Apprehended Domestic Violence Orders (ADVO)
By National criminal Lawyers
Domestic violence, or DV, is a serious offence that can affects a defendant in serious and unique ways. If you have been charged with a DV offence, you would have probably also been issued with an Apprehended Domestic Violence order (ADVO).
If you have not been charged with a DV offence, the police can make an application to the Court for an ADVO. An ADVO of itself is not a criminal charge unless you breach it in which case you can be charged with breach or contravene an AVO (this offence is a criminal charges).
The purpose of the ADVO is to protect someone (The Person In Need Of Protection or “PINOP”).
THE LAW
The legislation that deals with ADVO’s is the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“The Act”). The Act contained sections in it which assists the Court in determining whether an ADVO should be put in place or not.
The matters that need to be considered by the Court is found in Section 17 of The Act.
Ultimately the question for the Court, in assessing whether to grant or refuse an ADVO, is found in Section 19. Put simply, it is where , on a balance of probabilities, The PINOP has demonstrated that he/she has reasonable grounds to fear and in fact fears.
DIFFERENT TERMS ASSOCIATED IN THE ADVO
A person who is experiencing domestic violence (‘victim’ or ‘PINOP”) may apply to the Local Court for an apprehended domestic violence order (‘ADVO’). An ADVO can protect a person by ordering the person against whom the ADVO is made (‘defendant’) not to commit further acts of domestic violence.
If the ADVO is granted by the Court, conditions will usually accompany it. The conditions are either considered mandatory condition orders or additional conditions orders.
Mandatory AVO orders state that you must not:
• Assault or threaten the protected person or any other person having a domestic relationship with the protected person
• Stalk, harass or intimidate the protected person or any other person having a domestic relationship with the protected person intentionally
• Recklessly destroy or damage any property that belongs to or is in the possession of the protected person or any other person having a domestic relationship with the protected person
Additional Orders
The court or police may make several additional orders. These may be varied, or other orders may be made. A court will only make the orders that are required in the circumstances.
Orders about contact
• You must not approach the protected person or contact them in any way, unless the contact is through a lawyer.
• You must not approach: the school or any other place the protected person might go to for study, any place they might go to for childcare, or any other place listed
• You must not approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs.
• You must not try to find the protected person except as ordered by a court.
Orders about family law and parenting
• You must not approach the protected person or contact them in any way, unless the contact is:
• A) through a lawyer, or
• B) to attend accredited or court-approved counselling, mediation and/or conciliation, or
• C) as ordered by this or another court about contact with child/ren, or
• D) as agreed in writing between you and the parent(s) about contact with child/ren
Or
• E) as agreed in writing between you and the parent(s) and the person with parental responsibility for the child/ren about contact with the child/ren.
Orders about where you cannot go
• You must not live at: the same address as the protected person, or any place listed.
• You must not go into: any place where the protected person lives, or any place where they work, or any place listed.
• You must not go within certain amount of metres of: any place where the protected person lives, or any place where they work, or any place listed
Orders about weapons
• You must not possess any firearms or prohibited weapons.
THE EFFECTS OF AN ADVO
The effects of having an ADVO is that you are normally not able to contact your partner and/or children. Further, you may be removed from your house and if you breach it you may find yourself remanded in custody. The consequences for breaching conditions of an ADVO are very serious and can often include bail being refused.
Further effects may include firearms licence, security licence, ability to work with children and immigration problems.
VARYING OR REVOKING ADVOS
An application to extend (lengthen), reduce (shorten), vary (change) or revoke (cancel) an Interim or Final AVO can be made by an interested party. The application can be made in any local court in NSW. The application does not need to be filed with the same court that made the order. An interested party includes the protected person, guardian of a protected person or the defendant.
REDUCING THE LENGTH OF FINAL ADVOS
If you are the defendant in an AVO and the AVO still has some time before it expires, you may believe that the protected person no longer needs the AVO because of a change in circumstances. If that is the case, you can apply to the court to reduce the length of the AVO.
To apply to reduce the length of the AVO, you will need to complete an ‘Application to Vary or Revoke Apprehended Violence Order’ form. The form is not available online. You will need to visit your local court and ask the registry staff to help you fill out and file the form. The registry staff will give you a date to come back to court for mention when the magistrate will consider the application.
COSTS IN APPREHENDED VIOLENCE ORDER CASES
The court can make an order that one party pay the legal costs of the other party in an Apprehended Violence Order (AVO) case.
Legal costs include lawyer’s fees and expenses such as conduct money for witnesses. Legal costs do not include lost wages.
