By Yavin Kumar @ Sydney Criminal Defence lawyers
Domestic violence can happen to anyone in any household, and can also occur in many forms and circumstances. In most cases, domestic violence results from an abuse of power or control from one person over another, which can result in horrific patterns involving violence, ongoing abuse, and intimidation which causes the victim to fear for their safety and wellbeing.
Domestic violence does not necessarily have to involve physical abuse – in many instances, psychological, emotional, sexual or financial behaviour can constitute towards an exertion of power and control over the victim.
Over the past decade, New South Wales Police has seen a great increase in the number of people that have reported matters involving domestic and family violence. As a result, the Police, as well as other government, non-government and community agencies, are actively raising awareness in the greater community that this form of abusive behaviour can no longer be seen as a ‘private matter that ought to be kept at home’.
A person who commits an act of domestic violence upon another, regardless of their gender, race, age, sexual orientation, religion, disability, or any other relevant factor, will be charged by Police to have committed a criminal act, and will be liable to be dealt with accordingly by the Criminal Law.
It goes without saying that matters involving domestic and family violence, especially those that involve assaults, can have severely negative impacts on the dynamics of a family, and the relationships that various family members have with one another after the event may have taken place. In the event that a matter is heard before a Court, such action may further impact internal relations between spouses, children, and extended family members.
Once family violence has been disclosed, the victim may need to provide evidence in Court. Naturally, giving evidence during proceedings is seen to be one of the most distressing and intimidating aspects of the legal system, especially for those who have limited or no experience with the law and processes of the Court. In the context of victims of domestic violence, the extent of distress and intimidation that would be felt is simply unimaginable, as the evidence that is given could involve speaking about certain traumatic and personal events in a public environment, and in the presence of the person who has perpetrated the violent act upon the victim. The trauma experienced by a victim in providing evidence to a Court may easily be heightened in the event that there are multiple proceedings in different courts. Such difficulties could also be further heightened for young children, indigenous women, or women from culturally and linguistically diverse backgrounds.
In addition to this, the nature of family violence can be difficult to corroborate and prove. It was noted by the Australian Institute of Family Studies in 2007 (the Moloney Study) that:
“Obtaining corroborative evidence is likely to be very difficult when the violence has occurred over an extended period of time… potential sources of proof may be lost, witnesses (if applicable) may no longer be available, injuries may have faded over time, and the non- physical symptoms of trauma may not be obvious”.
The Courts have showed great concern in that issues relating to family violence may not be raised by victims in cases where there is not strong evidence to do so, because if the offence cannot be proved, it may compromise the credibility of the party. Professor Richard Chisholm (the Chisholm Review) described this as the ‘victim’s dilemma’, noting that:
- The victim may have made a decision not to complain that any family violence had taken place, perhaps due to possible feelings of shame, a belief that the violence may cease in the future, or that the victim states that there has been no family violence, or that the violence was of a trivial nature, in order to protect the offender;
- Because family violence mostly occurs in the household and may not be well documented or witnessed by many others except the victim, the victim may face a challenge in proving that the violence did in fact take place;
- The trauma that has resulted from the family violence could have caused the victim to become anxious, unorganised, depressed, and unfavourable as a witness to prove the prosecution case.
To assist with the issues associated with victims giving evidence in such proceedings, pursuant to the Criminal Procedure Act 1986 (NSW) Part 4B, evidence in chief may be given to a Court in proceedings for a domestic violence offence either wholly or partly in the form of a recorded statement, otherwise referred to as Domestic Violence Evidence in Chief (DVEC). However, a victim who chooses to provide a DVEC statement must then be available in Court for the purposes of cross-examination and re-examination. This is not to say that the victim will have to be in the same Court room as the offender at the same time – certain circumstances allow the victim to provide evidence by way of Audio-Video Link (AVL) from a different room in the Court House, or any other alternative arrangements that the Court and Police may see fit and proper.
It is important to remember that in domestic and family violence matters, the most essential factor that must be considered is the ongoing support of the victim(s) and those that may have witnessed the events unfold. Help is always available, and victims should remember that they are never alone throughout the entire process.
If you or anyone you know has been or is currently a victim of domestic violence, please do not hesitate to contact Life Line on 13 11 14, or visit lifeline.org.au to speak with a support person and get appropriate advice and assistance.
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