By Sonia Hickey and Ugur Nedim
Domestic violence has reached epidemic levels in Australia.
The figures show that on average, one person is killed every week at the hands of their current or former partner. Shelters, crisis services, and frontline community legal centres are stretched to the limit.
The Prime Minister has called the problem a ‘National Disgrace‘, and governments at federal and state levels have committed extra funding to address the issue.
But there’s another side of the coin – a side that’s rarely talked about.
Just as there are many genuine cases of domestic violence every day, there are also people who seek to abuse the system by wrongly accusing partners for their own purposes.
False allegations of domestic violence can be made in the heat of the moment – in anger, and the accuser may soon regret the complaint, admit it was fabricated and seek to have the AVO application and/or the assault charges withdrawn.
Where police have brought an application on behalf of a ‘PINOP’ (person in need of protection), they will often refuse to withdraw it despite the admission.
Other false applications are made in an attempt to obtain revenge against a partner for a perceived misdeeds, even after an unwanted ‘break up’.
Sadly, false complaints are even made in an attempt to sway family law proceedings or bolster civil claims.
Apprehended Violence Orders
AVOs are intended to protect persons who are genuinely in need of protection from violence, intimidation, harassment or other forms of interference.
Provisional and interim AVOs can be implemented quickly and with relative ease, without the need to ‘prove’ anything.
Police have even been given the power to issue ‘on the spot’ AVOs in certain circumstances, without having to obtain the approval of a magistrate.
And once an application is made, it can take several months for the actual AVO hearing to occur.
The process can be stressful and expensive for the defendant, who may decide to ‘consent’ to a final AVO ‘without admissions’ to get the whole thing over and done with; despite their innocence.
And while an AVO is not a criminal record, it can have significant implications for the future – making it harder to obtain, or even prohibiting defendants from obtaining or retaining, a range of licences. AVOs can thereby limit a person’s employment options, or even cause them to lose their job, not to mention adversely affect their reputation.
The other side of the story…
Criminal defence lawyers frequently encounter situations where there is little or no evidence to support an allegation of domestic violence, but police nevertheless make an AVO application and/or press charges, and continue on with a prosecution.
There are cases where significant and sustained assaults are alleged but there are no marks or other injuries, where evidence at an incident scene is completely inconsistent with the complaint, where the complainant’s multiple statements are so inconsistent they are irreconcilable, and even cases where police possess CCTV footage that exonerates the defendant but make excuses to delay the service of that crucial evidence.
In many cases, police can take several months to withdraw the AVO and/or the criminal charges, and may even let cases run all the way to a defended hearing – causing unjust and unnecessary stress and expense to the innocent defendant.
In such cases, a magistrate is ultimately likely to dismiss the AVO and the charges, and even order police to pay the defendant’s legal costs (although it can be harder to get costs in domestic AVO cases), but this may do little to deter police from acting in the same manner again – after all, the taxpayer foots the bill for costs orders against police, not the offending police officer. In many cases, the emotional and financial damage to the innocent defendant has already been done.
In one of our recent cases, a woman alleged that she had been assaulted by her boyfriend outside a hotel in Newtown.
Police made an application for an AVO on behalf of the woman and pressed assault charges. They quickly obtained CCTV footage from outside the hotel, but were reluctant to serve it despite court orders and a subpoena.
When the footage was ultimately served, it clearly showed that the woman was the aggressor, that the defendant was trying to calm her down, and it was her that was hitting her boyfriend – not the other way around.
Despite being in possession of the footage early on, police took months to withdraw the AVO application and the charges – and not before the defendant had been made a social pariah and lost his job, and reputation when his partner defamed him to his friends and colleagues.
The problem is that vindictive complaints can put someone through personal hell, clog up the courts and can even make it harder for genuine victims.
Any costs order in favour of the defendant and civil award for damages is little recompense for the damage inflicted – and police will rarely prosecute a domestic violence complainant over a false complaint.
False complaints are a crime
That said, there are a number of laws which make it a criminal offence to make a false complaint to police.
One of these laws is section 314 of the Crimes Act 1900 (NSW)(‘the Act’), which prescribes a maximum penalty of seven years’ imprisonment for anyone who makes an accusation with the intention that another person be subjected to an investigation, while knowing that the other person is innocent.
For someone to be found guilty, the prosecution must prove that:
- the accusation was in fact false,
- the accusation was deliberately made with the intention of having another person investigated, and
- The person who made the accusation knew the other person was innocent.
There is also the offence of attempting to pervert the course of justice under section 319 of the Act which carries a maximum penalty of 14 year imprisonment, perjury under section 327 which carries up to 10 years; and perjury with intent to procure a conviction or acquittal under section 328 which comes with up to 14 years – but, again, it can be an uphill battle to convince police or the DPP to bring criminal charges in the context of an alleged domestic assault.