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21

Domestic Violence

   
21.1 This guideline applies to all criminal proceedings where the offender is or was in an intimate relationship (de facto, married, boyfriend/girlfriend) with the victim of the offence, or the victim’s close relative (eg child). It applies to all offences including sexual assault, assault and property offences.
   
21.2 Prosecutions that involve offences committed in the context of domestic violence require special attention. This is because:
   
  (1) victims are vulnerable to pressure from both the offender and the broader community not to give evidence in court;
  (2) many victims have been subjected to ongoing violent behaviour from the offender prior to reporting an incidence of violence to police;
  (3) offences of this type often include the aggravating factor of a breach of trust; and
  (4) offences of this type are often defended on the basis that the victim is unlikely to appear or will be reluctant to give evidence (for example because of fear, a desire to resume the relationship, family pressures).
   
21.3 Because offending behaviour is often on-going, victim safety is the paramount objective. Offenders should be held accountable and should be successfully prosecuted. To this end, suitable prosecutions may proceed without the evidence of an unwilling victim. When examining a brief, a prosecutor should determine whether there is a circumstantial case based on witnesses (other than the victim) who can prove any or some of the offences charged.
   
21.4 The prosecutor must ensure that delays are minimised bearing in mind that delays in the prosecution of defended cases will invariably advantage an offender and disadvantage a victim.
   
21.5 The prosecutor or WAS should advise the victim of the various rights and protections available under the legislation - Guideline 11: WAS. Vulnerable witness applications pursuant to section 21A Evidence Act should be pursued where applicable. If a court does not have adequate facilities for a victim to give evidence without feeling intimidated, an application should be made for the matter to be transferred to a court where appropriate facilities are provided.
   
21.6 Support from WAS from the commencement of the prosecution is a practical and effective strategy to improve outcomes and to support a (reluctant) victim. WAS must be notified of all such cases - Guideline 11: WAS.
   
21.7 Interpreters should be used where English is not the first language of the victim to conference the victim - Guideline 15: Interpreters.
   
21.8 Cultural difference is not a reason for failing to protect minority ethnic or Indigenous victims of domestic violence - Guideline 20: Aboriginal Customary Law.
   
  Discontinuance
   
21.9 The general rules in relation to public interest and prospect of conviction apply to these prosecutions. Generally where there is a reasonable prospect of conviction, it is in the public interest to continue with a domestic violence related prosecution. The victim’s view or attitude to giving evidence is also a relevant consideration.
   
21.10 Where a victim indicates that she does not wish to give evidence the following should occur:
   
  (1) the prosecutor or WAS should advise the victim of the various rights and protections available under the legislation - Guideline 11: WAS;
  (2) the prosecutor must assess the on-going risk to the victim taking into account factors such as;
     
    (a) the offender’s prior history of violence against this victim or violence against other victims;
    (b) whether or not the victim is in a continuing intimate relationship with the offender;
    (c) whether there is other adverse information about the offender for example previous complaints that did not proceed to prosecution (ascertained through consultation with the officer-in-charge);
    (d) the objective seriousness of the offending behaviour;
    (e) whether there are other safeguards in place for the victim (for example restraining order, or if the victim is a child – supervised visits by offender);
    (f) the strength or otherwise of the prosecution case, in particular whether there is corroboration or independent evidence of the commission of the offence;
    (g) the views of the police officer-in-charge.
     
  (3) the victim should be advised of the availability of orders under the Domestic Violence Act; and
  (4) the victim must be advised about his/her right to use a victim impact statement or victim impact report to communicate his/her attitude on sentence (section 106A(5A) Sentencing Act) and offered assistance with the making of the statement or report if he/she wishes to provide one.
   
21.11 Any decision to compel a victim to give evidence against his/her will requires serious consideration and will be used infrequently.
   
21.12 Any decision to discontinue must be approved in accordance with the requirements set out in Guideline 7: Discontinuing Prosecutions. That is all discontinuations are to be approved by the Director’s Chambers or; if the matter is listed in the Court of Summary Jurisdiction and the officer with carriage is a summary prosecutor, the officer-in-charge of Summary Prosecutions.
   
21.13 When a decision is made to discontinue a prosecution, then
   
  (1) a statement should be obtained from the victim by a police officer indicating that he/she does not wish to proceed and that she has no continuing fears for his/her safety (preferred option); or
  (2) a statement to this effect should be obtained by the prosecutor directly from the victim.
   
21.14 Where a victim refuses to supply a statement, detailed notes of conversations with the victim must be retained on the file.