S v White

Family Violence Act 2004 (Tas), s12.

S v White [2005] TASSC 27; Olsen v State of Tasmania [2005] TASSC 40, referred to.

Judgment Number: [2005] TASSC 89

and IN THE MATTER OF SECTION 304 OF THE CRIMINAL CODE

1 These reasons, published following the grant of bail to the applicant on 12 August 2005, involve consideration of the administration of Acts of Parliament and problems arising from such administration. The Bail Act 1994, s31 provides:

(a) the administration of this Act is assigned to the Minister for Justice; and

(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice"

and concomitant legislation, the Family Violence Act 2004 ("the Act"), s41, assigns responsibility to the equivalent Minister and Department. The publishing of reasons, more detailed than ordinarily required, results from the identification of complexities identified in S v White [2005] TASSC 27 and Olsen v State of Tasmania [2005] TASSC 40 published by this Court in April and May respectively and of problems which remain to be addressed by either the Parliament or Executive.

2 Bail is a form of conditional, not absolute, liberty (see generally Griffiths v R [1977] HCA 44; (1977) 137 CLR 293) and has long been a method of accommodating the presumption of innocence, the impact of prolonged detention before trial with the ensuring of receiving attendance at trial and potential risk to the community or the State (see distinctions made in the Statute of Westminster I, A History of English Law, Holdsworth, Vol IV, 525 - 528).

3 The principles governing the granting of bail were introduced into this jurisdiction by the enactment of the Australian Courts Act 1828 9 Geo IV c 83. In more modern times a grant of bail might involve the imposition of conditions designed to control or inhibit future conduct between charge or arrest and verdict (Levy v Strickland [1983] Tas R 9; Bail Act, s3A). In 2004 Parliament enacted the Family Violence Act which impacted on a court's discretion to grant or refuse bail and by a concurrent amendment (67 of 2004, SchI) to the Bail Act, which permitted a court to impose a "condition(s) controlling the conduct of a person":

"(ba) ... of a family violence order, police family violence order or interim family violence order, made under the Family Violence Act 2004."

4 The object of the legislation was to provide that:

"3 In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations."

(a) any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner:

(ii) threats, coercion, intimidation or verbal abuse;

(iv) stalking within the meaning of section 192 of the Criminal Code

(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or

(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO."

6 Subsequent provisions (ss8 and 9) further define economic and emotional abuse. The range of proscribed conduct is extensive. Wide powers of search, arrest, detention and confiscation are afforded to police officers in the enforcement of the legislation (ss10 and 11). The provisions of the Justices Act 1959, s34, are excluded in cases involving breaches of existing family violence orders (ss12(3) and 35).

7 Parliament provided for consideration of a grant of bail in the following terms (the Act, s12):

"(1) A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.

(2) Without limiting the matters to be taken into account in considering whether or not to grant bail to a person, a judge, court or police officer must have regard to the following:

(a) any available risk screening or rehabilitation program assessment;

(d) the availability of suitable accommodation for the person and any affected person or affected child;

(e) any other matter the judge, court or police officer considers relevant."

8 The purpose of the provision is clear. As Blow J observed in S v White (supra) at par12:

"It is significant, I think, that the Acts Interpretation Act 1931, s8A, requires an interpretation that promotes the purpose or object of an Act to be preferred to one that does not. Here the evident object or purpose of s12 is to attempt to minimise family violence by detaining in custody those charged with family violence offences, unless the court considering the question of bail, or a police officer considering the question of bail, is satisfied of certain things.

That being so, the first question, and perhaps the only question, that needs to be considered in a case like this is whether the Court is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child. In the present context, the only person who qualifies as an affected person is the former partner. The definition of 'family violence offence' in the Family Violence Act is such that violence inflicted upon a child living in a household is not family violence. But, if someone gets charged with assaulting their spouse or partner, then the safety, wellbeing and interests of a child can become relevant because of the wording of s12(1)."

9 The problem raised in this case is not the purpose of the legislation but its administration. In a summary prepared by the Department of Justice for the Australian Institute of Judicial Administration Domestic Violence Workshop held on 8 April 2005, the policy was stated in the following terms:

"In 2004 the Tasmanian government gave approval to fund an integrated pro-arrest, pro-charge, pro-prosecution response to family violence in Tasmania. A pro-arrest policy means that violent behaviour towards a person in their home by a member of the household is considered no less of an offence than violent behaviour towards another person in the community. The pro-arrest approach sends a clear message to the community that any violent act against another person is unacceptable and inappropriate behaviour irrespective of any relationship between the victim and the offender. Safe at Home includes increased funding to family violence related services such as counselling, court support and offender programs, increased funding to police and new family violence specific legislation (The Family Violence Act 2004 see summary of content above).

