Domestic Violence Charges

On 6 March 2024, the Queensland Parliament passed the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 [the Act]. Otherwise known as Hannah’s Law, the legislation aims to address the serious and ongoing rise of domestic violence offences. Particularly, the new law criminalises coercive control in Queensland with penalties of up to 14 years imprisonment. 

What is Coercive Control?

Coercive control is a form of domestic violence characterised by a consistent pattern of behaviour that gradually strips a person of their autonomy and independence. This behaviour aims to create an environment where the victim lives in perpetual fear, isolation, intimidation, and humiliation.

Affirmative Consent

A significant aspect of the Act is its emphasis on affirmative consent in sexual assault cases. The legislation aims to clarify the meaning of consent, underscoring the necessity for active, ongoing, and freely given consent.

The Act stipulates that the prosecution must prove both that the complainant did not consent to the sexual activity and that the accused did not reasonably believe the complainant was consenting. This adjustment shifts the burden of proof, placing more responsibility on the accused to ensure that consent is obtained and maintained throughout the encounter.

Under the new laws, consent is defined as a “free and voluntary agreement.” Crucially, a person does not consent if they do not “say or do anything to communicate consent.” This affirmative consent model requires that agreement to each sexual act must be actively communicated. Both parties must verbally or physically indicate their willingness to proceed and continuously ensure mutual consent.

The legislation also tightens the use of the “mistake of fact” defence in rape and sexual assault cases. Previously, defendants could argue they believed the other person consented based on irrelevant factors, such as clothing or lack of resistance. Now, a belief in consent is only deemed reasonable if the accused took active steps to verify their partner’s consent.

These provisions aim to establish clearer guidelines and raise the standard for lawful consent, thereby offering better protection for victims of sexual assault and ensuring perpetrators are held accountable.

What to Do When Charged with Coercive Control

Navigating the complexities of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 can be daunting. It is highly advisable to consult with an experienced criminal defence lawyer such as ours to help you understand and prepare for every legal procedure in your defence.

A person charged with coercive control can mount a defence by demonstrating that their conduct was reasonable within the context of the entire relationship. This defence obliges the defendant to show that their actions, when viewed in the context of the relationship as a whole, were reasonable. This means considering the broader dynamics and nature of the relationship, rather than focusing on individual acts in isolation.

Therefore, the defendant must provide evidence that supports the reasonableness of their behaviour throughout the relationship. The court will consider various factors, such as the intentions behind the actions, the nature of the interactions, and the overall circumstances of the relationship. It is important to note that this defence does not apply if the defendant believed any single act of domestic violence was reasonable when viewed in isolation; instead, the entire pattern of behaviour must be considered reasonable.

This defence shifts the burden of proof to the defendant, who must convince the court or jury that their conduct was justifiable given the relationship’s context. The court will evaluate all relevant evidence, including communication records, witness testimonies, and expert opinions, to determine whether the behaviour was indeed reasonable​

Implications and Challenges

The Act 2024 significantly reshapes the legal framework in Queensland. It advances the recognition of the complex and often subtle nature of domestic violence, especially in cases involving coercive control.

However, implementing these new laws poses several challenges. One primary issue is the difficulty in proving coercive control in court, as it typically involves a pattern of behaviour that might not be easily documented or witnessed by third parties. This can make it hard for the prosecution to provide concrete evidence, complicating the legal process.

Additionally, there are concerns about the potential for misuse or overuse of the coercive control offence. There is a risk that behaviours not rising to the level of criminal conduct could be unfairly prosecuted. To mitigate these risks, comprehensive training for law enforcement and the judiciary on recognizing and responding to coercive control is essential. This training will help ensure the laws are applied fairly and effectively.

Ramifications for the Defence

• Increased Burden of Proof: Defendants will need to prepare for the possibility that behaviours previously not considered criminal could now be scrutinised under the new definitions. They may need to provide evidence or testimony to counter claims of coercive control, which can be challenging given the often private and subtle nature of such behaviours.
• Documentation and Evidence: The defence will likely need to focus on the context and intention behind the behaviours in question. Gathering documentation, witness testimonies, and expert opinions will be crucial in demonstrating that the actions were reasonable and not intended to coerce or control.
• Legal Strategy: Defence lawyers will need to develop new strategies to address these charges. This could involve detailed cross-examinations of the complainant’s claims, the strategic use of expert testimony, and presenting evidence of the defendant’s perspective and context.

Conclusion

The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 aims to protect victims of domestic violence more effectively. However, there are some concerns about its misuse and overuse. Successfully defending against coercive control charges under the new legislation demands a nuanced and evidence-based strategy that effectively challenges the prosecution’s narrative and provides a compelling alternative explanation for the defendant’s behaviour. 

Contact us

Navigating Hannah’s Law whilst being charged with coercive control can be challenging. Seeking the guidance of experienced Criminal Defence Lawyers such as ours is crucial to presenting your case in the most effective manner possible. Contact one of our expert team at Hannay Lawyers today if you have any questions or concerns about coercive control charges. 

