Law Analysis

How the courts are dealing with domestic violence cases during COVID-19

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Court hearings were delayed due to restrictions brought on by the COVID-19 pandemic (Image via Pixabay)

The court system has been affected by social distancing rules brought on by the pandemic, with many domestic violence victims left in limbo, writes Avinash Singh.

WITH THE PERENNIAL threat of a “second wave” of the coronavirus exploding in NSW at any moment, many people in the community are interested in the way domestic violence cases are being handled by the courts.

During the “first wave” of COVID-19, courts throughout Australia delayed hearing any criminal cases where the accused had pleaded “not guilty”. This included domestic violence cases.

As such, these cases were not finalised for months. In fact, there are cases from 2019 which still have not been finalised. These delays have led to concerns about the strain placed on the justice system.

The initial response

During the embryonic stages of the pandemic, both the Local Court and District Court of NSW were quick to act. The District Court suspended jury trials indefinitely and the Local Court ceased hearing any cases where the defendant had pleaded “not guilty”.

From March to July of 2020, the Chief Magistrate of the Local Court, Graeme Henson, published 14 memorandums advising of various changes to the procedures of the Local Court.

These were initially aimed at reducing the number of persons at courthouses throughout NSW. This meant that support people for accused persons were not allowed into the courthouse.

Further, protected persons in applications for Apprehended Violence Orders (AVOs) were no longer required to attend court on the first mention date.

Generally, the first mention date provides an accused person and an alleged victim in domestic violence proceedings an opportunity to amend the provisions of an AVO. This can be required when police often impose a “no contact” condition between a defendant and a complainant.

If the parties have children together, this would create significant difficulties for the co-parenting of the children as there would be no way to communicate. It could prevent the child from having a meaningful relationship with both parents, something that the Family Law Act 1975 (Cth) encourages.

Apprehended Violence Orders

An AVO is a legally binding order which restrains certain conduct by the defendant. It is governed by the Crimes (Personal and Domestic Violence) Act 2007 (NSW).

In NSW, these orders can be made if on the balance of probabilities:

  1. the alleged victim has reasonable grounds to fear a personal violence offence from you;
  2. the alleged victim fears a personal violence offence from you unless
    a) The alleged victim is under 16 years of age
    b) The alleged victim has a mental impairment
    c) the alleged victim has, in the past, been subject to a personal violence offence from you and the court believes there is a reasonable likelihood of it occurring again; and
  3. it is appropriate to make an AVO in the terms sought.

Often, an AVO will accompany a criminal charge such as common assault. If a person is found guilty of a domestic violence offence, then the court will automatically make an Apprehended Violence Order for the protection of the alleged victim.

Return to normal?

On 1 July 2020, the Chief Magistrate issued Memorandum Number 13. In that document, he announced that the Local Court was to return to normal and begin relisting cases for hearing.

Priority was given to cases where an accused person was in custody and then to part-heard cases and domestic violence cases.

However, the month of October was designated as a month where no defended hearings were to be listed.

The practical effect of this has been that some courthouses have not had an opportunity to list defended hearings until as late as February 2021. Given many of these cases began in 2019, this is a significant period of time. 

What the numbers say

The Local Court deals with approximately 90 per cent of the criminal cases in NSW. In 2018, approximately 340,000 cases were filed with a similar number of cases being finalised.

There are approximately 140 magistrates in NSW as well as some retired magistrates who are used when there is a shortage in a particular area.

Given the period of approximately four months when the Local Court did not hear any defended cases to finality, one may expect that there would be a sharp decrease in the number of cases that are finalised.

However, this must be balanced against the fact that during the pandemic, there was a marked decrease in the number of criminal and traffic cases filed. Factors such as the lockdown and NSW Police not conducting breath tests led to a significant reduction in the number of charges being filed.

So, what’s the solution if there is a “second wave”?

It is abundantly clear that ceasing the finalisation of domestic violence cases is not an appropriate response if a “second wave” eventuates.

The criminal courts throughout the country can take note of the approach of the Family Court of Australia. When faced with the realities of social distancing and associated restrictions, the Family Law jurisdiction moved to conduct hearings by audio-visual link.

Technology was embraced in the form of Microsoft Teams and matters were finalised successfully.

Should there be a further pandemic, the criminal courts would do well to follow the lead of the family courts and use technology to find a solution that works for stakeholders and the community at large.

Avinash Singh is the Principal Lawyer of Astor Legal and is listed by the Law Society as an Accredited Specialist in Criminal Law.

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