DEFENDING ADVO’S
National Criminal Lawyers have successful defended thousands of ADVO’s where it was found that the PINOP has exaggerated an allegation of domestic violence. Our Principal Michael Moussa consistently cross examines complainants on a daily basis and tests their credibility resulting in times where they were caught out and have admitted they were lying in Court, resulting in the ADVO being dismissed. He has also been successful in being awarded costs for his clients in some circumstances.
If you defend the ADVO the court will require the police or protected person to file statements to identify what they say occurred and why they need the ADVO. The Defence team will then have respond back with statements. The court will then make orders for statements to be filed, then list the case for a further mention, before listing it for a hearing.
EVIDENCE IN DOMESTIC VIOLENCE HEARINGS
Domestic violence, or DV, is a serious charge that can affect an accused person in unique and serious ways. If you have been charged with a DV offence, you would have probably also been issued with an Apprehended Domestic Violence order (ADVO). Furthermore, the evidence given against you in Court is likely to be in the form of what is known as a Domestic Violence Evidence in Chief (DVEC).
WHAT IS A DVEC?
A DVEC is a video or audio recorded statement, taken from a domestic violence ‘complainant’ (the alleged victim of a domestic violence offence). The video or audio is usually taken as soon as practicable after the alleged offence. The DVEC once taken can then be admitted as all or part of the complainant’s evidence in chief during a defended hearing and/or for any associated Apprehended Domestic Violence application. If there is a DVEC admitted there will be no need for written statements to be taken from complainant/s.
DVECS AND THE ISSUES FOR THE DEFENDANT
From a Defence Lawyer perspective there are many detrimental aspects for defendants with respect to when DVECs are used. Some of those experienced by us at National Criminal Lawyers are as follows;
1. The fact that the video is made immediately or soon after an alleged criminal act means the police tend to film not only the alleged victim and their video statement, but also often pan out to the alleged crime scene, take video of any injuries (before medical attention is provided or any injuries are cleaned) and they also capture other elements not usually captured by the traditional taking of a written statement;
2. The police tend to use leading questions when taking the video or audio statement and this affects the integrity of the information elicited from the person giving the DVEC;
3. Where a DVEC is used there is no longer any opportunity to cross-examine the complainant on any inconsistencies made between a written statement and the evidence in chief given in court. This may negatively impact upon a defendant’s right to a fair trial;
4. The emotional impact of a recorded statement is captured in a much more powerful way than the traditional way of giving evidence;
5. Police tend to be very tunnel visioned during the taking of a DVEC. They tend only to be interested in one side of the story and don’t explore such things as any toxic relationships, issues of provocation, issues of self-defence and/or any mistruths or things said/done in the heat of the moment; and/or
6. Finally, once a video statement is recorded the police tend to continue with a prosecution even if the complainant later wishes to retract or clarify.
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) V AL-ZUHAIRI [2018] NSWCCA 151
In yet another blow to the way DVECs are dealt with in DV matters for defendants there is now new case law from the Court of Criminal Appeal (handed down on 27 July 2018). This case relaxes even more the way DVECs can be admitted into evidence.
FACTS OF THE CASE
Muneer Jasib Al-Zuhairi was found guilty in the Local Court to have assaulted the brother of his ex-partner. In Court the police prosecutor played the DVEC but only Marked it For Identification (MFI). At no stage was the DVEC formally admitted it into evidence as an exhibit. In addition, the DVEC was not recorded on the transcript of the Local Court record. Mr Al-Zuhairi after conviction appealed to the District Court. The District Court Judge found that the recorded statement was required to be tendered as an exhibit. The Director of Public Prosecutions (DPP) then appealed the Judges decision to the higher Court (The Court of Criminal Appeal).
THE COURT OF CRIMINAL APPEALS DECISION
The Court of Criminal Appeal held that the evidence given via the recorded statement was “evidence given the original Local Court proceedings” for the purposes of s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) and should have been considered by the District Court Judge. The Court of Criminal Appeal then sent the matter back to the District Court for re-hearing.
SUMMARY
The case of Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151 basically ruled that recorded statements given by complainants in domestic violence offences can be considered as evidence as if it were given in person even where the recorded statement was not transcribed into the Local Court transcript or admitted formally as an exhibit. This is yet again another erosion of the way DVECs can be used as evidence against an accused.
WHY NATIONAL CRIMINAL LAWYERS?
If you are charged with a domestic violence offence, have an ADVO, or are charged with contravening an ADVO, it is essential that you receive the best legal advice. The defence team at National Criminal Lawyers have successfully defended thousands of ADVO’s and criminal charges that are DV related.
Our Team are excellent advocates in Court who have had considerable experience in dealing with domestic violence offences and ADVOs and are experts in dealing with DVECs in Court.
If this situation exists for you we can give you the right direction at a very difficult time. Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.