A 24/7 Family Violence phone line has been set up which links victims to the new police victim safety response team. The Victim Safety Response Teams are trained to provide the following services, as well as the traditional police functions:

* assess the level of risk posed by perpetrators of family violence by the use of a risk assessment tool;

* create and assist victims to implement safety plans relevant to their future living arrangements; and,

* issue police family violence orders to restrain perpetrators of family violence."

10 A concurrent paper presented to the same workshop on behalf of the Magistrates Court included further details of the executive operation of the legislation in the following terms:

The Government's Safe at Home Strategy is an integrated whole of government approach to addressing family violence which involves a co-ordinated strategy by three Agencies, ie, Department of Justice, Department of Police & Public Safety, and the Department of Health & Human Services. The Strategy contains a number of key elements and responses. The Tasmanian Government has provided funding for the Safe at Home initiative in the 2004/05 State Budget of $3.4 million and $4.5 million per annum for subsequent years. The strategy includes: -

The Family Violence Act, 2004 commenced on 30 March 2005 (apart from s 38). The Act focuses on the criminal nature of family violence and establishes specific Family Violence Orders, Police Family Violence Orders, increased penalties for breaches or Orders and harsher penalties for violence [sic] acts in the presence of children. The key provisions of the Act have been detailed previously.

A new 1800 family violence response and referral line has been implemented with calls being answered by trained personnel in the Police department. Those calls requiring an immediate intervention have a police intervention team dispatched . All other calls are referred to appropriate counselling and support services.

Additional specially trained police officers have been recruited to be part of Victim Service Response Teams. These teams take a proactive role in managing safety issues for victims of family violence to enable them to stay in their own homes where possible.

The Police philosophy for family violence is pro-arrest, pro-charge, and pro-prosecution.

All police officers in the State have been trained in, and will be conducting, a risk assessment at each family violence incident. The Risk Screening Assessment Tool (RAST) has been developed to screen for risk factors that predict the likelihood of a further family violence incident.

The risk classification (low, medium, high or extreme) will guide the police in the protective activity to be undertaken.

Safety Audits, which assess the physical attributes of the victims' house, will be undertaken and this will form the basis of a safety plan developed with victims.

Six additional Police Prosecutors have been appointed across the State dedicated to Family Violence matters. Five of the prosecutors have legal qualifications.

Three additional legal aid officers have been appointed to specialise in family violence matters and assist in completion of protection orders."

Examination of the circumstances of this case shows problems of implementation of the policy.

11 On 8 August 2005 the applicant was arrested by a police officer following a complaint of an assault on his partner. In a statement provided to police, the complainant recounted a history of discord which included a seven week period of separation which culminated in a physical confrontation stated in the following terms:

"This morning when Glenn got up to get ready to go to work, I got up too. It was about 5:10am. I got up to get my keys to the car because he took them off my [sic] last night when we were arguing. Glenn just started on me as he always does - I don't say anything, I'm too frightened to - in my opinion it saves arguing.

I asked Glenn if I could have the car keys back. Glenn abused me, calling me all the names under the sun. Glenn just started me [sic] in the chest area and around my shoulders. He grabbed my throat with one of his hands and was pushing my [sic] backwards. He eventually let go, put the keys on the kitchen bench and left.

As a result of Glenn grabbing my neck, I have some tenderness but no marking. I don't have any marks from where he pushed me either."

12 The statement included accounts of a confrontation on the previous day which were said to have led to the events of 8 August and referred to the possession of a firearm in the terms:

"Glenn has a single barrel old shot gun of some type. It is on the property somewhere but I don't know where - I have seen it. Glenn does not hold a firearms licence.

I'm living in fear especially because of these threats - I think Glenn is capable of carrying out these threats - especially with access to the shot gun. My heart pounds when I hear Glenn's ute coming up the driveway because I never know whats [sic] coming next."

13 In an affidavit provided for the purpose of this bail application, the applicant provided a different account, stating:

"6 I deny the allegations of common assault and note the following:

i) I did not even see the complainant on the date in question. I last saw her the evening before at approximately 8:45pm. At that time we argued and I went to bed. The complainant wanted me to pay her $80,000. I refused.

ii) We sleep in separate bedrooms - and the next day I went to work at approximately 5:00am. I filled the car with diesel and went to work. I logged into my work computer at precisely 5:32am.

iii) The complainant has been making threats regarding my safety during the last month. I have independent witnesses that verify her threats to 'have me fixed up by local bikies' and to have me harmed. I believe a report has been made to police in relation to these threats.

iv) It is my position that she has completely fabricated these charges for her own malicious reasons. I believe she is trying to use this as leverage against me in an attempt to force me to pay her money."

14 It was not for the court of petty sessions nor this Court to examine the competing versions, except to acknowledge that the allegations were disputed.

