In the wake of the death of Hannah Clarke and her three children, the discussion over tougher laws to combat domestic violence was again sparked in the Queensland parliament in February 2020.
It has been 5 years since the Not now, not ever[i] report was published, which resulted in a myriad of legislative changes, including new offences, increased police powers and provisions changing the presumption for bail for serious charges.
While the parliament again drafts legislative change to combat domestic violence, such as the possibility of new offences with respect of controlling and coercive behaviour, the criminal process has in many respects been left behind. Criminal matters concerning a perpetrator defendant and an aggrieved victim involve a more complex degree of variables, which the letter of the law does not capture.
The ‘cycle of violence’ is aptly named for a reason: complainants swing with the pendulum against and for their attacker as they fall in and out of their influence. Highly litigious accused persons who refuse or are unable to afford legal representation clog up the trial process and inflict further harm on their victim in the court room.
The new offences and powers that have emerged over the past few years see the arresting and charging of offenders when the threat they pose to their victim is high, but holding them to account in the long term in our current system is still proving to be daunting. After the initial intervention by police, recidivist offenders without insight into their behaviour often end up drawing out the court process. Complainants must have intense emotional endurance, particularly in cases where they were the only witness, to see the matter through.
Victims of Domestic Violence Giving Evidence
The Not now, not ever[ii] report recommendation no. 133 reads:
The Attorney-General, in consultation with the Chief Magistrate and Chief Judge, implements alternative evidence procedures for victims of domestic and family violence providing evidence in related criminal matters to reduce the trauma of this experience, including legislative amendment and/or procedural changes. Consideration should be given to allowing for admissibility of any video recordings made at the time of initial police intervention.
There are currently a number of options for alternative evidence procedures for victims. It is not uncommon practice for evidence to be taken while a victim is in a remote room appearing in court via a video link. The special witness provisions in the Evidence Act 1977 specifically include victims of domestic violence.
The difficulty lies when a defendant is unrepresented and is able to cross-examine their victim.
There are currently no alternative procedures in the summary jurisdiction, where breaches of domestic violence orders and the most common assault charges against victims of domestic violence are heard, to protect a complainant from cross examination by an unrepresented defendant.
The tail end of the above recommendation also raises the question of the admissibility of body worn footage taken by police upon attending an incident. There are multiple circumstances where this would be of use, yet there has been no legislation enacted that directly allows admissibility. Unlike other criminal offending, domestic violence complainants may still live with their abuser and may refuse to give evidence or even change their story. Not to mention the risk of retaliation, which can create a more dangerous environment for the victim.
In the domestic violence applications jurisdiction, there are significant protections of victims giving evidence, and admissibility of police officers body worn footage has become common place under the broader evidentiary provisions.[iii] I must note that although the criminal jurisdiction might appear to be lagging, it is imperative that any changes to the rules of evidence do not unfairly stack the odds against an accused.
Alternative Evidence Procedures
The Domestic and Family Violence Act 2012 now provides under sections 150 — 151 that, when dealing with an application, the court may make an order that an unrepresented respondent cannot cross-examine the aggrieved. This provision does not extend to criminal proceedings in the Magistrates court.
Sections 21A and 21AAA of the Evidence act 1977 provide for a number of orders to be made to assist special witnesses to give evidence. The complainant can give evidence from a remote room, have a support person, and even obtain an order that the defendant be excluded from the court. The Domestic and Family Violence Act and Evidence Act overlap in many ways bringing a comprehensive list of available options to assist a vulnerable complainant.
The protected witness provisions under sections 21M — 21S of the Evidence Ac 1977 set out in detail a procedure for the court to make an order that the protected witness not be cross-examined by the unrepresented accused. There is also provision for the court to arrange free access to Legal Aid for this purpose, should the order be made.
The difficulty is that the protected witness provisions do not apply to summary trials.[iv]
In trials before Magistrates there is currently no way to reconcile the fact that a defendant is innocent until proven guilty and needs to put his/her case to the complainant, with the need for protecting a victim from further abuse.