 

Between 1 May 2018 and 1 May 2019, 11 people in Queensland died due to domestic violence, while a 2017 report from the Australian Institute of Criminology found that on average, one woman is murdered every week by a current or former partner.

For many and varied reasons, domestic violence has become a source of great concern in Australia. The statistics tell a sad and harrowing tale of the harm caused by family domestic violence, in particular to women and children but also to men. In 2017, for example, the Australian Bureau of Statistics found that nearly 40% of women experienced violence by their partner even after separation.

One way the family courts try to deal with this chronic problem is through domestic violence orders (DVOs), designed to prevent threats and/or acts of domestic violence by one partner against another. The order imposes certain rules on the ‘respondent’ – the person responsible for the threats or acts of violence – to keep others safe. Breaking these rdules constitutes an illegal act.

Below we’ll outline some of the most common forms of DVO, including how they are applied for and how they work once implemented. If anything in this article raises a question or concern for you, you should arrange a consultation with family law specialists Hannay Lawyers as soon as you can to help you understand the implications of a DVO.

Types of DVOs

DVOs comprise either a protection order or a temporary protection order.

Protection orders are made by a court to last up to five years in situations where domestic family violence has occurred, though they can be made for shorter periods. A temporary protection order is generally made in urgent situations where one partner in a relationship is, or feels they are, in danger. It’s designed to provide protection for those in danger (known in the order as ‘the aggrieved’) until the time an application for a full protection order can be made.

Applying for a DVO

If you need a protection or temporary protection order made against someone, you can either apply yourself through the online forms or in-person at a Magistrate’s Court, or have a police officer, lawyer, friend or family member apply on your behalf. The form must be accompanied by a statutory declaration witnessed by a Justice of the Peace or Commissioner for Declarations.

If granted the basic conditions of a protection order will stop someone from:

• approaching the aggrieved at home or work;
• staying in a home they both currently share or previously shared, even if the house is owned or rented in the respondent’s name;
• approaching relatives or friends (if named in the order);
• going to a child’s school or day care centre.

Additional conditions can be nominated by the aggrieved in an application to the court for a protection order.

In situations where you feel you are in immediate danger from an ex-partner or family member, you should immediately contact police. The police investigate incidences of domestic violence under the Domestic Violence (Family Protection) Act 2012. Where they believe domestic violence has occurred, the police can issue a police protection notice to the respondent which requires them to be of good behaviour, not commit further acts of domestic violence, and not contact or come within a certain distance of the aggrieved’s premises for 24 hours.

Police may also take the respondent into custody for up to four hours if they believe a person is in immediate danger. Police can also apply for a temporary protection order on behalf of the aggrieved, and charge the respondent with a criminal offence if the aggrieved has been hurt.

How a DVO works and what happens if one is breached

Once a DVO has been issued, both parties involved receive a copy of the order, as do any other people listed on the order. Whether you’re the aggrieved or the respondent, it’s important to keep this document safe yet accessible, in case it needs to be seen by police.

The issuing of a DVO does not necessarily mean the aggrieved and the respondent will live separately or that they must end their relationship, unless the conditions in the order specify one party must stay away from the other.

Failing to observe the conditions of either a protection or temporary protection order is a criminal offence. If a person protected by such an order observes a breach he or she should immediately report it to the police, who can charge the respondent with breaching the order.

Penalties if found guilty of breaching a DVO can be up to three years imprisonment for an initial breach and up to five years imprisonment if there is a second breach within five years.

It should be noted that the imposition of a DVO is a civil court order, meaning the order itself does not appear on the respondent’s criminal history. It is the breach of the order which is a criminal offence.

Additionally, where a respondent has a weapons licence, their licence will be suspended or cancelled, and they can’t hold another licence for up to five years, if they are the subject of a DVO.

A DVO can also be made even if there is already another family law order in place, such as one relating to the living arrangements of children. The court will consider all orders made, including whether there are proceedings currently before a court, before making a DVO order.

In many cases where there is a lot of acrimony and high emotion, a respondent will wish to also apply for a DVO against the aggrieved party (known as a cross application). If known to the court, it’s possible for the court to hear both DVO applications together.

Seek the guidance of experts

At Hannay Lawyers we have many years’ experience dealing with the difficulties involved in family law matters such as DVOs. For someone to reach the stage of applying for a DVO usually suggests that relations between the parties have reached a crisis point.

In such cases you need the clear-headed guidance of expert lawyers who can help clarify the key issues involved in DVOs, whether you’re the aggrieved party or the respondent.

We will help you understand your rights and responsibilities, and vigorously represent your interests to get the best possible result for you in difficult circumstances. Call us Brisbane criminal lawyers today for a free initial consultation on (07) 3063 9799 or email us at info@hannaylawyers.com.au.