15 Following arrest, an application for a Family Violence Order was made to the court of petty sessions. The document provided to this Court is both unsworn and undated, but presumably was made on either 8 or 9 August. On 9 August a complaint alleging the assault on 8 August by "... pushing her [the complainant] to the shoulders and chest and grabbing her by the throat" was laid and brought before the court of petty sessions at the same time as the application. Bail was opposed by the prosecution and the applicant was remanded in custody until the following day.

16 The firearm referred to by the complainant had not been found within the home. It was later found on another part of the small farm occupied by the parties. Its discovery led to the laying of a complaint on 10 August alleging possession of an unregistered firearm (a Harrington .410 single barrel shotgun), one .240 cartridge, Winchester .22 bullets and unlicensed possession. All matters came before the court on 10 August when bail was again opposed and refused, with the matters being adjourned until 18 August. The matters came before this Court on 12 August when bail, subject to stringent conditions concerning presence and movement and the provision of a surety, was granted.

17 The applicant, aged 49, has no history of violent conduct and no previous convictions. He was engaged by his brother in the management of a logging operation employing 9 workers, with an annual turnover in excess of $1,000,000. The residence of the complainant and the applicant formed part of a small farm and, as matrimonial property, was the subject of the general discord. Given the presence of stock, there was nothing untoward in the presence of a firearm on the property. The complainant had never claimed its use as a form of threat. The concurrence of three matters, namely the application for a domestic violence order, a complaint of assault, and the firearms charges, made the issue of bail problematic.

18 The facts alleged in the application for a domestic violence order were a repetition of the statement provided by the complainant. The police officer responsible for the conduct of the proceedings completed an assessment entitled "TASMANIA POLICE FAMILY VIOLENCE RISK ASSESSMENT SCREENING TOOL", a document commented on by Underwood CJ in Olsen (supra). Here, although completed, it could not be produced to this Court. It would appear that by administrative direction, it was kept separate from the police file and could not be accessed by the prosecutor. Such is said to be the practice. With some difficulty, this Court obtained a blank version of the forms and the Court was informed that the assessment score was calculated at 24. It is this document which is referred to in the Act, s12, as an "available risk screening document". The form is in the following terms:

"TASMANIA POLICE FAMILY VIOLENCE RISK ASSESSMENT SCREENING TOOL

INFORMANT'S NAME (if not the victim) RELATIONSHIP TO VICTIM:

Offender has breached a restraint order, (P)FVO or any court order now or in the past

Victim and the offender have recently separated after cohabitating

Offender has assaulted the victim during the most recent incident

Offender has assaulted a child in the relationship during the most recent incident

Offender has assaulted the child(ren) in the relationship, in the past

The violence level in the relationship has escalated (violence includes damage)

Offender has threatened to kill the victim or child(ren) during the most recent incident

Offender has stalked the victim or others in the past

Offender has previous murder or manslaughter arrest

Offender has previous sexual assault or rape arrest

Offender has attempted to kill themself now or in the past

Offender has demonstrated bizarre, paranoid or delusional behaviour

Victim is terrified of the Offender (victim can not be terrified & afraid)

There is a pregnancy or new birth (less than 12 months) within the relationship

The relationship is affected by sensitive cultural issues or disability attributes

Offender has killed a family pet now or in the past

Victim or child, was physically injured during the most recent incident

Victim or child, was strangled or suffocated (or attempted) during the most recent incident

Offender has threatened to kill or injure victim or children in the past

Offender is very jealous, obsessive, intimidates or is bitter towards the victim

Offender has committed offences of violence against any person in the past

Offender has outlined homicidal fantasies or threats

Offender has outlined suicidal fantasies or threats

Offender has a diagnosed mental disorder or illness

Offender suffers or has suffered from serious depression

Victim is afraid of Offender (victim can not be afraid & terrified)

Offender has injured or threatened to injure or kill a family pet now or in the past

Offender or relationship has financial difficulties

Offender is not taking required, prescribed medication

Reporting Officer (Name & sign): Victim (sign):"

19 Many of the indices are replicated and represent a subjective assessment provided by a complainant. In attempting to cover a variety of forms of conduct or history, the resulting duplication elevates the computed figure or degree of risk. Assuming there to have been a single assault by an unemployed person, depressed, suffering from depression accompanied by alcohol abuse, a score of 27 without more, ie, bordering on high, would not be surprising. Reliability and accuracy are not used to "weight" the assessment. The Summary of Proceedings of the Australian Institute of Judicial Administration Seminar, "Family Violence", held on 8 April 2005, relevantly includes information as to the provenance and use of the "screening tool" provided by Tasmania's Chief Magistrate in the following terms:

"* The new system involves a whole of government approach with the Justice Department as the lead agency. Policy and courts are heavily involved, along with Health. The Legal Aid Commission is also involved to a lesser extent;

