Video Evidence in Domestic Violence Cases

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Domestic violence victim

A controversial new law has recently come into force allowing complainants in domestic violence cases to make recorded audio-visual statements, rather than written statements.

The new laws allow for video footage obtained by police following an alleged domestic violence incident to be admitted as evidence in court.

Domestic violence has been a topical issue for some months now, with women’s rights group ‘Destroy the Joint’ heading a push for law reform through their ‘Counting Dead Women’ campaign.

The new laws have been well-received by such groups, who hope that they will spare complainants the stress and trauma of having to give evidence in person at court, as well as increase the number of successful prosecutions.

Others, however, have raised concerns that video footage could actually have a detrimental impact; raising inconsistencies in conduct which could discredit the evidence of complainants or even misidentify perpetrators.

So what exactly do the new laws involve, and will they really help domestic violence complainants?

The New Laws

The Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 was passed by both houses of parliament late last year to amend the existing Criminal Procedure Act 1986.

The crux of the new legislation is that it allows police to take video statements from complainants (ie alleged victims) in relation to domestic violence incidents. These recorded statements can be used as evidence in court instead of a written statement provided that certain requirements are met.

A recorded statement is essentially a video of police asking a complainant questions about the incident. The new legislation requires such statements to be taken ‘as soon as practicable after the commission of the offence.’

It is likely that video statements will generate more emotive appeal as they will often be filmed at the scene shortly after the alleged incident – therefore providing some visual insight into the situation, the demeanour of those involved and the extent of any damage or injury allegedly caused to the complainant, children or property.

Police Commissioner Andrew Scipione says that this will allow complainants ‘to articulate in court the detail and the raw emotion of an incident.’

Police have been invested with 600 new video cameras in order to assist with obtaining the footage, and 2500 officers have undergone specialised training on how to sensitively deal with complainants in the aftermath of alleged domestic violence incidents.

The new laws also enable domestic violence complainants to give evidence in court via audio-video link. This means that complainants may be able to give testimony from a room external to the courtroom without having to face the defendant in court.

In determining whether evidence should be given via audio-visual link, the prosecution must consider the complainant’s wishes and any evidence of intimidation by the defendant.

Will The New Laws Benefit Complainants?

Domestic violence support services and women’s advocates have backed the new laws, stating that they will increase the number of guilty pleas and convictions in domestic violence cases.

Among those who have welcomed the changes is Minister for Women Pru Goward, who says that:

‘Relying on a video-recorded statement reduces the possibility of the perpetrator intimidating the victim by trying to coerce them into withdrawing or changing their original version of events.’

Others have suggested that the new laws will resolve the issues encountered by the justice system when complainants choose not to attend court in person to give evidence in these cases, by allowing them to give evidence via audio-visual link instead.

Police and women’s advocates suggest that many complainants avoid giving evidence in person in court as they fear having to re-live the trauma and stress of the incident. They may also be intimidated by the prospect of having to face the alleged perpetrator in court.

Statistics show that in 2013, 8775 out of 34,789 applications for AVOs were dropped after complainants failed to go through with the proceedings.

However, the statistics do not indicate whether these complaints were withdrawn because of pressure by the alleged perpetrator, or because of some other reason.

From our experience, it is apparent that a significant number of complainants are reluctant to attend court because they have resolved the situation with the alleged perpetrator, or have separated and consider the matter to be resolved, rather than due to an coercion.

A Double Edged Sword?

Some fear that the new laws could cause more harm than good to victims of domestic violence.

For instance, the legislative requirement that a statement be taken ‘as soon as practicable’ after an incident may lead to complainants saying things ‘in the heat of the moment,’ which are inaccurate and that they come to regret later on.

If inaccurate or inconsistent claims are made, they could in fact be used by criminal defence lawyers to discredit complainants in court; potentially leading to acquittals.

Additionally, if false or exaggerated claims are indeed made in the heat of the moment, complainants could face consequences for making a false representation or statement which the maker knows to be false, or did not believe to be true in any material respect, which is a criminal offence in NSW.

A maximum penalty of 12 months imprisonment and/or a fine of $2,200 applies if ‘false accusations’ are dealt with in the Local Court, or five years’ imprisonment and/or a fine of $5,500 if finalised with in a higher court.

There are also concerns that the new laws arguably offer little benefit to complainants. This is because, while complainants will be given the opportunity to give evidence via audio-visual link, thereby potentially sparing them the stress of facing the alleged perpetrator in person, the alleged complainant will still be required to attend court – whether in person or via audio-visual link – to answer questions under cross-examination or re-examination.

Furthermore, the new laws say that while prosecutors should consult victims about whether they want the footage played in court, they do not need their permission to do so. This could mean that complainants are forced to watch footage of the alleged incident, whether they like it or not.

It is suggested that the confronting nature of this footage may take complainants back to the scene ‘in a very real way,’ and that additional support mechanisms should be considered – such as allowing complainants to view the videos in a safe place.

Injustice for Defendants?

There are also concerns that the new laws could tip the scales in favour of complainants, therefore creating injustice for defendants.

It’s feared that the emotive nature of video footage may be more compelling than a written statement, leading juries to make an assessment of a defendant’s guilt based on subjective, rather than objective factors. This arguably erodes the impartial nature of judicial proceedings, which aims to adjudicate criminal matters based on factual circumstances, rather than emotive appeal.

Given these issues, as well as the limited benefit that the new laws have for complainants, it’s highly questionable whether or not recorded statements will be effective in increasing the number of guilty pleas and convictions in domestic violence cases.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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