. Emma is a QLS accredited specialist in criminal law. She holds a Bachelor of Laws (Honours) and a Bachelor of Business (Economics) from the Queensland University of Technology. As a solicitor admitted in Queensland, she has appeared as a solicitor advocate at all levels of the Queensland Court process. She has a special interest in appellate work, having been involved in appeals to the High Court of Australia.