* The definition of family violence includes economic abuse and intimidation. This has implications for what is a family violence offence;

* Tasmania Police has instituted a 'pro arrest policy' since September last year and are now increasingly opposing bail;

* Police also have responsibility for conducting 'safety audits' to make sure the victim's premises are more secure;

* All police officers in the State have been trained in, and will be conducting, a risk assessment at each family violence incident. The Risk Assessment Screening Tool (RAST) has been developed to screen for risk factors that predict the likelihood of a further family violence incident. The methodology is currently being evaluated at the University of Tasmania and it is not yet in operation;

* A person charged with a family violence offence is not to be granted bail unless the judicial officer or police officer is satisfied that the safety, well-being and interests of the victim(s) - both adults and children - are not likely to be adversely affected;

* The intention is that police orders would be used in incidents in the lower to medium range of seriousness, with court orders used in the medium to extreme range;

* In any case in the extreme category there would now be automatic opposition to bail;

* All police that attend family violence incidents have received training in risk assessment tools;

* The Risk Assessment Tool was developed from another model. It is now with the University of Tasmania for validation."

20 The problem caused by duplication within the assessment, the admixture of protective legislation with the application of the criminal law, and the mandatory nature of the legislation, is that a court is inhibited or constrained in its own assessment of future risk, especially in the case of an unrepresented respondent. Administrative direction requiring automatic opposition to the grant of bail deprives a court of any advantage of a "screening assessment" made by an experienced and responsible public officer. It is relevant here to observe that on the hearing counsel for the State felt unable to agree to the making of a bail order.

21 On 11 August 2005, a custodial officer at the Launceston Remand Centre received a telephone inquiry from the complainant. His account, not challenged at the hearing, is:

"2 On Thursday the 11th August, 2005 I was on duty at the Remand Centre.

3 During the morning I answered a telephone call. The caller requested to speak to S one of the persons in remand. I enquired as to who she was and was told that she was his wife.

4 I then informed her that she could not speak to him as it may be seen to be instigating a charge. I was aware that Mr S was in custody for allegedly assaulting his wife and that there was a Family Violence Order matter before the courts also.

5 I was then asked to tell Mr S that: 'I am willing to drop the assault charge if he pays me the money he owes me'. She then indicated that she would wish the Family Violence Order to remain in place.'

22 A similar message was conveyed to the applicant's solicitors by the complainant. The approaches made by the complainant are presently the subject of investigation by police. Despite this, the previous opposition to the making of a bail order was maintained. The investigation itself would have delayed any grant of bail by the court of petty sessions.

23 It is evident from the legislation that a purpose is the removal of a person from the home who is alleged to have been violent, both as a "cooling off" mechanism and a medium to long-term form of control and risk avoidance. The legislation establishes a policy regime designed to address a complex social problem. Effectiveness depends on general confidence in the administration of the policy and its outcome in particular cases. Public confidence is diminished by arbitrary approach and outcome. It may be that executive policy is designed to place responsibility for future risk with the courts, rather than a discretionary exercise or arrangement made by public officers. Such might be desirable, but requires the provision of reliable material to a court required to deal quickly with the issue of deprivation of liberty, consequences to the family unit, and assessment of future risk. Admixture of protective legislation with concurrent, but necessary, criminal proceedings, creates complexity, with the risk that deprivation of liberty is seen as a sanction imposed for unproven conduct.

24 The Act, s12, creates a presumption against a grant of bail unless a court is affirmatively satisfied that release "would not be likely to adversely affect the safety ... of an affected person". The words "well being and interests" of that person later appearing in the section are of wider import and might require further consideration. But they ought not be construed as permitting detention through revenge, vindication or as a form of sanction.

25 No finding is here required of the intent of the complainant in contacting the remand centre, nor of the purpose of the words used, but the message might be construed as a form of pressure designed to enhance a financial outcome favourable to the maker. Such would be contrary to the purport of the legislation.

26 It is neither appropriate nor possible for a court to determine the "merits" of a complaint concerning domestic violence at first instance. That remains an issue for trial. A court is responsible for "future risk" and in making that decision must have confidence in the primary material. The community at large must have confidence in the application of the legislative scheme. The administration of the legislation as required by the Act, s14, is central to that confidence. Application of policy, irrespective of the circumstances of each case, will not enhance the process. The Statute of Westminster (supra) permitted a grant of bail in enumerated cases according to the nature of the crime or offence alleged, and prohibited it in others. That is not the model here used by the Parliament. The tensions created by the understandable need for future protection of a family and the traditional concepts of presumption of innocence and liberty of the suspect, make it more important that the primary material can be relied upon. In this case the applicant was afforded bail upon the provision of a reliable surety and the imposition of residential, geographical and contact provisions.