As domestic violence offences continue to decimate families and communities across New South Wales, police are desperately seeking to find solutions which could assist with prevention, particularly in cases where there is an identified repeat offender.
During a recent four-day, coordinated operation across the state, 648 people were arrested and charged with a combined total of 1153 offences including contravening an AVO restriction, stalking or intimidation and for escaping police custody. Some were also charged with weapons offences.
As a result of the very high number of arrests, police are now considering what responses they can use to reduce domestic violence offending.
Issuing Serious Crime Prevention Orders is one such response that is currently being looked into.
What is a Serious Crime Prevention Order?
The provisions relating to Serious Crime Prevention Orders (SCPO's) are contained in the Crimes (Serious Crime Prevention Orders) Act (NSW) (SCPO Act) 2016.
Under the Act, the Police Commissioner, the Director of Public Prosecutions or the NSW Crime Commission can apply to the NSW Supreme Court or District Court for the imposition of an order, which can last for up to 5 years.
Preventing, restricting or disrupting criminal activity
A Serious Crime Prevention Order is an order made by the NSW Supreme Court or NSW District Court against a person to 'prevent, restrict or disrupt' their involvement in serious crime or terrorism offences.
A court can make such an order against a person aged at least 18 years if the following conditions are met:
- The person has been convicted of a serious criminal offence;
- The person has been involved in serious crime related activity for which they have not been convicted;
- There are reasonable grounds to believe the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
What is serious crime related activity?
The full list of offences that qualify as 'serious crime related activity' are contained in section 6 of the Criminal Assets Recovery Act 1990 and include those which are traditionally associated with criminal enterprises, such as drug trafficking, money laundering, extortion, perverting the course of justice, homicide, being a member of a criminal group, sexual slavery, firearm possession and so on.
However, the definition also encompasses offences of violence which carry a maximum penalty of 5 years or more, which includes stalking or intimidation as well as assault occasioning actual bodily harm and more serious assault offences– which are often associated with domestic violence offending.
Undermining the presumption of innocence
Serious Crime Prevention Orders can be made against individuals who have been convicted of a serious offence, but the courts have wide ranging powers to apply them to persons who have been acquitted of such crimes or were initially charged, but had the charges withdrawn, and even those suspected of being engaged in serious criminal activity and haven't been charged.
The courts also have the power to include a wide range of conditions on a person – including restrictions on their finances and assets, their conditions of employment, where they can travel, when they are permitted to leave their homes (curfews), who they can associate with and even their use of technology such as access to the internet.
A controversial proposal
And while using the orders against those suspected of committing domestic violence offences is a controversial proposition, there are some who fee it could help address the epidemic of such violence in our nation.
Police responded to 17 domestic violence homicides last year – more than one person a month was killed as a result of domestic violence.
Time and again, inquest after inquest, we've heard of ' failures' in both police responses and the family law system which have led to unnecessary deaths.
Also last year there were almost 140,000 calls to police for assistance relating to domestic violence and 33,000 individual assaults – we know how significantly these impact our communities and that victims are at risk of escalating violence.
December figures from the Bureau of Crime Statistics and Research (BOCSAR) show the rate of domestic assaults in regional communities in the past 12 months was 30 per cent higher than the statewide average.
There is no disputing these facts, or that serious and urgent reform needs to occur in order to save lives.
However, it is also important to understand that because SCPO's can be placed on a person who has not been charged with any offence, they could inadvertently be placed upon someone wrongfully accused.
In determining whether or not to grant a SCPO, courts can take into consideration hearsay evidence (evidence from a witness about what they heard another person say about facts), which is usually not permitted in courts of law.
Furthermore, we must remember that it is a core tenet of the justice system that all people are entitled to the presumption of innocence until they are proven guilty in a court of law.
It should also be borne in mind the orders were not intended to be used as general tool to in everyday policing.
In fact in the past, they have been rarely used – and were initially intended to curb the activities of suspected terrorists or known members of criminal gangs.
Apprehended Violence Orders
The other matter to bear in mind is that apprehended domestic violence orders (ADVO's) already exist in our state, and applications for these orders can succeed even in the absence of a criminal conviction.
In fact, provisional ADVO's can be issued within hours of receiving a complaint, and the test for making these orders final is determined 'on the balance of probabilities'; in other words, that it is more likely than not that making such an order is warranted in the circumstances.
That is, a 'person in need of protection' does not have to prove beyond a reasonable doubt that their fears are real, and they certainly do not have to establish that a criminal offences was actually committed, for an ADVO to be issued.
So, despite domestic violence being a very real issue across our state and indeed the nation, it is a stretch to argue that undermining the presumption of innocence by using them against suspected or alleged offenders would be a justifiable or even effective move.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.