By Paul Gregoire and Ugur Nedim
On June 1 2015, NSW became the first Australian jurisdiction to allow pre-recorded videos to be used as evidence in domestic violence cases. The Domestic Violence Evidence-in-Chief (DVEC) reforms allow the evidence in proceedings to be presented in either a video or audio format.
A 2013 NSW Bureau of Crime Statistics and Research (BOCSAR) report suggested that 50 percent of domestic violence incidents go unreported to police. It found the fear of revenge or further violence, along with embarrassment or shame, were major reasons for not reporting such incidents.
The DVEC reforms were designed to reduce the trauma associated with having to recount events in front of the defendant during court proceedings.
The amendments introduced a mechanism similar to that which already allowed children and the cognitively impaired to provide evidence via pre-recorded statements.
Under the DVEC scheme, police officers are able to record video statements at the earliest possible time following an alleged domestic violence incident. This can be done at the scene or at the police station. The officer needs the complainant’s informed consent to make the recording.
Along with aiming to reduce complainant trauma, DVECs are also intended to overcome difficulties in recalling events, illustrate demeanour at the time the incident, reduce the capacity of the defendant to intimidate the complainant, and increase guilty pleas and conviction rates.
But despite initial police claims that domestic violence convictions have dramatically increased due to the pre-recorded statements, a BOCSAR report released last week found that DVEC has had little if any impact on rates of guilty pleas and convictions.
The DVEC reforms
The Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 inserted sections 289C through to 289S into the Criminal Procedure Act (the Act) 1986, which established the rules for the admissibility of pre-recorded evidence in domestic violence cases.
Under section 289I(2), information contained in a DVEC statement is only admissible if the defendant was given a reasonable opportunity to listen to or to view the it prior to proceedings.
That requirement is expanded upon in section 289L, which says that where a defendant is legally represented, the prosecution must serve a copy of the DVEC on their lawyer as soon as practicable after the proceedings are commenced. Where the defendant is unrepresented, section 289M requires a copy of the DVEC to be provided to the defendant, who must also be given an opportunity to view the recording when being questioned or at another arranged time.
However, section 289I(3) says the above service and access requirements can be dispensed with where both parties agree to the DVEC statement being admitted, or where reasonable opportunities were given to view the statement and it would be in the interests of justice to admit it.
Offence of copying DVEC statement
Under section 289P, it is an offence for a person in possession of a recorded statement to make a copy, or permit anyone else to make a copy, or to give possession of the recorded statement to another person, or permit the statement to be published.
This offence carries a maximum penalty of 2 years imprisonment, and/or an $11,000 fine.
A report in the Daily Telegraph in March last year claimed that domestic violence convictions had increased by 40 percent as a result of DVEC evidence.
“Certainly, at this stage there seems to be a dramatic improvement in successes,” then-NSW police assistant commissioner Mick Fuller is reported to have told the tabloid.
At the time, more than 600 video cameras had been rolled out to local area commands across the state, and 2,500 frontline police had received training in recording the videos.
The BOCSAR findings
The comprehensive BOCSAR evaluation of the DVEC reforms, however, found there is no evidence the pre-recorded statements have had a significant impact on defendants pleading guilty or being found guilty, nor have they reduced the time it takes to finalise domestic violence cases.
When applying a specific methodology, the researchers were able to find limited evidence that DVEC statements may have increased the probability of convictions by two percentage points. However, another methodology suggested no change.
“Taken together these results suggest that the introduction of the DVEC reforms has had little discernible impact on court outcomes for domestic violence assaults,” the researchers stated. And they went onto suggest three reasons for these outcomes.
The first was that they had no way of taking into account the quality of the evidence that was collected in DVEC statements. Improvements in conviction rates and guilty pleas may have become more apparent if they were able to evaluate the outcomes achieved by higher quality evidence.
Another reason was that DVEC statements might be taken in matters where the available evidence might not be considered sufficient to proceed to prosecution.
And finally, DVEC statements were designed to make it more likely a complainant would appear in court. However, the fact complainants still need to appear for cross-examination if the defendant pleads not guilty means they are just as likely not to turn up where a DVEC statement exists.
As the researchers point out, rather than risk further traumatising a complainant by insisting they appear in court, police are more likely to present no evidence at the time of a hearing and allow the case to fail.
However, as BOCSAR director Dr Don Weatherburn told the ABC, “One of the other aims of the legislation, which we didn’t look at, was whether it made the experience of victims who do go to court any easier and it may well have achieved that aim.”
The doctor further stated that unless victims of domestic violence are prepared to appear in court, there’s no way DVEC statements “can actually get into the court proceedings.”
In 2012, an estimated 16.9 percent of Australian women aged 18 years or over reported experiencing partner violence since the age of 15.
BOCSAR figures do suggest that the number of individuals found guilty of domestic violence offences in NSW is on the rise. In the year April 2012 to March 2013, 11,134 individuals were found guilty. Over 2014 to 2015, it was 14,070. While in 2016 to 2017, the number was 16,222.
The main aim of the DVEC reforms was “to enhance victim safety and reduce domestic and family violence” in the community. The BOCSAR researchers concluded that “if further enhancements are made to procedural safeguards for victims in criminal proceedings” this aim might still be achieved.