Implementing change in this area requires more than an amendment bill. If Magistrates courts were to be given the same powers as the District and Supreme Courts to order a defendant not cross-examine a complainant, the same powers for the order for free legal representation would likewise have to follow. Practically speaking this means more legal aid funding for lawyers to be appointed for that purpose. The sheer volume of matters currently before the Magistrate’s Court that would be affected by this legislative change could potentially open a floodgate of applications for such an order to be made. There would have to be infrastructure and funding put in place to manage the change.
The current legal landscape remains that a person who has been abused and suffering from trauma can be put under oath and made to answer questions put to them by their abuser. It is a horrifying reality.
Admissibility of Video Recordings
Police officers attending an incident will usually activate their body worn camera. This gives a real time footprint of events as they unfold. In addition to capturing the state of play upon arrival, common police practice is to separate the parties and obtain versions of events from each.
Common law principles of res gestae, as well as exceptions to the rule against hearsay in some scenarios, would already allow the admissibility of victim’s statements made to police that had been recorded on body worn camera upon arrival at a scene.[v]
In some instances, what police observe (including what was captured on footage) upon attendance at a domestic violence incident is the tail end of an assault, or indeed direct evidence of a breach of a domestic violence order. The footage would be hypothetically admissible as direct evidence of an offence. The fact remains that once the danger dissipates and the footage is capturing witness monolog of their version of events it becomes prima facie inadmissible from that point.
In the domestic violence application jurisdiction attitudes of some Magistrates are already shifting in alignment with emerging understanding of the way victims of domestic violence are influenced by the perpetrator. In FCA v Commissioner of the Queensland Police Service  QDC 46 Her Honour Judge Kingham (as Her Honour then was) made comment about the Magistrate rejecting sworn evidence of an aggrieved and accepting what she told police. At paragraph 29 Her Honour stated;
On the evidence before him, then, it was open to the learned Magistrate to conclude that what LJK told the police and confirmed as accurate by signing the police record of it on the night was, in fact, what occurred.
Even though the burden of proof in that jurisdiction is on the balance of probabilities, this does open the door to the idea that the statements made to police by complainants at the scene of an incident could bear some weight to establish the truth of the matter in a criminal court.
There are a number of ways footage would be of use in a criminal trial:
- When the victim is too traumatised to give evidence, the statements made could be used much like a 93A statement of a child.[vi]
- When a victim refuses to give evidence either because of fear of retribution or reconciliation with the defendant.
- When the victim changes their story.
If it was legislated that recorded spontaneous statements by complainants made contemporaneously with an incident were admissible this would be consistent with principles of evidence in common law not inconsistent with rules of natural justice. It would not take away from the ability of Magistrates, Judges or Juries to way up all the evidence to decide if a person was guilty or not guilty.
The taking of sworn oral evidence from domestic violence victims in trials against their abuser continues to be an area that presents unique challenges. Regardless, the underlying principles must still maintain the right of the accused to a fair trial. A balance between the rights of both the defendant and victim must be reached, where there is protection for the later without prejudice to the former.
[i] Special Taskforce on Domestic and Family Violence in Queensland (2015), Not Now, Not Ever: Putting an end to domestic and family violence in Queensland, Brisbane Department of Communities, Child Safety and Disability Services, Brisbane.
[iii] Section 145 of the Domestic and Family Violence Act 2012 provides that in a proceeding under that act the court is not bound by the rules of evidence and can inform itself in any way it considers appropriate.
[iv] The Evidence Act 1977 section 21L provides “This division applies only to criminal proceedings, other than summary proceedings under the Justices Act 1886.”
[v] The case of R v. Andrews  AC 281; 1 All ER 513; (1987) 84 Cr App R 382 held that a statement made contemporaneous to the event and in circumstances which there was no opportunity for concoction was admissible as proof of the facts asserted.
[vi] Section 93A of the Evidence Act 1977 provides for the admissibility of a recorded statement of a child witness as their evidence in chief in criminal proceedings.