The onus is always on the prosecution to prove an offence, and this proof has a high threshold in beyond reasonable doubt. In recent months coinciding with the awareness of domestic violence and last year’s Australian of the year Rosie Batty who said in her valedictory speech in January that family violence was an “epidemic”. There has been a significant change as to how evidence is presented in the Local Court in domestic violence matters.
Domestic Violence Evidence In Chief
No longer does the alleged victim have to recant her evidence orally in court, it is now presented in a video form taken soon after the incident. This serves three purposes which assist the prosecution and as a former prosecutor I accepted these changes readily.
Firstly, it assists in achieving prima facie in the event of an unfavourable witness. It is an acknowledged fact that many people who are victims in these matters also love the perpetrator and are reluctant to give evidence against them. Prosecutors no longer have to persevere with an application under section 38 to cross examine their own witness.
Secondly the visceral element of these recordings cannot be understated. The sight of a woman shaking with fear, blood smeared on her face, children crying in the background is utterly compelling. I have watched Magistrates themselves shaking, moved visibly as they watched these recordings before casting a scornful eye over my client.
Thirdly there is a great reluctance now on behalf of the legal profession who represent the accused in these matters to run matters to hearing. The impact of these recordings has tilted the balance well and truly towards the prosecution.
This coupled with the awareness of domestic violence and the need to see it as a serious offence, for which it is, has made defending such offences all the more onerous. My concern largely rests with what I see as the decision makers in these hearings being too swayed by the emotional element and not examining the evidence.
Domestic Violence in Context
What I have noticed is that not all domestic violence occurs in a clear linear pattern. There is often abuse and violence of varying degrees in some of these matters between both the parties. When the police arrive they are often forced to pick a side and run with it. The often quoted reason repeated in police stations across New South Wales is that you go with the person who has the injury.
While the author acknowledges the absolute seriousness of domestic violence, the assistance provided to police in prosecuting these matters and the general paradigm of scepticism from the bench when defendant’s in these matters are giving evidence is concerning.
While it has to be accepted that domestic violence matters have to be taken more seriously it should not be at the expense of the people charged. They have a right to a fair hearing. A hearing in which their evidence is weighed up given the full context of the relationship.
What I see is Magistrates more than ever willing to convict based purely on the evidence of one person against another. The threshold for the prosecution to reach beyond reasonable doubt is a high one and this should not be diminished on the basis that domestic violence has become a focal point in our society.